The Supreme Court and Memes

Tags

,

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


Last week, I had written about the Punjab & Haryana High Court’s patently illegal order, where it made the quashing of an FIR conditional upon the accused paying a sum of Rs. 10 lakhs. This sort of behaviour appears to be infectious: today’s Supreme Court order directing Priyanka Sharma to “tender an apology” for sharing a meme about West Bengal CM Mamata Bannerjee is yet another example of the judiciary abdicating its role as the guardian of fundamental rights, and opting to play moral censor instead.

The facts are straightforward. Priyanka Sharma was arrested – and then sent to fourteen days’ judicial custody for sharing the following meme on Facebook:

undefined

This is, evidently, the head of CM Mamata Bannerjee photoshopped upon Priyanka Chopra’s costume at the met gala. The West Bengal police deemed it fit to book Sharma under Sections 66A and 67A of the IT Act, and Section 500 of the IPC. A moment’s reflection should make it clear that this entirely unsustainable. Section 66A was struck down as unconstitutional in March 2015, more than four years ago. Section 67A – the only non-bailable provision among these – which penalises transmitting images of sexually explicit acts or conduct, is inapplicable on the face of it. And it’s unclear how a piece of pure political satire attacks the reputation of the CM in a way that might bring it within the definition of defamation.

This, therefore, was not even remotely a case where remand was justified. When the petitioner approached the Supreme Court with a habeas corpus petition, therefore, there was an immediate opportunity to set things right. There was also a larger opportunity: this is not the first time that people have been arrested or remanded for making memes. Across India, for many years now, there have been reports of similar instances, where the police appear to act upon political directions, and the magistrates – the first lines of defence – act as rubber stamps. Clear orders from the Supreme Court, in this case, could have gone a long way in discouraging this practice.

Instead, what happened at the Court today makes for grim reading. Instead of limiting itself to its job – to see whether the remand was justified – the Court promptly entered into the merits of the case itself. According to Indira Banerjee J. , it was “wrong to put one person’s face on another” (welcome to the 21st century!). According to Sanjiv Khanna J., the problem was that Sharma was from “an opposite political party, and not a common citizen” (what does that have to do with bail?). The judges then dictated an order where, originally, Sharma’s release was made conditional upon her apologising (an order that would have been patently illegal for the same reasons that I have discussed in my previous post about the P&H High Court), but then recalled that, made her release unconditional, but nevertheless directed her to apologise. In addition, they left the “larger question” (of making memes?) open.

But in some ways, this is even worse. Presumably, if Sharma refuses to apologise, it will amount to contempt of court, and she will be subjected to prosecution. Effectively, then, the Court has told her to apologise or face the possibility of jail time. This, however, is nothing other than compelled speech: forcing a person to say something that they would rather not, on the thread of sanction. And compelled speech is as serious a violation of Article 19(1)(a) as limitations upon expression. In other words, this is yet another example of (lawless) judicial censorship – a trend begun in the days of Dipak Misra J., and now carried on by worthy successors – which finds no basis in the Constitution.

It hardly needs to be stated – yet again – that none of this had anything to do with the question of whether or not Sharma should have been granted bail.

At a more deeper level, today’s hearing reveals yet again the sad truth that when it comes to free speech issues, judges seem simply incapable of applying the law and the Constitution. The standard they do seem to apply is “if I don’t like it, it must be wrong, and I’m going to do something about it.” That would be fine if they were sitting as family elders mediating a domestic quarrel; it certainly isn’t fine when they are sitting as judges in a constitutional court.

This almost visceral unease with any form of expression that seems to go beyond judges’ personal comfort zone is evident from Banerjee J.’s anguished “it is wrong to put one person’s face upon another”, and her Delphic “free speech is non-negotiable, but it ends where the rights of others begin.” On the second point, apart from the fact that no “right” of anybody else was involved in this case (not even the “right to reputation” that Dipak Misra J. bizarrely raised up to the status of Article 21 in the criminal defamation case), it’s also important to note – on a point of law – that unlike many other Constitutions, the Indian Constitution does not limit free speech on the basis of a generic “rights of others” clause; Article 19(2) is entirely specific about the grounds on which free speech can be restricted, and it is not open to the Court to traverse beyond them. And on the first, Banerjee J.’s reaction to the arcane concept of photoshop is itself worthy of a meme, but since the legality of that is now in doubt until the Supreme Court hears the “larger issue”, we must make do with a generic meme:

undefined

Last week, it was the P&H High Court saying “[unsustainable criminal] charges against you will be quashed, but pay Rs. 10 lakhs for the privilege.” Today, it is the Supreme Court saying, “your [illegal] remand will be quashed, but you must apologise.” It remains to be seen what novel way the courts will find next week to show us that they couldn’t care less about following the law and the Constitution on issues of free speech.

Reservations in Promotions and the Idea of Efficiency: B.K. Pavitra v Union of India

Tags

, , ,

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


This morning, a two-judge bench of the Supreme Court delivered a fascinating judgment in B.K. Pavitra v Union of India, concerning the relationship between reservations in promotions for Scheduled Castes and Scheduled Tribes [SCs/STs], and issues of seniority. The facts were as follows: in 2002, the state of Karnataka enacted a law stipulating – in effect – that consequential seniority would follow upon the promotions of SC/ST employees. To put it in simple language: if a reserved category employee (A) was promoted before a more senior colleague (B) by virtue of A belonging to the reserved category, then – in the higher level post – A would now be senior to B (when, eventually, the latter would get promoted as well).

Readers familiar with reservation will know that this issue – bitterly contested over many decades – was eventually set at rest by amendments to Article 16(4A) of the Constitution, that authorised consequential seniority in cases of reservations in promotions. In Nagaraj, while upholding the amendment in question, a Constitution Bench of the Supreme Court also held that the government was obligated to first collect data demonstrating “inadequacy” of SC/ST representation in the services, their “backwardness”, and the impact on “efficiency”, before it could enact laws in accordance with Article 16(4A). In 2017, the Supreme Court then found that the Karnataka law did not comply with Nagaraj, and was therefore unconstitutional (B.K. Pavitra – I). In response, the Karnataka government commissioned a study [“the Ratna Prabha Committee Report”], and based on the results of the study, (basically) re-enacted the earlier law.

The constitutional challenge to the law raised a host of issues. It was argued that Karnataka had impermissibly “overruled” the judgment in Pavitra – I by re-enacting the law that had been held to be unconstitutional, and doing it retroactively, to boot. It was argued that the bill had been wrongly sent for Presidential assent. It was argued that the study on the basis of which the law was passed was flawed. And it was argued that the law was unconstitutional because it failed to exclude the “creamy layer.” In this essay, I will not discuss all of the above issues: on some points, such as legislative overruling, the Court essentially synthesised and restated existing law; readers interested in the subject may read the judgment for a clear and lucid exposition of the principles. What I want to focus on, rather, are some of the novel issues that arose, as well as the novel treatment that the Court accorded to older issues.

Standards of Judicial Review

As the Chandrachud J. correctly observed at the beginning of the judgment, this was the first time in the post-Nagaraj era that the Court was explicitly asked to rule upon the State’s data-gathering exercise, which was now a constitutional pre-requisite for any law aiming to implement reservations (with consequential seniority) in promotions (paragraph 4).

The petitioners argued that the Ratna Prabha Committee Report was flawed because, inter alia, its methodology was either incorrect or insufficient (in many respects, such as measuring inadequacy against sanctioned posts instead of filled posts, that it was not cadre-based, and so on), and because the reports on efficiency were only general in nature. The Respondents contended, on the other hand, that these questions were within the “subjective satisfaction” of the State (as had been held in Indra Sawhney), and that it was the State that was in the best position to “define and measure merit.”

In response, the Court noted that, as a preliminary point, it would have to set down the parametres of judicial review in a case like this. These parametres, it held, would be based on two mutually reinforcing principles: the first was the general principle that the executive was best aware of prevailing conditions. This is nothing more than the familiar presumption of constitutionality. The second principle was more specific: in the context of reservations, questions such as adequacy of representation would be left, at the first instance, to the subjective satisfaction of the State. This was because, as Chandrachud J. noted, the State was tasked with promoting substantive equality under the Constitution through the vehicle of reservations. (paragraph 95). Applying these principles to the Ratna Prabha Committee Report, Chandrachud J. observed that the Report was based on sampling methods that were broadly accepted among social scientists. There was no evidence that extraneous or irrelevant material had been used. Beyond that assessment, it was not for the Court to hold that the Report was invalid because the best (or substantially better) methods were available, that had not been used. And on the basis of the Report, it was open to the legislature to hold that a disparity between the population percentage of SC/STs, and their representation in the services, was the basis for determining “inadequacy of representation.”

A few things follow from this discussion. The first is that the Court adopted a deferential attitude towards the State’s collection of data, and its inferences from the data it had collected. The reason for this, the Court held, that the purpose of the exercise was for the legislature to be able to effectively advance the constitutional goal of substantive equality. In other words, the Court recognised the crucial point that constitutional goals are to be advanced by all three wings of the State, and that in different contexts, the primary responsibility for that lies upon different wings. In the specific case of reservations, that responsibility has been placed upon the legislature. For this reason, in the domain of reservations, the Court would only assess the State’s subjective satisfaction on the deferential threshold of rationality and non-arbitrariness. Note, also, what follows: this principle of deference will not apply to every situation where a law is challenged, and the State invokes data collection and analysis to justify itself. In a case where – for example – the challenge is on the basis of a violation of civil rights, the Court may well elect to take on a more interventionist approach to the reliability of the data. In the specific context of reservations, though, given the constitutional text, and the clear responsibility of the State, this the Court’s approach has much to recommend it.

Interrogating Efficiency

Now, of course, it might be argued that the Court ought to have been more interventionist, because the case did indeed involve a violation of rights – the Article 16(1) equality rights of non-SC/ST candidates. This point was addressed by Chandrachud J. in the subsequent section where, relying upon the judgments in N.M. Thomas and Subba Rao J.’s dissenting opinion in Devadasan, he correctly observed that it was the principle of substantive equality – and not formal equality – that underlay the Constitution’s equality code. As Chandrachud J. observed, at paragraph 107:

There is substantial evidence that the members of the Constituent Assembly recognised that (i) Indian society suffered from deep structural inequalities; and (ii) the Constitution would serve as a transformative document to overcome them. One method of overcoming these inequalities is reservations for the SCs and STs in the legislatures and state services.

Readers may consult the following paragraphs for an account of the Constituent Assembly Debates, the the place of reservations in advancing the Constitution’s transformative character. This discussion, however, segued into what is perhaps the most fascinating part of the judgment. Recall that, according to Nagaraj, the government was also required to collect data on whether reservations in promotion would affect “efficiency” in services (as per the requirement of Article 335). And one of the bases on which the petitioners attacked the Ratna Prabha Committee Report was precisely that it had failed to do so.

In response, Chandrachud J. undertook a critique of the concept of “efficiency” itself. In paragraph 119, he observed that:

The Constitution does not define what the framers meant by the phrase efficiency of administration. Article 335 cannot be construed on the basis of a stereotypical assumption that roster point promotees drawn from the SCs and STs are not efficient or that efficiency is reduced by appointing them. This is stereotypical because it masks deep rooted social prejudice. The benchmark for the efficiency of administration is not some disembodied, abstract ideal measured by the performance of a qualified open category candidate. Efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people. If, as we hold, the Constitution mandates realisation of substantive equality in the engagement of the fundamental rights with the directive principles, inclusion together with the recognition of the plurality and diversity of the nation constitutes a valid constitutional basis for defining efficiency. Our benchmarks will define our outcomes. If this benchmark of efficiency is grounded in exclusion, it will produce a pattern of governance which is skewed against the marginalised. If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce a just social order. Otherwise, our past will haunt the inability of our society to move away from being deeply unequal to one which is founded on liberty and fraternity. Hence, while interpreting Article 335, it is necessary to liberate the concept of efficiency from a one sided approach which ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration of the Union or of a State.

This needs some careful unpacking. What Chandrachud J. is effectively arguing against here is an account of “efficiency” that sees it in purely instrumental terms, and devoid of any relationship with the socio-economic context within which such accounts are inevitably embedded. It is an account that is based in a deeper idea of philosophical individualism, where there exist certain mechanisms – such as standardised tests – that measure “individual merit”, independent of an individual’s group affiliation. This is what efficiency is about, and it must be set off and “balanced” against group-based affirmative action. However, this account has been challenged throughout our history (starting with Subba Rao J.’s dissenting opinion in Devadasan), and here Chandrachud J. takes up the challenge. At the heart of this reasoning is the acknowledgment that assumptions about what people are (i.e., their “merit” or “efficiency”) cannot be separated from what has been done to them (i.e., structural and social privileges, often the product of centuries of discrimination). And ultimately, constitutional values dictate that both must be taken into account. Thus, as Chandrachud J. observed in paragraph 126:

Thus, a meritorious candidate is not merely one who is talented or successful but also one whose appointment fulfils the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration.

On these bases – and on the basis of the Report’s finding that there had been no adverse impact even on instrumental efficiency as the data showed, this ground of challenge was rejected as well.

Creamy Layer

A final point: it was argued that the law was unconstitutional because – after Jarnail Singh – it was bound to take into account the exclusion of the creamy layer among SC/STs. The Court correctly observed that the question of creamy layer did not arise at the point of promotions and consequential seniority. It is worth pointing out once more, however, that Jarnail Singh’s finding on this respect is somewhat suspect: the reason why the creamy layer doctrine is not supposed to apply to SCs/STs is because – historically – they have been oppressed by virtue of their group identity. The concept of the creamy layer makes sense if we assume that it is possible to escape one’s group identity (through prosperity or other ways of social advancement, for example). However, when oppression is defined by characteristics such as social stigma (as was well-recognised by Ambedkar and other framers of the Constitution), then the very concept of a “creamy layer” within that group does not make sense. This aspect of Jarnail Singh, it is to be hoped, will be reconsidered at some point.

Conclusion

Today’s judgment is a fascinating read, particularly because of the manner in which it moves between different levels of reasoning – from concrete issues of service jurisprudence to the abstract principles of substantive equality and the idea of merit – and how it weaves them together in one coherent vision of transformative constitutionalism. The Court’s finding on the substantive question – the constitutionality of the seniority law – is informed by its reasoning about the abstract principles that underly the Constitution’s equality code; in other words, the Court believes that the Constitution ideals make a difference, and it explains precisely how it does so. And moreover, it joins an important tradition of judicial reasoning on affirmative action that does not take concepts of “merit” and “efficiency” as self-evident, but subjects them to critical evaluation, from the perspective of the original constitutional vision, noting how they are embedded within our social realities (and inequalities). This tradition of reasoning has, so far, been underdeveloped in our constitutional history – and today’s judgment marks an important milestone in its evolution.

The Lawyers’ Collective Order and the Rise of Fourth-Phase PIL

Tags

,

Earlier today, a two-judge bench of the Supreme Court – consisting of the Chief Justice and Deepak Gupta J. – issued notice in a PIL filed by an organisation styling itself “Lawyers Voice.” The petition asked the Court to constitute a Special Investigating Team that would investigate (under Court supervision) “into the apparent illegality and non-action of the government in registering IPC, PC Act, PMLA, Income Tax Act and other offences” (sic) against Indira Jaising, Anand Grover, and the Lawyers Collective. While providing no specific details, the petition alleged that “various malpractices” had been committed by the Respondents (the Ford Foundation and its CIA connections also features in the petition). In a press release released shortly afterwards, Indira Jaising pointed out various irregularities in the manner in which the PIL was listed and heard before the Court today, and stated that these proceedings were initiated to harass her because of her support for the complainant in the case involving allegations of sexual harassment against the CJI.

That apart, the decision of today’s bench to issue notice in the case raises a few crucial questions:

A. Maintainability: After three-and-a-half decades of PIL, one basic legal point remains clear: because it is filed under Article 32 of the Constitution, a PIL is maintainable only if there is a violation of one or more of the fundamental rights guaranteed under Part III of the Constitution. No matter how much the requirements of locus are loosened and how expansively Article 142 is interpreted, this threshold bar continues to exist, and cannot be wished away by the Court. With that in mind, what fundamental right of the petitioner-NGO – or of anyone else for that matter – has been violated by the government’s alleged inaction in prosecuting Indira Jaising, Anand Grover, or the Lawyers Collective? The petition is silent on this point, and for good reason: there is none. But if the PIL is non-maintainable, why has the Supreme Court issued notice on it?

B. Threshold for an SIT Investigation: In the Judge Loya Case, the threshold for ordering a Court-monitored investigation was made very clear, and a high bar was set – a point that I made recently, in the context of the Supreme Court not following that very precedent in the Utsav Bains Case. Recall that in Loya, notice was not issued, and the petition was dismissed on the basis of pleadings and oral arguments. Clearly, therefore, precedent dictates that the notice threshold in cases like these is a high one as well (a position that makes eminent sense under classic separation of powers theory, where the job of carrying on investigations is not that of the court). Why then has the Court refused to follow Loya twice in two weeks?

C. The statutory scheme: Leading on from the previous point, there is a specific procedure to be followed in case a crime has been committed, and it appears that the police is not registering an FIR: and that is to approach the Magistrate under S. 156(3) of the Code of Criminal Procedure. Admittedly, in “special cases”, the Supreme Court has ordered investigations in PILs before, without this requirement being fulfilled (see Abhinav Sekhri’s critique here); in this case, however, given points A and B above, there surely ought to have been something showing that the PIL-petitioner had tried the 156(3) route, and failed – and if not, then reasons why this was a special case where the normal procedure needed to be bypassed. However, the petition does not contain even a whisper about any of this.

D. Why not the High Court?: As the PIL itself points out, there are ongoing proceedings before the High Court of Bombay pertaining to the cancellation of Lawyers Collective’s FCRA license by the government. That being the case, why was this petition not filed before the Bombay High Court? More particularly, a few weeks ago, when the Aadhaar Ordinance was challenged before the Supreme Court, the Chief Justice dismissed it and asked the petitioners to approach a High Court (this was a constitutional challenge, no less). Here, on the other hand, notice is issued in a PIL where at least a part of the bundle of facts upon which it (purports to be) based is already in litigation before the Bombay High Court. Is there no obligation of basic intellectual consistency?

At a deeper level, today’s PIL – and the Court’s decision to issue notice – marks the high point of what I propose to call “fourth-phase PIL.” I use the term “fourth-phase PIL” in response to classic PIL theory, which divides the evolution of the jurisdiction into three phases: first phase (1980s), where PIL was a tool to vindicate the rights of the vulnerable and the marginalised; second phase (1990s), when it was primarily used by the court to tackle environmental (and other related issues); and third phase (2000s), when the Court used PILs to intervene into issues of corruption and secure good governance.

I define fourth-phase PIL as follows:

The use of the court as a vehicle, through public interest litigation and the procedural and substantive flexibilities that it allows, to restrict or curtail individual rights guaranteed under Part III of the Constitution, and/or to achieve political goals that are blocked by normal political routes, and/or to stymie existing legal proceedings or bypass statutory process.

While fourth-phase PILs are often filed by political parties or their proxies (a prominent contemporary PIL-filer, for example, is also the spokesperson of a national party), this need not always be the case. Recent examples of fourth-phase PILs include the national anthem proceedings, the NRC proceedings, and the attempts to have Aadhaar linked to SIM cards and to voter ID cards through judicial fiat; readers who have followed the Supreme Court over the last couple of years will doubtless be able to add many more.

Fourth-phase PIL takes to the extreme the various procedural and substantive innovations that were evolved – in very different contexts – in the first three phases. From the first phase, it takes the loosening of locus standi (which was done so that people who were not able to access the court could be represented), and turns it into an absence of locus standi: now, it seems, anyone can file a PIL about anything, without having to demonstrate that there exists an affected party unable to approach the court. From the second phase, it takes the elongation of Part III provisions, and transforms them into an irrelevance: now, a PIL petitioner need not even mention in their petition how a Part III right has been violated. And from the third phase, it takes the expansion of Article 142, and transforms it into a power vaster than empires: there is now no question about separation of powers, institutional capacity, or judicial encroachment. In fact, if fourth-phase PIL was to be given a moniker, it should be titled “Article 142 litigation”: it is as if the only article in the Constitution is Article 142. There is no Article 32, no Part III (not even Article 21), and no basic structure separation of powers, once fourth-phase PIL is engaged.

Today’s proceedings exemplify the place that fourth-phase PIL has taken us to. An NGO approaches the Supreme Court, asking it to order the government to take criminal action against another NGO (and two lawyers). It does not show locus, it does not show how the petition is maintainable, it does not explain why the Supreme Court should take it up while the Bombay High Court considers an overlapping petition, it provides no justification for shredding the existing statutory scheme, and it provides no documentary evidence. In any other court in the world, this petition would have been dismissed with punitive costs. The Chief Justice of India, on the other hand, issues notice.

But perhaps that’s why fourth-phase PIL/Article 142 litigation is a unique phenomenon in global constitutionalism.

Freedom of Speech at the High Courts: Contrasting Decisions from P&H and Bombay

Tags

, , ,

Two decisions, delivered over the last few days, exemplify how the terrain of free speech remains a contested field in Indian constitutional law.

Burdening Legal Speech: Vishal Dadlani and the P&H High Court

Vishal Dadlani v State of Haryana came to the Punjab & Haryana High Court as a quashing petition. FIRs had been registered against Vishal Dadlani and Tehseen Poonawala under Sections 153A (promoting enmity between classes), 295A (hurting religious sentiments), and 509 (insulting the modesty of a woman) of the IPC, and 66E of the IT Act (publishing images of private body parts). These FIRs arose out an event in 2016, when the Haryana Legislative Assembly invited Tarun Sagar, a Jain monk, to deliver an address; according to the tenets of his faith, he did so in the nude. On Twitter, Dadlani criticised this strongly, focusing his ire upon the mixing of politics and religion. After getting into acrimonious arguments with Tarun Sagar’s followers, Dadlani apologised.

Meanwhile, Tehseen Poonawala criticised the prevalence of sartorial double standards, asking “why is this naked man ‘holy’ even if he walks nude in the state assembly while a woman would be termed a slut?” To drive the point home, he also posted a photograph of a “half-naked woman”, placed alongside a photograph of Tarun Sagar. From a perusal of the tweets, it appears that at least partially, Dadlani and Poonawala’s outrage was triggered by Tarun Sagar making various remarks about the role and place of women in society, such as asking wives to “accept the discipline” imposed by husbands.

Counsel for both petitioners argued that none of the offences were made out, even prima facie (counsel for Dadlani made the additional point that he had apologised directly to Tarun Sagar, and Sagar had accepted his apology; consequently, nobody from the Jain community had taken any action – the complainant at whose behest the FIR was registered was an outsider).

After extracting the submissions of both parties (including relevant precedent), the High Court held that the quashing petitions ought to be allowed, for (broadly) the following reasons: first, none of the followers of the Jain religion had initiated proceedings, or had come forward as witnesses; secondly, it had been long-accepted in Indian jurisprudence that the right to free speech included the right to express socially and culturally unpopular or unorthodox views; thirdly, the mens rea required for offences under Sections 153A and 295A had not been demonstrated; and fourthly, after two and a half years, the State had not granted sanction to prosecute, clearly demonstrating its own lack of interest in pursuing the case.

The High Court, therefore, announced that it would quash the FIRs; but in the last two pages of the judgment, it suddenly veered off into unorthodox territory. The Court noted that “justice” would also have to be done to the Jain community; it then observed:

If the contribution made by the petitioners towards poor people is compared to the contribution made by Jain Muni Tarun Sagar, it is apparent that the petitioners have played a mischief to gain publicity without having much to their credit. In recent years, the country has witnessed large scale violent protest on incitement made by using social media platform, thereby, causing extensive damage to public property. However, the preachings of Jain Muni Tarun Sagar about non-violence, sacrifices and forgiveness, has avoided repetition of such like protest. Therefore, it would be appropriate to impose the costs of 10 lacs each on the petitioner – Vishal Dadlani and the petitioner – Tehseen Poonawala, so that in future they may not mock at any head of a religious sect, just to gain publicity on social media like Twitter. (p. 38)

In other words, therefore, the High Court made the quashing of the FIRs conditional upon both petitioners paying Rs. 10 lakhs as costs.

Now, a few observations need to be made about this order. The first is that this order is incoherent. Effectively, it tells the petitioners, “you have committed no crime, but unless you pay Rs 10 lakhs, criminal proceedings against you will continue.” This cannot be. Once the High Court returned the legal finding that the offences under Sections 153A, 295A, 509 IPC and 66E were not made out even prima facie, then it followed from that finding that the FIRs would have to stand quashed. Accepting the alternative proposition would mean that if the petitioners refused to pay Rs. 10 lakhs, then the FIRs would continue and the case would go to the stage of charge and trial despite a judgment by the High Court stating that the offences had not been made out. This would be patently absurd – what, exactly, would a trial court be expected to do when faced with a situation like this?

Apart from being absurd, the High Court’s order is also illegal. Once it had found that the offences had not been made out, the logical consequence to that finding was that the petitioners had engaged in legal speech (however ill-thought, crass, or crude that speech might have turned out to be). Levying a financial penalty of Rs 10 lakhs upon that speech, then, is a classic case of judicial censorship: penalising speech in the absence of a law. As I have argued before at some length, this is, quite simply, impermissible under the Constitution. The only method through which speech can be penalised is through a State-made law (which is subject to judicial review) Under Article 19(2), as held in both Mirajkar and (more directly) in Rupa Ashok Hurra, judicial orders do not count as law.

But apart from being absurd and illegal, the High Court’s order also betrays some fundamental misunderstandings about Indian free speech jurisprudence, and the point of having a constitutional right to free speech in the first place. By noting that the purpose of its order is to deter people from mocking “at any head of a religious sect, just to gain publicity on social media like Twitter“, the Court lays down an extraordinarily broad and vague standard for the future. Recall that this comes after the Court had found that there was no mens rea to hurt religious sentiments or provoke enmity between classes; effectively, therefore, individuals who make comments that can be construed as “mocking the head of a religious sect”, and whose motives can be construed to be “just to gain publicity on social media”, can expect to be slapped with costs of Rs 10 lakhs. If this was the standard set out in a law, it would be immediately struck down as unconstitutional; indeed, in Shreya Singhal, similar phrases such as “grossly offensive” and “menacing” were struck down as being overly broad and vague. As the Supreme Court in Shreya Singhal understood, provisions such as these create a “chilling effect”: they blur the line between what is permitted and what is prohibited to such an extent, that people begin to self-censor, in order to steer far clear of that (now) invisible line.

There are two more serious mistakes in the High Court’s reasoning. The first is an implicit comparison it makes between what Tarun Sagar has done for the poor, and what the petitioners have (or have not) done. This is entirely irrelevant: the Indian Constitution does not assign value to free speech based upon the social qualities of the speaker. Setting up a hierarchy of speakers, where those who have done social work have more free speech rights than those who haven’t, is entirely inconsistent with the very concept of a right, apart from failing to understand that the Constitution protects free speech for reasons flowing from individual self-determination, democracy, and the search for truth, none of which have anything to do with the qualities of the speaker. And secondly, the High Court’s reference to “large scale violent protest” because of “incitement” on social media sanctifies the heckler’s veto: it places the burden of preventing riots on those who speak, rather than upon those who riot. That cannot be, as the Supreme Court held in Rangarajan.

It should therefore be clear that, both from the perspective of legality, and form the perspective of the deeper constitutional principles underlying the free speech guarantee, the High Court’s order is unsustainable, and ought to be promptly overturned on appeal. 

Defamation and Injunctions: The Bombay High Court

Meanwhile, in Lodha Developers Ltd v Krishnaraj Rao, the Bombay High Court considered a (typical) injunction application in a defamation case. The plaintiff was a real estate developer. Defendant No. 1 was a journalist, who had written critically about the plaintiff. Defendant Nos. 2 and 3 were purchasers who bought flats from the Plaintiff; they found the Plaintiff’s conduct and quality unsatisfactory, and criticised it online (according to the Plaintiff, it “went viral”). The plaintiff then filed a defamation suit. The defendants (as the Court noted in paragraph 11, pleaded the defence of justification (i.e., truth)). In this particular proceeding, however, the injunction was requested only against Defendant No. 1, and for five specific statements: an allegation that the plaintiff was “in connivance” with the MMRDA officials, that there was “golmaal”, that “norms” had been thrown to the winds, that “banks are part of the Lodha scam”, and that there was no occupation certificate.

Gautam Patel J. refused to grant relief for any of the five statements. His reasoning repays close study. For each of the statements, he began by carefully distinguishing whether they fell in the category of “facts”, or of “comments”. This distinction is crucial to defamation law, but is (unfortunately) far too often ignored in practice. The reason for this is that there are two separate defences in the common law of defamation: justification, and fair comment. Justification (or truth) applies to factual statements. Fair comment applies to opinion; now, contrary to what it sounds at first blush, the term “fair comment” does not mean that the comment must be “fair”, but merely that it must be founded on some factual basis that is of relevance to it. Once the factual basis is set out – and it is made clear that the comment pertains to those set of facts – then the defence applies, even though the comment itself might be hyperbolic or excessively dramatic. The reason for this is that once the reader has the facts in front of her, and has the comment, then she is best-positioned to judge whether the comment is warranted on the basis of the facts or not.

Applying this distinction, Patel J. noted that the first, second, and fourth statements were comments (and for the second comment, the Defendant promised not to repeat it without setting out his facts); and the third and fifth were factual statements. For the first and fourth statements, Patel J. held that the Defendant had set out the factual context from which he had drawn his inferences. Consequently, no injunction could be granted.

This brought the Court to the third and fifth statements, where the defence of justification (truth) was pleaded. The Court then considered the legal standard that was to apply when an injunction was sought on the basis of disputed facts. On a review of precedent (paragraph 26 onwards), the Court correctly concluded that at interim stage, an injunction could only be granted if the defences were bound to fail at trial. Consequently, as long as the Defendant produced some material in defence of her factual statements, the case would go to trial, but at the interim stage, she would not be injuncted.

This is an important observation, for many reasons. First, it adds further heft to the Delhi High Court’s detailed judgment in Tata Sons v Greenpeace, where, after a detailed survey of the common law of defamation, and in the context of Article 19(1)(a) of the Constitution, Justice Ravindra Bhat had arrived at an identical conclusion. Secondly, it comes at a particularly important time, when broad-based injunctions, granted at the ex-parte ad-interim stage, are becoming increasingly common (the Tejaswi Surya gag order, which was later set aside by the Karnataka High Court, being the latest example). By restating the law, Patel J. reminds us that at the interim stage, the law of defamation is actually tilted towards the speaker (as it should be, because the correct remedy for defamation, being a tortious offence, is compensation, not gagging). It is not for judges to take a look at the plaint, find themselves shocked at the seeming attacks upon a person’s reputation, and immediately proceed to issue gag orders; rather, it is for judges to remember that the rule is that speech is to be met with counter-speech pending trial, and a gag is the very rare exception. And thirdly, the judgment reveals the flaws in the reasoning of Shri Maheshwar Hydel Power Corporation v Chitroopa Palit, a 2004 judgment single-judge judgment of the Bombay High Court, which also concerned defamation and injunctions. In Palit, however, the Court articulated a significantly higher threshold at the interim stage, including (among other things) a requirement for the defendant to show public interest (note that “public interest” is a requirement under criminal defamation law, not civil). In the present case, Patel J. observed that even the tests under Palit had been satisfied; his own articulation of the standard, however, as we have seen, falls on the Tata Sons v Greenpeace side, and raises the hope that in due course, Palit will become an outlier judgment, as more and more cases endorse the (correct) Greenpeace view.

One final point: it was argued before the Court that the harm had been accentuated because the defamatory statements had gone viral on social media. This form of argument – that holds that legal standards protecting speech should be diluted based on the medium – is a familiar one; recall that it was made in Shreya Singhal as well, and the judgment itself is unclear on what stand it takes. Patel J., however, was unequivocal: the medium made no difference to the legal and constitutional standards at issue. Indeed, he made the (additional) important observation that the plurality of voices in the online world made the requirement of tolerating opposed views more urgent, rather than less.

Conclusion

The contrasting judgments – and approaches – taken by the Punjab & Haryana and the Bombay High Courts remind us that free speech adjudication remains highly judge-centric. A part of the reason for this seems to be that the separation between speech that we perceive to be irritating, value-less, mischievous – in a word, rubbish – and speech that is illegal, is still not embedded firmly enough in our jurisprudence. This is not necessarily a criticism: notwithstanding (the quotation attributed to) Voltaire, it is but human to allow one’s contempt for a speaker, or for what they are saying, to get in the way of a dispassionate constitutional analysis. That is what seems to have happened in the P&H case, with the pointed references to the petitioners’ (lack of) social work, and their desire for fifteen minutes of fame on twitter. But the future of Indian free speech jurisprudence depends upon judges being able to make that distinction; hopefully, they will have that opportunity soon enough.

A Question of Power

Tags

,

On Tuesday, the complainant in the sexual harassment case against the Chief Justice of India, decided against participating further in the proceedings of the In-House Enquiry being conducted by three sitting judges of the Supreme Court. In a press release, the complainant set out for reasons for her decision: that she was not allowed to have her lawyer accompanying her, that there were no video or audio recordings of the Committee proceedings, that she had not been given copies of her depositions, and that she had not been informed of the procedure that the Committee was following.

At this point, it is unclear what will happen. Technically, having heard the complainant, the In-House Committee could now proceed without her, examine any witnesses it deems fit, and come to its conclusions ex parte. At the same time, the legitimacy of these proceedings – which have been of an informal and ad hoc character so far (more on that anon) – cannot but be significantly damaged by the public exit of the complainant herself.

While we wait to see how events unfold, it is perhaps an apt moment to recall how it is that we got here. But before that, a few points need to be made.

Structures and Institutions

Sexual harassment is bound up with questions of power. Power operates along multiple axes in the ways that it structures our lives and relationships, and in the ways that it distorts them. It is of little surprise, then, that cases of sexual harassment (of varying degrees of severity) so often flow out of situations where differences in power are at their starkest, and the possibilities of abuse are rife: between teachers and students, employers and employees, the rich and the poor, army-men and occupied populations, and so on. And structuring all these relationships is the institution of patriarchy, that, in its own way, distorts relationships even in the absence of these more obvious markers of power. For example, the sense of impunity that society often attaches to male conduct (“boys will be boys”), accompanied by the corresponding sense of stigma attached to those at the receiving end of sexual harassment, skews power dynamics right from the outset.

Why is this important? It is important because the way in which power dynamics frame and characterise sexual harassment cannot but spill over into the structures of accountability that are set up to address them. If those structures of accountability do not take into account this fact, and do not seek to pro-actively mitigate its effects, accountability itself will remain a mirage. To put it in simple terms: when two deeply unequal parties are brought before a tribunal, where the powerful stands as the accused and the powerless as the accuser, “neutral” rules that treat them as formally equal will invariably perpetuate the initial injustice.

Progressive anti-sexual harassment laws recognise this. For example, the famous Vishaka judgment recommended that complaint committees should involve third parties (either an NGO or someone else familiar with issues of sexual harassment) precisely to “prevent the possibility of any undue pressure or influence from senior levels [of the organisation].” The 2013 POSH Act requires that an internal complaints committee be headed by a senior woman employee. Among other things, it allows for a complainant to ask for a transfer to another workplace, while the enquiry is pending. These are all provisions (and there are others) that specifically recognise the inequalities of power that seep into accountability processes, and the need to design structures that can adequately address them.

The Background

Keeping this framework at the back of our minds, let us now look at what has transpired in this case. The facts are well-known, and have been discussed threadbare in the public domain: on the (Saturday) morning that the allegations broke, the Chief Justice convened a bench of himself and two other judges (Arun Mishra and Sanjiv Khanna JJ). The government’s top law officers (the Attorney General and the Solicitor General) were present in Court. From the bench, the Chief Justice proclaimed his innocence, declared that the allegations were part of a conspiracy to destabilise the judiciary, and pointed to the criminal antecedents of the complainant and her family; in this, he was supported by both the law officers.

There has been extensive criticism – including by the SCBA and the SCAORA – on the procedural improprieties of this hearing. However, there is something even more important here: the deeply unequal power relations that structured the relationship between the accuser (a former employee) and the accused (the Chief Justice of India) were distorted even further when the latter decided to ascend the judicial pulpit to exonerate himself, with the support of two other judges of the Supreme Court, as well as the government’s top two law officers. A blanket denial of allegations, an attack upon the character of the complainant, and references to a large conspiracy are all common responses in cases like this; not everyone accused of sexual harassment, however, has the chance to proclaim his innocence in Courtroom No. 1 of the Supreme Court, with the Attorney General and the Solicitor General to call upon. In effect, the complainant was damned by five of the most powerful men in the country, before being heard.

This situation was compounded further by the hearing on the 24th of April. The bench now comprised of Mishra, Nariman, and Gupta JJ. This bench decided to look into an affidavit filed by Utsav Bains, claiming that he had been offered a bribe to frame the Chief Justice. Once again, I will not here discuss the controversy that has erupted around Utsav Bains and his affidavit(s). There is a different point: in the morning hearing, the Bench expressed its desire to combat the “larger conspiracy” ostensibly at play, and summoned the chiefs of the Delhi Police, the Intelligence Bureau, and the CBI, for a close-doors meeting. When an apprehension was expressed about how this would affect the sexual harassment allegations, Nariman J. emphasised that the two issues were entirely separate.

Unfortunately, Nariman J.’s protestations ring hollow. When the special bench in question was following up the hearing that the Chief Justice had convened on Saturday, and when the claims about a larger conspiracy against the Chief Justice and the judiciary were themselves now linked to Utsav Bains’ accusation that he had been bribed to fix the Chief Justice in a sexual harassment case, nobody could possibly maintain with a straight face that the two issues were separate. But most damningly of all, in that very morning hearing, Mishra J. specifically observed that “CJI Gogoi was trying to clean up the system” – hinting, thus, that it was for his independence that he was being targeted. How could anyone possibly argue that the judicial discourse around the “larger conspiracy” had nothing to do with the allegations of sexual harassment?

It is at this point that the question of power once again comes to the fore. Without having (yet) heard the complainant, the entire focus of the three-judge bench was on a possible conspiracy against the judiciary, a conspiracy that could have legs – and let’s be blunt here – only if the complainant was a liar. And every act taken by the bench – from Mishra J.’s statements in the morning hearing to the decision to summon law enforcement agencies for a closed-doors meeting, to the decision to have the matter probed by (Retd.) Justice A.K. Patnaik was, once again, a distortion of the power relationship against the complainant. Here was a bench of three Supreme Court judges saying that there were strong enough indications that the complainant was indeed a liar, very publicly summoning high-level law-enforcement agencies to their chambers (indeed, one of those agencies – the police – was precisely the entity that the complainant accused of having victimised her), and finally ordering a probe by a retired Supreme Court judge. And all this – and this cannot be stressed enough – without the complainant having been heard. Even once.

Meanwhile, Bobde J. – the second senior-most judge of the Supreme Court – had set up an In-House Committee consisting of himself, Indira Bannerjee J., and N.V. Ramana J., to look into the sexual harassment allegations. At this point, it took a public intervention by the complainant for Ramana J. to (correctly) recuse himself from the panel – for the very simple and straightforward reason that on the day that the allegations broke out, he had already dismissed them (effectively) as having been motivated.

It is one of the most basic principles of procedural justice that if you have already commented upon the merits of the case in a way that shows a clear view one way or another, you should not be on the Enquiry Committee that is probing that case. So why did it need the complainant to point this out before appropriate action was taken? Why wasn’t this evident at the time the In-House Committee was constituted? What does it do to the power relations in this case, already distorted beyond recognition after the Saturday morning hearing and the 24th April hearing, for the Supreme Court to constitute an In-House Committee seemingly either oblivious or indifferent to the fact that one of its members had conflicted themselves out by very publicly taking the side of the Chief Justice?

The Committee

It is in this institutional context that the complainant’s final act – to withdraw from the proceedings – now needs to be understood. When the In-House Committee was constituted, the Women in Criminal Law Association published a letter asking that best practices in cases of enquiries into sexual harassment, as set out under the POSH Act, be followed. What the Court elected to do, instead, was to set up what was effectively an ad-hoc process, with the constitution of the In-House Committee (where, after Justice Ramana’s recusal, Indu Malhotra J. came in). Among other things, one crucial departure from the Vishakha Guidelines was the absence of an external member on the Committee, an absence rendered even more critical by the fact that the complaint was against the (administrative) head of the institution himself.

That being the case – and given everything that had already happened before, as discussed above – the onus upon the Committee was particularly strong to ensure that the unequal power relations that characterised this case were mitigated by a set of structures and procedures that were designed to level the playing field in substantive ways. In particular, the In-House Committee had to deal with how best to restore the balance after two separate benches, one judge, and two government law officers had already suggested that the allegations were fabricated; how to deal with a situation where some of the witnesses testifying would be effectively testifying against their employer; how to deal with the fact that it was three sitting judges who were hearing allegations against their sitting colleague, the CJI; and above all else, how to correct the sheer imbalance of power that exists between an ex-employee and the Chief Justice of India.

The complainant’s press release suggests that the Committee comprehensively failed to address any of these issues. Each of the four points raised by the complainant speaks to issues of power: the refusal to allow the complainant a lawyer/support person, while she is facing a committee of three judges handling a complaint against one of their own colleagues, and the (administrative) head of their own institution, in a context when multiple other judges have publicly come out against the complainant, distorts the power relationship; the refusal to record the proceedings and the refusal to provide the complainant with a copy of her deposition (a procedural right that is guaranteed under the POSH Act) deprives the complainant of any kind of effective oversight over the process, and distorts the power relationship; but perhaps most of all, the refusal to disclose the procedures – in a case where procedures matter vitally, because they are critical to address the power imbalance, distorts the power relationship into something that is beyond hideous. And underlying all this is one simple fact: in any other situation, the complainant could have taken her dissatisfaction with the procedure to an appellate authority, and eventually, yes, to the court. But here, there is no appeal from what the In-House Committee does. That makes sensitivity to every single aspect of the process doubly, triply important. But once again, the facts reveal that the Court is either oblivious or indifferent to these issues.

Conclusion

It hardly needs to be said that this is not an essay about innocence or guilt, but rather, about the preconditions necessary to ensure that questions of innocence or guilt can be answered adequately. And for that, this is the point: at the time of writing, the sexual harassment complaint against the Chief Justice has been handled by no fewer than nine judges of the Supreme Court. As the above analysis demonstrates, each one of them has acted in ways that perpetuate the existing power imbalance. In the Saturday hearing, three of them either made statements against the complainant, or were complicit in the making of those statements by their silence. In the hearing of the 24th, two others did much the same. One judge agreed to sit in the In-House Committee despite being conflicted out on the most basic application of standards of conflict. And three judges who did finally conduct the In-House Enquiry did not follow processes that were sensitive to the power imbalances in this case, but rather, it appears, quite the opposite.

In 1997, following the murder of Stephen Lawrence, the United Kingdom government commissioned what would come to be known as the MacPherson Report. Among other things, the MacPherson report set out definition of “institutional racism”:

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


The crucial point about the MacPherson definition was that for an organisation to be institutionally racist, it doesn’t need to have people who intend to be racist, and to act upon those intentions. Rather, institutional racism stems from “unwitting prejudice”, “ignorance”, or “thoughtlessness” – almost internalised conditions, acted upon without any conscious desire or motivation to oppress or disadvantage anyone.

It is in a similar way that the above events demonstrate that there exists an institutional problem at the Supreme Court when it comes to dealing with allegations of sexual harassment, a problem that has been laid bare over the last two weeks. No doubt unwittingly, judges of the Supreme Court who have been tasked with handling the case have shown themselves unequipped to address – or even acknowledge – the bleeding heart of the problem: that this is a question of power, and without addressing that, you address nothing.

Civil Rights at the High Courts: Sedition and Transgender Identity

Tags

, , , ,

This month has seen two important civil rights judgments come out of the High Courts. The Kerala High Court reaffirmed the narrow scope of sedition, while the Madras High Court reaffirmed the right of self-determining one’s gender identity. Neither judgment broke new ground; but affirming – and entrenching – existing jurisprudence is often equally important, especially in circumstances where the possibility of erosion is ever-present.

The Kerala High Court, Sedition, and the UAPA

In Union of India v Shameer and Ors, a group of men were convicted of sedition (along with other provisions under the IPC and the UAPA). The gravamen of the offence, according to the Prosecution, was that in 2006, the accused organised a meeting where seditious pamphlets (of the banned SIMI organisation) were distributed, and seditious speeches were made. Two of the accused had stated that:

Indian army are killing Muslims who are doing jihad in Kashmir. Other Muslims are being tortured with oppressive laws like TADA, NSA etc., against which all of us should fight under the leadership of SIMI.

Present India was made by Britishers. Earlier, we were ruled by Nizams and Mughals. We should go back to that Old India for which we should fight through SIMI and no one else can destroy SIMI.

On the basis of this, the NIA Court convicted five out of the seventeen accused, of both sedition as well as membership of a banned organisation [SIMI] under the UAPA, and acquitted the rest. Both the convicted men, as well as the State, appealed. The Kerala High Court began by noting that if at all anyone had committed an offence, it was the two speakers – Accused No. 2 and 3. There was no evidence to demonstrate a larger conspiracy involving the people who had booked the hall, and therefore, at the threshold, the other convictions could not stand.

What this left, it will be seen, was a pure speech offence: the convictions of accused nos. 2 and 3 were purely on the basis of what they had said at the meeting. In this context, the bench of Shaffique and Menon JJ. held, reading S. 124A narrowly, that the offence of sedition had not been made out because the speech did not target the government established by law in India. The Court read the references to the Nizam and to the Mughals as expressing discontent with the way that India was governed, but that this, in itself, did not rise to the level of sedition. On the question of the UAPA, the Court held, following Arup Bhuyan, that the mere fact of holding a meeting – and even clapping and applauding through it – did not constitute the offence of “membership” of a terrorist organisation.

The High Court’s narrow reading of the substantive part of the definition – of both sedition and the UAPA – is welcome. Indeed, there has been very little judicial analysis of what, precisely, “government established by law” means in the context of S. 124A, and the High Court’s narrow interpretation does well by Article 19(1)(a) of the Constitution. To this we can add one further point: even if the Court had found, in this case, that the speech in question was against the “government established by law” (S. 124A), and that the accused did come to the meeting with the intention of “propagating SIMI ideology”, it would still not constitute either the offence of sedition, or of membership under S. 10 UAPA. After Shreya Singhal and Arup Bhuyan, it is clear beyond cavil that the appropriate legal standard to apply in these cases is that of “incitement to violence”; mere speech – including advocacy of revolutionary ideas – does not make out either offence. In this case, the High Court did not need to address that issue because of its findings on the content of the speeches, as well as on the nature of the meeting, but we should not lose sight of that larger point.

The Madras High Court and Transgender Identity 

Meanwhile, in Arunkumar & Sreeja v The Inspector-General of Registration, the High Court of Madras was called upon to decide whether a marriage between a man and a transwoman could be validly solemnised under the Hindu Marriage Act. G.R. Swaminathan J. held that it could, correctly noting that “by holding so, this Court is not breaking any new ground. It is merely stating the obvious.”

The dispute arose when the Registrar of Marriages refused to register the marriage, on the basis that Sreeja, as a transwoman, did not count as a “bride” within the meaning of the Hindu Marriage Act, as the scope of that expression was limited to “woman”. The Madras High Court held, however, that the Registrar’s actions were contrary to the ruling in NALSA v Union of India (subsequently upheld in Puttaswamy and Navtej Johar); at the heart of the NALSA ruling was the principle of self-determination as to gender identity. Consequently:

… the second petitioner herein has chosen to express her gender identity as a woman. As held by the Hon’ble Supreme Court this falls within the domain of her personal autonomy and involves her right to privacy and dignity. It is not for the State authorities to question this self-determination. (paragraph 9)

In view of this, Swaminathan J. held, the word “bride” in the Hindu Marriage Act had to be interpreted with the times, and in light of the principle of self-determination of gender identity.

It would … include an intersex person/transgender person who identifies herself as a woman. The only consideration is how a person perceives herself. (paragraph 15)

Interestingly, the Court then also went on to note the existence of multiple genders beyond the male/female binary, as well as going on to ban sex re-assignment surgery for minors (i.e., below the age of consent). As the Court noted:

A person who is in the Third Category is entitled to remain beyond the duality of male/female or opt to identify oneself as male or female. It is entirely the choice of the individual concerned. (paragraph 24)

 

There are a few important points to be noted about this judgment. This is perhaps the first time after NALSA that a Court has interpreted existing legislation in order to bring it line with the principle of self-determination of gender identity. It is, therefore, a landmark moment where the NALSA dictum has finally been given some kind of teeth, and a precedent has been set for future disputes involving the need for updating our existing laws that remain stuck within the male/female binary. This judgment constitutes the blueprint for doing so. Secondly, it is a judgment that moves beyond the rhetoric of self-determination of gender identity, and applies it to a situation where real consequences follow from that recognition (in this case, the right to marry). Of course, unlike affirmative action, marriage is not a situation involving identity-targeted distribution of scarce benefits; it is, therefore, a relatively easy case in which to affirm the principle of self-determination (it remains to be seen how the courts will navigate situations where distribution of scarce benefits does turn upon gender identification).

Perhaps most importantly, however, by placing the self-determination of gender identity – as well as the choice to opt out of the gender binary – upon a constitutional pedestal, Swaminathan J.’s judgment casts serious doubt upon the constitutional validity of the much-criticised Transgender Bill. Recall that that bill denies rejects self-determination of gender identity, as well as maintaining the gender binary and denying the primacy of choice. With the Madras High Court’s judgment, however, locating both these principles within Part III of the Constitution, it is evident that in its exiting form, the Transgender Bill will fail constitutional scrutiny.

Conclusion

The last few years have seen an unfortunate, top-heavy shift towards the Supreme Court, when it comes to constitutional cases. This has led to a gradual erosion of the High Courts as important forums for developing and articulating important constitutional principles. While I believe this has been a mistake, there does remain an important task for the High Courts, even under status quo: and that is to ensure that constitutional principles are entrenched through repeated and consistent application. Without that, Supreme Court pronouncements remain mere words, and can be very swiftly eroded or forgotten. And this is why the judgments of the High Courts of Kerala and Madras are significant additions to the struggle for a progressive civil rights jurisprudence in India.

The NRC Case and the Parchment Barrier of Article 21

Tags

, , , ,

Previously, I have written about the multiple procedural irregularities that have characterised the Supreme Court’s NRC Case: the use of sealed covers, consequential decisions being taken in closed-door hearings, and the bench’s disturbing disregard for due process rights. In the course of this years-long proceeding, the Court has far exceeded its brief as the apex judicial organ of the country, with its repeated stress on deportations making it appear more executive-minded even than the executive: more the Supreme Deportation Authority rather than the sentinel on the qui vive. But yesterday’s hearing in Harsh Mander v Union of India marks a low point even within this ongoing story.

According to accounts of the oral proceedings, the government of Assam brought forward a plan to secure the monitored release of foreigners who had been in detention centres more than five years. The plan entailed the detainees paying a hefty deposit amount of Rs 5 lakhs, having their biometric details taken, and then set free from the detention centres. The Chief Justice-led bench reacted to this with great anger, questioning the government repeatedly about its failure to deport individuals who had been held to be foreigners (this has been a common theme of every hearing). The Chief Justice claimed that the government was asking the bench to be “a part of an illegal order where a foreigner who has no right to stay in the country will remain and sign a bond and so on.” He further lectured the government about what it should have been arguing, noting that “the stand of the government of India and the state of Assam should be that the foreigners detenues should be deported as soon as possible. But we do not see that stand, Mr Chief Secretary.” When the amicus curae made the rather basic point that technically, deportation could hardly be carried out without the cooperation of the host country, the Chief Justice’s only response was “we can say that the government has failed to do its job.” The Chief Secretary then promised to come up with “better measures.”

Separation of Powers and International Law

There are a few things worth noting here. To start with, Harsh Mander v Union of India is a PIL about inhumane conditions in detention centres. How it has become a case about deportations is anyone’s guess. And there is a particularly cruel irony in the fact that a case filed to draw attention to inhumane conditions in detention centres has now brought us to a pass where the Court nixes the government attempts to release a small class of detainees from those centres.

But leave that aside for the moment. The Chief Justice’s repeated enquiries about deportation suggest not only an ignorance of the basic international law principles of non-refoulement and against statelessness, but also either ignorance – or contempt – of the principle of separation of powers. Section 3 of the Foreigners Act is pellucidly clear: the entry, departure, or presence of foreigners in India is a matter for the central government. It is not for the Court to browbeat the government into taking a stand on whether or not to deport (notwithstanding some observations in Sarbananda Sonowal, which are not only obiter, but completely unsupported by any legal principle of authority). Matters are worse confounded by the fact that when a Foreigners Tribunal makes a decision on the status of an individual, its decision is limited to deciding whether or not the said individual is an Indian national. The Foreigners Tribunal does not – and cannot – return a finding on whether that individual is a national of a named other country. The Chief Justice’s reaction – “why don’t you deport?” – therefore flies in the face of reality as well, because there will be – and there are – many situations where a Foreigners Tribunal declares an individual as a foreigner, but there is no country to deport that individual to, because no country is claiming them as their national.

In sum, therefore, the law on deportation is that it is a decision for the government to make, a decision that is constrained by principles of customary international law. What the Court is doing in these proceedings is taking a bludgeon to this legal structure, by ignoring both these core legal elements. This is damaging in many respects, but it is particularly damaging because the task of checking whether the government is exercising its discretion to deport in consonance with principles of customary international law is a judicial task. However, when the Court itself is acting in this fashion, to which forum are people supposed to appeal, if they think that the government is acting illegally? This is why the separation of powers exists: for courts to review the actions of the government, and ensure the government acts legally. And this is why the blurring of the line between the court and the political executive – of which the entire NRC case is an exemplar – is so profoundly dangerous.

Article 21

But let us come to an even more serious issue. As indicated above, the government set out a plan where detainees who had spent more than five years in detention centres were to be conditionally released. The conditions of release are so onerous that in my view, they rise to the level of being unconstitutional, but let us ignore that for the moment. The Court refused to accept this proposal as, in the opinion of the CJI, it amounted to sanctioning an “illegality”. Why? Because the government should have been deporting them.

It is at this stage that it becomes necessary to revisit the text of Article 21 of the Constitution – a provision that has come to mean everything to everyone in recent years, but which seems to mean nothing when it actually matters. Article 21 of the Indian Constitution states as follows:

No person shall be deprived of his life or personal liberty except according to procedure established by law.


There is no – no – law that authorises indefinite detention of an individual, whether citizen or foreigner. And if there was a law that did so, it would almost certainly be struck down as unconstitutional. On what basis, therefore, does the Court say that releasing detainees who have spent more than five years in detention would be endorsing an illegality? The boot of illegality, rather, is on the other foot: by refusing release, it is the Court that is sanctioning a flagrant and continuing violation of Article 21, the provision that is supposed to be the heart and soul of the Constitution. And one can hardly ignore (once again) the almost brutal irony at the heart of this: it is the government that wants to release detainees from detention centres, and the court that wants to stop it. Which is the political executive and which is the sentinel on the qui vive? Who is the protector of rights, and who the encroacher? It is impossible to tell any more.

Conclusion

Like every other legal culture, we too have our “never again” moment. For us, that “never again” moment is the notorious judgment in ADM Jabalpur, the Habeas Corpus case. The Supreme Court’s judgment in that case that sanctioned Emergency-era excesses – most of which were visited upon detainees – is what we hold up as the marker of that “valley of shadow” into which we’ve been, and into which we must not go again.

But when the Supreme Court prevents the government from (conditionally) releasing detainees who have been in detention centres (which, by all account, are inhumane places) for more than five years, thus condemning them to a continuing, lawless deprivation of personal liberty, then it is perhaps time to ask whether all we can do is keep saying “never again”, even as it happens all over again.

An Analysis of the Supreme Court’s Order in “In Re: Matter of Great Public Importance Touching Upon the Independence of the Judiciary”

Tags

, ,

Almost exactly one year ago, in the Judge Loya Case, the Supreme Court laid down the legal principles to determine when requests for court-sanctioned investigations into serious wrong-doing would or would not be granted. Recall that in that case, the Supreme Court took an interventionist approach: it did not merely assess whether the evidence had met a prima facie threshold of credibility, but rather, it went deeper, assessing the quality of the evidence, and subjecting it to detailed scrutiny on the touchstones of both internal consistency, and external plausibility. It was an approach that I strongly disagreed with the time (for reasons detailed in the linked post), but whether right or wrong, that was the position the Court took.

It is in this context that we must analyse today’s order mandating an investigation into “bench fixing” at the Supreme Court, to be probed by Retd. Justice A.K. Patnaik, with the assistance of the CBI, the Intelligence Bureau, and the Police (recall that these proceedings arose out of sexual harassment allegations levelled against the Chief Justice). Has the three-judge bench of the Court followed the approach in the Loya Case? As the order comes on the back of three affidavits filed by Advocate Utsav Bains, it is the contents of these affidavits that must be studied in some detail.

Analysis

[Regrettably, no analysis can be conducted of the order in In Re: Matter of Great Public Importance Touching Upon the Independence of the Judiciary, as all the affidavits have been placed before the Supreme Court in sealed covers.]

Conclusion

[Regrettably, no conclusion can be drawn about the Court’s order in In Re: Matter of Great Public Importance Touching Upon the Independence of the Judiciary, as no reasons are available from which to draw conclusions.]


[This post will be updated if and when the sealed covers are unsealed, and sunlight allowed into the corridors of the Supreme Court again. However, as Justice Patnaik has been asked to submit his report in a sealed cover, the prognosis is not optimistic.]

Notes from a Foreign Field: The Namibian Supreme Court on Free Speech, National Security, and Injunctions

Tags

, , , , , , ,

In an interesting judgment delivered earlier this month (Director-General v Haufiku), the Supreme Court of Namibia restated some common-sense principles about the relationship between freedom of speech, national security, and judicial injunctions. The facts in Haufiku were straightforward: The Patriot, a Namibian newspaper, had uncovered some information about potential corruption within the Namibia Central Intelligence Service [“NCIS”]. It appeared that the NCIS had purchased farms and houses using public funds, which was then given over to a private association of ex-NCIS employees. When The Patriot’s journalist wrote to the Director of the NCIS with queries about these purchases, he was informed that his questions fell within the scope of “sensitive matters and/or classified information” (para 11). Under the terms of the Namibian Protection of Information Act [“PIA”] (whose provisions are strikingly similar to our Official Secrets Act) and the Central Intelligence Services Act [“CISA”], not only was the NCIS not obliged to provide information, but also, possession and publication of such information was an offence. Accordingly, the NCIS subsequently approached the courts for an interdict that would prevent The Patriot from publishing what information it did have.

General Grievous Meme

The State’s Arguments

It was argued before the courts that the information in The Patriot‘s hands violated the PIA, as it related to a “prohibited place” and/or a “security matter.” In particular, it was argued that “if the information were published, it would threaten or jeopardise the national security of the State” (para 18), “any disclosure of information which showed either the capability or a lack of resources on the part of the NCIS is unlawful as it undermines the effectiveness of the institution and with that posed a security vulnerability to the State of Namibia” (para 19) When asked to substantiate this argument, the NCIS argued that it was not obliged to do so, because the Courts did not have any jurisdiction to assess national security questions on their merits (paras 37 and 44 – 48). In short, the NCIS made a rather meta argument: the information that The Patriot wanted to publish impacted national security, but how it did so could not be revealed (inter alia, because that itself would be tantamount to impacting national security). As the Court characterised the submission:

  • The NCIS is the sole determiner of whether or not there is a threat to national security from the disclosure of information by a member of the public and not even the courts may inquire into that;
  • The NCIS is not obliged (in fact it is prohibited not) to place evidence before court in court proceedings to justify its conclusion that publication will be harmful to national security;
  • All the NCIS needs to do in court proceedings aimed at supressing publication of ‘secret’ information- be it about its assets or anyone associated with it – is to assign it the label of national security and to assert that publication will compromise national security and the court is bound in law to grant an interdict prohibiting publication;
  • The NCIS is under no obligation to reply to any enquiry by the media or to comment on any matter relating to or concerning the NCIS, even if it involves an allegation of a crime such as corruption. (paragraph 50)

(Readers who followed the Attorney-General for India’s arguments during the Rafale review petition will recall that this was more or less exactly the same argument advanced by the State in that case.)

The Court’s Analysis

The Court began by making the sharp observation that “the written submissions refer altogether to a staggering 50 cases a significant number of which are pre-independence cases decided under the pre-independence securocratic ethos which conjure up images of our painful colonial past.” (paragraph 43) (N.B.: “securocratic ethos” is a brilliantly evocative phrase to describe one of the fundamentals of colonial regimes all over the world!) Moving on from that, it then observed that, as a matter of legal burdens, because the NCIS was the body that was seeking the injunction (instead of a situation where, for example, the journalists were seeking disclosure), the onus was upon it to demonstrate what right was being interfered with. For this, “the mere assertion of a reasonable apprehension or fear of interference would not suffice. The facts supporting the apprehension must be set out in the application to make it possible for the court to make an assessment itself whether the fears are well grounded.” (paragraph 62)

Crucially, the Court then went on to note that this basic legal requirement – of establishing facts – did not go to sleep in a sand-box just because the State was invoking national security. As the Court made clear:

It needs to be made clear as a preliminary matter that we do not agree with the Government’s refrain, repeatedly pressed with great force in the written heads of argument, that once the Executive invoked secrecy and national security, the court is rendered powerless and must, without more, suppress publication by way of interdict.

The notion that matters of national security are beyond curial scrutiny is not consonant with the values of an open and democratic society based on the rule of law and legality. That is not to suggest that secrecy has no place in the affairs of a democratic State. If a proper case is made out for protection of secret governmental information, the courts will be duty bound to suppress publication. (paragraphs 84 – 85).

In the instance case, the Court found that neither with respect to the Association, and nor with respect to the properties that it had purchased, had the NCIS made any kind of case – or submitted any kind of evidence – to demonstrate national security concerns. For example:

…the information about the properties is not inherently secret (such as a military installation, equipment, password etc.), making it obvious to anyone who possessed it, even inadvertently, that it concerned or was a matter of national security. What is in issue are a house and a farm which are readily accessible to the public – without any indication that secret government operations were being carried on there as contemplated in s 23 of the NCISA. (para 102)

For these reasons, the Court denied the claim for injunction.

National Security

Conclusion

While at first blush, the Supreme Court’s judgment seems to be doing nothing more than recapitulating well-settled principles of law, there are a few reasons why, nonetheless, it is an important judgment in a comparative context. The first is that notwithstanding how well-settled these principles are, they come under repeated challenge from State authorities. As I mentioned earlier in this essay, readers will recall that the Attorney-General’s arguments in Rafale went along precisely these lines: the Court was asked to adopt a hands-off approach towards the fresh documents on national security grounds; when it was pointed out to the AG (by the Chief Justice) that under evidence law, all that mattered was a document’s relevance, and not how it had been obtained, the AG asked the Court to carve out a special exception to this rule for “national security” matters (a request that the Court fortunately declined). The AG also declined to justify his arguments, again on the basis that the moment “national security” was invoked, the Court had to back off. This is precisely the kind of “securocratic ethos” that the Namibian Supreme Court decried, and which is simply inconsistent with the principles of an open, liberal-democratic society.

The second important point is that the Namibian Supreme Court also made clear that invoking national security did not exempt the State from having to prove its case in the normal manner. While some necessary leeway could be made – such as having an in-camera proceeding while adjudicating the State’s claims (or sealed covers?) – the legal standard would remain the same. Invoking “national security”, therefore, would not cloak the State with some special kind of immunity; when it came to an injunction and the suppression of speech, the normal standards would apply. This, of course, has been the teaching of a number of Courts ever since the Pentagon Papers case (even if the Namibian Supreme Court’s judgment did not quite rise to that level, and had perhaps some unnecessary observations about hypothetical cases where it would grant injunctions). It is also important, because even if a Court does not except that it is divested of jurisdiction to adjudicate such cases, a highly deferential standard towards the State effectively achieves the same outcome. What is needed, therefore, is a shift from the “securocratic ethos” – where the invocation of national security is given a presumptive deference that is not extended to other claims – to the “constitutional ethos” where, ultimately, what is supreme is the Constitution, and constitutional values (including those of free speech).

It is in that sense that the Namibian Supreme Court’s judgment represents an important step forward in the global struggle against the permament entrenchment of the “securocratic ethos”, and towards an open society.

 

Financing the General Elections: Electoral Bonds and Disclosure Requirements under the Constitution

Tags

,

The electoral bonds scheme was introduced by the 2017 Finance Act, challenged before the Supreme Court in 2018, and made headlines in 2019 when the court finally began hearing the matter and passed an interim order. Briefly, the scheme allows individuals and companies to purchase “electoral bonds” issued by the State Bank of India and subsequently donate the bonds to a political party. Under the scheme, only a political party registered under the Representation of People’s Act 1951 (RPA) is eligible to receive and encash electoral bonds. Electoral bonds are therefore bespoke campaign finance instruments to allow donors, or ‘contributors’, to contribute to political parties. The bonds are issued in denominations ranging from one thousand rupees up to one crore.

Crucially, through several legislative changes (discussed below), political parties do not have to disclose to voters either the identity of the contributor, or the amount received through electoral bonds. The electoral bonds scheme itself provides that,

the information furnished by the buyer shall be treated [as] confidential by the authorised bank and shall not be disclosed to any authority for any purposes, except when demanded by a competent court or upon registration of criminal case by any law enforcement agency.

One of the grounds on which the scheme has been challenged is that citizens have a right to know the identity of the contributors and the amounts being contributed to each party. In its interim order, the Supreme Court required all political parties to submit to the court (in a sealed cover) the details of money received under the electoral bonds scheme.

On this blog we discussed the concerns raised by the Supreme Court’s interim order (here). In this post I argue that the electoral bonds are part of a more comprehensive legislative agenda which increases the overall volume of campaign contributions and decreases the information voters have about these contributions. I then examine whether the electoral bonds scheme is constitutional in light of the Supreme Court’s jurisprudence on a citizen’s “right to know” under Article 19(1)(a) of the Constitution. Exploring the rationale behind a voter’s “right to know”, I argue that disclosing campaign contributions is necessary because it allows voters to better understand a candidate or party’s position on important issues and evaluate whether a candidate (and eventually, elected official) is “too compliant” with the wishes of their contributors.

Recent changes in campaign finance law

The current government has made several changes to campaign finance laws in the last two years. Firstly, the government removed the cap on corporate donations contained in Section 182 of the Companies Act 2013 under which a company could not contribute more than 7.5% of its net profits for the previous three years. The amendment also removed the requirement that companies disclose the total amount contributed and identity of the political party that the company contributed to. There is now no cap on how much money a company can contribute to a political party. Further, by removing the requirement that the political contributions must come from profits, there is a risk that donors set up shell companies that do not actually conduct any legitimate business but exist solely to funnel money to political parties.

The government also amended the Foreign Contributions Registration Act (FCRA). Under the FCRA as it stood before the amendment, companies that were more than 50% foreign owned were prohibited from donating (or “contributing”) to political parties. The amendments removed this 50% threshold, permitting companies that are 100% foreign owned to contribute to political parties.

Circling back to the electoral bonds scheme, prior to the amendments by the government, political parties were required to report all contributions over twenty thousand rupees (under Section 29C of the RPA) and keep a record of the name and address of all such contributors (under Section 13A of the Income Tax Act). Under the government’s amendments, both these reporting requirements were removed in the case of contributions made through electoral bonds.

Thus, it is important to recognise that electoral bonds are part of a sustained and comprehensive legislative agenda that is likely to see a significant increase in campaign contributions to Indian political parties and a significant decrease of information about these contributions to voters. As I argue below, both these outcomes have consequences on the functioning of democracy under the Constitution.

Some Context on Campaign Finance

Campaign finance is a vast and nuanced area of law and political theory, and the intention here is merely to touch on a few simple points to provide context to the legislative changes introduced by the government.  Firstly, a core tenet of democracy is that citizens collectively choose a representative government. Only a government chosen by the citizens is legitimate. Therefore, the process by which citizens choose their representatives (elections) is of paramount important. If elections do not provide citizens with a free and fair method of selecting a candidate of their choice, then the elected government cannot be said to be chosen by the people, and would be illegitimate.

Elections in all countries cost money. However, methods of financing elections vary greatly, from systems of publicly funded elections, to systems of unlimited private contributions. India is somewhere in the middle, private contributions are permitted, but spending by political candidates is capped. In a system where public money is used to finance elections, voters have no interest in knowing how candidates are financed, because all candidates are using public money. However, as we move towards private contributions, and unrestricted private contributions, things get a bit trickier. Where private contributions are permitted, who is funding a candidate becomes an essential part of the candidate’s platform, because contributors will donate to candidates who support their ideas, and candidates may even modify their ideas to secure funding. Thus, a candidate’s stance on issues and who is funding them becomes intricately linked. Thus, in an electoral system where candidates are privately funded (and as I argue in detail below) voters do have an interest in knowing who is funding a candidate.

Corruption

Lastly, it is important to separate campaign contributions from corruption. Corruption, simply, is when a candidate (as a potential elected official) uses their position to enrich themselves personally. Campaign contributions do not enrich the candidates personally, but rather are used by candidates to acquire more votes. (It is possible that some candidates use contributions to enrich themselves, but that is a separate debate.)

The real problem that that campaign contributions can raise is a “quid-pro-quo” deal. Where a candidate takes money from a contributor, and once elected, votes in favour of laws that benefit the contributor. This concern is articulated by the U.S. Supreme Court in Nixon v Shrink Missouri Government PAC, where the court noted that the concern raised by political contributions is a concern “not confined to bribery of public officials, but extending to the broader threat from politicians [being] too compliant with the wishes of large contributors.” But when is a politician “too compliant”? Is it merely when she votes against the interests of the majority of her constituents? Arguably, in a democracy, it is desirable that voters signal to candidates what their preferences are, both through votes, as well as political contributions. Subsequently, when an elected legislator votes in line with these preferences, they are merely being responsive to the needs of their constituents. Say for example, a rich religious minority that has been historically persecuted contributes large amounts to a candidate, who subsequently votes for a law which prevents future persecution of that minority, can we say that such a candidate is “too compliant”? It is highly likely that such a candidate would have voted the same way irrespective of the contributions. As I argue below, disclosures help with this as well.

One problem that increased contributions can result in is the translation of economic inequality to political inequality. If elected officials respond to issues that have received the greatest support from their constituents in the form of the maximum contributions, the legislative agenda may represent the interests of the largest contributors, and not all individuals in their constituency. This may drown out the political demands of economically weaker sections of society. However, this is a risk inherent in all systems that allow private political contributions and is unlikely to disappear until we either have publicly funded elections or the wider economic inequalities in society are tackled.

Article 19 and the “Right to Know

The most recent hearings on electoral bonds centred around whether the Constitution grants voters the “right to know” who contributed to which political parties, and how much they contributed. Article 19(1) of the Constitution grants all citizen’s a right to free speech. The Article also grants citizens the right to receive information from a person who is willing to speak and share their speech. However, typical conceptions of the freedom of speech do not grant a citizen a right to receive information from an unwilling speaker. In other words, the freedom of speech typically provides a negative right against interference from receiving ‘generally available’ information, but not a positive right to gather or acquire information.

To take an example, the freedom of speech grants a journalist the right to publish an article about a failed military operation by the government. The freedom of speech also protects a citizen’s right to receive the article from the journalist. If the government were to ban the journalist’s article on its failed military operation, this would violate not just the journalist’s freedom of speech but also the citizen’s right to receive information that the journalist wishes to share. However, the freedom of speech does not typically grant the citizen a right to demand details of the failed military operation from the government itself. This would require a separate positive right to acquire information (e.g. as provided by the Right to Information Act 2005).

However, the Indian Supreme Court has expressly recognised that Article 19(1) of the Constitution confers on citizens a positive right to know information about electoral candidates. The Supreme Court has been fairly categorical about this position, noting in its Union of India v Association of Democratic Reforms  decision (Union v ADR)  that, “There is no reason to that freedom of speech and expression would not cover a right to get material information with regard to a candidate who is contesting elections for a post which is of utmost importance in the country.

One of the key roles of freedom of speech in a democracy is to ensure public discourse so that all voices and ideas are heard at the time of collective decision making. By including a positive right to know about electoral candidates, the court has stated that for the effective functioning of democracy under the Constitution, it is not enough that the voice of all candidates are heard. Rather, what is required is that voters receive a minimum standard of information that allows them to make an informed decision, even if the candidates would otherwise be unwilling to provide this information. This is perhaps best articulated in Romesh Thappar v State of Madras where the Supreme Court noted, “The public interest in freedom of discussion stems from the requirement that members of democratic society should be sufficiently informed that they may influence intelligently the decisions which may affect themselves.

In later decisions, the Supreme Court has been far more explicit about the fact that voters must not merely be provided access to the ideas a candidate wishes to portray, but also other objective information that will ensure that the voter makes an sufficiently informed decision. For example, in Union v ADR the court noted that, “Casting of a vote by a misinformed and non-informed voter or a voter having one-sided information only is bound to affect democracy seriously.” What the court is articulating is that standard to be applied to the functioning of democracy under the Constitution, and the standard is not satisfied merely by ensuring that all candidates can freely speak and disseminate their ideas. It requires, at a bare minimum, that voters be sufficiently apprised of their electoral candidates to the point where they can make an informed decision about which candidate is likely to best represent their interests in government. To ensure this, Article 19(1) grants voters a positive right to acquire information about candidates, even if the candidates are unwilling to provide this information.

In Union v ADR ruled that electoral candidates must disclose their assets, educational qualifications, and their involvement in criminal cases for voters to be make an informed decision. This sets a high threshold for the standard of information a voter must possess before voting, leaving the government hard-pressed to argue that voters do not need to know the identity and amounts of political donations received by candidates and parties. As I argue below, the identity of a candidate’s contributors is crucial in allowing voters to make an informed decision.

Disclosures in a Democracy

Recall that the electoral bonds scheme and the surrounding legislative amendments have two primary consequences, (1) they increase the total volume of political contributions, and (2) make it neigh impossible for voters to discern the identity and volume of donations made to candidates. The most obvious function of disclosures is that where the conduct of a legislator blatantly panders to a political contributor without any public utility, disclosures bring to light such behaviour. As the Supreme Court noted in People’s Union of Civil Liberties v Union of India, “There can be little doubt that exposure to the public gaze and scrutiny is one of the surest means to cleanse our democratic governing system and to have competent legislatures.”

However, beyond this, disclosures allow voters themselves to decide when an elected official is being “too compliant” with the wishes of their contributors. As noted above, it is often difficult to determine when an elected official is “too compliant” with the wishes of their contributors. It is likely that individuals will disagree over when an elected official’s action is “too compliant”. However, when contributions are disclosed, each voter can decide for herself when an official’s behaviour is “too compliant” with the interests of their respective contributors and punish the legislator by not voting for them in the next election. As the U.S. Supreme Court noted when examining the constitutionality of campaign finance disclosures in the landmark decision of Buckley v Valeo (Buckley), disclosures “provide the electorate with information as to where political campaign money comes from and how it is spent by the candidate in order to aid the voters in evaluating those who seek federal office.” Knowing whether an official is likely to represent, or only represent, the wishes of their political contributors is crucial information for an individual voter in deciding whether the official will represent that individual voter’s interest in government.

Lastly, as noted by Elizaabeth Garrett, campaign contribution disclosures allow voters to understanding where a candidate stands on key issues. For example, a voter may not have the time or expertise to discern whether a candidate is in favour of the coal industry based on a candidate’s manifesto or draft legislation. However, when the voter learns that the candidate receives most of her campaign contributions from the coal industry, the voter may understand that the candidate is in favour of the coal industry. This is because the interest groups closest to the issue (the coal industry) would only have contributed to the candidate’s campaign because they believe that the candidate will support legislation beneficial to the coal industry. Because contributing to a campaign is “an observable and costly effort on the part of the contributor”, knowing who contributed to a campaign allow voters to discern a candidate’s likely position on issues. (Garrett also cites empirical studies where voters informed of whom contributed to a candidate were able to vote on-par with candidates who had actively researched candidates – her paper on disclosures and voter competence can be found here.)

Recall that the Supreme Court has already stated that for voters to effectively exercise their role as voters under the Constitution, they must be provided with certain basic information. A key question in case of electoral bonds scheme is whether the identity of the contributor and the quantum of the contributions received by the candidates is part of this essential information a voter should receive to be sufficiently informed. By denying voters this information, the electoral bonds scheme makes it impossible for voters to understand when their elected politicians are acting in favour of large political contributors – even the politicians may be blatantly doing so. Further, electoral bonds allow politicians to hide their position on certain issues by receiving funding from interest groups anonymously. A voter might be inclined to vote for a candidate based on their publicly available information such as a candidate’s speeches or track record. However, that same voter may hesitate if they discovered that the candidate received large amounts from interest groups promoting religious persecution, or tax cuts for large business.

The Government’s Arguments

In defending the electoral bonds scheme, the government has argued that electoral bonds reduce the amount of ‘black’ (i.e. illicitly obtained) money in elections, as contributions are routed through the State Bank of India which performs ‘Know-Your-Customer’ checks on contributors. This does not eliminate the risk that a contributor will merely funnel ‘black’ money through a legitimate or ‘clean’ company or individual, especially as neither companies nor political parties are required to keep a record of large donors any more. In short, the electoral bonds scheme does nothing to ensure that the origin of the money contributed is legitimate.

Another argument that may be used to defend the electoral bonds scheme is one of contributor privacy. As discussed earlier on this blog (here), individuals have a right to the privacy in their associations, and this would include a contributor seeking to donate to a candidate. Take the example of a candidate who speaks out in favour of a religious minority. If the state were to publish the names of all the people who contributed to this outspoken candidate, these contributors might be dissuaded from contributing to the outspoken candidate. Worse, the contributors may face persecution precisely for contributing to the outspoken candidate (something they have a constitutionally protected right to do). Thus, by not protecting the privacy of their  (political) associations, the state would be violating their right to participate in the electoral process.

This is certainly a concern and arguably, where contributors are at risk, a balance must be struck. Garrett notes that in Buckley, as well as in Brown v Socialist Workers, the U.S. Supreme Court exempted campaigns from making disclosures where there existed “specific evidence of hostility, threats, harassment and reprisals.” This is a balanced solution. In the general, where there are no risks to contributors, the voters right to know requires candidates to disclose their contributors and contributions. In specific instances, where a credible risk exists that compelling disclosures will dissuade or put at risk contributors, their privacy must be maintained. Electoral bonds however, exempt disclosures in all situations. Thus, unless the government is able to reverse this – generally requiring disclosures, and creating a nuanced system as to when parties can be keep the source of contributions anonymous, the electoral bonds scheme violates the voters right to know.

Conclusion

To provide some context to the scale of the problem, information procured under the Right to Information Act from the State Bank of India noted (here) that over six hundred crores worth of electoral bonds were purchased between March and October of 2018. The Supreme Court’s interim order in the electoral bonds case is troubling. By refusing strike down the electoral bonds scheme and compel parties to disclose to the citizens of the country who is financing them, the court has taken a step back from its previously strong jurisprudence on a voter’s right to know. Striking down these amendments would have sent a strong signal that any amendments to campaign finance laws must respect that democracy under the constitution requires an informed and empowered voter.  As noted above, who is funding a candidate is vital information that allows a voter to understand where a candidate stands on key issues. That the court refused to do this during an ongoing general election, when this information is most relevant to voters, makes the court’s current stance particularly egregious.