(In this guest post, Praharsh Johorey examines whether the Supreme Court can strike down legislation for violating Article 355 of the Constitution, in the context of the constitutional challenge to S. 6A of the Citizenship Act).
Later this year, the Supreme Court is due to hear the constitutional challenge to Section 6A of the Citizenship Act of 1955, which codifies a special citizenship law for the State of Assam. As explained in a previous post here, Section 6A divides ‘illegal’ immigrants (a foreigner who enters India without a valid passport or other travel documents, or someone who stays in India beyond their permitted time) into three categories, depending on their date of entry: People who entered before 1966 (who were to be regularised), people who entered between 1966 and 1971 (before the Bangladesh war, who were to be taken off the electoral rolls for ten years, and then regularised) and people who entered after 1971 (who were to be expelled in accordance with existing law).
Assam, post-independence, has dealt with the severe economic and societal consequences of continued mass migration from East Pakistan (now Bangladesh), which, it is claimed, has caused ‘perceptible change in the demographic patterns’ of the State. The principle challenge to Section 6A is thus based on the continuing failure of existing law to adequately protect the state from the undesirable consequences of mass migration.
Legally, two grounds are urged. First, that the State has failed to uphold its constitutional duty to protect the Assamese people from ‘external aggression’ under Article 355 of the Constitution. Second, that the differential (and arguably weaker) laws applicable to the State of Assam is a breach of the right of the Assamese people to be granted equal protection under Article 14.
I will deal predominantly with the first issue in this essay. Article 355 reads:
“It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution.”
The substance of this question was previously before the Supreme Court in Sarbananda Sonowal v. UOI, where Mathur J., writing for a bench of three judges, decided challenges to the Illegal Migrants (Determination by Tribunals Act), 1983 (“IMDT Act”) and its corresponding rules, which also dealt with illegal immigration in the State of Assam. Having engaged in a detailed analysis of the meaning of the term ‘external aggression’, and reading illegal immigration as falling within its scope, Mathur J. concluded in paragraph 42:
‘The provisions of the IMDT Act and the Rules made thereunder clearly negate the constitutional mandate contained in Article 355 of the Constitution, where a duty has been cast upon the Union of India to protect every State against external aggression and internal disturbance. The IMDT Act which contravenes Article 355 of the Constitution is, therefore, wholly unconstitutional and must be struck down.’
To declare the IMDT Act unconstitutional, Mathur J. could have relied on one of two grounds: first, that the IMDT Act is “law” under Article 13 of the Constitution, and therefore subject to constitutional scrutiny; and second (and which is more likely), that provisions such as Article 355 imposes a positive obligation upon the Government in power, the failure to adequately discharge which is unconstitutional. I will examine the veracity of both these assumptions independently.
Article 13 and Part III
Article 13 was inserted in the Constitution to ensure that ‘laws’ or ‘laws in force’ that contravene constitutional provisions are void – applying to both existing statutes and enactments subsequent to the Constitution. The question relevant for this essay is the scope of this Article, to determine whether it can apply to Article 355. The relevant provisions of the Article read:
(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
The wording of Article 13(1) and (2) is clear and unequivocal – it applies exclusively to Part III. Applying the principle of literal interpretation, and read with Expressio Unius Est Exclusio Alterius (which was discussed in the context of the definition of ‘laws in force’ here), it is clear that ‘laws’ or ‘laws in force’ can be declared unconstitutional as a result of the operation of this Article only if they are in breach of the provisions of Part III, and not the Constitution as a whole. Demonstrably, Mathur J. did not and could not declare the IMDT Act unconstitutional under Article 13.
Part III and Unconstitutionality
Even accepting the contentious argument that the flow of illegal immigrants is contemplated under the term ‘external aggression’, we have to understand whether it is permissible for the Supreme Court to declare the inadequacy of state measures under Article 355 as being sufficient grounds to declare that such measures are unconstitutional.
Article 355 imposes a duty upon the Union to protect every state against external aggression. It is accepted legal theory that all duties have correlative rights (Hohfeld) which would imply that all states, or aggrieved citizens (as in the present dispute) have a ‘constitutional right’ to be protected against external aggression and internal disturbance by the Union.
Rights not expressly codified in Part III of the Constitution – and therefore not “fundamental rights” as such – have been nonetheless interpreted as ‘constitutional rights’ by the Supreme Court, notably in Rajbala v. State of Haryana – which recognised a Constitutional right to ‘contest elections’. In this case, the Constitutionality of the Haryana Panchayati Raj (Amendment) Act, 2015 was challenged, which imposed more stringent qualifications (educational and financial) to be eligible to contest Panchayati elections, and was challenged as effectively denying a class of people their ‘constitutional right’ to contest elections. Despite holding that the amendments were constitutional Chelameswar J. held:
‘Various provisions, by implication create a constitutional right to contest elections to these various constitutional offices and bodies. Such a conclusion is irresistible since there would be no requirement to prescribe constitutional limitations on a non-existent constitutional right…. Every citizen has a constitutional right to elect and to be elected to either parliament or the state legislatures.’
The implications of this are clear – that if the state undertakes certain actions that impede upon a constitutional right, for e.g. if it enacts legislation debarring citizens from contesting elections, its actions may be said to be ‘unconstitutional’, even though the right to contest elections is not specifically enshrined in the Constitution. However, Chelameswar J. recognised the supremacy of the legislature to alter these rights, noting:
Under the scheme of our Constitution, the appropriateness of the Legislative Body is determined on the basis of the nature of the rights sought to be curtailed or relevant and the competence of the Legislative Body to deal with the right having regard to the distribution of legislative powers between Parliament and State Legislatures. It is also the settled principle of law under our Constitution that every law made by any Legislative Body must be consistent with provisions of the Constitution.
Therefore, the exercise of a duty through legislation can only be deemed unconstitutional if it is outside the ‘Legislative competence of the enacting body’, or it abrogates ‘provisions of the constitution’. It is my contention that ‘provisions of the constitution’ here means Part III, most crucially, Articles 14 and 21. In Rajabala itself, the Court’s determination of whether the Constitutional right to contest was violated was based on an examination of Article 14, and whether the scheme imposed was ‘arbitrary’, or created a classification without intelligible differentia. The Court undertook no analysis of whether ‘Constitutional rights’ could per se be violated, and demonstrated that at best, they can be linked to a breach of provisions of Part III.
External Aggression and the Insufficiency of State Action
Assuming (but not conceding) that the Court could strike down the IMDT Act for insufficiently discharging the 355 duty, it becomes significant to note the reasons why J. Mathur declared the IMDT Act so woefully inadequate, so as to render it in direct conflict with the Union’s obligations. He first frames the duty of the state as:
‘To take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution. Having regard to this constitutional mandate, the question arises whether the Union of India has taken any measures for that purpose.
Thus, to satisfactorily discharge its constitutional obligation, the Union was required to prove that it had undertaken any measures in furtherance of protecting the State of Assam from illegal migration. The Statement of Objects and Reasons of the Act makes clear that the Union recognised this problem, stating that ‘the influx of foreigners who illegal migrated into India…pose a threat to the integrity and security of the region’ with the Preamble further elucidating that ‘the continuance of these such foreigners in India is detrimental to the interests of the public of India.’ Thus there was clear recognition of the problem, and demonstrable intent to take measures to deal with it.
The scheme created under the Act was to authorise the Government to set up Tribunals for the purpose of determining whether migrants were legal. The justification for the scheme was to ensure that adequate safeguards were granted to those migrants who entered and resided in India legally, and to prevent their arbitrary deportation by granting them access to fair judicial process.
However, a perusal of the provisions of the Act lead to Mathur J. concluding:
The application of the IMDT act and the rules made thereunder in the state of Assam has created the biggest hurdle and is the main impediment or barrier in identification and deportation of illegal migrants. On the contrary, it is coming to the advantage of such illegal migrants as any proceedings initiated against them under the said provision which, as demonstrated above, almost entirely ends in their favour, enables them to have a document having official sanctity to the effect that they are not illegal migrants.
Thus, the malfunctioning/ineffectiveness of the Act, and not the absence of measures itself that lead to Mathur J.’s declaration – which belies his own standard for the discharge of the 355 duty. We should therefore examine whether the Supreme Court has in the past struck down any acts for insufficiently fulfilling a positive State obligation, even when no discernible standard for adequate discharge is established. The positive duties of the State under Article 21 serve as an appropriate starting point.
For example, the Supreme Court has read the right to a ‘Clean and healthy environment’ as being an essential feature of the ‘Right to Life’ under Article 21 – with the right to clean water and air forming part of the broader corpus of this right. Hohfeld’s test implies that there exists a correlative duty upon the State to ensure a clean environment, with access to clean air and water. Applying Mathur J.’s test, legislations like the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution Act), 1974 are therefore liable to be struck down as being ‘unconstitutional’ if it is proven that despite their operation, the environment continues to be polluted, or that people still do not have free access to clean resources. However, the Courts have continually refused to engage in the effectiveness of these legislations (or their consequent constitutionality) in solving these problems, instead engaging only with interpreting the Right to Life under Article 21. The dictum of the Andhra Pradesh High Court in Wasim Ahmed Khan v. Government of AP is relevant. Here, a PIL was filed against the Government for its failure to provide safe drinking water and prevent the outbreak of disease in the state as illegal and unconstitutional. While recognising that providing drinking water is a ‘priority issue’, the bench noted:
‘So far as the relief in general terms which was claimed by the petitioner (of the negligence being an unconstitutional act) is concerned, it should be borne in mind that in a State or rather a country where growth of population is in geometrical proportion and the natural resources are not only static but depleting or made to deplete, it will be only utopian to issue a direction as desired by the petitioner.
It is submitted that such a demonstrable failure of a ‘priority’ state duty under Article 21 can be treated no differently from the separate duty of the State under Article 355. Both problems: ensuring access to vital resources and preventing illegal immigration, are constrained by the limited resources of the State and the partial burden that is borne by the local populous in discharging such an obligation. The AP High Court went on to note:
There cannot be any second opinion that the State is under obligation to provide atleast drinking water to all its citizens, but at the same time, the limited availability of the water resources as well as the financial resources cannot be ignored. Within the available resources, the problem should be attended to with utmost importance and promptitude. In fact, it should be treated as a priority issue. At the same time, making the Government alone responsible and liable to provide water may not solve the issue. The people at large should address themselves to the problem and learn to use the water, particularly drinking water, in a judicious and reasonable manner. Wastage of drinking water, which is not available in plenty, would naturally result in denial of the same to the other needy persons. Individual and collective efforts in this regard are very much necessary and such efforts go a very long way in minimizing the scarcity.
In respect of State duty under Article 355, considerable responsibility was placed upon the local citizenry to report incidents of illegal immigration to allow the State to maximise the resources available to it. While the ultimate functioning of the Act may have resulted in an excessive burden upon the citizens, which caused lower rates of deportation and difficulty in identification of illegal immigration, it is respectfully submitted that these are not sufficient grounds to declare that the IMDT Act is wholly unconstitutional – but that parts of it are to be enforced with greater effectiveness. In summary, only a successful challenge to the IMDT Act under Part III (which was done) should have lead to a declaration of unconstitutionality.
Fact-Finding and the Insufficiency of the Supreme Court
A close reading of the Sonowal judgement reveals another troubling truth – that the Court makes its determination of the inadequacies of the IMDT Act on the basis of a distinct lack of concrete evidence. It relies primarily on a single report of the Governor of Assam (1998) to draw its conclusions on the efficacy of the Act, disputing none of the reports factual conclusions. Without drawing any inferences as to the accuracy of the report itself, this raises the questions of the ability of the Supreme Court to make concrete factual determinations, and whether it is even the correct forum for such determinations to be made.
The Supreme Court has been vested with wide powers to do justice in the Constitution – but its power to appreciate new evidence, or interfere with the findings of lower courts is limited when exercising its appellate authority. However, the Supreme Court has called on ‘expert committees’ to assess more closely the evidence submitted by the parties. For example, in an order passed concerning the Cauvery Water Dispute between Karnataka and Tamil Nadu, the Court ordered:
‘It is submitted that it would be in the fitness of things that a High Powered Technical Team is appointed by the Chairman of the Supervisory Committee who is the Secretary of the Ministry of Water Resources…to proceed immediately to the site so that an inspection of the entire Basin is done for assessing the ground realities and prepare a report forthwith for being placed before this Hon’ble Court.’
There have been numerous incidents of the Supreme Court having relied upon neutral ‘expert evidence’, such as in State of Tamil Nadu v. K. Balu, concerning liquor vendors on highways, or its creation of a Technical Expert Committee that studied Genetically Modified Organisms in Aruna Rodrigues v. UOI. Its treatment of facts in Sonowal is thus a departure from its current practice of commissioning independent studies to determine contentious assertions of on-ground realities. The Judiciary, in comprising of judges who are (justifiably) unable to address the several scientific and complex questions of fact posed to it, is invariably one-sided in its approach, as it lacks the inherent institutional expertise to make its own determinations of fact. As a consequence, the Supreme Court isn’t equipped to scientifically determine when a partial breach of duty has taken place, and what the threshold for such partial breach should be. As a result, judgements like Sonowal ignore the often overlapping (and not the binary positive or negative) outcomes that may result from legislations like the IMDT.
The Constitutional Bench of the Supreme Court is required to answer a set of thirteen questions as referred to it by the Division Bench before which the case was originally placed, some of which are crucial for the purposes of this essay:
- Whether Section 6A violates Article 355?
- What is the true interpretation of Article 355 of the Constitution?
- Would an influx of illegal migrants into a State of India constitute “external aggression” and/or “internal disturbance”?
- Does the expression “State” occurring in this Article refer only to a territorial region or does it also include the people living in the State, which would include their culture and identity?
To answer these questions effectively, it is crucial that the Supreme Court deliberate upon the nature of Article 355 – as to whether it requires that any measure be undertaken, or that these measures must also be effective. Answering these questions clearly would avoid Mathur J.’s dictum, which confused ‘unconstitutionality’ with ‘ineffectiveness’ – and may go some way to easing the plight of the Assamese.