Guest Post: The Essential Practices Test and Freedom of Religion – Notes on Sabarimala

(This is a guest post by Dr. Tarunabh Khaitan.)

These reflections are inspired by Justice Chandrachud’s musings from the bench expressing doubts about the ‘essential practices test’.

As I argue in this paper, freedom of religion is best understood as the right of an individual, not a group. Its best rationale is to be found in the need to protect our personal autonomy in matters pertaining to religious adherence. It is an important liberal value that ought to be cherished, and not restricted too lightly. While in the instant case, I think the non-discrimination principle probably trumps the religious freedom right, it is important that we recognise this isn’t an easy case and that whichever side wins, something of value will be lost.

These are my reasons for making these claims:

Official Doctrine versus Religious Practice

Sociological data is clear that even people belonging to the same ‘religion’ are religious in different ways. There is a staggering diversity of religious beliefs and practices, such that there are many Hinduisms, many Protestantisms, many Buddhisms and many Islams. Whatever official doctrine may say, sociologists seem to be telling us that most individuals go about adhering to their religions à la carte. Instead of accepting any package on offer as is, they make choices, they pick some aspects and reject others, emphasise this and ignore that, or interpret away inconsistencies. Of course, in many religions, such as Hinduism, there is no ‘package’ on offer anyway.

Given this staggering diversity in religious practice, recognising an essential practices test artificially elevates for protection the ‘official’ (often the most orthodox) line of thinking of a religious elite for constitutional protection. This overly formal devise ignores how religious people actually live their lives.

Furthermore, there is little scope, beyond a rhetorical acknowledgement, of the religious freedom of atheists and agnostics within the essential practices test. Since there is no ‘essential practice’ to atheism, it basically falls of the constitutional radar. In the paper, I show how an autonomy-focussed individualistic reading of freedom of religion can genuinely respect an atheist’s freedom from religion.

Gatekeeping

The essential practices test is mainly used by our courts to perform a gatekeeping function—given the fact that religious freedom is often used to advance some rather bizarre claims, by asking whether the practice is essential to the official doctrine of a religion, the courts can basically ‘keep the crazies out’.

An individualistic approach to determining freedom of religion will admittedly have a very broad scope. As the paper argues, all that an individual claimant needs to prove is her sincerity in making the claim and that the object of the claim is plausibly This does open the gates very wide at the initial stage.

However, the paper says, a better approach to gatekeeping is not at the stage of determining the scope of the right itself, but at the justification stage: whether the restriction on the right is justified. At that stage, public norms of proportionality can do a much better job of discerning which religious freedom claims are worthy of protection, and which are not, without artificially determining beforehand whether a claim even counts as a religious freedom claim.

On Judicial Role

As Justice Chandrachud rightly notes, the essential practices test puts the judge in an extremely awkward situation. It asks of her to determine what is essential to a religion and what is not. This is nothing but the appropriation of a religious function by the state, and a blatant attack on the autonomy of religions. The irony, of course, is that this is done by the state in the name of protecting religious freedom. Defining what a religion is is best left to its adherents. It is better for the court to say that public reasons require a restriction on one’s religious freedom, than for it to say that what one claims as her religion is not her religion at all.

Both law and religion are autopoietic systems. Teubner identified the ‘regulatory trilemma’ that law faces when seeking to regulate such systems: (i) either law’s regulation is incompatible with the self-producing interactions of the other system (in this case, religion), and will be ignored, or (ii) the law influences the internal interactions in the regulated system so strongly that their self-production itself is endangered, or (iii) the law itself is captured by the regulated system.

One could argue that in India, (ii) has been in evidence: that the law’s overreach into religious matters has destroyed the internal capacity of religion to reform and regenerate. The relative dearth of internal religious reform movements since independence, especially within Hinduism, may be explained by this.

Pitted against this warning are the unique socio-cultural conditions in India, especially in relation to the practice of Untouchability, and our special constitutional mandate to the state to reform the majority religion. The scale of the injustices makes it hard for the state to stay distant. But it is important for it to also recognise the dangers of overreach, which might damage the religion’s capacity for organic growth and internal reform.

On the case at hand

The Sabrimala entry case is a difficult one. It is difficult because the interests on both sides are weighty. The religious interest in the case is potent because it concerns religious worship, rather than, say, a secular service being provided by a religious organisation. It is a lot easier to tell a religious body that it must not discriminate while delivering charitable services to the public, than to say that practices that constitute a sacred communication with the divine (from its internal viewpoint) should be subject to public norms. The religious freedom interest in the case at hand is very weighty indeed.

On the other hand, patriarchy is entrenched in all our institutions, and religion has played a key role in securing its position. The interest on the other hand it not simply that of ‘the right to pray’ by some women, but an important expressive interest in rejecting blatant sexism. As I have argued before in my monograph on discrimination law (chs 4&5), the overall point of discrimination law is to reduce and eliminate substantial, abiding, and pervasive advantage gaps between cognate groups (such as men and women). These advantage gaps exist in the material, political as well as socio-cultural dimensions, creating a mutually reinforcing and self-perpetuating pattern of domination and disadvantage.

In the final analysis, what probably tips the balance in favour of the claimants seeking the right to entry is our unique constitutional treatment of Hinduism, especially in relation to temple entry in Article 25(2)(b), and the additional weight to their argument supplied by Article 17’s prohibition on Untouchability. While Article 25(2)(b) only applies to ‘religious institutions of a public character’, Article 17 has a broader reach. The court appears not to show much patience with the argument that the understanding of Untouchability can be extended to women. But Martha Nussbaum has argued convincingly that caste taboos are inseparable from gender and sexuality taboos, and a proper understanding of Dr Ambedkar’s teachings must extend to all forms of discrimination.

Even if the court finds against the temple, it should do so with some regret at a significant interference with religious freedom. Constitutional morality cannot simply be invoked to judge the morality of the religious practice in question—the morality of our constitution extends to the protection of practices that are unpopular, offensive and even wrong. Of course, when rights of others come into conflict, religious freedom sometimes has to give way. But religious freedom would be meaningless if it only protected practices we approved of.

In particular, the court must be mindful of our political context and history. Our subcontinent has spilt much blood over religion. Even today, people are being killed for their religion, and their religion-inspired dress, food and habits. A robust protection of religious freedom (along with the right against religious discrimination) allows us to live peacefully despite our differences. It is an important liberal value that ought to be cherished, even (nay, especially) when we disagree with what it seeks to protect.

(Dr. Tarun Khaitan is an Associate Professor at Oxford and Melbourne, and the General Editor of the Indian Law Review.)

Guest Post: Transformation, Continuities, and Gateways to Transformation: Reflections on the Kalpana Mehta judgment

(In this Guest Post, through an analysis of the Kalpana Mehta judgment, Karan Lahiri argues that the divide between “conservative” and “transformative” Constitutions/constitutional provisions is simplistic, and misses a crucial, third kind of constitutional clause: that which serves as a “gateway to transformation.” This three-pronged typology is truer to the Constitutional text, structure, history, and philosophy.)

In May this year, a Constitution Bench of the Supreme Court pronounced its decision in Kalpana Mehta & Ors. v. Union of India & Ors., where it ruled on a question impacting the horizontal separation of powers between legislature and judiciary: namely the extent to which the Supreme Court could rely upon a Parliamentary Standing Committee Report (“PSC Report”). The Court was, essentially, called upon to identify whether, and at what point, such reliance impinged upon legislative privilege. [A post on this blog has provided some background on the issues involved.]

The Kalpana Mehta Judgment

Two questions had been referred to this bench of five judges by an Order of April 05, 2017: –

“(i) Whether in a litigation filed before this Court either under Article 32 or Article 136 of the Constitution of India, the Court can refer to and place reliance upon the report of the Parliamentary Standing Committee?

(ii) Whether such a Report can be looked at for the purpose of reference and, if so, can there be restrictions for the purpose of reference regard being had to the concept of parliamentary privilege and the delicate balance between the constitutional institutions that Articles 105, 121 and 122 of the Constitution conceive?”

The case involved the licensing and testing of certain vaccines designed to prevent cervical cancer. The Petitioners sought to rely on proceedings before a Parliamentary Standing Committee to establish, among other things, irregularities in clinical trials. The problem before the Court was that if this Report was relied on by one party as evidence of such irregularities, the contents of the Report would become contentious. The other party would dispute them, and the Court would be forced to examine the correctness of the statement made before the Committee as also the correctness of the Report itself. This is a prerogative that the rules of parliamentary privilege reserve for Parliament alone, since such Committees are limbs of Parliament and their Reports constitute advice to the House (as per the Rules of Business). Therefore, reliance by one party would trigger an institutional conflict between legislature and judiciary. This is why the Supreme Court had to clearly define situations where such conflict would not occur, and carve out a set of cases where such reliance on PSC Reports was permissible.

By way of example, let us imagine a situation where a PSC was looking into the felling of trees in Central and South Delhi. A reputed environmentalist deposes before the Committee that 16,000 trees have been cut down illegally. An NGO then files a PIL before the Supreme Court on the strength of this PSC Report, and the statement contained in the Report. The Government appears before the Court and contests the veracity of the statement that 16,000 trees were felled, and produces conflicting evidence that only 420 trees were felled after obtaining all the requisite clearances. This would place the Court in a position where it would be impinging upon the powers of Parliament, because the truth of a statement made before one of its Committees can only be questioned before Parliament itself, with possible consequences (such as proceedings for contempt of the House) following as a result. Similarly, only Parliament can deliberate upon the correctness of the advice provided by a PSC. Drawing a line between the powers of the judiciary and prerogative of Parliament is, therefore, critical, particularly in an age where the Supreme Court is sometimes acting as a fact-finding trial court, arguably going beyond its role and institutional competence as a constitutional court.

In deciding the reference, the Court handed down three plurality opinions – Chief Justice Misra wrote for himself and Justice Khanwilkar; Justice Sikri signed on to Justice Chandrachud’s opinion; and, Justice Ashok Bhushan wrote a separate opinion. As usual, this brings up the question of what the decision ultimately laid down. Based on my reading, the following points emerge: –

  • All five judges agreed that a PSC Report can be used as an external aid to statutory interpretation, to throw light on legislative history, on the policy problem (referred to by lawyers as the “mischief“) sought to be addressed by a statute etc. In other words, it could be used to give context to the interpretation of statute that was deliberated upon before the Committee.
  • The Court also held that judicial notice can be taken of proceedings in Parliament under Section 57(4) of the Indian Evidence Act, and this can serve as proof of the existence of the report, statements made in Parliament, historical facts etc.
  • The CJI and Justice Khanwilkar, on one hand, and Justice Chandrachud and Sikri, on the other, agreed on the point that a PSC Report cannot constitute substantive evidence of underlying facts, as such facts (for instance, facts in respect of the conduct of an individual) would be contentious (triggering the issue of privilege) and, therefore, the Court would have to adjudicate on the basis of other evidence [See Paragraphs 124-127, 138(iii), 138(iv) of the CJI’s opinion; Paragraphs 67, 74, 74(iii) of Justice Chandrachud’s opinion]. On this point, Justice Bhushan was in the minority, as he seemed to hold (at Paragraph 150 of his opinion) that a PSC Report can be one of the pieces of evidence used to prove underlying facts.
  • According to Justice Chandrachud (with Justice Sikri), a Parliamentary Standing Committee Report can be used to hold the State and its agencies accountable, particularly in the Court’s PIL jurisdiction. This is because, according to them, there is a functional complementarity between the Courts and the Committees in this regard, However, they were in the minority on this point, as no other judge seems to have a special carve-out in respect of government accountability. [See Paragraph 65-66 in Justice Chandrachud’s opinion]

As I was involved in the litigation, I will refrain from commenting on the outcome of the case, focusing instead on one specific aspect, namely Justice D.Y. Chandrachud’s vision of a “transformative” Constitution, and how he views the moment of creation of our Constitution as a break with the past. I believe this is particularly significant because he is a member of the Constitution Bench that recently heard the correctness of the 2013 decision in Suresh Kumar Koushal v. Naz Foundation (which had upheld the constitutionality of S. 377 IPC), as also part of another bench deciding whether it is constitutional for women of menstruating age to be banned from entering the Sabarimala temple. One side in both cases would be relying on an interpretation of the Constitution as a transformative document: first, to argue that our Constitution marked a break from Victorian morality that demanded criminalization of homosexuality (replacing it with a constitutional morality of choice where every individual could love without fear of the police State); and also, that it left behind an archaic religious morality that permitted menstruating women to be branded as impure, excluding them from an aspect of society (i.e. worship) based on immutable personal traits in a manner categorically similar to “untouchability” (as argued here on this blog).

Questioning the “Transformative Constitution”

I believe, however, that Justice Chandrachud’s emphasis on transformation, as fascinating as it may be, is actually incorrect in this particular case, because the provisions that fell for consideration in the Kalpana Mehta case explicitly establish continuities with the past. The main provision that the Court was considering is Article 105 of the Constitution, which reads:

“105. Powers, privileges, etc of the Houses of Parliament and of the members and committees thereof

(1) Subject to the provisions of this constitution and the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament

(2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings

(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined shall be those of that House and of its members and committees immediately before the coming into force of Section 15 of the Constitution (Forty fourth Amendment) Act 1978

(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament.”

[NOTE: Article 194 is the corresponding provision for State legislatures.]

It would be reasonable to ask why an issue of privilege would arise with respect to a Parliamentary Standing Committee Report, given that nothing in Article 105 seems to explicitly bar judicial scrutiny or consideration of such reports. The answer lies in the continuities explicitly created by Article 105(3), which become apparent when one looks at its drafting history. The following table highlights the amendments that Article 105(3) went through over the years.

Original Provision Text post 42nd Amendment Present version post the 44th Amendment
(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members of each House, shall be such as may from time to time be defined by Parliament by law, and until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of the Constitution. (3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House shall be those of that House and of its members and committees immediately before the coming into force of section 21 of the Constitution (42nd Amendment) Act, 1976, and as may be evolved by such House of Parliament from time to time. (3) In other respects the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of the House and of its members and committees as immediately before the coming into force of Section 15 of the Constitution (Forty-fourth Amendment) Act, 1978.

 

Section 21 of the Constitution (42nd Amendment) Act never came into force, as the Congress Government was replaced the by the Janata Alliance in 1977 before the provisions could be formally notified. Therefore, the original provision continued until 20.06.1979, when the 44th Amendment Act brought into force the present version of Article 105(3). The amendment, however, is nothing more than semantics, merely replacing the reference to the “House of Commons of the Parliament of the United Kingdom” with a reference to the privileges “of the House and of its members and committees as immediately before the coming into force of Section 15 of the Constitution (Forty-fourth Amendment) Act, 1978”. As the Indian Parliament had made no law defining parliamentary powers, privileges and immunities as on the date that the 44th Amendment was enacted, the privileges which existed before the coming into force of the 44th Amendment Act were basically those that were created by the original provision, namely the rules applicable in the British House of Commons as on the date of commencement of the Constitution. [Both the table above, and the history of the provision, are from D.D. Basu, Commentary on the Constitution of India, Vol. 4, Pg. 5034 (8th edn., LexisNexis Butterworths Wadhwa)].

I would like to highlight four things, at this point, which become evident on reading the table given above: –

  • First, our privilege rules are the same as those of the British House of Commons.
  • Second, the original Article 105(3) explicitly referred to the British House of Commons.
  • Third, the provision place the onus on future legislatures to transform the rules of privilege and break from the traditions of the House of Commons, a duty that our Parliament has, sadly, ignored.
  • Finally, the 42nd Amendment allowed room for a second avenue for homegrown rules of privilege (other than an explicit law) evolved through Parliamentary practice when it referred to rules “as may be evolved by such House of Parliament from time to time.” This was explicitly eviscerated by the 44th Amendment, once again establishing a continuity, which did not allow for transformation through parliamentary practice.

It is because of these explicit continuities that the questions referred to the Constitution Bench in the Kalpana Mehta case arose in the first place. As is evident from the Order of April 05, 2017, as also the final judgment of the Court, the Respondents, while making their case for exclusion of the Report, referred to precedents from the United Kingdom to formulate the proposition that records of parliamentary proceedings cannot constitute proof of underlying facts, and that records of parliamentary proceedings (including PSC Reports) cannot be relied on in a Court such that the contents of the same become contentious.  Take, for instance, the decision of the Queen’s Bench in Church of Scientology of California v Johnson-Smith, (1972) 1 Q.B. 522 where it was held that “what is said or done in the House in the course of any proceedings there cannot be examined outside Parliament for the purpose of supporting a cause of action even though the cause of action itself arises out of something done outside the House.”

The purpose here is not to exhaustively examine decisions on privilege from the U.K. Such examination was carried out by the Court in the Kalpana Mehta judgment, and the correctness of their conclusion on this aspect is not something I am examining in this essay. The point here is that such examination was required precisely because of the colonial continuities established by Article 105(3), which ties our rules of privilege to those prevalent in the British House of Commons, and the Court ought to have confined itself to this alone. In other words, the questions before the Court should have been answered in two steps: –

  • Step 1: Read Article 105(3).
  • Step 2: Refer to parliamentary practice in the British House of Commons based on the explicit text and legislative history of Article 105(3), and whether there is are equivalent principles in the U.K. which would throw light on the circumstances in which a PSC Report could or court not be relied upon.

In fact, the reference to the British House of Commons in Articles 105 and 194 (Article 85 and 169 of the Draft Constitution of 1948) was actually debated in the Constituent Assembly (on 19.05.1949 and 03.06.1949 respectively). H.V. Kamath sought to move an amendment to delete this reference when the provision was debated on 19.05.1949, stating that “it is far better to build our own solid ground, rather than rely on the practices obtaining in other countries.” Naziruddin Ahmad said that “after Independence, we cannot relate our rights to those available to the Members of the House of Commons. Various members (such as Prof. Shibban Lal Saksena and Dr. P.S. Deshmukh) sought inclusion of an Appendix or a Schedule, clearly delineating the privileges to be enjoyed by legislators in India. The response came from Alladi Krishnaswami Ayyar (with whom Dr. Ambedkar concurred). He mentioned that similar provisions exist in Australia and Canada, stressing on the “widest privileges” as exercised by Members of Parliament in England. He also said that a Committee had attempted to catalogue parliamentary privileges, but this effort failed as time was insufficient. Most importantly, he stressed on the fact that this was a “temporary measure” and that “[t]here is nothing to fetter the discretion of the future Parliament of India.” From the debates, therefore, it is starkly evident that, firstly, despite the protests of a few members, the incorporation by reference of the privileges enjoyed by the House of Commons in the U.K. was retained by our Constituent Assembly and, secondly, despite this ostensibly being a temporary measure, no subsequent Parliament has chosen to end the colonial continuities contained in Article 105(3), delineating privilege rules for an Independent India, despite almost 68 years having passed since the Constitution was adopted. Both the Constituent Assembly and Parliament have, therefore, deliberately eschewed transformation in this particular case.

Gateways to Transformation

Let us now look at Justice Chandrachud’s exposition on our transformative Constitution in the Kalpana Mehta judgment. He states: –

71. In finding an answer to the questions in reference, this Court must of necessity travel from a literal and perhaps superficial approach, to an understanding of the essence of what the Constitution seeks to achieve. At one level, our Constitution has overseen the transfer of political power from a colonial regime to a regime under law of a democratic republic. Legitimizing the transfer of political power is one, but only one facet of the Constitution. To focus upon it alone is to miss a significant element of the constitutional vision. That vision is of about achieving a social transformation. This transformation which the Constitution seeks to achieve is by placing the individual at the forefront of its endeavours. Crucial to that transformation is the need to reverse the philosophy of the colonial regime, which was founded on the subordination of the individual to the state. Liberty, freedom, dignity and autonomy have meaning because it is to the individual to whom the Constitution holds out an assurance of protecting fundamental human rights. The Constitution is about empowerment. The democratic transformation to which it aspires places the individual at the core of the concerns of governance. For a colonial regime, individuals were subordinate to the law. Individuals were subject to the authority of the state and their well-being was governed by the acceptance of a destiny wedded to its power. Those assumptions which lay at the foundation of colonial rule have undergone a fundamental transformation for a nation of individuals governed by the Constitution. The Constitution recognises their rights and entitlements. Empowerment of individuals through the enforcement of their rights is the essence of the constitutional purpose. Hence, in understanding the issues which have arisen before the Court in the present reference, it is well to remind ourselves that since the Constitution is about transformation and its vision is about empowerment, our reading of precepts drawn from a colonial past, including parliamentary privilege, must be subjected to a nuance that facilitates the assertion of rights and access to justice. We no longer live in a political culture based on the subordination of individuals to the authority of the State. Our interpretation of the Constitution must reflect a keen sense of awareness of the basic change which the Constitution has made to the polity and to its governance.

73. Once we place the fulfilment of individual rights and human freedoms at the forefront of constitutional discourse, the resolution of the present case presents no difficulty. Individuals access courts to remedy injustice. As institutions which are committed to the performance of a duty to facilitate the realisation of human freedom, High Courts as well as this Court are under a bounden obligation to seek and pursue all information on the causes of injustice. Where the work which has been performed by a coordinate constitutional institution – in this case a Parliamentary Committee, throws light on the nature of the injustice or its causes and effects, constitutional theory which has to aid justice cannot lead us to hold that the court must act oblivious to the content of the report. [Emphasis supplied]

I fear that this exposition, enlightening as it may be while interpreting other portions of the Constitution, lacks precision when it comes to parliamentary privileges. To be fair, he does not ascribe a transformational purpose to Article 105. What he does, however, is employ a line of reasoning which would potentially render meaningless the text of Article 105. If we parse his reasoning, and break it down, it would go something like this:

  • A literal interpretation of the Constitution in this case would be superficial. We must look at the larger transformation purpose of the Constitutional, which empowers individuals.
  • One of the ways in which the Constitution empowers individuals is to given then the right to remedy injustice by approaching Courts. [Notice that he does not place any particular fundamental right in conflict with Article 105(3) or the privilege rules of the U.K.]
  • When the work of inquiring into the causes of such injustice has been carried out by a coordinate institution, there is no reason why a Court should not rely on the product of such inquiry.

As appealing as this may appear, there are huge problems with this line of reasoning. First, a larger transformational purpose cannot be used to distort the explicit language of Article 105, which clearly establishes a colonial continuity by referring to the privilege rules of the British House of Commons. The statement that “our reading of precepts drawn from a colonial past, including parliamentary privilege, must be subjected to a nuance that facilitates the assertion of rights and access to justice” is in conflict with Article 105(3) itself, which explicitly draws from our colonial past and incorporates by reference the rules of privilege prevalent in Britain prior to the adoption of the Constitution. Second, in this particular case, it is not even clear as to how Justice Chandrachud would read Article 105 differently in light of the Constitution’s transformative purpose. My only guess is that he is driving towards a principle where we ignore certain privilege rules in the U.K. if they conflict with this larger, amorphous idea of a transformative Constitution. Third, the fact that individuals approach Courts to remedy injustice does not really assist us in determining the extent and limits of privilege. To remedy such injustice, a constitutional Court cannot expand its powers and trample upon the prerogatives of Parliament. Putting it another way, a constitutional form of government also protects the individuals from the legislature, executive or judiciary assuming powers beyond those granted by the Constitution. The horizontal separation of powers between judiciary and legislature cannot be disturbed on the reasoning that the individual approaches one forum directly for redress. Finally, the purpose of inquiry by a Parliamentary Standing Committee is to advise Parliament, which then deliberates on ameliorating injustice through legislation. Courts have independent fact-finding powers – especially our Supreme Court which routinely forms SITs and other such inquisitorial committees. The fact that a PSC is inquiring into the same injustice as a constitutional Court does not, in itself, justify the conclusion that “there is no reason why a Court should not rely on the product of such inquiry” because, if there is a conflict with the rules of privilege, that provides an absolute reason to preclude reliance.

I believe that Justice Chandrachud’s idea of transformative Constitution is a powerful one. It will, however, come to be identified as shorthand for judicial overreach if it is not deployed in a consistent and intellectually rigorous manner. Certain provisions in our Constitution, such as Article 17, are pregnant with transformative purpose. Others, especially those derived from the Government of India Act, 1935, establish colonial continuities. There is a third category, like Article 105(3) that provides a gateway to transformation, by placing a responsibility upon Parliament to lay down new rules for an independent India (in this case, a charter of privileges derived from post-Independent experimentation), preserving colonial continuities as a temporary measure until Parliament rises to the occasion. Our courts should, perhaps, acknowledge the patchwork nature of our Constitution in interpreting it, to preserve its truest meaning.

Notes from a Foreign Field: The EU Withdrawal Act 2018, Henry VIII Powers & The threat to Representative Democracy in England (Guest Post)

(This is a guest post by Preetika Mathur.)

Whilst the judgment of the Supreme Court in NCT Delhi v Union of India is undoubtedly a step forwards for representative parliamentary democracy and the separation of powers in India, England is facing grave threats to both. It seems that the internationally celebrated judgment of the UK Supreme Court in R (Miller) v Secretary of State for Exiting the European Union will not be enough to protect the UK Parliament’s status as the primary law making body vis a vis the executive Government. The EU Withdrawal Act 2018 (the primary piece of legislation designed to implement Brexit) effects a significant transfer of legislative powers from the British Parliament to the executive in a manner that disturbs the established constitutional relationship between the legislature and executive. This is through the use of Henry VIII powers. The Act relies heavily on Henry VIII powers to preserve legal continuity and legal certainty after Brexit.

The Issue:

Article 50 of the Lisbon Treaty governs withdrawal from the European Union. Article 50 provides that the EU Treaties which are the source of all EU laws and institutions shall cease to apply to the exiting State two years after it notifies the European Council of its intention to leave the EU. On the expiry of the two year period, EU laws simply cease to apply to the UK and the UK is no longer subject to the jurisdiction of the European Court of Justice. Article 50 was triggered on 29th March 2019, after Parliamentary approval. This means that the UK has until 29th March 2019 to agree the terms of its departure from the EU. On 29th March 2019, all existing EU laws will simply cease to apply to the UK and it will also no longer be subject to the jurisdiction of the European Court of Justice.

EU law radiates into almost every UK legislative and governmental sphere. To further complicate matters, the extent of its influence also varies from sphere to sphere. For example, in certain areas such as agriculture, fisheries, external trade and environmental regulation it is the dominant or determinative body of law. In other areas such as crime, social security and health it has a marginal impact. In addition, there are a variety of legal mechanisms which are deployed to make EU law have national effect – from Regulations which are immediately enforceable in domestic law to Directives which require national legislation to implement as well as soft law measures.

As a result of these factors, the relationship between EU law and national law is so complicated, interwoven and entangled that in almost every instance it is impossible to determine end of the national and the start of the European. It follows that the consequences of EU law simply ceasing to apply to the UK are likely to lead to a level of chaos and uncertaintanty that poses a serious threat to the Rule of Law. To deal with this problem, the Government has proposed that EU law that is in force before “exit day” should simply continue to remain in force after “exit day”. Indeed, it is difficult to think of any more obvious solution to the lacuna created when the two year period expires. However, the solution of retaining EU law as it existed before “exit day” is far from simple. This is because much of the retained legislation will be unworkable or simply nonsensical after the UK leaves the EU. For example if the law makes reference to EU procedures, EU guidelines, EU decision makers or EU institutions by which the UK is no longer bound and to which the UK no longer has access after “exit day”.

The Government’s Solution:

To deal with the problem of making retained EU law workable, the Government has proposed the widespread use of Henry VIII powers.

Henry VIII powers are powers of delegated legislation. These are conferred on the executive government through primary legislation. Henry VIII powers empower the executive government to amend or repeal existing primary legislation. Delegated legislation is not scrutinised by Parliament in the same way as primary legislation. The Government’s justification for reliance on Henry VIII powers is practical necessity. They take the position that given the tight timetables for departure from the EU and thousands of instances of potential unworkability that are likely to arise in retained EU law, it will simply be infeasible for Parliament to deal with every one itself.

Nevertheless, in spite of the logic of these practical arguments it is clear that the Act elevates powers intended to be exceptional into the norm. It is not the case that the Act merely allows formalities and technical matters to be resolved through the use of Henry VIII powers. Instead, the scope of the powers conferred is such as to enable sweeping substantive changes to policy and to the constitution without proper democratic scrutiny. This is clear from Clauses 8, 9 and 23 in the Act and the lack of corresponding safeguards.

Problems:

Once triggered clause 8 provides Ministers with the same legislative power as Parliament. Clause 8 (5) empowers Ministers to ‘make any provision that could be made by an Act of Parliament’. Since the reach of the powers is so broad, the circumstances in which such powers may be triggered ought to be strictly curtailed but this is not the case. Clause 8 provides for an exceptionally wide set of circumstances in which executive power to amend or repeal primary legislation may be triggered.

Clause 8 sets the following threshold for the triggering of Henry VIII powers:

“A Minister may by regulations make such provisions as the Minister considers appropriate to prevent, remedy or mitigate – (a) any failure of retained EU law to operate effectively, or (b) any other deficiency in retained EU law”.

Clause 8 makes the decision of when to exercise Henry VIII powers the subjective decision of the Minister. The level of subjective satisfaction required before the Minister can decide to use these powers is low. This is because a Minister is only required to consider it “appropriate” to use Henry VIII powers as opposed to “necessary”. The House of Lords Constitution Committee had previously recommended setting the threshold at “necessary” as opposed to “appropriate” in order to establish stricter internal constraints on the decision making of the executive. By setting the trigger at “appropriate” as opposed to “necessary”, resort to Henry VIII powers is not made a matter of last resort and there is nothing indicating that these powers should be used with extreme reserve or indeed even cautiously. This also enables the executive to decide to use these powers based on subjective policy preferences alone.

The drafting of Clause 8 to favour “appropriate” as opposed to “necessary” also has important consequences when it comes to judicial review of the exercise of a Henry VIII power by a Minister. The exercise of Henry VIII powers is judicially reviewable on the basis that the exercise of the power is ultra vires the parent act and outside of the scope of the power that was conferred by the parent act. Therefore, setting the threshold at “necessary” as opposed to “appropriate” would also have given the judiciary greater opportunity for stricter scrutiny of these powers through judicial review.

The executive discretion with respect to when Henry VIII powers may be used is also widened by the definition of ‘deficiency in EU law’ for the purposes of interpreting clause 8. Clause 8 (2) provides that the existence of a deficiency in EU law is also a matter for the subjective determination of the relevant Minister as opposed to being an objective standard.

Further Clause 8 (2) contains a list of situations that amount to a deficiency in EU law that are drafted so broadly that virtually any situation could be said to fall within this list. The first of the specified situations, Clause 8 (2) (a) illustrates this breadth. Clause 8 (2) (a) provides that:

Deficiencies in retained EU law are where the Minister considers that retained EU law – contains anything which has no practical application in relation to the United Kingdom or any part of it or is otherwise redundant or substantially redundant…”.

It follows from this that if a minister considers it appropriate to amend or repeal primary legislation on the basis that in their opinion the legislation is no longer of practical application they can do so. There is no further definition of “practical application” and this easily lets in the subjective policy preferences of the individual minister. For example, this would enable a minister who considers that work place safety or anti discrimination regulations no longer have practical application on the basis of their political ideology to amend or repeal such laws on the basis that they consider it appropriate to do so.

Further, the situations specified in Clause 8 (2) are not exhaustive because of Clause 8 (3). Clause 8 (3) further widens the net by providing that anything of a similar kind to that contained in clause 8 (2) but not actually listed in clause 8 (2) would also count as “a deficiency in retained EU law”. “Of a similar kind” is also not further defined and given the wide range of disparate situations included in Clause 8 (2) – the combined effects of Clause 8 (2) and Clause 8 (3) is to ensure that the amending or repealing of primary legislation is justifiable in almost every situation on the basis of ‘a deficiency in retained EU law’.

Clause 8 includes some restrictions on the delegated powers, such as the stipulations in Clause 8 (7) that the Henry VIII powers cannot be used to impose or increase taxation or fees; make retrospective provisions; create certain types of criminal offence; establish a public authority; amend, repeal or revoke the Human Rights Act 1998 or subordinate legislation made under it; or amend or repeal the Scotland Act 1998, the Government of Wales Act 2006, the Northern Ireland Act 1998.

Nevertheless, these restrictions do not protect the wide range of rights contained in domestic law which originate from EU law as opposed to from The European Convention of Human Rights through The Human Rights Act. For example, the majority of labour, anti discrimination, environmental, health and safety, social security and data privacy protections arise from EU law. This creates the potential for the removal of hard-won EU fundamental rights protections by the executive through the backdoor.

In the Third Report of the Delegated Powers and Regulatory Reform Committee of the House of Lords from its 2017 – 2019 session, the Committee has given numerous examples of instances where Henry VIII powers could be used to undermine EU fundamental rights protections through the backdoor. The Committee gives the example of the EU Data Protection Regulation which will become retained EU law. Referring to Clause 7 of the Bill, now Clause 8 of the final Act, it states:

Clause 7 allows Ministers to amend it if they think it “appropriate” to remedy any failure of the law to operate effectively arising from the UK’s withdrawal from the EU. Under the Regulation, individuals have rights of access to personal data subject to exceptions such as national security, defence and public security. Ministers might take the view that, once we no longer have to recognise the supremacy of EU law when we have left the EU, the exceptions to data access rights do not operate effectively as regards EU citizens resident in this country and should be widened under clause 7 to prevent them, say, from having a right of access to immigration information held about them by the Home Office”.

Clause 9 of the Act is also similarly broad both with respect to the circumstances in which the powers to amend, modify or repeal primary legislation may be triggered and the scope of the powers once triggered. Clause 9 allows the executive to amend, repeal or modify primary legislation if the Minister considers it to be appropriate to implement the withdrawal agreement. Further, the Act also confers a range of other Henry VIII powers on ministers i.e. through Clause 23 which empowers Ministers to use Henry VIII powers to make “such provisions as the minister considers appropriate in consequence of the Act”. Clause 9 also contains similar restrictions to Clause 8 on the circumstances when the Henry VIII powers may not be exercised – and are subject to the same fundamental rights concerns.

Lack of Safeguards:

Given the sweeping nature of the transfer of legislative powers to the executive it is necessary that the Act should contain important safeguards to mitigate for the breadth of the powers that are conferred. Sadly, this is not the case either.

The Act includes sunset clauses that provide a time limit on the use of the Henry VIII powers. Clause 8 (8) sets a two year time limit after “exit day” on the Henry VIII powers to deal with deficiencies in retained EU law. Clause 9 (4) also provides that Henry VIII powers cannot be used to implement the withdrawal agreement after exit day. Nevertheless, the time period in which the powers may be exercised is still sufficient for widespread use of the powers that are conferred. The government has indicated that it envisages reliance on these powers thousands of times in the run up to and immediately following “exit day”.

Leading NGOs in the UK such as LIBERTY had previously proposed that the Act should contain a “non-retrogression clause” that would state that Henry VIII powers could not be used to worsen human rights protections. This was not included in the final Act. Similarly, Tarunabh Khaitan had previously proposed that the Act should contain a clause expressly stating that amendments to the constitutional scheme could not be carried out through the use of Henry VIII powers. This was also not included in the final Act.

The need for a “non retrogression” or a “no constitutional amendment” clause is all the more pressing in the context of English Constitutional law because of the paucity of implied limitations on the use of such powers. On the contrary, given the supremacy of Parliament in English constitutional law which entails that Parliament can make or unmake any law – the conferral on Ministers of the same power as Parliament can be said to expressly indicate the lack of limitations on these powers. Clause 8 (5) says that regulations made through use of Henry VIII powers may make any provision that may be made by an Act of Parliament.

Tarunabh Khaitan has previously suggested that the exercise of these powers may be subject to the implied limitation of the principle of legality. As Lord Pannick argued in his submissions before the UK Supreme Court in Miller, the common law principle of legality requires Parliament to expressly provide for any abrogation of rights considered fundamental at common law. However, for our purposes there are at least four problems with this argument. Firstly, it can be argued that EU law derived rights are no longer fundamental at common law after Parliament has expressly approved Brexit and after the repeal of The European Communities Act 1972. It was The European Communities Act 1972 that made EU fundamental rights part of domestic law. Secondly, it can in any case be argued that since Parliament has expressly conferred such broad Henry VIII powers on ministers through primary legislation that it envisages these powers could be used to amend or repeal rights protections. Thirdly, the use of the common law principle of legality as a sword remains contentious. There is insufficient precedent to suggest that the Courts would take such an approach when reviewing the exercise of Henry VIII powers. On the contrary, in the case of R (Public Law Project) v Sectrary of State for Justice, the Supreme Court explained that when it comes to review of Henry VIII powers it would consider the narrower question of whether the exercise of a Henry VII power exceeds the statutory purpose for that power that was set out in the parent act that confers the power. Fourthly, when it comes to guiding the actions of ministers who are using such powers – an explicit non retrogression clause or an explicit no constitutional amendment clause contained within the statute itself would have had greater action guiding force than the common law principle of legality. For all these reasons the principle of legality is of itself not sufficient to do the work of an explicit “non retrogression clause” or a “no constitutional amendments” clause.

The Government has also failed to propose any bespoke and adequate system of scrutiny over the powers conferred. It proposes mainly to rely on pre-existing processes, which include ‘Affirmative Resolution’ and ‘Negative Resolution’ processes. The former requires Parliamentary approval of Government draft changes; in the latter the onus is on Parliament to veto Government drafts. Nevertheless, even in the former, the proposals are not subject to the same kinds of debate and discussion as primary legislation. There is a risk of these procedures being merely rubber stamps.

Constitutional Impact:

It is clear that delegated legislation powers sit uncomfortably with principles of settled common law.

From as early as 1610, the English judiciary has sought to curtail the use of Henry VIII powers. In The Case of Proclamations, Sir Edward Coke CJ held that:

No man not even a king, should have such power to make, amend or repeal primary legislation without Parliament”.

In the 1920s Lord Chief Justice Hewart published a book titled ‘The New Despotism’, in which Henry VIII powers were described as arbitrary bureaucratic powers.

The Donoughmore Committee had expressed serious concerns about the increasing resort to Henry VIII powers in its 1932 report, The Report of the Committee on Ministers’ Powers. The Committee stated that in spite of the quantatively insignificant number of times these were relied upon over the period studied by the Committee these powers were a cause for concern. The frequency of reliance on Henry VIII powers envisaged by The EU Withdrawal Act is clearly far greater than anything that could be considered legitimate by The Donoughmore Committee report.

In McKiernon v Secretary of State for Social Security, Lord Donaldson emphasised that Henry VIII powers should be a highly restricted exceptional measure and not the norm. He stated:

“Whether subject to the negative or affirmative resolution procedure, [subordinate legislation] is subject to much briefer, if any, examination by Parliament and cannot be amended. The duty of the courts being to give effect to the will of Parliament, it is, in my judgment, legitimate to take account of the fact that a delegation to the Executive of power to modify primary legislation must be an exceptional course and that, if there is any doubt about the scope of the power conferred upon the Executive or upon whether it has been exercised, it should be resolved by a restrictive approach.’

The House of Lords Constitution Committee in its 6th report of Session 2010 – 11 on ‘Public Bodies Bill [HL]’, has expressed strong criticism on widespread use of Henry VIII powers. At paragraph 4 it has stated that Henry VIII powers “remain a constitutional oddity” and that “they are pushing at the boundaries of constitutional principle that only Parliament may amend or repeal primary legislation”. At paragraph 6, the Committee goes on to say that: “The use of Henry VIII powers whilst accepted in certain limited circumstances remains a departure from constitutional principle. Departures from constitutional principle should be contemplated only where a full and clear explanation and justification is provided’. ‘a constitutional oddity’ and ‘pushing at the boundaries of the Constitutional principle that only Parliament may amend or repeal primary legislation’.

The practical benefits of the delegated legislation powers conferred come at immense cost to the constitutional settlement. Representative parliamentary democracy became entrenched in the English Constitution through The 1688 Bill of Rights and has been sacrosanct ever since. By making exceptional powers the norm the soon to be EU (Withdrawal) Act undermines representative parliamentary democracy itself. The erosion of Parliamentary power is all the more problematic given that it is driven by a Government which failed to win a majority in the Commons in support of its legislative agenda for Brexit. Even more so because of the undemocratic nature of the referendum which led to Brexit in the first place. The referendum failed to take into account that the British constitutional settlement is founded on representative Parliamentary democracy. The EU Withdawal Act 2018 has same fundamental misassumptions at its core.

The Sabrimala Hearings and the Meaning of “Untouchability” under Article 17 of the Constitution

Yesterday, the Constitution Bench of the Supreme Court commenced hearings in the Sabrimala case. Recall that the question before the Court is whether the Sabrimala temple is legally entitled to deny menstruating-age women access to the shrine. On this blog, we have previously covered the constitutional issues that the Court should consider – and decide – in this case. There are many nuanced and complex questions at the interface of Articles 25 and 26 which come up for decision. Additionally, however, in oral arguments today, both the Intervener and the Amicus Curae invoked Article 17 (the prohibition upon untouchability).

Reports from the Courtroom indicate that the Bench was not very sympathetic to the argument. This is entirely understandable. “Untouchability” is a term of art, and refers to the specific caste-based practice (and the entire social system that it has birthed), which has existed in India for a very long time. Furthermore, Article 17 puts the word “untouchability” within quotation marks, which suggests that its meaning is limited to its specific, historical sense. Consequently, while barring of menstruating age women from a temple is no doubt a practice of segregation, exclusion, and enforcement of hierarchies like untouchability, it is not “untouchability.”

That is an intuitively plausible view, but as with many other intuitively plausible views about our Constitution, the moment we go deeper into the matter, all is not what it seems. Like the use of the word “shops” in Article 15(2), there exist good historical arguments in favour of reading the word “untouchability” in a broad sense, going beyond the specific caste-based practice, and includes all practices of social ostracism and exclusion that have their bases in ritual ideas of purity/pollution and hierarchy/subordination.

I made a detailed argument for this “broad reading” in a paper published a couple of years ago, and here I extract the most relevant paragraphs. The context is Chief Justice Sinha’s dissenting judgment in the Dawoodi Bohra case, where he applied Article 17 to the practice of religious excommunication among the Dawoodi Bohras – which, again, was not “untouchability” in its strict, historical sense:

On what basis did Sinha CJ select the more expansive, abstract definition of untouchability? It is important to note that this choice was indicated not only by the text of the clause, which abolishes the practice of untouchability ‘in any form’, but also by the history of its framing. While the communities constituting ‘Untouchables’ had been specifically enumerated in the Government of India Act of 1935, the predecessor of the Indian Constitution, the Constitution itself, as Dr Ambedkar pointed out, had elected not to operate at that level of specificity. Indeed, an amendment moved by Naziruddin Ahmed to restrict the scope of the Article to untouchability only on account of ‘religion or caste’ was specifically rejected by Dr Ambedkar, and negatived by the Assembly when it went to vote.Furthermore, even though KM Munshi pointed to the fact that the word untouchability was contained within quotation marks, making it clear that the intention was to ‘deal with it in the sense in which it is normally understood’,many members called for providing a clearer definition of the term on the grounds of vagueness, and in fact, KT Shah specifically ‘warned’ that it might even be extended to cover women, who at various times had been treated in the manner of untouchables by the society.

Specifically, while some of the members of the Assembly undoubtedly understood untouchability in its narrow, concrete sense, they did not do so to the exclusion of its broader sense. Meanwhile, other members expressly linked the provision to Article 15(2), and repeatedly argued that theirunderstanding of Article 17 included the right of everyone to enjoy ‘equal social conditions’, ‘equal rights’, ‘social equality’, the abolition of ‘social inequity … social stigma and … social disabilities’,  and as a remedial clause for ‘those who have been left behind in social and economic matters’.It therefore seems clear that between both the supporters and the opponents of Article 17 as it stood, there was agreement on the breadth of its meaning.

Consequently, Sinha CJ’s adoption of ‘untouchability’ in its broad sense, in the sense of social ostracism, had its foundation in both the text of the Constitution and the debates surrounding it. What, however, did that choice entail? To answer this question, let us look again at the first two strands of his argument. The purpose of the Act, he held, was to guarantee individual freedom, remove interferences with liberty, conscience and faith, and guarantee human dignity and freedom of choice. But this is the crucial question: freedom from what? Sinha CJ was not talking about state coercion and interference with freedom, in its classical liberal sense, in the sense that it is guaranteed by most Constitutions. Rather, he was talking about the coercive freedom-interfering acts of communities (such as social ostracism) against their members. In other words, as discussed above, Sinha CJ believed that Articles 25 and 26 not only guaranteed group-differentiated rights to religious denominations in the interests of preserving their integrity, but also provided for the rights of individuals against their groups, in the interests of individual freedom, liberty of conscience, and human dignity. It was in this context that the balance between group integrity and social reform, set out textually within the scheme of 25 and 26, was to be understood.

While I do not have the space here to develop the argument in full (interested readers can consult the paper), the basic point is this: our Constitution (as the Court has observed in some of its recent decisions) is a transformative Constitution. It is not only a charter for political independence from colonial rule, but also a document that aspires to overcome the social hierarchies that have riven Indian society. This transformative ambition of the Constitution is exhibited, in particular, through its horizontal rights provisions: Articles 15(2), 17, and 23, which directly target exploitative practices at the level of individuals and communities, and not the State. To give effect to the Constitution’s transformative purpose, therefore, a Court should read these clauses broadly. One example of this is IMA v Union of India, where the Court used the Constituent Assembly Debates to interpret the word “shops” in its broader sense of economic transactions and provision of services generally, and not in the limited sense of the physical shop-floor (discussed here).

A broad reading of Article 17 means that not only the caste-based practice of untouchability falls within the ambit of the constitutional prohibition, but practices that bear a family resemblance to “untouchability” are captured as well. This requires the Court to ask whether a particular practice, like untouchability, is a practice of social subordination, exclusion, and segregation, based upon an idea that certain personal characteristics (whether caste, or gender, or menstruation) can justify relegating individuals to an inferior position in society. Under this framework, menstruation-based discrimination is a prime candidate to qualify under Article 17 (and it is no surprise that KT Shah was specifically worried about Article 17 being made to apply to women). It does not require detailed argument to show that, historically, and across the board, menstruation has been equated with impurity, and the idea of impurity, assigned to women qua women, is then used to justify their exclusion from key social activities (including, as in this case, the right of religious access).

This does not, of course, settle the issue in Sabrimala. The Court may, on an examination of the facts, find that the exclusion in this case is not motivated by the reasons described above. In such a situation, Article 17 will not apply (although Articles 14, 15, and 25 might). However, that is a question of application; on the constitutional question of the interpretation of Article 17, the Constitution Bench has a rare chance to lay the foundations for an Article 17 jurisprudence that – for the first time in our constitutional history – will be truly faithful to the Constitution’s transformative purpose.

Guest Post: Against Natural Rights—Why the Supreme Court should NOT declare the right to intimacy as a natural right

(This is the third and final guest post by Professor Tarunabh Khaitan on the 377 Hearings, which concluded today.)

As the Supreme Court prepares to defang the provision of the Indian Penal Code that criminalises ‘carnal intercourse against the order of nature’, it might be tempted to rely on its recently-revived ‘natural rights’ jurisprudence in order to do so. It is not hard to imagine that some of the judges might be tempted to hold that the ‘right to intimacy’ is an inherent and irrevocable ‘natural right’ (or, simply, declare it to be a facet of the right to privacy, which in turn has been held to be a natural right—I do not doubt that intimacy is a facet of privacy, or that privacy is indeed a fundamental right—my only complaint is against their characterisation as natural rights).

The rhetorical implications of such a move could be significant—the Court would be saying that the ‘natural order’, far from condemning homosexuals, requires their protection. Unlike the two previous posts on these hearings (available here and here), which urged the Court to be expansive in its holdings, I will argue in this post that the Supreme Court should not rely upon the language of natural rights in its judgment in this case. In fact, it would do well to retreat from the expansive embrace of natural rights in Puttaswamy to the extent it is possible for a smaller bench to do so.

Let us begin with Golaknath, that famous precursor to Kesavananda Bharati, where the Supreme Court held by a majority in 1967 that fundamental rights in the Constitution were unamendable:

“fundamental rights … are embodied in Part III of the Constitution and they may be classified thus : (i) right to equality, (ii) right to freedom, (iii) right against exploitation, (iv) right to freedom of religion, (v) cultural and educational rights, (vi) right to property, and (vii) right to constitutional remedies. … ‘Fundamental rights’ are the modern name for what have been traditionally known as ‘natural rights’. … Our Constitution, in addition to the well-known fundamental rights, also included the rights of the minorities, untouchables and other backward communities, in such rights.” [Paragraph 22, Justice Subbarao]

Even as Justice Subbarao equated fundamental rights with natural rights, he noted that although the right to property counted as a natural right, the rights of disadvantaged minorities against discrimination did not (although the more general right to equality did). This is the nub of the problem with the natural rights discourse—it has traditionally had a libertarian orientation which robustly protects the right to property (including, arguably, intellectual property) and the right to life of a foetus, but becomes faint-hearted when it comes to the enforcement of socially transformative rights like the right against discrimination or the right to employment. And it has had an intellectual history in recent Western thought that has been hostile to LGBTQ rights.

In Kesavananda Bharati, the Court spoke in multiple voices on all sorts of questions, including on the place of natural rights in the Constitution. The rightly-overruled judgment of the Supreme Court in ADM, Jabalpur conducts a superficial exegesis of what the majority actually held in Kesavananda with regard to natural rights, claiming that 7 judges on the Kesavananda bench rejected the natural rights thesis [at para 548]. This reading of Kesavananda is confirmed in another Emergency-era case called Bhanudas Gawde [para 41-2]. I must confess to not having checked myself whether this reading of the meandering and complicated judgment in Kesavananda is correct, ie whether a majority in that case did indeed hold that natural rights jurisprudence has no place in Indian law.

At least according to Justice Khanna, however, whose judgment came to be seen as the opinion of the Court in Kesavananda:

“It is up to the state to incorporate natural rights, or such of them as are deemed essential, and subject to such limitations as are considered appropriate, in the Constitution or the laws made by it. But independently of the Constitution and the laws of the state, natural rights can have no legal sanction and cannot be enforced.” [para 1509]

This must be seen as the correct position on natural rights in Kesavananda. Any other reading of the case would suggest that there are two independent, if overlapping, limits on the power of amendment—the basic structure of the constitution and some pre-constitutional, irrevocable, natural rights. Such a reading would entail that Kesavananda merely added a new ground for reviewing amendments to Golaknath. We know, however, that the Court in Kesavananda expressly overruled Golaknath. Thus, the only reading of Kesavananda’s position on natural rights that is compatible with the basic structure doctrine as the sole ground for limiting the amending power is the one articulated in Justice Khanna’s judgment.

Recent cases, however, have resurrected the natural rights discourse. In Basantibai Khetan, the Bombay High Court held in 1983 that the right to property was a natural right [para 19]. In NALSA, a 2-judge bench of the Supreme Court held that “Article 19(1) guarantees those great basic rights which are recognized and guaranteed as the natural rights inherent in the status of the citizen of a free country.” [para 62]. Perhaps most crucially, in Puttaswamy, several judges on the 9-judge bench of the Supreme Court—some selectively citing passages from Kesavananda Bharati—declared the right to privacy to be an inherent, inalienable natural right [Chandrachud J, para 40-46, 119; Justice Bobde, para 12, 16; Nariman, para 92]. Justice Chelameswar was the only judge on the Puttaswamy bench who did not join the natural rights bandwagon.

Whatever individual judges in Kesavananda might have said, if my argument above that Justice Khanna’s position on natural rights is the most coherent reading of the case on this point is correct, Indian courts are permitted to note that an express or implied fundamental right embodies or recognises some natural right (as the courts in Khetan and NALSA do), but are not permitted to directly enforce or recognise any natural rights without the mediation of the constitutional framework. To the extent that Puttaswamy does this, it would be bad in law (caveat: I believe that Puttaswamy rightly held that the right to privacy is an implied right that flows from other fundamental rights, my only challenge is to any additional justification for the ruling supplied by relying on privacy as a natural right).

Apart from being potentially in breach of stare decisis, the resurrection of the natural rights discourse in Puttaswamy is unfortunate and unnecessary. It is unnecessary because everything the Court needs doctrinally and normatively is already available in the constitutional provisions and values, its historical ethos, and its basic structure. These constitutional resources are sufficient to hold that habeas corpus cannot be suspended, that transgender persons have a fundamental right to equality, non-discrimination and liberty, and that the right to privacy is a fundamental, irrevocable, constitutional right. Seeking additional support from a dubious notion of natural rights does no good, and has the potential to do harm.

The resurgence of the natural rights jurisprudence—rooted in a conservative Christian ethos—is unfortunate because of its traditionally regressive role in promoting libertarian values, including its hostility to the right to abortion, homosexuality and material redistribution. It will be particularly galling for the Court to use a philosophical concept that whose main intellectual proponent, John Finnis, advocated for the continued criminalization of homosexual conduct.

Apart from its conservative roots, the natural rights discourse is too amorphous to be entirely safe in the hands of the courts. True, the basic structure doctrine is also amorphous, but our constitutional text and history place limits on what a court can find as part of the basic structure of our Constitution. The natural rights discourse places no such limit—what is to prevent a court from saying that my interest in a copyright or in hate speech is my natural right?

Lastly, LGBTQ activists have long challenged ideas of ‘naturalness’, a notion that has typically reflected values and mores of the powerful sections in a society. As noted queer theorist Judith Butler wrote in Gender Trouble, her “dogged effort to ‘denaturalize’ gender” emerged “from a strong desire … to uproot the pervasive assumptions about natural or presumptive heterosexuality that are informed by ordinary and academic discourses on sexuality.” It is hardly surprising that Butler sees denaturalization of gender and sexuality as a precondition for true liberation. The concept of a preordained natural order is, after all, status-quoist in its essence. Its naturalness is only evident to those who benefit from things as they are.

The petitioners have asked the Court to recognise their constitutional rights. The Court will do them a disfavour to insist that their rights are not just constitutional, but also somehow natural. The natural order of things has seemed unfair from the vantage point of those on its margins. Arguments invoking the natural order have a habit of getting in the way of things as they should be. Ours is a transformative rather than an acquiescent constitutional heritage. It is a tradition informed by voices from the margins of society, and not just its natural core. That is the tradition we need to invoke as we extend the ethos of inclusiveness to a long-excluded minority, rather than rely on an at-best elusive, at-worst reactionary, notion of natural rights.

(Dr Tarunabh Khaitan is an Associate Professor in Law at Oxford and Melbourne, and the General Editor of the Indian Law Review. The views expressed are his own, and not attributable to any of these institutions. I am grateful to Ira Chadha-Sridhar for her help with caselaw research.)

Guest Post: On the presumption of constitutionality for pre-constitutional laws

(As the 377 hearings continue into their second day, this is a second guest post by Professor Tarunabh Khaitan).

Given the colonial pedigree of s 377, especially its effort to impose a 19th century Victorian morality on the subcontinent, the status of colonial laws in our constitutional scheme is moot. As reported on Bar and Bench’s twitter feed, an interesting exchange took place between the Court hearing the challenge to s 377 and one of the lawyers: “Is there any judgment of this court that pre-independence laws will not have benefit of presumption of constitutionality?” asked CJI Dipak Misra. “No no”, was Senior Advocate Datar’s reply. This negative reply notwithstanding, Justice Chandrachud reportedly observed that “Courts might not have same deference for pre-constitutional laws which they have for post-constitutional laws, due to absence of Parliamentary will.” In this post, I will show that Senior Advocate Datar might have overlooked some important precedents while replying to the query from the bench.

The most important case with regard to the presumption of constitutionality of pre-constitutional laws is the Supreme Court’s landmark judgment in Anwar Ali Sarkar, decided by a bench of 7 judges in 1952. In that case, Justice Fazal Ali said that “The framers of the [impugned] Act have merely copied the provisions of the Ordinance of 1949 which was promulgated when there was no provision similar to Article 14 of the present Constitution. … Article 14 … is bound to lead to some inconvenient results and seriously affect some pre-constitutional laws.” [22, emphasis added] He went on to say that “Article 14 could not have been before the minds of those who framed it because that Article was not then in existence.” [25]

In Sarkar, even the dissenting judgment of CJI Sastri acknowledged that the pre-constitutional character of a law mattered, when he distinguished the case at hand from Romesh Thapar thus:

“In Romesh Thapar case, the impugned enactment, having been passed before the commencement of the Constitution, did contemplate the use to which it was put, but such use was outside the permissible constitutional restrictions on the freedom of speech, that is to say, the Act was not condemned on the ground of the possibility of its being abused but on the ground that even the contemplated and authorised use was outside the limits of constitutionally permissible restrictions.” [16, italicised emphasis in the original, underlined emphasis added]

The partially concurring opinion of Justice Bose in the same case explained the importance of the history of pre-constitutional context as well as the ethos that framed the values of the Constitution:

“What I have to determine is whether the differentiation made offends what I may call the social conscience of a sovereign democratic republic. That is not a question that can be answered in the abstract, but … in the background of our history” [95]. He added, “I find it impossible to read these portions of the Constitution without regard to the background out of which they arose. I cannot blot out their history and omit from consideration the brooding spirit of the times.” [90].

Read together, these opinions in Anwar Ali Sarkar set a clear, if usually ignored, precedent of a 7-judge bench that pre-constitutional laws do not deserve the presumption of constitutionality. The idea was revisited even more strongly in the Supreme Court’s opinion in Anuj Garg (2007):

When the original Act was enacted, the concept of equality between two sexes was unknown. The makers of the Constitution intended to apply equality amongst men and women in all spheres of life. In framing Articles 14 and 15 of the Constitution, the constitutional goal in that behalf was sought to be achieved. Although the same would not mean that under no circumstance, classification, inter alia, on the ground of sex would be wholly impermissible but it is trite that when the validity of a legislation is tested on the anvil of equality clauses contained in Articles 14 and 15, the burden therefor would be on the State.” [20]

This opinion very clearly refuses to extend the presumption of constitutionality to the impugned statute. As I pointed out in this article discussing the case, “It is possible, to give it a narrow interpretation, that the case only establishes that the court shall not presume the constitutionality of pre-constitutional laws. A more radical reading will see the rule to be established in all cases where a law (whether pre- or post-constitutional) makes a classification on any article 15 ground.” (p. 201-2) So, on a narrow reading of Anuj Garg, the notion that pre-constitutional laws do not get the presumption of constitutionality was confirmed by a 2-judge bench.

In Naz Foundation (2009), the Delhi High Court expressly read Anuj Garg as an authority for the following proposition:

“At the outset, the Court observed that the Act in question is a pre- constitutional legislation and although it is saved in terms of Article 372 of the Constitution, challenge to its validity on the touchstone of Articles 14, 15 and 19 of the Constitution of India, is permissible in law. There is thus no presumption of constitutionality of a colonial legislation.” [105, emphasis added]

The Supreme Court, following the High Court’s progressive ruling animating constitutional interpretation with the value of swaraj, will do well to lay the foundations of a decisively anti-colonial jurisprudence by confirming that pre-constitutional laws are not owed the presumption of constitutionality.

(Dr Tarunabh Khaitan is an Associate Professor in Law at Oxford and Melbourne, and the General Editor of the Indian Law Review. The views expressed are his own, and not attributable to any of these institutions.)

Guest Post: Inclusive Pluralism or Majoritarian Nationalism: Article 15, Section 377 and Who We Really Are

(This is a guest post by Tarunabh Khaitan, who is an Associate Professor of Law at the Universities of Oxford and Melbourne.)

The guarantee of non-discrimination under Article 15 of the Constitution is not an essential weapon to fight the criminalisation of victimless consensual sexual acts between adults under section 377 of the Indian Penal Code. The ridiculousness of such criminalisation is so patent that even a deferential quest for reasonableness under Article 14 of the Constitution will find the criminal provision wanting. Nor is the provision likely to pass muster with the guarantee of personal liberty and privacy under Article 21. Indeed, there is even a view that no constitutional provision needs to be invoked—that s. 377 can be defanged through a mere statutory reinterpretation in light of changes social facts.

Judicial minimalism (and, the related notion of constitutional avoidance)—the idea that if a case can be decided on narrower grounds, courts should avoid bringing the big guns out—is usually wise counsel. The case before the Supreme Court, however, is unusual. This is an instance where the Court has a constitutional obligation to unrelentingly apply the full moral force of the antidiscrimination principle embedded in Article 15 against s 377, in addition to the arguments mentioned above. There are at least two reasons why judicial minimalism will be unwarranted in this case.

The first reason is institutional. The Court needs to atone for its own institutional sin in recriminalising homosexual conduct by overruling the constitutionally sound judgment of the Delhi High Court. This is an opportunity for the Court to apologise to the Constitution, for its abject failure to defend its values. The Court also owes an apology to millions of innocent Indians who it rebranded as criminals in 2013. It much acknowledge, loudly and clearly, the violence its judgment visited on so many lives. It needs to recognise that it acted as an organ of a colonial state when it criminalised people based simply on who the were, and mocked their quest for justice as a claim for ‘so-called rights’. The Court inflicted a material injury and an expressive wrong on the LGBTQ people of India. The correction must go beyond the material too, and include an expressive remedy. The Court must make sure that its apology is full-throated, and not muted. One way to do so is to un-condemn and celebrate the difference of those it hurt and insulted under the pluralistic ambit of Article 15.

The second reason for an expansive reasoning is provided by the current political context. In most cases, the primary judicial objective is to reach a just outcome under law. But some cases come to acquire an expressive significance far beyond the remedy the court orders. The litigation over s 377 has shaped our political discourse over the last two decades in ways that would have been unimaginable for activists who first challenged the provision at the start of the century. Within fifteen years, the country moved from not talking publicly about homosexuality to a general election where major political parties promised decriminalisation in their election manifestos. What the Court says in this judgment is going to matter as much as what it does through its order.

But the expressive salience of a case on discrimination against a politically disempowered minority, based purely on the prejudices of a majority, goes beyond the issue of LGBTQ rights. Indian constitutional democracy today is at a crossroads. Its constitutional commitment to an inclusive, composite, secular ethos has never been challenged more seriously than it is today. At a time when sectarianism and majoritarian nationalism are seeking to exclude all sorts of minorities from public life and equal citizenship, the Court has a duty to emphasise the inclusive and pluralist rather than majoritarian character of our democracy. Inclusiveness and pluralism lie at the heart of Article 15, which can be the surest vehicle for the Court to lend its institutional authority to the salience of these ideas in our constitutional identity.

A robust development of the Article 15 jurisprudence, along the path showed by the Delhi High Court in 2008, is more urgent than ever. The Court owes a promise to Rohith Vemula that the judiciary would rigorously examine exclusionary and discriminatory practices. It has a duty to all those who have been lynched, harassed or persecuted for being different that Article 15’s promise of defending their personal autonomy and dignity is not empty rhetoric. It is true that the Court alone cannot deal with rampant discrimination. But its strong endorsement of the antidiscrimination principle could provide a boost for political efforts to enact a comprehensive antidiscrimination law, at least in some states to begin with.

It is true that judicial minimalism and constitutional avoidance are not typical features of the jurisprudence of the Indian Supreme Court. The Court has often been jurisprudentially expansive, while being remedially minimalist. But, in politically sensitive cases, it has found judicial minimalism to be strategically useful (its judgment in the triple talaq case, eschewing all mention of Article 15, is a case in point). Such strategic minimalism can often be important for preserving a court’s legitimacy. In the 377 case, however, it is not just judicial legitimacy that is at stake, but the very nature of our constitutional identity.

In his excellent book on constitutional identity, Gary Jacobsohn identifies the phenomenon of disharmony in constitutional identity (p 87): “Sometimes [disharmony] exists in the form of contradictions and imbalances internal to the constitution itself, and sometimes in the lack of agreement evident in the sharp continuities that frame the constitution’s relationship to the surrounding society.” An inclusive pluralism has, largely, been the dominant narrative in India’s constitutional identity. But seeds of disharmony have always existed—internally, in the form of the cow slaughter directive of the Constitution, and externally in the deeply inegalitarian and sectarian social structure the Constitution has tried to transform. As Jacobsohn argues, constitutional disharmony carries within it the seeds of constitutional change.

Make no mistake: the dominance of inclusive pluralism as the defining feature of our constitutional identity itself is at stake. Majoritarian nationalism is waging a spirited battle, not just for continued political relevance but for the very soul of our polity. It doesn’t just seek to win the game, it is trying to change the rules of the game. Which side the Court comes down on, and how robustly, may not determine, but will surely affect the outcome of this battle over defining who We, the people of India, really are.

“Working a Democratic Constitution”: The Supreme Court’s judgment in NCT of Delhi v Union of India

Today, a Constitution Bench of the Supreme Court delivered its judgment in NCT of Delhi v Union of India. Previously on this blog, I had written about the political consequences of the Court’s delay in hearing this case, and Vasudev Devadasan wrote a three-part series on the main substantive issues (Part I; Part II; Part III). Readers will recall that the dispute turned upon the “special status” of the National Capital Territory of Delhi. Not a “full state” and neither just a Union Territory, Delhi has an entire article dedicated to it: 239AA, which, read with the GNCTD Act and the Allocation of Business Rules, sets up a complicated legal structure defining how governance is to be carried out in Delhi.

Put simply, this legal structure envisages two constitutional authorities – the elected Chief Minister of Delhi (at the head of the Council of Ministers) and the Lieutenant-Governor, the appointee of the central government. When Delhi began life in the colonial era as the Chief Commissioner’s Province, it was ruled by an Administrator who, in effect, ruled as an autocrat. The spread of representative government through British India passed Delhi by, and it was only after Independence that, through incremental amendments to the Constitution (culminating in Article 239AA), representative institutions came to Delhi. During this time, the position of the Administrator was transformed into the Lieutenant-Governor [“LG“], and he became a representative of the central government in Delhi. This, ultimately, is what led to the constitutional ambiguity: in Indian states, the equivalent of the LG – the Governor – was little more than a titular head, bound to act upon the “aid and advice” of the elected government, with only a narrowly circumscribed sphere of discretion. However, as Delhi moved from an autocracy to a representative government, its status as the national capital prompted the Parliament to refrain from granting it full statehood. It is this that led to the unique situation where you had both an elected government and an LG who retained something of the old powers. And it was the precise demarcation of powers that brought the case to the Supreme Court.

At the heart of the dispute lay two articles: Article 239AA(3)(a), and Article 239AA(4). These articles state:

(3)(a) Subject to the provisions of the Constitution, the [Delhi] Legislative Assembly shall have power to  make laws for the whole or any part of the National Capital Territory with respect to any of  the matters enumerated in the State of List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1,2, and 18 of the State List and Entries 44, 65 and 66 of that List in so far as they relate to the said Entries 1,2,and 18.

(4) There shall be a Council of Ministers consisting of not more than ten percent, of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise to his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion.

Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.

To put matters very simply, there were two broad issues that arose. The first was the meaning of the phrase “aid and advise.” It was settled law – and also written into the Constitution through amendment – that in the case of the central government and the state governments, the words “aid and advise” – which are used in reference to the President and the Governors – mean “aid and advice that is binding.” In other words, the President and the Governors must act in accordance with the “aid and advice” tendered to them by the Council of Ministers. However, Delhi’s status as not-quite-a-state, and the absence of any explicit recognition that the LG had to act upon the aid and advice, allowed the Union Government to argue – and the Delhi High Court to hold – that in this regard, the LG’s position was not equivalent to the President and the Governors, and that he was not bound by the aid and advice of Delhi’s elected Council of Ministers. Let us call this Phase One: The Demarcation of Executive Power.

The second issue was about the meaning of the phrase “on any matter.” If the constitutional position was that the executive power of Delhi lay with the elected council of ministers, then the next question arose whether in all cases, the LG was authorised to have a “difference of opinion”, and escalate the matter to the President. In other words, did the phrase “any matter” mean “every matter”? Let us call this Phase Two: The Scope of the LG’s Power to Refer a Difference of Opinion to the President.

Phase One

I do not propose to go into the detailed arguments advanced in the three separate opinions, which together clock in at 535 pages. Broadly, this was the line of argument that all five judges agreed upon.

  1. Representative democracy, exercised through Parliamentary institutions, characterised by principles of collective responsibility and accountability (“the Westminster system”), is at the heart of the Constitution.
  2. Parliamentary democracy under the Indian Constitution envisages an elected, lawmaking body (“legislature”), and a council of ministers (“executive). The scope of operation of the legislature is defined under the Seventh Schedule of the Constitution, which lists out the fields under which the central and the state legislatures can pass laws. The power of the executive is co-extensive with that of the legislature: the executive can act in the same fields in which it is open to the legislature to pass laws. The head of the executive (President/Governor) acts in accordance with the “aid and advice” of the council of ministers.
  3. Article 239AA, which explicitly creates an elected legislature for Delhi, clearly envisages that, at a broad level, Delhi is to be governed in accordance with the two principles set out above. To the extent that the text of Article 239AA is open to more than one interpretation, the interpretation that furthers the Constitution’s commitment to representative democracy must be preferred (see Chandrachud J.’s concurring opinion for a particularly clear articulation of this interpretive principle).
  4. Therefore, the Council of Ministers for Delhi has the executive power to take action in all the fields in which the Delhi legislative assembly can pass laws (as per Article 239AA(3), this includes the State list (barring land, police, and law and order) and the Concurrent List of the Seventh Schedule). In this context, the aid and advice of the CoM is binding upon the LG. Under the Allocation of Business Rules, the CoM must at all times keep the LG informed, but they do not need to seek his concurrence. The purpose of information is so that the LG can decide wither to exercise the power vested in him under the proviso to Article 239AA(4) (which is what we shall discuss next).

Consequently, the judgment of the Delhi High Court, that had held that the LG was the actual head of the executive in Delhi, was incorrect.

Phase Two

In Phase One – demarcation of executive power – the Court held that, subject to the express constitutional limitations, which took land, police, and law and order out of the remit of the Delhi assembly and government (and placed other procedural limitations such as overriding federal legislative power and Presidential assent), Delhi had the character of a state: its assembly had legislative power, and its council of ministers had co-extensive executive power. The role of the LG, to this extent, was that of a titular head: he had a right to be informed, but he was also bound by the decision of the CoM.

This, then, led to the second issue: the proviso to Article 239AA(4) gave the LG a unique power that state Governors do not possess: if the LG had a difference of opinion with the CoM, then – subject to some conciliation measures provided for in the GNCTD Act and the Allocation of Business Rules – he could escalate the matter to the President. However, all five judges were in agreement that – contrary to the submission of the Union of India – the words “any matter” could not mean “every matter.” As Chandrachud J. correctly observed, if such an interpretation was to be placed on the proviso, then the rest of the scheme of Article 239AA would  come crumbling down. All three judgments are replete with statements to the effect that, under the guise of referring a difference of opinion, the LG cannot bring governance to a standstill.

However, the question then followed logically: if “any” did not mean “every”, then what did it mean? The Government of Delhi suggested that the word “any” should be restricted to the three entries of List II that were excluded from Delhi’s legislative competence under the state list – land, police, and law and order. On every other issue, the LG would remain bound by the “aid and advice” of the CoM. However, the Court rejected this interpretation, on the basis that if Delhi’s power was altogether denuded in respect of these three subjects, the question of a “difference of opinion” never arose.

The Majority opinion, authored by the Chief Justice, did not enumerate a list of subjects upon which the LG could “differ” and escalate the matter to the President. Instead, the majority held that a reference could be made only in “exceptional” circumstances, but did not elaborate – even illustratively – on what the word “exceptional” meant. A similar issue plagued Justice Bhushan’s opinion. He observed that the LG could not interfere in “routine” matters. But what does “routine” mean? In fact, Justice Bhushan’s 123-page opinion – in which he substantively agreed with everything that the other four judges held – was undone by some very loose language in Conclusion VIII, where he noted that the LG’s power is “not to be exercised in a routine manner… [but] when it becomes necessary to safeguard the interest of the Union Territory.” “Safeguard the interest” is so broad, that it practically converts “any matter” to “every matter”, which is exactly what all five judges held was not the way to read the proviso.

It was left to Chandrachud J. – in his concurring opinion – to provide concrete shape to the “exceptional” circumstances that might trigger the proviso. The basis of Chandrachud J.’s reasoning was that there was a reason why Delhi did not have full statehood: it was the national capital, and therefore, by its very nature, the Union Government would have a stake in it. Article 239AA recognised the Union Government’s stake in the national capital in two distinct ways: first, it did so in the legislative sphere: by taking land, police, and law and order out of the ambit of Delhi’s legislative powers, and giving Parliament the option to exercise lawmaking power even in the state list; and secondly, it did so in the executive sphere: by giving the LG the power to refer a difference of opinion to the President. It therefore logically followed that the scope of this power would have to be defined on the same basis: the LG could only make a reference when the issue concerned national interests, and not the interests of the NCT. According to Chandrachud J.:

“…it would be appropriate to construe the proviso as a protector of national concerns in regard to governance of the NCT. The Lieutenant Governor is a watchdog to protect them. The Lieutenant Governor may, for instance, be justified in seeking recourse to the proviso where the executive act of the government of the NCT is likely to impede or prejudice the exercise of the executive power of the Union government. The Lieutenant Governor may similarly consider it necessary to invoke the proviso to ensure compliance with the provisions of the Constitution or a law enacted by Parliament. There may well be significant issues of policy which have a bearing on the position of the National Capital Territory as a national capital. Financial concerns of the Union government may be implicated in such a manner that it becomes necessary for the Lieutenant Governor to invoke the proviso where a difference of opinion remains unresolved.” (para 142)

Although Chandrachud J. declined to set out an “exhaustive”, subject-wise list under the proviso, the illustrative list provided in the paragraph above – within the broader rubric of “national concerns” – makes it clear how the proviso is to be understood. It is submitted that the judgment is best interpreted by taking Chandrachud J.’s concurring opinion as clarifying the meaning of the phrase “exceptional situations” in the Majority’s opinion. In other words, the proviso kicks in if there is an “exceptional situation”, and an exceptional situation is where some executive action of the Delhi government clearly impinges upon a legitimate interest of the Union government qua Union government physically based in Delhi. To take a tangible example: the opening of mohalla clinics has nothing to do with national concerns, and therefore does not fall within the scope of the proviso.

Two further points: if the LG differs with the Delhi government, must she record her reasons in writing? And is there a specific time limit within which the “difference of opinion” must be forwarded by the LG to the President? On the first issue, the judgments are silent; however, given that all the judgments stress that the difference of opinion must be reasoned and not a “contrived difference” it follows virtually as a necessary implication that the LG must reduce the reasons for differing into writing. On the second issue, as well, the judgments are silent, and I submit, regrettably so. Only in his concurrence, Justice Bhushan suggested that the difference in opinion must be referred within a “reasonable time” of the LG having “seen” it, but declined to define with any further specificity what “reasonable time” meant.

No doubt, the judges intended that such issues be resolved through “constitutional statesmanship” – a phrase that, along with its variants – recurs throughout the judgments. However, given that this case only came to Court because of breakdown in “constitutional statesmanship”, it might have been better had these loopholes been firmly closed. This would have been in tune with the Supreme Court’s closing of various other loopholes that the framers, in their mistakenly optimistic view of human nature, had left to the mercy of constitutional conventions (the most recent example being the ordering of “floor tests” within 48-72 hours of election results, in case where there is more than one claimant to Chief Ministership).

Services and the ACB

There were two specific issues that were litigated before the Court: who had control over Delhi’s civil service, and who had control over the Anti-Corruption Bureau. The former, as everyone knows, has acquired specific salience in recent days. The Court did not return a specific ruling on either issue, and presumably, it will be settled by smaller benches.

On the first issue, my reading of the judgment is that the Delhi government clearly has control over the services. This follows from a combined reading of the majority judgment, and Chandrachud J.’s concurrence. The majority clearly held that barring the three excluded subjects – land, police, and law and order – GNCTD had co-extensive legislative and executive powers over all other fields in Lists II and III. “Services” features under Entry 41 of List II, which states: “State public services; State Public Service Commission.”

The Union of India argued that Entry 41 specifically used the word “state”. Delhi was not a “state”. Consequently, services were excluded from its ambit. This argument, however, was specifically addressed by Chandrachud J. in paragraphs 128 – 130 of his judgment, where he noted that the use of the word “state” throughout the Constitution was not dispositive; where appropriate according to context, “state” would include “union territories.” When you read this back into the majority’s clear statement that the executive power extends to every entry apart from the three specifically excluded, the conclusion that services lie within the executive power of the Delhi government becomes irresistible.

The ACB issue, however, remains unresolved; before the Court, the dispute was whether the ACB came within the definition of “police” or not. The Court expressed no opinion on this, and so this, now, must be argued afresh before a smaller bench.

Conclusion

The Supreme Court’s judgment (I take “judgment” here to refer to all three opinions) in National Capital Territory of Delhi v Union of India correctly identifies representative democracy as a fundamental feature of the Indian Constitution, and correctly interprets Article 239AA in a manner that, within the textual boundaries of the provision, strengthens representative democracy. Its analysis of the constitutional history of Delhi, and the application of constitutional principles to the interpretation of Article 239AA, repays close study. On the subject of the proviso to Article 239AA(4), however, it suffers from a lack of specificity, a defect that – I submit – can be remedied by treating Justice Chandrachud’s concurrence as clarifying the Majority.

One last point: the length. Again. 535 pages. How unnecessary it is, once again, is conceded by the judges themselves. In paragraphs 117 and 118, Justice Bhushan notes:

117. I have perused the elaborate opinion of My Lord, the Chief Justice with which I substantially agree, but looking to the importance of the issues, I have penned my own views giving reasons for my conclusions.

118. I have also gone through the well researched and well considered opinion of Brother Justice D.Y. Chandrachud. The view expressed by Justice Chandrachud are substantially the same as have been expressed by me in this judgment.

That this occurs at page 531 of 535 tells its own story. If there is “substantial agreement”, then the “importance of the issues” simply does not justify penning a full-fledged separate opinion, which multiplies pages, multiplies the effort involved in reading, and also multiplies the possibilities of future confusion when lawyers use semantic distinctions between separate opinions to re-litigate issues that everyone thought were settled.

 

How to Read the Constituent Assembly Debates – III

(Part One)

(Part Two)

On the 4th of November, Ambedkar moved the Draft Constitution for consideration in the Constituent Assembly. For the next one year, over four separate sittings, the Assembly would engage in a detailed and impassioned debate of each clause of the Draft Constitution [“the Second Reading“]. These four sessions (contained in Volumes VII – X of the CADs, spanning November 1948 – Jan 1949, May – June 1949, August – September 1949, and October 1949) are perhaps the heart and soul of the Debates: for the first time, the Members had the full text of the Draft Constitution before them, and were able to engage with it holistically, instead of piecemeal.

As discussed in the previous post, the Draft Constitution comprised of the Drafting Committee’s February 1948 Draft, and, placed alongside it, the proposed Amendments that the Assembly had received between February and October 1948, and agreed to sponsor. The document that the members of the Assembly had before them in November 1948 is not available in Shiva Rao and – to the best of my knowledge – it is not available online. Consequently, the best way to read this portion of the drafting is as follows: The Drafting Committee’s Draft Constitution is in Shiva Rao, Volume 3, pp. 509 – 681. This has to be kept by one’s side when reading the Volume VII – X debates, as this was the basic document that the Members had before them. For most of the Debates, this will suffice.

However, at places where Ambedkar mentions that he is moving an amendment, it refers to the amendments accepted by the Drafting Committee are part of “Comments and Suggestions on the Draft Constitution”, Shiva Rao, Volume 4, pp. 3 – 415. This Section – as discussed in the previous post, contains a number of proposed amendments, many of which were not accepted. However, it is easy to locate the ones that were, because after each article, “Drafting Committee’s Decision” is in bold letters. In sum, therefore, when you’re reading Volumes VII – X of the CADs, and you come across a mention of an amendment that the Drafting Committee has already agreed to, match the article being debated with the article in the Draft Constitution (Vol. 3, see above), and then turn to the pages dealing with that article in “Comments and Suggestions” (Vol. 4, see above). This will give you as complete a sense as possible of what exactly was going on at this most crucial time of the framing.

The fundamental rights and directive principles were among the first elements of the Constitution to be discussed, and they occupy a significant part of Volume VII (they were predominantly discussed in November and early December 1948). Here you have the arguments about whether the Constitution should have a “due process clause”, debates over the scope of the restrictions upon free speech and association, and intense disagreement over minority (especially linguistic) rights. Some of the more controversial articles were “held over”, and would be discussed again later in the year (interestingly, a privacy clause was almost snuck into the draft, but was ultimately dropped). The end of this phase also saw the introduction of the notorious “preventive detention clause” (Article 15-A in the draft Constitution, and Article 22 now), which Ambedkar brought in to compensate for the loss of due process, but which met with bitter opposition from critics who felt that it didn’t accomplish nearly enough. This provision was debated on 15th and 16th September, 1949.

Let us call this period, then, Constituent Assembly: Phase Two (November 1948 – October 1949). Mercifully, this one is not very complex to parse:

The Second Reading of the Draft Constitution by the Constituent Assembly, and the adoption of the Draft Articles.

By 17th October 1949, the Constituent Assembly had finished the second reading. The Draft Constitution was then sent back to the Drafting Committee to take into account the changes and modifications made by the Assembly, and finalise the draft into one consistent and coherent document (essentially, to “clean it up”). The Drafting Committee finished this task by November 3, 1949, and forwarded the finalised draft to the President of the Assembly (Shiva Rao, Vol. 4, pp. 745 – 932). This period is Committee Drafting: Phase Three (October 1949), and again, is simple:

Drafting Committee scrutinises and finalises the Draft Constitution.

The Constituent Assembly met again from 14th to 26th November, 1949 (Vol. XI). This session can be divided into two phases. The first was the “Third Reading“, where the Drafting Committees changes were debated and adopted (this happened from 14th to 16th November, 1949). To understand the proceedings, read the debates alongside the Drafting Committee’s draft Constitution (Shiva Rao, Vol. 4, pp. 745 – 932).

Then, the Constitution as a whole was put up for adoption, and members offered their last sets of comments on the Constitution as a whole. For me, these last few days – November 17 – November 26, 1949 – make for the most fascinating reading. The members of the Constituent Assembly had their last opportunity to make their voice heard, and they did not hold back: the speeches were passionate, critical, and unsparing (some, like Maulana Hasrat Mohani and Damodar Swarup, rejected the Constitution altogether). The criticisms were both broad-ranging and granular. They were prescient as well: many of the issues raised in November 1949 resonate even today. At the abstract level, the Drafting Committee was trenchantly criticised for its “eclectic” borrowing from different Constitutions, for its treatment of fundamental rights, for incorporating a heavy bias towards the centre in a supposedly federal Constitution, for making no effective provisions for decentralisation of power, for failing to incorporate Gandhian principles, for failing to adequately separate the executive from the judiciary, and so on. At the more concrete level, issues such as nominated members in the cabinet, preventive detention, and the discretionary powers of the Governors all came in for criticism. Other members offered defences as well, making for a lively debate and exchange of views.

On 25th November, Ambedkar gave his closing remarks (this is the famous “grammar of anarchy” speech), and on 26th November, the President of the Constituent Assembly, Rajendra Prasad, delivered the concluding address, and the Constitution was adopted. This was Constituent Assembly: Phase Three (November 1949):

Third reading –> Final debate on the Constitution –> Adoption (26th November, 1949).

The Constituent Assembly reconvened one final time on 24th January, 1950, for all the members to sign the Constitution. This brought proceedings to an end, and the Assembly was adjourned sine die. The Constitution came into force on 26th January, 1950. 

To sum up: The framing of India’s Constitution was a mammoth task. The Constituent Assembly held eleven sessions, over a period of three years, and debated the Constitution for three separate rounds. The work of negotiation, framing, and drafting was carried out by multiple committees, culminating in the work of the seven-member Drafting Committee. Getting a handle on such a massive project, therefore, requires a systematic approach. Over the course of the last three essays, I have attempted to outline such an approach, by reading together the proceedings of the Constituent Assembly, and the work of the Committees, a large part of which has been reproduced in B. Shiva Rao’s book.

I have suggested breaking up the drafting process into six distinct – but interlocking parts: three phases of “Committee Drafting” and three phrases of “Constituent Assembly Debates”, which alternate with each other. Even this, however, is very difficult to wrap one’s head around: so I’ve suggested, further, a thematic approach, by taking the fundamental rights and Directive Principles chapter as an example. A good starting point – as outlined in Part I of this series – is to go back to the Sub-Committees that were constituted in early 1947 – the Fundamental Rights Sub-Committee, the Minorities Sub-Committee, the Union Powers Sub-Committee, and the Excluded Areas Sub-Committee. With this starting point, one can then trace how a particular set of provisions (dealing with fundamental rights, minority protection, structures of governance, the Fifth/Sixth Schedule etc.) – wound their way through the three-year long process. The blueprint outlined in these three posts can be used, keeping in mind, of course, that different parts of the Constitution went through different drafting processes outside the Assembly.

A few caveats: even the Constituent Assembly Debates plus Shiva Rao do not give you the entire picture. Shiva Rao, as we have seen, does not contain the entire set of Committee Proceedings, and – as members of the Constituent Assembly frequently observed – many particularly controversial provisions were ultimately settled even outside the Committees. To get the full picture, therefore, you’d need access to the private correspondence of many of the prominent figures in the Assembly – and even that would leave gaps. I’ve limited myself to the Debates and Shiva Rao, however, because the former are freely available online, and the latter can be accessed with some effort in a library (or purchased – admittedly – at significant expense). This approach, I feel, provides a reasonable picture of the framing, while also remaining accessible to people who lack access to historical archives (i.e., most of us).

Readers interested in following up can also refer to the excellent CLPR website.

While moving the Objectives Resolution, Nehru famously said that “words can never capture the magic of the human spirit.” If there is one place, however, where they come close to doing so, it is in the Constituent Assembly Debates. As you go through the debates, the passionate arguments on principles, the granular discussions on grammar and form, and everything in between, it’s easy to forget the circumstances in which the Assembly carried on its work: the departure of the Muslim League, Independence, Partition, communal violence, the integration of the princely states, the war with Pakistan, and the unimaginable challenge of framing a democratic Constitution for a nation as vast, as diverse, as culturally and linguistically plural as India, with the added task of remedying centuries of political as well as social injustice. But when you remember all of that, you feel a sense of awe at the manner in which the Assembly conducted itself, and the manner in which it saw its task through to the end. As K.G. Kannabiran wrote, a Constitution at the culmination of a freedom struggle signifies “emotion recollected in tranquility.” I can think of no better description for the Indian Constituent Assembly.

I hope the brief outline in these three posts will help in capturing some of the magic of human spirit that went into the framing of the Indian Constitution.

Guest Post: Social Media, Public Forums, and the Freedom of Speech

(This is a guest post by Praharsh Johorey.)

  1. Introduction

Donald Trump is in most senses a unique President. While this essay does not (and I suggest, could not) seek to examine the scope of this statement in its entirety, I instead concern myself with the legal implications of one facet of Trump’s presidency: his use of social media. The nature of changes wrought on society by social media companies are the subject of significant contemporary academia. And it is politicians, amongst other public figures, who have been particularly adept at adopting social media as a means of communicating directly with their constituents. Donald Trump, with nearly 53 million followers on Twitter (and a similar number on Facebook), uses social media to make public his policy pronouncements, executive decisions and personal opinions on government functioning. These encompass most forms of government statements having significant importance to the American public, and have been acknowledged by his government as constituting ‘official statements’ of the Presidency.

With such important information being shared on such media, often before more traditional forms of public pronouncement through government officials, surely the public can reasonably expect to be allowed access to such forums to enable and aid their participation in a democratic society?

This question was recently the subject of adjudication before the Southern District of New York, which decided that the blocking of seven US citizens’ Twitter accounts from access to the Twitter account of the President, ‘@realDonaldTrump’ abrogated their constitutional rights. The First Amendment rights of individuals on a ‘modern public forum’ like Twitter precluded them from being denied access to Trump’s Twitter account solely on the ground of their political affiliation, beliefs, or the content of their objections to his policies.

The Trump twitter case raises the following question: whether the limits on Constitutional adjudication, particularly the freedom of speech does, or indeed should apply to social media. To answer this question, I make the following arguments – in Section 2, I try to locate and negate the theoretical argument for making the government the only subjects of constitutional adjudication. In (3), I examine the NY District Court case which held Trump’s blocking of users from his Twitter unconstitutional, and in (4) I examine the manner in which Twitter as a platform could be held accountable for censorship.

However, as mentioned earlier, private parties are not considered the subject-matter of constitutional laws in a classical sense. It is therefore crucial to understand why the state was originally viewed as being the only party against whom constitutional rights could be invoked, and whether such reasoning withstands scrutiny.

  1. Justifying Verticality

Constitutions can be divided into two forms based on their subject-matter: ‘vertical’, i.e. those that only regulate state conduct, and ‘horizontal’, those that regulate the conduct of private parties. Both the American and Indian constitution are essentially ‘vertical’ constitutions, predominantly limiting the conduct of the state. The American Constitution required that there be ‘state action’ in order for the constitutional protections in the Bill of Rights to apply, and that if private parties are alleged to have infringed a right, they must be sufficiently connected to the government to constitute state action. The meaning of the term ‘state action’ has been the subject of intense discussion both inside and outside the US Supreme Court, with the Court having applied the ‘public function’, ‘nexus’ and ‘state-authorisation’ tests to bring the disputed act of a private party within the bounds of state-action and justiciability.

In India, the Constitution adopted what some commentators call ‘a mixed vertical position’, whereby only select Articles, namely Article 15(2), which prohibits discrimination, Article 17, which outlaws untouchability and Article 23 and 24, which prohibit trafficking and bonded labour are said to directly regulate the conduct of private parties. In addition, the Supreme Court of India has applied horizontality indirectly, by imputing ‘statehood’ under Article 12 of the Constitution to private organisations through the ‘public function’ test.

Richard Kay, in defending the dichotomy of vertical and horizontal constitutions, argues that the Constitution creates broad principles of legal conduct that are norm-creating in nature, which are supplementary to the ordinary laws that govern day-to-day conduct. In Kay’s view, subjecting all disputes to the Constitution would ‘undercut the certainty made possible by legislative regulation’, creating a more ad-hoc justice system, converting it into ‘one great arbitration that would engulf the courts of law.’ Therefore, the Constitution was targeted at only certain specific loci of power, which the drafters believed posed ‘special dangers and insufficient safeguards.’

The predominant argument against this divide is that there are no purely private actions. Even where the state does not actively participate, party conducted is moulded and shaped by state law and regulation, granting tacit permission to the ‘private’ act in question. The creation of private persons, classification of acts as private and the creation of an intricate framework of laws within under which private actors participate in society are all creations of public law – rendering them potentially culpable for private harms. A closer look at Kay’s arguments reveals that even they are not an unequivocal defence for the public-private divide. He accepts in Part II of his paper that all private disputes are ‘public in some intrinsic sense’, and that there are certain private functions, such as those delegated by the state which may be interpreted as being within the scope of the Constitution.

  1. The Millenial Public Fora

First, let’s be clear about what the NY District Court judgement did and did not say. While recognising on page 60 of the judgement that Twitter cannot be considered a ‘traditional’ public forum, the Court held that the interactive space accompanying each tweet, i.e. where people are allowed to share, comment on and otherwise engage with the tweet, may be considered a designated public forum. Because Twitter by design was created to allow users to ‘interact with other Twitter users in relation to their tweets’, and that users can use it as a tool to ‘petition their elected representatives and otherwise engage with them in a direct manner’ – the interactivity of Twitter may be considered one of its defining characteristics. Additionally, there are no limiting criteria on who is allowed to join such platforms, enabling the creation of a vibrant and extensively used public space. Taking these factors together, the Court declared it amenable to First Amendment rights.

Prominent scholars have contended that no questions of ‘horizontality’, i.e. the imposition of constitutional rights upon private parties, are raised in this case. They argue that because the judgement hinges only on a citizen’s right to access government speech (being Trump’s announcements) – where such speech was made, even if it is a private platform, is irrelevant.

This is incorrect. The principle finding here is not that citizens have the right to access Donald Trump’s speech wherever it is made – it is that Constitutional principles are granted supremacy over the rules and regulations that bind all Twitter engagement. As per Twitter’s rules, all users are granted the right to block users without justification. The District Court subjected this right to the First Amendment rights of those who were blocked. There is no question that Donald Trump owned and operated his Twitter account as a regular user, subject to the private rules of the platforms. His status as President, and his extensive use of the forum to make government pronouncements was allowed to alter the very nature of the platform – transforming it from a private account to a public forum within which all users may exercise a constitutional freedom of speech. It is my contention, therefore, that every account that fulfils some conventional public function (all politician’s Twitter accounts, for example) transforms to being a designated public forum, accompanied by all the rights of the Constitution.

This framework requires certain clarifications. First, it is clear that not all Twitter engagement should be subject to the rules of Constitutional law. A private user should have the right to block/mute another account – such conduct raises no questions of public interest, nor the discharge of any public function. What makes a politician’s social media account inherently distinct is their utilisation of the platform to discharge public, and even constitutional responsibilities in which members of society have a keen interest. Similar characterisation cannot be imputed to purely private conduct on the same platform.

Further, this doctrine does not restrict the ability of prominent Twitter users to block or censor speech that is abusive, vitriolic or threatening – however, it subjects this decision-making to Constitutional rigour, prohibiting users from engaging in viewpoint discrimination. Thus, the operators of Narendra Modi’s Twitter account, for example, should not have the ability to block those who dissent against his policies solely for the expression of dissent itself.

  1. A Censorial Social Media

The second question I seek to address is whether individuals may raise any claim against Twitter as a platform, in situations where they find themselves subject to algorithmic censorship, or platform-imposed silence. Here, I would contend that the well-known ‘public-function’ test [which imbues private organisations with the constitutional character of the state when they perform public/state functions] is indisputably applicable to social media companies.

There is little dispute to the position that social media forums now occupy a hugely significant position in modern society, as the hosts and arbiters of the world’s information. The Supreme Court of the United States made a number of significant observations to this end in 2017 in Packingham v. North Carolina, where it was required to adjudicate whether legislation that prohibited sex offenders from use of any social media was constitutional. In declaring that the legislation was overbroad and in violation of the offender’s First Amendment rights, two observations of the Court are significant:

‘A fundamental First Amendment principle is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. Today, one of the most important places to exchange views is cyberspace, particularly social media, which offers “relatively unlimited, low-cost capacity for communication of all kinds,” to users engaged in a wide array of protected First Amendment activity on any number of diverse topics.’

‘With one broad stroke, North Carolina bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. Foreclosing access to social media altogether thus prevents users from engaging in the legitimate exercise of First Amendment rights.’

The Supreme Court’s observations are a clear enunciation of the power and all-pervasive influence of social media on our lives, and the visceral impact of being excluded from such media – with J. Kennedy explicitly declaring it a ‘modern public square’. However, the Court omitted to enter any discussion on the private ownership of such social media, and left open the question on the applicability of the public-forum doctrine thereto.

In the context of the Indian Constitution, the wording of Article 19(1)(a) does not mandate that such public forum analysis be entered into. The First Amendment’s wording eliminates the ability of the US Government to interfere with free speech; whereas Article 19(1)(a) instead confers a broad right to free speech and expression, that is then explicitly limited by subject-limitations under Article 19(2). There is no additional protection granted to speech communicated in a public fora under Indian Constitutional law, and as a corollary, there is no textual limitation on the freedom of speech being extended to an individual communicating on private platforms. Article 19(2) instead confers upon the state the power to legislate limitations to the freedom of speech on grounds of the security of the state, sovereignty and integrity of India, etc., but does not require that such right can only be claimed against the state, or state functionaries.

Scholars contend that the use of the word ‘law’ in Article 19(2) suggests that the right under Article 19(1)(a) is enforceable against the state. This is true – the wording of 19(2) allows an individual to make two claims against the state – first, that the censorship in question does not come within the established grounds, and second, that even if it does, the restriction on speech is ‘unreasonable’. Nonetheless, the wording of 19(2) is insufficient to establish the state as the only functionary against whom the right may be claimed, with no explicit recognition that the freedom of speech is a public law right, or that private parties are inherently incapable of denying an individual such freedom. A comparison with the wording of Article 14 makes the point more clear:

Article 14: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Article 19(1)(a): All citizens shall have the right— (a) to freedom of speech and expression;

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

It is clear that Article 14 views the State as the exclusive functionary against whom violations of the right may be claimed. Article 19 is not worded with the same exclusivity, imbuing upon individuals an inherent right to freedom of speech. However, it grants the state the right to make reasonable restrictions to the freedom of speech under certain circumstances – a right not granted to censorial private parties, ostensibly.

In this vein, I contend that Constitutional tests may be squarely applied to social media organisations, and that only the tests established under Constitution law to deal with censorship, obscenity, hate speech and other forms of harmful speech can peaceably resolve issues of private censorship by social media companies, and form the basis of a legal adjudication of free-speech online. In the context of free speech, the problems with the ‘vertical’ application of constitutional are foreseeable. Individuals do not rely solely on government platforms (public radio, television) to communicate, granting significant censorial powers to private parties like Facebook and Twitter. While the aforementioned companies argue that such powers are used sparingly, if at all, content reflecting hate speech, obscenity, communal incitements and sedition often manifest themselves in their most vicious avatars online – making it arguably necessary for these forums to put editorial guidelines (or ‘terms of use’) in place and invoke them frequently.

As may be apparent to the reader, the scope for misuse of such powers is immense. While all rational individuals would agree that Facebook can and should censor photos and videos of be-headings and child pornography, for example, the same degree of certainty does not apply in the censorship of certain political ideologues, governments and media outlets. What makes the threat of overbroad censorship particularly likely is that due to the sheer volume of content that social media companies are required to sift through, (sometimes within short periods like twenty-four hours, as mandated by the German law on hate speech), such tasks are outsourced from human judgement to algorithms. The most visceral effect of such outsourcing is that inherently subjective decisions about a person’s intent, double-meaning, humour, language and slang and reduced to objective mathematical parameters by which algorithms may quickly flag and censor conduct, subject to human review – which I contend vastly increases the potential for overbroad flagging, having a chilling effect on speech online.

Individuals on social media forums should therefore have the right to claim a freedom of speech online – allowing them to invoke constitutional protections in situations of overbroad censorship, undue denial of access to speech and the arbitrary private restrictions on conduct online, without adequate recourse to redress mechanisms.