The Supreme Court’s Madhya Pradesh Government Formation Judgment: Round-Up

Below is a round-up of the six posts discussing the judgment of the Supreme Court in the Madhya Pradesh government formation case.

  1. A Question of Jurisdiction (by Rishav Ambastha)
  2. On the Powers of the Governor (by Anmol Jain)
  3. On the Powers of the Governor: A Response – I (by Amlan Mishra)
  4. On the Powers of the Governor: A Response – II (by Nivedhitha K)
  5. On the Powers of the Governor: A Rejoinder (by Anmol Jain)
  6. Some Concluding Remarks

The Supreme Court’s Madhya Pradesh Government Formation Judgment – VI: Some Concluding Remarks

[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 (e.g., the introduction of structural mechanisms to ensure accountability)].


Late last month, this blog hosted an extensive debate on the Supreme Court’s judgment in the Madhya Pradesh government formation case (see Rishav Ambastha’s initial post on jurisdiction; Anmol Jain’s post questioning the correctness of the judgment; Amlan Mishra and Nivedhitha K.’s posts responding to Amlan; and Amlan’s rejoinder). The judgment is a particularly important one, because it is the first reasoned verdict by the Supreme Court, after many years of interim orders that were passed every time a government formation crisis arose.

In this post, I want to offer a few brief concluding remarks, drawing from the debate. Recall once again that the key question before the Supreme Court was whether the Governor of a state had the power to direct a convening of the legislative assembly, for the purposes of holding a floor test. The Supreme Court held that the Governor did indeed have that power. The key constitutional question was whether this power fell under the “discretion” of the Governor – i.e., whether it was an exception to the general principle that the Governor could only act upon the “aid and advice” of the Council of Ministers. The Supreme Court held that it did.

As the debate between Anmol, Amlan, and Niveditha on this blog demonstrates, a close reading of the Constituent Assembly Debates does not yield a definitive answer to this question. This is why the answer lies in a structural and purposive reading of the Constitution: which interpretation better fits with the Constitution’s overall structure and guiding principles? According to the Court, the argument goes something like this: in the ordinary course of things, when you have an existing government and a functioning house, the accepted way of challenging that government’s legitimacy is through a no-confidence motion, which then culminates in a floor test ordered by the Speaker. However, there may arise situations where a government that has lost the confidence of the legislature impedes or prevents the holding of a floor test, and continues in office de facto. This would be a violation of the principle of collective responsibility, and undermine executive/legislature relationship within a parliamentary structure. It is therefore justified for the Governor to step in, and direct a floor test, for the limited purpose of determining whether or not the government continues to enjoy the confidence of the house. The power of the Governor is thus derived from a structural reading of the Constitution, and the principles of parliamentary democracy.

The problem with the argument, however, is this: the protection of one principle of parliamentary democracy (executive accountability to the legislature) comes at the cost of another: the sovereignty of the legislature to determine the proceedings within the house, and the supremacy of the Speaker. This, indeed, is the key distinction between a government formation dispute after elections but before the formation of the government (which is what happened, for example in the first Karnataka case in 2018), and a government formation dispute when the composition of a functioning house is altered because of the resignation of sitting MLAs. This distinction was drawn by Dr. Singhvi during oral arguments, but was rejected by the Court. The distinction, however, is crucial, for the reasons pointed out above.

Now, the argument made by the Court – and in Amlan’s piece – is that vesting the discretion with the Governor is required because the standard method of bringing down a government that has lost the confidence of the house – i.e., a no-confidence motion – can be circumvented either by an adjournment of legislative proceedings, or by the Speaker simply sitting on the no-confidence motion (indeed, readers will recall that during the previous NDA government at the centre, the Speaker – quite literally – did not allow a no-confidence motion tabled by the Opposition to be voted upon). However – and this came out in Anmol’s rejoinder piece – both these attempts have a straightforward solution: judicial review. The UK Supreme Court has recently taught us exactly how and when a Court may declare a prorogation unlawful: when it is clear that the effect of that prorogation is to defeat the constitutional principle of executive accountability to the legislature. And our own Supreme Court, last November, while considering the issue of money bill, provided strong and persuasive reasons when the discretion of the Speaker can be challenged in Court. If mala fide certification of bills as money bills attracts judicial review, there is no reason why mala fide refusal to hold a no-confidence vote cannot.

The question, therefore, boils down to this: structurally, which is the better option to ensure executive accountability: the Governor or the Court? It is, to my mind, obvious that it is the latter, for the very straightforward reason that the Governor is a central government appointee, and judges are not. Given a choice, further accretion to the powers of the Governor infringes the federal structure in a way expanded judicial power does not.

I think this issue is particularly important, because in deciding these cases, the Court must necessarily navigate through three sets of facts that it cannot turn a blind eye to (and indeed, all three are flagged in the judgment). First: Governors should be neutral, but they are not. They act effectively act as agents of the central government. Second: Speakers should be neutral, but they are not. They effectively act as agents of their parties. And third: horse-trading happens. Legislators are paid staggering amounts of money to switch sides and bring down the government, and the technique of resignations is used to circumvent the rigours of the anti-defection law. A judgment that proceeds on the assumption that any one of these three things does not exist essentially operates in a parallel reality, where constitutional principles have come entirely unmoored from the factual situation that they are meant to apply to.

Now given these facts, how should the Court decide? In a previous post, I argued that the judicial doctrine should evolve in a manner such that the Court does not determine substantive outcomes (such as installing or replacing a government); but also, that the Court needs to ensure that the impact of the three issues highlighted above, upon the democratic process, is minimised. So, for example, in cases involving government formation immediately after a closely-run election: the Court cannot stop horse-trading from happening, but it can – by ordering an immediate floor test – minimise the time open to parties to engage in horse-trading, and curtail gubernatorial abuse (as happened in the Karnataka case). Once again, if in the case of a sitting government, a host of MLAs resign in a coordinated fashion to alter the composition of the house, this is not something the Court can stop; what it can do, however, is prevent the emergence of collusive situations involving the governor and the political party that appointed the governor, by eliminating him from the power equations at play. In addition, the Court’s approach should be informed by the fact that coordinated resignations suggest that horse-trading is going on. Thus, just as there is an overriding need in post-election government formation cases to prevent horse-trading through an immediate floor test, when the horse-trading has already happened (through resignations), an immediate floor test that does not allow the Speaker at least a reasonable amount of time to decide upon the resignations (the extent of the Speaker’s discretion here is a debate for another day) will have the effect of entrenching horse trading.

Some of these factors, I suggest, were bracketed by the Court, as it did not believe it could go into such issues. That, however, is a mistake: the Court is already making (correct) assumptions about the lack of neutrality of the Speaker, when it gives to the Governor the power to direct a floor test. What is sauce for the goose is sauce for the gander: in an ideal world, Speakers and Governors are neutral, and horse-trading does not happen. But we cannot recognise one departure from the ideal – the politicisation of the office of the Speaker – without recognising the other – i.e., bringing down governments through horse-trading. A holistic recognition of the structural problems involved, I would submit, would lead one to Anmol’s answer as the preferable one: the no-confidence motion remains the sole means of testing the continued legitimacy of an elected and functioning government, with the possibility of judicial review in case of an impediment is thrown up.

A final, somewhat unrelated point: as I have noted above, the Court acknowledges, towards the end of its judgment, that horse-trading is a feature of the polity. But here’s the thing: horse-trading is enabled and facilitated by vast amounts of money sloshing through politics, and for the last two years, the sloshing of unimaginable sums has been enabled by the mechanism of electoral bonds, which allow opaque and limitless corporate donations to political parties.  Constitutional challenges to the electoral bond schemes have been pending in the Supreme Court for more than two years, and successive Chief Justices have dodged, ducked, and evaded hearing the case. For this reason, one can only read judicial lamentations about horse-trading with a wry smile: the institution that actually has the power to do something about it (even if is a little bit) is the institution that is refusing to act. Of course, the decision to hear the case lies with the Chief Justice; therefore, it is not that the two judges who authored this judgment are responsible for the delay. But that, unfortunately, is becoming an enduring issue with the poly-vocal character of the Supreme Court: the same institution, speaking through different judges, criticises horse-trading, while refraining from hearing a case that would have a non-trivial impact upon that same horse-trading. If the Supreme Court is to retain its character as a constitutional Court, this problem desperately requires a solution.

To CAP or not to CAP: The Bombay High Court on Equality and Access to Education

In an interesting judgment delivered yesterday (Yash Pramesh Rana vs State of Maharashtra), a Full Bench of the Bombay High Court struck down Government Resolution [“GR”] dated 27.2.2013. This Government Resolution had restricted the application of a fee-reimbursement scheme only to those SC/ST/OBC students who had taken college admission through the government-run Common Admissions Procedure [“CAP”].

The facts were straightforward. To enter an engineering college in the state of Maharashtra, a student had to undertake the Common Entrance Test [“CET”]. On the basis of ranks obtained in the CET, students could then participate in the CAP, and gain admission into any of the colleges that were part of the CAP. However, not all colleges – including some minority colleges (the case itself concerned a Gujarati-language linguistic minority college) – were part of the CAP. Certain colleges had their own admissions process, that was approved by the Pravesh Niyantran Committee. The impugned GR – as indicated above – provided for a fee-reimbursement scheme to SC/ST/OBC students, but limited it only to the former category (i.e., those who took part in the CAP).

In a judgment authored by Dama Seshadari Naidu J., the Bombay High Court found that the impugned G.R. was entirely arbitrary, and violated Article 14 of the Constitution. The judgment is noteworthy, because it was decided almost entirely on the basis of a textbook application of burdens and evidentiary standards under Article 14. The Court observed that as the impugned G.R. created a classification, and disadvantaged one set of people (the category of students that was not granted fee reimbursement), a prima facie case of discrimination was made out. This, then, shifted the burden of justification onto the State. The State essentially produced two arguments: first, that extending the free-reimbursement scheme to all SC/ST/OBC students would be financially prohibitive, and secondly, that students who had gone through the CAP and those who had not constituted two separate “classes”, as the CAP was a transparent, well-documented, well-regulated, and non-discriminatory process of allocation.

On the first count, the Court held that mere financial difficulties, without something more, could not be a ground for discriminatory treatment. In other words, in a class of similarly situated people, the State could not refuse to one set of people a benefit that it was granting to another, on the basis that it did not have the financial capacity. This is self-evidently correct and logical. On the second count, the Court held that the State had failed to bring any evidence on record to show that the non-CAP process was any less rigorous and transparent than the CAP process, in any sense that justified withholding of identical benefits. Indeed, the Pravesh Niyantran Committee was also run by the government. Consequently, as the State had produced no evidence to justify its claim, the impugned G.R. was arbitrary and unconstitutional. As the Court correctly noted, following the US Supreme Court, the presumption of constitutionality would not stretch so far as to imagine the existence of an “undisclosed and unknown reason for subjecting certain individuals or corporations to hostile and discriminatory legislation.”

It is also interesting to note that Naidu J. framed the dispute within the backdrop of historical inequalities concerning access to education in India (going back to the 1850s), and the use of affirmative action as tool of corrective justice. This was relevant to the case, as one of the arguments raised by the State was that fee-reimbursement was simply a benefit it was conferring upon certain students; as there was no antecedent right to claim fee-reimbursement, a person who had been deprived of it had no locus to move the Court. Now at one level, of course, the Court correctly answered this by stating that any State action – including “largesse” – had to conform to constitutional principles. However, the Court also noted that – within the backdrop of structural inequality in India – fee-reimbursement for SC/ST/OBC students had to be understood as “a facet of affirmative action.” This immediately took it from the domain of largesse/benefits and into the domain of constitutional obligation, thus making it even more incumbent upon the State to frame a non-discriminatory policy of access.

Now, an interesting corollary of the Court’s observation is that if indeed fee-reimbursement is a form of affirmative action, then – as a non-reservation based form of affirmative action – it falls within Article 16(1) of the Constitution (guarantee of equality of opportunity). This raises a host of fascinating questions for the future, including whether specific claims of fee-reimbursement can be made against the State by socially disadvantaged communities (as 16(1) is framed as a right), the fact that such schemes can go beyond SC/ST/OBC communities (as 16(1) affirmative action measures are not limited to 16(4) beneficiaries), and so on. Of course, none of these questions were before the Court; however, it will be interesting to see whether future judgments will carry forward the logic of fee-reimbursement being a form of affirmative action, and what that might mean in practical terms.

Guest Post: Preventive Detention and the Dangers of Volcanic, Ever-Proximate, Ideologies

[Editorial Note: On 8th February, I hd written this blog post, about the judgment of the Jammu and Kashmir High Court upholding the administrative detention of Mian Abdool Qayoom, the 76-year old President of the Jammu and Kashmir Bar Association. In that post, I had pointed out that the High Court’s quotation of a line spoken by the Greek King Menelaus, in Sophocles’ play Ajax (itself copied without attribution from a prior judgment by Dipak Misra J) was unwittingly revealing: it demonstrated how Qayoom’s detention could not be justified under any framework of legal or constitutional reasoning, but only by an appeal to the brute power of arms (sticking with classical Greece, as the Athenians would say, “the strong do what they can and the weak suffer what they must.”)

At that time, it was difficult to imagine a future judgment of this High Court sinking even lower; but when the bottom is an abyss, it seems there is no limit to just how low you can go. A judgment by a division bench of the J&K High Court – also involving Qayoom’s detention (now approaching its tenth month, without trial) has achieved the spectacular feat of besting even the February judgment’s Greek fantasies in its intemperate language, its partisanship, its ignorance of basic constitutional principles, and its desire to defeat all other comers in achieving a swift and seamless merger of the judiciary with the executive. This is a guest post by Abhinav Sekhri, analysing it (cross-posted from the Proof of Guilt Blog. – G.B.]


81. As mentioned in para 37 of this judgment, while addressing his arguments on the ideology nourished and nurtured by the detenue, the learned Advocate General submitted that such ideology cannot be confined or limited to time to qualify it to be called stale or fresh or proximate, unless, of course, the person concerned declares and establishes by conduct and expression that he has shunned the ideology (emphasis supplied in original).

82. In light of the above legally rightful and sound argument taken by the learned Advocate General, we leave it to the detenue to decide whether he would wish to take advantage of the stand of the learned Advocate General and make a representation to the concerned authorities to abide by it. … (emphasis mine)

[Extract from Mian Abdool Qayoom v. Union Territory of J&K & Ors., LPA No.28/2020, decided on 28.05.2020]

This exchange is not part of the judgment of the Jammu & Kashmir High Court dismissing Mian Abdool Qayoom’s appeal against a Single Judge order that had rejected his challenge to order condemning him to preventive detention under the Public Safety Act. Instead, it is part of the order dismissing an application seeking Qayoom’s temporary release from Tihar Jail due to Covid-19. The High Court unequivocally supported requiring an oath of loyalty as a condition for releasing a 76-year-old diabetic detenu who is on surviving one kidney during a pandemic which has placed him under high risk.

A preventive detention order against political dissidents is not new for India, and certainly not new for Jammu and Kashmir. It is telling that one of the last judgments of the Federal Court, passed six days before the Constitution came into force, was one which upheld the preventive detention of Machindar Shivaji Mahar, mainly because he was a member of the Communist Party which advocated for armed revolution. Then as now, judges held that actively supporting violent ideologies can make it likely that the person will act in a manner prejudicial to public order.

The cynic would argue, then, that we never left the place which the Jammu & Kashmir High Court shows us in Qayoom’s appeal. The cynic is mistaken, because in between we gave to ourselves a Constitution, which ensured persons like Machindar Shivaji had a fairer process governing preventive detentions than what might have been granted under the erstwhile laws (processes which now apply to the Union Territory of Jammu & Kashmir). On top of this, the Indian Supreme Court has tried to enhance the fairness of these procedures over seventy years.

Even if the record of the Supreme Court on preventive detention is largely regrettable on the whole, there are times when one gets a glimpse of what justice looks like in a system where executive discretion is strongly tested by vigilant courts on the anvil of fundamental rights. It was one such moment in 1979 which saw the Supreme Court quash the detention orders of Mohd. Yousuf [(1979) 4 SCC 370], passed by the then State Government of J&K. A detention order passed against this “Die Hard Naxalite” was methodically taken apart by the bench and shown for what it was: An executive act based on vague and irrelevant grounds that could not deprive any person of her constitutionally reified right to personal liberty.

Mian Abdool Qayoom’s continued detention by virtue of the J&K High Court judgment is, I would argue, antithetical to the kind of justice shown in Mohd. Yousuf, where a court adopted a critical lens to executive determination without substituting its own judgment. Here, illegal grounds in Qayoom’s detention order are justified as being “clumsy”, and then the Court jumps in to fill the gaps despite proclaiming an inability to step into the shoes of the district magistrate authorising detention.

This is nowhere more apparent than the remarkable excursus about the relevance of ideology while considering preventive detention. The High Court goes much beyond a simple argument of allowing the police to consider a prior record to justify need for urgent preventive actions. It also goes beyond Machindar Shivaji and permits reference to activities of one’s political party as a basis to consider risks to public order. Instead, it suggests the authorities have legitimate grounds to detain persons for years without trial, based on their “ideology”.

48. Having considered the matter, we may say that an ideology of the nature reflected in the FIRs and alleged against the detenue herein is like a live volcano. The ideology has always an inclination, a natural tendency to behave in a particular way; It is often associated with an intense, natural inclination and preference of the person to behave in the way his ideology drives him to achieve his latent and expressed objectives and when he happens to head or leading a group, as the allegations contained in the FIRs suggest, his single point agenda remains that his ideology is imbued in all those whom he leads. … Generally, when a criminal act takes place, its impact may be felt within a small circle or its repercussions may be of bigger consequence, but with the passage of time the impact and the consequences generally subside or vanish. When it comes to propensity of an ideology of the nature reflected in the FIRs supported by the intelligence reports we have gone through, we are convinced that it subserves the latent motive to thrive on public disorder. In that context, we feel that most of the judgments of the Apex Court do not fit the facts and the given situation.

Therefore, we are left with no option but to say that an ideology that has the effect and potential of nurturing a tendency of disturbance in public order, such as is reflected in the FIRs registered against the detenue in the instant case, and of which the detaining authority is reasonably satisfied, can be said to be different from a criminal act or acts done sometime in the past and, therefore, would always continue to be proximate in their impact and consequence and, therefore, would not attract the judgments cited at the Bar on the point. … Furthermore, we are also of the view that such an ideology alleged against a person, if mentioned in the earlier grounds of detention, because of its nature of subsistence and propensity, would not lose its proximity and, therefore, can be taken into account and used for detaining such person subsequently if the detaining authority is satisfied that such an ideology of the person has the potential to goad or instigate disturbance in public order, in a susceptible given situation, like the one it was at the relevant point of time. … (emphasis mine)”

 

Let us take a moment to understand the significance of this rhetoric. Preventive detention powers are conferred upon executive officers to prevent certain kinds of danger by detaining a person without trial. While courts cannot review the officers’ subjective satisfaction of the facts requiring detention, there are some judicial checks in place. To ensure that this discretionary power is not beholden to an officer’s arbitrary prejudices and remains justiciable, the law requires that each detention order be backed by reasonable, relevant, and germane grounds which explain why detention was urgently necessary, which must be expressed clearly to enable a detenu to make an effective representation against the orders.

Requiring clear, germane, and proximate reasons meant that executive officers had to cite some instances of illegal / suspicious conduct as overt manifestations of any ideology which they considered prejudicial to public order — i.e., to flesh out an inherently vague notion. What the J&K High Court has done is taken this close connexion between objective real-world anchors for a subjective concept like ideology, and treated it to serious social distancing. Into the resulting gap falls judicial review of preventive detention. Ideology now becomes a blank cheque to be encashed by the executive whenever the circumstances suggest that its “volcano-like” qualities can prove detrimental to the public order; no matter that the most recent overt display of this purported ideology dates back several years. By no longer requiring the executive officer’s subjective satisfaction to have a proximate real-world anchor, judicial review is nearly reduced to its pre-1970s avatar of only checking if procedures are complied with.

The J&K High Court has, seemingly unwittingly, shown us a system that runs on punishing thoughts and beliefs. Only, here, we have no punishment with a trial and courts, but prevention, with the executive serving as judge, jury, and executioner. The only conduct “legally rightful” and sufficiently redemptive to erase the marks of a dissident ideology is an oath of loyalty, and its perpetual performance, subject to the satisfaction of the same authorities.

This time, too, shall pass.

Guest Post: Attachment of Property, Freezing Orders, and PMLA Investigations: The Need for Reasonable Exclusions

[This is a guest post by Abhinav Sekhri, first published on the Proof of Guilt Blog.]


In almost any prosecution, the property used to commit a crime becomes case property (a murder weapon). In some kinds of prosecutions, this extends to locking down the site of criminal acts (a brothel or a gaming house). There are also other prosecutions, such as those for money laundering, where a major focus is on identifying the property generated from criminal acts (flat bought by public servant from bribe money).

Countries across the world take the view that for effective deterrence of crime, law enforcement must also have powers to take away the proceeds of crime besides prosecuting the criminal act itself. In India, this translates into empowering law enforcement agencies with ability to pass orders for attachment / freezing of assets, to restrain anyone from altering / transferring property that is identified as part of the proceeds of crime. The pre-eminent example of this attachment / freezing order regime in India is the Prevention of Money Laundering Act 2002 [“PMLA”].

Broad Powers 

Currently, Section 5 of the PMLA confers upon investigating officers a power to provisionally (for upto 6 months) attach property which is believed to be “proceeds of crime” [Or property that is “involved in money laundering”, which may or may not be understood to mean a different thing]. To appreciate the breadth of this power, take a look at how Section 2(u) of the PMLA defines the phrase “proceeds of crime”:

“Proceeds of crime” means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad;

Explanation. — For the removal of doubts, it is hereby clarified that “proceeds of crime” include property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence;

 

Keeping aside the fact that the exact scope of this definition is still uncertain even to courts and is almost infinitely broad, there are two key takeaways from the definition: (i) Proceeds of crime can either be the actual property obtained through criminal activity or its value; (ii) The criminal activity itself need only be relatable to a scheduled offence [the list of predicate offences which allow invoking the PMLA].

What we have, then, is a power conferred upon investigating officers to take away almost any asset or property that they can show as having links to the alleged acts of criminality in a case. For example, it means the agency can issue warrants of attachment of a house, as the accused would have invested some money in building / buying the house which will be shown to bear a link to the alleged acts of criminality that are connected to the scheduled offence. And where the property itself is not identifiable, then it would probably trigger an attachment order qua certain amounts lodged in bank accounts.

Safeguards

The breadth of provisional attachment powers under the PMLA necessitates the existence of some legal safeguards to prevent undue hardship at the hands of executive officers. Enter, the three-step logic of the PMLA. The argument, essentially, is that the PMLA contains a multi-level system of safeguards to prevent abuse:

  1. First level — Provisional Attachment: Provisional attachment orders are time-barred and can only be issued if there are “reasons to believe” that property is the proceeds of crime / involved in money laundering. These reasons must be in writing. Further, such orders cannot interfere with enjoyment of immovable property;
  2. Second level — Confirmation: Within thirty days of issuing a provisional attachment order, a complaint must be sent to the Adjudicating Authority which then decides whether or not to confirm the provisional order. This is an independent tribunal which operates totally separately from the criminal court. At this stage, everyone interested in the property has the chance to make their case to show why it shouldn’t be attached, and a reasoned order must be passed by the Authority to justify its conclusions. This process is, again, time-bound.
  3. Third level — Appeal: A right of statutory appeal before an Appellate Tribunal for Money Laundering exists for all persons aggrieved by the orders of the Adjudicating Authority.

In almost any writ petition challenging attachment orders, this is a standard response on behalf of the law enforcement agencies to argue that the matter should remain within the PMLA system and not be taken up by the court.

The Need for Reasonable Exclusions

The three-step logic of the PMLA does offer some safeguards, in theory at least. But even so, this setup has critical design flaws.

The broad attachment powers of the PMLA exist in a system where eventual confiscation of the proceeds of crime requires a prior criminal conviction for money laundering offences. Therefore, almost every attachment order will likely subsist for the several years that it takes for any prosecution to complete. It also means that once a person fails to secure any relief through the three-step PMLA process, she will not be entitled to any enjoyment of her own property.

While this might not be a problem for small, replaceable items, such as a watch or a laptop, it becomes an unimaginable problem where the property is a house. Or, far worse, is the situation where the property attached is money lying in bank accounts. Here, the three-step safeguards come to nought as all access to the property is gone the moment a provisional attachment order is passed. What this means, then, is that a person is rendered penniless, and crippled in her ability to sustain the long legal battle required to prove her case first before the tribunals and then later in the criminal trial.

This is not the only drastic scenario that I can imagine. Consider, for instance, a case where money in bank accounts is attached as the actual proceeds of crime have since been sold. But now, these monies are held in the accounts of a company that has nothing to do with any money laundering allegation and offers gainful employment to hundreds of people.

These routine examples from the world of PMLA prosecutions show just how unfair this legal regime is.  It is also squarely unconstitutional. This complete deprivation of property by passing attachment orders for the entire asset is by no means a reasonable or proportionate manner to secure state interests. If anything, it is a classic case of pursuing state interests by trampling upon the most basic rights of affected persons.

A way to make this regime more palatable would be to start recognising reasonable exclusions from the scope of any attachment orders. For instance, allowing persons to remain in possession upon payment of rent; or allowing certain limited withdrawals to continue running a business and paying salaries; or paying lawyers’ fees. These are not revolutionary ideas and are in fact already part of the law in other countries [See, e.g.Section 303Z5 of the U.K. Proceeds of Crime Act, 2002; Luis v. United States, 136 S. Ct. 1083]. By engrafting a process of recognising reasonable exclusions within the PMLA statutory framework — at the stage of provisional attachment orders for movable property and at the confirmation stage for immovable property — the core fairness and proportionality concerns would be answered to some extent. Moreover, it would also help save judicial time, as currently such reliefs are sought either through writ proceedings in High Courts or through interim orders before the Appellate Tribunal.

Conclusions

The PMLA has not been a statute shy of legislative tinkering. Often, this has been a response to some or the other gaps being pointed out in the scheme of the Act. The absence of any reasonable exclusions from the attachment regime is as big a gap as there can be. It leads to a disproportionate deprivation of the basic rights (and needs) of innocent persons, and also wastes valuable judicial time and effort. Ergo, a happy ending? Remember, it is the hope that kills you.

Coronavirus and the Constitution – XXIX: Sub-National Debt & Art. 293(4) – Some Constitutional Concerns [Guest Post]

[This is a Guest Post by Harshil Watson.]


Recently, the Finance Minister, while declaring the final tranche of the Covid-19 economic package, acceded to the request of the States, and raised their borrowing limit to 5 per cent of Gross State Domestic Product (“GSDP”), up from 3 per cent before, fixed by the Union Government (hereinafter referred to as “Center”) under the Fiscal Responsibility and Budget Management Act, 2005. In itself, this is a welcome move. Allowing States to borrow an additional Rs 4.28 lakh crore this year will provide them with the resources to fight COVID-19 and perhaps, help them maintain their budgeted expenditure allocations. However, this increment comes with certain attached conditions.

As per the announcement, the first tranche of additional borrowings from the Center amounting to 0.5 per cent of GSDP will be unconditional. However, the next 1 per cent of borrowing will be allowed in four tranches, linked to reforms in the areas of ease of doing business, implementation of the Center’s ‘one nation one ration card’ scheme, implementation of power sector reforms to be brought in through Electricity Amendment Act, 2020, and working towards increasing revenues of urban local bodies. States will be allowed to borrow the final tranche of an additional 0.5 per cent only if they ‘completely’ achieve the targets in three of the four reform areas.

The two types of conditions imposed, out of which one is tied to specific purposes and the other is an implementation-based performance condition, form the subject matter of this post.

Concept of Borrowing under the Constitution

293. Borrowing by States

(1) Subject to the provisions of this article, the executive power of a State extends to borrowing within the territory of India upon the security of the Consolidated Fund of the State within such limits, if any, as may from time to time be fixed by the Legislature of such State by law and to the giving of guarantees within such limits, if any, as may be so fixed

(2) The Government of India may, subject to such conditions as may be laid down by or under any law made by Parliament, make loans to any State or, so long as any limits fixed under Article 292 are not exceeded, give guarantees in respect of loans raised by any State, and any sums required for the purpose of making such loans shall be charged on the Consolidated Fund of India

(3) A State may not without the consent of the Government of India raise any loan if there is still outstanding any part of a loan which has been made to the State by the Government of India or by its predecessor Government, or in respect of which a guarantee has been given by the Government of India or by its predecessor Government

(4) A consent under clause ( 3 ) may be granted subject to such conditions, if any, as the Government of India may think fit to impose.”

While States have the authority to borrow under Article 293 (1) of the Constitution, the Center exercises control through Article 293 (3), which requires state governments that are indebted to the Centre to seek its consent before borrowing. While giving such consent, the centre may impose conditions as it may deem fit under Article 293(4). As all the States owe money to the Centre, in effect, today no State can raise loan without the Centre’s consent. The States are also debarred from raising any loan out of India. Foreign loans can be raised exclusively by the Centre.

The imposition of the above-mentioned performance conditions through Article 293(4) by the Government is unprecedented. On a perusal of previous reports of the Finance Commissions (e.g. here and here), one may note that the Finance Commissions, while deciding the quantum of the loans to be granted to the States, have always taken under consideration only financial factors like debt-GSDP ratio, debt to revenue ratio, fiscal deficit etc. Thus, it is only the first time that the Government, without any such recommendation of the Finance Commission, has decided to impose implementation-based performance goals.

Therefore, the unprecedented use of Article 293(4), clubbed with its widely worded language, poses various Constitutional concerns such as:

  1. By directing the States to implement Central schemes, whether the Center has confused its financial power under Art. 293, with its administrative power of control under Art. 256?
  2. By tying the borrowed funds of the State to specific purposes, whether the Center has encroached upon the financial autonomy of the States, and in effect disturbed the Federal character of the Constitution?
  3. By coercing States into implementing Central schemes, whether the Center has violated the inherent limitation of ‘consent’ and ‘cooperation’ in Art. 293?

Colourable Exercise of Power under Article 293(4)

With respect to the first question, I argue that power under 293(4) to impose conditions is purely a financial power of the Center, which exists by virtue of it being an existing lender, and this financial power must not be confused with its general power of control over the States under Art. 256.

The underlying premise of the power under Art. 293(4) is the outstanding debts of the State. This suggests that a possible purpose of this provision is to protect the rights of the Centre in its capacity as a creditor. Apart from this, a broader purpose of creating a mechanism to facilitate macroeconomic stability may also be discernible, as State indebtedness negatively affects general government debt, i.e. the fiscal health of the nation as a whole. Since clause (4) enables the Central Government to impose conditions only when granting consent under clause (3), reading these two clauses together suggests that such conditions should also be limited to questions of State indebtedness and macroeconomic stability. In other words, conditions which do not pertain to State indebtedness and which have no fiscal stabilising effect would be beyond the ambit of clause (4).

Article 256: Obligation of States and the Union

The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.

If we were to also assume power under Art. 293(4) to mean an administrative power of control, it couldn’t have been the intention of the makers of the Constitution to restrict this power only to States with outstanding loans. This would lead to an absurd conclusion that only the States with outstanding loans are to implement the central schemes and not the others who have no pending debts. There exists no rational connection between outstanding debts and implementation of central schemes. It is only because all the States today are indebted to the Union, that the Centre has misunderstood this limited power of a lender with its administrative power of control under Art. 256.

Federalism and Financial Autonomy of the States

By now, it has been held by numerous judgements that the Courts should not adopt an approach which has the effect of or tends to have the effect of whittling down the powers reserved to the States. In light of this, it may be possible to argue that conditions imposed under clause (4) of Article 293 should not impinge on the federal character of the Constitution, beyond what is strictly required for the purposes of this provision.

I argue that the Center, by directing state spending towards specific central projects, has encroached upon the financial autonomy of the States and has used this power to get a backdoor entry into domains exclusively reserved for the States. Under Art. 266, money received through loans by Central Government, until it is repaid, forms part of the State Consolidated Fund and the States have the autonomy to determine their spending priority. Along with loans, Central assistance also flows to the States through grants under Art. 282.

Art. 282: Expenditure defrayable by the Union or a State out of its revenues The Union or a State may make any grants for any public purpose, notwithstanding that the purpose is not one with respect to which Parliament or the Legislature of the State, as the case may be, may make laws

As these are ‘grants’ by the centre to the States, the States are under no obligation to return these sums. Therefore, essentially being the Center’s money, these are also linked to specific purposes and often used to incentivize States to implement central schemes. However, this is not the case with loans under Art. 293. Because it is borrowed based on State’s needs and because it forms part of the State Consolidated Fund, States have significant autonomy over its spending and any law/exercise of any executive power of the Center, which takes away this autonomy of the State, is antithetical to the principle of Federalism.

For instance, one of the conditions imposed in the current scenario is the reforms to be undertaken in the domain of ease of doing business. Ease of doing business is an ideological condition – what if Kerala, as a communist-run State, does not want to prioritise business? Can the centre essentially impose an economic model under the guise of Article 293? Indeed, the Kerala government may have different priorities for allocating resources. Such conditions, then, conflict with the principle that States have the freedom to determine their spending priorities.

Demarche from Cooperative Federalism to Coercive Federalism

While the Center has, through its powers under Art. 293(4), encroached upon the domain exclusively reserved for the States, the fact that the Center has chosen to practically coerce States in implementing the Central schemes is a greater problem in the Indian Federal landscape. ‘Cooperative Federalism’ may not be a Constitutionally enforceable obligation, but is certainly a principle inherent in the Federal idea and also fundamental to the successful operation of the federation in practice, particularly where the vertical fiscal imbalance is such a dominating feature of that landscape.

The idea of ‘cooperative federalism’ is something which has also now been acknowledged by the Indian Courts in various judgements. (See Jindal Stainless). More so, the Court in the State of Rajasthan, notes the observation of Granville Austin wherein he is of the view that “the Constitution of India was perhaps the first constituent body to embrace from the start what A.H. Birch and others have called “cooperative federalism”. 

‘Cooperative Federalism’, as the Constituent Assembly debates suggest, becomes more important particularly in the context of Art. 293. Article 293 was picked up from Section 163 of the Government of India Act, 1935. Interestingly, that section under the Act had a protective clause, which went as:

(4) A consent required by the last preceding subsection shall not be unreasonably withheld, nor shall the Federation refuse, if sufficient cause is shown, to make a loan to, or to give a guarantee in respect of a loan raised by, a Province, or seek to impose in respect of any of the matters aforesaid any condition which is unreasonable.

While the whole section was picked as it is, this particular subsection was dropped. The only reason that could be gathered on a reading of the Constituent Assembly Debates on Draft Article 269, is, that the adoption of a Constitution brought with itself a paradigm shift from coercive Federalism to cooperative Federalism. On one will notice a sense of security amongst the members and a great trust in the concept of cooperative Federalism. M. Ananthasayanam Ayyangar, in regards to draft Article 268 and 269 remarked:

In the present Government of India Act, there is a clause that this consent ought not to be delayed or unreasonably delayed. There is no such provision in this article, because it is thought such a provision is not necessary. Under the Government of India Act, it was thought there will be a different agency who will not be, a national of this country, in charge of the administration. But now with national governments in the provinces and a national government at the Centre, it is felt that such a provision is not necessary. I hope articles 268 and 269 will meet the situation.

Similarly, Granville Austin in his book “Constitution of India – Cornerstone of a Nation” (9th ed. 2005 at p.233), has stated thus: —

When this Article was under consideration, seven out of the nine provinces had outstanding loans. Yet, the provincial governments evidently did not believe that this put them unduly in the grip of the Union and did not oppose either the Article or the proviso. Nor, it seems, has the working of this Article during the last decades been detrimental to the interests of the States.

 

A structuralist reading of the Article suggests that the decision of the members to not include a saving provision like S. 163(4) in the present-day Article 293, on the basis of the coming into being of a cooperative federalist structure, must be taken into account while interpreting the provisions of this Article. The fact that the States were denied foreign borrowing, making the Center their only resort, was accompanied by an inherent expectation that such a dominant position of the Center will not be used to coerce States into implementing Central reforms.

In light of this historical trajectory, the inherent limitation of cooperative federalism must be taken into account in reaching the conclusion that the Center cannot legally compel the States into prioritising their spending to Central reforms, as this would amount to practical coercion.

Way Forward

Unlike Art. 275, wherein the Central Government shall make grants-in-aid to States as per Finance Commission’s recommendations, there is no statutory duty under Art. 293 to consult any specialized body before granting loans or imposing conditions. Conventionally, on the discretion of the Union, the quantum of borrowing and the conditions to be imposed forms part of the Terms of Reference (ToR) to the Finance Commission. However, as this happens only on the discretion of the Union, in the present case, the conditions imposed are without any recommendations from the Finance Commission. Thus, this must pave way for establishment of something on lines of Loan Council, like in foreign jurisdictions.

In this regard, Australia’s efforts in adopting a cooperative fiscal mechanism by establishing an Australian Loan Council are worth noting. The Council meets once a year and consists of the Prime Ministers of the Centre and the States. Each State has one vote, but the Centre has two and a casting vote. All loans are arranged by the Centre and then distributed among the various governments in accordance with an agreed formula. This arrangement has reduced competition among the governments for funds and thus loans can now be arranged on more advantageous terms than was possible before

Conclusion

Hence, based on the above arguments, reading of Article 293 suggests that the conditions imposed by the Centre will not fit into the limited ambit of Article 293(4).

Whether or not the Supreme Court ever gets an opportunity to visit the interpretation of powers under Article 293(4) is yet to be seen. In the event that it does, there may be cause to speculate that the Court may uphold the older regime of strong financial intergovernmental relations between the Center and the States in the light of the robust federal structure – we claim to possess.

Coronavirus and the Constitution – XXVIII: Dialogic Judicial Review in the Gujarat and Karnataka High Courts

Previously on this blog, we have discussed models of executive accountability in the context of the Covid-19 pandemic, and the role of judicial review during the crisis. As I have argued before, the debate has stemmed from the fact that in most of the cases to come before it, the Supreme Court has framed the issue in terms of a misleading binary: the Court (according to this binary) has one of two options: “take over” the management of the pandemic from the executive, or adopt an entirely quiescent posture towards the executive. Framed this way, this binary admits of only one answer: the executive is obviously better-positioned to deal with the pandemic, and therefore, the second option (quiescence) must be taken.

But, as others have pointed out on this blog, this is a false choice, and indeed, ignores the Supreme Court’s own prior jurisprudence on the question of socio-economic rights. There are a range of alternatives between usurpation and quiescence, that involve holding the executive to account in the judicial forum, without the judiciary necessarily taking over the executive role. Around the world, for example, scholars have articulated the concept of “dialogic judicial review“, where – in certain cases – the judicial forum is a site of dialogue between courts, citizens, and the government; often, the very process of the government being called upon to explain its decisions before the courts reveals important shortcomings in the decision-making process (as well as in the substantive nature of the decision itself), which can then be corrected.

In this context, two recent sets of orders by the Gujarat and Karnataka High Courts present us with examples par excellence of dialogic judicial review, and how it can make a difference to constitutional rights in the times of Covid-19. On 22nd May, the High Court of Gujarat passed a detailed order that dealt with the subject of medical care in the state, the transportation of migrant workers, questions of food and shelter, and so on. The order, authored by Pardiwala and Vora JJ, makes for fascinating reading. Its genesis was a previous order of 14th May, where the Court had put a set of questions to the state government of Gujarat, on the lines set out above. In response, the government filed a detailed affidavit before the Court, answering these questions. The affidavit covers the first twenty pages of the High Court’s order, and includes, inter alia, figures on the total number of migrants in the state (including the methodology used by the government to arrive at those figures), figures on the number of trains that had already left the state to carry migrant workers back home, payments made to various classes of constructions workers, specific work-related issues in Surat and Kutch, Memorandums of Understanding entered into between the state government and various private hospitals, and testing guidelines and discharge policies. In addition, the state government filed affidavits signed by medical officers, and progress reports on medical facilities.

On a study of the data, the Court found that (a) public healthcare facilities were overwhelmed and unequipped to deal with the pandemic; (b) for this reason, the state government had entered into MoUs with private hospitals, (c) but that nonetheless, in certain cases, private hospitals had levied exorbitant charges for treatment (see paragraph 45). On this basis, the Court first issued a direction that, in view of the public health crisis, it would not be open to private hospitals to refuse entering into the MoU with the government. Furthermore, while the state government had issued a notification on 16th May fixing prices and bringing a certain number of private hospitals within its ambit, that notification was ambiguous in what it covered. Additionally, the Court noted that certain specific private hospitals had been left out of the Notification, without any explanation. Consequently, the Court observed:

We would like to know from the respondents as to why the above named hospitals are not in the list. We would also like to know whether any talks were initiated in this regard with the management of the above referred hospitals. The hospitals we have referred to above are reputed hospitals and are capable of admitting thousands of patients in all … we direct the State Government to initiate talks with all the eight hospitals named above and enter into a Memorandum of Understanding in this regard. All the eight hospitals referred to above shall extend their helping hand in this hour of crisis. We are saying so because as days are passing by more and more cases of COVID19 positive are being reported. It is practically impossible now for the Civil Hospital, Ahmedabad and the SVP Hospital, Ahmedabad to admit all these COVID19 patients.

I cite this as one of the (many) examples of dialogic judicial review from the order, as it demonstrates the point with particular clarity: instead of framing policy, the Court examined existing government policy, and found that there was no discernible reason for its limited application, in the context of the pandemic and the accompanying right to health. The absence of a rationale for the decision-making process allowed the Court to then extend the scope of that policy further. In addition – and in stark contrast, for example, to the Supreme Court’s attitude in the free testing case – the Court specifically asked the government to explain (on the next date of hearing) the basis on which the government had worked out the rates of remuneration with private hospitals, and what facilities had been excluded and included. Notably, the Court did not set a particular rate or charge itself, but asked for an explanation of the decision-making process – and it will be interesting to see how that plays out when the matter is heard next, at the end of the month.

In the subsequent parts of its judgment, the Court focused on conditions at civil hospitals – and passed directions on their improvement – appointed a commission to examine the claims raised by reports about abuses in these hospitals, and passed another set of directions on immediate measures to be taken. Further lacunae were also pointed out in the testing process, but here the Court did not pass directions, but rather, advisory observations to the state government on questions of publicity and awareness. On the transportation of migrant workers – based on the government’s own admission that buses were unsuitable for such transport – the Court directed either the Railways or the state government to bear the cost of a one-way train ticket for those migrants who wished to return home. And finally, the Court extended temporary bail orders for another forty-five days.

The order of Pardiwala and Vora JJ exhibits some of the important features of dialogic judicial review: on an initial date, the Court put a series of questions to the government on its handling of the pandemic. The government responded with a detailed report. On the basis of a close study of the facts in the report, the Court (a) on some issues, passed directions tweaking the government’s policy, where it was under-inclusive in its protection of constitutional rights, without any rational basis underlying the decision-making process; (b) on other issues, put further questions to the government, which would be discussed on the next date of hearing; and (c) on a final set of issues, accepted the government’s stance (such as, for example on the legal prohibition upon using RERA money to pay construction workers). In addition, on issues involving core, immediately enforceable constitutional rights – such as temporary bail, and the freedom of movement (that had become a necessity as a result of the government’s own choice of lock-down) – the Court passed direct orders.

Something similar is visible in a set of orders passed by the Karnataka High Court, involving migrant workers. A bench of Chief Justice Oka and Nagarathna J. were seized of the matter. On 5th May, the bench passed an order on the issue of the transport of these migrant workers. The state of government of Karnataka filed written submissions in response. These were considered by the Court in a detailed order dated 12th May, 2020. The state government cited MHA orders, and a protocol for the inter-state movement of migrant workers, as covering the field. On this basis, the Court found that there was now a policy decision taken by the state government that migrant workers from other states could return home through special trains. Having noted this, the Court then observed that it was the burden of the state government to communicate this policy decision to the migrant workers in question.

This brought the Court to the question of train fares. Importantly, the Court framed this as a question of constitutional rights. It noted that the reason why migrant workers needed to travel back home – and, correspondingly, their desperate situation – was a loss of livelihood (paragraph 10). This loss of livelihood – as we have discussed above – was itself caused by the decision of the central and state governments to impose a nationwide lockdown to deal with the Covid-19 pandemic. Thus, with the link between State action and deprivation of constitutional rights clear, the Court noted that “prima facieit appears that considering the constitutional rights of the migrant workers, no one should be deprived of an opportunity to go back to his own State only for the reason that he has no capacity to pay for his transport.” The Court did not, however, pass an immediate order on the issue; rather, it asked the state government to take an “immediate decision” on the question of paying the railways fares of those migrants who were unable to pay, and to work out a schedule for the same. Importantly, it asked the government to place its response on these issues before it, within a week from the order.

It is important to note the aftermath of this: that the state government of Karnataka did formally agree to pay the rail fares of migrant workers. However, this was apparently partial, and applied only to migrant workers originally from Karnataka, who wanted to come back, and not the other way round. This policy was then questioned by the Court in a subsequent order, where it was reiterated that constitutional rights were at stake. In its most recent order – dated 22nd May – the High Court asked the state whether money from the National Disaster Response Fund could be used to pay for the fares*; the next date of hearing is 26th May (Tuesday). This, then, is a classic example of dialogic review in action: the High Court of Karnataka’s initial probing compelled a change in executive policy; nonetheless, the change was found to be insufficiently protective of fundamental rights, and at the time of writing, the executive is being called upon to justify itself in the judicial forum, with the Court itself playing a role in engaging with other possible solutions that could be found.

The set of orders passed by the Gujarat and Karnataka High Courts are granular and specific in nature. They deal with issues arising within state borders, and do not purport to offer grand solutions to the problems caused by the pandemic and the lockdown. However, this is precisely where their importance lies, within the framework of dialogic judicial review: they demonstrate clearly that the binary postulated by the Supreme Court’s orders on the subject is a false one. The task of the Court is not to frame policy, but nor is it to leave the field, especially in times like Covid-19, where individual rights are particularly vulnerable to exploitation. Here, the task of the Court becomes one of oversight and scrutiny, through the method of dialogue in the judicial forum. This dialogue, as we have seen, is a continuing one, and its continued articulation in following hearings will be important to follow.


*Readers will recall the Chief Justice of India’s extraordinary observation, soon after the lockdown was announced, about why workers needed wages if they were getting two square meals a day. Interestingly, an observation by the Karnataka High Court in this order lays bare the hollowness of that statement. As the Court noted:

We must record here that it is not merely an issue of survival of the migrant workers who are unable to go back to their respective States because they do not have money, there are other needs of the migrant workers, such as their health, their families. The migrant workers who are staying in the State by leaving their families in the States of their origin are in precarious position because they are unable to send money for the maintenance of their respective families. These are all human issues which need to be addressed by the State Government as well as the Central Government, considering the concept of Welfare State.

 

Guest Post: An Executive Court and a Judicial Committee: The Supreme Court’s Decisions on the Internet Restrictions in Kashmir

[This is a guest post by Chintan Chandrachud, on the Supreme Court’s decision in the 4G Internet case. Mihir’s analysis of the judgment on this blog can be found here.]


On 11 May, the Supreme Court issued its decision in a case challenging the restriction on mobile internet speed in Jammu and Kashmir. The Court neither decided whether the restriction was unconstitutional nor issued a remedy. Instead, it referred the matter to a three member special committee. The Supreme Court’s decision on 11 May was a sequel to its decision of 10 January 2020. At 149 pages collectively, the Court’s decisions are relatively brief by its standards. However, they are far more revealing about the role of the Court than many other decisions of greater length and complexity.

On 4 August 2019, mobile phone networks, internet connectivity and landlines were disabled in large parts of Jammu and Kashmir, in anticipation of the constitutional changes that would follow. (As is well known, these “virtual” restrictions – frequently described as the “communications lockdown” – were also accompanied by restrictions on physical movement, with several political leaders being placed under house arrest.) The communications lockdown was imposed under the Temporary Suspension of Telecom Services Rules (“Suspension Rules”), which enable the central or state government to suspend telecom services when there is a public emergency or a risk to public safety. The Suspension Rules included a mechanism for solitary review (rather than periodic review) of suspension orders. A committee of three bureaucrats would meet once, within five days of the relevant suspension order, to determine if it was appropriate.

In its decision of 10 January, the Court addressed the question of whether the suspension orders that had been passed since 4 August 2019 – which were the pieces of the puzzle constituting the communications lockdown – were unconstitutional. In arriving at its decision, the Court prescribed a series of important principles. Even though the Suspension Rules did not specifically require their publication, the Court held that suspension orders should be published going forward. It replaced the solitary review mechanism with a periodic review mechanism – in which the review committee would be required to meet every seven days to assess the appropriateness of suspension orders. The Court also concluded that blanket suspension orders (either in terms of the duration of time for which they applied or in terms of their geographic application) would not be constitutionally permissible. However, the Supreme Court failed to decide the most important issue – whether the suspension orders were constitutionally invalid and should be set aside. This was nothing short of an abdication of responsibility. It is no coincidence that the right that guarantees direct access to the Supreme Court when fundamental rights are violated refers to “remedies for enforcement of rights”. The Court may have recognised the rights at stake, but failed to enforce them and award a remedy.

Following the Court’s decision, a review committee of three state-level bureaucrats met periodically to consider fresh suspension orders that gradually narrowed the scope of the lockdown. Fixed-line internet connectivity was restored (first for essential services and hospitals, later for software companies, and ultimately more widely). Access to social media websites was gradually reinstated. However, elements of the thirteen suspension orders passed between the Supreme Court’s decisions of January and May seemed vulnerable to constitutional scrutiny. For example, between 14 January and 4 March, the suspension orders imposed a “white-listing” regime, under which only specifically white-listed websites could be accessed through the internet. This resulted in some arbitrary inclusions and exclusions, and an abandonment of the basic principles of net neutrality. In addition, mobile internet has continued to remain restricted to 2G speeds, well below the 4G speeds that would otherwise be available.

The restriction on speed of mobile internet was addressed in the Supreme Court’s judgment of 11 May. It is easy to typecast this as a narrow restriction (slow internet versus fast internet). Examined more closely, however, this is a question of access rather than speed. Imagine using applications designed for 2020 on a mobile internet connection that is in healthy competition with dial-up internet of the 1990s. The constitutional challenge was framed with a focus on the impact of the restriction. It was argued that the restriction hindered doctors and the general public from accessing information on COVID-19, and students from accessing educational material and literature when classes in physical classrooms were not taking place. The government argued that the restriction was in the interests of national security, and was directed towards reducing misuse of the internet by terrorists and militants.

In what was virtually an action replay of its decision in January, the Supreme Court refused to determine the constitutional validity of the restriction. Even if the decision of 10 January were to be justified on the basis that the Court established a new periodic review mechanism which would consider the appropriateness of suspension orders going forward, that rationale was now no longer available. The restriction that was challenged was a product of the new review mechanism, and the Court was tasked with determining if it was unconstitutional. Instead of doing so, the Court set up yet another review committee – this time consisting of a combination of national and state level bureaucrats – to “examine the contentions” of the parties and determine whether the restriction is appropriate. To be sure, the Court did not ask the committee to report back to it with its analysis. The petitions have been disposed of, and it is the committee that will be deciding the propriety of the restriction. To state the obvious, the Court has delegated its sacrosanct obligation of determining the constitutionality of executive action to the executive.

Equally disconcerting as the Supreme Court’s delegation of authority, however, is its assumption of responsibility. The Court opens its judgments of 10 January and 11 May with the surprising observation that it is the Court’s role to strike a “balance” between “liberty and security”. It is easy to understand why any Court would veer towards security over liberty when the question is framed in this way. However, this framing is at odds with the Court’s role as an independent decision-maker. Neither proportionality nor reasonableness review requires the Court to be saddled with the responsibility of “striking a balance” between liberty and security. That is plainly the job of a democratically elected government. The Court’s role is simply to determine, applying the principles articulated in its 10 January decision, whether the balance that has already been struck by the government is constitutionally permissible.

If the Supreme Court is once again called upon to determine the constitutionality of the restrictions on communication, it should not only take back the adjudicative mantle, but also hand over the executive one.

Guest Post: Slum Evictions and a Constitutional Right to Resettlement and Rehabilitation

[This is a guest post by Mohammed Afeef.]


In this post, I explain how the cases of Sudama Singh and Ajay Maken, decided by the Delhi High Court, and Rutuparna Mohanty, decided by the Orissa High Court, uphold the proposition that for any forced eviction of a slum, resettlement and rehabilitation [“R&R”] (preferably in-situ) have to be carried out or ensured prior to the de facto eviction of slum residents from both public and private land.

This piece does not examine the legality or illegality of forced slum eviction per se. However, in the event of a forced eviction, there are certain non-negotiable safeguards available to slum residents under law. These include the right to be rehabilitated and the right to be heard with regard to the form and shape of rehabilitation; it is only these aspects this piece will address. I also explain how the trio of cases mentioned represents a shift from the dominant trend of viewing slum dwellers as ‘encroachers’ to rights bearers.

Question of resettlement and rehabilitation (Pre-Sudama)

Initial cases relating to slum eviction before the Supreme Court include Olga Tellis & Ors.vs.Bombay Municipal Corporation (1985) and K. Chandru vs. State of Tamil Nadu (1985). In Olga Tellis, eviction of pavement and slum residents was allowed after prior notice and the opportunity of being heard; however, the court held that the highest priority must be given to resettlement of the slum dwellers. In K. Chandru, based on the affidavit of State of Tamil Nadu, the Court expressed its confidence that the Government would continue to rehabilitate in such cases. However, this R&R as a right was not articulated nor backed by a statute.

The consequence of this was the emergence of the legal discourse of ‘slums’ as nuisance during the post-1990 period, as pointed out by D. Asher Ghertner. The right to rehabilitation of slum residents was denied in a slew of judgments. In Almitra H. Patel vs. Union of India (2000), the Court, while referring to slum dwellers as encroachers, held that rewarding an encroacher on public land with free alternate site is like giving a reward to a pickpocket.

Anuj Bhuwania, in his book, points out that the Delhi High Court, emboldened by the ‘pickpocket’ analogy of the Supreme Court, made Public Interest Litigation in Delhi at least for the time period 1998-2010, a ‘Slum Demolition machine’. The Delhi High Court in Okhla Factory Owners Association, (2002) quashed the Delhi government’s slum resettlement policy itself, following the same approach: that ‘an encroacher does not deserve R&R’. While this order was subsequently stayed by the Supreme Court, as Bhuwania explains, this didn’t stop the Delhi High Court from continuing its demolition drive via PILs, such as the Yamuna Pushta demolitions, which resulted in the displacement of 35,000 families.

These judgments are similarly premised. First, they distinguish between citizens “who squat on public land” and “citizens who have paid for land”, pitting their rights against each other and deciding in favour of the latter. As Ghertner points out, in doing this, the Court elevates and prioritizes the concern of preservation and prosperity of private property. Second, there is a complete blindness to the positive obligations of the State to provide livelihood and shelter to its citizens.

Crystallizing the right to Rehabilitation & Resettlement of slum dwellers

In the cases of Sudama Singh, Rutuparna Mohanty and Ajay Maken, one notices a shift from the earlier phase regarding the recognition the right of R&R of evicted slum dwellers, irrespective of the kind of land involved i.e. public or private.

Sudama Singh vs. Govt of Delhi (2010)

In the first of these three cases, the petitioners were seeking R&R to a suitable place after the demolition of their ‘jhuggies’ (hutments). At the time, the Delhi Government had a policy for relocation and rehabilitation; however, the stand of the State Government was that that alternative land was not required to be allotted to the inhabitants of lands which came under the right of way.

A bench comprising of A.P. Shah, C.J and Muralidhar,J. of the Delhi High Court rejected the stand of the Government, holding that nothing in the policy excluded this category of persons and that the Master Plan for Delhi (MPD) – 2021 prepared by the Delhi Development Authority was of binding nature, and that it envisaged rehabilitation or relocation of the existing squatter settlement/jhuggi dwellers Subsequently, the Court proposed a mechanism, wherein the exercise of conducting a survey had to be undertaken for the purposes of providing alternative accommodation. The sequence is clear: the positive obligation of the State to provide or ensure R&R has to be prior to initiating moves for evictions. The Court also reiterated that the denial of the benefit of the rehabilitation violates their right to shelter under Article 21.

Rutuparna Mohanty vs. State of Orissa,(2010)

Similarly, in this matter; slum dwellers that were evicted from the premises of S.C.B. Medical College approached the Orissa High Court, seeking (i) interim measures such as shelter, food, education ii) a direction to the State Government to formulate a scheme for R&R; and (iii) an alternative site to the displaced slum dwellers. The stand of the State Government was that it had to ensure that the unauthorized occupants are removed.

Gopala Gowda, C.J. and I. Mahanty, J. of the Orissa High Court rejected the State’s stand and granted the reliefs sought. The Court, firstly, highlighted various existing rehabilitation schemes, both central and state, that had not been implemented in Cuttack. Secondly, the Court located the positive legal obligation to rehabilitate to Article 243W (Powers, authority and responsibilities of Municipalities) read with entries of the 12th Schedule that relate to Slum improvement and Urban poverty alleviation. The Court then read various DPSPs such as Articles 38 and39(a) along with Article 19(1)(e) and (g).

Ajay Maken vs. Union of India,(2019)

The Ministry of Railways (Union of India), with the assistance of the Delhi Police, forcibly evicted around 5,000 dwellers of a jhuggi jhopri basti located on railway land. The stand of the Railways was that the area was required to be developed and that the Railways were concerned about the safety of the persons who were living perilously close to the railway tracks.

A bench consisting of S. Muralidhar J. and Vibhu Bakhru J. of the Delhi High Court, held that on facts, sufficient notice was not given to the slum residents and that Delhi Urban Shelter Improvement Board did not carry out a survey of slum residents before the eviction the as per the Act and Sudama Singh. A series of interim orders was passed, directing all relevant authorities to work in co-ordination and carry out a comprehensive survey for the purposes of preparing a list of persons whose jhuggis were demolished on the day (the Court also granted some temporary relief for those who were displaced).

The final judgment in this case sets itself apart, in terms of its articulation of the Right to adequate housing and Rehabilitation, in a subject area, wherein Courts in the past have often mechanistically applied either the local municipal laws or the state slum improvement and clearance laws to a dispute. In developing the jurisprudence of the right to adequate housing it, the court drew certain principles from five South African Constitutional Court decisions:-

One is the refusal by the South African Constitutional Court to rigidly separate civil and political rights from socio-economic rights…. the effective protection of socioeconomic rights entails imposing a duty on the State to refrain from interfering with people‘s existing access to socio-economic resources. The other important facet is the emphasis placed by the Constitutional Court on deliberative democratic practices through the device of ‘meaningful engagement’with the affected groups. …… The State is obliged to take into confidence the affected groups about the schemes for rehabilitation it proposes for them and is prepared to review and re-shape them based on their inputs.

Two points emerge from the Court’s judgment: first, is the inter-connectedness of socio-economic and civil-political rights and second, that the affected parties must be heard and involved in the process of rehabilitation, and that the Constitutional Courts ought to function as a dialogue facilitating authority.

In a first, the Court also recognised the right to the city (RTTC) as a framework to make sense or give meaning to the Right to Shelter. In brief, the RTTC framework looks at urban settlements as a common good. Connecting this to India’s international legal obligations and the Constitution the court held:-

The RTTC acknowledges that those living in JJ clusters in jhuggis/slums continue to contribute to the social and economic life of a city. These could include those catering to the basic amenities of an urban population, and in the context of Delhi, it would include sanitation workers, garbage collectors, domestic help, rickshaw pullers, labourers and a wide range of service providers indispensable to a healthy urban life. Many of them travel long distances to reach the city to provide services, and many continue to live in deplorable conditions, suffering indignities just to make sure that the rest of the population is able to live a comfortable life. Prioritising the housing needs of such population should be imperative for a state committed to social welfare and to its obligations flowing from the ICESCR and the Indian Constitution. The RTTC is an extension and an elaboration of the core elements of the right to shelter and helps understand the broad contours of that right.

The Court then relied on the Delhi Slum & JJ Rehabilitation and Relocation policy, 2015,(framed under section 11 of the act) and the binding nature of Sudama Singh’s case to grant reliefs to JJ dwellers First, it directed the board to complete a survey and consult the JJ dwellers for the purposes of rehabilitation as per the 2015 policy. Second, only if in situ rehabilitation (alternate accommodation within 5 km radius) was not feasible, would adequate time be given to dwellers to make arrangements to move to the relocation site.

The stand of the Railway was that since the land concerned belonged to the Railways (Central government), the DUSIB act and the 2015 Policy which stemmed from the act was rejected. To this the Court held that the basic procedural protections and acknowledgment of the rights to adequate housing and against forced evictions were spelt out in Sudama Singh and would continue to govern the removal and resettlement of such jhuggis.

Conclusion

These three judgments mark a paradigm shift in the understanding of slum dwellers and their rights: from slum dwellers being viewed as ‘pickpockets’ or a ‘nuisance’ , to right bearing persons who are entitled to shelter by the State. Such an approach is abundantly clear in Ajay Maken, where the Court observed:

The law explained by the Supreme Court in several of its decisions discussed hereinbefore and the decision in Sudama Singh discourage a narrow view of the dweller in a JJ basti or jhuggi as an illegal occupant without rights. They acknowledge that the right to adequate housing is a right to access several facets that preserve the capability of a person to enjoy the freedom to live in the city. They recognise such persons as rights bearers whose full panoply of constitutional guarantees require recognition, protection and enforcement.

 

Thus, the act of evicting slum dwellers cannot be carried out unless the relevant State agencies first undertake the exercise of determining if the dwellers are eligible for rehabilitation in terms of the extant law and policy before any steps are taken to evict. 

The judgment in Ajay Maken fundamentally transforms the adjudication of ‘slum demolition’ cases, firstly, by bringing the focus back on the State’s positive obligation of providing affordable housing and in the absence of such a performance, framing the right to shelter as a negative socio-economic right (non-interference into one’s existing housing). Secondly, it relates to the shifting standards of review in enforcing socio-economic rights, which has been argued hereMaken  points to the court’s role as a dialogic facilitator, as a step towards a way out of the difficulty of shifting standards, wherein the court acts as a public forum for the government to justify and explain its policies.

Guest Post: Premature Termination of the State Election Commissioner – On the Constitutionality of the Andhra Pradesh Ordinance No.5 of 2020

[This is a Guest Post by Kshitij Maheshwari.]


Introduction

Last month, the Governor of Andhra Pradesh promulgated the Ordinance No.5 of 2020 (“Ordinance”), which amended Section 200 of the Andhra Pradesh Panchayat Raj Act, 1994 (“Act”) and also framed the Andhra Pradesh Panchayat Raj (Salaries and Allowances, Conditions of Service and Tenure of State Election Commissioner) Rules, 2020 (“Rules”).* Section 200(1) of the Act provides for the appointment of a State Election Commissioner (“SEC”). Section 200(2) of the Act, before its amendment, provided that an officer who was holding or had held an office not less in rank than Principal Secretary to the government could be appointed as the SEC. Post-amendment, the eligibility criteria has been modified, and only a former Judge of the High Court will now be eligible for appointment as the SEC. The newly framed Rules also provide that the SEC will hold the office for a term of three years and will be entitled to be considered for re-appointment for another three years. However, more importantly, the Rules also state that the incumbent SEC shall “cease to hold office” with effect from the date of promulgation of the Ordinance. Hence, in pursuance of the Ordinance, the incumbent SEC, N Ramesh Kumar, a retired bureaucrat, who was appointed on 30th January 2016 for a term of five years, was terminated and V Kanaraj, a former Judge of the Madras High Court, was appointed in his place. At present, the Ordinance is under challenge before the Andhra Pradesh High Court.

Section 200 of the Act is almost in pari materia with Article 243K of the Constitution. Article 243K deals with elections to the Panchayats in a state:

243K. Elections to the Panchayats.—(1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor.

(2) Subject to the provisions of any law made by the Legislature of a State, the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine:

Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment.

(3) … (Emphasis supplied)

Article 243K(2) states that subject to any law made by the state legislature, the Governor has the power to determine the conditions of service and tenure of office of the SEC. This power, however, is limited by a proviso. A bare reading of the proviso which is divided into two parts by the word “and” (emphasized above), suggests that the Governor is precluded from determining the conditions of service and tenure of office of the SEC in a manner that would either (i) lead to the SEC being “removed” without following the same procedure, as is required to be followed for the removal of a High Court Judge or (ii) vary the “conditions of service” after the SEC’s appointment, to his disadvantage. Therefore, when determining the conditions of service and tenure of office of the SEC, a breach of any of the above two circumstances would violate Article 243K(2).

In this post, I will argue that the Ordinance and the amendments carried out thereunder, which led to the abrupt termination of the former SEC, are unconstitutional, as they violate both the conditions specified under the proviso.

The Governor has removed the SEC in violation of the constitutional mandate

The state government has contended that the termination in question – caused by the curtailment of the former SEC’s tenure – amounts to his ‘cessation’ from service, and not his ‘removal’. Hence, according to the government, the process of removal of a High Court Judge which is prescribed under Article 217(1) proviso (b) read with Article 124(4), was not required to be adhered to in the present case. Further, Section 16 of the General Clauses Act, 1897 (“GCA”) states that the power to appoint a person also includes the power to dismiss him. This also raises the question of whether the Governor can curtail the SEC’s tenure since he has the power to appoint him.

In my opinion, not only does the Governor not have the power to curtail the SEC’s tenure but for the reasons stated below, even the exercise of such power effectively amounts to the SEC’s ‘removal’ and not his ‘cessation’ from office.

First, once appointed, a High Court Judge is entitled to hold office until he attains the retirement age of sixty-two years, subject to earlier removal. He can be removed only by an order by the President, based on a motion passed by both Houses of Parliament and two-thirds of the members present and voting on the grounds of “proved misbehaviour or incapacity”. This intricate removal process coupled with the fixed age of retirement guarantee security of tenure to the Judge, which enables him to discharge his duties free from external pressures, and thus, helps safeguard the independence of the judiciary. By providing that “[T]he State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of a High Court”, the proviso seeks to extend the security of tenure to the SEC in the same way that it protects a High Court Judge, albeit only during the fixed-term of his appointment. This allows the SEC to act independently and without the fear of dismissal for taking decisions that may not find favour with the executive, and thus, enable him to fulfill his mandate under Article 243K(1) of conducting elections in a free and fair manner. The curtailment of the SEC’s tenure, on the other hand, defeats the object and purpose of the proviso by adversely affecting his security of tenure. If such discretion is available with the Governor, it could easily be used by the executive to either browbeat the SEC to toe its line or, like in the present case, to unilaterally terminate his appointment. In either scenario, the threat to the SEC’s security of tenure would restrain him from discharging his duty effectively and independently, which is precisely the situation the prescribed removal process seeks to overcome. It is, therefore, submitted that the words “removed from his office” occurring in the first part of the proviso, contemplate termination of the SEC not just by removal by impeachment by the Parliament, but, they also apply to his termination on account of curtailment of his tenure. Since the manner of the SEC’s removal in the present case comes under the latter category, it needed to comply with the procedure for removal specified in the first part of the proviso to Article 243K(2).

Second, a perusal of the events leading up to the SEC’s termination indicates that his termination was not a part of electoral reforms, as has been averred by the government. In March 2020, the SEC postponed the elections to the village panchayats by six weeks due to the prevailing situation resulting from the outbreak of COVID-19, and ordered the transfer of several government officials, but directed that the Model Code of Conduct (“MCC”) would remain in place. Following this, the Chief Minister of the state openly criticized the SEC, and the government challenged his decision before the Supreme Court. The Supreme Court upheld the SEC’s decision to postpone the elections but directed that the MCC be lifted. It is in this backdrop that the SEC was terminated less than a month after the above order of the Supreme Court. It appears prima facie that the government wanted to punish the SEC for what it thought was misconduct on his part. But the first part of the proviso to Article 243K(2) indicates that an act of alleged “misbehaviour” has to be “proved” before the SEC’s removal. This ensures a deeper probe into any allegation against the SEC and under a procedure that is devised in consonance with the principles of natural justice. Therefore, notwithstanding that the Ordinance and the Rules are innocuously worded, the fact that the SEC’s termination has sought to be founded on the ground of misconduct, the requirements of the proviso had to be complied with. Accordingly, in the present case, the Court is bound to go behind the Ordinance to ascertain its true character. In Ram Ekbal Sharma v. State of Bihar, the Supreme Court dealt with a challenge by a government servant against an order of compulsory retirement issued against him. While quashing the impugned order, the Court held that the power of the State to terminate a civil servant under Article 311, which deals with the dismissal, removal, and reduction in the rank of civil servants, is not absolute and the Court can lift the veil to determine whether or not the order is punitive:

[E]ven though the order of compulsory retirement is couched in innocuous language without making any imputations against the government servant who is directed to be compulsorily retired from service, the Court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes. (Emphasis supplied)

 

Being a constitutional functionary, the termination of the SEC must be subjected to an even higher threshold of judicial scrutiny. In the present case, retaliatory action against the SEC for his ‘misconduct’ was camouflaged as an order of cessation. The Ordinance is, therefore, liable to be quashed.

Curtailment of the SEC’s tenure has resulted in varying the conditions of service to his disadvantage

The second argument of the government is that since the terms “conditions of service” and “tenure of office” have been mentioned separately under Article 243K(2), and thereafter, only the term “conditions of service” has been mentioned in the second part of the proviso, this indicates that both the terms have separate connotations and the SEC’s tenure is not a condition of his service. Consequently, according to the government, the curtailment of the SEC’s tenure does not amount to varying the conditions of his service on which he was appointed, to his disadvantage. Moreover, Section 21 of the GCA states that the power to issue a rule also includes the power to amend or vary the same. Could it then be argued that the Governor who has the power to determine the conditions of service and tenure of office of the SEC, also has the power to amend the same after his appointment? In my opinion, such interpretation is untenable as it would lead to inconsistency and create an illogical situation. If the SEC’s tenure is not a condition of his service, the corollary would be that the Governor has the power to vary his tenure to his disadvantage, as the second part of the proviso states that “[T]he conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment”. However, this interpretation would be contradictory to and render the first part of the proviso meaningless, which, as discussed above, precludes the Governor from curtailing the SEC’s tenure after his appointment. Thus, the proviso has to be interpreted harmoniously along with the main provision so as to give effect to both the parts thereof and avoid this anomalous situation.

Concluding remarks

To summarize, once appointed, the SEC holds office during good behaviour, and not during the pleasure of the Governor. Unlike a government servant, there is no employer and employee relationship between the SEC and the Governor. The Ordinance causes the premature termination of the SEC by curtailing his tenure, which tends to put him on the same footing as a government servant. This, however, is entirely contrary to the intent of Article 243K(2), which confers the SEC with an irremovability protection in order to preserve his independence. Hence, the Ordinance is ultra vires the Constitution.


  • Note: The texts of the Ordinance and the amendment to Section 200 of the Act were not available on the Andhra Pradesh e-gazette at the time of publishing of this post.