Ever since the present Chief Justice assumed office, he has been presiding over what is effectively a permanent Constitution Bench, that has been hearing – and is scheduled to hear – a total of thirteen cases. In the first half of the year, the Bench handed down two judgments that have constitutional implications. The first was Common Cause v Union of India (now better known as the “passive euthanasia” case) and the second one was Kalpana Mehta v Union of India (the “parliamentary standing committees” case).
I do not think that either of these cases require a granular examination; the questions before the Court were broad, and were answered in broad terms. I shall briefly summarise the holdings, but before I do so, I think it is important to note, in passing, that Common Cause clocks in at 538 pages, and Kalpana Mehta at 338 pages. The length of both these judgments could be significantly shortened if the Chief Justice resisted the temptation of spending reams of pages philosophising about life and death in the first case, and about democracy in the second case. They could also be significantly shortened if the judges – none of whom dissented in either case – resisted the temptation of writing 100+-page concurring opinions (Common Cause has four separate opinions, Kalpana Mehta three).
For example, in Common Cause, Justice A.K.. Sikri wrote:
“My purpose is not to add my ink to the erudite opinion expressed in otherwise eloquent opinions penned by my learned brothers. At the same time, having regard to the importance of the issue involved, I am provoked to express my own few thoughts, in my own way, which I express hereinafter.” (paragraph 8)
It is respectfully submitted that the eminently laudable purpose of not adding ink is best served by, well, not adding ink. The provocation to express one’s own thoughts in one’s own way is an understandable one, but judges are, after all, meant to be made of stuff stern enough to recognise and avoid such provocations. This is not to say that the concurrences shouldn’t exist – for example, in Common Cause, Chandrachud J. has a significant disagreement with the other judges on the issue of causation, a disagreement that can be expressed only through an opinion that concurs in the result, but sets out its own separate reasoning. That apart, however, in both these cases, the five judges agree on almost everything. In such circumstances, a single opinion of the Court would make everyone’s life much easier.
In Common Cause, the Constitution Bench unanimously held that passive euthanasia was legal, grounded in the “right to die with dignity” under Article 21 of the Constitution, and ancillary concepts, such as the freedom of choice (to refuse medical treatment), personal autonomy, bodily integrity. The Court only legalised passive euthanasia (that is, to put it simply, the removal of life-supporting machinery from a terminally ill patient), not active euthanasia (mercy killing) or suicide. Following the Vishaka model, the Chief Justice laid down detailed guidelines (which immediately proved controversial) to facilitate the right through the mechanism of “Advance Directives”, and to prevent abuse.
There are perhaps two interesting jurisprudential points that emerge from the judgment. Four of the five judges grounded the distinction between “active” and “passive” euthanasia in the philosophical distinction between acts and omissions:
In case when the death of a patient occurs due to removal of life-supporting measures, the patient dies due to an underlying fatal disease without any intervening act on the part of the doctor or medical practitioner, whereas in the cases coming within the purview of active euthanasia, for example, when the patient ingests lethal medication, he is killed by that medication. (Opinion of the Chief Justice, para 46)
Justice Chandrachud – in my view, correctly – recognised the incoherence of this distinction, especially in the context of something like euthanasia. As he observed:
Against the background of the duty to care, the moral and legal status of not saving a life due to failure to provide treatment, can be the same as actively taking that life.A doctor who knowingly allows a patient who could be saved to bleed to death might be accused of murder and medical negligence. The nature of the doctor-patient relationship which is founded on the doctor’s duty of care towards the patient necessitates that omissions on the doctor’s part will also be penalised. When doctors take off life support, they can foresee that death will be the outcome even though the timing of the death cannot be determined. Thus, what must be deemed to be morally and legally important must not be the emotionally appealing distinction between omission and commission but the justifiability or otherwise of the clinical outcome. Indeed, the distinction between omission and commission may be of little value in some healthcare settings. (paragraph 40)
I’m not quite sure how this split in the approaches towards the act/omission distinction will play out in future cases, but – for obviously reasons – it seems to me that Justice Chandrachud’s approach – which detaches justification from the analytical classification of an event into an act or an omission – is far sounder (later on in his judgment, he – again, correctly in my view – recognises that the distinction is nevertheless maintained in the penal law, and therefore, active euthanasia can only be legalised by the legislature (para 93); and then, still later – this time, wrongly, in my view – links it to mens rea (para 98)).
The second interesting feature that I want to highlight is a little more abstract. When you pare it down to essentials, Common Cause was about a right of refusal. At one level, it was the right to refuse life-prolonging medical treatment. At a second level, however, it was also a right to refuse unwarranted technological intervention into one’s body, or – to put it in another words – the right to refuse being conscripted into a technological system, whatever its beneficial purpose. All the judges recognised this – whether it was the Chief Justice with his striking question about whether an individual should be made “a guinea pig for some kind of experiment”, or Justice Chandrachud’s repeated use of the word “intervention”.
When you combine this with the judgment’s invocation of privacy and autonomy, you get the germ of a concept that I’d like to call “technological self-determination.” In a piece written soon after the judgment, I attempted a definition:
Individuals have the right to engage with technological systems on their own terms, the right to opt into or opt out of such systems without suffering for it, and the right not to be subjected to technological intervention without being given meaningful choice. Let us call this the principle of technological self-determination: or the right of every individual to determine how, on what terms, and to what extent, she will engage with technological systems.
In Common Cause, the stakes were relatively low; however, in the years to come, as technology becomes ever more ubiquitous and ever more intrusive, the idea of technological self-determination will become crucial. One does not even need to look to the future: technological self-determination is a key aspect of the Aadhaar constitutional challenge, presently awaiting judgment. Aadhaar is a complex technological system that operates at the stages of collection, storage and use of personal data; mandatory Aadhaar authorises the government to set the terms by which individuals must engage with this system.
Technological self-determination may or may not feature in the Aadhaar judgment, but it has, at least, made an incipient appearance in Common Cause, and gives all of us something to build on for the future.
The Constitution Bench’s second judgment dealt with the use of Parliamentary Standing Committee reports in Court. The reference arose out of a PIL, which is unsurprising: it is primarily in PILs – where broad and far-reaching (and often continuing) remedies are sought, and the Court takes on the role of an administrator – that the findings of Parliamentary Standing Committees become particularly useful.
In a forthcoming blog post, Karan Lahiri will critique the judgment in some detail; reading it, however, was a somewhat strange experience, because both sides appeared to agree on a lot of issues. Both sides agreed that the credibility of a member of Parliament could not be impugned in Court, through the production of a PSC, since the doctrine of parliamentary privileges and the principle of the separation of powers militated against it. Both sides agreed that a Parliamentary Standing Committee could be used in an interpretive enquiry – that is, while interpreting ambiguous statutory provisions, as a part of the legislative history and record. The Court accepted both these straightforward propositions. The Court also held that – in terms of the law of Evidence – a PSC could be treated as a “fact.” Broadly, this means that the existence of the PSC and the existence of its contents (including, presumably, which Minister said what) are factual, and can be relied upon in Court without dispute. However, the contents themselves cannot be relied upon. For example, if a PSC states that “x was the situation prevailing at y time”, then the fact that the PSC says can be cited in Court (say, to interpret a law, or for some other purpose), but the question of whether x was actually the situation at the time has to be demonstrated independently, and using the rules of evidence:
From the aforesaid, it clear as day that the Court can take aid of the report of the parliamentary committee for the purpose of appreciating the historical background of the statutory provisions and it can also refer to committee report or the speech of the Minister on the floor of the House of the Parliament if there is any kind of ambiguity or incongruity in a provision of an enactment. Further, it is quite vivid on what occasions and situations the Parliamentary Standing Committee Reports or the reports of other Parliamentary Committees can be taken note of by the Court and for what purpose. Relying on the same for the purpose of interpreting the meaning of the statutory provision where it is ambiguous and unclear or, for that matter, to appreciate the background of the enacted law is quite different from referring to it for the purpose of arriving at a factual finding. That may invite a contest, a challenge, a dispute and, if a contest arises, the Court, in such circumstances, will be called upon to rule on the same. (Opinion of the Chief Justice, para 117)
“… whenever a contest to a factual finding in a PSC Report is likely and probable, the Court should refrain from doing so. It is one thing to say that the report being a public document is admissible in evidence, but it is quite different to allow a challenge.” (Opinion of the Chief Justice, para 124)
There is some doubt on this last point, as it appears that Justice Chandrachud and Sikri’s joint opinion envisioned a slightly more prominent role for PSCs, where it factual determinations could be impacted by virtue of being part of a PSC (this is my reading, and I am open to correction on this). However, even if that was the case, it would put them in a minority: on my reading, the majority holding in Kalpana Mehta is what I extracted in the paragraph above.
Doctrinally, it is interesting to note that, in the course of extensive discussions by the three separate opinions on issues of parliamentary privileges, democracy, and the separation of powers, it was only Justice Chandrachud, in the joint opinion, who addressed the elephant in the room: that with PIL becoming such a dominant part of the Court’s docket – which includes, inter alia, the Supreme Court often assuming the role of the first and final trier of fact – the application of separation of powers and parliamentary privileges necessarily needs to change, just to maintain internal consistency. In cases where the Court issues a continuing mandamus and monitors government action on a hearing-by-hearing basis (such cases are legion by now across India), the entire approach that was founded on the Executive being the primary implementing authority, needs to be modified. As the joint opinion observed:
“In matters involving issues of public interest, courts have been called upon to scrutinize the failure of the state or its agencies to implement law and to provide social welfare benefits to those for whom they are envisaged under legislation. Courts have intervened to ensure the structural probity of the system of democratic governance. Executive power has been made accountable to the guarantee against arbitrariness (Article 14) and to fundamental liberties (principally Articles 19 and 21).
Committees of Parliament attached to ministries/departments of the government perform the function of holding government accountable to implement its policies and its duties under legislation. The performance of governmental agencies may form the subject matter of such a report. In other cases, the deficiencies of the legislative framework in remedying social wrongs may be the subject of an evaluation by a parliamentary committee. The work of a parliamentary committee may traverse the area of social welfare either in terms of the extent to which existing legislation is being effectively implemented or in highlighting the lacunae in its framework. There is no reason in principle why the wide jurisdiction of the High Courts under Article 226 or of this Court under Article 32 should be exercised in a manner oblivious to the enormous work which is carried out by parliamentary committees in the field. The work of the committee is to secure alacrity on the part of the government in alleviating deprivations of social justice and in securing efficient and accountable governance. When courts enter upon issues of public interest and adjudicate upon them, they do not discharge a function which is adversarial. The constitutional function of adjudication in matters of public interest is in step with the role of parliamentary committees which is to secure accountability, transparency and responsiveness in government. In such areas, the doctrine of separation does not militate against the court relying upon the report of a parliamentary committee. The court does not adjudge the validity of the report nor for that matter does it embark upon a scrutiny into its correctness. There is a functional complementarity between the purpose of the investigation by the parliamentary committee and the adjudication by the court….
… The extent to which the court would rely upon a report must necessarily vary from case to case and no absolute rule can be laid down in that regard.” (Joint Opinion authored by Chandrachud J., paras 65 – 66)
I do not know if this addresses the problem to the fullest extent – to be fair, I don’t know if the problem can be addressed within existing legal vocabulary, which simply doesn’t envisage the Court as permanent administrator – but it does, at least, acknowledge the misfit, and make a start towards addressing it. Justice Chandrachud’s invocation of the “transformative Constitution” at the end of the Opinion, as an anchoring principle, is interesting, and I shall examine it in some detail in a subsequent post.
(This ends the Round-Up Series, that dealt with important constitutional pronouncements in the first half of 2018.)