Directive Principles of State Policy: An Analytical Approach – VI: Limiting Principles and Conclusion

S0 far, we have argued that the Directive Principles of State Policy ought to play a role as structuring values, which give concrete meaning to the abstractly-worded fundamental rights in Part III. But in that case, is there any difference that now remains between fundamental rights and directive principles, one may well ask – apart from the fact that laws cannot be struck down for violating the DPSPs? The Court answered that question in its 1982 case of Ranjan Dwivedi v. Union of India, well into the heyday of the Directive Principles era. Article 39A mandated the State to provide equal justice and free legal aid. In Ranajn Dwivedi, the petitioner’s claim to a State-paid counsel engaged at a fees commensurate with the fees the State was paying to its own counsel was rejected, the Court holding that:

“As is clear from the terms of Art. 39A, the social objective of equal justice and free legal aid has to be implemented by suitable legislation or by formulating schemes for free legal aid. The remedy of the petitioner, if any, lies by way of making an application before the learned Additional Sessions Judge.”

 In other words, the Court understood that shaping the State’s fiscal policy was most definitely beyond its remit. A similar set of concerns guided the Court’s decision in Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan. In that case, the Court invoked Articles 38, 39 and 46 to read into the right to life the right to shelter, and a correlative constitutional duty upon State instrumentalities to “provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter over [indigent persons’] heads to make the right to life meaningful, effective and fruitful.” In the same breath, however, it also held that “courts cannot give direction to implement the scheme with a particular budget as it being the executive function of the local bodies and the State to evolve their annual budget.” Thus, the Directive Principles played a structuring role in determining the contours of the right to life under Article 21, but insofar as enforcement of that right appeared to require decisions that, according to classical separation of powers models, belong to the legislative or executive branches, the Court said, thus far and no further.

This primarily institutional concern is reflected most vividly in the history of the right to education through the 1990s and the 2000s. In a series of cases such as Mohini Jain and Unnikrishnan v. State of AP, the Court invoked the Directive Principles to read into Article 21’s guarantee of a right to life, a right to education as well – but conspicuously refrained from going any further into an issue that would have profound economic and social implications, not to mention a massive reorientation of budgetary priorities. Eventually, it was the legislature that amended the Constitution to introduce Article 21A, codifying the right to education; and the Court’s task was to uphold the validity of legislation passed under that provision that imposed certain economic burdens upon private schools.

Conclusion

It has now become almost routine for the Supreme Court to invoke Part IV in its decisions – as routine as Articles 14 and 21. With the increasing role of the Directive Principles, the need for judicial discipline cannot be overstated. If the DPSPs are interpreted to mean everything, then they will end up meaning nothing. This series of posts has attempted to use constitutional text, history, precedent and philosophy to tether the DPSPs to a firm conceptual foundation, offering both a faithful description of existing practice, as well as prescriptive recommendations for the road ahead.

The Directive Principles, I have argued, serve three distinct roles in judicial interpretation. First, legislation enacted in service of the Directive Principles meets the “public interest” threshold in a fundamental rights challenge (importantly, its reasonableness must then be examined, and not on the touchstone of the Directive Principles). Secondly, if legislation is intelligibly susceptible to more than one interpretation, then the meaning that corresponds more closely to the DPSPs is to be preferred over others (although, as we discussed, the Court is yet to clarify the standard applicable to this enquiry). And thirdly, the DPSPs play a structuring role in selecting the specific conceptions that are the concrete manifestations of the abstract concepts embodied in the fundamental rights chapter. This is the best way to understand the Court’s dictum that fundamental rights “ought to be interpreted in light of the DPSPs.” There is thus a clearly delineated role for the Directive Principles in constitutional analysis.

The limits to this role are twofold: first, the Court may not strike down legislation for non-compliance with the DPSPs; and secondly, the Court may not incorporate the DPSPs to a point that requires it stepping outside its designated role under classical separation of powers theory – making policy choices and budgetary allocations (of course, the Court has not shrunk from this role more generally).

Such an approach, I suggest – although complex – is both intellectually defensible, and constitutionally faithful. Importantly, it ensures against the judicial drift that has blighted Articles 14 and 21, and is threatening to blight Part IV, with its recent, indiscriminate usage. Only time will tell, however, whether the Court follows this path.

Directive Principles of State Policy: An Analytical Approach – V: Framework Values in Operation

As discussed in the last essay, interpreting the DPSPs as framework values within which the nature and scope of Part III rights are determined, is perhaps the best way of understanding – and intellectually grounding – the Court’s approach that Mr. Seervai finds so unpalatable. In a series of cases, from Kesavananda Bharati through Minerva Mills and beyond, the Court has called for a “harmonious construction” of Parts III and IV, and regularly cited Granville Austin to observe that Parts III and IV “are complementary and supplementary” to each other, followed by vague pronouncements that leave it entirely unclear how this harmonizing is done, and what basis it has. If we view harmonizing as the Directive Principles providing the structural foundation within which fundamental rights are understood, it is not only one way of understanding what the Courts are doing, but also – as we have seen above – grounded in both text and history.

Although we have traced this interpretive approach to N.M. Thomas, we find glimpses of it throughout the Court’s jurisprudence. In his concurring opinion in Re Kerala Education Bill, for instance, Justice Aiyer refused to find a right to State recognition in minority educational institutions under Article 30(1) as implicit in the right to establish minority institutions, on the ground that this would make Article 45 redundant. Justice Aiyer was very clear that the question was not about a conflict between Article 30(1) and Article 45, and which was subordinate to the other. Rather, the question was about the content of the Article 30(1) right, whose determination was informed by Article 45.

 We can also find the argument in cases after N.M. Thomas. In Randhir Singh v. State of UP, the question was whether different pay-scales for drivers working in different departments violated Articles 14 and 16. Invoking Article 39(d) – equal pay for equal work, the Court held:

“Construing Articles 14 and 16 in the light of the Preamble and Art. 39(d) we are of the view that the principle ‘Equal pay for Equal work’ is deducible from those Article and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though these drawing the different scales of pay do identical work under the same employer.”

This is precisely the kind of reasoning we have discussed above. The Court invokes the Directive Principles to understand what equality under our Constitution truly means, in concrete circumstances; that is, in this case, it is the Part IV commitment to equal pay for equal work that informs the understanding of the Court that a distinction in pay for similar work is precisely the kind of arbitrary/irrational classification that amounts to unequal treatment under Article 14. A similar argument was echoed in Atam Prakash v. State of Haryana, where the Court referred to the Preamble and the Directive Principles to examine whether a particular classification was legitimate under Article 14.

Interestingly, the argument made by the Court in N.M. Thomas, Randhir Singh and Atam Prakash had been anticipated as far back as 1973, in the context of Article 19(1)(a). In Bennett Coleman the Court held that the government was not permitted, under 19(1)(a), to impose restrictions upon big newspapers in an attempt to equalize market conditions and facilitate the entry of new players into the marketplace of ideas, who wouldn’t otherwise be able to compete. In so doing, the Court adopted a particular individualistic, liberal theory of free speech that rendered constitutionally irrelevant the economic conditions that limited access to the existing means of effective communication of ideas in society, such as newspapers, television etc., all of which require a substantial resource base. Justice Mathew’s dissent invoked the Principles to argue against this conception, and advocate an alternative vision of free speech that refused to separate the freedom of expression from the economic and social conditions that defined and shaped it in a liberal-capitalist society. He held:

“… any theory of freedom of expression must take into account… the right of the public to education arising from the affirmative duty cast on the Government by the directive principles to educate the people, apart from the right of the community to read and be informed arising under the theory of the freedom of speech itself.”

Justice Mathew’s rejection of free speech as an individual right of non-interference, in favour of it being a social good characterized by principles of equal access, was grounded in the DPSPs, much like N.M. Thomas’ changed vision of equality. And twenty years after Bennett Coleman, in LIC v. Manubhai D. Shah, the Supreme Court, in holding that Article 19(1)(a) required a having a right to reply, even for an in-house journal, in order to ensure complete information, essentially accepted the free-speech-as-a-social-good approach. Although the LIC court did not expressly cite Part IV, the implications are obvious, when it held that fundamental rights were broadly  phrased, as abstract concepts, precisely so that Courts could ground them and give them meaning in accordance the socio-economic goals found elsewhere in the Constitution (which, obviously, would be the Preamble and Part IV):

“[The framers] had themselves made provisions in the Constitution to bring about a socio-economic transformation. That being so, it is reasonable to infer that the Constitution makers employed a broad phraseology while drafting the fundamental rights…”

Similarly, in Bandhua Mukti Morcha, the Court referred to Articles 39(d) and (e), 41 and 42 to infuse substantive content into the dignitarian principle underlying Article 21’s guarantee of the right to life – and many of the substantive rights that the Court was to subsequently read into Article 21 were located within this dignitarian foundation. In Olga Tellis, used the same technique (relying upon Articles 39(a) and 41) to read in a right to livelihood under the right to life. In Nashirwar v. State of MP, the Court invoked the Directive Principles dealing with prohibition to infuse moral content into Article 19(1)(g)’s freedom of trade: the right to freedom of trade itself was held not to include activities of a res extra commercium nature such as trade in alcohol. And as recently as 2014, it invoked Articles 39(e) and (f) to hold the right to a safe and healthy environment was part of the right to life.

In sum, therefore: We have seen how the Directive Principles have structured the application of equality under 14-15-16, free expression under 19(1)(a), freedom of trade under 19(1)(g), and life under Article 21, helping the Courts to select what conceptions, our of a number of available (and conflicting) ones, all consistent with the abstract concepts of equality, speech etc., are concretely required by the Constitution.

But doesn’t this approach, it might be objected, render fundamental rights utterly subordinate to the Directive Principles? We are, after all, arguing for the Directive Principles playing a role in ascertaining the very content of fundamental rights. It is important to understand that this is not so. The Directive Principles, we have argued, inform the content of fundamental rights; they do not determine them. The fundamental rights continue to embody concepts, and concepts themselves not only have determinate meaning, but also have core, paradigm cases that any conception must respect and account for. To invoke an old chestnut: H.L.A. Hart’s famous “No vehicles in the Park” rule has its penumbra of doubt in the case of bicycles and toy trucks, where the decision might go either way without necessarily being right or wrong, but it also has its core of certainty that definitively proscribes buses and tractors. Similarly, the Directive Principles might tell us which conception of equality the Constitution subscribes to, as they did in N.M. Thomas, but they can only do so within the bounds allowed by the concept of equality.

The tortured history of Articles 31A and 31C seem to bear this out. 31A, aimed at land reform, was inserted into the Constitution following a series of Article 14 challenges to land legislation. 31A bars an Article 14 challenge to laws – inter alia – authorizing the acquisition of any estate, taking over the management of any property, and so on. Although the Amendment itself – historically – was necessitated by a particularly doctrinaire interpretation of equality by the early Court, it is also obvious that its provisions are broad enough for land legislation that might be difficult to justify on most conceptions of equality, even those shaped by the Directive Principles – hence the need for the protection of a constitutional amendment. Similarly, 31C insulated any law aimed at giving effect to anything in Part IV from a 14 or 19 challenge – clearly indicating that it is possible for Part IV-grounded laws to violate fundamental rights (hence, the need for an amendment to insulate them). This understanding, at least partially motivates the Court’s 2005 opinion in State of Gujarat v. Mirzapur Moti Kasab Jamat, another cow-slaughter case. There, the Court observed:

“A restriction placed on any Fundamental Right, aimed at securing Directive Principles will be held as reasonable and hence intra vires [as long as] it does not run in clear conflict with the fundamental right…”

In light of our discussion above, I suggest that “clear conflict” is best understood as implying the settled, indisputable central (or minimum) core of any concept (such as equality, free speech, freedom of conscience etc.) that conceptions cannot violate if they are to be conceptions of that concept in the first place. The Directive Principles are structuring values, but they themselves operate within a web of constraints determined by the very concepts (located in Part III) whose underlying structure they must provide.

Directive Principles of State Policy: An Analytical Approach – IV: The DSPSs as Framework Values

In the previous post, we saw how in the 60s and 70s, the Court gradually chipped away at its earlier jurisprudence: beginning with making the Principles constitutionally relevant, and then erasing their subordinate status to the fundamental rights. The consequences of these two moves are crucial. Before we examine the cases, however, a brief digression into political philosophy is apposite.

It hardly needs repeating that Bills of Rights are framed in abstract language, laying down broad principles and concepts rather than concrete conceptions. Take the classic example of “freedom”. Everyone agrees that if I am locked up in a room, my freedom is curtailed. Everyone also agrees that my inability to fly unaided is a limitation upon my actions, but not an infringement upon my freedom. My body structure and the forces of gravity, which combine to render it impossible for me to fly, are simply background conditions that structure the world in which we all live. But now consider this: my lack of money bars my access to goods and services that I otherwise want or need. Is this a violation of my freedom? The philosopher Friedrich Hayek would answer in the negative, holding that only the intentional actions of individuals – and not the impersonal workings of the market – can constitute restrictions upon liberty. G.A. Cohen, on the other hand, would argue precisely the opposite. What, then, are we to make of a constitutional clause that promises freedom? Does it embody Cohen’s vision – and thus, potentially, place an obligation upon the State to provide adequate social security – or does it embody Hayek’s vision – placing no such obligation? Or another vision altogether? To answer this question, naturally, we must investigate the basic values that underlie the Constitution in question, and going beyond that, the political, economic and social values that structure the polity that has adopted that Constitution.

The result of the Indian Supreme Court’s twenty-year incremental approach to the Directive Principles brought it to a point, I argue, where the Directive Principles finally came to assume the role of these structuring values. The best example is State of Kerala v. NM Thomas. In order to understand what was at stake in NM Thomas, recall the judgment in Champakam Dorairajan, in 1951. The government’s affirmative action program for admissions to medical and engineering colleges was struck down on Article 15 grounds, and the state’s reference to the Directive Principles (Article 46) was rejected. That same year, Parliament amended the Constitution to introduce Article 15(4), specifically allowing for affirmative action in educational institutions.

The Court’s judgment, and Parliament’s action, demonstrate a specific vision of equality running through Articles 15 and 16. Let us call this the “colour-blind conception” of equality. This holds that there is a specific harm whenever the State classifies individuals on the basis of their caste, race, sex etc. – because historically, it was these bases that were used to sort people into categories, and determine their worth. Therefore, any distribution of benefits or burdens that classifies us into groups on such grounds, is presumptively suspect. Individuals are to be treated qua individuals, and not as members of groups. That this was the animating vision of the Dorairajan court is evident from the fact that it refused to locate the permissibility of remedial affirmative action within Article 15 itself, and that it required a specific amendment from Parliament to legalise it. Cases after Dorairajan affirmed this view, treating Articles 15(4) and 16(4) as exceptions to the 14-15-16 equality code.

While the colour-blind conception of equality is individual-centric, there is a competing vision. Call it the “group-subordination” vision. This argues that groups have been the locus of historic discrimination. Thus, remedial action must take into account the subordinate status of groups (such as women, or “lower-castes), and governmental policies are perfectly legitimate if they make groups the site of redressing historic discrimination and achieving genuine present-day equality. Article 46, which was cited and dismissed by the Court in Champakam Dorairajan, specifically envisages this conception, when it refers to the interests of the weaker sections of the people.

Under the colour-blind conception of equality, NM Thomas ought to have been an easy case. The question was about the constitutionality of caste-based affirmative action in employment. Article 16 guaranteed the equality of opportunity in employment. Article 16(4) carved out a specific exception for “socially and educationally backward classes.” It was not disputed that caste-based affirmative action was not covered by the 16(4) exception. Surely, then, this was a straightforward equal-opportunities violation. Not so, said the Court. Articles 15(4) and 16(4) were not exceptions to 15(1) and 16(1), but emphatic restatements of it. In other words, remedial affirmative action for certain historically subordinated groups was no longer grounded in 15(4) and 16(4), that specifically provided for it, but implicit within the logic of the Constitutional commitment to equality itself.

What justifies this departure from precedent, and seemingly from the text as well, that speaks of “persons” under Articles 15(1) and 16(1)? The majority doesn’t say, but Justice Mathew and Justice Krishna Iyer, in their concurring opinions, do. According to Justice Mathew:

“…if we want to give equality of opportunity for employment to the members of the Scheduled Castes and Scheduled Tribes, we will have to take note of their social, educational and economic environment. Not only is the directive principle embodied in Article 46 binding on the law-maker as ordinarily understood but it should equally inform and illuminate the approach of the Court… the guarantee of equality, before the law or the equal opportunity in matters of employment is a guarantee of something more than what is required by formal equality. It implies differential treatment of persons who are unequal… today, the political theory which acknowledges the obligation of government under Part IV of the Constitution to provide jobs, medical care, old age pension, etc., extends to human rights and imposes an affirmative obligation to promote equality and liberty. The force of the idea of a state with obligation to help the weaker sections of its members seems to have increasing influence in Constitutional law.”

This is crucial, because the shift from the precedent-based colour-blind vision of equality to a group-subordination conception is justified by invoking the Directive Principles in general, and Article 46 in particular. Articles 14, 15 and 16 set out the abstract concept of equality. Justice Mathew uses the Directive Principles to decide which conception – colour-blind or group-subordination – is more faithful to the Constitution. It is in this way that the Directive Principles act as structuring values. Thus, as Justice Krishna Iyer observed: “The upshot after Bharati, is that Article 46 has to be given emphatic expression while interpreting Article 16(1) and (2).”

The point is perhaps summed up best by Justice Bhagwati’s partially-dissenting opinion in Minerva Mills:

“Where a law is enacted for giving effect to a Directive Principle in furtherance of the constitutional goal of social and economic justice it may conflict with a formalistic and doctrinaire view of equality before the  law, but  it would almost always conform to the principle of equality before the law in its  total magnitude and  dimension…”

Once again, then, it is the directive principles that inform the conception of equality that Articles 14, 15 and 16 only lay out abstractly. More recently, Ashoka Kumar Thakur put the point another way, holding that “the facets of the principle of equality could be altered… to carry out the Directive Principles…”

 The present argument reflects a point first made by Tripathi, long before this jurisprudence came into being. In 1972, Tripathi argued that it is the Supreme Court’s “duty so to discharge its own function of enforcing fundamental rights as not to obstruct the legislature in its respective function of applying the directive principles in the making of laws.” Drawing an analogy with the American Supreme Court’s upholding of President Roosevelt’s extensive New Deal social welfare legislations (despite no express textual peg in the American Constitution on which to hang them), Tripathi understood the Directive Principles to be performing a similar function of mitigating the social evils that spring from a laissez-faire interpretation of formal equality, the right to property and other such civil rights. Indeed, Tripathi saw the abstract wording of Part III rights as an invitation for “judicial creativity”. The aim of this essay has been to demonstrate how such creativity might best be applied in a manner that is most consistent with the text, structure and animating philosophy of the Constitution.

This argument conforms with the three-pronged holistic interpretation of Article 37 that we discussed above. It is consistent with the prohibition on enforcement, while maintaining a place for the Principles in the judicial enquiry, and saving them from redundancy. It also tracks a strain of constitutional thought that was present throughout the late stages of the freedom struggle, up to the framing of the Constitution. In her survey of the primary material, Jayal notes that economic and social rights were understood through the 1930s and 1940s as essential for securing the “meaningful” enjoyment of civil and political rights. In his 1947 Memorandum, Ambedkar specifically argued that political democracy must ensure that an individual is not forced to “relinquish… rights as a condition of receiving a privilege”, and focused on the meaninglessness of civil and political rights to the unemployed, starving and economically powerless. Ergo, even if social and economic rights were not to be made enforceable, there was strong support for the proposition that meaningful civil and political rights could not exist without being conceptualised in a way that took into account socio-economic considerations.

This tempered understanding of socio-economic rights – unenforceable yet relevant – is evident in the Constituent Assembly Debates. Consistent with the role of the principles as structural values, arguments to make them more detailed and specific were repeatedly rejected. For example, an amendment to add the prohibition of monopolies to the Directive Principle prohibiting the concentration of economic wealth did not succeed. K.T. Shah’s proposal to add “socialist” to the Preamble was met with Ambedkar pointing out that the “socialistic direction” of the Constitution was provided by the Directive Principles such as equal pay for equal work, the rejection of the concentration of economic wealth, and so on. Yet perhaps the best evidence of the framers’ intent can be gleaned by Ambedkar’s elaborate speech in defence of the Directive Principles. Ambedkar identified the goal of the Directive Principles as the achievement of “economic democracy”, complementary to “parliamentary democracy”, which was the task of the rest of the Constitution. He steadfastly refused to identify economic democracy with a particular economic or political school of thought (notwithstanding his earlier remark about the socialistic direction of Part IV), only referring ambiguously to the principle of “one man, one value”.

Ambedkar’s speech does two things. First, it affirms that there is an animating vision underlying Part IV as a whole, one that is sufficiently abstract so as not to be tied to political and economic –isms, but also sufficiently constraining (through specific provisions such as non-concentration of wealth, equal pay for equal work, and so on). And secondly, if economic democracy and parliamentary democracy are meant to be complementary and of equal importance – as the speech reflects – then the interrelation between Parts III and IV that we have proposed appears to be a seamless integration of the two. Parliamentary democracy is guaranteed by the set of individual rights located in Part III; but the substantive content of those rights – whether equality means colour-blindness or remedying group subordination, for instance; whether the free speech guarantee requires the government to adopt a laissez faire approach or permits it to remedy market inequalities guaranteeing persons an equitable access to the modes of communication (like newspapers) – these questions, that Part III leaves open, are to be resolved by determining what economic democracy under Part IV means, and informing the content of fundamental rights based upon that understanding.

 

Directive Principles of State Policy: An Analytical Approach – III: The Relationship between Fundamental Rights and Directive Principles

In this post, we continue our examination of the place and role of the Directive Principles of State Policy within the constitutional scheme. Part I dealt with the conceptual foundations underlying the division between fundamental rights and directive principles, and Part II focused on the history and text of Article 37, along with early judicial interpretation. In this post, we shall look at the Court’s evolving understanding of the relationship between Directive Principles and Fundamental Rights over time)

As we discussed towards the end of Part II of this series, the Supreme Court judgment in Re Kerala Education Bill  marked a shift in the Court’s understanding of the DPSPs. In the first decade of its existence, the Court had largely cleaved to H.M. Seervai’s understanding of Part IV – namely, that the directive principles were politically significant but constitutionally irrelevant. In Re Kerala Education Bill, however, we see for the first time the fateful phrase – “harmonious construction of fundamental rights and directive principles”. Harmonious construction – a phrase borrowed from the legislative competence cases – is of elastic ambit, and has been used elastically by the courts. In this post, we consider two ways in which the court has understood the relationship between Parts III and IV of the Constitution.

The Directive Principles as Markers of Reasonableness

The Indian Constitution provides inbuilt, textual limitations to its fundamental rights. For instance, Article 19(1)(g), that guarantees the freedom of trade, also permits the government to legislate “reasonable restrictions… in the interests of the general public”. In the aftermath of In Re Kerala Education Bill, the Court began to invoke the DPSPs to decide the ambit of the restrictions upon fundamental rights. This happened primarily in the realm of labour legislation, where a number of employee-oriented laws were challenged under Article 19(1)(g). In Prakash Cotton Mills v. State of Bombay, the question was whether the state could compel companies to join collective bargaining agreements that they had not directly consented to. Examining the application of Article 19(1)(g), the Bombay High Court observed:

“In the larger interests of the country an employer must submit to those burdens and carry on his business in conformity with the social legislation which is put upon the statute book.” (para 6)

While Prakash Cotton Mills did not directly refer to the Directive Principles, Jugal Kishore v. Labour Commissioner did so, citing no less than three of the Principles to hold that notice requirements and other restrictions upon employers’ discretion were restrictions in interests of the general public. Similarly, in Chandrabhavan v. State of Mysore, the Court upheld state minimum wage legislation, cursorily dismissing the 19(1)(g) claims of the employers by stating:

“We are not convinced that the rates prescribed would adversely affect the industry of even a small unit therein. If they do, then the industry or the unit as the case may be has no right to exist. Freedom of trade does not mean freedom to exploit.” (p. 612)

 Chandrabhavan is also noticeable in that it came at the end of the 60s, and marked another shift in the Court’s jurisprudence by abandoning the “subordinate-but-relevant” doctrine of In Re Kerala Education Bill. In Chandrabhavan, the Court observed that the bill of rights and the directive principles were “complementary and supplementary” to each other. In some way, this approach had already been adopted in Golak Nath v. State of Punjab, and it was echoed in two of the important constitutional cases of the 70s, Kesavananda Bharati v. State of Kerala, and Minerva Mills v. Union of India. The Court rationalized this approach by defining the directive principles as “social goals”, and the fundamental rights as “side constraints” to be scrupulously adhered to by the government in its pursuit of those goals. In thirty years, therefore, the Court moved from a position where the Directive Principles were constitutionally irrelevant to a point where they were constitutionally at par with the bill of rights, with the only difference being that citizens could not move the Court directly to enforce them. Yet the judgments of the 70s, placing the Directive Principles on the same conceptual level as the bill of rights was to have far-reaching consequences, as we shall presently note.

The shift in the 70s, that we shall go on to discuss, was complementary to the reasonableness-of-restrictions approach. It did not replace it. Throughout its history, the Court has regularly invoked the Principles to find that Article 19 restrictions are valid, in fairly unproblematic ways. The Court has done this through a simple argument: the Directive Principles, it has held, are self-evidently expressions of what public interest is. Any governmental policy aimed at advancing a Directive Principle, then, cannot but be in the public interest, and can, at times, raise a presumption of reasonableness. Unfortunately, the Court has also held, on occasion, that such a policy is reasonable simply by virtue of being enacted in pursuit of a directive principle.

This is clearly unwarranted. Consider, for example, the 2012 Right to Education Case. The Court held that the obligations imposed by the Right to Education Act upon private schools – i.e., a compulsory 25% intake from economically underprivileged households within a certain catchment area – to be reasonable restrictions under Article 19(6), by virtue of being in pursuance of the Directive Principles. The Court would probably not have reached the same result had the compulsory reservation been, say, 80%, although that too would have been in pursuance of the Directive Principles. Clearly, then, it is quite possible to implement the goals set out in Part IV in an unreasonable manner. This was something the Court clearly understood in Mirzapur Moti, where it held that a restriction aimed at fulfilling the Directive Principles will be reasonable insofar as it does not run in “clear conflict” with the fundamental right. It is this line of reasoning that is correct and – it is submitted – ought to be followed in the future.

The Directive Principles as Interpretive Guides

Once the Court had cleared the path for invoking the Directive Principles in legal adjudication in In Re Kerala Education Bill, it was not long before it took the next logical step: using them as interpretive guides. In Balwant Raj v. Union of India, a 1966 judgment of the Allahabad High Court, an employee of the Indian Railways contracted tuberculosis and was unable to come to work for a time. Consequently, he was discharged for “failing to resume duty” under the stipulated rule. Reading the Directive Principle requiring the State to secure the right to work, the Court limited the phrase “failing to resume duty” to voluntary failures, holding that “the rule must be interpreted in accordance with letter and spirit of the Directive Principles of State Policy.” Thus, the Court assumed the legal fiction that the State had, in fact, applied the Principles in framing the contested legislation.

Yet what, precisely, is the strength of that legal fiction? A survey of comparative constitutional practice reveals four distinct standards that constitutional courts have adopted when construing legislation to harmonise with standards contained in a super-statute or Constitution. Let us call these four standards “weak”, “medium”, “strong” and “modificatory” .

A weak standard only requires Courts to select that interpretation, out of a series of equally reasonable interpretations arrived at independently, which coheres better with the background right at issue. A medium standard, found in New Zealand, requires a meaning that is “fairly open… and tenable” to be preferred if it is consistent with the bill of rights. The strong standard, adopted by the UK Supreme Court in interpreting the Human Rights Act, goes one further and allows for any interpretation, no matter how strained, to be preferred if it is consistent with the Human Rights Act and is an intelligible reading of the statute in question. And the modification standard goes furthest of all – it stipulates that the meaning of legislation itself is to be determined by referring to the background right.

In Balwant Raj, the Court adopted – arguably – a strong standard of review, infusing an additional condition into a provision that was nowhere in evidence on its face. Subsequently, however, it went even further: in UPSEB v. Hari Shankar, the Supreme Court was interpreting the phrase “Nothing in this Act shall apply…” The technical details of the case need not detain us here; it is this observation of the Court that is striking:

“That is the only construction which gives meaning and sense to Sec. 13-B and that is a construction which can legitimately be said to conform to the Directive Principles of state Policy proclaimed in Articles 42 and 43 of the Constitution.” (p. 371)

In other words, the Court treated the Directive Principles as constitutive of legislative meaning: the maximum degree to which it could infuse directive principles into the law without directly enforcing them. This strong vision of the Directive Principles has been latent in the Court’s jurisprudence since then. In 2013, for example, the Court invoked the Directive Principles in determining the meaning of the phrase “public purpose” under Article 282 of the Constitution. It held that the Tamil Nadu state government’s distribution of free televisions was a valid “public purpose” under Article 282 because it was in pursuance of the Directive Principles.Unfortunately, however, the Court – thus far – has failed to undertake a coherent, doctrinal analysis of the precise role that the Principles are meant to play in statutory interpretation.

In the next essay, we shall examine – and defend – one final way in which the relationship between Parts III and IV has been instantiated by the courts: that of using Part IV to establish the framework values within which Part III rights are given meaning and sense.

Guest Post: Why the Collegium will revive if the NJAC is Struck Down

(We are continuing our coverage of the key issues in the NJAC litigation. In this guest post, Saranagan Rajeshkumar argues that were the Supreme Court to strike down the 99th Amendment, the Collegium would revive).

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Over the past week, most individuals involved in this debate seem to be of the opinion that if the Supreme Court proceeds to strike down the 99^th Amendment Act the country will then face a void, where there will be no process for appointment of judges to the higher judiciary. Even the Union, in its submissions, seems to be of this opinion. This is because the collegium system of judicial appointments is an institution fashioned by the Supreme Court based on its construction of the phrase “consultation with such of the Judges of the Supreme Court and of the High Courts” under Article 124. Thus the Union believes that if these words are removed from the constitution, then even in the case the amending act is struck down, the words themselves will not revive.  However, this is far removed from the actual position of law.

It is true that when it comes to ordinary statutes, a repeal of the statute would mean that the statute had never existed in the first place. Thus, in the context of an amendment – since it involves the repeal of the earlier provision of law and then the enactment of a new one – when an amending act is struck down the pre-amendment version of the act will not revive. However, there are three exceptions to this rule, collectively known as the “doctrine of revival”.

Firstly, when an act is struck down for want of legislative competence(such as when it is not of a subject mentioned in the relevant constitutional list) then the amending act itself is deemed to be ‘still-born’. The implication of this is that the amending act itself is held to have never been in existence, thus reviving the old act.  The second exception is invoked when an act is struck down as being violative of one of the fundamental rights under the constitution. The result, again, is that the act, as it stood prior to the amendment, will revive. These exceptions have been clearly laid down by the Supreme Court in the case of State of Tamil Nadu v Shyam Sunder.

“Thus, the law on the issues stands crystallized that in case the Amending Act is struck down by the court for want of legislative competence or is violative of any of the fundamental rights enshrined in Part III of the Constitution, it would be un-enforceable in view of the provision under Article 13(2) of the Constitution and in such circumstances the old Act would revive, but not otherwise.”

The third exception, however, is something which is yet to come up before the Supreme Court and has till date only been addressed by the High Court of Madhya Pradesh in its decision in Sharique Ali v State of Madhya Pradesh. In this case, the court held “any law that corrodes the basic essence of the Constitution cannot be regarded as a good law and when the same is struck down the original provision rises like phoenix and the doctrine of revival gets attracted”. Therefore, even when an amending act is violative of the basic structure of the constitution, and not any specific provision, it must be held to have never been in existence, thus reviving the old law. It is this test of the basic structure, which will be employed in deciding the constitutionality of the NJAC. Thus, if the NJAC is struck down as being violative of the basic structure, then Article 124 of the Constitution as it stood prior to the NJAC amendment should revive and the collegium should also be restored as well.

Admittedly, these three exceptions were laid down in the context of ordinary statutes and not that of constitutional amendments. Ordinarily it is true that statutes must be treated on a different footing as compared to constitutional amendments, such as for the purpose of Article 13. But this is because, as the Supreme Court has held, amendments are made in exercise of constituent power, while laws are made in exercise of legislative power. The difference in the kind of power that the parliament exercises will have no bearing upon the doctrine of revival. Consequently, the logic that an act that violates the Constitution is still-born, should apply with equal force to an amendment that violates the basic structure.

Nonetheless, the applicability of the doctrine of revival to constitutional amendments, as opposed to ordinary laws, has never been conclusively pronounced by the Supreme Court. This question was to be decided in the case of Property Owners Association vState of Maharashtra, which was then referred to a 9-judge bench of the Supreme Court. The 9-judge bench is yet to hear the case. In this case, the question that was to be decided was whether subsequent to the case of Minerva Mills v Union of India, which struck down parts of Article 31C of the Constitution, the un-amended Article 31C would be revived?

However, a closer look at the order of the lower bench would reveal that the only issue that has in fact been referred to a larger bench is only the interpretation of Articles 39(b) and 39(c) and not the question of applicability of the doctrine of revival. Since the case concerned an exception under the constitution under Article 31C, given to statutes passed pursuant to Articles 39(b) and (c), the question of interpretation of the two articles would be irrelevant if the doctrine of revival did not apply. Thus, it must be assumed that the 5-judge bench held that the un-amended Article 31C had been revived.

The implication of this is that the Supreme Court, in the case at hand, will not be prevented from deciding on the revival of the Collegium since the referral 9-judge bench is not on a similar question.

It must be noted that even prior to Property Owners Association, in the case of Rashtriya Mill Mazdoor Sangh v Union of India and in State of Maharashtra v Basantibai Mohanlal Khetan, the Supreme Court, by applying the un-amended Article 31C, had implicitly accepted its revival. In fact, in the later case, it was stated:

” Let us proceed on the basis that after His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala [1973] Supp. S.C.R. 1. and Minerva Mills Ltd & Ors. v. Union of India & Ors. [1981] 1 S.C.R. 206, Article 31C reads as “notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of Article 39 shall be deemed to be void on  the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Article 14 or Article 19.”

Considering that Minerva Mills was the case that struck down the amended 31C, this paragraph provides strong support to the doctrine of revival.

These decisions were of particular relevance in the case of Shri Qucxova Sinal Cundov Union of India, where the Bombay High Court, considering that the Supreme Court had upheld the validity of un-amended Article 31C, held that the High Court would have no option but to accept the same as binding. The Court held that despite the existence of the common law rule that the striking down of an amending act would not revive the old law, un-amended Article 31C must be considered valid.

Thus, if the logic which upholds the validity of un-amended Article 31C were to be extended to Article 124, then even if the court were to strike down the validity of the 99^th Amendment Act, the old Article 124 would be revived and along with it the collegium.

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(Sarangan is a third-year student at NLSIU Bangalore)

Guest Post: Article 15 through the lens of intersectionality – II

(In this second essay of a two-part series, Shreya Atrey argues that a textual reading of Article 15(1) would imply that inter-sectional claims must fall within its ambit. Article 15(1) stipulates that “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” Whether or not inter-sectionality is covered by this wording would depend upon the meaning attributed to the phrase “on grounds only of…”)

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In the last post I surveyed the unfavourable outlook of Article 15(1) jurisprudence towards multiple grounds of discrimination. This post proceeds to consider how this jurisprudence can be reconstructed to admit multiple grounds in a discrimination claim under Article 15(1). I argue that a legitimate interpretation of the phrase ‘on grounds only of’ neither makes Article 15(1) a closed list of grounds nor limits it to single ground discrimination; but instead is concerned with finding the basis of discrimination in enumerated or analogous grounds. On the other hand a quantitative delimitation to the general non-discrimination guarantee is: (i) ill-conceived within the contours of constitutional and discrimination law; (ii) historically unsupported in constitutional drafting; and (iii) semantically inaccurate. The final analysis thus proffers a qualitative reconstruction of the phrase by linking grounds to the basis or effects of discrimination.

First, there is internal inconsistency in case law as to the meaning of ‘only’ in Article 15(1). Besides referring to a single ground in a discrimination claim, ‘only’ has also been understood as prohibiting discrimination on enumerated grounds but no more, such that Article 15(1) signifies a closed list of grounds (i.e. religion, race, caste, sex, place of birth). The Delhi High Court decision in Naz Foundation v Delhi Administration introduced the ground of ‘sexual orientation’ as an analogous ground under Article 15(1) and thus has challenged the view that Article 15(1) is an exhaustive list of grounds. However, this cannot perforce mean that ‘only’ can be interpreted to mean discrimination on just one ground since Article 15 can now operate as an open list. In fact, I argue that both these quantitative views of Article 15(1) lack a justifiable basis. Yacoob J of the South African Constitutional Court supports such a dyadic reconstruction in his remarks on the Indian Constitution:

“It goes without saying that a poor Dalit deaf lesbian woman on a wheelchair is far more vulnerable and in greater need of constitutional protection than a female university teacher who has all her faculties and who is part of the “dominant” classes. If this is not recognised, constitutional jurisprudence could suffer. And there is no need to limit protection to the grounds expressly mentioned in the Constitution.”

Secondly, it is useful to note that nothing in the drafting of the Constitution indicates an original intent for interpreting Article 15(1) to exclude multi-ground discrimination. It neither indicates Article 15(1) as restricting the number of grounds in a claim or considering it to be a closed list.

Thirdly, it is helpful to take recourse to semantics here. According to the Oxford English Dictionary, the word ‘only’ can be used widely, and amongst its most popular uses include: (i) as an adverb meaning ‘Solely, merely, exclusively; with no one or nothing more besides; as a single or solitary thing or fact; no more than. Also, with a verb or verb phrase: no more than, simply, merely’; (ii) as an adjective with an attributive sense of being ‘unique’ in character, or ‘alone’ and; (iii) as a preposition meaning ‘except for’. Restating the language in clause (1): ‘no one shall be discriminated on grounds only of…’, it is clear that ‘only’ cannot possibly be an adjective in this sentence. This interpretation falls foul of the basic canons of English language where an adjective is used for naming an attribute of the immediately succeeding noun. Further, it could not have been used as a conjunction meaning ‘except for, but’ since that would totally inverse the meaning of the non-discrimination guarantee. Thus, the only possibility is of it being used as an adverb here. The question that remains is whether as an adverb it has a quantitative or a qualitative meaning. Does ‘only’ in the phrase ‘on ground only of’ signify ‘solely’, ‘singularly’, ‘uniquely’, ‘merely’, ‘exclusively’ in a qualitative sense such that it could mean that something is the exclusive cause of, or the sole basis of, or form the ground for a particular effect, or is uniquely relevant to a particular result; or the quantitative sense the single quantity one?

As an adverb, the positioning of ‘only’ in a sentence matters as OED indicates: ‘The traditional view is that the adverb only should be placed next to the word or words whose meaning it restricts: I have seen him only once rather than I have only seen him once.’ This explanatory statement is useful. It indicates that although there is free rein in using ‘only’ as a limiting adverb either before or after the object it seeks to limit, it should not be absurd or ambiguous in common usage. In its current positioning in clause (1), the word ‘only’ may qualify the immediately succeeding list of grounds or the term grounds just preceding it. But the fact that it is placed before rather than after ‘of’ in the phrase ‘on grounds only of’ diminishes the possibility of it limiting the list of grounds as such. On the other hand, if ‘only’ was meant to be used as ‘solely’ or ‘merely’ in the sense of limiting the number of grounds upon which a discrimination claim be based, it is clearly misplaced in the phrase ‘on grounds only of’.

A student of English language would then strip the phrase ‘on grounds only of’ of any quantitative sense. She would use ‘only’ as referring to ‘simply’, ‘merely’, ‘exclusively’ or ‘just’ such that it relates to the inadequacy or inappropriateness of certain grounds being invoked as the basis of discrimination. In the legal semantics of discrimination law this would mean that discrimination is prohibited when based on, for the reason of or because of these grounds: religion, race, caste, sex, place of birth (indeed, this is the understanding of discrimination in United States, UK and Canadian anti-discrimination legislation). Thus, the phrase can be taken to signify the basis of discrimination in grounds and does not either indicate a closed list or single-ground claims. In finding the basis of discrimination through ‘on grounds only of’, there is an emphasis on the causative (though the causation doesn’t need to be direct or strict and can be merely correlative as argued by Tarunabh Khaitan in A Theory of Discrimination Law) element in discrimination, i.e. something is discriminatory because it is based on certain grounds. It extends the inquiry into finding not just whether there was discrimination in treatment or in effect but that its basis was in certain kind of prohibited categories of identities.

Fourthly, the misinterpretation and misapplication of ‘on grounds only of’ in clause (1), a fundamental flaw in discrimination jurisprudence is the partial reading of the clause. The case law at no point engages in a complete meaning of the clause which ends with ‘or any of them’. This partial reading strips the prevailing jurisprudence of normative force. Re-interpreting clause (1) while reckoning with its full wherewithal including the phrase ‘or any of them’, stands as a clear indication of clause (1) covering multi-ground discrimination within its ambit.

The placing of ‘or’ in clause (1) is dispositive in this matter: ‘The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth’ or ‘any of them’ indicates that the basis of discrimination can be any of the grounds, alone or in some combination. Once having interpreted ‘on grounds only of’ as finding the basis of discrimination—‘or’ can only logically settle for allowing multiple grounds to be the basis of discrimination. Given that ‘or’ may mean either ‘and/or’ in legal semantics, either construction leads to the recognition of discrimination on more than a single ground under clause (1).

In summary, a legitimate interpretation of ‘on grounds only of’ relates to finding the basis of discrimination in enumerated or analogous grounds by causally linking the discriminatory act or effect to the personal characteristics or group-identities of claimants based on grounds of discrimination.

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(Shreya is completing her D.Phil in Law at the University of Oxford.)

Guest Post: Article 15(1) Through the Lens of Intersectionality – I

(Previously on this blog, we have discussed the meaning of the phrase “on grounds only of…” in Article 15(1) of the Constitution. In a two-part guest post series, Shreya Atrey discusses the possibility of a discrimination jurisprudence that is sensitive to the claims of intersectionality, notwithstanding the seemingly restrictive wording of Article 15.)

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In the world’s largest democracy which frequently prizes itself for its ‘diversity’, how has intersectional discrimination fallen by the wayside of Article 15 of the Indian Constitution? This two-part post is interested in examining this issue. The motivation is to explore how intersectionality needs to manoeuvre the foundational roadblock of a “quantitative” view of discrimination as based only on a single ground. It revolves around the interpretation of clause (1) of Article 15 which embodies the general constitutional guarantee of non-discrimination, especially the phrase ‘on grounds only of religion, race, caste, sex, place of birth or any of them’, and whether it admits intersectionality. The aim is to understand: in this post, how discrimination law practice in relation to Article 15 has foreclosed the routes to recognising intersectional discrimination; and in the next post, how Article 15(1) can be reconstructed to include discrimination on multiple grounds by linking grounds to the basis or effects of discrimination.

Intersectionality Theory

Intersectionality theory seeks to understand identity as a combination of multiple and intersecting grounds of race, sex, gender, disability, class, age, caste, religion, sexual orientation, region etc. Intersectionality emerged as the practical and legal application of the theoretical characterisation of Black women’s identities shaped by their race, class and gender. It was first translated in the legal realm by Kimberlé W Crenshaw in her 1989 piece, which highlighted that any real commitment towards eliminating racism and patriarchy cannot ignore those located at the intersections of the two movements – i.e. Black women. The appreciation of both shared and unique compoundedness of Black women’s experiences of race, sex and class, characterised the method of intersectionality in discrimination law. Black women’s experiences were seen as defined by the intersection of blackness and femaleness – this meant that they could sometimes share experiences with white women or with Black men, and at other times reflected experiences of being both Black and female, in a unique synergy. This is how intersectionality theory explains the nature of discrimination based on more than one personal characteristic of individuals; thus the term ‘intersectional discrimination’ may be used to accurately signify discrimination which is suffered on more than one personal characteristic.

The understanding of discrimination suffered on more than one ground requires a distinctive explanation which represents the qualitative dimensions of tracing unique and shared experiences of disadvantage along the lines of people’s personal characteristics. It is different from “multiple discrimination”, which is usually understood as a combination of discrimination based on two grounds—such that the net discrimination suffered, say, as a Dalit women is a sum of discrimination suffered as a woman and as a Dalit. It is also different from the idea of ‘overlapping’ forms of discrimination such that discrimination suffered on two grounds can be described as having been suffered on both of them separately or individually. It thus asks us to view discrimination based on multiple grounds in a particular way which is not pure arithmetic. For example, to explain discrimination against a disabled Muslim woman, we will need to explain how: (i) the identity of the claimant shared experiences of discrimination with Muslims, women, disabled persons and hence coincided at points with experiences of disability, sex/gender and religion-based discrimination; but also (ii) the uniqueness of the discrimination which is faced by a disabled Muslim woman which is different from discrimination based on disability, sex/gender and religion, or a combination (addition) of any of these. This is the sense in which intersectionality seeks to capture the normative foundation of discrimination suffered on multiple grounds.

Indian Jurisprudence

In the United States, the locus classicus on intersectionality is the case of DeGraffenreid. In that case, the plaintiffs sought a determination that the ‘last hired-first fired’ lay off policies of the defendants discriminated against them as Black women. The United States District Court of Missouri summarily dismissed the possibility that claims could be based upon a combination of grounds (race and sex) and hence plaintiffs were denied the right to claim as Black women who suffered both racial and sex-based discrimination. It interpreted the compoundedness of the claim as a demand for recognising a ‘new special sub-category’ or ‘special class’ for the grant of a ‘new “super-remedy”’ beyond the contours of Title VII of the Civil Rights Act of 1964 which prohibits discrimination on the basis of race, colour, religion, sex or national origin. It concluded: ‘this lawsuit must be examined to see if it states a cause of action for race discrimination, sex discrimination, or alternatively either, but not a combination of both.’

In the absence of an intersectionality test case like DeGraffenreid in the United States, there has been no direct instance of testing the waters of Article 15 for intersectional discrimination. Nevertheless, there have been cases which indicate the increasing impossibility of bringing a claim based on more than one ground. These cases can be delineated into three discernible threads pertaining to—(i) the misinterpretation of ‘only’ in the text of Article 15(1); (ii) the misapplication of Article 15(3) which allows protective discrimination in favour of women; and (iii) the overreach of reservation jurisprudence under Article 15(4)-(5) to limit the scope of clause (1). Pursued consistently by the Supreme Court, these approaches can (mis)lead us to the point of excluding intersectional discrimination by justifying it as either non-discriminatory or ameliorative.

The Calcutta High Court case of Anjali Roy v State of West Bengal laid down the foundation for understanding sex discrimination as solely based on the ground of sex and no other ground. The case involved an order which restricted admission to women into college A but not college B. The High Court held that the restriction did not constitute discrimination within the meaning of Article 15(1). The holding was premised on the interpretation of Article 15(1) as:

“….the discrimination which is forbidden [in Article 15(1)] is only such discrimination as is based solely on the ground that a person belongs to a particular race or caste or professes a particular religion or was born at a particular place or is of a particular sex and on no other ground. A discrimination based on one or more of these grounds and also on other grounds is not hit by the Article.^”

This reasoning seems to be cemented in the decision of Air India v Nergesh Meerza. Air Hostesses working with Air India challenged the constitutional validity of Air India Employees Service Regulations. The challenge related to three particular conditions under the Service Regulations which provided that an Air Hostess was to retire from service upon the following contingencies: (i) on attaining the age of 35 years (extendable at the discretion of Managing Director to 45 years); (ii) on marriage if it took place within 4 years of the service; or (iii) upon first pregnancy. The Court found that:

“[W]hat Articles 15(1) and 16(2) prohibit is that discrimination should not be made only and only on the ground of sex. These Articles of the Constitution do not prohibit the State from making discrimination on the ground of sex coupled with other considerations.”

In the final analysis, the Court only upheld the condition of termination if married within four years of service on grounds of family planning, improving health and maturity of the employee with growing age and hence ensuring the success of marriage, as well as the economic costs of training the crew.

Since this case was argued as a claim of sex discrimination which also devolved upon marital status, age and pregnancy—all of which qualified as mere ‘considerations’ for the Court but could well be incidents of sex or even analogous grounds, the reasoning that discrimination can only be caught by clause (1) when only and only made on the ground of sex is as myopic as is incorrect. It strips the prohibition of sex discrimination of any necessary content and stands as a rejection of discrimination—whether single ground or intersectional—by failing to: (i) account for the meaning and wherewithal of the right to non-discrimination; and (ii) transcend the acontextual and technical understanding of ‘on grounds only of’ which ignores the ending phrase ‘or any of them’ in clause (1).

Finally, in relation to the relationship of clause (1) with the reservation jurisprudence: the Supreme Court in Champakam Dorairajan formulated the test for identifying classes for reservation as one which cannot solely be based on enumerated grounds because it would run afoul of clause (1). However, considering the text of clauses (4) and (5) which begin with ‘Nothing in this article’, it is clear that the reservations meant to justify and validate something which may even be discriminatory under clause (1). The judicial test for determining the classes for reservations thus renders the constitutional drafting confused and redundant. This ordinary meaning interpretation of the opening words of clauses (4) and (5) (‘Nothing in this article’) has been largely overlooked and reservations are only permitted when not based on a single ground.

This interpretative lapse is carried through when intersectional discrimination is not just made acceptable for the purposes of clauses (4) and (5) but also clause (1). But there is no such necessary logical corollary which flows from the possibility that special provisions on intersectional grounds may be made under clauses (4) and (5). The allowance for intersectional discrimination to be justified when ameliorative because it is for the advancement of certain classes should not also lead to a presumptive justification of hostile intersectional discrimination under Article (1). Whether considered a facet or exception to Article 15(1), the special provisions permissible under clauses (4) and (5) have a narrower compass than the guarantee in clause (1). They are specific in as much as they relate only to the state’s prerogative for taking certain special measures for identified classes. It is settled that these clauses do not confer rights as such and are discretionary tools for the government to be pursued towards the broader goal of promoting substantive equality. To interpret this discretionary power under clauses (4) and (5) to confine the scope of a right under clause (1) cannot be the appeal of Indian discrimination law jurisprudence.

The next post will consider how Clause (1) should be re-envisioned to admit the possibility of bringing discrimination claims based on more than one ground.

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(Shreya is completing her D.Phil degree at the Law Faculty, University of Oxford.)

Guest Post: The NJAC and an unconventional constitutional convention

(In this guest post, Akhil Deo argues that the Second Judges Case got it wrong in treating judicial primacy over judicial appointments as a binding constitutional convention, and part of the basic structure.)

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The Groundwork

The Supreme Court of India (SC) is currently hearing arguments on the constitutional validity of the 99th Amendment to the Constitution which introduces the National Judicial Appointments Commission (NJAC), and replaces the existing collegium system. One of the issues for consideration, which this essay will focus on, is whether or not giving primacy to the recommendation of the Chief Justice in the matter of appointments to the judiciary should be regarded as a constitutional convention.

In what is popularly referred to as the Second Judges Case, where the Court held that primacy must be given to the Chief Justice in the matter of appointments, the SC expressed the following view on constitutional conventions: (at paragraph 449)

 “Once it is established to the satisfaction of the Court that a particular convention exists and is operating then the convention becomes a part of the “constitutional law” of the land and can be enforced in the like manner.”

The text of Article 124 of the Constitution of India, before the amendment, provided that the President appoints every judge of the Supreme Court, and that while appointing judges other than the Chief Justice he shall ‘consult’ the Chief Justice.

In paragraphs 469 and 470 the Court found that by 1948, a convention had been established that the appointment of a judge could only be made with the concurrence of the Chief Justice. Further, it found that almost all subsequent appointments were made with the concurrence of the Chief Justice. Based on Ivor Jennings’ popular three step test in determining the existence of a convention – i.e., (i) the availability of precedents, (ii) that the actors feel bound by the rule and (iii) that there exists a good reason for the rule, the Court went on to hold that (at paragraph 474);

 “…the convention, to the effect that the opinion and the recommendation of the Chief Justice of India in the matter of appointment of Judges is binding on the executive…”

In paragraph 473, as a justification the Court stated that the independence of the judiciary is a basic feature of the constitution and that the exclusion of the final say of the executive in the matter of appointment of judges is the only way to maintain the independence of the judiciary. Further the Court opined that the judiciary itself will be more well informed compared to the executive when it comes to judges suitability. Therefore the court interpreted the word ‘consultation’ in Article 124 to mean ‘concurrence’

The 99th Amendment introduces Article 124A which lists the composition of the NJAC as the Chief Justice, the next two most senior Judges of the SC, the Law Minister and two eminent persons nominated by the Prime Minister, the Leader of Opposition and the Chief Justice. Critiques of the Amendment argue that this clearly violates the basic feature of independence of the judiciary-by not giving primacy to the opinion of the Judicial members.

The crux of the present debate before the Court is that if it has already been held that the exclusion of an executive voice, as a matter of convention, in the matter of appointment is the only way to maintain the independence of the judiciary (which is part of the basic structure), the 99^th Amendment is void for violating the basic structure. This position is aggravated by the fact that the Court in the NJAC case refused to refer the issue to a larger bench, meaning that it is bound by the ratio in the Second Judges Case.

Is the 99th Amendment already doomed?

There are three reasons why the constitutional convention argument is not tenable. First, the text of the Constitution never suggested that primacy of the judiciary was required in the matter of appointments. In Mahesh Chandra Gupta v. Union of India the SC had itself held that the appointment of a judge is an executive function of the President (even the smallest discretion in the exercise of this function, however, was wrestled away by the Court in the earlier Second Judges case). During the Course of the Constituent Assembly Debates, Dr. BR Ambedkar stated– “I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that that is also a dangerous proposition.” Even Justice Ahmadi in his dissenting opinion in the Second Judges case(supra, at paragraph 395, 403) argued that the original intent of the framers did not support an interpretation of the constitution that conferred primacy on the Chief Justice and that such a change would require a constitutional amendment.

Second, reliance on English authorities on the subject of constitutional conventions is questionable with respect to India insofar as the English constitution is unwritten. Scholarly work on conventions in England primarily dealt with codes of political behavior and not express constitutional provisions. Therefore, Jennings’ enquiry was often with respect to political behavior, and not justiciable or even express codes of conduct. Consequently, its application to a written constitution should be, at most, limited to governing unwritten codes of behavior and not those which are explicitly and clearly provided for by the constitution. A similar view was adopted by The Calcutta high Court in Ashok Sengupta v. Union of India(1996 SCC Online Cal 234), where despite the existence of an English convention that the Prime Minister is generally appointed by the elected members of parliament, the Court refused to interfere if an appointment is made otherwise by the President in light of textual Constitutional provisions, opining that- “A third characteristic of a convention as far as India is concerned, is that a convention cannot be used to cut down or limit any constitutional position whatever the pedigree of the convention.”

Third, the convention in the second judges case was unconventional insofar as it was held to be binding, because constitutional conventions are ordinarily regarded as not being enforceable in Court. There is some precedent in India that accepts the proposition that constitutional conventions are part of constitutional law, for example most recently in the Madras Bar Association case, where the Supreme Court held that the National Tax tribunal(NTT) was unconstitutional. In paragraph 131 of the judgment the Court held as follows:

 “This would also be violative of the recognised constitutional convention recorded by Lord Diplock in Hinds case [Hinds v. R., 1977 AC 195 : (1976) 2 WLR 366 : (1976) 1 All ER 353 (PC)] , namely, that it would make a mockery of the Constitution, if the legislature could transfer the jurisdiction previously exercisable by holders of judicial offices to holders of a new court/tribunal (to which some different name was attached) and to provide that persons holding the new judicial offices should not be appointed in the manner and on the terms prescribed for appointment of members of the judicature.”

However, there is sufficient authority that contradicts this position. For example, the Canadian Supreme Court in the case of Amendment of the Constitution of Canada, Re , refused to enforce a convention that state consensus must be obtained before enacting a law that concerns them, finding that “What is desirable as a political limitation does not translate into a legal limitation, without expression in imperative constitutional text or statute.” The Indian Supreme Court had also recognized as much in the 1977 case of State of Rajasthan v. Union of India, finding that “… it is not for Courts to formulate, and, much less, to enforce a convention however necessary or just and proper a convention to regulate the exercise of such an executive power may be.” Again in the Judicial Accountability case, the Supreme Court refused to interdict a member of the Judiciary from continuing to perform judicial functions pending an inquiry into alleged misbehavior. In paragraph 62, the Court rejects the argument that convention requires him to do so and held as follows:

“It is further reasonable to assume that the concerned learned Judge would ordinarily abide by the advice of the Chief Justice of India. All this is, however, in the sphere of propriety and not a matter of legal authority to permit any court to issue any legal directive to the Chief Justice of India for this purpose.”

The collegium system versus the constitutionality of the NJAC

While the above analysis is critical of the Courts’ application of constitutional conventions, the larger question with respect to the Second Judges case and its impact on the NJAC is whether or not the convention of giving primacy to the opinion of the Chief Justice forms a part of the basic structure of the constitution, thereby making it impervious to an amendment.

In light of my arguments above, I suggest that ultimately, what is undoubtedly a part of the basic structure, is the independence of the judiciary. Consequently, both the seemingly binding conventions in is the second judges case and even in the NTT judgment should only be seem as supplementing the independence of the judiciary and not a part of the basic structure in their own right. Therefore, if following a particular convention is not the only way to ensure the independence of the judiciary, then (even if binding) it should be amenable to amendment under Article 368.

With respect to the NJAC there are two reasons why the convention of giving primacy to the Chief Justice is no longer tenable. First, an executive role in only the appointment process does not imply a disregard for the independence of the Judiciary as a whole. Other facets of an independent judiciary, for example, include a fixed tenure and salary, difficult impeachment procedure etc. Moreover, the NJAC does not even envisage a final say of the executive, which was the Court’s worry with respect to Article 124. In fact, the supremacy of the judiciary in the matter of appointments is not a predominant constitutional feature in other parts of the world, for example, The Judicial Appointments Commission in the United Kingdom consists of 15 members: two from the legal profession, five judges, one tribunal member, one lay justice (magistrate), and six lay people including the Chairman.

Second, the final rule of Jennings’ three-pronged test for determining whether a convention exists is the necessity of a reason for its existence. The reason for the collegium system, where judges appoint judges, according to the Court in the Second Judges Case was the ability of the judiciary to better determine the suitability of their peers. Arguably, this no longer stands true with respect to the collegium. Several prominent jurists and academicians have criticized the collegium system for being opaque with no sense of accountability (see generally here, here and here), and further, as an extra constitutional system that finds no support from the text of the constitution leading to an erosion in the quality of judges that it produced.

Conclusion

These arguments present two propositions:

• Conventions should not be considered binding by Courts and that the courts must refrain from both formulating and enforcing them, and
• The convention of judicial ‘primacy’ was linked to the basic structure in the Second Judges case. However, separated from its nexus with the basic structure, such a convention giving primacy to the judiciary in the matter of appointment, even if accepted as binding, becomes part of ordinary constitutional law, meaning that it is amenable to the amendment process under Article 368 of the Constitution and no longer acts as a deterrent to the validity of the 99th Amendment

 

(Akhil Deo is a third-year student at the Hidayatullah National Law University.)

Guest Post: Admissibility of Confessions to the Police: Normalising a State of Exception – II

(In this second post in a two-part series, Manasa Sundar Raman examines how, true to Agamben’s thesis, the “exceptional” remedy of making confessions to the police admissible has spilled over into “normal” judicial practice.)

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In the previous post, the scope of right against self-incrimination and its dilution by Kartar Singh and PUCL were discussed. In this post, we will examine how the guidelines issued in Kartar Singh were inadequate to protect the right against self-incrimination resulting in police confessions increasingly becoming a norm.

Dilution subsequent to Kartar Singh

The guidelines suggested to the government in Kartar Singh were without adequate clarity on their applicability to future cases or even their rationale. Predictably, they have suffered dilution by subsequent Supreme Court judgments which condone non-compliance with them and the rules framed under Section 15 of the TADA.

S.N. Dube v. N.B. Bhoir, for instance, held that even if the Kartar Singh guidelines were not strictly adhered to, it would not affect the admissibility of the evidence. Shockingly, even though the accused had alleged coercion by the police officer, the plea was rejected since no specific instance of coercion was alleged against the concerned police officer. Thus, not only does the court discard the importance of the guidelines, it places the burden on the accused to show his confession was recorded in an atmosphere that was not free.

In Jameel Ahmed v. State of Rajasthan, the confessional statements so recorded by the police were not sent to the CMM or the CJM as required under Rule 15(5) of the Rules, and as per the Kartar Singh guidelines. However, the Court underplays the importance of the Magistrate and the guidelines by stating the CJM or CMM has to merely forward the confessional statement and, hence, the procedural lapse may be overlooked. It goes on to describe the Rules and guidelines as being “only directory and not mandatory.” This way, an important safeguard against the police extrapolating the confession was diluted.

Finally, in Gurdeep Singh v. The State (Delhi Admn.), one can clearly notice the kind of coercive and intimidating circumstances that can be wrought by the preceding rulings. Even though the accused was handcuffed with a policeman holding him in chains and armed guards surrounding the room, the Court dismissed the contention of a confession being non-voluntary stating that these measures were intended and essential for security purposes. As a way of justification, once again, the Court relies on the objects for the enactment of TADA and the necessity of having stringent provisions to assist the prosecution.

From the above case-laws we see how the courts in their enthusiasm to convict terror-suspects, dispense with crucial guidelines issued by Kartar Singh and Rules under TADA. Thereby, even if the ratio in Kartar Singh read with the guidelines have the effect of securing a meagre right against self-incrimination (in reality, it did not), the rhetoric of terrorism has undermined even this.

Characterising the Judicial Response

In most of the above cases, the rhetoric that is used prominently includes the image of the innocent victim of terror. This way the Court is able to depart from the traditional paradigm of a trial where the accused stands against the overwhelming might of the state machinery (and therefore has certain rights such as right against self-incrimination, right to silence, presumption of innocence) to a different paradigm where the accused has wronged the several innocent victims. The role of the trial process under the new paradigm is to strike a balance between the rights of these two individuals. By portraying the State’s citizens as victims of terror, the Court is able to turn a blind eye to his presumption of innocence or right against self-incrimination.

Moreover, this has changed the role of the higher judiciary. As pointed out by Prof. Mrinal Satish and Prof. Aparna Chandra, the judiciary has shifted from being the “sentinel on the qui vive” (as famously observed in State of Madras v. V.G. Row), duty-bound to zealously guard fundamental rights, to a pragmatic mediator that balances competing claims of ‘national security’ and ‘fundamental rights’. The pragmatic mediator attitude can once again be seen when the Court endorses appeals to observe human rights during the investigation and trial stages. This is not done as a reiteration of the State’s legal or moral duty but for instrumental reasons of preventing further terrorism. As a consequence, even in cases where the violations are blatant, there is a tendency for judges to defer to the legislature as it concerns ‘terrorism’ and prescribe guidelines, without actually striking it down.

Admittedly, the judiciary may not possess the same expertise as the legislature or the executive in evaluating counter-terror measures. However, it would be far more respectable and healthy for the rule of law if the judiciary candidly conceded that it is ill-equipped to deal with the problem of terror and, thus, give a wide leeway or ‘margin of appreciation’ to the State in such cases. Accordingly, it could have formulated a lower level of review when the object of the statute was to counter terrorism or read in a national-security exception to Article 20(3). However, we see no such admission of its inadequacy or a well-defined exception to terror-cases. In contrast, in their eagerness to uphold the statute, the judgments simply refer to the legislative competence of the state, echo the State’s high-pitch alarmist attitude to terror and dilute the entirety of the Article 20(3) guarantee.

The above argument can also be illustrated using Article 14 analysis used in Kartar Singh. In evaluating whether it was open for the legislature to make confessions before the police admissible, the judges reduce the issue to one where ‘different mode of proof’ is prescribed by the legislature for a certain class of offences. The rationality behind legislative classification is not questioned at all, instead the analysis is limited to the competence of the legislature to make such a classification without evaluating the rational nexus of such a classification to the object sought to be achieved. In not doing so, the judges leave open the question of whether it would be open for the legislature to make classifications such as ‘sexual offenders’ and ‘other offenders’; ‘white-collar crimes’ and ‘other crimes’ and make confessions before the police selectively admissible for one set? Can different classes of crimes have ‘different modes of proof’? The judgment reduces it to a question of legislative competence.

No analysis is presented with respect to Article 20(3). While the intention may have been to dilute the standards for terror-related cases alone, the judgment by not making that intention explicit jeopardises the right as a whole. Even if the Court had chosen to explicitly hold ‘terror cases’ as an exception where it is acceptable for confessions made to the police to be admissible, the substantial dilution of Article 20(3) could have been prevented. The result is that the diluted right to self-incrimination has now become the normalised standard under the Constitution.

Normalisation of police-recorded confessional statements

Over the years, we see that the Courts have become oblivious to the so called “terrorism” exception. Thus, evidence obtained under such exceptional statutes are being used for the trial of regular offences.

In State v. Nalini, the accused was charged with offences both under TADA and IPC. The Court, in paragraph 81 of the judgement held that confessional statements recorded under Section 15 of TADA would apply and become admissible as substantive evidence for all offences including the non-TADA ones. In holding this, it specifically overruled another SC decision (Bilal Ahmed Kaloo v. State of Andhra Pradesh) on point. Further, the evidence so recorded could also be used against the co-accused.

In view of the conflict between the above two cases, the issue was referred to a constitutional bench in State of Gujarat v. Prakash Kumar which upheld the Nalini rationale. It said that the confession statement recorded under Section 15 of TADA is admissible for the offences under any other law which were tried along with TADA offences notwithstanding the fact that the accused was acquitted of offences under TADA in the same trial.

In State of Gujarat v. Mohammad Atik, the issue was whether a confessional statement recorded by a police during investigation under TADA could be used for a completely different trial where investigation was done by a different set of police officers against the same accused. The Court held that in the absence of any statutory inhibition, there is no need to introduce a further fetter against the admissibility of the confessional statement. Thus, there is no cognisance of the fact that a police-recorded confession is admissible in only very exceptional cases. Once admissible, it is treated on par with any other evidence and there is no re-examination of the voluntariness of that evidence in consideration of the circumstances under which it was recorded.

From the above line of cases, we notice a disturbing trend where the Courts adopt a dangerous and cavalier approach to confessional statements recorded by the police. They are unmindful of the exceptional circumstances under which this exception was sought to be created and constitutionally justified. Instead, there is an increasing trend to issue guidelines to be complied with. These too are not rigorously enforced. This way, the extraordinary standards which are judicially condoned for addressing ‘terrorism’ slowly seep into the ordinary criminal justice system, and are normalised.

The blame for this undoubtedly falls on the majority opinion in Kartar Singh. Not only does it depart from the progressive interpretation given to the rights of the accused in Nandini Satpathy, it does not adequately frame admissibility of confessions recorded by the police as a strict exception for terror-cases. Indeed, by making it wholly a question of legislative competence, the legal position is such that if Section 25 and 26 of the Evidence Act were replaced completely by a provision akin to Section 32 of POTA, the existing precedent would make it wholly constitutional. Fortunately, the POTA has been repealed and the legislation which replaces it – the Unlawful Activities (Prevention) Act, 2008 contains no such provision. However, the constitutional guarantee has been undoubtedly diluted.

Concluding Remarks

In view of the progressive interpretation given to the right of accused against self-incrimination at the interrogation stage in Nandini Satpathy, and the absence of any exception to Article 20(3), the judgment of Kartar Singh was grossly regressive. It can even be argued that the judicially created exception for admissibility of confessions made before the police is unconstitutional.

However, even assuming it is constitutional, Kartar Singh, by not carving out a specific and deliberate exception for terror cases and by employing vague rhetoric about the necessity felt by the Parliament has severely diluted the right as a whole. Read with subsequent judgments where confessional statements made in coercive atmospheres have been held to be admissible, it is safe to say that guarantee against self-incrimination has virtually become meaningless.

More alarmingly, Courts show no hesitancy in applying confessions obtained under such extra-ordinary statutes designed to meet exceptional ends in normal criminal justice administration. This results in a normalisation of these standards.

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(Manasa is a Vth Year student at the National Law School of India University)

Guest Post: Admissibility of Confessions made to the Police: From Exception to the Norm – I

(Previously on this blog, we have discussed Giorgio Agamben’s theory of the state of exception, according to which “extraordinary laws” ostensibly meant for “extraordinary times”, characterised by concentration of power in the executive, bypassing of parliamentary oversight, and incremental erosion of procedural safeguards, gradually become “normalised” parts of the existing legal landscape. In a two-part series, Manasa Sundar Raman discusses the use of extraordinary law to achieve the gradual normalisation of confessions made to police officers, that were originally considered inadmissible under the Indian Evidence Act.)

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One of the chief goals of any liberal democratic Constitution, including India’s, is to guard against the growth and abuse of police power of the state and corrosion of civil liberties. Yet, it is no secret that in the recent decades, basic constitutional guarantees have increasingly come under threat and have been justified in the name of counter-terrorism. Despite struggling to define “terrorism”, most counter-terror legislations and judgments that interpret them, comfortably place terrorism as an exceptional or extraordinary crime that justifies infringements on civil liberties that are otherwise prohibited.

Characteristically, counter-terrorism legislations give enormous and overriding powers to the executive. Further, in accordance with the extraordinary concern that is sought to be addressed by such laws, they also have extraordinary provisions in procedural aspects such as bail, arrest, detention, confessions, sentencing etc. A recurring ‘extraordinary’ feature in these statutes is the admissibility of confessions made to police during interrogation.

Such extraordinary provisions inevitably lead to constitutional concerns. However, over the years, it can be observed that the judiciary is inclined to save them, paying undue deference to the government rather than declaring them as being unconstitutional. The judgments in this regard invoke the stereotypical imagery of brutalities, fear psychosis and loss of life inflicted by terrorism. This is used as a ground in itself to undermine constitutional guarantees.

In this context, one can consider the extent of deference given to legislative wisdom by the judiciary when these statutes permit confessions made to police as being admissible in trial and are challenged for being violative of Article 20(3). It is my thesis that the judiciary, by allowing for the so-called extraordinary statutes to undermine the right under Article 20(3) without constitutional basis, has gradually aided in the erosion of the right for ‘ordinary’ situations, as well. Therefore, admissibility of confession to police officer is no longer a shocking exception, but well on its way to becoming the norm.

Right against Self-Incrimination in India

Prohibition against self-incrimination is undoubtedly one the cardinal principles of criminal law. Under Article 20(3) of the Indian Constitution, the safeguard, framed as a right, extends to all accused persons to not be compelled to be a witness against themselves.

The Article 20(3) guarantee is further codified under Sections 161, 162, 163 and 164 of the Criminal Procedure Code, 1973 and such guarantees are also present in statutes pre-dating the Constitution in the form of Section 25 and Section 26 of the Indian Evidence Act, 1872. Additionally, India has also, without any reservations, ratified the ICCPR which under Article 14 provides for the right against self-incrimination “in full equality”.

The extent of the right against self-incrimination was fully recognized by the Supreme Court in Nandini Satpathy v. P L Dani. In this case, the court relied on Miranda v. Arizona, to extend the embargo against compulsion in testimony to the investigation stage as well. Further, the judgment recognises that compulsion may come in many forms i.e. not just by way of physical torture, but also in the form of psychic pressure or a coercive atmosphere. Most importantly, the decision holds the right under Article 20(3) and under the Criminal Procedure Code to be co-terminus in their protection. Thus, such strong language used by Nandini Satpathy was merely one step behind holding that provisions enabling the admissibility of confessions recorded by the police would be unconstitutional. However, we notice that subsequent judgements on Article 20(3) regress from this holding and dilute the protection altogether.

Judicial Response to Art. 20(3) challenges to Extraordinary statutes

The Terrorists and Disruptive Activities (Prevention) Act, 1987 (“TADA”) was introduced in May, 1985 as a temporary and extraordinary measure to deal with insurgent movements felt in several areas in India. However, over the years, it was notified in almost all states and became infamous as one the most abused laws.

Many provisions of the TADA, including Section 15 were challenged before a constitutional bench in Kartar Singh v. State of Punjab. Section 15 of the TADA provided that a confessional statement recorded by a police officer is admissible as evidence. In a 3-2 split, the Court upheld the section.

The judgment is prefaced with the historical background and circumstances that led to the enactment of the TADA. For a large part, the Supreme Court dwells on the legislative competence of the State to enact such a law. It then proceeds to hold the section as valid under Article 14 on the basis of the legislative classification that differentiates between ‘terrorists and disruptionists’ and ‘ordinary criminals’. Rejecting the reliance on State of W.B. v. Anwar Ali Sarkar, it reasons that classification of offences is constitutional as long as they are legislatively defined and not left to the arbitrary and uncontrolled discretion of the executive. The issue with this reasoning is that the Court refuses to dig deeper into the rationality of the legislative classification itself. Even assuming that there is an intelligible differentia between the ‘terrorists and disruptionists’ as determined by the police and ‘ordinary criminals’, the Court fails to elaborate on the rational nexus between such a difference and lesser degree of constitutional protection against self-incrimination.

Further, it holds the procedure to be just and fair under Article 21. In the reasoning for this, the majority cite a National Police Commission report that recommends that confessions made to the police to be made admissible so that it will “remove the present feeling of the police that they have been unjustly discriminated against in law”! Thereafter, once again the Court invokes the spectre of terrorism. It paints terror and disruptions as those which endanger the sovereignty and integrity of the country, the normal life of the citizens, and by linking it to the difficulty in obtaining evidence, upholds it entirely.

There are several things that are inexplicable and downright absurd in the Court’s reasoning in saving Section 15. First, it is beyond comprehension why the entire reasoning is based on Article 14 and 21 even though the Court earlier admits that Article 20(3) concerns were implicated by such a provision. There is absolutely no analysis on the extent of protection guaranteed by Article 20(3) and to what degree can it be infringed, if at all. Admittedly, the Court issues guidelines for recording of a complaint of torture by Magistrate if the accused so complains. However, it omits to state the consequence of torture on the probative value of the ‘confession’. Further, the judges limit their understanding of involuntary confessions to those made under torture. There is no mention of other methods by which a confession may be extracted such as by inducement or threats. As rightly pointed out in Nandini Satpathy, compelled testimony is not limited to those made by “physical threats or violence” alone but also as a response to “psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods” as well. Therefore, there is no way for the Court to determine if the accused did in fact make the confession freely and voluntarily. Second, the judges acknowledge truth of custodial torture to obtain evidence and then shockingly, in the same breath, turn a blind eye to it by invoking the imagery of terrorists being a threat to the nation’s sovereignty.

Thus, despite powerful dissents by Justice Ramaswamy and Justice Sahai, it is unfortunate that the majority chooses to substitute constitutional analysis with rhetoric on barbarity of terrorism. The saving grace of the majority judgment is the guidelines issued by the majority such as appearance of the accused before the Magistrate and forwarding the confessional statement recording. Ostensibly, the guidelines were aimed at ensuring the voluntariness of the confession and as a protection mechanism against torture. However, this rationale is not explicitly mentioned, perhaps because it would become an implicit admission of the constitutional infirmities of the section.

The TADA was subsequently repealed but was re-incarnated as the Prevention of Terrorism Act, 2002. Section 32 of the POTA, akin to Section 15 of the TADA, allowed for admissibility of confessions made to a police officer. However, Section 32 in sub-sections (2) to (5) statutorily incorporated the guidelines issued in Kartar Singh. In PUCL v. Union of India it was argued that the since the accused has to be produced before the Magistrate within forty-eight hours, there is no reason why the police are authorised to collect confessions. The Supreme Court rejected this contention stating that a similar provision was upheld in Kartar Singh and also pointed out that it incorporates the guidelines issued therein. Once again, the Court falls into the trap of excessive deference to the determination of “necessity” by Parliament, by characterising this encroachment of a fundamental right as an issue of policy rather than principle. Moreover, just as in Kartar Singh, the Court makes no reference to the fact that the recording of confession by the police is an exceptional case, departing from the well-established rules under Evidence Act, Criminal Procedure Code and norms under Article 20(3). Thus it is uncertain from the reasoning whether the Court does view Section 32 as a justified derogation from Article 20(3) in view of terrorism or if recording of confession by police is normally allowed even for regular offences under Article 20(3).

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(Manasa is a Vth year student at the National Law School of India University)