Guest Post: The Rejection of the ‘Arbitrariness Doctrine’ in the Panchayati Raj Judgment

(In this guest post, Mihir Naniwadekar explores the Supreme Court’s rejection of the arbitrariness test in the Panchayati Raj judgment).

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There has been plenty of discussion on this blog in connection with the issues arising in the Panchayati Raj case. This (very) short post is not an attempt to discuss all the issues (or even one single issue exhaustively) arising from the decision. Instead, I only wish to draw the attention of readers towards part of the reasoning employed by the Hon’ble Court – in particular, the Court’s rejection of the ‘arbitrariness’ challenge to the impugned provisions.

When the Court rejects ‘arbitrariness’, it proceeds on the basis of AP v. McDowell. It seems that McDowell did not absolutely rule out arbitrariness, but only insisted that the mere formulation ‘arbitrary’ is meaningless: the issue of why something is arbitrary must depend on constitutional analysis. What the Court said was, “Some or other constitutional infirmity…” is needed. Naturally: nothing is invalid because one asserts that it is arbitrary: if one says something is arbitrary, one must point out why it is arbitrary having regard to the constitutional scheme. Nobody denies that: the Petitioners in Panchayati Raj were not saying that the law is arbitrary because they dislike it. Rather, the law is arbitrary because it restricts a constitutional right (and this is admitted by the Court) without any constitutionally valid basis.

Secondly, in Malpe Vishwanath, a Bench seems clearly to leave open the arbitrariness window for challenging laws. Dealing with certain legal provisions of the Bombay Rent Control Act, the Court concluded its judgment by noting:

“It is, however, made clear that any further extension of the existing [legal] provisions without bringing them in line with the views expressed in this judgment, would be invalid as being arbitrary and violative of Article 14 of the Constitution and therefore of no consequence.”

Thirdly, in Mardia, on the question of whether a condition of pre-deposit prior to filing an appeal was invalid, the Court held that this was “unreasonable and oppressive” and ultimately uses the arbitrariness standard to strike down a law.

Merely relying on McDowell then is not sufficient to reject the ‘arbitrariness’ challenge. What the Court ought to have done is examined why – having admitted the relevant rights to be on a higher pedestal than statutory rights – the restrictions were valid in the constitutional scheme. There does not seem to be any independent reasoning on this aspect.

Both Malpe and Mardia are cited only in footnote 34 of Panchayati Raj; and there is no independent analysis of these aspects. In footnote 34, the cases are cited as part of Petitioner’s submissions in another case. Nothing negative about these cases (on the grounds of arbitrariness) seems to have been stated in the other case.

In the circumstances, the present 2 judge bench should not have gone into this question to conclude that arbitrariness is irrelevant: at the highest this should have been referred to a larger Bench.

Furthermore, whatever one thinks of the correctness of Royappa, it is surely not open for a Bench of 2 Hon’ble Judges [and the Bench did not even indicate anything to the contrary] to reconsider Royappa. If one assumes Royappa to reflect the current position, there seems to be no reason in principle as to why the content of Article 14 would change depending on what is under challenge. Either Article 14 embodies an arbitrariness test or it does not. The answer to ‘what is the correct test as a matter of law under Article 14’ cannot turn on whether the challenge is to an executive action or to legislation, as the Court seems to indicate. Of course, what is being challenged may be relevant to the standards of review in the application of the test. Thus, one could argue that a legislative act requires greater deference than a purely executive act. At the same time, there are surely arguments which indicate that the standard of deference must also consider the nature of the rights at issue. I do not wish to examine issues pertaining to standards of scrutiny: the only point I wish to make is that the content of Article 14 cannot change in the manner suggested by the Court.

Perhaps, one could reconcile the cases and say that Article 14 embodies the standard equality test of whether there is a reasonable nexus with the object. However, the ‘arbitrariness’ keeps in check both, the object and the method for achieving the object. In other words, a law making it compulsory for red-haired IFS officers to get a haircut cannot be defended on the basis that “red-headed people are the butt of jokes, and having red headed people conduct international negotiations results in Indian prestige going down” [even if it is true that red-headed people in general are the butt of jokes]. In other words, ‘arbitrariness’ helps in determining what differential is intelligible and further, what methods are rational: and also reminds the State that constitutional morality means that certain objects and methods are always off the table.

Naturally, this requires the Court to analyze the Constitution to determine what is arbitrary in the constitutional sense. Not wanting to do this is, respectfully, not a ground for saying that one cannot challenge a law as arbitrary in any case.

[I do not add anything in this post on why the object is or is not arbitrary: that aspect has been dealt with in several other posts.]

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(Mihir is a Bombay-based lawyer)

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Blog Author’s Note: While agreeing with all that Mihir has said, I would add that Rajbala exhibits, in stark terms, the urgent need for a sustained judicial conversation about Article 14. At the root of Justice Chelemeshwar’s unease with the arbitrariness test appears to be, well, its arbitrariness. In Royappa, the arbitrariness test arose out of a justified judicial dissatisfaction with the formalism and emptiness of the traditional classification test under Article 14. As Mihir correctly notes, under traditional Article 14 scrutiny, you could have laws requiring red-haired IFS officers to get a haircut in the interests of maintaining national prestige. There is an intelligible differentia, a purpose, and a rational nexus. The deeper point is that at bottom, the classification test is empty and almost circular – any classification can be defended by producing some purpose with which it bears a rational nexus. Therefore, all that it achieves is to prevent governmental opacity – the State has to produce some justification, and the very requirement of making its reasons public will, in some sense, constrain the kinds of purposes it puts forth.

In order to move beyond this, a Court can do one of two things: put a constraint upon what counts as a “legitimate purpose” (this is what the High Court tried to do in Naz Foundation and in Subramanian Swamy), or subject the ‘rational’ nexus to more rigorous scrutiny. In her article on Indian gender discrimination law, Catherine MacKinnon reads E.P. Royappa to have attempted both through its new arbitrariness test: replacing doctrinaire equality with something more substantive. The problem is that the Court never really advanced upon this; ironically enough, one of the most egregious applications of the arbitrariness test was in Nargesh Mirza, where the Court held that compulsory termination upon first pregnancy was “arbitrary”, but upon the third pregnancy was not! Sitting here at the end of 2015, we’ve had 41 years since Royappa, and it is still unclear what the arbitrariness test is really about.

The absence of a meaningful complement to Article 14’s classification test must rank as one of the most serious failures in the Supreme Court’s history. This is compounded by the fact that it is precisely over the last forty years that other commonwealth jurisdictions have made great strides in their equality/discrimination jurisprudence. The United States has developed a tiered structure of review (strict scrutiny for race-based classifications, intermediate scrutiny for sex-based classifications, rational review for economic legislation etc.), which is focused upon the strength of the connection between the classification and the purpose. Canada and South Africa have developed a complex discrimination-law jurisprudence that speaks to preventing and ameliorating structural disadvantage, or remedying systemic indignities. The ECHR and the UK courts have made legislative and doctrinal advances of their own.

If we’re to escape from the Scylla of classification and its empty formalism, and the Charybdis of arbitrariness’ arbitrariness, going forward, the Court needs to have a serious conversation about the place of equality within our Constitutional scheme. This might require clarifying and concretising the arbitrariness test: what, exactly, does it mean for legislation to be ‘arbitrary’? Does arbitrariness rule out certain legislative goals that are contrary to the constitutional scheme (such as, say, endorsing invidious stereotypes or perpetuating group disadvantage)? Or does it require more rigorous levels of scrutiny, such as narrow tailoring and substantial relationship (instead of mere rationality), in certain specific cases, such as where vulnerable groups are involved? Alternatively, the Court might take its cue from Justice Chelemeshwar, and abandon ‘arbitrariness’ altogether in favour of a more direct approach to Article 14. Either way, it is a conversation that we can only hope will happen soon.

Guest Post: Religious Freedom and Archaka Appointments in the Supreme Court’s Recent Decision

(In this guest post, Suhrith Parthasarathy, a Madras-based lawyer, discusses the recent Supreme Court decision on Archakas and Agamas)

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Previously, in a three-part essay published on this blog, I had previewed a case concerning the appointment of archakas (priests) to Tamil Nadu’s temples which brought to light seemingly significant conflicts between the rights of certain denominations to a freedom of religion and conscience and the state’s duty in bringing forth reform and welfare to society. Last week, a two-judge bench of the Supreme Court of India, in Adi Saiva Sivachariyargal Nala Sangam & Others v. The Government of Tamil Nadu & Another, delivered a final verdict in this case. Unfortunately, the judgment, authored by Justice Ranjan Gogoi, not only lacks clarity, but also fails to address the key constitutional questions at the root of the dispute.

 Conventionally, as a matter of custom, archakas were consecrated by virtue of rights flowing through what are known as the Agamas, which are a collection of scriptures governing the conduct of a Hindu temple’s religious affairs. The Agamas include within their numerous diktats specific criteria for eligibility to the post of an archaka. One such criterion was explicated by the Supreme Court, as an example, in Seshammal v. State of Tamil Nadu [ERJ Swami v. The State of Tamil Nadu], AIR 1972 SC 1586. The statement is worth quoting in full:

 

“Shri R. Parthasarthy Bhattacharya, whose authority on Agama literature is unquestioned, has filed his affidavit in Writ Petition No. 442 of 1971 and stated in his affidavit, with special reference to the Vaikhanasa Sutra to which he belongs, that according to the texts of the Vaikhansa Shastra (Agama), persons who are the followers of the four Rishi traditions of Bhrigu, Atri, Marichi and Kasyapa and born of Vaikhanasa parents are alone competent to do puja in Vaikhanasa temples of Vaishnavites. They only can touch the idols and perform the ceremonies and rituals. None others, however, high placed in society as pontiffs or Acharyas or even other Brahmins could touch the idol, do puja or even enter the Garbha Griha. Not even a person belonging to another Agama is competent to do puja in Vaikhanasa temples. That is the general rule with regard to all these sectarian denominational temples. It is, therefore, manifest that the Archaka of such a temple besides being proficient in the rituals appropriate to the worship of the particular deity, must also belong, according to the Agamas, to a particular denomination.”

 

From time immemorial, the Agamas have represented a personal law relating, among other things, to the appointment of archakas to Hindu temples. However, through its constant usage and application a convention appeared to have developed by which appointments of archakas were made only on the basis of hereditary succession, usually from within a small denomination of Brahmins. This practice of making hereditary appointments, while not a part of the personal law as contained in the Agamas, came to form a custom, of sorts, and was accorded further legitimacy by Section 55 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, a legislation that was enacted to specifically enable a complete takeover of Hindu temples by the State. The section reads: “(1) Vacancies, whether permanent or temporary, among the office-holders or servants of a religious institution shall be filled up by the trustee in cases where the office or service is not hereditary.” And “(2) In cases where the office or service is hereditary, the person next in the line of succession shall be entitled to succeed.”

In 1970, the Tamil Nadu government amended Section 55. It now read as follows: “(1) Vacancies, whether permanent or temporary among the office holders or servants of a religious institution shall be filled up by the trustee in all cases. Explanation: The expression ‘Office-holders or servants shall include archakas and poojaris.’” And “(2) No person shall be entitled to appointment to any vacancy referred to in sub-section (1) merely on the ground that he is next in the line of succession to the last holder of office.” 

Soon after the provision was modified, a group of hereditarily appointed Archakas challenged the amendment, in Seshammal, arguing that their rights under Articles 25 and 26 stood infracted. A five-judge constitutional bench, speaking through Justice D.G. Palekar’s opinion, dismissed these petitions, but nonetheless provided an additional imprimatur to the supposed sacrosanctity of the Agamas. The power to make appointments of archakas, the court held, was a secular function—the archaka, the judgment said, was “a servant of the temple…As a servant he is subject to the discipline and control of the trustee as recognised by the unamended Section 56 of the Principal Act [Tamil Nadu Hindu Religious and Charitable Endowments Act] which provides all office-holders and servants attached to a religious institution or in receipt of any emolument or perquisite there from shall, whether the office or service is hereditary or not be controlled by the trustee, and the trustee may, after following the prescribed procedure, if any, fine, suspend, remove or dismiss any of them for breach of trust, incapacity, disobedience of orders neglect of duty, misconduct or other sufficient cause. That being the position of an Archaka, the act of his appointment by the trustee is essentially secular. He owes his appointment to a secular authority.” Nonetheless, while the state is exercising a secular power in making appointments, the court found that the the criteria prescribed under the Agamas was essential to the practice of the religion, and was therefore inviolable. “In a Saivite or a Vaishnavite temple the appointment of the Archaka will have to be made from a specified denomination, sect or group in accordance with the directions of the Agamas governing those temples,” wrote Justice Palekar. “Failure to do so would not only be contrary to Section 28(1) [of the Tamil Nadu Hindu Religious and Charitable Endowments Act] but would also interfere with a religious practice the inevitable result of which would be to defile the image.” However, according to the court, while making appointments from a specified denomination, sect or group in accordance with the Agamas, the state was not bound to follow a principle of hereditary succession, and therefore the amendment was found valid.

In so holding, the Supreme Court effectively foiled the Tamil Nadu government’s intention to appoint archakas from denominations beyond those purportedly prescribed under the Agamas. After decades of accepting the status quo, in 2006, the government sought to adopt a more direct approach—it introduced an executive order stating, “Any person who is a Hindu and possessing the requisite qualification and training can be appointed as a Archaka in Hindu temples.” The ostensible objective of this order was to allow the state to appoint archakas, by prescribing a new set of criteria, which would not necessarily be in consonance with the Agamas. The order was followed by an ordinance, which declared that “suitably trained and qualified Hindus, without discrimination of caste, creed, custom or usage” could be appointed as priests to temples administered by the government of Tamil Nadu. This ordinance however subsequently lapsed, leaving the executive order alone as the subject matter of challenge before the Supreme Court in Adi Saiva Sivachariyargal Nala Sangam.

The petitioners in Adi Saiva Sivachariyargal Nala Sangam argued that the Supreme Court was bound by the decision of the 5-judge bench in Seshammal. According to them, any deviation from the Agamas in appointing archakas, would infract their rights under Articles 25 and 26. While the power to appoint priests was a secular function, the qualifications prescribed under the Agamas, they argued, were essential to the practice of their religion, and were therefore inviolable. Countering, the State sought to rely on another decision of the Supreme Court, N. Adithayan v. The Travancore Devaswom Board, AIR 2002 SC 3538. Here, a two-judge bench had upheld the appointment of a person from outside the Malayala Brahmin community as priest of a Siva temple in Kerala. The State further contended that the Petitioners’ rights under Article 25 were not violated by the executive order, as it was a measure intended at bringing forth social reform and welfare—a feature, which the Constitution specifically protects.

The Supreme Court however, took a curious approach to determining the issue. The bench found (correctly) that the decision in N. Adithayan was inapplicable to the present contest, as it was a judgment rendered on very specific facts, where a petitioner had been unable to prove that an appointment of a priest from a community outside of his own was in violation of any established religious practice, protected under Article 25. The court similarly found (more questionably though) that its decision in Seshammal was also of only limited relevance to the present dispute. “Seshammal is not an authority for any proposition as to what an Agama or a set of Agamas governing a particular or group of temples lay down with regard to the question that confronts the court, namely, whether any particular denomination of worshippers or believers have an exclusive right to be appointed as Archakas to perform the poojas,” Justice Gogoi wrote. “Much less, has the judgment taken note of the particular class or caste to which the Archakas of a temple must belong as prescribed by the Agamas. All that it does and says is that some of the Agamas do incorporate a fundamental religious belief of the necessity of performance of the Poojas by Archakas belonging to a particular and distinct sect/group/denomination, failing which, there will be defilement of deity requiring purification ceremonies.”

Having found that neither of these judgments was particularly helpful to it in resolving the dispute, the court arrived at an unusual conclusion. Wrote Justice Gogoi:

 “…It will be necessary to re-emphasise what has been already stated with regard to the purport and effect of Article 16(5) of the Constitution,* namely, that the exclusion of some and inclusion of a particular segment or denomination for appointment as Archakas would not violate Article 14 so long such inclusion/exclusion is not based on the criteria of caste, birth or any other constitutionally unacceptable parameter. So long as the prescription(s) under a particular Agama or Agamas is not contrary to any constitutional mandate as discussed above, the impugned G.O. dated 23.05.2006 by its blanket fiat to the effect that, “Any person who is a Hindu and possessing the requisite qualification and training can be appointed as a Archaka in Hindu temples” has the potential of falling foul of the dictum laid down in Seshammal (supra). A determination of the contours of a claimed custom or usage would be imperative and it is in that light that the validity of the impugned G.O. dated 23.05.2006 will have to be decided in each case of appointment of Archakas whenever and wherever the issue is raised. The necessity of seeking specific judicial verdicts in the future is inevitable and unavoidable; the contours of the present case and the issues arising being what has been discussed.”

 

[*Note: Clauses 1 and 2 of Article 16 provide that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State, and that no no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State. Article 16(5) however carves out an exception for laws relating to appointments by the State to religious or denominational institutions where a person professing a particular religion or belonging to a particular denomination may be accorded special preference.]

Any law, whether legislative or otherwise, can either be valid or invalid. It’s difficult to understand how the constitutionality of an executive order can differ based on the facts and circumstances of an appointment made under such a law. The issue really ought to have been simple enough for the Supreme Court from a purely constitutional perspective. That the Agamas and its diktats represent an essential religious practice is now trite. After all, the court, in a five-judge bench decision in Seshammal, has already held thus. The only question that was to be answered therefore was whether the governmental order, which sought to deviate from the Agamas, was protected by any one of the exceptions carved into Article 25, specifically whether it was necessary in the interest of social welfare and reform. Unfortunately, the bench in Adi Saiva Sivachariyargal Nala Sangam makes no attempt to answer such questions. Instead, it ends with a rather flawed proposition—that the government order ought to be tested on the touchstone of Article 14, each time an appointment of an archaka is made.

The effective result of the judgment is therefore this: that the executive order is simply extraneous to any appointment of an archaka. Any selection made in the future would have to be in consonance with the Agamas. However, in cases of appointments, where caste, birth or any other constitutionally unacceptable parameter, to use the court’s words, are invoked as criteria, such a choice would be open to challenge under Article 14. This is a quite remarkable conclusion. There is no finding in the judgment on whether the criteria fixed in the Agamas constitute “law” within the meaning of Article 13(3) (it’s apposite to remember here that the court in Seshammal only found that the power of appointing priests to be a secular function; the qualifications for such a post, prescribed as they are under the Agamas, were considered essential to the practice of religion). If the Agamas fall within what are generally regarded as “personal laws,” they would fall outside the scope of the definition prescribed in Article 13(3), and they would therefore not be amenable to a challenge under Article 14. Interestingly, in July this year, in Riju Prasad Sarma v. State of Assam, (2015) 9 SCC 461, the Supreme Court had found that religious scriptures are in the nature of personal law and their validity is ordinarily protected by Articles 25 and 26. The Supreme Court’s almost hypothetical conclusion that an appointment made under the Agamas would infract Article 14 if the appointment partakes a consideration based on caste is therefore doctrinally unsustainable. Were such a position to be accepted, it may well be tantamount to reforming a religion out of existence, to use Justice N. Rajagopala Ayyangar’s aphorism in Sardar Syedna Taher Saifuddin Saheb v. The State of Bombay, AIR 1962 SC 853, for no classification made in a religious scripture is likely to meet the scruples of Article 14.

Ultimately the Supreme Court’s decisions on matters such as these turn on political considerations. In Adi Saiva Sivachariyargal Nala Sangam, the court was clearly handicapped by the decision of its larger bench in Seshammal; what’s more, while Article 25 permits the State to bring forth a law in the interest of social reform and welfare, such a law would necessarily have to be introduced by way of legislation. Unless a larger bench overrules Seshammal, the Agamas cannot be considered as anything but an essential religious practice. And it must logically follow therefrom that the thwarting of appointments of archakas under the Agamas can only be made by way of legislation, and only in the interest of social reform and welfare. Hence, purely on constitutional grounds, the Supreme Court, in my submission, has erred in failing to strike down the Tamil Nadu government’s executive order. Additionally, the court has left us with a further conundrum. Now, every time an appointment of an archaka is made, the selection is likely to be challenged. Each of those challenges will likely entail an analysis of the Agamas, an exercise that the courts are certainly not competent to perform. Reformation of religion is an important function of the state, especially in a country such as ours, where social iniquities abound. But, regardless of how we might feel intuitively about a reformatory measure of the State, the question of how far a constitutional court must go in furthering this movement continues to perplex.

The International Journal of Constitutional Law’s Coverage of Indian Constitutionalism (or the lack thereof)

(Disclaimer: I should state at the outset that I have had two papers rejected by the International Journal of Constitutional Law, and entirely correctly: the first time was when I submitted an individual article as a third-year law student – naturally, it was of terrible quality; the second was a paper submitted as part of a group of papers for an India-themed symposium – the collection was rejected as a whole, probably because it was rather unbalanced – it had only five papers, two of which were on the death penalty).

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The International Journal of Constitutional Law is the leading and most authoritative law review on comparative constitutionalism. It has been in existence for the last thirteen years, and publishes three or four volumes every year. From time to time, it publishes symposia either on a regional basis, or on a thematic basis. It is undoubtedly the leading forum for comparative constitutional conversations, from the academic perspective.

I’ve often used IJCL for my research and writing, but rarely come across work on Indian constitutionalism in the journal. After Madhav Khosla’s well-received piece on social rights, the first time I did so was when I chanced upon a footnote in another article, that referred me to Catherine MacKinnon’s piece in the ICJL on Indian sex discrimination law. This made me uneasy, for more than one reason. Apart from it being the first time, in years, that I had come across an IJCL reference to India, I was also struck by the fact that it was an American constitutional scholar, who – to the best of my knowledge – had no history of engagement with Indian constitutionalism – writing on a fairly nuanced and complex area of Indian constitutional law (I have a lot of problems with the content of that article, but this isn’t the place to go into them). It struck me immediately: couldn’t they have found an Indian to write about Indian constitutional law? 

I then undertook a survey of the IJCL archives, to find out pieces on Indian constitutional law and constitutionalism. This is what emerged:

1. Vol. 1(3) has an article by Burt Neuborne on the Supreme Court of India: http://icon.oxfordjournals.org/content/1/3/476.full.pdf+html
2. Vol. 1(4) has an article by Upendra Baxi on Dworkin and the Indian Constitution: http://icon.oxfordjournals.org/content/1/3/476.full.pdf+html
3. Vol. 2(1) has an article by Vijayashri Sitapati and Arun Thiruvengadam on the Right to Education: http://icon.oxfordjournals.org/content/2/1/148.full.pdf+html
4. Vol. 3(4) has a contribution by N. Santhosh Hegde as part of a judges’ round-table: http://icon.oxfordjournals.org/content/3/4/560.full
5. Vol. 4(2) has a contribution by Catherine MacKinnon on gender equality under the Indian Constitution: http://icon.oxfordjournals.org/content/3/4/560.full
6. Vol. 4(4) has Smita Narula reviewing The Wheel of Law: http://icon.oxfordjournals.org/content/4/4/741.full
7. Vol. 7(3) has an article by Sujit Choudhry on ‘linguistic nationalism through constitutional design’: http://icon.oxfordjournals.org/content/7/4.toc
8. Vol. 8(4) has an article by Madhav Khosla on social rights: http://icon.oxfordjournals.org/content/8/4/739.full
9. Vol. 11(1) has a book review by Morag Goodwin, of ‘Corruption and Human Rights’, http://icon.oxfordjournals.org/content/11/1/265.full.pdf+html

 

Quite apart from the fact that I see no conceivable reason why Burt Neuborne, an American constitutional scholar, should have a piece on the Indian Supreme Court (again, was there no Indian to write about the Indian Supreme Court?), there are a couple of things that need to be noted. The first is that thirteen years of the IJCL have resulted in nine pieces on Indian constitutionalism. Out of these, two are book reviews, and one is a part of a judicial round-table. This brings the number of substantive pieces to six in thirteen years – an average of less than one every two years. Out of these six, in turn, two (1 and 2) are generic. I.e., four pieces on substantive constitutional issues in thirteen years, an average of less than one every three years. Let’s assume that I’ve missed a few – I’d venture to suggest that we still won’t get to an average of one a year. There has been no India-themed symposium in thirteen years (i.e., around forty-five issues). Given that India is the world’s largest constitutional democracy, I’d suggest that there is a rather serious problem of under-representation.

The second point I want to highlight is that out of the four substantive pieces, three have been written by scholars based abroad (two of whom are foreigners, out and out). The exception is Khosla’s piece (Khosla was at CPR Delhi when it was written). I am not for one moment advocating some variant of constitutional nativism or parochialism, but I do feel that there is something very seriously wrong when, in its history, IJCL has had one piece written by an Indian constitutional scholar, based in India, on Indian constitutional law.

(Again, I might have missed some pieces, so my figures may be off by a little – but as it stands, they are so microscopic, that I doubt it will make a difference).

To this I wish to add a brief point. During my time in the UK and the US, I took courses in comparative constitutional law at both universities. India was represented – as the country of PIL and of socio-economic rights adjudication. It was not represented – or minimally represented – on issues of civil and political rights, separation of powers, federal structures, emergency jurisprudence etc, issues on which we have detailed and complex jurisprudence. Going through the IJCL archives drives home a rather unfortunate realisation – beyond PIL and socio-economic rights, it seems that Indian constitutionalism is simply not a part of the global conversation. Part of the reason, of course, is probably that there are not enough Indians writing – and yet I cannot but help feel that institutions like the IJCL – which has “international” and “constitutional” next to each other – could do a little, or a lot more, when it came to issues of equitable representation.

Draft Bill and Workshop on Discrimination Law

On this blog, we have extensively covered discrimination law jurisprudence in India. For people interested in the field, and based in Delhi, there is an event tomorrow that promises to be hugely interesting. The Centre For Policy Research is organising a workshop on a draft anti-discrimination bill, prepared by Dr Tarunabh Khaitan of the University at Oxford (originally at the instance of the Delhi government).  Speakers include Dr Khaitan, Michael Kirby, Siddharth Narrain, Jayna Kothari, Saumya Uma and Shyam Babu).

You can access the draft bill here. I will put up the full text in a separate post on the blog. Readers will note that the Bill covers several aspects that we have discussed on this blog, and upon which the Indian Courts’ jurisprudence is either non-existent, or rather disappointing. Sections 5 and 6 of the Bill specifically define both direct and indirect discrimination, and Section, both of which are prohibited by Section 11. In this way, the Bill makes explicit what the Supreme Court gestured towards in Anuj Garg.

Of particular interest is Section 8 of the Bill, that defines a “boycott”, and subsequently makes the prohibition of boycotts part of the anti-discrimination duty. The prohibition upon boycott stems from a specific Indian history (and present), where oppression took the form of cultural, social and economic exclusion, predominantly on the basis of caste. As Anupama Rao records in her book, Caste Question, Ambedkar’s civil rights movements in the 1920s made access to village wells and village temples as their main demands. The Constitution itself nods towards this reality through Articles 15(2) and 25(2)(a), but, as we know, these provisions have been relatively ineffectual through our post-Constitutional history. Section 8 goes much further, defining a boycott as:

“… any overt or implicit abetment, support, encouragement, facilitation, or practice of any social, economic, political, cultural or other form of avoidance, ostracism, excommunication  or exclusion that is targeted against or likely to adversely affect members of a protected group.”

Of similar import is Section 9, which defines ‘segregation’.

Section 12(6) of the Bill is of great interest as well, since it defines the relationships to which the anti-discrimination duty will apply. These include relationships of employment, tenancy, service provision, and those which involve public functions. In jurisdictions such as Canada, the nature of the “public”, in the context of the public/private divide, has received significant attention. In India, the term “public function” has been interpreted in the context of parties subject to writ jurisdiction under Article 226; it will be very interesting to think about whether the same meaning of the term should apply to anti-discrimination law.

Section 13 of the Bill prescribes a range of remedies, which are restricted to a civil nature. Leading on from this, Part D then imposes positive obligations of diversification, diversity training and affirmative action. On the lines of family courts, it provides for the setting up of dedicated Equality Courts within the existing trial court structure.

Over and above the substantive issues I have already flagged, it will be interesting, also, to discuss issues of legislative competence, especially with regard to specific non-discrimination duties against LGBT persons, in the teeth of the still-standing S. 377. In short, it promises to be a fascinating day of discussion and brainstorming.

Details:

Friday, 18 December 2015

10:30 am to 4:00 pm

Conference Hall, Centre for Policy Research

Deemed Universities and Article 12 of the Constitution

Krupakar Manukonda has drawn my attention to an interesting Supreme Court judgment handed down yesterday. In Dr. Janet Jeyapaul v SRM University, the question was whether a writ petition was maintainable against the SRM University, which is a “deemed University” within the meaning of S. 3 of the UGC Act (the petitioner had filed a writ petition complaining of unfair termination of services).

The Supreme Court held that the petition was maintainable under Article 226 of the Constitution, since SRM University had been constituted for – and was engaged in – performing a “public function”. In paragraphs 15 and 16, it relied upon De Smith, “a well-known treaty (sic!)” on judicial review, and the English case of R v Panel. This is somewhat curious, since both the treatise and the judgment deal with the scope of judicial review in a common law system sans a Constitution, while in the present case, the issue turned upon the scope of Article 226 of the Constitution. In any event, in paragraph 22, the Court provided five reasons for its decision:

“Firstly, respondent No. 1 is engaged in imparting education in higher studies to students at large. Secondly, it is discharging “public function” by way of imparting education. Thirdly, it is notified as a “Deemed University” by the Central Government under Section 3 of the UGC Act. Fourthly, being a “Deemed University”, all the provisions of the UGC Act are made applicable to respondent No. 1, which inter alia provides for effective discharge of the public function – namely education for the benefit of public. Fifthly, once respondent No. 1 is declared as “Deemed University” whose all functions and activities are governed by the UGC Act, alike other universities then it is an “authority” within the meaning of Article 12 of the Constitution. Lastly, once it is held to be an “authority” as provided in Article 12 then as a necessary consequence, it becomes amenable to writ jurisdiction of High Court under Article 226 of the Constitution.”

The underlined paragraph is a little curious. It is by now well-established that the correct test for determining whether or not a particular body falls within the meaning of “other authority” under Article 12, is whether it is within the “functional, financial and administrative” control of the State. The fact that the legal status of a body is determined by a statute is neither necessary, nor sufficient, for it to fall within Article 12. In the early case of Sukhdev Singh v Bhagat Ram, the Supreme Court had noted:

“A company incorporated under the Companies Act is not created by the Companies Act but comes into existence in accordance with the provisions of the Act. It is not a statutory body because it is not created by the statute. It is a body created in accordance with the provisions of the statute.”

There is a distinction, therefore, between a body that is conferred with a certain legal status under a statute, and a body that is created by the statute. Unarguably, in the former case, the legal status, without anything more, is insufficient to bring the body within the meaning of Article 12. Here, however, the Supreme Court seems to have held that the mere fact that the SRM University is brought within the purview of the UGC Act automatically brings it within Article 12, without any analysis of whether the control test has been satisfied.

Indeed, in 2012, while dealing with an identical issue, the Rajasthan High Court observed:

“Perusal of the pleadings reveals that no facts pertaining to financial or administrative involvement and control of the Central or the State Government in any manner has been pleaded. The only argument is in regard to section 3 of the UGC Act whereby BITS has been declared as ‘deemed to be university’. Merely declaring respondent BITS as deemed to be university does not cover it under Article 12 of the Constitution.”

(The single judge’s opinion has been challenged on the ground that a previous division bench of the Rajasthan High Court had already held BITS to fall within Article 12. Interestingly, in that case, the Court had gone into a detailed analysis of the functional, financial, and administrative control exercised upon BITS by the government – see here).

It is unclear why the Supreme Court needed to go into Article 12 at all. As we have discussed before on this blog, the tests for maintainability under Articles 12 and 226 are different, and the word “authority” has a much broader meaning under Article 226 than it does under Article 12. A public function test is sufficient to attract Article 226, as compared to the much stricter control test under Article 12. This, being an Article 226 case, could have been decided solely on public function grounds. The introduction of Article 12, and the manner in which it has been discussed, raises some concerns about the future direction of law on the point.

Addendum: Not Just a Structural Issue

On the SpicyIP blog, Thomas J. Vallianeth has a response to my previous short piece, pointing out plagiarism in some of the Supreme Court’s important constitutional judgments. Thomas writes:

“Gautam in his piece suggests that un-originality in judgements is a consequence of the approach to writing judgements; that they are often simply a collection of facts, precedent and a skimpy analysis following this, leading to a conclusion. This is a consequence he says of the manner in which judgements are written – by adopting parties’ submissions and adding some analysis to this. While this may be a large factor, what I think is more of a causal factor in this problem is the workload that judges have to deal with. Daksh, an organisation based out of Bangalore that works on, among other things – judicial delays, by analysing caseloads that judges are faced with, highlights how judges are severely overburdened with case load. Recently, at a lecture hosted by them, they offered a brilliant approach to better the quality of judgements that come out of the higher judiciary. They suggest that the reason a judge would opt to be part of the higher judiciary is largely due to intellectual rigour that the position demands and therefore is best incentivised to deliver good judgements if they have the satisfaction of effectively engaging in the exercise that the writing demands. This is virtually impossible with the current workloads that these judges are occupied with – a problem that is compounded by the huge number ofvacancies that High Courts in India have at the moment.”

There is a lot of truth to this. Having spent six months with a High Court judge, I can personally attest to the clogged board, the mounting backlog, and to how hard and how continuously judges have to work. There is precious little time for thoughtful reflection and engagement with the legal issues; as one judge remarked to me, paraphrasing Lord Denning, “we would like to be architects, but constraints of time compel us to be masons.”

So there is no doubt that structural reform is necessary if we want to improve the quality of judgments. I do fear, however, that if we simply stop at the backlog, we risk missing the fact that the cause of the backlog is not simply structural issues beyond the control of the judges themselves – indeed, quite the contrary. Consider the following:

1. Earlier this year, former Supreme Court judge Markandey Katju moved the Supreme Court, through senior counsel Gopal Subramanium, against a Parliamentary resolution condemning his comments on Mahatma Gandhi and Subhash Chandra Bose. Parliamentary resolutions have no legal force, Katju’s right to free expression had not been inhibited in any conceivable way, and the petition was manifestly ill-founded. Yet a three-judge bench actually heard this case for a significant while, and then asked the Attorney-General as well as senior counsel Fali Nariman to assist it in the matter. It was reported (I can’t vouch for the accuracy) that one of the judges told Katju to “get ready for a debate”. I don’t know what has happened after the hearing, but it is difficult to understand why the bench did not dismiss the petition in a few minutes (as happens to most other petitions), and required not just hours to hear it, but to then also (potentially) waste the time of the Attorney-General and Fali Nariman on this point.
2. In October of this year, the Supreme Court heard detailed arguments on whether “the Sanskrit shlokas from the hymn, Venkatesa Suprabhatam, can be recited to wake up Lord Vishnu at the Padmanabhaswamy temple in Thiruvananthapuram.”
3. On September 1 of this year, the Supreme Court handed down a judgment pertaining to an incident from 1992, where a UP bus conductor was accused of carrying 25 passengers without a ticket. The Supreme Court was the third judicial institution to hear this dispute – the Labour Court and the High Court had already adjudicated the matter, and passed judgments. Nonetheless, the highest court in the land saw fit to admit the appeal, hear it, and then write a seventeen page judgment on the point. I wonder if there is any other Supreme Court that hears cases of this kind.
4. The case mentioned above is not an isolated instance. As anyone who has stepped into the Supreme Court will testify, the Court regularly hears cases that simply have no business before it. A study by Nick Robinson last year that constitutional cases comprise around 7% of the Court’s docket. Obviously, there are cases other than constitutional cases that need to be heard by the apex Court, but a substantial chunk of it ought to be finally resolved by the state High Courts, at most.
5. There is virtually no time limit imposed upon the oral arguments made by senior advocates. The Shreya Singhal Case – which, at the end of the day, involved three legal issues, none of which was of insurmountable complexity – was heard twice, and each time it took weeks. A Constitution Bench heard the NJAC challenge for months. The criminal defamation challenge was heard for weeks. In these cases, counsel literally took days to complete their arguments. Again, as anyone who has been in the Supreme Court will know, an extraordinary amount of time is taken up by counsel reading out pages and pages of judgments, time that can very easily be shortened.
6. The problem is compounded by the fact that big-ticket constitutional cases have an exploding number of petitioners seeking impleadment, with the end result being that arguments are regularly replicated. This is evident from a quick perusal of these judgments, where the phrase “Learned Shri X adopted the submissions of Learned Shri Y… he would also submit…

It should therefore be clear that heavy dockets are not entirely beyond the control of judges themselves. Judges regularly admit matters that have no place in a country’s Supreme Court, and they do not restrict senior counsel to time limits when arguing. Yes, we need structural reform; but we cannot also absolve the judges of personal responsibility. Much can be summed up by that old phrase: “physicial, heal thyself.n

Supreme Court Upholds Haryana Panchayati Raj Act

This morning, the Supreme Court upheld the Haryana Panchayati Raj Act amendments, which imposed educational, debt and property-based restrictions upon the right to contest Panchayat elections. On this blog, we have argued in detail that the Act was unconstitutional, and ought to have struck down (all posts may be accessed here).

I began to read this judgment with a view to engaging with, and responding to the reasons provided by the Court to reach the contrary view. The reasoning – as far as I can make out – is found in paragraph 40:

“It is only education which gives a human being the power to discriminate between  right and wrong, good and bad.  Therefore, prescription of an educational qualification   is   not   irrelevant   for   better administration of the PANCHAYATS.  The classification in our view cannot be said either based on no intelligible differentia unreasonable or without a reasonable nexus with the object sought to be achieved.”

However, this is only a blanket assertion, without any further justification. Then, on debt restrictions, in paragraph 92, the Court declines to examine the statistics on the extent of rural indebtedness. It then observes:

“We are also not very sure as to how many of such people   who   are   so   deeply   indebted   would   be   genuinely interested in contesting elections whether at PANCHAYAT level or otherwise. We can certainly take judicial notice of the fact
that elections at any level in this country are expensive affairs. For that matter, not only in this country, in any other country as  well they are expensive affairs.   In such  a case the possibility of a deeply indebted person seeking to contest elections should normally be rare as it would be beyond the economic capacity of such persons.   In our opinion, the challenge is more theoretical than real.”

In other words, because poor people normally would be unable or unwilling to fight elections, it is permissible to debar them altogether. But surely this is no rational nexus under Article 14.

On the issue of functional toilets, the Court notes sanitation schemes carried out by the government, and then observes in paragraph 95:

“As rightly pointed by the respondents, if people still do not have a toilet  it is not because of their poverty but because of their lacking the requisite will.  One of the primary duties of any civic body is to maintain sanitation within its jurisdiction.  Those who aspire to get elected to those civic bodies and administer them must set an example for others.   To the said end if the legislature stipulates that those who are not following basic norms of hygiene are ineligible to become administrators of the civic body and disqualifies them as a class from seeking election to the civic body, such a policy, in our view, can neither be said to create a class based on unintelligible criteria nor can such classification be said to be unconnected with the  object sought to be achieved by the Act.”

In other words, in order to ensure that only people who “can set an example to others” are allowed to stand for elections, the State can simply debar everyone else.

I have made detailed arguments before about why this law was unconstitutional. There is little purpose to rehearsing them here. Suffice it to say that the judgment does not engage with the place and structure of voting and contesting elections in a democratic republic (despite a few paragraphs that purport to do so, and bear no relation with the core of the judgment); it does not engage with standards and burdens of proof under Article 14; and it does not explain how the proposed restrictions meet the test of Article 14. The reasoning, unfortunately, seems to be based upon a series of assertions, generalisations and stereotypes.

 

The Indian Judiciary and Plagiarism

On December 1, the Spicy IP blog reported that a Division Bench of the Delhi High Court had plagiarised thirty-three paragraphs of its judgement in Roche v Cipla from a law review article written by Shwetasree Majumder and Eashan Ghosh in the Queen Mary Journal of Intellectual Property. In an order passed yesterday, the High Court acknowledged the truth of the report, apologised to the authors, and laid the responsibility at the door of an intern who had been charged with writing a precis of the facts of the case.

As has been observed already, the plagiarised portions only involved the facts of that case, and so this is not as big an issue as it might otherwise have been. It is a good opportunity, however, to start a long-overdue conversation about plagiarism in court judgements. The problem of plagiarism is a serious and long-standing one. Pages of law reviews are full of examples. Here, I extract two of the most egregious ones.

In Gobind v Madhya Pradesh, the Supreme Court’s canonical judgement on the right to privacy, it was held:

“Any right to privacy must encompass and protect the personal intimacies of the home, the family marriage, motherhood, procreation and child rearing.”

This formulation is directly lifted from the American Supreme Court judgement in Paris Adult Theatres v Slaton, where in his majority opinion, Chief Justice Burger observed:

“This privacy right encompasses and protects the personal intimacies of the home, the family, marriage, motherhood, procreation, and childrearing.”

As a matter of fact, Slaton was an entirely different case, decided in the context of obscenity. As such, its rather clunky definition of privacy was entirely ill-suited to a case about State surveillance (which Gobind was), and its continuous usage since that time has been at least one of the contributing factors to our privacy jurisprudence being, at this point, a near-hopeless muddle.

Secondly, in Kartar Singh v State of Punjab, the Supreme Court observed:

“It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. It is insisted or emphasised that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. More so uncertain and undefined words deployed inevitably lead citizens to “steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked”.

This formulation is lifted from the American Supreme Court judgement in Grayned v Rockford, where Justice Marshall observed:

“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. ^[n3]Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. ^[n4] A vague law impermissibly delegates [p109] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.”

 

The Indian Supreme Court has replaced “due process” with “legal jurisprudence”, omitted “juries”, and cut out a couple of lines; the rest of it remains the same.

There is, I would suggest, a serious problem when the seminal Indian case on privacy, and the Indian case that laid down the principle of vagueness, both copied their core formulations from other judgements without attribution. Quite apart from the fact that foreign jurisprudence should be adopted only after careful consideration of comparative contexts, there is undoubtedly a significant ethical issue.

Furthermore, while the responsibility for plagiarised summaries of facts may be safely fobbed off upon nameless interns, it is rather more difficult to do that when it comes to fundamental propositions of constitutional law.

The problem, I believe, is a deeper one, and needs a serious conversation: we are at a stage when there is almost no serious analysis in constitutional judgements. Judgements have become a compendium of both parties’ submissions, followed by a series of quotations, and then a conclusion. With this model, a slip in citation – whether it happens in counsel’s written submissions handed over in Court, or during the writing of the judgement itself – is inevitable from time to time. Until the time that judgement writing moves from a model of recitation of submissions –> conclusion to argument –> conclusion, we can expect more embarrassment of this sort.

In the meantime, installing Turnitin might be a good quick fix.

Now Published: Book on Free Speech under the Indian Constitution

So far, I have managed to refrain from using this blog as a personal platform, but I will depart from that principle this one time. My book, Offend, Shock, or Disturb: Free Speech under the Indian Constitution, has just been published by Oxford University Press. The book may be pre-ordered from Amazon here. It should be in bookstores in a week’s time.

There will be a release event and a panel discussion at the India International Centre on the 18th of December, at 6 in the evening. I will post more details closer to the date. I would love to meet readers who are in Delhi, and free on that date.