Monthly Archives: November 2016

The Illegality of the Supreme Court’s National Anthem Order

In an order dictated today, a two-judge bench of the Supreme Court, headed by Dipak Misra J., directed all cinema halls across the country to play the national anthem before every film, along with the Indian flag on the cinema screen. The Court then directed cinema-goers to stand up to “show respect” while the anthem was being played, and – apparently upon a suggestion from the Attorney-General – that the doors of the cinema hall be locked while the anthem was being played. A number of other rather vague “interim reliefs” were also granted.

What passes for “reasoning” in this “order” ought not to be dignified with legal analysis. I will say no more about it. And the case for the opposition can scarcely be better made than Justice Jackson’s opinion in West Virginia vs Barnette. However, there is a deeper issue that goes beyond the behaviour of this particular bench of the Supreme Court, and merits some examination. This is something that I have referred to before as “judicial censorship“. Judicial censorship is suo motu judicial action restricting the freedom of speech, in the absence of an existing law. In my view, judicial censorship is not contemplated by the Constitution, and judicial orders that engage in this form of censorship are illegal and void.

Article 19(1)(a) guarantees to all citizens the freedom of speech and expression. Article 19(2) allows speech to be restricted only by an existing law or a law made by the State. It does not contemplate restriction upon free speech through any other mechanism.

Are judicial orders “law” for the purposes of Article 19(2)? Article 13(3) of the Constitution, which defines “law” for the purposes of Part III as “any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law“, when read noscitur a sociis, seems not to include judicial orders. Now, it may be argued that various judgments have held that Article 141 of the Constitution speaks of the “law” declared by the Supreme Court, and that consequently, Supreme Court judgments or orders constitute “law”. That is true, but textually, Article 141 only envisions the Supreme Court “declaring” law; more importantly, however, it does not follow that the word “law” used in Article 141 carries the same meaning as “law” under Article 13/19(2). To start with, textually, Article 13(3) prefaces its definitional terms with the phrase “In this article… law includes…” The definition, therefore, is specific to Part III of the Constitution.

Secondly, if Supreme Court judgments and orders were to constitute “law” under Article 13, then every such judgment or order would be subject to a further fundamental rights challenge. Dipak Misra J.’s order, for instance, could be challenged in a separate writ petition by either the cinema owners or cinema-goers as a violation of Article 19(1)(a) of the Constitution. Perhaps this might not be such a bad thing, but in Naresh Mirajkar vs State of Maharashtra, a nine-judge bench of the Supreme Court categorically held that this could not be done.

In Mirajkar, the High Court of Bombay passed an order in a libel case, directing that certain evidence tendered in Court could not be made public. Aggrieved journalists moved the Supreme Court under Article 32, arguing that this order violated their Article 19(1)(a) right to freedom of speech and expression. By an 8 – 1 majority, the Supreme Court dismissed their petition. Gajendragadkar CJI’s majority opinion, and the concurring opinions of Sarkar, Shah and Bachawat JJ differed on some points, but all agreed that a judicial order (of the High Court) could not be challenged in writ proceedings under Article 32 of the Constitution. The majority and concurring judgments engaged in a detailed analysis of whether the High Court had jurisdiction to pass the order that it did; having found that it did so, they then held that there was no scope for an Article 32 challenge. Shah J.’s concurring opinion was particularly clear on underlying reasons for this:

“In granting relief to a party claiming to be aggrieved or in punishing an offender, the Court in substance declares that the party who claims that he is aggrieved has or has not a certain right and that the right was or was not infringed by the action of the other party, or that the offender by his action did or did not violate a law which prohibited the action charged against him. Such a determination by a Court therefore will not operate to infringe a fundamental right under Art. 19.

He then observed:

The argument that the inherent power of this Court which may have existed prior to the Constitution must still be tested in the light of Art. 19(2) of the Constitution does not require any serious consideration. If a plea of infringement of a fundamental right under Art. 19 against infringement by a judicial determination may not be set up, in petition under Art. 32, it would not be necessary to consider whether on the footing that such a right is infringed by a judicial determination of the rights of the parties or an order made in aid of determination that the law which confers such inherent power of the Courts is within Art. 19(2). The function of Art. 19(2) is to save laws-existing laws or laws to be made by the State in future-which otherwise infringe the rights under Art. 19. Where the action is such that by its very nature it cannot infringe the rights in Art. 19(1) of the Constitution, an investigation whether the law which authorises the action falls within cl.(2) of Art. 19 may not be called for.

The Supreme Court cannot have it both ways, however. It cannot both curtail speech by equating judicial opinions to “law” under Article 19(2), and simultaneously insulate itself from its decisions then being challenged in writ proceedings for violating Article 19(1)(a) of the Constitution. Admittedly, the Majority and Sarkar J. did not expressly hold that judicial opinions “could not” infringe 19(1)(a) (in fact, both of them went into the merits of the order vis-a-vis 19(1)(a)) – however, having found at the threshold that there was no 19(1)(a) violation, they did not examine the question of whether Article 19(2) was applicable to such cases at all.

There is a deeper reason, however, why judicial censorship violates the Constitution, and that has to do with the separation of powers. As the Supreme Court held in Kharak Singh vs State of UP, if the State action is to be upheld against Part III claims, the State must “satisfy that… the fundamental rights are not infringed by showing that there is a law and that it does amount -to a reasonable restriction. within the meaning of Art. 19 (2) of the Constitution.” The phrase “there is a law” is crucial, because it sets up a threshold safeguard for the protection of fundamental rights. Plain executive action cannot infringe fundamental rights, even if it is “reasonable” within the meaning of Article 19(2). This is because “law”, which ultimately traces its authority to Parliament (whether it is in the form of legislation, or delegated law-making, such as rules or regulations), envisions a public, deliberative process during which – presumably – civil liberties concerns are taken into account at the time of framing. And  after the State makes the law, the Constitution envisages a second layer of safeguards, in the form of judicial review. After the State makes the law, aggrieved citizens can approach the Courts arguing that it violates their fundamental rights.

By engaging in direct judicial censorship, the Court short-circuits this crucial two-step safeguard, and bypasses Parliament altogether. By directly restricting speech, it ensures that the deliberative process envisaged by the Constitution when it requires the State to “make a law” under Article 19(2) is rendered chimerical. This is why such judicial action violates the separation of powers.

Lastly, it may be argued that the Court’s order is justified under Article 142 of the Constitution, which authorises the Court to pass any decree or order “necessary for doing complete justice in any cause or matter pending before it.” However, Article 142 also specifies that this must be done in “the exercise of its jurisdiction.” If my argument is correct, the Court does not have the jurisdiction to restrict speech in the absence of a law, simply by passing orders. And Article 142 cannot be a carte blanche to do anything that takes judicial fancy on any given day.

Writing about the Habeas Corpus judgment, H.M. Seervai wrote that “ordinary men and women would understand Satan saying ‘Evil be thou my good,’ but they were bewildered and perplexed to be told by four learned judges of the Supreme Court, that in substance, the founding fathers had written into the Emergency provisions of our Constitution ‘Lawlessness be thou our law.’” If Mr. Seervai was alive today, I wonder what he would think of judicial orders that do not even seem to consider whether there is a legal basis for what they seek to accomplish.

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Filed under Free Speech, judicial censorship

Guest Post: Consistency across Statutes and Article 14 in Harsora vs Harsora – A Further Critique

(This is a guest post by Rahul Bajaj, a final-year law student at the University of Nagpur)

On this blog, there has been a discussion of (see here and here) Justice Nariman’s recent judgment in the case of Hiral P. Harsora versus Kusum Narottamdas Harsora and Ors., in which Section 2(Q) of the Protection of Women from Domestic Violence Act of 2005 (“the Act”) was struck down as being violative of Article 14 of the Constitution. In his comment on this judgment, Gautam described the case as a “textbook application of Article 14 doctrine”, inasmuch as Justice Nariman found that the distinction that Section 2(q) created between adult male and female respondents and between adult and non-adult male respondents, was not founded upon an intelligible differentia and did not bear a rational nexus with the object of the statute.

However, I would submit that the judgment, far from being a textbook application of Article 14, marks a significant departure in how Indian constitutional Courts construe the reasonable classification doctrine and apply it to assess the constitutionality of any statute against the touchstone of Article 14. This assertion is based on the fact that the Court factored into its analysis, and I would argue gave prime significance to, factors that have no place in an Article 14 inquiry.

A clarification here would be in order. In the paragraphs that follow, I will only be critiquing one prong of the Court’s reasoning viz. reliance on the need for internal consistency in statutes as a ground to declare Section 2(q) unconstitutional. In other words, I believe that the Court’s holding that the classification created by Section 2(q) is unreasonable, given the object and overall scheme of the Act, cannot be faulted.

While no one can cavil at the approach outlined by the Court in para 10 for assessing the constitutionality of a statute against the touchstone of Article 14 viz. looking at the statement of objects, text of the preamble and the provisions of the statute as a whole, this judgment would not have warranted closer scrutiny if the Court had confined its inquiry to faithfully adhering to this approach. Instead of doing so, however, the Court seems to have been unduly influenced by the desire to ensure internal consistency and uniformity in statutes regulating the lives of women in different spheres.

This assertion is based on the Court’s statement in para 18 which deserves to be quoted in full:

As has been rightly pointed out by Ms. Arora, even before the 2005 Act was brought into force on 26.10.2006, the Hindu Succession Act, 1956 was amended, by which Section 6 was amended, with effect from 9.9.2005, to make females coparceners of a joint Hindu family and so have a right by birth in the property of such joint family. This being the case, when a member of a joint Hindu family will now include a female coparcener as well, the restricted definition contained in Section 2(q) has necessarily to be given a relook, given that the definition of ‘shared household’ in Section 2(s) of the Act would include a household which may belong to a joint family of which the respondent is a member. The aggrieved person can therefore make, after 2006, her sister, for example, a respondent, if the Hindu Succession Act amendment is to be looked at. But such is not the case under Section 2(q) of the 2005 Act, as the main part of Section 2(q) continues to read “adult male person”, while Section 2(s) would include such female coparcener as a respondent, being a member of a joint family. This is one glaring anomaly which we have to address in the course of our judgment.

As the above extract unequivocally indicates, after noting that the definition of ‘respondent’ under Section 2(q) needs a relook on account of the amendment of Section 6 of the Hindu Succession Act, the Court seamlessly arrogates to itself the task of rectifying what it characterizes as a glaring anomaly. I would submit that this line of reasoning suffers from two grave flaws.

First, while ensuring internal consistency in statutes that deal with related subjects is doubtless a desirable objective, it is submitted that it is not the task of a court, much less of a court adjudicating upon the constitutionality of a statutory provision in accordance with well settled principles, to regard the attainment of this object as a key consideration that ought to undergird its judgment.

Second, the Act was enacted on 13th September, 2005 and the amendment to the Hindu Succession Act, as the Court itself notes, came into force on 9.9.2005, thereby indicating that the latter preceded the former. This being the case, if the legislature did not think it fit to craft the definition of ‘respondent’ in the Act in such a way as to bring it in line with the amendment to the Hindu Succession Act, it is difficult to fathom how the Court could have tasked itself with this responsibility.

Further, in para 42 of the judgment, the Court takes note of the definition of ‘respondent’ in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which definition is not circumscribed by the words ‘adult male’. Justifying its reliance on this definition, the Court notes that it indicates that “Parliament itself has thought it reasonable to widen the scope of the expression “respondent” in the Act of 2013 so as to be in tune with the object sought to be achieved by such legislations.”

Far from fortifying the Court’s conclusion, I would submit that it reinforces the flaw in the Court’s reasoning. More specifically, since the Court acknowledges that the widened definition of ‘respondent’, statutorily engrafted in the 2013 Act, is reflective of a conscious decision by Parliament to bring female respondents within the ken of the Act, does it not logically follow that the exclusion of female relatives from the definition of ‘respondent’ in Section 2(q) of the Act is the outcome of a conscious decision taken by the Parliament? If that be so, it is difficult to fathom how the Court could have use the 2013 Act as the foundation for its conclusion that Section 2(q) is unconstitutional, considering that Parliament adopted two different interpretations of ‘respondent’ on the basis of the distinct purposes that the two laws were designed to serve.

In sum, while this judgment will undoubtedly bring in greater consistency in the statutory architecture regulating the lives of women in different spheres, it is submitted that this can be no reason to declare a statutory provision unconstitutional. To the extent that this judgment uses this justification for holding Section 2(q) unconstitutional, I would respectfully submit that it rests on an intellectually shaky foundation and is inconsistent with the well settled principles that should inform an Article 14 inquiry.

(PS: My thanks to Prof. Shirish Deshpande for helping me acquire a nuanced appreciation of the ideas embodied in this article.)

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Filed under Article 14, Equality

Supreme Court to decide on the Scope of Presidential Legislation

A seven-judge bench of the Supreme Court today began hearing arguments in Krishna Kumar Singh vs State of Bihar. The case arose out of an original reference from a two-judge bench in 1998. The State of Bihar had taken over Sanskrit Schools through an ordinance passed in 1989. The ordinance was re-promulgated a few times, before lapsing in 1992. The teachers of the schools then filed a petition before the High Court contending that they had become – and continued to remain – government servants, with all attendant benefits. The High Court rejected the plea.

Before the Supreme Court, therefore, there were two questions: first, were the Ordinances valid? And secondly, what was the effect of acts that were taken under an Ordinance which eventually lapsed? Recall that Articles 123 and 213 of the Constitution authorise the President and the Governors (i.e., the political executive) to legislate via “ordinances” under certain specific circumstances. The basic idea is that in cases of urgency, and when the Parliament is not in session, the Executive can temporarily take over the job of law-making to deal with emergent situations. Ordinances have to be ratified within six weeks of Parliament reassembling, otherwise they lapse.

The two-judge bench split on both issues. On the first issue, Justice Sujata Manohar held:

“The State of Bihar has not even averred that any immediate action was required when the 1st ordinance was promulgated. It has not stated when the Legislative Assembly was convened after the first Ordinance or any of the subsequent Ordinances, how long it was in session, whether the ordinance in force was placed before it or why for a period of two years and four months proper legislation could not be passed. The constitutional scheme does not permit this kind of Ordinance Raj. In my view all the ordinances form a part of a chain of executive acts designed to nullify the scheme of Article 213. They take colour from one another and perpetuate one another, some departures in the scheme of the 4th and subsequent Ordinances notwithstanding. All are unconstitutional and invalid particularly when there is no basis shown for the exercise of power under Article 213. There is also no explanation offered for promulgating one Ordinance after another. If the entire exercise is a fraud on the power conferred by Article 213, with no intention of placing any Ordinance before the legislature, it is difficult to hold that first Ordinance is valid, even though all others may be invalid.”

In other words, Sujata Manohar J effectively subjected the ordinances to judicial review, holding that there would have to be some material demonstrating the circumstances that necessitated “immediate action” on part of the Governor to pass an ordinance, as required by Article 213.

On the second issue, Sujata Manohar J held that whether or not any acts done, or rights accrued under an ordinance would have a permanent effect even after the ordinance lapsed or, for any other reason, was not ratified by Parliament, would depend upon the nature of the acts or the rights. Consequently, she held:

“Basically, an effect of an Ordinance can be considered as permanent when that effect is irreversible or possibly when it would be highly impractical or against public interest to reverse it e.g. an election which is validated should not again become invalid. In this sense, we consider as permanent or enduring that which is irreversible. What is reversible is not permanent.”

Justice D.P. Wadhwa disagreed on both counts. Surveying the case law, he held that an ordinance has the same effects as “law”, and should be understood as having the “attributes of an Act of legislature carrying with it all its incidents, immunities and limitations under the Constitution.” Consequently, on the issue of judicial review, he held that “the Court may not go into the question whether circumstances existed for exercise of power under the provision of the Constitution and as to what was the urgency or emergency to promulgate an ordinance.” 

Nonetheless, following D.C. Wadhwa’s judgment, he struck down the re-promulgated ordinances as being fraudulent exercises of power. On the issue of permanent effect, he compared ordinances to temporary statutes, and held:

“The effect of the first Ordinance has been of enduring nature. Whatever the Ordinance ordained was accomplished. Its effect was irreversible. Ordinance was promulgated to achieve a particular object of taking over the Sanskrit Schools in the State including their assets and staff and this having been done and there being no legislation to undo the same which power the Legislature did possess, the effect of the Ordinance was of permanent nature. Ordinance is like a temporary law enacted by the Legislature and if the law lapses whatever has been achieved thereunder could not be undone, viz., if under a temporary law land was acquired and building constructed thereon it could not be said that after the temporary law lapsed the building would be pulled down and land reverted back to the original owner. The only consideration to examine the Ordinance is to see if the effect is of an enduring nature and if the Ordinance has accomplished what it intended to do.”

Because of the disagreement between the two judges, the question was referred to a higher bench, and after being progressively referred over the years, is now finally being heard and decided by seven judges of the Supreme Court. The questions are twofold:

(a) What is the scope of judicial review over the political executive’s ordinance-making power?

(b) Do the acts undertaken under an ordinance which eventually fails to be ratified by Parliament and become law survive even after the ordinance ceases to exist?

The importance of this case can scarcely be understated, as the Court’s judgment will have far-reaching effects upon the balance of power between the Parliament and the Executive. This case is also best understood in the context of a global concern with how political power is being incrementally transferred from the legislature to the executive, across jurisdictions. This concern was voiced more than forty years ago in Arthur Schlessinger’s famous The Imperial Presidency, and is presently an issue of burning controversy in the U.K. concerning Brexit. The Court’s judgment, therefore, is crucial to the future of the separation of powers under the Indian Constitution.

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Filed under Ordinances, The Executive

The Bombay High Court’s S. 56 CPC Judgment and the State of Indian Sex Discrimination Jurisprudence

In a brief judgment delivered in late October, a division bench of the Bombay High Court rejected a constitutional challenge to Section 56 of the Code of Civil Procedure. Section 56 of the Code states:

“Notwithstanding anything in this part, the court shall not order the arrest or detention in the civil prison of a woman in execution of a decree for the payment of money.”

The challenge was on the basis of Articles 14 (equal protection of laws) and 15 (non-discrimination on grounds of, inter alia, sex) of the Constitution. On the Article 14 question, the Court held:

Taking into consideration the object of such provision, the classification between men and women is quite reasonable, and the classification has sufficient nexus with the object.” (paragraph 5)

However, the Court at no point actually spelt out what the object of the provision was. Consequently, assessing the validity of this argument is somewhat difficult. More importantly, the Court then went on to hold:

“That apart, whilst Article 15(1) of the Constitution of India provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them, Article 15(3), in terms provides that nothing in Article 15 shall prevent the State from making any special provision for women and children. According to us, Section 56 of the CPC, which makes special provision for women, is clearly a provision relatable to Article 15(3) of the Constitution of India, and therefore, there is no reason to declare the same as unconstitutional.”

I have argued before that the invocation of Article 15(3) as a carte blanche to uphold laws that impose differential benefits and burdens upon men and women, ostensibly to the advantage of women, is unjustified. Article 15(3) is not a stand-alone constitutional provision, but nestled within the Articles 14-15-16 equality scheme. The use of the phrase “nothing in this Article“, as a precursor to Article 15(3) suggests that where a legislative classification might otherwise have fallen foul of the non-discrimination guarantee of Article 15(1), Article 15(3) would save it. However, given that Article 15(3) is itself a part of Article 15 suggests that the goal of such classification must also fit within the concept of equality. For instance, reservations or quotas for women in Parliament, which serve to correct a historical wrong, caused by the structural inequality between the sexes for many generations, can be justified by recourse to Article 15(3) because the differential benefits/burdens are aimed at mitigating the effects of a concrete, historical and institutional inequality.

Consequently, laws making “special provisions” for women (and children) ought to be judicially reviewed for whether or not they bear some connection with remedying the historical and structural subordination of women. With the partial exception of Anuj Garg vs Hotel Association, however, this form of reasoning has been entirely absent from Indian sex discrimination jurisprudence.

The Bombay High Court, in fact, relied upon the 1954 Supreme Court judgment that is the origin of the carte blanche approach to Article 15(3): Yusuf Abdul Aziz vs State of Bombay. In that case, the Supreme Court rejected a constitutional challenge to the adultery provision in the IPC, which is asymmetrical in that women cannot be prosecution for adultery. The Court upheld the law by a simple invocation of Article 15(3), ignoring the fact that the basis of the adultery provision was precisely the kind of stereotypical gender-based assumptions that the Constitution intended to do away with: i.e., that women are passive partners, lacking in sexual autonomy. This inattention to how Article 15(3) ought not end up becoming a shield to perpetuate sexual and gender-role based stereotypes has plagued the Court’s jurisprudence ever since.

An fascinating example of the rich and nuanced arguments that arise in cases of this kind is exemplified by the judgment of the South African Constitutional Court in President vs Hugo. In that case, Nelson Mandela granted a Presidential pardon to “all mothers in prison on 10 May 1994, with minor children under the age of twelve (12) years.” This was challenged on the basis that the refusal to extend a like pardon to fathers with minor children under the age of twelve years was sex-discriminatory, and based upon stereotypical assumptions that it was women’s primary responsibility to bring up children. By a majority, the Constitutional Court rejected the challenge. What is of particular interest is the debate between O’Regan J (concurring) and Kriegler J (dissenting). Both judges agreed that the affirmative action provisions of the South African Constitution could be invoked only where the ostensibly discriminatory legislation or executive act bore some connection with remedying a historical or current structural inequality; where they disagreed was the extent of fit that was required between the challenged provision or act, and the remedial goal. While O’Regan J. would grant the State a degree of leeway, Kriegler J. insisted on a tighter fit, and was suspicious of legislation or executive actions that relied upon stereotypes in order to achieve substantive equality.

The Bombay High Court’s judgment, unfortunately, represents a missed opportunity to break free of the carte blanche approach to Article 15(3), and to take steps towards a principled, equality-based interpretation of that provision.

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Filed under Article 15 (general), Equality, Non-discrimination, Sex Discrimination, Sex Equality