Coronavirus and the Constitution – VI: On the Freedom of Movement

Earlier on this blog, I had pointed out that the statutory guidelines issued under the National Disaster Management Act do not ban individual movement; nor is individual movement banned under regulations passed by the several states under the Epidemic Diseases Act or by Magistrates under Section 144 of the CrPC. Consequently, while there exists a “lockdown” – in the sense of a general closure of shops and public spaces, and a ban on public gatherings – there does not exist a “curfew” (i.e., prohibition upon individual movement).

In this context, the order of the NDMA Authority on 29th March 2020 deserves to be studied. The order was issued in light of the fact that after the announcement of the nationwide lockdown in the Prime Minister’s speech, there followed a mass movement of migrant labour, especially from the cities to their native places. The 29th March Order, after noting this, goes on to observe that “this is a violation of of the lockdown measures on maintaining social distance.”

The order, therefore, appears to draw a distinction between mass movement – which is a problem because it violates social distancing norms – and movement per se. While the Order itself raises a whole set of issues concerning the Hobson’s Choice that migrant labourers find themselves in (some of them discussed here), it appears that it continues to maintain the distinction between mass movement and individual movement.

In that context, however, certain actions by states and local authorities appear to be deeply problematic. For example, an order by the DGP of Haryana states that there is to be no movement of people on roads, and directs the picking up of people traveling “on foot” on roads or highways. The order also prohibits “jay-walking” on the roads. Meanwhile, TOI Telangana reported that a local gram panchayat has fined an individual for coming “out of his house” three times in a day. There were similar reports from Goa, about police patrols to ensure that people do not “venture out of their houses.” Today, the Delhi Police has said that morning walks are banned.

The reason for this, it appears to be clear, is that the wording of the NDMA orders – including the amendments – is excessively vague, and allows scope for implementational overreach of the kind that is witnessed on the ground. Clarity on this point is not a difficult task to achieve: for example, the UK Guidance – as discussed in the previous post – prohibits public gatherings of more than two people (unless you belong to the same household), and also has an inclusive definition of what constitutes a “reasonable ground” to go out (exercise, shopping for food, hospital visits, and so on). Under the UK Guidance, therefore, if you are (a) an individual, or a group of two people, (b) are stepping outdoors for a listed activity, or (c) have another reasonable ground for making essential travel, then that is permitted. This is also, evidently, proportionate, as Covid-19 transmission chains can be broken as long as people do not congregate in groups. A complete ban on individual movement, therefore, would be disproportionate.

The vagueness in the NDMA’s orders have, however, given effective carte blanche to local authorities to actually implement complete bans on individual movement, as they see fit – thus turning the “lockdown” into a “curfew”. Indeed, the regular reference by local authorities to the Prime Minister’s speech – with its colloquial references to the Lakshman Rekha – seems to suggest that what is being implemented is that speech, and not the law as it stands. This is a lacuna that is not difficult to remedy, and should be remedied swiftly.

 

Coronavirus and the Constitution – V: Financial Emergencies [Guest Post]

[This is a guest post by Bhargavi Kannan.]


As the novel coronavirus COVID-19 holds the country, its people and its economy to ransom, the Prime Minister has called for a 21-day nation-wide lockdown to curb the unrestrained spread of the pandemic. The Finance Minister has announced a relief package worth INR 1.70 lakh crore, in a bid to alleviate the immediate economic impact of COVID-19 on the financially weaker sections of the society. Various States have also announced a slew of relief packages. The Reserve Bank of India has, on its part, introduced several measures to increase liquidity and ease banking regulations.

A few days ago, an article was published on a website named inventia.co.in, claiming that the Prime Minister was likely to announce ‘financial emergency’ under Article 360 of the Constitution of India. This created quite a furore, inviting the Press Information Bureau to tweet that the story was “malicious and fake” and that there was no such plan. Finance Minister Nirmala Seetharaman also refuted the report during her press conference.

In this backdrop, a Public Interest Litigation has come to be filed before the Supreme Court by a think tank – Centre for Accountability and Systemic Change (CASC), asking for the declaration of financial emergency under Article 360. The thrust of the plea appears to be towards unification of efforts by the Centre and the State in an effort to fight the ‘global epidemic’, particularly in view of divergent and arbitrary steps being taken by States in exercise of powers under Section 144 of the Code of Criminal Procedure, 1973; the Epidemic Diseases Act, 1897; and the Disaster Management Act, 2005.

The question that begs to be answered is whether the declaration of a financial emergency, will in fact effectively address all the issues identified by the think tank. While the Petition rightly asks for a ‘unified’ central command in the fight against COVID-19, the scope of the President’s power under Article 360 may not be as wide as one may perceive.

Article 360 titled ‘Provisions as to financial emergency’ enables:

  • The President to proclaim financial emergency, if he is satisfied that the financial stability or credit of India or of any part of the territory thereof is threatened;
  • The executive authority of the Union to direct any State to observe such canons of financial propriety as may be specified in the directions;
  • The executive authority of the Union to give “such other directions” to the States “as the President may deem necessary and adequate for the purpose”; and
  • The President to issue directions for the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of the Union including the Judges of the Supreme Court and the High Courts.

Article 360 has not been pressed into service thus far and it’s scope and ambit remains to be tested. With virtually no jurisprudence detailing the contours of Article 360, one may look to the Constituent Assembly Debates to gather some insight into the nature of powers that the President and the Central Government may come to wield if this provision is invoked.

Article 360, or draft Article 280A as it then was, came to be introduced by Dr. B.R. Ambedkar quite belatedly on the 16th of October, 1949, during the tail end of the second reading of the Draft Constitution. Dr. Ambedkar was met with stiff opposition when he sought to introduce the provision which, according to some, proposed to “introduce a new kind of emergency unknown in any system”.

Dr. Ambedkar explained that draft Article 280A drew inspiration from the National Recovery Act of the United States, passed in the year 1933 to combat the aftereffects of the great depression. The National Recovery Act could never be effectively used, since it was struck down by the United States Supreme Court, soon after its enactment. To prevent such a situation from befalling upon any prospective Indian legislation, the framers of the Constitution deemed it fit to introduce financial emergency provisions in the Constitution itself.

After that brief introduction, the Chairman invited the members to present amendments, if any, to the draft provision. The first member to offer suggestions was Prof. Shiban Lal Saxena, who felt that the powers proposed to be conferred on the Centre needed to be enhanced further. Saxena thought it fit to enable the Parliament to make laws in respect of subjects contained in the State List as if they were subjects in the Concurrent List during the emergency period since “It is quite possible that the State may be forced by some legislation of their own, by their own laws to act in a particular manner and may not have the legal authority to carry out the directions of the President… a mere order will not enable the President to pass orders or to have them carried out because they may conflict with the laws of the States and it may not be possible for the President to get those laws changed”. However, since the amendment proposed to confer sweeping powers on the Parliament, it was rejected when put to vote.

Sh. H. V. Kamath, famous for his theatrics and frequent interjections, vehemently opposed draft Article 280A. He felt that an emergency provision like this could be invoked only in the dire strait of a financial breakdown or economic disaster. Kamath apprehended that the provision as presently worded may encourage the President to consider even situations of State deficit budgets as a threat to financial stability. Mr. R.K. Sidhva later responded to Kamath, stating: “If we have a President who really declares, because of a deficit budget that there is financial emergency, then I must say that that President is not worthy of occupying the high place that he would occupy. Kamath’s amendments thus came to be rejected. Given that the government is not considering proclamation of financial emergency even when being faced with unprecedented economic breakdown, Kamath’s apprehensions may have been misplaced.

Kamath ceded the floor to Sh. Brajeshwar Prasad, who was a strong proponent of empowering the Centre and demanded that an emergency, if declared, be permitted to last till the President deemed it fit. His suggestions were not accepted by the Assembly, since his amendments stemmed from a complete lack of faith in the Parliament and his belief that “For a long time to come, the executive and the executive alone will play a dominant part in our national life.

With no further amendment forthcoming, the floor was thrown open for discussion. Mr. R.K. Sidhva defended the provision in right earnest and commended the drafting committee for having the foresight to realize that such a situation may challenge independent India in the future. He said: “But a real emergency might arise whereby the financial stability may be affected, and we will be perfectly justified if we have an article like this, and I have no doubt at all in my mind that this article then would be very helpful”.

Dr. Ambedkar however did not find a supporter in Pandit Hirday Nath Kunzru, who, like Kamath, passionately criticized the provision. However, unlike Kamath, Kunzru was of the view that draft Article 280A was toothless. Perceiving the provision as one enabling nothing more than spending cuts, he said: “The whole object of the amendment seems to be to reduce expenditure and to prevent the provincial Governments from giving up any of their existing sources of revenue. Can an amendment with this purpose be said by any stretch of language to resemble even remotely the National Recovery Act of the United States?”

 Viewing the provision as displaying complete lack of trust in the ability of the provinces to manage their own finances, Kunzru quipped: “Is there any reason why, disregarding all past experience, we should show complete distrust of the provinces and treat them as though they were children and the President a village school master?” Kunzru believed that this provision, for all practical purposes, discarded the principle of federalism enshrined in the Constitution and signalled the move towards a unitary Constitution, since “The Centre will acquire complete control over the budget of the province and will be able to dictate both to the provincial government and to the provincial legislature what financial policies they should adopt”.

At this juncture, Dr. K.M. Munshi stepped in to diffuse the situation and offer his support to Dr. Ambedkar. Responding to Pandit Kunzru’s apprehensions, Dr. Munshi said that there would not be any multiplication of functionaries, since “the Centre, when it acts under this article 280A, will act through the functionaries of the State itself.” Emphasising the need for this provision, Dr. Munshi said:

In normal circumstances, when the finances of the country are stable, so long as the credit of the country stands, there is no chance of this article being brought into force. It is only when there is a financial emergency that it has to be brought into force and till then the provinces are completely free to do what they like. The attitude is not “school masterly” as Suggested. The attitude is that the Centre will step in at the time when there is a breakdown in the financial structure of the country.

This article in the Constitution is the realization of one supreme fact that the economic structure of the country is one and indivisible. If a province breaks financially, it will affect the finances of the Centre: if the Centre suffers, all the provinces will break. Therefore the inter-dependence of the provinces and the Centre is so great that the whole financial integrity of the country is one and a time might arise when unitary control may be absolutely necessary.… In a financial emergency there cannot be a greater privilege than that all financial affairs shall be controlled and directed from the Centre, as put forward in 280A. That is the object, and I submit it is an object without which the Constitution would remain incomplete and I invite the House to carry this article unanimously.

 

The members of the Constituent Assembly heeded Dr. Munshi’s appeal and approved the article without any amendments.

While respecting the need for States to cede control to sustain the financial integrity of the country, the framers of Article 360 took great care to ensure that unbridled powers were not conferred on the Centre. In rejecting the amendments proposed by Saxena, for instance, the Constituent Assembly sought to prevent a complete takeover of State legislatures by the Centre and restrict the Centre’s involvement to the issuance of directions. However, the possibility of conflicts between the directions of the Centre and State laws, as pointed out by Saxena, remained to be addressed.

Saxena appears to have had the foresight to anticipate issues which the think tank is presently complaining of. Matters like public order, police, public health and sanitation, hospitals and dispensaries, production, supply and distribution of goods, to name a few, fall under the State List. It would be interesting to see how the Centre deals with such conflicts, if Article 360 is ever invoked.

One thing, however, emerges clearly from the debates. The directions that the Centre may issue in exercise of its powers under Article 360 can only pertain to financial matters. The issues pointed out in the petition filed by the think tank, including differences in approach in implementing S. 144 and arbitrary police action, may remain unaddressed, even if Article 360 comes to be invoked.

Be that as it may, if financial emergency is indeed proclaimed, we only hope that the Centre remembers Sidhva’s words:

I am confident that the President, whosoever he may be, he will exercise his power rightly, and interpret this article in the right sense and in the right manner and for the benefit of the country and the benefit of the people of this country. With these words, I support the amendment that has been moved by Dr. Ambedkar, article 280A.

Coronavirus and the Constitution – IV: Privacy in a Public Health Crisis [Guest Post]

[This is a guest post by Suhrith Parthasarathy.]


In a bid to contain the Covid-19 pandemic, governments across the world are using means and measures that would otherwise be considered invasive and illegitimate. In some countries—China and Israel, among others—the State has used phone tracking devices to monitor the movements of persons who have either contracted the virus or have come into contact with someone who might have done so. Even the European Union has relaxed some of its existing regulations governing the sharing of location data. On 23 March, the European Commission wrote to a number of the continent’s telecom operators, urging them to share anonymized and aggregated mobile phone data. This information, the commission said, was necessary for it to track how the virus was spreading and to determine where and in what areas people’s medical needs were most necessary. Indeed, as a Financial Times report pointed out, the EU has had to put on hold its newly proposed digital strategy for artificial intelligence and data that called for an enhancement of its data sovereignty, with a recommendation that European AI algorithms should be trained on European data. In India, while it’s unclear if mobile phone data has yet been used to track the virus, a whole host of other measures have been put in place, which have otherwise impinged on people’s right to privacy. The State of Karnataka, for example, published a database containing a list of all persons (14,000 residents of Bangalore alone) who had either contracted the virus or who had been placed in quarantine. This database included details of these persons’ residential addresses and their travel history, among other things. Other states too have followed suit, and these details have often been leaked on WhatsApp and have been shared across groups and platforms.

Pandemics, as we know, can alter the course of history. The Yale historian, Frank Snowden’s study in his recently published book, “Epidemics and Society: From the Black Death to the Present” puts the coronavirus in perspective, by telling us the tale of the bubonic plague that hit London in 1665. “It had,” he told Isacc Chotiner in this interview, “an enormous effect on the economy. Bubonic plague killed half the population of full continents and, therefore, had a tremendous effect on the coming of the industrial revolution, on slavery and serfdom.” But in doing so, pandemics also change the nature of political power. Consider this passage from Snowden’s book:

Plague regulations also cast a long shadow over political history. They marked a vast extension of state power into spheres of human life that had never been subject to political authority. One reason for the temptation in later periods to resort to plague regulations was precisely that they provided justification for the extension of power, whether invoked against plague or, later, against cholera and other diseases. They justified control over the economy and the movement of people; they authorised surveillance and forcible detention; and they sanctioned the invasion of homes and the extinction of civil liberties. With the unanswerable argument of a public health emergency, this extension of power was welcomed by the church and by powerful political and medical voices. The campaign against plague marked a moment in the emergence of absolutism, and, more generally, it promoted an accretion of the power and legitimation of the modern state. [a hat-tip to Soutik Biswas for the reference to the passage].

 

We have, therefore, important lessons to take from history: that to absolutely waive our civil liberties in the perceived interest of public health portends dangerous consequences. In India, the trouble begins with the lack of a clear legal regime. Originally—before the central government finally woke up to the perils in front of it—various state governments had invoked The Epidemic Diseases Act, 1897, a colonial era law that granted state governments the power to prescribe temporary regulations to control the outbreak of any dangerous epidemic disease should it finding the existing laws insufficient. On 23 March, the Union government, following an address by the Prime Minister invoked the National Disaster Management Act, 2005, to seemingly provide a lawful basis for a nation-wide lockdown. [Gautam has discussed the implications of invoking the NDMA in this post here]. Notably, though, neither legislation provides governmental authorities any explicit legal basis to disclose personal information of persons who have either been inflicted with the virus or who have been quarantined for other reasons (such as their travel history).

The right to privacy, as we know, is a fundamental right. The Supreme Court’s judgment in Puttaswamy I makes it clear that the right includes a right to informational self-determination, that is the authority of every individual to decide for herself, when and within what limits information about her private life should be communicated to others. The opinions of Chandrachud, J. (on behalf of four judges), Nariman, J. and Kaul, J. each makes it clear that every person in India has a right to control the dissemination of information that is personal to her. Now, when governments disclose, as the State of Karnataka has done, residential addresses, phone numbers and travel histories of persons who have both been infected by Covid-19 or otherwise been quarantined there is a prima facie violation of the right to privacy. The question that we need to ask ourselves, though, is whether the infringement in this case is legitimate and constitutionally justifiable given the prevailing circumstances.

There can be little doubt that the right to privacy, like every other fundamental right, is not an absolute guarantee. But, as the Supreme Court held in Puttaswamy I, to restrict the right legitimately the State must first show us that there exists a valid piece of legislation permitting it to place a constraint on the right. What is more, such a constraint, as judgments since Puttaswamy I have made it clear (including the verdicts in Puttaswamy II, Anuradha Bhasin v. Union of India and Internet and Mobile Association of India v. RBI) must be proportionate in nature, that is they must satisfy the test as propounded by the Court in Modern Dental College and Research Centre v. State of Madhya Pradesh (2016)There, the court held, that the doctrine of partakes four separate lines of analyses: (1) that the measure has to be designated for a proper purpose; (2) that the measure undertaken is rationally connected to the fulfilment of that purpose; (3) that there are no alterative and less intrusive measures available that may similarly achieve that same purpose with a lesser degree of limitation; and (4) that there needs to be a proper relation between the importance of achieving the aim and the social importance of preventing the limitation on the constitutional right.

In the present case, neither the Epidemic Diseases Act, 1897 nor the NDMA accords the government the power to disclose personal information of any kind. Thus, the disclosures made are, as such, illegitimate. But there could be an argument made that the basic residuary power that these legislation accords to government also includes within its ambit the power to publish information of this kind, should such publication be deemed necessary for the purposes of controlling the epidemic or the disaster, as the case may be. The Epidemic Diseases Act, for example, grants state governments the power to prescribe temporary regulations. Similarly, section 6(i) of the NDMA grants to the “National Authority”—which has as its ex officio chief, the Prime Minister—the power to “take such other measures for the prevention of disaster, or the mitigation, or preparedness and capacity building for dealing with the threatening disaster situation or disaster as it may consider necessary.”

Even assuming for a moment that these clauses do accord to governments the power to make disclosure of private information any such disclosure will however have to nonetheless be proportionate in nature and must satisfy the test laid down in Modern Dental College. Here, however, no express regulation appears to have been made under either statute laying out a general framework for disclosure of information such as the residential addresses, phone numbers and travel history of those infected with the virus. What is more, it’s also entirely unclear how the disclosure can at all be considered proportionate.

Maintaining public health, especially during the time of a pandemic, is unquestionably a legitimate aim of the state. But there is nothing on record here to show us how the measure undertaken—that is the publication and leaking of a whole host of private data—is rationally connected to the fulfilment of the aim. How, we might want to ask, is public knowledge about an infected person’s residence and her mobile phone number going to assist the fight against the pandemic? Surely, there are less intrusive measures available. Would it not be sufficient to have broad locality level knowledge of where infected persons might be residing as opposed to publishing their exact residential addresses? The disclosures made by the Karnataka government fall afoul, therefore, of at least three prongs of the test expounded in Modern Dental. Moreover, the state government has now released a web-based mobile application, called “Corona Watch”, that discloses not only the movements made by persons infected with the virus—public places that they might have visited and the time when they made such visits (information that one might find helpful) but also the home addresses of these persons. Again, the disclosure of this personal information us unfounded in any authority of law and it is also grossly disproportionate to what might be considered as lawful objectives of the state.

There is no doubt that these are extraordinary times. They call for special actions by the State. Chandrachud, J’s plurality opinion in Puttaswamy I explicitly recognises public health as a valid ground on which certain forms of restrictions can be placed on the right to privacy. “…the state may assert a legitimate interest in analysing data borne from hospital records to understand and deal with a public health epidemic such as malaria or dengue to obviate a serious impact on the population,” he wrote. “If the State preserves the anonymity of the individual it could legitimately assert a valid state interest in the preservation of public health to design appropriate policy interventions on the basis of the data available to it.” But while the State will inevitably have to make encroachments on certain swathes of private information that it otherwise cannot, in the interest of public health, any such intrusion, as Chandrachud, J. holds, must still be necessary and proportionate.

At least some of these illegalities could have been obviated had we enacted a data protection law enshrining basic privacy principles, as demanded by the Supreme Court in Puttaswamy I. Such a statute might have installed a regime in which governments were made more acutely aware of when and where they could disclose private information. In the present case, by indiscriminately revealing information about persons who have either been infected with Covid-19 or who have been asked to keep themselves quarantined on account of their travel history the government has opened up the possibility of stigmatization, which, in a country like ours, could lead to various other forms of discrimination. The disclosures made, therefore, not only impinge on the right to privacy, but potentially violate a slew of other guarantees, including the basic human dignity of these individuals. We might well view the urgency of the pandemic as a justification for a limitation on civil rights. But to allow it to enter our conscience as legitimate state action can have dangerous consequences that go far beyond the immediate perils that we are faced with today.

Coronavirus and the Constitution – III: The Curfew and the Quarantine

To talk about civil rights in the midst of a global pandemic may seem out of place. However, as the Kenyan legal scholar Joshua Maldizo Nyawa reminded us recently,  Lord Atkin’s legendary dictum – that “amidst the clash of arms, the laws are not silent” – applies as much to a public health crisis as it does to times of war or to Emergencies. In fact, it is precisely because of the sweeping powers that governments arrogate to themselves during times of crises, that it becomes even more important to scrutinise the legality of their actions; and this importance is accentuated by that fact that often, those sweeping powers tend to entrench themselves into the legal landscape even after the crisis has passed.

The Curfew

The most sweeping impact upon rights, of course, is of the nation-wide twenty-one day “lockdown”. The lockdown has affected both the freedom of movement (through an effective – if not formal – curfew, and more on that later) as well as the freedom of trade. The exact scope of the lockdown has been the subject of much confusion, as it is the product of at least three intersecting sets of legal regimes.

First, at the central level, the government has invoked the National Disaster Management Act. Section 10 of the NDMA authorises the central authority to issue guidelines and directions to the several state governments with respect to addressing disasters. The Authority’s Guidelines – issued on 24th March 2020, and supplemented by various addenda from time to time – required a closure of government offices, commercial establishments, (with certain exceptions), industrial establishments, transport services, hospitality services, places of worship, large gatherings, and so on. Note that the NDMA Guidelines do not themselves impose a “curfew”. The closest they come to prohibiting individual movement is through the bar on “social/political/sports/entertainment/academic/cultural/religious function/gatherings.” Neither “functions” nor “gatherings” have, however, been defined. In addition, Guideline 14 requires Incident Commanders to “issue passes for enabling essential movements“, while Guideline 15 notes that these restrictions “fundamentally relate to movement of people.” As indicated above, however, the impact of the Guidelines upon the movement of individuals is – if at all – incidental (through the closure of public, commercial, and private spaces). The Guidelines do not themselves prohibit or restrict individual movement.

Secondly, several state governments have invoked the 1897 Epidemic Diseases Act, a legislation that grants to the states formally unlimited powers to prevent the outbreak or spread of an epidemic. Consider, for example, Regulations passed by the Maharashtra state government on 13th March, 2020, providing for isolation and quarantining of individual with a travel history, the sealing of specific areas from where Covid-19 has been reported, the banning of mass congregations, and so on. These Regulations intersect more closely with the third legal regime, which is separate Section 144 orders passed by individual magistrates/Commissioners of Police.

As many of the 144 orders are not publicly available, it is difficult to glean the exact scope of the restrictions that have been imposed in different parts of the country. What is clear, however, is that under law, there is no “nationwide curfew” at present; the NDMA Guidelines do not make any mention of a curfew, and even EDA Regulations such as those passed by Maharashtra impose a ban on gatherings, but not on individual movement. It should also be evident – in my view – that a ban on individual movement – an actual nationwide curfew – would be disproportionate. Recall that Covid-19 spreads through direct contact or close proximity; public health guidelines require “social distancing” (at a stipulated distance of two metres) for individuals in general, and self-isolation and quarantining for people with symptoms. For this reason, containment orders in other jurisdictions are more specific in this regard: the United Kingdom, for example, has issued Guidance that prohibits gatherings of more than two people outside, and allows individual movement only for good reason (such as exercise, buying essential items, and so on). The absence of such specificity in the intersecting legal regimes – as discussed above – has lead to a lot that has been lost in translation at the implementation level, with reports of policemen physically assaulting individuals for being out on the streets.

It is also important to note that neither the NDMA nor the Epidemic Diseases Act require that the government’s decisions be based on specific and verifiable scientific advice. An important limb of the proportionality standard – where rights are infringed – is that the measure be necessary to achieve the State goal (in this case, containing the “disaster” or the “epidemic”). There has to be, therefore, a strong means-ends relationship between the measures taken by the government, and the goal of containing the epidemic – a relationship that, for obvious reasons in such cases, has to be founded on scientific advice. This is an important shortcoming in both enactments, and going forward, it is worth considering the space of public disclosure requirements in laws that purport to provide government with sweeping powers in times of public health crises; the presence of such provisions, I would suggest, would itself be a step towards ensuring that these laws are proportionate.

The Quarantine

As indicated above, State regulations under the EDA require compulsory quarantining for people with travel histories, or those who show symptoms. There have been reports, however, of quarantine-jumping in many places, and state governments have taken to innovative methods to enforce the quarantine. One method involves an ink-stamp on the quarantined individual’s body, which can be erased after the expiration of the fourteen-day period. The Karnataka government, however, has gone further: it has made publicly available the house numbers, PIN Codes, and immediate travel history of those who have been quarantined (whether they have tested positive or not).

While the ink-stamp – as long as it is non-stigmatic and temporary – might just about meet the test of proportionality in this case, it seems obvious to me that the publication of personal and private details does not; what this amounts to, in essence, is the government shifting its burden of enforcement (of the quarantine) to the individual, whether or not she is at fault. In other words, the government cannot cite its inability to enforce the quarantine as a justification for infringing privacy rights; this, in my view, violates the proportionality standard (in particular, the necessity prong), as there clearly exist other, less restrictive ways of enforcing the quarantine.

Police Violence and the Closure of the Courts

A final point: as I noted above, there are widespread reports of excessive police violence in enforcing the curfew (which, as we have seen, doesn’t really exist). This has been accompanied by arbitrary action, such as the forceful closure of meat and fish shops. Unfortunately, at the same time, there has also been an effective closure of the courts, which has effectively led to a suspension of rights. While the Supreme Court remains formally open for urgent cases (as do the High Courts), there is no guidance on what constitutes an “urgent case.” In this regard, I would suggest that the Directive issued by the Chief Justice of the South African Constitutional Court: Chief Jusice Mogoeng specified that subordinate courts would remain open for urgent matters including “bail applications and appeals or matters relating to violations of liberty, domestic violence, maintenance and matters involving children.” It bears noting that the categories are inclusive – they serve as guidance for what constitutes an “urgent matter”, without being exhaustive.

Indeed, the reference to domestic violence is particularly important, as one of the corollaries of a nationwide lockdown is that individuals in abusive or violent relationships will – quite literally – be forced to stay. Or, to put it another way: courts should remain open to hear cases that arise as a consequence of the lockdown itself: whether it is State overreach in restricting individual rights in the name of fighting coronavirus, or fall-outs such as spikes in domestic violence. There is a delicate balance that needs to be drawn at this time – but it is a balance that must be drawn nonetheless.

 

Coronavirus and the Constitution – II: Household Staff and Employment Protection: Obligations, not Charity [Guest Post]

[This is a Guest Post by Udit Bhatia].


Over the last few days, concerns have been voiced over workers in India’s informal sector and how restrictions imposed by the government due to covid-19 might impact them. In his address to the nation, the Prime Minister pleaded with citizens that they continue to pay their employees who would suffer disproportionately as a result of the ongoing situation. Gautam Bhatia has recently written on the rights of employees to a safe working environment under the constitutional framework (in particular, Article 23 of the Indian constitution). I want to supplement his argument by emphasising protections that private citizens owe to their household staff in their capacity as employers. The category of ‘household staff’ here includes those who provide domestic service, such as cleaners, cooks, laundry staff, security staff, among others. In this note, I make the case for an obligation on behalf of individual employers to offer continuing income to their household staff as a matter of duty rather than a charitable good. I deliberately focus here on the duties of individual citizens (rather than corporations) as employers. The argument outlined here may well be extended to corporations. However, corporations, unlike private citizens, enjoy certain privileges from the state such as entity shielding, asset lock-in and limited liability, which are unavailable in ordinary contracts between individuals.  For this reason, the obligations corporations should bear as employers are likely more stringent than those which might be placed on individuals. The argument in this note, therefore, applies a fortiori to corporations as well.

The preliminary intuition for my argument is that the absence of an adequate welfare state places some kind of obligations on relatively well-off citizens to protect the employment status and income of their household employees. In India, household staff enjoy few protections from the state. There exists little by way of a welfare system that is equipped to fulfil the basic needs and protect core rights of citizens. For many, it is only employment by private individuals that goes some way towards the protection of these rights and interests. Simultaneously, the absence of the welfare state is a trade-off contributing to the wealth and advantage of the well-off. The rich are rich, at least in part, because of the absence of more robust redistributive policies that would enable the strengthening of a welfare system for the poor. Why these facts should place well-off citizens under an obligation to protect their household staff’s employment, however, requires further scrutiny.

Case 1: Imagine I take away my neighbour’s oven without good reason. And suppose that the oven is all he possesses for the purposes of cooking. It would be fairly unproblematic to suggest that I now have a duty to compensate for my actions by cooking my neighbour a meal (assuming I am unable for some reason to return his oven immediately). For our purposes, this scenario runs into a crucial objection. The relatively wealthy, as a class, may certainly be held complicit for the weak safety net available to the poor. It is likely that their positive actions, such as the politicians they elect, and their omissions, such as their unwillingness to speak out about the gaps in the social safety net, render them complicit in morally relevant ways. In such cases, there appear to be remedial duties that well-off citizens owe to the poor as a result of their complicity. However, it would be hard to draw implications from this point about duties that individual members of the well-off class hold towards the poor. The problem, of course, is that some members among the class of relatively well-off may (perhaps fairly) claim to be blameless: they may not have voted for the current government, or they may have lobbied for greater social security for the poor, for instance. Let us call this the blamelessness problem.

Case 2: A second hypothetical case can help address the blameless problem. Imagine that an oven is all that my neighbour possesses for the purposes of cooking. Now suppose a visitor, without my knowledge, took away the oven. The visitor then proceeded to buy me a new television set with proceeds from the sale of the oven. After doing so, he became untraceable—or perhaps is simply unwilling to offer any compensation to my neighbour.  I think it’s fair to suggest that I have a duty to cook for my neighbour in this case. This is because, even though I may not have caused his disadvantage, I unjustly benefit from it. To the extent that I do not liquidate the television set and buy back his oven, I have a duty to ensure that he continues to have dinner. This example overcomes the challenge posed by the blamelessness problem. Here, one’s restitutive duty is not tied to one’s blameworthiness for some disadvantage suffered by others. Rather, benefitting from an injustice to the detriment of others, even when one is blameless, gives rise to a duty to ‘make up’ some of the disadvantaged party’s loss. The intuition underlying this argument is a fairly familiar one. If we belong to an ethnic group that enjoys unfair advantage, we have a duty to mitigate the costs suffered by disadvantaged groups, regardless of our non-complicity in bringing about unfair social structures around ethnicity. Citizens of wealthy states, who have historically benefitted from industrialisation, have a weightier duty to offset the costs of climate change even if they are not themselves directly responsible for CO2 emissions.

The retreat of the welfare state may not be attributed to the relatively well-off. However, insofar as the relatively advantaged continue to benefit from it, they nevertheless have a duty to mitigate the costs suffered by the less advantaged. Thus, we insist that the poor are owed duties by well-off citizens qua beneficiaries—rather than perpetrators of harms—of the weakness of a social safety net for the poor.  There is, of course, a final problem with case 2. It only shows why the well-off have a duty to make up for the disadvantages suffered by the poor due to the absence of a social safety net. It does not tell us why there are specific obligations that the well-off owe to poor staff members who they employ, as opposed to duties they bear towards the poor, more generally. Let us call this the specification problem.

Case 3: Let me now turn to an example that may help us address the specification problem, showing us why well-off employers hold a restitutive duty specifically to their household staff. Suppose my neighbour owns, in addition to his oven, a microwave which he can use for cooking. Suppose he necessarily requires at least one of these two products for cooking his meals. Now imagine, again, that a visitor takes away my neighbour’s oven, using the proceeds from its sale to buy me a television set. In this example, my neighbour still possesses a microwave, which he can use for cooking his meals. As such, I may owe him some compensation, but it is unclear that I should cook for him, since he can continue to prepare his own meals. But imagine that the microwave he possesses is one that I had lent him. I think it’s fair to suggest that I should not, under the present circumstances, take away the microwave. Since I benefit from his lack of an oven, I have a duty to mitigate any loss to his capacity to prepare his meal. If recalling my borrowed microwave means he is no longer able to cook, I have a duty in this instance, to refrain from depriving him of his means to cook; my unjustly benefitting from his loss of the oven means I should refrain from placing him in circumstances which would exacerbate the costs of his unfair loss.

This case, I think, shows how the absence of a welfare state is connected with the way we should think about household employment. Since the relatively well-off unjustly benefit from the absence of a welfare state to the detriment of the poor, they have a duty to refrain from placing the poor in a condition which would exacerbate costs of the absence of the welfare state. Insofar as employment (and income from it) provides the one mitigating factor that the poor are able to rely on—like the microwave in our example—the well-off have a duty to refrain from jeopardising this in the absence of a social safety net. This case helps avoid the specification problem outlined previously. It shows why restitutive duties arising from unjust benefit pertain specifically to employment, and place an obligation on advantaged citizens to protect the employment status of poor citizens.

The Prime Minister’s plea that employers continue to pay their household staff entirely misses the normative relationship in which private employers and their household staff find themselves. Income, in the absence of a welfare state, and specifically, in the context of a life-threatening pandemic, is a duty owed to employees—not an optional benefit that the government should be pleading on their behalf. To frame the protection of such employment as an act of charity or kindness is to add disrespect to a moral injury we are under an obligation to redress.

CAA, Coronavirus, and Civil Rights at the Bar of the High Courts

Amidst the continuing fall-out of the CAA/NRC/NPR protests, and the new fall-out of Covid-19, some of India’s High Courts have delivered admirable judgments protecting civil rights in fraught times. In Kamil Siedczynski v Union of India, a single-judge bench of the Calcutta High Court set aside a “Leave India Notice” [“LIN”] issued by the government to the Petitioner, who was a Polish student studying in India. The ostensible basis of the Notice – issued under Section 3(2)(c) of the Foreigners Act – was that the petitioner, being a foreign citizen, could not have participated in “political rallies” while in the country. The petitioner impugned the LIN on both procedural and substantive grounds: namely, that he had not been heard, that the LIN was not supported by any reasons, and that it violated his rights under Article 21 of the Constitution. The State, on the other hand, raised a set of familiar arguments: it relied on its prerogative powers in matters of entry or expulsion into India, submitted materials in a sealed cover, denied any obligation to accord a hearing, and argued that foreigners could not agitate constitutional rights that flowed from Article 19.

Sabyasachi Bhattacharyya J found for the Petitioner on all counts. He began by noting that the Petitioner was lawfully in India on a valid student visa. Consequently, the right of the Petitioner to reside in India – flowing from his visa – could not be revoked without a hearing (paragraph 49). Bhattacharyya J then observed that the material in the “sealed cover” was essentially two sheets of paper that referred to the Petitioner’s attendance at an anti-CAA rally, and a decision taken by “higher formations” to expel him from the country. This led him to consider the substantive question at issue. On this, Bhattacharyya J held that:

For a brilliant student of the academic standard of the petitioner, it is but natural that the petitioner shall have free interactions in an atmosphere of freedom with Indians, at least while in India. (paragraph 58)

Consequently:

The very premise of such qualifications, which the petitioner has, provide for the petitioner’s ability to engage in such activities as indicated above. Hence, the ‘life’ and ‘personal liberty’ of the petitioner cannot be limited to a bare existence worth the name but also contemplates his right to actively pursue his interests and fields of specialization, which are necessary for the petitioner to lead a healthy life. The personal liberties of any person cannot be restricted merely to the right of staying in India. Since the student visa in favour of the petitioner confers the right on the petitioner to live in India up to August 30, 2020, the rights to pursue his intellectual interests and to seep in the ethnicity and lifestyle of different communities in India also go hand in hand with his right to life. (paragraph 59)

Thus, even though Article 19 was not available to the Petitioner (as a non-citizen), Article 21 – available to “all persons” – covered his right to participate in protests and rallies. Additionally, Bhattacharyya J. pointed out that the powers under Section 3 of the Foreigners Act were not “unfettered”, but had to be exercised within the constitutional framework. Interestingly, he also held that some of the earlier Supreme Court judgments – that seemed to indicate that no hearing was necessary as a Section 3 order was a “purely executive order” – were not only distinguishable, but had also been overtaken by the progress of Article 14 and 21 jurisprudence, which now required a more “liberal” approach. Thus – and in sum – Bhattacharyya J condemned the actions of the government as a “paranoid overreaction” (paragraph 88), and set aside the LIN. The judgment stands out both for the lucidity and clarity with which it enunciates the relevant constitutional principles, and its refusal to simply defer to the State on questions of expulsion and the rights of foreigners. At all times, Bhattacharyya J. insisted, the State had to comply with its constitutional obligations: both in terms of respecting individual rights, and in terms of providing reasons for coercive action. Here – as often happens – the slightest scrutiny of the State’s putative “reasons” (even though they were submitted in a sealed cover) resulted in a clear realisation that they were, in essence, no reasons at all.


Meanwhile, the Madurai Bench of the Madras High Court passed a strong order on the right to protest. The plea concerned the denial of police permission to protest against the CAA/NPR/NRC, on grounds of inconvenience to traffic, and law and order. Justice G.R. Swaminathan noted that “officials invariably deny permission for holding meetings protesting governmental laws and policies”, citing either Section 30 of the Police Act of 1861 or Section 41 of the Chennai City Police Act of 1988 (both laws clothe the police with extremely broad powers to deny permission to protests). Citing recent observations by judges of the Supreme Court (Chandrachud and Deepak Gupta JJ) in extra-judicial speeches, Justice Swaminathan then observed that:

The right to hold public meeting is traceable to Article 19(1)(a) and 19(1)(b) of Constitution of India. These provisions guarantee to all citizens the right to freedom of speech and expression and to assemble peaceably and without arms. The Constitution Bench of the Hon’Ble Supreme Court in the decision reported in (1973) 1 SCC 277 (Himat Lal K.Shah V. Commissioner of Police) held that the right to hold public meetings flows from Article 19(1)(b) and that the state cannot impose unreasonable restrictions. It was also observed that public streets are the natural places for expression of opinions and dissemination of ideas. It forms parts of the tradition of our national life. (paragraph 8)

In light of this, Swaminathan J noted that the task of the State authorities was to stand in aid of fundamental rights, dealing with law and order problems if – and when – they arose, and not to start with the “easy option” of curtailing rights. This was especially the case as in the present situation, the organisers had committed to abiding by all rules and regulations.

The denial of permission was thus set aside, although – in the meantime – Covid-19 had intervened, and there a fresh prohibition on public gatherings had been issued. Swaminathan J. therefore completed by holding that “the jurisdictional Deputy Superintendent of Police, will issue proceedings permitting holding of the event at the petition mentioned site immediately after the ban issued by the Government in the wake of novel coronavirus pandemic is lifted.” (paragraph 12)

Although brief, the judgment stands out, therefore, for three things: first, a reiteration of the principle that “public streets” are “natural avenues” for the exercise of constitutional rights; secondly, a reiteration that the obligation of the police and other authorities is to support the exercise of these rights, instead of moving to stop them on grounds of administrative convenience; and thirdly, effective relief by directing the grant of permission once Covid-19 passed (whenever that might be!). During a time when there is substantial judicial hedging even on such basic principles, the categorical nature of this judgment is welcome.


Covid-19 has caused substantial economic dislocation. One form of dislocation has been loss of income (both to individuals and businesses) caused due to the necessity of social distancing and of working from home. This precipitous fall in income – that has hit some sectors particularly hard – has led to calls for economic relief packages across the world. These have included demands for direct cash transfers, for the government to pay salaries of people stuck at home, and – crucially – a temporary moratorium on evictions, recoveries of dues, and other similar forms of coercive financial action.

In view of this, on March 18 and 19, the High Courts of Allahabad and Kerala passed brief orders. The Allahabad High Court directed that in view of the extraordinary situation, and for a limited period of two weeks (until 6.4.2020), recovery proceedings by district or statutory authorities, auctions, orders for presence of persons, demolitions, and evictions would stand suspended. The reason – as the High Court noted – was that given the imperative of social distancing and the impact on the right to health, such temporary relief was essential. The Kerala High Court’s order was somewhat broader:  it directed recoveries under the SARFAESI Act, the Income Tax Act, VAT and Motor Vehicles tax be deferred to after the 6th of April. Crucially, and at the same time, the High Court left it open for State authorities to move for modification of the order in specific individual circumstances; thus, broadly, the default was a two-week relief period, subject to reasonable exceptions, if established in Court.

As Swaroop Mami notes in this piece, the High Courts’ orders were both constitutionally sound, and also – at a basic level – humane:

These are vital orders for both protection of fundamental rights of citizens and to grant some kind of relief to a sagging economy in the wake of the virus. A businessman, already having to pay salaries without business, deserves a two-week tax relief. As any tax practitioner, be it a chartered accountant or a lawyer, will tell you – the two weeks leading up to March 31 are when the tax department, desperate to hit annual revenue targets, will be at its most unreasonable. A relief against this is always welcome, but even more so during this crisis. Also, it is basic human decency that during an unprecedented worldwide pandemic requiring self-isolation, aperson should not be evicted from her house for recovery of bank dues, and the State should not carry out demolitions of buildings for violation of building laws. These can wait for two weeks.

In the case of the Kerala High Court, the orders were passed for the protection of Court officers. It is important to understand that like hospitals, courts can never be fully shut down – bail, habeas corpus writs and urgent civil relief often cannot be postponed. The best one can do is reduce the burden on the courts, which is what the Court sought to do.

 

It is therefore deeply unfortunate that both these progressive orders were stayed ex-parte by a bench of the Supreme Court, in an entirely cryptic, unreasoned, one-paragraph order. In his article, Swaroop deals with the flawed stand of the Union of India at some length, and I will not rehearse those arguments here. It is, however, important to note that in granting this ex parte stay within hours of filing, the Supreme Court allowed the government to break every known procedural rule in the book; moreover, as Manu Sebastian points out in this Facebook post, many of the directions of the Allahabad High Court did not concern the interests of the central government at all, but rather, those of the UP state government – which did not appeal the order.

Two further points. The State’s SLP – as Swaroop points out – is almost entirely based on the issue of separation of powers and the encroachment of the judiciary into the domain of policy. Here, however, is the bizarre thing: for the last three decades, the courts – and especially, the Supreme Court – have repeatedly “encroached” into the domain of policy, even to the extent of engaging in judicial law-making. The principal argument for this has been that because of the “vacuum” caused due to legislative and executive “inaction”, the Supreme Court has had to step in. From that perspective, even if you believe that the Allahabad and Kerala High Court orders were “encroachments” (and Swaroop argues persuasively that they were not), they were scarcely outliers: here is a situation involving a global pandemic, with cities and entire states under lockdown, where the central government has (so far) failed to come up with a relief package, and where – to tide over an emergency – the High Courts passed narrow and temporary orders dealing with enforcement relief. Does this even begin to compare with the Supreme Court’s sweeping judicial law-making in a case like Vishaka, or its recent use of Article 142 to legalise police interrogation techniques? Separation of powers, thus, seems to have become just another weapon of convenience in the Supreme Court’s armoury – it doesn’t exist on Tuesday and Wednesday, when the Court is perfectly content with passing legislative guidelines, but is suddenly birthed on Thursday, when the State comes up and asks for a stay.

Secondly, the Supreme Court order notes that the basis of the stay is that “the Government is fully conscious of the prevailing situation and would itself evolve proper mechanism to assuage concerns and hardships of everyone.” This is an astonishing statement for a constitutional Court to make – a level of abject deference reminiscent of its September 2019 order in the Kashmir lockdown case, where the government was politely requested to ease restrictions on fundamental rights “subject to national interest.” Notably – and contrary to the two High Court judgments that it was staying – no details whatsoever are provided in the order of what the “proper mechanism” might look like; indeed, that same evening, the Minister in charge of the Covid Taskforce herself admitted that there was no clarity on when the relief package would be ready. This in itself is a complete vindication of the two High Court judgments, which – it needs to be repeated – granted narrow and temporary relief precisely because the government had not acted.

In essence, therefore, the Supreme Court (a) stays two detailed and well-reasoned orders of High Courts that temporarily protected individual rights in the absence of government action, (b) does so in flagrant violation of procedure, and (c) on a vague and completely open-ended assurance of the government. This, one will note, is a courant with the Supreme Court’s actions in recent times, reinforcing the impression that at this point, the Court’s functioning is more about “cohesion” with the government, rather than protecting people’s rights.

Gender Equality in the Armed Forces

[Editor’s 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.]


On this blog, we have discussed in some detail the judicial approach to gender discrimination under the Constitution. Two recent judgments of the Supreme Court – delivered by a bench of Chandrachud and Rastogi JJ – have made an important contribution to contemporary jurisprudence on the subject. Both concerned the intersection of service law and gender equality – and, in particular, gender equality in the armed forces, a particularly fraught and thorny topic.

Babita Puniya

Secretary, Ministry of Defence v Babita Puniya concerned the grant of Permanent Commissions in the Army. Section 12 of the Army Act prohibits the recruitment of “females” into the army except where – and to the extent that – the Central Government might allow. In 1992, the Union Government issued notifications allowing women to join certain branches/cadres of the army (all were non-combat roles). These notifications – which were intended to operate for a stipulated period of five years – were later extended in 1996, 2005, and 2006, along with promotional opportunities. Then, in 2008, the Ministry of Defence issued a Circular authorising the grant of Permanent Commissions [PCs] to women, but only prospectively, and only in certain cadres.

Adjudicating writ petitions challenging this, the High Court of Delhi held in 2010 that women who had entered the army on Short Service Commissions [“SSCs”], were entitled to PCs on par with their male colleagues. The Union of India appealed this decision to the Supreme Court. During the pendency of the hearing, it also proposed a separate policy for grant of PCs to women, which nonetheless was limited to staff positions, imposed different standards, as well as only applying prospectively.

Before the Supreme Court, the Union argued that this was a matter of policy – based on a consideration of “the inherent dangers involved in serving in the Army, adverse conditions of service which include an absence of privacy in field and insurgency areas, maternity issues and child care” (paragraph 28), and that in any event, Article 33 of the Constitution allowed for the fundamental rights chapter to be restricted when it came to the Armed Forces. It also argued that “the Army has to cater for spouse postings, “long absence on account of maternity leave, child care leave” as a result of which “the legitimate dues of male officers have to be compromised”.” (paragraph 31). In a Written Note, the Union of India added to these submissions by referring – once again – to “pregnancy, motherhood, and domestic obligations”, differences in physical capabilities, the “peculiar dynamics” of all-male units, and issues of hygiene.

These submissions were rejected by the Court. Chandrachud j. began his analysis by noting that while Article 33 did allow for restrictions upon fundamental rights in the Armed Forces, it also made it clear that these rights could be restricted only to the extent that it was necessary to ensure the proper discharge of duties and the maintenance of discipline. On the other hand, from 1991, there had been an “evolutionary process” towards inducting women into the armed forces (paragraph 50) – to the extent that in the 2019 Policy Document submitted before the Court, even PCs (in certain fields) had been opened up to women. In fact, this created an internal contradictions within the submissions of the union of India, as:

The decision of the Union Government to extend the grant of PC to other corps in the support arms and services recognizes that the physiological features of a woman have no significance to her equal entitlements under the Constitution. (paragraph 52)

Going further, however, the Chandrachud J. noted that:

The submissions advanced in the note tendered to this Court are based on sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminate against women. Underlying the statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations rest solely on women. Reliance on the “inherent physiological differences between men and women” rests in a deeply entrenched stereotypical and constitutionally flawed notion that women are the “weaker‟ sex and may not undertake tasks that are „too arduous‟ for them. Arguments founded on the physical strengths and weaknesses of men and women and on assumptions about women in the social context of marriage and family do not constitute a constitutionally valid basis for denying equal opportunity to women officers. To deny the grant of PCs to women officers on the ground that this would upset the “peculiar dynamics” in a unit casts an undue burden on women officers which has been claimed as a ground for excluding women. The written note also relies on the “minimal facilities for habitat and hygiene” as a ground for suggesting that women officers in the services must not be deployed in conflict zones. The respondents have placed on record that 30% of the total women officers are in fact deputed to conflict areas. (paragraph 54)

On a similar basis, the Court also rejected the blanket prohibition upon the grant of PCs to women in command appointments (and restricted only to staff appointments), noting that the Army bore the burden of justifying such exclusion, and that in any event, it could only be done on a case to case basis (paragraph 67). In sum, therefore, it accepted the 2019 Policy, but (a) made it applicable across the board, and (b) removed its limited scope to staff appointments.

Annie Nagaraja

The case of Union of India vs Lt. Cdr. Annie Nagaraja – involving Permanent Commissions in the Navy – was somewhat more complex. According to Section 9 of the Navy Act, women are not eligible for enrolment in the Indian Navy, except where – and on such terms and conditions – that the Central Government might specify (Chandrachud J.’s judgment refers to an interesting piece of history – at the time of the drafting of the Navy Act in 1957, there was a strong dissenting note in the Parliamentary Joint Committee objecting to this exclusion of women).

Now – simplifying the position somewhat – under the Navy Regulations, one of the qualifications for being inducted into the navy on a Short Service Commission [“SSC”] is that the applicant must be an “unmarried male.” SSC officers may subsequently be granted Permanent Commissions [“PCs”] on the basis of vacancies and suitability. In 1991, the Union Government issued a notification opening up certain branches of the Navy to women. Women, therefore, were entitled to take up SSCs, and it was noted that the policy for the grant of PCs would be formulated subsequently. Subsequently, in 1998, by another Notification under Section 9 of the Navy Act, more branches of the Navy were opened up to women. Soon after that in, in 1999, in a communication from the Ministry of Defence, it was clarified that women could serve on board ships, and that the policy governing PCs would be that which was already stipulated in the Regulations (see above).

Then, in 2008, the MoD issued another communication, stating that PCs to women SSC officers would be considered prospectively, and limited only to certain branches. In other words, women who had joined the Navy as SSCs following the opening up of recruitment after 1991, would not be considered for PCs. It was this that triggered the initial challenge before the Delhi High Court and the Armed Forces Tribunal, before finally winding its way to the Supreme Court.

Chandrachud J. began his analysis by noting that both the 1991 and 1998 Notifications lifted the bar for enrolment of women into the Navy, in certain branches (without expressly limiting them to SSCs) (paragraph 60). Consequently, when in 1999 the Government stipulated that the normal Regulations would apply for grant of PCs (which made them conditional on vacancies, suitability, and a recommendation from the Chief of Naval Staff), it was obvious that this would “cover both men and women serving on SSCs (paragraphs 64 – 65, 67). Consequently, the 2008 communication – which did not refer to these previous notifications and communications – could not change that fact.

As with Babita Puniya’s Case, however, the judgment’s bite lay in the analysis that came after the hard work of service law was done. In a section called “The Stereotypical Sailor”, the Court noted that the government had attempted to justify its stand by arguing that sea-duties were ill-suited for women as “there is no return to base”, and that Russian naval vessels had no separate bathrooms for women (paragraph 72). These arguments were roundly rejected, with Chandrachud J. noting that “the contention that certain sea-going duties are ill-suited to women officers is premised on sex stereotypes that male officers are more suited to certain duties by virtue of the physiological characteristics.” (paragraph 74), and that:

arguments founded on the physical strengths and weaknesses of men and women do not constitute a constitutionally valid basis for denying equal opportunity to women officers. To accept the contention urged by the ASG would be to approve the socially ascribed gender roles which a commitment to equal worth and dignity of every individual belies. (paragraph 74)

The Court concluded by moulding the relief in accordance with the different positions occupied by different sets of claimants, on the basis of the legal position that eligibility for PCs flowed from the 1991 and 1998 Notifications, and that the 2008 Communication making PCs prospctive from that date, was not valid (to that extent).

Analysis

Both judgments raise a few interesting issues. The first is that they add to the growing body of jurisprudence that brings the anti-stereotyping lens to issues of gender discrimination. In both cases, differential treatment of men and women in the armed forces was sought to be justified by invoking stereotypes about physical and psychological capabilities – broad generalisations that reflected deep-rooted beliefs and assumptions about gender roles in society. As we have argued before on this blog, Articles 14 and 15 rule out discrimination based on such stereotypes and generalisations. While the Court’s historical record on this front – especially in the domain of service law – has been patchy, at least since 2007, there has been a more consistent application of the anti-stereotyping principle. These judgments, with their clear invocation of the principle, will make it even more difficult in the future for stereotype-based arguments to be justified in Court.

Secondly, these judgments reiterate that in a constitutional democracy, the Armed Forces are not – and cannot be – a rights-free zone. While Article 33 admittedly authorises the restriction of fundamental rights to the Armed Forces, any such restriction must be “necessary” for allowing the Armed Forces to fulfil their goals, and the burden of sowing necessity lies upon those who want to exclude the operation of fundamental rights. In both judgments, the Court was careful in how it navigated this thorny area: it reiterated the need for Article 33 to exist, while also ensuring that it could not be used as a sword to cut down the rest of Part III.

Thirdly, these judgments demonstrate an oft-neglected truth: that the Court ought not to bear the sole burden of articulating and enforcing fundamental rights. What is notable about both these cases is – as the Court itself noted in Babita Puniya – that the induction of women into the armed forces had been an evolutionary process that had begun in 1992. The State’s sweeping arguments about the unsuitability of women to be granted PCs, therefore, were undercut by its own evolving policy decisions. This made the task of the Court substantially easier: instead of forcing gender equality down the throat of a recalcitrant institution, it could simply point to how the institution’s own logic was at variance with the exclusionary arguments that it now put forward. Thus, instead of ending up in an adverserial situation – where the Armed Forces justified discrimination and the Court opposed it – what happened here was that the Court engaged in an immanent critique, essentially requiring the Armed Forces to follow their own policies to a logical conclusion.

Fourthly – and relatedly – this also shows, perhaps, the limitations of the possibility of reform through adjudication. Notably, the relevant provisions of both the Army and the Navy Act, which bar the recruitment of women into the Forces except where the government allows it – were not under challenge, and the Court was at pains to point out that fact, apart from also noting that the suitability of women for combat roles was not an issue about it. What would happen, however, if those Sections were to be challenged? Logically speaking, the anti-stereotyping approach – and, more particularly, the Court’s explicit rejection of blanket prohibition of PCs to women in command areas – clearly rules out the blanket restriction on recruitment in the Armed Forces (except where the government permits). Would that be a step to far for the Court to take, especially if the State and the Armed Forces were to take the defence of national security considerations? That would be interesting to see, but at the same time, the Army’s own opening up over the years – combined with the Court’s incremental approach in these cases – probably obviates the immediate imperative for more radical challenges.

Coronavirus and the Constitution

Late last week, the World Health Organisation declared the outbreak of Covid-19 [“the Coronavirus”] to be a pandemic. While the epicentre of the disease is presently in Europe, it has also found its way to India, with numbers expected to rise sharply in the coming days and weeks.

The Coronavirus presents legislators, the government, and public health professionals with a series of complex policy challenges. Does the Constitution also have something to say about it? Over the years, the right to health has been read into the right to life under the Article 21; and if that right is to mean anything at all, it would require a set of steps to be taken to safeguard the population during a pandemic (see, for example, questions of access to HIV medicine in the South African Constitutional Court case of Treatment Action Campaign).

Here, however, I will discuss a different issue. As scientists have pointed out, the most effective method to combat the spread of the pandemic is through enforced “social distancing.” As the coronavirus spreads through contact, maintaining distance from an infected individual prevents further transmission. The problem, however, is that carriers of coronavirus are often asymptomatic, making detection and control (through quarantining and isolation) even more difficult. For this reason, authorities in a number of countries have now advised people – wherever possible – to work from home until the spread of the pandemic is adequately contained (or a vaccine is developed). Authorities have stopped short, however, of making this a requirement; thus, it is up to individual private employers to decide whether or not to allow their employees to work from home.

In this post, I want to suggest that giving an employee the choice between (a) exposure to the coronavirus by requiring them to come to work on the one hand, and (b) losing their job, on the other – amounts to forced labour under Article 23 of the Constitution. This is because Article 23 – as interpreted by the Supreme Court in PUDR v Union of India – understands forced labour to exist wherever the choices that exist before an employee are not genuine choices at all. Recall that in PUDR, the Supreme Court held that Article 23 – which applies between private parties, and not the State – guaranteed the right to a minimum wage. The basis of the Court’s judgment was that “any factor which deprives a person of a choice of alternatives and compels him to adopt one particular course of action may properly be regarded as ‘force’ and if labour or service is compelled as a result of such ‘force’, it would be ‘forced labour’.” Clarifying this point further, the Court specifically noted that in situations of unequal bargaining power (as tend to exist between employers and employees), non-payment of minimum wage under the employment contract would be evidence that in entering into the contract, the worker had been “acting not as a free agent with a choice between alternatives but under the compulsion of economic circumstances … the word ‘force’ must therefore be constructed to include not only physical or legal force but also force arising from the compulsion of economic circumstance which leaves no choice of alternatives.

In other words, therefore, the Court understood the word “forced” in “forced labour” to mean not just physical force (such as putting a gun to your head and “forcing” you to work), but as including any situation where an employer was able to leverage their institutional power (as the owner of property or capital) in order to effectively deprive a worker of legitimate choices. I have, elsewhere, defended this interpretation of Article 23. Here, I want to argue that the logic of PUDR applies squarely to coronavirus: telling an employee “choose between exposing yourself to a pandemic, contrary to express medical advice on the one hand, and losing your livelihood on the other” is an illusory choice in exactly the same way that telling them “work for less than a minimum wage or don’t work at all” is an illusory choice. Both are hit by Article 23.

I submit, therefore, that in the case of a pandemic, where a failure to follow the rules of social distancing and self-quarantining is expressly found to put an individual at a non-trivial risk of exposure, there is a presumptive, enforceable right to work from home. Here, however, there is a problem: in situations where working from office and working from home are broadly substitutable, the right is an absolute right; in a majority of cases, however, the job will require the physical presence of the employee. Now, in some countries, suggestions have been made to grant paid sick leave where required, with the government stepping in to help businesses recoup losses. We may consider that in a future post, but for my purposes here, I want to flag that in such cases, complete enforcement of Article 23 will nullify the employer’s right to freedom of trade under Article 19(1)(g). In such a case – where two rights under Part III of the Constitution clash – the Supreme Court’s recent RTI Judgment held that the doctrine of proportionality is to be applied – which, in practical terms, means that the two rights should be harmonised so that there is the least possible infringement of both.

What might such a harmonisation look like? I would suggest that where the nature of the work requires physical presence, the private employer is constitutionally obligated to put into place all required mechanisms to minimise the risk of exposure, in accordance with WHO advice (for example, the provision of hand sanitisers as disinfectants in the workplace, ensuring minimal distance between workers, and so on). This – I would argue – is the only correct method to balance the possible clash of rights under Articles 23 and 19(1)(g).

Consequently, the upshot of my argument is that (a) in workplaces where physical presence is not a necessity for the job, Article 23 grants to workers an enforceable right to work from a place of social isolation (which, in most cases, will be the home); and (b) in workplaces where physical presence is a necessity, the employer is required to take all reasonable measures to minimise the possibility of exposure.

It is important to note that in this post, the discussion has been limited to the relationship between employers and employees, within the scheme of Article 23 (and, where required, balanced against Article 19). The obligations of the State in such a situation – including a possible obligation to recompense private employers in situation (b) above – will be discussed in a future post.

 

 

 

Guest Post: The Supreme Court’s Cryptocurrency Judgment

[Editor’s 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 Suhrith Parthasarathy.]


On 31 October 2008, Satoshi Nakamoto, a presumed pseudonymous person(s), presented a paper titled “Bitcoin: A Peer-to-Peer Electronic Cash System”. The intention was to create a decentralized digital currency that would operate without a central bank through an open-sourced network using cryptography to verify and validate transactions. There would, under this model, be no need for any intermediaries, and each transaction would be recorded on a public ledger called a blockchain. At least since 1983, when an American cryptographer David Chaum introduced an anonymous cryptographic digital money called “ecash”, efforts had been made by many persons to create an alternative to fiat money, that is currencies which derive their value through government regulation. But the invention of Bitcoin was the first time a real breakthrough was made.

Since then, various other cryptocurrencies have cropped up, each using blockchain technology to record the transactions. The social media giant Facebook announced in June 2019 that it intended to launch its open form of cryptocurrency, Libra. In India, after the launch of Bitcoin a number of cryptocurrency exchanges began to operate. But they were working in what was really a regulatory vacuum. There was not only no clear definition of what a cryptocurrency was but there was also no law that prohibited or regulated their use. This situation prevailed until April 2018, when the Reserve Bank of India issued a circular, not banning the use of crypto currencies themselves, but the provision of banking services to any person who dealt with such currencies. This effectively meant, though, that any exchange which facilitated the use of cryptocurrencies stood thwarted. But now, in what might come as a temporary relief, if nothing else, to those who deal in these currencies, the Supreme Court has, in Internet and Mobile Association of India v. RBI, quashed the RBI’s circular.

In a 180-page long judgment, authored by Justice V. Ramasubramanian, the court found that while the RBI has the power to regulate Virtual Currencies [VCs], the prohibition imposed through the April 2018 circular is disproportionate, and, therefore, ultra vires the Constitution. In the court’s belief, in the absence of any legislative proscription, the business of dealing in these currencies ought to be treated as a legitimate trade that is protected by the fundamental right to carry on any occupation, trade or business under Article 19(1)(g) of the Constitution. According to the court, the RBI’s circular, in imposing a wholesale moratorium on the provision of banking services to these dealers, unreasonably impinged on what is otherwise a valid vocation, by going beyond the limitations permitted under Article 19(6).

As the Court recognized in its judgment, the circular, issued on 6 April 2018, was a culmination of a series of measures undertaken by the RBI concerning the regulation of VCs. In 2013, the RBI first began to take stock of the proliferation of these currencies, and in June that year it released a Financial Stability Report in which it defined VCs as “a type of unregulated digital money, issued and controlled by its developers and used and accepted by the members of a specific virtual community” In December of the same year, the RBI issued a caution to the users, holders and traders of VCs, which, it said, would include Bitcoins, about the potential financial, legal, and security related risks that they were exposing themselves to, and also pointed out that the RBI was in the process of examining the very legality of the use of these currencies. More press releases followed, before an Inter-Disciplinary Committee, set up by the Government, released a report in July 2017. In this, the committee, once again, advised against dealership in VCs. What is more, the committee also made a recommendation to the government seeking legislative changes that would make the “possession, trade and use of crypto-currencies expressly illegal and punishable.”

But, as is clear, there was, in fact, no law that banned the use of VCs, and that made trading in them illegal. Even as on the date of the judgment, while draft bills had been shared and circulated, with a view to bringing about legislation banning the use of cryptocurrencies, there was no statutory command expressly debarring their use. But the RBI through its circular had, for all practical purposes, put an end to the use of VCs in India by severing the ties between the cryptocurrency market and formal Indian economy.

Two different petitioners went to court against this move. One, the Internet and Mobile Association of India, a non-profit group that aims to represent the interests of the online and digital services industry, and two, a group of corporations that were in the business of running of crypto exchange platforms. Broadly, both the petitioners attacked the circular on the following grounds: first, that VCs are not legal tender but tradeable commodities and therefore that they fell outside the RBI’s regulatory ambit; and second, even assuming VCs were amenable to regulation by the RBI, the circular nonetheless disproportionately impinged on the petitioners’ rights. While the former ground proved unsuccessful, the court accepted the latter. These findings, as we will see, are likely to have serious long-term ramifications.

In the petitioners’ contention, VCs were neither money nor any other form of legal tender. They were, on the contrary, goods/commodities that fell entirely outside the purview of the legislation under which the impugned circular had been issued, that is the RBI Act, 1934, the Banking Regulation Act, 1949 and the Payment and Settlement Systems Act, 2007. Therefore, according to them, the RBI lacked the authority to regulate these currencies.

The court, in responding to this contention, analysed the role and the power of the RBI under these statutes, and sought to determine whether VCs did, in fact, fall within the scope of that power or not. In engaging in this analysis, it noted a rather thorny difficulty: that VCs eluded precise definition. While there were some who described the currencies as an exchange of value, and while some others called it a stock, there were many that pronounced it as a good/commodity. There was a belief that this lack of precise definition could easily see VCs slip out of all regulatory control. Therefore, one ought to examine, the court believed, what the basic, foundational objective of these currencies was.

From a reading of Nathaniel Popper’s book, “Digital Gold: The Untold Story of Bitcoin” the court noted that even Satoshi Nakamoto saw cryptocurrencies as a “digital analog to old-fashioned gold, a new kind of universal money that could be owned by everyone and spent anywhere.” Hence, the currency’s very design was aimed at creating a “cleverly constructed decentralized network without central authority.” Moreover, Nakamoto itself, the court observed, had defined bitcoin as a “new electronic cash system that’s fully peer-to-peer, with no trusted third party.” The judgment found that this basic objective had promoted states across jurisdictions to treat VCs—even though they had not acquired the status of a “legal tender”—as “digital representations of value.” But even still, did this mean VCs are money? And ought that to matter, in deciding whether the RBI could regulate it?

Traditionally—in a theory which harks back to the time of Aristotle—money has been seen as anything that can serve as (a) a store of value, which means people can use it as an asset that can be saved, retrieved and exchanged at a later time; (b) as a unit of account, that is a measure to provide a common base for prices; and (c) as a medium of exchange, not as a commodity, but as something that persons can use to intermediate the swapping of goods and services. In the case of the Indian rupee, for example, it fulfils all three of these conditions. But the rupee represents that form of currency, which is typically referred to as “fiat” money, that is money whose value has been determined by the state. The fixing of this value, as the writer John Lanchester puts is, is “act of faith”. Under this conception, a Rs. 10 note is worth what it is because of what the state claims its value to be.

If one were to use this definition, VCs too would likely fall within the meaning of money. They may not yet work well enough as a store of value or as a means of exchange, and given that they operate through a blockchain—which has no central server and uses digital, cryptographic technologies to authenticate a transaction—it is possible that they might never come to act as a real substitute for money. But that they have elements of each of the fundamental features of money means, as the court has held here, that they ought to be treated as such. The petitioners, however, contended that a fourth element has been added to the existing definition of money, and that for something to constitute money today it ought to also serve as a means towards the final discharge of a debt or as standard for deferred payment. In their belief, VCs did not fulfil this fourth function, either in the sense of being regarded as money by society or as being understood as money under the law.

The Court rejected this argument. It held that as long as there are certain institutions who accept VCs as valid payment for the purchase of goods and services, it was sufficient to bring the currencies within the regulatory power of the RBI. “Anything that may pose a threat to or have an impact on the financial system of the country,” the judgment held, “can be regulated or prohibited by RBI, despite the said activity not forming part of the credit system or payment system.” This power to regulate, the Court added, also included the power to prohibit. And, in any event, what was prohibited here wasn’t the very act of trading in VCs, but merely the provision of banking services to those who trade in VCs.

Having answered the first question thus, the court proceeded to examine whether the practical prohibition of VCs that resulted from the circular unreasonably impinged on the fundamental rights of those who used and traded in VCs, and of those who facilitated such use and trade. On this, there were four primary arguments that were made. First, it was argued that the Section 35A of the Banking Regulation Act required RBI to “satisfy” itself, among other things, that “public interest” or “the interest of banking policy” required it to issue directions. In this case, the petitioners said, no such “satisfaction” had been arrived at. In other words, the RBI, according to them, had failed to apply its mind. The court rejected this argument outright. At least from June 2013 onwards, the RBI, it held, had been studying the use of VCs and pondering over what action ought to be taken.

Second, the petitioners argued that the exercise of power in this case was colourable. In making this argument, they relied, on a reply to an RTI query, in which the RBI had claimed that it had no power to freeze the accounts of defaulting companies or of shell companies. But as the court held here, what the circular did was not to freeze bank accounts, but to simply order entities regulated by the RBI from exiting any relationship that they might have with a person or entity that deals with VCs.

Third, the petitioners argued that the RBI had sought to illegitimately improve its case by supplying reasons for the circular through counter affidavits and submissions. Here, the court held that while the test employed in MS Gill v The Chief Election Commissioner (1978) prohibits an authority from improving its case—in that the impugned order should speak for itself—the court is always free to examine subsequent materials in larger public interest. In this case, the court had expressly directed RBI to issue a detailed reply to representations made by the writ petitioners, and, therefore, the argument based on MS Gill could not be sustained.

Fourth, the petitioners argued that the circular did not meet the test of proportionality. By virtually choking into submission any VC exchange, the circular, according to them, infringed the right to practice any profession, or to carry on any occupation, trade or business, contained in Article 19(1)(g). While this right can be restricted through reasonable measures imposed in the “interest of the general public” under Article 19(6), such measures must conform to the doctrine of proportionality.

This test, as it exists in India, was first expounded by a constitution bench in Modern Dental College and Research Centre v. State of Madhya Pradesh (2016). There, the court held, that this doctrine is inherent in Article 19 and partakes four separate lines of analyses: (1) that the measure has to be designated for a proper purpose; (2) that the measure undertaken is rationally connected to the fulfilment of that purpose; (3) that there are no alterative and less intrusive measures available that may similarly achieve that same purpose with a lesser degree of limitation; and (4) that there needs to be a proper relation between the importance of achieving the aim and the social importance of preventing the limitation on the constitutional right.

Having noted that the proportionality test represents the relevant standard—and the judgment needs to be commended for this, given how rare it is that our apex constitutional court respects its own precedents—the court then plunged not into an analysis of the four prongs and whether they were met by the circular but rather into a consideration of the UK Supreme Court’s verdict in Bank Mellat v. HM Treasury (No. 2) (2013). Bank Mellat concerned the Financial Restrictions (Iran) Order 2009 issued by the Treasury under the Counter Terrorism Act of 2008. Through the order, persons operating in the UK’s financial sector were directed to discontinue any transaction or business relationship with the Bank, with immediate effect. As Justice Ramasubramanian held, this order, which was under challenge in the UK Supreme Court, was somewhat identical to the RBI’s circular. There, as he noted, the majority on the bench struck the Treasury’s order down on the grounds that the issues which the order sought to address, that is the financing of nuclear proliferation activities, were inherent to banking in general and were not special to Bank Mellat, and that in picking and choosing a single Iranian bank the order was arbitrary, disproportionate and irrational. What is more, the majority also found, through Lord Sumption’s opinion, that the order did not arise out of a matter of necessity when less drastic measures were considered to provide protection in relation to other Iranian banks.

In Internet and Mobile Association, the Supreme Court held that it could not go as far as the UK Supreme Court had in Bank Mellat, because the UK has a statute where standards for judicial review are clearly set out. This finding though is perplexing because the Supreme Court has previously held in Modern Dental that the doctrine of proportionality, and the four-prong test it entails, is inherent in Article 19 itself. In any event, having said so, the Court, in Internet and Mobil Association, nonetheless proceeded to examine the circular on the doctrine. It did this not by testing the circular on each prong as laid down in Modern Dental, but only on the question of whether the RBI considered alternative and less intrusive measures than that which the circular adopted. To this, however, the court added an additional test, seemingly derived from a 1969 judgment in Md. Faruk v. State of MP. There, a constitution bench of the Court had held that when a right under Article 19(1)(g) is encroached upon by a complete prohibition of any activity, the State must show the court that the nature of such an activity is either inherently pernicious or has a capacity or tendency to be harmful to the general public.

Before proceeding with an analysis on these lines, though, the Court made two critical interventions. First, it held that given that a person who is denied access to banking services faces onerous consequences, including the effective shutting down of his or her trade, the burden in this case is on the RBI to show that its circular does not unreasonably infract on the petitioners’ rights. Second, it rejected the RBI’s argument that there is, in fact, no fundamental right to trade, sell and invest in VCs and therefore that the petitioners could not invoke Article 19(1)(g). This is because there was no legislation, as on date, that prohibited the use of VCs. Given that, to thwart any exchange that facilitates such functioning by altogether denying them access to banking services would certainly constitute an encroachment on fundamental right. The only question was whether such a restriction is a reasonable one or not.

On that, the court proceeded to examine whether there were less intrusive measures available and whether RBI had considered the adoption of such measures. Potential solution that could have been considered, the judgment held, includes those suggested by the EU’s Parliament: a report by the Union, that examined whether cryptocurrencies ought to be banned outright, for example, recommended that no such ban was necessary so long as good safeguards were in place “protecting the formal financial sector and more in general society as a whole, such as rules combating money laundering, terrorist financing, tax evasion and maybe a more comprehensive set of rules aiming at protecting legitimate users (such as ordinary consumers and investors.”

The RBI, the court held, clearly did not consider such alternatives before issuing the circular, but it had, after the writ petitions were filed, done so by providing specific rebuttals to the petitioners’ contentions. In the court’s belief, once the RBI has applied its mind to the issue and considered alternatives measures it could not sit on judgment over whether such measures are merely illusory. It noted: “While exercising the power of judicial review we may not scan the response of RBI in greater detail to find out if the response to the additional safeguards suggested by the petitioners was just imaginary.” This is disappointing. The test, as laid down in Modern Dental, as we saw earlier, is to examine whether “there are alterative and less intrusive measures available that may similarly achieve that same purpose with a lesser degree of limitation.” The test isn’t, as the court held here, whether the state authority considered alternative measures, but whether such measures as a matter of fact do exist.

Yet, the court still held, based on an application of the judgment in Md. Faruk, that none of the entities under the direct regulatory control of the RBI—the nationalised banks, the scheduled commercial banks, cooperative banks or NBFCs—had suffered any actual harm or loss either directly or indirectly on account of their dealings with the exchanges that have facilitated trading in VCs. Moreover, the RBI, the judgment found, submitted no empirical data on the degree of harm occasioned by dealing with these traders. And in the absence of such data, as the Court had held previously, in State of Maharashtra v. Indian Hotel and Restaurants Association (2013), the State could not be held to have discharged its burden. Therefore, the court held, that the circular offended the doctrine of proportionately and was in violation of Article 19(1)(g).

There are a number of positives to take from the judgment. Not least the reaffirmation of the doctrine of proportionality as the bright-line rule to determine claims made under Article 19, and the actual application of principle to facts. Remember, in Anuradha Bhasin v. Union of India, the court invoked the doctrine but still didn’t apply it to the facts before it. Here the court doesn’t shy away from doing so, and for that it must be lauded. What is more, given that the circular under challenge here was in the nature of a statutory direction any eventual legislation that seeks to regulate cryptocurrencies—or perhaps even ban their use and trade—will have to still conform to the doctrine of proportionality. But when the court tests such a law, it must go further than this. It must also ask the State to show it that it not merely considered all potential measures to regulate the currency but that the eventual measure adopted was, in fact, the least invasive one.

Civil Rights at the Bar of the High Courts: Section 144 in Karnataka, Privacy in UP

On 13th February 2020, in Sowmya Reddy v State of Karnataka, the High Court of Karnataka held that the imposition of Section 144 throughout the city of Bengaluru for a period of three days, had been unconstitutional. The Section 144 order had been imposed between 19th and 21st December 2019, in the wake of anti-CAA protests. The arguments before the High Court took a now-familiar form: the petitioners argued a violation of the rights to free speech and assembly, while the State responded by citing law and order concerns, and asked the Court to defer to administrative assessment of the on-ground situation.

In a closely-reasoned opinion – that proceeded primarily on procedural grounds – a division bench led by Oka CJ. struck down the order, but also clarified some important points with respect to the scope and limits of the State’s discretion when acting under S. 144 to ban protests and assemblies. Noting the importance of the fundamental rights at issue, Oka CJ. reiterated the “least restrictive” standard that had recently been affirmed by the Supreme Court in Anuradha Bhasin (paragraph 15). In this case, however, there was no necessity for the Court to test whether banning protests throughout the City of Bengaluru met the “least restrictive” standard, as the S. 144 order suffered from multiple procedural flaws.

The Section 144 order was based on eight letters that the Deputy Commissioners of Police [“DCPs”] had addressed to the Commissioner of Police (who, under Section 144, also acts as the District Magistrate – the competent authority to issue orders). The Court found that these letters were worded in more or less identical terms, and generically spoke about how, in the course of protests against the CAA/NRC, “anti-social elements” might take the opportunity to damage public property and breach law and order. The District Magistrate/Police Commissioner’s S. 144 Order effectively reproduced the content of these letters. Now, Section 144 of the CrPC requires the District Magistrate to form an “opinion” that such an Order is required, with “material facts” to justify it. As Oka CJ. noted, however, the impugned Order did not record an “opinion”: it simply reiterated reliance on the police reports (without any accompanying enquiry), and did not set out any material facts (paragraph 18).

On a survey of precedent – and especially Anuradha Bhasin – Oka CJ. went on to observe that the “objective parametres” upon which the “subjective satisfaction” of the District Magistrate/Commissioner was to be based included (a) the least restrictive standard, (b) proportionality, and (c) the existence of an “urgent situation”. The “reasons” accompanying a Section 144 Order, thus, would have to demonstrate that these objective parametres had been considered by the Authority, and how that had been done so (paragraph 22). In this case, it was obvious on the face of it that none of this had been done (paragraph 23) – and in fact, this was doubly problematic because – as had been held in Anuradha Bhasin – the absence of reasons made it essentially impossible for aggrieved parties to mount a challenge (because how do you challenge an order without knowing the grounds on which it has been issued?) (paragraph 26). The Court also rejected the attempts of the State to supplement its reasons during the hearing, noting that if an order was made on certain grounds, then the reasons would have to be reflected in the order – they could not be “improved on” later, if a challenge was made.

The Court ended by noting that even if the State had provided grounds, the Section 144 order clearly violated the parametres laid out in Anuradha Bhasin (paragraph 30). The Court did not, however, go any further into the question (as it did not need to). The actual finding, therefore, remained confined to the procedural argument. Thus, what flows from the judgment of the High Court is the following: at the minimum, a Section 144 order must (a) reflect the material facts and the reasons underlying its passage; (b) these reasons cannot be generic in nature (“in the interests of maintaining law and order” etc.), but must cleave to the constitutional standards set out in Anuradha Bhasin (least restrictive standard, proportionality, urgent danger); and (c) the reasons are subject to judicial review (although that was unnecessary in this case, as the State had failed on both (a) and (b)).

The importance of Oka CJ.’s judgment is that it reiterates the centrality of the “culture of justification”, that we have discussed previously on this blog. Recall that the culture of justification – borrowing from South African scholar Etienne Mureinik – posits a culture in which “every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command.” The culture of justification, obviously, is redundant if S. 144 orders can be passed mechanically, if they can simply reiterate the clauses already there in the Constitution (“security of the State”, “public order” etc.), and  if the State can avoid scrutiny by simply invoking deference and refusing to explain itself. It is that manner of impunity that the Karnataka High Court judgment seeks to address.


More recently, earlier today, the Allahabad High Court passed an important judgment on an issue that it took up suo motu yesterday. After the CAA protests in UP, the government had passed orders directing individuals that it alleged were responsible for destruction of public property, to pay financial compensation for the said destruction. The legality of these orders – that purport to flow from a 2009 Supreme Court judgment – is currently itself under challenge before the SC. In the meantime, however, the UP government put up hoardings and banners in prominent public places in Lucknow, where it identified the accused individuals, with their names, photographs, and addresses spelt out, ordering them to pay compensation or have their properties confiscated.

In a brief, lucid, and tightly-reasoned judgment, a bench of Chief Justice Govind Mathur and Ramesh Sinha J. found this to be a gross violation of the fundamental right to privacy. Before the Court, the State argued that the purpose of the hoardings was to “deter the mischief mongers from causing damage to public and private property.” As the Court noted, however, the State’s action was entirely without statutory foundation:

Under the Code of Criminal Procedure, 1973, the power is available to a Court to publish a written proclamation requiring appearance of a persons against whom a warrant has been issued and such person is concealing himself to avoid execution of warrant. No other power is available in the Code to police or the Executive to display personal records of a person to public at large. There are certain provisions empowering the investigating agencies or other Executives to take picture of accused for the purpose of their identification and record but that too is not open for publication. The only time these photographs be published is to have assistance in the apprehension of a fugitive from justice.

In other words, therefore, given the serious privacy harms at issue when personal data is forcibly taken by the State – and made public – existing law only allowed for that in a set of narrowly-tailored circumstances: for example, look-out notices against individuals hiding from the court process. Even where personal data was required for identification (such as, for example, in the Identification of Prisoners Act), it could not be made public.

Mathur CJ then linked this with the constitutional guarantee of privacy, invoking the Puttaswamy judgment to observe that any breaches of privacy would have to meet the tests of legality, proportionality, and procedural safeguards. Legality had already been violated, in the absence of a statute. With respect to proportionality, Mathur CJ held that the State action clearly violated the “necessity” prong of the proportionality standard:

On scaling, the act of the State in the instant matter, we do not find any necessity for a democratic society for a legitimate aim to have publication of personal data and identity. The accused persons are the accused from whom some compensation is to be recovered and in no manner they are fugitive. Learned Advocate General also failed to satisfy us as to why placement of the banners is necessary for a democratic society for a legitimate aim.

And as far as the State’s justification of deterrence went, the Court noted that it failed the simplest test of internal consistency:

… learned Advocate General failed to satisfy us as to why the personal data of few persons have been placed on banners though in the State of Uttar Pradesh there are lakhs of accused persons who are facing serious allegations pertaining to commission of crimes whose personal details have not been subjected to publicity. As a matter of fact, the placement of personal data of selected persons reflects colorable exercise of powers by the Executive.

The State, therefore, was directed to remove the hoardings, as they constituted a disproportionate invasion of the right to privacy.

The judgment of the Allahabad High Court is an important one, as it is one of the first judgments after Puttaswamy to apply the proportionality standard under Article 21, and follow through to its logical conclusion by invalidating the State action under consideration. Mathur CJ.’s judgment expressly measures executive action against both the legality and proportionality standards, assesses the justifications offered by the State’s counsel, and finds them lacking. Going forward, therefore, it provides a model of judicial reasoning rights-adjudication post-Puttaswamy.


The judgments of the Karnataka and Allahabad High Court raise a few important points for consideration:

  • These judgments demonstrate the importance of the proportionality standard – if applied rigorously – to civil rights cases. In both judgments – one drawing from Anuradha Bhasin and one drawing from Puttaswamy – State action was found to fail constitutional standards.
  • The power of the proportionality standard lies in how it compels the State to justify its actions, within a clearly defined constitutional framework. In the Section 144 case in Karnataka, the State did not provide and justification at all. In the hoardings case in UP, the State’s justification (deterrence) fell apart with some basic questioning.
  • Both cases demonstrate the importance of rigorous judicial review in civil rights cases. It is important to note that neither the Oka CJ nor Mathur CJ were being “activist” in any sense: even on a basic application of the constitutional tests, executive action was found to be an abuse of power.
  • However, that said, the Karnataka HC’s judgment came two months after the Section 144 order. The Allahabad HC’s judgment was substantially quicker, but nonetheless – presumably – a significant amount of damage had been done already. Presumably, the utility of these judgments lie in the fact that they set out constitutional principles for future cases; however, in the teeth of a recalcitrant executive, there is every chance of future breaches that – again – can only be brought to court after the damage is done. For this reason, in cases where there is clear executive abuse (as there was here), it is worth considering the imposition of costs upon the State or upon the erring public officials, in order to achieve genuine deterrence, and future compliance with constitutional standards.

[Disclosure: The author assisted counsel in one of the petitions before the Karnataka High Court.]