Addendum: “Some things are not worth getting over.”

Yesterday, I wrote a post on how the changing of the guard at the top of the Supreme Court represents a chance to fashion an institutional solution to the institutional problem that came to the fore when allegations of sexual harassment were levelled against the Chief Justice in April/May 2019. I also wrote that the failure to grasp this chance would leave us treading the dangerous line between institutional failure and institutional complicity. This morning, I came across a piece by Dahlia Lithwick that expresses – in much clearer language – a few of the points I was trying to make.

Writing in the context of bearing witness to Justice Brett Kavanaugh’s senate confirmation hearings – at a time when he stood accused of rape by Professor Christine Ford – Lithwick talks about the temptation to “routinise” and “normalise” the “unprecedented seating of someone who managed to himself evade the very inquiries and truth-seeking functions that justice is supposed to demand.” (emphasis supplied) She talks about how the Senate Republicans’ refusal to “investigate, acknowlege, or even turn over” the existing evidence makes the incident difficult – or impossible – to simply “get over.” But for many people however, Lithwick goes on to acknowledge, “getting over it” is an imperative necessity in “in service of long-term tactical appeasement.” Lithwick then writes what (for me) are the two most important paragraphs of the article:

That is the problem with power: It incentivizes forgiveness and forgetting. It’s why the dozens of ethics complaints filed after the Kavanaugh hearings complaining about the judge’s behavior have been easily buried in a bottomless file of appeasement, on the grounds that he’s been seated and it’s too late. The problem with power is that there is no speaking truth to it when it holds all the cards. And now, given a lifetime appointment to a position that is checked by no one, Washington, the clerkship machinery, the cocktail party circuit, the elite academy all have a vested interest in getting over it and the public performance of getting over it. And a year perhaps seems a reasonable time stamp for that to begin.

The problem with power is that Brett Kavanaugh now has a monopoly on normalization, letting bygones be bygones, and turning the page. American women also have to decide whether to get over it or to invite more recriminations. That is, for those keeping track, the very definition of an abusive relationship. You stick around hoping that he’s changed, or that he didn’t mean it, or that if you don’t anger him again, maybe it’ll all be fine when the court hears the game-changing abortion appeal this year. (Emphasis supplied)

That the participants in the legal culture that surrounds the Supreme Court of India and the judiciary in general have exhibited a strong interest in “getting over it” when it comes to the events of April/May 2019 is a stark fact. It is exhibited in the complete silence that has followed the issuance of the “clean chit” to the Chief Justice (notwithstanding the procedural irregularities in the process, which were detailed at the time); but it has been exhibited even more sharply at this time, when newspaper pieces around the outgoing Chief Justice have discussed the important judgments that he is going to deliver in his last working week (as though the past has ceased to matter), and even more so, in the profiles – and interviews – of the incoming Chief Justice, where this matter should be front and centre – both in the sense of personal responsibility (past) as well as in the sense of institutional responsibility (future) – but is not.

But as Lithwick writes, “picking up an oar to help [us] get over [our] sins without allowing for truth, apology, or reconciliation has not generally been good for the pursuit of justice.” Far from an apology or a reconciliation, we still do not have an acknowledgment of the injustice that was done when the Chief Justice himself sat on the bench to hear the case against himself; or of the injustice that was done when three other judges attacked the character of the complainant from the bench; or yet again, of the injustice that was done when the In-House Committee’s ad-hoc procedures effectively convinced the complainant that the prospect of justice was so distant, that there was nothing further to be gained from participating in the process.

Lithwick ends her piece by writing:

I haven’t been inside the Supreme Court since Brett Kavanaugh was confirmed. I’ve been waiting, chiefly in the hope that at some point I would get over it, as I am meant to do for the good of the courts, and the team, and the ineffable someday fifth vote which may occasionally come in exchange for enough bonhomie and good grace. There isn’t a lot of power in my failing to show up to do my job, but there is a teaspoon of power in refusing to normalize that which was simply wrong, and which continues to be wrong. I don’t judge other reporters for continuing to go, and I understand the ways in which justices, judges, law professors, and clerks must operate in a world where this case is closed. Sometimes I tell myself that my new beat is justice, as opposed to the Supreme Court. And my new beat now seems to make it impossible to cover the old one.

Lithwick’s dilemma is an old and familiar one: at what point does continued participation amount to normalising the unacceptable? If you’re going to pretend that everything as if everything is alright, when it clearly is not, at what point does that pretence turn into cheating both oneself, and everyone else? In my mind, Lithwick’s line is the line between institutional failure and institutional complicity. At the point at which institutional failure turns into institutional complicity, it becomes necessary to say, with Lithwick, that “my new beat is justice, as opposed to the Supreme Court … and my new beat now seems to make it impossible to cover the old one.”

What that means in practical terms, of course, is a question that still awaits an answer.

 

Sexual Harassment at the Supreme Court: A Time for Institutional Accountability

On Tuesday, in accordance with long-standing convention, the President of India signed the warrant appointing Justice S.A. Bobde as the next Chief Justice of India. Since the news of the appointment broke, there have been a few articles in newspapers about Justice Bobde’s notable judgments and his adjudicatory style, as well as an interview with NDTV. However, apart from a throwaway line here or there, these accounts have ignored a rather large elephant in the room: the manner in which the Supreme Court handled allegations of sexual harassment against the outgoing Chief Justice in April/May 2019.

It is of particular importance that this issue be discussed now, at the time of a changing of the guard. This is because the events of April/May 2019 were not simply about one individual, or one accusation. They represented – as I had attempted to show at the time – an institutional failure on the part of the Supreme Court. To recapitulate, as the famous MacPherson Report defined the concept of institutional racism:

The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people.

An institutional failure, therefore, does not require malicious intent from any one person or set of person. It manifests itself through “prejudice”, “ignorance”, and “thoughtlessness”, whose effect is to place substantive justice out of reach of the vulnerable and the marginalised. In the sexual harassment case, the Supreme Court’s institutional failure began with the Chief Justice constituting a bench and then presiding over it to hear the allegations against himself (the final written order, however, does not show his name); it continued when another three-judge bench of the Court questioned the motives of the complainant, and entertained a parallel petition about “bench fixing”; it went on when an “ad-hoc” “In-House Committee” set up to hear the allegations departed from best practices as set out under the POSH Act, to the extent that the complainant herself withdrew from the proceedings – but then went ahead and issued a “clean chit” to the Chief Justice anyway; and it also manifested itself in how none of the other judges of the Court (with the exception of Chandrachud J.) objected to this set of processes.

The institutional failure of the Supreme Court (involving the active participation of no fewer than eight judges at various times), therefore, stemmed from a failure to understand that sexual harassment is a question of power, and that a fair investigation of allegations of sexual harassment – “due process” – must be designed to mitigate those power imbalances, instead of perpetuating them. As the judge heading the In-House Committee, it is a failure for which the incoming Chief Justice bears a degree of responsibility; however, that is not the main point. The main point is that the institutional failure is a continuing one – it cannot simply be buried with the departure of the soon-to-be former Chief Justice, and it cannot be brushed away as an isolated event that has now been resolved. An institutional failure requires institutional solutions.

Now, in the spirit of realism, one could grant that as the soon-to-be former Chief Justice was himself at the centre of the April/May 2019 controversy, it would be too much to expect institutional accountability mechanisms to be put in place while he continued in office. It is for this reason that a change of guard is a particularly important moment, because it presents a clear opportunity for a fresh start. There needs to be an acknowledgment that what happened in April/May 2019 was an injustice, that its underlying cause was institutional, and that its solution must be institutional: i.e., the setting up of a formalised structure for dealing with sexual harassment complaints within the Supreme Court, a structure that takes into account the basic questions of power that come with such cases.

What shape this structure might take is, of course, not for this author to set out. At a minimum, though, it must arise out of a frank dialogue between the major stakeholders (in particular, women lawyers, judges, as well as employees of the Supreme Court), and take into account existing best practices (as reflected, for example, in the POSH Act). And as responses to the Supreme Court’s conduct in the wake of May 2019 showed, there is no shortage of expertise when it comes to crafting norms of due process that ensure substantive justice in sexual harassment cases, in the context of the court structure.

If there were pragmatic reasons why this could not happen so far, as pointed out above, those reasons no longer exist with a changing of the guard. As the administrative head of the Supreme Court, the new Chief Justice is ideally placed to initiate the process of institutional accountability, and to ensure that there is no repetition of the events of April/May 2019. But what would be most unfortunate would be if nothing was to happen, if everything was to continue in the “business as usual” sense, if the events of April/May 2019 continued to be buried under a veil of mutually-accepted and mutually-acceptable silence; because there comes a point when institutional failure turns into institutional complicity. And the continuing absence of structures of institutional accountability within the Supreme Court would surely take us swiftly into that latter domain.

 

A Very Strange Constitution Bench

[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.]

---

More than three years ago – in August 2016 – I’d written about an odd Supreme Court hearing where “questions” were framed (inter alia) about whether the freedom of speech could be restricted on grounds of “constitutional compassion.” The case had come to Court when UP politician Azam Khan had labeled a gangrape as a “political controversy”, and then-Justice Dipak Misra had taken the opportunity to also ask whether political functionaries had a more restricted right to free speech than ordinary citizens.

Subsequently, Azam Khan apologised to the Supreme Court, and his apology was accepted. However, the case continued. In an order dated 5th October 2017, the matter was referred to a Constitution Bench (!) to decide. On that same day, Mr Fali Nariman and Mr Harish Salve, acting as amici in the case, framed further “questions” to be decided. Among Mr. Nariman’s questions was the following:

Whether, and if so under what circumstances (if any) would a private individual or group of private individuals (including private corporations) be required to conform to the rigor and discipline of Article 21 (in the Fundamental Rights chapter) of the Constitution – whether as “State” as broadly defined, or otherwise.

CJI Misra himself retired last year, with no further progress on this case. One would have thought, then, that this little piece of judicial buccaneering would meet a quiet and deserved end. But no: it turned out last week that the Constitution Bench of the Supreme Court – consisting of Mishra, Banerjee, Saran, Shah and Bhat JJ – would indeed sit and hear this case. And in a hearing on 24th August, events took an alarming turn, when the Attorney-General “reframed” his questions, and the Court’s order finalised them as follows: 

1. Are the grounds specified in Article 19(2) in relation to which reasonable restrictions on the right to free speech can be imposed by law, exhaustive, or can restrictions on the right to free speech be imposed on grounds not found in Article 19(2) by invoking other fundamental rights?
2. Can a fundamental right under Article 19 or 21 of the Constitution of India be claimed other than against the ‘State’ or its instrumentalities?
3. Whether the State is under a duty to affirmatively protect the rights of a citizen under Article 21 of the Constitution of India even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency?
4. Can a statement made by a Minister, traceable to any affairs of State or for protecting the Government, be attributed vicariously to the Government itself, especially in view of the principle of Collective Responsibility?
5. Whether a statement by a Minister, inconsistent with the rights of a citizen under Part Three of the Constitution, constitutes a violation of such constitutional rights and is actionable as ‘Constitutional Tort”?

There are a few points I want to note about this Order. While questions (4) and (5) have at least some relationship with the original case of Azam Khan, and are relatively focused, the first three questions are simply broad-ranging enquiries into general constitutional philosophy. It is entirely unclear why they have been framed in the first place, and why a Constitution Bench needs to answer them, in the absence of a specific lis that brought them to Court. Question (2), for example, is a question about horizontal rights – a vexed and fraught question that jurisdictions across the world have been grappling with. Question (3) is a question about positive obligations – another issue that Courts all over the world have spent years engaging with, and incrementally developing jurisprudence. These questions are too complex, too multi-layered, and too poly-centric to be answered in an abstract enquiry; they don’t become any simple just because a Senior Counsel has “framed” them. To take just one example: if you hold that Article 21 is indeed horizontally applicable, then how does that affect the entire swathe of Indian criminal law, whose task is precisely to protect the life and liberty of individuals from encroachment by other individuals, through legislation? Does it even affect criminal law? Should it? Legal scholars have written entire books grappling with the complex engagement between horizontal constitutional rights and existing private and public law regimes. And therefore, the correct way of addressing these issues – and the correct way for constitutional courts to behave –  is to address them in light of concrete cases that are called before it for determination, because it is only then that it can actually be seen how horizontal rights – or positive obligations – play out in the real world. Without that, this is nothing more than whistling in the dark.

But if questions (2) and (3) raise the prospect of a headless jurisprudence, question (1) is profoundly dangerous. To start with, where on earth did it come from? It wasn’t in the original four questions framed by Dipak Misra J.’s court. It is not connected to questions (4) and (5), which are the ones that are really about what speech a minister may or may not engage in, and which basically deal with the question of how and when you can attribute a minister’s speech to the State. But most importantly, this question has already been answered. It has already been answered by the Supreme Court. It has already been answered by the Supreme Court multiple times. In fact, it has been answered by a Constitution Bench of the Supreme Court. In Sakal Papers v Union of India, a five-judge bench held:

It may well be within the power of the State to place, in the interest of the general public, restrictions upon the right of a citizen to carry on business but it is not open to the State to achieve this object by directly and immediately curtailing any other freedom of that citizen guaranteed by the Constitution and which is not susceptible of abridgment on the same grounds as are set out in clause (6) of Article 19 … Freedom of speech can be restricted only in the interests of the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. It cannot, like the freedom to carry on business, be curtailed in the interest of the general public … For, the scheme of Article 19 is to enumerate different freedoms separately and then to specify the extent of restrictions to which they may be subjected and the objects for securing which this could be done. A citizen is entitled to enjoy each and every one of the freedoms together and clause (1) does not prefer one freedom to another. That is the plain meaning of this clause. It follows from this that the State cannot make a law which directly restricts one freedom even for securing the better enjoyment of another freedom.

Sakal Papers is one of those landmark judgments in Indian free speech jurisprudence. The fundamental propositions that it articulates have never been seriously doubted in sixty years, and were accepted by the Supreme Court as recently as Shreya Singhal (2015). Most importantly, as a five-judge bench, it is binding upon the present Constitution Bench. There has been no referral to reconsider its correctness. So then, why was this question framed? Why did the five learned judges on the Bench accept it? Perhaps we’re going to find out shortly that Sakal Papers has been per incuriam these six decades, and we just didn’t know it? Who knows.

In short, therefore, a case about a Minister making a statement about a gang-rape – crass and condemnable as it was – has somehow morphed into a Constitution Bench hearing where the Supreme Court is going to opine about horizontal rights, positive obligations, and the prospect of additional limitations on free speech, all in the abstract (as the original lis has long been lost in the mists of time). And that, in a nutshell, is the problem with what PIL has become today:  it is no longer about expanding the concrete fundamental rights of the most vulnerable, but something else entirely, something that has become hostage to the fancies of individual judges and senior lawyers.

Indeed, the history of this case reveals something important about that last relationship. The history of these orders show that while the initial four questions were framed by the Court, the questions that the Constitution Bench is now going to “answer” have been framed by the two amici mentioned above. While Mr. Fali Nariman was appointed initially by the Court, Mr. Salve’s appointment came about in an order dated 29.3.2017, which records that “Mr. Harish Salve, learned senior counsel, who was present in Court, expressed his intention to assist the Court.”

Now I wonder how many of us are accorded this unique privilege of simply standing up and “expressing our intention” to assist the Court, being promptly being made an amicus, and then framing questions that are going to affect fundamental rights across the country. And this is not the first time: in the famous 1997 phone tapping case, PUCL v Union of India, while PUCL’s lawyer, Mr. Sanjay Parikh was arguing, there was another courtroom intervention. The judgment records it thus:

At this stage, Mr. Kapil Sibal & Dr. Dhawan, who are present in Court, stated that according to them the matter is important and they being responsible members of the Bar, are duty bound to assist this Court in a matter like this. We appreciate the gesture. We permit them to intervene in this matter. They need a short adjournment to assist us.

 

Mr. Sibal then went on to justify telephone interception and proposed a “non-judicial” oversight mechanism – a proposal that was accepted by the Court, and continues to haunt our surveillance jurisprudence till today. Similarly, in the notorious Devidas Tuljapurkar case, the framing that “historically respectable personalities” should be given some kind of different protection against “obscene speech” was propounded by Mr. Nariman, who had been appointed as an amicus.

None of this is the mark of an egalitarian, democratic, or even healthy legal culture, where seniority has become a kind of special-access gateway (for more on the outsize role of the amicus in PIL cases, see Anuj Bhuwania’s Courting the People). And apart from its iniquitous character, it is particularly problematic in civil rights cases, where what is at stake are fundamental liberties: these fundamental liberties should not become playthings of whatever fancy takes a Senior Counsel at a particular time. The first three “questions” that this Constitution Bench of five learned judges is now proposing to “answer” shows us the perils of such a legal culture.

The Supreme Court’s Recusal Order: Glaring Conceptual Flaws

[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.]

---

Previously on this blog, I had written (here and here) about the problematic composition of the Constitution Bench in the ongoing case involving the interpretation of the Land Acquisition Act. As readers know, parties before the Court had argued last week asking for the recusal of Justice Arun Mishra from the bench. Orders had been reserved after hearing, and a judgment was delivered yesterday, refusing recusal. Now, given that five-judge bench of the Supreme Court had already transformed the proceedings from a legal hearing into theatrics, with Justice Mishra remarking (without contradiction) that it would be “the blackest chapter in history”* if the bench would “succumb”, it is unclear why the bench needed to undertake the farcical exercise of reserving an order than writing out a judgment over the weekend, when minds had apparently been made up at the hearing itself. However, the fact is that a judgment has now been delivered, and must therefore be analysed.

As a prelude to the analysis, I had noted in my previous post that various accusations had been made in court that a “lobby” was writing articles about recusal in order to malign the Chief Justice and the Supreme Court. Unfortunately, these accusations have now found their way into a recorded judgment. At paragraph 11 of the judgment, Justice Mishra notes the Solicitor-General’s submission that ” a tendency is growing in that as soon as important matters are listed, particular articles are written in the newspapers concerning the Constitution of the bench or to influence the decision on merits of a case. Newspaper articles are written to influence Court. The very independence of the judicial system is at stake…” In paragraph 36, he writes that “affronts, jibes, and consciously planned snubs should not deter us from discharging our onerous responsibility (emphasis supplied) In paragraph 39, he writes that “in Bal Kishan Giri v. State of Uttar Pradesh, (2014) 7 SCC 280, this Court has considered derogatory remarks and efforts to destroy the system.” And in their concurring opinion, four other learned Justices write that they agree with Justice Mishra’s “reasoning and conclusion.” One also notes that during oral arguments, Justices Mishra and Saran had made similar remarks, and none of the other judges on the bench had disagreed.

To this one can only say: if indeed there is a “lobby” engaging in “consciously planned snubs” to “destroy the system”, then this is a very serious matter indeed. Nobody can be permitted to “destroy the system.” Attempts to do so would constitute contempt of court. Now presumably, evidence for the existence and actions of this “lobby” exists, because five learned judges of the Supreme Court would surely not make or endorse such claims without evidence. That being the case, the problem would swiftly be resolved by the issuance of a formal notice of contempt to these unnamed “lobbyists”, so that the evidence for their “lobbying” could be exposed in a public hearing.

Now, on to the law: the facts leading up to these proceedings have been set out in my two previous posts, and I will not repeat them here. The key conceptual error that Justice Arun Mishra’s recusal judgment makes can be found in paragraph 11:

The first question before us is whether a Judge who has expressed an opinion in a smaller Bench and the case has been referred to a larger Bench, because of the conflict of the opinion or otherwise, can hear the matter in a larger bench.

It is almost trite to say that the answer you get depends upon the question you ask. The framing of the issue conflates three distinct situations that are, nonetheless, distinct in critical ways. The first situation is when, after the passage of time, a court is prompted to reconsider an earlier verdict that it had delivered. The second is a situation where a smaller bench, on a prima facie examination of binding precedent, makes a “referral” to a larger bench to reconsider it. And the third is a situation where within the same court, there are contrary judgments existing at the same time that require to be settled one way or another. These three situations – as I have argued in my previous posts – also need to be understood within a broader institutional framework: does the court normally sit en banc (all the judges sitting together), and therefore – for all practical purposes – speak at all times within one institutional voice, or does it (like our court) sit in multiple different panels of judges? Note that the first two situations outlined above could occur within either institutional form, while the third is limited to a court (like ours) where thirty-four judges divide themselves into numerous panels of two or three.

The problem with Justice Mishra’s framing, then, is that all his examples that follow after paragraph 11 correspond to either situation A or situation B. For example, his first example – the overruling of the five-judge bench decision in United Motors (1953) by a seven-judge bench in Bengal Immunity (1955) is an example of situation A. At that time, the Supreme Court had eight judges. An issue was decided one way in 1953, and then decided another way in 1955, with two of the judges who had sat in the first case also sitting in the second; in the first case, a majority of the court participated in the judgment, whereas in the second case, it was effectively an en banc judgment. This, therefore, was an example of the Court as an institution changing its mind about the correctness of its earlier ruling. Similarly, his second example – that of the two-judge bench order in Ujagar Prints, which doubted the correctness of the judgment in Empire Industries – is one of referral: there is existing precedent, another bench – on a prima facie examination – proposes a second look at the issue, and the question is referred to a larger bench for resolution. Justice Mishra points out that Justice Sabyasachi Mukherji, who was party to the judgment in Empire Industries, was also on the five-judge bench that reheard the issue. The issue there, however, was that Empire Industries held the field as good law: a referral does not displace or set up contrary precedent that needs to be adjudicated upon. In that sense, therefore, examples under situation B come within the same broad framework as situation A – that of an institution, acting as an institution, reviewing one of its earlier decisions.

A number of examples follow that – as discussed above – fall either within situation A or situation B. In each of these examples, Justice Mishra’s analysis is limited to pointing out that there were a few common judges in both the earlier decision, and the later decision. This is evident from his observation in paragraph 21, where he notes:

This Court has observed that law should be settled permanently and that it should be settled correctly. There may be circumstances where public interest demands that the previous decision be reviewed and reconsidered. Thus, it is apparent that this is the consistent practice of this Court that Judges who had rendered the earlier decision have presided over or been part of the larger Bench.

It is telling that in all of Justice Mishra’s list of relevant precedent, which ends at paragraph 22, there is not one case that is actually on all fours with the present situation: a situation where at the same time there existed two conflicting judgments delivered by different judges, sitting in benches of equal strength, and where the latter had declared the former to be per incuriam. In my previous posts, I have explained why this distinction matters fundamentally – an explanation that I will get back to a little later.

After paragraph 22, Justice Mishra cites a range of judgments on judicial bias that have no application to the present issue. It is unclear, for example, what relevance an American judgment stating the same judge should complete a trial despite showing signs of predisposition through the its course has to do with the controversy here – or another judgment that states that it is “desirable to have the same judge in successive causes.” In any event, after having cited these cases, Justice Mishra then comes to the substantive part of his judgment. In paragraph 27, he notes that:

There may not be even one Judge in this Court who has not taken a view one way or the other concerning Section 24 of the Act of 2013, either in this Court or in the High Court. If the submission is accepted, no Judge will have the power to decide such a matter on the judicial side. We have to deal with the cases every day in which similar or somewhat different questions are involved concerning the same provision. For having taken a view once, if recusal is to be made, it would be very difficult to get a Judge to hear and decide a question of law. We have to correct the decision, apply the law, independently interpret the provisions as per the fact situation of the case which may not be germane in the earlier matter. A judgment is not a halting­place, it is stepping stone. It is not like a holy book which cannot be amended or corrected. It may also work to the advantage of all concerned if a Judge having decided the matter either way is also a member of the larger bench. A Judge who had rendered any decision in a smaller combination is not disqualified from being part of a larger Bench when a reference is made to the larger bench. Rather, it is a consistent practice prevailing in various High Courts as well as of this Court to include the same Judge/Judges in larger Benches.

But it should now be clear that this is a mischaracterisation of the issue, because the dispute is not about whether a judge has “taken a view” on what Section 24 of the Land Acquisition Act says, or the parade of horribles that Justice Mishra trots out in this paragraph, and the ones that follow: bench-hunting, forum-shopping, etc. etc. The issue is a very narrow and simple one, that deserves to be spelt out once more: this is not a case where the institution is reviewing its earlier judgment, or deciding on a referral where a judge – on a prima facie reading – calls for a reconsideration. This is a case where a three-judge bench ruled one way on Section 24. Then another three-judge bench – headed by Justice Mishra and over the dissent of Justice Shantanagouder – held it to be per incuriam and set up its own contrary reading of Section 24. Note that Justice Mishra in that judgment did not simply express doubt about prior precedent and refer it for a fuller reconsideration (which is the normal practice). He overruled that judgment by effectively holding that it had no force in law. Not only did this go against established principles of stare decisis and judicial discipline, where you are not supposed to overrule a judgment that is binding upon you, but it also set up two conflicting lines of precedent within the same court at the same time – and it was that precise issue that the third three-judge bench was considering the day after Justice Mishra’s ruling, when the question was referred (by Justice Mishra) to the Chief Justice. It is telling that in a sixty-two page long judgment, Justice Mishra is unable to provide a single precedent – from India or from abroad – that has similar facts, and in his reasoning, he makes no reference whatsoever to this crucial point.

And the distinction matters. It matters in a polyvocal Court of thirty-four judges, where small panels hear issues on the same legal point, and return conflicting findings. All of Justice Mishra’s precedents and arguments are based upon the vision of the court acting as a unified institution, with internal mechanisms for reviewing and rethinking its previous decisions. However, you cannot eat your cake and have it too: a unified institution does not have a situation where oppositional lines of precedent are generated at the same time, and require further resolution between them. As someone pointed out: this situation is akin to Examiner A failing a student, Examiner B passing him, and the answer-script being sent back to Examiner A to “resolve” the conflict. Yes, Examiner A might be persuaded to change his mind. But that, it should be obvious, is hardly the point. It is for this reason that I had noted in the previous post that:

In India, however, we have a situation where within the highest judicial body, the existence of a multiplicity of judicial panels undermines institutional coherence, and creates a situation where the apex Court is effectively disagreeing with itself. This is what has happened in the present case: abstracting for a moment from the thicker context, what has happened is that two three-judge benches of the Supreme Court have taken diametrically opposite views on the same issue. Now the existence of thirty-four judges on the Supreme Court means that there is a ready solution to hand: send the issue to a bench that has a higher number of judges, in order to “resolve” the conflict.

Shorn of the legalese, what this effectively means is that within the highest judicial body, there is an internal appellate mechanism to deal with the problem of institutional incoherence, flowing from the Court’s unique structure. I use the word “appellate” in its ordinary sense; it is, obviously, not an “appeal” as that word is defined under Indian law, but it is basically a sui generis response to a situation where even within the apex Court, there are situations when conflicting views require a resolution in the interests of institutional coherence.

Once we understand this, however, it becomes clear that if the same judge is going to be present at both stages of the process, then this form of resolution becomes pointless. This is why it is important to understand Mr. Shyam Divan’s argument that what this effectively amounts to is a judge adjudicating upon the correctness of his own judgment in “collateral” proceedings; it is not formally an appeal, but in every significant respect, these latter proceedings are doing the work of an appeal. The source of the confusion is that – for understandable reasons – we continue to think of the Supreme Court as a unified body that speaks in one institutional voice, while the reality has moved very far away from this. A more accurate analogy would be with the European Court of Human Rights, where the same Court is divided into a “Chamber” and a “Grand Chamber.” Chamber judges and Grand Chamber judges are drawn from the same overall pool of ECHR judges: “The Grand Chamber is made up of the Court’s President and Vice-Presidents, the Section Presidents and the national judge, together with other judges selected by drawing of lots.” But: “When it hears a case on referral, it does not include any judges who previously sat in the Chamber which first examined the case.” (Emphasis Supplied)

Needless to say, this point finds no mention in Justice Mishra’s judgment. It also finds no mention in a brief concurring opinion penned by the other four judges – Benerjee, Saran, Shah and Bhat JJ – who repeat the same fallacy when they observe in paragraph 5 that: “We notice that his order has cited several previous instances where judges who rendered decisions in smaller bench compositions, also participated in larger bench formations when the reasoning (in such previous decisions) was doubted, and the issue referred to larger benches, for authoritative pronouncement.”

A final point needs to be noted. As Suhrith Parthasarathy noted at the time, there was a crucial issue of judicial discipline and respect for stare decisis in the manner in which Justice Mishra delivered the Indore Development Authority judgment. Holding a binding three-judge bench judgment to be per incuriam, effectively overruling it, and also overruling at one stroke seventeen Supreme Court judgments that had followed it – instead of doing things the normal way and making a referral – all raised serious questions about the functioning of a polyvocal court. It was precisely those issues that the three-judge bench intended to consider when this judgment was brought to its attention the next day – a process that was stalled when the case was referred to the Chief Justice. The recusal order makes it clear that those issues now stand buried. If henceforth, however, it is open to coordinate benches to overrule each other through declarations of per incuriam – and then for the Chief Justice acting as the Master of the Roster to in effect assign the case to judges who have been on one side through his powers of bench composition – then what we are looking at in the future is a factionalised court, where judicial decisions fall hostage to internal power struggles and bench-formation imperatives. There is indeed a potential parade of horribles in store – but it has nothing to do with bench hunting and forum shopping, and everything to do with the institutional integrity of the Supreme Court.

 

---

*”Blackest chapter”? Blacker than ADM Jabalpur? Blacker than Koushal v Naz? There is a lot of blackness down that particular road, and such overwrought hyperbole from the bench does nobody any favours – least of all “the system.”

The Bombay High Court on Illegal Surveillance

In a judgment handed down earlier today, a two-judge bench of the Bombay High Court found that the Central Bureau of Investigation’s [“CBI”] surveillance of a businessman accused of paying bribes was illegal. The Court quashed the surveillance orders, and directed destruction of the call records. The judgment is important for three reasons: (i) it is an model of principled constitutional adjudication, following both the letter of the law and applicable precedent; (ii) it extends the logic of the Supreme Court’s privacy judgment [“Puttaswamy”] in the context of unconstitutionally obtained evidence; and (iii) it provides a genuine and enforceable remedy upon a finding that fundamental rights have been breached.

Principled Constitutional Adjudication

The facts of the case were simple. There were three surveillance orders (29th October 2009, 18th December 2009, and 24th February, 2010), which constituted the legal bases for the interception of the petitioner’s phone calls. The petitioner argued that these orders were both ultra vires the Telegraph Act, as well as the Puttaswamy judgment. As the call records had been used in the charge-sheet against the petitioner, it was also argued that those records should be destroyed, and could not be part of the case against him.

The Bombay High Court (Jamdar and More JJs) went straight to the text of the Telegraph Act. Justice More noted that Section 5(2) of the Act made it clear that telephone interception was permissible only under one of two circumstances: the existence of a public emergency, or a threat to public safety. This was obviously not a public emergency, so the key phrase was “public safety.” More J. then referred to the judgment of the Supreme Court in PUCL v Union of India (1997), where “public safety” had been clearly defined as “the state or condition of freedom from danger or risk for the people at large… [that would be] apparent to a reasonable person.” He then noted that the PUCL judgment had also set out procedural safeguards in cases of surveillance, that were to be treated as enforceable rules under Section 5 of the Telegraph Act.

More J. went on to observe that the judgment in PUCL had been endorsed by the nine-judge bench of the Supreme Court in Puttaswamy. This also meant that contrary precedent in R.M. Malkani v State of Maharashtra – that had held that telephone interception did not violate any fundamental rights – now stood overruled. Puttaswamy had also held that any restriction upon the right to privacy had to satisfy the proportionality standard. More J. then held that the directions in PUCL conformed to the proportionality standard, and were evidently binding upon the Bombay High Court.

Applying the law to the facts, More J. found that it was abundantly clear that there was no threat to “public safety”, following PUCL’s definition. Therefore, “it was impermissible to take resort to telephone tapping.” (para 16) He noted that “even at this stage, from the affidavits filed by the Respondents or the charge-sheet, the Respondents could not justify any ingredients of risk to the people at large or interest of the public safety.” (para 17) Consequently:

We are satisfied that in peculiar fact of the instant case, the impugned three interception orders neither have sanction of law nor issued for legitimate aim, as sought to be suggested. The impugned three interception orders could not satisfy the test of “Principles of proportionality and legitimacy” as laid down by the nine judges’ constitution bench decision in K. T. Puttaswamy (supra). We, therefore, have no hesitation in holding that all three impugned orders are liable to be set aside. Accordingly, we quash and set aside the same. (para 19)

Now this may look like a straightforward application of law – and it is – but there are two points that I want to highlight here. The first is the unambiguous understanding of the legal standard laid out in Puttaswamy, and its application. Puttaswamy makes clear that in cases where fundamental rights are infringed, it is not enough for the government to cite law and order, and for the Court to engage in an undefined balancing exercise (that somehow ends up being resolved in favour of the government). Rather, Puttaswamy’s proportionality standard is a four-step test that requires, inter alia, government to show that there is a legitimate aim, that the infringing action is rationally connected to that aim, that it is necessary (i.e., the least restrictive option to achieve that aim), and that it is proportionate (i.e., the benefits outweigh the costs of infringing rights). The Bombay High Court makes it clear that the government cannot avoid justifying its actions under that standard.

Secondly, in recent times, we have seen far too often that courts have not only given such overriding importance to the government’s stated goals (“public interest”, “national interest”, “national security” etc.), but have also let the government define what the content of these phrases is. This has been most prominently visible in the Kashmir Cases (discussed on this blog), where the invocation of “national security” has acted as an impenetrable shield against any further judicial scrutiny. But it has also been visible elsewhere – in the courts’ recent jurisprudence on anticipatory bail, for example, or in its jurisprudence on bans upon organisations, bail under the UAPA, the concept of “custodial interrogation”, and of course the Supreme Court’s recent use of Article 142 to provide legal cover to the compulsory taking of voice samples.

In short, courts have increasingly become fixated on the governmental imperatives of law and order, treating procedural rights and safeguards as nuisances that need to be swept aside in order to ensure that “public interest” is satisfied. In that context, the Bombay High Court’s decision to straightforwardly apply the law as well as constitutional precedent, leading to the inescapable conclusion that surveillance was illegal, is most refreshing. Notice that the Court could have decided the other way as well: it could have held, for instance, that corruption is so grave a problem that adequately prosecuting it is indeed in the “interests of public safety.” This, of course, would have twisted the meaning of “public safety” out of all recognition – but it is not a reasoning technique that we are unfamiliar with (recall, for example, the Supreme Court’s interpretation that “migration” fell within the meaning of “external aggression”, in Sarbananda Sonowal’s Case).

Instead, the Bombay High Court’s judgment is a reminder that the “balance” between governmental goals and individual rights has already been struck in the text of statutes (providing procedural safeguards) and in constitutional decisions that lay out doctrines like proportionality. The job of a court now is to straightforwardly apply text and precedent, and stand by the legal conclusion that follows from that application.

The Remedy

Equally important is the Court’s remedy. The Bombay High Court noted that in PUCL, it had been made clear that if the Review Committee found that telephone interception was illegal, copies of the intercepted material would have to be destroyed. This had also been adopted by Rule 419(A)(17) of the Telegraph Rules. Consequently, More J. noted:

… having held that the impugned interception orders have been issued in contravention of the provisions of section 5(2) of the Act, we have no option but to further direct the destruction of intercepted messages. (paragraph 21)

The Court also pointed out that the CBI itself had been taking conflicting stands in court about the legal foundation of the orders, and the actions of the Review Committee – a practice that the Court strongly deprecated (paragraph 28). More J. found, in addition, that the successive interception orders were carbon copies of each other, and had evidently been passed without application of mind – a clear breach of the statute.

Unconstitutionally Obtained Evidence

The Respondents argued, however, that even if there had been illegality in the collection of the evidence, they should be entitled to use it in the course of the criminal prosecution. They relied upon several judgments that had held that as long as evidence was relevant, it could be introduced in a trial, regardless of the legality of how it was obtained.

The Court’s response to this argument is perhaps the most remarkable part of the judgment. After distinguishing the relevant precedent (including the judgment in Pooran Mal, More J held:

We may also add here that if the directions of the Apex Court in PUCL’case (supra) which are now re-enforced and approved by the Apex Court in K. T. Puttaswamy (supra) as also the mandatory rules in regard to the illegally intercepted messages pursuant to an order having no sanction of law, are permitted to be flouted, we may be breeding contempt for law, that too in matters involving infraction of fundamental right of privacy under Article 21 the Constitution of India. To declare that dehorse the fundamental rights, in the administration of criminal law, the ends would justify the means would amount to declaring the Government authorities may violate any directions of the Supreme Court or mandatory statutory rules in order to secure evidence against the citizens. It would lead to manifest arbitrariness and would promote the scant regard to the procedure and fundamental rights of the citizens, and law laid down by the Apex Court. (paragraph 39)

This is a hugely important holding. I have argued elsewhere that in Selvi v State of Karnataka, a three-judge bench of the Supreme Court had drawn a crucial distinction between illegally obtained evidence (admissible if relevant) and unconstitutionally obtained evidence (inadmissible under all circumstances). Evidence obtained in breach of fundamental rights, in other words, could not then be used in court against the citizen. Although the Bombay High Court did not cite Selvi, it did cite Puttaswamy (which endorsed Selvi), and more importantly, it provided a strong rationale for this: that to hold on the one hand that a certain method of collecting evidence was unconstitutional, while also allowing the State to use the evidence so collected, would not only be arbitrary, but would also ensure that fundamental rights and individual safeguards remained parchment barriers against the State.

Conclusion

In each of its three conclusions – on illegality, on the remedy, and on evidence – the Bombay High Court, as I have shown, engaged in a textbook application of law and precedent. It faithfully applied existing standards balancing individual procedural safeguards against the imperatives of law and order, found that under those standards surveillance was clearly illegal, and then went through with the consequences that followed. What makes it remarkable, of course, is the number of recent judgments that appear to have given a go-by to these standards by invoking the imperatives of the State.

It is also remarkable, I think, for another reason: the Puttaswamy judgment was hailed as a new dawn for constitutionalism (Constitutionalism 3.0, as someone commented) precisely because of its categorical assertion that the individual was at the heart of the constitutional order, that infringements of individual rights must be limited to the strict confines of what was constitutionally permitted, and must be justified as such by the State. Puttaswamy was not just a simple finding that privacy was a fundamental right under the Constitution, but the reasoning of the nine judges brought hope that it would lay the foundation for transforming how civil rights adjudication happens: adjudication that would stop treating – as K.G. Kannabiran once said – the “restrictions” as fundamental and the rights as contingent, and that would stop providing automatic normative priority to the reasons of State. And at the time of Puttaswamy, I had written that:

But we must all be equally clear about the fact that the real task will begin now: it will begin with the first bench that is asked to apply Puttaswamy to a concrete case where privacy runs up against reasons of State, and it will continue in the months, years, and decades to come. The task is not simply to apply Puttaswamy, but to use Puttaswamy to craft a genuinely progressive civil rights jurisprudence, where the original constitutional compact – that individual rights are not subordinate to “public good”, “social good”, “public interest” (or any other variant of the phrase) – is restored. And that, now, is the responsibility of citizens, of lawyers, and of course, of the judges who will be called upon to adjudicate privacy and liberty claims in the wake of this judgment. For judges, indeed, it is a challenge: to be true to the animating spirit of Puttaswamy, and make the hard decision to tell the State that although its aim may be laudable, its motives unimpeachable, and its method beneficial, under the Constitution of India, it nonetheless cannot have what it wants.

I think it is fair to say that the last few months have severely tested this cautious optimism, expressed more than two years ago. From that perspective, the Bombay High Court judgment was beautiful to read, because it indicated the difference that Puttaswamy can and could make, and it provided a glimpse of Puttaswamy’s promise to initiate a transformative civil rights jurisprudence, a promise that had so enchanted us at the time.

The enchantment may have worn off, but the hope remains!

 

Guest Post: The Abortion Petition – Some Key Questions

(This is a guest post by Gauri Pillai.)

---

This post examines the recent writ petition filed in the Supreme Court of India, challenging the constitutionality of certain provisions of the Medical Termination of Pregnancy Act, 1971 (‘Act’). The Act permits termination up to a period of 20 weeks. It requires the approval of one medical professionals for termination prior to 12 weeks, and two medical professionals for termination between 12 and 20 weeks. Termination is permitted only when continuation of pregnancy would cause grave injury to the physical or mental health of the pregnant woman, or where there is substantial risk that the fetus, if born, would suffer from such physical or mental abnormalities so as to be seriously handicapped (Section 3(2)). If the pregnancy is caused due to rape, or failure of contraceptive device used by a ‘married woman or her husband’, it is presumed that there is grave injury to the mental health of the woman (Explanation, Section 3(2)). Beyond 20 weeks, the Act permits termination only if ‘immediately necessary to save the life’ of the pregnant woman (Section 5).

The Challenge 

The Act, the petition argues, imposes a severe restriction on women’s right to ‘reproductive choice’, that is, ‘the right to choose whether to conceive and carry pregnancy to its full term or to terminate, [which lies] at the core of one’s privacy, dignity, personal autonomy, bodily integrity, self-determination and right to health, recognised by Article 21 of the Constitution’. This is because termination, even within the first trimester, is permitted only upon fulfilling certain conditions, set out above; termination on account of fetal abnormality is allowed only up to 20 weeks; and finally, termination beyond 20 weeks is restricted to instances ‘immediately necessary’ to save the ‘life’ of the pregnant woman.

By critiquing these restrictions for being excessive, harsh and disproportionate, the petition mounts a challenge to the Act under Article 21. However, I argue, the petition does not interrogate, and dislodge, the assumptions that lie behind these restrictions. Instead, it takes these assumptions as given and works within them, to argue for more expansive rights.

The Presumption of Motherhood

The Act is premised on two fundamental assumptions.

First, the Act views women primarily as mothers, and pregnancy as natural and inevitable. This is indicated by provisions of the Act which allow abortions only under exceptional, adverse circumstances, suggesting that the default option for women is to continue with their pregnancy. It could be argued that women’s right to an abortion is restricted to exceptional situations in order to balance the interests of the woman against interests of the fetus. If so, the present framing of the Act implies that in exceptional, adverse circumstances, the interests of the woman take precedence over that of the fetus. However, in the absence of such circumstances, the interests of the fetus override that of the woman.

This framing assumes one of two things (or both): (a) in the absence of exceptional circumstances, women are happy to continue their pregnancy; and/or (b) in the absence of exceptional circumstances, women should be expected to continue their pregnancy. In case of (a), it is assumed that there would be no harm to women’s interests because women, under ordinary circumstances, would want to continue their pregnancy (and be mothers). For instance, in the landmark decision of Suchitra Srivastava v Chandigarh Administration, the Supreme Court observed, ‘the termination of pregnancy has never been recognised as a normal recourse for expecting mothers’. Since there is no harm to women’s interests, fetal interests are given priority. In case of (b), it is assumed that the harm to women’s interests from continuation is lesser than the harm to fetal interests from termination. This is premised on the assumption that even if the individual woman does not desire the pregnancy, pregnancy is natural and inevitable, something all women go through. Therefore, in the absence of exceptional circumstances, the harm from continuation of an unwanted pregnancy is minimal. As a result, in these circumstances, the harm to women’s interests from continuation of pregnancy is considered to be lesser than the harm to fetal interests from termination. Thus, the Act starts from a position where women are seen first and foremost as mothers, and pregnancy as natural, inevitable, and desired by all women. This assumption then influences the assessment of harm and balancing of interests carried out by the Act. This is not to say that no other considerations influence the balancing, but to highlight that the current framing of the Act suggests that presumptions regarding women’s role as mothers is one such consideration.

The petition appears to resist this narrative by asking for abortion on demand within the first trimester. However, a close reading of the petition reveals that the reason behind this claim is not the recognition that it is ‘normal’ for women not to be mothers, and opt for termination. Instead, the claim is made because the health risk to women from continuation of pregnancy is more than the health risk accompanying termination during the first trimester. Thus, even in asking for abortion on demand within the first trimester, the petition fails to dislodge the gendered assumption underlying the Act which views women as mothers, and pregnancy as natural and inevitable; instead, it merely works to expand the instances of termination permitted within this narrative.

A Strand in a Gendered Web

Second, the Act views abortion as an ordinary medical procedure, with no larger social import. This is obvious in the very title of the Act, which refers to ‘medical termination of pregnancy’, rather than ‘abortion’; the Statement of Reasons or Objects of the Act which describes abortions as ‘health measures’ to alleviate ‘danger to the life or risk to the physical or mental health of the woman’, and prevent ‘wastage’ of her life; the predominance given by the Act to the opinion of medical professionals, viewing them as co-decisionmakers along with the women; and, the reliance placed by courts on the decisions of Medical Boards—set up to weigh the risk of continuation of pregnancy against the medical risk of termination—in allowing abortions beyond 20 weeks, under Section 5 (see here, here and here). Women’s decisions to undergo an abortion are overridden if the Medical Board opines that the continuation of pregnancy is ‘less hazardous’ than termination at that stage (see here). Thus, the medical risk of termination becomes the primary consideration while making a decision under the Act.

This tendency to prioritise the medical risk of termination over other considerations, including the woman’s choice, is evident in the petition as well. For instance, the petition constructs the right under Article 21 in the following terms: ‘Where the termination of pregnancy itself does not involve risk to the physical life of the woman, her right to choice…[has] to be respected’. Similarly, as mentioned above, the petition argues for abortion on demand within the first trimester only because ‘there is no dispute [that] the risks involved when pregnancy is carried to full term far outweigh the minimal and negligible risks involved when pregnancy is terminated in the first trimester. Keeping this in view, the State cannot make any law restricting the right of the woman seeking abortion’ during the first trimester. In this sense, the petition follows the Act in viewing abortion primarily as a medical procedure, by respecting women’s choice only when medical opinion favours it.

However, this understanding of abortion is reductive, and ignores that at the centre of abortion lies a group of persons—women—who have been historically oppressed on account of their reproductive ability. The fact that women can reproduce is translated into the essentialist, universal assumption that women must. These gendered expectations, however, do not end at the moment of birth. Women are not only expected to bear children but also assume primary responsibility for their care. This largely unilateral responsibility of child-care has confined women to the domestic sphere, and maintained the distinction, and the hierarchy, between the public and private spheres. Motherhood and paid employment are constructed as incompatible. Several empirical studies demonstrate that the presence of young children in the house is associated with lower female workforce participation in India, with women quitting work after childbirth (see here and here). At the same time, childcare—women’s contribution in the home—has a low status in society. Though ‘reproduction entails incredible liabilities and workload, [it] is still considered to be of lesser value compared to men’s engagement in production that yields market value’. In this sense, pregnancy is not an isolated nine-month episode in the life of a woman; it is instead located within gendered structures of power, which require women to bear children and raise them, compelling them to sacrifice other opportunities they value, while, at the same time, devaluing their labour. Articles 14 and 15 provide constitutional grounding to this perspective on pregnancy. However, the role of these provisions is outside the scope of the specific argument being made by this post, and is thus not developed.

Against this context, abortion cannot be viewed as just another medical procedure. Instead, it should be seen as allowing women to take back control over their bodies and lives—control they have been historically denied, and on the basis of which they have been disadvantaged. This recognition is absent within the petition, which argues for permitting women to undergo termination only as long as there is no threat to their life or health. In this manner, the petition places abortion on the same page as other medical procedures, where the opinion of the medical professional is given overriding priority. Through this, women seeking abortions are seen merely as patients seeking medical care, stripping away the gendered social context of reproduction in India.

Thus, the Act is deficient because it is premised on two underlying assumptions: women as mothers, and abortion as an ordinary medical procedure. The petition, in challenging the Act as restrictive and unconstitutional, does not dislodge these assumptions, and shift abortion outside these narratives. Instead, it retains the framing offered by these assumptions, and therefore constructs a limited right to medical termination of pregnancy. This might be an intentional strategy, to ensure that the claim has a greater chance of being accepted by the court. However, it is important to question whether in making this concession and failing to interrogate these assumptions, the petition, even if granted, will result in real and effective reproductive control for women.

The Remedy

The remedies sought by the petition include striking down as unconstitutional Section 3(2)(a) to the extent it makes termination during the first trimester conditional; Section 3(2)(b) to the extent that it imposes a 20 week limit on termination in case of grave mental or physical injury to the woman, or fetal abnormality; and, Section 5 to the extent that termination beyond 20 weeks is permitted only when ‘immediately necessary’ to save the ‘life’ of the pregnant woman. If the approach I propose is adopted, and the fundamental assumptions underlying the Act are challenged, certain remedies—such as abortion on demand within the first trimester—would remain the same. Others could, however, differ. If the balancing exercise does not start with viewing women as mothers, and pregnancy as natural and inevitable, then the balance struck between the woman’s and fetal interests could change. Similarly, if abortion is not viewed as an ordinary medical procedure, a case could be made for why the choice of a woman who wishes to undergo termination even after being informed of the risk to health or life needs to be respected. These would change the very structure of the Act, by questioning the imposition of conditions and time limits. However, even if the specific remedies do not change, by challenging the assumptions underlying the Act, the petition, if accepted, could shift the discourse on abortion, and set us on the path towards meaningful reproductive choice for women.

Kashmir: Fundamental Rights and Sealed Covers

In a previous post, we discussed one of the peculiar features of the ongoing litigation regarding the communications shut-down and other restrictions in Kashmir. One of these features is the absence – in court – of the government’s orders that constitute the basis for the restrictions (whether under the Telecom Suspension Rules or Section 144 of the CrPC). As we discussed, one of the basic requirements for a restriction upon fundamental rights is the existence of a law, and its publication (i.e., the law being made available to the citizens whose freedoms it seeks to restrict). There can be no restriction of fundamental rights in the absence of law, or on the basis of secret laws.

In the hearing of 16th October, this question was (finally) put to the State by the Supreme Court Justices. It is reported that Solicitor-General Tushar Mehta stated that he had no objection to showing the orders to the Court, but considerations of national security may require him to withhold them from the petitioners – and that the petitioners had no “right” to claim access to the orders. Accordingly, the Court’s Order records that if the Solicitor-General wants to claim “privilege” over the orders, then the Court “requests him to file an affidavit indicating the reasons for claiming such privilege.” 

While we wait for the government’s affidavit, it is important to note that what is at stake here is a creeping expansion of the “sealed cover”, which we have seen so often in recent times. It is also important to note that it is entirely unjustifiable: executive orders – passed under cover of law – restricting rights of citizens are not and cannot be subject to legal privilege, or submitted to the Court in a sealed cover. 

At one level, it is questionable whether a legal order revealed only to the Court, and hidden from citizen, counts as “publication” in the relevant sense. But there is a more basic reason why this is unconstitutional. If I – as a citizen – do not have access to the legal order that purports to restrict my rights, I have no effective way of challenging it in Court and demonstrating it to be unconstitutional. I cannot show that it is disproportionate and fails the reasonableness standard under Article 19(2). What this means, in turn, is that effectively, that I have no remedy to enforce my fundamental rights. And a right without a remedy is, of course meaningless. 

Effectively, therefore, denying the order on the basis of which rights are infringed amounts to a suspension of the rights themselves. As explained in a previous post, this can only be done – and that too, partially – through a formal declaration of Emergency; in other words, the government’s arguments are entirely based upon the logic of an Emergency, without the courtesy of a formal declaration of Emergency. 

It is important to remember the last time the contrary argument was made. The last time it was made – unsurprisingly – was in ADM Jabalpur. There, the argument made on behalf of the detenus was that the suspension of the right to move the Court to enforce habeas corpus amounted to the denudation of Article 21 itself. To this, the Court said that the mere fact that you could not move the Court did not mean that the rights ceased to exist – it just meant that you had no way of enforcing them. But if ADM Jablpur has been buried “ten fathoms deep” by Puttaswamy, then surely there is no remaining scope for the Government, in 2019, to make this argument.

Consequently, therefore, no “affidavit” can justify keeping the communications suspension and S. 144 orders secret, and there is no justification for handing them over to the Court in a “sealed cover”. They must be made disclosed, and not only to the petitioners, but to the general public, so that affected parties are in a position to seek remedies before the courts of law. Any other outcome would only amount to a justification of the logic of Emergency.   

Addendum: The Concept of “Bias” in a Polyvocal Court

[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.]

---

It is important to begin this post with a clarification. Yesterday, I wrote a blog post pointing out that the composition of the Constitution Bench scheduled to hear the case concerning the interpretation of S. 24 of the Land Acquisition Act raised some important issues, specifically concerning the powers of the Chief Justice as the “Master of the Roster.” The post was one among many public interventions that raised similar questions about the Bench. During the hearings of the case today, it is reported that Justice Mishra observed that “there are attempts in the media and social media to “malign” the institution by raising questions about the bench and CJI’s decision.” Solicitor-General Tushar Mehta agreed, and stated that “there is a pattern here, where a few days before a major case is heard, things are written on social media or web magazines raising certain objections, that are intended to influence the proceedings.” Another judge on the bench, Justice Vineet Saran, agreed with him.

As two Justices of the Supreme Court, and the Government’s second-highest ranking Law Officer have seen fit to hold forth from the bully pulpit against nameless “critics”, a few points need to be made in response, in addition to what has already been pointed out by Nitin Sethi. The first is that the composition of the Bench was made public this Saturday. The hearing was scheduled for today. Unless the Solicitor-General believes that critics of the Court had divined the composition of the Bench in advance, and were only keeping their powder dry until it was formally announced, the only time that these objections could possibly have been raised was between Saturday and Tuesday, i.e., “a few days before the hearing.” Secondly, the Supreme Court is a public institution in a democratic republic, that is committed to the principle of open justice. That the Court’s conduct will be subjected to rigorous public scrutiny is exactly how it should be. Critics of the Court put their names to what they write, take responsibility for their writing, and set out their arguments (along with the grounds on which they are based) openly and in the public domain, which is exactly how it is supposed to happen in a democracy. The critics are, in fact, considerably more transparent than the subject of discussion, which is the allocation of benches by the Chief Justice – a process that is entirely opaque and discretionary. And thirdly, the only pattern that is visible here is Supreme Court judges’ reaction to public scrutiny by shielding themselves in a cloak of defensiveness and self-righteousness, where we go straight from criticism to a “maligning” of the institution (and, by extension, an equation of individual judges with “the institution”). Readers will recall that this was exactly the reaction at the time of sexual harassment allegations against the Chief Justice – a reaction that, again, was supported by the highest law officers of the government.

With these preliminary points out of the way, I want to focus on one specific issue that was raised during oral arguments today: the issue of deciding bias. The issue arose out of the petitioners’ request that Justice Arun Mishra recuse himself from hearing the case. Much of the questioning on this point was led by Justice S. Ravindra Bhat; in particular, drawing on precedent from common law countries, Justice Bhat made a distinction between “pecuniary bias”, “personal bias”, and “intellectual bias”, and questioned whether “intellectual bias” alone was sufficient ground for a recusal; he also observed that in Indore Development Authority, Justice Mishra had only expressed a “view”, and could – in theory – be persuaded to change his mind. Senior Counsel Shyam Divan’s response to these questions can be read here, but in this post, I want to make a separate point: questions of bias and recusal cannot be adjudicated without paying close attention to the unique nature of the Indian Supreme Court as an apex Court: that is, its polyvocal character. To directly copy standards of bias that have been evolved in common law jurisdictions – as Justice Bhat’s line of questioning suggests – without paying attention to the Indian Supreme Court’s institutional character, is to essentially be making a category mistake.

Almost uniquely among the major English-speaking Apex Courts of the world, there exists in the Indian Supreme Court a massive numerical difference between the strength of the Court (34 judges) and the strength of benches hearing day to day cases (2 or 3 judges). The US Supreme Court, for example, sits en banc (as a full Court) of nine Justices. The South African Constitutional Court sits en banc for the most part as well. The UK Supreme Court has twelve judges, that often sit in panels of five (but can also sit en banc or close to it for important cases, such as the recent prorogation judgment). Similar situations exist for the apex courts of Kenya, Canada, New Zealand, Australia. What this means is that these apex Courts possess an institutional coherence: judgments can be fairly said to express a “view of the Court” (as an institution). And if you want a judgment of the apex Court to be set aside, you have to – effectively – convince the same body to go back on its earlier view.

In India, however, we have a situation where within the highest judicial body, the existence of a multiplicity of judicial panels undermines institutional coherence, and creates a situation where the apex Court is effectively disagreeing with itself. This is what has happened in the present case: abstracting for a moment from the thicker context, what has happened is that two three-judge benches of the Supreme Court have taken diametrically opposite views on the same issue. Now the existence of thirty-four judges on the Supreme Court means that there is a ready solution to hand: send the issue to a bench that has a higher number of judges, in order to “resolve” the conflict.

Shorn of the legalese, what this effectively means is that within the highest judicial body, there is an internal appellate mechanism to deal with the problem of institutional incoherence, flowing from the Court’s unique structure. I use the word “appellate” in its ordinary sense; it is, obviously, not an “appeal” as that word is defined under Indian law, but it is basically a sui generis response to a situation where even within the apex Court, there are situations when conflicting views require a resolution in the interests of institutional coherence.

Once we understand this, however, it becomes clear that if the same judge is going to be present at both stages of the process, then this form of resolution becomes pointless. This is why it is important to understand Mr. Shyam Divan’s argument that what this effectively amounts to is a judge adjudicating upon the correctness of his own judgment in “collateral” proceedings; it is not formally an appeal, but in every significantrespect, these latter proceedings are doing the work of an appeal. The source of the confusion is that – for understandable reasons – we continue to think of the Supreme Court as a unified body that speaks in one institutional voice, while the reality has moved very far away from this. A more accurate analogy would be with the European Court of Human Rights, where the same Court is divided into a “Chamber” and a “Grand Chamber.” Chamber judges and Grand Chamber judges are drawn from the same overall pool of ECHR judges: “The Grand Chamber is made up of the Court’s President and Vice-Presidents, the Section Presidents and the national judge, together with other judges selected by drawing of lots.” But: “When it hears a case on referral, it does not include any judges who previously sat in the Chamber which first examined the case.” (Emphasis Supplied)

The issue, therefore, is not – as Justice Bhat’s line of questioning suggests – about how we are to understand “bias” from common law precedent. The issue is an institutional one: if what we now have is a situation where the Supreme Court has thirty-four judges, hears cases in panels of two or three that end up disagreeing with each other, and the resolution to that disagreement is by a panel of larger strength, then it is clear that the only way if this system is to work at all is if the latter panel has fresh judges. The alternative – that the same judge (or judges) sit on the larger bench borrows from two incompatible worlds: the problem is caused because of our poly-vocal Court with its thirty-four judges, but the solution comes from a world in which there is still one institution that automatically speaks with one voice.

And of course, it is here that the role of the Chief Justice – as “Master of the Roster” – is a crucial one, as discussed in the last post; and it is here that the need for standards that guide that discretion in the establishment of benches become so crucial. The establishment of these standards, it bears repeating, is not because people are out to “malign” the Chief Justice, but to ensure that the uncanalised discretion that opens up the Chief Justice to malignant accusations is actually subjected to public and democratic norms.

---

[Disclosure: The author clerked with Justice Bhat (as he then was) at the High Court of Delhi, in 2014.]

 

The Land Acquisition Bench and Continuing Issues around the “Master of the Roster”

[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.]

---

On October 12, it was reported that a five-judge bench of the Supreme Court would start hearing a set of cases about the interpretation of Section 24 of the Land Acquisition Act (2013). The Bench would be led by Arun Mishra J., and would commence hearings on October 15 (tomorrow). The composition of the Bench, however, has immediately raised eyebrows. To understand why, it is important to set out a brief history of the dispute.

The legal controversy itself – that involves the fate of huge tracts of land across the country – has been ably summarised by Suhrith Parthasarathy and Namita Wahi. For our purposes, the point is this: in 2014, a three-judge bench of the Supreme Court (Pune Municipal Corporation) interpreted Section 24 of the Land Acquisition Act in one way. The Supreme Court’s interpretation (as is normal) was followed by High Courts across the country, and also by multiple two-judge benches of the Supreme Court itself, for the next four years. However, in December 2017, a two-judge bench of the Supreme Court took a contrary view, and asked for a larger bench to consider the matter. In accordance with convention, the Chief Justice constituted a three-judge bench to look into the issue. Very swiftly after that (in February 2018, within two months of the December 2017 judgment) that three-judge bench (Indore Development Authority) also took the opposite view on Section 24 from Pune Municipal Corporation.

Now, in the normal course of things, the judgment of a three-judge bench is binding on all coordinate benches; consequently, if a three-judge bench disagrees with another three-judge bench, the correct thing to do is to refer the issue to the Chief Justice, so that a higher bench can lay down the position of law authoritatively.* However, instead of doing this, a majority of the three-judge bench – over a dissent by Justice Shantanagouder – held that Pune Municipal Corporation was per incuriam (a judgment delivered without the authority of law), and therefore not binding. In one stroke, therefore, the Bench in Indore Development Authority exempted itself from being bound by Pune Municipal Corporation, overruled all the two-judge bench decisions that had followed it, and declared that its reading of Section 24 was now the law. Soon after that, pending land acquisition matters in the Supreme Court began to be disposed off in accordance with the new understanding.

As Suhrith Parthasarathy pointed out at the time, in a legal system that rests upon the principle of stare decisis (consistency and uniformity of interpretation), coordinate benches overruling each other – especially in order to upset a settled interpretation of law – is improper. To this it may be added: calling another judgment per incuriam is not something that is done in the normal course of things. Per incuriam means not simply that the prior judgment is wrong, but that it is so wrong (it missed a binding statute or ignored a binding judgment) that it has no legal force at all. Indore Development Authority’s understanding of per incuriam, therefore, is itself open to doubt; but what is not open to doubt is the problematic manner in which the Indore Development Authority bench acted.

Unsurprisingly, this led to immediate chaos at the Supreme Court. The issue was brought to the notice of another three-judge bench of the Supreme Court, headed by Lokur J., who had been one of the parties to the original Pune Municipal Corporation decision (full disclosure: the author was, at the relevant time, working in the chambers of one of the senior counsel involved in the petitions). Lokur J. passed an order noting that the question of whether a three-judge bench could hold the decision of another three-judge bench to be per incuriam needed to be considered. Until this question – and the question of whether there needed to be a reference to a larger bench to decide the issue – was decided, he also requested other Supreme Court benches not to continue with disposing off pending land acquisition matters. The very next day, however, two two-judge benches of the Supreme Court – that were hearing the land acquisition cases – referred the matter directly to the Chief Justice. That was how the matter ended up with the Chief Justice (at the time, Dipak Misra CJI), and how the present Constitution Bench came to be set up.

I discuss this history because it reveals that there existed two clear – and very entrenched – views in the Supreme Court about the interpretation of Section 24 of the Land Acquisition Act. These views were entrenched enough for coordinate benches to declare judgments per incuriam, to overrule a long line of settled precedent on one side, and to request benches within the same Supreme Court to temporarily suspend hearing land acquisition cases, on the other (for the avoidance of doubt, this does not imply, of course, an equivalence).

That a five-judge bench is needed to resolve this controversy and lay down the law on the meaning of Section 24 may, ultimately, have been inevitable. However, here is the problem: the December 2017 two-judge bench order doubting the correctness of Pune Municipal Corporation was authored by Arun Mishra J. The February 2018 three-judge bench decision in Indore Development Authority, holding Pune Municipal Corporation to be per incuriam, was authored by Arun Mishra J. The 22 February order referring the question to the Chief Justice – in the teeth of Lokur J.’s order – was also authored by Arun Mishra J. And the five-judge bench that has been set up now to resolve the “conflict” is headed by Arun Mishra J. In other words, the same judge, sitting in a two-judge bench, doubted the correctness of a three-judge bench; then, sitting in a three-judge bench, overruled that decision (over a dissent) in favour of his interpretation of the law; when this was questioned by another three-judge bench, referred the case to the Chief Justice; and is now heading the five-judge bench to decide who was correct.

On any conceivable understanding of natural justice and the rule of law, this is simply unsustainable, especially in a Supreme Court that has thirty-four judges. And this brings us to the root of the problem, which is not really about personalities, but is institutional: the institution of the “master of the roster.” Recall that the Chief Justice’s position as the “master of the roster” (as entrenched in a series of judgments early last year) vests in her absolute discretion to constitute benches and allocate matters in the Supreme Court. When the controversy was at its height last year, I had written that the principle of the “master of the roster” – that originated out of administrative needs, and the requirement of needing someone to administer the court – was very problematic in the context of the modern Supreme Court. The Court’s strength (at that time, 26 judges), combined with the gradual weakening of the gravitational force of precedent effectively means that the Office of the Chief Justice’s administrative power of selecting benches can at least potentially in some cases translate into the power to affect outcomes (if not to determine them).

The composition of the Land Acquisition Bench gives us a textbook example of this. Because of the absolute discretion of the Master of the Roster in constituting benches, there is no questioning why the Bench is the way it is; however, the effect is self-evident – the Bench, which has been set up to resolve an interpretive controversy within the Supreme Court, is led by a judge who has been a protagonist on one side of the controversy, expressing his views not once but on several occasions, and not in extra-judicial forums, but through judgments of the Court. What would a detached and objective observer conclude upon seeing this? They would conclude that in this five-judge bench, at least one vote – the vote of the senior-most judge – is more or less decided (and it is unsurprising that the All India Farmer Association has already written to the Chief Justice making exactly this point).

And the solution – it bears repeating – has to be institutional. As long as absolute power remains concentrated in a single individual – who happens to be occupying the Office of the Chief Justice – issues of this kind will continue to arise, especially when the stakes are as high as they are in this case (as this thread summarises). The Master of the Roster has created a single point of failure, something that – it is well-known by now – is the surest death knell for institutional integrity. And the damage is long-lasting: in this case, for example, even if the Bench is now to be reconstituted, questions will linger over why it was constituted this way in the first place, and the continuing trustworthiness of a process that has been vitiated so badly in the first instance.

There are possible solutions: the establishing of Constitution Benches by a random draw of lots, or having a permanent Constitution Bench with the five senior-most judges (at any given time) occupying it; and so on. But what is clear is that the concept of the “Master of the Roster” has become – and will continue to be – a huge albatross around the neck of the Supreme Court. And in a poly-vocal Court of thirty-four judges, the present controversy has shown just how unsustainable it is.

---

*In this case, it is also interesting to note that until 2018, a very large number of Supreme Court judgments had followed Pune Municipal Corporation, without demurral about its correctness; the controversy actually began with the Indore Development Authority judgment, where a bench suddenly realised – after four years – that multiple Supreme Court judgments had all gotten it wrong).

Judicial Emergencies: Law and Practice

[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.]

---

One of the curious features around the ongoing litigation in the Supreme Court concerning the communications lockdown and executive detentions has been the absence of written documentation filed by the government, in court. For example, we still do not have access to the legal order imposing the communications lockdown, and in the habeas corpus cases, the Supreme Court’s “innovative” remedy of telling the petitioners to travel to J&K to meet the people who are allegedly detained, has effectively exempted the government from responding on questions of legality (so far).

In the absence of the government’s responses, it is impossible to know what legal and constitutional justifications it is offering for what are undoubtedly serious rights violations. In a previous post, I explained why this is a huge problem in a country – and a Court – that continues to (claim to be) governed by the rule of law. This situation, however, changed for the first time on October 1, when the State of Jammu and Kashmir (not the Indian Government) brought on record its reply (a “Limited Affidavit”) in Anuradha Bhasin v Union of India – the first of the petitions filed to challenge the communications lockdown.

From a survey of the Limited Affidavit (a copy of which is on file with the author of this post), the State’s rationale begins to appear. In paragraph 3, it states that the modus operandi of terrorists has been to infiltrate J&K from across the border, and then instigate local militants, with the help of separatist groups. In paragraph 5, the Limited Affidavit goes on to note that the government’s actions on Article 370 would jeopardise the position of these militants, as well as the separatist elements. And because of the influence that these groups enjoyed, there was an “imminent threat of deterioration of law and order.” In paragraph 11, the Limited Affidavit observes that in view of the “apprehension of misuse of Data Services”, requests were made to service providers pertaining to “different zones/areas” based on the threat perception, and which were ultimately confirmed in accordance with the Telecom Suspension Rules of 2017. In paragraph 12, it deals with the imposition of curfew orders under S. 144 CrPC on the basis of an apprehension of the deterioration of law and order, passed by various District Magistrates. In paragraph 14, the Limited Affidavit insists that the restrictions are temporary, and will be lifted based on an assessment of the situation in “each area.” Finally (for our purposes), in paragraph 16, the Limited Affidavit states that “the need-based restrictions were/are reasonable, had nexus with the purpose (pre-empt inflammation of passions and rumour-mongering).

Now for the purposes of this post, I want to bracket the issue of curfews and S. 144 (including issues around functioning of schools, hospitals, and markets), and focus exclusively on the issue of the communications lock-down. As I had discussed in the previous post, a communications lock-down – that infringes Article 19(1)(a) of the Constitution (at the very least) – can only be justified if the State’s measures meet the threshold of “proportionality”. One of the elements of “proportionality” requires the State to impose the least restrictive measure that is consistent with its legitimate purpose or goal. To take the very specific example of a communications lock-down: given the existence of “white lists” and “black lists” – which allow the State to block or disable mobile numbers in a targeted fashion – is it proportionate to shut off the communications of the entire state, instead of targeting individuals known to be – or even suspected to be – involved in or encouraging terrorist activities?

The Limited Affidavit, however, makes no argument at all on the question of proportionality. It argues that there exists a reasonable nexus between the measure (communications lock-down) and the goal (pre-empt inflammation of passions and rumour-mongering, presumably with a view to maintaining the 19(2) goal of “public order); now while even this connection is open to question (see, for example, recent research on the topic arguing against the belief that communications lock-downs prevent rumour mongering), what is clear is that no argument is offered in the Limited Affidavit for why more targeted measures cannot work (or were even contemplated). Surely it is not the State’s case that every individual in J&K is a potential inflamer of passions and a rumour-mongerer? That argument would be entirely at odds with our entire legal system’s focus on individual responsibility, and our aversion to collective punishment, or attributing collective criminality to entire groups of people.

But if that is not the argument, then what is? The only answer is to be found in the Limited Affidavit’s mention of “zones” or “areas” of potential disturbance, and also that the assessment is being made on the basis of the situation that these “zones” are in. That argument, however, falls into exactly the same problem discussed above: it is no longer about determining that there exists reasonable cause to (preventively) deprive an individual from exercising her Article 19(1)(a) rights, but that within an “area” (and “area” here means an entire state), everyone will be presumptively apprehended to be “misusing Data Services.”

Note, here, that this is not the same as Section 144 prohibitory orders in the physical world, where the State cordons off certain areas and prohibits assemblies there, ostensibly for the purpose of preventing riots. The justification for those prohibitory orders (and even they must meet the standard of proportionality, and cannot be perpetually extended) is that once the crowd is in place, you actually can’t separate the rioters from those caught up in the riot – and so you prevent the crowd from forming in the first place. That argument doesn’t translate into the digital world, especially when you already have a Section 144 order in place preventing assemblies on the ground.

That being the case, what justifies a departure from targeted shut-downs of identified mobile numbers to an assessment of what an “area” is like? I suggest that our Constitution allows for only one situation in which that approach is permitted: a declaration or “Proclamation” of Emergency, where (certain) rights may be suspended en masse, without the need for the proportionality assessment that may require individualised targeting. In other words, our Constitution recognises that there may exist rare and exceptional situations, where the situation is such that the a proportionate restriction of fundamental rights is (temporarily) impossible, and for the period of that impossibility, the State is exempted from adhering to the constitutional standard.

But here’s the crucial point: an Emergency must be declared formally. Not only must citizens be put on notice that their rights are suspended, but the existence of an exceptional situation – because of its very character – must strictly adhere to the legal formalities that are required to bring it into force. There’s been a lot of talk lately about an “undeclared Emergency”, but the point to note is that in legal terms, an “undeclared Emergency” is an absurdity. Without the legal form, it does not exist; and if it does not exist, it cannot be assumed in Court.

Or, to put the point more simply: there are two legal regimes. The normal legal regime, which requires the Court to rigorously apply its constitutional standards to violations of rights; and the Emergency regime, in which (some of) those rights stand suspended. But the two regimes cannot (legally) bleed into one another; where there is no Emergency, the State cannot “implicitly” invoke its logic in Court – and equally, the Court cannot, in its orders, act as if there was an Emergency.

The Limited Affidavit in Anuradha Bhasin’s Case, however argues as if there was an Emergency; but what is more worrying is that the Court’s orders (until now) appear to accept that. The most glaring example of this is the September 16th Order, which I discussed in my last post: the Court’s Delphic proclamation that the State ought to ensure that “national security” must be “balanced” with personal liberties is the logic of Emergency: not only does it impose no obligation upon the State, but in avoiding any mention of proportionality, it allows the State to determine exclusively how to achieve that balance – and thus, effectively, suspends those rights as legal rights.

This is what I would like to call a “judicial Emergency”: there is no proclamation of Emergency, but the Court – on its own initiative – acts as if there exists an Emergency, and its orders reflect judicial standards that are uniquely applicable to the Emergency regime. And this, in my submission, is the most appropriate conceptual framework within which to analyse the Court’s conduct on the Kashmir petitions over the last two months – a framework that is now fortified by the State’s first formal statement to come on the court record.

Of course, if we extend the analysis beyond communications shut-downs – and to habeas corpus – we find something even more troubling: because there the Court is acting not merely as if it was a judicial Emergency, but as if it was a judicial Emergency in 1976. Remember that the 44th Amendment – after Indira Gandhi’s fall – ensured that even during an Emergency, Article 21 – and therefore, the writ of habeas corpus – cannot be suspended. The Supreme Court’s conduct on habeas corpus, therefore, takes us into a world in which not only is there a judicial Emergency, but also, a world in which the 44th Amendment … no longer exists.

That is a somewhat concerning world to live in.