Indra Sarma v VKV Sarma: The Supreme Court on Live-in Relationships and Gay Marriage

In its decision in Indra Sarma v VKV Sarmahanded down a couple of days ago, the Supreme Court – correctly – holds that the term “relationship in the nature of marriage” in the Domestic Violence Act covers live-in relationships. This judgment is also extremely interesting, however, because of its possible impact on the legal status of homosexual relationships.

In this case, the Court was faced with a complaint of domestic violence, and had to determine whether a woman in a live-in relationship could claim under the Act. In order to do so, she would have to show that her relationship was covered under one of the enumerated grounds under the definitional Section 2(f) – which the Court read as exhaustive. The only possible ground was “relationship in the nature of marriage.”

S. 2(f), stated in full, reads:

“domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family… 

The Section specifically uses the term “two persons”; the Court nonetheless chose to observe that the clause refers to “… a relationship between two persons (of the opposite sex). (Paragraph 33), on the ground that S. 2(a) – which defines an “aggrieved person”, i.e. a person entitled to claim the remedies under the Domestic Violence Act as “a woman”. Consequently, the Court observes that:

“… hence, the Act does not recognize the relationship of same sex (gay or lesbian) and, hence, any act, omission, commission or conduct of any of the parties, would not lead to domestic violence, entitling any relief under the DV Act.” (Paragraph 38)

With respect, the first part of this sentence is not logically prior to the second. It is not the case that the DV Act does not “recognize” same-sex relationships; it is only the case that the Act is aimed at combatting a specific social problem – violence against women in the domestic sphere, particularly at the hands of men – and so, it restricts its scope of operation, that is, the scope of its remedies to women who are in a domestic relationship with men. That is why S. 2(a) defines the aggrieved person as a woman, and S. 2(q) defines the respondent as “a male”. But if the aggrieved person can only be a woman, and the respondent can only be a man, then the legislature could very easily have defined “domestic relationship” as a relationship between “a man and a woman“. The fact that it chose not to do so, and used the gender-neutral term “two persons“, implies that the term “relationship in the nature of marriage” itself might well have a scope of operation that goes beyond the DV Act. Or, in other words, the Court is right to hold that offenses in the nature of domestic violence between same-sex couples are not covered by the DV Act – but the legal reason for that is to be found in the definitions of “aggrieved person” and “respondent”, and not in the definition of “domestic relationship” and “relationship in the nature of marriage“.

Furthermore, the Court expressly holds that marriage is a “civil right” (Paragraph 23), as opposed to a religious sacrament, and charged with social (as opposed to religious) significance. This means that the problem of according religious rights primacy over Part III fundamental rights per State of Bombay v Narasu Appa Mali is not at issue; consequently, if certain civil rights are being accorded to some, but being denied to others on bases that the Constitution rejects, then there is a case to be made for unconstitutional discrimination. Now recall that in Naz Foundation, the High Court held that the word “sex” in Article 15 extends to “sexual orientation” – and thus, discrimination on the basis of sexual orientation amounts to an Article 15 violation. Until now, it could have been argued – and has been argued in jurisdictions like the United States – that by excluding homosexual couples from the ambit of marriage, one is not discriminating against them – a homosexual union is simply the historical meaning – indeed, the common law meaning – of what it is to be married. Whatever the validity of this argument, in this case, the Court holds that the term “relationship in the nature of marriage” is one that has the “inherent or essential characteristics of a marriage” (paragraph 35), which it later defines as having a number of possible components such as a shared household, pooling of financial arrangements, a sexual relationship, public socialization, intention and conduct, and so on. Notice that none of these requirements (except the one of children) are inherently related to the traditional definition of marriage being between a man and a woman.

Thus, the basic point is this: by excluding homosexual couples from the ambit of the term “relationship in the nature of marriage“, and denying to them the various benefits that flow therefrom and are accorded to homosexual couples of exactly the same sort, there is a clear case of discrimination on the basis of sexual orientation. And insofar as the various (civil) rights and benefits flowing out of a “marriage” are denied to homosexual couples, there is a case of discrimination on the basis of sexual orientation. The technical labels here are not important – what is important is that whether you want to call it a marriage or a relationship in the nature of marriage, if the same bundle of rights and obligations that are extended to heterosexual couples are denied to homosexual couples (and this is not an Article 14 case, where the government can claim intelligible differentia and rational nexus, perhaps to “protect the institution of marriage”), then there is an Article 15 violation.

Same-sex unions are recognized in some form or the other in many countries now, including – lest there be claims of Eurocentrism – Argentina, Brazil and South Africa. In any event, following Naz, it is the next debate that ought to be had in India over how, precisely, our Constitution is to fulfill its promise of extending equal concern and respect to all its citizens.

Free Speech Restrictions under the IT Act: PUCL’s Constitutional Challenge to Section 66A and the Intermediary Rules

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

– Justice Jackson, West Virginia Board of Education v Barnette

“The State cannot prevent open discussion and open expression, however hateful to its policies… the guarantees of freedom of speech and of the press are measures adopted by the people as the ultimate rulers in order to retain control over the Government, the people’s legislative and executive agents.”

– Justice Shetty, S. Rangarajan P. Jagjivan Ram

 

Last week, the Peoples’ Union for Civil Liberties’ PIL challenging the constitutionality of S. 66A, IT Act was admitted by the Supreme Court. PUCL’s petition, available here, is well worth a read. S. 66A of the IT Act – and the associated rules – raise grave constitutional questions about the scope of free expression in India. The provision states:

 

“Any person who sends, by means of a computer resource or a communication device,—
(a) any information that is grossly offensive or has menacing character;
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages

shall be punishable with imprisonment for a term which may extend to three years and with fine.”

 

Further, the Intermediary Rules, 2011, which deal with due diligence obligations of intermediaries, prohibit them from publishing information that is “grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionabledisparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever.”

PUCL’s petition is wide-ranging. It lists a range of abusive practices that have been carried out under the aegis of the Act and the rules, including, for instance, the arrest of two young women in Maharashtra for posting – and liking – a message on Facebook, various intermediary take-down requests, and so on. The petition also focuses on the vagueness of the terms involved, the non-definition of the offenses, various procedural irregularities that are scattered throughout the legal landscape, including those found in the 2009 blocking rules. In this post, however, I would like to consider a threshold issue: does our Constitution allow for censoring “offensive“, “menacing“, “obstructive“, “annoying“, “objectionable” or “disparaging” speech?

There are good reasons to believe that it does not. The Constitution is crystal clear on the permissible grounds for restricting free speech – they are to be found in Article 19(2). The only relevant 19(2) grounds available here are “public order, decency or morality“. Previously, on this blog, we have had occasion to consider in great detail the meanings of these words. A brief summary will do here.

 

Public order“: this phrase was inserted into the Constitution via the First Amendment, because after the judgment in Romesh Thappar narrowly construing the older wording (“undermine the security of the State“), the legislature felt that “the citizen’s right to freedom of speech and expression guaranteed by article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence.” This demonstrates that “public order” is a term of art, limited in its scope to issues such as violent crime. Romesh Thappar, indeed, defined it as the “state of tranquillity which prevails among the members of a political society”. Subsequently, Ramji Lal Modi added an intent requirement (missing from S. 66A), and S. Rangarajan P. Jagjivan Ram laid down the test for 19(2) restrictions, requiring a proximity between the speech and the public order violation to be akin to “a spark in a powder keg.

Decency“: In Bal Thackeraythe Court specifically dealt with the meaning of the word “decency”. In that case, the Court upheld an electoral restriction on religion-based campaigning, holding that: “The ordinary dictionary meaning of ‘decency’ indicates that the action must be in conformity with with the current standards of behavior or propriety, etc. In a secular polity, the requirement of correct behavior or propriety is that an appeal for votes should not be made on the ground of the candidate’s religion which by itself is no index of the suitability of a candidate for membership of the house.” The Court’s reference to India’s secular polity suggests, at the very least, that the decency requirement is itself linked to basic constitutional principles.

“Morality”: The Court’s morality jurisprudence, over six decades, is unfortunately extremely difficult to break down into a coherent line of argument. “Morality” could refer to one of three things – individual morality, public morality or constitutional morality (that is, again, principles of the Constitution like secularism, representative democracy and so on). In cases where the Court has referred to the first or second notions, it seems to have adopted a variant of the obscenity test. In one of its most recent judgments on the point, however, the Court also observed that “notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy.”

 

We can therefore see that the 19(2) restrictions are all defined terms of art that have an identifiable scope of operation and principles of liability and causation. S. 66A of the IT Act and the Intermediary Rules fail constitutional muster on both those counts. “Menacing”, “harassing” or causing “ill-will” (whatever these terms might mean!) clearly do not rise to a public order offense, and the legislature makes no effort – in any case – to limit their incidence to the proverbial “spark in the powder keg” situation. Similarly, being “offensive”, “objectionable” or “disparaging” does not amount to being obscene or – even on the broadest possible interpretations of the Court’s “morality” judgments – violating public morals. It is crucial to note that whereas – as the above cases show – the Court has always attempted to lay down an objective test to determine the scope of Article 19(2), words like “offensive” and “objectionable” are inherently and chronically subjective. You can at least purport to be discerning public standards of decency or morality through some kind of objective test – but you simply cannot decide, on any basis that isn’t entirely subjective, what is “offensive”.

The best that can be said for these terms is that they are over-broad. And for obvious reasons – including the chilling effect that we discussed in our last post, and argued by PUCL in its petition – the Court has given especially short shrift to over-broad legislation in the domain of free speech. In Kameshwar Prasad, a ban on all demonstrations involving government servants was struck down as being violative of Article 19(1)(a), because it encompassed all demonstrations, “however innocent and however incapable of causing a breach of public tranquillity and [did] not confine itself to those forms of demonstrations which might lead to that result.” And in K.A. Abbas, the Court held that where “the persons applying it [the law] are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom, the law must be held to offend the Constitution.”

As clearly as S. 66A of the IT Act and the Intermediary Rules violate the text of the Constitution, there is a much broader concern here (as the numerous instances of abuse that PUCL lists demonstrate). History shows us that the kind of speech the government is likely to find offensive or disparaging or objectionable is precisely the kind of speech that challenges the existing order. Galileo’s insistence that the earth moved around the sun; Martin Luther’s creation of protestantism by nailing the ninety-five theses to the door of the church in Wittenberg; Eugene V Debs’ protest against the World War I draft; Gandhi’s trial for sedition – every single one of these cases demonstrate that when you give government the power to determine what speech is “offensive” and what isn’t, what the public ought to hear and what the public ought to be sheltered from, and so on, abuse in the service of power is inevitable, and what end up being suppressed are ideas of fundamental and urgent importance.

The freedom of speech would be of little or no value if all that was permitted was what was “convenient”. The freedom of speech would have little or no value if people could not try and change the established order precisely by causing “annoyance” (as Galileo did, and changed all of science – for the better), by “disparaging” the existing order of things (as Martin Luther did, and changed all of religion). As the great American Justice Douglas put it so eloquently sixty-four years ago:

“The principal function of free speech under our system of government is to invite dispute; it may indeed best serve its high purpose when it induces condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

The whole purpose of representative democracy is – precisely – the idea that the truth does not come to us pre-defined and pre-packaged, and we must adhere to it – but rather, that we create our own truths by engaging in free and open public debate, a debate that might often be heated, sharp – and yes, offensive. As Judge Easterbrook wrote in American Booksellers v Hudnut:

“The power to limit speech on the ground that truth has not yet prevailed and is not likely to prevail implies the power to declare truth. At some point the government must be able to say (as Indianapolis has said): “We know what the truth is, yet a free exchange of speech has not driven out falsity, so that we must now prohibit falsity.” If the government may declare the truth, why wait for the failure of speech? Under the First Amendment, however, there is no such thing as a false idea, so the government may not restrict speech on the ground that in a free exchange truth is not yet dominant.”

And as our Court echoed three years ago, in Khushbooin a democracy, people can choose to either defend or question the existing social mores… an expression of opinion in favour of non-dogmatic and non- conventional morality has to be tolerated as the same cannot be a ground to penalise the author.”

S. 66A of the IT Act and the Intermediary Rules, in their present form, violate the text of the Constitution. They violate sixty-three years of judicial precedent interpreting the text of the Constitution. And most importantly, they violate our Constitutional commitment to representative democracy. Unsurprisingly, they have been abused beyond all measure or recourse. They ought to be struck down.

Oral arguments in ACLU v Clapper – II: How Surveillance affects Free Speech and the Freedom of Association

(As an addendum to the previous post, this piece explains exactly how much information can be gleaned from metadata surveillance.)

Recall that we are discussing the American Union for Civil Liberties’ challenge to the NSA’s bulk surveillance program, something that is directly relevant to India, in light of our own central monitoring system (CMS), that goes much further. In the last post, we discussed the implications of bulk surveillance upon privacy. But in addition to making the privacy argument, ACLU also argued that bulk surveillance violates the freedom of association, implicit in the American First Amendment, and upheld by a long line of cases. In India, of course, that right is expressly guaranteed by the Constitution.

In order to understand ACLU’s freedom of association argument, we must first look to the 1958 American Supreme Court decision of NAACP Alabama. Recall that the deep South in the 1950s practiced large-scale and widespread de facto discrimination against coloured people. The National Association for the Advancement of Coloured People (NAACP) had opened an office in the southern state of Alabama, and had “given financial support and furnished legal assistance to Negro students seeking admission to the state university; and had supported a Negro boycott of the bus lines in Montgomery to compel the seating of passengers without regard to race.” Arguing that this was causing “irreparable injury to the property and civil rights” of the citizens of Alabama, the state imposed various requirements upon the NAACP, one of which was a requirement to disclose its membership lists. NAACP refused. The state filed a restraining order. NAACP challenged. The Court’s opinion, upholding the claims of the NAACP on behalf of its members, deserves to be quoted in full:

“Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.”

“It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute [an] effective a restraint on freedom of association… this Court has recognized the vital relationship between freedom to associate and privacy in one’s associations. When referring to the varied forms of governmental action which might interfere with freedom of assembly, it said… “a requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature.” Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”

In constitutional law, NAACP’s argument is invoking a doctrine known as the “chilling effect“. Basically, the idea is that if certain pre-existing burdens – legal or otherwise – are attached to exercising certain rights in certain broadly-specified ways, then people, out of caution, fear or prudence – will simply refrain from effectively exercising those rights altogether. The classic example is – unsurprisingly – that of free speech. This (somewhat real) hypothetical ought to drive home the point: suppose there is a law that bans “offensive” speech. The government might be motivated by the lawful and legitimate interest in protecting historically ostracized communities from continuous, vituperative hate speech. Nonetheless, the word “offensive” is so inherently subjective and open to manipulation, that it will lead people – fearing prosecution – to self-censor and to stop engaging even in perfectly legal speech not contemplated by the statute.

The situation is not always as clear-cut as the one outlined above, and often needs an investigation of various social factors, combined with a fair-sized helping of judicial common sense. For instance, in Shelton v Tucker, an Arkansas law required all publicly-employed teachers to disclose the organizations which they had been part of over the previous five years. The state argued that the schools needed the information to make judgments on the competence of teachers before hiring or extending their contracts – certainly, a legitimate objective. There was nothing on the record to suggest that the information would be missed. Nonetheless, the Court held:

“Such interference with personal freedom is conspicuously accented when the teacher serves at the absolute will of those to whom the disclosure must be made — those who any year can terminate the teacher’s employment without bringing charges, without notice, without a hearing, without affording an opportunity to explain… the statute does not provide that the information it requires be kept confidential. Each school board is left free to deal with the information as it wishes. The record contains evidence to indicate that fear of public disclosure is neither theoretical nor groundless. Even if there were no disclosure to the general public, the pressure upon a teacher to avoid any ties which might displease those who control his professional destiny would be constant and heavy.”

Investigating whether or not there was a compelling state interest, the Court applied the familiar strict scrutiny test, and held:

“The statute requires a teacher to reveal the church to which he belongs, or to which he has given financial support. It requires him to disclose his political party, and every political organization to which he may have contributed over a five-year period. It requires him to list, without number, every conceivable kind of associational tie — social, professional, political, avocational, or religious. Many such relationships could have no possible bearing upon the teacher’s occupational competence or fitness… in a series of decisions, this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.”

And in Local 1814 v The Waterfront Commission, the question was whether there could be compelled disclosure of all of a labour union’s members who had authorized payroll deductions for contributions to a political action committee, for the purposes of investigating coercion. The Court of Appeals held:

“We believe that compelled disclosure of the Fund’s contributors under the circumstances of this case would give rise to a chilling effect similar to the one recognized by the Supreme Court in Shelton v. Tucker, supra. The Waterfront Commission has undeniably broad powers of control over waterfront labor. It has the responsibility of supervising the hiring and assignment of all longshoremen. The Commission has the power to cause longshoremen to lose their jobs by removing or suspending them from the longshoremen’s register… Refusal to answer questions or produce evidence in a Commission investigation may be grounds for revocation or suspension from the register… we agree with the District Court that there is a substantial danger that longshoremen will perceive a connection between contributing to the Fund and being called before the all-powerful Commission. Some chilling effect on some contributors would be inevitable.”

Each of these three cases were cited and relied on by ACLU before the District Court. The argument is now self-evident: bulk surveillance of telephony metadata, as we discussed in the previous post, over time reveals patterns of data that, in turn, reveal associational information about people. The government did not deny this – in fact, it could not deny it, considering that its entire case was based on just how effectively bulk surveillance did reveal associational patterns! The question then, was two-pronged: whether there was a chilling effect, and whether a compelling state interest justified the consequent violation of the First Amendment’s freedom of association.

The judge asked ACLU what evidence there was to demonstrate a chill (and indeed, the government, in its response, would contend that there was no evidence demonstrating that anybody had been chilled). ACLU argued that none of the cited cases had relied upon evidence demonstrating a chill – in fact, bringing forth such evidence would essentially involve proving a negative. You would have to effectively prove that someone who would have otherwise spoken to you didn’t speak to you because of the chilling effect – and how could you ever do that? This was why the Supreme Court and the Court of Appeals had adopted the common sense approach – and surely, if the entire society was subjected to surveillance, that would certainly involve the unpopular, dissident (yet perfectly legal) groups that are the inevitable victims of any chilling effect. That is to say, if I know that all my associational patterns are known to the government, I might well consciously or subconsciously refrain from associating with unpopular  or dissident groups.

The government also argued that the First Amendment wasn’t implicated in this case, because it wasn’t directed at ACLU. The purpose was’t to penalize expressive activity. The judge nonetheless enquired whether a good faith investigation could – nonetheless – impair the freedom of association (the state responded that it couldn’t, in this case); and in its reply, ACLU argued that even an indirect burden on an expressive activity, or an associational activity, requires exacting scrutiny. As Alexander Abdo, counsel for ACLU, ended by observing:

Imagine that the government comes to your house each night and compels you to hand in all your call records for that day. Is that not a clear violation of the Fourth and First Amendments?”

By corollary, of course, this entire argument applies with equal force to free expression (19(1)(a)). There are, therefore, two questions that we must consider: to what extent do Articles 19(1)(a) and 19(1)(c) embody the doctrine of the chilling effect; and what standard of scrutiny is applicable under 19(2) and 19(4). There is a substantial amount of case law on how to interpret the “reasonable restrictions in the interests of… the sovereignty and integrity of India…” limitations, and most of it points towards a general proportionality test. Once again, though, it is at least arguable that the sheer scale and extent of bulk surveillance calls for more exacting scrutiny; and in any event, even under the proportionality test, the government would need to produce at least substantial evidence to show that it cannot achieve its objectives through less intrusive surveillance.

To sum up, then: bulk surveillance implicates three crucial constitutional rights: privacy (21), expression (19(1)(a)) and association (19(1)(c)). The oral arguments in ACLU Clapper reveal the numerous complexities involved, and point the way forward towards the debate that must be had in India: what conception of privacy does our Constitution commit us to? Does bulk surveillance serve a compelling state interest? Could the same objectives be achieved by a narrower tailoring? Does bulk surveillance cause a chilling effect upon expression and association? And if it does, when and how – if ever – can it be justified?

Surveillance, privacy, association and the Constitution – I: Oral arguments in ACLU v Clapper

Earlier this year, ex-NSA contractor and whistleblower Edward Snowden revealed the industrial-level surveillance of private communications undertaken by the American government. One feature of the American surveillance program is what is known as “telephony metadata collection“.  Under this, all the details of phone conversations minus the actual content of the call – that is, the two numbers involved, the time and duration of the calls etc – are intercepted and stored in a vast database maintained by the National Security Agency. Later in the year, The Hindu revealed that the Indian government’s Central Monitoring System was doing something very similar (the technical details of how the two programs differ is not relevant at the moment, because CMS surveillance is at least as intrusive as NSA surveillance – and in actual fact, is more so). For details, refer to the CIS website here, and articles here and here.)

NSA surveillance was challenged on statutory and constitutional grounds by the American Civil Liberties Union, and the oral arguments took place today morning at the Southern District Court of New York. In what follows, I summarize today morning’s proceedings, because ACLU’s two core constitutional arguments – violations of the rights to privacy and free association – are fundamental constitutional rights in India as well (Article 21 and 19(1)(c)). Examining the constitutional debate in the United States, therefore, can help us understand precisely what is at stake – constitutionally – as far as the CMS goes.

(Caveat: I reconstruct the following from my hurriedly-taken courtroom notes. For a full account of ACLU’s written submissions, please refer to their website here).

As mentioned above, ACLU rested its claims on statutory and constitutional grounds. The statutory argument involved a detailed analysis of Section 215 of the Patriot Act, the likes of which do not exist (thankfully!) in India. The relevant statutory provisions in India are the S. 5 of the Telegraph Act, and S. 69 of the Information Technology Act (along with the 2009 Rules). So while ACLU’s statutory arguments are of limited relevance, it is important to underscore the following: S. 215 of the Patriot Act requires a relevance requirement before data can be collected. Similarly, the IT Act requires the government to be convinced that it is “necessary or expedient” in the interests of the security or integrity of the state etc. – a standard that permits at least a degree of judicial review. One of the arguments made by ACLU was, given that constitutional rights were implicated, the Patriot Act (and other associated legislation) should be construed a manner that preserved – and did not putatively violate – the rights of privacy and free association. That argument, of course, applies to India as well.

Another important takeaway from the statutory arguments was ACLU’s argument that a statutory authorization of individual, targeted surveillance operations did not amount to the massive dragnet operation that the NSA was carrying out. Both because of the sheer scope and because of its potentially limitless extension, mass telephony metadata surveillance could not simply be equated to an individual targeted operation, given that it raised a whole host of issues not ordinarily implicated in standard cases of surveillance. This is critically important, because the 2003 case of PUCL v. Union of India is taken to establish that S. 5, Telegraph Act permits surveillance in general. PUCL, however, did involve individual targeting, and therefore, ACLU’s arguments suggest the first important legal issue for us to consider: does the PUCL opinion legitimate CMS surveillance as well? If the answer is yes, then the potential consequences could be devastating – especially because, amongst the procedural safeguards mandated by the judges in that case, one is conspicuous by its absence: judicial authorization of surveillance. Even the United States, that has, over the past few months, come under sustained criticism for blatant privacy violations, has something called a FISA Court that is – admittedly, in ex parte proceedings – required to authorize surveillance before it can be carried out. The idea that government can carry out surveillance of citizens’ private data on a nationwide scale with a single-step legitimation process that involves no more than administrative review will have radical consequences for a number of important constitutional principles, not least the separation of powers.

However, as the ACLU’s constitutional arguments show, there is a strong case to be made out for the proposition that bulk surveillance does differ, not only in degree but in kind – from individual surveillance, and that therefore, PUCL does not hold the field. Let us therefore, now, turn to the Constitutional case.

ACLU’s first argument rested upon the Fourth Amendment to the American Constitution, that – inter alia – prohibits an unreasonable search. Two questions arise in an American fourth amendment enquiry:  first, has there been a search? And secondly, is the search reasonable? It is around the first question that the American Supreme Court has developed its privacy law jurisprudence. In Katz vs United States, it held that there exist “spheres of privacy” belonging to each individual, which government may not penetrate. What constitutes a protected sphere of privacy depends upon whether or not citizen have a reasonable expectation of privacy. So – as the US Supreme Court has held, for example, I do not have a reasonable expectation of privacy as I walk down a public road, but I do have a reasonable expectation of privacy within my own home. What constitutes “reasonable expectation” seems – largely – to be culturally determined.

Two questions arose with respect to the issue of “search” (i.e., scope of privacy). The first crucial point – that the judge made, and which the government argued – was that on one theory of privacy, the breach occurs not at the moment that the data is collected, but at the moment at which it is subsequently queried to reveal patterns of association. This would mean that the surveillance as such violates no privacy right. ACLU, on the other hand, argued that the very nature of the right to privacy was that it closed off certain spheres from governmental intrusion – and consequently, privacy was violated at the moment of penetration, independent of what was done with the data afterwards. The basic question, according to ACLU, was whether people had a reasonable expectation of privacy with respect to their phone records and the various associational inferences that could be drawn from them. The answer, it was argued, was an unequivocal yes, because of the very nature of metadata surveillance: sociologically – and this is a vitally important point –  it has been shown that a detailed enough metadata trawl can reveal as much information about someone as a straightforward content trawl. As ACLU’s lawyer argued, the government can know when you last called your doctor, your lawyer, your stock-broker, your pastor, your ex-girlfriend, and so on. Over time, a pattern of associational relations would build that would reveal huge amounts of information about your personal life – and surely that was a violation of a reasonable expectation of privacy.

The government also argued, by relying on precedent, that it had already been held by the Supreme Court that there was no reasonable expectation of privacy in phone records. ACLU distinguished the case by arguing that previously, the Court had only considered a specific, temporary targeting – whereas this was bulk targeting, and potentially limitless. This takes us back to our earlier point about the distinction between individual targeting and bulk targeting, which assumes specific importance in light of PUCL.

The second fourth Amendment question was whether, if there was a search (privacy intrusion), it was reasonable. The government argued that there was a compelling state interest at hand, that of counter-terrorism. Counter-terrorism was necessarily prospective in nature. It was designed to detect, disrupt and prevent future terrorist attacks. Consequently, what the intelligence agencies needed to detect was patterns over time and over different (phone) carriers. Such information or connections could not be known at the outset, which is why ACLU’s proposal – of only carrying out surveillance of individuals with known links to terrorist organizations – could not work (although many of these arguments were made in the statutory context, they are equally relevant for understanding the government’s definition of compelling interest). In responding to a question from the judge as to whether bulk surveillance was uniquely suited to achieve governmental objective, the government argued that no other mechanism was as timely or effective. Given all this, it was clear that by placing limits on what part of the data could be queried post-search, it was clearly a narrowly-tailored intrusion, and hence reasonable.

ACLU, on the other hand, argued that the government had produced no evidence to show that bulk surveillance was actually necessary to achieve the objectives of counter-terrorism. ACLU produced evidence to the effect that in most circumstances, a three-hop trail was enough. This is what a three-hop trail is: suppose you have a suspected terrorist, X. You place his phone under metadata surveillance. You then do the same with all the persons he contacts, then all the persons they contact, and then repeat the process once more (three steps). In any event, on the government’s own argument, the only occasions on which surveillance had actually led to a substantive outcome had been simple cases of one-hop.

Readers should now be in a position to recognize that our own fledgling privacy jurisprudence, evolved out of three cases, Kharak Singh v State of UPGobind v State of MP and R. Rajgopal v State of TN, and placed under the all-ecompassing rubric of Article 21, is utterly inadequate to deal with the complex issues raised by bulk metadata surveillance, or other forms of bulk surveillance. There are two questions of particular urgency: first, what is the philosophy of underlying our Article 21 right to privacy? If it’s something like the Katz standard, protecting zones or spheres of privacy from any intrusion, then the mere collection of records could constitute an infringement; pre-Katz law, on the other hand, which seemed to focus more on common law trespass, might not reach the same outcome. Gobind and Kharak Singh tell us nothing, being good, old-fashioned house-surveillance cases. In light of the sheer scope of CMS and government surveillance, this is a debate that must be had now. And secondly, once an infringement of privacy has been demonstrated, what burden of justification is placed upon the government? In today’s hearings, both sides seemed to argue upon a strict scrutiny standard: namely, that the government had to show a compelling state interest, as well  show that no less intrusive measure could serve that compelling state interest than the measure it had chosen (bulk surveillance). The question of whether or not strict scrutiny applies in India is a minefield that we cannot venture into now; but the basic question remains – given the amount of intrusion that the current surveillance system puts into place, what standard is government to be held to (I’m not here referring to the statutory burden under the IT Act, but the constitutional burden of justifying an infringement of privacy). Can the government simply claim deference from the Courts as long as it can demonstrate some reasonable relationship with its objectives of counter-terrorism, and others? Or must the government affirmatively demonstrate that bulk surveillance is the only way that it can achieve its objectives? In today’s district court, the US government spent great amounts of time and effort doing that. Let us see what the outcome is.

In the next post, we shall analyze the freedom of association claim made by ACLU, also litigated in today’s hearings.

Basic Structure – VIII: Conclusion (of sorts)

Over the last few of posts, we have examined the basic structure doctrine as enunciated and developed by the Indian Supreme Court. There are two broad questions before us: first, from an external point of view, it is principally justified for the judiciary to impose substantive limitations upon the power of the Parliament to amend a written Constitution? The external question is further divided into two further questions: is there anything in the Constitution that supports this doctrine? And what – if it exists – is the philosophical justification for it? And secondly, from an internal point of view, is the manner in which these limitations have been imposed by the Court consistent and coherent with the principled justifications? In the process, we have discussed the two basic types of objections that have been raised against the doctrine and which, indeed, are standard objections against any Constitutional doctrine: first, that what the doctrine seeks to accomplish is morally illegitimate, as it violates the principle of our understandings of democracy; and secondly, as the doctrine itself lacks a firm Constitutional basis, it is constitutionally illegitimate.

These questions are important because, at the very least, it is undeniable that the basic structure doctrine confers wide-ranging powers upon the Court. And at the end of the day, such powers need to be justified on grounds firmer than the technical meaning of the word “amend”. They need to be justified upon the same grounds that justify our Constitution itself – popular sovereignty, republicanism, representative democracy, and so on.

We began by considering a non-majoritarian understanding of both democracy and individual rights, one that understands democracy itself as predicated upon the guarantee of basic rights as essential checks upon the powers of majoritarian institutions such as the Parliament. This naturally raised the question: who should determine and enforce these limitations? The logical answer is a non-majoritarian institution which, in our culture, is the Court.

We then considered a second justification that, unlike the substantive-rights argument, focuses on process. It holds that the framing of the Constitution was the culmination of a heightened, lengthy and sustained process of public engagement (through the freedom struggle) which, because of the depth of involvement of the people, is a “higher form of lawmaking” than the ordinary legislative and amendment processes – and that therefore, the values entrenched by that process can be preserved from change until another similar process comes along. In this context, we located Indira Gandhi’s actions in the 70s as a failed constitutional moment – one that attempted to make changes as far-reaching as the framing, but failed to have this vision accepted by the People.

Subsequently, we examined the textual, historical and structural bases given to the doctrine by the Supreme Court, and inquired whether the doctrine that emerged as a result of this was consistent with the principled justifications argued for earlier. It was found that but for the glaring example of federalism, both approaches yielded largely the same results. We focused on the manner the doctrine has been developed, i.e. the highly abstract formulation of basic features, and the Court’s refusal to provide a complete list of the same. We found that there were good reasons for holding that this practical operation of the basic structure is fully consistent with the principles that justify the doctrine in the first place, as it leaves the widest possible room for the legislature to operate, and also averts the nightmare of  inflexible rigidity.

And lastly, we considered a third approach to justification, one that seeks to avoid the pitfalls of both the substantive approach (an intuitive laundry-list of rights that just seem important) and the procedural approach (no ultimate constraints on the majority). We argued that if our system of government, a representative democracy, is to be truly effective, there must exist a structure of meaningful dialogue and deliberation, through which individual preferences are formed, modified, modulated and transformed, and ultimately expressed in public decisions. Meaningful dialogue itself presupposes a broad right of free speech, a rough parity between the participants (equality), an umpiring of the process itself (judicial review), participation (republican democracy) – that is, many of the basic features. The basic structure doctrine, then – which we saw is even implicated by the common law – provides a structural framework of constraint upon the democratic process, that makes it meaningful and worthwhile to engage in the process in the first place.

In summation, therefore, there exist arguments – perhaps not dispositive, but good arguments nonetheless – that the basic structure doctrine is  justified on the following three broad levels: first, its existence, as a matter of political and moral principle; secondly, its enforcement, in terms of the institutional authority (the judiciary) responsible for its enunciation and development; and thirdly, its application, that is, the manner in which the judiciary has applied it.

Therefore, we can – tentatively – conclude by submitting that the basic structure doctrine should not necessarily be viewed as a vague and imponderable chimera used by a tyrannical judiciary to arrogate supreme State power to itself, and as a weapon to destroy the foundations of democracy. It need not even necessarily be viewed as a necessary evil, a counter-majoritirian check to correct the worst excesses of democracy, but a regrettable restriction nonetheless. In the last analysis, the basic structure is – plausibly – an essential aspect of democracy itself, a set of constraints that makes democracy work.

Does that mean that everything is perfect? Of course not, because the workings of the basic structure are left to judges who are, after all, fallible human beings. So far, the judiciary has shown both restraint and wisdom in its handing of the basic structure doctrine, but of course, there is no guarantee that it will always be so. Yet if our judges occasionally go wrong, as they are bound to, if at times their decisions stultify the scope of Parliamentary action more than is necessary or called for, it is only the inevitable cost we must bear for vesting ultimate State power in fallible human beings. The basic structure doctrine seeks to achieve a fine balance between majoritarianism, democracy, separation of powers, and basic individual rights. By the very virtue of its complexity, its implementation can never be perfect; but then, as Aristotle understood so long ago, nothing ever can.

Basic Structure – VII: Deliberative Democracy and the Common Law

It might be objected that deliberative democracy is a notion wholly alien to law and legal thinking generally, which have tended to rely on more traditional ideas of popular sovereignty, that we have discussed before. It is arguable, however, that deliberative democracy actually underpins the structure of common law thinking, the legal system that, for better or for worse, is our legal system today.

There are two aspects of common law that I wish to highlight, that are specifically relevant to ideas of deliberative democracy. The first is that common law has never – traditionally – been considered to be promulgated by a lawgiver, or created by a conscious, legislative act; rather, common law, in the deepest sense, is regarded as being customary – its growth is gradual, lateral and from below, as contrasted with statutes, that are created in one single moment of enactment, vertically and from above. The common law judge’s task has been believed to be not a task of creation but of merely finding the law that already exists, that is, the community’s law, that has grown up through several different acts by the people over a period of time (see, e.g., Sabine, A History of Political Theory; Maitland, A History of Common Law Before the Time of Edward I). In this way, common law is about self-government through collective action.

The manner in which this action takes place leads us to the second aspect of the common law. The best description is provided by David Strauss, in his book, The Living Constitution, which we here extract in full:

The foundation of the common law is humility about the power of individual human reason. It is a bad idea to try to resolve a problem on your own, without referring to the collective wisdom of other people who have tried to solve the same problem. That is why it makes sense to follow precedent, especially if the precedents are clear and have been established for a long time. “We are afraid to put men to live and trade each on his stock of reason,” Burke said, “because we suspect that this stock in each man is small, and that individuals would do better to avail themselves of the general bank and capital of nations.” The accumulated precedents are the “general bank and capital.” It is an act of intellectual hubris to think that you know better than the accumulated wisdom…”

These two ideas – the Aristotelian notion that wisdom lies in a collective pooling of talents and ideas (developed, in modern form, by Waldron) – and the Burkean idea of incremental evolution over sudden change – are both relevant to our conception of deliberative democracy. The ideal of collective wisdom overriding individual insight – if it is to make any meaningful sense – presupposes extensive and open participation in the formation of that collective wisdom. At the time Burke was writing, of course, a significant section of society was excluded from such deliberation (women, serfs, “vagabonds” etc.) because of various exclusionary notions of human worth (that were themselves determined by a dominant subset of society) – for instance, the idea that only property-owners had a relevant stake in political affairs, and therefore, were entitled to vote (see, e.g., Kyssar, The History of the Right to Vote in America); or the idea that women were “virtually represented” by their husbands or fathers, and therefore needed no place in public discourse. While these notions are now thoroughly repudiated (we hope!), the basic idea of the common law remains, but now with a difference – collective folk wisdom now means incorporating the viewpoints of the entire polity. And it is also easy to see how an extensive process of deliberation favours incremental changes over sweeping transformations.

This is, of course, a sketchy and highly simplified account, and does not make any pretense of proving the case. The objective, however, is to simply raise the possibility that when we need not think of constitutional law – and, by extension, the basic structure – as unelected judges standing as bulwarks (or, depending upon your point of view, as barriers) against the majoritarian process. The binary is unhelpful, leads nowhere and ensures that more often than not, participants in the debate talk past each other. On the contrary, there is another way of thinking about law and democracy, one that re-imagines democracy as a value-laden set of processes to arrive at justifiable outcomes – and that this conception is at least arguably already contained – albeit in a latent form – within the broader set of ideas that structure our vision of the common law.

Basic Structure – VI: Introducing Deliberative Democracy

The basic structure doctrine permits unelected judges to impose near-permanent checks upon parliament’s power to amend the Constitution. Recall that we have proposed two philosophical defences that render this doctrine compatible with democracy as we understand it. The first – and let us call this the substantive defense – posits an expanded idea of democracy, one that guarantees equal concern and respect to all members of a polity, and that therefore accords legitimacy to majoritarian decision-making procedures only insofar as these procedures respect certain basic individual rights without which equal concern and respect cannot genuinely be said to exist. The second – and let us call this the procedural defense – distinguishes between different levels of lawmaking, and accord degrees of legitimacy to these levels depending upon the scope, depth and duration of popular public engagement (e.g., very simply, a constitutional amendment is a higher form of lawmaking than normal legislation). This theory then argues that lawmaking at higher levels can only be changed or amended by another process that occurs at that level – i.e., through at least the same degree of public participation. The procedural theory concludes by arguing that the basic principles of the Constitution, coming as they did upon a long, sustained and highly popular independence movement, are entrenched from change until a similar movement comes along again.

I will suggest that while both these defenses capture certain valuable insights about what it is that we find attractive about the basic structure (at least those of us who support it), they are also fundamentally inadequate qua defenses, because each ignores or excludes the insights of the other. I will then propose an argument that will attempt to incorporate the better parts of each.

The substantive approach captures the idea that there is nothing inherently valuable about a majoritarian decision-making process. As Berlin observed long ago, it doesn’t really matter to me if my house is confiscated by a majority or by a despot. No, the reason why we value majoritarian procedures must be because they often give us the right answer. But in that case, the rightness of the answer must be independent of the process used to arrive at it – that is, the value of the process is instrumental, not substantive. And then, logically, what we need to do is to figure out what the right answer or answers are, and allow the majoritarian process free play only within the bounds of the answers. The substantive view of democracy locates the rights answers in certain core, individual rights, and ensures their protection against the popular process.

The problem, however, with the substantive vision of democracy is that it gives us very little to go by in the way of what individual rights ought to be protected. Indeed, it seem to come down, in the end, to simply intuition: we intuit that free speech, freedom of conscience, equality and so on – are vitally important rights that must be protected. But history teaches us that other men and women in times past have held very different views, and so, quite certainly,  will other men and women in times to come (the manner in which the right to property went from being a fundamental right to a mere statutory right is a stark example of how the place of rights in our constitutional culture can radically transform itself within a couple of generations). Leaving these rights to be determined by a few judges, themselves often drawn from the elite and therefore inclined to share in its prejudices and blind spots, seems to be especially intolerable.

On the other hands, the procedural defense confirms another of our deeply-held convictions: that there is a value to the popular decision-making process, that there is some fundamental difference between an elected legislature guaranteeing the freedom of speech, and a despot making the same guarantee. That value is not hard to find: it is the value of self-government, the idea that I am bound by a law even though I disagree with it, because it is, in some sense, my law. But if that is the case, then the procedural defense needs to explain how the process serves that value, and why a process that regularly and repeatedly leads to deeply unjust results (especially as far as dissidents and minorities are concerned), deserves some kind of inherent legitimacy. The higher-lawmaking ideal, that simply deepens and extends the process, will not solve our problem, because our problem isn’t one of degree, but of structure: we do think that outcomes matter, no matter who reaches them and how they are reached.

In other words, process matters and outcomes matter. This, then, is our challenge: we must avoid the twin perils of imposing-intuited-rights-from-on-high and unconstrained majoritarianism (and that includes supermajoritarianism), and the only way to do this is to provide a value-laden account of the majoritarian process that could well modify or change it in important ways, but must keep its essence intact. I suggest that one way of meeting the challenge is by invoking the idea of deliberative/dialogic democracy.

Deliberative democracy has a rich intellectual tradition; the ideas of the great German philosopher, Jurgen Habermas, provide its fount, and lately, it has been developed in many interesting directions by theorists such as Seyla Benhabib, James Fishkin, Joshua Cohen, and so on. It is not, obviously, my intention here to provide a full-scale analysis of the divergent traditions of deliberative democracy. I can only provide a highly impressionistic account, moulded as I understand it to apply to the basic structure doctrine, that may or may not be consistent with any one school of thought. Interested readers may follow up by browsing the works of these scholars, all of whom repay close study.

As the name suggests, deliberative democracy finds the value of the democratic process in the idea of deliberation – that is, a structured arena (call this the “public sphere”) in which people come together, communicate, deliberate or discuss matters important to them, and come to decisions. The key insight that deliberative democracy seeks to capture is that we do not come into this world as atomized individuals with a set of pre-set preferences and identified interests, but rather, these preferences and interests are shaped and formed through our communications with each other. And at the end of an open and fair deliberative process, in which participants have been placed on an equal footing, and been provided equal opportunities to contribute to both individual and group preferences-formation, the collective decision that is reached is, in a sense, by virtue of the fairness of the process that led to it, our decision. In this way, deliberative democracy aims to conform to the ultimate ideal of self-government, and justify to us why laws arrived at through a certain procedure enjoy an inherent – at least prima facie – legitimacy.

Intuitively, this makes sense. But what this also means is that the deliberative procedure must be subjected to certain constraints if it is to fulfill its own goals. To take the simplest example: a deliberative procedure in which half the people are not allowed to speak is self-contradictory: any preferences or interests formed as a result of this process, and any decisions arrived at, are illegitimate because not only did one half of the population have no opportunity to communicate their points of view to others, but the process, as a whole, is incomplete, and any preference or interest-formation is partial at best. And thus we see how we derive a strong right of free expression from the logic of deliberative democracy.

Now what other constraints are placed upon the deliberative process is a matter for debate – for instance, it could be argued that religious neutrality is essential, because religions with their claim to revealed truth are fundamentally anti-deliberative. But the details of the theory may be fleshed out later. What I want to suggest here is the following: the basic structure doctrine is legitimate because it forms the essential structural framework within which the democratic process attains inherent value. A quick look at some of the basic features reveals that they are, for the most part – at least plausibly – connected with this goal: democracy, republicanism, free speech, secularism (see above) equality (a deliberative process, naturally, cannot be legitimate if some of its participants are treated as less worthy than others, and therefore, their contributions given less weight), and judicial review (umpiring the process). I admit that federalism has no place in this scheme, and insofar as the Court has upheld federalism to be part of the basic structure, that is a mistake.

How does deliberative democracy solve the problems with the two approaches we discussed above? First, the values that it protects are not some set of individual rights arrived at through introspection and intuition, but part of the logic of representative democracy itself, the system of government by which we all claim to live. But at the same time, it does explicitly identify values, and seeks to protect them. In this way, deliberative democracy captures the importance of both process and outcome by constraining and structuring the process in such a way that the outcomes can be traced back to certain important values, and thus enjoy presumptive legitimacy.

To the objection that the value I place upon deliberation is itself simply intuited, I plead guilty – there is no Archimedean point outside the circle, but I can only re-emphasize that the project we are engaged in is to locate the value that we think exists in our accepted system of government, that is, representative democracy based on the idea of majoritarian (or super-majoritarian) decision making processes. Deliberative democracy helps us to do that.

Lastly, what are the prescriptive implications of this theory? Simply this: that the Courts should keep in mind, when adjudicating upon a basic structure claim, that their role is to act as umpires of the continuing legitimacy of the democratic process, to enforce the structural conditions within which democracy is meaningful, and has value. The determination of these structural conditions themselves is a task for the individual judge, although some of the ideas listed here – and in the literature – can serve as good signposts. Beyond that, we can do no more than to trust to the good sense and intellectual humility of our judiciary, and at least as far as the basic structure doctrine goes, based on the evidence I highlighted in the previous posts, I would suggest that our trust has not yet been betrayed.

 

Basic Structure – V: Why are the Basic Features Abstract and Illustrative?

    Right from its origins in Kesavananda, the basic structure doctrine has been severely criticized on the following grounds: first, the Court has defined the basic features in a highly abstract manner; and secondly, it has refused to provide an exhaustive list of basic features. It is argued that the requirements of certainty and predictability in law-making require the Court to come out with an exhaustive and concrete list of basic features for the benefit of the Parliament. Let us examine this argument.

The Abstract Formulation of the “Basic Features” and the Problem of Statism

    Basic features such as democracy, secularism, the rule of law, judicial review, the separation of powers etc. are broad, “open-textured”, and open to varying and diverse interpretations. The high degree of abstraction with which the basic features have been set out has been identified as one of the main weaknesses of the doctrine. In the folds of the vagueness of basic structure, it is argued, lies limitless judicial power.

Yet a surgery of practice reveals that, far from vesting “limitless power” in the judiciary to strike down any and every amendment it pleases, the “vague” and abstract conceptualization of the basic features has, on the exact contrary, provided a wide scope for the legislature to operate, and limited the scope of judicial interference. A broad wording of basic features permits a whole host of interpretations to validly come within their ambit, and therefore expands the scope of permissible legislative action. For instance, Professor Sathe argues that the basic feature of “democracy” would permit as major and far-reaching a change as converting India from a Parliamentary to a Presidential form of Government, as the latter too is a “democracy.” The basic feature of “secularism” would permit the Government to decide upon a policy of complete separation of Church and State, or one of “equal respect.” This would not be possible if the basic structure was framed in more concrete and definite terms (or, to use Dworkin’s gloss on Hart – the basic structure is a series of “concepts“, and the legislature can work out specific “conceptions” of those concepts).

A brief review of Supreme Court judgments bears this out. In Raj Narain, Chandrachud J. used the “broad form of democracy known to the nation” to hold that the 39th Amendment, which made sweeping changes with regard to the legality of the elections of the Speaker and the Prime Minister, was not violative of the basic structure. The classic example, however, is that of the case of M.G. Badappanavar v. State of Karnataka, where a three judge bench of the Supreme Court gave a highly concrete formulization to the basic feature of equality, holding that Article 16(4A) of the Constitution did not allow roster point promotees to be given seniority over normal promotees. Soon after this, M.G. Badappanavar was effectively overruled by a Constitution Bench in Nagaraj, where it was observed that the “carry-forward” and the “catch-up rules” laid down in Articles 16(4A) and (4B) were mere rules of “service law jurisprudence”, and could not be elevated to the status of “Constitutional principles”. Thus, the basic structure challenge against Articles 16(4A) and (4B) was rejected. Again, in R.C. Poudyal v. Union of India, it was the much-maligned “vague” formulation of “democracy” that allowed the Court to uphold a Constitutional amendment departing from the “one-man-one-vote-rule” in Sikkim. Yet another instance is that of Kuldip Nayar, where the doing away of secret ballots for certain elections, and also domicile requirements for membership of the Council of States, were both upheld as being consistent with democracy.

There is an additional good reason for this. In Kesavananda (especially the minority), and in academic writings, the spectre of an un-amendable Constitution, the perils of “statism” and rigidity, and the need to respond to the changing times and requirements of the society have all been arguments used against the basic structure doctrine. The broad formulation of the basic features is a judicial attempt to give the legislature breathing room to operate, and address the fears of rigidity and non-responsiveness. Arguably, such an abstract formulation is the only way of preserving the balance, as Professor Joseph Raz argues, between the twin needs of “stability” and “change”.

     Therefore, the criticism that the “imprecise and elastic” formulation of the basic structure has made the judiciary “the most powerful organ of the State” would appear not to be borne out in practice. On the contrary, the abstraction of the basic features appears to be an exercise in judicial self-restraint and deference, keeping in mind concerns of the separation of powers and of constitutional rigidity.

 Illustrative, not Exhaustive

    It has been strongly urged that the Supreme Court should come forth with an exhaustive list of the basic features that is accepted by the Parliament, and included in the Constitution (see, e.g., the arguments in the essays featured in The Supreme Court versus the Constitution, Chopra ed., 2006). However, the Court has consistently held that it is far more desirable to examine each case on its own merits, and decide whether basic structure review is applicable. What principle could justify this?

The argument for exhaustiveness is based on the premise that the components of the basic structure are permanent and unchangeable. If this was true, then naturally, the Court’s refusal to provide a list would be unjustified. However, a crucial distinction needs to be made: the fact that certain principles and values are beyond the pale of the the legislature’s power to decide at any one moment, does not imply that these principles and values are themselves immune from change or modification over time. Recall that in Kesavananda and beyond, the Court did not say that the basic structure cannot be changed. It said that Parliament was not permitted to “damage or destroy” the basic structure. This is not mere hair-splitting, because if the basic features are structural features, that is, derived from the structural principles that undergird the Constitution, then a gradual, incremental change at the surface could, in certain cases, cause the structure to shift and change as well. In other words, the Constitution may be changed by slow degrees, provision by provision, new elements added to it, old provisions removed, and while no single amendment would alter the basic structure, over time we could have a rather different-looking Constitution, with a shift in the balance of the elements which currently constitute the basic features, and those that do not. And at that point, what would now be an amendment damaging or destroying the basic structure would not at that time be such, because the basic structure itself would have altered. And therein lies the key to the seemingly innocuous distinction between “change” and “damage or destroy“. By using the latter phrase, the Court ensures that it never closes the door entirely to intra-Constitutional change in the absence of a new Constituent Assembly. In other words, to put the matter paradoxically: at any given time t, the basic structure is unchangeable, but over time, it might prove to be mutable.

Let us also remember that no principle can operate in complete abstraction. Principles must be rooted, to at least some degree, in the existing condition of humankind, and specific prevailing societal conditions. In order to understand this better, recall H.L.A. Hart’s conception of the “minimum content of natural law.” While defending a theory of legal positivism, Hart nevertheless concedes that the conditions under which humankind exists makes it imperative that any law, as a prerequisite to its existence, must have certain minimal substantive content. For instance, human vulnerability requires that there must be some form of prohibition against the completely free and unrestrained use of violence. However, Hart adds that if there is a change in the basic human conditions which necessitates this minimal content, that content would change as well. For example, if physical vulnerability was to be eliminated by all human beings growing thick, impenetrable armour such as that possessed by land crabs, making it impossible for one to injure another, the “right to life” may lose its meaning. But Hart’s example, evidently, is limited to something extremely basic; surely, as we know, following Nietzsche and later scholars, the moral values that we take for granted (to take just one instance, brilliantly studied, the idea of “authorship“) have a specific genealogy, located both spatially and temporally, grounded within a set of social, economic and political conditions. Consequently, if these conditions themselves are radically transformed, so will our values.

The basic structure doctrine, then, is an expression of judicial – and, by extension, national humility: it recognizes that nothing is, or can be, absolutely permanent. Will this make a difference to how the next basic structure claim is decided in Court? Of course not. But constitutional law is not – and has never been – only about the individual case; it is also an expression of a polity’s deepest commitments. The basic structure doctrine reflects a commitment to certain core values that structure and define an open, democratic society. But the basic structure doctrine also acknowledges that the world may change in ways the present provides us no insight into, no matter how much wisdom or foresight we believe we possess, and that some day our present arrangements might seem as anachronistic and savage as American slavery and English feudalism seems to us now; or even if nothing changes, it could simply turn out, in the perspective of the wisdom of another age, that we have been wrong all along. As Oliver Cromwell said to the Synod of the Church of Scotland: “I beseech you, in the bowels of Christ, think it possible that you may be mistaken.” As relevant in 2013 as it was in 1650, the basic structure doctrine similarly maintains the possibility – however remote and outrageous it seems at the moment – that we might be mistaken, without compromising upon the strength of the commitment we have to our values.

In sum: what we have provided is an argument that not only is it in the very nature of the basic structure doctrine, that “basic features” must be both abstract and illustrative, but that both these characteristics provide vital and indispensable flexibility to the Court so that it may adequately respond to far-reaching societal changes, and prevent the basic structure from ossifying our Constitution into a fossilized, rigid anachronism. The alleged principal weaknesses of the basic structure doctrine – its vagueness and non-exhaustiveness – according to this argument, are the founts of its strength and, in part, the sources of its legitimacy.  The fears that judges will misuse these features to arrogate unbridled power to themselves are have not yet been proven right, and there is no reason to believe they will be.

Basic Structure – IV: Constitutional Grounding and Identification

In the previous posts, we argued for certain independent principled justifications for limiting the power of popular majorities in democracies. In Kesavananda and subsequent cases however, the Supreme Court has always sought to provide a firm Constitutional basis to the basic structure doctrine. The basis used by the Court in turn, has had a direct impact upon the identification of specific basic features. It is therefore vitally important to briefly examine this Constitutional basis, and analyze whether its consequences by way of identifying basic features are in conformity with the principled justifications advanced before.

The following arguments appear in one form or the other, throughout the majority judgments. This is an attempt to synthesize them into an all-too-brief summarized account.

Justifications: Textual, Historical and Structural, and Chandrachud J.’s Test for Identification

The Kesavananda majority gave numerous reasons, grounded in established canons of constitutional interpretation, to justify the constitutionality of the doctrine. The minority provided an equal number of reasons to reject it. It is not my aim here to settle the question authoritatively. In fact, it would be rather presumptuous to claim to have found an indisputable solution to a problem that left a 13 judge bench divided! Here, I simply aim to demonstrate a few of the most important reasons (as identified by the Kesavananda majority) to make a strong, positive case in favour of the constitutionality of the doctrine. Perhaps aware that no one modality of argument was strong enough – or uncontroversial enough – to justify the monumental transformation that it was imposing upon the Indian constitutional landscape, the majority grounded its arguments in multiple considerations of text, structure, history and foreign constitutional precedent.

Textually, the strongest justifications are threefold: first, the literal, dictionary meaning of the word “amendment” means to improve upon, or make changes in something; it does not extend to completely destroying it; secondly, in various Constitutional provisions, the Constituent Assembly used the phrase “amendment by way of addition, modification or repeal”, whereas Article 368 used the word amendment simpliciter. This implied that the amendment of the Constitution under Article 368 was not envisaged to extend to repeal; and thirdly, that the phrases “this Constitution shall stand amended”, and “change in” as opposed to “change of” in Article 368 clearly meant the preservation of the basic identity of the existing Constitution (this argument is endorsed by Mr Seervai – see Seervai, p. 3143).

Historically, it was argued that the Constitution was the culmination of a long struggle against tyrannical and autocratic British rule. The protagonists of the nationalist movement were also the framers of the Constitution. They could not have intended that the ideals of democracy and secularism which they had fought so long and hard for – the ideals that, indeed, defined the movement and the entire framing process – could potentially be destroyed by succeeding Parliaments.

Structurally, it was argued that the proviso to Article 368, which provided for a more difficult method (the consent of half the State legislatures) to amend certain provisions, did not include fundamental rights, and other vital provisions such as Article 52. This led to the presumption that these provisions were meant to be beyond the power of amendment. The importance of the Preamble was also cited in this regard.

Lastly, the majority (that is, all except Khanna J.) relied upon various judgments from the higher Courts of Ireland, Canada, Australia and Ceylon to propound a theory of “inherent and implied limitations” upon the Parliament’s power to amend the Constitution. It argued that the position of the Parliament was subordinate to the Constitution; and the power delegated to it under the Constitution was checked by certain “implied limitations”, which prohibited it from using that power to destroy or subvert the Constitution itself (the thorny question of whether Khanna J.’s refusal to rely on implied limitations means that the doctrine was actually rejected 7 to 6 is one that we cannot go into here).

The strong Constitutional grounding of the basic structure doctrine led Chandrachud J., in Indira Nehru Gandhi v. Raj Narain, to emphatically reject any notion of the doctrine’s independence from the Constitution, and propound the now accepted test for identifying basic features: “to examine in each individual case the place of the particular feature in the scheme of the Constitution, its object and purpose and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of the country’s governance.” This definition, however, raises a fundamental question.

The Federalism Conundrum

In the previous posts, the basic structure doctrine was justified on certain principled grounds. Chandrachud J.’s test for identifying basic features, however, ignores these grounds completely, entrenching the basic features solely and exclusively within the text and structure of the existing Constitution. Is there a conflict between the two? In other words, is there a divergence between those constitutional concepts that ought to be unamendable (as a matter of democratic theory and principle), and those that actually are, in our Constitution?

Let us take the first justification that we discussed: the idea that certain basic rights ought to be placed beyond the power of majorities – or supermajorities – to affect. If this is so, then thus far, the potential conflict between justification and identification does not appear to have manifested itself in the application of the doctrine. Basic features such as equality, the right to life, the rule of law, democracy and secularism have been identified using Chandrachud J.’s test. These features are also part of the pantheon of the basic principles and fundamental human rights that were discussed in the posts before.

Yet there is, however, a notable exception. The Supreme Court has used the test to hold that “federalism” is part of the basic structure (see S.R. Bommai and Kuldip Nayyar). It is impossible to see what basic value or cherished principle federalism protects or preserves, that it should be placed beyond the Parliament’s amending power. By no means does it occupy the same pedestal as equality or the right to life, or even independent judicial review (notwithstanding Mr Seervai’s argument that at the time of the framing, it was crucial for the integrity of the nation – see Seervai, p. 3148). Nevertheless, federalism is now undisputedly part of the basic structure.

But if the basic-rights argument cannot justify why federalism is part of the basic structure, our Ackermanian conception of higher-lawmaking, that we discussed in the last post, certainly can. We are now in a position to note a crucial distinction between our two justifications for the principled legitimacy of the basic structure doctrine (and one that will become relevant subsequently): the basic-rights argument is essentially content-based: it grounds the legitimacy of the basic structure in the nature and character of important substantive values. The higher-lawmaking argument, on the other hand, is process-based: it accords legitimacy to whatever substantive result is arrived at through the process of higher lawmaking. The framing process accorded tremendous important to (asymmetric) federalism? No problem, says the Ackermanian. Federalism can take its place along with all the other substantive values that form part of the basic structure, because it too emerged out of a process of higher lawmaking, that protects it from damage or destruction except by another process of a similar character.

We are therefore faced with a conundrum. The basic-rights argument must condemn a part of the judicial practice as a mistake. The Ackermanian argument does not suffer from this infirmity, but then again, the Ackermanian argument would condemn no substantive principle as a mistake, as long as it emerged out of the correct process. Yet evidently, there is a conflict here, and no obviously correct answer. I will suggest, subsequently, that neither the basic-rights framework, nor the Ackermanian higher lawmaking model can serve as a sufficiently plausible normative justification for the basic structure, but for now we can see how the justification that we finally accept will depend explicitly on our own notions about the importance of coherence and unity, and substance and process.

A Matter of Pragmatism: Identifying the Basic Features

If the basic-rights theory is to remain convincing, however, it must address the claim that the Court lacks a coherent philosophy for the doctrine it has created and propounded, and one that is consistent with separation of powers. One possible way of addressing this objection is to make the – in my opinion, correct – argument that the basic structure doctrine can be best understood only as a product of the political climate in which it was born.

As Professor Granville Austin points out, Kesavananda was an attempt by the Indira Gandhi regime to overturn the Golak Nath decision through years of “packing the Court.” (see G. Austin, Working a Democratic Constitution 265) Furthermore, Raj Narain and Minerva Mills, which crystallized the doctrine, were decided during and soon after the notorious Emergency imposed by Mrs. Gandhi. In the prevailing political climate, therefore, the judiciary had no choice but to give as strong a basis in positivist Constitutional law as it could to the doctrine. As history shows, Mrs. Gandhi did her best to overturn Kesavananda through supercession of judges and the review procedure; and there were also hopes that Raj Narain would ignore the doctrine altogether. It is highly unlikely that the doctrine would have survived had the judges based it on a theoretical conception of democracy and the inalienability of basic human rights. The formulation of the doctrine therefore, should be understood as an attempt by the Supreme Court to achieve a principally justified goal through strongly pragmatic methods, while sustaining its own legitimacy as the ultimate interpreter of the Constitution (indeed, Professor Marneffe has argued that maintaining the legitimacy of the Court is itself an independent constitutional principle that the Court ought to keep in mind while adjudicating hard constitutional cases). We are fortunate that this method has, in at least many cases, yielded results that are consistent with the principle.

Whether this argument is a sufficient defense of the basic-rights principle is, again, a matter for individual judgment.

Basic Structure – III: “We the People”, Higher Lawmaking and the Idea of Dualist Democracy

In his written submissions in Kesavananda, Mr. Palkhivala argued that the “ultimate legal sovereignty of the people” could not be vested in the Parliament. This draws support from the preambular phrase – “We the People… do hereby enact, adopt and give to ourselves this Constitution” – suggesting that the Indian Constitution is meant to embody a form of social contract between the people of India. The contractarian theory is premised upon the idea that institutions of a political democracy (including the rule of the majority) are the result of a consensus between free and equal individuals who have joined together to form the State. The basis of democracy, therefore, is the equal freedom of sovereign democratic citizens. The concept of “freedom” contains within it not only equal political participation, but also – as Rawls argues – basic rights and liberties such as the freedom of thought and conscience, the rule of law, etc (see Rawls, A Theory of Justice, p. 440). Giving up these rights would be tantamount to depriving oneself of both freedom and sovereignty, and would take away the basic premise of contractarian democracy (a point made by both Locke and Montesquieu). Therefore, in a Constitution that is founded upon a social contract (as the Indian Constitution purports to be), the people are entitled to reserve certain basic rights to themselves, which the government cannot take away or abridge.

But how, it may be objected, do we know what equal citizenship entails? And why, after all, ought we leave the responsibility of determining features of equal citizenship to unelected judges often drawn from a narrow pool of society? To that, the answer is that the requirements of equal citizenship – that is, the elements of the basic structure, are drawn from the Constitution itself, because “We the People” wrote them in. In other words, the theory of legislative sovereignty cannot exist in India. This is because a written Constitution, possessing the “validity of a statute emanating from the sovereign people”, and which defines the fundamental political arrangements of the State, is clearly superior to the “ordinary legislative organ.” (see the arguments of E.S. Corwin) Furthermore, not only has the Constitution defined the nation’s fundamental political arrangements, it has also brought into existence the three wings of State, and has allocated the distribution of powers between them. Therefore, the power of the legislature is clearly subordinate to that of the Constitution, and co-ordinate to the other branches of government. In this context, it may be argued, the legislature, which derives its power and its very existence from the Constitution, cannot use that power to destroy it. Secondly, none of the three State organs can use its power to destroy or abrogate the powers and functions of any of the other organs, as the Constitution clearly postulates, at the very least, the existence of the three organs with clearly defined and separate types of powers (or, in Seervai’s terms, this is what distinguishes the framing power, which is not subject to the separation of powers, from the amending power, which is; see Seervai, Vol. III, p. 3119). For example, the legislature clearly cannot pass a Constitutional amendment abolishing the judiciary. However, both these possibilities would be realized in the case of unlimited amending power. Therefore, such a construction of the Parliament’s amending power must be rejected. Thus – the argument goes – the allegation that the basic structure doctrine replaces parliamentary sovereignty with judicial supremacy simply holds no force. It is the Constitution which is sovereign and supreme, not any of the three wings of State. Undoubtedly, what the doctrine has done is to give the judiciary the last word on interpreting the Constitution. But that is all.

But now, consider a further difficulty. If the authority of the Constitution is ultimately derived from “We the People”, then surely “We the People” are allowed to change Our minds – including Our determination of what constitutes equal citizenship. Not only that, the Constitution itself provides the mechanism by which We the People can change Our minds – the supermajoritarian amendment procedure! Thus, the objection continues, if the Constitution is indeed the creation of We the People, what on earth justifies the judges in denying to the People the right to change Their minds, through the very procedure They wrote into the Constitution to do just that, even if it is to make mutable the principles They once considered immutable?

This is a difficult question, and clearly, if it cannot be answered, then the basic structure doctrine fundamentally lacks legitimacy. To answer it, we need to introduce, at this point, a new concept: that of dualist democracy, originated by Bruce Ackerman in his book, We the People.

It would be impossible to do justice to the richness and complexity of the Ackermanian theory in this short space: nonetheless – briefly – Ackerman argues that lawmaking occurs at different levels of public engagement and participation, with degrees of legitimacy accorded to each level depending upon the nature of participation. The reason, for Ackerman, why we have a representative democracy (as opposed to Athenian-style direct democracy) lies in the fact that we are both private citizens and private citizens; that is, we not only engage with the political process as citizens, through instances such as the vote, but an integral part of our lives is the private, non-political aspect. It is this private aspect that makes our lives wholesome, rich and worthwhile – indeed, there would be something distinctly incomplete about a life spent perennially engaged in politics. This, then, is what justifies representative democracy, which is nothing more than We the People delegating day-to-day political decision-making to their chosen representatives, leaving themselves free to pursue their private aims and goals, and construct their private lives.

Yet there are times when this changes. Times of great political upheaval, excitement and change, when there is great public mobilization over core issues, extensive public deliberation and debate, where what is at stake is the set of fundamental principles that structure the polity itself. In the context of American history, Ackerman identifies three such “moments”: the framing of the Constitution, the post-Civil War Reconstruction, when slavery was abolished, and the New Deal, when laissez faire capitalism was repudiated in favour of the regulatory state. For Ackerman, these periods are defined by a transformation of some of the most basic ideas that governed society, as well as the broad and deep public participation that shaped the transformation. This, then, is a higher level of lawmaking (hence, dualist democracy – dualist in that there is a difference between “ordinary lawmaking”, as undertaken by majoritarian legislatures in normal times, and “higher lawmaking”, that happens in rare moments of extensive public mobilization to debate issues of fundamental importance); and crucially, for Ackerman, the point of constitutional law (and, by extension, judicial review) is to ensure that the principles established during periods of higher lawmaking are protected from change by the majoritarian legislative process precisely because the circumstances of their framing lend them greater popular and democratic legitimacy than ordinary lawmaking.

We are now in a position to apply this argument to India. We have, of course, a parliamentary legislative procedure for ordinary times. We have a supermajoritarian amendment procedure – but, as the 98 amendments over the last 64 years demonstrate, while this is admittedly a higher form of lawmaking – it isn’t so by much (compare the 29 amendments to the American Constitution in 225-odd years). The Article 368 procedure itself is only slightly more onerous than regular lawmaking, in that it requires a two-thirds majority in each house, and some state consent in some cases.

But now consider, in comparison, the circumstances of the framing of the Constitution. Recall that it was the culmination of an independence movement that enjoyed an extraordinary broad amount of support and participation from all sections of society; the Constituent Assembly itself consisted of popular leaders of that independence movement, many of whom had served as elected representatives under the 1935 Government of India Act regime; and moreover, what was at stake was not just the transfer of power from a colonial government, but the very character of a newborn nation (see, e.g., the Constituent Assembly Debates). In short, the Ackermanian conditions for lawmaking at the highest level are here fulfilled (spoilt, in part, by the absence of a ratification process, no doubt, but for the purposes of argument, we can let that be for the moment).

And if that is the case, then we can easily understand why the most basic principles that were agreed upon – that India would be a republican democracy, governed by a written constitution, and founded upon the pillars of equality, fundamental freedoms to speak, associate and move, and secularism – these principles that now form part of the basic structure, can legitimately be preserved against both the ordinary legislative process, and the supermajoritarian amendment process that is only slightly less commonplace. What would be sufficient to change this? Another upheaval of a comparable degree to the freedom movement, one that has its animating goal changes as far-reaching, and draws upon extensive and deep public engagement. 

In this context, Indira Gandhi’s Emergency can be considered to be a failed constitutional moment (in Ackermanian terms). Not only did Mrs Gandhi proclaim a grave national emergency and an existential threat to the nation, but also, the changes she sought to bring about –  that is, complete subordination of basic rights to the whim of the parliament, the constitutionalization of bills of attainder, drastic reductions in the power of the judiciary and the strengthening of executive prerogative – much of this through the 42nd Amendment –  were an attempt at a fundamental transformation of the framers’ proposed system of governance (see Henry Hart’s take). Yet, the most far-reaching aspects of the proposed changes were struck down by the Court (first in Indira Nehru Gandhi Raj Narain, and then in Minerva Mills Union of India) on basic structure grounds; and We the People validated the Court’s stance by voting out Mrs Gandhi – both herself and her party – at the first general election after the revocation of the Emergency, one that was widely regarded as a referendum on the same; and the succeeding Janata Party undid the rest through the 44th Amendment. Had Mrs Gandhi, however, been returned victorious in the 1977 general election, surely that would have been seen as a vindication of her agenda – and a possible case for a transformative constitutional moment on par with the framing itself. And admittedly, we would now probably have had a very different Constitution, with no basic structure doctrine at all.

To sum up, then: the moment of the framing represents, in Ackermanian terms, an instance of “higher lawmaking”, one that possesses great political and democratic legitimacy because of the depth of public engagement and the transformative nature of the issues involved. It is therefore justified, then, for Courts to preserve the fundamental essentials of the framing from lower-level lawmaking procedures such as ordinary legislation and amendment, until We the People engage in higher lawmaking again. Indira Gandhi’s Emergency represents a failed constitutional moment, where We the People rejected her transformative proposals; we await the next attempt at doing so.