Net Neutrality and Public Highways

(My thanks to Malavika Prasad for bringing this case to my attention)

With the recent release of the Telecom Regulatory Authority of India’s [“TRAI”] “Consultation Paper” on the regulatory framework for over-the-top [“OTT”] services, net neutrality is up for sustained debate in India. Previously, I had written about how net neutrality, in the context of the internet, should be understood as a core free speech issue, and it might be helpful to consider the controllers of the “gateways” to the internet (or, in other words, the owners of the infrastructure of speech on the internet) as having public obligations of non-discriminatory access (even though they might be private parties). The idea of public obligations inhering upon private parties because of their control of public infrastructure, or their performing of a public function, has been upheld by the American Supreme Court in Marsh vs Alabama and by the Indian Supreme Court in the concurring judgment of Mohan J. in Unnikrishnan.

In the net neutrality debate this time, another bit of imagery has been doing the rounds: that of a public highway. It is permissible to charge a toll for the use of a highway, the rate of which might be proportional to how much one uses – so goes the analogy – but it is impermissible to charge differential toll rates based upon the make of the car you drive, or depending upon whether you’re going to work, or to vacation.

This is a particularly interesting analogy, because, as it turns out, the Indian Supreme Court has ruled upon precisely this point: that of non-discriminatory access to public highways. Saghir Ahmed vs State of UP, decided in 1954 by a five-judge bench, involved a constitutional challenge to the UP Road Transport Act, which allowed the State government to take exclusive control of running and operating road transport services within the state, if it believed such a step to be necessary in the public interest. Or, in other words, it allowed the State government to create a transport monopoly by executive fiat – which it actually did, for a part of the road network.

In deciding upon the validity of the State government notification, as well as the constitutionality of the Act, the Court noted:

“According to English law, which has been applied all along in India, a highway has its origin, apart from statute, in dedication, either express or implied, by the owner of land of a right of passage over it to the public and the acceptance of that right by the public . In the large majority of cases this dedication is presumed from long and uninterrupted user of a way by the public, and the presumption in such cases is so strong as to dispense with all enquiry into the actual intention of the owner of the soil and it is not even material to enquire who the owner was.

In response to the Attorney-General’s argument that the rights of commercial passage over a highway were determined by the Motor Vehicles Act, the Court observed:

“But the right of the public to use motor vehicles on the public road cannot, in any sense, be regarded as a right created by the Motor Vehicles Act. The right exists anterior to any legislation on this subject as an incident of public rights over a highway. The State only controls and regulates it for the purpose of ensuring safety, peace, health and good morals of the public. Once the position is accepted that a member of the public is entitled to ply motor vehicles on the public road as an incident of his right of passage over a highway, the question is really immaterial whether he plies a vehicle for pleasure or pastime or for the purpose of trade and business. The nature of the right in respect to the highway is not in any way affected thereby and we cannot agree with the learned AdvocateGeneral that the user of a public road for purposes of trade is an extraordinary or special use of the highway which can be acquired only under special sanction from the State.”

A few things ought to be noted:

(1) Although Saghir Ahmed was a case about State action, and consequently, implicated the petitioners’ Article 19(1)(g) and 14 rights, the Court’s logic here is based upon the nature of the utility (public highway) rather than the nature of the owner. In the first excerpted paragraph, the Court makes it clear that the question of ownership is immaterial, since whatever property rights the owner has, he is deemed to have intended to give up his right to the extent that passage requires.

(2) The power of the State to control and regulate the public utility must be for the purposes of ensuring safety, peace, health and morals.

(3) The nature of the use of the public utility (i.e., in this case, whether commercial or for pleasure) does not affect the scope of the right of use in any way.

(4) The right stems from long and uninterrupted prior use, presumably stretching back to the beginning of road networks, and consequently, being somehow part of the very nature, or essential characteristic, of a “road”.

Note the striking similarities with the net neutrality debate, with respect to each of the elements. There is, of course, a danger with pushing any analogy too far, but the vocabulary of the TRAI Consultation Paper itself conjures up an image of the internet “highway”. In paragraph 2, it states:

“The term over-the-top (OTT) refers to applications and services which are accessible over the internet and ride on operators’ networks offering internet access services e.g. social networks, search engines, amateur video aggregation sites etc.”

And, in para 3:

Carriage is separated from content in internet networks, enabling OTT content and application service providers to deal directly with end users.”

A full elaboration, of course, would need significant unpacking. What, precisely, is the public highway here? Is it the spectrum? And is the argument then that a spectrum auction by the original owner (i.e., the government) does not carry with it complete rights of ownership, but rather, attendant obligations that act as limits upon those rights. One of those obligations being to provide non-discriminatory access to a public utility, whose public character remains unchanged despite the ownership being in private hands. Of course, such an argument would also need to establish the analogy between roads and the internet, both in terms of their public character (perhaps not so difficult), and the establishment of a right of non-discriminatory access through a long period of uninterrupted usage (perhaps harder in the case of the internet).


The Striking Down of Section 66A: How Indian Free Speech Jurisprudence Found its Soul Again

In the best piece of free speech news since 1960, the Supreme Court on Tuesday struck down Section 66A of the IT Act, that criminalised “grossly offensive”, “menacing” and “annoying or inconvenient” speech over the internet. There has been a substantial degree of commentary about the judgment over the last two days. In this post, I will attempt a detailed excavation of the many fascinating strands of the judgment, from the point of view of free speech doctrine.

Use of American First Amendment jurisprudence

A month ago, I wrote a rather exasperated post about a bizarre Delhi High Court decision allowing the police to pull down political posters from the walls of private property, on the ground that “Delhites have short fuses”, and that political posters could therefore be a threat to public order.  In particular, when American free speech jurisprudence was cited before Justice Endlaw, he refused to consider those cases, on the ground that while the American First Amendment is “absolute” (“Congress shall make no law… abridging… the freedom of speech”), Article 19(2) is subject to reasonable restrictions. This cavalier dismissal highlights the highly opportunistic manner in which the Indian judiciary has engaged with American First Amendment law over the years. On occasions when it helps to buttress a point, judges have shown no compunctions in quoting the grand, eloquent pronouncements of the American judiciary on the freedom of speech; but of course, American First Amendment law has historically been far more speech-protective than its Indian counterpart. Consequently, when judges wishing to uphold far-reaching restrictions upon the freedom of speech are faced with contrary American cases, instead of engaging with the reasoning and demonstrating why it is invalid or inapplicable, they invariable invoke the “First Amendment is an absolute!” trope, and save themselves the trouble of having to consider contrary reasoning.

As I’ve tried to argue before, a refusal to engage with judicially trained minds grappling with very similar issues achieves nothing but stifling exposure to a range of rigorously thought-through and developed viewpoints, and harms the overall quality of reasoning. More importantly, though, the argument that the First Amendment is an absolute, and 19(2) contains reasonable restrictions, is a canard. The First Amendment is not absolute. No American judge, apart from Hugo Black, and possibly William Douglas, has held it to be. The First Amendment permits regulation of incitement to imminent lawless action, obscenity, fighting words, true threats, blackmail, copyright infringement, insider trading, consumer fraud and commercial speech. This was clearly understood by the framers. In the Constituent Assembly Debates, Ambedkar himself observed:

“It is wrong to say that fundamental rights in America are absolute. The difference between the position under the American Constitution and theDraft Constitution is one of form and not of substance. That the fundamental rights in America are not absolute rights is beyond dispute. In support of every exception to the fundamental rights set out in the Draft Constitution one can refer to at least one judgment of the United States Supreme Court.”

He then specifically went on to cite an American judgment on restrictions upon free speech – Gitlow vs New York.

In Paragraphs 14 to 19, Justice Nariman clinically demolishes the aforementioned canard. Citing Chaplinsky vs New Hampshire, the classic American judgment affirming that the First Amendment is not absolute, he correctly points out that the American Supreme Court has never given literal effect to the “make no law” phrase. He then correctly notes that the crucial difference between the American and Indian positions is that while in the United States, a compelling public interest must be demonstrated in order to regulate speech, in India, a restriction must be covered by the eight themes specified in Article 19(2). In other words, there could be occasions when the Indian Constitution protects more speech than the American! In any event, subject to this rider, Justice Nariman notes:

“Viewed from the above perspective, American judgments have great persuasive value on the content of freedom of speech and expression and the tests laid down for its infringement.”

And this is exactly as it should be. There is much to disagree with in American free speech law. But what is undeniable is that over a hundred years, American judges have crafted a deep, thoughtful and complex set of principles for understanding the purposes of the freedom of speech in a constitutional democracy. We might reject their principles completely, but we need to engage with them.

Public interest cannot be a ground for restricting speech

In specifying that under the Constitution, speech can be restricted only under one of the eight listed grounds under Article 19(2), Justice Nariman states twice that “public interest” is not one of the grounds, and so cannot be invoked to justify a speech restriction. In paragraph 21, he notes:

“Under our constitutional scheme, as stated earlier, it is not open to the State to curtail freedom of speech to promote the general public interest.”

Immediately after, he cites Sakal Papers vs Union of India in support of this proposition.

This might sound like an innocuous statement, but it is critically important. This is because, over the years, judges have repeatedly ignored the fact that Article 19(2) exhaustively lists eight grounds of restriction, and that public interest is not one of them (unlike in Article 19(6)). Judges have upheld restrictions upon the nebulous grounds of “public interest” and “social interest”. In Ranjit Udeshi vs State of Maharashtra, for instance, while upholding obscenity law, Justice Hidayatullah traveled beyond the terms of the Constitution to observe that the freedom of speech “is subject to reasonable restrictions which may be thought necessary in the interest of the general public.” He then used that to elide the “decency and morality” clause with “public morality.”

In K.A. Abbas vs Union of India, while upholding a regime of pre-censorship upon cinema, that same Justice Hidayatullah observed:

“… social interest of the people override individual freedom. Whether we regard the state as the paren patriae or as guardian and promoter of general welfare, we have to concede, that these restraints on liberty may be justified by their absolute necessity and clear purpose. Social interests take in not only the interests of the community but also individual interests which cannot be ignored. A balance has therefore to be struck between the rival claims by reconciling them. The larger interests of the community require the formulation of policies and regulations to combat dishonesty, corruption, gambling, vice and other things of immoral tendency and things which affect the security of the State and the preservation of public order and tranquillity.”

In In Re Arundhati Roy, the contempt of court case, the Court held:

“… whether there can be a balancing between the two public interests, the freedom of expression and the dignity of the court.”

Examples may be multiplied, but there is a clear pattern here. The worst free speech judgments of the Supreme Court have come when the Court has traveled beyond its brief, collapsed the specific terms of 19(2) into a boundless and boundlessly manipulable vision of “public” or “social” interest, and then upheld the far-reaching restrictions that the government has sought to impose. There come times in the history of any constitutional court, when jurisprudence becomes so utterly untethered from the constitutional text and principles, that what is most urgently needed is simply a reaffirmation of the basic meaning of text and structure. In doing so, Justice Nariman has performed the incalculably important service of re-orienting free speech jurisprudence back towards its fundamental goals and purposes: interpreting the Constitution of a liberal-democratic polity.

“In the interests of”, “tendency”, and the requirement of proximity

Article 19(2) permits “reasonable restrictions” “in the interests” of the eight prescribed themes. The major contestation in Indian free speech law has turned upon the interpretation of “reasonable” and “in the interests of”. In Ramji Lal Modi and Virendra, two cases decided in 1957, the Supreme Court stated that the phrase “in the interests of” was wider in ambit than the phrase “for the maintenance of”, and consequently, authorised the government to regulate any speech that had a “tendency” towards, for instance, public disorder. In Modi, the Court upheld S. 295A on the ground that intentional outrage to religious feelings had the “calculated tendency” (sic!) to disrupt public order. In Virendra, the Court held prior restraint upon the press under the colonial era Press (Emergency Powers) Act to be constitutional, for the same reason. A plea that there must be proximity between speech and disorder was expressly rejected in Modi.

The word “tendency” is pernicious and damaging. It speaks back to American free speech jurisprudence in the 1920s, when the Supreme Court used a “bad tendency” test to persecute anti-war dissenters, trade-union leaders, leftists and pacifists of various hues. Understanding the sheer unworkability of this test, the Court abandoned it in the 1940s, adopting Justice Holmes and Brandeis’ test of “clear and present” danger. The reason is obvious: “tendency” can mean just about anything, from imminence to the faintest causality. If I start smoking now, I will have a tendency to cancer, even though cancer may set in forty years later. But “tendency” has attained an ubiquitous place in Indian speech restricting laws. The Contempt of Courts Act, for instance, criminalises speech that can have the “tendency” of lowering the repute of the Court; S. 292 of the IPC criminalises material that “tends” to deprave or corrupt. And so on.

Fortunately, we did not have to wait as long as the US to push back against the idea of “tendency”. In Ram Manohar Lohia’s Case (1960), the Supreme Court cleverly “distinguished” precedent, and held that there was a requirement of proximity between speech and the threatened disorder, and that the connection must not be remote, arbitrary or fanciful. In Lohia, a law criminalising instigating people to not pay their taxes was struck down, because it was held not to have a proximate connection to public disorder. Subsequent cases have tightened this test – in S. Rangarajan, the Court held that the connection must be that of a “spark in a powder keg”, and in Arup Bhuyan, that there must be “incitement to imminent lawless action.” But “tendency” has also continued to be invoked by the Courts with alarming regularity. Soon after Lohia, the Court upheld the crime of sedition in Kedar Nath Singh (1962), on the ground that the State could legitimately criminalise speech that had a “tendency” to public disorder.

As in the case of “public interest”, we can immediately see that “tendency” has been responsible – again – for some of the most regressive and speech-restricting decisions of the Indian Supreme Court.

In the 66A judgment, Justice Nariman emphatically adopts the requirement of proximity. He cites Ram Manohar Lohia’s case, highlighting the need for an “intimate connection” between speech and the prohibited 19(2) category.

Incitement vs advocacy: Collapsing “tendency” into imminence

The requirement of an intimate connection is expressed by Justice Nariman in the form of a crucial distinction: between advocacy and incitement. In paragraph 13, he observes:

Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder…”

The distinction between “advocacy” and “incitement” is grounded in the idea of proximity, or imminence. For instance, my “advocating” a violent revolution against the State by writing articles in magazines, or even delivering public lectures, does not constitute “incitement”. However, my whipping up a mob into a frenzy and directing it to imminent violent action does. The enquiry is contextual, and is clearly limited to emergent, specific situations. In other words, Justice Nariman emphatically rejects the proposition that an idea, or a message, can be criminalised because of its communicative content. It is only when there is a relationship of immediacy between speech and action – “speech brigaded with action”, in the words of Justice Douglas – that the law can kick in. I have argued elsewhere that this view is consistent with our most basic ideas of individual autonomy and responsibility. But what is most interesting here is that Justice Nariman then collapses “tendency” into the incitement requirement. He says that it is at the stage of incitement when the law kicks in, to curtail speech that tends to cause disorder.

In other words, the concept of “tendency” that motivated the Court in Modi, Virendra and Kedar Nath Singh is emphatically discarded here. Justice Nariman holds that even if speech has a “tendency” to disorder (say, for instance, a revolutionary tract), that in itself is not a ground for restriction: there must, further, be incitement. To come back to my smoking example – I have a tendency to cancer when I start smoking, but cancer is “imminent” (or “inexorable”) only at a much, much later stage.

Thus, even while maintaining continuity with precedent, by continuing to use “tendency”, Justice Nariman effectively knocks the bottom out of the entire rationale for upholding 295A and sedition.

In paragraph 36 onwards, he buttresses this by collapsing tendency into the American “clear and present danger” test, even citing Modi and Kedar Nath Singh! In paragraph 41, he concludes the public order enquiry by holding:

“Viewed at either by the standpoint of the clear and present danger test or the tendency to create public disorder, Section 66A would not pass muster as it has no element of any tendency to create public disorder which ought to be an essential ingredient of the offence which it creates.”

There is a small quibble here: in paragraph 37, Justice Nariman observes:

“The test of “clear and present danger” has been used by the U.S. Supreme Court in many varying situations and has been adjusted according to varying fact situations. It appears to have been repeatedly applied, see- Terminiello v. City of Chicago 93 L. Ed. 1131 (1949) at page 1134-1135, Brandenburg v. Ohio 23 L. Ed. 2d 430 (1969)”

Strictly speaking, this is incorrect. The “clear and present danger” test was found to be prone to gross abuse during the McCarthy years, when the Court invoked it to convict communist party members and other dissidents. Far from using “clear and present danger”, Brandenburg vs Ohio was the case that rejected it, in favour of a more stringent “incitement to imminent lawless action” test. The Brandenburg standard was adopted by the Supreme Court in 2011, in Arup Bhuyan’s Case. In that respect, it is something of a pity that Justice Nariman endorses “clear and present danger” instead of Brandenburg. Nonetheless, it is also arguable that his disquisition on the distinction between “advocacy” and “incitement” effectively speaks to a Brandenburg level of protection, going forward.

Meaning of Public Order

The term “public order” is a term of art. In Romesh Thappar, independent India’s first free speech judgment, it was defined as “a state of tranquility which prevails amongst the members of a political society.” In Ram Manohar Lohia vs State of Bihar (a different case that also involved Ram Manohar Lohia), the Court conceptualised three concentric circles: “law and order” being the widest, “public order” being narrower, and “security of the state” being the narrowest. Thus, a disruption of public order is something graver than merely breaking a law, or disrupting “law and order”. In the free speech judgments since Lohia, however, this definition has been largely ignored (the Delhi High Court case cited above is a classic example). As in the case of rejecting “public interest” as a ground of restriction, the Court’s endorsement of Lohia provides a crucial reaffirmation of the fact that constitutional terms – especially terms that limit fundamental rights, cannot be arbitrarily expanded, and the Court must adjudicate constitutionality specifically upon the touchstone of their defined meanings.

On a combination of all these factors – that the terms of S. 66A did not establish a proximate link with public order, as defined, the Court held that Article 19(2) did not save that section, at least insofar as public order was concerned. The same analysis was applied to defamation, and decency and morality – the Court reaffirming its recent judgment in Aveek Sarkar’s case. The government’s attempt to escape unconstitutionality by adding an exhaustive set of guidelines (see para 48) was correctly rejected, on the ground that this was tantamount to rewriting the whole section. Consequently, the Court struck it down.


In Grayned vs Rockford, the American Supreme Court defined a vague statute as one which ensured that persons of “ordinary intelligence… have no reasonable opportunity to know what is prohibited.” In Kartar Singh v. State of Punjab, the Supreme Court – citing this case – observed that “it is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values… laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.”

There are, therefore, two problems with vague statutes. One is a rule-of-law problem: citizens do not have a fair chance to plan their affairs. The second is a delegation problem: the executive is given far too much discretion to implement vague laws on the ground. We have seen both issues at play with the abuse of S. 66A over the years.

While in K.A. Abbas, the Supreme Court admitted that vagueness could be a ground for striking down a law, it did not do so (despite the Central Guidelines for film certification, which were at issue, being bizarrely overbroad.) In Baldeo Prasad, the Court struck down a law that criminalised goondas, but did not define who a “goonda” was. But the 66A judgment is the first time – to my knowledge – that the Court has struck down a speech-restricting law on the grounds of vagueness. Crucially, the Court observes that it is not possible for the legislature to cast “a net large enough to catch all possible offenders and leave it to the Court to step in and say who could be rightfully detained and who should be set at liberty.”

After citing a copious degree of American and Indian jurisprudence to establish the principle of vagueness, Justice Nariman correctly observes, in paragraph 69, that “judged by the standards laid down in the aforesaid judgments, it is quite clear that the expressions used in 66A are completely open-ended and undefined.” Further contributing to the vagueness are the absence of mens rea, and a series of terms (such as “obstruction”, “danger” or “annoyance”) which are ingredients of an offence in the Indian Penal Code (that of public nuisance), but have become offences in themselves in the IT Act (para 72). Justice Nariman distinguishes other IPC provisions that use identical terms (such as Ss. 294 and 510) on similar grounds, and ends by noting the sheer subjectivity of the words that constitute offences under the IT Act:

“… every expression used is nebulous in meaning. What may be offensive to one may not be offensive to another. What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another. Even the expression “persistently” is completely imprecise – suppose a message is sent thrice, can it be said that it was sent “persistently”?”

Over-breadth and the Chilling Effect

Over-breadth is a concept that is closely connected with – but not identical to – the chilling effect. A statute is over-broad if – in the words of the Indian Supreme Court in Chintaman Rao vs State Madhya Pradesh,  “the language employed is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the right. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void.”

Over-breadth directly implicates the reasonableness requirement of Article 19(2). In State of Madras vs V.G. Row, the Supreme Court held that a “reasonable restriction” under Articles 19(2) to (6) would have to satisfy the requirements of proportionality: “the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.” It is clear that if a statute proscribes conduct that is much broader than what is permitted under Article 19(2), on the ground that there is some – tenuous – connection between the two, there is good reason to argue that the restriction is disproportionate.

While in Chintaman Rao, the Court struck down a statute for being over-broad, over-breadth as a constitutional concept has not yet managed to acquire a foothold in Indian constitutional jurisprudence. Here again, Justice Nariman’s judgment breaks new ground by expressly invoking over-breadth as a ground for striking down a speech-restricting statute. In paragraph 83, he observes:

Information that may be grossly offensive or which causes annoyance or inconvenience are undefined terms which take into the net a very large amount of protected and innocent speech.

And, in paragraph 86:

“[66A’s restrictions] fall foul of the repeated injunctions of this Court that restrictions on the freedom of speech must be couched in the narrowest possible terms.”

This is not all, however. Justice Nariman makes a further, crucial link: between vagueneness and overbreadth, and the chilling effect. The chilling effect refers to a situation where, faced with uncertain, speech-restricting statutes, which blur the line between what is permitted and what is proscribed, citizens are likely to self-censor, in order to be definitively safe. In the words of Justice Brennan, writing in New York Times vs Sullivan, citizens will “tend to make only statements which steer far wider of the unlawful zone… thus dampen[ing] the vigour and limit[ing] the variety of public debate.” In other words, the chilling effect – which applies across different areas of free speech law – ensures that self-censorship will extend even to entirely legitimate speech, and will impoverish the public discourse – the sustenance and enrichment of which is the entire point of free speech in the first place.

Yet again, it is crucial to note here that although past Indian cases have made vague references to the chilling effect (R. Rajagopal and Khushboo), again, the 66A judgment is the first that uses the concept to arrive at a positive legal outcome. In paragraph 83, after examining all the myriad kinds of speech that 66A will reach, Justice Nariman observes:

“Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.”

And, in paragraph 90:

“We, therefore, hold that the Section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth.”

Article 14 and differences by medium

One last point remains to be noted. The core of the government’s argument was that the internet is a very different medium from print or cinema, and that consequently, the government should be allowed greater leeway to regulate it. In paragraph 27, Justice Nariman lists some of the facets of the government’s contention: that the internet has a much greater (global) reach, it reaches both literate and illiterate people, even cinema has pre-censorship rules (but the internet doesn’t), rumours can spread to “trillions” (sic!) of people, there is much greater scope for invasion of privacy, the internet provides much greater shelter to anonymity, there are no internal regulatory norms, and that the spread is much more rapid.

In contradistinction, the challengers made precisely the opposite argument. They contended that since S. 66A lacked the kinds of procedural and other safeguards present for the regulation of print media, there was an Article 14 violation of equality. According to the challengers, a principle of equivalence must apply across media of communication.

Interestingly, Justice Nariman rejects both contentions. He rejects the Article 14 argument, holding that the internet is indeed a medium with some unique qualities, and that it is possible that there might be certain offences that can only take place online. In paragraph 28, he notes that the government is entitled to draft narrowly-drawn provisions that specifically speak to those offences (such as website blocking). But in the very same paragraph, he also notes:

“[the differential nature of the internet would not]  relax the Court’s scrutiny of the curbing of the content of free speech over the internet. While it may be possible to narrowly draw a Section creating a new offence, such as Section 69A for instance, relatable only to speech over the internet, yet the validity of such a law will have to be tested on the touchstone of the tests already indicated above.”

In effect, what kind of speech might be restricted is agnostic to media. Furthermore, when it may be restricted (i.e., the 19(2)) principles, and the relationship of proximity) is also impervious to the difference in media. The only place where this difference might be relevant is where the medium itself allows for certain kinds of offences (such as spam, or phishing) that were not possible before, and in such circumstances, the State may frame a law, which will nonetheless be tested on the anvil of Article 19(2).

This raises the following question: in K.A. Abbas, the Court held pre-censorship to be valid in the case of cinema on the ground that films had a much more striking impact upon the average “illiterate” Indian viewer. In other words, the difference in medium was held to justify a difference in the form of the restriction – in particular, doing away with the proximity test, or at least, diluting it to an unrecognisable degree. The logic of Justice Nariman’s judgment, I would suggest, knocks the bottom out of the prior-restraint regime of film-censorship. It is not as if films permit the commission some specific kinds of offences that were not possible before (unlike the internet). In fact, the Court’s reasoning in K.A. Abbas was specifically based on an (unproven) assumption of how an “illiterate” audience reacts differently to the written word and the visual image. Cases after K.A. Abbas (such as Anand Patwardhan’s Case) have rejected the “illiterate Indian trope”, thus undermining the foundations of that holding. The 66A judgment, however, rejects that form of reasoning entirely.


Constitutionally, what follows? I would suggest the following. Ever since Ram Manohar Lohia, there has been a gradual, incremental chipping away at the philosophical foundations of some of our most regressive, speech-restricting laws. Consider the following:

(a) Ramji Lal Modi upheld 295A on the ground that proximity was irrelevant, specifically rejected an over-breadth argument, and held that deliberate insults to religion had a “calculated tendency” to cause public disorder.

(b) Kedar Nath Singh upheld sedition (124A) on the ground that disaffection against the government had the “tendency” to public disorder.

(c) K.A. Abbas upheld pre-censorship of films on the ground of how the medium differently affects viewers; it rejected a challenge to the Censorship Guidelines on the ground of vagueness, and did not even consider an over-breadth argument.

(d) Contempt of court judgments (unfortunately, rather consistently) have held that certain forms of criticism against the court have a “tendency” to undermine justice.

(e)  Apart from Rajagopal’s Case, which is limited to public officials, the Supreme Court is yet to examine defamation law on the touchstone of Article 19(1)(a), and a criminal law of defamation continues to exist on the statute books. In countries such as the US, Canada, South Africa, and England, the “chilling effect” of the common law of defamation (strict liability) has been expressly invoked to limit its reach, and its propensity to be used as a tool of harassing journalists and investigative reporters.

At the same time, however:

(a) Ram Manohar LohiaS. Rangarajan and Arup Bhuyan (the latter two coming after Modi and Kedar Nath Singh) have insisted on a proximity requirement between speech and disorder.

(b) Chintaman Rao and Kameshwar Prasad have struck down statutes on over-breadth grounds (while not directly invoking the concept).

(c) Rajagopal’s case has incorporated the Sullivan rule to protect writers from civil defamation claims brought by public officials, and indirectly invoked the chilling effect.

This latter group of judgments, it is clear, have indirectly, implicitly undermined the foundations of the former. The 66A judgment makes it direct and explicit. Proximity, over-breadth, vagueness and the chilling effect are all expressly invoked to strike down a statute. They have been specifically incorporated into Indian free speech jurisprudence, and may be invoked in future free speech claims.

So perhaps, at long last, the time has come to rethink fifty-year old judgments upholding blasphemy and sedition laws, rethink criminal defamation, throw off the oppressive fetters of civil defamation and contempt of court, and attack the censorship guidelines of both cinema and cable TV.

This judgment lays the constitutional, legal and philosophical terrain to do all of that. It creates the ground upon which we can erect a progressive, liberal understanding of free speech, based upon a vision of individuals as responsible and autonomous beings, who do not need “protection” from moral corruption, and who do not need a paternalistic State or court telling them what they need to read, see or here. Individuals, one and all, worthy of dignity and equal concern and respect.

This is the first judgment since 1960 that unequivocally affirms every one of those propositions.

It is the judgment that has given Indian free speech law its soul back.

The Supreme Court’s IT Act Judgment, and Secret Blocking

As has been widely reported by now, yesterday the Supreme Court delivered a landmark judgment striking down Section 66A of the Information Technology Act, reading down S. 79 (intermediary liability) and upholding S. 69A (blocking of websites). I will be writing a detailed analysis of the jurisprudence behind the Court’s striking down of S. 66A in a while. In this post, however, I want to briefly comment on S. 69A and secret blocking.

S. 69A of the IT Act authorises the government to block access to websites, on grounds that roughly overlap with (but are not identical to) Article 19(2) of the Constitution (reasonable restrictions upon the freedom of speech). S. 69A(2) specifies that the procedure and safeguards for carrying out blocking will be specified. Pursuant to this, “Blocking Rules” were framed in 2009. The Blocking Rules prescribe who can make a blocking request, set up the (executive) authorities that will examine the requests, provide an opportunity for pre-decisional hearings for the intermediaries (and/or, if they can be traced, originators), and lay out the process for blocking. There are three crucial aspects that must be noted:

(a) The Rules do not provide for an appeals process.

(b) Rule 15 requires that Designated Officer to maintain records of blocking requests and actions taken, but

(c) Rule 16 stipulates that “strict confidentiality shall be maintained regarding all the requests and complaints received and actions taken thereof.”

As is obvious, the main problem with the Blocking Rules (among many others) is their secrecy. The rules require notice to the intermediary, but naturally, intermediaries are bound to be far more interested in avoiding confrontations with the government, and in self-preservation, than in defending the freedom of speech. Furthermore, Rule 16 requires confidentiality, thereby raising the presumption that nobody beyond the intermediaries ought to know about a block. For instance, when the Software Freedom Law Centre attempted to get access to blocking orders for 1208 blocked websites in 2013, it was denied on Rule 16 grounds. As has been well-documented, it is often difficult to even find out that a non-accessible website has been blocked, and even more difficult to find out why that has happened.

In this context, what does the Court’s judgment, upholding both S. 69A and the Rules in their entirety, mean? At Medianama, Nikhil Pahwa argues that in effect, secret blocks will now continue, just as they were happening before.

There are, however, two important aspects that ought to be noted.

First, consider Rule 8 of the Blocking Rules:

On receipt of request under rule 6, the Designated Officer shall make all reasonable efforts to identify the person or intermediary who has hosted the information or part thereof as well as the computer resource on which such information or part thereof is being hosted and where he is able to identify such person or intermediary and the computer resource hosting the information or part thereof which have been requested to be blocked for public access, he shall issue a notice…”

The text of the Rule uses the phrase “person or intermediary”, thus implying that notice may be sent to either the originator or the intermediary. This – as explained above – is deeply problematic. In his article, Nikhil writes:

If my site is blocked, don’t I have the right to know why it’s been blocked?, a company owned by the People Group (, was blocked in India for six months and didn’t know why for the longest time. Where was their Committee hearing? Where was the hearing for Vimeo, Github, Dailymotion (read), Imgur (read)? Shouldn’t they be informed of the process of getting a block removed?”

In Paragraph 110 of the judgment, however, the Court notes:

“It is also clear from an examination of Rule 8 that it is not merely the intermediary who may be heard. If the “person” i.e. the originator is identified he is also to be heard before a blocking order is passed.”

In other words, the Court takes the disjunctive “or” in the Rule, and effectively transforms it into a conjunctive “and”. It therefore seems to be the case that henceforth – insofar as they can be identified, originators must also be notified of blocks, and given the opportunity to challenge them.

I would suggest, however, that the logic of the judgment goes even further. Consider Paragraph 109, where the Court holds S. 69A and the rules constitutional:

“It will be noticed that Section 69A unlike Section 66A is a narrowly drawn provision with several safeguards. First and foremost, blocking can only be resorted to where the Central Government is satisfied that it is necessary so to do. Secondly, such necessity is relatable only to some of the subjects set out in Article 19(2). Thirdly, reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution.”

It is the “thirdly” that is crucial. The Court specifies that blocking orders must be reasoned, and in writing, so that they may be challenged under Article 226. Now, who may challenge a blocking order? Obviously, an intermediary and/or the originator are entitled to do so. But consider also paragraph 20 of the judgment, when the Court starts its examination of S. 66A:

“It is clear, therefore, that the petitioners are correct in saying that the public’s right to know is directly affected by Section 66A. Information of all kinds is roped in – such information may have scientific, literary or artistic value, it may refer to current events, it may be obscene or seditious. That such information may cause annoyance or inconvenience to some is how the offence is made out. It is clear that the right of the people to know – the market place of ideas – which the internet provides to persons of all kinds is what attracts Section 66A.”

The underlined portions tap into an established principle of Indian free speech jurisprudence: that Article 19(1)(a) guarantees not only the rights of speakers to express themselves, but also the rights of listeners (or, in the case of the internet, viewers) to access information (other Constitutions – such as the German and the South African – expressly include listeners’ rights as an aspect of the freedom of expression).

For instance, in LIC vs Manubhai D. Shah, while dealing with the rejection of a right of reply, the Supreme Court noted: “such an attitude on the part of the LIC can be described as both unfair and unreasonable; unfair because fairness demanded that both view points were placed before the readers, however limited be their number, to enable them to draw their own conclusions and unreasonable because there was no logic or proper justification for refusing publication… the respondent’s fundamental right of speech and expression clearly entitled him to insist that his views on the subject should reach those who read the magazine so that they have a complete picture before them and not a one sided or distorted one…

And, in State of UP vs Raj Narain, Justice Mathew, in his concurring opinion, noted:

In a Government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries.”

Examples can be multiplied, but suffice it to say that the right to information, and its corollary, the rights of readers and viewers to access information, constitute part of the right to freedom of expression under Article 19(1)(a). But if that is true, then a website block implicates the constitutional rights not only of intermediaries and originators, but also of the general public – each member of which, for that reason, has the right to challenge the blocking under Article 226, as the Court specifically upheld. Now, it is impossible to challenge a blocking order unless one has access to it. Consequently, when the Court says that blocking orders must be reasoned and in writing, so that they may be challenged under Article 226, it follows by necessary implication that the blocking orders must be made available to the public.

The doctrine of necessary implication is well-accepted in statutory interpretation. A statute is understood to contain not only what is express, but also that which is necessary to effectuate its “object or purpose”, or to make effective the rights (or privileges) that it grants. This doctrine would apply with even greater force to subordinate legislation, such as the Blocking Rules. Consequently, it may well be argued that even though the Court did not expressly overrule Rule 16, the logic of its judgment – in light of settled jurisprudence on Article 19(1)(a) – means that it did so impliedly. Admittedly, neither necessary implication nor implied overruling are to be lightly invoked, but in this case, not only does this conclusion seem to follow inexorably from the Supreme Court’s Article 19(1)(a) jurisprudence, but the fact that what is at issue is a subordinate legislation, the normal presumptions against necessary implication/implied overruling are consequently weaker.

This, of course, is probably an over-optimistic reading of the judgment. So perhaps the best way of settling this issue might well be through a clarification petition.


Privacy and Bodily Integrity – I: Compelled Medical Evidence under S. 112 of the Evidence Act

Previously on this blog, we have discussed  the constitutional right against self-incrimination in the context of intrusive interrogation techniques, such as narco-analysis, polygraph tests and brain-mapping, and how they impinge upon the citizens’ informational and mental privacy. In particular, we saw how the Supreme Court’s jurisprudence has tracked two distinct ideas, or purposes, that could underlie Article 20(3) of the Constitution, which guarantees the right against self-incrimination: a crime-control model, which takes the goal of the criminal law to be efficient and accurate fact-finding, and therefore tolerates only those procedural safeguards and limitations that can contribute to discovering the truth; and a due process model, which views procedural safeguards as essential to protect citizens’ basic rights against an increasingly ubiquitous and intrusive State.

Within this conceptual framework, consider S. 112 of the Evidence Act, which states:

“Birth during marriage, conclusive proof of legitimacy — The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”

Under S. 4 of the Evidence Act, conclusive proof of a fact precludes any evidence from being given for the purposes of disproving that fact. In other words, it is an irrebuttable legal presumption.

What might be the basis for creating such a presumption? Consider the following argument: the privacy of marriage and the family (as upheld by Gobind vs State of Madhya Pradesh to fall within Article 21) would preclude judicial cognisance of evidence for or against paternity, since that question is quintessentially within the domain of the family. But that, in itself, doesn’t explain why there is a presumption of legitimacy.

Perhaps, though, the underlying rationale of the Section isn’t about maintaining the privacy of family life, but the privacy of information that is deeply personal to the child. Cognisant of the social stigma that accompanies a declaration of illegitimacy, the Section states that whatever might be the actual state of affairs, in the absence of a narrowly circumscribed range of exceptions, the child will be presumed to be legitimate. Alternatively, consider still another justification: in 1872, when the Evidence Act was drafted, there was no way of proving paternity. Blood samples and DNA tests were unknown. Consequently, perhaps the Section acknowledges that fact, and fixed a presumption on the side of the more likely, and administratively more efficient, outcome – that of legitimacy.

As we can see, the former rationale closely approximates the due process model, with its focus on protecting individual rights. The latter, on the other hand, is closer to the crime-control model (albeit in a civil context), as it is motivated by concerns about the truth. This is not a theoretical debate because, as we shall see, the underlying purpose of S. 112 becomes relevant in contemporary times, when it has become possible to ascertain parentage and legitimacy by using scientific methods, such as DNA tests.

The first Supreme Court case to examine the issue in detail was Goutam Kundu vs State of West Bengal (decided in 1993). The appellant and the respondent were married. The respondent went to her parents’ house to study for her exams, during which time she conceived (despite pressures from her in-laws to have an abortion). She applied for – and was granted – maintenance. The Appellant filed a criminal miscellaneous petition asking for a blood test to prove paternity. He argued that if it was proved that he was not the father of the child, he would not be obliged to pay maintenance. His petition was rejected by the High Court and, consequently, he approached the Supreme Court.

The Supreme Court commenced by observing that unlike in the United Kingdom and the US, there was no statutory authorisation granted to the Courts, to direct the taking of blood samples. It then cited the 1975 Kerala High Court judgment of Vasu vs Santha, where the Court had provided two rationales for S. 112: first, for “considerations of public policy… there are a variety of reasons why a child’s status is not to be trifled with. The stigma of illegitimacy is very severe and we have not any of the protective legislations as in England to protect illegitimate children. No doubt, this may in some cases require a husband to maintain children of whom he is probably not their father. But, the legislature alone can change the rigour of the law and not the court.” And secondly, “before a blood test of a person is ordered his consent is required. The reason is that this test is a constraint on his personal liberty and cannot be carried out without his consent. Whether even a legislature can compel a blood test is doubtful… the maximum that can be done where a party refuses to have a blood test is to draw an adverse inference.” Both these reasons, very obviously, are located within the due process model, focusing on informational privacy (avoiding social stigma) and bodily privacy interests.

The Court then noted that a “rebuttable presumption” existed that a child born during wedlock was legitimate, and that “access occurred between parents” – a presumption that could be displaced only by a “strong preponderance of evidence.” Notice that this is not entirely correct: there is a rebuttable presumption of access, where the onus is upon the one challenging paternity to displace it, but in case he cannot do so, there is then an irrebuttable presumption of legitimacy.

In the present case, since there was no evidence showing non-access, the Court declined to order the blood test. In conclusion, it laid down five principles: first, that a court could not order a blood test “as a matter of course“; secondly, that a request for a blood test as part of a “roving enquiry” would not be entertained; thirdly, that there would have to be a “strong prima facie case“, i.e., the husband must establish non-access in order to displace the presumption; fourthly, the Court would examine the consequences of ordering the blood test, and whether “it will have the effect of branding a child as a bastard and the mother as an unchaste woman“; and lastly, nobody could be compelled to give a blood sample for analysis (based, as we have discussed above, upon the right to bodily liberty/privacy). Presumably though, as held in previous cases, an adverse inference could be drawn upon refusal.

While much of this sounds straightforward and sensible, there is a curious slip between the third and the fourth principles. In the third, the Court correctly holds that in order for the question of a blood test even to arise, the husband must establish non-access, so as to refute the irrebuttable presumption of legitimacy. But the Court then also holds that it would examine the consequences of passing such an order, based upon concerns relating to informational privacy. Yet consider this: if the purpose of the irrebuttable presumption of legitimacy was to preserve the informational privacy of the child and mother, and save them from social stigma, then the consequences of allowing any kind of evidence (including a blood test) to be led, had already been considered by the legislature while drafting S. 112. In other words, the balance between protecting individual privacy, and ascertaining legitimacy (with all its attendance adverse consequences for the wife and child) was already written into the text of the statute, through a two step procedure, the first of which required the husband to prove non-access, and the second of which barred any evidence from being led on the question of legitimacy, if he could not do so. But if that was the case, then the Court was not entitled to re-open a question that had already been settled by the legislature. By considering the “consequences” of ordering a blood test (in light of its impact upon privacy), the Court was balancing the same concerns that had already been balanced while drafting the statute.

Consequently, the only way to reconcile the Court’s dictum with statutory interpretation is to hold that the irrebuttable presumption of legitimacy speaks not to the protection of privacy, but to the ascertainment (or, in 1872, the inability of ascertaining) the truth. Under this interpretation, the Court was then adding an additional layer of judicially-evolved safeguards by holding that even in cases were non-access was proved, the consequences of allowing evidence to be led (in terms of their impact upon individual privacy) would be judicially assessed, before any order could be given. But as we shall see, the failure of the Court to lay out a clear conceptual foundation underlying the scheme of 112 would eventually lead to a conflicted jurisprudence.


Freedom of Religion and Non-Discrimination: The Haji Ali Dargah’s Decision to Ban Women from Access to the Inner Sanctum

In 2012, the Haji Ali Dargah Trust, which administers the shrine of Saint Haji Ali, barred women from entering the the inner sanctum of the dargah, which houses the tomb of the saint. In November 2014, the Bharatiya Muslim Mahila Andolan filed a PIL before the Bombay High Court, challenging this decision. The hearings are ongoing, and the Court will issue directions on April 1. In this post, I will attempt to argue that the PIL should succeed, and that the Court ought to issue directions to the State authorities to ensure that women are not barred from offering prayers in the inner sanctum.

In order to succeed, the petitioners must prove the following propositions: first, that the right to offer prayers in the sanctum of the Haji Ali Dargah is protected under Article 25 of the Constitution (right to freedom of religion) or, at any rate, is a right at common law; secondly, this right is not overridden by any rights that the Dargah Trust might have under Article 25 or 26 (i.e., the freedom of religious denominations to manage their religious affairs); and thirdly, that the petitioners are entitled to enforce their rights against the State, by requiring the State to guarantee and facilitate their access to the inner sanctum of the dargah.

On the first proposition: As the Supreme Court has held in a number of cases, such as The Commissioner, Hindu Religious Endowments vs Lakshmindra SwamiarJagannath Ramanuj Das vs State of Orissa and Sardar Saifuddin vs State of Bombay, the right to worship, and modes of worship, are protected under Article 25 of the Constitution. Admittedly, it has also been held that the right to worship doesn’t extend to any and every place. But in Ismail Faruqui vs Union of India, while holding that a mosque was not an essential and integral part of the practice of Islam, the Court also held that if a particular place had a “particular significance for that religion”, access to that place for the purposes of worship would be protected under Article 25. It is fairly well-established that the inner sanctum/tomb of a dargah does bear special significance for the followers of the saint in question. Consequently, the petitioners would have an Article 25 right to offer prayers at the tomb.

Even if the right to offer worship at a particular place does not have the status of a constitutional right under Article 25, it remains – at the very least – a civil right, enforceable by a suit. This was the stated position in Das Gupta J.’s judgment in Sardar Saifuddin vs State of Bombay (pointed out above). According to the learned judge, in construing the provisions of the Bombay excommunications legislation, “a right to office or property or to worship in any religious place or a right to burial or cremation is included as a right legally enforceable by suit.”

In a separate case – in the context of Hindu denominational temples (Venkatramana Devaru vs State of Mysore), the Court noted, in general terms, that if it is found thatall persons are freely worshipping in the temple without let or hindrance, it would be a proper inference to make that they do so as a matter of right.” There is nothing in the logic of this proposition that limits it to temples. Consequently, the petitioners have a fundamental right under Article 25, to offer prayers in the inner sanctum of the Haji Ali dargah. Failing this, they have a common law right against obstruction of access to this place of worship by other private parties.

On the second proposition: as stated above, in part, it is now a well-accepted position of law that insofar as Articles 25 and 26 protect not just matters of doctrine or belief, but also to acts done in pursuance of religion (such as, allegedly, the exclusion of women from the inner sanctum), such constitutional protection is limited to rituals and observances, ceremonies and modes of worship which are integral parts of religion.” This has been upheld in the cases discussed above – Lakshmindra Swamiar, Mahant Jagannath Ramanuj Das, Venkataraman Devaru; Sardar Saifuddin, etc., and is a proposition of law, is beyond argument. The logic of this argument was explained by Dr. Ambedkar in the Constituent Assembly Debates. He pointed out that unless constitutional protection was limited to essentially religious practices, religion would end up covering an unconscionably vast range of the lived existence of most people..

The distinction has been explained by Justice Sinha, in his dissenting opinion (although not on this point) in Sardar Saifuddin vs State of Bombay. The learned judge noted: “We have therefore, to draw a line of demarcation between practices consisting of rites and ceremonies connected with the particular kind of worship, which is the tenet of the religious community, and practices in other matters which may touch the religious institutions at several points, but which are not intimately concerned with rites and ceremonies the performance of which is an essential part of the religion.”

Consequently, whether the Dargah Trust has an Article 26 (or 25) right to exclude women from the inner sanctum would depend upon whether controlling access to the sanctum amounts to an “essential religious practice”. I suggest that it does not. In Lakshmindra Swamiar, the Supreme Court noted that what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion(paragraph 20) To answer this question, Courts have examined the foundational texts of a religion, as well as customary practices. For instance, in Ram Prasad Seth vs State of UP, the Allahabad High Court analysed extracts from the Manusmriti, the Dattak Mimamsa etc., in order to find that polygamy was not an essential part of Hindu religion. In cases involving Islam, the Courts have consulted the Qur’an and its suras. For example, in Mohd. Hanif Qureshi vs State of Bihar, the Supreme Court relied upon the Quran to hold that sacrificing a cow on Bakr’id was not an essential part of the Islamic religion.

In this case, there are two crucial facts that indicate that the exclusion of women from the inner sanctum of the dargah is not an essential religious practice. As the petitioners have pointed out, the Qur’an and the Hadith, which list the core of the practices and beliefs that constitute Islam (that is, according to the Supreme Court), do not prescribe the exclusion of women from places of worship. And secondly, as the petitioners have also demonstrated,  65% of the dargahs surveyed by them across the city of Bombay, do not restrict women’s access to the inner sanctum.

This argument is buttressed by the fact that the Trust has made three arguments to support its exclusion of women from the inner sanctum. Apart from the argument that it is required by Islam (which has been rebutted above), it has also been argued that because women “are inappropriately dressed“; and that this step is being taken for their safety and security (and their “chastity”). It is clear that neither of these two reasons are “essentially religious” in nature, and therefore, fall outside the ambit of Articles 25 and 26 altogether.

In sum, the exclusion of women from the inner sanctum is neither sanctioned by the authoritative sources of Islamic religious doctrine, and nor by the present practices of a majority of dargah administrations. Therefore, in accordance with the settled jurisprudence of the Supreme Court, it is not an “essential religious practice” that is protected under Article 25 or 26.

As to the third proposition: once it has been established that the petitioners have a constitutional right to offer prayers in the inner sanctum of the Haji Ali Dargah, and that the administrators have no corresponding right to exclude them, the onus lies upon the State officials to effectuate that right by ensuring that its exercise is not obstructed by private parties (such as the Trust functionaries. This proposition was upheld by the Supreme Court in Vishakha vs State of Rajasthanand subsequently in Medha Kotwal Lele vs Union of India.

Therefore, on legal and constitutional grounds, the PIL should succeed. The petitioners have a fundamental right to access the tomb and the inner sanctum of the dargah. The respondents have no equivalent right to exclude them. Contrary to their claims, under the existing position of law, the Court would not be “interfering in a religious matter” if it was to order access. Consequently, the Court ought to direct the relevant State authorities to ensure that the petitioners are allowed to exercise their fundamental rights, including the right of access and prayer.

The Supreme Court’s Judgment on Jat Reservations: Problems and Prospects

Yesterday, in Ram Singh vs Union of India, the Supreme Court overturned a government decision to grant reservations to the Jat community in nine states (by including them in the Central List of Backward Classes [“Central List”]). The judgment has created a significant political stir. As a legal matter, however – and subject to observations in two paragraphs, which will be discussed at the end – the case was decided on specific, narrow grounds, and breaks no new ground as far as constitutional issues are concerned. In fact, the case is probably best classified as an administrative law judgment rather than a constitutional one.

The factual matrix of the case stretched back eighteen years. In 1997, in response to numerous petitions, the National Commission for Backward Classes [“NCBC”] carried out a study, at the end of which it recommended the inclusion of Jats in the Central List only for two districts of Rajasthan. Subsequently, in response to numerous representations to review this decision, on 19.7.2011, the NCBC decided to approach the Indian Council of Social Science Research (ICSSR), asking them to conduct a survey in various states (UP, Haryana, Madhya Pradesh, Rajasthan, Himachal Pradesh and Gujarat), in order to determine the socio-economic status of Jats. By a subsequent Cabinet decision, the states of Bihar, Uttarakhand and NCT of Delhi were also referred to the NCBC.

The ICSSR submitted a report (but made no specific recommendations about inclusion/exclusion in the Central List). The report was discussed by the NCBC, which also held public hearings. At the end of this process, on 26.2.2014, the NCBC submitted a report to the government, stating that “the Jat Community had not fulfilled the criteria for inclusion in the Central List of OBCs.”  But on 2.3.2014, the cabinet rejected this report, on the ground that it did not take into account “ground realities.” Two days later, via a notification, Jats were placed in the Central List for the nine states.

At this point, it is important to note the status of the NCBC. It is a statutory body, established under the National Commission for Backward Classes Act, 1993. Under S. 9(2), it is provided that when it comes to inclusion or exclusion from the Lists, “the advice of the Commission shall ordinarily be binding upon the Central Government.” This closely followed the judgment of the Supreme Court in Indra Sawhney vs Union of India, where Justice Jeevan Reddy, commenting on the need for just such a specialised body, had observed that “its advice/opinion should ordinarily be binding upon the Government. Where, however, the Government does not agree with its recommendation, it must record its reasons therefore.

Judicial review of administrative or executive action follows certain well-settled principles. Judges may not substitute their wisdom for that of the authorised decision-making body, and nor may they intervene to correct what they perceive to be a mistake of policy, or a mistake in interpreting existing data. However, if the administrative decision is made in ignorance of relevant material, or is based upon patently irrelevant material (or, for that matter, is made mala fide), then the Court may set it aside. What the NCBC Act does is to statutorily mandate that the report of the NCBC constitutes “relevant material” that the government is bound to adhere to, unless there are good reasons for the contrary (presumably, other relevant material). As the Court correctly noted, in paragraph 26, “the advice tendered by the NCBC is ordinarily binding on the Government meaning thereby that the same can be overruled/ignored only for strong and compelling reasons which reasons would be expected to be available in writing.” Consequently, all the Court needed to do was to verify whether the government had actually provided relevant reasons for departing from the NCBC’s report.

This is exactly what the it proceeded to do. First, it extracted the state-wise summary of findings of the ICSSR. While acknowledging that elements of “backwardness” (in terms of representation in government jobs, school dropout ratio etc.) existed with respect to the Jat Community in some of the states, the ICSSR also clarified that only limited material was available before it, and declined to make specific recommendations. On the basis of the ICSSR Report, along with other reports available to it, the NCBC decided that the evidence did not justify the Jat Community’s claim to “social backwardness”, for the purposes of Article 16 of the Constitution.

After a detailed examination of the NCBC’s reasons, as well as its analysis of the primary material, the Court noted:

Undoubtedly, the report dated 26.02.2014 of the NCBC was made on a detailed consideration of the various reports of the State Backward Classes Commissions; other available literature on the subject and also upon consideration of the findings of the Expert Committee constituted by the ICSSR to examine the matter. The decision not to recommend the Jats for inclusion in the Central List of OBCs of the States in question cannot be said to be based on no materials or unsupported by reasons or characterized as decisions arrived at on consideration of matters that are, in any way, extraneous and irrelevant… It may be possible that the NCBC upon consideration of the various materials documented before it had underplayed and/or overstressed parts of the said material. That is bound to happen in any process of consideration by any Body or Authority of voluminous information that may have been laid before it for the purpose of taking of a decision. Such an approach, by itself, would not make either the decision making process or the decision taken legally infirm or unsustainable. Something more would be required in order to bypass the advice tendered by the NCBC… An impossible or perverse view would justify exclusion of the advice tendered but that had, by no means, happened in the present case. The mere possibility of a different opinion or view would not detract from the binding nature of the advice tendered by the NCBC.” (Paragraph 46)

Additionally, the government’s contention that Jats were on the State Lists of eight out of the nine states was rejected by the Court, on the ground that those lists were made more than a decade ago, and that “a decision as grave and important as involved in the present case which impacts the rights of many under Articles 14 and 16 of the Constitution must be taken on the basis of contemporaneous inputs and not outdated and antiquated data.” (Paragraph 48) The Court also found that the minutes of the Cabinet meeting held just before the Notification reflected a focus on the educational “backwardness” of the Jat community by highlighting school, college and graduate enrollment (Paragraph 49). The “backwardness” contemplated under Article 16, however, was social backwardness. Consequently, the Court held that the cabinet notification ignored relevant material (the NCBC report) and, in turn, based itself upon irrelevant material (educational parametres and decade-old data); consequently, following the well-established principles of judicial review that we have discussed above, it set aside the notification.

So far, so standard. However, there are three further issues, highlighted in paragraph 54 of the judgment, that call for specific comment. First, the Court notes:

“Though caste may be a prominent and distinguishing factor for easy determination of backwardness of a social group, this Court has been routinely discouraging the identification of a group as backward solely on the basis of caste. Article 16(4) as also Article 15(4) lays the foundation for affirmative action by the State to reach out the most deserving. Social groups who would be most deserving must necessarily be a matter of continuous evolution. New practices, methods and yardsticks have to be continuously evolved moving away from caste centric definition of backwardness.”

While these lines have garnered a fair degree of attention in the press, it is important to note that this is simply a reaffirmation of the Court’s consistent position, spanning the last fifty years. As fas back as M.R. Balaji vs State of Mysore, in 1963, the Supreme Court held that a purely caste-based policy of reservations would violate the Constitution. While this blanket position was undermined in N.M. Thomas and Indra Sawhney, the position remains that while castes, which are generally “socially and occupationally homogenous classes” (Indra Sawhney, para 84), can constitute a convenient starting point for a reservations, the ultimate criterion is class backwardness. This means that caste groupings do not exhaust the scope of reservations under the constitutional scheme; and conversely, to the extent that a caste wishes to claim the benefits of the reservation scheme, it must demonstrate that qua class, it suffers from the social backwardness that Article 16 envisages. The failure of the Jat Community to demonstrate this latter point was what prompted the Court to observe, in another statement that has been widely quoted over the last twenty-four hours, that “an affirmative action policy that keeps in mind only historical injustice would certainly result in under-protection of the most deserving backward class of citizens, which is constitutionally mandate.”

The former aspect – that castes do not exhaust the scope of reservations – leads to the second important observation in the paragraph: the Court’s invocation of last year’s NALSA judgment, on the rights of the transgender community. The Court observes:

“New practices, methods and yardsticks have to be continuously evolved moving away from caste centric definition of backwardness. This alone can enable recognition of newly emerging groups in society which would require palliative action. The recognition of the third gender as a socially and educationally backward class of citizens entitled to affirmative action of the State under the Constitution in National Legal Services Authority vs. Union of India is too significant a development to be ignored. In fact it is a path finder, if not a path-breaker. It is an important reminder to the State of the high degree of vigilance it must exercise to discover emerging forms of backwardness. The State, therefore, cannot blind itself to the existence of other forms and instances of backwardness.”

This is a crucial point, because after the judgment in NALSA, the Union of India filed a clarification petition asking whether the placement of the transgender community within the Lists would have to first go through the NCBC. Here, the Court seems to clearly state that as per NALSA, the third gender has been judicially recognised as a socially/educationally backward class, entitled to affirmative action. This would suggest that the NCBC does not need to make a separate finding on the point, since the Supreme Court has already done so. But even apart from this, in May 2014, the NCBC did make a finding that transgender persons ought to be provided reservations. In accordance with yesterday’s judgment, the NCBC’s finding will be binding upon the government, unless overriding reasons are demonstrated. Consequently, the clarification petition ought to be disposed off as soon as possible, with appropriate directions to the government to add the transgender community to the Central List.

Secondly, the Union also observed that transgender persons do not “maintain a caste or community identity”, but at the same time might belong to specific SC/ST/OBCs. Here is where the Court’s focus on “new yardsticks” to measure backwardness becomes crucial, as does its acknowledgment – also in paragraph 53 – that social classes might be “internally heterogenous” (and based on gender). In other words, both substantively and procedurally, paragraph 53 amounts to a strong endorsement of the right of the transgender community to affirmative action, and takes the promise of NALSA vs Union of India a significant step forward.

And lastly, in the penultimate paragraph (54), after affirming that “backwardness” ought not to be judged relative to other groups, but on absolute parametres, the Court observes:

“[the] inclusion of the politically organized classes (such as Jats) in the list of backward classes mainly, if not solely, on the basis that on same parameters other groups who have fared better have been so included cannot be affirmed.”

It is interesting that among all the adjectives that the Court might have chosen to describe the Jats, it picks “politically organised”. This opens up a plethora of fascinating questions, the first among which is: is political power, or access to political power, the main criterion for determining “social backwardness”? Is a politically organised group, just for that reason, no longer “socially backward”? And if not – recall that the very origins of judicial review lie in the understanding that “discrete and insular minorities“, who are likely to be sidelined or marginalised by the normal workings of the political process, need additional protection from the brute majoritarianism. Is there some conceptual connection with that idea, which is in the Court’s mind? Does the Court mean to say that groups who have managed to gain access to political power are expected to now leverage it in order to lift themselves out of their social backwardness? Or is the Court concerned that politically organised groups will use their clout to win reservations for themselves even when they don’t need it (a fear that is also visible in some US affirmative action cases)? The Court does not answer any of these questions here, but it will be interesting to see what importance – if any – it might accord to the political influence of groups claiming backward status, in the future.


The Supreme Court on Reservation Benefits for the Reconverted

In an interesting judgment delivered last month, a two-judge bench of the Supreme Court held that, subject to certain conditions, an erstwhile Christian who “reconverted” to Hinduism was eligible for Scheduled Caste reservation benefits. On March 12, the Indian Express carried a highly critical appraisal of the judgment. For reasons that I will shortly explain, I do not agree with the article. On the contrary, I feel that in terms of the limited question before it, the case was correctly decided – and furthermore, it also contains the germs of a new, progressive jurisprudence dealing with conversions and affirmative action.

The appellant, K.P. Manu, had a great-grandfather who belonged to the Hindu Pulaya community (which is a Scheduled Caste). His son – i.e., the appellant’s grandfather – converted to Christianity. The appellant’s father was also a christian. But at the age of 24, the appellant “reconverted” to Hinduism. He applied for a caste certificate from his community and from the local tehsildar, both of whom issued it to him. This was challenged before a Scrutiny Committee, which recorded a finding that the caste certificate was incorrectly issued, on the ground that the appellant’s father and grandfather had been christians, and that even after his “reconversion”, the appellant had married a Christian woman.

On the basis of the Scrutiny Committee’s report, the State Government directed the appellant’s employer to remove him from service and recover Rs. 15 lakhs from him. This was challenged before the High Court, which affirmed the Committee’s findings. Consequently, the appellant approached the Supreme Court.

Therefore, the Supreme Court was faced with a very narrow question: is a reconvert from Christianity entitled to reservation benefits if his original/ancestral caste is a Scheduled Caste? To answer the question, the Court analysed a number of its previous judgments dealing with the issue of conversions and affirmative action. According to the established jurisprudence of the Supreme Court, “ordinarily”, conversion from Hinduism would mean an expulsion from one’s caste. This was not a hard-and-fast rule though, since admittedly, the caste system been partially incorporated into other religions as well. Consequently, the question would be decided on a case-to-case basis, depending upon the “structure of the caste, and its rules and regulations.”

Because, ultimately, the structure of the caste, and its rules and regulations, were all internal matters, the Court held that a “reconvert” from Christianity would be treated as belonging to his original caste if “the members of the caste accept him.” (paragraph 13) The basic principle, as explained by a prior Constitution Bench decision, was that on conversion from Hinduism, one’s original caste was “eclipsed”, and if “during his/her lifetime the person is reconverted to the original religion the eclipse disappears and the caste automatically revives.”

The State argued that the Court’s prior decisions were limited to reconversion either within the same generation, or – at most – situations where one’s parents converted to Christianity, and one converted back. It contended that the “eclipse theory” could not be extended beyond a generation. In paragraph 33, the Court rejected this contention, holding that “as we understand the authority it does not lay down that it only would apply to the parents and exclude the grandparents.” The Court observe – in my opinion, correctly – that caste stigmas tended to persist through generations (and even upon conversions) – and that therefore, “eclipse-and-revival” was not limited to a single generation. Therefore, it held:

“In our considered opinion, three things that need to be established by a person who claims to be a beneficiary of the caste certificate are (i) there must be absolutely clear cut proof that he belongs to the caste that has been recognised by the Constitution (Scheduled Castes) Order, 1950; (ii) there has been reconversion to the original religion to which the parents and earlier generations had belonged; and (iii) there has to be evidence establishing the acceptance by the community. Each aspect according to us is very significant, and if one is not substantiated, the recognition would not be possible.” (para 34)

All three, of course, were empirical questions.

In my opinion, it is difficult to find fault with either the reasoning or the conclusion. On the specific issue of reconversion and the benefits of reservation, the Court was bound by previous three-judge and Constitution Bench decisions. The innovation in this case is the holding that eclipse-and-revival does not cease if there is a generational gap between conversion and reconversion. I think that the Court is correct to ground this in the fact that social and economic disabilities – which is the entire raison d’etre for reservations – do not disappear with conversion, even across generations.

The Indian Express article has two broad criticisms of the judgment. First, it argues that this constitutes an incentive to “ghar wapsi“. That may or may not be so, but as we have just discussed, that question was not res integra, since it has already been established that reservation benefits can be availed of in cases of reconversion. In any event, ought the Court have held that one is not entitled to reservation benefits on reconversion? That, to me, seems to be as morally fraught a position as the incentive-to-ghar-wapsi.

Secondly, the Express piece argues that in holding that a person loses reservation benefits upon conversion to Christianiaty (or Islam), the judgment enshrines a “majoritarian view” of religion. Since the Constitution treats Buddhism and Sikhism as falling within the category of “Hinduism”, it discriminates against non-Indic religions by creating a situation where a person will not lose reservation benefits if she converts to Buddhism/Sikhism, but will if she converts to Islam/Christianity. The piece also argues that it is incorrect to assume that social and economic disabilities disappear on conversion. The focal point of its criticism is contained in the following quote that it excerpts:

“The court observes: “Once such a person ceases to be a Hindu and becomes a Christian, the social and economic disabilities arising because of Hindu religion cease, and hence it is no longer necessary to give him protection…””

At this point, it is crucial to note that this was not an observation of the Court. It is a quote from the previous judgment of Arumugam vs Rajgopal, a previous three-judge bench that the present Court was bound by. Now there is no doubt that this is a very unfortunate legal position, and as a matter of simple fact, patently untrue. Caste-based social and economic difficulties are far too deeply entrenched to be ameliorated by a formal conversion. So, the Indian Express piece is correct to note that:

“Caste consciousness is part of our everyday lives; its universality renders it normal. However much we may delude ourselves, we are all scarred by it. Dalits, irrespective of their religious beliefs, are oppressed victims of deep prejudice and the irrational, wicked belief in Dalit inferiority. To make the argument that the caste system is not recognised by Christianity and Islam is to ignore the realities of the country.”

That said, however, the question of losing caste – and thereby, reservation benefits – upon conversion was not before the Court, and it could not have decided upon it. Furthermore, being a two judge bench, it was entirely bound by precedent, and could not have changed this position even if it wanted to.

That said, a close reading of the judgement reveals that the Court was acutely aware of the problem, and to the extent possible, attempted to craft the beginnings of an alternative jurisprudence. From paragraphs 22 to 31, it quoted B.R. Ambedkar, James Massey, Archbishop George Zur, the Mandal Commission, a Church of the South India Commission, the Chinnappa Commission Report, and a political scientist, all for the proposition that caste-disabilities do not disappear upon conversion. Summing up these observations, it observed in paragraph 32:

“We have referred to the aforesaid materials and the observations singularly for the purpose that there has been detailed study to indicate the Scheduled Castes persons belonging to Hindu religion, who had embraced Christianity with some kind of hope or aspiration, have remained socially, educationally and economically backward.”

The Court then used this fact to reject the State’s contention that the eclipse-and-revival theory was limited to a single generation. If the caste stigma was never lost, even upon conversion, then why ought there be a denial of the reservation entitlement upon reconversion.

While this seems to be in line with Arumugam’s Case, there is a crucial conceptual shift. In Arumugam’s Case, because the Court first held that reservation benefits are lost upon conversion because the social/economic disabilities disappear, its eclipse-and-revival conclusion must be based upon the corollary that on reconverting, one falls right back into those very disabilities that one had escaped in the first place by converting. In the present case, however, the Court extends the eclipse-and-revival theory to multiple generations on the very different reasoning that caste-based disabilities are not lost upon converting and, indeed, persist throughout generations. This is actually precisely in line with the Indian Express critique!

But if caste disabilities are not, as it turns out, lost upon converting, then the inevitable conclusion must be that reservation benefits should not be lost upon conversion. This is because, as the Court as held multiple times, the basis of reservations is social and economic backwardness, and “caste” is simply a convenient (but by no means only) marker of measuring such backwardness. Holding that reservation benefits remain even after conversion, because the ultimate justification (backwardness) is not altered, would be well in line with the Court’s core affirmative action jurisprudence and philosophy.

In K.P. Manu’s Case, the Court has recognised these realities, and its reasoning on eclipse-and-revival directly undermines the established jurisprudence on loss-of-benefits-upon-reservation. It represents the possibility of an alternative jurisprudence that is much more sensitive to the lived realities of caste, disabilities and discrimination.

Carving out an exception to the basic structure?: The Supreme Court’s judgment on Judicial Review and the Armed Forces Tribunal

On March 11, the Supreme Court held in Union of India vs Major General Shri Kant Sharma that Sections 30 and 31 of the Armed Forces Tribunal Act effectively excluded the jurisdiction of the High Courts to hear petitions challenging orders of the Armed Forces Tribunal. This judgment is worth a close scrutiny, because while it seems to carve out an exception to the well-accepted rule that judicial review under Articles 226 and 227 of the Constitution is part of the basic structure, the Supreme Court expressly denied that to be the basis of its decision.

The Armed Forces Tribunal Act is a law dealing with the adjudication of service-related disputes for members of the Armed Forces, as well as court martials, and matters incident thereto. The Act provides for the establishment of an Armed Forces Tribunal to adjudicate service matters with respect to the armed forces. Clearly, its functions are similar to that of the Central Administrative Tribunal (its composition is not, but since that aspect is not addressed by the judgment, we will not discuss it here).

The crucial sections at issue were Sections 30 and 31, which provided for appeals from the orders of the Tribunal. Section 30 states:

“Subject to the provisions of section 31, an appeal shall lie to the Supreme Court against the final decision or order of the Tribunal (other than an order passed under section 19).”

Section 31 likewise states:

“An appeal to the Supreme Court shall lie with the leave of the Tribunal; and such leave shall not be granted unless it is certified by the Tribunal that a point of law of general public importance is involved in the decision, or it appears to the Supreme Court that the point is one which ought to be considered by that Court.”

Sections 30 and 31, therefore, lay down the procedure for appealing an order of the Armed Forces Tribunal to the Supreme Court. Parallel to this, Section 33 excludes the jurisdiction of civil courts, and Section 34 provides the transfer of all pending cases (including cases in the High Courts) to the Tribunal, after the commencement of the Tribunal.

The question before the Court was whether Sections 30 and 31 barred the jurisdiction of the High Courts from hearing petitions (under 226/227) against the orders of the Armed Forces Tribunal. The Court began by pointing out certain specific provisions of the Constitution. Under Article 33 of the Constitution, Parliament may modify the operation of Part III to the armed forces. Article 227(4) of the Constitution, part of the provision dealing with the superintendence of the High Courts, provides that “nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.” Article 136(2), part of the provision dealing with special leave to appeal to the Supreme Court, provides that “nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.”

At this point, the following argument seems to be there to be made: admittedly, judicial review under Articles 226 and 227, and under Article 32, is part of the basic structure of the Constitution. But the Constitution itself, through various provisions, carves out an exception in the cases of the armed forces, where the scope of judicial review is to be regulated by statute (Articles 227(4) and 136(2)). Consequently, Parliament may, by law, bar the jurisdiction of the High Court to hear appeals from orders passed by the Armed Forces Tribunal.

Such an argument is open to objection. It also raises the fascinating question of whether an original constitutional provision can be unconstitutional because it violates the basic structure (if judicial review is part of the basic structure, than how can 227(4) and 136(2) be consistent with that?)). The Court, however, did not make this argument at all. Instead, it first affirmed the proposition that the Armed Forces Tribunal Act cannot take away the jurisdiction of the High Court under Articles 226 and 227 (paragraph 25).

The Court then cited a number of precedents for the proposition that although the jurisdiction of the High Court could not be taken away by any statute, in deciding whether or not to exercise its jurisdiction, the High Court must take into account the legislative intention behind the statute in question. Citing the prior case of Nivedita Sharma vs Cellular Operators Association of India, the Court observed that “when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.” (paragraph 25)

But what was the statutory forum in the present case? Here is where the judgment becomes somewhat murky. Paragraph 33 of the judgment is preceded by a heading called “Statutory remedy“. Here, the Court cited the case Union of India vs Brigadier P.S. Singh Gill, and extracted a lengthy set of paragraph that detailed the appeals procedure under Sections 30 and 31 of the Armed Forces Tribunal Act. But Sections 30 and 31, as we saw, provide for an appeal to the Supreme Court. Surely the provision of an appeal to the Supreme Court cannot be the “alternative statutory forum” to the jurisdiction of the High Courts! That would fly in the fact of the Chandra Kumar judgment, the entire history of the Tribunals Cases and, indeed, the fundamental proposition that Articles 226/227 are part of the basic structure.

But then what is the alternative statutory forum? The only possible answer has to be: the Armed Forces Tribunal itself. This, indeed, is what the Court implied earlier in the judgment. In paragraph 14, it stated that: “it is clear from the scheme of the Act that jurisdiction of the Tribunal constituted under the Armed Forces Tribunal Act is in substitution of the jurisdiction of Civil Court and the High Court.

But there is a serious problem here. And that is the L. Chandra Kumar judgment. In that case, as is well-known, a seven-judge bench of the Supreme Court held that Tribunals, as they were constituted an functioning, could act complementary to the High Courts, but not as substitutes. This was because:

“The constitutional safeguards which ensure the independence of the Judges of the superior judiciary, are not available to the Judges of the subordinate judiciary or to those who man Tribunals created by ordinary legislations. Consequently, Judges of the latter category can never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation. We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Articles 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded.”

This has been a constant position of law. In its recent judgment, striking down the National Tax Tribunals, the Supreme Court based its entire analysis on a detailed demonstration of how the Tribunals lacked the essential qualities of the Courts (judicial independence etc.), that would allow them to serve as effective substitutes.

The Court’s judgment, therefore, is question-begging. It takes the existence of the Armed Forces Tribunal to be evidence of an “alternative statutory forum” that is a “substitute” for the High Courts. On that basis, it holds that while the jurisdiction of the High Courts cannot be ousted, it should not exercise its jurisdiction because of the existence of the alternative forum! As I have endeavoured to show, in my opinion, both steps of the argument are ill-founded, and in conflict with established precedent. Furthermore, why wouldn’t exactly the same reasoning apply to the Central Administrative Tribunal? What was needed in this case, to complete the argument was a detailed analysis showing that the Armed Forces Tribunal, in its composition, structure and powers and functions, was an effective substitute for the High Court. This, however, was not done.

The Court buttressed its judgment by pointing to a possible “anomalous situation” that would be created by permitting the High Courts to exercise their jurisdiction. It observed, in para 37:

“If any person aggrieved by the order of the Tribunal, moves before the High Court under Article 226 and the High Court entertains the petition and passes a judgment or order, the person who may be aggrieved against both the orders passed by the Armed Forces Tribunal and the High Court, cannot challenge both the orders in one joint appeal. The aggrieved person may file leave to appeal under Article 136 of the Constitution against the judgment passed by the High Court but in view of the bar of jurisdiction by clause (2) of Article 136, this Court cannot entertain appeal against the order of the Armed Forces Tribunal. Once, the High Court entertains a petition under Article 226 of the Constitution against the order of Armed Forces Tribunal and decides the matter, the person who thus approached the High Court, will also be precluded from filing an appeal under Section 30 with leave to appeal under Section 31 of the Act against the order of the Armed Forces Tribunal as he cannot challenge the order passed by the High Court under Article 226 of the Constitution under Section 30 read with Section 31 of the Act. Thereby, there is a chance of anomalous situation.”

But surely, if the Armed Forces Tribunal passes an order, which is assailed to the High Court under Article 226, and either party is aggrieved by the High Court’s decision, then the petition to the Supreme Court will be against the High Court’s order, and not the Tribunal’s? Why would there be a need to appeal the order of the Tribunal before the Supreme Court, when the most proximate decision is that of the High Court?

In any event, whatever the merits of the anomalous situations, the other objections to the judgment remain. The Supreme Court has deprived members of the armed forces an important constitutional remedy against the violation of their rights. It’s justification for doing so, I would suggest with respect, is unconvincing.