Coronavirus and the Constitution – XIX: The State Disaster Risk Management Fund and the Principle of Equal Distribution [Guest Post]

April 30, 2020 Gautam Bhatia4 Comments

[This is a guest post by Devesh Kumar.]

Federal grants to states are necessary as no system of distribution can possibly meet the need for natural development and social services, which are usually the responsibility of states. In order to meet the requirements, the central government provides the finances in the form of grants to state governments. The federal structure of Indian Constitution [“Constitution”] lays down many institutional strategies for fostering intergovernmental cooperation between the centre and states. For an instance, under Article 275, the Central government shall make grants-in-aid to States as per Finance Commission’s recommendations. Such grants are given to those states which are in need of financial assistance.

These federal grants become extremely necessary for a state during emergency situations like the COVID-19 pandemic where the state government itself cannot handle such a situation. Keeping this in mind, the Central government on 3^rd April 2020 released Rs 17,287.08 crore to different states to enhance their financial resources to deal with the various challenges in the fight against this pandemic. The grant includes Rs 6,195.08 crore towards ‘revenue deficit grant’ under the recommendations of the 15th Finance Commission to 14 states, and Rs 11,092 crore in advance under the State Disaster Risk Management Fund [“SDRMF”] to states to build quarantine facilities.

However, this distribution of funds is very contentious. Kerala, one of the worst affected states, received a mere Rs 157 crore under SDRMF. On the other hand, Rs 802 crore was allocated to Odisha, a state with far fewer reported cases and migrants, which is 5 times the allocation of Kerala. So, why is there such inequality and is it justified under the Constitutional framework? If not, then what must be done in order to rectify such a mistake? In this blog, I shall try to answer these questions.

Concept of Grants- in- aid under the Constitution of India

The idea of fiscal need has been borrowed from Australia. Section 96 of the Constitution of Australia provides that Special grants are justified when a state, through financial stress from any cause, is unable efficiently discharge its functions as a member of the federation. In India, the Parliament has the power to make such grants under Article 275 and 282 of the Constitution. Article 282 states that ‘the centre may make grants for any public purpose notwithstanding that the purpose is not one with respect to which Parliament may make laws.’ Such grants are used for a number of purposes like promoting state action in all significant areas of the nation; even the centre may give grants as an incentive to the states. Thus, the financial resources of the centre and states are pooled together with a view to achieve certain preferred national goals, such as fighting COVID-19 together.

Under Article 275 of the Constitution, the central government can provide statutory grants to states. Such grants are given to those states which are in need of financial assistance, in the form of unconditional grants. Currently, the central government distributed the funds to all state governments under this provision, since the SDRMF is a statutory fund provided under Article 48 of the Disaster Management Act, 2005 and the 15^th Finance Commission has recommended for such grants to the tune of 28, 983 crores for the year 2020-21.

Recognizing the problem of financial imbalances, the Constitution empowers the Finance Commission to resolve such imbalances by making recommendations on tax devolution and grants in aid of revenues. The analysis of intergovernmental transfers shows that that the tax devolution and grants given on the recommendations of the Finance Commission have a strong equalizing element. However, in the case of COVID- 19 funding, the purpose of establishing the Finance Commission seems defeated. As stated earlier, the grants categorized by the Finance Commission do not seem fair and equalizing. Therefore, we need to look into the constitutionality of such grants.

The Finance Commission recommendations and test of its Constitutionality

Eminent jurists such as H.M. Seervai identified fiscal independence as one of the features of the federal character of the Constitution. The principle of federalism is well-founded in the recommendations, as under Article 280(3) it decides the share of revenue, grants, etc. The Finance Commission recommendations include both the vertical and the horizontal devolution of union revenue. In the present case of vertical devolution, the criteria adopted by the commission have caused the decrement in the transfer to a few states like Kerala. This has caused serious implications on the autonomy of states in terms of their financial powers.

The Constitution of India envisages the sharing of tax between the centre and state, where the centre has to share some portions of its tax with the states. The objective of federal transfer is fiscal equalization and the Commission (as an expert body) has to make recommendations in a fair and equitable manner. The right to equitable distribution incorporates the concept of equality, which is fundamental to republicanism and the rule of law. The recommendations, being a constitutional mandate on the Finance Commission under Article 280(3), evidently attract the principle of equitable distribution based on equality. Hence, the Commission is obligated to take into account the above principles of federalism and equality.

Where did the Finance Commission go wrong?

The total SDRMF allocation for the year 2020-21 is Rs 28,983 crore. The latest release for the response to COVID-19 is Rs 11,092 crore; this sum is split into the ratio suggested by the 15th Finance Commission. The allocation formula for the fund was changed, and the 15th Finance Commission proposed a new system before the COVID-19 crisis. The criteria inter alia include previous expenditure, population and area of the State. Unfortunately, the Finance Commission did not consider any specific criterion pertaining to COVID-1,9 like number of confirmed cases. As a result, its findings are odd in this context as Kerala receives Rs 53 lakh per patient while Odisha receives some Rs 160 crore per patient. Therefore, the after-effects of 15^th Finance Commission recommendations show that the formula used by the Commission was arbitrary and results in the violation of equitable distribution of the revenue.

The Finance Commission’s goals include inter alia equity principle, efficiency, predictability and stability, where its transfers are meant to rectify the horizontal imbalances among the states. The preamble of the Constitution guarantees the equality of status and of opportunity. Therefore, D.D. Basu in his commentary on the Constitution of India (ed. 8, p. 9301) states that the Finance Commission, while discharging its duties, has to look into the needs of the states and come up with the principles to take account of various factors such as:

The budgetary need.
The promotion of activities of national importance.
The special needs of a particular state, etc.
The need of equalizing the social services and administration standards to a national level.

These transfers aimed at bringing equalization serve as a valuable aid to the stability of a federation and the citizenship rationale. The foregoing assertion is based on a premise that no matter wherever a citizen lives, she should have access to certain important economic and social rights.

Further, the doctrine of equality enshrined in the Constitution is fundamental to the rule of law and therefore is the basic feature of the Constitution. Such equality has been breached in present case since relevant considerations pertaining to pandemic are not being taken into account has led to the arbitrary decision. The funds were distributed rather taking into account the irrelevant considerations such as geographical area, population etc. Therefore, recommendations based on irrelevant parameters violate the right to equality of residents of Kerala. Now, in order to rectify the same, the Finance Commission must change the parameters and include relevant parameters like number of confirmed cases as suggested by the opposition. However, this process would be time-consuming and such delay will not serve the purpose. Therefore, the centre must adopt the other way of providing grants to the discriminated states by drawing its power from Article 282 of the Constitution.

The Way forward

In the current situation where various states are facing financial stress, it is the responsibility of the central government to provide them discretionary grants allowed under Article 282 of the Constitution. As discussed above, such grants are discretionary in nature and it depends upon the will of the central government to grant the same. However, the centre cannot do away from its responsibility by merely citing its discretion. There are many instances (here, here and here) where the Supreme Court and High Courts in India have struck down the unfettered discretion of the authority. In a democratic country like India, unfettered discretion should not exist with any organ of the state. Going by same reasoning, the central government should not be allowed to use its unfettered discretion without looking at relevant considerations. Therefore, in present situation of financial distress, discretionary grants must be provided to the States that are in need of such finances.

The Supreme Court’s Madhya Pradesh Government Formation Judgment – IV: A Response to Anmol Jain (2) [Guest Post]

April 29, 2020 Gautam Bhatia3 Comments

[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 the fourth post in the series examining the Supreme Court’s judgment in Shivraj Singh Chouhan v Speaker, Legislative Assembly of Madhya Pradesh and Ors. This is a guest post by Nivedhitha K.]

In this essay, I respond to Anmol Jain’s post on the recently delivered judgment in Shivraj Singh Chouhan & Ors. v. Speaker, Madhya Pradesh Legislative Assembly & Ors. The facts of the case were summarised in the previous post. The crux of the case was: whether the 14^th March 2020 communication of the Governor directing a floor test on 16^th March was constitutional. Thus, the question that needed to be answered was whether the Governor had the power under the Constitution to direct a floor test to be conducted.

I will divide the post into two sections. In the first section, I will rebut the argument that the discretionary power of the Governor under Article 163 can only be exercised concerning those functions that are expressly within his discretion, under the Constitution. I will argue, invoking the doctrine of necessary implications, that the Governor can exercise his discretionary powers even when such powers have not been expressly conferred under the Constitution. In the second section, I will argue that the submission of the author that the bench’s reliance on Bommai and Rebia is misplaced is erroneous. I will argue that Bommai is a precedent for the exercise of guided discretion by the Governor, when he is met with a situation of political uncertainty such as in this case. I will then argue that in the subsequent reliance on Rebia, the author in contravention to his earlier stand, admits an exception for the exercise of discretionary power when the situation is unworkable. I will conclude by referring to the observation in Shivraj on the importance of the due process of no-confidence motion, as opposed to conducting a floor test through the direction of the Court/Governor.

Power to Direct a Floor Test under Article 174 r/w 175(2)

Anmol’s preliminary point of argument is that the Court holds that the power to direct a floor test falls under Article 163 of the Indian Constitution. I rebut this point. The Governor’s power to direct a floor test is inherent under Article 174 r/w 175(2) and not Article 163.

An excerpt from the communication of the Governor to the Chief Minister is below:

“………, it is necessary for you to gain the trust vote in Vidhan Sabha immediately after my speech on 16.03.2020. In this regard, I by exercising the powers conferred by Article 174 r/w 175(2) of the Constitution and other Constitutional powers vested in me…..”

When the Court held that the communication of the Governor was not ultra vires the Constitution, it accepted the plea that Article 174 r/w 175(2) is the repository of power to direct a floor test.

Article 174 gives the Governor the power to summon, prorogue, or dissolve the Assembly. He used this power to direct that the ‘Session of Madhya Pradesh Vidhan Sabha will begin on 16th March 2020 w.e.f. 11 a.m. in the morning.’ Article 175(2) states that the Governor may send messages to the Assembly with ‘respect to a Bill then pending in the Legislature or otherwise and the house shall with all convenient dispatch consider any matter required by the message to be taken into consideration.’ The Governor relied on this provision to direct that ‘after my speech, only one work will be done i.e. trust vote.’

My argument is that the Governor has the power to direct a floor test under Article 174 r/w 175(2) and that Article 163 does not provide the power to the Governor but merely guides the exercise of power. Article 163(1) states that “There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.” A plain reading of Article 163 is sufficient to conclude that the Governor must exercise his power usually at the aid and advice of the Council of Ministers unless ‘he is by or under this Constitution required to exercise his functions ….in his discretion’. Therefore, aid and advice is the rule and discretionary exercise of power is the exception. To identify the ambit of discretionary exercise of power, it is necessary to interpret the words ‘except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.’

The Drafting History of Article 163

Anmol refers to the Constituent Assembly debates where the members observed that the Governor shall exercise discretion only when specific functions are expressly stated to be exercised through discretion. Indeed, an amendment was introduced by Mr. Kamath to remove ‘except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion’ from Article 163 (Article 143 in the draft Constitution). Mr. Krishnamachari, Mr. Alladi Krishnaswamy Iyer, and Dr. Ambedkar argued that it was only a question of drafting and that Article 163 was a general provision for the exercise of discretionary powers by the Governor which have been specifically provided under other provisions of the Constitution. Alladi Krishnaswamy Iyer observed:

Sir, there is really no difference between those who oppose and those who approve the Amendment. In the first place, the general principle is laid down in Article 143 namely, the principle of ministerial responsibility that the Governor in the various spheres of executive activity should act on the advice of his ministers. Then the Article goes on to provide: ‘except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.’ So long as there are Articles in the Constitution which enable the Governor to act in his discretion and in certain circumstances, it may be, to over-ride the cabinet or to refer to the President, this Article as it is framed is perfectly in order.

In this context, there was repeated reference to Articles 175 and 188 of the draft Constitution. Dr. Ambedkar stated that if the House decided to divest the Governor of his discretionary power when provisions that specifically provided discretionary power to the Governor with regard to certain functions such as Articles 175 and 188 were taken up for debate, the general discretionary clause under Article 143 (now Article 163) could be deleted:

I personally myself would be quite willing to amend the last portion of clause (1) of Article 143 if I knew at this stage what are the provisions that this Constituent Assembly proposes to make with regard to the vesting of the Governor with discretionary power. My difficulty is that we have not yet come either to Article 175 or 188 nor have we exhausted all the possibilities of other provisions being made, vesting the Governor with discretionary power. If I knew, I would very readily agree to amend Article 143 and to mention the specific Article, but cannot be done now.

The proviso to Article 175 of the draft Constitution (now Article 200) stated that the ‘Governor may, in his discretion, return the Bill together with a message requesting that the House will reconsider the Bill or any specified provisions thereof … and that if the Bill is passed again with or without the amendment, the bill will have to be assented to by the Governor.’ Dr. Ambedkar introduced an amendment to remove the phrase ‘discretion’ from the provision. Commenting on the introduction of the amendment, he stated that ‘in a responsible government there can be no room for the Governor acting on discretion’. The amendment was accepted, and it led to the present form of Article 200 without the phrase ‘discretion’. Similarly, Article 188 specifically provided the Governor with the discretionary power to exercise his functions without the aid and advice of the Council of Ministers for two weeks if a grave emergency that threatened the peace and tranquillity of the State had arisen. Then, the President might – if he was satisfied – assume to himself the functions of the State. Dr. Ambedkar moved an amendment to delete Article 188 of the draft Constitution. He was of the view that the discretionary power for a short period was ‘futile’ if the President was going to take over after two weeks. This amendment was also accepted. The Governor was also – earlier – expressly provided discretion in the appointment and dismissal of his ministers (Art 144(6)), summoning and dissolution of the legislature (Art 153), the appointment of the Provincial Auditor –in- chief (Art 210) and members of the Public Service Commission (Art 285). Discretionary clauses in all these provisions were deleted.

Mr. Kamath brought to the notice of the House the reassurances of Dr. Ambedkar that Article 163 would be appropriately amended if the specific discretionary powers in the subsequent provisions were removed. However, Article 163 was intact in its entirety in the final text of the Constitution. The only matter in which the Governor was expressly required to act in his discretion was with regard to the administration of tribal areas in Assam for a transitional period. Therefore, the final text of the Constitution provided for complete ministerial responsibility. It is thus clear that the debates and the final text of Article 163 have no nexus between them.

The interpretation of the phrase ‘by or under the Constitution’ solely relying on the Constituent Assembly debates is erroneous for the following reasons. Firstly, though through a period, the Constituent Assembly debates have been accepted as an aid for interpretation, it cannot override the text of the Constitution. In this case, the debates on Article 163 and the final text of the provision share no nexus. And secondly, an interpretation that makes the Constitution workable will have to be used. If Anmol’s interpretation is accepted, it would render the clause providing general discretionary power in Article 163 redundant since the unamended Constitution did not specifically provide for discretionary exercise of power concerning any of the Governor’s functions.

Reports of Sarkaria Commission and Punchhi Commission

The Sarkaria Commission had interpreted the discretion exercisable by the Governor by the Constitution to include two classifications: (1) through express provisions; (2) through necessary implication. According to the Commission, the phrase under the Constitution means the discretion exercisable by virtue of the rules made under the Constitution. By the amended Constitution, the Governors have been required to expressly act in their discretion with respect to the administration of Arunachal Pradesh, Assam, Meghalaya, Mizoram, Nagaland and Sikkim. The Commission, echoing the words of Pandit Das Bhargava in the Constituent Assembly, observed that there might be situations in which it would not be possible or practicable for the Governor to receive the advice of the Council of Ministers. In such cases, the Governor’s discretionary power can be interpreted through necessary implication. A few of the examples mentioned in the Commission’s report are the appointment of the Chief Minister after an election under Article 164(1), submission of report under Article 356 on the breakdown of the constitutional machinery in the State, and recommendation of a bill for the consideration of the President under Article 200. These views have been accepted by the Punchhi Commission as well.

Power to Exercise Discretion through Necessary Implication

Let us now look at the text of the Constitution independent of the Commission’s report to ascertain as to whether the discretionary power exercisable by the Governor can be read through necessary implications. Article 163(2) states that ‘if any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.’ If the discretion was only purported to be restricted to express discretionary provisions, the question of the ambiguity of exercisable discretion itself would not arise.

Let us examine two factual situations to identify if excluding the reading of the discretionary power of the Governor through necessary implication would lead to an unworkable Constitution. For the first situation, let us take the example of the latest political crisis in Maharashtra in December 2019. None of the parties had the majority to form the Government, and the coalition among the parties was in the nascent stage in the first week after the election. In that case, there was no council of ministers to aid and advise the Governor on whether there was a breakdown of the Constitutional machinery for him to send a report to the President under Article 356 of the Indian Constitution. For the second situation, let us take the example of the political crisis in Madhya Pradesh in March, 2020. It seemed that the Government no more exercised a majority after twenty-two MLAs submitted their resignations, of which only six were accepted. The numbers were enough for the Governor to form a prima facie objective opinion that the Government might not be enjoying a majority. Let us assume that the Assembly was not in session for another month – unlike the instant case where the Assembly was already summoned for 16 March 2020. In that case, if interpreted to mean only expressly provided discretionary power, the Governor would not hold the power to summon the House unless he was advised by the Council of Ministers – which might be too far-fetched to expect, since it was their majority that would have to be tested in the house. Pandit Das Bhargava brought these contingent situations to the knowledge of the House when he observed: ‘It is quite right that so far as our conception of a constitutional Governor goes he will have to accept the advice of his ministers in many matters but there are many other matters in which the advice will neither be available nor will he be bound to accept that advice.’

The majority in Rebia recognised the fallacy of restricting the discretionary power of the Governor to express provisions and observed that there might arise a situation when the Chief Minister no more enjoyed the majority in the House. If the Governor could arrive at an objective opinion that a doubt was cast on the numbers of the ruling party, the Council of Ministers would lose their legitimacy to advice the Governor. In this context, it was observed:

The above position (of aid and advice) would stand altered if the Government in power has lost the confidence of the House. …….. However, where there is reason to believe, that the Government in power no longer enjoys majority support, it is open to the Governor, to take steps to determine the issue of majority by a floor test……….. We find no justification in taking a different view, than the one expressed by the Justice Sarkaria Commission report, conclusions whereof were reiterated by the Justice M.M. Punchhi Commission report. We endorse and adopt the same, as a correct expression of the constitutional interpretation, insofar as the present issue is concerned.

Reliance on Bommai and Rebia

Anmol argues that reliance on Bommai and Rebia by the Court was misplaced. With regard to Bommai, he argues that it is not a precedent for the direction of the floor test by the Governor. He argues that the decision leaves open the question of the process through which the Chief Minister is to prove his majority. Even if assuming for the sake of argument that Bommai did not support a Governor-directed floor test as the only means of testing if the Chief Minister enjoyed the confidence of the House, Bommai would not be immaterial for the adjudication of a factual situation such as Shivraj. According to Bommai, the Governor through his discretionary power could send a report to the President under Article 356 only after he fulfilled his duty of summoning the House and calling the Chief Minister to prove his majority- except when he was faced with a violent situation in the House. Therefore, in Bommai it was observed that the Governor could summon the house even without the aid and advice of the Council of Ministers. If anything, Bommai is a validation of interpreting the discretionary power of the Governor through necessary implications.

No-confidence Motion and Floor Test

Anmol argues – based on Rebia – that even when the Assembly is not in session, ‘no-confidence motion remains significant for initiating the process, and based on this motion, the Governor is empowered to act even against the aid and advice of the Council of Ministers.’ His argument here is two-fold: one, the initiation of the process to prove the confidence of the House must only be through the no-confidence motion, both when the Assembly is in session and is not in session. Second, when the Assembly is not in session, the initiation of the process should be through a no-confidence motion, but the Governor can act against the aid and advice of the Council of Ministers, if through the advice, the Council of Ministers attempts to by-pass proving the majority. In this argument, the author concedes that there may arise situations in which the advice of the Council of Ministers cannot be accepted. Accepting the advice in these situations would abrogate the principle of ministerial responsibility. Therefore, the author has himself carved out an exception for exercise of discretionary power if the situation is unworkable. This is the basis of deducing discretionary power through necessary implications.

His argument that even if the Assembly is not in session, the process of proving the majority has to be initiated through a no-confidence motion is erroneous. According to Rule 143 of the MP Assembly Rules, to introduce a no-confidence motion a member shall seek leave from the Speaker to introduce the motion and on the very same day give a written notice to the Secretary General. For grant of leave for motion, atleast 1/10^th of the total number of members must vote in favour of the motion. On grant of leave, the Speaker shall allot a date within 10 days from the date on which the leave is sought. Therefore, it is evident that the no-confidence motion can be initiated only when the Assembly is in session. Thus, if there is a surge of political uncertainty when the Assembly is not in session, the first step is not to initiate a no-confidence motion but rather to summon the Assembly. If the interpretation of the author on the express discretionary power of the Governor is accepted, then neither can a no-confidence motion be initiated by the member nor can a floor test be directed by the Governor.

The bench in Shivraj seemed to be wary of the possible misuse of the discretionary power of the Governor to direct a floor test. It stated that the usual mode of proving the majority is only through a no-confidence motion:

In exercising the constitutional authority to demand a trust vote, the Governor must do so with circumspection in a manner that ensures that the authority of the House to determine the existence or loss of confidence in the government is not undermined. Absent exigent and compelling circumstances, there is no reason for the Governor to prevent the ordinary legislative process of a no confidence motion from running its due course. (paragraph 45)

However, the bench did not expound the meaning of the phrase ‘exigent and compelling circumstance’. It was ultimately held that the communication of the Governor was intra vires the Constitution. Therefore, it can be presumed that the Court regarded the instant factual situation to fall within the ambit of ‘exigent and compelling circumstance’. If the Governor had not directed for a floor test, then by virtue of the procedure under the MP Assembly Rules, even if leave was granted for no-confidence motion (since the session was in anyway to begin on 16^th March), a 10 day cap for the no-confidence motion would be too long a period for the Assembly to function during the COVID-19 pandemic. In the instant case, the Assembly was also adjourned on 16^th May, preventing the possibility of granting a leave for no confidence motion. Though there is no such reasoning in the judgment that the ‘exigent circumstance’ in the instant case was the surge of the COVID-19 pandemic, one can merely presume that these were the factors that guided the court.

[Disclaimer: The author is an intern in the office of Dr. DY Chandrachud J. Views are personal, and she did not substantially assist in the case.]

The Supreme Court’s Madhya Pradesh Government Formation Judgment – III: A Response to Anmol Jain [Guest Post]

April 27, 2020April 27, 2020 Gautam Bhatia3 Comments

[This is the third post in the series examining the Supreme Court’s judgment in Shivraj Singh Chouhan v Speaker, Legislative Assembly of Madhya Pradesh and Ors. This is a guest post by Amlan Mishra.]

The judgement of the Supreme Court on the Madhya Pradesh political crisis, which occurred in March, has been discussed on this blog. This piece by Anmol Jain seeks to critique the judgement for bringing the question of ‘whether confidence is lost or not’ under the purview of the Governor’s discretion. He argues that Art. 174 and 175 r/w Art. 163 (sending messages/directions and summoning the Legislature using the Governor’s discretion) provide for exercise of discretion only in those situations explicitly provided by the Constitution. Anmol stresses that while directing a government to face a no-confidence motion, initiated inside the house, is within the scope of the Governor’s ‘discretionary directions’, independently directing a trust vote when no such motion exists is beyond his discretion. In this post, I seek to argue that Anmol’s strict reading is not well founded. For there could be scenarios (like in this case) where the government may adopt delay tactics in order to deter any political process (like a no-confidence motion) aimed at holding it accountable from taking place. Lastly, I would also assess how the court navigated the political thicket in this case.

On Discretion

It is well-recognised that the Governor’s role is to form a government which enjoys support in the legislature. It has been held in Rameshwar Prasad v. Union of India, that the mere individual opinion of the Governor cannot be a ground for imposing President’s rule (under A. 356), but an attempt should first be made to test the government on the floor of the house. This means that the Governor has the duty to determine support on the floor of the house, before recommending invocation of A. 356. Here, the court also held that in a ‘parliamentary democracy of a state’, there should be at all times, either a democratic ‘popular’ government or the state should be under President’s rule. It stressed that no legislative assembly can be ‘live’ in the absence of an executive government. Thus the Governor should have means to resolve a situation when the ‘majority’ of a government is in question so that he can either invoke Art 356 or explore other means of forming a democratic government. This is a discretionary power inherent in A. 356 and in the collective responsibility of the Council of Ministers (A. 75). This discretionary power has been recognised more explicitly in Nabam Rebia v. Deputy Speaker. That is, of course, not to say that the power to make such a determination should be exercised at his whims or fancy.

This begs the question: should a Governor ‘interfere’ to resolve the question of majority or should he let political processes inside the legislative assembly resolve itself? Notice, if the process inside the legislature is likely to present an answer (eg. a no-confidence motion has been accepted by the Speaker and is to be scheduled soon), he need not interfere in the legislature. But where the political processes, for whatever reason, are unlikely to present an answer, he may issue directions ordering a floor test. He must do so, because political processes may not present an answer (i.e., establishing a majority), making it impossible for him to secure the continuance of a ‘popular government’. The above test of: ‘Are the political processes likely to present an answer?’ should then serve well in determining the boundaries of Governor’s exercise of discretion in cases where majority is suspect.

In this light, let us appreciate this extract from Nabam Rebia, which Anmol cites to buttress the central role of a ‘no-confidence motion’ before the Governor can ‘interfere’ by exercising his discretion:

The Chief Minister and his Council of Ministers lose their right to aid and advise the Governor, to summon or prorogue or dissolve the House, when the issue of the Government’s support by a majority of the Members of the House, has been rendered debatable. … And in such a situation, if there is a non-confidence motion against the Chief Minister, who instead of facing the Assembly, advises the Governor to prorogue or dissolve the Assembly, the Governor need not accept such advice.

Anmol highlights ‘the non-confidence motion’ to draw attention to the fact that Governor’s discretion kicks in only when a non-confidence motion is pending in the house. This I argue is a simplistic reading of this paragraph. Of course, the situation envisioned in the paragraph is one scenario where the Governor may refuse to dissolve/prorogue the house. But a purposive reading also means that he may use his discretion in directing a floor test, if the government uses delay tactics to not let the no-confidence motion be introduced. In other words, if political processes inside are proving inadequate or are being circumvented, he may use discretion in directing a floor test. Notice this follows logically from the paragraph. Putting a strict reading on it misses the purpose of the paragraph, which is to stop delay tactics by the government (like prorogation, adjournment etc) to avoid a test of its confidence. What if instead of prorogation (explicitly mentioned in this extract), the government resorts to adjournment to avoid testing its confidence, such that processes inside the legislature cannot present an answer? I argue that this being the situation in this case, the Governor’s discretionary directions were rightly upheld by the court.

Adjournment as a Delay Tactic: The Case of MP

Here, I show that in the MP Scenario, the government used adjournment to avoid the test, thereby creating a situation where political process could not throw up any answer to the question of majority. This legitimised THE Governor’s interference to settle the question. Notice this paragraph, in J. Chandrachud’s judgement, where he traces how adjournment made determination of ‘majority’ difficult:

The Chief Minister, adverting to the turmoil in the state, addressed a communication to the Governor on 13 March 2020 stating that the convening of the floor test would be a sure basis for resolving the conundrum. This is a strong indication that the Chief Minister himself was of the opinion that the situation in the state had cast his government‘s majority in doubt. However, upon the convening of the Legislative Assembly, no floor test was conducted, and the House was adjourned till 26 March 2020. These facts form the basis on which the Governor advised that a floor test be conducted. Based on the resignation of six ministers of the incumbent government (accepted by the Speaker), the purported resignation of sixteen more Members belonging to the INC, and the refusal of the Chief Minister to conduct a floor test despite the House having been convened on 16 March 2020, the exercise of power by the Governor to convene a floor test cannot be regarded as constitutionally improper.

This means that had the government not adjourned the house, and kept open the prospect of a no-confidence motion on the floor, the exercise of Governor’s discretion in this case would have been unwarranted. Since that did not happen, and instead, delay tactics were used, the Governor’s ‘interference’ in the legislature to check the political accountability of the government was justified.

Now, one can still argue that the Governor had sent directions on March 14^th even before the house could hold its first session (on 16^th March), and before any political process inside the legislature could begin. Thus, the argument may conclude that the Governor’s directions were untimely, as no delay tactics had been employed till them. However, the Governor kept reiterating his directions even after the adjournment of the house (made on 16^th March till 26^th March). This lent legitimacy to his directions, once the government started adopting delay tactics.

Avoiding the Political Thicket

Now, I wish to analyse how the court navigated the political thicket in this case. Courts traditionally have been wary of taking decisions which sway the balance in favour of a particular political party, and rightly so. Likewise in this case, the Congress Party and the Speaker argued that ordering an immediate floor test would ‘short-circuit’ the power of the Speaker in deciding the question of resignations of MLAs. This is important because unless the Speaker makes a decision about resignation before the floor test, all decisions about the disqualification/ resignation of MLAs may become irrelevant. Once the Government falls (as it did), the Speaker has very little time (before he is replaced) to decide on disqualification and resignation of MLAs. This chain of events may allow rebel MLAs to vote against their party whip, and still survive their disqualification, once the government changes (and there is a favourable Speaker).

It must be recognised (as has been argued in the blog here and here) that a remedy should have been fashioned which allowed the Speaker adequate time to decide these questions properly without ‘short-circuiting’ his decision. However, the court in this case failed to fashion such a remedy and merely noted that there is no explicit bar on the Speaker’s decision, and the floor test and these decision could run parallalely. Such a balance as Bhatia notes elsewhere is ‘not any balance at all’.

However, the court did try to equalise the setting by ordering a floor test the next day. The court noted that this would decrease the prospect of rebel MLAs sealing deals with the new government and thereby lessen the chances of them violating the Tenth Schedule (on defections). Readily ordered floor-tests are increasingly becoming a great, though unequal tool, to lessen subversion of democratic commitments and stop horse-trading. This also lessens unhelpful accusations of mala-fide in the functioning of the Governor (in sending directions to the Assembly) or the Speaker (in adjourning the assembly). Inherent in ordering an immediate floor test is the idea that despite bad faith by constitutional functionaries, the floor of the house if the place for determination of these questions and not the court-room.

Another attempt by the court was to allow interactions between the Speaker and the rebel MLAs through video-conferencing at a ‘neutral setting’ so that Speaker could take a decision on the resignations. This suggestion was declined by Sr. Adv. Singhvi because he did not have ‘instructions’ from his clients. However, this presents innovative ways of resolving political crisis, while allowing political processes to continue inside the legislature.

Overall, in my view, the Court did a decent job of delineating the discretionary powers of the Governor and tows a sensible line in navigating the political thicket.

The Supreme Court’s Madhya Pradesh Government Formation Judgment – II: On the Powers of the Governor [Guest Post]

April 25, 2020 Gautam Bhatia7 Comments

[This is the second in a three-part series examining the Supreme Court’s judgment in Shivraj Singh Chouhan v Speaker, Legislative Assembly of Madhya Pradesh and Ors. This is a guest post by Anmol Jain.]

Recently, the Supreme Court delivered a reasoned order affirming its directions dated March 19, 2020, where it had directed the convening of a session of the Madhya Pradesh Legislative Assembly for deliberation on a single agenda: ‘whether the government of the incumbent Chief Minister continues to enjoy the confidence of the House.’

To summarize the backdrop of the judgment in a very brief manner: on March 14, 2020, the Governor addressed a letter to the Chief Minister, directing the holding of a trust vote on the floor of the assembly on March 16 immediately after his speech. When the assembly convened on the 16^th, the trust vote did not take place and the assembly was adjourned till March 26 on account of COVID-19 outbreak. The Chief Minister justified this by stating that first, the directions issued by the Governor fell under the exclusive domain of the Speaker of the Legislative Assembly; and second, any message of the Governor to the Legislative Assembly must abide by Article 163 of the Constitution, which mandates the Governor to act under the aid and advice of the Council of Ministers. The Governor responded with no change in his stance and directed the Chief Minister to conduct a floor test on March 17.

In this light, the prime question before the Supreme Court was whether the Governor is empowered to issue a direction to the Chief Minister to hold a floor test and prove trust in his government. The Supreme Court responded in affirmative and found the discretionary powers under Article 163 of the Constitution to be the source. The Court also relied upon the decisions in S.R. Bommai and Nabam Rebia to reach its conclusions. In this post, I shall argue against the Supreme Court’s interpretation of Article 163, and show that its reliance on precedent was misplaced.

The Correct Reading of Article 163’s Discretionary Powers

To begin with, Article 163 reads as follows:

(1) There shall be a council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion …

After examining various speeches of the Constituent Assembly Debates – and the final wording of the Article – the Court concluded that ‘[t]he Constituent Assembly thus decided to vest the office of the Governor with certain discretionary powers under the Constitution’, without highlighting the limits of such discretion. This allowed the Court to observe that the scope of the discretion included the power to direct the government to hold a floor test when the Governor was satisfied that the government did not enjoy the confidence of the House. The Court based this upon the collective responsibility of the Council of Ministers to the House, and the obligation to ensure that the House fulfils its function to observe oversight over the affairs of the State:

In envisioning the role of the Governor as a constitutional statesman, care must be taken in course of interpretation to ensure that the balance of power which was envisaged by the Constitution between the executive and the legislature is maintained by the gubernatorial office.

While I shall comment later on the whether the Office of the Governor is apt for participating in the oversight function of the Government by directing a trust vote, the focus here is whether the Court was correct in its reading of the discretionary powers of the Governor. I suggest that it was not.

When the discussion on Article 143 (now 163) of the Draft Constitution was in place, Mr. H.V. Kamath moved an amendment to discard the clause conferring discretionary powers upon the Governor. He justified this amendment on two grounds: first, that the similarly envisaged Office of the President did not have such discretionary powers; and second, that after it was decided that the Office of the Governor would be a nominated post and not an elected one, then ‘it would be wrong in principle and contrary to the tenets and principles of Constitutional Government’ to have such discretionary powers. Mr. Kamath, as well as other members like Rohini Kumar Chaudhury, were here fearful of the past incidents where the Governors had utilized their powers to unsettle democratically elected governments.

The Court relied upon the fact that Mr. Kamath’s amendment was not accepted in an up-down vote to hold that there was no specific limitation of the Governor’s discretion that flowed from the text of Article 163. However, in the Constituent Assembly itself, T.T. Krishnamachari immediately clarified the true scope and meaning of the clause and his statement must be quoted in full for the necessary understanding of Article 163:

Sir, it is no doubt true, that certain words from this Article may be removed, namely, those which refer to the exercise by the Governor of his functions where he has to use his discretion irrespective of the advice tendered by his Ministers. Actually, I think this is more by way of a safeguard, because there are specific provisions in this Draft Constitution which occur subsequently where the Governor is empowered to act in his discretion irrespective of the advice tendered by his Council of Ministers. There are two ways of formulating the idea underlying it. One is to make a mention of this exception in this Article 143 and enumerating the specific power of the Governor where he can exercise his discretion in the Articles that occur subsequently, or to leave out any mention of this power here and only state it in the appropriate Article. The former method has been followed. Here the general proposition is stated that the Governor has normally to act on the advice of his Ministers except in so far as the exercise of his discretions covered by those Articles in the Constitution in which he is specifically empowered to act in his discretion. So long as there are Articles occurring subsequently in the Constitution where he is asked to act in his discretion, which completely cover all cases of departure from the normal practice to which I see my honourable Friend Mr. Kamath has no objection, I may refer to Article 188, I see no harm in the provision in this Article being as it is. It happens that this House decides that in all the subsequent Articles, the discretionary power should not be there, as it may conceivably do, this particular provision will be of no use and will fall into desuetude.

This was not the view of a single member of the Assembly, but was supported by various other members such as B.M. Gupta, Alladi Krishnaswami Ayyar and Shibban Lal Saxena. Therefore, the mention of discretionary powers was merely to indicate those provisions of the Constitution wherein the Governor was explicitly vested with discretionary powers to act and Article 163 (or 143 of the Draft Constitution) could never be utilized by the Governor to justify any other action performed without the aid and advice of the government, including the direction to call for a trust vote on the floor of the assembly. The statement by Dr B.R. Ambedkar shall support this claim beyond any doubt:

“Except in so far as he is by or under this Constitution,” those are the words. If the words were “except whenever he thinks that he should exercise this power of discretion against the wishes or against the advice of the ministers”, then I think the criticism made by my honourable Friend Pandit Kunzru would have been valid. The clause is a very limited clause; it says: “except in so far as he is by or under this Constitution”. Therefore, Article 143 will have to be read in conjunction with such other Articles which specifically reserve the power to the Governor. It is not a general clause giving the Governor power to disregard the advice of his ministers in any matter in which he finds he ought to disregard. There, I think, lies the fallacy of the argument of my honourable Friend, Pandit Kunzru.”

Thus, it becomes clear that the Governor cannot invoke his authority under Article 163 to direct the Chief Minister to prove the trust of the legislative assembly in his Government. But in view of the interpretation provided by the Supreme Court, it seems that Mr. H.N. Kunzru was prophetic when he argued in support of Mr. Kamath’s amendment by stating that retention of the clause granting discretionary powers may give rise to misapprehensions regarding the true scope of Governor’s powers.

The Misplaced Reliance on Bommai and Nabam Rebia

The Court placed huge reliance on two precedents while coming to its conclusions, both of which, I argue, are wrongly read. The court first referred to the decision in Bommai, where the Governor the State of Karnataka, after being satisfied that the incumbent state government had lost its majority in the House, sent a report to the President recommending for the imposition of President’s rule. At the time, the Supreme Court had held the action of the Governor as unconstitutional by recognizing that even minority governments can hold the trust of the House. It stated that it is not within the Governor’s powers to decide whether the government holds the trust of the House, as that ‘is an objective fact capable of being established on the floor of the House’. The Court opined as follow:

Where the Governor is satisfied by whatever process or means, that the Ministry no longer enjoys majority support, he should ask the Chief Minister to face the Assembly and prove his majority within the shortest time possible.

This was quoted with approval by the Court in the Madhya Pradesh Assembly case to buttress its view that the Governor can order for the floor test in the Assembly. I argue that the Court wrongly construed the opinion in Bommai. First, In Bommai, there were no arguments as to whether it is within the powers of the Governor to direct the Chief Minister to prove hold a trust vote and thus, these observations cannot be deemed as binding ratio. Second, these observations merely tells us that whenever the Governor believes that the government has lost the confidence of the House, he must validate this fact through a trust vote in the assembly and not through his own assessment. It leaves open the question as to the process through which such trust vote must take place.

The reading of the Constituent Assembly debates proves that the Governor cannot direct the trust vote to take place unless he acts with the aid and advice of the Council of Ministers while issuing such directions. The other mechanism, as also argued by counsel representing the incumbents of the MP Assembly, is the moving of a no-confidence motion in the House. Unless such motion is moved – which was indeed not moved, as recorded by the Court – the government must be under no obligation to face the trust vote.

One might here argue that allowing the trust vote to take place only after a no-confidence motion is moved would lead to certain constitutionally unwarranted consequences, such as stay of the government for a long time in Office even when it has lost the confidence of the House (for instance, when the House is not in session, effectively disallowing the opposition to move a no-confidence motion). In such scenarios, the observation of the Supreme Court in Nabam Rebia becomes relevant, where it had stated that:

The Chief Minister and his Council of Ministers lose their right to aid and advise the Governor, to summon or prorogue or dissolve the House, when the issue of the Government’s support by a majority of the Members of the House, has been rendered debatable. … And in such a situation, if there is a non-confidence motion against the Chief Minister, who instead of facing the Assembly, advises the Governor to prorogue or dissolve the Assembly, the Governor need not accept such advice.

Therefore, when the Assembly is in session, then the process of holding a trust vote must begin with a no-confidence motion, and when the assembly is not in session, then still, the no-confidence motion remains significant for initiating the process, and based on this motion, the Governor is empowered to act even against the aid and advice of the Council of Ministers.

However, the Court underplayed the significance of no-confidence motion and relied on another excerpt from Nabam Rebia, where it was stated that ‘[i]n a situation where the Governor has reasons to believe that the Chief Minister and his Council of Ministers have lost the confidence of the House, it is open to the Governor, to require the Chief Minister and his Council of Ministers to prove their majority in the House, by a floor test.’ This allowed the Court to conclude that whenever the Governor has reasons to believe that the government has lost confidence of the House, ‘constitutional propriety requires that the issue be resolved by calling for a floor test.’ This, I argue, is an unjustifiable position.

Governor as a check on the Council of Ministers?

The role of the Governor is envisaged as a de jure head of the executive government, which functions on the aid and advice of the de facto head of the executive government, the Chief Minister, and his Council of Ministers. It is merely a titular position, with very limited authority to act independently. Therefore, the argument of the Court that this gubernatorial office helps in ensuring that necessary checks and balances remain in place is, though to some extent is correct – but not in the manner in which it was interpreted by the Court. The Court noted, at para 44, that ‘the Constitution recognises that the Governor does possess a power inhering in the office to monitor that the elected government continues to possess the confidence of the Legislative Assembly.’ I believe that the it is proper for the legislature to exercise the checks and balances functions, with the scope of the Governor’s powers to be merely facilitating the legislature. Given the fact that the position of the Governor is nominated, enhancing the powers of the Governor then necessarily leads to increased political disruptions in the working of democratically elected governments. Thus, I believe that the Court’s attempt to first find the source of Governor’s power in Article 163 and then justify it though the checks and balances argument was contrary to the structure of democracy envisaged in the Constitution.

The Supreme Court’s Madhya Pradesh Government Formation Judgment – I: A Question of Jurisdiction [Guest Post]

April 24, 2020 Gautam Bhatia3 Comments

[This is the first in a three-part series examining the Supreme Court’s judgment in Shivraj Singh Chouhan v Speaker, Legislative Assembly of Madhya Pradesh and Ors. This is a guest post by Rishav Ambastha.]

In this post, I analyse the question of jurisdiction that arose in Shivraj Singh Chauhan v. Speaker Madhya Pradesh Legislative Assembly (Shivraj Singh Chauhan case). This follows a series of cases involving the formation of governments with uncertain majorities in the legislative assembly, and consequent constitutional challenges to the direction of either the Speaker or the Governor (“majority formation disputes”). Invariably, the S. Ct. has leaned in favour of directing test of majority on the floor of the house.

Question of Jurisdiction & Article 32

Any claim under Article 32 must preliminarily address two questions of jurisdiction – subject matter jurisdiction (whether the dispute relates to enforcement of rights under Part III of the Constitution); and personal jurisdiction – whether such a right is conferred on the person/entity asserting it (petitioner) and whether such person/entity has the duty to enforce such a right (respondent). Typically, a right under Part III of the Constitution is conferred in favour of citizens/ persons / entities (depending on the nature of the right) against the State.

Pertinently, a “majority formation dispute” involves no question of fundamental rights, as there is no fundamental right to form a government or occupy a political office. Arguably, these are constitutional rights conferred by Part V and Part VI of the Constitution. Therefore, the S. Ct. lacks jurisdiction under Article 32 of the Constitution to entertain such a claim.

Short-Circuiting High Courts

In one of its first interventions in “majority formation disputes” in the 1990s, the S. Ct. in Jagdambika Pal v. Union of India (Jagdambika Pal case), directed holding a special session of the UP Legislative Assembly for a composite test of majority. This intervention arose out of a Special Leave Petition against an interim order of the Allahabad High Court exercising its writ jurisdiction.

Following the Jagdambika Pal case as precedent, S. Ct. has made at least five more interventions in cases of similar fashion. In Anil Kumar Jha v. Union of India, the S. Ct., following Jagdambika Pal, in a terse two-page order, lacking discussion and reasoning on jurisdiction, directed a test of majority on the floor of the house. This trend is evident in “majority formation dispute” cases following it – G Parameshwara v. Union of India, Chandrakumar Kavlekar v. Union of India, and Shiv Sena v. Union of India (Shiv Sena case) and Shivraj Singh Chauhan case (though here, the S. Ct. delivered a judgement). However, in a significant departure from the Jagdambika Pal case, the S. Ct. passed orders in these cases in its Original Writ Jurisdiction (a claim under Article 32), incorrectly short circuiting the jurisdiction of the High Court.

High Courts are the only constitutional courts with jurisdiction in the first instance to entertain claims of “majority formation disputes”. Under Article 226 of the Constitution, High Courts have jurisdiction to enforce rights against the state, not only limited to fundamental rights under Part III, but also other constitutional rights and rights arising under different legislative and executive instruments.

Resolution through Interim Orders

In these cases, the directions for floor tests have arisen out of interim orders and have been disposed of without a judgement (excepting the Shivraj Singh Chauhan case). As a trend, the interim orders include only bare assertions of directions to the relevant authorities for tests of majority on the floor of the house.

An order is the expression of any decision of the court, and the judgement states the ground of the decision. Interim orders are tentative arrangements before the final disposal of the matter. Therefore, without a judgement, there is a lack of clarity on the question of jurisdiction of S. Ct. in “majority formation disputes” under Article 32.

For example, Ramana J in the Shiv Sena case passed interims orders directing a majority test on the floor of the house while still keeping alive “…issues of maintainability, extent of judicial review and the validity of the satisfaction of the governor…” for adjudication “…at an appropriate time”. However, the important question of whether the Court is empowered to issue interim orders in a dispute where it does not exercise jurisdiction was left unanswered – particularly so when the interim orders effectively disposed of the matter, touching upon the disputes agitated. The direction of floor test ought to have come after conclusive determination on the question of jurisdiction.

Court’s Analysis of Jurisdictional problems

As noted above, Ramana J in Shiv Sena case for the first time identified the question of jurisdiction. This came to fore because one of the petitioners had argued that “the jurisdiction under Article 32 of the Constitution cannot be invoked in the present matter and the Governor’s independence should be respected.”.

Chandrachud J. in the Shivraj Singh Chauhan case comes close to elucidating on the question of jurisdiction. In this case, it was argued that that “the writ petition under Article 32 is founded on the need to maintain (i) constitutional morality (ii) constitutional ethos; and (iii) constitutional principles”. Chandrachud J. did not directly address the argument on jurisdiction. However, he rejected the argument that “this Court should be wary of entering the realm of politics‘ where no judicially manageable standards‘ can be maintained, and the outcome prescribed by the court is likely to tilt the political balance.” And in tacit acceptance of the argument of the petitioner, J. Chandrachud in para 31 stated that: “Since the adoption of the Constitution, this Court has on several occasions adjudicated upon whether the actions of the legislative and executive branches adhere to the democratic processes created by the Constitution. As the ultimate arbiter of the constitutional text, this Court is tasked with ensuring that each branch of government operates within the limits placed upon it by the Constitution, including in the realm of democratic politics.”

The analysis of the S. Ct. seems to be this: if the case involves questions of interpretation of the Constitution, especially disputes of democratic processes in relation to the legislature and the executive, the S. Ct. ought to assume jurisdiction. Arguably, the court attempts to trace its jurisdiction to its role as the ultimate arbiter of constitutional text. However, this assumption of jurisdiction violates the constitutional fetter on its power under Article 32 (limited to enforcement of rights under Part III of the Constitution), and expands it to include disputes involving all constitutional rights, effectively closing the jurisdictional gap between Article 226 and Article 32.

Conclusion

The S. Ct. in its role as “the ultimate arbiter of the constitutional text” nonetheless ends up bypassing the constitutional text – Article 32 – pivotal to its own jurisdiction. These interventions demonstrate the position S. Ct. envisages for itself in the constitutional scheme – which is a judicial body with co-equal writ jurisdiction of the High Court, a position not conferred in it by the Constitution. This over-broad assumption of jurisdiction is, arguably, part of a larger trend that divests the jurisdictional High Courts of many of their constitutional functions, vesting them instead in the Supreme Court as the Court of both first – and last – instance.

Guest Post: The UP Hoardings Case – in Defence of the State

April 22, 2020April 22, 2020 Gautam Bhatia2 Comments

[This is a guest post by Tanishk Goyal and Rishabh Narain Singh.]

This post is a response to Shubhangi Agarwal’s interesting piece on the U.P Hoardings case, where it was argued that the swift justice delivered by the Allahabad High Court in the Hoardings Case was derailed by the Supreme Court of India, that its reliance on the UKSC judgement in the case of In the matter of an application by JR38 for Judicial Review (Northern Ireland) was misplaced, and that it failed to correctly apply the Puttusawmay judgement to the present case.

We begin by arguing that the executive orders passed for the recovery of damages from the protestors constituted “law” as required by the first determinative factor of the proportionality test. Next, we argue that that the aim of the above orders was not to deter mischief by the protestors, but to warn the public at large not to purchase the property of such persons, which had been attached to claim the recovery amount. Next, we illustrate not only how there existed a rational nexus between the means employed and the object sought to be achieved by the State, but how such means were just, fair and reasonable as well. Having established the due compliance of the law with the proportionality test, we seek to apprise the reader that the Supreme Court, in fact never placed its reliance on the UK SC judgement in the case of “In the matter of an application by JR38 for Judicial Review (Northern Ireland),” while referring the matter to a larger bench.

On Administrative Orders Qualifying as Law within the meaning of the Proportionality Test

The Allahabad High Court in the case of Mohammad Shujauddin v. State of Uttar Pradesh & Ors. had taken judicial notice of rioting, arson, and the damage to private and public property by an insurgent mob in 2009. Having taken such judicial notice, a single judge bench of Justice Sudhir Agarwal had issued certain directions that mandated the competent authorities to hold quasi judicial proceedings, assess the damages and pass necessary recovery orders. The directions also emphasised the realisation of the assessed damages from the protestors as arrears of land revenue and included a mandate to comply with the decision of the Supreme Court in the case of In Re:Destruction of Public and Private Properties Vs. State of Andhra Pradesh & Ors.

In pursuance of this judgement, an administrative order was issued by the Uttar Pradesh Government on January 8, 2011, whereby all District Magistrates and Additional District Magistrates of the State were empowered to hold quasi judicial proceedings, assess the damages and pass necessary recovery orders so as to ensure compliance with the directions. Since the decision of the Allahabad High Court has not been set aside till date, it remains good law. Furthermore, the decision of the Allahabad High Court itself created a right in the State to recover the damages as “arrears of land revenue” under the Uttar Pradesh Revenue Code and Revenue Rules 2016 (which involves attachment of property and a warning to the public at large not to deal in the attached property, explained in Part III) when the conditions given in Direction IV of the judgement are satisfied:

That there is a finding that the persons against whom the claim has been filed are responsible for the said loss;
Such amount has not been paid by the persons on their own;
Such amount has not been paid within the time directed by the competent authority.

Therefore, the Administrative Order which was relied upon to realise the assessed damages from the protestors was in pursuance of a High Court Judgement which provided for the Uttar Pradesh Revenue Code and Revenue Rules 2016 to step in to back the State Action of realising the damages as arrears of land revenue (involving the attachment of property and a warning to the public at large by the beat of drums not to deal in the attached property) if the foregoing conditions were not satisfied. This is to say that the power to put up of banners flows from the non-payment of damages by the defaulters. As soon as the prescribed time period lapses, the Uttar Pradesh Revenue Code and Revenue Rules 2016 step in to back the State Action of putting up the posters.

Thus, the action satisfies the test of legality, which postulates the existence of law according to the first determinative factor of the proportionality test.

Understanding the Legitimate State Aim in the Current Case

In the post post mentioned above, it has been averred that the authorities also failed on the second count of the proportionality test as “the aim to deter mischief and recover money from protesters for alleged damage to public property was not a legitimate aim, as they were not fugitives, and there was no need to publicize their personal details.”

It is acknowledged that the protestors were not fugitives. However, there was still an impending need to publicise their personal details. This is because in the case of fugitives, the publication of personal details is aimed at deterring such fugitives from evading the process of law in India by staying outside the jurisdiction of Indian Courts. However, in the case at hand the administrative orders were not intended to have a punitive impact. This is to say, that the aim of the State was not to deter the protesters from committing such acts in the future. Instead, the aim of the administrative orders was to warn the public at large not to deal with such persons in property as the same has been attached for recovery proceedings. This is amply illustrated by the Administrative order passed by the State on January 8, 2011 which empowered the Executive magistrates to be the competent authorities as mentioned in the directions issued by the Allahabad High Court. A close reading of the directions mentioned above reveal that the State was under by a positive obligation to fulfil the mandate of recovery of damages, failing which the State officials would have to face disciplinary action. The responsibility conferred on the State to fulfil such a mandate of recovery from the protestors is evident from the following lines of the order.

(iv) After giving an opportunity of hearing to the concerned persons, Competent Authority shall pass appropriate order within next 30 days. In case it is found that persons, against whom such claim is filed, were responsible for the said loss, the amount assessed and awarded by such Competent Authority shall be realized, if not paid on its own by the person responsible within such time as directed by such authority, as arrears of land revenue.

(vi) If the authorities responsible for taking steps, as directed above, failed to observe their duties within the specified time, it shall be treated to be a misconduct justifying disciplinary action.” (emphasis supplied)

Furthermore, this is not the first time that the recovery from the defaulters has been supplemented by the publication of their names and addresses. Illustratively, The Bombay High Court in D.J Exim Bank Pvt. Ltd v. State Bank Of India, while allowing the banks to publish the names and photographs of the defaulters, observed that:

A perusal of the said Rule clearly indicates that the bank has the right to publish the name of the defaulters by giving their names and addresses and two-fold purpose is served as a result of the said publication of the names, firstly the fact that these persons are wilful defaulters is made known to the public at large and secondly it also tends to caution the prospective buyers who may be offered the property which is mortgaged by these defaulters with the bank. This being the primary objective for the publication of the notice, in our view, there would be no impediment in publication of photographs of wilful defaulters and particularly those defaulters who have committed various acts of misfeasance.

A Special Leave Petition was preferred against this order and was accordingly dismissed by a division bench of the Supreme Court. The bench upheld the Bombay High Court Order allowing the lender to publish names and photographs of directors and guarantors of defaulter firms in newspapers on the grounds that Rule 8 framed under the SARFAESI Act (which interestingly does not mention that the names and addresses of defaulters may be published) authorised such a move. The Supreme Court agreed with the view that there was no legal bar either in the said rule or under any provisions of the Act which expressly prevents the bank from publishing photographs, and that therefore, the action taken by the bank was not ultra vires.

Similarly, The Madhya Pradesh High Court in M/S Prakash Granite Industries vs. The Punjab National Bank, The Madras High Court in M/s.Mohan Breweries and Distilleries Limited v. The Authorized Officer,State Bank of Mysore, and The Delhi High Court in M/s. K.V. Wall Mount Pvt. Ltd. v. State Bank of India, have endorsed the reasoning of the Bombay High Court, allowing the banks to publish the photographs of the wilful defaulters.

Thus, the aim of the State in the present case was to affix a civil liability on the protestors and recover the damages from them, and not to deter them from committing such acts in the future. Furthermore, the photographs and address of the protestors were only published after the order for recovery by the Executive Magistrate had been passed, and had not been complied by the defaulters.

It is for this reason that the argument claiming that “lakhs of accused persons in UP were also facing criminal trials but their personal details were never subjected to such publicity” is misconceived, as contrary to those facing criminal trials, the present case concerns itself with defaulters against whom the final order for recovery has already been passed.

Rational nexus between the means employed and the object sought to be achieved

As explained in the previous section, the object which was sought to be achieved by the State was the recovery of damages from the protestors against whom a final order had been passed by the Executive Magistrate.

This power of an Executive Magistrate to pass a final order, after conducting a quasi-judicial proceeding and after giving an opportunity of hearing to the defaulter, is in fact sourced from the judgement of the Allahabad High Court in the case of Mohammad Shujauddin v. State of Uttar Pradesh & Ors. According to the guidelines issued by the Court in the above case, the order for recovery cannot be passed by the competent authority if the defaulter has not been given an opportunity of hearing.

Once the order of recovery has been passed against the accused, and the order is not complied with, a right is created in the State to recover the amount as arrears of land revenue. The recovery of a certain amount as “arrears of land revenue”, under Section 279 of the U.P Zamindari Abolition and Land Reforms Act, 1950 & Rules 1952 inter-alia involves the creation of a security interest on the property of the defaulter, as well as notice to the public at large that the property has been attached, by the beating of drums. This is illustrated by Section 279 of the Act, the corresponding rule to which as been reproduced below:

273. Where any land is attached in pursuance of the provisions of Clause (d) or (f) of Section 279 or sub-section (1) of Section 284 or of Section 286 or is let out under sub-section (2) of Section 284, a proclamation in Z.A. Form 73, shall be affixed at a conspicuous place in the village in which the land is situate and it shall also be notified by beat of drum.

Interestingly, This Act was replaced by the Uttar Pradesh Revenue Code and Revenue Rules 2016. The new act mandates recovery of arrears by attachment of land of the defaulters, the corresponding rule to which states: […] “158 (2) A copy of R.C. Form-41 shall also be served on the defaulter and the factum of attachment shall also be announced by beat of drum on the spot.”[…]

Thus, it is clear that the objective sought to be achieved by the State was the recovery of damages from the protestors against whom a final order had been passed by the Executive Magistrate. The means to achieve the same objective were evidently laid down by the Allahabad High Court which empowered the competent authority to pass the final order of recovery. If the defaulter could not pay the damages, the same was mandated to be realised as “arrears of land revenue” under the erstwhile U.P Zamindari Abolition and Land Reforms Act, 1950 & Rules 1952 (Replaced by the Uttar Pradesh Revenue Code and Revenue Rules 2016 with similar provisions). Whenever an amount has been realised as “arrears of land revenue” the legislative intent has concurrently been to inform the public at large about the attachment of such a property so that they are consequently precluded from dealing in the same.

In the present case, in light of the non feasibility of the “beating of drums” the mode of communication to the public was reasonably extended to and replaced by the publication of banners, whose only objective was to warn the public at large not to deal with such persons in property as the same has been attached for recovery proceedings. Moreover, the least restrictive measure which the State should employ is a matter of policy. By virtue of being a matter of policy, the State is given a limited amount of discretion. The limits to such discretion have been emphatically spelled out in the case of Reliance Airport Developers Pvt. Ltd vs Airport Authority of India, where a division bench of the Supreme Court ruled that discretion, when applied to State action should be according to rules of reason, which is regular, and not arbitrary or fanciful. This requirement of employing a least restrictive measure which is guided by a sound and reasonable exercise of discretion was accordingly met in the present case as the publication of the banners was a reasonable extension to the mandate of the “beat of drums” under the Uttar Pradesh Revenue Code and Revenue Rules 2016. This is essentially because, the requirement of the “beat of drums” in the Revenue Code (which is essentially meant to be employed in villages and small towns) would not suffice for the demographics of a city like Lucknow where the defaulters were alleged to have been residing. This line of argumentation was, in fact endorsed and upheld by a division bench of the Supreme Court in the case of Rai Vimal Krishna v. State of Bihar, where Justice Ruma Pal held that,

27. […] Indeed it appears to us that the requirement to notify people by beat of drum is an anachronism which appears to inappropriate in the present day and age in a large city like Patna. Where equally efficacious, if not better modes of publication are available, it would be ridiculous to insist on an obsolete form of publication as if it were a ritual.

The above judgement in fact went on to distinguish between the requirement and the manner of publication, holding that while the requirement of publication per se was mandatory in nature, the manner in which such publication should be made is merely directory, and the Courts should look at whether there has been sufficient compliance in effecting the intention of the legislature to warn the public at large in the city.

Now, one counter to this line to argument would be that if the purpose is to publicise the fact that there is certain property under attachment and to prevent the property-holder from alienating such a property and circumventing the legal process, then why can’t the State publicise the description of the property itself, instead of the personal details of the property-holder? While such an alternative may have been able to achieve the objective sought, it would also have caused undue hardship to the persons who might have a stake or an undivided interest in the property. This is to say, that the aim of the State is to recover the damages only from the share of the person in a property (which may have multiple undivided interests) against whom a final order of recovery has been passed. In light of this, the means employed in achieving the objective, were rational, and reasonably least restrictive in nature.

The Reliance of the Supreme Court on the UKSC Judgement

Contrary to the opinion expressed in the above blogpost, the UKSC judgement in the case of In the matter of an application by JR38 for Judicial Review (Northern Ireland), was never relied upon by the Division bench of the Supreme Court while referring the matter to a larger bench. The Supreme Court merely noted the submission of the Learned Solicitor General. This is illustrated by the following lines.

Learned Solicitor General also relied upon the decision of the Supreme Court of United Kingdom in the matter of an application by JR38 for Judicial Review (Northern Ireland), (2015) UKSC 42 and particularly paragraphs 2, 3 and 73 of the decision. He also placed for our consideration text of Article 8 of the European Convention on Human Rights (ECHR), which was subject matter of discussion in said decision and submitted that the action taken by the State in the instant case was fully justified.

Thereafter, without relying on any ruling whatsoever cited by both the sides, the Court went ahead to refer the matter to a larger bench for reasons solely relating to the “nature of the matter and issue of significance involved therein.”

It is pertinent to note here, that the Supreme Court had explicitly relied upon the In the matter of an application by JR38 for Judicial Review (Northern Ireland), judgement of the UK Supreme Court in the case of K.S Puttaswamy vs. Union of India (2017) SCC 1. Here, the plurality opinion of Justice D.Y Chandrachud, in Paragraph 168 quoted the separate concurring judgement of Lord Clarke, where he said that “[…] the criminal nature of what the appellant was doing was not an aspect of his private life that he was entitled to keep private. He could not have had an objectively reasonable expectation that such photographs taken for the limited purpose of identifying who he was would not be published.”

This amply illustrates the relevance of the UKSC judgement in the privacy jurisprudence of India which remains to be relied upon or interpreted by a larger bench of the Supreme Court.

Guest Post: The UP Hoardings Case and Misplaced Comparativism

April 18, 2020April 21, 2020 Gautam Bhatia1 Comment

[This is a guest post by Shubhangi Agarwal and Harsh Singh.]

In March, the Uttar Pradesh administration had ordered the putting up of banners in Lucknow with names, photographs and addresses of more than fifty CAA – NRC protesters, asking for compensation from them for allegedly causing damage to private and public property. Observing a clear case of a breach of privacy, the Allahabad High Court took suo moto cognizance and registered a PIL against the government administration. The court rightly ruled that the actions of the state are “an unwarranted interference in privacy of people” (discussed here). However, this decision was appealed before the Supreme Court, and the apex court, after placing reliance on a UK Supreme Court judgment, ordered that the case be referred to a larger bench for consideration. This article seeks to juxtapose the crisp and timely intervention of the Allahabad High Court with the Supreme Court’s referral order and analyzes the apex court’s misplaced reliance on UK case law.

The Allahabad High Court’s swift justice

The Allahabad High Court criticised the UP administration for displaying such banners on the roads. It applied the proportionality test laid down in the Puttaswamy judgment and observed that the authorities failed it on all the three counts. Firstly, there was no law which permitted such actions. Secondly, the aim to deter mischief and recover money from protesters for alleged damage to public property was not a legitimate aim, as they were not fugitives, and there was no need to publicize their personal details. Lastly, there existed no rational nexus between the means employed and the objective sought to be achieved. Lakhs of accused persons in UP were also facing criminal trials but their personal details were never subjected to such publicity. The court even went on to remark that “the placement of personal data of selected persons reflects colorable exercise of powers by the Executive.”

The Supreme Court’s waywardness

The Supreme Court, on the other hand, shied away from its responsibilities when dealing with the same questions. It relied on a UK Supreme Court case – In the matter of an application by JR38 for Judicial Review (Northern Ireland), and referred the appeal to a larger bench. It is pertinent here to explain the facts of the foreign case to distinguish it from our case. In the UKSC case, the appellant, aged fourteen years, was engaged in rioting and his CCTV footage (taken during the course of rioting) was published in two newspapers by the police authorities. The publication was done to ‘identify’ him and to deter future disturbances. The question was whether there was a breach of privacy under Art. 8 of ECHR.

The UK Supreme Court judgment on this can be divided into two parts – the majority opinion and the minority opinion. The majority (Lord Toulson, Lord Clarke and Lord Hodge) opined that there could have been no reasonable expectation of privacy in the facts of the case, because of the nature of the criminal activity the appellant was involved in. Therefore, the appellant could not have expected non-publication of his photograph by the police for his identification. However, their conclusion that the appellant did not have any reasonable expectation of privacy was greatly dependent upon the ‘identification’ purpose of the police.

Lord Clarke, with whom Lord Hodge concurred, held that (paragraph 112):

I agree with Lord Toulson that on the facts here the criminal nature of what the appellant was doing was not an aspect of his private life that he was entitled to keep private. He could not have had an objectively reasonable expectation that such photographs, taken for the limited purpose of identifying who he was, would not be published. I would not however hold that the mere fact that a person is photographed in the course of a criminal activity deprives him or her from the right to prevent the police from publishing the photographs. Thus, if the photographs had been published for some reason other than identification, the position would have been different and might well have engaged his rights to respect for his private life within article 8.1. I would not therefore put the point quite as broadly as Lord Hope does in para 21 of Kinloch quoted above.

The minority opinion (by Lord Kerr and Lord Wilson) held that that the appellant retained a reasonable expectation of privacy primarily because he was a child at the time the photograph was taken, and factors like age, consent, and risk of stigma also play a role when determining the question of privacy. However, after applying the proportionality test, the judges came to the conclusion that the interference with the appellant’s right to privacy under Art. 8 of ECHR was justified for the same reasons as that of the majority opinion.

Lord Kerr J. with whom Lord Wilson concurred, stated (paragraphs 41 and 76):

Prima facie, therefore, the taking and use of a photograph of an individual will lie within the ambit of article 8. The essential question is whether it is removed from that ambit because of the activity in which the person is engaged at the time the photograph was taken and because the person could not have a reasonable expectation that his or her right to respect for a private life arose in those particular circumstances. The fact that the activity in which the person is engaged is suspected to be criminal will not, by reason of that fact alone, be sufficient to remove it from the possible application of article 8.

The painstaking approach taken by the police service to the objective of identifying young offenders such as the appellant has been explained by Chief Inspector Yates and Superintendent Robinson. Internal police inquiries were made; community leaders and social services were asked whether they could identify those involved; and it is ironical that the appellant and his father were shown the photograph that was later published. Had they identified the appellant, no publication would have occurred.”

As is clearly evident from the above paragraphs, the photograph was published with the clear purpose to identify the wrongdoer; in the present case, however,, banners with personal details were put up to seek compensation from protesters for damage to public property, and to ‘name and shame’ them. There is a stark contradiction in both the objectives. These protesters were not fugitives and were not trying to bypass their interrogation and trial.

Conclusion

Only a few days before this referral order, the Supreme Court in Shah Faesal v Union of India, had remarked on judicial references. It had noted that “when substantial judicial time and resources are spent on references, the same should not be made in a casual or cavalier manner.” Regrettably, it failed to follow its own laid down principle. Moreover, the recovery notices which were issued to the protestors were challenged by them and the matter was already pending before the court. In such circumstances, the reference order was evidently unjustified. The result of this was that the swift justice delivered by the Allahabad High Court was derailed in the Supreme Court, in no small part because of erroneous reliance upon UKSC case law, as well as a failure to correctly apply the Puttaswamy judgment.

Guest Post: Indore Development Authority: A Missed Opportunity to Invoke the Doctrine of Prospective Over-Ruling

April 17, 2020 Gautam BhatiaLeave a comment

[This is a guest post by Shubham Jain and Dhruva Gandhi.]

A couple of weeks before it closed its doors on account of the COVID-19 outbreak, on 06.03.2020, the Supreme Court of India in Indore Development Authority v Manoharlal (“IDA 2020”) delivered a verdict interpreting Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (“2013 Act”). Two Full Bench decisions of the Supreme Court had previously arrived at opposing conclusions on the interpretation of Section 24, which is how the matter came to be placed before a 5-judge bench. The Constitution Bench has adopted the view of the earlier Indore Development Authority v Shailendra & Ors (“IDA 2018”) (decided on 08.02.2018) and over-ruled Pune Municipal Corporation v Harakchand Misirimal Solanki & Ors (decided on 24.01.2014).

Section 24 deals with the validity of land acquisition proceedings initiated under the now repealed Land Acquisition Act, 1894 (“1894 Act”). It envisages two scenarios wherein proceedings initiated under the 1894 Act would be deemed to have lapsed. It says that when an award of compensation was made five years or more prior to the commencement of the 2013 Act, then if (i) physical possession of the land had not been taken; or (ii) compensation had not been paid, land acquisition proceedings under the 1894 Act would lapse. The primary controversy revolved around the meaning of the word ‘paid’. Pune Municipal Corporation held that if a land holder refused to accept the compensation when tendered due to a dispute, it would be deemed to have been paid only when it was deposited into a court and not when it was deposited into the government treasury. On the other hand, IDA 2018 said that compensation would be deemed to have been paid the moment it was tendered by the Collector, irrespective of the correctness of its quantum and of the fact that it was unacceptable to the land holder.

We find the decision in IDA 2020 to be problematic on merits for more reasons than one and have critiqued it elsewhere. In this post though, we seek to discuss how IDA 2020 was an appropriate case to apply the Doctrine of Prospective Over-Ruling (“the Doctrine”). In our opinion, not applying the Doctrine in this case brings to the fore an inconsistency in its application that we hope posterity may make note of.

What is the Doctrine of Prospective Over-Ruling?

As explained by the Supreme court in Sarwan Kumar v Madan Lal Aggarwal (decided on 06.02.2003):

The doctrine of ‘prospective overruling was initially made applicable to matters arising under the Constitution but we understand the same has since been applicable to matters arising under the statutes as well. Under the doctrine of “prospective overruling” the law declared by the Court applies to the cases arising in future only and its applicability to the cases which have attained finality is saved because the repeal would otherwise work hardship to those who had trusted to its existence.

Usually, when the Supreme Court interprets a particular provision of law, it is not laying down any new law, but only interpreting existing law. Thus, any interpretation of a provision will relate back to date of the law coming into force. This may inflict unforeseen hardship on several litigants, especially those whose cases have attained finality. To remedy this hardship is the basis for the doctrine. It can be invoked to say that the interpretation conferred by the Supreme Court will only have prospective application.

Invoked for the first time in IC Golaknath v State of Punjab for matters arising under the Constitution, the doctrine has subsequently been made applicable to cases pertaining to the interpretation of an ordinary statute. In Managing Director, ECIL Hyderabad v B Karunakar, the Supreme Court has discussed an illustrative list of such cases. Importantly, Sarwan Kumar also mentions that the “invocation of doctrine of “prospective overruling” is left to the discretion of the court to mould with the justice of the cause or the matter before the court.” We believe that IDA 2020 provided a perfect case where justice of the cause required the invocation of the doctrine.

Why IDA 2020 Should Have Invoked the Doctrine

IDA 2020 was not simply a case of a Constitution Bench deciding the correctness of two conflicting Full Bench decisions. There was more to it than meets the eye.

The 2013 Act came into force on 01.01.2014. Therefore, Section 24 only applies to compensation awards made before 01.01.2009. The need for a provision like Section 24 is better understood when we consider the findings of a study conducted by the Centre for Policy Research (“CPR Study”) which the authors of this post were a part of. The CPR Study looked at all Supreme Court decisions on land acquisition from 1950 to 2016. It showed that in cases that had travelled to the Supreme Court, litigants on an average spent as many as 20 years just to receive their fair share of compensation. Out of 445 such cases between 1950 to 2016, 392 (a whopping 88%) saw an increase in the compensation, with 10% cases seeing no change in compensation. A minor decrease in compensation was observed in a mere 7 cases. What is even more telling is the fact that the average compensation awarded by the Supreme Court was about 6 times of the original award made by the Collector. Naturally, the Supreme Court statistics only reveal the top of the pyramid and the actual number of such disputed cases decided by or pending before the High Courts and the Trial Courts would be a lot more.

Evidently then, when incorporating Section 24 into a welfare legislation such as the 2013 Act, Parliament sought to cater to that section of the society which had been passing through the corridors of several courts from a time prior to 01.01.2009 at the very least only to receive their fair due. The State ought to have been more proactive in pursuing acquisition and fair in the assessment and handover of compensation, if it seriously wanted that parcel of land. Given the laxity of the State apparatus, it was only fair that land holders be accorded the whole gamut of benefits under the 2013 Act.

This surmise as to legislative intent is also backed by numbers. The CPR Study showed that in relation to the cases under Section 24 of the 2013 Act, almost 83% of them were where no compensation had been paid to the land losers and 11% of them were cases where neither compensation was paid nor had any physical possession of the land been taken. Between 2014 and 2016, over 270 such cases had been brought before the Supreme Court. In only less than 1% of these cases was the acquisition held to be valid under Section 24. Instead, being cognizant of the legislative intent, the Supreme Court invalidated the acquisition proceedings in a whopping 95% of these cases and remitted 3.5% to be decided by lower courts. All of these cases were decided as per the ratio in Pune Municipal Corporation. Therefore, these were cases where no compensation had even been deposited in court and land holders had no certainty as to their land or compensation. A separate report tells us that as of date, 999 cases had been determined as per the ratio in Pune Municipal Corporation by the Supreme Court and several High Courts.

An application of these facts and numbers show why ‘justice of the cause’ required the invocation of the doctrine in this case. The decision in IDA 2020 allows a revival in these cases where an award was made before 2009 and which had earlier been decided in favour of the land owners as compensation was not paid. As shown in the CPR Study, it is also important to keep in mind that the cases before the Supreme Court are often bunched together. On an average, a single land acquisition case involves more than 10 petitioners. This gives us an idea of the number of people and families whose lives will be affected by the revival of the cases — their lands will once again be subjected to long drawn litigations with uncertain outcomes after a period of at least 11 years and they will even be unable to obtain the additional benefits under the 2013 Act.

We understand the practical redundancy of our argument here as the case has already been decided and the doctrine has not been invoked. However, this might be an important consideration if the Supreme Court revisits the question in future. In any case, as we mentioned earlier, posterity should take note of these inconsistencies in invocation of the doctrine.

Coronavirus and the Constitution – XVIII: Models of Accountability

April 16, 2020April 16, 2020 Gautam Bhatia7 Comments

With the nationwide lock-down extended until May 3, with another set of directions issued under the National Disaster Management Act, and a number – and range – of petitions of various kinds before the Supreme Court, it is perhaps worth taking a quick step back and returning to some first principles: in particular, to discuss afresh the role of the judiciary in the context of an executive-led response to a public health crisis.

I want to frame this essay around the issue of accountability, and what that means in this concrete context. According to a narrow version of accountability – let us call this “electoral accountability” – legitimacy is conferred upon government through the mechanism of periodic elections. The accountability of the government is tested – and renewed – through the electoral process. It follows from this that in the intervening five-year period, the government is taken to act upon the basis of a continuing mandate, and is not subject to any other form of accountability. If the government makes mistakes – for example, in its handling of the pandemic – it will be punished at the ballot box at the next elections.

This idea of accountability has been articulated, in particular, to criticise some of the Court’s interventions (such as its initial order on free Covid-19 testing, which now, of course, it has walked back on), and to praise its otherwise deferential attitude towards the government during this time (on the issue, for example, of migrant labour). The Court has not been elected to “manage the pandemic”, this argument goes, and it is not “accountable” to the people for the consequences of its decisions (such as free testing). Consequently, it should stay out of the way and let the government do what it is doing.

This articulation of accountability, however, does not correspond with the complexity of a republican democracy, where the Constitution consciously splits power between three branches of State (I ignore for the purposes of this essay the conundrums posed by Fourth Branch institutions such as the CAG, and the press). The government – and by government, I now specifically mean the executive – is accountable to the two other branches when it comes to the question of day-to-day administration. The first is Parliament (or the state legislatures, as the case may be) – the actual representative bodies – that have the power of oversight and scrutiny, and to ensure that the executive is operating in accordance with the lawful power that has been vested in it. The second is the judiciary, which is tasked with ensuring that the government’s actions respect constitutionally guaranteed rights, and are non-arbitrary (in the administrative law sense).

Now the first thing to notice about how the Covid-19 crisis has been handled in India is that the one of these three branches – Parliament – has been entirely bypassed. As I have written in some detail elsewhere, the two laws invoked to deal with the pandemic – the NDMA at the federal level and the EDA at the state level – have wide umbrella clauses that are of the “whatever it takes” variety: they essentially allow the executive to take any steps that it deems necessary in order to contain the “disaster” or the “epidemic”, as the case may be. Consider for a moment just what that means: even an Emergency declaration under the Constitution requires subsequent ratification by the Parliament. If, therefore, the government wanted to formally use the Constitution’s Emergency powers to deal with Covid-19, it would be subjected to a degree of Parliamentary scrutiny that is greater than the scrutiny it is subjected to through invoking the NDMA (that is, none)! Furthermore, ratification is not the only job Parliament plays: although its role in lawmaking has been vastly diminished in recent years, especially with the anti-defection law in place, Parliament remains the forum where the country’s elected lawmakers can debate what the government is doing; Parliamentary Questions are effective ways of extracting information from otherwise recalcitrant government Ministers; and Parliamentary Committees are vital tools of legislative oversight. All of this, it is important to note, has been bypassed through the invocation of the NDMA and EDA, leaving opposition leaders to hold press conferences and – as the Solicitor General would say – “prepare tweets” on the issue as their only ways of getting their points across. In fact, forget Parliamentary accountability – as all the Orders under the NDMA are signed by the Home Secretary, it is unclear the extent to which even the collective responsibility of the Cabinet is at play.

This is important for two reasons. The first is that accountability is a two-way street. The government – at both the federal and the state levels – has insulated itself from legislative accountability, which is an essential feature of the checks and balances envisioned under our democracy. Its case, then, for being given a free hand on the basis of “electoral accountability” is thereby weakened. And the second is that the effective eclipse of Parliament essentially leaves the judiciary as the only formal State organ that is positioned to act as a check on, and review, government action. And it is crucial to note – again – that what we are talking of is not judicial review of legislation (where there is a strong presumption of constitutionality, and a direct link with the issue of representation), but of executive action purportedly under the cover of an enabling legislation (the presumption in favour of which, accordingly, is diluted).

Now, once again – and to get a very obvious bad faith objection out of the way – this is not to say that the judiciary should take over management of the pandemic. Nobody is saying that, and nobody has said that. What it does mean, however, is that the judiciary bears a heavy constitutional responsibility in ensuring that there continues to exist a forum where the government is called to account for its actions, and is required to justify them – under existing legal standards (what, on this blog, we have referred to as the “culture of justification”). To understand what this means, let us take, for instance, the now-farcical performance of the bench of Bhushan and Bhat JJ in the case involving free Covid-19 testing. On this blog, there had been an extensive debate around the bench’s first order mandating free Covid-19 testing (under ICMR Guidelines). There had been a general agreement that the Order lacked clarity on the question of reimbursement, and that private labs could not be expected to carry out testing without clarity on that point. Within a few days, the same bench performed a complete – and unreasoned – U-turn, and passed an even vaguer Order – at the behest of the Solicitor-General – allowing private labs to charge from those who have the means of paying (this effectively means that everyone whom the government formally exempts from paying will have to pay). Now, in the Court, it was argued that the cap-price of Rs. 4,500 per test had been arrived at after consultation with a task-force of experts; however, as journalistic reports showed, there had been no such consultation – and indeed, the price cap of Rs. 4,500 had been fixed in consultation with a set of individuals that indicated a conflict of interest.

Now, leaving aside the issue of free testing for a moment – as we have discussed this extensively on the blog – is the Supreme Court expected to get into the nitty-gritties of price fixation? Certainly not. However, is the fact that the government has – allegedly – not consulted its own committee of experts in fixing the price a relevant fact? Yes – and this is not even a constitutional issue, it is an administrative law issue – it shows non-application of mind and arbitrariness. Is the fact that the individuals who were consulted about the price allegedly had a conflict of interest in the issue, a relevant fact? Yes – and once again, this is in the domain of administrative law and arbitrary State action. Moving into the domain of constitutional law, if the government was of the view that free testing (even under strict ICMR Guidelines) would hamper its availability to conduct enough tests because of budgetary concerns, surely that opinion was founded upon some economic basis? While the Court would not “substitute” its economic wisdom for that of the government, given that constitutional rights are involved, surely the government could be asked simply to account for this claim drawing a causal link between free testing and a drop in its ability to conduct tests? None of this is asking for anything that is beyond the government’s ability or will to provide – it is, very simply – basic public accountability, in a public forum.

However, as we have seen, the Bench did none of that. What it did do was pass two extremely cryptic orders – one of which made testing free (without any details), and the second of which walked back on that and effectively granted a carte blanche to both private labs and the government (barring one category of individuals already covered by government insurance). This, unfortunately, has nothing to do with appropriate judicial deference to elected bodies on the questions of policy; it has everything to do with the Court abandoning its role as the only remaining formal forum where the government can be called to account for its actions – even on the most basic standard of administrative rationality.

Similar abdication has been seen across the board in the weeks of the lockdown: as everyone knows by now, when the migrants’ issue first came up before the Supreme Court, the Court simply accepted the Solicitor-General’s statement that all migrants were – by that time – in quarantine or in shelters, and appropriately looked after. Multiple reports after that have demonstrated that that simply wasn’t true. What we have, therefore, is not so much the Court refraining from interfering with policy, but the Court failing to ask questions of the government about whether it is adhering to its own legal standards in implementing its policies. For example, detailed reports, choc full of facts and figures, show that state governments already have with them many thousand crores of rupees in the form of worker welfare cess that is not being used to alleviate the distress of of migrant workers; in other words, far from there not being money, there is money that has been collected specifically for purposes like this, which is not being used; surely it is the obligation of the Court to ask the State about this, especially if its primary justification is a lack of money?

Rather, what we have seen is repeated statements from judges praising the government(s) for their efforts, expressing “satisfaction”, and insisting on how good a job is being done. Now, that may be appropriate for a country where the judiciary is expected to act as a subordinate wing of government, but it is decidedly not appropriate for a country where the judiciary is one of the three “checks and balances” in the scheme of the separation of powers. Because you’re not “checking” or “balancing” anything if every statement made by the government is taken at face value, when even some basic questioning would reveal (as in the free testing case) internal inconsistencies.

To sum up: accountability under a republican democracy, committed to a system of checks and balances, is distributed accountability. Unlike a form of Caesarism, where accountability is limited to a form of periodic acclamation, republican democracy views accountability to be a continuing concept; in particular, the government is accountable to both Parliament and to an independent judiciary, under established legal standards. The handling of the Covid-19 crisis has taken Parliament out of the equation altogether, leaving only two bodies: the government and the judiciary. In such a situation, one would expect an independent judiciary to play its role of holding the government to account: in particular, not to take over administration or make policy choices (such as, for example, deciding upon a lockdown, or the length of it), but to ensure that (a) rights are respected, and (b) far-reaching actions are backed up by at least some legitimate form of reasoning (in its administrative law sense). The Supreme Court’s actions on both points so far, however, have been disappointing.

Notes From a Foreign Field: The Ugandan Constitutional Court on the Right to Protest [Guest Post]

April 12, 2020 Gautam Bhatia1 Comment

[This is a Guest Post by Karan Gupta.]

In a society where policy brutality and clamp down on free speech is common, the Constitutional Court of Uganda recently affirmed a few commonsensical principles on free speech, the right to assemble and public order. On 26 March 2020, the Constitutional Court of Uganda declared Section 8 of the Public Order Management Act 2013 (POMA) unconstitutional (4-1 majority). Section 8, inter alia, conferred upon the Inspector General of Police (IGP), or any officer authorized by them, vast discretionary powers to: (i) Withhold permission to hold a public meeting or stop a public meeting where it is “held contrary to the Act”; (ii) Use force to disperse public meetings; and (iii) Impose criminal liability on organizers and participants of such public meeting. The Act defines a ‘public meeting’, empowers the IGP to regulate their conduct (S. 3), and requires every ‘organizer’ to give prior notice (at least three days prior and no more than fifteen days prior) of the proposed public meeting with details specified therein (S. 5). An unplanned, unscheduled and unintended public meeting is exempt (S. 7).

I explore, in seriatim, the constitutionally flawed approach, the progressive observations of the constitutional court, missed opportunities, and lessons for India.

Preliminary Point: Constitution adjudication – in personam?

In a previous case, Muwanga Kivumbi v Attorney General, the Constitution Court had declared Section 32(2) of the Police Act 2006, which empowered the officer in charge of the police to pass an anticipatory order prohibiting the convening of an assembly/procession if there were “reasonable grounds for believing” that there would be a breach of peace, unconstitutional. The Court had held that the subjective and anticipatory power was prohibitory in nature (as compared to a regulatory power, which is permissible) and ultra vires Arts. 20(1) (Fundamental Rights are inherent and not granted by the state) and 29(1)(d) (Freedom of assembly and demonstration).

The challenge in HRNU lay in narrow confines. Art. 92 of the Constitution restricts the Parliament from passing a law which “alters” a decision of the Court “as between the parties to the decision or judgment”, thus barring the alteration of rights that have accrued to parties to a case vis-à-vis each other (in personam). The petitioners in HRNU highlighted that one petitioner in Muwanga was also a petitioner before the Court in HRNU, and that Section 8 of the POMA was para materia to Section 32(2) of the Police Act. Consequently, by enacting Section 8, the legislature had unconstitutionally attempted to alter the decision in Muwanga [p. 7]. Despite a broad challenge to the POMA on a myriad of constitutional provisions, the petitioners restricted their oral arguments to only Art. 92 and Section 8.

Justice Cheborion evaded the limited ambit of Art. 92 and the nuanced differences between the two provisions (Sections 32(2) and 8)) and held that Art. 92 also applies to decisions made in public interest, and not only in relation to parties to a previous litigation. This approach was adopted by two other judges [p. 42, 50, 69] and raises two concerns: First, this militates against the plain and ordinary meaning of Art. 92 and renders nugatory the latter part restricting its application to parties in a litigation. The decision in Muwanga (as well as the present case) concerned a constitutional matter on the ambit of constitutionally permissible police powers to control assemblies, demonstrations and peaceful protests. Such matters are, by their very nature, in rem proceedings – a declaration of invalidity does not operate only between parties, but to everyone. Art. 92 which seeks to protect rights that accrue to parties from a litigation (from contract law or property law for example), has no applicability in such cases. Furthermore, the legislature did not seek to alter the decision in Muwanga, but enact a new provision different from Section 32(2) of the Police Act.

Second, the Ugandan Parliament may alter the basis of decision in Muwanga by amending the provisions on which the decision turned [i.e. Arts. 20(1) and 29(1)(d)]. However, the Court held that the decision in Muwanga could only be altered, inter alia, by amending Art. 92 [p. 19]. This flows from its erroneous reading and application of Art. 92. The right approach is for the Court to, absent any constitutional amendment, employ in its assessment the broad constitutional principles laid down in Muwanga and other relevant constitutional provisions. However, the court restricted its assessment to whether Section 8 is an “incarnation” of Section 32(2) [p. 18]. Only two judges avoided this pitfall, though without adequate explanation [p. 54, 75], analyzed the entire Act and declared it unconstitutional [p. 61].

Public interest, public order and free speech

Art. 29(1) guarantees to every person the freedom of speech and expression, assembly and demonstration, and association. While Art. 79(1) empowers the Parliament to enact laws for the maintenance of order, both provisions are silent on the permissible restrictions on fundamental rights. The answer is found in Art. 43 which stipulates that “no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest”. According to Ugandan precedent, there is no justification to restrict or abrogate a fundamental right where the its exercise comports with the restrictions in Art. 43. Art. 43(2) clarifies that the term ‘public interest’ shall not permit any limitation “beyond what is acceptable and demonstrably justifiable in a free and democratic society”.

The scheme of fundamental rights chapter is significant for two reasons: First, barring the general restrictions in Art. 43 and a few other provisions which specify restrictions therein, there are no specified grounds to restrict fundamental rights as compared to other Constitutions; Second, under Art. 43, the principles of a free and democratic society are accorded primacy and any restriction must comport with this requirement. While the Parliament may legislate on the maintenance of public order (which Muwanga held is in public interest), any restriction on the freedom under Art. 29 must be demonstrably justifiable in a free and democratic society.

Viewed in the above context, the Court (three or more judges) made three significant observations:

First, on the ambit and hierarchy of free speech protection, the Court held that speech, public processions and protests, irrespective of their nature, are entitled to equal protection (i.e. social, religious, political, economic, and so on) [p. 20, 57]. This is distinct from the preferred position doctrine which accords higher protection for political speech in American constitutional jurisprudence. The context which informed this analysis is granting equal protection to political assemblies and speech which are a common target of the political establishment in Uganda;

Second, on public order, the Court held that where a protest or public gathering is peaceful, “it does not matter that it may disruptive or even inconveniencing”. [p. 21] This is significant as any society committed to the freedom of speech and assembly recognizes that some disruption is no ground to restrict or deny the right. Beyond toleration, the celebration and protection of speech and assembly is linked to justice, equal concern and mutual respect of every individual. Recall here the judgment of the Madras High Court which affirmed that “public streets are the natural places for expression of opinions” (analyzed here); and

Third, the Court held that Section 8, in so far as it authorizes the police to prevent a public meeting, empowers them to impose a blanket ban and require prior permission for every gathering [p. 23, 25]. The Court held that this violates Arts. 29 and 43 and the state failed to demonstrate that the power conferred by Section 8 is both regulatory and acceptable and demonstrably justifiable in a free and democratic society. This is significant for three reasons:

The burden of proof to justify the restriction on a constitutionally guaranteed right falls on the state. However, by vesting in the police the vast discretion to prohibit or prevent the freedom of speech and expression, this burden stands reversed. Every individual is then required to justify to the police why the exercise of their constitutional right will not or does not impair public order or contravene any provision of POMA. Justice Elizabet rightly noted that there is a presumption that every assembly and exercise of free speech is peaceful [ 61] and a mere apprehension of violence does not constitute a sufficient basis to prevent or prohibit an assembly, gathering or protest;
The Court highlighted that no conditions were laid down for the exercise of the power [ 98], vesting in the police vast discretion to determine which public meetings may be prevented or forced to disperse. As noted by the American Supreme Court in Grayned v Rockford, such unbridled discretion is accompanied by the “attendant dangers of arbitrary and discriminatory application.” Where the police are an instrumentality of the state, the possibility of partisan politics to curb dissent and anti-establishment sentiments cannot be discounted. This is recognized by two judges in HRNU who documented the arbitrary exercise of power by the police to protect government interest and impose popular morality [p. 22, 100]; and
Flowing from above, the unregulated blanket discretion to prohibit assemblies does not comport with the requirements of the ‘constitutional yardstick’ that every restriction on a fundamental right must be necessary and The police must justify, in each specific instance, why the prohibition of an assembly is the least restrictive measure and proportionate to the possible harm sought to be prevented (this post discusses context-specificity and proportionality in the context of the internet shut-down judgment in Kashmir). The judgment, despite lacking in the explicit use of this yardstick, comports with this requirement.

Maintaining public order

How then must the State maintain public order? Justice Cheborian (with whom three other judges agree) answered this. He held that where the police anticipate a breach of peace, there is a positive obligation on the state to provide protection and police deployments and not prohibit the assembly [p. 17, 60, 90]. The Court held that the duty to maintain public order “cannot be discharged by prohibiting sections of the public from exercising their constitutionally guaranteed rights to demonstrate peacefully or hold public meetings of any nature.” This is sound as it reaffirms: (i) the holding in Muwanga that the state must provide channels and structures to ensure that legitimate protest “find voice”; and (ii) the principle that the failure of the state to provide adequate security cannot be a ground to deny people the freedom of speech and assembly. Furthermore, the Court noted that the state is also empowered to act in various situations (unlawful assemblies, riots, malicious damage against public order) by the Penal Code of Uganda [p. 33,89] and may, in accordance with the law, arrest or take appropriate action against any perpetrator [p. 23, 32].

Missed opportunities

Despite the significant observations above, the Courts missed out on two opportunities:

First, only Justice Kenneth attempted to specify which values underlie a free and democratic society – inter alia, the acceptance and accommodation of a variety of cultural, religious and political beliefs and free political debate, human dignity and freedom of speech, association and movement [p. 90]. The Court could have laid down a comprehensive base for the protection of free speech and association as an values inhering in a free and democratic society; and

Second, despite the challenge in the petitions to numerous provisions of the Act, the Court examined the validity of only Section 8 (admittedly, only this was pressed by the petitioners). Only two judges examined the deeply inherent flaws in the entire Act to conclude that it was ultra vires a myriad of constitutional provisions. In the end, these draconian provisions were left standing and the Court concluded that guidelines must be framed for the exercise of powers under the Act [p. 33]

India and Section 144

Recall here that Section 144 of the Indian Code of Criminal Procedure 1973 confers wide discretionary powers upon executive magistrates to prohibit assemblies. This is regularly invoked on the basis of an apprehension that there would be a breach of peace or public order. The Constitution Court in Muwanga struck down a similar provision [Section 32(2) of the Police Act] on the ground that it was prohibitory in nature and reversed the burden of proof – every individual was required under it to justify why the exercise of the right to free speech and assemble would not cause a breach of public order. The Court held that this suppresses the “powerful tool” of peaceful assemblies and protests when a free and democratic society must encourage the “greatest possible freedom of expression.” This reasoning was reiterated in HRNU to strike down the wide power to impose blanket anticipatory bans on assemblies under Section 8 of the POMA.

The power under Section 144 [similar to Section 32(2) and Section 8] allows the imposition of anticipatory bans and is prohibitory in nature This falls foul the constitutional standards espoused in Uganda. Indian courts have attempted instead to narrow the discretion conferred by the provision. The judgment of the Supreme Court in Anuradha Bhasin (internet shutdown in Kashmir) recently affirmed that a valid exercise of power under Section 144 is premised on: (i) the existence of objective material facts which form the basis of the opinion formed by the Magistrate; (ii) its general invocation being confined to a specific area and issue; (iii) the existence of a demonstrably urgent situation; (iv) such measure being the least restrictive course of action; and (v) compliance with proportionality standard.

Despite these restrictions, the burden of proof continues to rest on individuals as magistrates are empowered to impose anticipatory orders prohibiting any assembly. Even where these orders are challenged before courts, the preliminary burden falls on the individual (as a petitioner) to prove that the issuance of the order violated their fundamental right. This was most evident in December 2019 where when faced with the legitimate expression of dissent against the Citizenship Amendment Act, numerous orders under Section 144 were imposed across the country without any well-founded apprehension of violence, citing inconvenience.

Conclusion

Despite its failings, the judgment in HRNU held that there is “absolutely no legal authority” to stop peaceful expression on the basis of an alleged breach of peace [p. 22] and builds on Muwanga to add to the growing jurisprudence that restrictions on the right to free speech and assembly are exceptions which the state is required to justify in every case prior to its imposition, reaffirming a commitment to a culture of justification, not authority. With this, it also provides guidance to India in the exercise of the power under Section 144. While Section 144 remains operative, one can only hope that the government of the day responds proactively to the protection of the right to free speech and assembly in scrutinizing more closely the impositions of these orders in the first place.

Constitutional Law and Philosophy

Issues in Contemporary Constitutional Law, with a Special Focus on India and Kenya

Month: April 2020