The RTI Amendments: Constitutional Statutes in Precedent and Practice

In the previous two posts, Malavika Prasad and I have developed the concept of a “constitutional statute”, in the context of the recent amendments to the Right to Information Act. In the first post, I argued that a constitutional statute provides a statutory framework towards implementing a fundamental right, thereby fulfilling the State’s positive obligation to do so. This is what justifies the status of the Information Commissioners under the RTI, and the requirement of independence – akin to election commissioners and judges – flowing therefrom. In the second post, Malavika further refined the idea, arguing that not every statute implementing a fundamental right has the status of a constitutional statute. There must either be a delegation to Parliament expressly envisaged in the Constitution itself (such as the case of elections), or the statute must – in some way – regulate the relationship between the individual and the State; and it is the manner in which that relationship is structured that gives rise to the specific constitutional implications at issue (such as, in the case of the RTI, the requirement of that Information Commissioners be independent).

In this concluding essay in the series, I will address one important objection to this argument: that because, unlike Election Commissioners and Judges, Information Commissioners do not have formal constitutional status, it follows that the constitutional safeguards applicable to the former (especially the safeguarding of independence and autonomy) cannot apply to the latter. The theoretical justification was provided in the first post, where I discussed Tarun Khaitan’s idea of “fourth branch institutions”, which may or may not find specific place in the Constitution, but which nonetheless perform functions (such as regulating the individual/State relationship in the manner described above) that justify bringing them together under one head when it comes to issues such as independence and autonomy. And in this post, I will conclude the argument by discussing how this proposition has already been affirmed by the Supreme Court, in the context of cases involving the Central Vigilance Commission (CVC) and the Central Bureau of Investigation (CBI).

Recall that, upto a point, neither the CVC nor the CBI had any statutory foundation. That changed in Vineet Narain v Union of India. Recall that the case arose out of an allegation that the CBI was not doing its job under political pressure. After passing a series of interim orders effectively placing various investigations under its direct supervision, in its final judgment, the Supreme Court made the following observations:

In view of the common perception shared by everyone including the Government of India and the Independent review Committee (IRC) of the need for insulation of the need for insulation of the CBI from extraneous influence of any kind, it is imperative that some action is urgently taken to prevent the continuance of this situation with a view in ensure proper implementation of the rule of law. This is the need of equality guaranteed in the Constitution. The right to equality in a situation like this is that of the Indian polity and not merely of a few individuals. The powers conferred on this Court by the Constitution are ample to remedy this defect and to ensure enforcement of the concept of equality.

In other words, therefore, the independence of the CBI – as a body tasked with investigating offences that often involved powerful and politically influential people – flowed from the constitutional principles of equality and the rule of law. Having noted this, the Court then passed legislative guidelines under Article 142 (the Vishaka technique), which would hold the field until a suitable statutory framework was established. The Court once again repeated that these guidelines were being passed in order to implement equality and the rule of law.

And what of the Guidelines themselves? Apart from insisting that the CVC be given a statutory basis, the Court also laid down a number of guidelines to ensure independence: these included setting out the appointments process, specifying that the tenure of the CVC Director would be two years (recall that a fixed tenure is exactly what the RTI amendments have now done away with), putting brakes on transferring the CBI Director (another thing the RTI amendments now enable), and so on.

In other words, therefore, Vineet Narain stands for two propositions that are relevant to us. First, the Court found that the purpose of the CVC and the CBI was to – inter alia – guarantee the constitutional principles of equality and the rule of law, by ensuring that the highest and most influential of people would be brought to book if they broke the law. Flowing from this, the Court laid down a set of guidelines to ensure the independence of the officers in these posts. And secondly, the Court’s opinion was that fixed tenure and constraints upon transfers were crucial aspects of guaranteeing such independence.

Let us now fast-forward twenty-one years, to the notorious Alok Verma case of late 2018. Recall that the core issue in that case involved the transfer of the CBI Director. Of course, in 2018, there was a statutory framework. The CVC Act had been brought into force, and the DSPE Act had been amended to include the CBI Director. The Supreme Court’s guidelines – including those on independence – had been legislatively enacted. The question in Alok Verma involved the interpretation of that statutory framework.

After going through the history of the CVC and the CBI, in paragraph 24, the Court noted the submission of Alok Verma’s counsel:

Shri F.S. Nariman and Shri Dushyant Dave, learned Senior Counsels, who have argued the case for Shri Alok Kumar Verma, Director, CBI and Common Cause have contended that the history of the institutional framework surrounding the CBI leading to the statutory enactments in question and the views expressed in the judgment of this Court in Vineet Narain (supra), including the operative directions under Article 142 of the Constitution, can leave no doubt that the judicial endeavour should/must always be to preserve, maintain and further the integrity, independence and majesty of the institution i.e. CBI. This is the core intent behind the statutory enactments and the amendments thereto, details of which have been noticed. The Director of the CBI is the centre of power in an abundantly powerful organization having jurisdiction to investigate and to prosecute key offences and offenders having great ramifications and consequences on public life. There can be no manner of doubt that the Director who has been given a minimum assured tenure of “not less than two years” must be insulated from all external interference if the CBI has to live up to the role and expectations of the legislature and enjoy public confidence to the fullest measure. This is how the provisions of the cognate legislations i.e. the CVC Act, 2003 and DPSE Act, 1946 (as amended), must be interpreted, according to the learned counsels. It is specifically urged that the embargo under Section 4B(2) of the DSPE Act which mentions that the Director shall not be transferred except with the previous consent of the Committee must be construed in the broadest perspective to include any attempt to divest the Director, CBI of his powers, functions, duties, etc. in any manner whatsoever and not necessarily relatable to the transfer of the incumbent as is understood in ordinary parlance. According to the learned counsels, unless such a meaning is attributed to the provisions of Section 4B(2) of the DSPE Act, the legislative intent would be rendered futile and so would be the entire judicial exercise culminating in the operative directions of this Court in Vineet Narain (supra).

I have extracted the entire paragraph because, in essence, what Fali Nariman and Dushyant Dave argued in Alok Verma’s case is precisely the argument we are making here for constitutional statutes. The analysis starts with the functions being performed by the body. If these functions include implementing a constitutional right and standing between the individual and the State, then certain further requirements flow from that. One specific requirement is that of independence and autonomy (a characteristic feature of constitutional functionaries) – in turn, guaranteed by a fixed tenure, constraint upon transfers, and so on. And most notably, these requirements exist independent of the fact that the officials in question are not formally constitutional functionaries, and also, independent of the specifics of the statutory framework in place; rather, they flow from constitutional imperative, with the task of the statutory framework being to supplement and give effect to them (which is exactly why, in the absence of a statute, the Supreme Court passed legislative guidelines in Vineet Narain; without the above analysis, it should be clear, the Court could not have done what it did in Vineet Narain).

Notably, in Alok Verma’s Case, the Supreme Court agreed with this argument. In paragraph 32, it noted that the statutory framework of the CVC Act and the DSPE Act was a “sequel” to the directions in Vineet Narain (which, in turn, it is important to reiterate, flowed from the constitutional function being performed by the CBI). The Court then noted in paragraph 33 that – specifically – Vineet Narain’s observations on independence and insulation – grounded in the right to equality and the rule of law – “hold a special field.” The Court then applied these principles to interpret the DSPE Act and find that Alok Verma’s transfer was not in accordance with law.

Reading together the judgments in Vineet Narain and Alok Verma, what clearly emerges is the fact that even though the CBI was not – and never had been – provided for in the Constitution, its role and functions (implementing fundamental rights and standing between individuals and the State) required a guarantee of independence in a manner broadly similar (although, of course, different in the particulars) to constitutional functionaries. In particular, security of tenure and constraint upon transfers were treated as vital to securing that independence.

There is precedent, therefore, for the argument to treat the Information Commission as a “fourth branch” institution similar to the CBI. Although, of course, the two bodies perform very different functions, what unites them is that they implement fundamental rights, and – in different ways – stand between individual and State, with a view to making the latter accountable to the former. This is what gives the statutory framework regulating these bodies the status of constitutional statutes, and this (especially the latter) is what requires guarantees of independence with which the statutory framework itself must comply. And the focus on tenure and transfers shows that a dilution in those areas does undermine independence, and that therefore, a strong case can be made for holding it to be unconstitutional.

Guest Post: RTI and the Idea of a Constitutional Statute

(This is a guest post by Malavika Prasad.)


The RTI Amendment Act 2019 has been critiqued for compromising the independence of the RTI’s “nerve-centre” – the Information Commissioners [“ICs”] and the Chief Information Commissioner [“CIC”]. It is argued that “the RTI Act was designed to redress the imbalance of power between citizens and the State…” In that context, the CIC and ICs, being tasked with “adjudicating between the two…”, need to be independent of the State. The Amendment – it is argued – eviscerates the ability of the CIC and ICs to be independent, because government gets to “control the terms of appointment as well as the salaries of the information commissioners.”

An alternate view has been that the mere conferral of rule-making power on government to decide tenure, salary and conditions of service, is not sufficient to conclude that independence of ICs and the CIC is at stake. Moreover, the amendment specifies two protections: “salaries, allowances and other conditions of service of” CICs or ICs “shall not be varied to their disadvantage after their appointment”, and the CIC and ICs appointed prior to the Amendment shall continue to be governed by the provisions of this Act and rules that were applicable then. These would prevent government from willy-nilly targeting inconvenient officers through its rule-making power, particularly since the provision on removing ICs and the CIC remains untouched by the Amendment. Any further comment on the loss of independence from government, for ICs and the CIC will only be possible once the new rules are enacted, the argument goes.

In this post, I attempt to develop a normative account of “constitutional statutes”, which Gautam Bhatia asserts the RTI is a classic example of. I then propose that for “constitutional statutes” of the type at issue here, the Constitution structurally requires independence between the government and the institutions at issue. On that account, I will attempt to answer the question whether the mere conferral of rule-making power by government to decide salaries and conditions of service, without more, is unconstitutional.

What might a constitutional statute be?

Bhatia argues that “constitutional statutes” are those statutes “enacted in pursuance of the State’s positive obligation to fulfil a constitutional right.” Other jurisdictions such as the UK have used this formulation as well. Lord Justice Laws, in Thoburn v Sunderland City Council [2002] 3 WLR 247, held that a constitutional statute “enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.” What exactly is the State’s obligation towards “fulfilling a constitutional right”? Constitutional rights are merely the floor. While governments have a positive obligation to ensure no individual is subject to treatment below the floor, there is no constitutional prescription on the extent to which government ought to positively fulfil the right above the floor. Any step taken by government to fulfil a right, to any extent above the floor stipulated in Part III, is a step towards discharging its positive obligation. On this reasoning, arguably, all laws are enacted in pursuance of the State’s positive obligation to fulfil constitutional rights.

But is this sufficient to make all such laws “constitutional statutes”? I think not. Something more is required.

For clues on what might qualify as “constitutional statutes”, I propose to rely on the structure of government as gleaned from constitutional text. In drawing inferences about constitutional principles from the structure of the government and its relationship with other institutions and citizens, I make what theorists like Phillip Bobbitt and Charles Black call a “structural argument.”

Some constitutional provisions state that the domain of that provision will be open for Parliament to legislate on, so long as the legislation is in line with the Constitution. Article 327 is one such provision:

327. Power of Parliament to make provision with respect to elections to Legislatures: Subject to the provisions of this constitution, Parliament may from time to time by law made provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.

The power allowed to Parliament in Article 327 extends to “all matters relating to, or in connection with, elections to either House…”. The only caveat is that the parliamentary power shall be “subject to the provisions of this Constitution.”  Should Parliament choose to exercise this power allowed to it, in line with the constitutional provisions in the domain of elections, Parliament will be enacting a “constitutional statute” by fleshing out rules in line with the constitutional logic for that domain. Thus, the Representation of the People Acts (RPA) of 1950 and 1951 are “constitutional statutes”. This understanding is somewhat in line with Lord Justice Laws’ second formulation in Thoburn: that a constitutional statute “conditions the legal relationship between citizen and State in some general, overarching manner.”

Is the RTI Act a constitutional statute?

If Parliament enacts laws in the election domain under Article 327, it ought to obey the following provisions:

  1. On “conditions of service and tenure of office” in the proviso to Article 324(5): The conditions of service of the Chief Election Commissioner (CEC) cannot be varied to his or her disadvantage after appointment.
  2. On removal from office in Proviso to Article 324(5):
    1. The CEC cannot be removed from office except by following such procedure and on such grounds that Judges of the Supreme Court may be removed.
    2. Election commissioners and regional commissioners cannot be removed from office except by recommendation of the CEC.

The requirement of parity between Judges of the Supreme Court and the CEC on the question of removal from office is telling. Judges can be removed from office only by an order of the President, supported by a majority of the members of both Houses of Parliament and two-thirds present and voting, on grounds of “proven misbehaviour or incapacity” (Article 124(4)). The purpose of such a stringent removal provision is to guard the independence of the Supreme Court from government’s executive power – which can otherwise be used to willy-nilly target judges tasked with adjudicating cases in which government is a litigant. It is this same kind of structural independence that Article 324 intends to preserve between the Election Commission and government, in the removal clause, to enable it to be a neutral arbiter between government, voters, and candidates and parties contesting elections. By extension, all the requirements of Article 324 can be understood in terms of the need to preserve the Election Commission’s institutional independence from government. Thus, the RPAs and other laws enacted Parliament under Article 327 will thus have to be in line with this constitutional mandate.

Crucially, therefore, it follows from the structure of the Election Commission/Supreme Court and their relationships with government, that the Constitution is committed to ensuring the independence of all institutions tasked with being an arbiter between government and citizens. The RTI Act – which seeks to enable ICs and the CIC to be arbiters on the question whether government-information is disclosable or privileged – would thus also be covered by this principle. If the RPA, 1950 and RPA 1951 are constitutional statutes, then the RTI Act, by necessary inference, would also be a constitutional statute. In fact, the unamended RTI Act mandated that salaries and conditions of service of ICs and the CIC be the “same as that of” Election Commissioners and the CEC.  This shows that even the enacting Parliament understood the RTI Act to be structurally similar to the RPAs and the election law regime.

What turns on the RTI Act being a “constitutional statute”?

That the RTI Act is a “constitutional statute” does not automatically make the 2019 amendment unconstitutional. The devil, as they say, is in the details.

Returning to the structural analysis of the Election Commission, we find that the Constitution contemplates its institutional independence on two fronts: varying the conditions of service of the CEC, and procedure for removal from office of the CEC and election commissioners/regional commissioners. The rules on these two aspects, encoded in Article 324(4) are the express textual constraints on Parliament’s power to enact the “constitutional statute” on elections under Article 327. So long as a parliamentary law does not violate the rules on the two fronts read purposively, and other provisions of the Constitution generally, Parliament’s power to enact the “constitutional statute” is plenary. This is evident from the text of Article 327 which allows Parliament the power to legislate on “all matters relating to, or in connection with, elections to either House…” – the significance of which becomes clear when compared with the more limited power to legislate on merely the time, place and manner of elections that is allowed to state legislatures and the Congress in Article 1, Section 4 of the American Constitution. If Parliament enjoys a plenary power to enact laws on elections subject to the express constraints in Article 324(5) and other provisions of the Constitution, then Parliament’s power to enact other structurally similar constitutional statutes such as the RTI Act must be bound by structurally similar constraints.

The RTI 2019 amendment does not permit varying conditions of service of the CIC and ICs to their disadvantage after appointment. Likewise, it does not change the rules on removal of the CIC and ICs, which, under Section 14 of the Act, can be done only on “ground of proved misbehaviour or incapacity” after a Supreme Court inquiry on a reference of the President. Thus, as a constitutional statute, the RTI 2019 amendment obeys the requirements laid out in the Constitution for institutions such as the Election Commission, which are structurally and relationally similar to ICs and the CIC.

The tenure of ICs and the CIC, which was statutorily fixed at five years, is now, along with salaries and other conditions of service open to government to prescribe by way of rules, per the 2019 amendment. Can the mere conferral of rule-making power on government on these aspects be constitutionally suspect? Article 324(5) leaves the tenure and conditions of service of election commissioners and regional commissioners to the power of Parliament under Article 327. Parliament ought to enact laws in this regard, towards fulfilling the purpose of ensuring the Election Commission’s independence from government, and in line with the Constitution’s provisions generally. The Parliament may choose to do this by delegating rule-making power in this regard to government, since the mere act of delegation of legislative power does not compromise institutional independence or violate other provisions of the Constitution. Applying the same reasoning to the RTI context, the RTI is a constitutional statute which must ensure independence of ICs and the CIC from government. Consequently, any delegated legislation enacted by government empowered to do so by the RTI 2019 amendment will need to preserve the independence of ICs and the CIC and be otherwise constitutional.  This inquiry, however, can only be done once rules are enacted by government.

The Amendments to the Right to Information Act are Unconstitutional

Yesterday, the Rajya Sabha passed a set of amendments to the Right to Information [“RTI”] Act of 2005, clearing the way for their enactment into law (after Presidential assent). These amendments – as I have summarised here – effectively undermine the independence of the Information Commissioners, by bringing their salaries and terms of appointment under the control of the central government.

In this essay, I will argue that these amendments are unconstitutional. The argument is a complex one, and so, I will set out the fundamental premises at the beginning, before developing each in turn. These are:

A. The right to information is a fundamental right. It is an aspect of Article 19(1)(a) of the Constitution (the freedom of speech and expression).

B. The Constitution’s guarantee of fundamental rights includes a guarantee of those incidental and ancillary aspects that are necessary to ensure that the right is effective, and not merely illusory.

C. Fundamental rights under the Indian Constitution have a negative and positive dimension. In their negative dimension, they protect the individual against State interference. In their positive dimension, the State is required to take affirmative action to respect, protect, promote, and fulfil these rights.

D. The Court cannot direct the Parliament to legislate in order to discharge its positive obligations under Part III of the Constitution. However, what the Court can do – and has done – is (1) in case of a legislative vacuum, to pass guidelines that have statutory force until a law is enacted, and (2) if a law exists, to test whether it fulfils the State’s positive obligations under Part III.

E. In case of (2), if the Court finds that the legislation comes up short, it can – and has – interpreted or struck down parts of the statute with a view to bringing it in compliance with constitutional requirements.

F. It follows logically from (E) that if an existing statute that meets the positive obligations of the State under Part III is downgraded (via amendment) to a level where it no longer does so, the Court can – and should – strike down the amendments and restore status quo.

Conclusion: On a combination of (D2) and (F), the RTI Amendments are unconstitutional. The RTI is a classic example of a “constitutional statute” – i.e., a statute enacted in pursuance of the State’s positive obligation to fulfil a constitutional right. Judicial review extends to testing whether it does so, and to fashioning an appropriate remedy if – and depending on the manner in which – it fails to do so. In this case, that remedy is striking down the amendments and restoring the pre-amended RTI. This remedy does not amount to directing the State to legislate, and does not amount to judicial overreach.

A. The Right to Information is a Fundamental Right under Article 19(1)(a) of the Constitution

As recently as 2013, the Supreme Court held – in a judgment dealing with the Right to Information Act – that “the right to information is a facet of freedom of speech and expression contained in Article 19(1)(a) of the Constitution of India… [the] right to information thus indisputably is a fundamental right, so held in several judgments of this Court.” This Supreme Court has consistently maintained this position – over decades – and there is little need to set out the plethora of judgments affirming this proposition.

Apart from being firmly entrenched in judicial precedent, the reading in of the right to information into the freedom of speech and expression makes eminent sense as a matter of first principles. For more than a century now, one of the three core underlying justifications of the freedom of speech and expression has been its importance to democracy. Only through the free flow of ideas and information – it is rightly argued – are citizens in a position to effectively exercise their democratic right of choosing their representatives. It is trite to point out that if information held by State authorities is choked off from the public domain, then the bridge between the freedom of speech and democracy crumbles entirely. The right to information, therefore, is – by necessary implication – entailed within a substantive account of the freedom of speech and expression, without which the latter would be illusory (much like how the right to privacy underlies numerous other civil rights – such as speech, association, movement etc. – and is necessary to make them effective).

B. The Constitution’s guarantee of fundamental rights includes a guarantee of those incidental and ancillary aspects that are necessary to ensure that the right is effective, and not merely illusory.

This, again, is a venerable and incontestable proposition. It has been upheld in a number of cases. One classic example is PUCL v Union of India, where the Supreme Court directed the Election Commission to provide a “None of the Above” [NOTA] option to voters using Electronic Voting Machines. This direction was justified on the basis that NOTA was essential to maintain the secrecy of the ballot as well as the fairness of elections – both of which, in turn, were linked to the freedom to vote under Article 19(1)(a). Note that the Court specifically held that by failing to provide the NOTA option, the Conduct of Election Rules were not only ultra vires the parent statute, but also violated Article 19(1)(a) of the Constitution.

Again, it is unnecessary to multiple examples for the proposition. Its application to the present case should be evident as well: insofar as the independence of the Information Commissioners – who stand between the individual and the State, and are tasked with the implementation of the RTI – is integral to the right to information remaining an effective right, undermining of the same is ipso facto a violation of that right.

C. Fundamental rights under the Indian Constitution have a negative and positive dimension. In their negative dimension, they protect the individual against State interference. In their positive dimension, the State is required to take affirmative action to respect, protect, promote, and fulfil these rights.

This proposition has been affirmed by different judgments in different contexts. For example, in Prithipal Singh v State of Punjab – a case about police atrocities – the Supreme Court held that Article 21 “includes both so-called negative and positive obligations for the State. The negative obligation means the overall prohibition on arbitrary deprivation of life … [while] positive obligation requires that State has an overriding obligation to protect the right to life of every person within its territorial jurisdiction. The obligation requires the State to take administrative and all other measures in order to protect life and investigate all suspicious deaths.” In Amita v Union of India – a discrimination case – the Supreme Court held that “Article 14 of the Constitution of India is both [a] negative and positive right. Negative in the sense that no one can be discriminated against anybody and everyone should be treated as equals. The latter is the core and essence of right to equality and [the] state has obligation to take necessary steps so that every individual is given equal respect and concern which he is entitled as a human being.” The Supreme Court’s much-discussed highway liquor ban judgment, in fact, was based on the argument that the State had failed to discharge its positive obligation to protect life under Article 21, by failing to ban liquor vends next to highways in order to prevent accidents. Examples may be multiplied.

Of course, the most recent – and famous example – of this proposition is the Right to Privacy judgment (and, as we shall shortly see, both the privacy judgment and the subsequent Aadhaar judgment are crucial to this argument). In Puttaswamy (Privacy), Chandrachud J. – writing for the plurality – correctly observed that “the Constitutional right is placed at a pedestal which embodies both a negative and a positive freedom. The negative freedom protects the individual from unwanted intrusion. As a positive freedom, it obliges the State to adopt suitable measures for protecting individual privacy.” As is obvious from the rest of his judgment – noting, in particular, the work of the Srikrishna Committee – suitable measures includes suitable legislative measures.

Let us briefly take stock. It has been established so far that the right to information is a fundamental right, under Article 19(1)(a) of the Constitution. The right to information includes incidental and ancillary aspects that ensure it is an effective – and not illusory – right, one of which is the independence of the individuals charged with implementing the right (particularly against the State). And the right to information requires the State to “adopt suitable measures” guaranteeing its adequate fulfilment. It follows – necessarily – that these “suitable measures” provide for the effective independence of the aforementioned individuals (because, naturally, measures providing for an illusory right to information are hardly “suitable” under any meaning of the word, and hardly effectuate the positive content of the right.

D. The Court cannot direct the Parliament to legislate in order to discharge its positive obligations under Part III of the Constitution. However, what the Court can do – and has done – is (1) in case of a legislative vacuum, to pass guidelines that have statutory force until a law is enacted, and (2) if a law exists, to test whether it fulfils the State’s positive obligations under Part III.

Let me begin this section by quickly getting a red herring out of the way. It is nobody’s case that what follows from (A), (B), and (C) is that the Court can issue a mandamus directing Parliament to legislate a Right to Information Act providing for suitable independence of the Information Commissioners. Such a move would be a blatant violation of the separation of powers, and the Court has not – and should not – resort to it.

At the same time, however, the Supreme Court has devised a set of more conservative remedies to deal with situations where the State refuses to discharge its positive obligations, or discharges them in an illusory fashion. A legendary example of the first kind of case, of course, is the Vishaka Judgment. It is important to note that the Vishaka judgment consisted of two parts. In the first part, the Court returned an affirmative finding that sexual harassment at the workplace was hit by Articles 14 and 15 of the Constitution. In the second part, it found that the State had failed to discharge its obligations by … doing nothing at all. Obviously, the obligation that the Court was referring to was the positive obligation to enact an appropriate law (this much was mentioned, although the Court – admittedly – did not use the word “positive”).

Now, what did the Court do? The Court stated that it would discharge its duty of enforcing fundamental rights under Article 32 of the Constitution by laying down guidelines, and these guidelines would be treated as law under Article 141 until replaced by a statute (something that happened many years later, in 2013). Thus, the Court responded to the State’s failure to discharge its positive obligations by temporarily standing in for it, until Parliament got its act together and legislated to do so.

I want to make one basic point here. If Vishaka is still good law – and nobody argues that it is not – then the argument I make in this essay falls well within the scope of existing judicial precedent. Because if the Court is entitled to make law to discharge positive obligations under Part III where the State has failed to act (1), then surely it is entitled to strike down law that changes an existing legislative framework, bringing it into non-compliance with Part III (2). From the scope of the separation of powers and judicial overreach, the latter is far, far more restrained than the former (although I submit, of course, that it is defensible on its own terms).

E. In case of (2), if the Court finds that the legislation comes up short, it can – and has – interpreted or struck down parts of the statute with a view to bringing it in compliance with constitutional requirements.

But we don’t even need to rely upon Vishaka and reason through analogies. There is an excellent recent example of a case where the Supreme Court found an existing statute to fall below the standards required by positive obligations under Part III, and amended and struck down parts of it in order to bring it into compliance. This is, of course, the Aadhaar Judgment (Puttaswamy II). Recall that in Aadhaar, the Supreme Court found that several aspects of the Aadhaar Act were insufficiently protective of individual data. For our purposes here, these included (a) a five-year storage period for metadata, and (b) authorisation to a Joint Secretary-level officer to disclose Aadhaar data.

What did the Court do? It did three different things. On the first, it held that any period beyond six months was excessive, and consequently, the relevant regulations had to be amended to limit collection to six months (the Court also read down the meaning of “metadata”). On the second – which is most important for us – the Court held that “there has to be a higher ranking officer along with, preferably, a Judicial Officer. The provisions contained in Section 33(2) of the Act to the extent it gives power to Joint Secretary is, therefore, struck down giving liberty to the respondents to suitably enact a provision on the aforesaid lines, which would adequately protect the interest of individuals.

In both cases, therefore, the Supreme Court required the protection level to be scaled up, because on its terms, the legislative framework of the Aadhaar Act fell short of adequately protecting privacy and the right to personal data. In the first case – after finding that the constitutional limit on data retention was six months – it was directed that subordinate legislation be amended to comply; and in the second, the inadequately protective provision was struck down, it was spelt out what adequate protection entailed, and it was left up to the State to “suitably” legislate. Note that it is irrelevant in the first case that subordinate legislation was directed to be amended, because it is not being argued here that the Court can direct Parliament to amend the RTI (or indeed, to legislate the RTI, were it to be repealed). What is relevant here is the Court’s finding that the level of protection afforded by an existing legislative framework was insufficient, its declaration of what was the adequate level (six months and higher-level officer along with a judicial officer), and its fashioning of a remedy (amending subordinate legislation, striking down law to prevent disclosure altogether until suitable protection was offered). And that, it will be noted, is exactly the form of the argument being made here.

F. It follows logically from (E) that if an existing statute that meets the positive obligations of the State under Part III is downgraded (via amendment) to a level where it no longer does so, the Court can – and should – strike down the amendments and restore status quo.

We are now in a position to understand the corollary that flows from the above arguments. There are numerous ways in which the State can fail to fulfil its positive obligations under Part III. It can refuse to enact any legislation. Or it can enact legislation that clearly and self-evidently fails to discharge the obligations in question. In both sets of cases, the Court has fashioned remedies that stop short of a mandamus directing the State to legislate. In the first set of cases, the Court has passed guidelines that hold the field until Parliament steps in. In the second set of cases, it has spelt out how the legislative framework falls short, what manner of framework is minimally necessary for the burden to be discharged, and then – accordingly – fashioned a remedy of changing subordinate legislation or striking down primary law in a way that the pre-existing position (that was more rights-protective) is restored.

But if all this is par for the course, then the argument in the RTI case is positively conservative by comparison. Here, there was no vacuum, and therefore, no requirement for the Court to (effectively) legislate. Nor was there a finding that an originally enacted statutory framework fell short of effectively discharging positive obligations. What was there was an existing framework that did discharge the positive obligation, which was then consciously downgraded to a level that was below effective – or, to put it more bluntly, to a level that made the positive aspect of the right illusory. Now, if the Court – and if you, the reader – agree with the substantive argument that the RTI Amendments undermine the independence of the Commissioners and, by bringing them under governmental control, do make the right illusory – then there can be no doubt that the Court does have the power to strike down the amendments and restore status quo ante. In other words, while there may be a disagreement on the merits of the amendments, if the merits argument is conceded, then there can be no disagreement – based on separation of powers or any other procedural grounds – with the fact that the Court must strike down the amendments as unconstitutional.

Conclusion: On a combination of (D2) and (F), the RTI Amendments are unconstitutional. The RTI is a classic example of a “constitutional statute” – i.e., a statute enacted in pursuance of the State’s positive obligation to fulfil a constitutional right. Judicial review extends to testing whether it does so, and to fashioning an appropriate remedy if – and depending on the manner in which – it fails to do so. In this case, that remedy is striking down the amendments and restoring the pre-amended RTI. This remedy does not amount to directing the State to legislate, and does not amount to judicial overreach.

It remains to clear up a few brief points. One of the government’s justifications for the amendment was that under the old Act, information commissioners had been placed on par with Supreme Court judges and Election Commissioners, which was impermissible, as the latter are constitutional posts. Now, first of all, note that this argument is entirely irrelevant to the core point at issue – which is whether governmental control compromises independence in a manner that makes the right illusory (and indeed, the Supreme Court’s own NJAC judgment has eloquent passages on why the answer to that is a clear “yes”).

There is, however, a more important point to be made here. Yes, formally, Information Commissioners are statutory officers, and they do not occupy constitutional posts. But the matter is not one of pure form: in the beginning of this essay, I had referred to the RTI as a “constitutional statute”, in the sense that it implemented a core fundamental right under the Constitution. Note that this terminology is not new: in the United States, for example, there is the concept of “super-statutes“, which have achieved a “quasi-constitutional significance” beyond ordinary statutes. The phrase “constitutional statutes” itself was used by the famous scholar Charles Beard, who noted that “If we regard as constitutional all that body of law relative to the fundamental organization of the three branches of the federal government–legislative, executive and judicial—then by far the greater part of our constitutional law is to be found in the statutes.” The term has also been used in recent British scholarship.

What I am trying to argue, therefore, is this: we miss the wood for the trees if we draw a facile distinction between the fact that Information Commissioners owe their position to a statute, while judges and Election Commissioners occupy constitutional posts. The whole point of drawing a statutory equivalence between the former and the latter was precisely because the RTI is a constitutional statute, implementing a fundamental right. In substance therefore (although not in form), the Information Commission” is what Tarunabh Khaitan has called a “fourth branch institution“, performing a function that is as valuable (although not formally equivalent) as that performed by the Election Commission or the judiciary. And it follows from this that an attack upon the independence of Information Commissioners needs to be taken as seriously as an attack upon the independence of other, formally constitutional posts.

One final point: subjecting the RTI amendments to a rigorous standard of review is not only well within the judicial domain, but actually, would be part of the classic function of the court acting as a counter-majoritarian institution. By its very nature, the RTI is something that government is instinctively hostile to, as it compels transparency in governance. With the vanishing difference now in India between the executive and the Parliament, the role of the Court in preserving and protecting legislation such as the RTI has only grown in importance.

Consequently, and in sum: the RTI amendments compromise the independence of the Information Commissioners by bringing them under substantive governmental control. The Information Commissioners are tasked with implementing the RTI, and stand between the individual and the State, when the former makes fundamental rights claims upon the latter. Under the existing statutory framework*, therefore, the right to information is illusory without the independence of the Information Commissioners. Consequently, the amendments violate Article 19(1)(a) of the Constitution, and deserve to be struck down, with status quo ante being restored.


*To repeat a point made earlier: the existing statutory framework is crucial to the argument, because that is what the amendments depart from, and that is what will be restored if they were to be struck down. To the question of “what would the Court do if the Parliament repealed RTI altogether?”, the answer is “that brings us into Vishaka territory” – but the fact that Parliament could repeal the RTI has no bearing on what the Court should do when the challenge is to an amendment to the existing framework (and which must therefore be measured against that framework) – and not to a legislative vacuum.

Guest Post: Dimple Happy Dhakad and Normalising Preventive Detention

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


[This is a blog post by Abhinav Sekhri, first published on The Proof of Guilt, and cross-posted with permission.]


“Preventive Detention” is a phrase that is inextricably bound with the history of the Indian Constitution. The Constituent Assembly affirmed the power for future governments to pass such laws, and only later got around to debating the restraints surrounding them. As a result, despite Article 22 having been inserted to serve as the minimal constitutional threshold to check abuse of preventive detention, it has often been treated as a constitutional recognition for the notion that the fundamental right to personal liberty requires restraints “for the good of the people.”


The decision of the Supreme Court in Union of India v. Dimple Happy Dhakad [Crl. Appeal No. 1064 of 2019 & connected petitions, “Dhakad“] shows a clear preference for the latter, mistaken view, over the former. By affirming the use of preventive detention in a situation where no “prevention” was really at stake, while at the same time diluting the high burden usually imposed on the state for requesting preventive detention in such cases, the Supreme Court took a dangerous step towards normalising what was meant to be a measure of the absolute last resort. In doing so, it compounded the slide towards normalising preventive detention already being witnessed across states, which have used this tool to deal with bullying and cattle theft, among other issues. 


Understanding Preventive Detention

Despite the perceived familiarity with preventive detention, it still serves us well to remind ourselves just what exactly is meant by the phrase, and how different this regime is from the normal “punitive” system of criminal justice. 


In the regular course, the police or other agencies can only take steps to restrain personal liberty after some illegal conduct has taken place. There must be something, beyond mere thoughts, to justify why a person should be arrested and thus denied the most basic of freedoms. This regular course is turned on its head under the preventive detention regime. Here, waiting for some conduct to manifest itself is considered a fatal delay, and therefore, the police is allowed to arrest persons merely suspected of engaging in illegal activities, or about to engage in them. 


The dissimilarities with the regular process only increase from this point. In the preventive detention regime, a has no right to be informed immediately about the grounds of arrest and detention, and in some cases might never learn of the grounds if it is against public interest. The detenu can challenge the detention order, but has no right to legal assistance. Further, all hearings take place behind closed doors, robbing a person of the sense of fairness that a public hearing entails. Although one can challenge Detention orders in writ proceedings, the Writ Court can only interfere on limited grounds. 


At its very best, preventive detention is a useful tool to ensure the safety of society. At any other level, it is a convenient means to suppress dissent, disregard individual liberty, and nullify the presumption of innocence. It can very quickly transform into a tool to justify the continued incarceration of “unwanted” persons through a process with minimal procedural safeguards, without ever making efforts to prove their alleged infractions.

 
Preventive Detention in the Ordinary Process

The legal position on passing preventive detention orders against persons already in custody, in connection with cases filed in the regular criminal justice system, is perhaps one of the most peculiar aspects of the Indian criminal process. One would think that since a person is already in custody, the urgency surrounding preventive detention is all but lost. This is not so. 


Time and again, detention orders are passed against persons who are anticipated to be released on bail at any moment. The perceived threat from their release is considered so grave as to justify a detention order anticipating this eventuality. 


The litany of judicial decisions covering this peculiar aspect of our criminal process always struggle to maintain a balance between the interests of security and the interests of liberty. It would be fair to say that a common theme through all these decisions is a requirement that the government must clearly establish that there is an imminent possibility of release, and that there is a grave likelihood of the person returning to the prejudicial activities that had necessitated his arrest/detention in the first place. [SeeRekha v. State of Tamil Nadu, (2011) 5 SCC 244]

Dimple Happy Dhakad 

Having thus fleshed out the basic legal position on these issues, we can now proceed to the recent decision in Dhakad. This was yet another case where persons who had already been arrested under the regular criminal process were made the subject of a Preventive Detention order [Under the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (COFEPOSA)]. Here, the arrests occurred in March 2019 in connection with alleged gold smuggling. Bail applications filed by the accused in April had been rejected once. When the accused filed fresh bail applications in May, then the government authorised the Detention Order. The Bombay High Court set aside the orders (W.P. 2844 of 2019, decided on 25.06.2019), and this decision is what was overturned by the Supreme Court. 


The arguments in Dhakad were on the lines as above. Appealing against the Bombay High Court order, the Union of India laid stress on the gravity of the allegations and the security interests at stake. The respondents/accused strived to show that the detention orders had not been passed with the required degree of care and attention, and had instead been passed in a most routine and mechanical manner. They were assisted by the fact that the Detention order did not even mention anything about an imminent possibility of release, or about the likelihood of the accused persons returning to their prejudicial activities. 


Moreover, in their haste to pass the Detention orders, the authorities had committed basic errors; such as (i) adding documents created after the decision to pass the detention order had been made, as part of the material relied upon for passing the Detention orders and (ii) not supplying the said relied upon material together with the grounds of the detention order, despite the order stating that this material was in fact being supplied. While it was never expressly mentioned in the Supreme Court’s opinion, the fact that the investigation had been ongoing for almost 2 months before the Detention orders were passed was a circumstance that had found favour with the Bombay High Court, to conclude that there was no reason for any delay in them being supplied with the materials upon which the authorities had relied for passing the detention orders.


Issue 1: Non-Supply of Documents

There is limited value in dissecting all that is wrong with the Supreme Court‘s decision in Dhakad, so let us focus on the core aspects. The Court spends great time in telling us that Section 3(3) of the COFEPOSA, and Article 22(5) of the Constitution, have not been breached because all documents were supplied within the statutorily prescribed timeframe of five days. Similarly, it tells us that non-compliance with Executive Guidelines is no grounds for setting aside the Order. Sadly, that is besides the point, because the argument was not about a statutory lapse on part of the authorities or about non-compliance with Guidelines per se. Instead, it was argued that by failing to provide documents, even after specifically noting in the Detention Order that the same are being provided, showed a clear lack of care on the part of the authorities and laid bare the mechanical manner in which the orders were passed. Further, the Supreme Court seems to have ignored the point, that a document prepared after the decision to pass the detention orders was made had found a place in the list of materials relied upon to pass this order, again suggesting that the Detention order had been passed without proper application of mind.


Issue 2: Failure to Consider Pre-Existing Detention 

Which then brings me to the main issue, on the usage of Preventive Detention in cases already being prosecuted under the regular criminal process. The Supreme Court seems to have entirely missed the point about holding the government to a high standard of care in situations where both, the regular criminal process and the extraordinary means of preventive detention, are employed. The recitations of decisions emphasising the urgency of preventive detention, in a case where the accused persons had already been arrested and had been languishing in jail for almost 2 months, is almost laughable if it were not tragic. 


The Court reasoned that the existence of an imminent possibility of release, as well as likelihood of further prejudicial conduct by the accused persons upon release, were issues that depended upon the “subjective satisfaction” of the authority and thus was beyond the scope of judicial review. Now, there is no debate that the scope of judicial review of Detention orders is limited. But, at the same time, it is also true that the Supreme Court has made consistent efforts to expand the possibilities for review to ensure fairness. Two examples are striking. First, the Court judicial created a requirement that the allegation must have a “live link” with the present to justify a need for preventive detention, in a bid to prevent persons being detained on the basis of stale allegations that had not been tested for years [SeeBhawarlal Ganeshmalji v. State of Tamil Nadu, (1979) 1 SCC 465]. Second, the Court also assented to testing the grounds to examine whether they were so arbitrary and vague so as to render it impossible to challenge the Detention order [SeePrabhu Dayal Deorah v. D.M., Kamrup, (1974) 1 SCC 103]. 


This trend of heightened review is what led to the common theme identified in the previous section, of the Supreme Court consistently placing a higher threshold on detention authorities to justify use of Preventive Detention in cases already being processed in the regular criminal process. Requiring that the Detention order explicitly refers to the possibility of release and likelihood of re-offending does not impinge upon the subjective satisfaction of the authority. It only provides a clear basis for assuming that the authority did indeed consider these issues, and prevent the kind of inferential exercises that the Court resorted to in Dhakad.


Post-Script

The most telling circumstance in Dhakad only emerged after the Detention orders were passed and thus is not expressly mentioned in the Supreme Court decision: The customs authorities failed to complete their investigation within the statutorily prescribed time limit, entitling Dhakad and others to statutory bail under Section 167(2), Cr.P.C.. The only reason why they were not released was the Detention orders. Thus, the customs authorities had used Preventive Detention to cover their inability to finish an investigation in time, and also deny the accused yet another vested right in the criminal process. It is practice that has been chided by the Delhi High Court on different occasions (Seehere, and here), but has not been the subject of consideration in any reported Supreme Court opinions that I could find. 


Thankfully, the opinion in Dhakad does not expressly record that the possibility of being released on statutory bail is a compelling enough reason to invoke Preventive Detention. But this is perhaps the only positive note that the decision strikes. Yet again, the Supreme Court ended up being drawn in by the lure of preventing a politically undesirable outcome — the possibility of releasing alleged gold smugglers on bail — and in the process ended up glossing over the procedural safeguards that are the bedrock of the liberty it is constitutionally committed to protect.


 

Postscript: The Supreme Court’s Problematic Order in the Karnataka Case

Yesterday, I wrote that the ongoing Karnataka controversy represents a breakdown of constitutional conventions. This breakdown creates a space for inevitable judicial intervention – but a space that is fraught with risk for the Court. In fashioning a remedy, the Court ought to make it as difficult as possible for the warring political functionaries to subvert constitutional conventions, while leaving the final solution to the existing democratic processes.

Today morning, the Court passed an order in the case. Noting that it had to maintain a “constitutional balance between the competing and conflicting rights”, it refrained from issuing any directions to the Speaker to decide upon the resignation and disqualification petitions. However, the Court also held that “until further orders the 15 Members of the Assembly, ought not to be compelled to participate in the proceedings of the ongoing session of the House and an option should be given to them that they can take part in the said proceedings or to opt to remain out of the same.”

In an article on Livelaw, Manu Sebastian has written that this second part of the order effectively conflicts with the Tenth Schedule, as it effectively authorises the rebel MLAs to disregard the party whip. That point aside, does the order meet the two-part test set out above – of allowing the democratic process to decide the issue, while making its subversion more difficult? On the first count, it certainly does, a point made particularly evident by the Court’s own observation that there is a trust vote scheduled for tomorrow.

On the second point, however, I would argue that the Order comes up notably short. The Court’s attempted “balance” is to give both parties freedom to act: the Speaker has the freedom to decide on the petitions, while the rebel MLAs have the freedom not to attend the proceedings of the House. However, on closer scrutiny, this balance is not a balance at all, as the second part of the order – on the issue of attending the proceedings of the House – effectively and presumptively holds the resignations to be valid until and unless the Speaker decides otherwise. This is because it is only if the resignations were valid would the party whip – and thereby the Tenth Schedule – cease to apply. In all other circumstances, the rebel MLAs defiance of the whip would be subject to disqualification under the Tenth Schedule.

The matter grows murkier when we consider the fact that the Court expressly notes in its order that its “balance” is occasioned by the fact that there is a trust vote tomorrow. This being the case, the Court’s apparent granting of freedom to the Speaker becomes effectively chimerical: because the whole point is that the ruling combine is likely to lose its majority in the circumstances that the rebel MLAs are able to defy the party whip without being disqualified – which is precisely what the Court’s order allows. In effect, therefore, the Order – while purporting to grant the Speaker unlimited time – effectively grants the Speaker time until the trust vote to decide, after which any decision the Speaker makes will, for all practical purposes, be infructuous.

As I had mentioned in my last post, the two subversions of constitutional conventions at stake here are the Speaker abusing his powers on the one hand, and large-scale horse-trading on the other. The Supreme Court’s order, unfortunately, is framed in a way that makes the former far more difficult (in a similar manner to how the Supreme Court fettered the governor’s ability to abuse his powers the last time around), but at the same time, actively allows for the facilitation of the latter, by judicially noting that the rebel MLAs “ought not” to be subjected to the party whip.

This, it should be obvious, is no balance at all.

Judicial Supremacy amid the Breakdown of Constitutional Conventions: What the Karnataka Controversy Tells Us about our Parliamentary Democracy

It has long been observed that the smooth functioning of parliamentary democracy depends upon constitutional conventions. Put simply, a constitutional convention refers to a set of uncodified norms that are sanctified by a long tradition of unbroken practice. Political functionaries tend to adhere to these norms either out of a sense of public duty, or out of fear of paying a political cost by breaking them.

A written Constitution can reduce the extent to which governance relies upon conventions. It cannot, however, eliminate them. The range of human behaviour can never completely be captured in a text. In a written Constitution with judicial review, an extra wrinkle is added to the situation: it creates situations where courts may be asked to rule upon the scope and the content of these conventions, and – in exceptional circumstances – even asked to guarantee their enforcement. This will require the Court to enter the “political thicket” (see this recent article by Mukund Unny), along with all its attendant dangers.

All this is difficult enough. In India today, however, there is an even further layer of complexity. Constitutional conventions and judicial review depend upon one basic premise: that constitutional functionaries tasked with implementing constitutional conventions act in good faith. For example, parliamentary democracy vests substantial power in the office of the Speaker of the House. The Speaker of the House conventionally comes from the ruling party, but once they occupy the Chair, they are expected to shed their partisan affiliation, and impartially administer the rules of the House (including its conventions). The presumption of the Speaker’s impartiality is the underlying basis for another very important constitutional convention: that Courts shall not be called upon to adjudicate disputes relating to what goes on in Parliament. The Parliament has its own adjudicating authority – the Speaker – and the doctrine of the separation of powers requires Courts to defer absolutely to how the Speaker manages the affairs of the House.

However, once it becomes clear – as it arguably has become in India – that Speakers repeatedly and blatantly act according to partisan motives (the conduct of the last Lok Sabha speaker in certifying money bills and refusing to hold votes of confidence is a case in point), a judicialisation of the Speaker’s conduct becomes inevitable. If opposition parties have good reason to believe that the game in the House is rigged, they have little choice but to go to Court. And the Court is then faced with an impossible situation: constitutional conventions require it to stay out of Parliament, but at the same time, staying out would result in another set of conventions being violated with impunity. There is no clean – or good – answer in such a situation.

What is happening in Karnataka represents a classic example of the breakdown of constitutional conventions, and its knock-on effect upon the judiciary. Recall that the ruling Congress-JDS combine in Karnataka has a thin majority. Recently, a number of MLAs of the ruling combine offered their resignations to the Speaker. The result of this would be to deprive the ruling combine of its majority, and offer the chance to the opposition BJP to stake a claim to form the government. The MLAs have argued that they are resigning of their own free will, while the Congress-JDS argues that they have been bribed and threatened by the BJP to do so.

At this point, Article 190 of the Constitution comes into play. Article 190 provides that MLA resignations are to be offered to the Speaker. It also allows the Speaker the discretion to reject the resignations if, in her view, they are not “voluntary or genuine.” Article 190, therefore, presumes that legislators act in good faith when resigning, and makes the Speaker the judge of that. What Article 190 does not do – indeed, what it cannot do – is to guarantee that the Speaker herself will act in good faith (that presumption is a constitutional convention).

Before the Supreme Court, the legislators have argued that the Speaker is deliberately delaying deciding on the resignation letters, and therefore violating his duty to act in good faith. They have asked the Court to direct the Speaker to decide upon the resignations in a “time bound manner” (notice that the idea of a judicial authority “directing” the Speaker of the House to do anything would be unheard of in most parliamentary democracies in the general course of things, and indeed, that is what the Speaker himself effectively said after the Supreme Court passed an interim order). The legislators have also argued that if the Speaker is acting out of partisan motives: basically, he is waiting until the ruling combine issues a three-line whip to its party members, at which point, the anti-defection Tenth Schedule will kick in. The moment the rebel legislators vote against the whip, their resignations will become infructuous, because disqualification will kick in.

As mentioned above, this puts the Court – which will hand down its order in the case tomorrow – in an impossible situation. The existence of partisan Speakers is an indisputable fact (indeed, there is already a pending petition before a Constitution Bench on the issue of Speakers deliberately sitting on disqualification decisions in order to allow ruling parties to maintain their majority). But the existence of horse-trading and defections in order to secure ministerial berths or for other similar reasons, is equally indisputable. But while both these facts are indisputable, for obvious reasons, and to avoid a complete breakdown of governance, neither of these can be acknowledged in the open, and in Court. The Court, thus, has to pretend that constitutional functionaries act in good faith, while – in specific cases – carve out remedies that are meant to operate in a world in which they do not.

What is the Court to do in a case like this? One – tempting – solution that it must avoid is full-scale intervention. That will swiftly drag the Court into the political weeds, and will make accusations of partisanship inevitable. Already, the Court has been placed in a situation where whatever it does will have the direct effect of favouring one set of political parties over the other. That is a very dangerous position for a constitutional court to find itself in.

The contours of a solution, however, might be visible from the Court’s own precedent: in particular, what it did in Karnataka last year, when the controversy was about government formation. In that case, the tables were somewhat reversed: the issue concerned the actions of the Governor in allowing the BJP to form the government despite the Congress-JDS’ claims to having a majority, and then allowing the Chief Minister fourteen days to prove his majority (it was alleged that this inordinately long time was given to enable the BJP to use its superior financial power to buy out opposition MLAs). The Court refused a full-scale intervention (i.e., setting aside the Governor’s decision), but it did reduce the time given to the Chief Minister to 48 hours, by ordering a videographed floor test. The BJP was unable to prove its majority, and ultimately, the Congress-JDS combine came to power.

The Supreme Court thus accomplished two things: first, it simply made it more difficult for the parties involved to act in bad faith, by reducing the time period to 48 hours; and secondly, its solution was not judicial (setting aside or upholding the governor’s action as valid), but parliamentary – a floor test. The blueprint, therefore, seems to be this: the task of the Court in cases like these is to fashion a remedy where the solution to the crisis is found through the existing democratic processes, but where it becomes far more difficult for constitutional functionaries to subvert the process and break conventions by acting in bad faith. In the present controversy, that might be accomplished by the following solution: the Court asks the Speaker to decide upon the resignations within a reasonable time (but enough time for the Speaker to make an enquiry as envisaged by Article 190), but makes it clear that the Speaker’s decision will be subject to judicial review under the Bommai standard (relevance/existence of material and an absence of mala fides). If it is later found that the Speaker acted wrongly, his decision on the resignations will be set aside, and – as happened in the Arunachal Pradesh case – status quo ante as of today will be restored, with the resignations now being treated as valid. In the meantime, the other democratic processes (the trust vote, the operation of the anti-defection law etc.) can go on as per their own logic.

This solution, it is submitted, would respect the constitutional authority given to the Office of the Speaker, while also subjecting him to judicial oversight in case he decides to act in bad faith. At the same time, it would allow the Speaker to form an assessment of whether the rebel legislators are acting in good faith or not, with the knowledge that his decision can – and will – be challenged. And the Court is saved from wading into murky political disputes (for now) in a way that will open it up to accusations of partisan bias.

This is, of course, an imperfect solution; and there may be other potential solutions that may strike the balance better (should the Court insist that the decision on resignations precede the trust vote/three line whip? Would that involve a direction to delay the state budget? Etc.). But I want to make one final point: the very fact that we are here today discussing the range of alternatives open to the Court demonstrates a disturbing development. The repeated bad faith actions and breaches of constitutional conventions by political functionaries have created a gaping, open space that is being filled by judicial supremacy. This has been going on for a while now: Speakers’ partisan decisions on certifying money bills has made court challenges inevitable; Governors’ partisanship and horse-trading has made judicial interventions into government formation inevitable; and so on. The beginning of all this, of course, was the repeated and unprincipled imposition of President’s Rule, which first dragged the Court into such questions.

But dragging the Court into this domain presents a deep threat to judicial independence: a Court whose decisions will regularly have such huge political ramifications presents a ripe and tempting target for capture, to unscrupulous political parties. It is for this reason that, in every case of this sort, the Court must be profoundly careful about what it is doing, and what the consequences of that are – because, ironic as it may sound, judicial supremacy in the political process is the shortest road to a compromised judiciary.

(Postscript: An additional point – and an additional way in which the Supreme Court, in particular, can avoid being tainted by a partisan brush – is the importance of sticking to procedural rules in cases like this. It is unclear how an Article 32 petition is maintainable in the present case – and even more unclear why the Supreme Court did not ask the parties to approach the Karnataka High Court as the jurisdictional forum (recall that a similar case from Tamil Nadu, involving the AIADMK was argued before the Madras High Court). This becomes particularly pertinent because the present Court has indeed sent constitutional cases back to the High Courts recently (the challenge to the Aadhaar ordinance being a good example). Ensuring that such cases come to it through proper channels will help the Supreme Court – as an institution – to avoid one particular Article 32-shaped pitfall. Of course, that issue is now infructuous, in the present case. I am grateful to Suhrith Parthasarathy for having pointed this out to me.)

The View from Nowhere: Bruce Ackerman and India’s “Revolutionary Constitution”

Bruce Ackerman’s latest book – Revolutionary Constitutions – is an ambitious work. In its articulation and defence of “revolutionary constitutionalism”, it covers the experiences of no fewer than nine countries, spread across four continents. According to Ackerman, what unites these countries is a constitutional legacy characterised by how “revolutionary-outsiders manage to oust establishment-insiders from political authority”, and where “the establishment is overwhelmed by a revolutionary constitutional order.” Ackerman further categorises constitutional development in terms of four time-periods (which I shall come to later on in this post).

Citizens of the nine countries that Ackerman groups together within this narrative will, no doubt, be best placed to engage with the individual nuances of the chapters dealing with their particular jurisdictions (in addition, I imagine that Palestinians might want to say something about Ackerman’s account of Aharon Barak’s ‘dignitarian jurisprudence’ – see, for example, this recent piece). In this post, I will make a few brief comments about Ackerman’s chapter on India. I believe that on closer scrutiny, almost none of Ackerman’s claims about India’s experiences with “revolutionary constitutionalism” hold; and – in particular – the chapter takes historical events that are contested and controversial, but provides readers the impression that there is only existing narrative about them – a narrative that, as it turns out, confirms the overall thesis of Ackerman’s book.

A. The Congress – A Revolutionary Party?

For Ackerman, “Time One” of India’s “revolutionary constitutional history” is characterised by the transformation of the Indian National Congress from an elite vehicle to a mass-based party, under the leadership of Gandhi and Nehru. Ackerman takes it for granted that the Congress was pursuing “revolutionary” goals, that – after the constitutional developments in the mid-1930s – would be achieved by “gain[ing] control of central institutions to enable the People of India to break the grip of caste and class and achieve real-world justice for all.”

In his schematic account of the Congress, however, Ackerman entirely misses the huge body of scholarship – both from the time, and from recent years – that challenged the Congress’ revolutionary credentials. The most glaring omission, of course, is Ambedkar, who repeatedly called into question the Congress – and Gandhi’s – claims to “represent” the Dalits (and I think it important to point out that, in 2019, it is jarring to read an account of Indian constitutional history where Ambedkar remains a secondary source). Among more recent critique, here are a few examples: Shahid Amin’s Event, Metaphor, Memory, that examines how the Chauri Chaura incident was used by Gandhi to shut down any form of mass politics that did not have the Congress’ sanction; Partha Chatterjee’s Nationalist Thought and the Colonial World, which frames the nationalist movement in terms of Gramsci’s ‘passive revolution’; Anupama Roy’s Gendered Citizenship, which provides specific examples of the Congress’ hostility towards grassroots labour movements that refused to affiliate with it (for more examples, see Arun Thiruvengadam’s review, here).

Now, perhaps Ackerman disagrees with this scholarship, and maintains that, at the moment of independence, the Indian National Congress was indeed a truly revolutionary “movement-party”; he is, of course, entitled to do so. That, however, needs argument, not mere assertion.

B. The Constitution – a revolutionary Constitution?

Ackerman then uses Nehru’s ‘Tryst with destiny’ speech to indicate a “transferring the revolutionary authority earned by Congress to the [Constituent] Assembly.” He argues that “with Nehru’s support, Ambedkar and his colleagues hammered out a revolutionary charter.” Ackerman puts forward three pieces of evidence for the revolutionary character of the Constitution: universal adult suffrage; the authorisation of State intervention for the purposes of social and economic reform, constrained by fundamental rights; and judicial review. Ackerman dismisses arguments to the contrary, stating that the mere fact that the Constitution borrowed heavily from the Government of India Act of 1935, did not in any way dilute its revolutionary character.

But this is entirely too quick and entirely too glib. There are other, far more serious arguments against the Constitution’s revolutionary – or “transformative” – character, that Ackerman does not seem to be aware of. The wholesale replication of colonial structures of governance (including, in particular, colonial weapons of repressing popular sentiment) such as Emergency powers, Ordinance-making powers, and federally-appointed governors in the provinces casts serious doubt upon how “revolutionary” the Constitution was. Moreover – and again – this was recognised at the time, and the Constituent Assembly saw many bitter arguments on precisely this issue (Somnath Lahiri, for example, famously said that the fundamental rights chapter was framed from the point of view of a police constable). Like Ambedkar’s absence from Time One, the voices of the Constituent Assembly mark another, glaring absence from Ackerman’s “Time Two”, that contest the revolutionary narrative. And – also – again, there is an entire branch of scholarship (the argument from “colonial continuity“) that makes precisely this point.

Are these arguments insurmountable? I do not believe so (and indeed, I have spent considerable effort trying to surmount them). But they are powerful arguments that any such account must engage with, instead of avoiding altogether.

C. The Supreme Court – an ‘Enlightenment Court’?

Ackerman’s account of Time Three – the succession crises after Nehru, the Emergency, and the restoration of constitutional democracy after the defeat of Indira Gandhi – is accurate and interesting. However, when we come to Time Four – where Ackerman discusses the role of the Supreme Court after 1980 – things become particularly murky. Ackerman writes, for example, that as the world – and India – turned towards neoliberal economic policies in the late 1980s, the Supreme Court “emphasised the enduring relevance founding era’s constitutional commitments” and has “increasingly extended [its] concerns to the fate of the downtrodden.”

These statements, however – presented, as they are, as simply statements of fact – are hugely problematic. In an entire book called The Shifting Scales of Justice, a whole range of authors discusses precisely how the Supreme Court of the 1990s (for example) would regularly turn into an enthusiastic defender of neo-liberal economic policies. Labour lawyers are well aware of notorious judgments such as Uma Devi and SAIL, which rolled back crucial gains made by workers, often over many years, at the instance of the Supreme Court. PIL jurisprudence itself has, by now, been subjected to a root-and-branch critique on its own terms, in books such as Anuj Bhuwania’s Courting of the People. None of this finds a place in Ackerman’s narrative, which presents the post-1980s Court as a monolithic block of a broadly progressive sheen.

But it is the last story that Ackerman tells in this chapter that is the most astonishing. He argues that the judgment in I.R. Coelho marked a watershed in “Time Four”, as the Supreme Court drew a line in the sand, preserving its role as the ultimate protector of the basic structure and its associated values. He then argues that this judicial positioning was challenged by the BJP’s electoral victory in 2014, and the first salvo in the coming “high-stakes battle” (between the BJP and the Court) was the NJAC case, a case that recalled the Indira Gandhi supersession controversies of three decades before – only this time, the Court did not buckle, but struck down the NJAC. Ackerman then finishes with a flourish, saying that “if a serious contest does arise, Hindu nationalists in the government and Enlightenment secularists on the Court will tell very different stories about the struggle that gave birth to independent India.”

Where does one even begin with all of this? To start with, I wonder how many Justices on the Supreme Court would bestow upon themselves the cringe-inducingly pretentious label of “Enlightenment secularists” (one should also remember what the Enlightenment had to say about people with the wrong skin colour). But leave that be for the moment. First, Ackerman makes no mention of the fact the the BJP’s campaign rhetoric on secularism has repeatedly invoked the Supreme Court’s own judgment in the now-notorious Hindutva Judgments, where the Court (rightly or wrongly, it does not matter here) has been perceived to endorse that political party’s understanding of Hindutva and secularism. Secondly, a direct comparison between Indira Gandhi’s judicial supersessions and the NJAC is reductive. The NJAC was enacted after many decades of dissatisfaction with the functioning of the Collegium, and the amendment itself was passed almost unanimously in Parliament. It was, ultimately, a flawed amendment and a flawed piece of legislation, and I have argued previously on this blog that it was correctly struck down; that, however, does not make it equivalent to judicial supersession. In fact, if there is anything that has the flavour of Indira Gandhi, it has been all the events that have taken place after the NJAC judgment (none of which feature in Ackerman’s account) – the government’s delays in processing the collegium’s files, returning names without reason, (impermissibly) rejecting names even after a second recommendation, and in some cases – such as that of Justice Kureshi – outright refusal to comply. At this point, Ackerman’s narrative seems to have lost touch with reality.

Equally, and on the other hand, the Supreme Court’s decision to strike down the NJAC in a set of judgments that also advanced the (in my view, unsustainable) proposition that the basic structure of the Constitution requires judicial primary in appointments – thus ensuring that Parliament could never institute a selection mechanism where judges did not have the last word – can just as easily be classified as the judicial salvo in an ugly turf war, instead of a high-minded principled judgment on the basic structure. The entire history of judicial appointments in India makes this a plausible claim (not least that the basic structure has almost only ever been used when judicial power has been encroached upon), and Ackerman gives us no argument to prefer the latter instead of the former.

Lastly – and perhaps most crucially – Ackerman’s framing of a forthcoming potentially climactic struggle between the Court and the BJP’s competing visions – which he hangs upon the very thin thread of the NJAC judgment – is simply unrecognisable. In particular, this framing ignores the increasing number of foundational cases in which the Court and the government have moved entirely in lock-step: the NRC case is the one most evident, most visceral, and most glaring example, but there are plenty of others (the six-year judicial evasion on Aadhaar, the non-hearing of the electoral bonds case, and so on) that make it clear that those who’ve paid up for their ringside seats to watch this “serious contest” may yet have to file for a refund.

Conclusion

Bruce Ackerman argues (a) the Indian National Congress was a revolutionary party, that (b) transferred its revolutionary character into the process of Constitution-making, which (c) in the 1980s, the Supreme Court took over, and that (d) now faces a potentially foundational challenge from the BJP, with a contest between that party and the Court looming in the future. Ackerman, however, ignores reams of scholarship that undermines every step of this narrative, and his characterisation of the contemporary situation appears to be based on precisely two judgments of the Supreme Court – Coelho and NJAC. Such an account would not pass muster if it was made about the American Constitution and American Constitutionalism. It is every bit as unacceptable when it is made about the Indian Constitution.