The Constitutionality of the Citizenship (Amendment) Act: A Response

[This is a guest post by Shivam Singhania. The piece was written before the passage of the Bill into an Act, and the constitutional challenge to the Act. References to the “Bill”, therefore, may be understood as references to the Act.]


This piece is in response to the piece on this blog titled “The Citizenship (Amendment) Bill is Unconstitutional”. Respectfully disagreeing with the author, I shall endeavour to address the arguments against its constitutionality, and also chart out a path within the bounds of the settled judicial precedent on Article 14.

The bill changes amends the Citizenship Act on two counts – by inserting a proviso in Section 2(1)(b), and by amending clause (d) of the Third Schedule. The first count, i.e., the proviso, provides that ‘any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan’ will not be treated as an illegal immigrant under the Act, subject to three conditions: (a) he/she entered India on or before December 31, 2014, (b) is exempted by the Central Government under Section 3(2)(b) of the Passport (Entry into India) Act, 1920, (c) is exempted from the application of Foreigners Act, 1946.

(Note: The Passport Act empowers the Central Government to make rules requiring persons entering India to possess passports. It also gives the Central Government power to exempt, conditionally or unconditionally, any person or class of persons from complying with such requirements. The Foreigners Act empowers the Central Government to make orders prohibiting, regulating, restricting entry of non-citizens, i.e., foreigners into India. The Central Government also has the power to exempt any individual or class or description of foreigner from the application of the act. The exemptions for Bangladeshi and Pakistani nationals were issued in 2015, and included Afghanistan nationals in 2016. These exemptions have not been challenged. Further, the same classification exists for the purpose of issuing Long Term Visas (LTV) to nationals of these three countries. The same has also not been challenged.)

The second count, i.e., amendment to the Third Schedule, relaxes the time-criteria for naturalization from at least 11 out of 14 years to at least 5 out of 14 years of residing in India, or being in service of the Government, for ‘any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan’.

Admittedly, the constitutional questions rest on the issue of discrimination and non-adherence to ‘equal protection of law’.

CLASSIFICAITON UNDER ARTICLE 14

The Constitutional position, right from Anwar Ali Sarkar to a catena of subsequent cases, is clear that the equality principle envisages like to be treated alike, and consequently allows unlike to be treated differently. Such differentiation, however, has to stand the test of intelligible differentia, i.e. that the basis or principle guiding the creation of different groups meant to be treated differently by the law should be ascertainable and sound. Further, such differentia should have a rational nexus to the object of the law, meaning that t should directly further the purpose that the law seeks to fulfil. Subsequently, the test of arbitrariness was also added in E.P. Royappa.

The classification in this amendment, as rightly described by the author, is on two counts: first – religion of the target group, i.e., Hindus, Sikhs, Buddhists, Jains, Parsis and Christians; and second – country of origin of these groups, i.e., Pakistan, Bangladesh and Afghanistan.

It will be shown in the course of this essay that the principles that ground the above classifications are intelligible and not under-inclusive and serve the object of the amendment and overall, are not arbitrary.

RELIGION, ARTICLE 14 AND ARTICLE 15

Over and above the generality of equality principle laid out in Article 14, Article 15 provides for prohibition of discrimination on specific grounds, such as race, sex, and also religion. This means that any such basis of classification, even if intelligible, cannot pass muster of Article 14 for reason of the specific prohibition in Article 15.

However, Article 15 applies only to citizens. On the other hand Article 14 applies to ‘any person’. Thus, as settled in Chandrima Das and Indo-China Steam Navigation cases, a non-citizen cannot take the benefit of Article 15. Thus, with respect to non-citizens, a classification which has religious inklings cannot be dismissed at the threshold; it will pass muster if it passes the tests of Article 14 discussed above.

We now address the author’s argument based on the concurring judgement of Justice Malhotra in Navtej Johar v Union of India. The author’s inference from certain portions of Justice Malhotra’s opinion Navtej Johar is misplaced. The quoted paragraph – “Race, caste, sex, and place of birth are aspects over which a person has no control, ergo they are immutable. On the other hand, religion is a fundamental choice of a person. Discrimination based on any of these grounds would undermine an individual’s personal autonomy” – lays out the underlying constitutional intent of Article 15. It does not, and is not meant to address the point of whether such grounds transcend Article 15, and apply as a bar upon classification ipso facto, including for non-citizens under Article 14

The following exposition from the judgment, admittedly, is unequivocal: “Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia”. However, what begs an answer, and none is provided in clear terms by any judicial precedent, is whether certain grounds, beyond those in Article 15 and thus applicable to non-citizens, are barred at the threshold as the bases of any classification; if yes, then what are these grounds and do ‘intrinsic and core trait(s) of an individual’ qualify as such grounds?

Essentially, the submission of the author, relying on Justice Malhotra’s opinion, is that any classification with semblance to religion is impermissible, since like Article 15, which applies only for citizens, Article 14 contains an inherent bar upon classification on certain grounds, one of which is the notion of core trait/choice/personal autonomy (and religion is a part of that). This, however, has little basis in existing equality jurisprudence. The tests are clear and any classification can exist so long as the tests of Article 14 are met. Beyond that, no inherent barriers have been created for classification under Article 14.

In any case, the proposition that classification rests solely on religion should be taken with scepticism. In the CAA, religion is qualified by persecution. Therefore the two should be considered together. Religion persecution has also been recognized in the Refugee Convention as a form of persecution. Therefore, it cannot be considered as a capricious standard of marking the lines, given that the exact target groups are sought to be protected as recognized by International Convention. Further, the classification is not to create new benefits, but is only to accelerate an existing process as a measure of protection for recognizable and internationally accepted target group that, due to their precarious situation, need such protection. It is akin to any law which may be framed for instance to protect LGBT individuals from countries which provide for capital punishment for them. In that case, it will be a constitutional disservice to accept an argument that they cannot be allowed a dignified life in India because the law classifies on the basis of sex/sexual orientation.

THE PRINCIPLES CONUNDRUM AND UNDER-INCLUSIVENESS

A classic fallacy with the arguments on under-inclusiveness, also reflected in the author’s piece, is that its proponents enlarge either the principle determining classification, or the object of the law beyond their actual bounds, to argue that the classification is narrower than it ought to be.

It will be shown that the author’s purported principles determining the classification is deliberately broad, and the actual principle is more qualified. Therefore, when the purpose is defined properly, the classification is not under-inclusive.

The author, in her piece, considers four principles and finds them inadequate. For convenience, they are reproduced below –

  1. “Principle 1: Pakistan and Bangladesh were part of British India. Illegal immigrants from there could still generically be considered of Indian origin. However, with the inclusion of Afghanistan, it is evident that the classification is not based on the principle of divided India and undivided India.
  2. Principle 2: Afghanistan, Pakistan and Bangladesh have a State religion. However, the classification cannot be on the basis of a State religion, as Sri Lanka prescribes Buddhism as the State religion.
  3. Principle 3: Degrees of harm. In Chiranjit Lal Chowdhury it was held that the legislature is free to recognize the degrees of harm and confine the classification to where harm is the clearest. However, if the CAB is based on the degrees of harm then the Rohingyas of Myanmar ought to be included as the 2013 UN report states that the Rohingyas are the most persecuted in the world.
  4. Principle 4: The classification might be limited to singling out persecuted religious minoritiesHowever, on this logic, Sri Lankan Eelam Tamils must also be included, as the Tamil Eelams are persecuted based on religion (Hinduism) and ethnicity.”

The classic problem of “inadequate principle” is at issue here. The above four principles, if applied, result in the law leaving out some group who ought to qualify. However, it is quite possible that the alleged principles are not actually the principles on which the classification is based.

In this context, let us begin by noting that laying down adequate determining principle for classification in a law lies at the doorstep of the Parliament.

It is submitted that here, the determining principle is not solely based on Partition, or harm. It is also not only about state religion or secular states, or about religious minorities. Determining principles cannot be laid in water-tight compartments, and it is not necessary that the entirety of one ground has to make a determining principle (for instance “all minorities”, or “all persecuted”). More than one ground can qualify the other grounds if the determining principle is specific (for instance, not all minorities but religious minorities, or not all persecuted but persecuted for being a religious minority).

While one set of determining principles takes in the Partition (Pakistan and Bangladesh), and the unique situation of Afghanistan vis-a-vis India, another possible set of principles is not Partition-related. India sees its responsibility as a regional leader in its neighbourhood with a thriving democracy and secular credentials to protect certain classes of foreigners under threat in their own countries. Among many forms of persecution, for now, India considers itself sufficiently prepared to be able to imbibe as citizens through a relaxed process of naturalization, those persecuted on the basis of religion. The next question is, who all and from where all?

The principle is members of communities (religion) not being the state religion of the respective nation. Essentially, it is a loose combination of Principle 2 and 4 described by the author. In other words, the broad sphere of ‘religious minority’ is qualified by its application only with respect to nations with state religions and on minorities being non-believers of the state religion. This is clearer with the altered text of bill, as being circulated in the media, by which the phrase “…persons belonging to minority communities, namely, Hindu, Sikh…” has been replaced with “persons belonging to Hindu, Sikh…”. [Editor’s Note: this is now the text of the Act.]

Therefore, it can no more be argued that the genus was ‘minority community’, and that only six of them cannot be protected (i.e., under-inclusion). The principle is shortened from ‘minority community’ to a principle which is qualified by two other components – applicable to states with a state religion, and applicable for religions not being the state religion. In other words, the principle is narrower than presented. Hence non-inclusion of some is not because of under-inclusion, but because they are not in conformity with the principle for classification. (such as Ismailis or Shias, being another sect of Islam and not a separate religion than Islam), or Myanmar, not included for not having a state religion.

Pakistan, Afghanistan and Bangladesh have a state religion, i.e., Islam. The Sri Lankan Constitution gives Buddhism the foremost place and the Myanmarese Constitution only recognizes the special position of Buddhism as the faith practiced by majority. In any case, if it is still considered that Sri Lanka has a state religion, courts may also take cognizance of data, if provided by the Union of India, of the alleged dwindling rate of the minority population in Pakistan, Afghanistan (less than 1% presently) and Bangladesh (from 23% at independence to 9% presently) of the communities sought to be protected vis-à-vis Sri Lanka (28 % in 1953 to 20% presently) to gather the mischief that the amendment seeks to arrest.

SUMMARY

The classification under Article 14 does not have inherent barriers of impermissibility at the threshold level, and nor does it have to conform to Article 15 when invoked with respect to non-citizens. In this case, the only test needs to be satisfied is the intelligible differentia-rational nexus-non-arbitrariness test of Article 14. The principle underlying the classification is not merely minority or religious minority, but of belonging to group other than the state religion of Pakistan, Bangladesh and Afghanistan (i.e. states with a constitutionally prescribed state religion). The classification with respect to states with state religions, for the benefit of persons not following the state religion, bears a rational nexus with the object of the amendment in protecting such persons facing threat of persecution for reason of non-conformity with their state religion and being eligible for relaxed criteria of immigration and naturalisation in India, and in furtherance of India’s responsibility as the leader in its nation with strong democratic values and emphasis on dignity of life to support victims of religious persecution in theocratic states. The classification, having semblance to a category of vulnerability recognized in international convention and supported empirically (possibly) is therefore not arbitrary.

Guest Post: The Kashmir Internet Ban – What’s at Stake

[This is a guest post by Suhrith Parthasarathy.]


A three-judge bench of the Supreme Court has heard oral arguments and reserved its judgment in Anuradha Bhasin v. Union of India and Ghulam Nabi Azad v. Union of India, in which the petitioners have impugned, among other things, the ongoing shutdown of the Internet in the Kashmir Valley. The arguments raised in these petitions touch upon questions critical to the functioning of India’s democracy. This post is an effort at expounding some of the issues at stake in the case.

Facts

Sometime on August 4, on the eve of the Union government’s decision to issue presidential orders divesting the state of Jammu and Kashmir of its autonomy, a complete blockade on information and communication services was placed in the region. Since then, a few of these restrictions have been lifted, but access to the Internet in the Kashmir Valley remains elusive. As the Petitioners have pointed out, while landlines and post-paid mobile phone voice calls are now functioning, only a miniscule proportion of the population in the region have access to these services. Post-paid mobile phone SMSes remain blocked and so too pre-paid mobile phone voice calls and prepaid mobile phone SMSes. Messaging services, as we’re only too aware now, are critical to carrying out various forms of economic transactions. They are, in many ways, an essential service. Even according to the government’s own response, out of a total of nearly 60 lakh mobile phones, only 20 lakh phones are working and even on those phones SMSes remain wholly blocked. What is more, access to the Internet in the Kashmir Valley continues to be prohibited, despite the critical role that the web plays today in various kinds of economic, social and educational activities.

These orders blocking communication services, Ms. Bhasin and Mr. Azad have argued, have had a damaging effect on a number of fundamental rights. In Ms. Bhasin’s case, the newspaper she edits, The Kashmir Times, could not be distributed on 5 August and went entirely unpublished between 6 August and 11 October. Today, owing to the absence of the Internet, and the barriers placed on journalists seeking to do their job, only a pruned version of the newspaper is published. Therefore, in Ms. Bhasin’s argument, the ban on communication services, in particular the restrictions placed on the Internet, have affected both her right to free speech and her newspaper’s right to freedom of the press.

The Leader of the Opposition in the Rajya Sabha, Mr. Azad, on the other hand, who was himself prohibited from visiting the Valley, until the Supreme Court intervened, has underlined various other impacts that the bans have had on people living in Jammu and Kashmir. For example, basic livelihood, he points out, has been deeply affected. Industries such as tourism, handicrafts, manufacture, construction, cultivation, agriculture and information technology have been brought to a state of cessation, with the economy in the region suffering losses running into the thousands of crores. Access to basic healthcare too, he argues, has been impeded, with people in the Valley unable to avail of the government’s Ayushman Bharat scheme. Over and above all this, the ban has meant that people in the Valley have been entirely cut out from the rest of India. Residents outside the state have been unable to speak to their families in Kashmir, leading, Mr. Azad says, to a great deal of mental stress and anxiety.

Issues and legal arguments

It’s simple enough to deduce the issues that arise in the case: (1) Does a denial of access to the Internet violate any fundamental right? And (2) can access to the Internet ever be blocked, and, if so, under what circumstances can such an action be validly enforced?

Access to the Internet

Perhaps the finest exposition of why access to the Internet is a fundamental right is contained in a recent judgment of the Kerala High Court in Faheema Sharin v. State of Kerala. There, the court recognised that access to the Internet is today essential, because it grants people an avenue not only to information but also to a host of other services. Although the web brings with it its own set of challenges there can be little doubt, as the court held, that it enhances individual freedom, in granting to people a liberty of choice, in determining what they want to read, see and hear, in determining what kind of information they wish to access, and, more than anything else, in limiting the government’s ability to control a person’s private self.

As the High Court held, the Internet has become so central today to our lives that it plays an instrumental role in the realisation of a number of constitutional guarantees. The court, in arriving at its conclusions, relied on a United Nations General Assembly Resolution which noted how access to information on the Internet “facilitates vast opportunities for affordable and inclusive education globally, thereby being an important tool to facilitate the promotion of the right to education.” Given the importance of education to the right to life and personal liberty under Article 21 and given how important the Internet was in fulfilling these promises, access to the web, the court held, ought to be considered in and of itself as a fundamental, inalienable right.

Apart from this the court also recognised, that the Internet constitutes not only a medium for speech but also promotes a gateway to information. A right to access the Internet, therefore, in the court’s opinion, has to be seen as an integral component of a citizen’s right to freedom of speech protected under Article 19(1)(a) and can only be restricted on the grounds enumerated in Article 19(2).

The Kerala High Court’s view that access to the Internet is a fundamental right is not only in keeping with global trend but is also consistent with India’s entrenched free speech jurisprudence. After all, as early as in 1961, the Supreme Court had in Sakal Papers v. Union of India, recognised the instrumental value of speech: that access to the news and the media’s role in facilitating the distribution of information and knowledge played a direct role in the promotion of democracy. That the Internet plays a significant part in ensuring the protection of the right to health, personal liberty and livelihood therefore ought to mean that accessing the web deserves to be considered as fundamental, as flowing out of the guarantees contained in Articles 14, 19 and 21, which, today, after the 9-judge bench’s judgment in Justice (Retd). KS Puttaswamy v. Union of India (Puttaswamy I) (2017) 10 SCC 1, together form a trident against arbitrariness.

Therefore, any blocking of the Internet would ex facie violate fundamental rights. As a result, to enforce a restriction on the Internet an action of the state must be predicated on compelling reasons and must necessarily be made in a constitutionally sustainable manner.

When can restrictions be made

It is today settled law, as is clear from a reading of the judgments of the Supreme Court in Puttaswamy I and Puttaswamy II (the Aadhaar judgment), that fundamental rights can only be limited by state actions that conform to the doctrine of proportionality. The test to determine what state actions are proportionate was laid down by a 5-judge bench of the Supreme Court in Modern Dental College v. State of MP. The court there relied on judgments of the Supreme Court of Israel and the Canadian Supreme Court to hold that the doctrine was inherent in Article 19 itself.

A limitation of a constitutional right will be constitutionally permissible if (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation (‘proportionality stricto sensu’ or ‘balancing’) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.

In Puttaswamy II, the Supreme Court reiterated this test when it held as follows:

The proportionality test which is stated in the aforesaid judgment, accepting Justice Barak’s conceptualisation, essentially takes the version which is used by the German Federal Constitutional Court and is also accepted by most theorists of proportionality. According to this test, a measure restricting a right must, first, serve a legitimate goal (legitimate goal stage); it must, secondly, be a suitable means of furthering this goal (suitability or rational connection stage); thirdly, there must not be any less restrictive but equally effective alternative (necessity stage); and fourthly, the measure must not have a disproportionate impact on the right-holder (balancing stage).

 

The question therefore that the Supreme Court must now answer in Anuradha Bhasin and Ghulam Nabi Azad is whether the state actions imposing the communications ban in the Kashmir Valley meets this four-prong test or not. And given that there has been an ex facie violation of a fundamental right, the burden to establish that these conditions are, in fact, met in this case lies on the state. Here, the restrictions placed quite clearly impinge on the doctrine of proportionality for the following reasons:

  • The orders imposing the Internet shutdown have no force of law. Presently, orders shutting down the Internet are made under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (“Telecom Rules”). These Telecom Rules were framed through the power prescribed on the Union executive by Section 7 of the Indian Telegraph Act, 1885. The Telecom Rules require the Executive, among other things, to provide a reasoned order when it directs the withdrawal of the Internet. Here, however, the orders imposing the shutdown were not made public. They were only released to the court during the course of the hearings, and, that too, with tremendous reluctance. A perusal of those orders that were released, however, the petitioners have argued showcase a complete non-application of mind. To take just one example, an order containing the subject: “Shut down of broadband services” was issued to extend an order whose subject read “Shut down of Land Line services.” What is more, while it is the Home Secretary (Govt. of India) or the Home Secretary of the state government concerned who is the competent authority to issue orders of suspension of the Internet under the Telecom Rules, in this case, the petitioner contend, the orders were issued by the Inspector General of Police. But, more than anything else, the orders themselves were bald and devoid of any reasons despite the Telecom Rules’ express mandate that orders suspending the Internet be issued for explicitly spelled out reasons.
  • The orders issued suspending the Internet are not in furtherance of any legitimate state aim. The government’s case is that it apprehends that the Internet will be misused by “anti-national” elements and will lead to a deterioration of “law and order.” However, neither phrase invoked confirms to the requirements of Article 19(2) of the Constitution. The Supreme Court has repeatedly held (see: Superintendent Central Prison, Fatehgarh v. Dr. Ram Manohar Lohia and In Re Ram Lila Maidan Incident) that the term “law and order” is not subsumed within “public order” which is the ground that Article 19(2) stipulates. In the latter case, the court held that: “the distinction between `public order’ and `law and order’ is a fine one, but nevertheless clear. A restriction imposed with `law and order’ in mind would be least intruding into the guaranteed freedom while `public order’ may qualify for a greater degree of restriction since public order is a matter of even greater social concern. Out of all expressions used in this regard, as discussed in the earlier part of this judgment, `security of the state’ is the paramount and the State can impose restrictions upon the freedom, which may comparatively be more stringent than those imposed in relation to maintenance of `public order’ and `law and order’. However stringent may these restrictions be, they must stand the test of `reasonability’. The State would have to satisfy the Court that the imposition of such restrictions is not only in the interest of the security of the State but is also within the framework of Articles 19(2) and 19(3) of the Constitution.” In this case, the orders imposing the restrictions on the Internet the orders reference “law and order” without showing us how preservation of “public order” legitimately required the restrictions as imposed. What is more, as the petitioners have contended, the term “anti-national” is simply undefinable and does not fall within any of the carefully delineated grounds stipulated in Article 19(2) of the Constitution.
  • The orders imposing the shutdown are not rationally connected to the fulfilment of the supposed purpose, that is the prevention of violence. While the state has repeatedly claimed that the Internet will be misused by miscreants and anti-national elements it has provided no actual evidence of such misuse being a real and genuine threat. Indeed, as the petitioners have shown, studies indicate the opposite, that a shutdown of the Internet leads to anxiety and unease and augment the risk of protests and demonstrations turning violent. Therefore, the state has simply failed to demonstrate the existence of a cogent and sensible nexus between the restrictions imposed and the purported aim behind the orders.
  • Finally, the orders also do not conform to the test of necessity, that there was a compelling need for these actions and that the purported objective could not have been achieved through less restrictive and less invasive means. When even according to the state’s own arguments it is only a minuscule minority that are likely to commit violence, and when a whopping majority of the populace represent no threat to public order it is difficult to conceive how a complete shutdown of the Internet can constitute a necessary and proper action. Indeed, as the petitioners have shown, the state has often, in the past, isolated persons prone to terrorising from others, based on their registered mobile phone numbers. What is more, the state could quite easily have also resorted to blocking certain websites alone if the intention was to prevent incitement of violence. That a wholesale blockade of the Internet has been in force for more than four months evinces the fact that the State hasn’t so much as made an effort at ensuring that it adopts the least restrictive means possible to ensure that violence isn’t perpetrated in the region.

Ultimately, therefore, the actions of the state in enforcing a host of communication barriers in the Kashmir Valley, in particular its decision to entirely restrict access to the Internet, constitute a collective punishment on the people of the region and violate, among other things, the fundamental rights guaranteed under Articles 19(1)(a) and 21 of the Constitution.

On the role of courts: and why the supreme court is playing the waiting game

On the Supreme Court’s last working day of 2019, it agreed to hear the constitutional challenge to the Citizenship (Amendment) Act 2019 (“CAA”). With this, the court takes into its winter vacation the challenges to the CAA, the amendment of Article 370 and the internet shutdowns in Kashmir. Outside the cloistered halls of the court, the public debate over the legality and desirability of these measures has reached fever pitch. With both the legal and political processes of contestation in full swing, it is an appropriate time to examine how divorced the two truly are.

Our trust in courts as institutions of justice flows from a few key ideas: that courts are isolated from short term political pressures, they decide on the basis of settled legal principles irrespective of how politically sensitive a case is, and they are independent from the elected government of the day and thus serve as a check on government power. This piece critically examines these assumptions about courts. I argue that while courts do decide cases in accordance with legal principles, the actual outcomes of crucial constitutional cases balance the requirements of the law, deference to the government, and deference to public sentiment. Recognising that alongside normative legal principles, public sentiment and the government have a crucial role to play in constitutional adjudication re-emphasises the need for active political contestation and debate over these issues.

Isolation, independence and matters of principle

Courts are understood as being isolated from short term political pressures. Unlike elected legislators, who are accountable to their constituents and respond to their immediate needs, unelected judges with fixed tenures and salaries can deliberate in a ‘neutral’ manner and render decisions that may be politically unpopular but necessary for the long term preservation of human rights and democracy. Judges are not bound by party ideology or the need to garner the popular vote, so they can arrive at substantively ‘better’ decisions. For example, after a terrorist attack, public sentiment may overwhelmingly favour the torture and public execution of a captured terrorist. The government, acting on the demands of the electorate, may decide to torture and execute the terrorist (after all, good government responds to what the people want). The courts however, isolated from public sentiment and understanding the long-term benefits of upholding the rule of law and human rights, can ensure the captured terrorist receives a fair trial.

A second assumption underpinning the public trust in courts is that courts rely on precedent (stare decisis) and settled legal principles to decide cases. Therefore, once courts construe the phrase ‘equality’ or ‘liberty’ as having an expansive meaning, the same expansive interpretation will subsequently be applied irrespective of how politically significant or insignificant the facts of a case. This is often why progressive judgements are celebrated, because we presume that the reasoning of these judgements will bind future benches of the court and lower courts. The last, and perhaps most significant, assumption about courts is that they stand independent from the elected government. Coupled with their isolation from short-term political pressures and their commitment to decide cases on legal principles, this leads to the overarching argument that courts stand as a check against the abuse of government power.

A chequered track record

A close examination of the track record of courts during periods of regularised and flagrant human rights violations casts doubt on the argument that courts are effective checks on majoritarian government power. In India, the most famous example of the court’s failure to resist the use of government power is ADM Jabalpur v S S Shukla. The case, heard at the height of the emergency imposed by former Prime Minister Indira Gandhi after her election was challenged in 1975, centred around whether individuals detained by the government (often political opponents of the Prime Minister) had a right to approach the courts for relief during the emergency. Despite several High Courts holding that detained persons had a right to approach the court even during an emergency, in ADM Jabalpur the Supreme Court held that no such right existed and left the detentions to the sole supervision of the government. The Indian Supreme Court is not alone in turning a blind eye to the exercise of government power against its citizens during times of national or political crisis. After the attack on Pearl Harbour, the U.S. Supreme Court upheld the internment of all persons of Japanese ancestry in Korematsu v United States – citing the overriding needs of national security and avoidance of espionage. In Liversidge v Anderson the House of Lords held that the Home Secretary did not have to objectively justify his detention order with reasons and the such matters were not justiciable in courts. These cases have since been overruled or denounced as ‘black marks’ on an otherwise unblemished record of judicial history, but they serve as powerful reminders that when governments exercised their power against citizens in the most extreme ways, courts have been found to be inadequate protectors.

Sabarimala – the Supreme Court’s problem child

A prime example of how far the Indian Supreme Court’s behaviour can stray from the core assumptions we associate with courts acting as politically insulated institutions dispensing justice according to legal principles is the court’s treatment of the Sabarimala dispute. To recap: in 2018 a five-judge bench of the Supreme Court struck down the prohibition on menstruating women entering the Sabarimala temple as violating the constitutional guarantees of equality and non-discrimination. The judgement led to a public backlash in Kerala (the state where the Sabarimala temple is situated). Those opposing the judgement took the law into their own hands and refused to permit the entry of women into the temple, often attacking women who tried to enter. A review petition was filed against the 2018 judgement, the significant irregularities of which have already been addressed on this blog (here) and do not need to be rehashed. It is sufficient to note that one judge (Khanwilkar J) refused to stand by the judgement he had signed less than a year ago in 2018 and in November 2019 the court decided that the 2018 judgement needed to be ‘reconsidered’ by a larger bench. To understand what happened next, it is important to note that by referring the dispute to a larger bench, the court did not stay the 2018 judgement but merely kept the review petition pending. The pendency of a review petition does not deprive a judgement from having the force of law. This means that at the time of writing this post, the 2018 judgement remains good law and a woman should be able to enter Sabarimala. When the Supreme Court was asked to direct the Kerala Government to uphold and enforce the judgement, the Chief Justice of India acknowledged that there was no stay on the 2018 judgement, but refused to direct the State Government to enforce the judgement – noting the matter was “very emotive” and the court wanted to avoid violence.

The treatment of Sabarimala is a testament to how the Indian Supreme Court consider both legal principles and public sentiment in deciding constitutional cases. The 2018 judgement was based precisely on the legal principles we associate with constitutional courts. However, unlike the court’s decisions decriminalising consensual gay sex or adultery, where the court’s decision faced widespread and organised public resistance, the court did a double take, refusing to enforce its judgement and stating that the judgement itself needed to be ‘reconsidered’. The ‘settled’ legal principles of equality laid down in 2018 (which we expect to bind future courts) succumbed to the changed political landscape of 2019. Changing public sentiment leading to the court ‘flip-flopping’ on outcomes is not new, and not always detrimental to the rights of citizens. For example, in 2013 the Indian Supreme Court refused to decriminalise consensual gay sex but five years later the court did decriminalise it. It is perfectly possible for future benches to disagree with past ones; however, the incremental nature of such change is essential to maintain the public trust that courts are insulated from the politics of the day. The casting in doubt of Sabarimala within a year, in the face of abject and consistent non-compliance with the judgement by the government and citizens, points to just how thin the court’s veneer of being insulated from public sentiment and deciding cases purely on legal principles is.

Plenty has been written on why the CAA is unconstitutional and should be struck down for violating Article 14 and its resultant jurisprudence (including here on this blog). However, the very idea that the court will apply the legal principles it has previously laid down is caveated by the court’s regular deviation from settled principles in the face of troubling ground realities or persistent public sentiment to the contrary.

Judicial independence 

The last assumption is that courts stand independent of the government and form the ultimate protectors of individual rights against state action. Historically, we have seen that this has not always been the case. As a matter of constitutional design, courts control neither the ‘sword nor the purse’. In other words, courts rely on the government to implement and abide by their decisions. The extent to which the government does so is a function of how much public legitimacy and authority the court wields at any given time. In a handful of jurisdictions, court have over centuries entrenched themselves to a point where non-compliance with their judgements is unthinkable and a government refusing to comply with a court judgement would risk being voted out of power by an electorate that deeply values the rule of law. For example, when the British Prime Minister’s advice to the Queen to suspend parliament was found to be unconstitutional by the U.K. Supreme Court, the question was not whether the Prime Minister would comply with the decision, but rather whether he would apologise to the Queen and British public.

In most jurisdictions however, where courts have not had the time or opportunity (or have squandered both) to create a deep sense of institutional credibility and win the public trust, courts are far more vulnerable to government interference.  If a court were to repeatedly strike down government action, the government can register its discontent with the court in several ways. The most common (and visible) tactic is to delay/interfere with the process of judicial appointments. Right from Indira Gandhi’s appointment of A N Ray as Chief Justice (superseding the three senior most judges of the Supreme Court who had ruled against her government) to the current government’s delays in confirming judges, Indian courts have regularly been susceptible to government pressure over judicial appointments. The government may also refuse to provide funding and infrastructure for courts. At the extreme, the government can simply refuse to comply with or implement the judgements of the court. The Indian Home Minister’s recent suggestion that the non-implementation of Supreme Court judgements was an acceptable state of affairs runs dangerously close to an outright refusal to acknowledge the authority of the court. In such situations, courts must not only apply the law, but also balance the needs of the law with deference to the government to ensure the court’s continued survival as an institution.

Indian jurisprudence is replete with such deference. In 1975 when the Allahabad High Court found the then Prime Minister (Indira Gandhi) guilty of corrupt practices and invalidated her electoral victory, the government passed a constitutional amendment designed specifically to nullify the invalidation. In the Supreme Court, the constitutional amendments were struck down, but the Prime Minister’s election victory was upheld, allowing Indira Gandhi to remain in power. In Maneka Gandhi v the Union the petitioner’s passport was impounded, and no reasons provided. She approached the court contending that her right to a fair trial and to put forth her defence had been taken away. In a sweeping judgement, the court significantly expanded the scope and rigour of scrutiny, holding that procedure by which liberties are infringed must be ‘fair, reasonable and just’. However, rather than invalidate the order impounding of the passport or the provisions of the Passport Act, the court took on record the Attorney General’s assurance that the government would ‘consider’ the court’s observations and left the matter to the government. Ironically, the last paragraph of Maneka Gandhi (widely touted as a high watermark of Indian human rights jurisprudence) reads:

“The Attorney General assured us that all the grounds urged before us by the petitioner and the grounds that may be urged before the authority will be properly considered by the authority and appropriate orders passed. In the result, I hold that the petitioner is not entitled to any of the fundamental rights enumerated-in Article 19 of the Constitution and that the Passport Act complies with the requirements of Art. 21 of the Constitution and is in accordance with the procedure established by law.”

The Chief Justice’s recent refusal to pass directions for the entry of women at Sabarimala stems in part from the fact that both the Kerala Government and Central Government have indicated their unwillingness to carry out such directions. An order directing the authorities to enforce the judgement would likely be ignored by both governments, triggering a constitutional crisis.

The present day

Having understood that while not entirely independent, the court is undoubtedly uniquely situated, let us examine the court’s recent decisions where the stakes for the government were particularly high. In its Aadhar judgement, the court upheld the government’s collection and use of bio-metric data as part of the Aadhar scheme. The court in 2018 also held the Aadhar Act was correctly certified by the Speaker as a money bill (meaning it was not subject to scrutiny by the Rajya Sabha). But a year later in Rodger Matthew v South Indian Bank the court held that the Aadhar judgement’s reasoning on the issue of money bill was “arguably liberal [in favour of the government]” and “not convincingly reasoned”. The question of how future courts should construe money bills has been referred to a larger bench but peel away the Supreme Court’s strategic antics and the decision in Rodger Matthews is a damming admission that the Aadhar Act was unconstitutional but still upheld by the court.

The Supreme Court’s treatment of the petitions challenging the internet shutdown and detentions in Kashmir and the amendment of Article 370 has been the clearest example of the court’s deference to the government of the day. On 16 September 2019 the court passed an order (analysed here) which didn’t require the government to disclose the legal source of the internet shutdown and left it to the unrestricted discretion of the government to make “endeavours” to restore “normal life”. On 16 December 2019 the internet shutdown in Kashmir entered its 134th day, the longest ever recorded in a democracy. At the time of writing this post, the court is yet to adjudicate on the constitutionality of the internet shut down and the hearings challenging the actual amendment of Article 370 have just taken off.

Recall that vulnerable courts are often called upon to balance the meaning of the law with ensuring a working relationship with the government. After 70 years of democratic constitutionalism, our courts are certainly robust enough to avoid obliteration at the hands of the government. They regularly strike down state and central government actions found to be violative of the Constitution. However, with cases such as Aadhar, Sabarimala, the CAA and Kashmir, where the political stakes for the government are exceptionally high, cracks begin to emerge in the court’s multi-faceted balancing act between the law, public sentiment and deference to the government. In ADM Jabalpur the court compromised its fidelity to the integrity of the law and allowed the government a free reign in return for its continued survival (the supersession of Justice Khanna and the regular transfer of ‘non-complaint’ High Court judges by the government is telling in this regard). Today’s court is neither willing to expressly compromise its intellectual fidelity to the law nor its necessary relationship with the government – and so it sits on the fence, hoping that nobody will notice. The court does not trust its institutional legitimacy is strong enough to rule against the government on politically sensitive matters and continue to maintain a working relationship with the government (the government is equally to blame for this lack of trust). While it also refuses to expressly abandon its fidelity to the integrity of the law (as it did in ADM Jabalpur) and provide express judicial acquiescence of the government’s actions, its refusal to act is fast achieving a similar result indirectly.

Conclusion

Recognising that the central assumptions held about courts as counter-majoritarian institutions are flawed is the first step towards understanding the actions of the Supreme Court recently. The court undoubtedly analyses and applies legal principles on a day to day basis. However, in deciding constitutional cases with high political stakes, courts also consider the impact the decision will have on the government (Aadhaar and Kashmir), the prevailing public sentiment of the day, and the impact on the ground (Sabarimala). Absent any enforcement powers, the court’s is as bold as it thinks the government and people will allow it to be.

In deciding the host of thorny issues on its plate in 2020, the Supreme Court is likely to consider the prevailing public sentiment, strive to maintain a working relationship with the government, and lay down some important law. While the court’s legal questions will be answered by a handful of lawyers in Courtroom 1, the question of how strictly the court will apply the law to fulfil its constitutional role as a meaningful check on government power will be answered by every other Indian. This calls for renewed scrutiny of the court’s actions that denude the legitimacy of its decision making process (some examples include the use of sealed covers, the (mis)use of the master of the roster role, a flawed appointment process and the regular overriding of High Courts). Such actions not only violate core legal norms, but also reduce the public trust in the institution, reducing its institutional authority to act as a check on government power. Understanding the limitations of courts also highlights the need to strengthen the accountability and contestation within other wings of government beginning with our electoral and parliamentary processes.

Guest Post: The Supreme Court’s Fact-Finding Priorities

[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 a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


This post, by Abhinav Sekhri and Mansi Binjrajka, first appeared on the Proof of Guilt Blog, and has been cross-posted with permission.


Chief Justice of India, Hon’ble Mr. Justice Sharad Aravind Bobde, just yesterday, took suo moto cognizance of the working of the criminal justice system in relation to sexual offences. Highlighting how the amendments brought to criminal law after the Nirbhaya incident have not achieved the objective of speedy investigation and trial, the order passed by the Bench observes that:

The delay in such matters has, in recent times, created agitation, anxiety and unrest in the minds of the people.” (emphasis supplied)

And therefore,

We are, therefore, of the view that it is necessary to take stock of the implementation of provisions of criminal law, including the said amendments, relating to rape cases and other sexual offences. It is necessary to call for information with regard to status of affairs at ground level from various dutyholders like investigation agencies, prosecution, medico-forensic agencies, rehabilitation, legal aid agencies and also Courts to get a holistic view to make criminal justice system responsive in the cases of this nature.” (emphasis supplied)

Thereafter, the Court “considered it appropriate” to seek not one, but TWELVE separate status reports on a variety of issues pertaining to all police stations in the country. I request the readers to peruse the order (hyperlinked above) and form their own opinion on the Apex Court’s priorities. Please note the breadth of information sought for by the Supreme Court when only a few days ago, the same Bench had declared that they do not have time to waste on fact finding in relation to police brutality against student protestors in Delhi and elsewhere. Please also note that a Senior Advocate was promptly appointed as Amicus Curiae and, in addition, the Secretary General of the Supreme Court, as well as the Solicitor General, were requested to extend their co-operation.

To have a further idea on the kind of cases where the Supreme Court thinks it does have time for fact-finding, please see the table below. It contains details of cases that were registered as suo moto writs (‘SMW’) in the last 5 years at the direction of the Court itself.

S/N CASE NO. PARTICULARS
1. SMW (C) 1 / 2019 In Re Matter of Great Public Importance Touching Upon the Independence of the Judiciary – mentioned by Sh. Tushar Mehta
2. SMW (C) 2 / 2019 In Re Felling of Trees in Aarey Forest (Maharashtra)
3. SMW (C) 3 / 2019 In Re Alarming Rise in Air Pollution in Delhi and Adjoining Areas
4. SMW (C) 4 / 2019 In Re Severe Problem Being Faced by the Citizens in Delhi and Adjoining Areas Due to Acute Air Pollution
5. SMW (Crl.) 1 / 2019 In Re Alarming Rise in the Number of Reported Child Rape Incidents

Amicus curiae – Mr. V Giri, Sr. Adv.

6. SMW (Crl.) 2 / 2019 In Re Missing of an LLM Student at Swami Shukdevanand Law College (SS Law College) from Shahjahanpur UP
7. SMW (Crl.) 3 / 2019 Ghanendra Pal Singh

Letter addressed to Secretary General of Supreme Court.

8. SMW (C) 1 / 2018 RK Sareen v. RK Kulshreshtha

SMW against order of Disciplinary Authority in relation to a bribe – due to prolonged period of litigation

9. SMW (C) 2 / 2018 In Re Filling Up of Vacancies
10. SMW (Crl.) 1 / 2018 In Re Kathua Jammu and Kashmir
11. SMC (Crl.) 2/2018 In Re The Indian Express and The Tribune Dated 2nd May 2018 Regarding Kasauli Incident

(regarding unauthorised hotels and guest houses in Kasauli)

Orders seek status reports from Govt. on names of officers posted at the time of illegal constructions, guidelines to prevent such constructions, specific steps on how the problem is to be tackled, steps taken for demolition.

Amicus curiae was also appointed.

12. SMW (C) 1 / 2017 In Re Central Selection Mechanism for Subordinate Judiciary
13. SMW (Crl.) 1 / 2017 In Re To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials

Amicus curiae – Sidharth Luthra, Sr. Adv., Basant R., K Parmeshwar

Reports sought from all States and UTs on their suggestions

14. SMW (C) 1 / 2015 In Re Outrage as Parents End Life After Child’s Dengue Death

Amicus curiae – Colin Gonsalves, Sr. Adv.

15. SMW (C) 2 / 2015 In Re Muslim Women’s Quest for Equality
16. SMW (Crl.) 3 / 2015 In Re Prajwala Letter Dated 18.02.2015 Videos of Sexual Violence and Recommendations

(regarding blocking child pornography, gang rape imagery, videos and sites on content hosting sites)

17. SMW (Crl.) 1 / 2014 In Re Harassment and Physical Abuse of Ms. ‘M’ v. State of Chattisgarh
18. WP (C) 406 / 2013 Re Inhuman Conditions in 1382 Prisons

Order dt. 08.05.2018 – directs all HCs to take up matters relating to prison conditions as suo moto writs.

19. WP (C) 95 / 2012 Devika Biswas v. Union of India

(regarding sterilisation procedures for women)

Detailed directions passed in an Art. 32 writ.

Order dt. 14.09.2016 requests certain HCs to take up the matter as suo moto writs – states which had given inadequate responses to SC.

Apart from seeking information directly from Union / State Government(s) by way of status reports, it is very common for the Supreme Court to appoint Special Investigation Teams (‘SITs’) for fact finding purposes. In Ram Jethmalani v. Union of India, the Petitioner’s prayer for appointment of an SIT to investigate unaccounted monies allegedly stashed abroad was allowed and the Court observed:

“45. The resources of this court are scarce, and it is over-burdened with the task of rendering justice in well over a lakh of cases every year. Nevertheless, this Court is bound to uphold the Constitution, and its own burdens, excessive as they already are, cannot become an excuse for it to not perform that task. In a country where most of its people are uneducated and illiterate, suffering from hunger and squalor, the retraction of the monitoring of these matters by this Court would be unconscionable.”

47. The merits of vigour of investigations, and attempts at law enforcement, cannot be measured merely on the scale of what we accomplish with respect to what has happened in the past. It would necessarily also have to be appreciated from the benefits that are likely to accrue to the country in preventing such activities in the future. Our people may be poor, and may be suffering from all manner of deprivation. However, the same poor and suffering masses are rich, morally and from a humanistic point of view. Their forbearance of the many foibles and failures of those who wield power, no less in their name and behalf than of the rich and the empowered, is itselfindicative of their great qualities, of humanity, trust and tolerance. That greatness can only be matched by exercise of every sinew, and every resource, in the broad goal of our constitutional project of bringing to their lives dignity. The efforts that this Court makes in this regard, and will make in this respect and these matters, can only be conceived as a small and minor, though nevertheless necessary, part. Ultimately the protection of the Constitution and striving to promote its vision and values is an elemental mode of service to our people

48. We note that in many instances, in the past, when issues referred to the Court have been very complex in nature, and yet required the intervention of the Court, Special Investigation Teams have been ordered and constituted in order to enable the Court, and the Union of India and/or other organs of the State, to fulfill their constitutional obligations. The following instances may be noted: Vineet Narain v Union of India, NHRC v State of Gujarat, Sanjiv Kumar v State of Haryana, and Centre for PIL v Union of India.”

It is possible to create a similar table as the one above for situations where the Supreme Court has actively sought information to be placed before it. It is also possible to list out innumerable instances where the Supreme Court has exercised its jurisdiction even where the petitioner did not first move the High Court. But the point of this post is not to create an exhaustive glossary of such instances, but to highlight that the Court’s observations on their inability to undertake fact-finding exercises borders on disingenuous.

Whether or not one agrees with these policy choices of the judiciary is besides the point, for today we are at a place where fact-finding by Courts is practically a norm, and as the Supreme Court’s orders confirm, it is still true today. Unfortunately, despite the normalising of this practice, there has been no formalising of the process that governs how the Supreme Court chooses to exercise its discretion, rendering it subject to the vagaries of an individual judge’s idea of justice.

There was a time when the Supreme Court was lauded for its activism when the other branches of government failed. The historic move by sitting Justices to physically proceed to inspect prison conditions in Delhi, or to go and inspect the working conditions of bonded labourers, were the foundations upon which a people based their faith in the Court and relied on it to do justice rather than merely apply the law. At a time where people’s faith in the judiciary is at a trough, and there has been vocal support for executive killings of suspects owing to frustration with judicial delays, the judges would do well to bear in mind that all their choices convey a message. Judicial intervention cannot come to resemble the executive arbitrariness it was designed to protect against.

Guest Post: The Supreme Court’s IBC Judgment: A Rejoinder

[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 a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


[This post, by Dhruva Gandhi and Sahil Raveen, responds to Arti Gupta’s Reply, on the issue of the Supreme Court’s IBC judgment.]


In her response to our blog post, Arti makes a valid point that when considered together, the timelines under the Insolvency and Bankruptcy Code, 2016 (“the Code”) and the Competition Act, 2002 (“CA”) could lead to a situation where the time stipulated in Section 12 of the Code is construed as being ‘irrational’. In fact, the conundrum that she mentions was spoken of even at the time the Insolvency and Bankruptcy Code (Second Amendment) Act, 2018 was passed. (See here). [This conundrum though was not before the court in Essar. It does not feature in the discussion either].

However, the discourse around the time of the Amendment also suggested that this was an intentional and calculated move made by the Union Parliament. (See also: The Notes on Clauses to the Insolvency and Bankruptcy Code (Second Amendment) Bill, 2018) It seems that Parliament consciously wanted the Resolution Professional acting under the Code and the Competition Commission of India to complete all the necessary formalities within a time frame of 330 days. Parliament’s decision can be said to have been motivated one of two considerations. One, could have been that most of the combinations under Sections 5 and 6 of the CA had till then not needed to enter Phase II at all. They had been either resolved or approved within thirty days of notification. Two, in light of the urgent need to revive stressed assets, Parliament wanted the Competition Commission to clear combinations emerging out of CIRPs on a ‘fast-track’ basis. (See here) If the 210 days provided to the Competition Commission under the CA were also excluded under the IBC, CIRP would become a two-year long cumbersome process. One can only wonder if the Code would have been less of a success then as compared to what it is now.

Further, Arti’s argument too does not make out a case for the need to invoke a constitutional doctrine. As mentioned by us previously as well, a potential economic hardship arising out of a one-off scenario ought not by itself to make the law manifestly arbitrary. If necessary, a combined reading of Section 31 of the CA and Section 12 of the Code could have been undertaken to read the timeline as being ‘non-mandatory’. Tools of statutory interpretation would have sufficed for the exercise. There was no need to resort to a constitutional doctrine. The use of the doctrine of ‘manifest arbitrariness’ was even less called for because this was not a situation where no rationale could be gleaned from the statute.

On the other hand, this intersection of the CA and the Code may only add to the critique that Nariman J. brushed aside in Sharaya Bano. The Legislature has made a conscious policy decision. To hold it unconstitutional because the interaction of two statutes leads to a possible hardship (and in this case, one that may well have been foreseen by Parliament) does entail substituting the legislative wisdom with a judicial one. Our point remains that there is a need to maintain a circumspect attitude when it comes to invoking ‘manifest arbitrariness’.

The Supreme Court, Convenient Emotions, and the Heckler’s Veto

[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 a former 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.]


Last month, I had written that the Supreme Court’s “review” order in the Sabarimala Case was a strange one. The Court passed an order in flagrant disregard of the parametres of review jurisdiction (errors apparent on the face of the record, or an equivalent injustice), and referred some “questions” to a future seven-judge bench on the basis that they “may” arise in some other cases involving civil rights and religion, presently pending before the Court. I ended by noting that the order neither referred the correctness of the Sabarimala judgment itself, and nor did it stay the judgment. In law, therefore, the judgment continued to hold the field undisturbed.

In the aftermath of this “review” order, certain women attempted to pray at the Sabarimala shrine, but were advised by the police to turn back from the base of the hill, as no protection would be provided to them. This came on the heels of an opinion by the Advocate-General of Kerala, who cited the “review” order to argue that there was no obligation upon the State to enforce the judgment. In response, the women in question filed a petition before the Supreme Court for enforcement of its own judgment.

Now, the law on this should be clear. There exists a judgment of the Supreme Court. That judgment has not been stayed. The “review” order found no error in the judgment, and indeed, did not even refer the correctness of the judgment to a larger bench. There can be little doubt, then, that the judgment holds the field, and must be enforced by all parties.

An account of yesterday’s hearing before the Chief Justice’s bench reveals, however, that – not for the first time – the basic law we thought we learnt in the first year of Law School was a fiction. The Chief Justice refused to pass any order on the petition, and provided the following reasons for (not) doing so: first, that “this is an age old practice going on for thousands of years. Balance of conveniences requires that order should not be passed in your favour now. The matter is under reference and if it is ultimately decided in your favour, we will protect you“; secondly, that “it’s an emotive issue. Please be patient. We are not saying don’t allow her to go in, but we are not looking to pass any order right now”; and thirdly, “we know that the law is in your favour … however we’re using our discretion and will not be passing any order.”

Let us take each of these three justifications in turn. The first is utterly bewildering, as the Chief Justice appears to have conflated the beginning of the legal process (application for injunction) with its end (application for enforcement). The question of “balance of convenience” arises when a suit has been filed, and the plaintiff asks for interim relief pending a final decision. At that point, the Court asks which way the “balance of convenience” would lie – and on that basis, passes an order that holds the field until it finally decides the case. “Balance of convenience”, however, has nothing – nothing – to do with a case when it has already been decided after a detailed hearing, and the petitioner is only asking for its enforcement! At that point, the question of “convenience” doesn’t even arise, as the rights of the parties have already been settled according to law.

Of course, the Court’s reasoning on “balance of convenience” is equally troubling – not only does it appear to have arrived at this “balance” without a proper hearing on the subject, but also seems to have given no weight to the contrary rights at issue (apart from saying “be patient.”) The situation is starkly reminiscent of an incident recounted by Anupama Rao, in her book, Caste Question. In a 1927 case involving access to a village water-tank (which was placed off limits to Dalits), an injunction was granted to the upper castes on the basis that “if the injunction had not been granted and the suit decided in favour of the ‘touchables’ they will be put to considerable expense and inconvenience for ‘purifying’ the tank; while in the existing circumstances, if the untouchables win the suit the only effect will be to prolong by a year or so the oppression that has lasted centuries.” Readers will notice that even this atrocious order passed by a colonial judge seems to have more reasoning than the oral observations of the Bench in yesterday’s proceeding – not to mention that this was actually a case for an injunction where “balance of convenience” actually had some application, instead of a case for an enforcement. It is an open question whether we have progressed from 1927 – or indeed, whether we have regressed.

And lastly, what is even more problematic about this observation is that the question of whether the practice of excluding women from the Sabarimala temple did have the sanction of antiquity is itself a contested question; there was evidence both for and against the provenance of the practice, and the original judgment(s) in Sabarimala acknowledge this divergence of views. For the Chief Justice, therefore, to blithely state that the practice has been going on for “thousands of years” comes dangerous close to pre-judging the merits of that case, if indeed the case is going to be re-opened.

The second justification offered by the Chief Justice is, of course, both bewildering and alarming. What does the “emotiveness” of the issue have to do with anything at all? Since when do emotions operate as injunctions upon decided judgments? And more importantly, whose emotions count? Just a few months ago, when there were protests against the Supreme Court’s decision on the demolition of the Ravidasa Temple in Delhi, the Court responded thus: “Everything cannot be political. Our orders can’t be given a political colour by anybody on earth” and “don’t speak a word and don’t aggravate the issue. You are in for contempt. We will haul up your entire management. We will see what has to be done.” Where was the Court’s touching solicitude for emotions back then? And how many times has the Court otherwise told aggrieved parties that, like it or not, they need to lump it when it comes to obeying judgments? Is it the case that emotions acquire a particular force when they are backed up by organised and systematic violence? The Chief Justice’s reference to avoiding violence during the hearing suggests that; but if that was the case, then it is nothing more than the heckler’s veto replacing the rule of law: your emotions will be given sanctity by the Court if you are strong enough to express them violently. But if you’re too weak to be violent, or just law-abiding, then, well, you do indeed have to lump it. This is a strange stance to take for the “most powerful Court in the world” and the “last refuge of the oppressed and the bewildered.”

And it is the third justification that really puts a seal on things: because the Chief Justice admits – he actually admits – that the law is indeed in the applicant’s favour (there is a judgment, and no stay). Despite that, he says that the Court will use its “discretion”, and pass no orders. But what sort of discretion is this, exactly? The discretion to refuse to one’s own judgments? The discretion to say that the judgments of  the Supreme Court are binding on all courts in the territory of India under Article 141 of the Constitution – but that Supreme Court benches themselves need not be bound to enforce them? It is very clear that there is no legal or judicial basis for this peculiar exercise of discretion: the only justifications that there are go back to the first two points discussed above.

Consequently, yesterday’s proceedings and order heap yet another irregularity upon the original sin that was the “review” order. To an external observer, it seems rather obvious that the Supreme Court now regards the original Sabarimala judgment as a millstone around its neck, and would evidently be rid of it. But to get there, it is undermining its own authority as well as the rule of law to a remarkable – and alarming – degree: reopening judgments in review jurisdiction without finding any “error” and then invoking “discretion” to decline to enforce judgments that hold the field. The question is no longer really about whether the original judgment was right or wrong, or whether the Court will now find a way to reverse it (it appears apparent that it will); the question is whether the damage that has been caused along the way will have been worth it – and whether this is now a Court that can regularly be held hostage to the heckler’s veto.

 

 

 

Guest Post: The Supreme Court’s IBC Judgment and a Comparative Approach to Justice

[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 a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


[This is a guest post by Arti Gupta.]


In a previous post, Dhruva Gandhi and Sahil Raveen analyzed the invocation of the doctrine of manifest arbitrariness with respect to Section 12 of the Insolvency and Bankruptcy Code, 2016 (‘IBC’) in the case of Committee of Creditors of Essar Steel v. Satish Kumar Gupta. Out of the three broad arguments put forward by Gandhi and Raveen, I shall be responding primarily to the third one which says that there was little basis for the court to read down ‘mandatorily’ from the proviso to S. 12 on grounds of it being ‘manifestly arbitrary’. The duo relies on some precedents to reiterate that a statutory provision would be manifestly arbitrary if it “lacked a clear determinative principle or encapsulated a capricious or irrational measure”.

S. 12, as rightly pointed out, has an underlying determinative principle, which is to ensure a time-bound resolution of a corporate debtor under IBC. However, a pertinent question I want to raise is whether the Section’s fixing of the time-limit to this specific number of three hundred and thirty days, mandatorily binding us to effect the resolution of a corporate debtor within it, would amount to an irrational measure. The answer might be in the affirmative when we look at corporate insolvency resolution process (‘CIRP’) not simply as an application of only IBC, but as an application of a matrix of different statutes. It is one such matrix, created by the intersection of IBC and Competition Act, 2002, which I am concerned with.

Role of the Competition Commission of India in CIRP

The Insolvency and Bankruptcy Code (Second Amendment) Act, 2018, inserted Section 31(4) in IBC, the proviso to which stipulates that if a resolution plan envisages a ‘combination’, as defined under Section 5 of Competition Act, approval of the committee of creditors (‘CoC’) has to be obtained after obtaining the approval of the Competition Commission of India (‘CCI’). Under Section 6 of the Competition Act, the obligation to notify the CCI of the potential combination is triggered when a ‘document’ is executed in favour of the combination. The dilemma, then, is over the meaning of the word ‘document’. In some earlier decisions, the Courts have interpreted the term to mean either of the two things- the submission of a resolution plan by a resolution application, or the grant of approval of the plan by CoC. With the addition of S. 31(4), the submission of the resolution plan has to be the ‘document’ in contemplation because approval by CoC has to come after CCI’s approval and, hence, cannot be the document triggering the CCI approval.

A combined reading of Sections 16 to 22 of IBC shows that even before the submission of resolution plans by resolution applicants, the CIRP can validly take up to fifty one days out of the stipulated period of three hundred and thirty days. Further, after the submission of the resolution plans under S. 6 of the Competition Act, the resolution applicants can take up to thirty days to give a notice to CCI. After receiving notice, the CCI, under S. 31 of Competition Act, can take up to two hundred and seventy days (when it recommends modifications) to grant approval to the potential combination transaction. Therefore, from the insolvency commencement date till the grant of approval by CCI, the CIRP can statutorily extend to beyond three hundred and thirty days. Under such a situation, by the end of the deadline of three hundred and thirty days, no resolution plan has been received by the Adjudicating Authority (‘AA’). And as Gandhi and Raveen’s harmonious construction of Sections 12 and 33 itself shows, automatic liquidation of the corporate debtor will ensue when AA receives no plan.

Comparative v. Transcendental

One anticipated counter to this line of reasoning is that what is being taken into account here is the maximum possible time that can be taken up till CCI grants its approval, and that it might be effected much before the deadline, leaving sufficient time for AA to approve of one resolution plan. Another response has been that retaining the word ‘mandatorily’ can have the effect of coercing CCI into granting a quick approval. However, as Ronald Dworkin would have argued, such counters overlook the primary distinction between what may happen and what will happen. If a right under Article 19(1)(g) can be abridged in the face of speculation or some speculative benefit, then it is equivalent to granting no right at all.

Enough opinions have also been expressed over amending S. 12- either by putting a revised outer cap (as suggested by Gandhi and Raveen), or by excluding the time consumed by CCI from the maximum permissible time for CIRP. Such an amendment, it is argued, would address the inconsistencies between the two statutes, prevent AA from taking its own sweet time and everybody would go home happy. Yet as Amartya Sen has said elsewhere, “…if we are trying to choose between a Picasso and a Dali, it is of no help to invoke a diagnosis (even if such a transcendental diagnosis could be made) that the ideal picture in the world is the Mona Lisa”. Drawing further on that analogy, if Nariman J. can only choose between retaining ‘mandatorily’ or striking it down (an amendment is a prerogative of the legislature), then he can only pick one of them even if both are imperfect solutions in themselves. This is where we take the comparative rather than the transcendental route, to ask how justice would be advanced instead of asking what a perfectly just course of action would be. So, here is the choice- between considering the time-period of three hundred and thirty days as an irrational measure, which fails to take into account the discrepancies between two statutes, and retaining the term ‘mandatorily’ on the speculation that the statutory authority might not utilize the whole of the statutorily permissible time. To say the least, I am glad we did not choose the latter.

Guest Post: The Supreme Court’s IBC Judgment and the Continuing Problems with “Manifest Arbitrariness”

[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 a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


[This is a guest post by Dhruva Gandhi and Sahil Raveen, advocates at the Bombay and Delhi High Courts respectively.]


Last month, the Supreme Court delivered a much-awaited opinion in Committee of Creditors of Essar Steel v Satish Kumar Gupta (“Essar”). While clarifying the law on several aspects of the Insolvency & Bankruptcy Code, 2016 (“Code”), the Supreme Court held that a mandatory time-period of 330 days as fixed under the Code for completion of the Corporate Insolvency Resolution Process (“CIRP”) was manifestly arbitrary. While the decision on this point may be welcomed by several practitioners frequenting the National Company Law Tribunals, it serves as a prime example of an instance where there was little basis to take recourse to constitutional doctrine. It is also a case that makes us wonder about the unchartered territory that ‘manifest arbitrariness’ as a doctrine may lead us into and about the need to circumscribe its application.

Structure of the Code

The Code was enacted by Parliament to provide a consolidated scheme for the resolution of insolvency of corporate persons, partnerships and individuals (See: Statement of Objects & Reasons).

Under the Code, an application for the initiation of proceedings of insolvency resolution can be filed by a financial creditor (Section 7), an operational creditor (Section 9) or by the indebted company itself (Section 10). Once the Adjudicating Authority satisfies itself that a debt is owed by the corporate entity; the Adjudicating Authority admits the application and declares a moratorium on the ‘Corporate Debtor’. Thereafter, a Resolution Professional (“RP”) is appointed who takes over the management of Corporate Debtor and keep it as a going concern. The RP also constitutes a Committee of Creditors (“COC”), made up of the financial creditors of the Corporate Debtor.

Subsequently, the RP invites resolution plans (“plans”) from interested resolution applicants who may want to revive, restructure or simply take over the Corporate Debtor. In view of the fact that creditors now have debts to the tune of hundreds of crores lined up and that resolution applicants would want the process to be efficacious for it to make commercial sense, the Code and the appended Regulations provide detailed timelines for each step of the process.

On the receipt of various plans, the COC votes on each one of them and the plan receiving more than 66% of the votes of the financial creditors is accepted. The accepted plan is then placed by the RP before the Adjudicating Authority (“AA”), which is tasked with a confined mandate of ensuring that no provision of the Code has been breached and that the plan is not motivated by extraneous or mala fide considerations. In absence of any breach, the AA approves the resolution plan and lifts the moratorium, allowing the successful resolution applicant to revive the corporate debtor. As per the Code, the CIRP) is to be completed within a period of 180 days with an outer limit of 330 days. It is this timeline that has been held by Nariman J. to be manifestly arbitrary.

However, in our view, there was no need though for him to take recourse to this constitutional doctrine at all. The concerns about the strictness of the timeline could have been addressed by the ordinary tools of statutory interpretation.

Directory v Mandatory

Section 12 of the Code that speaks about the timeline of the CIRP says,

“(1) Subject to sub-section (2), the corporate insolvency resolution process shall be completed within a period of one hundred and eighty days from the date of admission of the application to initiate such process.

(2) The resolution professional shall file an application to the Adjudicating Authority to extend the period of the corporate insolvency resolution process beyond one hundred and eighty days, if instructed to do so by a resolution passed at a meeting of the committee of creditors by a vote of [sixty-six] per cent. of the voting shares.

(3) On receipt of an application under sub-section (2), if the Adjudicating Authority is satisfied that the subject matter of the case is such that corporate insolvency resolution process cannot be completed within one hundred and eighty days, it may by order extend the duration of such process beyond one hundred and eighty days by such further period as it thinks fit, but not exceeding ninety days:

Provided that any extension of the period of corporate insolvency resolution process under this section shall not be granted more than once:

Provided further that the corporate insolvency resolution process shall mandatorily be completed within a period of three hundred and thirty days from the insolvency commencement date, including any extension of the period of corporate insolvency resolution process granted under this section and the time taken in legal proceedings in relation to such resolution process of the corporate debtor:”

While there is no definition of CIRP, the structure of the Code makes it seem that the process logically comes to an end on the approval of the successful plan by the AA. However, nowhere in the Code do we find any mention of the consequences of the non-approval of the Resolution Plan by the Adjudicating Authority within the time-frame of 330 days. In the absence of any consequences for the violation of a mandatory clause, the Supreme Court could have simply read the clause to be directory in nature. It is now a well settled proposition of law that a clause which is mandatorily worded is in fact mandatory only if there are certain consequences listed for the breach of that clause. Therefore, this issue could have been resolved simply by resorting to a rule of statutory interpretation.

Harmonious Construction of Provisions

It could also have been resolved by a harmonious construction of Section 12 with Section 33 of the Code. Section 33 lists out the instances when the liquidation of a corporate entity may be initiated. It says,

“(1) Where the Adjudicating Authority, –

(a) before the expiry of the insolvency resolution process period or the maximum period permitted for completion of the corporate insolvency resolution process under section 12 or the fast track corporate insolvency resolution process under section 56, as the case may be, does not receive a resolution plan under sub-section (6) of section 30; or

(b) rejects the resolution plan under section 31 for the non-compliance of the requirements specified therein, it shall –

(i) pass an order requiring the corporate debtor to be liquidated in the manner as laid down in this Chapter;

(ii) issue a public announcement stating that the corporate debtor is in liquidation; and

(iii) require such order to be sent to the authority with which the corporate debtor is registered.” (emphasis supplied)

A worry with the non-approval of a Resolution Plan within 330 days has been that the corporate entity is then sent into liquidation, a consequence that may not lead to a maximisation of the assets of that entity and may even truncate what the financial creditors and workers would receive. It is definitely a consequence that the AA would want to avoid unless absolutely necessary. However, Section 33 makes it clear that liquidation would not automatically ensue on a mere non-approval of the plan within the 330 days’ time period. Liquidation is the outcome only when either (i) no plan whatsoever is received by the Adjudicating Authority or (ii) the plan received is rejected.

In fact, the joint reading of the second proviso of Section 12 and Section 33(1)(a) suggests that it is only mandatory for the RP to submit a Resolution Plan to the Adjudicating Authority within 330 days. It is not mandatory for the AA to also approve the plan within 330 days.

While the pendency of a plan before the AA could have its own set of commercial consequences, the Legislature seems to have made it quite clear what the scheme ought to be. Based on this construction of Sections 12 and 33 too then, Nariman J. could have resolved the issue. There seems to have been little need to resort to Article 14 of the Constitution.

Little Basis to Say ‘Manifestly Arbitrary’

Leaving aside the fact that this issue could have otherwise been addressed, the use of the doctrine of ‘manifest arbitrariness’ itself is worrisome. To say that the word ‘mandatorily’ in Section 12 shall be read down, Nariman J says (Para 79),

“Given the fact that the time taken in legal proceedings cannot possibly harm a litigant if the Tribunal itself cannot take up the litigant’s case within the requisite period for no fault of the litigant, a provision which mandatorily requires the CIRP to end by a certain date – without any exception thereto – may well be an excessive interference with a litigant’s fundamental right to non-arbitrary treatment under Article 14 and an excessive, arbitrary and therefore unreasonable restriction on a litigant’s fundamental right to carry onbusiness under Article 19(1)(g) of the Constitution of India. This being the case, we would ordinarily have struck down the provision in its entirety. However, that would then throw the baby out with the bathwater, inasmuch as the time taken in legal proceedings is certainly an important factor which causes delay, and which has made previous statutory experiments fail as we have seen from Madras Petrochem (supra). Thus, while leaving the provision otherwise intact, we strike down the word “mandatorily” as being manifestly arbitrary under Article 14 of the Constitution of India and as being an excessive and unreasonable restriction on the litigant’s right to carry on business under Article 19(1)(g) of the Constitution.” (emphasis supplied)

What this means is that in the one-off case where the AA is unable to either approve or reject the resolution plan within the stipulated time period, the corporate debtor shall head into insolvency and this will adversely affect the rights of the litigants and stakeholders. As has already been spelled out, the statutory scheme does not say that a corporate debtor must head into liquidation and therefore, it was unwarranted to use a constitutional doctrine to account for a mechanism not contemplated by statute..

Even if we were to assume for a moment that liquidation did ensue, the use of this doctrine does not meet the very standards prescribed for it either. When enunciating the doctrine in Sharaya Bano v Union of India (“Sharaya Bano”), Nariman J. said that a provision of law would be manifestly arbitrary if it lacked a clear determinative principle or encapsulated a capricious or irrational measure (Para 55). It was this very standard that was followed in Navtej Johar v Union of India (“Navtej”) as well by him (Para 82), by Misra and Khanwilkar JJ.(Paras 238-39) and by Malhotra J (Para 14.9).

On this metric, it can hardly be said that Section 12 of the Code is manifestly arbitrary. A strict time-period was prescribed precisely to avoid the unpleasant situation that creditors found themselves in under previous statutes such as the Sick Industrial Companies (Special Provisions) Act, 1985. Those systems were found to be inefficient and tardy and were hardly of any assistance in pulling the economy out of quagmire of non-performing and stressed assets that it found itself in.

In fact, the Supreme Court itself in various judgements including Arcelor Mittal (India) (P) Ltd. v. Satish Kumar Gupta, Innoventive Industries Ltd. v. ICICI Bank, and Swiss Ribbons (P) Ltd. v. Union of India (“Swiss Ribbons”), has noted the importance of a time bound resolution of corporate debtors to maximize the assets for the stakeholders. In Swiss Ribbons, the court observed,

“27. As is discernible, the Preamble gives an insight into what is sought to be achieved by the Code. The Code is first and foremost, a Code for reorganisation and insolvency resolution of corporate debtors. Unless such reorganisation is effected in a time-bound manner, the value of the assets of such persons will deplete.Therefore, maximisation of value of the assets of such persons so that they are efficiently run as going concerns is another very important objective of the Code.

….

Timely resolution of a corporate debtor who is in the red, by an effective legal framework, would go a long way to support the development of credit markets. Since more investment can be made with funds that have come back into the economy, business then eases up, which leads, overall, to higher economic growth and development of the Indian economy. What is interesting to note is that the Preamble does not, in any manner, refer to liquidation, which is only availed of as a last resort if there is either no resolution plan or the resolution plans submitted are not up to the mark. Even in liquidation, the liquidator can sell the business of the corporate debtor as a going concern.

…..

28.

…..

The timelines within which the resolution process is to take place again protects the corporate debtor’s assets from further dilution, and also protects all its creditors and workers by seeing that the resolution process goes through as fast as possible so that another management can, through its entrepreneurial skills, resuscitate the corporate debtor to achieve all these ends.” (emphasis supplied)

Therefore, even without looking at the legislative history or parliamentary debates surrounding the Code and its amendments, the very observations of the Supreme Court suffice to suggest that a clear and determinative principle undercuts Section 12 of the Code. Section 12 can hardly be said to be lacking a determinative principle the way Section 377 of the Indian Penal Code did. It is not capricious or irrational by any means either.

Just because the application of a principle leads to some hardship in a one-off situation, it does not make the entire section manifestly arbitrary. The hardship could well have been accounted for by the Legislature and in some cases, could have been the only feasible option available to it. To cure such hardships that follow from statutory structures using the doctrine of arbitrariness only opens a gateway to substitute legislative choices with judicial wisdom.

In Sharaya Bano, Nariman J. sidelined this criticism by simply saying that our jurisprudence is replete with instances where courts have sat in decision over legislative wisdom {Para 44(3)}. However, this case for one is a good example to show how this criticism could have more depth than what Sharaya Bano attributed to it. The threat of liquidation and the associated minimization in the assets of the corporate debtor could have specifically been devised by Parliament to compel the AA to approve the plan in a time-bound manner.

While he substitution of judicial wisdom for legislative wisdom may be warranted and even welcome in some scenarios where say, fundamental rights, are at stake, doing so without a degree of circumspection may definitely dent the legitimacy of the doctrine in times to come. In fact, this may happen in the present instance itself. Even before the decision in Essar, there have been case where the AA has not approved a plan even after a year of its submission. While Nariman J. says that the time period should only be extended beyond 330 days where the AA has not been able to approve the plan because of its own failings, there is no outer cap on how long this extension can be or what counts as a justifiable basis for the AA. In fact, the Supreme Court would not be able prescribe this either because doing so would effectively add a third proviso to Section 12.

The outcome of Essar has only been that the AAs now have a precedent to fall back on when taking their own sweet time to approve resolution plans. Financial creditors continue to struggle to recover their dues and there are now instances where resolution applicants even want to withdraw their plans because of the tardiness of the system. There is also plenty of data being now emerging which suggests that the Code has not led to the revival of stressed assets in the manner envisaged. In these circumstances, there is plenty to say for the decision of Nariman J. and not the Code resulting in manifestly arbitrary outcomes. ‘Manifest arbitrariness’ is a powerful tool and one that may lead the Judiciary into unchartered territory. Circumspection in its use thus is better exercised sooner rather than later.

Guest Post: The Citizenship (Amendment) Bill is Unconstitutional

[This is a guest post by Nivedhitha K. The piece was written before the latest draft of the Bill – which exempts certain North-Eastern states from the operation of the Amendment – was made available.]


The BJP-led Union government is determined to table the Citizenship (Amendment) Bill, 2019 in this parliamentary session, after it lapsed earlier in the year. The bill proposes to amend Section 2 (b) of the Citizenship Act – which defines ‘illegal immigrants’ – by excluding “persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan” from the ambit of “illegal immigrants”. The bill also reduces the period of residence in India for the acquisition of Indian citizenship through naturalization to six years from the earlier period of twelve years. Thus, under the amendment, these ‘minority communities’ from Afghanistan, Bangladesh, and Pakistan are no longer ‘illegal’ immigrants, and they can obtain Indian citizenship through naturalization if they have resided in India for six years.

The amendment makes two classifications: first, a classification based on religion by excluding Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from the ambit of illegal immigrants; and secondly, a classification based on country, by restricting the benefit of acquiring citizenship through naturalization to minority immigrants only from Afghanistan, Pakistan and Bangladesh.

Religion-based classification

The first argument for the unconstitutionality of the CAB is that it enacts an impermissible, religious-based classification under Article 14 of the Constitution. To understand why, we first need to look at Article 15. Article 15 provides for specific grounds – religion, race, caste, sex, place of birth – that cannot form the basis for discrimination. Thus, the grounds in Article 15 indicate impermissible discrimination, i.e the law should effect discrimination based on these grounds to be violative of Article 15. In Navtej, Chandrachud J and Indu Malhotra J did not declare section 377 of the IPC as violative of Article 15 only because it effected classification based on “sex”. Rather the test used was whether the classification was based on Article 15 grounds, and if so whether it effected discrimination. Therefore, for the violation of Article 15, both classification based on the grounds and discrimination in effect will have to be proved. However, the  Citizenship Amendment Bill cannot be subjected to Article 15, because that Article is only applicable to citizens (immigrants, by definitions, are not citizens).

This takes us to Article 14. The traditional test for an Article 14 violation requires the classification to have an intelligible differentia and a reasonable nexus with the legislative object. In Anwar Ali Sarkar, it was explained that intelligible differentia means that there must be a yardstick to differentiate between those included in, and excluded from the group. However, in Navtej, an important interpretive advance was made upon this. Indu Malhotra J, in her judgment, infused Article 15 grounds into Article 14. She interpreted intelligible differentia to mean reasonable differentia. She required the intelligible differentia test to fulfil two sub-tests: one there must be a yardstick to differentiate between those included in and excluded from the group, and two, that yardstick must itself be reasonable. She observed: “Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia”. Therefore, the yardstick is reasonable only if it is not based on an intrinsic and core trait of an individual. She then referred to Article 15 grounds to explain that they form an intrinsic and core trait of an individual. She noted: “Race, caste, sex, and place of birth are aspects over which a person has no control, ergo they are immutable. On the other hand, religion is a fundamental choice of a person. Discrimination based on any of these grounds would undermine an individual’s personal autonomy.” Therefore, contrary to Article 15, the test for Article 14 violation is based on impermissible classification. Impermissible classification means that a particular principle cannot be used to classify because it is constitutionally irrelevant. Religion is a facet of personal autonomy, and a classification based on it is an impermissible classification.

The infusion of impermissible classification into the intelligible differentia test is justifiable for two reasons. First, while the objective of Article 15 is anti-discrimination, the objective of Article 14 is to provide equal protection of laws. Thus, Article 14 will be violated if the classification is unreasonable, while Article 15 will be violated only if there is discrimination based on the classification. Second, the interpretation of Article 14 on the lines of Article 15 aligns with the argument that fundamental rights are not watertight compartments. This understanding began with Fazl Ali J’s dissent in A.K Gopalan v. The State of Madras on the interpretation of the ‘procedure established by law’ clause. The interpretation was cemented through the evolution of the golden triangle in Maneka Gandhi v. Union of India, and strengthened by Chandrachud J’s interpretation of Article 26 in the Sabarimala case.  Therefore, classification based on religion is prima facie impermissible and violative of Article 14.

The second argument against religion-based classification in this case turns on its inability to fulfil Article 14’s nexus prong. The object of the amendment is to ‘protect those who have faced religious persecutions in Afghanistan, Pakistan, and Bangladesh’. However, by excluding Muslims from the category of ‘persecuted’, the amendment is based on the false premise that only minorities face religious persecution in a Muslim-majority country. The amendment makes an easy – but untrue – classification between minority and majority religion. This assumption is similar to assuming that all Hindus in India are treated alike irrespective of caste. However, within the majority Muslim religion, there is persecution based on sect. For example, in Pakistan, the Shias face religious persecution. Ahmadiyyas who align themselves with the Sunni school also face persecution. Unless persecution of a sect within the majority religion is recognised, the classification – of majority and minority – will have no nexus with the object of protecting those who face religious persecution.

Country based classification

The country based classification violates Article 14 as it fails the “manifest arbitrariness” test. Nariman J in Shayara Bano noted, “manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary.” The common threads that run through the three selected countries in the CAB are that they are Muslim-majority countries, and that they are India’s neighbours. The first rationale has been addressed above. If, however, the relevant countries have been selected because they are India’s neighbors, the exclusion of the other neighbors – such as Sri Lanka and Myanmar where people face religious persecution – must be justified. However, there is no justification because there is no adequate determining principle that guides the classification. The following points elucidate the absence of a determining principle for the classification.

  1. Principle 1: Pakistan and Bangladesh were part of British India. Illegal immigrants from there could still generically be considered of Indian origin. However, with the inclusion of Afghanistan, it is evident that the classification is not based on the principle of divided India and undivided India.
  2. Principle 2: Afghanistan, Pakistan and Bangladesh have a State religion. However, the classification cannot be on the basis of a State religion, as Sri Lanka prescribes Buddhism as the State religion.
  3. Principle 3: Degrees of harm. In Chiranjit Lal Chowdhury it was held that the legislature is free to recognize the degrees of harm and confine the classification to where harm is the clearest. However, if the CAB is based on the degrees of harm then the Rohingyas of Myanmar ought to be included as the 2013 UN report states that the Rohingyas are the most persecuted in the world.
  4. Principle 4: The classification might be limited to singling out persecuted religious minoritiesHowever, on this logic, Sri Lankan Eelam Tamils must also be included, as the Tamil Eelams are persecuted based on religion (Hinduism) and ethnicity.

Therefore, it is evident that the exclusion of the other neighboring countries where people face religious persecution is not justified, because the inclusion of these three countries is not based on any determining principle be it Indian origin, state religion, the degree of harm, or of persecuted minorities. Thus, the country based classification is violative of Article 14 as it suffers from the vice of manifest arbitrariness.

Under-inclusiveness and Deference

Having established the violation of Article 14, it is also necessary to address two counter arguments that arise. The first counter argument is that under-inclusiveness cannot render the law unconstitutional. The second counter argument is that the court would have to exercise deferential review – by showing deference to legislative wisdom – while deciding cases on citizenship, refugees etc.

Indian courts have permitted under-inclusive laws on grounds of administrative necessity and legislative experimentation (see State of Gujarat v. Ambika Mills). However, in N.P Basheer v. the State of Kerala, it was held that under-inclusiveness would withstand scrutiny under Article 14 only when it is ‘nominal’. However, the decision neither explains nor defines the word ‘nominal’. Nonetheless, there is ample evidence now for what cannot be considered “nominal”: for example, in the case of Sowmithri Vishnu, the constitutionality of the adultery provision was challenged. The court observed that Section 497 was under-inclusive but allowed deference to legislative wisdom. However, in Joseph Shine, the court performed a volte face and struck down section 497 because it violated the ‘personal autonomy’ of women. The importance of personal autonomy in Article 14 challenges is also evident from the Supreme Court’s decisions in Indian Young Lawyers (Sabarimala) and Navtej. Hence, if the differentiation violates personal autonomy – in this case, religion – under-inclusiveness is certainly not ‘nominal’.

What of the argument that deference to legislative wisdom is required on issues of citizenship, refugees and the like, as they fall under the realm of legislative policy? On the contrary, I suggest that this argument should be turned on its head: precisely because the issue concerns citizenship, deference is undesirable. It has already been argued above that the court should not allow deference to issues that concern personal autonomy. In Navtej, Indu Malhotra J and Dipak Mishra (writing for himself and A.M. Khanwilkar) referred to Article 15 grounds as illustrative of personal autonomy. They also accepted the analogous grounds argument, by holding Section 377 violative of Article 15 because it discriminates on sexual orientation which is a ground analogous to grounds specified textually in Article 15. Therefore, very little deference must be allowed to grounds under Article 15, and grounds that are analogous to Article 15 grounds, since they are based on personal autonomy. The argument now is that citizenship is a ground analogous to Article 15 grounds, since it is an important facet of personal autonomy. The Canadian Supreme Court in Andrew v. Law Society of British Columbia held that citizenship is a ground analogous to Section 15 of the Canadian Charter of Rights and Freedom – a provision which is similar to Article 15 of the COI – because it is a ‘personal characteristic’. It was observed that analogous grounds must be determined based on the “place of a group in the socio-political-legal fabric of the society.” Where a number of important rights are accrued on the basis of citizenship, non-citizens as a minority whose interests are brushed off would fall within the analogous category. Hence, the heightened level of scrutiny to a classification based on personal characteristics (grounds analogous to Article 15, and grounds in Article 15) should prevent the court from applying a deferential review.

Conclusion

Consolidating the arguments above, religion-based classification is violative of Article 14 of the Constitution because religion is a constitutionally impermissible ground for classification, and the classification does not have any nexus with the object of the bill. The country-based classification is manifestly arbitrary and violative of Article 14, as it is not based on any determining principle. The argument that under-inclusiveness cannot be a ground for unconstitutionality is countered by explaining that a law that is grounded on personal autonomy (i.e religion) is not merely a case of nominal under-inclusiveness. And the argument on application of deferential review to issues concerning citizenship and refugees is inapplicable, as citizenship falls within the ambit of analogous grounds, for which deference should not be allowed.