ICLP Book Discussion: Anuj Bhuwania’s ‘Courting the People’ – IV: Suhrith Parthasarathy on the Case for the Defence

(We continue our discussion of Anuj Bhuwania’s new book, Courting the People: Public Interest Litigation in Post-Emergency India, with an essay by Suhrith Parthasarathy, a Chennai-based lawyer and writer).

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As both Gautam Bhatia and Aparna Chandra have recounted here, Anuj Bhuwania’s book, “Courting the People: Public Interest Litigation in Post Emergency India,” is an important and unique piece of work, in that it questions not merely the judiciary’s abuse of the PIL power, but also the very conferment of the PIL jurisdiction on the high courts and the Supreme Court of India. Bhuwania’s argument is hugely compelling, and is difficult to counter, particularly on the back of constantly mounting evidence which shows us how the PIL is often a tool that is malleable to the individual predilections of judges, and the campaigns they seek to further.

However, I have two primary concerns with this thesis, which I shall explicate presently: the first is that, textually, both Articles 32 and 226, which respectively guarantee the rights to approach the Supreme Court and the high courts for enforcement of fundamental rights, do not support a blanket prohibition against actions in public interest. The second is the Supreme Court’s own historical record, which contains numerous instances when the court has had little choice but to interfere under Article 32, faced, as it has been, with what were often appalling infractions of basic civil and socio-economic rights. However, it must also be pointed out that even in these cases which demanded interference, especially in the late 1970s and early 1980s, the cause of PILs would have been better served had the court, in exercising the power, not only restrained the rhetorical flourish of its judgments, but also managed to maintain, in the process, a greater, basic fidelity to the procedures of an adversarial process.

PILs: The Textual Defence

Let’s consider, at first, the wordings of Articles 32 and 226. Article 32(1) states: “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.” Article 226(1) states, “Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.”

What’s notable is that neither of these articles places any limitations on the category of persons entitled to approach the court. In the case of Article 32, it simply requires the petitioner to show that a fundamental right guaranteed under Part III has been violated—this violation can quite conceivably be of a right possessed by a person distinct from the petitioner. Similarly, Article 226 also does not specify that only persons whose rights have been affected can approach the high courts. What’s more, Article 32 goes a step further in granting leeway to petitioners to approach the Supreme Court by way of “appropriate proceedings.” Were we to read these provisions literally it becomes rather difficult to justify strict rules of locus standi. In fact, were the Supreme Court, for example, to reject a petition purely on the ground that the petitioner has no personal interest in the case, when a fundamental right has been shown to be violated, it might well be a dismissal contrary to the bare text and meaning of Article 32.

Therefore, in many ways, the loosening of principles of standing that occurred over the course of the late 1970s and 1980s, is in consonance with a proper, textual reading of Articles 32 and 226. Further, a look into Constituent Assembly’s debates on these articles also does not show us that the drafters intended to place restrictions on locus standi in a manner that required petitioners to be personally affected. Now, this is not to suggest that the court is incapable of framing rules that regulate the principles of standing. The words “appropriate proceeding” in Article 32, for instance, gives the court the latitude to regulate principles of locus standi in a manner consistent with the broader requirements of justice. That the court has failed to do so in a systematic and coherent manner, however, has been a failing that has had serious repercussions.

As Bhuwania argues, this lack of rigour in the Supreme Court’s PIL jurisprudence, which is only made worse by the court’s almost declamatory language, is evident almost right from the inception of PILs. For example, take one of the earliest instances of the Supreme Court’s exercise of what it itself appeared to describe as a public interest action: the 1976 judgment in Mumbai Kamgar Sabha, Bombay vs M/S Abdulbhai Faizullabhai. Here, the court was concerned with an appeal against an award made by an Industrial Tribunal where a demand for bonus by employees working for various small hardware businesses in Navi Mumbai was rejected. One of the defences that the Respondent took in the Supreme Court was that the employees had been represented by a Trade Union, and, this body lacked the standing to bring the appeal on behalf of the workers. “No right of the Union qua Union was involved,” the Respondent contended, “and the real disputants were the workers.”

To this, Krishna Iyer, J., who was part of the two-judge bench hearing the appeals, responded thus: “But a bare reading of the petition, the description of parties, the grounds urged and grievances aired, leaves us in no doubt that the battle is between the workers and employers and the Union represents, as a collective noun, as it were, the numerous humans whose presence is indubitable in the contest, though formally invisible on the party array.” As a matter of technicality, he conceded that the Union could not be a party, but, this, he said, was merely an infelicity in the drafting, for it was clear that it was the workmen who were the real parties to the dispute. This ordinarily ought to have been enough for the court to overcome any objections on the maintainability of the appeal—the workers, as Krishna Iyer, J., had pointed out were, in fact, before the court, but were merely represented by a Union.

Unfortunately, however, the court did not stop here. And this is where the problems begin. “Test litigations, representative actions, pro bono public and like broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to bypass the real issues on the merits by suspect reliance on peripheral procedural, shortcomings,” Krishna Iyer, J., wrote. “Even Article 226, viewed in wider perspective, may be amenable to ventilation of collective or common grievances, as distinguished from assertion of individual rights, although the traditional view, backed by precedents, has opted for the narrower alternative. Public interest is promoted by a spacious construction of locus standi in our socio-economic circumstances and conceptual latté dinarianism permits taking liberties with individualization of the right to invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker.”

Now, the court was unconcerned here with Article 226, and any observations made on the procedural requirements of standing to approach a high court were simply irrelevant to the facts of the case. What’s more, the court was actually concerned with whether the workers individually had a right to seek bonus; that they may have been collectively represented by a Union did not negate the fact that their individual rights had nonetheless to be determined. In framing the issue, though, as one which involved an airing of collective grievance, as opposed to one that involved an assertion of individual rights, Krishna Iyer, J. ended up upholding an argument quite different to the one made by the Trade Union.

PILs: On the Necessity of Judicial Intervention

There are similar misgivings with almost all of the early cases that are often described as heralding a movement towards public interest litigation. It’s quite conceivable that each of those cases may well have been amenable to the Supreme Court’s jurisdiction without otherwise compromising on the basic principles of standing. For instance,Gautam Bhatia in his review of Bhuwania’s book points to the 1982 judgment of the Supreme Court in PUDR vs Union of India, as an exemplar of what PIL can mean, when applied correctly.

Here, the court was faced with a report that pointed out a flagrant violation of several labour laws in relation to workmen employed in the construction work of various projects connected with the Asian Games. Article 32, as P.N. Bhagwati, J. pointed out in his judgment, only required that the petitioner show a violation of a fundamental right. What’s more, as I have argued above, the provision doesn’t, in and of itself, prohibit a person from approaching the court in the interest of fundamental rights of any other individual or any other distressed groups of people. In this case, the petitioner’s report quite clearly, in the court’s opinion, presented evidence of what constituted a form of forced labour in violation of Article 23. Now, it was up to the Union of India to disprove that the labourers employed for the projects connected with the Asian Games weren’t being employed in a manner that violated Article 23. The Union, though, didn’t quite dispute the basic findings in the petitioner’s report. Instead, it argued by placing emphasis, as the judgment states, on the word ‘similar’, used in Article 23, contending that it is not every form of forced labour which is prohibited by the provision but only such form of forced labour as is similar to ‘begar’ and since ‘begar’ means labour or service which a person is forced to give with-out receiving any remuneration for it. Article 23, in its argument, was limited only to those forms of forced labour where labour or service is exacted from a person without paying any remuneration at all and if some remuneration is paid, though it be inadequate, it would not fall within the words ‘other similar forms of forced labour.’ Given the arguments adduced the court’s task was to simply answer a legal question: whether Article 23 prohibited all forms of forced labour or merely those forms that were similar to “begar.” This, the court did effectively.

But, once again, much of the court’s good work was undone by its oratorical excesses. Bhuwania takes us to one such statement, where the court was quick to stress on a need to loosen procedural standings on a whole, and, more significantly, on a need to invent new strategies to provide access to large groups of people:

“We wish to point out with all the emphasis at our command that public interest litigation which is a strategic arm of the legal aid movement and which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief,” wrote PN Bhagwati, J. “Public interest litigation is brought before the court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large numbers of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and un-redressed.”

Thus, once again, the court was framing the debate in terms of collective rights. This, in my submission, was where the court went wrong. This was a case much like Mumbai Kamgar Sabha, a case where individual rights of workers were being contravened. PUDR, as Bhatia has argued, largely represents a case where PIL was put to good use. But the court could have achieved its ends through a narrower holding. It simply had to read Article 32 in a manner close to its text, to find that PUDR did, in fact, possess the locus standi to approach the court for a violation of the fundamental rights of the workers. This required no specific loosening of the standard.

“Appropriate Proceedings”

We may now look at one more example, a 1984 case, which Bhuwania refers to in detail: Bandhua Mukti Morcha v. Union of India. This was a case initiated by an organisation dedicated to ending bonded labour. As Bhuwania points out, the judgment rendered by PN Bhagwati, J., in the case is riddled with his “standard trope of Indian difference.” That “in a country like India where there is so much of poverty, ignorance, illiteracy, deprivation and exploitation, any insistence on a rigid formula of proceeding for enforcement of a fundamental right would become self-defeating because it would place enforcement of fundamental rights beyond the reach of the common man and the entire remedy for enforcement of fundamental rights…would become a mere rope of sand so far as the large masses of the people in this country are concerned.”

But while Bhagwati, J., may have been wrong on this count, as is pointed out in a concurring judgment in the same case by Pathak, J., he did also seek to defend the court’s intervention based on a textual reading of Article 32. The provision, he pointed out, confers the right to move the Supreme Court for the enforcement of any fundamental right, but it neither restricts movement of the court to any category of persons, nor does it place a restriction on the manner of the proceedings: “It is clear on the plain language of Clause (1) of Article 32 that whenever there is a violation of a fundamental right, anyone can move the Supreme Court for enforcement of such fundamental right,” wrote Bhagwati, J. “…again Clause (1) of Article 32 says that the Supreme Court can be moved for enforcement of a fundamental right by any ‘appropriate’ proceeding.’ There is no limitation in regard to the kind of proceeding envisaged in Clause (1) of Article 32 except that the proceeding must be ‘appropriate’ and this requirement of appropriateness must be judged in the light of the purpose for which the proceeding is to be taken, namely, enforcement of a fundamental right.”

As a matter of pure textual interpretation of Article 32, as I sought to show earlier, it is difficult to argue against Bhagwati, J.’s view. Had he dismissed the petitioner’s approach purely on the ground that he or she doesn’t have the standing to maintain an action for the violation of a fundamental right, the dismissal would have run directly counter to Article 32’s wording. This is not to say that the court cannot place its own international restrictions on when to interfere. But any strict rule of standing would simply be impermissible as a matter of constitutional law.

Here, what Pathak, J. said in his concurring opinion in Bandhua Mukti Morcha is particularly instructive. He expressly recognised that Article 32 does not specifically indicate who can move the court when a fundamental right is violation and, therefore, in the absence of a confining provision, it was “plain that a petitioner may be anyone in whom the law recognises a standing to maintain an action of such nature.” But as to what constitutes an “appropriate proceeding,” Pathak, J. was more circumspect. While he recognised that it was indeed time for the law to enlarge the doctrine of standing to permit actions by persons in public interest on behalf of groups otherwise incapable of representing themselves, public interest litigation, he held, did not necessarily call for a system that altogether loosens the fundamental requirements of a properly adversarial process. It similarly also did not a call for a system where the relief provided by the court is beyond what it might provide in a regular writ proceeding.

A public interest litigation, Pathak, J. held, did permit a greater degree of flexibility in comparison to a traditional private law litigation, but any such procedure adopted by the court must nonetheless confirm to basic judicial tenets characteristic of a proper proceeding. What he meant by this was that although a defined pattern of procedure might be hard to lay down, the court must still follow the procedure laid down by any statute that prescribes the procedure for the proceeding concerned. Where the court devises any supplementary procedure, “there can be no deviation from the principles of natural justice and other well accepted procedural norms characteristic of a judicial proceeding,” he wrote. “They constitute an entire code of general principles of procedure, tried and proven and followed by the sanctity of common and consistent acceptance during long years of the historical development of the law. The general principles of law, to which reference is made here, command the confidence, not merely of the Judge and the lawyer and the parties to the litigation, but supply that basic credibility to the judicial proceeding which strengthens public faith in the Rule of Law. They are rules rooted in reason and fairplay, and their governance guarantees a just disposition of the case. The court should be wary of suggestions favouring novel procedures in cases, where accepted procedural rules will suffice.”

Bhuwania is entirely correct in pointing out that it was ultimately Bhagwati, J’s judgment that carried the day, and Pathak, J.’s opinion remains just that, an opinion. But this doesn’t take away from the fact that Pathak, J. may have been correct as a matter of law on how a PIL has to be treated: that a petition cannot be dismissed purely on the ground that a petitioner lacks standing, and that where a violation of a fundamental right is shown, the court has little choice but to intervene. But this intervention must partake a proper procedure, and, any relief that is ultimately awarded must also be tailored into a proper judicial relief.

Conclusion: A Partial Defence

There are many genuine, legitimate areas in which a PIL serves as the only recourse available to check unconstitutional executive or legislative actions. But it is tragically disappointing that the court ultimately chose to follow the pattern shaped by Bhagwati, J. Bhuwania shows in substantial detail (as Bhatia illustrated in his first post) that PILs have led to a series of pitfalls, and have proved hugely damaging to the quality of justice delivery in the country. But this, in my submission, isn’t as much a problem with PILs per se as it is with the larger lack of accountability that the judiciary enjoys. Here, I agree with Chandra, who argues that the “judicial populism that Bhuwania describes in his book translates into distinct conception of the judicial role, and a mode of judicial reasoning that is apparent not just in PIL cases but across the board.” The misuse of the PIL has only been accentuated by the unaccountability of the judiciary; the general lack of integrity in decision making, of maintain a fidelity to constitutional values and principles, is a problem as much in the Supreme Court’s appellate jurisdiction as it is in its exercise of PIL power.

Any solution, therefore, has to go deeper. Regrettably, attempts made to alter the system of appointing judges have thus far failed. In the place of proper democratic constraints on the judiciary, what we have instead are anti-constitutional checks on judicial power: post-retirement postings, for example. Unless these larger issues are met effectively, it’s difficult to imagine a proper reform of the PIL process. To understand why we need this reform, though, there is no better place to begin than by reading Bhuwania’s book.

ICLP Book Discussion: Anuj Bhuwania’s ‘Courting the People’ – III: Aparna Chandra on Substance and Process

(We continue our discussion of Anuj Bhuwania’s new book, Courting the People: Public Interest Litigation in Post-Emergency India, that began with an introductory post last week, and then a critique. In this essay, Professor Aparna Chandra explores some of the themes of the book)

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Anuj Bhuwania’s “Courting the People” is a book that needed to be written and one that should be widely read and debated. Bhuwania pulls no punches and offers a stringent critique of the dominant hagiographic narratives around PILs and its dramatis personae. He takes issue with the canonical view that PIL was a force for the good in its inaugural moment but has since been hijacked by those who are not in tune with its original philosophy; thus leading to problematic outcomes. Instead, Bhuwania argues that the PIL jurisdiction is problematic per se, both in its ideological orientation as well as its processual elements.

On Bhuwania’s account, in its early years, the Court had positioned itself as a checks and balances institution, oriented towards holding the state accountable for overstepping constitutional bounds. However, beginning in the late 1970s, the Court responded to sustained attacks on its legitimacy from populist political discourses by acquiescing in the demand for a “committed judiciary” that works alongside an interventionist government to advance the goals of the Constitution. The Court re-conceptualized its role as one that was not only a partner, but a leader of the social revolution envisaged in the Constitution. PILs emerged as part of this ideological move by the judiciary. To the extent that the state’s actions were advancing constitutional goals (predominantly those in Part IV of the Constitution), the Court would support the state. Where the state fell short, either through inaction, indifference, or otherwise, the Court would step in to push the state in the right direction.

The ideological shift in the Court’s role conception was accompanied by procedural moves that facilitated this new role. This procedural shift views procedures as unnecessary hurdles and mere technicalities that should be set aside in favour of substantively just outcomes in tune with the goals of the Constitution. Often captured by the phrase “procedure is the handmaiden of justice” the idea here is that procedures are useful only to the extent that they help the Court in achieving just outcomes – otherwise procedures can and should be done away with.

Bhuwania takes issue with both these shifts. He argues that the ideological grounding and procedural laxity of PILs have allowed judges to run amok and encode their biases and preferences, not only into norms, but into the lived and material realities of vast sections of the population. The problem of PILs is not the case of a few bad apples, but a more systemic issue with the kinds of politics and material outcomes it makes possible. He takes us through examples drawn from PILs relating to urban governance in Delhi to demonstrate how the PIL process vests such large and unchecked powers in courts.

Bhuwania provides a compelling critique of the PIL jurisdiction, and one that I agree with. In fact, as I argue below, I believe that Bhuwania does not go far enough in his critique. I also raise certain concerns with Bhuwania’s methodology, as a prompt to think about how best to understand the PIL jurisdiction and the appropriate conception of the judicial role.

Populism Across the Board

Bhuwania makes the point early on his book that “the delegitimization of legal procedure that companied the rise of PIL in India…has actually made it easier for courts to justify and overlook departures from the basic principles of criminal procedure that mark [draconian statutes that impact civil liberties].” Gautam Bhatia’s review of the book makes a similar point. While I agree with the substance of their concerns that the Court has weakened civil liberties protections in the name of larger goals such as national security (and have written on this before here, here, and here), I would argue that this has less to do with PILs per se, and more to do with the judicial role and method instituted in the late 1970s. The judicial populism that Bhuwania describes in his book translates into distinct conception of the judicial role, and a mode of judicial reasoning that is apparent not just in PIL cases but across the board. We can take away the PIL jurisdiction without disturbing this new logic. In that sense, I take issue with the causality that Bhuwania appears to be claiming between PILs and its impact on other areas of law. Judicial populism and distrust of formalism can be seen in teleological interpretative techniques; in the subordination of fundamental rights to directive principles (and increasingly to fundamental duties); in the invocation of public interest and national interest as grounds to justify state action or deny rights (including in fields as far removed from PIL as bail law); in the rise and expansion of the SLP jurisdiction (which in the words of the Court provides “untrammelled reservoir of power incapable of being confined to definitional bounds; the discretion conferred on the Supreme Court being subjected to only one limitation, that is, the wisdom and good sense or sense of justice of the Judges.”); and in the expansion of the Article 142 power to do ‘complete justice” from a power aimed at “ironing out the creases” at the margins to address minor procedural issues, to a “plenipotentiary power” that can be used to set aside and supplant existing laws, or even create completely new jurisdictions.

The problem is not PIL per se, but a particular conception of judicial role and particular modes of judicial reasoning that the Court resorted to in its response to the political discourses of the 1970s. PIL is as much a symptom as of this new judicial discourse as the shifts in other areas of decision making. As Bhuwania himself finds, this new role and reasoning is tethered to outcomes – outcomes that advance the goals of the state and the larger interest of the national project, and views the role of the judiciary as part and parcel of advancing these goals. Consequentialist modes of reasoning and teleological justifications have become the hallmark of judicial method across the board. As such, the shift in discourse that created PILs has also introduced expanded judicial power, a disdain for procedure, and a subordination of individual rights to broader social goals universally. The challenge then is not PIL (or only PIL), but the role conception of the judiciary and the means and methods it employs. Bhuwania’s critique needs to be applied far beyond the realm of PILs.

The Substantive Transformations of PIL

Bhuwania claims that “PIL is primarily a revolution in judicial procedure” (p.12). I disagree. The ubiquitous presence of PILs was made possible by an expanded reading of rights. The Court had to ground its jurisdiction in Article 32, which allows it to entertain original petitions from citizens only for violations of fundamental rights. Therefore, an expanded reading of the scope of rights was integral to expanding the scope of PILs. This was achieved primarily through the expansion of the scope of Article 21, through reading in directive principles and international law norms into the provision. The interpretative techniques used to expand rights (but at the same time dilute limitations thereon) were grounded in the same teleological reasoning that is at the heart of PILs. So, while on the one hand Directive Principles gave content to the “right to life” under Article 21, they were also used to expand the understanding of “reasonable” law that could limit such a right under the “procedure established by law” clause of Article 21. Similarly, while Article 19 could be given an expanded definition, laws framed to advance DPSPs were viewed as “reasonable restrictions” on such rights. Both types of interpretations – of the scope of the right, and the extent of its limitation – were achieved through the same interpretative technique. This interpretative technique has expanded the power of the judiciary (by extending the kinds of claims that they can entertain), but at the same time expanded the power of the state to side-step fundamental rights. Ironically then, the expansion of rights has made rights less meaningful for the citizenry. This too, is part of the PIL story, and is likely to get lost in focusing only on the procedural aspects of PILs.

Process, Public Power, and Accountability

Bhuwania argues against Bhagwati’s consequentialist view of PILs. He opposes the idea that PILs can be evaluated only on the basis of whether one agrees with their outcomes. This, he finds, is a recipe for disaster – such a reading is what makes “bad” PILs possible in the first place. To make his argument, Bhuwania makes a strong case for the importance of process.

It is easy to misread Bhuwania as setting up a binary between process and substance, principally because he does not explain the value of process except as demonstrated through his case studies where the failures of process led to bad outcomes. I don’t read him as setting up such a binary but I do think it is important to explicate the substantive values underlying procedural norms. As Bhuwania shows through case studies, these values – of fairness, representation, participation, non-arbitrariness, etc – ought to be discarded at our own peril. Where Bhuwania does not venture, however, is the institutional value of process and the importance of norms and procedures as accountability mechanisms. Courts are public institutions, enjoying and dispensing public power, and therefore should be accountable to the public for the decisions they make. The major constraint on judges and a source of their accountability is the requirement for public reasoning in conformity with publicly available norms and procedures. Thus, process has value beyond its impact on outcomes. Without such institutional controls, we rely on blind faith in judges rather than holding them accountable to publicly accessible standards.

Two Methodological Concerns

Bhuwania’s case studies deal with PILs relating to urban governance in Delhi. He does not explain why these cases exemplify problems with PILs across the board. Further, and more importantly, Bhuwania’s case studies –the Delhi Vehicular Pollution case, the Delhi Industrial Pollution case (in its many iterations), and Delhi Slum Demolition cases – are all instances of bad process and bad outcomes. They instantiate Bhuwania’s points about the ways in which procedural safeguards are given a go-by in PILs and the impact that this has on the lives of those affected. Missing in this narrative are the counter-factuals that would explain why these cases were able to achieve what they did. Take for example Vishaka – by most accounts a good PIL in terms of its outcome. Why is it that the Vehicular Pollution case was able to wreck havoc on public transport in the city but Vishaka, despite its widespread celebration, had little impact on the daily lives of women? Why is it that the courts were able to get the state to take swift action in Bhuwania’s case studies (expect in parts of the Industrial Pollution case), but failed drastically in the implementation of the Vishaka guidelines so much so that the Supreme Court was itself in violation of the guidelines for 16 years?

Another example is the ongoing AADHAR litigation where the government is flouting the Court’s orders with impunity. What accounts for the devastating and immediate impact of some orders, and not of others? Is there a story to be told here about actors outside the judicial realm that make PIL possible? I believe there is a need to develop non-institutional accounts of PILs – of the ways and means through which the pronouncements of courts are enacted upon the lives of people, and the modalities through which they are resisted. In such a telling, PILs are not only about judges or amici, and change happens not only because judges decree it, or wield extensive contempt powers. The impact of PILs often stems from reasons beyond the judicial realm such as political will, consonance with dominant ideologies, etc. In Bhuwania’s own examples, he narrates the importance of particular political dispensations and executives who were in tune with the court’s own approach to urban governance – and the impact this had on the implementation of court orders. In this sense, it is not only the process of PILs that makes specific kinds of politics possible. PILs are as much about the out of court personnel and indeed the ideological realm in which the order is received. Counter-factuals like Vishaka, etc would have enabled such deeper interrogation of the operation of PILs.

Finally, if we agree with the problems posed by PILs, what is the alternative? Bhuwania argues for a judicial role conception grounded in John Hart Ely’s influential theory of representation-reinforcement – the idea that the proper scope of judicial review is to facilitate the working of the democratic process. Judicial intervention in decisions of the elected branches of government should be limited to those instances where the democratic channels are ineffective, and the mode of intervention should be such as to ensure that these channels are open to democratic practices. Those who are likely to be perpetual losers in majoritarian processes – like discrete and insular minorities – should receive greater attention and “heightened judicial solicitude” to ensure that their rights are protected within the democratic sphere.

Bhuwania unfortunately does not explain why Ely’s formulation of the judicial role is suitable for the Indian judiciary. It is important to recall that Ely’s work is part of a series of interventions that were responding to Alexander Bickel’s concerns about the “counter-majoritarian” difficulty in judicial review in the American context. Ely theory was formulated as a response to this legitimacy concern regarding judicial review. The entire model – the legitimacy concern as well as responses to it – are grounded in a very Anglo Saxon conception of the relationship between state and citizen and judiciary and other branches of government. As Bhuwania himself outlines in his initial chapters, India (and indeed many post-colonial constitutional orders) have adopted a different, more interventionist conception of the state. Why is this restrained model of judicial intervention appropriate for judiciaries in such states?

Bhuwania makes the point that just as we should not buy into the Anglo-Saxon model of judicial review simply because it provides a readymade template, we should not also celebrate departures from the model only because it is a departure. While this is true, and it is not my argument that the Indian experience is “incomparable” or that we cannot learn from Anglo-Saxon jurisdictions, there are other models that are more suited as comparators for India. The growing literature on global south constitutionalism which seeks to locate the role of courts in the particular political and material realities of third world countries might be more a relevant interlocutor on the issue of the appropriate role of the judiciary. After all, context does matter, even if it isn’t everything.

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(Aparna Chandra is an Assistant Professor of Law and Research Director, Centre for Constitutional Law, Policy and Governance, National Law University Delhi. She teaches constitutional law, constitutional theory and human rights)

ICLP Book Discussion: Anuj Bhuwania’s ‘Courting the People’ – II: Shields, Swords, and Where Do We Go From Here?

(We continue our discussion of Anuj Bhuwania’s new book, Courting the People: Public Interest Litigation in Post-Emergency India, that began with an introductory post last week).

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I do not have much by way of substantive disagreement with the seven theses advanced by Anuj Bhuwania in his foundational critique of the Supreme Court’s public interest litigation jurisprudence. In this essay, I will, instead, seek to extend his arguments further, and raise a few questions about what follows from his final conclusion.

A Minor Quibble

First, a minor note of dissent. Bhuwania points out that the rise of public interest litigation was accompanied by a patronising judicial attitude towards the “people” in whose name PIL was justified, and also “a looseness of legal language“, which entered the judicial domain with Justice Bhagwati (p. 117). I think this is too strong a claim. Paternalism and loose legal language did not begin with PIL. Both are in strong evidence, for example, in Ranjit Udeshi vs State of Maharashtra, where a five-judge Bench ruled on the constitutionality of obscenity, and whether or not Lady Chatterley’s Lover was obscene. Chief Justice Hidayatullah, speaking for the Court, not only adopted the ultra-paternalistic, Victorian Hicklin Test for obscenity, but also attempted a literary analysis of Lady Chatterley’s Lover – with predictably disastrous results. In K.A. Abbas vs Union of India, the same judge upheld pre-censorship of films on the basis of how the coordination of “visual and aural” senses necessitated more stringent restrictions for cinema than for the written word. In a different domain, in Sastri Yagnapurushadji vs Muldas, the Supreme Court substituted its own understanding of Hinduism for the understanding of the religious sect that had brought the case to Court. Paternalism, I would submit, did not originate with PIL, even though PIL might have given the Court much more leeway to be paternalistic. Rather, it has been a continuing issue with the way the Court has approached questions of rights, and in many ways – as has been argued – it has tended to mirror and continue colonial logic.

The Shields that Failed

Civil Rights and Guidelines

In his opening chapter, Bhuwania makes the following provocative claim:

“… the delegitimisation of legal procedure that accompanied the rise of PIL in India… has actually made it easier for courts to justify and overlook departures from the basic principles of criminal procedure that mark such [i.e., special criminal] statutes.” 

Let us take this argument further. One speciality of PIL, which the book does not excavate in too much detail, is the Court’s penchant to take over executive (and sometimes legislative) functions, by laying down “guidelines” in cases where it feels that the statute is inadequate (e.g., D.K. Basu vs State of West Bengal, guidelines for arrest), or non-existent (Vishaka vs State of Rajasthan, sexual harassment at the workplace). There is, of course, a separate separation of powers critique of this practice, which has been a hallmark of PIL since it began. However, there is a deeper issue as well: we see that the habit of laying down guidelines subsequently migrates from PILs to core civil liberties cases. For instance, in Kartar Singh vs State of Punjab, the Supreme Court upheld the constitutional validity of the anti-terror statute, TADA, including the fact that TADA made confessions to a police officer admissible, but also laid down “guidelines” to ensure that the confessions are not “tainted by any vice“. In Naga Peoples’ Movement on Human Rights vs Union of India, the same thing happened with the constitutionality of the Armed Forces Special Powers Act (these cases occur around the same time as D.K. Basu and Vishaka). The framing of “guidelines” effectively gave the Court what can only be called an easy cop-out: it was able to uphold the validity of these laws, while satisfying its conscience by laying down guidelines to prevent “abuse”.

The problems with this approach are manifold. First, the very fact that the Court felt the need to lay down “guidelines” suggests that in the absence of such guidelines, there were grave doubts about the constitutionality of those statutes. But is it a constitutional court’s job to bend over backwards to rescue an otherwise unconstitutional statute by inserting “guidelines” into it, where none existed? Should not the Court instead strike down the statute, and let the legislature do its job of bringing it in line with the Constitution? And furthermore, what the Court did in these cases goes against the grain of international constitutional practice. It is well-accepted that a facially unconstitutional statute cannot be saved by executive guidelines that narrow or clarify its scope: the law must stand or fall in its own right. However, in cases such as Kartar Singh and Naga Peoples’ Movement, the Court decided that it could do what it would not permit the Executive.

Secondly, it need hardly be stated that the Supreme Court’s guidelines have very little traction on the ground (a good example is how arrests under the sedition law continue to be made despite repeated issuance and endorsement of “guidelines”). This, of course, is one of the standard internal critiques of PIL: the Court simply isn’t in a position to actually enforce or implement its guidelines. Unlike in PIL, however, there is a much greater problem in civil rights cases: the statute continues to operate, and the Court’s “guidelines” are never followed.

In sum, incorporating PIL-style reasoning into civil liberties cases effectively ensures that constitutional civil rights become parchment barriers, because a Court can always convince itself that it has adequately addressed the problem by laying down guidelines. The guidelines option spares the Court from having to make a stark moral choice: either subordinate civil rights to presumed national security concerns entirely, or affirm the centrality of those rights by striking down the law. Bhuwania’s invitation in Chapter One, therefore, must be taken up seriously. Close attention ought to be paid to how PIL-style reasoning has migrated to other domains, and what effects this has had.

Equality and Article 21

Since the 1980s, constitutional jurisdictions across the world have made significant conceptual advances in their understanding of the right to equality. The courts of Canada, South Africa, Colombia, and the European Court of Human Rights, to name just a few, have developed nuanced and detailed interpretations of equality, that have moved away from a formal classification test, and have embraced ideas of structural and institutional disadvantage. It is striking how this development has entirely bypassed the Indian Supreme Court. In the decades since E.P. Royappa vs State of Tamil Nadu, when the Court added “arbitrariness” to the classification test under Article 14, equality has virtually stood still.

I suggest that this is in significant part because the rise of PIL, along with the expansion of Article 21 (an aspect that Bhuwania flags, but does not explore in great detail), has spared the Court the onerous task of developing a sophisticated vision of constitutional equality. Cases that might otherwise have come to the Court as equality cases (such as, for instance, Olga Tellis and Vishaka), and which would have required the Court to grapple with issues of structural and institutional disadvantage, instead came as PILs, which the Court dealt with by creating a behemoth out of Article 21, stipulating a limitless remedial power, and developing enforcement-oriented doctrines such as the continuing mandamus. After all, why take the trouble of developing a disciplined equality jurisprudence, when Article 21 is given an infinite substantive scope, and PIL allows for an equally infinite remedial scope?

It is not my suggestion that the Court would necessarily have risen to the challenge (Air India vs Nargesh Mirza should stand as a sobering reminder about what the Court actually did when faced with a core gender equality claim) – as it was not my suggestion that without the escape-hatch of guidelines, the Court would have developed a strong civil rights jurisprudence. However, it is my suggestion that PIL and Article 21 allowed the Court to avoid precisely those difficult questions about disadvantage and subordination that it would have been forced to otherwise confront.

Consequently, while Bhuwania’s arguments about PIL are well-taken, I would suggest that we need to go a little further: we need to critically examine the debilitating impact that PIL has had on the rest of our Part III jurisprudence.

The Sword that Smote

Not only has PIL had an stultifying impact on the development of our civil rights jurisprudence, but it is increasingly being used as a sword to cut down civil rights. This is an issue that I have written about repeatedly before, so I will only summarise it here. First, the massive expansion of Article 21 first resulted in a situation where that right became more or less a dead letter; now, however, it has been revived in another guise: to cut down the scope of other fundamental rights. The most glaring example of this is the recent Supreme Court judgment upholding criminal defamation, where the Court first read in a right to reputation under Article 21, and then used that to hold that a “balance” must be achieved with Article 19(1)(a). Typically, this “balance” entailed completely subordinating the guaranteed fundamental right under Article 19(1)(a) to the mythical, unenumerated right to “reputation” under Article 21.

However, there is another, even more insidious process under way, where PILs are being used to directly infringe fundamental rights. This has been most clearly visible in a number of freedom of expression cases in recent times, culminating in the ongoing national anthem proceedings before the Supreme Court. I think that Bhuwania’s core argument – that the vast, almost unchecked substantive and procedural power that PIL grants judges, makes it uniquely susceptible to the vagaries of judicial ideology, is particularly apposite in cases such as these. As Bhuwania argues, you cannot divide PILs into “good” and “bad” depending on the outcome: the very features that allow a “good” PIL to occur also ensure that you will have bad PILs. Similarly, the very features that allowed the Court to fashion wide-ranging remedies to ostensibly protect rights, now allow a differently-composed Court to use that judicial approach to cut down rights which would otherwise have been protected under the doctrine of separation of powers, or jurisdictional limits.

Where Do We Go From Here?

It is almost trite to say that PILs are here to stay. However much we may want to go back to the 1970s, it’s clear that it is far too late in the day for that. But here’s another question: do we actually want to go back to the 1970s? Do we actually want to put strict rules of locus standi back in place, and retreat into a legal formalism that comes with its own problems of exclusion and marginalisation?

To be fair to Bhuwania, this is not his proposed solution either. However, he does seem to argue that PIL comes to us as a package deal: take it all, warts and all, or abandon it for something better.

I’m not so sure. To substantiate my argument, let me point to a case that I think highlights the uniquely transformative potential of PIL. This is PUDR vs Union of India, a 1982 judgment handed down by one of Bhuwania’s chief villains (and with good reason), Justice Bhagwati. PUDR involved the non-implementation of labour laws on construction projects for the Asian Games and, in particular, the non-payment of minimum wages. PUDR’s petition was held to be maintainable because it satisfied the requirements of a PIL; after that, however, Justice Bhagwati engaged in a rigorous examination of the (nearly vestigial) Article 23 of the Constitution, and held that the phrase “forced labour” included not only physical coercion, but economic compulsion as well. The case was ultimately decided on this reading of the Article.

In my view, PUDR is a case that combined the locus relaxation of PILs, with rigorous constitutional reasoning, and a deep constitutional vision. At a conceptual level, if there is any case that justifies the existence of PILs, I think it is this one. Perhaps it is in PUDR that we have an answer to Bhuwania’s challenge: there are elements of PIL (such as allowing parties to approach the Court on behalf of those who genuinely cannot access it) that can be married to interpretive constitutional fidelity, which together craft a powerful constitutional jurisprudence. But perhaps the very fact that there has been only one PUDR reminds us of the force of Bhuwania’s challenge.

In closing, I only want to reiterate that Courting the People deserves to be – and probably will be – an instant classic. In decades of PIL literature, we finally have a book where “realities have taken the place of words… by striking aside the protective, concealing crown” – words such as “demosprudence”, “social action litigation”, and the crowned belief that PIL somehow continues to be – or was ever – the “last refuge of the oppressed and the bewildered.” This is a book that everyone should read.

ICLP Book Discussion:Anuj Bhuwania’s ‘Courting the People’ – I: A Radical Revision

(Over the course of the coming week, The Indian Constitutional Law and Philosophy blog will host a book discussion of Anuj Bhuwania’s Courting the People: Public Interest Litigation in Post-Emergency India. Courting the People is an important new book that brings an entirely fresh perspective to Public Interest Litigation [“PIL”] in India. In this opening post, I will introduce the main themes of the book. This will be followed by comments from myself, Suhrith Parthasarathy, and Aparna Chandra. At the end, Anuj Bhuwania will respond).

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Over the last three decades, an almost unshakeable narrative has emerged with respect to the Indian Supreme Court’s PIL jurisprudence. PIL, we are told, emerged out of a contrite Supreme Court’s determination to make up for its constitutional abdication during Indira Gandhi’s Emergency. Led by pioneering and visionary judges in the 1980s, PIL began as a democratic exercise, seeking to make justice accessible to the poorest and most marginalised of citizens. Defined by relaxed rules of locus standi, an expansion of Article 21 of the Constitution, and wide-ranging remedial action, PIL was a noble and inspiring judicial endeavour. But, as is often the fate with noble endeavours, it was eventually corrupted. In the late 1990s, influenced by a changed political economy and an increasingly corrupt and dysfunctional political executive, a “neoliberal” Supreme Court swerved sharply away from PIL’s original objectives, and began to cater to a permanently outraged urban middle class, taking on issues such as polluted cities, forest management, and so on. Still later, in the 2000s, the Court turned its focus to “good governance”, moving even further away in philosophy and orientation from the 1980s. This has led to natural and obvious problems.

This narrative – that insists upon the fundamental goodness of PIL, while decrying certain “abuses” that have crept in over time – is fundamentally challenged by Bhuwania in Courting the People. Its importance lies in the fact that makes a thoroughgoing critique of PIL as an institution, instead of simply tinkering at the edges. Bhuwania’s core claim – a radically revisionist claim – is that the well-documented “abuses” of PIL cannot be separated from its core features. PIL – Bhuwania argues – originated with certain pathologies; for a while, these pathologies were hidden or obscured, at least partly because what the Court was doing resonated with the ideological predilections of its primary interlocutors in the legal academy, at the bar, and in the media. But now, with the Court itself having committed an ideological volte face, those pathologies appear starker, and are sought to be explained away as “abuses”. This, according to Bhuwania, obscures more than it reveals. In his colourful way of putting it:

“PIL has often been talked of as a romance – if anything, as a romance gone wrong. In this book I will argue that PIL was a tragedy to begin with and has over time become a dangerous farce.” (p. 12)

What are these pathologies? Through a survey of legal doctrine, as well as an ethnographic study conducted by Bhuwania, who spent two years observing (and sometimes being involved with) PIL proceedings before the Delhi High Court, the following themes emerge:

First, after the filing of the petition, the Public Interest Petitioner becomes peripheral to the proceedings. Bhuwania talks of the famous Sheela Barse case (in the mid-1980s), which was about prison reforms; when Sheela Barse herself wanted to withdraw the PIL, the Court refused to allow her to do so, and went on with the case anyway. In the 1990s, this phenomenon accelerates, and is complemented by cases where the Court itself initiates proceedings (Court on Its Own Motion versus ______), without the existence of a public interest petitioner. One result of this – and this is a standard theme throughout the book – is that a PIL that begins as an issue about a specific, narrow subject (such as, say, solid waste management) is transformed into an “omnibus case” that reaches monstrous proportions, and becomes about dealing with social problems on a huge scale (Godavarman, for instance, is basically the Supreme Court undertaking management of India’s forests).

Although Bhuwania doesn’t develop the argument further, the problem with this kind of a process is obvious. PIL began as a mechanism of securing justice to persons who were unable to approach the Court of their own accord, whether because of poverty, a lack of awareness of their rights, or for another similar reason. The public interest petitioner was deemed to be acting on their behalf before the Court. In other words, the public interest petitioner is the only link between the Court and the people whose “interests” are (supposedly) central to the litigation. Removing her, therefore, betrays PIL’s very raison d’etre.

Secondly, Bhuwania shows how, in a number of PIL cases, the Public Interest Petitioner is replaced by an amicus curae (“friend of the Court”), who often happens to be a senior, well-established lawyer. The conversation is limited to the Court and the amicus. Bhuwania cites a particularly sickening example of this in the Forest Case (one of the Supreme Court’s largest PILs): at a hearing, Sanjay Parikh, who was representing indigenous persons directly interested in the outcome of the PIL, was not allowed to make arguments, and was instead told that the interests of the indigenous persons would be taken care of by the amicus. By taking the examples of several PILs at both the Supreme Court and the Delhi High Court, Bhuwania shows how the direction of “big-ticket” PILs ends up being virtually taken over by the amicus, who becomes a clearing house for interlocutory applications, and assumes the task of guiding the PIL through succeeding benches of the Court.

Thirdly, Bhuwania points out that a number of parties interested parties are never heard in Court. At the very beginning of the book, he recounts an incident where, attempting to halt an ongoing slum demolition, he was shown “a notice [that] listed a writ petition under which its demolition had been ordered, which none of the inhabitants of the settlement had ever heard of.” (p. 11) This – he shows – was particularly common practice during the Delhi High Court’s PIL-managed slum demolition drive in the mid-2000s. Pointing to a PIL that began as something entirely different, but somehow became about slum clearances around the Yamanua bed, Bhuwania notes that:

“The court here made its own accusations, came up with its own facts and ordered its own remedy, without feeling the need to hear anybody else.” (p. 90)

Harsh, but true.

A combination of these three factors – the marginalisation of the original petitioner, the primacy of the amicus, and the failure to hear affected parties – ensures that PIL cannot in any sense be called “democratic”, or be said to be about “democratising justice” (or, in the words of one of its most enthusiastic cheerleaders, an instance of “demosprudence”). On the contrary, it is an exemplar of elite, top-down “justice”. One of Bhuwania’s important insights is that despite its elitist and exclusionary character, PIL, from its very inception, has been justified in the name of the people (and hence, the title, Courting the People). Bhuwania draws some disturbing parallels between Emergency-era slum clearances, and the slum demolition drives of the 2000s. Both, he points out, were ultimately justified by similar rhetoric.

Fourthly, the refusal to hear interested parties is accompanied by an eschewal of standard rules of evidence. Bhuwania points out that this began with a case that is normally hailed as the gold standard of PIL: Bandhua Mukti Morcha vs Union of India. In that case, which was about the exploitation of workers at stone-crushing quarries, the Court had appointed a Commission to bring out a report. The defendants objected to the report, arguing that it was based on ex parte statements, which had not been subjected to the rigours of cross-examination. Bhagwati CJI rejected this argument by stating that PIL was not “adverserial” litigation, and characterised by procedural flexibilities. Two decades later, the chickens truly came home to roost when, in the slum demolition cases, the Delhi High Court simply refused to hear factual arguments aimed at demonstrating that the slums, in question, were not illegal structures.

As a related point, Bhuwania also shows how the Courts’ PIL jurisprudence has essentially turned into death by a thousand interim orders. PILs are defined by continuing proceedings: instead of a final judgment resolving a case, the proceedings are kept alive through interim orders, passed from time to time, over years. Unlike a final judgment, interim orders do not have to be reasoned. Consequently, some of the most far-reaching impacts of PIL take place through – what is effectively – pure judicial fiat.

Fifthly, a combination of all the four factors – impoverished participation and a rejection of evidentiary standards – necessarily yields outcomes that often have catastrophic consequences. Bhuwania takes the example of the Delhi Vehicular Pollution Case (which, again, began as a narrowly-focused PIL, but soon ballooned into a PIL for dealing with pollution in Delhi). At various points, the Supreme Court passed orders freezing the number of auto-rickshaws in the city, and also mandating a compulsory switchover to compressed natural gas (CNG). What resulted was the following:

“… studies have shown that before the Supreme Court’s double whammy, most auto rickshaws were owned by drivers themselves, but the effect of the fuel change and the permit freeze was that almost the entire fleet of auto rickshaws came under the control of financiers and drivers were converted into wage labourers.” (p. 55)

Readers will recognise here Lon Fuller’s famous argument that the judiciary is particularly ill-suited for resolving “poly-centric” disputes: that is, disputes involving multiple factors and aspects, where a move aimed at resolving one aspect will have knock-on effects on the system as a whole; such disputes, Fuller argues, require the kind of fine-grained balancing that the Court simply does not have the resources to indicate (in the PIL contest, this argument has been made by Lavanya Rajamani). Bhuwania’s insight, however, takes us one step further: given that the Court has chosen to adjudicate poly-centric disputes through PIL, one would expect it to pay even greater heed than normal to ensuring full representation of all stakeholders, and rely even more on the opinions of domain experts. Instead, the judiciary has gone the exact other way.

Sixthly, these factors lead not only to bad results, but also to inadequate understanding of the problems at hand. As Bhuwania points out, in the context of the slum demolition cases, the overriding rhetoric that emerges from the Courts is that “public land” is being illegally occupied, at the expense of taxpayers, and therefore needs to be cleared. However, this is a very simplistic explanation of both the causal issue, as well as in its attribution of moral agency. What it ignores, for instance (and here Bhuwania draws on the work of Usha Ramanathan), is:

“The cause of the ‘illegal’ occupation of public land is… directly attributable to the non-performance of state agencies.’The 10^th Plan document of the Planning Commission of India itself noted that up to 90 per cent of the deficit in urban housing at the time pertained to the urban poor and was attributable to the non-provision of housing to slum dwellers. The courts, throughout this period, ignored any attempt to bring to its notice to any such systemic analysis.” (p. 85).

Seventhly, the overarching justification for PIL – right from its inception – was outcome-based. Bhuwania points to many statements made by Justice Bhagwati – which focused on how what mattered were what the Courts were doing (readers will recall that this is also the justification offered by PIL’s primary academic defenders). What this ended up doing, Bhuwania argues, was naturally that:

“Once a frankly instrumental role is accepted for PIL courts, with its decisions moored only by concepts as capacious as ‘social justice’, whose meanings necessarily vary with the zeitgeist, it should be no surprise that the issues taken up by a new generation of PIL judges for their social activism are of a very different sort from the original votaries of PIL.” (p. 116)

This last paragraph takes us to the heart of Bhuwania’s argument. The instances of “bad PILs”, or “abuses of PIL” were simply made possible because of what PIL allowed judges to do, the kinds of power it vested them with, and how it dispensed with existing rules of procedure as unnecessary, or as impediments to justice. In the case of criminal law, for instance:

“… the delegitimisation of legal procedure that accompanied the rise of PIL in India… has actually made it easier for courts to justify and overlook departures from the basic principles of criminal procedure that mark such statutes.” (p. 26).

Consequently – to sum up Bhuwania’s argument – it makes no sense to talk of “good PILs” and “bad PILs”, or “abuses of PIL”. The problem is PIL.

This is a bold and radical argument, that goes against the grain of prevailing academic, legal, and judicial consensus. Over the course of the coming week, we will discuss some of its claims further, and in greater detail.

 

 

Online Speech and Intermediary Liability: The Delhi High Court’s MySpace Judgment

On the 23rd of December, a division bench of the Delhi High Court handed down its judgment in MySpace vs Super Cassettes. In the process, the Court laid down some important legal principles regarding intermediary liability in the case of copyright claims, the scope of safe harbour provisions, and injunctions. The judgment, therefore, has significant ramifications for online speech, and ought to be studied closely. It is also worth reading because it is one of the first Indian judgments (to my knowledge) that focuses upon the special characteristics of the Internet from the point of view of expanding online speech, and not contracting it. As I shall argue, on the core question before it – that is, balancing online speech with the statutory mandate of protecting copyright – the Court successfully negotiated a minefield of legal and technical issues, and – apart from one finding – managed to tread a fine line between the competing interests.

Background

In 2008, Super Cassettes filed a suit against MySpace. It argued that a lot of the songs and other audio-visual content that MySpace hosted on its website violated its copyright. It further argued that MySpace profited from this through advertisements that were inserted into the videos. Furthermore, MySpace’s existing systems of protecting copyright – i.e., a terms of service agreement with its users directing them not to violate copyright, a notice-and-takedown system where MySpace would take down copyright infringing material on being notified by the holder, and a Rights Management Tool, whereby copyright holders could sign up, create digital fingerprints of its content, and then submit it to MySpace, who would then block mirror content – could not absolve it of liability under Indian law. Super Cassettes argued that MySpace had violated provisions of the Copyright Act. It sought a permanent injunction, and damages.

MySpace argued, on the other hand, that it was an intermediary, and had no role to play in making, modifying, or uploading content upon its website. The advertisements that were shown just before a video played were through an automated process, depending upon matches between keywords. Consequently, MySpace was not modifying any content in its own right, and was protected under the safe harbour provisions of the Information Technology Act. Furthermore, a general injunction to remove copyright-infringing material was impossible to comply with, because not only were there more than 100,000 works on the website which MySpace would have to sift through, but it would also have to monitor every future work that was uploaded on its website.

On hearings for interim orders, the single judge of the High Court found that MySpace was prima facie in breach of the Copyright Act by providing a “space” where infringing material was published, and with “knowledge” that such material was being published (the two requirements under Section 51(a)(ii) of the Copyright Act). The single judge further held that MySpace’s role went beyond that of an intermediary; and in any event, under the proviso to Section 81 of the Information Technology Act, the provisions of that Act (including the safe harbour provisions) were clearly subservient to copyright law. MySpace’s safeguards – such as the Rights Management Tools – were not relevant to a finding of liability for copyright infringement, and could only come into play as factors for mitigating damages. Consequently, the single judge granted a qua timet injunction (i.e., an injunction against future acts), prohibiting MySpace from allowing uploads of any material that breached Super Cassette’s copyright, and to delete from its website the songs and other content about which Super Cassettes provided it with the relevant details.

MySpace appealed.

Issues before the Division Bench

At the outset, it is important to note that the division bench of the High Court was concerned only with the issue of the injunction order – that is, the order of injunction – and not with the overall suit between the parties. Consequently, Justice S. Ravindra Bhat, writing the judgment of the Court, framed the following three legal issues for adjudication:

 “First whether MySpace could be said to have knowledge of infringement as to attract Section 51(a)(ii) and consequent liability; Second, does proviso to Section 81 override the “safe harbor” granted to intermediaries under Section 79 of the IT Act third, possibility of harmonious reading of Sections 79 and 81 of the IT Act and Section 51 of the Copyright Act.” (paragraph 31)

Knowledge of Infringement

Section 51(a)(ii) of the Copyright Act states that copyright shall be infringed when a person “permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright.”

The Division Bench agreed with the single judge that MySpace’s website was a (virtual) “place”, from which MySpace earned profit (paragraph 34). The key question was whether, in the absence of specific notice, MySpace could be said to be “aware” or have “reasonable grounds to believe” that copyright infringement was taking place on its website. The single judge had held that the very presence of safeguard provisions and tools (such as notice-and-take-down) in MySpace’s user agreements signalled a “general awareness” that copyright was being infringed on its website, and this was enough for liability to be attracted under S. 51(a)(ii). The Division Bench disagreed. In paragraph 35, Justice Bhat held:

“Simply put, that test [of general awareness] overlooks that unlike “real” space, in a virtual world, where millions of videos are uploaded daily, it is impossible under available technology standards to identify the streaming content, which actually infringes. Knowledge has a definite connotation, i.e a consciousness or awareness and not mere possibility or suspicion of something likely. The nature of the Internet media is such that the interpretation of knowledge cannot be the same as that used for a physical premise.”

He then went on to develop this argument in the succeeding paragraphs, noting that in the specific context of the Internet, where a system could store “millions” of videos, the concept of “constructive”, or assumed knowledge, from the offline world, could not simply be transplanted here. Rather:

“The requirement is to give specific information to the content host or the website(MySpace) that infringement occurs with respect to the specific work. A general or vague description of the works would be insufficient as this then leaves room for MySpace to rely guesswork as to what content has to be removed. Therefore, the onus is upon the plaintiff to give detailed description of its specific works, which are infringed to enable the web host to identify them.” (paragraph 36)

Super Cassettes argued, however, that it had notified to MySpace a list of more than 100,000 songs in which it had copyright. The Division Bench held that this was insufficient, especially because when MySpace had done a preliminary scan of these 100,000 songs, it had found that many of them had been uploaded by distributors or performers who might well have been covered under copyright exceptions (such as, perhaps, fair use). Consequently, the Division Bench held:

“It is only when a specific work is mentioned can it be said that MySpace possesses knowledge of a work being infringed on its website. Providing long lists of all works, tasking MySpace with identifying and removing infringing content is not enough. It is only when MySpace has specific or actual knowledge or when it has reasonable belief, based on information supplied by SCIL and if despite such knowledge or reasonable belief it fails to act can it be held liable for infringement…  in other words, an indiscriminate and blind acceptance of SCIL‟s entire list to run a general filter and “take down” all content would result in grave damage and result in likely multifarious disputes: with up-loaders, many of whom are original creators in their own right and might have used a miniscule quantum of the copyrighted content in… their larger original creation; with distributors, who might hold genuine licenses and with others who create versions, remixes or original titles which may have little content; still there may be other content uploaders whose material only superficially resembles with the titles owned by SCIL, because of the lyrics or titles but is otherwise genuine creation with its independent copyright.” (paragraph 38)

In the present case, therefore, the Court held that MySpace had no prima facie knowledge of infringement (paragraph 39).

The Interplay Between the Copyright Act and Intermediary Liability under the IT Act

This brought the Court to issues 2 and 3 (see above). MySpace had sought sanctuary under Section 79 of the Information Technology Act. Section 79 provides a safe harbour to intermediaries from being held liable for unlawful content on their servers. This safe harbour is lost if the intermediary receives “actual knowledge” that it is hosting unlawful content. And recall that in Shreya Singhal vs Union of India, the Supreme Court had held that “actual knowledge” under Section 79 was limited to either a court order, or a government directive.

As we can see, there is an overlap between Section 51 of the Copyright Act and Section 79 of the IT Act. Section 51(a)(ii) makes an entity liable for secondary infringement if it is “aware” or has “reasonable grounds for believing” that infringement is happening on its “place”. Section 79, which otherwise protects intermediaries, nonetheless revokes this protection if the intermediary has “actual knowledge” that its platform is being used for law-breaking (which includes copyright violation). Now, the key question is this: if the general standard of protection afforded to intermediaries under the IT Act (actual knowledge) – as interpreted in Shreya Singhal – is greater than the general protection in cases of secondary infringement under the Copyright Act (non-awareness), then which of the two laws will apply to the specific case of an intermediary whose website is being used for potential copyright infringement? Or, to put the question another way: if the intermediary does not have “actual knowledge” (as per Shreya Singhal) under S. 79 – that is, if it has not been notified by a court order or by the government that copyright infringement is taking place – can it nonetheless be held liable under Section 51 if it has the “awareness” of copyright infringement (as held by the Division Bench in Issue 1) taking place?

It is here that I part ways with the Division Bench. Super Cassettes argued that the IT Act was not applicable at all to cases of copyright infringement, since the proviso to Section 81 of that Act stated that “nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act.” The Division Bench – in my view, correctly – rejected this argument. It pointed to the language of Section 79 itself, which itself had an overriding clause: “Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3)…” – which, according to the Division Bench, meant “that the only restriction to be placed in the application of Section 79(1) is contained within the section: Section 79 (2) and Section 79 (3).” Consequently:

“In this Court‟s opinion, Section 79 grants a measured privilege to an intermediary. However, that would not mean that the rights guaranteed under the Copyright Act are in any manner curtailed. All Section 79 does is regulates the liability in respect of intermediaries while the Copyright Act grants and controls rights of a copyright owner. Under the circumstances, it is difficult to conceive how one would pose a barrier in the applicability of the other. The true intent of Section 79 is to ensure that in terms of globally accepted standards of intermediary liabilities and to further digital trade and economy, an intermediary is granted certain protections. Section 79 is neither an enforcement provision nor does it list out any penal consequences for non-compliance. It sets up a scheme where intermediaries have to follow certain minimum standards to avoid liability; it provides for an affirmative defence and not a blanket immunity from liability.” (paragraph 47)

In the succeeding paragraphs, the Court stressed on the fact that “Parliament by amending the IT Act intended to create a separate provision and regime for intermediaries…”, and that “given the supplementary nature of the provisions- one where infringement is defined and traditional copyrights are guaranteed and the other where digital economy and newer technologies have been kept in mind, the only logical and harmonious manner to interpret the law would be to read them together.” So far, so good. However, in paragraph 50, the Court then held:

“Section 79(3) of the IT Act specifies that when a person has actual knowledge or upon notification by the appropriate government or its authority fails to expeditiously remove or disable access to an unlawful content then the immunity granted under Section 79(1) is revoked. The knowledge contemplated under this section is actual knowledge. In Shreya Singhal (supra), Section 79(3) with Rule 3(4) of the Rules were read down to mean receipt of actual knowledge from a court order or on being notified by the appropriate government. However, this was in respect of restrictions under Article 19(2) of the Constitution of India. The Supreme Court was conscious of the fact that if millions of requests for take down are made, it would become difficult for intermediaries (such as Google) to identify legitimate requests. In the case of copyright laws it is sufficient that MySpace receives specific knowledge of the infringing works in the format provided for in its website from the content owner without the necessity of a court order.”

However, instead of reading Section 51 of the Copyright Act and Section 79 of the IT Act harmoniously, this effectively subordinates the latter to the former. In the first part of its judgment, the Court undertaken an independent analysis of Section 51, and arrived at a “knowledge” standard for intermediaries. This standard – of specific notice – was considerably less protective than Section 79 IT Act’s requirement of “actual knowledge” through a court order or the government. In paragraph 50, the Court simply adopted the specific notice standard “in the case of copyright laws.” In other words, intermediaries who were otherwise protected under Section 79 of the IT Act would lose their safe harbour if they were given specific notice of copyright infringement by the copyright owner, even in the absence of a court order or a government directive.

The Court justified this by pointing to the “red flag” requirements under the American DMCA, which is another form of notice-and-take-down. That, however, cannot be an answer to why the actual notice standard laid down in Shreya Singhal would be diluted to specific notice in case of copyright claims. And the broader problem is this: even under the Division Bench’s heightened requirement of “specific notice”, the primary onus of deciding upon the validity of a copyright claim, and deciding whether or not to take down content (thus restricting online speech) rests upon a private party – MySpace. The problems with this approach have been well-documented: facing the threat of losing their safe harbour and being sued for damages, private parties will err on the side of taking down content. MySpace, in all likelihood, will have neither the resources to parse Super Cassette’s notice to see whether the infringing content is saved by fair use, or by de minimis use, or any other exception to copyright infringement – and nor will it be willing to take the risk of affirmatively rejecting a notice, and then facing the possibility of extended litigation. It was precisely because of this that the Supreme Court in Shreya Singhal restricted “actual knowledge” to a court order or a government notification. In my view, the Division Bench unjustifiably dilutes that standard for copyright claims.

Furthermore, the matter is somewhat complicated by the operative part of the judgment. In paragraph 68(b), in its record of its findings, the Court notes:

“Section 51(a)(ii), in the case of internet intermediaries contemplates actual knowledge and not general awareness. Additionally, to impose liability on an intermediary, conditions under Section 79 of the IT Act have to be fulfilled.”

However, this seems to run counter to what came before: under this, Shreya Singhal’s actual knowledge standard under Section 79 would apply over and above Section 51’s actual knowledge standard that the Division Bench laid down while discussing Issue 1.

Here is one possible reconciliation: since MySpace was already following a notice-and-take-down rule, the Division Bench’s discussion on specific notice should be limited to finding that what MySpace was doing was consistent with law. The Division Bench did not say that a specific notice would be sufficient to erase safe harbour as a general proposition of law. Rather, in paragraph 68(b), it made clear that the general proposition of law was that intermediaries would continue to be protected even in cases of copyright infringement, unless Shreya Singhal’s standard of actual knowledge was satisfied.

This would be a far more speech-protective reading of the judgment. However, it is a difficult one to sustain, in light of the clear observations of the Court, which we discussed above. This is one issue, then, on which the judgment’s import is – in my view – slightly unclear.

Qua Timet Injunctions

Lastly – and very importantly – the Division Bench agreed with MySpace’s contention that the qua timet injunction was virtually impossible to enforce. Justice Bhat made the crucial observation that:

“A further balancing act is required which is that of freedom of speech and privatized censorship. If an intermediary is tasked with the responsibility of identifying infringing content from non-infringing one, it could have a chilling effect on free speech; an unspecified or incomplete list may do that. In an order of relief such as that passed by the learned Single Judge, MySpace would be in contempt of court for not complying with an order, which is otherwise impossible or at best onerous and cumbersome of performance. In order to avoid contempt action, an intermediary would remove all such content, which even remotely resembles that of the content owner. Such kind of unwarranted private censorship would go beyond the ethos of established free speech regimes.”

(Of course, as I argued above, it is precisely this privatised censorship which is a problem with the specific notice standard that the Court did endorse).

The Court also noted that if MySpace was forced to remove content in accordance with the vague terms of the qua timet injunction, it might even end up being in breach of its contract with its users, in cases where lawful content ended up being taken down. Consequently, the Court finished by holding:

“Without a notice containing the details and location of the exact works in which infringement is complained of, MySpace cannot be expected to scan through such large number of videos to discern infringement. This is not only impractical but also dangerous for reasons discussed previously. A vague order of injunction against works which are yet to exist is not only contrary to law but also impossible to monitor. Therefore, SCIL cannot give vague and general lists of its works but will have to give notice with specific details as well as locations of the works, which the appellant shall remove within 36 hours of receiving such notice.” (paragraph 66)

This is very important, in particular, because it bucks the trend of the High Courts granting qua timet injunctions (accompanied by John Doe orders) almost as a matter of course.

Conclusion

MySpace vs Super Cassettes is a landmark judgment that contributes in no small measure to an evolving international jurisprudence on online free speech and intermediary liability. The High Court pays close attention to the characteristics of the internet, and is very solicitous to how its holdings will affect the flow of information on the internet. Unlike other judgments, where the fluid and flexible nature of the internet has been used to justify greater regulation, the Delhi High Court, in MySpace, is concerned to ensure that this fluidity and flexibility is not stifled by legal concepts developed for the offline world. While its exact finding on the interplay between the Copyright Act and the IT Act is a little unclear, the judgment breaks new ground in its analysis of actual knowledge (for intermediaries) under the Copyright Act, its refusal of a qua timet injunction, and its finding that the Copyright Act will not exclude the safe harbour provisions of the IT Act. It is a judgment that should be studied and discussed closely.

 

 

 

A Companion Blog

I have started a new blog called The Public Sphere which (I hope) will become a companion blog to ICLP. The Public Sphere will focus on two areas of law where disparities of power and structural inequalities make the application of constitutional norms particularly important, but where such norms are often ignored: the workplace and the family.

The objectives of the blog are set out here. The first two posts – on the Supreme Court’s decision to refer the correctness of the BWSSB judgment (definition of “industry” under the Industrial Disputes Act) to a nine-judge bench – may be found here and here.

I look forward to more of the same kind of engagement that has made writing ICLP so rewarding over the last three-and-a-half-years.

Guest Post: The Supreme Court’s Entry Tax Judgment – II: The Dissents

(In this second part of their two-part series, Aditi Dani and Vikram Hegde examine the dissenting opinions in the nine-judge Supreme Court bench’s entry tax decision.)

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In a video recently doing the rounds on social media, Justice Rohinton F. Nariman, at a lecture organized by the Bombay Bar Association at the Bombay High Court, on the importance of dissenting opinions, refers to the words of a Chief Justice of the United States’ Supreme Court, Charles Evans Hughes: the “role of a dissenting opinion in a court of last resort is an appeal to the brooding spirit of the law and the intelligence of a future day”. It is in this spirit that we may consider the dissenting and differing opinions in this case.

Banumathi J. and ‘local area’

Banumathi J., differs from Justice Thakur’s opinion on one crucial aspect. The Chief Justice holds that intra state discrimination was never within the scope of consideration of the Constituent Assembly, and hence rejects the argument that Article 304(b) would have be made applicable to taxes to act as a bulwark against intra-state discriminatory levy. Banumathi J., instead, relies on the observations made in State of Bihar and Ors. v. Bihar Chamber of Commerce and Ors., that “the State is a compendium of local areas …. the purposes and needs of local areas are no different from the purposes and needs of the State.” She observes that the Entry tax is a State level levy and the entry tax revenue is treated as the State Revenue. It is spent on the development of local bodies and the State in general. It is the State which has the power to tax; the local authorities themselves cannot levy the tax. Where the local areas cover the entire State, the difference between the ‘State’ and ‘a local area’ practically disappears. She points out the distinction between the levy of entry tax and levy of octroi, observing that the latter is only a local levy; entry tax is not collected is at the behest municipality or a panchayat attached to a checkpost. She does not advert to Shaktikumar M. Sancheti v. State of Maharashtra in this respect, which has been referred to by Justice Chandrachud.

Justice Chandrachud

While Justice Bhushan rightly refers to Justice Chandrachud’s judgment as scholarly, it would have certainly been much easier to understand, if only he had employed a little more clarity in a few places. Justice Chandrachud does a thorough job of tracing the socio-economic and political compulsions behind the guarantee enshrined in Article 301 and the Constitutional history in respect of freedom of trade and commerce (and Mr Harish Salve had advanced extensive arguments on this point).

On merits, Justices Chandrachud concludes thus:

A tax is not necessarily a restriction in every case – A tax may amount to a restriction where its direct and inevitable effect is to restrict the freedom of trade, commerce and intercourse. To establish whether a tax is a restriction for the purposes of Part XIII of the Constitution, the person who seeks to assail the validity of that tax under must show that it amounts to a restriction on the freedom on the flow trade and commerce guaranteed by Article 301. The test of ‘direct and inevitable effect’, for the purpose of Part XIII is not applicable to determine infringement of the fundamental right under Article 19(1)(g). The latter involves an individual right, whereas in context of Part XIII, the matter is to be looked at from the perspective of trade and commerce as a whole.

It may be inferred from his judgment that he does not agree with the majority on non-discriminatory taxes not constituting an infraction of Article 301. He observes that:

“The proposition that taxes do not constitute a restriction on the freedom of trade and commerce (save and except for a discriminatory tax which violates Article 304(a)) does not reflect a valid constitutional principle. … As a statement of constitutional principle, neither of the two positions which lie at the extreme ends of the spectrum is valid : at one end is the position that all taxes are restrictions and at the other end, is the position that no tax (except a discriminatory tax on goods) is a restriction.”

In other words, Article 304(a) does not exhaust the universe of taxation contemplated in Article 304; Discriminatory taxes not levied on goods, or discriminatory taxes levied on goods in “public interest”, are outside Article 304(a); Article 304(a) only prohibits the levy of a tax:

• on ‘goods’
• ‘imported from other States’
• which discriminates between goods imported and similar goods produced or manufactured in that State.

Article 304(a) does not cover taxes on persons (profession taxes or luxury tax) or taxes on activities (betting and gambling): A discriminatory tax which is not on goods is not within the prohibition of that Article. Similarly, a discriminatory tax on goods which does not traverse State boundaries would also not fall within the ambit of Article 304(a), though it would offend Article 301. In that case, a State may justify the imposition of such a tax in the public interest, but it must meet the requirements of Article 304(b). If Article 304(b) were to be construed to not include taxes, such a course of action would be barred, however legitimate the State interest.

Articles 304(a) and (b) may be read conjunctively or disjunctively, depending on whether the tax legislation carries ‘restrictions’: this part is a bit confusing, for he doesn’t say so explicitly. An overall reading of his judgment would suggest that he concludes thus. He observes that:

• In the context of Article 304(a), the use of the expression ‘may’ in the prefatory part, together with ‘and’, which separates clauses (a) and (b), indicates that the true meaning and intent is conveyed by the joint and several and/or.
• The Legislature may impose a tax falling under clause (a) as well as a reasonable restriction falling under clause (b). Alternately it may impose one of them.
• However, when it imposes a tax and/or a restriction, the state legislature has to abide by the conditions of clauses (a) and (b) respectively.
• Unless the tax imposed constitutes a ‘restriction’, the proviso to Article 304(b) will have no application for, it is only when there is a restriction that the question of its reasonableness can arise.

Article 304(a) does not contemplate only the levy of tax under Entry 52 of List II: The expression “any tax” in Article 304(a) does not mean a tax which is referable to only one subject of legislation falling under a taxing entry in List II. When a legislature legislates, the full range of its plenary powers is available to it, since the source of legislative power is traceable to Articles 245 and 246, and not to the entries in the Lists. The legislatures are not confined to imposing a tax under one entry while formulating a fiscal law. Hence, Article 304(a) does not fetter the States from ensuring an equality of tax burden between goods that are imported from other states and goods manufactured or produced within.

The entire State is not a ‘local area’ – A local area cannot be defined with reference to the entire state. Justice Chandrachud relies on the decision in Shaktikumar M. Sancheti v. State of Maharashtra (1995) 1 SCC 351 as also the 73^rd Constitution Amendment which fortifies the principle laid down in Diamond Sugar Mills Ltd v. State of U. P. (dealt with in Shaktikumar Sancheti’s case) that a local area an area administered by a body (such as Municipalities, Panchayats or local board) constituted under the law for the governance of local affairs in any part of the state.

Entry tax can be imposed on goods imported into India from other countries – Entry 83 of List I (customs) and Entry 52 of List II (entry taxes) have separate and distinct fields of operation. The distribution of powers with reference to the taxing entries in List I and II is mutually exclusive. Provisions of the Customs Act do not detract from the power of the state legislatures under Entry 52 nor do they denude the states from levying an entry tax once the taxable event under state law has occurred. Banumathi J. also makes a similar observation.

He agrees with the majority on the other counts i.e.

• Prohibited from making a hostile discrimination, the State may however make a reasonable classification under Article 304(a).
• To levy tax on goods imported from another State, it is not necessary for the State to produce or manufacture similar goods.
• The concept of compensatory tax, replete with doctrinal problems, is best eschewed.

Two reasons why you should read his judgment closely:

• For the history of socio-economic and political compulsions in creating and preserving fiscal autonomy of States. These observations may be relevant in construing the GST Amendment. But that is really the subject of a whole other post.
• For referring to caselaw concerning the constitutional power to levy taxes.

Justice Bhushan

Justice Bhushan agrees with Justice Chandrachud on most counts, but agrees with the majority on overruling the compensatory tax theory. His is a fairly straight-forward judgment (though it spans 181 pages) and his direct and precise answers are appreciated. He concludes thus:

• Levy of a non-discriminatory tax may constitute infraction of Article 301 if it impedes the freedom of trade, commerce and intercourse, unless saved under Article 302 – 304. He agrees with Justice Chandrachud here and disagrees with the majority.
• A State law made under Article 304(a), not containing any restriction on the freedom of trade, commerce and intercourse, need not comply with Article 304(b). However, a law made under Article 304(a) which contains restrictions on freedom of trade, commerce and intercourse is also subject to the proviso to clause (b) of Article 304 of the Constitution. The compliance of Article 304(b) proviso whether required or not shall depend on the nature and content of the State legislation. Here also, Justice Bhushan agrees with Justice Chandrachud, on the true intent of the two clauses being joint and several.
• The word ‘restriction’ appearing in Article 303(b) also covers tax legislation. Justice Bhushan agrees with Justice Chandrachud. He further holds that the ‘direct and immediate effect test’ as laid down in Atiabari and approved in Automobile Transport still holds good.
• He disagrees with Justice Chandrachud (and the majority) on the imposition of tax on imported goods if no similar goods are manufactured / produced within the State. Justice Bobde agrees with Justice Bhushan in this respect. Justice Bhushan observes that imposition of tax on the locally manufactured or produced goods is a condition precedent for imposing tax on similar goods coming from other States. The question of discrimination shall arise only when first condition that is locally manufactured or produced goods are taxed by a State. No question of discrimination arises if the first condition is not fulfilled. For this purpose, he relies on State of Madhya Pradesh Vs. Bhailal Bhai and Others and Kalyani Stores Vs. State of Orissa .^[1]
• He agrees with the majority on grant of set offs / exemptions, observing that the same has to be limited to a specified category for a short period based on intelligible differentia; exemption in general terms of unlimited nature cannot be approved.
• He does not comment upon the entire State being a local area and imposition of entry tax on goods imported into the Indian landmass.

Both dissenting judgments carry similar observations on Article 245 and 246 being the source of all legislative power, similar to the observations in the majority judgment. But these, being obvious and repetitive in nature, are not specifically adverted to here.

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[1] Chandrachud J. also adverts to Kalyani Stores but observes that the principle laid down therein cannot be extrapolated to Article 304(a) where the tax which is imposed is not in the nature of a countervailing duty under Entry 51 of List II.

Guest Post: The Supreme Court’s Entry Tax Judgment – I: The Majority Opinions

(In this two-part series, Aditi Dani and Vikram Hegde examine the decision of the nine-judge bench of the Supreme Court, delivered late last year, on the constitutional validity of entry taxes imposed by states)

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How many 9 judge bench decisions have there been? Justice D.Y.Chandrachud, in his minority opinion in Jindal Stainless [4] v. State of Haryana, claims that there have been only eight reported decisions of 9 judge benches. Justice Ramana claims there have been only 17 judgements of 9 judges or more, of which four judgments are by eleven judge benches and one by thirteen judges, and hence 12 judgments by nine judge benches in all. A book released earlier this year, counts three more.

Whatever be the number, it increased by one on 11^th of November when the Supreme Court pronounced its judgment in Jindal Stainless [4] v. State of Haryana. Alok Prasanna Kumar had covered the circumstances it arose in and the issues before the Court.

Preliminary Objection: Revisiting Old Judgments

It may be appropriate to mention the preliminary objections raised by some of the counsel, at the very outset, though the Court, in the course of the hearing did not deal with these issues, till they had almost become moot. Reliance had been placed on the decisions of Constitution Benches in Keshav Mills; Bengal Immunity Co. v. State of Bihar and Lt. Col. Khajoor Singh v. Union of India to state that precedent ought not to be disturbed unless there was a “baneful effect” on the public and there was a “fair amount of unanimity that the previous decision is ‘manifestly wrong’”. Perhaps Justice Ramana answers this best when he points out that approximately 60 Constitution Bench judgments have been overruled in 60 years hence implying that there was nothing wrong in reconsidering Atiabari Tea Company and Automobile Transport Company.

The Questions

The referring bench had framed eleven questions for consideration by the 9 judge bench. On the very first day of hearing, the Court distilled the 11 questions into four questions and set out to consider the following questions:

1. Could the levy of non-discriminatory tax per se constitute infarction of Article 301?
2. If yes, can compensatory tax also fall foul of Article 301?
3. What are the test for determining whether a particular tax or levy is compensatory in nature?
4. Are the entry taxes levied in the present batch to be tested with reference to both Article 304(a) and 304(b)?

As it turned out, the answer to the first question would render the answers to the rest of the questions either unnecessary or obvious. In answering the questions, the Court has delved into some other themes in law and polity which we shall examine.

The First Question

The First question, i.e., could the levy of non-discriminatory tax amount to a restriction of the freedom of trade, commerce and intercourse guaranteed under Part XIII of the Constitution, is crucial. While the Chief Justice and the concurring judges agree that this question is to be answered in the negative, they have different reasons for doing so.

Justice Thakur lays the ground for this examination by acknowledging some of the settled principles and tools of interpretation. The Constitution must be interpreted as a whole, and an interpretation that renders another provision redundant must be avoided and to achieving this may “involve ironing some rough edges”.

Then, expressing a sentiment that is echoed by all the judges in the majority, Justice Thakur holds that power of taxation is an attribute of sovereignty. The principle is well settled. However, this power has been recognized by the courts more readily in the case of the Union, than in the case of the states (see Jagannath Baksh Singh vs State of UP). This judgment, coming from a bench of nine judges, significantly lends its weight to strengthening the taxing power of the states where it affirms that state governments enjoy the sovereign power of taxation to the same extent as the Union.

The power of taxation is limited on two counts:

i) There are a host of provisions in the constitution which limit the power of taxation, mainly in Part XII of the Constitution.

ii) Such taxing power, as divided between the Union and the State cannot be deduced from a general entry on that subject in the lists in the seventh schedule. However, the constitutional limitation on the power of taxation must be express.

Justice Ramana expresses a similar opinion on the power of taxation of the states, which we shall examine in greater detail when we discuss federalism.

 Compensatory Tax

We may recollect here that the Court in Automobile Transport Company vs State of Rajasthan, had laid down that a “compensatory tax” would not amount to a restriction for the purpose of Part XIII of the Constitution. This, in a way acted as a mid-way view, between taxes being considered to be within the contemplation and the opposite view. The concept of Compensatory Tax, which had held the field for half a century, was rejected by almost all judges in Jindal Stainless [4]. On the one hand, all counsel for the assessees, barring two (Mr. Ganguli and Bagaria, senior counsel), conceded that the Compensatory Tax theory was either conceptually wrong or unworkable and impractical. The Union and the states would argue the same with added vehemence. Perhaps mindful that constitutional principles cannot be decided by consent of parties, but without expressly mentioning so, Justice Thakur examined the validity of compensatory taxes. Reasoning that there is no concept of tax being compensatory other than in a larger sense, in that all taxes are for public good, and compensatory taxes would obliterate the difference between a tax and a fee, Justice Thakur rejects the Compensatory Tax theory. That it is also unworkable in practice, is an added flourish to what is already decided.

Is tax a restriction of the freedom of trade, commerce and intercourse?

Have done away with the mid-way status quo, the paths that remained to be chosen between were the two relatively extreme ones, i.e., that either taxes can constitute a restriction of the Freedom of Trade and Commerce (as guaranteed by the Constitution) or they do not. This was framed by Justice Thakur as a choice between the views of Justice Gajendragadkar and Chief Justice B.P.Sinha, in Atiabari Tea Company. Justice Thakur relies upon the very wording of Article 304 to hold that Articles 304(a) and 304(b) refer to two different topics altogether. Article 304(a) is considered, by Chief Justice Thakur, to be the only provision containing any restrictions on the power of taxation.

Further reasoning that the expression “may impose by law” in Article 304(a) does not constitute a restriction on the power to tax, Chief Justice Thakur reduces the scope of the restriction to the effect that taxation of import of goods is justified only if similar goods manufactured within the state are also taxed. The restriction also means that there cannot be any discrimination between locally produced goods and imported goods of similar nature.

Some amount of attention is paid to the non-obstante clause in Article 304 and its implications. Relying upon the opinion of Justice S.K. Das in Automobile Transport Company, Justice Thakur holds the non-obstante clause to be applicable to the Article 304(b) alone. This is perhaps what he means when he earlier says “ironing out rough edges”.

Where Chief Justice Thakur arrives upon the conclusion on the basis of the brass tacks, Justice Bobde, concurring, adopts a more conceptual approach. Justice Bobde holds that Entry Tax is an impost levied in the course of the freedom of trade. But for freedom of trade, there would be no transaction and there would be no occasion for the levy of a tax and hence Entry Tax is not a restriction of the freedom of trade and commerce.

Justice Shiva Kirti Singh agrees with his maternal grandfather, Chief Justice B.P.Sinha, who in Atiabari held that taxes simpliciter would not amount to restrictions on free trade and commerce. However, he disagrees with Justice Sinha on his comments in Atiabari that a high rate of tax may amount to a restriction. Justice S.K.Singh says “these observations create practical difficulties of insurmountable proportions. Hence these deserve to be treated as obiter or interpreted in the light of the entire passage, to mean suchtaxes which impose an impediment to the free flow of trade, commerce and intercourse by creating discriminatory tariff wall/trade barrier” (emphasis in the original).

Justice Ramana, though, approaches the issue from a somewhat activist standpoint, ultimately bases his conclusions on a highly technical examination. He views the presence of a non-obstante clause in 304(a) as an indication that the Constitution protects the State legislations under Article 304(a) and (b) from overemphasized effect on freedom of trade under Article 301.

Justice Ramana then examines the Indian Judgments on the point in detail, and finally holds that if a state makes a law on subjects enumerated in Entry No. 45 to 63 of List II, of the Seventh Schedule, it is doubtful whether it can be invalidated only on grounds of violation of Article 301 and Article 304(a). Recognizing that various provisions of Part XII (Finance) deal with taxes and in Part XIII (Trade) only Article 304(a) mentions taxes, Ramana J. holds that these parts are distinctly separate. Every tax law made by a state need not be answerable to general provisions relating to trade, commerce and intercourse. Justice Ramana reasons that Article 304(a) is an isolated provision dealing with discriminatory taxes alone and this cannot be an evidence of 301 being applicable to tax statutes and held that since there are a number of restrictions envisaged in the provisions of Part XIII, Freedom of Trade under Article 301 must be understood to be only clarificatory and not absolute.

This view is echoed by Justice Banumathi who also makes a distinction between Part XII and Part XIII of the Constitution. Justice Banumathi also makes takes into consideration the sum total of powers conferred on the Union and the States in the constitutional scheme and determines that the Parliament has occupied an overwhelming space and that the power to make reasonable restrictions in public interest is therefore with the states. To subject even the tax levying power to presidential assent as contemplated under Article 304(b) is to erode the pillars of federalism this country is built on.

Also, though the Court in Atiabari had not based its judgment upon the position of law in Australia, where a similar “Commerce Clause”, being Section 92 of the Australian Constitution, provides for freedom of trade and commerce, there was reference to decisions of the Australian High Court in James v. Commonwealth and Commonwealth v. Bank of New South Wales. Chief Justice Thakur accepts the contention on behalf of the states that these judgments have been since overruled in Australia in Cole v. Whitfield and holds that the support that Atiabari and Automobile drew from Australian law, has “fizzled out” with the passage of time. Justice Ramana, examining the law in Australia, notes that in Cole v. Whitfield and later cases, the High Court of Australia held that Section 92 of the Australian Constitution only meant that Australia would be free from protectionist burdens.

In the US Constitution, the relevant clause is Article 1 Section 8 Clause 3, which is also known as the Commerce Clause. Justice Ramana examines the decisions wherein the Court had limited the power of the States to pass restricting legislations and also points out the shift in 1977, when it was clarified that it is only discriminatory restrictions by way of taxation that would be affected and holds that our Constitution directly provides what the Supreme Court of US has interpreted.

Justice Thakur thus answers the first question by stating that levy of taxes on import of goods from other states is not by itself and impediment under the scheme of Part XIII of the Constitution. This naturally means that a non-discriminatory entry tax would not have to pass through the more rigorous procedure in Article 304(b). Bobde, Shiva Kirti Singh, Ramana, and Banumathi concur with this decision.

Such a conclusion by the Court has a bearing upon the other questions that arise in the matter. On whether a non discriminatory tax would have to be tested under Article 304(b), the majority answers in the negative.

An argument was advanced on behalf of the assessees that when a state does not produce a particular type of goods but levies an entry tax on such goods and an equal tax imposed on such goods manufactured within the state, it would amount to discriminatory taxation though facially it would be an equal tax. This argument, which took up significant time of the court (the heuristic example given during the hearings, but didn’t find its way into the judgment, was that of coconuts in Punjab: If Punjab imposes an Entry Tax on coconuts imported into Punjab equal to the excise duty on coconuts produced in Punjab, such an entry tax, it was contended, would be discriminatory as no coconuts are produced in Punjab) is rejected by Justice Bobde with reasoning which is beautiful in its simplicity. Justice Bobde points out that discrimination would arise only when the state produces goods similar to those imported. When the state doesn’t produce such goods, the question of discrimination does not arise.

 Historical view

Justice Thakur, as do many other judges, takes a look at the historical circumstances which necessitated Part XIII of the Constitution. Pre independence, India was divided in to several Princely states, apart from the territories held by the British Raj. The lack of economic unity was acutely felt and discussed extensively in the Constituent Assembly. This gave rise to Part XII of the constitution, a fact accepted by all judges Atiabari onwards.

The judgment is also notable the multiple references to the collection of documents titled Framing of India’s Constitution edited by B. Shiva Rao. While this is certainly not the first judgment to do so, it is perhaps notable for the extent to which it relies upon the work for its understanding. This is of great help to the Court in considering this aspect not only on the basis of the statements made by various members and leaders of the Constituent Assembly, but also on the basis of the transition of the “Commerce Clause” from being part of the Fundamental Rights chapter in the earlier drafts of the constitution and eventually being moved to constitute a chapter by itself. The “germ plasma” for Article 301 comes from clause 13 in the draft submitted by the sub-committee on fundamental rights in the Constituent Assembly.

The references to the speeches of the members of the Constituent Assembly are numerous and many sections including a humorous interlude by Shri P.S.Deshmukh on the proliferation of non-obstante clauses are extracted wholesale.

The extracts of the Constituent Assembly show that the prominent voices, Dr. Ambedkar, Alladi Krishnaswami Ayyar, T.T.Krishnamachari etc. were quite keen on the removal of trade barriers within India and that the three points guiding Dr. Ambedkar when framing the scheme of Free Trade and commerce were i) To the extent possible, and in the interest of India as a whole, free trade between the units should be permitted as far as possible. ii) The interests of the states cannot be disregarded, iii) The Centre is to intervene in the case of any crises. On the other hand, C. Rajagopalachari expressed his concern that a lot of the “units” (states) were dependent on revenue from such entry taxes and would be hit if such taxes were taken away in the name of free trade.

The result of this examination of history is best summed up by Justice Ramana who in his concurring opinion states that the power of the State to levy any tax on goods imported is specifically saved and declared in the final clause, therefore it would be impermissible to test a law imposing entry tax with reference to Article 304(b). Taxes were not intended to be a restriction of the freedom of trade.

 Federalism

The judgment is notable for the multiple expositions on the nature and importance of federalism in India and also its centrality to our polity.

Chief Justice Thakur lays the ground for upholding differentiation when he relies upon Video Electronics to approve of the thought that economic equality is possible only if all parts of the country develop equally. An economically backward state would have a greater leeway to impose taxation and other measures to promote industries within their own jurisdiction. As long as the discrimination does not promote an unfavourable bias and as long as discrimination is in favour of a particular class of industry and for a period of time, it is permissible. Exemptions etc. would not be discriminatory so long as the intention is to equalize the fall of the fiscal burden on goods from within and outside the state. However, the most evocative lines on federalism come from Justice Ramana. He makes an interesting observation that Economic Unity in India is not a sustainable assertion as “82.5˚ Meridian or Indian Standard Time line seems to starkly divide India broadly as affluent West and destitute East”. However, in the face of dismal economic statistics, Justice Ramana holds strikes a note of optimism and faith in the federal system where he says

“All is not lost in what we have achieved. We have stood with each other and for what is right? We have enacted laws and struck them down for right reasons. We have been beaten down but never gave up. We have braved poverty and hunger. We have cared about neighbors and have strived to be a welfare State. We have constructed great many things and achieved many more. We have advanced on scientific fronts and reached distances in universe which were unfathomable five decades back. We have earned a respectable name in the international scenario. We have produced great artists, many leaders and great men. We were not scared so easily by any adverse situation. First step in solving any problem troubling the present is recognizing that there is one India but India as a union of States. States being independent entities under the Constitution require resource to perform their duties under the Constitution.”[1]

He also makes some important observations that under the Constitutional Scheme, the powers of the Union and States are parallel. And that Parliament cannot be a super legislature over the state assemblies. “The Union does not exist in isolation rather it is a co-operative association of the States”. Tracing the history of federalism, he opines that the overriding powers given to the Union are only exceptional circumstances and that the States are supreme in the sphere allotted to them.

The recognition of this constitutional ethos clearly has a concrete effect on the decision in Jindal Stainless[4]. For example the view of Seervai that if Article 304(b) is interpreted to include taxes, it would dislocate the whole scheme of taxation in the Constitution is relief upon. Holding that “it would be surprising if the Union Legislature, i.e., Parliament could not take away the taxing powers of the State Legislatures and yet it would be open to the Union Executive under Article 304(b) to deprive the State Legislatures of their taxing powers” Justice Thakur echoes the thoughts of Matthew J. in G.K.Krishnan v. State of T.N.

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[1] These are the authors’ second most favorite lines in Justice Ramana’s judgment. The first place goes to his concluding statement – “Lastly, it was a wonderful sight to see young practitioners ably assisting their seniors which only goes on to reflect vibrancy of Indian Supreme Court Bar.”

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(In the next post, the authors will discuss differences in view, and the dissenting opinions)

Call for Papers: Colloquium on Judicial Reasoning at Jindal Global Law School

Judicial Reasoning and Judicial Behavior: Studying the Supreme Court of India

Colloquium hosted by Center for Public Law and Jurisprudence

Jindal Global Law School

Call for Papers

The role of the Supreme Court of India in shaping the post-colonial nation has been central to its study in the academy. The institution’s assertion of supremacy in a constitutional democracy, and its tense relationship with separation of powers have been focal points of scholarship, and rightly so. However, there have been fewer studies on its structures of reasoning, its role as a policy maker, the impact of its structural organization as well as the role that the individual biographies of judges have played in the shaping of the institution as a whole. With more than six decades of appellate and constitutional adjudication behind it, any analysis of the Supreme Court’s functioning is bound to be challenging. However, this is also makes the institution ripe for study using tools drawn from a gamut of social science disciplines.

Accordingly, we propose to deepen existing scholarship of the Supreme Court with a colloquium that will bring together scholars of the Supreme Court to analyze its methods, reasoning and its institutional organization. We invite papers on any of these aspects of the Court’s body of work from different disciplinary perspectives, and not merely those that come from a doctrinal analysis of judicial decisions. Accepted papers may form part of an edited volume that will center on the imprint of the Indian Supreme Court on the making of constitutional democracy in contemporary India.

The themes/ questions that the papers might address are as follows:

1. Judges of the Court – Biographies, Ethnographies and Subjective Biases: Aside from George H. Gadbois’ monumental work biographing the judges of the Court, sociological work on the Court has been limited. Further, these works do not adequately consider the manner in which the background of the judges might affect their sympathies and decision-making. In particular, there is a need to investigate the nature of assumptions and biases that inform the decision-making patterns of individual judges, and this would require a combination of theoretical, quantitative and qualitative field research. This work requires combining publicly available data with the imposing informal knowledge of the Court that floats within its corridors and, there are several challenges to doing this form of work. It is however, a promising field for sociological investigation.

 

2. Structural Questions – Procedures and the rules of the practice, including on appointment of judges and how these shape substantive decision-making? Does the working of the Supreme Court lend itself to certain forms of reasoning, e.g., the use of precedent and departure from earlier decisions? What are some of the structural constraints that affect judicial behaviour like dissent? How do structural aspects affect the nature of cases that are often heard? Do structural factors influence the outcome of cases, and work against the interest of certain classes of litigants? How has the two-judge bench phenomena affected the manner in which law has evolved? Whether the manner in which cases are allotted to benches has influenced the evolution of law? While conclusive research on several such questions may be difficult, it may allow for experimenting with innovative methods.

 

3. Judicial Reasoning – Is the court largely formalist? Is there a cleavage between its interpretive techniques in constitutional cases and other cases? What might explain the variations in interpretive techniques across types of cases? What forms of ‘normativity’ may be discerned in its decision-making processes? What are some ethical and moral assumptions that form the basis of decisions? How does the court construct gender, caste and religious identities and the manner in which such constructions would influence law? Does a liberal or conservative bias ground the reasoning of the court in certain types of cases? How has the court explored ambiguity, which is inevitable in legal doctrine? What hermeneutic tools do judges employ when discerning doctrine from precedent? What has been the Court’s tryst of with the philosophical notion of legal realism?

 

4. Policy-making and Doctrine – Beyond the usual dichotomy of a law-making/interpretive function, which has marginal use as an analytical tool, and with the assumption that the Court, as a political institution shapes policy, several interesting questions arise. While evolution of doctrine in itself is studied frequently by practitioners and academics alike, it would be worth examining whether the evolution in a particular direction can be explained by changes in the social, economic or political context in which such cases arose. Whether the activism shown by the Court varies depending on the subject-matter with which the case deals? Whether the policy-making objectives of the Court affect the docket of the Court? Whether patterns in decision-making could point to the socio-economic or political aims of the Court? Whether the Court is capable of certain discernable, coherent objectives, despite its regularly changing composition? Moreover, the ‘dialogic process’ between Courts and law-making bodies has become an important analytical framework to study the role of Courts in shaping policy – how can this be applied to the Indian Supreme Court? How do judges view an ‘audience’ to their pronouncements and how do considerations of reputation affect the Court? How does the court influence the popular discourse on various social, political issues?

These themes are of course, intended to be suggestive and we remain open to all innovative and incisive analysis of the Supreme Court in the making of the modern Indian republic.

The colloquium will be held on 29-30 April 2017 at Jindal Global University’s campus, Sonipat, Haryana, India.

We will be open to abstracts till February 15, 2017. Please email your abstract as an MS-Word (.doc, .docx) file without any identifying references to Sannoy Das [sdas@jgu.edu.in], along with a separate document that contains the title of the proposed paper, your name and designation.

Abstracts will be selected through a double blind peer-review process and selected authors will be notified by February 25, 2017. Draft papers will be due on April 23, 2017.

For clarifications, please write to sdas@jgu.edu.in.

‘O Brave New World’: The Supreme Court’s Evolving Doctrine of Constitutional Evasion

The Government initiates a program on a national scale, which has far-reaching effects upon the lives of citizens. It stakes its credibility and prestige upon the program, and defends its transformative potential for the country. Critics disagree. Among other things, they argue that the program is illegal without the sanction of law, and also infringes constitutionally guaranteed fundamental rights. The critics move the Court, and request an early hearing, since the government’s program is changing facts on the ground on a daily basis. The Court hears the case. Perhaps it agrees with the critics, and invalidates the program. The government then has to go back to the drawing board, iron out the illegalities, and come back with another program (if it considers it to be worth the effort). Or, the Court agrees with the government, and holds the program to be legally and constitutionally valid, and the government carries on. In both situations, the Court pronounces upon the scope and limitations of the fundamental rights at issue.

That is an example of a well-working system of checks and balances. However, over the last few months, there are indications that this system is not working in quite the manner that it should. This is a cause for significant concern.

The Aadhaar Hearing

The first substantive hearing in the constitutional challenge to the government’s Aadhaar Program took place on 23rd September, 2013 (all orders in Writ Petition 494/2012 can be accessed here). On that day, a two-judge bench of the Supreme Court admitted the petition for hearing, and passed the following order:

“… no person should suffer for not getting the Adhaar card inspite of the fact that some authority had issued a circular making it mandatory.”

On 8th October, 2013, the case was listed for “final hearing” on 22nd October, 2013. On 26th November, 2013, the Court passed directions for impleadment of all states and union territories. The case then proceeded to a three-judge bench. Through the course of January to April 2014, the three-judge bench heard arguments by Mr Shyam Divan, senior counsel for the Petitioner, on a number of dates. At the end of April, the case was listed for July, but only came up for hearing next more than a year later, on 21st July, 2015. Through the last week of July and the first week of August, the three-judge bench heard arguments from both Mr Divan and Mr Gopal Subramaniam .

At this point, the Attorney-General argued that there was no fundamental right to privacy under the Indian Constitution, and cases that had consistently held to the contrary since Gobind vs State of MP in 1975 were wrongly decided, since they had ignored binding eight and six-judge bench decisions. He asked for a reference to a larger bench. The Court agreed. On 11th August, 2015, it passed a detailed reference order.  In the order, it noted that:

“We are of the opinion that the cases on hand raise far reaching questions of importance involving interpretation of the Constitution. What is at stake is the amplitude of the fundamental rights including that precious and inalienable right under Article 21. If the observations made in M.P. Sharma (supra) and Kharak Singh (supra) are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality.”

The Court also stated:

“Having regard to importance of the matter, it is desirable that the matter be heard at the earliest.”

Until the time that the case could be heard by a larger bench, the Court also issued the following directions:

“The production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen… [and] the Unique Identification Number or the Aadhaar card will not be used by the respondents for any purpose other than the PDS Scheme and in particular for the purpose of distribution of foodgrains, etc. and cooking fuel, such as kerosene. The Aadhaar card may also be used for the purpose of the LPG Distribution Scheme.” 

There was one more substantive hearing, on 15th October, 2015. A five-judge bench of the Court added some more schemes to the ones listed out in the 11th August order, for which the Aadhaar Card could be used. The Court reiterated that:

“We will also make it clear that the Aadhaar card Scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this Court one way or the other.”

And:

“Since there is some urgency in the matter, we request the learned Chief Justice of India to constitute a Bench for final hearing of these matters at the earliest.”

A five-judge bench is constituted by the Chief Justice at his discretion. After the hearing of 15th October (fifteen months ago), the case has not been heard. In the meantime, the government’s conduct is well-known. The Aadhaar Act was passed, to give statutory sanction to the program (questions have been raised about the constitutionality of the Act as well, especially regarding excessive delegation and the fundamental right to privacy). Despite numerous Supreme Court directions that Aadhaar could not be made mandatory, there have been reports on an almost weekly basis that an Aadhaar Card is effectively a requirement for some or the other benefit (the most recent one being today, for the MGNREGA). Contempt petitions have been filed before the Court, which remain pending.

In light of the Government’s conduct over the last year and a half, the Court’s refusal to hear the case goes beyond ordinary situations of matters being stuck in the courts for long periods because of judicial backlog and pendency. Aadhaar is a classic case where the more the Court delays, the greater the Government’s ability to eventually present it with a fait accompli – the fait accompli being that Aadhaar coverage becomes so deep, pervasive and intertwined with citizens’ lives, that even if the Court was to hold it unconstitutional, it would be, virtually, a technical or physical impossibility to undo it – or, if not an impossibility, the cost of disruption would be so prohibitively high, that no Government could reasonably implement it, even if it wanted to.

For these reasons, when the new Chief Justice assumed office this week, the case was mentioned before him for an urgent hearing. The request was declined (with observations that are deeply concerning, if they reflect the Court’s institutional position on fundamental rights). Presumably, it will not be heard any time soon – despite two judicial observations from the middle of 2015 highlighting the urgency of the case, and the need for a quick hearing.

Demonetisation

On November 8, 2016, the Prime Minister announced that Rs. 500 and 1000 notes would cease to be legal tender from midnight. In the coming weeks, this announcement was followed by a slew of notifications from the Reserve Bank that placed various restrictions on what citizens could or could not do with their money – how much they could withdraw from ATMs, how much they could withdraw from banks etc. At the time, the Prime Minister made the prediction – which now appears to be a little optimistic – that normalcy would return within fifty days – that is, by the end of the year.

As Namita Wahi argues, there are substantive legal arguments for the proposition that the demonetisation policy violated both law and the Constitution. On the first, arguably, the policy was ultra vires the RBI Act, and consequently, required the sanction of either a law, or an Ordinance (there is an Ordinance now). And secondly, that the Policy violated the right to property (Article 300A), as well as the fundamental rights to trade and life.

These arguments were raised by various petitioners challenging various aspects of the policy, who moved the Court soon after November 8. A number of abortive hearings took place over the course of the last week of November, and the first half of December. Finally, the Court referred the case to a five-judge bench, and formulated a number of questions about the legality and constitutionality of demonetisation.

It is now almost two months after the initial announcement. The Prime Minister’s self-imposed time limit of 31 December has expired. Many deaths have been reported. Much of the cash that was supposed to have been taken out of circulation is – reportedly – back in banks; whether or not it is true, surely, if not now, then soon enough, demonetisation will begin to wind itself down. In the meantime, there is no sign of the Constitution Bench.

Judgment by Evasion

Rarely – if ever – are contesting parties before a Court on equal terms. Before the Supreme Court, one party will always have the judgment of the lower Court in its favour, and consequently (absent a stay) will benefit from the case getting held up in the Court. In that sense, Aadhaar and Demonetisation are simply incidents of a broader problem of delay and backlog, where failure to hear and decide cases expeditiously does not cause equal harm to both sides, but benefits one at the cost of the other.

However, there is something more here. First of all, Aadhaar and Demonetisation are not ordinary cases – they are classically about the exercise of immense coercive State power against citizens. Adjudicating the legal validity of such State action is at the heart of why we have an independent judiciary. It is the reason why there is a system of checks and balances: because when power on such a scale is unrestrained by the rule of law and by constitutional norms, history has told us more than enough times what follows.

Secondly, as discussed above, this is not a case involving disputed property where, ten years later, the Court can decide the case and order the person in possession of the property to hand it over the victorious litigant. Aadhaar and Demonetisation are cases where, if the Court does not decide the issue within a certain period of time, any future decision will be an exercise in futility. It makes no sense to decide Demonetisation next year, after the policy has run its course – whatever rights were violated (if, that is, rights are being violated) cannot then be redressed. Similarly, it makes no sense to decide the constitutionality of Aadhaar after the program has begun to be used to avail virtually all (public, and some private) social services, and can no longer feasibly be disentangled from the daily lives of citizens.

Consequently, by refusing to decide, the Supreme Court effectively does decide – in favour of the Government. In effect, it upholds the validity of Aadhaar without hearing arguments on the constitutional questions, and without passing a reasoned judgment on Aadhaar and the right to privacy. In effect, it upholds the Government’s Demonetisation policy without deciding whether it is open to the State to place onerous restrictions on what citizens are allowed to do with their own money. In effect, it takes the side of State power, against citizen.

It is open to the Supreme Court to do so. But if that is what it is doing, then it ought to have the moral courage to defend its position in a reasoned judgment. It ought to explain – publicly – to citizens the scope of their fundamental right to privacy, and the manner in which Aadhaar is consistent with it. Once the Supreme Court decides, then its judgment can be engaged with, defended, criticised, its reasoning scrutinised closely, its positions critiqued. That is how it ought to be. But by simply refusing to hear and decide the case, where the consequences of non-decision are both terribly high and absolutely decisive, the Court only ends up abdicating its role as the organ of the State that is meant to stand between citizen and government power, and to keep the latter within its constitutionally-defined spheres.

The fact that this is how two of the most important constitutional issues in recent times have fared in the Supreme Court suggests that scholars of the Court can no longer make do simply with studying what the Court has held, and the jurisprudence that it has created through its judgments. Scholars must now also study this evolving jurisprudence of Constitutional evasion, which is defined by refusal, and by silence.