Civil Rights at the High Courts: Sedition and Transgender Identity

This month has seen two important civil rights judgments come out of the High Courts. The Kerala High Court reaffirmed the narrow scope of sedition, while the Madras High Court reaffirmed the right of self-determining one’s gender identity. Neither judgment broke new ground; but affirming – and entrenching – existing jurisprudence is often equally important, especially in circumstances where the possibility of erosion is ever-present.

The Kerala High Court, Sedition, and the UAPA

In Union of India v Shameer and Ors, a group of men were convicted of sedition (along with other provisions under the IPC and the UAPA). The gravamen of the offence, according to the Prosecution, was that in 2006, the accused organised a meeting where seditious pamphlets (of the banned SIMI organisation) were distributed, and seditious speeches were made. Two of the accused had stated that:

Indian army are killing Muslims who are doing jihad in Kashmir. Other Muslims are being tortured with oppressive laws like TADA, NSA etc., against which all of us should fight under the leadership of SIMI.

Present India was made by Britishers. Earlier, we were ruled by Nizams and Mughals. We should go back to that Old India for which we should fight through SIMI and no one else can destroy SIMI.

On the basis of this, the NIA Court convicted five out of the seventeen accused, of both sedition as well as membership of a banned organisation [SIMI] under the UAPA, and acquitted the rest. Both the convicted men, as well as the State, appealed. The Kerala High Court began by noting that if at all anyone had committed an offence, it was the two speakers – Accused No. 2 and 3. There was no evidence to demonstrate a larger conspiracy involving the people who had booked the hall, and therefore, at the threshold, the other convictions could not stand.

What this left, it will be seen, was a pure speech offence: the convictions of accused nos. 2 and 3 were purely on the basis of what they had said at the meeting. In this context, the bench of Shaffique and Menon JJ. held, reading S. 124A narrowly, that the offence of sedition had not been made out because the speech did not target the government established by law in India. The Court read the references to the Nizam and to the Mughals as expressing discontent with the way that India was governed, but that this, in itself, did not rise to the level of sedition. On the question of the UAPA, the Court held, following Arup Bhuyan, that the mere fact of holding a meeting – and even clapping and applauding through it – did not constitute the offence of “membership” of a terrorist organisation.

The High Court’s narrow reading of the substantive part of the definition – of both sedition and the UAPA – is welcome. Indeed, there has been very little judicial analysis of what, precisely, “government established by law” means in the context of S. 124A, and the High Court’s narrow interpretation does well by Article 19(1)(a) of the Constitution. To this we can add one further point: even if the Court had found, in this case, that the speech in question was against the “government established by law” (S. 124A), and that the accused did come to the meeting with the intention of “propagating SIMI ideology”, it would still not constitute either the offence of sedition, or of membership under S. 10 UAPA. After Shreya Singhal and Arup Bhuyan, it is clear beyond cavil that the appropriate legal standard to apply in these cases is that of “incitement to violence”; mere speech – including advocacy of revolutionary ideas – does not make out either offence. In this case, the High Court did not need to address that issue because of its findings on the content of the speeches, as well as on the nature of the meeting, but we should not lose sight of that larger point.

The Madras High Court and Transgender Identity 

Meanwhile, in Arunkumar & Sreeja v The Inspector-General of Registration, the High Court of Madras was called upon to decide whether a marriage between a man and a transwoman could be validly solemnised under the Hindu Marriage Act. G.R. Swaminathan J. held that it could, correctly noting that “by holding so, this Court is not breaking any new ground. It is merely stating the obvious.”

The dispute arose when the Registrar of Marriages refused to register the marriage, on the basis that Sreeja, as a transwoman, did not count as a “bride” within the meaning of the Hindu Marriage Act, as the scope of that expression was limited to “woman”. The Madras High Court held, however, that the Registrar’s actions were contrary to the ruling in NALSA v Union of India (subsequently upheld in Puttaswamy and Navtej Johar); at the heart of the NALSA ruling was the principle of self-determination as to gender identity. Consequently:

… the second petitioner herein has chosen to express her gender identity as a woman. As held by the Hon’ble Supreme Court this falls within the domain of her personal autonomy and involves her right to privacy and dignity. It is not for the State authorities to question this self-determination. (paragraph 9)

In view of this, Swaminathan J. held, the word “bride” in the Hindu Marriage Act had to be interpreted with the times, and in light of the principle of self-determination of gender identity.

It would … include an intersex person/transgender person who identifies herself as a woman. The only consideration is how a person perceives herself. (paragraph 15)

Interestingly, the Court then also went on to note the existence of multiple genders beyond the male/female binary, as well as going on to ban sex re-assignment surgery for minors (i.e., below the age of consent). As the Court noted:

A person who is in the Third Category is entitled to remain beyond the duality of male/female or opt to identify oneself as male or female. It is entirely the choice of the individual concerned. (paragraph 24)

 

There are a few important points to be noted about this judgment. This is perhaps the first time after NALSA that a Court has interpreted existing legislation in order to bring it line with the principle of self-determination of gender identity. It is, therefore, a landmark moment where the NALSA dictum has finally been given some kind of teeth, and a precedent has been set for future disputes involving the need for updating our existing laws that remain stuck within the male/female binary. This judgment constitutes the blueprint for doing so. Secondly, it is a judgment that moves beyond the rhetoric of self-determination of gender identity, and applies it to a situation where real consequences follow from that recognition (in this case, the right to marry). Of course, unlike affirmative action, marriage is not a situation involving identity-targeted distribution of scarce benefits; it is, therefore, a relatively easy case in which to affirm the principle of self-determination (it remains to be seen how the courts will navigate situations where distribution of scarce benefits does turn upon gender identification).

Perhaps most importantly, however, by placing the self-determination of gender identity – as well as the choice to opt out of the gender binary – upon a constitutional pedestal, Swaminathan J.’s judgment casts serious doubt upon the constitutional validity of the much-criticised Transgender Bill. Recall that that bill denies rejects self-determination of gender identity, as well as maintaining the gender binary and denying the primacy of choice. With the Madras High Court’s judgment, however, locating both these principles within Part III of the Constitution, it is evident that in its exiting form, the Transgender Bill will fail constitutional scrutiny.

Conclusion

The last few years have seen an unfortunate, top-heavy shift towards the Supreme Court, when it comes to constitutional cases. This has led to a gradual erosion of the High Courts as important forums for developing and articulating important constitutional principles. While I believe this has been a mistake, there does remain an important task for the High Courts, even under status quo: and that is to ensure that constitutional principles are entrenched through repeated and consistent application. Without that, Supreme Court pronouncements remain mere words, and can be very swiftly eroded or forgotten. And this is why the judgments of the High Courts of Kerala and Madras are significant additions to the struggle for a progressive civil rights jurisprudence in India.

The NRC Case and the Parchment Barrier of Article 21

Previously, I have written about the multiple procedural irregularities that have characterised the Supreme Court’s NRC Case: the use of sealed covers, consequential decisions being taken in closed-door hearings, and the bench’s disturbing disregard for due process rights. In the course of this years-long proceeding, the Court has far exceeded its brief as the apex judicial organ of the country, with its repeated stress on deportations making it appear more executive-minded even than the executive: more the Supreme Deportation Authority rather than the sentinel on the qui vive. But yesterday’s hearing in Harsh Mander v Union of India marks a low point even within this ongoing story.

According to accounts of the oral proceedings, the government of Assam brought forward a plan to secure the monitored release of foreigners who had been in detention centres more than five years. The plan entailed the detainees paying a hefty deposit amount of Rs 5 lakhs, having their biometric details taken, and then set free from the detention centres. The Chief Justice-led bench reacted to this with great anger, questioning the government repeatedly about its failure to deport individuals who had been held to be foreigners (this has been a common theme of every hearing). The Chief Justice claimed that the government was asking the bench to be “a part of an illegal order where a foreigner who has no right to stay in the country will remain and sign a bond and so on.” He further lectured the government about what it should have been arguing, noting that “the stand of the government of India and the state of Assam should be that the foreigners detenues should be deported as soon as possible. But we do not see that stand, Mr Chief Secretary.” When the amicus curae made the rather basic point that technically, deportation could hardly be carried out without the cooperation of the host country, the Chief Justice’s only response was “we can say that the government has failed to do its job.” The Chief Secretary then promised to come up with “better measures.”

Separation of Powers and International Law

There are a few things worth noting here. To start with, Harsh Mander v Union of India is a PIL about inhumane conditions in detention centres. How it has become a case about deportations is anyone’s guess. And there is a particularly cruel irony in the fact that a case filed to draw attention to inhumane conditions in detention centres has now brought us to a pass where the Court nixes the government attempts to release a small class of detainees from those centres.

But leave that aside for the moment. The Chief Justice’s repeated enquiries about deportation suggest not only an ignorance of the basic international law principles of non-refoulement and against statelessness, but also either ignorance – or contempt – of the principle of separation of powers. Section 3 of the Foreigners Act is pellucidly clear: the entry, departure, or presence of foreigners in India is a matter for the central government. It is not for the Court to browbeat the government into taking a stand on whether or not to deport (notwithstanding some observations in Sarbananda Sonowal, which are not only obiter, but completely unsupported by any legal principle of authority). Matters are worse confounded by the fact that when a Foreigners Tribunal makes a decision on the status of an individual, its decision is limited to deciding whether or not the said individual is an Indian national. The Foreigners Tribunal does not – and cannot – return a finding on whether that individual is a national of a named other country. The Chief Justice’s reaction – “why don’t you deport?” – therefore flies in the face of reality as well, because there will be – and there are – many situations where a Foreigners Tribunal declares an individual as a foreigner, but there is no country to deport that individual to, because no country is claiming them as their national.

In sum, therefore, the law on deportation is that it is a decision for the government to make, a decision that is constrained by principles of customary international law. What the Court is doing in these proceedings is taking a bludgeon to this legal structure, by ignoring both these core legal elements. This is damaging in many respects, but it is particularly damaging because the task of checking whether the government is exercising its discretion to deport in consonance with principles of customary international law is a judicial task. However, when the Court itself is acting in this fashion, to which forum are people supposed to appeal, if they think that the government is acting illegally? This is why the separation of powers exists: for courts to review the actions of the government, and ensure the government acts legally. And this is why the blurring of the line between the court and the political executive – of which the entire NRC case is an exemplar – is so profoundly dangerous.

Article 21

But let us come to an even more serious issue. As indicated above, the government set out a plan where detainees who had spent more than five years in detention centres were to be conditionally released. The conditions of release are so onerous that in my view, they rise to the level of being unconstitutional, but let us ignore that for the moment. The Court refused to accept this proposal as, in the opinion of the CJI, it amounted to sanctioning an “illegality”. Why? Because the government should have been deporting them.

It is at this stage that it becomes necessary to revisit the text of Article 21 of the Constitution – a provision that has come to mean everything to everyone in recent years, but which seems to mean nothing when it actually matters. Article 21 of the Indian Constitution states as follows:

No person shall be deprived of his life or personal liberty except according to procedure established by law.


There is no – no – law that authorises indefinite detention of an individual, whether citizen or foreigner. And if there was a law that did so, it would almost certainly be struck down as unconstitutional. On what basis, therefore, does the Court say that releasing detainees who have spent more than five years in detention would be endorsing an illegality? The boot of illegality, rather, is on the other foot: by refusing release, it is the Court that is sanctioning a flagrant and continuing violation of Article 21, the provision that is supposed to be the heart and soul of the Constitution. And one can hardly ignore (once again) the almost brutal irony at the heart of this: it is the government that wants to release detainees from detention centres, and the court that wants to stop it. Which is the political executive and which is the sentinel on the qui vive? Who is the protector of rights, and who the encroacher? It is impossible to tell any more.

Conclusion

Like every other legal culture, we too have our “never again” moment. For us, that “never again” moment is the notorious judgment in ADM Jabalpur, the Habeas Corpus case. The Supreme Court’s judgment in that case that sanctioned Emergency-era excesses – most of which were visited upon detainees – is what we hold up as the marker of that “valley of shadow” into which we’ve been, and into which we must not go again.

But when the Supreme Court prevents the government from (conditionally) releasing detainees who have been in detention centres (which, by all account, are inhumane places) for more than five years, thus condemning them to a continuing, lawless deprivation of personal liberty, then it is perhaps time to ask whether all we can do is keep saying “never again”, even as it happens all over again.

An Analysis of the Supreme Court’s Order in “In Re: Matter of Great Public Importance Touching Upon the Independence of the Judiciary”

Almost exactly one year ago, in the Judge Loya Case, the Supreme Court laid down the legal principles to determine when requests for court-sanctioned investigations into serious wrong-doing would or would not be granted. Recall that in that case, the Supreme Court took an interventionist approach: it did not merely assess whether the evidence had met a prima facie threshold of credibility, but rather, it went deeper, assessing the quality of the evidence, and subjecting it to detailed scrutiny on the touchstones of both internal consistency, and external plausibility. It was an approach that I strongly disagreed with the time (for reasons detailed in the linked post), but whether right or wrong, that was the position the Court took.

It is in this context that we must analyse today’s order mandating an investigation into “bench fixing” at the Supreme Court, to be probed by Retd. Justice A.K. Patnaik, with the assistance of the CBI, the Intelligence Bureau, and the Police (recall that these proceedings arose out of sexual harassment allegations levelled against the Chief Justice). Has the three-judge bench of the Court followed the approach in the Loya Case? As the order comes on the back of three affidavits filed by Advocate Utsav Bains, it is the contents of these affidavits that must be studied in some detail.

Analysis

[Regrettably, no analysis can be conducted of the order in In Re: Matter of Great Public Importance Touching Upon the Independence of the Judiciary, as all the affidavits have been placed before the Supreme Court in sealed covers.]

Conclusion

[Regrettably, no conclusion can be drawn about the Court’s order in In Re: Matter of Great Public Importance Touching Upon the Independence of the Judiciary, as no reasons are available from which to draw conclusions.]


[This post will be updated if and when the sealed covers are unsealed, and sunlight allowed into the corridors of the Supreme Court again. However, as Justice Patnaik has been asked to submit his report in a sealed cover, the prognosis is not optimistic.]

Notes from a Foreign Field: The Namibian Supreme Court on Free Speech, National Security, and Injunctions

In an interesting judgment delivered earlier this month (Director-General v Haufiku), the Supreme Court of Namibia restated some common-sense principles about the relationship between freedom of speech, national security, and judicial injunctions. The facts in Haufiku were straightforward: The Patriot, a Namibian newspaper, had uncovered some information about potential corruption within the Namibia Central Intelligence Service [“NCIS”]. It appeared that the NCIS had purchased farms and houses using public funds, which was then given over to a private association of ex-NCIS employees. When The Patriot’s journalist wrote to the Director of the NCIS with queries about these purchases, he was informed that his questions fell within the scope of “sensitive matters and/or classified information” (para 11). Under the terms of the Namibian Protection of Information Act [“PIA”] (whose provisions are strikingly similar to our Official Secrets Act) and the Central Intelligence Services Act [“CISA”], not only was the NCIS not obliged to provide information, but also, possession and publication of such information was an offence. Accordingly, the NCIS subsequently approached the courts for an interdict that would prevent The Patriot from publishing what information it did have.

General Grievous Meme

The State’s Arguments

It was argued before the courts that the information in The Patriot‘s hands violated the PIA, as it related to a “prohibited place” and/or a “security matter.” In particular, it was argued that “if the information were published, it would threaten or jeopardise the national security of the State” (para 18), “any disclosure of information which showed either the capability or a lack of resources on the part of the NCIS is unlawful as it undermines the effectiveness of the institution and with that posed a security vulnerability to the State of Namibia” (para 19) When asked to substantiate this argument, the NCIS argued that it was not obliged to do so, because the Courts did not have any jurisdiction to assess national security questions on their merits (paras 37 and 44 – 48). In short, the NCIS made a rather meta argument: the information that The Patriot wanted to publish impacted national security, but how it did so could not be revealed (inter alia, because that itself would be tantamount to impacting national security). As the Court characterised the submission:

  • The NCIS is the sole determiner of whether or not there is a threat to national security from the disclosure of information by a member of the public and not even the courts may inquire into that;
  • The NCIS is not obliged (in fact it is prohibited not) to place evidence before court in court proceedings to justify its conclusion that publication will be harmful to national security;
  • All the NCIS needs to do in court proceedings aimed at supressing publication of ‘secret’ information- be it about its assets or anyone associated with it – is to assign it the label of national security and to assert that publication will compromise national security and the court is bound in law to grant an interdict prohibiting publication;
  • The NCIS is under no obligation to reply to any enquiry by the media or to comment on any matter relating to or concerning the NCIS, even if it involves an allegation of a crime such as corruption. (paragraph 50)

(Readers who followed the Attorney-General for India’s arguments during the Rafale review petition will recall that this was more or less exactly the same argument advanced by the State in that case.)

The Court’s Analysis

The Court began by making the sharp observation that “the written submissions refer altogether to a staggering 50 cases a significant number of which are pre-independence cases decided under the pre-independence securocratic ethos which conjure up images of our painful colonial past.” (paragraph 43) (N.B.: “securocratic ethos” is a brilliantly evocative phrase to describe one of the fundamentals of colonial regimes all over the world!) Moving on from that, it then observed that, as a matter of legal burdens, because the NCIS was the body that was seeking the injunction (instead of a situation where, for example, the journalists were seeking disclosure), the onus was upon it to demonstrate what right was being interfered with. For this, “the mere assertion of a reasonable apprehension or fear of interference would not suffice. The facts supporting the apprehension must be set out in the application to make it possible for the court to make an assessment itself whether the fears are well grounded.” (paragraph 62)

Crucially, the Court then went on to note that this basic legal requirement – of establishing facts – did not go to sleep in a sand-box just because the State was invoking national security. As the Court made clear:

It needs to be made clear as a preliminary matter that we do not agree with the Government’s refrain, repeatedly pressed with great force in the written heads of argument, that once the Executive invoked secrecy and national security, the court is rendered powerless and must, without more, suppress publication by way of interdict.

The notion that matters of national security are beyond curial scrutiny is not consonant with the values of an open and democratic society based on the rule of law and legality. That is not to suggest that secrecy has no place in the affairs of a democratic State. If a proper case is made out for protection of secret governmental information, the courts will be duty bound to suppress publication. (paragraphs 84 – 85).

In the instance case, the Court found that neither with respect to the Association, and nor with respect to the properties that it had purchased, had the NCIS made any kind of case – or submitted any kind of evidence – to demonstrate national security concerns. For example:

…the information about the properties is not inherently secret (such as a military installation, equipment, password etc.), making it obvious to anyone who possessed it, even inadvertently, that it concerned or was a matter of national security. What is in issue are a house and a farm which are readily accessible to the public – without any indication that secret government operations were being carried on there as contemplated in s 23 of the NCISA. (para 102)

For these reasons, the Court denied the claim for injunction.

National Security

Conclusion

While at first blush, the Supreme Court’s judgment seems to be doing nothing more than recapitulating well-settled principles of law, there are a few reasons why, nonetheless, it is an important judgment in a comparative context. The first is that notwithstanding how well-settled these principles are, they come under repeated challenge from State authorities. As I mentioned earlier in this essay, readers will recall that the Attorney-General’s arguments in Rafale went along precisely these lines: the Court was asked to adopt a hands-off approach towards the fresh documents on national security grounds; when it was pointed out to the AG (by the Chief Justice) that under evidence law, all that mattered was a document’s relevance, and not how it had been obtained, the AG asked the Court to carve out a special exception to this rule for “national security” matters (a request that the Court fortunately declined). The AG also declined to justify his arguments, again on the basis that the moment “national security” was invoked, the Court had to back off. This is precisely the kind of “securocratic ethos” that the Namibian Supreme Court decried, and which is simply inconsistent with the principles of an open, liberal-democratic society.

The second important point is that the Namibian Supreme Court also made clear that invoking national security did not exempt the State from having to prove its case in the normal manner. While some necessary leeway could be made – such as having an in-camera proceeding while adjudicating the State’s claims (or sealed covers?) – the legal standard would remain the same. Invoking “national security”, therefore, would not cloak the State with some special kind of immunity; when it came to an injunction and the suppression of speech, the normal standards would apply. This, of course, has been the teaching of a number of Courts ever since the Pentagon Papers case (even if the Namibian Supreme Court’s judgment did not quite rise to that level, and had perhaps some unnecessary observations about hypothetical cases where it would grant injunctions). It is also important, because even if a Court does not except that it is divested of jurisdiction to adjudicate such cases, a highly deferential standard towards the State effectively achieves the same outcome. What is needed, therefore, is a shift from the “securocratic ethos” – where the invocation of national security is given a presumptive deference that is not extended to other claims – to the “constitutional ethos” where, ultimately, what is supreme is the Constitution, and constitutional values (including those of free speech).

It is in that sense that the Namibian Supreme Court’s judgment represents an important step forward in the global struggle against the permament entrenchment of the “securocratic ethos”, and towards an open society.

 

Financing the General Elections: Electoral Bonds and Disclosure Requirements under the Constitution

The electoral bonds scheme was introduced by the 2017 Finance Act, challenged before the Supreme Court in 2018, and made headlines in 2019 when the court finally began hearing the matter and passed an interim order. Briefly, the scheme allows individuals and companies to purchase “electoral bonds” issued by the State Bank of India and subsequently donate the bonds to a political party. Under the scheme, only a political party registered under the Representation of People’s Act 1951 (RPA) is eligible to receive and encash electoral bonds. Electoral bonds are therefore bespoke campaign finance instruments to allow donors, or ‘contributors’, to contribute to political parties. The bonds are issued in denominations ranging from one thousand rupees up to one crore.

Crucially, through several legislative changes (discussed below), political parties do not have to disclose to voters either the identity of the contributor, or the amount received through electoral bonds. The electoral bonds scheme itself provides that,

the information furnished by the buyer shall be treated [as] confidential by the authorised bank and shall not be disclosed to any authority for any purposes, except when demanded by a competent court or upon registration of criminal case by any law enforcement agency.

One of the grounds on which the scheme has been challenged is that citizens have a right to know the identity of the contributors and the amounts being contributed to each party. In its interim order, the Supreme Court required all political parties to submit to the court (in a sealed cover) the details of money received under the electoral bonds scheme.

On this blog we discussed the concerns raised by the Supreme Court’s interim order (here). In this post I argue that the electoral bonds are part of a more comprehensive legislative agenda which increases the overall volume of campaign contributions and decreases the information voters have about these contributions. I then examine whether the electoral bonds scheme is constitutional in light of the Supreme Court’s jurisprudence on a citizen’s “right to know” under Article 19(1)(a) of the Constitution. Exploring the rationale behind a voter’s “right to know”, I argue that disclosing campaign contributions is necessary because it allows voters to better understand a candidate or party’s position on important issues and evaluate whether a candidate (and eventually, elected official) is “too compliant” with the wishes of their contributors.

Recent changes in campaign finance law

The current government has made several changes to campaign finance laws in the last two years. Firstly, the government removed the cap on corporate donations contained in Section 182 of the Companies Act 2013 under which a company could not contribute more than 7.5% of its net profits for the previous three years. The amendment also removed the requirement that companies disclose the total amount contributed and identity of the political party that the company contributed to. There is now no cap on how much money a company can contribute to a political party. Further, by removing the requirement that the political contributions must come from profits, there is a risk that donors set up shell companies that do not actually conduct any legitimate business but exist solely to funnel money to political parties.

The government also amended the Foreign Contributions Registration Act (FCRA). Under the FCRA as it stood before the amendment, companies that were more than 50% foreign owned were prohibited from donating (or “contributing”) to political parties. The amendments removed this 50% threshold, permitting companies that are 100% foreign owned to contribute to political parties.

Circling back to the electoral bonds scheme, prior to the amendments by the government, political parties were required to report all contributions over twenty thousand rupees (under Section 29C of the RPA) and keep a record of the name and address of all such contributors (under Section 13A of the Income Tax Act). Under the government’s amendments, both these reporting requirements were removed in the case of contributions made through electoral bonds.

Thus, it is important to recognise that electoral bonds are part of a sustained and comprehensive legislative agenda that is likely to see a significant increase in campaign contributions to Indian political parties and a significant decrease of information about these contributions to voters. As I argue below, both these outcomes have consequences on the functioning of democracy under the Constitution.

Some Context on Campaign Finance

Campaign finance is a vast and nuanced area of law and political theory, and the intention here is merely to touch on a few simple points to provide context to the legislative changes introduced by the government.  Firstly, a core tenet of democracy is that citizens collectively choose a representative government. Only a government chosen by the citizens is legitimate. Therefore, the process by which citizens choose their representatives (elections) is of paramount important. If elections do not provide citizens with a free and fair method of selecting a candidate of their choice, then the elected government cannot be said to be chosen by the people, and would be illegitimate.

Elections in all countries cost money. However, methods of financing elections vary greatly, from systems of publicly funded elections, to systems of unlimited private contributions. India is somewhere in the middle, private contributions are permitted, but spending by political candidates is capped. In a system where public money is used to finance elections, voters have no interest in knowing how candidates are financed, because all candidates are using public money. However, as we move towards private contributions, and unrestricted private contributions, things get a bit trickier. Where private contributions are permitted, who is funding a candidate becomes an essential part of the candidate’s platform, because contributors will donate to candidates who support their ideas, and candidates may even modify their ideas to secure funding. Thus, a candidate’s stance on issues and who is funding them becomes intricately linked. Thus, in an electoral system where candidates are privately funded (and as I argue in detail below) voters do have an interest in knowing who is funding a candidate.

Corruption

Lastly, it is important to separate campaign contributions from corruption. Corruption, simply, is when a candidate (as a potential elected official) uses their position to enrich themselves personally. Campaign contributions do not enrich the candidates personally, but rather are used by candidates to acquire more votes. (It is possible that some candidates use contributions to enrich themselves, but that is a separate debate.)

The real problem that that campaign contributions can raise is a “quid-pro-quo” deal. Where a candidate takes money from a contributor, and once elected, votes in favour of laws that benefit the contributor. This concern is articulated by the U.S. Supreme Court in Nixon v Shrink Missouri Government PAC, where the court noted that the concern raised by political contributions is a concern “not confined to bribery of public officials, but extending to the broader threat from politicians [being] too compliant with the wishes of large contributors.” But when is a politician “too compliant”? Is it merely when she votes against the interests of the majority of her constituents? Arguably, in a democracy, it is desirable that voters signal to candidates what their preferences are, both through votes, as well as political contributions. Subsequently, when an elected legislator votes in line with these preferences, they are merely being responsive to the needs of their constituents. Say for example, a rich religious minority that has been historically persecuted contributes large amounts to a candidate, who subsequently votes for a law which prevents future persecution of that minority, can we say that such a candidate is “too compliant”? It is highly likely that such a candidate would have voted the same way irrespective of the contributions. As I argue below, disclosures help with this as well.

One problem that increased contributions can result in is the translation of economic inequality to political inequality. If elected officials respond to issues that have received the greatest support from their constituents in the form of the maximum contributions, the legislative agenda may represent the interests of the largest contributors, and not all individuals in their constituency. This may drown out the political demands of economically weaker sections of society. However, this is a risk inherent in all systems that allow private political contributions and is unlikely to disappear until we either have publicly funded elections or the wider economic inequalities in society are tackled.

Article 19 and the “Right to Know

The most recent hearings on electoral bonds centred around whether the Constitution grants voters the “right to know” who contributed to which political parties, and how much they contributed. Article 19(1) of the Constitution grants all citizen’s a right to free speech. The Article also grants citizens the right to receive information from a person who is willing to speak and share their speech. However, typical conceptions of the freedom of speech do not grant a citizen a right to receive information from an unwilling speaker. In other words, the freedom of speech typically provides a negative right against interference from receiving ‘generally available’ information, but not a positive right to gather or acquire information.

To take an example, the freedom of speech grants a journalist the right to publish an article about a failed military operation by the government. The freedom of speech also protects a citizen’s right to receive the article from the journalist. If the government were to ban the journalist’s article on its failed military operation, this would violate not just the journalist’s freedom of speech but also the citizen’s right to receive information that the journalist wishes to share. However, the freedom of speech does not typically grant the citizen a right to demand details of the failed military operation from the government itself. This would require a separate positive right to acquire information (e.g. as provided by the Right to Information Act 2005).

However, the Indian Supreme Court has expressly recognised that Article 19(1) of the Constitution confers on citizens a positive right to know information about electoral candidates. The Supreme Court has been fairly categorical about this position, noting in its Union of India v Association of Democratic Reforms  decision (Union v ADR)  that, “There is no reason to that freedom of speech and expression would not cover a right to get material information with regard to a candidate who is contesting elections for a post which is of utmost importance in the country.

One of the key roles of freedom of speech in a democracy is to ensure public discourse so that all voices and ideas are heard at the time of collective decision making. By including a positive right to know about electoral candidates, the court has stated that for the effective functioning of democracy under the Constitution, it is not enough that the voice of all candidates are heard. Rather, what is required is that voters receive a minimum standard of information that allows them to make an informed decision, even if the candidates would otherwise be unwilling to provide this information. This is perhaps best articulated in Romesh Thappar v State of Madras where the Supreme Court noted, “The public interest in freedom of discussion stems from the requirement that members of democratic society should be sufficiently informed that they may influence intelligently the decisions which may affect themselves.

In later decisions, the Supreme Court has been far more explicit about the fact that voters must not merely be provided access to the ideas a candidate wishes to portray, but also other objective information that will ensure that the voter makes an sufficiently informed decision. For example, in Union v ADR the court noted that, “Casting of a vote by a misinformed and non-informed voter or a voter having one-sided information only is bound to affect democracy seriously.” What the court is articulating is that standard to be applied to the functioning of democracy under the Constitution, and the standard is not satisfied merely by ensuring that all candidates can freely speak and disseminate their ideas. It requires, at a bare minimum, that voters be sufficiently apprised of their electoral candidates to the point where they can make an informed decision about which candidate is likely to best represent their interests in government. To ensure this, Article 19(1) grants voters a positive right to acquire information about candidates, even if the candidates are unwilling to provide this information.

In Union v ADR ruled that electoral candidates must disclose their assets, educational qualifications, and their involvement in criminal cases for voters to be make an informed decision. This sets a high threshold for the standard of information a voter must possess before voting, leaving the government hard-pressed to argue that voters do not need to know the identity and amounts of political donations received by candidates and parties. As I argue below, the identity of a candidate’s contributors is crucial in allowing voters to make an informed decision.

Disclosures in a Democracy

Recall that the electoral bonds scheme and the surrounding legislative amendments have two primary consequences, (1) they increase the total volume of political contributions, and (2) make it neigh impossible for voters to discern the identity and volume of donations made to candidates. The most obvious function of disclosures is that where the conduct of a legislator blatantly panders to a political contributor without any public utility, disclosures bring to light such behaviour. As the Supreme Court noted in People’s Union of Civil Liberties v Union of India, “There can be little doubt that exposure to the public gaze and scrutiny is one of the surest means to cleanse our democratic governing system and to have competent legislatures.”

However, beyond this, disclosures allow voters themselves to decide when an elected official is being “too compliant” with the wishes of their contributors. As noted above, it is often difficult to determine when an elected official is “too compliant” with the wishes of their contributors. It is likely that individuals will disagree over when an elected official’s action is “too compliant”. However, when contributions are disclosed, each voter can decide for herself when an official’s behaviour is “too compliant” with the interests of their respective contributors and punish the legislator by not voting for them in the next election. As the U.S. Supreme Court noted when examining the constitutionality of campaign finance disclosures in the landmark decision of Buckley v Valeo (Buckley), disclosures “provide the electorate with information as to where political campaign money comes from and how it is spent by the candidate in order to aid the voters in evaluating those who seek federal office.” Knowing whether an official is likely to represent, or only represent, the wishes of their political contributors is crucial information for an individual voter in deciding whether the official will represent that individual voter’s interest in government.

Lastly, as noted by Elizaabeth Garrett, campaign contribution disclosures allow voters to understanding where a candidate stands on key issues. For example, a voter may not have the time or expertise to discern whether a candidate is in favour of the coal industry based on a candidate’s manifesto or draft legislation. However, when the voter learns that the candidate receives most of her campaign contributions from the coal industry, the voter may understand that the candidate is in favour of the coal industry. This is because the interest groups closest to the issue (the coal industry) would only have contributed to the candidate’s campaign because they believe that the candidate will support legislation beneficial to the coal industry. Because contributing to a campaign is “an observable and costly effort on the part of the contributor”, knowing who contributed to a campaign allow voters to discern a candidate’s likely position on issues. (Garrett also cites empirical studies where voters informed of whom contributed to a candidate were able to vote on-par with candidates who had actively researched candidates – her paper on disclosures and voter competence can be found here.)

Recall that the Supreme Court has already stated that for voters to effectively exercise their role as voters under the Constitution, they must be provided with certain basic information. A key question in case of electoral bonds scheme is whether the identity of the contributor and the quantum of the contributions received by the candidates is part of this essential information a voter should receive to be sufficiently informed. By denying voters this information, the electoral bonds scheme makes it impossible for voters to understand when their elected politicians are acting in favour of large political contributors – even the politicians may be blatantly doing so. Further, electoral bonds allow politicians to hide their position on certain issues by receiving funding from interest groups anonymously. A voter might be inclined to vote for a candidate based on their publicly available information such as a candidate’s speeches or track record. However, that same voter may hesitate if they discovered that the candidate received large amounts from interest groups promoting religious persecution, or tax cuts for large business.

The Government’s Arguments

In defending the electoral bonds scheme, the government has argued that electoral bonds reduce the amount of ‘black’ (i.e. illicitly obtained) money in elections, as contributions are routed through the State Bank of India which performs ‘Know-Your-Customer’ checks on contributors. This does not eliminate the risk that a contributor will merely funnel ‘black’ money through a legitimate or ‘clean’ company or individual, especially as neither companies nor political parties are required to keep a record of large donors any more. In short, the electoral bonds scheme does nothing to ensure that the origin of the money contributed is legitimate.

Another argument that may be used to defend the electoral bonds scheme is one of contributor privacy. As discussed earlier on this blog (here), individuals have a right to the privacy in their associations, and this would include a contributor seeking to donate to a candidate. Take the example of a candidate who speaks out in favour of a religious minority. If the state were to publish the names of all the people who contributed to this outspoken candidate, these contributors might be dissuaded from contributing to the outspoken candidate. Worse, the contributors may face persecution precisely for contributing to the outspoken candidate (something they have a constitutionally protected right to do). Thus, by not protecting the privacy of their  (political) associations, the state would be violating their right to participate in the electoral process.

This is certainly a concern and arguably, where contributors are at risk, a balance must be struck. Garrett notes that in Buckley, as well as in Brown v Socialist Workers, the U.S. Supreme Court exempted campaigns from making disclosures where there existed “specific evidence of hostility, threats, harassment and reprisals.” This is a balanced solution. In the general, where there are no risks to contributors, the voters right to know requires candidates to disclose their contributors and contributions. In specific instances, where a credible risk exists that compelling disclosures will dissuade or put at risk contributors, their privacy must be maintained. Electoral bonds however, exempt disclosures in all situations. Thus, unless the government is able to reverse this – generally requiring disclosures, and creating a nuanced system as to when parties can be keep the source of contributions anonymous, the electoral bonds scheme violates the voters right to know.

Conclusion

To provide some context to the scale of the problem, information procured under the Right to Information Act from the State Bank of India noted (here) that over six hundred crores worth of electoral bonds were purchased between March and October of 2018. The Supreme Court’s interim order in the electoral bonds case is troubling. By refusing strike down the electoral bonds scheme and compel parties to disclose to the citizens of the country who is financing them, the court has taken a step back from its previously strong jurisprudence on a voter’s right to know. Striking down these amendments would have sent a strong signal that any amendments to campaign finance laws must respect that democracy under the constitution requires an informed and empowered voter.  As noted above, who is funding a candidate is vital information that allows a voter to understand where a candidate stands on key issues. That the court refused to do this during an ongoing general election, when this information is most relevant to voters, makes the court’s current stance particularly egregious.

Guest Post: Electoral Bonds and the Political Party as a Vehicle of Representation

(This is a Guest Post by Udit Bhatia, in the context of the ongoing electoral bonds case before the Supreme Court).


The case against secret election funding would appear obvious enough that it barely needs drawing out. However, given recent events in the Supreme Court in India, it seems that we can no longer rely on this assumption. This case rests on three premises: (1) The power of the political party in the legislative process (2) The potential impact of private funding on the legislative process and (3) The benefits of transparency in funding.

Political parties elsewhere serve as intermediaries between voters on the grounds and their representatives in parliament. However, representatives retain their autonomy from their party leaders in various ways. They are allowed to break from the party line during legislative votes. In some jurisdictions, party elites have little influence over the re-selection of candidates for elections. This allows legislators to cultivate a strong following among local party members, enabling them to secure nomination to stand for office again through the same party ticket. In doing so, they can cultivate a personal vote that undercuts the power of organised interests acting upon the party machinery. In both respects, the Indian party system allows little autonomy to the legislator vis-a-vis her party. Her ability to cast a dissenting vote is circumscribed through the anti-defection vote. Moreover, party leaders possess a monopoly over the candidate nomination process, and can threaten to de-select any legislator who might question the party line. The party in this context does not act so much as an intermediary between voters and representative. Rather, the party is more adequately characterised as the vehicle of representation.

Having established parties’ pivotal role in the legislative process, let me now turn to where funding fits into the picture. Funding can affect the legislative process in at least two ways. First, it can lead to straightforward quid pro quo. As several commentators have argued, it can lead a party to formulate policies conducive to the interests of its funders. Second, it can also bias policy-makers to the interests of funders even when there exists no straightforward quid pro quo. Policy-making is governed by the tacit social and economic worldview of decision-makers. Even when policy-makers act in their considered view of the public interest, their perspectives can be skewed by latent biases—biases that are a product of the people that have greatest access to, to organisations that they interact most with, to individuals who are best placed to affect their political prospects. Much of the debate over campaign finance in India has focused on straightforward corruption. But we must not lose track of how non-transparent funding affects political actors even if we attribute less morally dubious intentions to both, funders, and those who benefit from secret funding. The latent biases, in turn, can affect the content of policies in various ways. First, it can skew the agenda: decision-makers can become inclined to keep things off the political agenda if they believe this might put off their funders. Second, it can affect how issues on the political agenda are decided. Wealth has implications for political ideology—research elsewhere has shown that large donors are associated with more extreme views than ordinary citizens; they are also more prone to conservative views on distributive justice than the regular voter.

The arguments outlined here give us a strong case for caps on money that parties can receive from private sources. Perhaps their implications are even stronger in that they give us a strong case for eliminating private money from the political process altogether, and turning instead to a model of public financing of parties. However, as long as unlimited private money is there to stay, transparency offers a next-best solution. Transparency can mitigate the problematic impact of secret funding in at least two ways. First, it can make beneficiaries of such funds more reflexive about their actions in anticipation of the public’s reactions. Both, straightforward this-for-that as well as more tacit biases, can be better checked merely by virtue of decision-makers’ knowledge that the public is aware of who funds them and how this influences their favoured policies. Second, where decision-makers fail to refrain from quid pro quo or check their funder-friendly biases, transparency allows voters to punish them through the ballot.

Recent events in the Indian Supreme Court have demonstrated an impoverished understanding of the link between voters, party and the legislature on the one hand, and between donors and political parties on the other. Perhaps now the response to campaign finance reform must be a political one rather than a judicial one. And here lies a further irony—any political attempt to overturn this dubious framework will itself be affected significantly by large donors who have vested interests in retaining this framework.

Making the Path by Walking: The Supreme Court’s Film Censorship Judgment

In an interesting judgment handed down this Thursday, a two-judge bench of the Supreme Court held that the government of West Bengal was required to compensate a film-maker for trying to “shadow-ban” his film. The facts of Indibility Creative v Govt of West Bengal were straightforward: a film called Bhobishyoter Bhoot had been cleared by the Film Certification authorities, and had started to run in cinemas. However four days before its scheduled release, one of the directors received a call and a letter from the state’s intelligence unit, asking for a special screening, on the ground that the film might hurt public sentiments and threaten public order. The director refused. However, very soon after the release of the film, it was inexplicably withdrawn from most cinemas, and tickets were refunded. When the directors made enquiries, they were told that this was being done on the instructions of “higher authorities.”

After the Supreme Court intervened with some strongly-worded interim orders, a modicum of normalcy was restored. The Court nonetheless reserved orders, and delivered a judgment on merits shortly thereafter.

Chandrachud J.’s judgment involves a reiteration and endorsement of settled legal principles that are, regrettably, too often honoured only in the breach: that there cannot be a two-track certification process, where the State’ authorities are running parallel censorship proceedings alongside the Certification Board(s); that in cases where there is an apprehension of public disorder, it is incumbent upon the State to provide the necessary police protection, rather than upon the speaker/artist/writer to withdraw (and thereby facilitating the heckler’s veto); and that the restrictions upon free speech cannot traverse beyond the strict confines of Article 19(2). In addition, however, the judgment contains a few elements worthy of remark.

The first is that it takes seriously the ways in which State authorities can informally exert pressure and effectively choke off the meaningful exercise of fundamental rights. In this case, for example, the State government insisted that it had not taken recourse to any statutory provision that formally banned the film. If that was true, however, then, as the Court observed:

… there has to be some explanation forthcoming before the Court why the film was simultaneously removed from the theatres, at one stroke, shortly after release. The apprehension of the petitioners that this was an action which followed on the letter dated 11 February 2019 of the Joint Commissioner of Police is not unfounded. The letter addressed by INOX to the producer specifically mentions that they were directed by the authorities to discontinue the screening in the ‘interest of the guests’. We have no manner of doubt that this was a clear abuse of public power. (paragraph 17)

Effectively, therefore, the Court drew an adverse inference against the State, based upon a set of fairly unambiguous factual circumstances. Following upon the Madras High Court’s recent judgment involving the “informal” settlement that Perumal Murugan was forced into, this signals a clear judicial intent to take seriously State action that would otherwise pass under the radar due to its non-legal/extra-constitutional/behind-the-scenes character.

This is closely linked to a second important point – the Court’s clear articulation of the positive component of Article 19(1)(a). As Chandrachud J. noted:

But, apart from imposing ‘negative’ restraints on the state these freedoms impose a positive mandate as well. In its capacity as a public authority enforcing the rule of law, the state must ensure that conditions in which these freedoms flourish are maintained. (paragraph 18)

This is, of course, nothing more than applying a coherent constitutional framework to the basic insight – expressed first in S. Rangarajan and then beyond – that if the threats to free speech come from private parties, then it is the obligation of the State to ensure that conditions of law and order are maintained so that the expressive activity in question can go ahead. Rangarajan’s insight, of course, arose out of concrete circumstances where the State threw up its hands before the Court and argued it was not in a position to guarantee the maintenance of law and order if a particular film was screened – an argument that was given short shrift by the Court. Indibility Creative – the present judgment – has now taken that insight further, and generalised it into a principle.

The third element that rounds things off is the relief: the Court held that:

As a consequence of the pulling off of the film from the theatres where it was screened on 16 February 2019, the petitioners have suffered a violation of their fundamental right to free speech and expression and of their right to pursue a lawful business. This has been occasioned by the acts of commission and, in any event, of omission on the part of the state in failing to affirm, fulfill and respect the fundamental freedoms of the petitioners. We are clearly of the view that a remedy in public law for the grant of remedial compensation is required in the present case. We order and direct the respondents to pay to the petitioners compensation which we quantify at Rs 20 lakhs within a period of one month from the date of the present judgment. (paragraph 20)

This is particularly important, because in far too many cases, after finding a breach of fundamental rights, the Court has left matters as they are. The loss, however – especially in cases of this kind – is clear and quantifiable, and a refusal to restore status quo only ensures that, despite the finding of a violation by the court, the chilling effect of arbitrary State action continues. On the other hand, a clear judgment on compensation sets the tone for an effective enforcement of fundamental rights; and it is only within a climate in which enforcement is guaranteed, can those rights truly flourish.

Thus, a combination of these three features – judicial cognisance of informal, “shadow-banning”, an articulation of the positive obligations upon the State to ensure that free expression is guaranteed notwithstanding threats from private parties, and remedial compensation should the State fail to discharge its obligations – ensure that this judgment can become the basis of a strong, rights-protective jurisprudence. Whether that happens, of course, depends on how future courts – especially the lower courts – implement it.

A final point of interest. In a paragraph dealing with the importance of satire to any system of free expression, Chandrachud J. observed that:

Satire is a literary genre where “topical issues” are “held up to scorn by means of ridicule or irony.”It is one of the most effective art forms revealing the absurdities, hypocrisies and contradictions in so much of life. It has the unique ability to quickly and clearly make a point and facilitate understanding in ways that other forms of communication and expression often do not. However, we cannot ignore that like all forms of speech and expression, satirical expression maybe restricted in accordance with the restrictions envisaged under Article 19(2) of the Constitution. For example, when satire targets society’s marginalized, it can have the power to confirm and strengthen people’s prejudices against the group in question, which only marginalizes and disenfranchises them more. (paragraph 13)

The last lines are particularly important, because they point towards the Canadian/South African constitutional model of understanding hate speech: recall that in Canada and South Africa, “hate speech” is asymmetrical, and is understood as expression that stigmatises or dehumanises a vulnerable class of people, in a manner that feeds into a wider climate of marginalisation and discrimination (for example, holocaust denial as a form of anti-semitic speech, or – closer home – caste slurs such as “chamar”). The regulation of hate speech, thus, is inextricably bound up with the constitutional value of equality (expressed in that old injunction to satirists and critics, “punch up, not down“).

In India, that model is yet to catch hold; while the Court hinted at that in 2014, for the most part, the dominant understanding remains that of hurt sentiments and wounded feelings – an approach that, for obvious reasons, is constitutionally unsustainable. And so, while the observations in today’s judgment are fleeting, they do constitute an invitation to a future bench, dealing with an appropriate case, to make them a part of the law.

We can hope that some day, that invitation will be taken up.

 

The Afterlife of the Aadhaar Dissent: The Jamaican Supreme Court Strikes Down a National Biometric Identification System

Justice Charles Evan Hughes’ famous aphorism, that a dissent is an “appeal to the brooding spirit of the law, to the intelligence of a future day”, has passed into legend. It was famously invoked by Justice H.R. Khanna, while concluding his dissent in the Habeas Corpus case. But sometimes, a dissent is not limited to a footnote in the judicial lore of a nation, waiting for the years to pass by until the “intelligence of a future day” dawns. Sometimes, like the swallow flying south, a dissent becomes part of the global migration of ideas. It finds fertile soil far from home, there to bloom into the full richness that it has been denied in its own native environment.

Earlier this week, the Supreme Court of Jamaica struck down the Jamaican National Identification and Registration Act [“NIRA“]. The NIRA was a law that mandated the collection of biometric information from all Jamaican residents, and its storage in a centralised database. The similarities with Aadhaar are immediate and clear, and indeed, a substantial part of the judgment(s) were focused on comparisons between NIRA and the Aadhaar Act, and the Indian Supreme Court’s judgment in Puttaswamy. And what is striking about the judgments of Chief Justice Sykes and Justice Batts is that, after a detailed and painstaking engagement with Puttaswamy, both judges held that, on multiple counts – on the application of the proportionality standard, on the articulation of freedom and privacy, on the dangers of centralised databases, and on the shape and design of data protection frameworks, it was Chandrachud J.’s dissenting opinion that was persuasive, and deserved to be followed. The NIRA, accordingly, was struck down as unconstitutional.

NIRA: Similarities and Differences with Aadhaar

As the sketchy description outlined above indicates, NIRA and Aadhaar bear substantial similarities. Indeed, these similarities went beyond the collection and storage of biometric information, and extended to the design of the enactments: like Aadhaar, NIRA established a centralised database [“NCID“], a centralised authority to deal with collection and storage, contained provisions for private party access, had provisions for when data could be accessed, and so on. Furthermore, the justifications offered by the State were remarkably similar: preventing and eliminating crime, preventing corruption (FATCA was cited as well!), streamlining delivery of benefits, facilitating ease of identification, and so on.

At the same time, however, there were some substantial formal differences between NIRA and Aadhaar (why I use the word “formal” will become evident immediately hereafter, to anyone familiar with how Aadhaar actually works in practice). First, enrolment under the NIRA was legally mandatory, on pain of criminal sanctions; secondly, information collected under NIRA was substantially more than that collected under Aadhaar (it included blood samples, for example); and thirdly, third parties had formal access to the database under NIRA.

The judgment(s) of the Jamaican Supreme Court made much of these differences between NIRA and Aadhaar to argue that criminalising non-compliance was disproportionate, that the information taken did not comply with the principle of data minimalism, and that the access of third parties raised constitutional concerns of the privacy and security of the data. What is remarkable, however, is that despite finding these substantial formal differences, and despite finding that the Indian Supreme Court had read down the Aadhaar Act in significant ways (for example, by holding that in case of an authentication failure, an individual was entitled to present an alternative identification), the Jamaican judges still went on to follow, in granular detail, the judgment and reasoning of Chandrachud J.

Justice Batts and the Primacy of Choice

I begin with Batts J.’s judgment, because of its focus on one straightforward and clear principle, which was also at the heart of Chandrachud J.’s dissent: the primacy of individual choice in a constitutional democracy, and how meaningful choice is at the heart of any understanding of human freedom. The “choice”, in this case of course, involves the right of the individual to choose how to identify herself to the State, from among a range of reasonable alternatives.

After summarising the holding of the Aadhaar Majority, Batts J. cited some of the opening words of Chandrachud J.’s dissent, about how technology was reshaping the relationship between citizens of the State. He then went on to cite the core of Chandrachud J.’s reasoning in great detail, because: “his decision is sufficiently important, and so reflective of my own views, that I will outline the details.” (para 337) In particular, Batts J. cited Chandrachud J.’s views on private party usage, the failure of the State to demonstrate that less intrusive means would not work, the merging of data silos, the doctrine of unconstitutional conditions (paragraph 339), and the general presumption of criminality that entailed nationwide biometric collection (paragraph 340). In closing, he noted that:

In words, which I respectfully wish to adopt as my own, the learned Judge [i.e., Chandrachud J.] summarised the overall constitutional failings of the Aadhaar scheme thus … ‘the technology deployed in the Aadhaar scheme reduces different constitutional identities into a single identity of a 12-digit number and infringes the right of an individual to identify herself or himself through a chosen means. Aadhaar is about identification and is an instrument which facilitates a proof of identity. It must not be allowed to obliterate constitutional identity.'” (paragraph 341)

On this basis, Batts J. therefore held that:

The [NIRA] Act proposes to compel persons to divulge information personal to them. It is the right to choose, whether or not to share personal information, which individual liberty in a free and democratic state jealously guards. The mandatory nature of the requirement as well as the breadth of its scope, and the absence of a right to opt out, are not justified or justifiable in a free and democratic society. If it is intended to prevent corruption or fraud, then it is premised on the assumption that all Jamaicans are involved with corruption and fraud. The danger of abuse by the state or its agencies, and the removal of personal choice, outweigh any conceivable benefit to be had by the community or state. (paragraph 349)

This, it will be noted, is squarely applicable to Aadhaar, which has long been mandatory for all practical effects and purposes.

The Chief Justice, Proportionality, and the Surveillance State

The judgment of the Chief Justice was substantially longer (around 250 pages to Batts J.’s 50), and covered more ground. The Chief Justice began with a detailed analysis of the standard of constitutional review under the Jamaican Charter. His discussion is fascinating in its own right, but for our purposes here, the Chief Justice accepted that the relevant standard was that of proportionality, as articulated by the Canadian Supreme Court in Oakes, and of course, the Indian Supreme Court in Puttaswamy. Crucially, however, the Learned Chief Justice noted that:

I am of the view that this approach provides a proper conceptual framework within which to examine NIRA in order to see whether the provisions in that statute meet the standards indicated by the majority in Puttaswamy (September 26, 2018). I must also say that in the application of the standard I prefer the reasoning of Dr Chandrachud J to that of the majority. (paragraph 151)

(For the multiple errors that the Majority made in applying the proportionality standard, see here).

This, the Chief Justice held, was because:

… I am of the view that the strict application of Oakes is the best way to preserve fundamental rights and freedoms. The majority [i.e., in Puttaswamy] appeared to have taken a more relaxed view. The strict Oakes test makes a more granular scrutiny possible by saying that the court must take account of any deleterious effect of the measure being relied on to meet the objective. Thus the greater the severity of the effect the more important the objective must be, furthermore the measure chosen needs to be shown to be the least harmful means of achieving the objective. (paragraph 177)

With these words, the Chief Justice got to the heart of the deficient legal analysis in the Aadhaar Majority. As I have noted previously, the Aadhaar Majority treated the “least restrictive alternative” element of the proportionality standard in an utterly cavalier fashion, refusing to consider relevant facts, and presenting no analysis of the legal burdens involved. For the Chief Justice, on the other hand (and also for Chandrachud J.), it was a critical element of the test, with the burden lying upon the State (especially because relevant information lay with the State). And, in particular:

In the event that the court is of the view that there is a tie then the claimant must prevail for the reason that in constitutional litigation the attitude of the court must be that the right or freedom prevails unless the violation is clearly justified. This approach ensures that the guarantee given by the Charter is maintained. (paragraph 203)

In this context, the Chief Justice went on to find that the State had provided no evidence that mandatory enrolment with criminal sanctions was the least intrusive way of achieving its goal (the Chief Justice distinguished this from Indian Supreme Court proceedings, where the evidence was litigated in some detail). Noting that there was no real evidence about the scale of the existing problems that necessitated this measure, the Chief Justice therefore held that it failed the test of proportionality. (paragraph 228)

After this, the Chief Justice turned to the nature of biometric systems. Here, he began his analysis with the following observation:

For that [i.e., the analysis of biometric systems] I rely on the judgment of Dr Dhananajaya Chandrachud J in Puttaswamy (delivered September 26, 2018). From reading the judgments in this case Dr Chandrachud J, in my respectful view, demonstrated a greater sensitivity to the issues of privacy and freedom that is not as evident in the judgments of the majority or the other judges who delivered concurring judgments. His Lordship had a clear-eyed view of the dangers of a state or anyone having control over one’s personal information and generally I preferred his approach to the issue over that of the other judges. (paragraph 230)

This, of course, is a very polite and respectful way of saying to the Aadhaar Majority, “you just didn’t get it, did you?” And what was it that the Aadhaar Majority didn’t get? Citing paragraphs 120 to 126 of Chandrachud J.’s dissent, the Chief Justice then observed that:

… his Lordship’s major point was that it is one thing to collect biometric data in the context of a criminal investigation and prosecution but quite another to have extensive biometric data collection outside of that context. The reason is that generally there is extensive and detailed provision regarding the collection and use of biometric information in the criminal law context. So far, in the context of general collection of biometric data outside of the criminal law context, it is likely to result in violations of fundamental rights unless there are very strict and rigorous safeguards because once there is a breach of the database the information taken is unlikely to be recovered in full. (paragraph 234)

Even more importantly, the Chief Justice then cited paragraphs 128 to 131 of Chandrachud J.’s judgment, dealing with identification systems, to observe that:

This passage is highlighting the risk of the combined effect of technology with control over data. Unlike the majority in Puttaswamy (September 26, 2018) who seemed to have taken a rather benign view of this aspect of the matter Dr Chandrachud J destroyed the notion that merely because similar or identical information is already in the possession of the state that in and of itself makes taking of such information again legitimate. His Lordship clearly understood the implication of collecting biographical information, combining it with biometric then automating the process with supporting algorithms. Add to that the possibility of profiling. This scenario translates into great power over the lives of persons especially when that data and technology are in the hands of the state and powerful private actors as in Google, Amazon and the like. Of course, with the latter, the engagement is consensual or at the very least the person can opt out after sometime. What NIRA is proposing is control over vast amounts of data, no opt out and linking the data held in different silos by a unique identification number, thereby reducing anonymity even further and increasing the possibility of profiling and generating new information about the data subject. (paragraph 237)

What the Chief Justice understood – and what Chandrachud J. had understood in his dissent – was, of course, the existential peril posed to freedom and privacy that stemmed from merging silos of information, and the ways in which that could be used to generate entirely new sets of information, as well as facilitate profiling. As the Chief Justice observed, devastatingly, “respectfully, the majority in Puttaswamy (September 26, 2018) did not seem to have a full understanding of this and its implications in the say that has been demonstrated by Dr Chandrachud J.” (paragraph 238) On the basis of this bedrock of analysis, then, the Chief Justice went on to hold that NIRA unjustifiably and disproportionately impacted privacy. And in the course of his analysis, he also echoed Batts J., noting – crucially for our purposes – that “the most remarkable thing is that no submission was made to indicate how, for example, a voluntary scheme would prevent the state from providing reliable, safe and secure identification to its citizens or ordinary residents who wish to be part of the scheme.”

Lastly, the Chief Justice also found that Chandrachud J.’s dissenting opinion better articulated the shape and design of a data protection authority that could pass constitutional muster:

I adopt the following paragraph from his Lordship’s judgment at paragraph 236 and apply with such modifications are necessary for application to NIRA. His Lordship stated: An independent and autonomous authority is needed to monitor the compliance of the provisions of any statute, which infringes the privacy of an individual. (paragraph 247(88)).

The absence of any such authority was, therefore, another reason to hold the statute unconstitutional.

Conclusion

The Chief Justice set out his conclusions from paragraphs 245 to 254, striking down substantial portions of the Act, and then holding that they could not be severed – and therefore, the statute as a whole had to fail. Like the judgment of Batts J., the Chief Justice’s judgment is a fascinating study in its own right – in particular, in its assessment of the specific details of the NIRA system, in how it deals with the probabilistic character of biometric identification, the articulations of standards and burdens, the discussion of proportionality and the rebuttal of the State’s arguments that the Court must stay out of policy domains, and – very interestingly – in its disagreement with Bhushan J.’s concurring opinion on Aadhaar, on whether “national security” could be a ground to divulge personal information. Refreshingly, the Chief Justice held that the use of such terms was nothing more than a “Trojan Horse”, which would make the entire point of protecting fundamental rights illusory.

As the above discussion illustrates, however, for us, the most fascinating aspect of this judgment is the in-depth dialogue it undertakes with both the Majority and the Dissent in Aadhaar, on their own terms – and the rigorous and detailed reasons it gives for choosing to follow the Dissent over the Majority.

To end with Hughes again. His full quote reads:

A dissent in a court of last resort is an appeal to the brooding spirit of law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting justice believes the court to have been betrayed.

 

But there are some occasions in history when the betrayal into error is recognised not within, but without. Sometimes, we need friends and colleagues in other parts of the world to hold up the mirror that we are unwilling or unable to look into. Perhaps it is the fate of the Aadhaar Dissent to travel around the world, a light in dark places, long before it is recognised by the brooding spirit of law in its homeland, and the error is corrected at last.

One can but hope.


(Disclaimer: The author was involved on the side of the Petitioners in the Aadhaar challenge.)

Judicial Evasion and the Electoral Bonds Case

On this blog, we have discussed on many occasions a phenomenon that I have labeled “judicial evasion”: by keeping a case pending, and delaying adjudication, the Court effectively decides it in favour of one of the parties (most often, the party in a stronger position, i.e., the government), simply by allowing status quo to continue. A form of judicial evasion has been visible in, for example, the six-year delay in hearing the Aadhaar case (discussed here), the continuing non-decisions in the Delhi v Union of India case (partially discussed here), and the refusal by the Supreme Court to adjudicate the legality of the Bombay High Court censoring a film (discussed here).

However, the Supreme Court’s interim order yesterday in the electoral bonds case presents a textbook example of the subject under discussion. Recall that the electoral bonds case involves a constitutional challenge to the government’s electoral bonds scheme, a method of political funding that is marked by donor anonymity and the elimination of caps on corporate funding (for an extended discussion, see here). After hearing parties for three days, yesterday, the Supreme Court passed an interim order where it refused to stay the scheme, and directed that the details of funding through electoral bonds be made available by political parties to the Election Commission, in a sealed cover, by May 30 (after the end of the general election).

There is a lot to be said for the continuing use of “sealed covers” (especially in a case about the voter’s right to know the sources of public funding), but here, I want to focus on paragraph 11 of the Order, where the Court notes that:

All that we would like to state for the present is that the rival contentions give rise to weighty issues which have a tremendous bearing on the sanctity of the electoral process in the country. Such weighty issues would require an indepth hearing which cannot be concluded and the issues answered within the limited time that is available before the process of funding through the Electoral Bonds comes to a closure, as per the schedule noted earlier.

This may sound reasonable. It is, however, deeply disingenuous. What the Court does not mention here is that the constitutional challenge was filed in early 2018, more than a year ago. It is not as if the petitioners sat on their hands, and waited for the general elections to begin, before rushing to the Court. The scheme was challenged almost immediately after it was enacted into law, notice was issued, and then … nothing happened. In the meantime, electoral bonds were issued on multiple occasions by the SBI, and a significant amount of political funding (more than a hundred crores) was secured through that mechanism, the overwhelming bulk of it going to the ruling party (recall that one of the grounds of challenge is that because of asymmetric anonymity, the scheme unduly favours whichever political party is in power).

The issues at stake were as “weighty” in early 2018, as they are now. Surely, the Court knew this. Furthermore, At the time, there were strong protests against the scheme, and later in the year, a former Chief Election Commissioner publicly criticised them. Everyone knew that general elections would be held in spring 2019. And surely, the Court also knew that an “in-depth hearing” would be required to adjudicate upon the issue. So, to turn around now and act as if these are all fresh developments, that have ambushed the Court unawares, will simply not do: the responsibility for why this hearing only ended up taking place in the middle of the elections, when the Schedule for issuing the Electoral Bonds is more or less over rests solely upon the Court, and it is therefore not open to the Court to now shrug it off by kicking the can off the road.

In paragraph 12, the Court then notes that:

The Court, therefore, has to ensure that any interim arrangement that may be made would not tilt the balance in favour of either of the parties but that the same ensures adequate safeguards against the competing claims of the parties which are yet to be adjudicated.

 

But the Court’s method of ensuring a “balance” is a strange one, because it is effectively to simply let the scheme continue. Ordering that the details of the donations be made available to the Election Commission in a “sealed cover” accomplishes the square root of zero: it would make sense if there was suspicion of illegality. However, the entire constitutional challenge is based on the argument that the Electoral Bond Scheme legalises  wholesale political corruption by allowing for limitless, secret corporate donations to political parties. How exactly, then, has the Court “balanced” the interests of the parties, especially given that a massive chunk of funding through electoral bonds has already taken place over the previous year, because of the Court’s own failure to hear the case?

It is also unclear why three full days of hearing were not enough for the Court to come to a firm conclusion about the prima facie unconstitutionality (or not) of the Scheme, and allow or disallow a stay accordingly. Recall that this is a Court that regularly grants stays on notice day itself, including on issues that are highly complex (the present Chief Justice himself, for example, stayed this very complex Delhi High Court judgment on genetic discrimination on the very first day of hearing). The same Chief Justice has wrapped up two Constitution Bench cases (involving complex issues on separation of powers and on the RTI) within three to four days of hearing, each. How, then, is it suddenly the case that three days of argument are insufficient for grasping the constitutional issues involved in the electoral bonds case?

Ultimately, this has proved to be yet another example of the Court talking a good talk, but failing to act on it when it comes to the crunch. For the last fifteen years, we have multiple judgments of the Court extolling the voter’s “right to know” as an element of Article 19(1)(a), as integral to free and fair elections, as a cornerstone of democracy, and so on. But when it comes to testing these propositions in an actual case – in a constitutional challenge to State action – all these principles suddenly seem to be writ in water.

At the end of the day, however, what stands out in this case is the element of judicial evasion: an issue crucial to democratic functioning, one that concerned the sanctity of the democratic process itself – the very area that Courts are supposed to stand the most vigilant guard over – was allowed to linger until it became more or less academic (as far as the ongoing elections are concerned). One can only hope that this interim order does not now meet the fate of the Aadhaar case, and remain “interim” for the next half-decade.

The Supreme Court’s Judgment on the Maintainability of the Rafale Review: Some Salient Features

In a judgment handed down today, the Supreme Court rejected the Government’s objections against the maintainability of the review petitions in the Rafale Case. More specifically, during the hearing, the Attorney-General had objected to the production of three newspaper articles published in The Hindu. The AG had argued that as these documents had been unauthorisedly obtained from the Defence Ministry, and as they pertained to issues concerning national security, they should not be admitted as evidence. It was this contention that the Court rejected today, paving the way for a full merits hearing of the review petition.

The concurring opinions of the Chief Justice and of Joseph J., for the most part, articulate settled legal principles. Both judgments hold that the manner in which a document has been obtained does not ordinarily affect the question of its admissibility in court. Under the Indian Evidence Act, the standard is that of relevance: as long as a piece of evidence is relevant, even if it has been illegally obtained, that will not prevent a court from admitting and considering it. Both judgments then also note (although for different reasons) that the AG’s reliance on Section 123 of the Evidence Act – which prohibits evidence from being taken on “unpublished official records relating to any affairs of State” – is misplaced and incorrect, as is his reliance on the Official Secrets Act. With the AG’s affirmative defences having failed, and on the relevance standard of the admissibility of evidence, both judgments then conclude that the review petition is maintainable.

The Opinion of the Chief Justice 

So far, so good. Both judgments, however, have other interesting aspects that merit some study. The Chief Justice, for example, embarks on a brief consideration of the law relating to the freedom of the press, and while analysing The Pentagon Papers case from the United States, has this to say:

By a majority of 6:3 the U.S.  Supreme Court declined to pass prohibitory orders on publication of the “Pentagon Papers” on the ground that the Congress itself not having vested any such power in the executive, which it could have so done, the courts cannot carve out such a jurisdiction as the same may amount to unauthorized judicial law making thereby violating the sacred doctrine of separation of powers.  We do not see how and why the above principle of law will not apply to the facts of the present case.  There is no provision in the Official Secrets Act and no such provision in any other statute has been brought to our notice by which Parliament has vested any power in the executive arm of the government either to restrain publication of documents marked as secret or from placing such documents before a Court of Law which may have been called upon to adjudicate a legal issue concerning the parties. (paragraph 6)

I want to focus on the underlined lines, because they express a position of law that the Supreme Court has emphatically not been adhering to in recent times. In PILs to ban books and censor films – filed both before the High Courts and the Supreme Court – where the statutory framework for regulation is very clear, it is the Supreme Court that has “carved out … a jurisdiction” for itself, where it considers such pleas for bans, and returns findings on merits. The apotheosis of this was ex-CJI Dipak Misra’s judgment in Meesha (discussed here), which shredded the scheme of the CrPC by granting direct jurisdiction to ban books to the higher judiciary, as opposed to its more limited actual remit, which was to judicially review executive-ordered book bans. Paragraph 6 of the Chief Justice’s opinion in today’s judgment is a salutary reminder that separation of powers concerns preclude the Supreme Court and the High Courts from entertaining PILs asking for book bans or film bans, and hopefully, it is a reminder that will be heeded in the future.

The second interesting aspect of the Chief Justice’s judgment speaks to an argument that was vehemently advanced by the AG during the hearing. When confronted with the incontestable legal proposition that the source or manner in which a document has been obtained has no bearing on its admissibility as evidence, the AG then turned tack and argued for carving out an exception to that rule for cases involving national security. In other words, he asked for a blanket exemption, from judicial review, of any material that (in the opinion of the State) had implications for national security. As many people noted at the time, this is a profoundly dangerous argument that would, among other things, end up gutting the Right to Information Act. From that perspective, the Chief Justice’s emphatic rejection of the argument (paragraph 11) can allow all of us to breathe a sigh of relief. Even under existing legal doctrine, the judiciary invariably accords to the State a very high level of deference on issues of national security; a blanket exemption from consideration altogether would, however, go against entire idea of constitutional supremacy in a democratic republic.

The Opinion of Joseph J.

Justice Joseph’s opinion, as well, has some thought-provoking arguments. While the Chief Justice dismisses the AG’s arguments on privileged documents on the ground that they were no longer “unpublished”, and the RTI/Official Secrets Argument on the ground that these were simply inapplicable to the case, Justice Joseph embarks upon a more elaborate examination of both. In particular, following the Chief Justice’s analysis on the issue of blanket exemptions to admissibility, Justice Joseph holds that Section 123 of the Evidence Act is now subject to the RTI (paragraph 24) more importantly, he holds that with the onset of the RTI regime, the State can no longer claim privilege for an “entire class of documents” (by, for example, invoking “national security), and immunise them from public scrutiny. (paragraph 20) Rather, the RTI regime now requires any such claim by the State to be assessed on a case-to-case basis, with considerations of public interest central to the enquiry. This, again, is important in a world where the State regularly invokes “national security” as a shibboleth to prevent any further discussion.

It is on the question of relevance and illegally obtained evidence, however, that I have my only point of criticism to make. Towards the end of his judgment, Joseph J. observes that:

I would observe that in regard to documents which are improperly obtained and which are subject to a claim for privilege, undoubtedly the ordinary rule of relevancy alone may not suffice as larger public interest may warrant in a given case refusing to legitimise what is forbidden on grounds of overriding public interest. (paragraph 31).

He then goes on to hold, however, that since the present case pertain to allegations of corruption in high places, the public interest justifies admitting the documents. This, in my view, is a completely unnecessary muddying of the waters. The Chief Justice’s opinion is crystal clear on how courts should not be creating new sets of jurisdictions that limit or censor expression. The rule of relevance is a straightforward one, and it is difficult to see why a further “public interest” requirement needs to be introduced here.

Conclusion

The Supreme Court’s judgment(s) today provide a welcome restatement of long-settled legal principles. They further affirm the regime of transparency that already existed under common law, an was then significantly strengthened by the RTI – as opposed to the regime of secrecy represented by the Official Secrets Act and shibboleths of “national security.”

That said, however, to me, it remains a matter of some concern that these arguments were made in the first place, and needed two detailed judgments to rebut. Like the broader public discourse, judicial discourse also has an Overton window; and it is difficult to see the AG’s arguments as anything other than an attempt to shift that window, and to make a set of fringe – almost laughably off-piste – arguments respectable. It may perhaps, therefore, have been even better if the Supreme Court had rejected them out of hand, rather then giving them a veneer of respectability by hearing them out, reserving orders, and then delivering a judgment on merits.

Once that was done, however, there is little doubt that today’s judgment(s) unambiguously reject the State’s attempts to overturn the gains of the RTI and re-establish colonial-style secrecy; and for that, they ought to be welcomed.