Guest Post: Constitutional Silences, Textual Impasses, and Structuralism – A Comparative Analysis of the NCT Delhi and Miller Judgments

(This is a guest post by Preetika Mathur, and is a follow-up to her previous piece on this subject.)


The purpose of this post is to highlight some interesting similarities between the famous R (Miller) v Secretary of State for Exiting the European Union (“Miller”) decision of the UK Supreme Court and the recent NCT Delhi judgment of the Indian Supreme Court. A discussion of the key issues in NCT Delhi can be found here, here and here. An analysis of the final judgment can be found here.

The UK Supreme Court gave its judgment in the Miller case on 24th January 2017. The Indian Supreme Court gave its judgment in NCT Delhi on 4th July 2018. This post does not seek to argue that the Indian Supreme Court was necessarily influenced by Miller in its own reasoning – though no Constitutional Court decides cases in a vacuum. Rather, this post demonstrates how when faced with similar questions about the meaning of constitutional democracy, in two cases riddled with constitutional silences and textual impasses, the respective Courts resorted to similar tools from the limited judicial toolbox to reach their final decisions.

Similar Questions

Fundamentally, the central question for the Supreme Courts in Miller and NCT Delhi was the weight to be given to the constitutional principle of representative democracy in determining the key institutional relationships within a modern State. Specifically, the Supreme Courts in both cases had to decide on the extent to which to prioritise the value of representative democracy over other conflicting values advanced by the Union executives in both cases. In both cases the executive at the Federal level sought to prioritise the value of a stronger more empowered Union executive using the interests of the Nation State as a whole to justify their claim. In both cases, the Union executive claimed that a stronger more empowered executive at the Central level was in the interests of the unity, integrity and political expediency of the Nation State as a whole.

The Miller case arose from the Brexit referendum. In the referendum held on June 23rd 2016, the UK voted to leave the EU by a majority of 51.9% for leave and 48.1% for remain. Article 50 of the Treaty of the European Union states that “any Member State” that “decides to withdraw from the EU in accordance with its own constitutional requirements” should serve a notice of that intention. In Miller, the Supreme Court was asked to decide on whether the UK’s constitutional requirements required the executive to obtain the prior authorisation of Parliament before it could serve its notice of intention to withdraw from the EU. The alternative contention advanced by the Government was that the executive could serve this notice of intention without prior Parliamentary permission.

The UK Government proposed to use its ‘Prerogative Powers’ to serve the notice of intention to withdraw from the EU without prior Parliamentary approval. Prerogative Powers find their origin in the personal powers of the monarch from the time when the monarch was the absolute and all powerful Head of State. The residue of these powers is now vested with the British Crown in Council – where the Crown (Queen) is merely nominal head with the residue of Prerogative Powers exercised by the Cabinet in reality. As Thomas Poole has written:

The UK Constitution recognises a bundle of prerogative powers… – or ‘Ministerial executive powers’, as a Commons Select Committee prefers to call them. These are the inherent common-law powers of the executive. ‘Inherent’ and ‘common-law’ because they have not been conferred by statute and their existence and conditions of application are matters to be recognized and determined by the courts (Philip Allott, ‘The Courts and the Executive: Four House of Lords Decisions’ (1977) 36 Cambridge Law Journal 255, 265-6). Although the bundle has dwindled significantly, it still covers a range of matters… The most important relate to national defence and foreign relations. What distinguishes them politically perhaps is the need for ‘unanimity, strength and despatch’ and a connection to the notion of salus populi (e.g. Chandler v Director of Public Prosecutions [1964] AC 763). What distinguishes them legally is that they do not require Parliamentary authorization.

The argument at the core of the Respondents case in Miller was that since the UK was a representative Parliamentary democracy, operationalising representative democracy took precedence over the governmental expediency gained through use of Prerogative Powers. Similarly in NCT Delhi the core of the Respondents case was that the Constitution through Article 239 AA had expressly conferred a Legislative Assembly on Delhi modelled on the Westminster style Parliamentary system with a Westminster style Cabinet. As a result, operationalising representative democracy had to take precedence over the priorities of the Union executive.

Similar Reasoning and Outcomes

Both cases are also similar because both the Supreme Courts used structuralist reasoning to navigate through constitutional silences and textual impasses. Vasudev Devdasan has already explained the difference between textual and structural approaches to constitutional interpretation in detail in his series of posts on NCT Delhi. In summary, textualism relies exclusively on the words of a particular provision in isolation from the broader institutional relationships created by the constitutional scheme. Structuralism does not look at the text of the provision in isolation. Instead, structuralism looks at the existence and position of a constitutional provision in its relationship to the existence and position of other constitutional provisions. This is in order to identify the institutional relationships envisaged by the Constitution in order to find answers to specific questions about institutional relationships.

Both Miller and NCT Delhi cases were riddled with silences – situations where the constitutional text does not speak. In his seminal piece ‘A Syntax of the Unsaid’ Professor Lawrence Tribe writes:

Indeed, to decree that we must ignore legal silences altogether is no more plausible than to command that we ignore the uncovered parts of a canvas or the pauses in a sonata…We must therefore reformulate, and reduce to more plausible dimensions, the resistance to silence as a source of law if the failure of that resistance is to be replaced with even a modest success. Without a more explicit grammar of how silences may and may not operate in the interpretation of law – a syntax of the unsaid – we may say that law cannot be made by silence, but the echo will return: “Oh yes it can, just watch!

In both the Miller and NCT Delhi cases, the opposing parties construed the textual silences in a manner that allowed them to arrive at diametrically opposed conclusions.

In NCT Delhi the constitutional text of Article 239 AA was silent on the Delhi’s precise place in the hierarchy between Union Territory and State. The Constitutional text of Article 239 (AA) (4) was silent on whether the Lieutenant Governor was bound by the ‘aid and advice’ of the constitutionally mandated Council of Ministers of the Delhi Government. Article 74 on the other hand explicitly says that the President of India “shall” act in accordance with the Aid and Advice of his Council of Ministers. Article 246 was silent on whether Delhi was a Union Territory for its purposes. The proviso to Article 73 was silent on whether it was applicable to Delhi.

In NCT Delhi, the Central Government tried to fill these silences with the assertion that Delhi was merely a Union Territory simpliciter. As a result, even though Delhi had the same legislative competence as a State for all purposes apart from relating to Entries 1, 2 and 18 of the State List it would not have the same executive competence as a State. This meant that Parliament had plenary powers with respect to the Union Territory of Delhi under Article 246 and the Union’s coextensive executive powers remained unaffected by the proviso to Article 73. As a result the Lieutenant Governor was not bound by the ‘aid and advice’ of his Council of Ministers.

 The Delhi Government tried to fill the silences in the constitutional text with the assertion that Delhi was a unique constitutional hybrid. This led the Delhi Government to arrive at the exact opposite conclusions to the Central Government with respect to the same constitutional provisions. The Delhi Government argued that since Delhi had the same legislative competence as a State for all purposes apart from Entries 1, 2 and 18 the Constitution intended to treat Delhi akin to a State for the purposes of the executive powers of the Delhi Government. As a result, Delhi had the same executive competence as a State in all areas apart from Entries 1, 2 and 18. Further, since Delhi was not a Union Territory simpliciter but a unique constitutional hybrid the proviso to Article 73 had bite with respect to Delhi and the Union’s executive powers were displaced by the proviso to Article 73.

The Miller case too, was riddled with constitutional silences. In Miller, like in NCT Delhi both parties used these silences to arrive at diametrically opposed interpretations of the same legal provisions. The Government wished to rely on an unwritten Prerogative Power in an unwritten constitution. The key pieces of legislation governing the issue were silent on whether the Prerogative claimed by the government really did exist and whether it could be used to remove the UK from the EU. The key pieces of legislation were The European Union Referendum Act 2015 which made legal provision for the Brexit Referendum and The European Communities Act 1972 which made the UK a member of the EU and brought EU law into UK domestic law. These silences in The EU Referendum Act 2015 and The European Communities Act 1972 led the Government to argue that they had a pre-existing Prerogative Power to make and unmake treaties at the international level. Since both The EU Referendum Act 2015 and The European Communities Act 1972 were silent on the issue of Prerogative Powers and neither Act explicitly or implicitly removed the pre existing Prerogative Power this pre existing power could be used by the Government to serve its notice of intention to withdraw. The Respondents arrived at the exact opposite conclusion from the silence. They argued that the Government did not have the pre existing Prerogative Power that they claimed to have. Since both The EU Referendum Act 2015 and The European Communities Act 1972 were silent on Prerogative Powers and neither Act expressly conferred such a power, the Government had no such Prerogative Power that it could rely upon. Specifically, the Governing was seeking to use Prerogative Power to alter and destroy domestic law rights – the Respondents argued that the Government had no Prerogative Power at the international level to alter or destroy domestic law rights.

The diametrically opposed constructions of the constitutional silences is also well demonstrated by the conflicting usage of the same metaphor by the Government and the Respondents throughout the case. Both sides relied on the metaphor of the “conduit pipe” to different ends. The Government argued that The European Communities Act 1972 (which brought EU law into UK domestic law) was merely a “conduit pipe” for whatever rights and obligations the Government decided to subscribe to at the international level. They relied on Section 2 of The European Communities Act 1972 which provides that EU law rights, remedies etc “from time to time provided for by or under the Treaties” were “to be given effect or used in the United Kingdom”. The Government argued that the words “from time to time” meant that The European Communities Act envisaged that the Government could through its treaty making/unmaking Prerogative at the international level increase or decrease the flow of rights and obligations down this pipe. The Government argued that The European Communities Act 1972 was ambulatory in that it envisaged varying levels and intensities of rights flowing down this pipe over time.

The Respondents in Miller turned the “conduit pipe” argument on its head. They argued that once rights had flowed down the pipe to become a part of domestic law, the Government did not have the Prerogative Power at the international level to take away or alter these domestic law rights. Further, the Respondents argued that The European Communities Act 1972 created a new legal order by introducing a new source of law into the UK and the Government was not simply seeking to decrease the flow of rights and obligations down the pipe but to destroy the pipe altogether. They argued that Section 2 of The European Communities Act 1972 did not envisage the destruction of the “conduit pipe” altogether. They argued that there is a vital difference between changes in domestic law resulting from variations in the content of EU law that arise from new EU legislation which “flow down the pipe” and changes in domestic law resulting from withdrawal from the EU altogether.

In NCT Delhi all the judgments of the Supreme Court (both majority and separate concurring) resorted to structural reasoning to cut through the silences and textual impasse in that case. All judgments relied heavily on and prioritised the structural principle of representative Parliamentary democracy concluding that the Lieutenant Governor was bound by the ‘aid and advice’ of his Council of Ministers. Specifically, this was because Article 239 AA was an exercise of constituent power; that had introduced Westminster style representative democracy into Delhi with a Westminster style cabinet system of government. An aspect of a Westminster style cabinet was the principle of collective responsibility. As a result, ultimate executive authority must vest with the Council of Ministers in Delhi and the Lieutenant Governor must be bound by their ‘aid and advice’ where Delhi has legislative competence (this was subject to the limitation that Delhi’s status as the national capital would require situations where this principle could be departed from, as acknowledged by Justice Chandrachud in his concurring opinion).

The Miller case was heard by a 11 judge bench of the UK Supreme Court. The Supreme Court by a majority of 8-3 found in favour of the Respondents. The majority gave a single judgment, Lord Reed, Lord Carnwarth and Lord Hughes dissented and wrote separate judgments each.

In Miller too the majority of the Supreme Court resorted to structural reasoning to identify the best approach to fill the silence and resolve the textual impasse. It viewed the dispute in the Miller case from several distinct structural perspectives to determine the most appropriate outcome in the case.

The first of these perspectives involved examination of the institutional relationships between the judiciary, the Crown and Parliament over the course of several centuries. The court noted that over this historical period the judiciary had progressively curtailed the Prerogative Powers of the Crown to further the interests of representative democracy and transfer power from the Crown to Parliament. The Courts had progressively curtailed the circumstances in which Prerogative Powers could be resorted to as well as the manner in which they could be used and the extent of their impact on domestic laws when used. The majority judgment of the Supreme Court described that in many ways the history of the common law had been an unbroken history of limiting the Prerogative. The Supreme Court cited a long unbroken line of authorities through which these developments had taken place. The first of these cases was the 17th Century Case of Proclamations. The Court then cited a number of important 20th Century decisions. This included the following extract from Lord Parker’s judgment from the 1916 decision of The Zamora:

The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administered by Courts of law in this country is out of harmony with the principles of our Constitution. It is true that, under a number of modern statutes, various branches of the Executive have power to make rules having the force of statutes, but all such rules derive their validity from the statute which creates the power, and not from the executive body by which they are made. No one would contend that the prerogative involves any power to prescribe or alter the law administered in Courts of Common Law or Equity.

The Court also cited the 1920 judgment of Attorney General v De Keyser’s Royal Hotel Ltd and the 1995 decision in R v Secretary of State for the Home Department, Ex p Fire Brigades Union. It held that these two cases had crystallised the principle that that the Crown cannot alter the common law or statute by an exercise of the Prerogative Power and nor can the Crown frustrate the purpose of a Statute – even if that Statute is not yet in existence. It also cited the 1965 judgment of Burmah Oil Co (Burma Trading) Ltd v Lord Advocate in which Lord Reid explained that the Royal Prerogative is a source of power which is “only available for a case not covered by statute. This historical analysis of institutional relationships within the British Constitution helped the Court to identify the role that it ought to take in the Miller case. After conducting its historical analysis of institutional relationships as developed through the case law, the Court concluded that: “It would be inconsistent with long standing and fundamental principle for such a far reaching change to the UK Constitutional arrangements to be brought about by ministerial decision or ministerial action alone”.

 This historical analysis and consideration of the development of the institutional relationship between judiciary, executive and legislature led to the second structural perspective that was used by the majority of the Supreme Court. The majority considered the proper relationship between the people of the United Kingdom and the executive. The majority concluded that this meant that the executive could not deprive people of domestic rights through Prerogative Power at international level. Such deprivations could only done by Parliament as this better protected the democratic interest of citizens.

The third structural perspective used by the majority of the Supreme Court was to compare the institutional arrangements in the British Constitution before The European Communities Act 1972, after its enactment and after its destruction to determine what had changed. The Court did not resort to more textualism to resolve the conflicting interpretations of the constitutional silences in The European Communities Act 1972 but instead opted to examine the bigger structural picture. It agreed with the Respondents that The European Communities Act had “effected a fundamental change in the constitutional arrangements of the United Kingdom” and introduced a new source of law entirely. It held that as a result the silences in The European Communities Act 1972 could not be construed to mean that Parliament had contemplated or intended that Ministers could cause the United Kingdom to withdraw from the European Treaties without prior Parliamentary approval.

“Something of freedom is yet to come”: The significance of the Delhi High Court’s decriminalisation of beggary

Yesterday, Abhinav Sekhri provided an excellent overview of the Delhi High Court’s landmark judgment striking down (most provisions of) the Anti-Beggary Act (Harsh Mander v Union of India). As Sekhri pointed out, the provisions of the Anti-Beggary Act (first enacted by the state of Bombay in 1958, and then extended to twenty states and two union territories) effectively criminalised status through an extraordinarily broad definition of “begging.” They also established a system of “Certified Institutions” that were little better than detention centres.

Sekhri correctly observes that the High Court’s judgment was facilitated by only token opposition from the Delhi government. Perhaps unfortunately, this also appears to have limited its scope. The decision is, ultimately, based on narrow grounds. But perhaps more troublingly, it is also based upon a distinction between “voluntary” and “involuntary” begging that obscures the vicious, colonial logic that underlay the entire family of laws that the Anti-Beggary Act was a late, post-colonial entrant into (such as the Criminal Tribes Act, and various vagrancy statutes). Nonetheless, that does not take away from how important this judgment is. It is, in its own way, as transformative as the first Naz Foundation judgment of the Delhi High Court, and I share Sekhri’s guarded optimism that it can be the starting point for a long-overdue reckoning with some of the worst and most enduring legacies of colonialism in our criminal legal system.

Article 14

The first ground employed by the Court for striking down the law was Article 14. Interestingly, this was based on a concession by the Government. The Government took the stand that the Act did not intent to criminalise involuntary begging (i.e., begging attributable to factors such as poverty). If that was the legislative purpose, however, then the provisions of the Act were irredeemably broad. The five-pronged definition of “begging”, for example, read as follows:

(i) “begging” means—

(a) soliciting or receiving alms in a public place, whether or not under any pretence such as singing, dancing, fortune-telling, performing or offering any article for sale

(b) entering on any private premises for the purpose of soliciting or receiving alms ;

(c) exposing or exhibiting, with the object of obtaining or extorting alms any sore, wound, injury, deformity or disease whether of a human being or animal ;

(d) having no visible means of subsistance and wandering about or remaining in any public place in such condition or manner, as makes it likely that the person doing so exists by soliciting or receiving alms ;

(e) allowing oneself to be used as an exhibit for the purpose of soliciting or receiving alms.

As the High Court correctly noted, the definitional clause made no distinction between “voluntary” and “involuntary” begging, and also brought in homelessness within its ambit (paragraphs 16 – 18). And it is well-settled that an unconstitutional statute cannot be rescued through a promise on the part of the State to implement it fairly. The law, therefore, clearly violated Article 14, and was accordingly struck down by the High Court on grounds of arbitrariness.

I am, however, slightly bemused about why the High Court chose to adopt the more contentious and unsettled “arbitrariness” test under Article 14, in a case where the traditional classification test was so clearly applicable. The over-inclusiveness of the definitional section in a case where the Government had itself conceded the legislative purpose was so patent, that even under the deferential rational review standard, the Act could not have stood.

Article 19(1)(a) 

Sekhri argues that the Court did not go into issues of Article 19(1)(a). That conclusion, however, might be a little too hasty. While there is no fleshed-out Article 19(1)(a) analysis, the Court did not – in paragraph 31 – that “criminalising them [i.e., persons accused of begging]denies them the basic fundamental right to communicate and seek to deal with their plight.” While this does not go as far as stating that criminalising begging is per se contrary to Article 19(1)(a) because it interferes with an expressive activity without justification, it does at least recognise the Article 19(1)(a) interests involved.

Article 21

The Court then found that the summary detention provisions of the Act violated Article 21’s due process guarantee. The Union of India argued that detaining individuals was necessary in order to find out whether they were begging voluntarily or involuntarily. This, as the Court correctly noted, entailed that the police “would be arresting persons who may be subsequently found to have not been begging, thereby, depriving such persons of their liberty without following any process of law.” (paragraph 20)

Furthermore, the Act – as a whole – contravened the more substantive guarantees under Article 21 as well. Criminalising begging – as the Court noted – effectively made individuals liable for the State’s failure to provide the basics of a dignified life (food, shelter, clothing, education) as envisioned by Article 21 (paragraphs 28 – 29). The Court observed:

A move to criminalize [persons accused of begging] will make them invisible without addressing the root cause of the problem. The root cause is poverty, which has many structural reasons: no access to education, social protection, discrimination based on caste and ethnicity, landlessness, physical and mental challenges, and isolation.

The Court concluded by noting that if the State wanted to bring in a law to penalise forced begging, it could do so after conducting appropriate empirical studies.

While the basis of the Court’s judgment was a distinction between compelled and voluntary begging (note that this was because the State itself had conceded that it was only concerned with criminalising “voluntary begging”), this final observation suggests that, ultimately, what the State can legitimately criminalise is a situation where individuals are coerced or forced into begging through organised or unorganised “rackets.” Sekhri correctly worries that the judgment does not go into the question of the limits of the State’s power to criminalise status; however, the concluding observations suggest, at the very least, that the conversation is heading in that direction.

The Unsaid 

This brings us to the silences in the judgment. The most glaring silence relates to the definitional section. Recall that S. 2(1)(a) defines begging as “soliciting or receiving alms in a public place, whether or not under any pretence such as singing, dancing, fortune-telling, performing or offering any article for sale.” S. 2(1)(e) defines it to include “having no visible means of subsistance and wandering about or remaining in any public place in such condition or manner, as makes it likely that the person doing so exists by soliciting or receiving alms.”

At one level, of course, these sub-clauses reveal the classist character of the legislation. The law envisions public places as exclusionary, closed off to those who look poor. It is a sanitised vision of the public sphere, built upon keeping out the undesirables, those who “are not like us.” Indeed, it is the legislative equivalent of shops putting up spikes outside their doors and windows to prevent rough sleeping.

There is, however, a deeper logic running through these provisions, which is specifically visible in the underlined parts. Notice that the definition of “begging” is (consciously made) so broad, that it covers not just an activity (say, “soliciting for alms”), but entire ways of life. What unites these ways of life (singing, dancing, fortune-telling, performing) is their itinerant character. 2(1)(e) makes it clear when it uses the bizarre phrase “wandering about.” This gets to the heart of the phobia driving these laws: the fear of shifting populations whose changing movements and patterns makes them “invisible” to the administrator, and therefore, harder to classify, categorise, control, and (yes) extract tax from.

The “taming” of such individuals, groups, and communities was central to the colonial project, both in India and elsewhere. By associating them with hereditary criminality, the British stigmatised and (virtually) enslaved entire nomadic communities by bringing them within the ambit of the vicious Criminal Tribes Act. The myth of “thuggee” (a word still found in the IPC) was employed to the same end. Through vagrancy laws, the British made it impossible for itinerant lifestyles to remain outside the net of punitive legislation. All of this was driven by the imperative to ensure a “settled” population that could be disciplined and taxed with ease.

It is trite to say that post-colonial legal logic has, more often than not, replicated this model. The laws of the colonial regime have been turned by post-colonial administrators upon their own people. The Criminal Tribes Act was repealed in the 1950s, but (as we have seen) other laws live on: from the Habitual Offenders Act to vagrancy statutes to the Anti-Beggary law to various sections of the IPC. It is this that makes the Delhi High Court judgment so important. Even though these issues are not addressed in the judgment itself (and for good reason, because the State itself abandoned that justification), the striking down of the Anti-Beggary Act is a powerful blow against the enduring shadow of colonialism in our legal regimes. It is now for other courts to take the logic forward.

During oral arguments in the recent Section 377 hearings, Justice Chandrachud made the observation that the Constitution is committed to the value of pluralism: that is, an affirmation that every individual has the right to self-determination when it comes to choosing ways of life, modes of faith and belief, and self-expression. I intend to address this point in a later post, but for now, I want to note that Chandrachud J.’s observation is perhaps more accurately understood as an aspiration for the future rather than an accurate account of our constitutional history. The colonial project was characterised by a homogenising drive that delegitimised plural forms of life, and established hierarchies between them. Our Constitutional era has not entirely transformed this reality. You see signs of it in the text of the Constitution itself, which assimilates Buddhists, Sikhs and Jains within the legal category of Hindus. You see further signs of it in the jurisprudence of the Supreme Court, which has repeatedly denied to dissenting traditions the status of independent religious. And of course, you see it in the web of criminal legislation (whether Section 377 or the anti-beggary laws) that is premised on stigmatising alternate ways of living.

The importance of the Delhi High Court’s judgment lies in how it can force us to reckon with this legacy, which is so deeply intertwined with our legal and constitutional system.

Conclusion

In conclusion, I think it’s important to note that the Delhi High Court elected not to go down the route of far too many constitutional challenges: uphold a clearly unconstitutional law, but issue unenforceable “guidelines” to soften the blow. The rise of PIL and the “good governance” Court has tended to make the judiciary often forget that its primary task is testing legislation for constitutional validity, and striking it down if it fails the test. In its administrative avatar, the Court has too often begun to act like administrators, focusing more on issues of implementation rather than constitutionality. Indeed, when the anti-Beggary Act was itself challenged before the Bombay High Court in 1993, the High Court established a “Committee” to look into the matter! Despite the Committee’s clear recommendation that the Act had to go, nothing happened. This is, of course, symptomatic of a wider issue, and it is truly refreshing to see that the Delhi High Court avoided falling into this trap.

A final observation. A couple of years ago, while inspecting a file in Patiala House, I came across a chargesheet that, while listing an individual’s particulars, listed “Residence: Vagabond.” The incongruity stuck in my mind, a reminder that the law is linguistically incapable of dealing with the range of issues in society, let alone addressing them in any meaningful way. Apart from all else, the High Court’s judgment is also an acknowledgment that you cannot “solve” poverty through arrests, detention centres, and courtrooms. It is a rare example of humility in a legal system that, too often, seems to lay claim to omnipotence.

Guest Post: Delhi HC Decriminalises Begging – An Outlier or the Start of Nationwide Reform?

(This is a guest post by Abhinav Sekhri, cross-posted from The Proof of Guilt blog.)


Within the first decade of India becoming a constitutional republic, the erstwhile State of Bombay passed the Bombay Prevention of Begging Act, 1959 [“anti-begging law”]. This was extended to the national capital in 1960 and has been operational since 1961. Nineteen other states and another Union Territory followed suit, either with their own versions of the law or by extending the Bombay Act as well. Yesterday, a Division Bench of the Delhi High Court decided a 2009 writ petition challenging the constitutionality of several parts of the anti-begging law [Harsh Mander & Anr. v. UOI & Ors., W.P. 10498/2009 decided on August 8, 2018. Hereafter, “Harsh Mander”]. Central to the petition was a challenge to several provisions of the law which criminalised begging. On her last day in office as Acting Chief Justice of the Delhi High Court, Justice Gita Mittal delivered a judgment holding that these 25 provisions criminalising begging were indeed, unconstitutional.

The Crime of Begging and its Punishment

Before going forward, let’s take note of what was being criminalised. Begging. The statute defined it as “having no means of subsistence and wandering about or remaining in any public place in such condition or manner as it makes likely that the person doing so exists by soliciting or receiving alms.” It also defined it as “soliciting or receiving alms in a public place, whether or not under any pretence such as singing, dancing, fortune-telling, performance or offering any article for sale.” [Section 2] What happened to those found begging? They were to be taken off the streets and the law required they be sent to detention centres. Section 6 of the Bombay Act declared that persons found begging for the first time be detained for at least one year in a Certified Institution, which could extend to three years. Second-time offenders faced a mandatory detention period of ten years, with a possible prison sentence.

The state saw the main problem being addressed through the law as one of organised crime – rackets being run by rich people who forced people to beg for a living. The anti-begging laws were driven by a deterrence logic to put an end to these rackets. But, a look at the definition makes it apparent that it covered a very wide category of persons. It did not even need any specific act to invite criminality; dire poverty that was visible and witnessed in public places was enough. Thus, people were made criminals not because of what they did, but for showing the rest of us who they were. No matter: this is where the rehabilitative logic of the anti-begging law came in. Those who were deprived and forced to beg would be helped by the Certified Institutions. These Institutions were not prisons, but places offering vocational training to help make persons capable of providing for themselves without begging.

As with most laws, the main problems with the anti-begging law came in enforcement. The state did not attempt any systematic approach at solving the problem. Instead, the law became a convenient tool at the hands of law enforcement to clean up city spaces of people who “looked” poor, as had recently happened in Delhi before the Commonwealth Games in 2010. The people most often caught and brought before courts were rarely part of criminal gangs, but people forced to beg out of extreme poverty and lack of employment opportunities. Courts justifiably refused to institutionalise them by exercising pardon powers conferred by the statute [Section 5]. The Certified Institutions themselves had come to be mired in controversy over time. Social activists and researchers complained that detention centres were no better than prisons and had no functional vocational training facilities. The state disagreed, and instead complained that courts did not send convicted beggars to Certified Institutions to facilitate rehabilitation. Ultimately, in 50 years of being on the statute books in Delhi, neither the deterrent nor rehabilitative potential of anti-begging laws had been realised.

The Constitutional Case

The Delhi High Court decision of 2018 was not the first serious discussion on anti-begging laws in India. In an earlier paper, Usha Ramanathan documents significant parts of the advocacy against such legislation. She notes that Delhi was the site of serious debates on the validity and usefulness of this law in the 1980s, based on pioneering work done by a team at the Law Faculty of Delhi University. The team studied the operation of anti-begging laws to point out various problems in enforcement, arguing that it was doing much to harm rather than help the poor. Subsequently, a writ petition was filed in the Bombay High Court in 1992, challenging the constitutionality of the anti-begging law. A Committee was setup in pursuance of that petition, which conducted studied the law to recommend it be radically re-shaped, as those forced to beg “ought not to be treated as offenders of the law. They need a healing touch of the protective law, not the deterrence of criminal sanction.”

In Delhi itself, in 2006 a single judge of the High Court mused about constitutional arguments while deciding a revision petition in Ram Lakhan [137 (2007) DLT 173]. Justice B.D. Ahmed came down heavily against the order of the lower court challenged before him where the Metropolitan Magistrate had described the beggar as “raising his front paws” rather than hands. Justice Ahmed also tempered the force of the anti-begging law but could not rule on its constitutionality in revision proceedings. This did not stop him from discussing the topic, though, and he noted how criminalisation of begging seemed contrary to the right to freedom of speech and expression guaranteed under Article 19(1), as well as a clear violation of the right to life safeguarded by Article 21.

The Division Bench decision in Harsh Mander v UOI builds on these cues. It held the provisions criminalising begging contrary to Article 14 and Article 21 of the Constitution. It notes that failure to distinguish between voluntary and involuntary begging renders the classification arbitrary, the wide definition of begging made the law over-inclusive in scope, all of which made the provisions “manifestly arbitrary” and contrary to Article 14 [Paragraphs 14-19]. The Court then moves on to Article 21: detention of persons to “ascertain the cause of poverty” is held contrary to Article 21 [Paragraph 20]. This is followed by a long exposition of the “contours” of that right [Paragraphs 21-26], possibly to make the claim that as the state is responsible for alleviating poverty, criminalising it is not the right answer [Paragraphs 27-31]. Finally, it reiterates that legislation penalising persons “compelled” to beg is in the “teeth of Article 21” [Paragraph 33]. The Court also claimed another reason for reading down these provisions – the wastage of public funds as Certified Institutions were lying unused [Paragraph 39].

Notably, in striking down the several portions of the anti-begging law, the High Court faced no real opposition from the government – both the erstwhile Congress regime and the current Aam Aadmi Party government agreed that the law was outdated and could go. Perhaps this is responsible for the paltry reasoning on display in the judgment which could have just been a consent decree. I highlight two problems. First, the decision does not discuss Article 19(1) claim even though it was made before the Court. In doing so, does the Court indirectly support the idea of begging itself not being protected speech? By refusing to discuss the argument altogether, we are left to wonder. Second, there is much to be considered on the aspect imposing constitutional limits on criminalisation of conduct per se, as the Supreme Court had been considering recently in petitions challenging the validity of Sections 377 and 497 of the Indian Penal Code, 1860. As was discussed in context of the adultery hearings, the legal challenge can be solely based on arbitrary classifications, or can be about whether the underlying conduct should be criminal, and courts must be clear in how they treat these separate issues. The High Court does not provide this clarity, and its lack of analysis is even more problematic in light of the remarks made by the Court at the end, where it stated that a well-crafted legislation criminalising “specific types of forced beggary” and for curbing the “racket of forced begging” might survive constitutional scrutiny [Paragraphs 36, 46].

Conclusions

Compare this decision in Harsh Mander to the 2009 decision in Naz Foundation, where contested claims helped the Delhi High Court to fully explore various arguments, in a decision which continues to be celebrated for its visionary approach. Perhaps because there was no real contest at the bar, and the speed with which the verdict was delivered (the judgment was reserved on August 7), the decision in Harsh Mander does not scale the heights of Naz Foundation, and I highlighted how the High Court failed to fully discuss the legal issues at the heart of the case. Even so, the decision in Harsh Mander does share the truly awesome transformative potential that Naz Foundation also had. Since criminalisation of begging is done in 20 states, and the underlying legal provisions are either identical or nearly-identical to all of them, the Delhi High Court’s decision in Harsh Mander is poised to either stand out like a sore thumb, or spark nationwide reform. I sincerely hope it is the second.

 

Death by a Thousand Cuts: Freedom of Speech, Injunctions, and the Ramdev Affair

On 23d July, the Supreme Court passed an order on an appeal from the Delhi High Court’s decision to issue an ad-interim injunction upon the publication of the book “Godman to Tycoon – The Untold Story of Baba Ramdev.” On the submission of counsel, the Court requested the Delhi High Court to decide the case by the end of September. The Ramdev Saga – for it has not rumbled on for more than a year – is a stark illustration of how, on the subject of freedom of speech, different levels of the judiciary treat this fundamental right with an indifference that borders on contempt.

Let us briefly review the history of Godman to Tycoon’s entanglement with the Courts. To recall, this is a biography of Baba Ramdev, the yoga guru and business entrepreneur who, by any account, is a hugely influential figure upon the country’s political stage. After the book was published Ramdev’s lawyers sought moved for an ex parte ad-interim injunction before a Delhi trial court, and were granted the injunction on 4th August, 2017 (an ex-parte ad-interim injunction, by definition, is passed without hearing the other side). The injunction remained operational, and two months later, in October 2017, the author appealed to the Sessions Judge. It took five months (!) for arguments to conclude, and at the end of April, the Sessions Judge lifted the injunction, observing – among other things – that the author had argued that the biography was based on factual material, and that Ramdev himself was, indisputably, a public figure. Ramdev appealed to the High Court, and the single judge (Justice R.K. Gauba) restored the injunction on 10th May. That remains the situation today. It is now one year, and – thanks entirely to the Courts – the book has remained under an injunction for all but ten days, and without any finding on merits.

Judicial injunctions – especially those passed at the ad-interim stage – are devastating weapons against free speech. By preventing the publication and distribution of a book, they choke off and distort the “marketplace of ideas” at its very source. Contrary to a penalty imposed upon a speaker or a writer after a full-fledged trial, injunctions suffocate speech at the very outset. For these reasons, some scholars have (albeit controversially) compared them to “prior restraints” on speech (e.g., the governments banning books). Whether or not a judicial injunction is equivalent to a book ban, however, it is at least clear that its impact upon a fundamental right as foundational as free speech requires a court to exercise great caution before it issues injunctions.

Ironically, it is the Delhi High Court that has been most sensitive to this (rather basic) point. In Khushwant Singh v Maneka Gandhi – a judgment that Justice Gauba appears to have been singularly unaware of – a division bench of the High Court refused Maneka Gandhi’s application for an injunction upon a chapter of Khushwant Singh’s autobiography that dealt with the Gandhis. Maneka Gandhi had argued that the contents of the chapter were both defamatory, and impinged upon her privacy. Crucially, Justice Kaul observed:

… the respondent has already chosen to claim damages and her claim is yet to be adjudicated upon. She will have remedy if the statements are held to be vulgar and defamatory of her and if the appellants fail to establish the defense of truth.

We are unable to accept the contention advanced on behalf of the respondent by Mr. Raj Panjwani that if the statements relate to private lives of persons, nothing more is to be said and the material must be injuncted from being published unless it is with the consent of the person whom the subject matter relates to. Such pre-censorship cannot be countenanced in the Scheme of our constitutional framework.

One aspect is very material – a categorical assertion of the author to stand by his statement and claim to substantiate the same. In such a situation interlocutory injunction restraining publication should not be granted.

There is no doubt that there are two competing interests to be balanced as submitted by the learned counsel for the respondent, that of the author to write and publish and the right of an individual against invasion of privacy and the threat of defamation. However, the balancing of these rights would be considered at the stage of the claim of damages for defamation rather than a preventive action for injuncting of against the publication itself.

We do not think it is a matter where the author should be restrained from publishing the same when he is willing to take the consequence of any civil action for damages and is standing by what he has written … there is no question of any irreparable loss or injury since respondent herself has also claimed damages which will be the remedy in case she is able to establish defamation and the appellant is unable to defend the same as per well established principles of law.

Justice Kaul’s crucial insight was that in civil suits for defamation or breach of privacy, where monetary damages are claimed, the “balancing” between the freedom of speech on the one hand, and an individual’s right to reputation and to a private life on the other, is to be struck through a final judgment on merits. This is especially true when the writer or speaker stands by her words, and is willing to defend them through the course of a trial. Granting an injunction before trial – and thereby putting the book out of circulation – would effectively censor the speaker, and prejudge her legal defences before she even had a chance to make them. On the other hand, the individual alleging defamation or breach of privacy would always have a remedy open to her if she was able to prove her case – that of monetary damages.

Justice Kaul’s observations were developed in great detail a few years later, in the famous Tata v Greenpeace judgment. This case involved a request for an injunction upon a computer game that, the plaintiff claimed, maligned its reputation. Embarking upon an exhaustive survey of common law, Justice Bhat summarised the position as follows: the foundational value of freedom of speech in a democracy required that a Court should be extremely slow to grant an injunction pending trial. In particular, a Court ought to refrain from doing so if the writer or speaker puts forward a defence, and is willing to stand trial. Only if the defence is prima facie frivolous or unsustainable, should the Court grant an injunction. Justice Bhat noted that this had been the position in common law and, after the passage of the Indian Constitution and Article 19(1)(a), applied with even greater force.

When you apply these principles to Justice Gauba’s “order” of 10th May 2018, its staggering ignorance of the law is evident. The Learned Judge observes that:

The contents of the book to which exception is taken in the plaint of the petitioner, some of which have been extracted, prima facie, do seem to carry insinuations as are likely to harm the reputation of the petitioner in public esteem. In her written statement, the author of the book (respondent herein) while raising preliminary submissions and objections has claimed that the statements in the book “can be justified”, they having been penned with “journalistic objectivity” in fair and impartial manner, and “in good faith for public good” not being defamatory. The written statement of the publisher (respondent in these petitions), inter alia, states that there is “no malice or personal grudge” against the petitioner as an individual, the contents of the book representing “only reported true facts as gleaned from publicly available documents and merely contains legitimate and reasonable surmises and conclusions drawn therefrom” and further that every statement appearing in the book is “either itself a demonstrably true statement of fact, or a reasonably and legitimately-held opinion or inference of the author of the book.” In sharp contrast, in the impugned publication the publisher has added a disclaimer stating that the views and opinions expressed therein are “the author’s own” and further that the facts contained therein “were reported to be true as on the date of publication by the author to the publishers of the book, and the publishers are not in any way liable for their accuracy or veracity.” The use of the expressions “surmises” and “inferences”, coupled with the disclaimer, shows the matter requires deeper scrutiny to test the veracity of the claim of the author as to the truth.

First of all, it is difficult to understand what the “sharp contrast” is between the author and the publisher’s statements. Secondly, it is difficult to understand what the disclaimer has to do with anything. But thirdly – and most importantly – the judgment concedes that the matter requires “deeper scrutiny”, but proceeds to injunct publication in the meantime anyway! If Justice Gauba had perhaps taken some time out to visit the Judges’ Library and consult the precedent of his own Court, he may have understood how this reasoning inverts the entire system of values that underlies the Constitution, placing the burden upon a writer to justify her exercise of free speech, instead of upon those (in this case, a very powerful public figure) who seek to silence her.

If the Supreme Court’s request is adhered to, and the case decided by the end of September, the book will have been injuncted for fourteen months before any kind of review on merits is completed. In this case, it perhaps doesn’t matter, because Ramdev is not going to depart from the public stage any time soon. In other cases, however, time-bound publication is of the essence, and an injunction of this kind that is then left to the vagaries of our snail-paced judicial system, can destroy the entire purpose of writing the book in the first place.

Unfortunately, however, despite the clearly-reasoned judgments in Khushwant Singh and Tata v Greenpeace, trigger-happy judicial injunctions are the norm rather than the exception. In a post written two months ago, while examining some other egregious orders from various High Courts, I had made the following observation:

These “interim” orders, which have the luxury of being virtually unreasoned because they are granted before any kind of substantive hearing, effectively kill the speech in question, given how long legal proceedings take in India. They are effectively decisions on the merits without any kind of examination of merits, and they choke off the marketplace of ideas at the very source. In developing a philosophy of “gag first, ask questions later“, the High Courts seem to be blissfully oblivious of the fact that what is at stake is a foundational fundamental right (Article 19(1)(a)); this is not some civil suit where you direct “status quo” pending final resolution. The more that “gag first, ask questions later” becomes standard judicial practice, the more Article 19(1)(a) will be reduced to a dead letter – and the doing of the deed will not be by the executive, but by the judiciary.

The problem is less one of doctrine – the doctrine exists – and more one of attitude. Judges at all level of the judiciary tend to view the freedom of speech more as an annoyance or a bother, rather than a foundational democratic value. To them, Victorian ideas of the sacrosanctity of “reputation” continue to hold overriding importance (this was visible, for example, in the Supreme Court’s criminal defamation judgment). As long as that attitude continues to prevail, notwithstanding the finely-reasoned judgments of a Justice Kaul or a Justice Bhat, that excavate and lay out all the principles in detail, the “gag first, ask questions later” judicial culture will continue.

Another possible alternative is for the Supreme Court to step in and clearly delineate the standards to be followed when granting or withholding an injunction in a free speech case.

And who knows, in the days to come, it might even be the Ramdev case that provides it with that opportunity.

The Meaning and Limits of Democracy under the Constitution: Perspective on NCT of Delhi v Union of India

On this blog (here) we recently analysed the Supreme Court’s verdict in the NCT of Delhi v Union of India. Now that the dust has settled on the judgement and its immediate outcomes, it is worth considering where the judgement stands in our constitutional jurisprudence, the idea of democracy under the constitution.

The crux of the dispute in NCT of Delhi came down to an interpretation of Article 239AA. The article creates a legislature directly elected from the constituencies of Delhi, led by a council of ministers that are “collectively responsible” to the legislature This council will “aid and advise” the Lieutenant Governor (LG). Article 239AA(4) stipulates that in the event of a disagreement between the council and the LG “on any matter”, the LG can refer the disagreement to the President. As we know, the Supreme Court held that the “aid and advice” of the council of ministers is binding on the LG, whose express approval is not required for every initiative of the Delhi government. The LG can disagree on certain matters (we will discuss this later). In interpreting Article 239AA, the Supreme Court relied on certain “principles” that it used to justify its interpretation, chief amongst these was democracy.

In this post, I seek to examine the principle of democracy espoused by the court. The court’s judgement provides a defence of democracy that stems from the political legitimacy created by every individual having a vote, and thus a say in the running of government. The court uses this foundational principle to outline what it means to be democratic within our constitutional framework. Ultimately, in interpreting when the LG can disagree with the council of ministers, the court also highlights the limits of the political legitimacy that voting creates. In other words, the democratic nature of the constitution requires all citizens to be able to influence government. The views of the citizens form the inputs of the governmental decision-making process, and all views must be heard for the decisions of government to be legitimate. However, sometimes, the needs of the citizens must be balanced with the need for the continued existence of the government itself.

The political legitimacy of democracy

Broadly speaking, the constitution uses two methods to ensure the State does not dominate its citizens: (1) by ensuring government policies treat all citizens with equal respect; and (2) ensuring all views are heard when determining government policies. An example of the former would be a fundamental rights challenge under Article 14, while an example of the latter would be preserving democracy, free speech, and free and fair elections. It is this second limb that the court focuses on in NCT of Delhi judgement.

Without making the theoretical case for democracy, some context of the republican notion of democracy is necessary to appreciate the court’s observations. In a pluralistic society, the spectrum of ideas and needs of the citizenry is immensely wide. However, some amount of convergence or coordination is necessary to decide how society should function. If we acknowledge that all citizens are autonomous moral agents worthy of equal respect, then the decision-making procedure must respect the ideas and needs of all agents equally. Democracy through voting, permits exactly this. In the words of the political philosopher Richard Bellamy, it offers a process that “acknowledges the equal moral right of all citizens to be regarded as autonomous reasoners”. In the NCT of Delhi decision J. Misra espouses exactly this justification for democracy:

The cogent factors for constituting the representative form of government are that all citizens are regarded as equal and the vote of all citizens, which is the source of governing power, is assigned equal weight. In this sense, the views of all citizens carry the same strength and no one can impose his/her views on others” (⁋50)

Similarly, when outlining the underlying principles of the Constitution, J. Chandrachud notes, “One of the essential features of constitutional morality, thus, is the ability and commitment to arrive at decisions on important issues consensually. It requires that “despite all differences we are part of a common deliberative enterprise” (⁋9). It is crucial to understand that arriving at decisions consensually does not necessarily mean everybody agrees with the outcome of the decision, rather that everybody acknowledges the inherent legitimacy of the process used to make the decision. What the court is recognising is that the equal respect for all views grants legitimacy to the decisions taken by democratic means. Irrespective of whether you agree with the decision or not, it is the outcome of a process in which you had as much of a say as the next person (we will examine limits of this later).

A second crucial facet of democracy that the court highlights is political accountability, or how reflexive the State is to the needs of the citizens. J. Chandrachud defines accountability as, “the criterion of responsiveness to changes in circumstances that alter citizen needs and abilities… In other words, accountability refers to the extent to which actual policies and their implementation coincide with a normative ideal in terms of what they ought to be.” (⁋35) If the role of democratic voting is to determine the “needs and abilities” of the citizens in a society at any given time, then there must exist a direct link between those who vote and those frame laws. This accountability allows citizens to inform political representatives of their “needs and abilities” and most importantly, reject those representatives who do not frame laws that track the citizens “needs and abilities”. Obvious examples of this are not re-electing a representative, or at an indirect level, a ‘no-confidence motion’ against the government. But as we shall see, the principle of accountability is far more widespread. As J. Chandrachud notes, “The ability of citizens to participate in the formation of governments and to expect accountable and responsive government constitutes the backbone of a free society.” (⁋11)

The democratic credentials of the council of ministers and the LG

Recall that Article 239AA creates a legislature elected from the territorial constituencies of Delhi, which is led by a council of ministers. By contrast, the LG is appointed by President on the advice of the Central Government. Also recall that the High Court ruled that all initiatives of the Delhi government needed the express approval of the LG. This conclusion of the High Court directly contradicts the view of democracy espoused by the court, as the LG neither represents the “needs and abilities” of the citizens of Delhi, nor is he accountable to these citizens. However, the LG is the appointee of a body that is answerable to the people, the central government. If the power exercised by every appointed official was considered unconstitutional on the ground that they were not elected or directly answerable to the people, the government would come to a halt. The court’s final holding is therefore not that the LG is undemocratic, rather than the council of ministers have stronger democratic credentials which cause power to vest in them.

The court argues that no power under the Constitution is conferred unless it is ultimately accountable to the people. How true this is, given the recent antics by governors is a debate for another day, but the court states,

The omnipotence of the President and of the Governor at State level — is euphemistically inscribed in the pages of our Fundamental Law with the obvious intent that even where express conferment of power or functions is written into the articles, such business has to be disposed of decisively by the Ministry answerable to the Legislature and through it vicariously to the people, thus vindicating our democracy instead of surrendering it to a single summit soul.”

In other words, where constitution vests power in two posts, there exists a presumption in favour of the power ultimately vesting in and being exercised by individuals or offices directly responsible to the citizens. This presumption is based on two parliamentary doctrines that are based on the twin ideas of all voices being heard and political accountability. These are the doctrines of “aid and advice” and “collective” responsibility.

Aid and Advice

The first constitutional doctrine discussed by the court is that of “aid and advice”. The constitution stipulates that the President, Governor, and at the level of the Union Territory, the LG, shall act on the “aid and advice” of their respective council of ministers. The question in NCT of Delhi was whether the “aid and advice” of the Delhi council of ministers was binding on the LG. A detailed discussion on this doctrine can be found in an earlier post on the High Court judgement (here). However, in the context of our current discussion on democracy it is important to understand the role the doctrine plays in a parliamentary democracy.

J. Chandrachud notes, “The doctrine of aid and advice enhances accountability and responsive government – besides representative government – by ensuring that the real authority to take decisions resides in the Council of Ministers, which owes ultimate responsibility to the people, through a legislature to whom the Council is responsible.” (⁋43). To ensure that the unelected official in whom the Constitution appears to vest power (e.g. the President, or the LG) acts in accordance with the “needs and abilities” of the citizens they govern, this unelected official is bound to act in accordance the “aid and advice” of elected individuals. The legitimacy of the “aid and advice” of these elected officials comes from the fact that all citizens had an equal chance to choose these elected officials based on the interests the officials represented. (This raises the question, why have an LG at all? Which I address in the last section of the post.)

Collective Responsibility

Collective responsibility means two things: (1) that every minister in government is responsible for her ministry; and (2) all ministers in parliament are collectively responsible for the policies of the government as a whole (the government here is not the entire legislature, but rather the ruling party or coalition). Thus, each minister is vicariously liable for the actions of all the other ministers in government. The reason why parliamentary democracy requires the principle of collective responsibility is best articulated by J. Chandrachud when he notes, “Collective responsibility governs the democratic process, as it makes a government liable for every act it does.” (⁋37) It makes the government, “continuously accountable for its actions, so that it always faces the possibility that a major mistake may result in a withdrawal of Parliamentary support” (⁋33).

By making the entire government responsible for the act of each minister, collective responsibility greatly enhances the liability of government. A single wayward act of a minister can potentially threaten a government’s rule, prompting a no-confidence motion. This results in both intra-governmental accountability, and accountability to the direct representatives of the citizens. As J. Chandrachud concludes, “Collective responsibility, as a constitutional doctrine, ensures accountability to the sovereign will of the people who elect the members of the legislature.” (⁋50).  Similarly, J. Mishra states, “the ultimate say in all matters shall vest with the representative Government who are responsible to give effect to the wishes of the citizens and effectively address their concerns.” (⁋267)

This highlights the second aspect of democracy discussed above, that of political accountability. It is not sufficient that an office of power is vicariously answerable to the people. Democracy demands a direct nexus between those in power and the citizen’s whose needs and values they represent. The Central Government that appoints the LG represents the needs of the entire country, of which Delhi is a minute fraction. If the constitution demands democratic government for Delhi, it necessarily requires a government that is directly accountable to the citizens of Delhi. The council of ministers possess this accountability, and the LG does not.

The limits of democracy

This post has so far focussed on the ­legitimacy derived from the inputs to the democratic decision-making process. Democracy ensures that all citizens can voice their views equally prior to taking any decision that governs all citizens. However, as has been noted before on this blog (here) we also care about the outcomes of the democratic decision-making process. The discussion for whether democracy needs counter-majoritarian restrains is beyond the scope of this post. However, the NCT of Delhi judgement is notable in delineating the limits of political legitimacy within the constitutional framework.

This conflict is best highlighted by J. Chandrachud when he notes,

The NCT represents the aspirations of the residents of its territory. But it embodies, in its character as a capital city the political symbolism underlying national governance. The circumstances pertaining to the governance of the NCT may have a direct and immediate impact upon the collective welfare of the nation.” (⁋55)

The conflict touched upon by the court is not merely about the distribution of powers between the elected government of Delhi and the Central Government. It is highlighting that for all the political legitimacy that democratic inputs generate, there exist certain areas of debate where the democratic process cannot be allowed to reign supreme. A common example of this is the denial of referendums and even popular government to areas that threaten to separate from the union. The court is alluding to the fact that the entire constitutional scheme is situated in a State-centric view of the world, and where the idea of democracy may be used to question the existence of the state itself, a delicate balance must be struck. J. Chandrachud articulately captures this tension when he notes, “Each of the two principles must be given adequate weight in producing a result which promotes the basic constitutional values of participatory democracy, while at the same time preserving fundamental concerns in the secure governance of the nation.” (⁋55).  Despite Article 239AA granting a democratically elected government to Delhi, Delhi is still of crucial importance to India as a State, practically and symbolically. Thus, there are limits to the legitimacy generated by granting each citizen of Delhi a vote.

Conclusion

Earlier we noted that ensuring the voice of all citizens influences the government’s decisions, and the government is accountable to this influence, is a crucial method of restraining governmental power. Thus, the decision in NCT of Delhi should be considered on par with any landmark fundamental rights case in terms of securing freedom. By highlighting democracy as an underlying principle of the constitution and utilising it to interpret a provision that enabled representative governance, the court has restrained the ability of the government (in this case the Central Government) to disregard the “needs and abilities” of the people. How the principles of the equality that voting is founded on and accountability that parliamentary processes create will influence future decisions of the court will be interesting to see. For example, would the anti-defection law survive a basic structure challenge based on the principles articulated here? More realistically, one hopes that in future cases of electoral reforms/restrictions, campaign finance and parliamentary affairs, the court does not forget these principles.

Guest Post: The Adultery Challenge – Three Roads Ahead

(This is a guest post by Abhinav Sekhri.)


The Supreme Court of India is currently hearing a petition filed by Joseph Shine questioning whether the offence of “adultery”, defined and punished under Section 497 of the Indian Penal Code, 1860 [IPC], and associated procedural rules under Section 198(2) of the Criminal Procedure Code 1973 [Cr.P.C.], are constitutional. The hearings are in full swing, and recent media coverage suggests that the Court is keen on definitely doing something, unlike the previous occasions when the offence was challenged and its validity upheld. The question then is, what might the Court do? This post draws on an article I published some time ago discussing the legality of adultery laws and poses the choices before the Court, discussing the potential pros and cons of going down any of those paths. But first, a quick recap on the law itself.

The Law on Adultery

Section 497 IPC says:

Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

It criminalises marital infidelity, but not all kinds. The criminal kind needs sexual relations between a person (commonly a man) and the wife of another man, without his consent or connivance. It is not a crime if you cheat on your spouse with an unmarried woman. Further, if you do cheat on your spouse with a married woman, that wife is deemed to be a victim whatever the circumstances. This separate treatment goes further and becomes more problematic when we consider the special procedural rules installed for registering adultery cases.

Indian criminal law follows a principle that anyone can start the criminal law machinery. This rule has exceptions, found in Sections 190-199 of the Criminal Procedure Code, 1973 [Cr.P.C.] (in respect of IPC offences). Section 198 Cr.P.C. creates an exception by restricting persons who can start cases about “Offences against Marriage”, that are defined and punished in Chapter 20 of the IPC. Perhaps respecting the private nature of the underlying conduct, Section 198(1) needs complaints by persons aggrieved by the offence to start cases. It goes on to then tell us who the law considers as aggrieved, and Section 198(2) says:

For the purposes of sub- section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the [IPC]: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.

The wife is deemed to be the victim of adultery in Section 497 IPC. But she isn’t aggrieved by the offence to be able to trigger the legal machinery. That aggrieved person will be her husband, and if he isn’t around, his nominee. That is the strange reality of the law on adultery: a victim isn’t aggrieved to exercise her right of launching private prosecution. It is a reality that has survived judicial scrutiny on three prior occasions, but is now again in the spotlight, perhaps for the last time.

The Different Ways of Framing the Problem

Having seen what the law on adultery says, it’s time to turn to what are the problems it seemingly poses. There are different ways to frame this problem, and broadly one could frame the question thus:

  • Type I: Is Section 497 IPC illegal because adultery shouldn’t be a crime at all?
  • Type II: Are Section 497 IPC and Section 198(2) Cr.P.C. illegal because they perpetuate unconstitutional gender-based discrimination?
  • Type III: Is Section 497 IPC illegal because it differentiates within adulterous relationships without any rational basis for that classification?

Historically, the Supreme Court has dealt with the adultery laws on three different occasions. None of these involved a broad Type I Challenge. Instead, the Court has mostly faced Type II Challenges. In Yusuf Abdul Aziz [1954 SCR 930], the petitioner argued that Section 497 IPC was unconstitutional because it unfairly discriminated between men and women – exempting women from punishment. In Sowmithri Vishnu [(1985) Suppl. SCC 137], the petitioner argued that both Section 497 IPC and Section 198(2) Cr.P.C. were bad for unfairly discriminating on the basis of sex. There was a Type III challenge too, where the petitioner argued that Section 497 IPC didn’t have any basis to only punish one kind of adulterous relationship. In V. Revathi [AIR 1988 SC 835], again only a Type II Challenge was made as the petitioner argued that Section 198(2) Cr.P.C. was unconstitutional for unlawfully discriminating against women by not considering them “aggrieved” to trigger the legal process.

Why? Why did nobody make it their primary claim that the Supreme Court should Section 497 and Section 198(2) down because adultery should not be a crime? It was because, at some fundamental level, all these petitioners and their counsel accepted that the Supreme Court is not the place to make these arguments. It is not the Court’s business to decide whether or not certain conduct should be a crime. The decision to criminalise is ultimately a reflection of what conduct the society considers bad enough for it to warrant censure and sanctions. Since society elected a legislature to reflect these, and other choices, the decision to criminalise is traditionally identified as a legislative choice. Parliament decides whether the conduct should be criminalised. When it expresses that will through a statute, the courts are bound to examine the validity of that legislative measure against the minimum barometers set out by the Constitution.

Thus, the previous challenges to the adultery provisions were reflective of this traditional approach: petitioners approached the Court to argue that the manner in which conduct had been criminalised did not pass constitutional muster. The present petition in Joseph Shine is also framed as a traditional Type II Challenge. It argued that the adultery laws perpetuate unconstitutional discrimination, seeking a review of the previous cases where the Court had held otherwise. The Supreme Court issued notice last year and agreed to go down this path primarily because it had a problem with the provisions not being gender neutral. But, going by the news coverage, the Supreme Court now seems to be mulling about whether it wants to engage in a Type I Challenge instead and consider why adultery should be a crime at all. Notice the assumption underlying the question itself: there is a kind of conduct which a legislature cannot make a crime, and the Court can identify this category.

While adultery cases did not involve Type I Challenges, such Challenges to penal statutes themselves are not totally absent from the history of Indian constitutional law. In fact, a number of cases were filed in the 1950s against new social welfare legislation which used criminal punishments against those violating licensing laws, arguing that such conduct could not be a crime. The Court agreed that a category of conduct beyond the scope of criminalisation does exist, and it located this within the Constitution itself in Article 19 rights to freedom read together with its many restrictions. Thus, in Harishankar Bagla [1955 SCR 313], the petitioner unsuccessfully argued that licensing laws on cotton were unconstitutional as they violated the rights guaranteed under Article 19(1)(g) and (f). Beyond Article 19, what else might be identified in the category of conduct that can’t be penalised? The intuitive answer is the “right to life and personal liberty” guarantee under Article 21. While the Maneka Gandhi reading of Article 21 only did this indirectly by requiring laws to be “just, fair, and reasonable”, the recent recognition of a right to privacy within Article 21 surely works as a basis to make Type I Challenges.

The Implications of a Narrow or Broad Approach

A Type II Challenge in Joseph Shine would mean considering whether or not the statutes perpetuate illegal discrimination. This would involve testing the law on the basis of Article 14, and also the Maneka Gandhi version of Article 21 to see whether the adultery laws are “just, fair, and reasonable”. But if the Court sticks to its guns and makes the adultery petition a Type I Challenge, then it must do more. It must decide whether consensual sexual relationships between adults can be criminalised, even if they involve marital infidelity. It cannot answer this question by testing the mechanics of the statute under Article 14, but will have to make a substantive inquiry, turning to Article 19(1)(a) or perhaps the right to privacy under Article 21, and the reasonable restrictions to these rights. Thus, the Court would have to decide whether criminalising adultery to protect the “sanctity of marriage” as the Central Government seems to argue, is a purpose falling within the “decency of morality” clause of Article 19(2). Similarly, it would have to engage with Puttuswamy and the separate opinions therein to establish how it will test the state intervention into this sphere of conduct. The statutory provisions on adultery can arguably be found constitutionally wanting in both scenarios. So what should the Court do in this situation? Play it safe and stick to a traditional approach based on the equality clause, or enter the substantive debate on criminalisation. There are pros and cons to both options.

If the Court decides to play it safe, then it can set the record straight on the previous cases. Moreover, it can avoid a debate about what the Court thinks is conduct worthy of criminal sanctions; an expression of societal mores traditionally expressed through elected representatives. But since there are constitutionally protected spheres of conduct, the Court can’t fully avoid that question. If it does, then, decide to go ahead and address the substantive issue fully, it can lead to a Constitution Bench of the Supreme Court clearly identifying a set of basic principles that legislatures must adhere to while drafting criminal statutes, and locate these principles within the constitutional text. For instance, if the Court holds consensual sexual relations between adults are beyond the pale of criminal law, it can do so by locating this conduct within the scope of Article 19(1)(a) [right to freedom of speech and expression], or Article 21. Arriving at these basic constitutional minimums would potentially affect many other offences which involve similar conduct, as litigants get emboldened to file petitions. For instance, the principle would extend to excluding this entire category of conduct from the realm of Section 377 IPC, the provision currently criminalising “unnatural sex”, even if it might be consensual and between adults. Ultimately, in the long run, the Court can trigger a fruitful late-spring cleaning of the Augean Stables that are the variety of crimes punishable under many statutes across India.

But there is another side to that coin: the Court will now invite litigation challenging the legality of substantive crimes and further trample upon traditionally legislative functions. Already, the Court has broadened its jurisdiction to assume plenipotentiary powers and don the role of the White Knight in this horribly corrupt India. As Anuj Bhuwania argues, the Court has increasingly become inscrutable in carrying out this role, rendering poorly reasoned judgments or not rendering judgments at all or governing by a stream of non-reasoned orders, to slowly become part of the problem itself. This recent history suggests that opening up the gates for litigation will only lead to more chaos. And there is more basis for worry in this particular sphere of judicial review of substantive criminal law issues. The last major opportunity the Court had to engage in this kind of analysis was when it was asked to decide the constitutionality of the defamation offence, but it failed to address core legal issues and hid behind a veil of prose, rendering that decision only fitfully useful in future cases. The consequences of judicial intervention in Joseph Shine – regardless of the verdict – are not going to be so unremarkable given its status as a Constitution Bench decision.

Conclusion 

Recently, my friend and fellow skeptic Gautam Bhatia in an op-ed laid out a rival approach to the “narrow approach” where the Court sticks to the legal issue to avoid the “real” ones. This is what he called the “transformative approach”, where the Court is fearless enough to “erase and remedy long-standing legacies of injustice”. I have reservations in how Bhatia imagines the Court should go about this task, but Bhatia is right in his underlying premise, that if the Court has already broken down the barriers in terms of traditional power-relations between the different branches of government in India, it might as well do something useful. What holds me back from cheering him on is that there is too much to show that the manner in which the Court carries out its core function of answering legal issues – if it still is the core function – makes a transformative approach a double-edged sword. By inviting the Court to widen its range of targets, litigants run a risk that the Court is not going to stick to the identified targets. It will pick and choose which ones it wants to address, how to address them, and whether it wants to bring in new targets which you only find out while reading the judgment. Thus, at heart I yearn for more principled criminalisation of conduct in India, something that the Constitution Bench decision in Joseph Shine can help realise. But history often repeats itself, and that history tells me that the kind of reasoned decision needed to help realise this objective is unlikely to emerge. As I was reminded seeing the recent England-India test match: it is the hope that kills you.

 

Guest Post: On the Gendered Criminalisation of Adultery

(This is a guest post by Dr. Tarunabh Khaitan, discussing the constitutional challenge to adultery, which is presently being heard by a Constitution Bench of the Supreme Court.)


As the Supreme Court considers the constitutionality of a gendered criminalisation of adultery, is has the opportunity to reorient Indian fundamental rights jurisprudence in several significant, and necessary, ways.

Article 21

As Anuj Bhuwania has convincingly showed, the post-Emergency PIL-turn in the Supreme Court did nothing to fix the main weakness of our constitutional jurisprudence, represented by the now overruled judgment in ADM, Jabalpur—the refusal to take civil liberties seriously. Even as the Court became populist and developed a social rights jurisprudence, its record on civil liberties remained mixed at best.

Now, the Court has an opportunity to reinvigorate the guarantee of ‘personal liberty’ in Article 21 by underscoring firm liberal limits on the powers of the police state in relation to its citizens. It should also recognise that criminal law is a particularly blunt tool even when there is a genuine problem, and must be a tool of last resort (and must require very special justification). A robust articulation of personal liberty, and a rigorous proportionality test for its infringement will give the much-needed vigour to the guarantee of civil liberties protection under Article 21.

Article 14

While Article 21 should be the main vehicle for a finding of unconstitutionality in this case, the Court also has an opportunity to revisit its muddled Article 14 jurisprudence. In this chapter, I had argued that the arbitrariness doctrine under Article 14 confuses administrative law standards with constitutional review. I also showed that, contrary to what is commonly believed, the arbitrariness standard is usually deeply deferential to the state, and does not in fact leave Article 14 with sufficient bite. Finally, I argued that, at least with regard to legislative review, Article 14’s classification test should be reinterpreted in a less formalistic and less deferential manner than has hitherto been the case. In particular, the real-world impact of the classification, both material and expressive, should be part of the justification analysis under Article 14.

Article 15

The gendered dimension of the criminalisation of adultery also affords the Court with an opportunity–in conjunction with its anticipated judgments in the s 377 and the Sabrimala cases–to articulate a meaningful Article 15 jurisprudence. The criminalization of men only for adultery affords the court to identify that the disadvantage caused by discriminating can be both material as well as expressive. In three instant case, clearly the male adulterous partner suffers material and expressive disadvantage inflicted by criminalization. But even though she is not criminalized and may not therefore suffer material disadvantage, the expressive harm inflicted by the provision on women is significant. The symbolism behind the provision reflects attitudes that treat women as property of men. Section 497, IPC, which criminalises adultery, permits no other reading—it allows the husband to give his ‘consent or connivance’ to another man having sex with his wife, in which case no offence is committed. It is a collection of such social norms that support the institution of patriarchy, and their expressive force cannot be underestimated.

Furthermore, the provision also discriminates on the ground of marital status. But for the woman concerned being married, the offender would not have committed a crime. The social construction of gender norms is deeply intertwined with the norms surrounding marriage. Section 497 embodies a conception of marriage which entails the transfer of a woman (as property) from her father to her husband. Its gendered aspect cannot be separated from its connection with a particularly patriarchal understanding of the institution of marriage.

It is true that Article 15 is a closed list, and the Court has to do some creative interpretation to declare that ‘marital status’ is a constitutionally protected characteristic. There are two options before a progressive Court: either interpret ‘sex’ broadly to include ‘marital status’, given the deep sociological connection between the two. Courts in India, and elsewhere, have after all read pregnancy, maternity, sexual orientation, gender identity and other gendered characteristics as aspects of ‘sex’/’gender’ protection. A second alternative would be, as I argued in this paper, to read Article 15 as a sub-species of Article 14, and use the broader mandate of Article 14 to supply new grounds under Article 15. This second approach requires a caveat—while it is true that Article 15 is a sub-species of Article 14, the level of protection afforded under Article 15 is of a special character. Courts cannot continue to apply the same level of scrutiny to a law that distinguishes between sellers of tea and sellers of coffee (which is an Article 14 case, but not an Article 15 case), and one that distinguishes between Hindus and Muslims (which is an Article 15 case). This invites the Court to articulate a clear jurisprudence of the socio-political and economic conditions that elevate a characteristic for special protection under discrimination law (on this issue, see chs 2 and 3 of A Theory of Discrimination Law, especially pp 31-38 and 49-60).

Levelling-Up

To be clear, a finding of discrimination does not entail that the solution is to criminalise men as well as women. When two groups are treated differently, there are two ways of making them equal: either you bring the dominant group down to the level of the disadvantaged group (“levelling-down”) or you lift the disadvantaged group up to the level of the dominant group (“levelling-up”) (see, generally of A Theory of Discrimination Law, especially pp 153-4). It is clear that the right judicial response to discrimination in this case would be to level up by decriminalizing men, rather than level down by criminalizing women as well.


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

ICLP turns 5 || Changes

The Indian Constitutional Law and Philosophy turns five years old today. On the one hand, the Supreme Court has heard some truly fascinating and complex cases over the last few months. On the other hand, we have seen recent attempts to show that the fundamental rights chapter protects deities, and even more recently (today), we have seen the Supreme Court setting itself up as an extra-constitutional book censor. Perhaps this is an indication that the next five years will be as exciting – and frustrating – as the last.

My gratitude, as ever, to the blog’s readers, to the people who have commented on the posts and in emails, to those who have written guest posts, and to everyone else who has engaged here, in real life, and on social media.

The half-decade point seems a good time to ring in a change. I’m delighted to welcome Vasudev Devadasan as a fellow-contributor to ICLP. Vasudev has been a frequent guest-post contributor to the blog, and covered the Delhi Government case in some detail. He will henceforth be posting and writing on the blog in his own capacity. To avoid confusion of authorship, we will introduce bylines.

I am looking forward, as ever, to what this coming year brings for Indian constitutionalism.

Thank you to everyone once again.

Cheers.

Guest Post: Parliamentary Privileges and the Transformative Constitution – A Response to Karan Lahiri

(This is a guest post by Goutham Shivashankar.)


This post is a response to Karan Lahiri’s absolutely fascinating post, on the recent decision of the Supreme Court in Kalpana Mehta & Ors. v. Union of India & Ors. Lahiri argues that Chandrachud’s J.’s invocation of the idea of the “Constitution as a transformative document”, was incorrect in the context of legislative privileges. To Lahiri, Article 105 of the Constitution, which provides for powers, privileges and immunities of the Houses of Parliament, is an instance where the Constitution is not “transformative” – it rather creates “explicit continuities” with India’s colonial past. Lahiri then asserts that Article 105 is better viewed as provision that is a “gateway to transformation”, since its wording imbues the Parliament with transformative potential in defining its privileges. Thus, Lahiri’s argument has two components: (i) that the Constitution was not transformative on the issue of legislative privilege but was rather an explicit colonial continuity; and (ii) that Article 105 though not transformative in itself, was pregnant with transformative potential. This post is not very concerned with part (ii) of Lahiri’s argument. It does, however, engage with part (i) seriously. I argue that the Indian Constitution was transformative qua the issue of legislative privilege, in at least one sense of the term, and in exactly the sense that Lahiri asserts it not to be. Moreover, it certainly cannot be regarded as a “colonial continuity”. In fact, Article 105 radically reverses a significant feature of the colonial rule, i.e., the pre-eminence of British Parliament over the colonial legislatures.

Fixing Concepts – “Transformative Constitution” and “Colonial Continuity”

It would help to fix concepts a little here. What do we mean by a “transformative constitution” and “colonial continuity”?

 Transformative Constitution

 As I understand it, there can be at least two conceptions of a “transformative” statute or constitution. In one sense, it could simply mean that the law “stands transformed” by virtue of statute or constitution that is enacted, i.e., a new law is brought into force that represents a radical and clean break from the position of law that preceded it. Or it could mean that the statute or constitution “has a transformative purpose”, i.e., that a change in law is brought about that is purposed to have a transformative impact on its field of action. The first conception focuses on the change in the content of the law itself and asks if the law has transformed beyond recognition. The second conception focuses on whether the change in law (which may or may not in itself be radical) is purposed to transform something else (other than the law) radically.

Differentiating between these two conceptions of a “transformative constitution” has analytical utility. It recognizes the possibility that the parts of the constitution can be transformative in the former sense, i.e., it brings about a radical change in the content of the law, while not necessarily having a “transformative purpose”. Similarly, a transformative purpose could potentially be achieved through minor changes in the law that could not be regarded as transformative of the content of law.

In Kalpana Mehta, Chandrachud J., appears to use the “transformative constitution” in both senses. He states that the constitution’s “vision is about achieving a social transformationthat seeks to place the individual at the forefront of its endeavors” (transformative purpose). This transformative purpose is achieved by transforming the content of law. Thus, he states:

“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… … 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.

Thus, as noted by Chandrachud J., the conferment of fundamental rights to individuals was transformative in both senses of the word. It was purposed to achieve social transformation, and was transformative in the content of Indian law, by granting rights to individuals against the state in a radical, new way.

However, a law need not always be transformative in both senses of the term. In some cases, the content of law could stand radically transformed because of a preceding social transformation. Here, the law could stand transformed by a new “constitution”, but not with any transformative purpose. As I will seek to demonstrate here, the Constitution clearly transformed the “content” of the law of legislative privilege in India. Whether this change in the law’s “content” on legislative privilege was purposed to bring about social transformation of another sort, or whether it was occasioned by a preceding/underlying social transformation is less clear.

Colonial Continuity

It would also help to fix the meaning of the term “colonial continuity”. I should note that Chandrachud J. does not use this term, which Lahiri uses in his blog post. However, Lahiri is not clear on what he means by the term, though he indicates that Art. 105, by referring to the British House of Commons “establishes a colonial continuity”. If by this, he merely means that any constitutional provision referring to / establishing linkages with an institution of the erstwhile colonizer establishes a “colonial continuity”, then the concept does not really have much analytical utility. It says nothing about whether there was anything inherently “colonial” about the law on legislative privilege, and whether this “colonial” aspect of the law was “continued” by the Constitution. If, however, Lahiri means “colonial continuity” to refer to the continuation of a fundamental feature of colonial project, then Article 105 does no such thing, and Lahiri is incorrect in stating that it does. In fact, as I see, Article 105 is a radical break from the colonial law on legislative privilege in India, and the constitution fundamentally “transformed” the law in this regard, as I will illustrate below.

Chandrachud J. on legislative privilege

 Chandrachud J. seems to assume in his opinion that the law on parliamentary privileges as enacted by the Constitution was purposed to certain ends of social transformation, i.e., the assertion of rights and access to justice. This is clear when he states:

 

“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.”

He provides little evidence to substantiate any such transformative purpose to Article 105 of the Constitution, and this is rightly pointed out by Lahiri in his post. Thus far, Lahiri’s analysis is excellent. I also have no quarrel with the larger point which Lahiri makes, i.e., that there must be rigour in invoking the notion that the constitution is a “transformative document” when it is sought to be used as an interpretive tool. When invoking the “transformative constitution” as an aid to interpretation, judges must necessarily ask: (i) whether or not that part of the Constitution that they are interpreting was transformative: (ii) in what sense was it transformative, i.e., did it transform the content of pre-existing law? (or) did it have a transformatory purpose?. The “transformative constitution” should not be used as a carte blanche to interpret any and all parts of the Constitution in a free-wheeling liberal way. Indeed, Lahiri’s is an important cautionary note struck at a time when the idea of the “transformative constitution” appears to be gaining substantial recognition. Too often have Indian courts and academics used flowery language to mask flawed logic and lazy reasoning.

Why Article 105 cannot be regarded a “colonial continuity”

After correctly identifying Chandrachud J’s failure to identify or argue for a “transformative purpose” behind Article 105, Lahiri incorrectly goes on to assert that that Article 105 (both as originally enacted and after the 42nd and 44th constitutional amendments) is an instance of explicit “colonial continuity”. He bases his assertion on the fact that Article 105(3) made the privilege rules of Indian Parliament effectively the same as the British House of Commons. This was done by the original constitutional text through explicit reference to the House of Commons, and after the 44th amendment, through a slightly circuitous route. According to Lahiri, this explicit reference to the privileges of the British House of Commons creates an explicit colonial continuity”. I argue that this in incorrect. On the contrary, Article 105 radically reverses a significant feature of the colonial rule, i.e., the pre-eminence of British Parliament over the colonial legislatures.

Lahiri’s analysis is incomplete in one crucial respect. He fails to ask: what were the privileges enjoyed by pre-Constitutional legislative bodies in India? Surely, “continuity” in the context of an Indian parliament would make sense only when viewed with predecessor legislative bodies in India. When thus viewed, the transformative character of Article 105 becomes immediately apparent. It was indeed transformative, as originally enacted. A large part of the analysis that follows borrows heavily from an excellent research paper by P.N.Malhan of the Punjab University, published in 1942 in the Indian Journal of Political Science. The paper provides a very good picture of the privileges enjoyed by pre-constitutional colonial legislatures in India, under both the Government of India Acts 1919 and 1935.[1]

The legislative privileges enjoyed by colonial legislatures in the British Commonwealth were radically different from those enjoyed by British Parliament. Indeed, British Parliament (and its constituent houses) was always regarded as a class apart, which derived its sanction and authority, not just by virtue of its status as a “sovereign legislative body”, but also on account of its status as the “High Court of Parliament”. The privileges of British Parliament rest upon its own law called the “lex et consuetudo Parliamenti” (i.e., the law and custom of Parliament) and upon certain specific statutory grants of privilege. In contrast, colonial legislatures have only very limited powers. As Halsbury puts it:

 

Without express grant, a colonial legislature possesses no power to protect itself against obstruction, interruption, or disturbance of the proceedings by misconduct of any of the members in the course of those proceedings, except such as are necessary to the existence of such a body and the proper exercise of the functions which it is intended to execute. Whatever in a reasonable sense is necessary for those purposes is impliedly granted, whenever any such legislative body is established by competent authority. For those purposes protective and self-defensive powers only and not punitive are necessary. There are Legislative Assemblies in the British Colonies, which have, in the absence of express grant, no power to adjudicate upon, or punish for contempts committed either in their presence or beyond their presence.”[2]

 The position of colonial legislatures in India were no different from other parts of the Commonwealth. In comparison to British Parliament, they possessed woefully restricted privileges. As Malhan put it, the framers of the Government of India Act 1919 “summarily dismissed” the vital problem of privileges of the Legislative Councils, by enacting minimal protections. Despite calls for reform on this front, privileges were not substantially increased in the remaining period of Indian’s colonial history. Incremental increases in privileges were secured by the Legislative Members Exemption Act, 1925. The Government of India 1935 gave a little more importance to the issue, but interestingly, in language strikingly similar to Article 105, established an explicit continuity in privileges of the Chambers of Provincial Legislatures with the privileges that Legislative Councils of the Province used to previously enjoy (note that the continuity is with previous colonial legislatures in India and not British Parliament). Strikingly, it also had transformative potential of a similar nature to Article 105, albeit one that was more limited.[3] Section 71 of the Government of India Act, 1935 provided as follows:

“71.-(1) Subject to the provisions of this Act and to rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in every Provincial Legislature, and no member of the Legislature shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a Chamber of such a Legislature of any report, paper, votes or proceedings.

(2) In other respects the privileges of members of a Chamber of a Provincial Legislature shall be such as may from time to time be defined by Act of the Provincial Legislature, and, until so defined, shall be such as were immediately before the commencement of this Part of this Act enjoyed by members of the Legislative Council of the Province.

(3) Nothing in any existing Indian law, and, notwithstanding anything in the foregoing provisions of this section, nothing in this Act, shall be construed as conferring, or empowering any Legislature to confer, on a Chamber thereof or on both Chambers sitting — together or any committee or officer of the Legislature, the status of a court, or any punitive or disciplinary powers other than the power to remove or exclude persons infringing the rules or standing orders, or otherwise behaving in a disorderly manner.”

Conclusion

The upshot of the above is this. It could be argued that one of the features of the colonial project was the pre-eminence of British Parliament over colonial legislatures. One manifestation of this pre-eminence was in the special privileges that British Parliament had that colonial legislatures, including colonial legislatures in India, did not. Article 105 of the Constitution represents a radical break from the past, by conferring the same privileges upon Indian Parliament that were enjoyed by the British Parliament at the time the Constitution came into force. The equation of Indian Parliament to British Parliament is to be viewed as a radical act that is a complete break from a colonial past which subordinated Indian Parliament to British Parliament. It can by no means be regarded as an “explicit constitutional continuity” as Lahiri puts it. In addition, I would argue that the Article 105 was indeed “transformative”, just not in the way that Chandrachud J. meant it. It does not seem to have a discernable “transformative purpose” as Lahiri puts it, at least in terms of social transformation. Without doubt, however, it legislates a substantial transformation in the law on legislative privilege in India.


[1] Malhan, P. N. “LEGISLATIVE PRIVILEGES IN INDIA.” The Indian Journal of Political Science, vol. 3, no. 3, 1942, pp. 337–359. JSTOR, JSTOR, http://www.jstor.org/stable/42742679

[2] Halsbury’s Laws of England (1936 Edition), Vol. Parliament, Part VII, Para. 697 (as quoted in Malhan, supra)

[3] The transformative potential in Section 71(2) was limited by Section 71(3). The privileges could be increased through legislation but could not confer upon Chambers of Legislature a power to punish or discipline akin to that enjoyed by a court.