Monthly Archives: July 2018

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.)


Leave a comment

Filed under Colonial Statutes, Constitutional interpretation

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.

Leave a comment

Filed under Article 14, Article 21 and the Right to Life, Decisional Autonomy, Equality, Non-discrimination, Privacy, Sex Discrimination, Sex Equality, Sexuality, Sexuality

“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.


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.


1 Comment

Filed under Article 239, Federalism

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.

Leave a comment

Filed under Constituent Assembly Debates

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.

Leave a comment

Filed under Free Speech, Online Platforms