Monthly Archives: March 2016

Ambedkar and the Social Boycott

Previously on this blog, we have discussed how Article 15(2) of the Constitution, which guarantees non-discriminatory access to shops, public restaurants, hotels etc., has been read expansively by the Supreme Court to cover the domain of economic transactions more generally, and can be invoked to invalidate restrictive covenanting. We have also discussed how Chief Justice Sinha’s dissenting opinion in the Saifuddin case envisages a Constitution that is equally solicitous towards horizontal asymmetries of power as it is towards State coercion upon the individual. Textually, the Indian Constitution itself is keenly cognisant of horizontal asymmetries, as it guarantees three horizontally enforceable rights (Articles 15(2), 17, and 23), and further authorises the State to recalibrate the internal relationship between religious communities in a more egalitarian direction (Article 25(2)(b)).

As we have discussed earlier, in cases such as Zoroastrian CooperativeSaifuddin, and others, the right to horizontal non-discrimination has come up against the right to freedom of association. Interestingly, this tension is neither new nor recent. Recently, I came across an extensive discussion about this problem, dating back to pre-constitutional times. In Chapter III of his 1945 text, What Congress and Gandhi Have Done to the Untouchables, B.R. Ambedkar outlines a Memorandum that he submitted to the 1930 Round Table Conference, dealing with political safeguards for the protection of the “Depressed Classes”. After beginning with the right to equal treatment, enforceable against the State, and drawn from the American Fourteenth Amendment as well as the 1920 Government of Ireland Act, he then proposes an “offence of Infringement of Citizenship“, drawn from the Reconstruction Civil Rights Act in the United States:

“Whoever denies to any person except for reasons by law applicable to persons of all classes and regardless of any previous condition of untouchability the full enjoyment of any of the accommodations, advantages, facilities, privilege of inns, educational institutions, roads, paths, streets, tanks, wells and other watering places, of public conveyances on land, air or water, theatres or other places of public amusement, resort or convenience whether they are dedicated to or maintained or licensed for the use of the public shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.”

Implicit in this was Ambedkar’s view that equal citizenship entails equal access to public utilities, or public spaces (with an expanded definition of the “public”). Fascinatingly, he then quoted a colonial government source – a 1928 Bombay Committee Report, which had this to say:

“The Depressed Classes have no economic independence in most parts of the Presidency. Some cultivate the lands of the orthodox classes as their tenants at will. Others live on their earnings as farm labourers employed by the orthodox classes and the rest subsist on the food or grain given to them by the orthodox classes in lieu of service rendered to them as village servants. We have heard of numerous instances where the orthodox classes have used their economic power as a weapon against those Depressed Classes in their villages, when the latter have dared to exercise their rights, and have evicted them from their land, and stopped their employment and discontinued their remuneration as village servants. This boycott is often planned on such an extensive scale as to include the prevention of the Depressed Classes from using the commonly used paths and the stoppage of sale of the necessaries of life by the village Bania. According to the evidence sometimes small causes suffice for the proclamation of a social boycott against the Depressed Classes. Frequently it follows on the exercise by the Depressed Classes of their right to the use of the common well, but cases have been by no means rare where a stringent boycott has been proclaimed simply because a Depressed Class man has put on the sacred thread, has bought a piece of land, has put on good clothes or ornaments, or has carried a marriage procession with the bridegroom on the horse through the public street.

We do not know of any weapon more effective, than this social boycott which could have been invented fur the suppression of the Depressed. Classes. The method of open violence pales away before it, for it has the most far reaching and deadening effects. It is the more dangerous because it passes as a lawful method consistent with the theory of freedom of contract. We agree that this tyranny of the majority must be put down with a firm hand, if we are to guarantee the Depressed Classes the freedom of speech and action necessary for their uplift.”

The important insight here is that in a society with pre-existing asymmetries of economic and social power, such power can be leveraged in a manner so as to discipline subordinated groups through the threat of exclusion from the economic and social life of the community, and thereby, from access to the public goods required to sustain a life with dignity (whether material or cultural). It is interesting to note that the Report specifically observes that technically, the boycott is lawful because it is consistent with the principle of the freedom of contract, but nonetheless must be outlawed. Of course, freedom of contract itself assumes a formally equal and hierarchy-free society (hence, Henry Maine’s famous “from status to contract“), which is rarely consistent with reality.

Based on the report, and his own observations, Ambedkar then suggested the following definition of “boycott” which he borrowed, in part, a previous Burma law:

“A person shall be deemed to boycott another who… refuses to let or use or occupy any house or land, or to deal with, work for hire, or do business with another person, or to render to him or receive from him any service, or refuses to  do any of the said things on the terms on which such things should commonly be done in the ordinary course of business, or… abstains from such social, professional or business relations as he would, having regard to such existing customs in the community which are not inconsistent with any fundamental right or other rights of citizenship declared in the Constitution ordinarily maintain with such person, or… in any way injures, annoys or interferes with such other person in the exercise of his lawful rights.”

The final text of Articles 15(2) (access to shops), 17 (prohibition of untouchability), 23 (prohibition of forced labour) and 25(2)(b) (authorising the government to make laws for access to Hindu religious institutions of a public character) together constitute a code that is a somewhat attenuated and diluted version of Ambedkar’s original – and radical – proposals: to have a Constitution that provided not only individual freedom and freedom of community, but also freedom from community. The expansive interpretations given to these articles in IMA v Union of India, Justice Sinha’s dissent in Saifuddin, and in PUDR v Union of India (which read “forced labour” to include exploiting a depressed market by refusing to pay minimum wage) represent something of an attempt to reclaim, in part, the radicalism that was lost somewhere in the framing of the founding document.

(The civil rights movement demanding equal access to public facilities, led by Ambedkar, is documented in detail by Anupama Rao in her book, Caste Question. I have recently written a paper attempting to derive an “anti-exclusion” principle from the text and structure of the Constitution, available here.)

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“Untouchability” and the Constituent Assembly Debates

Previously on this blog, we have discussed the judgment of the Supreme Court in Venkataramana Devaru (constitutional validity of temple-entry legislation), and the dissenting opinion of Chief Justice Sinha in Sardar Saifuddin (constitutional validity of prohibiting excommunication). What unites these two opinions is not merely their upholding laws designed to recalibrate the relationship between religious communities and their members in more equitable directions, but their invocation of Article 17 of the Constitution (prohibition of untouchability) to do so. In Venkataramana Devaru, the Supreme Court read Article 25(2)(b) of the Constitution alongwith Article 17, in order to have it prevail over the contrary injunction of Article 26(b). And in Saifuddin, Sinha CJ understood Article 17 to contain a broad prohibition of outcasting and a constraint upon the ability of communities to treat one of their own as a “pariah”.

There is an immediate objection here. The word “untouchability”, understood as a term of art, does not include every practice of exclusion engaged in by a group against a members. Rather, it is limited to a practice prevalent within the Hindu caste system, at the heart of which is the prohibition of physical contract with those deemed “untouchables”, and its consequent spillover into the realms of economic, political and social subordination. Was it therefore justified for the Court in Devaru, and Sinha CJ in Saifuddin, to use “untouchability” in this broader sense?

Let us start by observing that Article 17 itself provides for the abolition of untouchability “in any form“, thus lending textual credence to the broader interpretation. And now consider the history of the constitutional framing. In the Government of India Act of 1935, “Untouchables” were limited to a set of specifically enumerated (Hindu) castes. Article 17 of the Constitution, however, contained no such qualification. Indeed, for this reason, many members of the Assembly – at many stages of the drafting process – drew attention to the capacious, even vague, nature of the simple word “untouchability”. Some members asked rhetorically whether the constitutional prohibition would extend to cover persons suffering from infectious diseases, or whether it would allow for the suppression of Islam, given that on some interpretations of that religion, women were metaphorically treated as “untouchables”. In response to this, K.M. Munshi argued that in the draft Constitution, the word “untouchability” had been placed within quotation marks – thus making it clear that the ideas was to “deal with it in the sense in which it is normally understood” (i.e., the narrow, specific sense). Despite this, however, many Constituent Assembly members continued to call for the narrowing down of the definition – for instance, Naziruddin Ahmed moved an amendment seeking to limit Article 17 to issues of “religion or caste“. Dr. Ambedkar categorically refused to accept the amendment, and the Assembly then voted it down.

While some of the debates in the Assembly focused on the specific caste-centred understanding of untouchability (in particular, speeches by Harijans), none of these exchanges set up the narrow definition in opposition to the broader one. In fact, other members drew a connection between Article 17 and 15(2), arguing that Article 15(2)‘s prohibition of horizontal discrimination in access to shops, hotels, public restaurants etc. was redundant, in light of Article 17. Notice, however, that Article 15(2)’s grounds of discrimination were broad, and included – in addition to religion and caste – sex, race and place of birth. A narrow reading of Article 17 could not have been reconciled with the position that it already covered the field of Article 15(2). And in fact, other members specifically argued that the prohibition upon untouchability meant the right of everyone to enjoy “equal social conditions”, “equal rights”, “social equality”, the abolition of “social inequity… social stigma and… social disabilities”, and a remedial clause for “those who have been left behind in social and economic matters.” It therefore seems clear that between both the supporters and the opponents of Article 17 as it stood, there was agreement on the breadth of its meaning.

There is, therefore, strong warrant in the constitutional text and drafting history for the broad reading advanced in Venkataramana Devaru and by Justice Sinha in Saifuddin. Elsewhere, I have called this the “anti-exclusion principle“: the Constitution forbids the exercise of group or community power in a manner that excludes its constituents and blocks their access to the basic goods required in order to sustain a dignified human life. Indeed, when we read Justice Sinha’s understanding of Article 17 along with the interpretation of Article 15(2) advanced in IMA v Union of India, and Justice Bhagwatis’s reading of the prohibition of “forced labour” under Article 23 to include a guarantee to a minimum wage in a hostile market (in PUDR v Union of India), what emerges is a radical vision of the Constitution. The three horizontal rights in Part III (Articles 15(2), 17 and 23) are not simply narrow, specific entitlements, but speak to a reality in which private power (whether exercised through communities or corporations) can have as deep and profound an effect on individual liberty and freedom as public or State power; and these three judgments demonstrate advance a principled interpretation of the Constitution in order to constrain private power in service of individual liberty – “transformative” constitutional interpretation in its truest sense.

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Guest Post: The Supreme Court on Parliamentary Privileges and Fundamental Freedoms – II

(In this guest post, Tejas Popat analyses the recent Supreme Court decision on the suspension of Tamil Nadu assembly lawmakers (discussed in the previous post), from the perspective of the freedom of occupation)

Justice Chelameswar authored the judgment in the case of Alagaapuram R. Mohanraj and Others v. The Tamil Nadu Legislative Assembly and Others delivered on 12th February 2016. The origin of the case is in the suspension of the MLAs in Tamil Nadu because of the allegedly unruly behaviour in the Assembly. Challenging the suspension, one of the contentions of the petitioners was that the right to occupy the office of an MLA fell under Article 19(1)(g) within the term “occupation”. They placed reliance on the T.M.A Pai Foundation case where it was stated that the term “occupation” shall be given the widest interpretation. It is in this context that Justice Chelameswar seeks to address the question of whether the right to occupy the office of an MLA falls within the ambit of the term “occupation” in Article 19(1)(g).

In order to address the question, at paragraph 22 of the judgment he deems it necessary to examine the “etymological and contextual meaning” of the word ‘occupation’ in Article 19 (1)(g). After doing so, he concludes at paragraph 24 that “all the activities contemplated under Article 19(1)(g) are essentially activities which enable a citizen to generate economic benefits.” In order to reach the conclusion, he relies on two cases viz. Sohan Singh v New Delhi Municipal Committee and T.M.A Pai Foundation and Others v State of Karnataka and Others.

Here, I wish to demonstrate how the reliance on the cases is wholly misplaced and counterproductive. I shall analyze how the reliance on Sohan Singh is erroneous. In paragraph 23 he quotes the Sohan Singh case as a binding precedent: “This court (Sohan Singh’s case) had the occasion to examine the question and held that“(authors emphasis) which is wholly flawed as the quoted, paragraph 28 is a part of the concurring opinion of Justice Kuldip Singh. The paragraph that was quoted was a remark made by Justice Kuldip Singh in the larger context and nothing more. Also, the case never considered the ‘etymological and contextual meaning’ of the term occupation. Hence the reliance placed on Sohan Singh’s case is misplaced.

I shall now analyze the dependence of Justice Chelameswar on T.M.A Pai’s case and the counterproductive result it produces. The judgment quotes paragraph 20 of the Pai case rather, quotes selectively. The full paragraph is as follows:

“20. Article 19(1)(g) employs four expressions, viz., profession, occupation, trade and business. Their fields may overlap, but each of them does have a content of its own. Education is per se regarded as an activity that is charitable in nature [See The State of Bombay v. R.M.D. Chamarbaugwala]. Education has so far not been regarded as a trade or business where profit is the motive. Even if there is any doubt about whether education is a profession or not, it does appear that education will fall within the meaning of the expression “occupation”. Article 19(1) (g) uses the four expressions so as to cover all activities of a citizen in respect of which income or profit is generated, and which can consequently be regulated under Article 19(6). In Webster’s Third New International Dictionary at page 1650, “occupation” is, inter alia, defined as “an activity in which one engages” or “a craft, trade, profession or other means of earning a living”.” (The part in bold is the quoted paragraph in the judgment while underlined is the author’s emphasis)

Subsequently, in paragraph 21 the T.M.A Pai case analyzes the definition offered in Corpus Juris Secundum, Volume LXVII and the Sohan Singh case. The reliance on Sohan Singh’s case is partly misplaced for the reason that it did not specifically analyze the import of the terms in Article 19 (1)(g). This is however mitigated by the independent analysis done in this judgment itself. The T.M.A Pai case did not treat the observation in Sohan Singh as a ratio, the mistake made in the latest case. The T.M.A. Pai case states, at paragraph 25,

The establishment and running of an educational institution where a large number of persons are employed as teachers or administrative staff, and an activity is carried on that results in the imparting of knowledge to the students, must necessarily be regarded as an occupation, even if there is no element of profit generation. It is difficult to comprehended that education, per se, will not fall under any of the four expressions in Article 19(1)(g). “Occupation” would be an activity of a person undertaken as a means of livelihood or a mission in life. The above quoted observations in Sodan Singh’s case correctly interpret the expression “occupation” in Article 19(1)(g).” (Authors emphasis)

The “above quoted observations” of the Sohan Singh case was,

“”…..The word occupation has a wide meaning such as any regular work, profession, job, principal activity, employment, business or a calling in which an individual is engaged…..The object of using four analogous and overlapping words in Article 19(1)(g) is to make the guaranteed right as comprehensive as possible to include all the avenues and modes through which a man may earn his livelihood. In a nutshell the guarantee takes into its fold any activity carried on by a citizen of India to earn his living…..”.”

It is therefore by necessary implication that the T.M.A Pai case approved the observation in the Sohan Singh case as being the correct interpretation only to the extent to which it quoted the judgment and not the rest of the observations. However, Justice Chelameswar regards the Sohan Singh case as binding authority and also relies on the judgment in the Pai case where, he unfortunately is guilty of selectively quoting it. The implication of this is Justice Chelameswar holding that “The amplitude of the term ‘occupation’ is limited by the economic imperative of livelihood generation. Therefore, all the activities contemplated under Article 19(1)(g) are essentially activities which enable a citizen to generate economic benefits.” This runs counter to the ratio of the T.M.A Pai case as acknowledged in the cases of P.A. Inamdar & Ors v State of Maharashtra & Ors and the Ashok Kumar Thakur v Union of India of running an educational institution falling within the ambit of the term “occupation” regardless of the profit motive or the economic benefits. The conclusion recorded in the judgment is thus bad in law.

It is to the credit of the judges that the judgment was handed out within a year of the incident taking place. While the alacrity is appreciated by the populi, the errors make them sceptical of the quality of the judgment being compromised, as was in this case. Helpless, they’d say, “My Lordship, Abundans Cautela Non Nocet!”

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Guest Post: The Supreme Court on Parliamentary Privileges and Constitutional Freedoms – I

(In this Guest Post, Rahul Bajaj, a fourth-year law student at the University of Nagpur, examines a recent Supreme Court judgment – Algaapural R. Mohanraj v TN Legislative Assembly – on parliamentary privileges and constitutional freedoms. This is the first of two guest posts on the case.)

The width and amplitude of the powers of courts to test the legality of legislative proceedings against the touchstone of constitutional values and principles has always been a hotly contested issue. Indeed, there can be no gainsaying that the answer to this question has profound implications for the doctrine of separation of powers, checks and balances and parliamentary sovereignty. Against this backdrop, it would be instructive to examine a recent Supreme Court decision, penned by Justice Chelameswar, that not only throws light on the interrelationship of fundamental rights and parliamentary privileges, but also examines the scope of the court’s power to intervene in disciplinary proceedings that are governed by rules framed by every legislature for this purpose.

The facts of this case lie in a narrow compass but nonetheless merit brief recapitulation in order to set the tone for the discussion that is to follow. On 19.02.2015, some members of a political party known as the DMDK resorted to unruly conduct in the Tamil Nadu Legislative Assembly and ran towards the speaker’s podium when the speaker ordered the eviction of one of them for such conduct. Consequently, the speaker suspended 19 members of the party for the rest of the concerned session and referred the matter to the Privileges Committee of the Assembly for recommending appropriate disciplinary action. The Committee, after having carefully evaluated the conduct of the members, recommended that six of them be prohibited from attending the first 10 days of the next session of the Assembly in addition to being deprived of the other benefits that flow from holding a legislative post. The recommendations of the Committee were accepted by the Assembly by virtue of a resolution dated 31.03.2015, giving rise to the filing of the writ petition under discussion.

The petitioners, who decided to directly move the Supreme Court by invoking its extraordinary powers under Article 32, claimed that their suspension fell foul of their 4 fundamental rights: Freedom of speech and expression under Article 19(1)(a); freedom to practice the occupation of one’s choice under Article 19(1)(g); right to a non-arbitrary procedure flowing from Article 14; and right to receive their salary and other accompanying benefits flowing from Article 21.

In response to the petitioners’ contention about the infraction of their freedom of speech, the Court framed the scope of its inquiry in the following way in para 16: “Two questions are required to be examined in the context; (i) when a member of a State Legislature participates in the proceedings of the House, is that member exercising a fundamental right of speech and expression under Article 19(1)(a)? (ii) Whether any action, either of that legislative body or any other authority, acting pursuant to any law, disabling either temporarily or otherwise a member from participating in the proceedings of the legislative body, amounts to deprivation of the fundamental right to freedom of speech under Article 19(1)(a) of such a legislator?”

After noting the constitutional scheme governing the proceedings in the Parliament and legislative bodies under Articles 105 and 194, the Court held that the freedom of speech guaranteed to legislators is merely a constitutional right and cannot, therefore, be equated with the fundamental right to freedom of speech embodied in Article 19(1)(a). The distinction between the nature of these two rights, as the Court explains in para 18 of the judgment, flows from 4 main factors: While the fundamental right under Article 19(1)(a) inheres in every citizen, the constitutional right under Article 105(1) and 194(1) only inheres in legislators; while the former is inalienable, the latter only applies during the tenure of a legislator in the Assembly/Parliament; while the geographical scope of the former has not been circumscribed by the Constitution, the latter only applies within the confines of the premises of legislative bodies; and while the former is subject to reasonable restrictions under Article 19(2), the latter is subject to the rules of the legislative body and the constitutionally imposed restriction under Article 121 and 211 on discussion of the conduct of judges.

While this distinction is founded on sound legal principles, three features of the Court’s enunciation of the distinction merit emphasis. First, implicit in the Court’s reasoning is the belief that Article 19(1)(a) does not apply within the premises of legislative bodies on account of the existence of special provisions under Articles 105 and 194. However, the Court does not offer any principled rationale for such non-application and, in fact, explicitly recognizes that there are no geographical limits on the applicability of Article 19(1)(a). While it is true that the right under Article 105(1) and 194(1) serves a different set of purposes from those served by the fundamental right to speak freely, it is submitted that this, alone, cannot be a ground to hold that the scope, width and amplitude of the two rights are entirely different. Therefore, instead of viewing these two rights as being completely different in their scope and application, it may have made more sense for the Court to say that the right to speak freely within legislative bodies is a specific facet of the fundamental right under Article 19(1)(a) that possesses some sui generis features. Viewing the right under Article 105(1) and 194(1), metaphorically speaking, as a distinct stream flowing from the river i.e. Article 19(1)(a) would, it is submitted, result in the right being secured on firmer constitutional moorings.

More specifically, such a conception of the right would allow the court to engage in a deeper analysis of whether the restriction on a legislator’s right to speak freely within the legislative body is constitutionally defensible instead of merely stating that, since the reasonableness of such a restriction cannot be tested against the touchstone of Article 19(2), it is constitutionally tenable so long as its curtailment is sanctioned by parliamentary rules and other constitutional restrictions such as those found in Articles 121 and 211.

Second, the Court’s recognition of the right of legislator’s to speak freely as a constitutional right viz. something more than a legal right but less than a fundamental right may make sense in the abstract but does not appear to have any concrete relevance. As Gautam Bhatia rightly noted in the context of the Supreme Court’s decision pertaining to the Haryana Panchayati Raj Act, it is unclear what, precisely, the recognition of a right as a constitutional right means. This distinction is of special relevance in this case because the Court goes on to hold that, since the right under Article 194 is merely a constitutional right and is subject to the restrictions set forth in the Constitution, it cannot be said that the petitioners’ fundamental right to speak freely was violated in this case (para 20). Third, although the court notes in para 18 that the origin of the right of legislators to speak freely within the premises of the legislative body can be traced back to the privileges in the House of Commons, Justice Chelameswar does not meaningfully address how the historic importance of this freedom must inform our contemporary understanding of it. More specifically, as the Supreme Court noted in the case of Raja Ram Pal versus the Hon’Ble Speaker, Lok Sabha, the historic origin of the freedom of speech of Parliamentarians can be traced back to Article 9 of the Bill of Rights, 1689, which “includes the freedom of the member to state whatever he thinks fit in debate, howsoever offensive it may be to the feelings, or injurious to the character, of individuals. He is protected by his privilege from any action for libel, as well as from any question or molestation…” (May’s Parliamentary Practice, 23rd edn., pp 96-97). Therefore, Justice Chelameswar would have been able to offer a far more nuanced and constitutionally defensible justification for the distinction between Article 19(1)(a) and 105(1)/194(1) by grounding his analysis in the unique considerations that must have weighed with the Constituent Assembly while crafting Article 105(1) and 194(1), such as the need to promote uninhibited debate about issues of public relevance and the need to offer legislators and parliamentarians the freedom to criticize the policies of the ruling dispensation, no matter how caustic or unpleasant their remarks might be.

The petitioners’ second argument was that the term ‘occupation’ under Article 19(1)(g) is of a sufficiently wide amplitude to cover the work of legislators within its ambit (para 22). The Court rejected this argument on two main grounds: First, an essential prerequisite for invoking the benefit of Article 19(1)(g) is that the activity in question must necessarily be a livelihood-generating activity and, since economic benefits are merely incidental to the work of legislators, their work cannot be said to be motivated by the objective of eking a livelihood. Second, since it has been held that the right to contest elections is not a fundamental right, it can be logically inferred that an individual does not have a fundamental right to hold a legislative post or to enjoy the benefits that flow from holding such a post by virtue of an election (paras 25 and 26). Again, while the Court’s reasoning appears constitutionally defensible for the most part, the Court does not offer a sufficiently robust justification in support of its holding that the job of legislators cannot be treated as an ‘occupation’ because they are tasked with the responsibility of discharging constitutionally prescribed goals and are not expected to work principally for earning financial returns. The practitioners of many noble professions, it can be legitimately argued, pursue their chosen profession as an end in itself and not as a means to an end, making the financial benefit flowing from their work transient or incidental. Therefore, it is difficult to understand how the Court views the transient nature of financial benefits flowing from legislative office as a determinative factor for coming to the conclusion that the work of legislators does not come within the ambit of the term ‘occupation’.

As the Court rightly recognized, the petitioners’ third argument about the violation of their fundamental right under Article 21 on account of their suspension was wholly baseless and unfounded. The Court rejected this argument principally on the ground that legislators do not have an independent and indefeasible right to claim the benefits that flow from holding a legislative post, so the question of violation of Article 21 does not arise (para 29).

The petitioners’ fourth and final argument swung the decision in their favour. The video recording of the unruly conduct of the petitioners on 19.02.2015, that the Privileges Committee relied on for arriving at its conclusion about the guilt of the petitioners, was not shared with the latter at any point during the disciplinary proceedings. This omission, the petitioners argued, was not only violative of principles of natural justice but also fell foul of their fundamental right to a fair, transparent and non-arbitrary hearing under Article 14. The Court accepted this argument for a trifecta of reasons. First, the Court emphasized the critical importance of the video recording in the proceedings of the Privileges Committee because the recording formed the factual foundation upon which the recommendations of the Committee against the petitioners were based (para 38). A failure to share such a crucial piece of evidence with the petitioners, the Court held, amounted to a glaring impropriety that vitiated the legality of the proceedings. Second, if the petitioners had been afforded an opportunity to view the video recording, the Court opined, they would have been able to put forth cogent and compelling reasons for justifying their conduct – indeed, one Petitioner sought the permission of the Committee to explain his conduct on the basis of the recording and another expressed his conviction that the recording would conclusively prove his version of events (paras 41 and 42). Finally, the Privileges Committee was legally bound to afford an opportunity to the petitioners to view the video recording so as to make its procedure compliant with Article 14. Viewed through this lens, the opportunity to view the recording was not just a means to an end – to afford the petitioners an opportunity to rationalize their conduct or to rebut the allegations of the Committee – but an end in itself as they were legally entitled to this procedural guarantee (para 42). On account of this procedural lacuna in the conduct of the Committee, the Court quashed the resolution dated 31.03.2015 and held that the petitioners were entitled to the benefits that they were deprived of owing to the Recommendations of the Committee.

In the final analysis, it can be said with considerable certitude that, even though the judgment is founded on a lucid and robust application of relevant legal principles, it fails to grapple with the constitutional questions that this case poses with the level of depth, nuance and intellectual rigor that they merit.

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