Guest Post: Because of Sex(uality) [and Gender]

[This is a guest post by Surya Rajkumar.]

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Introduction

The United States Supreme Court last week delivered its opinion in Bostock v. Clayton County, where it held that protection against discrimination under Title VII of the U.S. Civil Rights Act, 1964 (‘Title VII’) was available to lesbian, gay and transgender individuals. This the court did using the ‘but for’ test to rule that discriminating against an individual for being lesbian, gay or transgender necessarily involved discrimination because of that individual’s sex––sex being a protected characteristic under Title VII. The decision has rightly been hailed as a victory for the gay rights movement especially in the backdrop of the fact that it was legal to fire employees for being lesbian/gay/transgender in more than half of the states in the U.S. However, as I shall argue in this piece, the logic employed by the court is inadequate to deal with discrimination based on gender identity and sexual orientation. As I will contend, the notions of gender and sexual orientation are fluid and as protected characteristics under anti-discrimination law, they will have to be treated distinctly and cannot be conflated with the notion of sex.

There are those who argue that the decision is not as broad in its scope as it left open the question of whether the right to religious freedom permitted individuals/organizations to circumvent their obligations under Title VII. This is of particular concern as the Court’s opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission, delivered two years ago, held that it was legal for a person to not offer his services to gay individuals citing his religious convictions. On the other hand, as I shall attempt to demonstrate, the decision’s limited scope stems from extending the notion of sex to include sexual orientation and gender identity, as such an extension is accompanied by the exclusion of sexual orientations and gender identities such as bisexual and intersex individuals. It may be true that the Court has created a loophole in leaving open the question of religious freedom coming in conflict with Title VII. This however is beyond the scope of this piece. I shall also discuss the Indian approach to extending constitutional protections to sexual minorities, and how this may provide a viable model to treating discrimination based on gender and sexual orientation.

The logic of the Court

Title VII of the Civil Rights Act (Section 703) makes it unlawful to discriminate against an individual because of (among other grounds) such individual’s sex. With reference to this, the Court in Bostock held that “[a]n employer who fires an individual merely for being gay or transgender violates Title VII.” According to the Court, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The Court demonstrates this using two separate examples for homosexual and transgender individuals. In the context of homosexual individuals, the Court examines a situation where there are two employees, one female and one male, both attracted to men. Here, “[i]f the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.” Hence the employer discriminates against the male employee based on his sex. Similarly, for transgender individuals, the Court considers an example of “a transgender person who was identified as a male at birth but who now identifies as a female.” Here, “[i]f the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.” Therefore, discriminating against someone for being trans necessarily involves a differentiation based on sex. Based on these examples, the Court, while agreeing that “that homosexuality and transgender status are distinct concepts from sex” holds that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”

The inadequacies of the Court’s logic qua sexual orientation and gender identity

To the extent that Title VII extends to lesbian, gay and transgender individuals, the Bostock opinion is indeed correct and welcome. But it should occur to one that sexual orientation and gender identity are more than homosexuality and transgender status respectively. When we consider sexual orientations and gender identities other than the ones considered by the Court, the opinion in Bostock comes across as inadequate. Notably, the majority opinion makes no mention of bisexuality or intersex status which form part of sexual orientation and gender identity respectively. Unsurprisingly, if these categories were replaced in the examples proffered by the Court, one would reach radically different results, where discrimination based on such characteristic does not involve considerations of sex at all.

For instance, let’s say there are two employees, one female and one male, and that the female employee who is bisexual and is at present partnered to a member of the opposite sex, is discharged by her employer for being bisexual. Here, the bisexual employee is not being treated any differently based on sex, as the employer is not intolerant of her relationship with a person of the opposite sex but intolerant to her identification as a bisexual individual. The same could be said of an asexual person who isn’t attracted to any sex at all! Hence, in the context of sexual orientation, the example offered by the Court is insufficient in its coverage of alternate sexualities such as bisexuality and asexuality. Similarly, the example offered by the Court qua transgender individuals is also inadequate to address discrimination faced by individuals with other gender identities. For example, in the case of an intersex individual, there may be no comparable ‘sex’ in the male/female sense.

The point I am seeking to make is that discrimination faced inter alia by gay, lesbian, bisexual, transgender and intersex individuals is sourced not to their sex but their identity informed by sexual orientation and gender identity, however incidental such discrimination is to sex. The issue with conflating certain forms of sexual orientation and gender identity with sex is that it risks the exclusion of other such forms. The problem is compounded by the fact that sexual orientation and gender identity are fluid notions that are ill-suited to be treated alongside sex especially when the latter is viewed rigidly as a male-female dichotomy. That sex cannot extend to mean sexual orientation and gender identity formed a large part of Justice Samuel Alito’s dissent in Bostock. Yet this cannot seek to invalidate the majority opinion, as Alito J’s argument in his opinion only reinforces what I am seeking to argue here, namely that the majority judgment is not incorrect, but inadequate to combat discrimination based on certain forms sexual orientation and gender identity. The only way, I argue, to address this inadequacy is to treat sexual orientation and gender identity as protected characteristics in their own right under anti-discrimination law. In this regard the Indian approach offers a viable alternative in addressing discrimination based on sexual orientation and gender identity.

The Indian approach as a viable alternative

Implementing protection against discrimination based on sexual orientation and gender identity through explicit statutory recognition, is in my view, the most suitable way to address the inadequacies discussed above. Had there been such statutory recognition, cases like Bostock would never come to be. It is in the face of such legislative reluctance, that the Indian approach shows the way in expanding the word ‘sex’ to include sexual orientation and gender identity, while also treating the latter categories distinctly. Two decisions of the Indian Supreme Court become relevant in this regard. They are NALSA v. Union of India and Navtej Singh Johar v. Union of India.

Using Article 15 of the Indian Constitution, which prohibits discrimination inter alia on the ground of sex, the Court in NALSA and Navtej has extended protection under Article 15 to gender identity and sexual orientation respectively. Justice K.S. Radhakrishnan in NALSA held that “discrimination on the ground of ‘sex’ … includes discrimination on the ground of gender identity.” He justified this on the basis that it was in line with the intent of the architects of the Indian Constitution who “gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalizations of binary genders.”

Affirming the view mentioned above, Justice Indu Malhotra in Navtej held that ‘sex’ “is not merely restricted to the biological attributes of an individual, but also includes their “sexual identity and character”.” Given that sexual orientation is a ground analogous to ‘sex’ in light of the former’s immutable status and fundamental choice, Justice Malhotra held that the prohibition of discrimination based on sex encompasses “instances where such discrimination takes place on the basis of one’s sexual orientation.”

When compared to Bostock, one cannot overstate the amplitude of NALSA and Navtej in their coverage. Whereas Bostock extends anti-discrimination protection to gay, lesbian and transgender employees, NALSA and Navtej–using an evolutionary and emancipatory interpretation of constitutional text–extend such protection to gender identity and sexual orientation respectively as a whole. Consequently, those groups left out of Bostock’s ambit can claim protection under NALSA (ex: intersex individuals) and Navtej (ex: asexual and bisexual individuals).

Conclusion

The majority opinion in Bostock is remarkably precise in its conclusion that “[a]n employer who fires an individual merely for being gay or transgender defies the law.” For an employer who fires an individual for merely being bisexual or intersex or any other category of sexual orientation and gender identity excluding gays and transgenders, may not be defying the law. Therefore, it is not misplaced to say that Bostock only offers a limited protection from discrimination based on gender identity and sexual orientation. Instead, as we saw, the Indian approach in NALSA and Navtej offers a viable alternative to Bostock, as it treats gender identity and sexual orientation for what they are: not as incidental to sex but as distinct characteristics that merit seperate consideration however dependent they are on sex.

Guest Post: On the Unlimited Power of Review in Writ Proceedings

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]

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[This is a guest post by Krishnesh Bapat.]

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In this belated post, I discuss the judgment of the Supreme Court passed in Kantaru Rajeevaru vs Indian Young Lawyers Association on 11^th of May 2020 (For the sake of convenience, hereinafter referred to as 11^th May order). In this order, a 9 Judge bench of the Supreme Court has detailed the reasons for holding that questions of law can be referred to a larger bench in a review petition. I specifically focus on the part of the order wherein the bench has held that there are no limitations on the Supreme Court in reviewing judgments in writ proceedings. The consequence of this ruling is that review petitioners in writ proceedings do not have to meet the high threshold of Order XLVII Rule 1 of the Code of Civil Procedure (“Code”). Order XLVII Rule 1 of the Code permits review of judgments only if there is discovery of new evidence or an error apparent on the face of the record or any other sufficient reason which is analogous to the first two. Indeed, parties have begun to rely on this order already. It is noteworthy to look at the brief written submissions of the review petitioners in Shantha Sinha and Another vs Union of India and Another. The review petitioners are seeking a review of Justice K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1. In their brief written submission they have pointed out that the Court is not hindered by Order XLVII Rule 1 of the Code. In Paragraph 7 they state:

A 9-Judge Constitution Bench of this Court in its Judgment dated 11.05.2020 in the case of Kantaru Rajeevaru v. Indian Young Lawyers Association and Ors, Review Petition (C) No. 3358/2018 in WP (C) No. 373/2006, while considering the maintainability of the reference, has held that in review petitions arising out of writ petition, this Court under Article 137 read with Article 141 and 142, has wide powers to correct the position of law. It further held that this Court is not hindered by the limitation of Order XLVII Rule 1 of the Code of Civil Procedure, 1908, since writ petition are not ‘civil proceedings’ as specified in Order XLVII Rule 1 of the Supreme Court Rules, 2013

In view of this, it is necessary to analyze the order.

BACKGROUND

Before I begin a critique of the 11^th May order, a recap of the ‘Sabarimala Dispute’ and a background of how the 9-Judge bench came to arrive at the aforementioned conclusion is necessary. Indian Young Lawyers Association had filed a Writ Petition challenging the validity of Rule 3(b) of the Kerala Hindu Places of Worship (Authorization of Entry) Rules, 1965 and sought directions to State of Kerala to permit female devotees between the ages of 10 to 50 years to enter Sabarimala temple without any restriction. The case was titled Indian Young Lawyers Association vs State of Kerela (“Indian Young Lawyers Association”). On 28^th September 2018, by a majority of 4:1 the Supreme Court allowed the Writ Petition and held inter alia that Rule 3(b) was violative of Article 25(1) of the Constitution of India ( Accordingly, women between the ages of 10 to 50 years were permitted to enter the Sabrimala temple.

A number of review petitions and writ petitions were filed against this Judgment. On 14^th November 2019, a Judgment in these review petitions was pronounced and was titled Kantaru Rajeevaru vs Indian Young Lawyers Association (“Kantaru Rajeevaru”). In Kantaru Rajeevaru the Judgment in Indian Young Lawyers Association was not stayed. However, a majority of three judges was of the view that the Court should ‘evolve a judicial policy’ and a larger bench of not less than seven judges should put at rest the conflict between Freedom of Religion and other Fundamental Rights guaranteed in Part III. Hence, the majority referred seven issues to a larger bench and stated that the review petitions and the writ petitions were to remain pending while the larger bench decides the reference. Nariman J and Chadrachud J dissented and held that neither were grounds for review made out nor was a reference to a larger bench called for (Kantaru Rajeevaru has been previously critiqued on this blog).

A bench of nine judges was thereafter constituted to answer the reference. When the hearing before the nine judge bench began, a number of parties raised an objection to the reference. They contended that the review petitions in Kantara Rajeevaru were not maintainable because of the limitations in Order XLVII of Supreme Court Rules and hence, the reference arising out of those review petitions was bad. In the alternative, they submitted that reference to a larger bench is permissible only after review is granted. They also contended that hypothetical questions of law should not be referred. On 10^th February 2020, the 9 Judge bench dismissed these contentions and through the 11^th May order the bench has provided their reasons. The reasoning of the bench in the 11^th May order proceeds in the following manner. The bench firstly referred to Order XLVII Rule 1 of the Supreme Court Rules, 2013 (Paragraph 11), which states:

The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule I of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record.

By a literal interpretation of this rule, the bench held that the power to review judgments is plenary and limitations exist only in the context of civil proceedings and criminal proceedings (Paragraph 12). Writ Petitions filed under Article 32 of the Constitution do not fall within the purview of civil and criminal proceedings (Paragraph 14). The review petitions in Kantaru Rajeevaru had arisen from a Writ Petition under Article 32. (Paragraph 18). The bench then dismissed the alternative submission of the parties that reference can only be made after grant of review citing Order VI Rule 2 of Supreme Court Rules, 2013 and Article 142 of the Constitution (Paragraph 19 to 25). The bench then proceeded to hold that pure questions of law could be referred to and answered by a larger bench (Paragraph 25 to 29). Then in Paragraph 30 the bench concluded that the review petitions and the references arising from the review petitions were maintainable.

CONCERNS

In this post, I am primarily concerned with the observation made in Paragraphs 11 to 18 and the conclusion drawn in Paragraph 30 that the review petitions are maintainable. There are three concerns I have with the 11^th May Judgment which have been detailed below.

Firstly, there is the question of judicial propriety. In Kantaru Rajeevaru, a majority of three judges had referred questions of law to a larger bench while keeping the review petitions pending. They had not commented on the maintainability of the review petitions nor had they referred the question of maintainability to the larger bench. Therefore, strictly speaking, the nine judge bench by holding that the review petitions are maintainable, seems to have traversed beyond its brief and decided an issue pending before the 5 judge bench. The consequence of this ruling is that once the 9 judge bench does evolve a ‘judicial policy’ and the ‘Sabarimala dispute’ is sent back to the 5 Judge bench, that bench will not be able to decide on the maintainability of the review petitions. It is crucial to note that 2 judges of the bench in Kantaru Rajeevaru (Nariman J and Chandrachud J) had held that the grounds for review were not made out. More crucially, the majority had not commented on the maintainability of the review petitions.

Secondly, the manner in which the review petitions were held to be maintainable is also concerning. The bench has perhaps justifiably held that there are no express limitations on the power to review except in the context of civil and criminal proceedings. However, that ipso facto does not mean that review petition in Kantaru Rejeevaru should be admitted. In a catena of judgments over the years, the Supreme Court has repeatedly insisted that the power to review must be exercised sparingly. In Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, (1980) 2 SCC 167, for himself and Tulzapurkar, J. observed:

……Power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in Order 47 Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record (Order 40 Rule 1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except “where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility”: Sow Chandra Kantev. Sheikh Habib [(1975) 1 SCC 674 : 1975 SCC (Tax) 200 : (1975) 3 SCR 933] .

The 9 Judge bench throughout its 29 Page decision has not pointed out the ‘patent mistake’ or a ‘grave error’ that has been committed by the majority of 4 judges in Indian Young Lawyers Association that their judgment must be reviewed. On the other hand Nariman J in Kantaru Rajeevaru had painstakingly analysed all the judgments in Indian Young Lawyers Association, applied the standards of review and held that the grounds for review were not made out.

This leads me to my third concern. The 9 judge bench decision does not provide for any standards which the Court ought to apply while deciding whether to review a judgment arising out of writ proceedings. In the past the Court has applied standards similar to Order XLVII Rule 1 of the Code. For instance, in Sarla Mudgal vs Union of India (1995) 3 SCC 635, 4 Writ Petitions were filed questioning whether a husband, married under Hindu law, can solemnise a second marriage by embracing Islam and without dissolving the first marriage under law. The Court held that in such cases a second marriage would be invalid. In Lily Thomas vs Union of India (2000) 6 SCC 224, petitions were filed seeking review of the decision in Sarla Mudgal. R.P Sethi J, in his concurring judgment, put the contentions of the review petitioners to the standards Order XLVII Rule 1 of the Code and held:

Otherwise also no ground as envisaged under Order XL of the Supreme Court Rules read with Order 47 of the Code of Civil Procedure has been pleaded in the review petition or canvassed before us during the arguments for the purposes of reviewing the judgment in Sarla Mudgal case [Sarla Mudgal, President, Kalyani v. Union of India, (1995) 3 SCC 635 : 1995 SCC (Cri) 569]. It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal case [Sarla Mudgal, President, Kalyani v. Union of India, (1995) 3 SCC 635 : 1995 SCC (Cri) 569] . We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting Section 494 amounted to violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. The words “any other sufficient reason appearing in Order 47 Rule 1 CPC” must mean “a reason sufficient on grounds at least analogous to those specified in the rule” as was held in Chhajju Ram v. Neki [AIR 1922 PC 112 : 49 IA 144] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius [AIR 1954 SC 526 : (1955) 1 SCR 520] . Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. In T.C. Basappa v. T. Nagappa [AIR 1954 SC 440 : (1955) 1 SCR 250] this Court held that such error is an error which is a patent error and not a mere wrong decision…….

Therefore, it can safely be held that the petitioners have not made out any case within the meaning of Article 137 read with Order XL of the Supreme Court Rules and Order 47 Rule 1 CPC for reviewing the judgment in Sarla Mudgal case [Sarla Mudgal, President, Kalyani v. Union of India, (1995) 3 SCC 635 : 1995 SCC (Cri) 569] . The petition is misconceived and bereft of any substance.

 

 Indeed, as mentioned above, Nariman J in Kantaru Rajeevaru also put the contentions of the review petitioners through similar standards. The 9 Judge bench, however, by not undertaking such an exercise, has raised questions of what exercise ought to be undertaken. The judgment on a number of occasions has stated that Order XLVII Rule 1 of the Code is inapplicable to judgments arising out of writ proceedings. If that is the case, there needs to be clarity on the applicable standard. The need of having a standard cannot be understated. Order XLVII Rule 1 of the Code has ensured that there is a finality to judgments delivered by Court and at the same time has provided a mechanism to ensure that injustice is not committed. In absence of this Rule, any party dissatisfied with the decision of the Court will seek a re-hearing and the litigation will be endless.

CONCLUSION

To sum up, three concerns with the 11^th May Judgments have been pointed out above. The first pertains to which bench was the most suited to address the question of maintainability. The second concern points out the lackadaisical manner in which the 11^th May Judgment holds the Kantaru Rajeevaru review petitions to be maintainable. And lastly, the third concern raises a question for the future as there needs be clarity on the manner in which the Apex Court is going to entertain review petitions.

Coronavirus and the Constitution – XXXIII: N-95 Masks and the Bombay High Court’s Dialogic Judicial Review [Guest Post]

[This is a guest post by Aakanksha Saxena.]

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This blog has previously dealt with orders of the Gujarat and Karnataka High Court as recent exemplary instances of constitutional courts practising dialogic judicial review during the ongoing COVID-19 pandemic and lockdown crisis. Subsequently, the Bombay High Court was faced with the question of whether, in view of the scarcity of certain components of personal protective equipment (“PPE”) such as surgical masks, N-95 masks, hand sanitisers and gloves, the prices of such components were required to be capped – specifically that of N-95 masks. In the course of proceedings culminating in its 9th June 2020 Order, the High Court continued the welcome trend, by (1) throughout the course of hearings, identifying where the respective governments were lacking in their response to the issues raised, and (2) posing pertinent questions with the aim to elicit a positive approach in respect of the policy expected to be framed, all while refraining from judicial overreach and ensuring executive accountability. The Order and the approach leading up to it are a far cry from the decisions seen at the beginning of the national lockdown, which reflected a degree of judicial deference to the executive that has come under great and justifiable critique.   

 Background and Scope of the PIL

The PIL had been filed seeking a host of directions, including a ceiling on the prices of certain goods declared as “essential commodities”, stemming from concerns of hoarding and rampant black marketing of PPE (“PIL”). On a reading of the PIL petition,  it is clear that the primary reliefs prayed for were against the Maharashtra State Government. During previous hearings of the matter, submissions were in fact made by the Union of India, to the extent that the Centre had already placed a ceiling on the price of certain components of PPE, but as far as the N-95 masks were concerned, the issue of a price ceiling had been raised with the Centre by the State Government, and no response had been received. As a result, the Court by an Order granted the Centre time to take instructions specifically on this question, and file an affidavit containing its reply. Thus, while accepting the policy framed by the Centre in respect of price caps for certain PPE goods, the Court remained attuned to the concerns raised in the PIL qua the N-95 masks, which had not been included by the Centre in its formulation, despite having been declared an essential commodity by the Ministry of Consumer Affairs, Food & Public Distribution, with the very object of prevention of hoarding, black marketing and profiteering.

Final Reliefs

Eventually when the matter came up for hearing, the Petitioners apprised the Court of an order dated 11.2.2020 issued by the Central Government, which included medical devices intended for human use within the meaning of drugs under the Drugs and Cosmetics Act, 1940, which would then mean that goods such as N-95 masks fall within the purview of the Drugs (Price Control) Order, 2013 (“Control Order”). Order 20 of the Control Order places an express duty on the executive to “ensure that no manufacturer increases the maximum retail price of a drug more than 10% of the maximum retail price during preceding 12 months; and where increase is beyond 10% of maximum retail price, it shall reduce the same to the level of 10% of maximum retail price in the next 12 months”. Order 19 of the Control Order vests discretion in the Government to fix thr ceiling price or retail price of any drug for such period, as it may deem fit. 

It was established by the Petitioners that the 11.2.2020 Order and consequently the Control Order were not taken into consideration in decisions of the NPPA dated 15.5.2020 and of the Ministry of Chemicals and Fertilizers dated 21.5.2020. Vide its Order dated 15.5.2020, a direction had been passed by the NPPA directing manufacturers /importers /suppliers of the N-95 Masks to maintain parity in prices for non-government procurements and to make available the same at “reasonable” prices, without taking into account that the Control Order itself indicated what price determination was to be followed. It was opined that a price cap was not needed at the time, since the government was directly procuring the said masks from the major manufacturers. “Reasonable prices” therefore, was evidently a vague term deployed by the NPPA, which would have created unwanted discretion in the hands of the manufacturers /importers /suppliers. Where the decision had already been taken placing N-95 masks in the same category as hand sanitisers, gloves, and surgical masks, the distinction in imposing a price ceiling was arbitrary and unjustified.

The Centre sought to support the NPPA decision by way of its affidavit, and further pointed out that the price of masks had since been further reduced by 47%. Given the circumstances, the admitted position on record of reduction in price might have arguably justified judicial deference to executive policy-making, and given a quietus to the matter.

However, the High Court, on a close reading of the affidavit noticed that notwithstanding the reduction in prices, the Government was itself considering imposing a ceiling on the price of PPE. In this background, the High Court correctly directed that instructions be taken on whether the Central Government would revisit and reconsider the question of imposing a cap on the price of N-95 masks. When an affirmative statement was made in this regard, the High Court appropriately finally directed that the Central Government was required to take a fresh decision, by including consideration of the Control Order and the relevant provisions of the EC Act, and other relevant aspects, within a period of 10 days to 2 weeks.

Summing Up

The progress of the price-capping PIL before the High Court is another clear example of how constitutional courts ought to engage in judicial review by setting up an effective dialogue with the executive. Without passing directions in the nature of policy decisions (which were sought by the PIL), the High Court at every stage raised pertinent questions after analysing the stand and submissions on behalf of the government. 

The ongoing lockdown has considerably and unpredictably impacted the right of access to justice on the one hand, and given rise to several instances of grave infractions of constitutional, civil, and socio-economic rights. The rapidly changing developments have led to excessive delegated legislation by way of orders and notifications issued by the Central and State Governments, and a simultaneous deluge of PILs being filed, highlighting concerns where policy is not forthcoming. The need of the hour has therefore been that courts engage with the executive, to ensure that policy is adequately framed, and where framed that it is lawfully justified.

The High Court, in its decision, not only completely complied with precedent on price fixation laid down in Pallavi Refractories v. Singareni Collieries Co. Ltd., (2005) 2 SCC 227, but also by the formulation of relief in the Order placed accountability on the government to ensure that a timely decision is taken (failing which the problem would likely exacerbate) and communicated to the petitioners. The objective, viz. of ensuring that PPE components remain available and affordable was emphasised so as to be kept in mind by the government while reviewing its policy, without any overreaching directions being passed.

Postscript

In the aftermath of the Bombay High Court’s order, a decision by the central and state governments remains to be taken on the issue of the N95 mask price ceiling, pending which no further hearings have taken place in the PIL. The time directed for this decision to be made having lapsed, it remains to be seen whether the High Court will now hold the Centre to a higher degree of accountability, or, in the event of an absence of policy decision making, decide the question itself.

Guest Post: On the (Un)Constitutionlity of the Competition Commission – A Response

[This is a guest post by Rajat Maloo.]

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It has been previously argued on this forum (here and here) that the Competition Commission of India (CCI), in its current form is unconstitutional. The argument hinged on the contention that the CCI is a body with majorly judicial characteristics and functions apart from a few advisory and administrative functions. Thus, the composition and selection of members of the CCI, which is executive-dominant is unconstitutional as it violates the principle of separation of powers. Based on this, the previous posts criticise the Delhi HC’s judgement by arguing that CCI is a judicial body and it should not be characterised as an administrative body. In this piece, I argue that the CCI is in fact a regulatory body possessing a wide range of powers to facilitate its functioning, including inquisitorial, investigatory, administrative, advisory and judicial powers. I contend that first, the CCI is not a judicial body as it does not adjudicate disputes between parties; and second, judicial powers, if any, of the CCI are limited. While making my own case, I wish to respond to some of the arguments made in the previous posts, albeit, I do not analyse/support the Delhi HC’s judgement in detail.

The CCI is not a Judicial Body

The question of independence of judiciary and separation of powers in judicial tribunals is not a new one. The Supreme Court of India (SC) through numerous decisions over the years, including the recent decision in Rojer Mathew, has established that any tribunal performing judicial functions by replacing a court of law must be judicially dominant. This means that majority of members as well as majority of the selection committee of such members must be from the judiciary to ensure independence of judiciary and separation of powers. However, regulatory agencies, not just in India but also in other jurisdictions such as the US, are placed on a different footing as compared with tribunals performing judicial functions. This is because the powers and functions possessed by regulatory agencies are quite different from a judicial or quasi-judicial tribunal. In this part, I will respond to the argument that CCI is judicial in nature.

In brief, the CCI performs four major functions under the Competition Act, 2002–

1. Ex-post regulation of anti-competitive agreements – Section 3
2. Ex-post regulation of abuse of dominant position – Section 4
3. Ex-ante regulation of combinations – Sections 5 and 6
4. Competition advocacy and advisory functions – Section 49

Now, it is clear that powers under Section 49 are not judicial in nature. Hence, I shall focus on the CCI’s functions under Sections 3, 4, 5 and 6 of the Act.

Relying on the Cooper v. Wilson test, a judicial decision, in the very first place, presupposes a dispute between parties. However, the CCI’s functions do not include resolving or adjudicating disputes between parties. Under Sections 3 and 4, the CCI’s function is majorly investigatory and then punitive if there is a finding of contravention (Sections 27). Further, the ‘informant’ under Section 19 of the Act is not a party to the dispute before the CCI. The informant is merely a source of information for the CCI, upon which it may or may not conduct or order an enquiry. In fact, under Section 19 of the Act, the CCI can suo motu take up an enquiry or may initiate an enquiry on information provided by the Central or the State Governments. Any person or Government, merely by informing the CCI does not become a party to the dispute. This is also evident from the fact that any decision of the CCI is not in favour of or against any party as such. The CCI may go much beyond the information provided by the informant while inquiring into a matter and possesses wide inquisitorial powers. Thus, the very first rung of the test is not met as there is no adjudication of disputes between parties.

Moreover, any disputing party has a right to approach a Court of law or tribunal for adjudication of the dispute – be it of civil or criminal nature. The Court or tribunal is then expected to listen to both the parties, frame issues, assess evidence and pronounce a decision. A Court cannot in the very first hearing simply refuse to adjudicate upon a dispute merely on the basis that the petitioner is not able to make a prima facie case. However, the CCI has the power to not enquire into an information brought to it by an informant.

In fact, the legislature has very consciously not provided the CCI the power to adjudicate disputes – one such instance is awarding compensation to any informant. Such a matter entails or presupposes a dispute between two parties which is very well left for the Appellate Tribunal (judicially-dominant) to determine under Section 53N of the Act. Thus, the CCI does not adjudicate disputes between parties and the legislature has not required the CCI to do so.

In the alternative, even on the assumption that the CCI adjudicates disputes, the Cooper Test also requires that the parties to a dispute must be given a chance to put forth their case. However, according to the SC, an ‘informant’ is not even entitled to a hearing in case the CCI chooses not to go ahead with the enquiry (CCI v SAIL). This means that the CCI can reject the information provided by the informant for enquiry, without even giving the informant an opportunity of being heard. Thus, the legislature as well as the judiciary has not envisaged the CCI as a body to resolve or adjudicate disputes between parties.

Admittedly, the CCI has been given the powers under Section 27 of the Act to impose penalties on persons or enterprises found to be in violation of Sections 3 and 4. However, mere imposition of monetary penalties, based on an enquiry, does not suffice to characterise the body as a judicial body. Purely executive and other regulatory bodies such as the SEBI etc., have the power to impose penalties, which do not make them a judicial body. Moreover, any penalty imposed by the CCI is appealable to the Appellate Tribunal under Section 53A of the Act. Thus, mere power to impose penalties does not give the CCI a completely judicial characteristic.

Now, with regard to ex-ante combination review functions performed by the CCI – once again, it does not entail adjudication of a dispute. At least some form of adjudication of dispute is the very essential requirement for a body to be characterised as a judicial body. However, under Sections 5 and 6, the CCI only preforms regulatory functions to approve or reject potential combinations. In regulating combinations, there is no dispute as such which the CCI has to determine or no parties which come before the CCI for adjudication of a dispute. Merely by giving parties a notice or providing the combining parties an opportunity of hearing does not mean that the CCI is adjudicating a dispute.

Thus, the CCI does not adjudicate disputes and if at all, performs limited number of judicial functions which cannot suffice to characterise it as a completely judicial body.

Limited Judicial Nature

I will now argue that just because the CCI has the power to grant interim orders or other such orders provide it with only certain limited judicial powers and yet again, it does not mean that the CCI is majorly performing judicial functions. Essentially, the judicial powers of the CCI are quite limited and are not enough to give it the authority to function like a full-fledged judicial or quasi-judicial tribunal. For this, the whole functioning of the CCI will have to be examined. The previous post effectively summarises the procedure of enquiry conducted by the CCI regarding the Sections 3 and 4 matters:-

“…the procedure adopted by the CCI in conducting the inquiry under Section 19 is to be examined. The procedure is provided for under Section 26 of the Act. According to the said provision, upon receipt of information or reference, the CCI is required to form an opinion as to the existence of a prima facie case of contravention of the provisions of the Act. If it finds a prima facie case of contravention of the Act, it is required to direct the Director General to investigate the matter. If it finds no prima facie case of contravention of the provisions of the Act from the information provided, it is required to pass an order to that effect and close the matter. It is also required to send a copy of the order to the parties concerned.”

 

This initial procedure, not just the form but also the substance, is ma inquisitorial rather than judicial. As soon as the CCI receives information, it may order the Director General (DG) to enquire. On the basis of the findings of the enquiry, the CCI gives the Opposite Parties as well as the informant a chance to submit their arguments. However, it is to be noted that the case against an Opposite Party is not made by the informant (as should happen in any adversarial judicial proceeding which entails determination of a dispute) but through the enquiry conducted by the DG. This takes away the judicial nature of a court or a tribunal and indicates that the CCI is more of an inquisitorial body.

The CCI is also provided with a set of factors, on the analysis of which, it is required to come to its decision. Sections 19 and 20 use the word ‘shall’ before laying down the limited factors to determine violations under Section 3 or 4 or factors to regulate combinations. This indicates that the CCI is mandated to give due regard to these factors and must function within them. Such limitation on the scope of the CCI clearly show that it is expected to act as a regulatory body with only a few judicial powers.

In this regard, it is also notable that the CCI is established as a body corporate as per Section 7(2) of the Act. Unlike any Court of law or any judicial tribunal (such as the NCLT, for example), the CCI can be made a party to an appeal. The CCI will also have to defend its own decision on appeal before the Appellate Tribunal, any High Court or the SC. This position of law has also been crystallised by SC in CCI v SAIL wherein it was held that the CCI must be a necessary or proper party in appeals. This is vastly different from any Court of law, such as a Civil Court of first instance or a Criminal Court, or any tribunal. Although, judicial bodies may get their authority from statutes, they cannot be made a party or be required to defend their own decisions upon appeal. This shows that the legislature while establishing the CCI through the Act, has been very clear about the limited extent of judicial powers which the CCI can exercise. Having such limited powers, it cannot be said that the CCI is replacing a traditional court in any manner.

Hence, although it was argued by Dev that the CCI under Sections 27, 28 and 31 possesses enforcement powers, the overall functioning of the CCI is largely different from any judicial or quasi-judicial body.

Now, it may be argued that Section 61 of the Act excludes jurisdictions of civil courts and hence, the CCI replaces a Civil Court – which requires the dominance of judiciary in the selection process. However, I submit that this does not necessitate the CCI to be judicially-dominant body because although Section 61 requires that matters relating to antitrust and competition must be submitted before the CCI, but as argued above, the CCI does not replicate a Civil Court in terms of its powers and functions.

Hence, I submit that the CCI does not adjudicate disputes and has very limited judicial powers which are vastly different from a traditional Civil Court or any judicial or quasi-judicial tribunal for that matter. In such a case, the CCI in its current form is not unconstitutional even if its selection committee is not judiciary-dominant as it is not replacing any Civil Court as such. In any case, the CCI’s decisions which affect any person or enterprise adversely are appealable to a judicial body – the Appellate Tribunal.

Guest Post: On the (Un)Constitutionality of Competition Commission – II

[This is a two-part series by Rahul Dev.]

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I submit that the characterization of the CCI as an administrative body is incorrect. It is to be considered a judicial body which performs the function akin to those performed by courts. Once it is considered a judicial body, it can be said that it requires the same independence from the executive as enjoyed by courts of law.

The primary objective of the CCI is to ensure competition in markets, by enforcing the provisions of the Act. To that end, its objective is to ensure that the provisions of the Act are not contravened. The only powers provided to the CCI to enforce the provisions of the Act are provided under Sections 27, 28 and 31 of the Act. These sections empower the Commission to pass orders and issue directions to entities found to be engaging in anti-competitive behaviour. The CCI is also empowered to issue interim orders during an inquiry under Section 33 of the Act.

The CCI does not have any legislative or executive powers to ensure compliance with provisions of the Act and prevent anti-competitive behaviour. It cannot pass orders or issue directions in rem which are binding on the public at large or have any statutory force. It does perform an advisory function under Section 49 of the Act. However in its performance of the advisory function it does not have the power to enforce provisions of the Act. This is clarified by the provision itself which states that the advice of the CCI shall not be binding on the Government in formulating a policy.

An examination of the nature of functions performed by the CCI under Sections 27, 28 and 31 is to be made in order to determine the nature of the function performed in enforcing the provisions of the Act. For without the powers provided under these sections, the CCI would be devoid of any power to enforce the provisions of the Act. Therefore the nature of these powers would determine the nature of the primary functions performed by the CCI.

On the face of it, the powers provided to the CCI by the aforesaid provisions are judicial. They relate to the power to pass orders and issue directions against parties. A test to determine whether a decision is a judicial decision or a quasi-judicial decision was laid down by the King’s Bench of the High Court in England in Cooper v. Wilson, (1937)2 K.B. 307. The test has been followed by the Supreme Court of India in a number of decisions, some of which were in fact cited before the Delhi High Court. The Test states:

A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites :- (1) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal argument by the parties, and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law. A quasi-judicial decision equally presupposes an existing dispute between two or more parties and involves (1) and (2), but does not necessarily involve (3) and never involves (4). The place of (4) is in fact taken by administrative action, the character of which is determined by the Minister’s free choice.

 

Examination of Nature of Decision under Section 27

In order to apply this test to the function of the CCI under Section 27, the procedure adopted by the CCI in conducting the inquiry under Section 19 is to be examined. The procedure is provided for under Section 26 of the Act. According to the said provision, upon receipt of information or reference, the CCI is required to form an opinion as to the existence of a prima facie case of contravention of the provisions of the Act. If it finds a prima facie case of contravention of the Act, it is required to direct the Director General to investigate the matter. If it finds no prima facie case of contravention of the provisions of the Act from the information provided, it is required to pass an order to that effect and close the matter. It is also required to send a copy of the order to the parties concerned.

A reading of the regulations governing the contents of information to be filed before the CCI (Regulation 10 of the CCI (General) Regulations 2009), reveals that the information is to contain detailed facts, allegations of contraventions of provisions of the Act along with supporting evidence which may be available, arguments in support of its contentions and reliefs which are claimed. The submission of such a document to the CCI satisfies the first requisite of the test that there must be a presentation of their case by parties to the dispute.

It is inconsequential that, in the event the CCI finds no prima facie case of contravention and passes an order to that effect, a presentation of the case is not made by the party against whom the dispute had been raised (Opposite Party) as required by the aforementioned test. This is because the Regulations require that a copy of the information be sent to the Opposite Party. Further, Section 26 of the Act mandates that the order of the CCI is required to be sent to both the informant and the opposite party. These requirements suppose the existence of a dispute between the informant and the opposite party.

Although the aforementioned test requires that the case of both parties to the dispute be presented, the presentation of its case by the Opposite Party may not be required in circumstances where the information lacks sufficient merit for the CCI to make out a prima facie case. The desperate lack of merit in the case of one party such that it obviates the necessity of a response from the other party cannot change the character of the proceeding. The authority to which the case is presented may itself identify the lack of merit and dismiss the matter at the threshold.

The High Courts exercise a similar power at the stage of Preliminary Hearing of a Writ Petition. The only difference is that the Petitioner there is given an opportunity to orally present her case. If the High Court finds that the petition lacks merit, it may dismiss the matter at the threshold without issuing notice to be issued to the Respondent. However, the lack of response from the respondent in a writ petition which lacks merit does not change the nature of the proceeding or the decision made thereon.

Having established that in such cases the act of filing of information meets the first criteria of the test, I shall proceed to examine whether an order made in such cases meets other criteria laid down by the test. The second criteria is that if the dispute is between the parties is a question of fact, the authority must ascertain facts by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence.

In forming a prima facie opinion which is the basis of the order, The CCI would be required to establish the veracity of facts stated in the information. The ascertainment of the veracity of facts is to be done by evaluating evidence produced along with the information. Since no investigation can take place at this stage, the CCI would necessarily be required to rely on evidence produced by the informant in verifying facts. Therefore an order passed under Section 26(1) of the Act would satisfy the second criteria.

So far as the third criteria is concerned, the CCI would ordinarily not consider a question of law while forming a prima facie opinion as to a possible contravention of the Act. It is to be noted that this criteria need not be met if no question of law is raised. Therefore the question of considering a legal argument at this stage does not arise.

An order finding no prima facie case of contravention of the provisions of the Act meets the fourth criteria. This is because it does dispose of the whole of the matter upon a finding upon facts and applying the facts found to the law. As noted earlier, at this stage the CCI is required to examine the veracity of facts by evaluating evidence adduced. This process leads the CCI to come to a finding upon the facts alleged in the information. Once it has made a finding upon the facts, it must determine whether the facts found would on the face of it contravene the provisions of the Act. To that end, it is required to consider arguments made by the informant as to why the facts alleged constitute a contravention of the provisions of the Act.

Thereafter, it must apply the facts found to the law. That is to say, the facts found must be tested against the provisions of the Act so as to determine whether they might on the face of it constitute a contravention of the provisions. It is required to apply its mind while making this determination. It is also required to provide reasons in its order as to why, the findings of fact were so made and as to why it found no contravention on the face of the facts found upon their application to the law.

Now, if an order passed under Section 26(1) of the Act is considered a judicial decision, an order passed by the CCI under Section 27 after consideration of objections by the Opposite Party and questions of law and arguments thereon, is also to be considered a judicial decision.

Examination of Nature of Decision under Section 28

Section 28 of the Act empowers the CCI to pass an order in writing directing the division of a dominant enterprise to ensure that such enterprise does not abuse its dominance. The Act in its current form does not specify a procedure to be followed in passing such orders. Prior to the amendment carried out in 2007, an order under Section 28 was to be passed by the Central Government on a recommendation by the CCI. However such a recommendation could be made only if the CCI had found the enterprise in question to have abused its dominant position in the market under Section 27 of the Act. Therefore prior to the amendment, a condition precedent to an order under Section 28 was an order passed under Section 27.

I would submit that this position has not changed after the amendment. This is because, the prohibition under the Act relates to the actual abuse of dominance rather than a possible abuse of dominance. The objective of the Act is not the prevention of dominance in the markets but the prevention of anti-competitive behaviour which arises out of dominance. A reading of the provision would show that there is no guidance with regard to the circumstances under which the CCI may direct the division of an enterprise. There is no guidance as to the factors which may be considered by the CCI before concluding that an enterprise is likely to abuse its dominant position.

Therefore an order under Section 28 cannot be passed without following the procedure under Section 26. As has been examined, the procedure contemplated under Section 26 leads to a decision that is judicial in nature. Therefore an order passed under Section 28 of the would be a judicial decision.

Examination of Nature of Decision under Section 31

Having established that the CCI exercises judicial powers in passing orders with regard to anti-competitive activities under Section 3 and 4 of the Act, we must examine the nature of the function performed by it in regulating combinations through orders passed under Section 31 of the Act. This function cannot be categorised as one that is purely judicial in nature, since it is not an order arising out of an adversarial proceeding. (However it does attain the character of an adversarial proceeding when objections are filed to the proposed combination by a person who would be affected by it.) The passing of an order under Section 31 of the Act involves the examination of facts pertaining to the combination. The CCI thereafter is required to apply such facts and determine whether the combination is likely to have an appreciable adverse effect on competition in the relevant market. This involves consideration of several factors including whether the combination would enjoy a dominant position in the relevant market after such combination is given effect. A list of factors to be considered by the CCI in deciding the question as to whether a combination is likely to have an appreciable adverse effect on competition in India, is provided under Section 20(4) of the Act. Therefore the CCI is required to apply the facts to the policy laid down by the law and determine the question.

There are several judicial elements to the function performed by the CCI in regulating combinations through orders. The function is not very different from the function performed by a company court in mergers and amalgamations of companies. These functions are more akin to judicial functions than to executive or legislative functions.

From the above analysis it is clear that the primary functions of the CCI performed are judicial in nature. Although it does perform secondary functions which are advisory in nature, they cannot be taken to be a basis of classification of the nature of the body. If the function of the CCI is considered to be the prevention of anti-competitive behaviour through the enforcement of the provisions of the Act, the only powers which enable it to do so are judicial in nature. Without these powers, the CCI would be a toothless body, incapable of enforcing the provisions of the Act. Therefore, I submit that the CCI is to be considered a judicial tribunal.

If the status of the CCI is that of a judicial tribunal, its composition and manner of appointment of members would need to be in line with the guidelines laid down by the Supreme Court in paragraph 120 of its judgment in Union of India v. R. Gandhi which were reiterated in Madras Bar Association v. Union of India. This is because once it is characterized as a judicial tribunal, the CCI becomes a judicial body performing the role of a court.

Therefore the constitution of the CCI, which has a preponderance of non-judicial members, coupled with the fact that they are selected by a committee whose majority of members are appointed by the Central Government are clearly violative of the guidelines laid down by the Supreme Court. For these reasons, I submit that the CCI in its current form is unconstitutional.

Guest Post: On the (Un)Constitutionality of Competition Commission – I

[This is a two-part series by Rahul Dev.]

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In April 2019, the Delhi High Court upheld the constitutional validity of the Competition Commission of India (CCI). The challenge to its validity was based on the ground that the structure of the CCI disregarded the constitutional doctrine of the separation of powers. The Petition alleged that the CCI, which was a judicial body performing judicial functions, was not sufficiently independent of the Executive. In this two-part series, I will argue that the CCI is in fact unconstitutional.

Before examining the constitutional validity of the CCI, I believe that a summary of the context in which it was established and its evolution would be useful. A brief overview of the context is as follows: A committee (Raghavan Committee) was appointed by the Government of India in 1999 to advise on a new Competition Law in India. The committee submitted its report in 2000 and recommended the enactment of a new competition law in line with international developments. On the basis of this report the Competition Act 2002 (the Act) was enacted.

Soon after the CCI was established under the Act, A Writ Petition (Brahm Dutt v. Union of India) was filed before the Supreme Court, challenging the Rules prescribed by the Central Government under the Act for the selection of the Chairperson and other Members of the Commission. It was alleged that Rule 3 was unconstitutional on the ground that though the CCI was largely a judicial body, the power to select and appoint its members was conferred on the Central Government. It was contended that the rule in question was contrary to the doctrine of separation of powers and was liable to be struck down.

The Government filed a counter-affidavit refuting the Petitioner’s contentions. However, it thereafter filed two additional counter-affidavits stating that certain amendments were proposed to be carried out in the Act as well as the Rules. It said that the proposed amendments were to be carried out to enable the Chairman and the Members to be selected by a Committee presided over by the Chief Justice of India or his nominee. It was further stated that the alleged usurpation of judicial power would be remedied by the establishment of an appellate authority which would be a judicial body conforming to the doctrine of separation of powers.

The Supreme Court, being of the view that the proposed amendments would have a direct bearing on the outcome of the Writ Petition, did not pronounce a judgment on the issue at that time. It decided to leave all questions open to be decided after the proposed amendments were made, and disposed of the matter. The amendments that were spoken of by the Central Government were carried out in 2007. It was through this amendment that the CCI, which was established in 2003, attained its current structure.

Examination of CCI’s Constitutional Validity by the Delhi High Court

Several car manufacturers who were aggrieved by an order passed by the CCI filed Writ Petitions before the Delhi High Court challenging several provisions of the Act. Through these petitions they, inter alia, challenged the constitutional validity of the CCI. These petitions were heard together and disposed of by a common judgment on 10th April 2019 (Mahindra Electric Mobility Limited and Anr. vs. Competition Commission of India and Anr.).

Section 8 of the Act provides for the composition of the CCI and the qualifications of its members. The violation of the doctrine of separation of powers by Section 8 may have been raised since it does not mandate that a majority of the members ought to be qualified to be appointed to a judicial office. Section 9 of the Act provides for the manner of appointment of the members of the commission. It provides that the members of the CCI are to be appointed by the Central Government from names recommended by a Selection Committee. The Selection Committee is to consist of the Chief Justice of India or his nominee and four other members to be appointed by the Central Government. The conceivable basis of challenge under this provision is that appointments to a judicial body are controlled by the Central Government.

The Delhi High Court heard the matter and held that the CCI does not violate the doctrine of separation of powers. I submit that the decision of the Court is incorrect.

A violation of the doctrine of separation of powers entails an encroachment by one organ of the State into the powers of another. In this case it entails the encroachment by the Executive into the powers of the Judiciary. Therefore the first question that requires consideration is:

Whether the CCI is a part of the judiciary? In other words, can the CCI be considered a judicial body?

The Delhi High Court examined the nature of the functions performed by the CCI as well as its status so that it may decide whether the CCI is a judicial body or not . However, the question for consideration was framed in a way which could not aid the court in deciding whether the CCI is a judicial body. The question framed was:

“Is the CCI a tribunal exercising judicial functions, or is it performing administrative and investigative functions and also adjudicating issues before it?”

The question has two parts. The first part: “Is the CCI a tribunal exercising judicial functions?” the second part: “or, is it performing administrative and investigative functions and also adjudicating issues before it?” Therefore, the question gives rise to two possibilities.

First possibility: The CCI is a judicial body performing judicial functions.

Second Possibility: The CCI performs judicial functions as well as administrative and investigative functions.

The two possibilities may not be mutually exclusive. That is to say, the two possibilities could occur simultaneously. The CCI could be a judicial body which also performs other administrative and investigative functions (perhaps in the course of performing its judicial functions).

The question however divides the two possibilities by the word ‘or’. By doing so it is assumed that it is not possible for a body to be a judicial body and perform investigative functions and minor administrative functions.

In my submission, a situation where a judicial body may in fact perform minor investigative and administrative functions. The CCI itself is such a body. The civil courts are also such bodies. One may refer to the powers of a civil court under Order XXVI Rule 9 of the Code of Civil Procedure 1908, to issue a commission to a person to conduct local investigations to elucidate on a matter in dispute and file a report regarding such investigations. A report filed by the commissioner along with the evidence collected would be evidence in the suit. The investigation carried out by the commissioner on the orders of the court is nothing but a fact finding exercise. It is an exercise of collection of evidence by the Court. The nature of this function may not be termed as an adjudicatory but an investigative one. However, this function is performed to aid the court in deciding certain issues in a suit. It is a means to perform the end function of the court which is judicial in its nature. Merely because it also performs this investigative function in aid of its judicial functions, it cannot be said that the civil court is not a judicial body. The function of investigation performed by the Director General on the orders of the CCI are to be seen in the same light.

Now, the question as to whether the CCI is a judicial body requires to be answered. In the discussion on the nature of the functions performed by CCI the Delhi High Court relied heavily upon the decision of the Supreme Court in Competition Commission of India vs. Steel Authority of India and Anr. I submit that the reliance on this decision by the High Court was misplaced. The High Court quoted a passage from the decision of the Supreme Court which states (without discussion on the point) that the functions of the CCI are wide and held that it was bound by this enunciation of law. The passage quoted was:

“75. … Under the scheme of the Act, this Commission is vested with inquisitorial, investigative, regulatory, adjudicatory and to a limited extent even advisory jurisdiction. Vast powers have been given to the Commission to deal with the complaints or information leading to invocation of the provisions of Sections 3 and 4 read with Section 19 of the Act”.”

This statement was made by the Supreme Court as a part of an overview of Competition Law in India. The overview did not pertain to any particular issue but was generally made before the issues in that case were taken up for discussion. It may safely be said that the statement forms a part of the obiter-dicta of the judgment. It was wholly irrelevant to that case, in which the questions revolved around the scope of powers of the CCI in forming a prima facie opinion under Section 26(1) of the Act. The statement being a part of the obiter-dicta of the judgment was not binding on the Delhi High Court.

The reliance placed by the High Court upon the decision of the Supreme Court in Steel Authority of India Limited (supra) was misplaced for another reason. The question that arose for the consideration of the Supreme Court in Steel Authority of India Limited (supra) was with regard to the scope of power of the CCI while forming a prima facie opinion under Section 26(1) of the Act. In order to answer that question it considered the nature of the function performed by the CCI specifically under Section 26(1) of the Act. In coming to the conclusion that the function under Section 26(1) of the Act was inquisitorial, it did not characterize any other function of the CCI to be inquisitorial. It was only the function of forming a prima facie opinion which was considered to be inquisitorial.

The Delhi High Court however applied this finding to characterize the entire proceeding before the CCI. This is apparent from its statements in paragraphs 76 and 77 of its decision. The statements read as under:

76. Characterizing the proceeding before CCI as one akin to the preliminary stages of a departmental proceeding, the court, in SAIL (supra), held that prima facie opinion formation was merely an administrative function and that inquiry into the information or complaint (received by CCI) commences after such opinion was formed…”

77. It is therefore clear that though information or complaint which may trigger an inquiry, (but not necessarily so, in all cases) is received by the CCI, the initial steps it takes are not always towards, or in aid of adjudication. They are to ascertain fuller details and inquire into the veracity (or perhaps) seriousness of the contents of the information, to discern whether such investigation and further steps towards adjudication are necessary.

 

This mischaracterization of the entire proceeding before the CCI may have been overlooked if the Court thereafter analysed the other functions of the CCI independently and came to its conclusions as to their nature. However, the decision lacks such an analysis.

(I would submit that the finding made by the Supreme Court in Steel Authority of India Ltd. (supra) that the CCI performs only an administrative function in forming a prima facie opinion under Section 26(1) of the Act is incorrect. This is because the formation of a prima facie opinion requires the application of facts to the law. Thereafter it involves the application of a judicial mind to determine whether from the set of given facts a possibility of contravention of the law exists. The function under Section 26(1) of the Act does not end at ascertaining the veracity or seriousness of the contents of information. It is one of the functions to verify the contents of the information, but not the only one. The important function under Section 26(1) of the Act is the formation of a prima facie opinion. A detailed analysis has been made later in this article. For now, we may assume that the Delhi High Court was bound to hold the function under Section 26(1) as inquisitorial.)

Instead of analysing the other functions of the CCI, the High Court summarised them and ambiguously stated that the functions were administrative in nature. The relevant portion of the judgment has been extracted below:

78. At the next stage, after CCI directs investigation, the Director General (DG), after investigation, has to report to it [Section 26 (2)]. If the recommendation of the DG is that no case exists, the CCI is nevertheless obliged to forward a report to the informant/complainant, receive its or his comments and afford a hearing [Section 26 (5)]. After the hearing, it may dismiss the complaint [Section 26 (6)]; or direct further inquiry [Section 26 (7)]. If, on the other hand, the DG‟s report recommends that there exists some contravention of provisions of the Act, the CCI has to proceed further, and inquire into that [Section 26 (3) read with Section 26 (8)]. The CCI has limited powers of the civil court [Section 36 (2)] in matters such as (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavit; (d) issuing commissions for the examination of witnesses or documents; (e) requisitioning, subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), any public record or document or copy of such record or document from any office. The CCI can also require the opinion of experts [Section 36 (3)]. Significantly, CCI has no power to review its orders: previously, Section 37 permitted review; however, the 2007 amendment repealed that provision; it has limited rectification power, under Section 38. In case of imposition of penalty, one mode of recovery is through reference to the concerned income tax authority [Section 39 (2)]; such officer or income tax authority can then recover the penalty as if the party concerned were an ―assessee in default‖ under provisions of the Income tax Act [Section 39 (3)]. These investigative powers are also conferred concurrently upon the DG [Section 41 (2)].

A reading of the above paragraph reveals that there is no analysis whatsoever into the nature of the functions mentioned. The functions mentioned are clearly different from that discussed by the Supreme Court in its decision in Steel Authority of India Limited (supra). For instance, in the summary of functions made by the Court, it is mentioned that the CCI may dismiss the complaint based on the recommendation of the Director General that no case contravention of the Act exists. However, it may do so after hearing the parties concerned. This function of dismissal of the complaint is, on the face of it, adjudicatory. However no discussion into its nature has been made by the High Court.

There is another problem with examining independent functions such as investigation directed by the CCI in an inquiry under Section 19 of the Act, or the dispatch of notice upon the receipt of information from an informant. These functions are performed as a part of the entire function of conducting the inquiry and passing orders. They are never performed on their own or in isolation. For instance, an order directing the Director General to conduct an investigation can never be passed without an inquiry being initiated under Section 19 of the Act. If they were performed in isolation, their performance would lead to no logical end. Therefore the nature of these functions cannot be taken to characterize the CCI. The nature of the larger function is to be examined in order to determine the nature of functions performed by the CCI.

Thereafter, the High Court erroneously relied on the decision of the Supreme Court in Excel Crop Care India v. Competition Commission of India, to delineate the role of the CCI. In that case a contention was taken up by the Appellant that the Director General has no jurisdiction to investigate certain anti-competitive activities which took place after information had been filed with the CCI under Section 19 of the Act. Therefore the question in that case was whether the jurisdiction of the Director General in conducting investigations under the Act extended to actions which took place after the information had been filed. It did not pertain to the role of the CCI or the nature of functions performed by it. There was no discussion by the Court on this aspect.

The Delhi High Court quoted a passage from the said decision of the Supreme Court which did not discuss the role of the CCI in any manner and held that the said decision underlined the role of the CCI through investigation. In my submission, the decision of the Supreme Court does not aid the identification of the nature of functions of the CCI.

It was thereafter held that the CCI does not solely perform adjudication so that it may be characterized as a tribunal discharging solely judicial powers of the state. It was rather considered to be an administrative body which also performs quasi judicial functions.

The second issue framed by the High Court was whether the CCI violates the doctrine of separation of powers and is therefore unconstitutional. A vague continuation of the discussion as to the character of the CCI was made. The structure of the CCI was compared to regulatory bodies such as SEBI, TRAI, AERA, AAI and State Commissions and the Central Commission under the Electricity Act and it was stated that statutes governing these bodies do not require that its officers performing adjudicatory functions need not possess judicial experience. Such comparisons could not assist the Court in determining the character of CCI since the functions performed by these bodies differ widely. The CCI is fundamentally different since it does not have any legislative or executive powers, barring limited powers to regulate its own procedure.

The Court thereafter recognised that the CCI does perform certain adjudicatory functions in passing orders. However, it held that the adjudicatory functions were not to be given such primacy as to hold the CCI to be a judicial tribunal. Therefore, the challenge to the constitutional validity of the CCI on the ground that it was a violation of the doctrine of separation of powers was rejected.

In my opinion the finding that adjudicatory functions of the CCI cannot be given primacy is incorrect. It is a finding that is crucial to the point in discussion since the nature of an independent function would change the nature of the body depending on the weight attached to the function in question. That discussion will be taken up in the next post.

“Fake News” and the Constitution

As millions of migrant workers made their way from India’s cities back to their villages after the government announced a nation-wide ‘lockdown’, the Solicitor General of India informed the Supreme Court that the exodus was caused by “some fake/misleading news and social media” and sought a direction to prevent “fake and inaccurate reporting” (here). In Maharashtra, an order was passed under Section 144 of the Code of Criminal Procedure prohibiting the dissemination of information on social media that was ‘incorrect or distorted facts’ (here). And Kashmir’s new ‘Media Policy – 2020’ states that “Any fake news or any news inciting hatred or disturbing communal harmony shall be proceeded against under IPC/Cyber Laws” (here).

Phrases such as “incitement” and even “disturbing communal harmony” have a long and well-documented use in Indian law (for better or for worse). However, the above narrated incidents demonstrate a recent trend by the Indian government to try and restrict speech on the ground that it constitutes “fake news” (I use speech in the broadest possible term to include the press, broadcasting and online media). India is not alone, countries such as Singapore and Indonesia have introduced full-blown legislation to restrict “fake news”. In this post, I begin by noting that the term “fake news” suffers from several definitional hurdles that point to deeper structural problems in our media eco-system. I argue that there are several very good reasons why we may want to restrict some forms of misinformation. However, any restriction imposed on speech must comply with the constitutional safeguards set out in Articles 19(1)(a) and 19(2). Examining “fake news” restrictions against the concepts of vagueness, overbreadth and a disproportionate chilling effect, I argue that restrictions on “fake new” that are narrowly tailored enough to be constitutionally compliant are unlikely to be effective in combatting the social harms we associate with “fake news”. I conclude by advocating a heterogeneous approach to combat the issue of “fake news”.

A few caveats. First, because India does not yet have a “fake news” legislation, my analysis is necessarily in the abstract (even the Kashmir policy ultimately relies on provisions of the Indian Penal Code for prosecution). This post seeks to evaluate the consequences of restricting “fake news” as a category of speech and I accept that any restrictions imposed by the government may be more nuanced than a blanket restriction on “fake news” (although the signs are not promising). Second, there is a separate but cognate conversation to be had about the role of internet intermediaries in facilitating and restricting “fake news” that is worthy of a separate post and I have not addressed the issue here for the sake of brevity.

Protected Speech and its Limits

Before beginning it pays to recap a few important aspects of free speech regulation in India. While Article 19(1)(a) guarantees citizens the freedom of speech, Article 19(2) allows for “reasonable restrictions” in the interests of inter alia: (i) the sovereignty/integrity of India; (ii) the security of the State; (iii) public order; (iv) decency or morality; (v) defamation; or (vi) incitement to an offence. As we can see, speech in India can be restricted because of its consequences, that it may lead to violence, but also because of the speech’s content – that the meaning conveyed is deemed legally objectionable. The State evidently has an interest in restricting speech that directly leads to violence. However, in the case of obscenity laws or defamation, speech is restricted because of value judgements by the State. Obscene speech does not lead to violence, but the State believes that it leads to an erosion of public morality.

Any restriction on speech must have a proximate connection with a specific head set out in Article 19(2). The government cannot restrict speech merely in the ‘public interest’, or because it is ‘false’, neither of which are heads under Article 19(2). Therefore, if the government wanted to restrict “fake news” it would need to prove that “fake news” either caused harm because of its content (defamation, decency or morality) or that it was inciteful leading to violent consequences (public order, incitement to an offence). Lastly, there is a long line of cases noting that the ‘proximate connection’ means a real and imminent risk of harm arising from the speech and not vague speculation about possible future harms.

Defining “Fake News”

“Fake news” is a term bandied about very loosely nowadays which has resulted in everybody thinking there is consensus about the phenomenon being referred to, but very little certainty as to what content is “fake news” and what content is not. The term has been applied to satire, propaganda, biased reporting, sponsored or promoted content, factually incorrect reporting, entirely fabricated stories, or simply inconvenient truths. The term does not clarify whether it applies to private communications (WhatsApp chats), social media (Facebook), online media (an online-only news organisation) or even traditional print media. In a post Donald Trump era, the term also necessarily carries a derogatory component that is often independent of an objective evaluation of the actual content (Habgood-Coote refers to this as an ‘epistemic slur’). The flip side of this issue is that there is very little certainty about who a “journalist” is today, with citizens receiving news from a wide variety of sources.

The term “fake news” therefore refers to a heterogeneous field of content, some of which have a diverse set of underlying problems. This becomes immediately apparent when we look at the words we used to use to describe this type of content before we began using the umbrella term “fake news”. Inaccurate, false, misleading, biased, sensationalist, propaganda and advertisement are just some of the words to describe what we now call “fake news”. Using an exact term to identify the issue with a piece of content allows us to create targeted and meaningful solutions. For example, the type of regulation needed to regulate factual inaccuracies in a newspaper article is very different from the type of regulation needed to ensure paid advertising can be distinguished from news stories. We need to stop using the umbrella term of “fake news” and begin accurately labelling the specific harms caused by the speech in question.

From a free speech perspective, it is important to note that the distinction between “fake” and “real” is a politically contested one. The more polarised a society, the less likely it is that different parts of a population experience the same political reality. This makes legally regulating the fake/real distinction problematic, as seen in Singapore where the government sent orders to Facebook to “correct” individual posts. The posts alleged that the Singaporean government had illegally influenced investment companies, suppressed whistle-blowers, and rigged elections (here). This is emblematic of how governments can use a restriction on “fake news” to restrict a broad range of criticism and plenty has been written about the Indian government’s efforts to reshape the narrative in Kashmir (here). At the end of the day, governments place a pre-eminent value on self-preservation coupled with a bias towards their own political ideologies, and the ability to determine what is “fake” and what is “real” goes a long way towards silencing opposing viewpoints and homogenising political thought.

That said, there exist more nuanced definitions of “fake news” and a blanket ban on “fake news” is unlikely. For example, the European Union (in non-binding documents) doesn’t use the term “fake news” at all, rather it defines “disinformation” as ‘verifiably false or misleading information which cumulatively is created, presented and disseminated for economic gain or to intentionally deceive the public and may cause public harm intended as threats to democratic, political and policymaking process as well as public goods’. By requiring an evaluation of the intent behind the creation of the information and a (rather soft) the requirement for actual harm the European definitions seems to be less of a burden on free speech. But this also means it is less effective at curbing the spread of misinformation. Users may spread disinformation legitimately believing it to be true, and how does one assess when a ‘policymaking’ process is harmed? It also does not regulate other harms we associate with “fake news” such as media bias. It is worth keeping these considerations in mind as we consider the harms arising from “fake news” or “disinformation”.

The Argument for Regulating “Fake News”

There are two primary reasons why a government may legitimately wish to regulate “fake news”. First, misinformation or fabricated stories may directly result in violence, either through information about specific individuals or more broadly stoking pre-existing fissures in society (e.g. race or religion). India has already witnessed a string of violent incidents that investigative authorities have noted were either caused by or aggravated due to the spread of disinformation. Second, disinformation can interfere with the electoral process by misinforming voters about candidates’ political opinions, track records, previous misdeeds, and positions on important social issues. An uninformed voter is unable to vote for a candidate that best represents their interests, directly undermining the legitimacy of the electoral process and the resultant government. To make matters worse, disinformation is likely to disproportionately effect voters who do not have access to multiple sources of information (the poor and marginalised).

As Ari Waldman notes, in the long run disinformation can fundamentally alter public discourse by creating false equivalencies, particularly where political leaders spread disinformation. If a factually incorrect statement by a political leader must be accorded equal weight as the truth in the name of journalistic neutrality, a society may waste valuable public time and energy debating false stories (e.g. see the amount of time the U.S. media spends merely correcting President Trump’s demonstrably false statements). Over time, sustained bias or propagandistic reporting can harden political bias, causing citizens to select media sources that merely confirm their existing notions of true or false, further increasing polarisation.

To be clear, traditional justifications for the freedom of speech such as Mill’s argument that more debate over ideas ultimately lead to the truth (culminating with Justice Holmes famous ‘marketplace of ideas’ analogy) are not strictly applicable to “fake news”. To argue that we should produce even more “true news” (counter-speech) rather than restrict “fake news” is problematic for two reasons. First, it doesn’t work and inaction can lead to the type of cyclical harms referred to above (a recent MIT study found that false stories diffused further and faster than true stories on Twitter in all categories of information  (here)– in other words, the truth does not rise to the top).

More fundamentally, Mill’s theory and subsequent adaptations are premised on having more ideas and counter-ideas, not facts and “counter-facts”. Facts and opinions are very distinct in their nature but also share an important relationship when it comes to free speech. While there may be an infinite number of ideas or opinions about a fact, a fact is singular and objective. For example, whether there are Chinese soldiers inside what India considers its territory is a question of fact. The soldiers are either there, or they are not. What India should about the Chinese soldiers and its own territorial claims is a question of opinion with many possible answers. However, it is also important to acknowledge that “factual truth informs political thought” – in other words people’s opinions have a factual basis. For people to have meaningful opinions about the world, and for those opinions to interact with each other in meaningful debate, there must be an agreed upon factual basis. It makes sense not to restrict ideas and opinions because they open new avenues of thinking, however an agreed upon baseline of facts is fundamental to an informed debate about ideas. Returning to our example, how can we debate whether the government’s foreign policy was a success if we do not know whether the Chinese soldiers were in Indian territory or not? Therefore, a freedom of speech justification created to ensure free debate may actually favour some restrictions on “fake news” by ensuring a common baseline of facts.

Legally Restricting “Fake News”

Recall that under the constitutional scheme, all speech is free other than that which the government restricts because it is has a proximate nexus with the specific harms identified by the heads of Article 19(2) (public order, defamation etc.). Although the Indian Supreme Court has never explicitly dealt with the question of whether factually false statements are protected under the Constitution (the U.S. Supreme Court in Alvarez explicitly held such statements to be protected under the U.S. Constitution) factual inaccuracy is not a ground to restrict free speech under Article 19(2). Therefore, it is reasonable to assume that if the government wanted to restrict speech it classified as “fake news”, it would have to argue that the speech was either defamatory, would lead to a breach of public order, or amounted to an incitement to an offence. What amounts to a valid restriction under these heads of 19(2) have been widely discussed elsewhere on this blog and I do not intend to rehash them. Rather I argue that restrictions on “fake news” are likely to fall foul of two principles: (i) vagueness, (ii) overbreadth leading to a disproportionate chilling effect on speech.

Vagueness: A law is unconstitutionally vague if ordinary citizens cannot determine whether they have broken it or not. Imagine a law which restricted citizens from “honking too much” at traffic signals. How does a citizen determine how much is “too much”? The law does not provide a fair warning to citizens as to whether their actions will break the law or not. Vague laws also grant officials a large amount of discretion as to when a law has been breached or not (would you trust a police-officer to tell you when you are honking too much?).

Restricting speech on the ground that it is “fake news” would likely lead to widespread confusion about what kind of speech the government was restricting. Recall the broad range of content that comes under the banner of “fake news” – from satire to inaccurate reporting to fabricated stories. More nuanced definitions (such as that proposed by the European Union) may remedy this issue but are still unwieldy. The line between advocacy and deception is often imperceptible, with compelling arguments often cherry-picking or manipulating facts. Further, terms such as ‘threats to the democratic, political and policymaking process’ are so wide that they substantially increase the risk of the government selectively prosecuting speakers with unfavourable opinions. Kashmir is a living example of where free speech has been left entirely to the whims of the executive, and it has led to the denial of internet services, the arbitrary blocking of websites, and the persecution of journalists.

Overbreadth: A restriction on speech is “overbroad” when it restricts both the speech that the government can legally restrict (e.g. hate speech) but also goes on to restrict speech other speech that is constitutionally protected (e.g. dissent). In Shreya Singhal, the Supreme Court was called to adjudicate upon the constitutionality of Section 66A of the Information Technology Act, which criminalised speech that was “grossly offensive”. The court noted that any citizen may advocate a view on governmental, literary, or scientific issues that may be unpalatable or even “grossly offensive” to other citizens. While some speech may be justifiably restricted, not all speech that was “grossly offensive” rose to the level where there was an imminent risk to public order or incitement. This meant that, by using the term “grossly offensive” Section 66A also ultimately criminalised constitutionally protected speech. The court observed:

“Section 66-A purports to authorise the imposition of restrictions on the fundamental right contained in Article 19(1)(a) in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action […] It must therefore, be held to be wholly unconstitutional and void.”

The term “grossly offensive” was so broad that it restricted some speech justifiably, but also other speech unjustifiably. In Shreya Singhal the court distinguished between discussion, advocacy, and incitement. It held that the first two formed the heart of constitutionally protected speech while inciteful speech may be legally restricted. Simply put, restrictions on speech that restrict inciteful speech and are broad enough to go on and restrict discussion and advocacy are unconstitutional.

If the government were to restrict “fake news” (a very broad category of speech), it would also likely restrict a vast amount of constitutionally protected discussion and advocacy. At its bluntest, satire, parody, and anti-government reporting could fall under the ambit of “fake news”. More critically, a restriction on “fake news” would create the risk of liability for journalists and media houses, that a single inaccurate factual assertion could lead to censorship or punitive action. For example, Kashmir’s new ‘Media Policy’ flat out dis-empanels journalists for publishing “fake news”. A news-report that exposed governmental overreach but contained a minor factual error or irregularity could be termed “fake news”, robbing readers of valuable information and robbing journalists of their livelihood.

Where restrictions on speech are vague, overbroad, and punitive, they create a chilling effect on speakers. Content creators, journalists, publishers, media houses and ordinary citizen are likely to ‘err on the side of caution’ and simply not speak rather than run the risk of their speech being adjudged as a crime. To avoid this chilling effect, the law of defamation incorporates what is known as the “actual malice” standard. It states that unless a speaker’s statement evidences ‘actual malice or a reckless disregard for the truth’, the statement cannot be considered defamatory. The logic is simple, with the vast amount of free-flowing debate in society a few inaccuracies are bound to crop up. Rather than aggressively prosecute these minor inaccuracies and frighten all other speakers, the law states that where these inaccuracies do not possess any ‘actual malice’ they are exempt from prosecution. In Rajagopal the Indian Supreme Court adopted the ‘actual malice’ standard in civil defamation cases and recently, the Madras High Court has adopted the standard in the context of criminal defamation (here). Defamation requires an alleged injury to reputation, something not all “fake news” is likely to cause. However, the rationale that minor inaccuracies should not lead to punitive action which has a chilling effect on speech should certainly apply, and any restrictions on “fake news” should incorporate the ‘actual malice’ standard.

The Government and the Truth

One last point may be made before concluding. In Alvarez, the U.S. Supreme Court struck down a statute which punished persons for falsely claiming to have been awarded military medals. In striking down the law, the court noted that that it was wary of the government claiming ‘broad censorial power to regulate falsehoods’, the mere existence of which would have a chilling effect on speech. To be clear, the government does regulate falsehoods in certain cases, most notably in the areas of defamation, consumer protection and fraud, and perjury. This is accepted because, the restrictions on speech are limited to the contexts where they are especially likely to cause harm and are actionable only where they cause actual harm to identifiable individuals. A restriction on “fake news” is much broader. A good news eco-system is more akin to a public good like a clean environment and “fake news” often attacks issues more than people – where it does attack people, the remedy of defamation is always open. Similarly, where the “fake news” is inciteful and capable of causing violence, India already possess a host of anachronistic laws that can be used to restrict and prosecute speech capable of causing violence. Without this proximate connection to real threats, regulating “fake news” creates the spectre of a government truth, something any democracy should be wary off.

Conclusion

The phenomenon often branded as “fake news” can lead to a diverse set of harms ranging from violence, damage to the electoral system and increased political polarisation. However, when examined in light of India’s freedom of speech jurisprudence, restricting “fake news” is constitutionally fraught. Above all, it is important to remember that the government cannot restrict speech merely because it is “false” or “inaccurate”. Briefly, any restriction on “fake news” would need to (i) show some real, imminent and identifiable harm; (ii) the harm would need to be a constitutionally recognised ground to restrict free speech under Article 19(2); (iii) consider questions of medium, time and impact of the “fake news”; (iv) incorporate the ‘actual malice’ standard; and (vi) be the least restrictive measure at the government’s disposal. This is not to say that it is impossible to draft legislation regulating “fake new” (several countries have already done it). There may be real value in pursuing narrow restrictions to reduce the effects of active disinformation campaigns during especially sensitive times (e.g. the run-up to elections). However, the phenomena of “fake news” rarely appears in such convenient forms and speech restrictions that are constitutionally compliant are unlikely to address the other diverse and systemic harms that “fake news” causes.

I began by noting that “fake news” is an amalgam term that houses several underlying issues we associate with our media-ecosystem. Understanding the underlying issues can lead to targeted solutions that bolster media literacy amongst the population and reduce the economic and political incentives associated with fabricated or propagandistic stories. Examples include ensuring a competitive media industry, disclosures requirements on social media sites about promoted content, investment in a truly independent state broadcaster, media literacy education in schools, and ultimately targeted legal interventions where constitutionally compliant speech restrictions may be meaningfully enforced. Merely sounding alarm bells at the rise of “fake news” opens the door to restrictions on speech and government censorship.

This post was largely in response to Kashmir’s Media Policy, which along with the Solicitor General’s statements represent a worrying trend by the government to adopt the clumsy but incredibly dangerous fake/real distinction to assert a dominant, government controlled narrative. In the future, I am sure there will arise more concrete examples that lend themselves to more detailed critique. The government’s position has long been that speech in Kashmir rejects the paradigm of the Indian State itself, representing a unique threat to the integrity of India. However, where the government seeks to preserve power through a stranglehold on truth itself, we have to ask ourselves whether the means employed to preserve the State have overridden what the State once stood for.

Guest Post: Silence and ‘Pragmatism:’ Skirting bail conditions in the UAPA

[This is a guest post by Nitika Khaitan.]

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The denial of bail to Safoora Zargar last week drew fresh attention to harsh conditions in the Unlawful Activities Prevention Act 1967, which make it exceedingly difficult to secure bail. Under S. 43D(5) of the Act, no person accused of certain UAPA offences can be released on bail if the court finds reasonable grounds to believe that the accusations against her are prima facie true. Amidst overly broad definitions of these offences, and a low prima facie threshold, how then have courts granted bail? Sometimes, by narrowly interpreting offences or holding that the evidence against the accused is contradictory. At other times, as is the focus of this post, by simply leaving out any mention of the Act or its mandate altogether.

In 2016, for instance, the Supreme Court granted bail to the Dalit activist Angela Sontakke, accused of being a member of the Communist Party of India (Maoist), which is banned as a terrorist organisation. The Bombay High Court had earlier held that her bail was barred by S. 43D(5), since she appeared to be an active member unlike some of her co-accused (who had thus been granted bail by a different High Court bench). While allowing Sontakke bail, the Supreme Court order records that she is charged with offences under Chapters IV and VI of the UAPA, which attract S. 43D(5). But the order doesn’t mention the section. It doesn’t even briefly refer to the evidence against her, let alone record a different prima facie finding from the High Court’s. It speaks merely of balancing the serious charges against her with the facts that she is a woman, has spent years in custody and has yet to see her trial begin.

This is far from the only order that reads as if S. 43D(5) doesn’t exist. In 2017, while granting bail to three Kabir Kala Manch activists accused in the same case as Sontakke, the SC doesn’t even mention the UAPA. Other orders mention just the section number. In the 2017 bail plea of Malegaon blast accused Lt. Col. Prasad Shrikant Purohit, his counsel contended that S. 43D(5) wouldn’t apply since the blast occurred before the amendment that enacted the section. The SC order holds that this plea must be considered at the time of trial and not now. Without excluding the application of S. 43D(5) though, the SC proceeds to effectively ignore it. (The judgment also, oddly, refers to the state as having “rights” to investigate, instead of calling it what it is, a power.)

The SC’s reasoning for granting him bail reads like an order under ordinary law. The SC refers to prima facie satisfaction in support of the charge as one of the factors to consider (true for regular bail), not as the factor that S. 43D(5) elevates above all else. The only other time the Court uses the phrase is in holding that there is a “prima facie case for release on bail,” decidedly not the finding it is mandated to return. Attempts to hunt for the missing reasoning elsewhere in the order fail. The SC does say that there are “variations” and “material contradictions” in chargesheets filed by different investigating agencies (this was also discussed in the Bombay HC order granting bail to another Malegaon blast accused, Pragya Singh Thakur). But before one can infer that this is what led the SC to believe a prima facie case wasn’t made out, the order promptly states that these contradictions too need “to be tested at the time of trial and this Court cannot pick or choose one version over the other.” Almost as if to overcompensate for its missing finding on the evidence, the order repeats thrice on the same page that “at the stage of granting bail, a detailed examination of the evidence” need not be undertaken. (The general proposition is correct, but as held by the SC in the context of another law imposing similar restrictions on bail, “The duty of the court at this stage [of bail] is not to weigh the evidence meticulously… However, while dealing with a special statute… the court may have to probe into the matter deeper”). The order ends by going beyond the usual caveats and emphasises that the grant of bail here “shall be no consideration for grant of bail to other accused persons in the case.”

In none of the cases above did the Court say it was using its extraordinary powers to grant bail where other courts, in light of S. 43D(5), would have been unable to. How do we read the Court’s silences in these orders? Explicitly engaging with S. 43D(5) of course has its pitfalls. As the Andhra Pradesh HC recognised, at the stage of bail, taking the view that the accusations against an accused are not true could dent the prosecution; while taking the opposite view may be akin to “pre-judging the charges.” But even if we allow for the possibility that the Court wanted to refrain from making any observations that would influence lower courts, to not even mention S. 43D(5) in an appeal from a HC that has rejected bail on these grounds goes too far. That this violates the Supreme Court’s own pronouncements is trite. See, for instance, its 2019 decision making clear that courts must apply their mind to the prima facie truth of the accusations. More importantly, while the SC’s orders above indicate an obvious unease with the years in custody that harsh bail conditions inflict on people, they also reflect an unwillingness to fix this unease with anything besides ad-hoc measures, falling far short of the jurisprudence a constitutional court could choose to build.

In the cases above, long years of incarceration played a key role in the Court’s reasoning in favour of bail—over five years for Sontakke, close to four for the Kabir Kala Manch activists and eight years and eight months for Purohit. (This same concern, and elision of the S. 43D(5) mandate, is evident in some High Court orders as well. A 2019 Bombay HC decision, for instance, partly engages with the lack of grounds to prima facie believe the allegations made for certain offences. But for other alleged UAPA offences, the HC simply states that they are punishable with merely two, seven and ten-year imprisonment terms, and the accused had already served nearly four years in jail.) In implicitly acknowledging the injustice of such pre-trial incarceration, while refraining from any systemic change, these SC orders mirror its earlier decisions in the context of other laws with onerous bail conditions.

In 1994, in the context of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, the SC noted that “to refuse bail on the one hand and to delay trial of cases on the other is clearly unfair and unreasonable” and “if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt.” But noting also that the constitutionality of similarly restrictive bail provisions in the Terrorist and Disruptive Activities (Prevention) Acts, 1985 and 1987 (TADA) had been upheld earlier that year, the Court asked itself, “What then is the remedy?” The Court passed a “one-time” order. It directed all undertrials charged with certain offences to be released on bail, if they’ve spent a certain number of years in custody. The Court said that given the percentage of acquittals under the Act, “we cannot be oblivious to the fact that many innocent persons may also be languishing in jails.” But nothing in the order of course was “intended to interfere” with the future grant of bail by lower courts, which would continue as restrictively as before and presumably also lead to many innocent persons languishing in jails till another one-time SC order.

In a similar order two years later in the context of TADA (Shaheen Welfare Association v. Union), the Court even more explicitly recognised that “when the release of undertrials is severely restricted as in the case of TADA” and a speedy trial is “not practical, release on bail… may, in some cases, be necessary to meet the requirements of Article 21.” Acknowledging that “many of the under-trials may be found to have completed the maximum punishment provided by law by being in jail without a trial,” the Court again offered a “pragmatic approach” / “one-time measure.” The Court divided TADA undertrials into different categories based on whether they were roped in for possession offences or overt acts directly attracting TADA sections, or by virtue of vicarious liability and conspiracy provisions; and directed release on bail on different conditions for each category. The Court recognised that it was overriding the ordinary operation of TADA by creating these classes but held that “while adopting a pragmatic and just approach, no one can dispute the fact that all of them cannot be dealt with by the same yardstick.”

What of pragmatism and justice after the one-time measure then? In Shaheen Welfare Assn., the Court recognised that stringent bail conditions “can be justified… on the presumption that the trial of the accused will take place without undue delay.” The Court had then focused on the inadequacy of Designated Courts set up to try TADA cases as the cause for this undue delay. But gross delay is of course pervasive, not exceptional. While upholding TADA’s constitutionality, the Court had also recognised that TADA was often unscrupulously invoked merely to deny bail. It stopped, however, at terming this sheer “misuse and abuse” and merely exhorting prosecutors and courts to do their job better. But what of the extensive material to show that misuse and abuse are woven into the provisions of extraordinary laws? Particularly in the context of the current repository of most of TADA’s provisions, the UAPA, under which the ‘independent’ authority set up to sanction prosecution is appointed by the executive itself.

Despite repeatedly being confronted with the reality that onerous bail conditions equal years of incarceration without guilt, courts have more often than not resorted to elision and ad-hocism. In a series of decisions from November 2019, the Punjab and Haryana High Court called this out. These decisions were delivered in the context of harsh bail provisions for some offences in the Companies Act, 2013, which prohibit release on bail unless the court is satisfied of reasonable grounds to believe that the accused is “not guilty” of the alleged offence amidst other conditions. The High Court orders state that there is an “inconvenient question, which has not been shown… to have been answered by any court so far, including the Hon’ble Supreme Court. The question is – for how long an accused can be kept in custody on the basis of non-fulfillment” of restrictive bail conditions? The HC order decries “unfortunate situations where a court may not even find the moral courage or the legal sanctity to tell to the accused that he shall have to wait in custody till conclusion of the trial, despite and in face of the legislative policy contained in provisions of Section 436A of the Cr.P.C.” S. 436A of the CrPC mandates the release of under-trial prisoners if they have been incarcerated for half the maximum term of imprisonment for their alleged offence. S. 436A itself carves out an exception for offences punishable with death, but non-obstante clauses in special laws like the UAPA exclude the benefit of S. 436A even for offences punishable with imprisonment for three years. Despite such non-obstante clauses, the HC emphasises that years of custody without trial “cannot be used to curtail the liberty of an accused in violation of Article 21” and poses more inconvenient questions—“In such a situation the court would do substantial justice; or would stick to the [bail] conditions…Even if the courts are to stick to such condition; then how much injustice to the accused would be sufficient to off-set or to balance” the conditions? The HC goes on to hold that unless these questions are “categorically answered to say that till the conclusion of the trial such a person cannot be released on bail,” the onerous conditions cannot be held to be mandatory. (Also see the same bench’s 2018 decision with respect to NDPS cases).

In the context of the UAPA as well, certain High Courts reflect a more sustained engagement with these questions. In a 2014 decision, the Andhra Pradesh HC lays out, colourfully, the cautious and delicate approach needed with provisions like S. 43D(5), comparing it to “the care which a cat is expected [to take] while carrying the kitten in its mouth from one place to another.” The order dilates for several paragraphs on motivated prosecutions; emphasises that “an accused cannot be equated to a convict, even before the trial is conducted;” and goes on to lay out guidelines for courts to appropriately form the prima facie opinion required by S. 43D(5), while taking concerns of liberty seriously.

Such guidelines ultimately may not make too much of a difference—the inherently low threshold of S. 43D(5) no doubt ties the hands of lower courts. Till more authoritative pronouncements on these bail conditions, thus, the road ahead looks bleak. But as I’ve argued in the context of a different set of provisions under the UAPA, judicial logics often defer to state ones with anti-terror laws, accepting the need for extraordinary measures to combat ‘extraordinary’ threats, and making any such authoritative pronouncements unlikely. The history of personal liberty, as a judge from another time had said, is largely the history of insistence upon procedure. Not so with S. 43D(5), where liberty has oft been secured by ignoring it.

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[The author thanks Jawahar Raja and Chinmay Kanojia for their help as always with locating UAPA orders; and Sanya Kumar and Megha Bahl for their incisive comments.]

Guest Post: The Andhra Pradesh Ordinances Case – Towards Substantive Judicial Review

[This is a guest post by Amlan Mishra.]

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The Andhra Pradesh High Court, in a 332 page judgement delivered two weeks ago, struck down an ordinance, which had reduced the term of office of the State Election Commissioner (SEC) from 5 to 3 years and varied the criteria for selection (effectively removing the incumbent SEC). The constitutionality of this variation in terms of office and the SEC’s consequent removal has been commented upon in this blog. The court’s decision echoes much of what was said in this blog about this issue. However, in this post, I will explore how the court dealt with the constitutionality of the ordinance and the standard of review it must be subjected to. I will argue that the court puts forth a substantive standard of review which if pursued by constitutional courts will be crucial to save democracy from executive aggrandisement. I will borrow from the Miller II case and argue that the AP case also provides an opening for transplanting Miller II’s standard of review in India.

Law on constitutionality of ordinances: a formal limited review

In Krishna Kumar v. Union of India (Krishna Kumar II), a 7-judge bench of the Supreme Court provided doctrinal clarity on constitutional review of ordinances. To summarise, the court rejected the simplistic textual reading of Article 123 and 213 which provides that ordinances will have the same ‘force and effect’ as an Act of the Parliament. The court noted that the ordinance power was not a prerogative power of the Governor/ President, but is subject to a condition precedent (the governor should be satisfied that ‘immediate action’ has to be taken) and condition subsequent (the ordinance should be laid on the floor of the house). An ordinance, it concluded, does not merit the same deference as an act of a parliament, and can be challenged for violating either condition. About the condition subsequent, the court noted that this is a mandatory condition, which was a deliberate break from the colonial past. In the past the Governor General had the power to promulgate some ordinances without laying them in the legislature. About the condition precedent, the court held that the Bommai standard of review would apply to the presidential/gubernatorial satisfaction of the ‘necessity’ to take immediate action:

The truth or correctness of the material cannot be questioned by the court nor will it go into the adequacy of the material. It will also not substitute its opinion for that of the President. Even if some of the material on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action. The ground of mala fides takes in inter alia situations where the Proclamation is found to be a clear case of abuse of power, or what is sometimes called fraud on power — cases where this power is invoked for achieving oblique ends.

Thus, the court will not probe the adequacy of the material to see if immediate action is warranted. If some irrelevant considerations are mingled with relevant considerations, then the relevant considerations alone will suffice to support the ordinance. In words of J. Chandrachud in Krishna Kumar II, it is only when the “court finds that the exercise of power is based on extraneous grounds and amounts to no satisfaction at all that the interference of the court may be warranted in a rare case.”

Notice that in deciding relevancy of the material, the court’s approach in Bommai and in Krishna Kumar was a formal or procedural review. Moreover, some relevant criteria (accompanied with other irrelevant considerations) may be enough to declare the satisfaction of the governor or the president constitutional. Scholars have expressed concerns that procedural review may allow any vaguely relevant material to be supplied by the government in order to pass the ‘relevancy’ test. Prof. Shubhankar Dam in his book Presidential legislation in India (2013), suggests that a substantive review may better probe the real inspiration of an ordinance to correctly understand if ‘immediate action’ is warranted

A more searching review: Prof Sbubhankar Dam’s proposal for substantive review

To illustrate how a more searching substantive review is important, Prof Dam takes the example of a hypothetical Bank Nationalisation ordinance. The putative goal of the ordinance is to remedy financial collapse and unemployment. However, some ministers are said to benefit from it. Prof Dam argues that to understand if the ordinance is ‘necessary’ to take immediate action, wading into pre-legislative controversies is crucial. A more searching review of motives by leading evidence may become crucial.

Prof. Dam contrasts the procedural review in the Bommai case (followed in both Krishna Kumar I and Krishna Kumar II) with another older case of the Karnataka HC: Hasnabha v. State of Karnataka. In Hasnabha, elected members of agricultural committee were removed vide an ordinance by making the membership of the committee a nominated position. The putative goal of the government was to include ‘experts’ in these committees and nominate ‘weaker sections’. What would happen here if the Bommai standard of procedural review (which checks if relevant material is present for the satisfaction), was applied in this case? The government’s putative goal offers some ‘relevant’ material, possibly enough to justify the constitutionality of the Act. The court in Hasnabha however applied a more searching review along two lines by appreciating evidence advanced by both sides in depth.

First it examined the content of ordinance and the argument for relevancy put forth by the government. It noted that elections did not foreclose the prospect of having ‘expert members’ as the voting was from amongst expert traders and agriculturalists. It also noted that representing weaker sections and having experts (the two putative reasons the government provides) were inherently contradictory. It concluded that weaker sections were already well represented by reservations as per the old Act. Second, the timing and background of the decision became crucial for the court. The ordinance was brought immediately after the election results were published. Why was the ordinance not brought before the elections? The court brought on record statements made by the Chief Minister on the Assembly floor that these ordinances were crucial for furthering ruling party interest.

Marshalling all this information and leading detailed evidence, the court concluded that the exercise of power was malafide and not inspired by the need to take immediate action.

In summary, contrasting Hasnabhai with the two Krishna Kumar cases illustrates how sifting though pre-legislative controversies is crucial to see if the situation warranted ‘immediate action’. Here a searching review becomes crucial, to stop the subversion of democratic institutions by tokenistic justifications. Examining the broader context of the decision is crucial to see if the ordinance is a tool for circumventing legislative scrutiny and achieving mala fide goals.

The Andhra Pradesh Ordinance case: a prototype for substantive review

To begin with, the Andhra Pradesh High Court does something extraordinary. It summons on record all the files which form the basis of the governor’s satisfaction. Notably, these files were being used by the government to defend its case and were upon request of the petitioner taken on record. As we shall see, the court however does a deep analysis of these files to hold against the government. This in my view is extraordinary even by Hasnabha standards where the court in making its determination had merely relied upon submissions made by government advocates and the ordinance itself to know about the basis of the Governor’s satisfaction.

The court notes that while the ‘purported goal’ of electoral reform appears in these files, the underlying animosity between the ruling party and the SEC is also very evident. Here, a deferential court using a ‘formal Bommai Standard of review’ may have taken this one ‘relevant’ purpose of ‘electoral reforms’ to adjudge this ordinance sufficiently ‘necessary’. But the court holds otherwise, after an in-depth perusal of the four files, which reveal an undercurrent of animosity.

To further establish this ‘oblique motive’ the court relies on evidence led by the petitioners. The SEC, it notes had become unpopular with the ruling party members for calling out election malpractices in local elections. The history of prior litigation with the government, arising out of the decisions taken by the SEC is marshalled to set the factual background of the ordinance. Also is cited the letter the SEC had written to the Union Home Ministry ringing bells about election violence and verbal attacks on him. The statements of Chief Ministers and influential ruling party members criticising the SEC for partisanship also enter the court’s considerations. Much like Hasnabha, the court asks why the idea of ‘electoral reforms’ through this ordinance was brought only after the SEC had deferred local body elections (much to the chagrin of the ruling party). The effect of the ordinance given this background and timing, the court argues, was to do away with an unfavourable SEC and his decision of deferral of elections.

The court concludes:

The aforesaid circumstances clearly reveal that upto 07.03.2020 and 09.03.2020, at the time of declaration of the Election Notification, there was no point regarding electoral reforms. The issue arose only on issuance of notification on 15.03.2020, suspending the election notification and postponing the elections, and when the State Government remained unsuccessful before Hon’ble the Supreme Court in challenging the said notification. The SEC projected the unprecedented events and acts of the ruling party to the Central Government, which is controverted by other side. The statements of the Council of Ministers to sack Mr.A are on record. Thereafter, on the basis of two or three complaints, the entire action has been taken in the name of electoral reforms and promulgated the impugned Ordinance, making amendment to Section 200 of the APPR Act.

Looking to the aforesaid events, in our considered opinion, there is no public interest or constitutional necessity exists to take immediate action by the Governor for promulgation of Ordinance. In the manner the events took place, it indicates the desirability of the State Government to bring the Ordinance in the name of electoral reforms to remove the incumbent SEC, Mr.A and the power so exercised by the Governor under Article 213 of the Constitution cannot be said to be based on the satisfaction of the circumstances exist which may render it necessary for him to take immediate action…….. In fact, the action has been taken merely on the desirability of the State Government, without there being any public interest or constitutional necessity warranting exercise of the power for promulgation of the impugned Ordinance.

Notice that the court does an extensive substantive review here by correctly laying down the circumstances of the decision and weighs the purported goal of ‘electoral reforms’ against much of what was said and done by the ruling party against the incumbent SEC. It correctly highlights the pre-legislative controversies, without the appreciation of which adjudging ‘necessity’ of the decision would have been difficult.

Sadly, the court does not attempt to reconcile its substantive review with the aforementioned Bommai formulation on procedural review. In practice however it breaks with the Bommai standard of limited review and weighs the impact of the ordinance by taking on record evidence about the controversial background of the ordinance. It concludes that the satisfaction is not well founded.

Substantive review: transplanting Miller’s effect test into India

Under this head, I propose to examine how insidious democratic backsliding can be countered if substantive review is deployed by courts to judge the effect of government action on democratic institutions. As a case in point, in the recent Miller II case in the UK, the decision to prorogue the parliament (which had the effect of shortening parliamentary discussion on the impending Brexit) was in question. The court had this to say about adjudging the constitutionality of the prorogation

For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing (b), without reasonable justification (a), the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course (at para. 50)

Scholars have highlighted that this kind of review, which looks at the ‘effect of the decision’, breaks with the old ‘Wednesbury’ principle (of the reasonable person) and proposes a more searching substantive review. If the act has the effect to frustrate democratic principles, the burden of providing reasonable justification lies on the executive. Unlike Bommai where mere some formal relevancy would suffice, this test probes the question of relevancy in detail. The Bommai case on the other hand is based on a similar Wednesbury ‘reasonable person’s judgement’ of whether the material supplied is relevant to necessitate promulgation on ordinance.

Prof. Khaitan here has rightly pointed out (in the context of Miller prorogation case) that democracy is being threatened and executive aggrandisement happens in very insidious ways. Borrowing from discrimination law, he proposes the effects test to check if the state action has the effect of frustrating a democracy. Notice how the Miller test (quoted above), which we grouped into (a) and (b) is echoed in Prof. Khaitan’s formulation:

“(a) for an improper purpose

(b) when the probable effect of such dissolution would be to frustrate state parliamentary action in a matter where the passage of intervening time would present it with a fait accompli…”

 

Prof. Khaitan retains the ‘purpose’ test (a), which is much like the Bommai test to check ‘relevancy’ of material which forms the basis of presidential satisfaction. However, his test goes one step forward and evaluates if the act has the effect to frustrate a democratic body’s functioning (b). Contrary to the Bommai formulation wherein oblique purpose has to be attributed to the executive, sometimes without much analysis, a substantive review presents a better way to adjudge the effect of government action, in cases of sly democratic subversions.

Allowing the court to take into account the full range of evidence and circumstances rather than limiting it to a limited review of relevant materials placed before it, becomes crucial here. Even in the Miller case, the court undertook substantive review to appreciate the context and timing of the decision: that “a fundamental change (Brexit) was due to take place in the Constitution of the United Kingdom on 31st October 2019”. A longer prorogation precisely in this background, could not be reasonably justified by the government. Thus the prorogation had the effect of frustrating parliamentary accountability without justification.

In India given the present Bommai standard of review, transplanting this Miller-effect test does not appear feasible. I argue that a tradition of cases starting from Hasnabhai in Karnataka and the present AP Ordinance case provide an opening, to graft the effect test in India. These cases pay lip-service to the Bommai standard and do not explicitly break from it to articulate any new kind of review. In practice however, they provide a much stronger standard of review. They examine the timing and impact of anti-democratic government action (of overturning elections and overruling an election officer) (b), and attempt to weigh this against the material/evidence supplied by the government justifying its actions (a). This accurately mimics the Miller’s effect test (b) and examination of whether the effect has a ‘reasonable justification’ (a).

The immediate need of this transplant is in the Kashmir case. Here, as Gaurav Mukherjee has pointed out the Bommai standard of adjudging ‘relevancy’ of material does little to arrest the permanent subversion of ‘consent’ of federal units effectuated through the President’s rule and presidential order. There is pressing need that India move towards a substantive judicial review involving attention to these background and a detailed examination of evidence to understand the effect of actions of higher constitutional functionaries on democratic principles.

Coronavirus and the Constitution XXXII: Payment of Wages and Judicial Evasion in a Pandemic

Two days ago, on this blog, we discussed the pending challenge before the Supreme Court to the government’s directions requiring employers to pay wages to their workers during the nationwide lockdown imposed under the Disaster Management Act. At the time, the matter had been reserved for orders; today, the Supreme Court passed an order that can only be described as bizarre: it refused to rule on the legal issues before it, postponed arguments to the end of July (seven weeks from now), directed employers and employees to “negotiate” between themselves, but in the meantime extended its interim orders preventing any coercive action against employers for not complying with the direction to pay wages. In effect, therefore, the Court made the wages direction unenforceable without holding it to be illegal or unconstitutional, at least for the foreseeable future.

What reasons did the Court provide for this failure to decide? It said that the issues raised had to be decided “together”, and could not be given “piecemeal consideration.” (paragraph 29) With respect, this is bogus. A perusal of the orders in the case reveals that the lead petition – Ficus Pax Private Lts. v Union of India was taken up for hearing on 27th April 2020, which – at the time of writing – was forty-seven days ago. On that day, the Court granted the Solicitor-General two weeks time to reply. The matter was then taken up on 15th May 2020, when notice was issued, made returnable in a week. It was taken up for a third time on 26th May 2020, where the Court noted that the Union’s counter had not been filed, and granted it another week, specifically in order for the Union to clarify its stand. A fourth hearing took place on 4th June 2020, where the Court observed that the counter affidavit had been filed, and that the hearing was complete.

How then can the Court turn around on the 12th of June 2020, and say that because the issues cannot be considered “piecemeal”, the Union would be given time to file a more detailed counter-affidavit, with the hearing set for the end of July? Were four hearings not enough for the Court to achieve clarity on the exact scope of the case, for parties to file written submissions, and for arguments to take place – especially given how time-sensitive this litigation is (involving payment of wages to people living – literally – from paycheck to paycheck)? This becomes all the more inexcusable when we remember that if you pare it down to the essentials, all this case involves is a pure question of law: was the direction for the payment of wages, passed under the DMA, legal? This is a legal question that has one of two possible legal answers: “yes” or “no”.

The Court’s order, however – as I noted in the first paragraph – did not merely delay the hearing. It delayed the hearing in a way that effectively skewed the case in favour of the employer. This is because, from April itself, the Court had passed orders directing that no coercive action be taken against employers who were violating the wages direction. In the 12th June order, the Court directed that this interim order remain in place; thus, it immunised the employers for (at least) a further seven weeks from requiring to comply with a direction that still remains presumptively legal and valid. Consider, also, what the direction was: the payment of wages for a total of fifty-four days (until the government withdrew it); the class of people most affected by it are precisely those for whom non-payment of wages is – quite literally – an existential issue; we have already seen, in this context, the large-scale migration (and the suffering that that has unleashed), predominantly caused by the closure of industry and the absence of livelihood options for workers who already exist in an extremely precarious economic situation. So it is unclear what purpose is served by the Court deciding at the end of July the issue of wages that were payable in the month of April, to those particularly dependent upon monthly payment.

This, therefore, is a classic case of judicial evasion: the Court refrained from answering the legal question before it, but its refusal to answer created a status quo where one party benefited at the expense of the other (a decision by refusing to decide). Up until now, this technique was clearly seen in civil rights cases involving individuals against the State; unfortunately, it now seems to have bled into labour law cases pitting employers against employees.

In order to justify its refusal to decide, the Court framed its task as one of balancing the claims of the employers and employees, in a context in which each needed the other. With respect, this is – again – bogus; because that balance was already struck by the government in the wages direction, where it ordered the payment of wages for a temporary and time-bound period (which was not even the full length of the lockdown). Now, in litigation, the limited remit of the Court was to find that the balance had been correctly struck – and uphold it – or to find that it was irrational or arbitrary, and strike it down.* But it was most emphatically not the Court’s task to suspend the operation of the direction – and then compound this by directing the employers and employees to negotiate with each other for the next seven weeks, until the matter could be heard again.

This last part of the order – i.e., requiring employer-employee negotiation – is perhaps the most astounding part of the entire story, because here the Court entirely reversed the balance that the government had chosen to strike in the wages direction. The very fact that the government issued the wages direction in the first place was because, in its view, an open negotiation between employers and employees – “collective laissez faire“, in the words of Kahn-Freund – would not have protected the interests of the latter; the reasons are obvious, and they rest in the vast differences in power between the two parties. When, therefore, the Court stayed coercive action and directed negotiation, it was not achieving any kind of “balance”: rather, it was overturning the government and holding in favour of the employers, without even the courtesy of a reasoned judgment or a finding of illegality.

What explains this? It is my submission that – as pointed out in the previous post – the wages direction was so inextricably bound up with the rest of the lockdown regulations, that it would have been very difficult for the Court to strike it down without the lockdown itself (legally) unraveling; furthermore, the inequity of a situation in which numerous rights violations by the government over the last two months had been nodded and winked at, while the only effective legal measure in support of vulnerable sections had been struck down, would have been too stark to stomach. Thus, we have a via media where, in the finest traditions of judicial evasion, the stronger party wins, but it wins through an indirect maintenance of the status quo rather than a direct judgment that would require the Court to actively hold in favour of the stronger party.

This is, for obvious reasons, unfortunate.

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* On this point, it is important to note that even in contexts not involving big industries, the law often imposed a basic notice-and-one-month-wages obligation on employers; for example, Section 39 of the Karnataka Shops and Establishments Act requires that prohibits dismissal of any employee without one month’s notice or payment in lieu of wages; so it is difficult to see how the wages direction went particularly beyond even the existing legal framework in requiring payment of wages for fifty-four days, far from radically altering the balance of power between employer and employee.