Guest Post: Minority Educational Rights and the Supreme Court’s Madrasah Judgment

September 26, 2020 Gautam Bhatia1 Comment

Editor’s Note 1: Posts about the contemporary Supreme Court may be read in the context of the caveats set out in this post (link).

Editor’s Note 2: 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 (link) against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].

[This is a guest post by Debarshi Chakraborty.]

Very few areas have been the subject of more controversial constitutional litigation in India than the right of minority educational institutions. The decision of the Supreme Court in Sk. Md. Rafique v. Managing Committee, Contai Rahamania High Madrasah & Ors (2020) is one among many instances that demonstrate the level of confusion, even clutter, which earmarks this area. It also adds to the myriad ways in which the constitutional mandate of Article 30(1) – conferring on religious and linguistic minorities the right to establish and administer educational institutions – is yet to be realised and achieved entirely.

The events, briefly, were as follows: The Respondent, the Managing Committee of the Madrasah (situated in West Bengal), in 2013 filed a petition before the Calcutta High Court challenging the validity of specific provisions of the West Bengal Madrasah Service Commission Act, 2008 (hereinafter Commission Act). The impugned sections, according to the Respondent’s submission, deprived the aided Madrasahs of their discretion to appoint teachers and bestowed such powers on a Commission established under the Commission Act. Furthermore, the recommendations that were made by the Commission, regarding the appointment of teachers, were binding on the aided Madrasahs. Disobeying such recommendations was to be met with a penalty. Therefore, the provisions of the Act transgressed upon the right of a minority educational institution to choose its teachers, which is protected by Article 30(1) of the Constitution. The single judge and the division bench of the High Court, on realising this incongruity, struck down the impugned provisions of the Act holding: “[t]he right of the Commission to select and recommend teachers for these institutions in a very major way interfered with the right to administer those institutions rendering a constitutional mandate virtually ineffective” (paragraph 13.3).

Consequently, the Appellant, whose name was recommended by the Commission pending appointment as a teacher, filed an appeal before the Supreme Court, which set aside the decision of the High Court. It held that while Article 30(1) may appear to have been drafted in absolute terms, nevertheless, it does not fetter the state from interfering with the administration of the minority institutions for securing academic excellence and merit. Any departure from it is not only antithetical to the national interest but makes a minority educational institution incapable of achieving its purpose. The division bench of Arun Mishra, J. and UU Lalit, J. thus implied that when the restrictions are dealing with secular matters, then the state by law is permitted to intervene.

The Legislative Conundrum

Before addressing why the approach taken by the Supreme Court is problematic, it is essential to understand the set of laws that came to define this situation. Before aided Madrasahs had been granted the status of minority educational institution, they were administered by the State as per the West Bengal School Service Commission Act, 1997 (hereinafter WBSSC Act). The State government wielded significant control in the selection and appointment of teachers and non-teaching staff to the schools, under that statute. Upon promulgation of the West Bengal Minorities Development and Welfare and Madrasah Department’s Notification (12.10.2007), and other subsequent notifications, the matter of selection of teachers for aided Madrasahs went out of the purview of the WBSSC Act.

Consequently, the Commission Act was enacted to provide for the Madrasah Service Commission in West Bengal, which retained State control in the appointment of teachers. According to Section 4, the Commission should comprise eminent educationists with profound knowledge in Islamic culture, individuals who are proficient in teaching experience, former principals of colleges and officers of the State government. The Commission Act, as its objective, tries to project the Commission as a guarantor of fairness and transparency in the appointment of teachers to the Madrasahs, which otherwise could not have been guaranteed.

Some aspects of compulsion further bolster this presumption. For instance, Section 10 provides that “the Managing Committee shall be bound to appoint the candidates recommended by the Commission”. If not, the state government under Section 12 reserves the power to dissolve the Managing Committee or exclude that particular Madrasah from receiving financial assistance. More than academic excellence, the Commission appears to be a vehicle that guarantees State preeminence over the administration of aided Madrasahs. For refuting this, the State in its submissions argued that it fully aids the concerned Madrasah for its financial requirements, and “therefore, it is bound to follow recruitment procedures”. And, “the Commission merely selects and recommends a teacher, but overall control of such staff lies with the Managing Committee…the role of the Commission is that of a mere recommendatory body” (Paragraph 12).

State Aid and Regulation

Admittedly, the Supreme Court, in a catena of cases, has upheld the applicability of State regulations for institutions that seek State aid or recognition. For example, in Rev. Sidhajbhai Sabhai v. State of Bombay, under similar circumstances, it was held that the State could prescribe regulations to ensure the excellence of these institutions. However, by seeking aid these institutions do not waive their rights. The aspects sought to be regulated should not prejudice the ethos of the institution. In Ahmedabad St. Xavier’s College v. State of Gujarat & Anr., Khanna, J. observed: “Regulations made in the true interest of efficiency of instructions, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed…such regulations are no restrictions on the subsistence of the right which is guaranteed.”

In this case, regardless of the defense taken by the State, of funding and a recommendatory body, the nature of the recommendations would certainly touch upon the administrative autonomy of the minority institutions as they would not have the option to choose individuals beyond the recommendations received. Highlighting this fear, the High Court, while dismissing the appeal, had opined: “It is one thing to regulate the process of appointment by providing guidelines…it is however entirely different to clog the right of choice of the minority institution by prohibiting them to choose any candidate otherwise eligible except from those recommended by the Commission” (Paragraph 14).

When the dispute reached the Supreme Court, it relied heavily on the 11-judge bench decision in T.M.A. Pai Foundation v. State of Karnataka, which in turn relied on Ahmedabad St. Xavier’s College and other cases, to point out – in cases of aided minority educational institutions; State regulation was warranted up to a certain threshold. However, it failed to explain the extent of this threshold and the factors on which it should be ascertained. Interestingly enough, the question about the relationship between state aid and the degree of control that may be exercised by the State has never been tested in any of the Supreme Court rulings on aided minority educational institutions. This continues to be one of the Constitution’s many abiding quandaries.

This case could have been an opportunity for the Supreme Court to delve into such a question and set the record straight. However, the Court seemed contented in merely adverting to the opinion of Khanna, J. in Ahmedabad St. Xavier’s College to iterate that a “[b]alance has…to be kept between the two objectives, that of ensuring the standard of excellence of the institution and that of preserving the right of the minorities to establish and administer their educational institutions. Regulations which embrace and reconcile the two objectives can be considered to be reasonable”. Could there be a broader or more generic expression about the kind of regulation that should be imposed by the State on minority educational institutions? Probably not. In no way does this judgment expound on the nexus between the State’s financial assistance and the precise degree of control that the State may have in administering that institution.

UU Lalit, J., writing the judgment for the bench, has devoted considerable paragraphs studying the situation where the candidates recommended by the Commission are more meritorious and better qualified than those in the opinion of the Managing Committee – to conclude that the compulsive element of the statute is in the interest of education. Very little thought, if at all, has been spared for a reverse situation. What happens if the minority institution has a better candidate available than the one nominated by the Commission? The Supreme Court gives a rather vague answer. It says that in such a situation the institution shall be well within its right to differ from the nomination made by the Commission. Further, it attributes this to the phrase “reasonable ground”, as mentioned in Section 12(i) of the Commission Act:

“If the Managing Committee, the ad hoc Committee or the Administrator of a Madrasah, as the case may be, refuses, fails or delays to issue appointment letter to the candidate recommended by the Commission within the period stipulated in the letter of recommendation by the Commission, without any reasonable ground, the State Government may direct the Board to dissolve the Managing Committee or the ad hoc Committee, or discharge the Administrator, as the case may be, or stop all financial assistance to such Madrasah recording reasons thereof and may also issue direction upon the Board or Council, as the case be, to withdraw recognition or affiliation of such Madrasah.”

This marks the eruption of all troubles, which may be attributed to the Court’s shallow endorsement of minority rights without regarding the actual concern. The underlying question that the Court fails to answer is what happens in a case of disagreement between the minority educational institution and the Madrasah Commission over the appointment of teachers? Whose word should prevail? The Court has evaded answering that question. The Supreme Court’s concern for academic excellence in minority educational institutions, but its failure to address this crucial concern is yet another instance where the Court talks the talk but does not walk the walk.

Institutional Philosophy

On a finer reading of this judgement, it reveals hints of reverse-engineering. With the conclusion first established in its mind, the Court has tried to trace the premise which could substantiate it. In the process, the Court has referred to its case law, which when taken in its context, contradicts the Court’s conclusion. For example, in the 2006 judgment in Malankara Syrian Catholic College v. T. Jose, the Court was concerned with the selection and appointment of Principal in an unaided minority educational institution. A constructive reading of that judgment divulges that the choice of actors who are responsible for the quality in educational institutions as well as maintaining the philosophy and objectives of the institution is fundamental to the right of any minority educational institution. Similarly, in Frank Anthony Public School Employees’ Association v. Union of India, the Court had noted that the excellence of each institution depends on the quality and contentment of the teachers. Hence, their appointment should rest with the institution itself. This cannot be dismissed merely highlighting the fact that the Madrasah Commission comprises individuals with “profound knowledge in Islamic culture”. The philosophy of each institution, independent of the minority belief to which it ascribes, is all the more important. Therefore, Managing Committees are within their right to assess candidates on that basis as well rather than merely submitting to an external recommendation.

Thus, on the whole, this judgment manifests the fact that issues of minority educational institutions and the protection of their right under Article 30(1) are yet to be realised entirely. Slight praise may be accorded to the Court for marginally recognising the right of the Madrasahs to disagree with the regulatory authority. However, it is hoped that as the three-judge bench revisits this judgment, it will deliberate on the aspects raised above.

Guest Post: The Re-Appropriation of MP-LAD Funds – a Case of Bypassing Constitutional Procedure

September 23, 2020 Gautam Bhatia1 Comment

[This is a guest post by Samyak Gangwal and Krishnesh Bapat.]

In 1993, the then Prime Minister, P.V Narasimha Rao announced the Member of Parliament Local Area Development Scheme (“MPLADS”). The objective of the scheme was to enable Members of Parliament to recommend works of developmental nature in their constituencies with an emphasis on creation of durable community assets based on locally felt needs. Since 2011-12, the legislature has been allocating Rs. 5 Crore per annum to every Member of Parliament under MPLADS. In the last five years Rs. 2.59 Lakh Crore have been allocated under MPLADS and only 10.8% of that amount has remained unspent (understandable given that MPLADS Fund is non-lapsable), indicating many Indians have benefited from the Scheme. On 16^th March 2020, the Parliament enacted Appropriation Act, 2020 which earmarked a sum of Rs. 3960 Crore for MPLADS for financial year 2020-21.

It seems that the Government had initially supported the idea of permitting MPs to use MPLADS funds to tackle Covid-19 related problems. On 24.03.2020, the Ministry of Statistics and Programme Implementation issued Circular No. E-4/2020-MPLADS (Pt) allowing MPs and District Authorities to utilize MPLADS fund for medical testing, screening and other facilities required to detect and contain Covid-19. Later on 28.03.2020 in continuation of the Circular dated 24.03.2020, Circular No. E-4/2020-MPLADS (Pt-II) dated 28.03.2020 was issued allowing MP’s to recommend release of funds from MPLADS to such Fund/Government Pool or Head of Account as may be decided by the Central Government for managing Covid-19 in the Country. However, on 8^th April 2020, in stark contrast to the earlier Circulars, the Ministry of Statistics and Programme Implementation, issued Circular No. E-4/2020-MPLADS(Pt II) (“April Circular”) stating that the Government had decided not to operate MPLADS for two years and had placed Rs. 3960 Crore (earmarked for MPLADS) to Ministry of Finance for strengthening its efforts in managing challenges of Covid-19 and its adverse impacts on society.

In this essay, we argue that the re-appropriation of funds earmarked for MPLADS to Ministry of Finance does not comply with the procedure prescribed in the Constitution and that the executive has not complied with the will of the Parliament. To put it simply, as per the Constitution, if the Parliament has sanctioned money for a particular purpose (say healthcare), the executive must use that money for that purpose only and not for anything else (say defence). Therefore, any appropriation of funds. contrary to the direction of the Parliament, is unconstitutional.

In the first part of this essay, which follows this introduction, we set out the Constitutional provisions which justify the aforementioned stance and argue that the April Circular was unconstitutional and without the authority of law. In the second part of the essay, we discuss Constitutional provisions which permit the executive to seek funds from the Constitution in times of emergency and which could have been utilised during the Covid-19 pandemic.

Article 112 to Article 117 of the Constitution prescribes the ‘Procedure in Financial Matters’. Article 112 of the Constitution prescribes that the President shall in respect of every financial year cause to be laid before the Houses of Parliament a statement of the estimated receipts and expenditure of the Government of India for that year. This is referred to as “annual financial statement” in the Constitution and colloquially referred to as Annual Budget. The estimates of expenditure embodied in the annual financial statement comprise:

The sums required to meet expenditure charged upon the Consolidated Fund of India (herein after referred to as ‘charged expenditure’). Charged expenditure does not require a vote in the Parliament for withdrawal from the Consolidated Fund of India and includes salary, allowances and pension for the President as well as Governors of States, Speaker and Deputy Speaker of the House of People, the Comptroller General of India and Judges of the Supreme and High Court; and,
The sums required to meet other expenditure proposed to be made from Consolidated Fund of India (herein after referred to as ‘voted expenditure’). This year’s financial statement was presented on 1^st February 2020.

Article 113 of the Constitution prescribes that voted expenditure has to be submitted in the form of demands for grants to the House of People. The House of People has the power to assent or refuse to assent to any demand. For financial year 2020-21, Ministry of Statistics and Programme Implementation submitted a demand to the House of People for a grant of Rs. 5444 Crore. In the said demand, Rs. 3960 Crore was earmarked for the MPLADS Fund. On 16^th March 2020, in accordance with Article 113, the House of People assented to the demand raised by Ministry of Statistics and sanctioned Rs. 3960 Crore for the MPLADS Fund.

Once the House of People has assented to granting money to the Government as per Article 113, Article 114 requires an appropriation bill to be introduced in the House of People to enable the withdrawal funds from the Consolidated Fund of India. On 16^th March 2020 an appropriation bill was introduced in the Parliament and on 25^th March 2020 the Parliament enacted the Appropriation Act, 2020. Entry 95 of the Appropriation Act, 2020 sanctioned an amount of Rs. 5444 Crore to Ministry of Statistics and Programme Implementation, which included a sum of Rs. 3960 Crore for MPLADS.

It is evident from above, that the legislature had granted a sum of Rs. 3960 specifically for MPLADS. It is our submission that the law mandates this money be used only for MPLADS and not any other purpose. This is for three reasons – firstly, Article 114(3) mandates that no money can be withdrawn from Consolidated Fund of India except according to an appropriation made by law in accordance with Article 114. Article 266(3) also, by and large, restates the same principle. If any money is withdrawn without prior approval of the Parliament through an appropriation act, that withdrawal will be without authority of law. Through the April Circular, the Government of India has sought to do indirectly, what it could not do directly. The Government could not have directly withdrawn money directly from the Consolidated Fund of India for strengthening its efforts in managing Covid-19 as there was no such demand raised before the Parliament and there was no entry in the Appropriation Act, 2020 which would have permitted such withdrawal. The April Circular which re-appropriates money assigned for MPLADS to Ministry of Finance is essentially a withdrawal from Consolidated Fund of India without prior permission of the Parliament.

Secondly, if the Government is permitted to re-appropriate money allocated by Parliament for a specific purpose, then the entire exercise of ‘Annual Financial Budget’ in the Parliament, which is presented with much fanfare, is futile. Such a reading of the Constitution would permit the Government to seek money from the representatives of the people for purpose X and utilise that money for purpose Y. This would enable a conniving government to seek money for a palatable purpose and simply use that money later for another purpose. Such a reading would also be against the first principle of parliamentary democracy that the Government must function, both, in respect of determination of its policies and the administering of these policies, strictly under the control of the representatives of the people. If the house of representatives cannot even guide the government on how taxpayers money ought to be utilised, they will not exercise any real control on the government.

Thirdly, Section 3 read with Section 2 of the Appropriation Act, 2020 itself mandates that the funds applied out of Consolidated Fund of India should be appropriated for services and purposes expressed in the Schedule in relation to the said year. As stated above Entry 95 of the Schedule mandated that Rs. 5440 Crore, which includes a sum of Rs. 3960 Crore for MPLADS, had to be used by Ministry of Statistics and Programme Implementation for the purpose for which the money was sought. Section 2 and Section 3 of the Appropriation Act, 2020 have been reproduced below:-

2. From and out of the Consolidated Fund of India there may be paid and applied sums not exceeding those specified in column 3 of the Schedule amounting in the aggregate to the sum of one hundred ten lakh thirty-nine thousand eight hundred twenty-two crore and thirteen lakh rupees towards defraying the several charges which will come in course of payment during the financial year 2020-21 in respect of the services specified in column 2 of the Schedule.
3. The sums authorised to be paid and applied from and out of the Consolidated Fund of India by this Act shall be appropriated for the services and purposes expressed in the Schedule in relation to the said year.

In view of the above, money can only be withdrawn from Consolidated Fund of India in accordance with the Appropriation made by the Parliament and it is our case that the April Circular was without the Authority of Law.

The question that may arise is what is the recourse a government has when the amount provided through an appropriation act under Article 114 is insufficient for a particular service for the current FY or if the need has arisen for additional expenditure for a new service which is not contemplated in the annual financial statement (like Covid-19 Pandemic). The drafters of the Constitution contemplated that such situations may arise and did not expect the Government to be bound for a year to a demand they had raised at the beginning of a financial year. For that purpose, the Constitution provides for Article 115 and Article 116.

Article 115 provides for supplementary, additional or excess grants which can be made by the Parliament in order to permit excess withdrawal of money in exigent situation which may occur in the middle of a financial year. Article 116 gives the power to the House of People to make a grant for meeting an unexpected demand upon the resources of India when on account of the magnitude or the indefinite character of the service the demand cannot be stated with the details ordinarily given in an annual financial statement. The Government of India has chosen to not follow the mechanism provided by Article 115 & Article 116 and has instead indirectly withdrawn from Consolidated Fund of India without the prior approval of the Parliament.

If the Government of India needed money immediately, they could have also taken recourse to Article 267 which provides for the Contingency Fund of India. The money in the Contingency Fund is entirely at the disposal of the President and does not require prior authorization. If any money from the Contingency Fund would have been withdrawn, it would have only required a subsequent authorization from the Parliament.

Therefore, even though the Government had two legally maintainable routes to withdraw money for its efforts against Covid-19, the Government has chosen to act without authority of law and has not complied with a Constitutionally mandated procedure which is necessary for a healthy parliamentary democracy.

Coronavirus and the Constitution: XXXVI – The Supreme Court’s UGC Judgment [Guest Post]

September 22, 2020 Gautam Bhatia2 Comments

Editor’s Note 1: Posts about the contemporary Supreme Court may be read in the context of the caveats set out in this post (link).

[This is a guest post by Ashwin Vardarajan.]

On 6 July 2020, the University Grants Commission (‘UGC’) released guidelines directing all colleges, universities and institutions of higher education to conduct final year/ terminal semester examinations before 30 September 2020 (‘Guidelines’). These Guidelines had been released at a time when the number of COVID-19 cases continued, and still do, to increase exponentially with every passing day; and have added to additional stress on universities, colleges and students across the country. Naturally, several petitions were filed before the Supreme Court (‘SC’) challenging these Guideline on several grounds, which were all collectively heard and decided by a three-judge-bench in Praneeth K and Ors. v. University Grants Commission [Writ Petition (Civil) No.724 of 2020] (‘Praneeth’) on 28 August 2020.

Among other things, two constitutional questions were raised against the Guidelines before the SC: first, whether the UGC demanding Universities to conduct examinations under Section 12 of the University Grants Commission Act, 1956 (‘UGC Act’) were referable to Entry 66, List I, Seventh Schedule (‘E-66’) of the Constitution of India (‘Constitution’); and second, whether the Guidelines violated the rights of students under Articles 14 and 21 of the Constitution. Not only does the SC – in its 160-page judgment – fail in its duty to logically appraise the existing position of law, it also adopts a surprisingly un-empathetic approach towards the plight of the students . Furthermore, the judgment has also created friction within the existing framework of law. This essay examines the two constitutional questions enumerated above.

E-66 and ‘standards of education’

The first issue was whether the Guidelines prescribed under Section 12 of the UGC Act were beyond the UGC’s competence referable to E-66. E-66 reads as follows:

Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions

The SC, inter alia, looked at the meaning of ‘standards for education’ – within the meaning of E-66 – through a catena of decisions and proceeded to determine whether the Guidelines also fell within the gamut of the entry. Section 12 of the UGC Act allows the UGC to undertake steps ‘for the determination and maintenance of standards of teaching, examination and research in Universities’, and the impugned Guidelines were issued under this provision. For the SC, use of the term ‘examination’ under Section 12 meant that the UGC is permitted by law to demand universities to conduct examinations through the Guidelines vide E-66 – as it stimulates coordination and determination of the ‘standards of education’, which also includes ‘standard of examination’. The SC understood Section 12 in light of the preamble of the UGC Act, and held that the phrase ‘standard of examination’, under Section 12, fell in line with the phrase ‘standard of education’ within the language of E-66, thus ruling in favour of the UGC (Praneeth, paras.57, 62).

Admittedly, a Constitution bench of the SC in Preeti Srivastava v. State of MP [(1999) 7 SCC 120] had set down several illustrations to define ‘standards of education’ under E-66. For them, ‘standards of examination’ – which included ‘the manner in which the papers are set and examined and the clinical performance is judged’ – was contained within the phrase ‘standard of education’. This remark, however, was made specifically in the context of how ‘examinations’ need to improve the ‘standards of education in an institution or college’ (Preeti Srivastava, SCC p.154-5).

This means that ‘standard of education’ under E-66 speaks of the ‘quality’ (as a synonym for ‘standard’) of examinations. Therefore, the standards of questions in an exam, their difficulty levels, who would correct and formulate the questions, and other aspects of like nature would ideally fall within the bracket of ‘standard of examinations’ as a taxonomy of ‘standard of education’ under E-66. But here, the Guidelines do not alter the examinations’ character to further ‘coordination or determination’ in ‘standards of education’. They merely mandated the Universities to organise and complete them before 30 September 2020. In this light, SC’s conclusion that the Guidelines are in consonance with E-66 through Section 12 of the UGC Act is far-fetched and, at best, incorrect.

The petitioners also relied on the SC’s decision in Modern Dental College v. State of MP [(2016) 7 SCC 353] (‘MDC’) – where it was categorically observed that ‘standard of education…would not include conducting of examinations’ as it does not affect any ‘standards’ – to establish that the Guidelines issued under Section 12 are not in referable to E-66. In MDC, the SC was, inter alia, tasked to determine whether ‘admissions’ were covered exclusively under E-66. While answering the question in the negative, the SC passingly noted that mere conduction of examinations would not be included under E-66 (MDC, para.101). However – and it is submitted, incorrectly – the SC rejected this assertion by the petitioners by distinguishing MDC on facts; and in their quest to do so, they observed the following:

62. The Constitution Bench in paragraph 101 has used the expression ‘not include conducting of examination etc.’ In the present case, there is no claim on behalf of the UGC that it is the UGC which shall conduct the examination of the graduate and postgraduate students. The examinations are to be conducted by the respective Universities only. The above observations made by Constitution Bench in paragraph 101 as relied by learned senior counsel for petitioner, cannot be treated to be laying down any preposition that University Grants Commission has no competence to lay down any standards with regard to examination.

This clearly misses the point. Put simply, the petitioners never argued that the UGC could not conduct the exams. The petitioners rather argued against the Guidelines being in furtherance of coordination of determination of the ‘standards of education’ vide Section 12 of the UGC Act – which essentially meant that the UGC could not demand/force colleges to conduct examinations within a deadline. Demanding colleges and universities to merely conduct ‘examinations’ would not lay down the standards of how exams are to be conducted, in the sense that they do not alter the quality or determining principles surrounding the examinations. Thus, the SC’s misinterpretation (of arguments and law) led them to go beyond what E-66 has been historically interpreted to mean, and creates friction within the existing position of law. However, considering that the decision was specifically in regards to Section 12 of the UGC Act, a future bench might yet distinguish its reasoning on facts.

Fundamental Rights and Fundamental Omissions

The petitioners also contended that the Guidelines violates the students’ rights under Articles 14 and 21 of the Constitution. For the petitioners, prescribing a single date deadline for examinations throughout India treated ‘unequals as equals’, which amounted to an Article 14 violation. And in light of the exponential rise in the number of COVID 19 cases, it was contended that ‘lakhs of students, teaching and nonteaching staff will be forced to risk their health and lives of their family members if they are asked to participate in the Final year/ Terminal examination’ (Praneeth, para.76). The SC rejected both the contentions as follows:

First, for them, the UGC ‘rightly’ fixed a common deadline to maintain uniformity in the academic calendar and that their decision was taken after careful assessment of the situation throughout the country, which ensured the ‘welfare of students’ and protected the ‘career prospect’ of final year students. To them the ‘criticism’ of the Guidelines ‘that they are unreasonable does not inspire any confidence.’ (para.74-5).

Second, clause 6 of the Guidelines required Universities to ‘carry out the academic activities following necessary protocols/guidelines/directions/advisories issued by the Central/State Governments and MHRD/ UGC from time to time, in view of COVID-19’. This took the SC to the official memorandum (‘OM’) released by the HRD Ministry on 6 July 2020, which laid down the standard operating procedures universities and colleges would follow while conducting examinations. Upon reading the Guidelines read with the OM, the SC found it to be ‘abundantly clear that UGC, MHRD … are fully concerned with the health of all stakeholders’ and led them to the conclusion that Article 21 was not in violation (paras.81-2).

At the onset, one notes that the court rejected the argument by stating that the Guidelines were not ‘unreasonable’ or ‘manifestly arbitrary’. Article 14 concerns ‘equality’ before law, and courts must ideally acknowledge that the impugned law leads to unequal treatment before deciding whether such treatment was ‘reasonable’ or not; and they clearly did not do so although such treatment is violative of Article 14. Further, it is bewildering how setting one uniform date throughout the country for examinations was enough to treat unequals as equals in a reasonable way. UGC governs over thousands of colleges and several hundred universities throughout India, and not all those institutions would have students socially and economically capable of travelling to different cities for giving examinations, or afford safe means of transportation . This would, as the Delhi High Court in Madhu v. Northern Railway [2018 SCC OnLine Del 6660] has observed, have a ‘disparate impact’ on the disadvantaged students or lead to an operational inequality (also, Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) and here). The SC inability to consider this issue through the aforementioned lens reflects a serious gap in reasoning, and a lost opportunity.

Further, the SC’s assessment of Article 21 was flawed, as their decision seems to have given precedence to the concerns raised by Government functionaries without actually appraising whether the life and personal liberty under Article 21 is at a threat of violation – which is an accepted ground for filing an Article 32 petition (and seems to have been the case here). Their reliance on the OM is further impeachable as it overlooks the risks students would be exposed to when they travel from one place to another to appear for the final year exams. The OM only lists the protocols colleges and universities are to follow after the students enter inside the campus to give their examinations. It does not consider the risks they would be exposed to before or after that – considering that many students would have to cross borders and cities to appear for their exams in person. The SC should have considered the ground realties that students would be confronted with – many of them have returned to their hometowns and would find it difficult to travel during times as transportation is a risky affair during an ongoing pandemic, thereby prima facie posing a threat to their lives and personal liberties.

Notes from a Foreign Field: Executive Law-Making in Romania [Guest Post]

September 21, 2020 Gautam Bhatia2 Comments

[Editor’s Note: This is a guest post by Dragoș-Alin Călin and Irina Alexe. Dragoș-Alin Călin is a judge of the Court of Appeal in Bucharest and Co-president of the Romanian Judges’ Forum Association. Irina Alexe is an associate scientific researcher within the Institute for Legal Research ‘Andrei Rădulescu’, Romanian Academy. Readers of the blog will find this essay of interest, as it deals with the phenomenon of legislation by ordinance, in Romania.]

Introduction

The starting point of this article rests on a law recently adopted by the Parliament of Romania which rejected an emergency ordinance issued by the Romanian Government, more than 13 years before. The said emergency ordinance was issued in the matter of judicial organization (GEO no.131/2006 for the amendment and supplement of Law no. 508/2004 on the establishment, organization and functioning within the Public Ministry of the Directorate for Investigation of Organized Crime and Terrorism).

It is certain that by quasi-generalising the method of legislating by simple or emergency ordinances, in the last ten years, a shift in the constitutional role of the Parliament as sole law-making authority to the Government took place. Actually, the Government has become a real legislator in almost all fields, since Parliament has changed into a sort of notary public, which many times ratifies, with or without any amendments or supplements, and sometimes rejects, after some significant periods of time, the normative acts issued by the Government, in the absence of any deadlines provided for in the Romanian Constitution for completing the Parliamentary procedure.

In its Opinion no. 950/2019, the Venice Commission acknowledged that “legislation by the GEOs became a routine. Fundamental rules of the functioning of key State institutions are changed too quickly and too often, without preparation and consultations, which raises legitimate questions about the soundness of the outcomes and of the real motives behind some of those changes. The resulting legal texts are not clear. This practice weakens external checks on the Government, it is contrary to the principle of separation of powers and disturbs legal certainty”.

Certain issues related to the legislative delegation in Romania. Statistical data relating to delegated or emergency enactment during the period 2010-2019.

The legislative delegation is regulated by Article 115 of the Constitution of Romania, republished. The competence of the Parliament to legislate may be exercised by a body of the executive power, namely by the Government, when one of the two possible types of situations indicated in the text occurs: (I) the Government’s authorization by the Parliament, under a special law, to issue, within a limited period of time, any ordinances in certain fields which cannot be subject to the organic laws, respectively, (II) the exceptional, permanent constitutional empowerment of the Government, which may be materialized by issue of an emergency ordinance, not involving an express empowerment on the part of the Parliament, to legislate in certain fields, which could be also covered by organic laws, when the conditions provided for in Article 115(4) are fulfilled and none of the prohibitions indicated under Article 115(6) occurs.

Nevertheless, the examined statistical data lead to the conclusion that the opportunity of legislation by exceptional means, by the Government, has become a rule in Romania and has not been used as an exception for a long time, as there are also years in which the Government seems to have coped with an extraordinary situation described by the constitutional text once every two or three days, which, obviously, does not reflect reality.

During the reference timeframe, 60.46% of the primary law adopted in Romania was represented by emergency ordinances and simple ordinances issued by the Government, as well as by any laws relating to their approval or rejection (a number of 2559 out of 4232).

As such, the Parliament does not operate anymore as a main legislative authority, contrary to its constitutional role, and the Government becomes the main and actual legislator. The Parliament seems to play only a secondary part; however, this is exercised late, the negative record being of 15 years and 2 months, a period needed for the rejection of the GEO no.16/1999 by Law no.66/2014. The timeframe of 13 years and one month follows in the hierarchy for the rejection of the GEO no.131/2006 for the amendment and supplement of Law no. 508/2004, by Law no. 16/2020.

For more than 60 ordinances or emergency ordinances, the Parliament needed more than three years for examination, in the case of each ordinance, including normative acts entailing an immediate approval (4 years and 6 months for the adoption of Law no.9/2020 for the rejection of the Government Ordinance no.13/2015 regarding the use of certain data recorded in the registers with the passengers’ names in the cross-border cooperation for preventing and fighting against terrorist acts; 3 years and 6 months for the adoption of Law no.238/2011 for the approval of the GEO no.53/2008 on the amendment and supplement of Law no.656/2002 on the prevention and sanctioning of money laundering, as well as for establishing some actions for preventing and fighting against financing terrorist acts; 3 years and one month for the adoption of Law no.38/2013 for the approval of the GEO no.2/2010 regarding certain measures for the organization and functioning of the working apparatus of the Government and for the amendment of certain normative acts).

Also during the reference period, only 6.29% of the issued laws contain solutions of rejection of certain simple ordinances or emergency ordinances (71 of 1128), the latter containing provisions establishing permanent legal rules, and not exclusively temporary or transitory solutions, as in the case of the GEO no.131/2006, previously mentioned.

During the period 2017-2018, three amendments were adopted to the generally referred to as laws “of judiciary”. A significant part of these amendments was harshly criticized by the Venice Commission orGRECO, being extremely detrimental to judiciary. As regards these amendments to the “laws of judiciary”, given mainly the insufficiency in the regulation, the gaps, the contradictory provisions, inadequate to the needs of the judicial system, the Romanian Government issued five emergency ordinances (GEO no.77/2018; GEO no.90/2018; GEO no.92/2018; GEO no.7/2019; GEO no.12/2019).

For example,GEO no.77/2018 was adopted with intuitu personae effects, to ensure the continuity of the positions of chief inspector of Judicial Inspection. From the publication date (5 September 2018) and until the date hereof, the GEO no.77/2018 was not approved by the Parliament and nor did the Constitutional Court of Romania rule on those three pleas of unconstitutionality raised on the dockets of courts (the oldest having been raised by a court order delivered on 19 December 2018).

Conclusions

Since the year 2012, the Venice Commission warned about such a constitutional situation, in Opinion no.685/17 December 2012. Almost eight years later, things seem to be identical or even more complicated, the law making in waves carried out by the Government has affected the quality of legislation and has overlooked the principle of balance of powers, and the executive power has carried out an essential and continuous role in legislating.

By the Decision no.28 dated 29 January 2020, the Constitutional Court of Romania itself notices such imbalance, considering that “the Government decision to undertake responsibility does not reflect any emergency to regulate in a given field, does not represent a measure taken in extremis, but rather taking an option opportunistic in nature, to extend over time certain temporary measures ordered under the Government Emergency Ordinance no.7/2019 and to remove from enforcement of the provisions of Law no.242/2018. At the same time, it appears that it was not necessary to adopt such a measure with maximum celerity, and possibly it could have been adopted only under the conditions in which “the major challenges” generated by Law no.242/2018 could not be overcome. 88. As regards the importance of the regulated field, it is found that, in principle, the field of justice is one in which the Government may undertake responsibility [see, for example, Decision no.375/2005]. (…) 90. Given the above, the Court acknowledges that the criticized laws breaches Article 114 of the Constitution and, implicitly, Article 61 paragraph (1) of the Constitution, by excessive limitation of the role played by the Parliament. Hence, it also appears a breach of the constitutional principle of balance of powers [Article 1 para. (4) of the Constitution] since one of the State powers, namely the executive power, assumed a preeminent role in the enactment activity, excessively using an enactment procedure which, by its nature, is exceptional.”

The significant timeframes within which the Parliament approves or rejects normative acts issued by the Government, in the absence of clear time limits provided for in the Constitution of Romania, are liable to lead to subordination, which is contrary to the principle of balance of powers.

In such a context, until an expected constitutional revision, a possible solution would be found in the principle of loyal cooperation and of mutual respect between the state authorities/institutions.

Guest Post: Migrant Workers and the Right to Vote

September 21, 2020 Gautam Bhatia2 Comments

[This is a guest post by Radhika Goyal and Sharvari Kothawade.]

An unplanned fallout of the COVID-19 lockdown was a gargantuan migrant worker crisis which, six months down the road, is met with no accountability from the Parliament. Some have argued that the wilful ignorance on the part of governments is directly attributable to migrants’ inability to cast their vote and form a concrete electoral base whose interests must be seen to be served (here and here).

In this post we argue that the lack of access to the vote by migrant workers constitutes a violation of their fundamental freedom to vote, read under Art. 19(1)(a) of the Indian Constitution. To that end we, (i) argue that migrants, particularly circular migrants, should constitute a separate class of voters; (ii) demonstrate that this class of voters have a fundamental freedom to access the vote, which is being denied to them; (iii) analyse the existing mechanism of the ballot, including the postal ballot; and (iv) suggest ways to mould it to effectively serve the migrants’ freedom to access the vote.

Migrants as a separate ‘class’ of voters

Migrant workers, especially circular or short-term migrants, constituting tens of millions of citizens, are some of the least represented groups in the ballot (here and here). Circular migrant workers, distinguished from permanent migrants both of the formal and the informal sector, are a predominantly mobile class who alternate between their home states of residence and their host cities of work, throughout the year. A report of the National Commission for Enterprises in the Unorganized Sector in 2007, observed that SC/ST/OBCs who were often landless and lacking in formal education were overrepresented in the group of circular migrant workers (at pgs 96, 128 and 136). Seasonal patterns of harvest and general rural distress requires that they temporarily move to the city for work but many continue to maintain long term familial relationships with their home states. For them, working at host cities are means to maximize savings so as to invest in their long-term futures back home (at page 30). This constantly mobile citizenry is at odds with the sedentary nature of citizenship-based entitlements that are available from the State (such as ration cards), in this case the entitlement of the vote.

Freedom to access the vote

Every eligible voter is registered with a singular ID at a particular constituency in order to participate in elections to the Lok Sabha, the State Legislative Assemblies and the Panchayat/Municipal elections. The issue of disenfranchisement, faced by circular migrant workers, is not one arising out of the denial of the right to vote understood as a statutory right and conferred under Article 326 of the Indian Constitution, but as a systemic denial of their freedom to access the vote. The Supreme Court, in the 2003 case of People’s Union of Civil Liberties v. Union of India has drawn a distinction between the “conferment of the right to vote” and the “culmination of that right in the final act of expressing choice towards a particular candidate.” The Court, in a series of cases, including the 2006 case of Kuldip Nayyar and 2013 case of People’s Union of Civil Libertieshas elevated the latter to a fundamental freedom under Article 19(1)(a) holding that “Freedom of voting as distinct from right to vote is thus a species of freedom of expression.”

Fundamental freedoms guaranteed under the Indian Constitution also carry corresponding duties on the State to ensure conditions that enable its enjoyment. The Supreme Court, in the 2019 case of Indibilty Creative v. Government of West Bengal, has recognized this principle and directed the state machineries of West Bengal to ensure adequate protection that would aid and enable the petitioner to truly exercise their freedoms under Art.19(1)(a) and screen their movie.

This fundamental right to access the vote is denied to circular migrant workers in two key ways: first, a voter may only be enrolled to vote in the constituency in which they are ‘ordinarily resident’; and second, they can only access their franchise through in-person voting at their registered constituency. While these are rooted in considerations of electoral efficiency and preventing voter duplication, their underlying assumptions of a sedentary population end up excluding circular migrant workers in obvious ways.

Problems and Possible Solutions

A registered voter has the option to change their constituency after having ordinarily resided in the same. However, circular migrant workers, as temporary visitors, often may not qualify as ‘ordinarily resident’ (as defined in Section 20, Representation of People Act, 1950 read with Form 6, Registration of Electors’ Rules, 1961) in their host cities where they stay for uncertain periods of time. While there is no codified threshold for duration of stay, there is a practical difficulty of obtaining any proof of ordinary residence in their host cities, where they often live in makeshift temporary housing, open settlements and access entitlements like water and gas through a variety of uncertain sources. Their reality is invisibilized in the requirement of documentary proof such as a passbook, rent agreement, and utility bills, none of which may be accessible to them. Circular migrant workers also hesitate to go through this complicated and often hostile process of registering or transferring their vote if they are only temporary visitors.

A potential solution to the problem would be to amend this process to reflect the needs of migrant workers. For instance, the Election Commission of India, has provided an exception from documentation for homeless people, and allowed for verification through block officers in Form 6 of the Registration of Electors’ Rules, 1961. Similar solutions must be explored so that circular migrant workers are provided a voice in the governance of the cities they help build. This would be an important step for those circular migrant workers that come to the same host city for work, year after year. It would also have the benefit of giving migrant workers a direct voice in cities where much of their precarity and marginalization is experienced.

However, it is uncertain whether this would fit with the logic of circular migrant workers who choose to maintain long-term connections in their home states and may travel across various cities for work. A study conducted by Aajeevika Bureau, showed that migrant workers are more likely to be enrolled in their home states than host cities. The report also showed that circular migrant workers had many electoral concerns back in their home states, such as improper removal of names from electoral rolls and continued access to government schemes. In this context, the requirement to vote in-person means that circular migrant workers have to travel to their home states to cast their vote, at great personal cost in terms of their time and money, resulting in dismal voting turnouts.

We argue that access to the existing scheme of electronically-transmitted postal ballot (ETPB), will allow that subset of circular migrant workers who are enrolled as voters in their home states, and prefer to continue being so, to access the vote. While it will not give migrant workers a direct voice in their city of work, it will introduce the circular migrant workers as a key political constituency in their home states, by enabling participation and representation at the home state and national elections. Political parties, at both the state and national level, will be consequently compelled to take on their cause, through inter-state or centre-state dialogue.

Extending the Existing Mechanism for Postal Ballots

Section 60(c) of the Representation of People Act, 1951 empowers the Election Commission of India, in consultation with the Government, to notify “classes” of voters who are unable to vote in-person at their constituencies owing to their physical or social circumstances. Once notified, the voters are eligible for the ETPB system, which is a one-way electronic transmission of ballots, where the ballot is both system-generated and protected by dual encryption in order to safeguard against voter fraud. In addition, the postal ballot is subject to oversight by the Returning Officer and through more traditional ways of redressal. This mechanism operates separately from the regular process of in-person voting and doesn’t preclude the opportunity or incentive to permanently migrate and change one’s constituency after having ordinarily resided in the same.

Over the years, there have been several notifications that have attempted to identify new classes of voters, thereby upholding the spirit of free and fair elections for all. Postal ballots have been extended to defence personnel, persons with disabilities and people over 80. In the 2019 general elections, the ETPB system was accessed by 18 lakh defence personnel across the country. In 2019, in the backdrop of a PIL before the Supreme Court, a bill was floated to extend a similar remote voting possibility to over 3.1 crore NRIs in order to “boost their participation in nation-building”.

The challenge before the Election Commission is to effectively identify circular migrant workers, in which they can be guided, but not limited, by the framework of the Inter-State Migrant Workmen Act, 1979.

Constitutional mechanisms must adapt to societal change, in order to remain relevant. At the time of independence, the universal vote represented a commitment to subversion of economic power structures through political access. In the First Roundtable Conference held on December 12, 1930, Dr. B.R. Ambedkar, staunchly opposing any restrictions on suffrage rights, had stated: “Just as the capitalist must have the power, if he is to have any constitution, to dictate how he shall live on terms of associated life with the labor, surely the laborer is entitled also to have the power to regulate the terms on which he shall live with his capitalist master.” In the globalized world we presently inhabit, it would be a constitutional infirmity, if a mobile working class is effectively denied their franchise due to their socio-economic location. The Prime Minister responded to an established claim for portability of welfare entitlements, by working towards universalizing the ration card. In a similar vein, it is incumbent upon the constitutional machinery to re-infuse meaning into the enduring commitment of- “One person, one vote. One vote, one value”.

[This post was informed by the authors’ research for the Citizens for Justice and Peace’s migrant voter rights initiative.]

Notes From A Foreign Field: The Ninth Circuit Court of Appeals and Bulk Metadata Surveillance [Guest Post]

September 17, 2020 Gautam BhatiaLeave a comment

[This is a guest post by Rudraksh Lakra.]

On 3rd September 2020, the United States Court of Appeals for the Ninth Circuit (9th Circuit) delivered its decision in a landmark criminal appeal case of United States v. Moalin. The Court ruled that the National Security Agency’s (NSA) collection of telephony metadata under the now discontinued mass surveillance Telephony Metadata Collection Program (TMCP) constituted a search under the Fourth Amendment of the American Constitution and was potentially unconstitutional. Moreover, TMCP was deemed unlawful for being violative of the Foreign Intelligence Surveillance Act of 1978 (FISA). FISA is a federal law that establishes the procedure for authorizing and carrying out foreign intelligence surveillance. It is the first case where a federal court has held that bulk collection of metadata by intelligence agencies would constitute a search under the Fourth Amendment, and the second federal court decision to hold the TMCP foul of FISA Subsection IV Section 1861.

The article examines the interpretation given by the 9th Circuit on the constitutionality of the warrantless bulk surveillance undertaken by intelligence agencies to understand the lessons Indian courts can imbibe in the post-Puttaswamy era. This becomes even more important in light of the petitions pending in the Supreme Court challenging the constitutionality and lawfulness of Section 5(2) of the Telegraph Act and Section 69 of the Information Technology Act (IT Act), along with the rules therein.

Background

The facts and procedural history leading to the appeal are themselves quite remarkable. Moalin was charged for providing financial assistance to a terrorist organization in Somalia. The main evidence the District Court relied upon was a wiretap authorized under FISA Chapter I. Moalin had unsuccessfully sought to exclude the wiretap from evidence, contending that information filled to authorize the wiretap was collected through illegal surveillance which the government failed to include in evidence or provide the Moalin notice of.

A month after this decision, Edward Snowden revealed the existence and working of NSA’s mass surveillance programs, including the TMCP. Under TMCP, the NSA maintains a central database of telephone metadata of all communication within and from the US. Telephone metadata, in this case, referred to the phone number of a caller, the location, recipient, and duration of the call, identity of the mobile subscribers, and the mobile device ID.

Subsequently, amidst public outcry, government officials justified TMCP by citing the case of Moalin’s prosecution as a success of TMCP. The-then FBI deputy director admitted before the House Permanent Select Committee on Intelligence that the investigation into Moalin was reopened only after the NSA provided them information collected under the TMCP.

It was based on this information that Moalin was able to file a motion for a new trial at the District Court, and on that motion being denied, for an appeal to the 9th Circuit.

Moalin challenged the District Court’s decision on various grounds. The three grounds relevant for our discussion are: the TMCP was violative of the Fourth Amendment (1) and of the FISA subchapter IV (2). Additionally, he contended that the government’s failure to provide notice of the metadata surveillance to him was violative of the Fourth Amendment and FISA (3). Therefore, evidence collected through TMCP, and fruits obtained therein, ought to be inadmissible, including the wiretap.

The Fourth Amendment Argument

Moalin asserted that the TMCP was violative of his Fourth Amendment right against “unreasonable searches and seizures” without probable cause. Fourth Amendment protections apply where there the citizen has “an actual (subjective) expectation of privacy,” and “the expectation [is] one that society is prepared to recognize as ‘reasonable.’” (Katz v. United States). He contended that there is a reasonable expectation of privacy in telephone metadata.

The government and the district court in Maolin had relied upon Smith v. Maryland, in which the Supreme Court held that data voluntarily provided to third parties (third-party doctrine) was not protected by the Fourth Amendment. In Smith, the Supreme Court approved the collection by the government of call records spanning a few days, using a pen register. It observed that society would not have a reasonable expectation of privacy for a few days of call records, and for data that is voluntarily provided to communication service providers.

Smith was, to an extent, overruled by the US Supreme Court in 2018 in Carpenter v. United States, where it held that obtaining seven or more days’ worth of cell-site location information constituted a search under the Fourth Amendment. The court rejected the application of the third-party doctrine to certain novel technologies on the grounds that – due to technological advancements in digital technology – these technologies have become a necessary part of life, and the collection of data through them is different. However, the Court refused to extend their finding to surveillance carried for foreign affairs or national security.

In Moalin, the Court – similar to Carpenter – distinguishes Smith in terms of the quantity of data stored by telecommunication service providers today, and how revealing it is vastly different from Smith, where a pen register was used to collect metadata for only a few days. Moreover, the Court concludes that similar protection is to be provided to bulk collection of metadata and content data.

The Court observes that massive shifts in technology have allowed for bulk surveillance for extended periods of time, with which, conventional expectations of privacy must also evolve. Therefore, the Court concludes that today, unlike Smith, bulk collection of telephone metadata falls within society’s recognized reasonable expectation of privacy, as demonstrated by the public outcry post-Snowden’s revelations. Consequently, the Court notes that the collection of metadata under TMCP constitutes a search under the Fourth Amendment, but stops short of declaring it unconstitutional.

This was because the Court found that the evidence the government presented at the trial was not a fruit of the metadata collected earlier, and was, therefore, not tainted by it. It was also bound by the 9th Circuit precedent US v. Ankeny, which held that it was not appropriate to adjudicate on Fourth Amendment questions where the exclusion of evidence was not warranted.

What is central to both Carpenter and Moalin is the idea that constitutional protection should be transformative and reflective of the realities of today. Thus, the decades-old precedents and understanding of constitutional protection should not be controlling today, especially concerning technological matters.

Another idea central to both Carpenter and Moalin is that state surveillance should not only be based on executive authorization but should also require probable cause. In cases of communication surveillance, the executive cannot be granted absolute discretion. Therefore, there is a need to have an independent body to regulate state surveillance activities. This need is reflected in international law standards (For instance See, Roman Zakharov v. Russia para 275 and United Nations High Commissioner 2018, Privacy Report para 39-40) and comparative practices (for instance, Germany, Canada, UK, New Zealand Australia, France, Belgium, Romania, and South Africa).

Authorisation and Oversight of Communications Surveillance in India

In India, surveillance under both the Telegraph Act and the IT Act is authorized by the executive, and the surveillance orders under the rules of both are to be reviewed by a review committee of executive members every two months.

The constitutionality of this practice is itself in question. Recent SC jurisprudence, similar to Moalin, has indicated the need for judicial authorization regarding state’s surveillance activities. Justice Nariman in Puttaswamy I, observed that “the ultimate analysis” of a measure’s proportionality “must be left to the training and expertise of the judicial mind.” (J Nariman Opinion, Para 86). This need was reiterated as a part of the Puttaswamy II case, wherein a provision of the Aadhar Act, which allowed for the disclosure of user information, was struck down, with the absence of judicial oversight or the scrutiny of the “judicial mind” being a critical factor in the court’s determination(Para 449(4)(f)).

This need was reiterated by the BN Srikrishna Data Protection Committee Report, which concluded that the lack of independent oversight over surveillance activities makes the Indian surveillance framework potentially unconstitutional post Puttaswamy I.

When the SC adjudicates on the challenge to the contentious sections of the Telegraph and IT Acts, it will have to revisit PUCL v. UOI (1996) a more than two decades old precedent which currently governs laws on surveillance, along with the Telegraph and IT Acts, where it upheld the constitutionality of section 5(2) of the Telegraph Act. It also refused to require judicial approval for surveillance and laid down limited procedural safeguards, such as the requirement of an executive review committee. Moalin shows how the law – especially with respect to technology – must reflect the realities of today. Therefore, PUCL’s approach must be overturned, as it was laid down before the surveillance capacity of the state had ballooned, information technology had become central to society, and bulk surveillance had become the norm.

TMCP and FISA, Subsection IV Section 1861

FISA Subsection IV Section 1861(a)(1) allows the state to carry out surveillance only after being authorized by the FISA Court to “protect against international terrorism or clandestine intelligence activities.” However, at the time of the case, for surveillance to be authorized, 50 U.S.C § 1861(b)(2)(A) required demonstration of a relevancy nexus between the target sought and “an authorized investigation.”

The appellants argued that the TMCP violates the relevancy requirement, as the government collected metadata in bulk without any nexus to an already authorized investigation. They argued that the term “relevant” was inserted by Congress as a limiting principle.

The Court sides with the appellants, basing its reasoning and building upon American Civil Liberties Union v. Clapper – a 2015 Second Circuit Appeals Decision – which had held that bulk metadata surveillance contravened the FISA. In Clapper, the government had argued that the relevancy requirement should be read widely, as the Congress did not intend it to be a limiting principle. The court rejected this interpretation as being “unprecedented and unwarranted” and reading the “‘authorized investigation’ language out of the statute.” The Court’s interpretation was correct, as the government’s interpretation would have defeated the object of the section – to place a check on the executive’s discretion – and would have destroyed the essence of the right at stake.

The government argued that the collected metadata indicates that Moalin was associated with foreign terrorists, and therefore, the surveillance was relevant to a counterterrorism investigation. However, as the Court correctly points out, 50 U.S.C § 1861(b)(2)(A) requires the government to demonstrate a nexus between the target sought and “an authorized investigation” before any surveillance is authorized by the FISA Court. Moreover, the relevance nexus requirement cannot be satisfied after authorization by analyzing the collected surveillance data.

Consequently, the Court in Moalin concludes: “that the telephony metadata collection program […] violated that section [1861] of FISA.” However, the Court refuses to exclude the evidence presented in the district court, because FISA subchapter IV did not allow for suppression of evidence even if unlawfully gathered. Additionally, the Court concludes that the collected metadata did not taint the other evidence including the wiretap.

The approach of both Clapper and Moalin was to interpret the section allowing for state surveillance in a way to at least to narrowly restrict it. The approach of the SC in PUCL (1996) was similar, where it laid down procedural safeguards for surveillance under the Telegraph Act, limiting and narrowly tailoring the scope of authorization and the collection of data.

It is important to remember that the TMCP was based on a series of FISA Court orders. Therefore, even a separate supervisory body can become nothing more than a rubber stamp, if it does not have the institutional capacity to render objective rulings and exercise effective, and oversight over authorized surveillance activities, continuous (see Roman Zakharov v. Russia para 257-267).

Review Committees under the Telegraph and IT Acts

As observed above, executive review committees that have been established under the 2009 IT Rules and Rule 419 A – similar to the FISA Court – are nothing more than a rubber stamp. The BN Srikrishna Data Protection Committee Report highlighted that a review committee that meets once in over two months has the unrealistic task of extensively reviewing more than 18000 judgments. Clearly, the review committees cannot apply their judicial acumen well enough in every case and are merely meaningless stamps of approval.

This should amplify the concerns regarding executive authorization and review of communication surveillance. The SC, in the upcoming challenge to the Indian surveillance framework, must overturn PUCL (1996), and require an independent body with adequate institutional capacity to authorize and oversee surveillance activities.

Notice

The Fourth Amendment – in the case of a wiretap – requires notice to be provided once the surveillance operation is complete, (Dalia v. United States), and FISA Section 1806(c) require the government to provide a notice to the defendant to and to the District Court of the collected information “when the prosecution intends to enter into evidence or otherwise use or disclose information” obtained pursuant to the government’s foreign intelligence authorities.

The Government argued and sought to justify the failure to provide notice by distinguishing Dalia, relying upon US v. Cavanagh, which held that FISA satisfies the Fourth Amendment requirements and stated that Fourth Amendment standards apply differently to intelligence gathered for national security.

The Court, while concurring with the government that different standards apply in the context of foreign intelligence, observes that the rule does still apply here nonetheless. Therefore, the requirement of providing notice has to be complied with, even if it is circumscribed. The Court concludes that, at a minimum, the Fourth Amendment requires notice for surveillance conducted under FISA to a criminal defendant and to the Court in the required circumstances under Section 1806(c).

However, the Court refuses to declare if the government’s failure to provide adequate notice was unlawful. This because the lack of notice did not prejudice the appellant and the metadata did not taint other evidence.

While it is understandable why the Court sets a lower threshold of providing notice in the context of foreign intelligence, its standard is woefully inadequate. A more robust and stricter standard should be used in cases with a higher probability of abuse by the executive, which includes mass surveillance programs. Providing notice is essential to the right to an effective remedy (ubi jus ibi remedium) and the right to a fair trial. More fundamentally, it leads to greater transparency in the case of state surveillance programs, enabling stakeholders to meaningfully scrutinize their workings.

The Court’s standard limits the challenge to data collected by intelligence agencies only at the trial stage. It does not provide a remedy to those individuals whose data is stored by intelligence agencies even if it is completely extraneous to the investigation and was obtained unlawfully.

Notice: India

In the Indian context, there is no requirement of notice or of disclosure (even a limited one like Moalin) to the subject of surveillance. The only way a subject would potentially receive knowledge of the surveillance is at trial, where even illegally obtained evidence is admissible (State v. Navjot Sandhu). While the Bombay HC, last year, had refused to admit evidence in contravention of the right to privacy (read more here). There is also a contrary Delhi HC judgment on the point (read more here). The SC is yet to rule on this point of law (post Puttaswamy, the SC should side with the Bombay HC). This, in any event, will still not exclude all illegally obtained surveillance, but only that which can be demonstrated as unconstitutionally obtained.

Currently, lack of notice, coupled with the fact that illegally obtained evidence is admissible in court, means that an individual may not be able to seek effective remedy for the potential violation of their fundamental rights (such as quashing surveillance orders or excluding evidence). This raises constitutional concerns following the SC’s observation inAK Gopalanthat the exclusion of an individual’s access to effective remedies under the Constitution’s Articles 32 and 226 is unconstitutional.

Again, when the SC adjudicates upon the challenge to the Indian surveillance framework, it must mandate the requirement of a notice to the subject. While the concerns Moalin raises ought to be taken into account, the limited model it proposes should only serve as a cautionary tale.

Conclusion

On a concluding note, we must remember that Moalin’s case was an exception. He could only challenge the clandestine surveillance because the government itself admitted it, which does not happen in most similar cases.

Information asymmetry between the state and accused is a hallmark in such cases. Evidence presented at trial is often only collected based on the information gained from clandestine surveillance, which – due to both the classified nature of the program and the lack of notice – the accused is oblivious to. Even if the accused were to challenge surveillance programs, it is tough to prove the case as direct evidence is rarely available, and the design of the program is classified or unknown.

The judgment by the 9^th Circuit is to be rightly commended for many reasons. First, the Court did not have to explore the question of the legality of TMCP, given that the collected metadata, according to the Court, did not taint the evidence presented against Moalin at the District Court. Second, the Court could have abdicated its responsibility or exercised juridical deference, since it was faced with a complex technological problem, and a sensitive case linked to national security and counter-terrorism operations.

Yet, the Court does not abdicate its responsibility even under such circumstances. Instead, it directly engages, rather than sidestepping, important constitutional and rule of law issues, forcing the state to adequately justify its surveillance program against the touchstone of the Fourth Amendment and FISA.

Second, the Court invests time in understanding and engaging with the technological design of the surveillance program and its effectiveness, instead of believing the state prima facie or avoiding engagement with questions about the technology.

Finally, the Court builds upon the foundation of Clapper, applying it to the situation of communication surveillance for national security, an area where the Court in Clapper had refused to delve into. The judgments expected from a constitutional court are not only to be based on correct precedents but must build upon those to forward constitutional aspirations and protect civil liberties.

The Indian SC will potentially face its biggest challenge on privacy when it adjudicates upon the constitutionality of the legislative surveillance framework. It would have the opportunity to forward its transformative right to privacy jurisprudence and apply it to a concrete case to reform India’s surveillance landscape. Moalin offers the Indian SC valuable lessons on how this can be achieved. However, the SC’s contemporary approach to key constitutional issues (recently, on privacy, see the mandatory voice sample case, here and here) and gradual shift in its role to that of an executive court will require a re-orientation if this is to happen.

Guest Post: (Mis)Applying Puttaswamy – The Delhi High Court on Privacy and Evidence

September 13, 2020 Gautam Bhatia7 Comments

[This is a guest post by Karthik Rai.]

It has been argued that the transformative character of the Puttaswamy judgement did not extend to governing claims to the fundamental right of privacy between private parties. To recapitulate, Puttaswamy adopted a narrow approach to privacy and did not examine horizontality (and rightly so, as this was not what the constitution bench was convened to answer). Thus, the court did not explicitly hold that an Art.21 protection in case of privacy violation would extend to violations by private parties or individuals.

However, this conclusion is not a unanimous or unambiguous one. Recently, in the case of Deepti Kapur v. Kunal Julka – a case where an argument based on the fundamental right to privacy was raised in a divorce-related proceeding between the plaintiff and the defendant – the Delhi High Court ruled that evidence cannot be inadmissible on grounds solely of breach of privacy under Article 21. The issue of horizontality serves merely as a prefatory remark to introducing this case; the more significant issue is the manner in which Puttaswamy was applied in this case, whether the horizontal application was valid or not. I argue in this piece that the interpretation of Puttaswamy in Kunal Julka was very restricted – and, at place, perhaps incorrect – and could precipitate an undesirable jurisprudence on the admissibility of evidence.

The Facts

The husband filed for divorce before the Family Court under S.13(1)(a) of the Hindu Marriage Act, stating that his wife had defamed him before her friend, causing him mental agony and cruelty. As proof, he submitted, in a CD, a video-recording of her conversation with her friend, collected by the CCTV camera in that room. The statute governing this issue was Section 14 of the Family Courts Act, 1984:

14. Application of Indian Evidence Act, 1872.—A Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 (1 of 1872). (emphasis mine)

The wife claimed that she had the right to the non-invasion of her ‘thoughts and behavioural patterns’ as part of her privacy rights, and that secretly-recorded conversation occurred in her bedroom, where her conversations should have been confidential. This, she argued, violated her fundamental right to privacy per the Puttaswamy holding (para 6). Since the evidence produced was in breach of this fundamental right, the recording would be inadmissible. While Section 14 permitted evidence notwithstanding its inadmissibility under the Evidence Act, it did not permit evidence that was not admissible “as per the Constitution”. (para 7).

Contrarily, the husband argued that the fundamental right to privacy was subject to restrictions – specifically, his right to fair trial under Article 21, lest he should be denied the opportunity of proving his claim. He also argued that Section 14 ensured admissibility regardless of its inadmissibility under the Evidence Act.

The High Court ruled in the husband’s favour. Its ruling on this point had two broad arguments, which are analysed below.

[A]. Relevance as the only test of Admissibility

The Court noted that the test for admissibility was ‘crisply’ detailed in Pooran Mal v. The Director of Inspection (Investigation), New Delhi, where it was held that since the Evidence Act referred to only relevance as the criterion of admissibility, the ‘spirit of our Constitution’ could not be invoked to exclude illegally-procured evidence. Then, the Court relied on State v. Navjot Sandhu which, while referencing RM Malkani v. State of Maharashtra, upheld the admissible-if-relevant test (paragraphs 17-20).

However, Justice Bhambani does not analyse the fact that Puttaswamy overrules each of these cases on these points, whether directly or indirectly. For instance, Pooran Mal relied on MP Sharma. As Vrinda Bhandari and Karan Lahiri argue, Puttaswamy, by upholding a fundamental right to privacy, overruled MP Sharma v. Satish Chandra which, while examining if procuring inculpatory documents violated Article 20(3) of the Constitution (which protected against self-incrimination), stated that, given the Constitution did not recognize a fundamental right to privacy, Article 20(3) could not be applied to such illegal procurement. Pooran Mal also relied on the siloed approach advocated by A. K. Gopalan v. State of Madras (para 23) which is now overruled. Therefore, Pooran Mal stands on very unstable grounds. The argument in Kunal Julka that post-Puttaswamy cases like Yashwant Sinha v. CBI too relied on Pooran Mal forthe admissible-if-relevant test (para 25), is consequently questionable.

Malkani considered the issue only of violation of a statutory provision (the Indian Telegraph Act), and did not address the issue of violation of a constitutional provision. Chandrachud J. stated that Malkani followed Kharak Singh’s reasoning, which stated that there was no fundamental right to privacy, and which was therefore overruled by Puttaswamy (para 51). Moreover, Malkani, too, adopted the siloed approach to fundamental rights which has been disregarded since RC Cooper and Maneka Gandhi, and thus liberty and privacy claims under Article 21 were not examined (something that Selvi v. the State of Karnataka [para 192]examined and upheld, in the context of the constitutionality of confession-obtaining methods like narco-analysis). Subsequently, Navjot Sandhu too fails as authority on this point, for its holding was premised on Malkani and Pooran Mal (paras 154-155).

Kunal Julka’s decision ties into a significant issue. Gautam Bhatia has argued that, since Selvi, which read Articles 20(3), 21 Sections 24-27 of the Evidence Act harmoniously to protect an accused’s mental privacy, a distinction has been created between illegally-procured and unconstitutionally-obtained evidence. Post Puttaswamy, this distinction was carried forth, as argued on this blog, by Vinit Kumar v. CBI and Ors. In Vinit Kumar, the Bombay High Court noted (in my opinion) rightly, that the interception orders passed under the Telegraph Act were violative of the testsofprivacyestablished in Puttaswamy, and therefore, the Court would be ‘breeding contempt’ by eschewing procedure, if such illegally procured evidence were to still be admitted in a trial (para 38). In fact, it noted all the cases mentioned afore and cited in Kunal Julka, and held that any privacy infringement by the State will have to meet the privacy tests Puttaswamy established, with any case suggesting otherwise not a ‘binding’ precedent on that point (para 12).

This well-founded distinction was not touched upon, unfortunately, in Kunal Julka. It only examined the Evidence Act and the Family Courts act, stating that the special law has to prevail over the general law (para 15). With the Constitution having a bearing on the admissibility of evidence, and not merely the Evidence Act, the question of ‘generalia specialibus non derogant’ rule should have never arisen.

Kunal Julka also stated that evidence adduced under Section 14 were to be excluded on privacy grounds, Section 14 would become ‘nugatory’ (para 35). However, that is a fallacious argument, and is not a legitimate justification for the admissibility of evidence under its scope. Besides, evidence collected illegally, but satisfying the Puttaswamy tests, could still be admitted under Section 14, and therefore, Section 14 would not necessarily be nugatory.

[B] Privacy subject to Fair Trial

Ruling on the husband’s claim for a fair trial right under Article 21, the Court simply stated that, since the fundamental right to privacy is not absolute, privacy considerations ‘may have to yield’ to the fundamental right to fair trial under Article 21 (para 24). It stated that, after the evidence had been made admissible, the weight (if any) to be given to evidence must be decided based on (undefined) ‘considerations of justice and fair play’ (para 36).

It is surprising how the Court, in its enthusiasm to admit the evidence, does not follow its own statement that no fundamental right is absolute. Since the right to fair trial, therefore, is also not absolute, the Court should have applied the tests of privacy established under Puttaswamy to ascertain if the privacy-violation precipitated by the evidence met the tests of legality and proportionality, instead of making a nonchalant remark that it may yield to fair trial rights. Only then should the evidence have been even made admissible. In fact, the court cited the Sahara v. SEBI case to justify the importance of fair trial against other fundamental rights, but that case tried to balance the two rights based on pre-established tests, observing that (para 25):

“…even Articles 14 and 21 are subject to the test of reasonableness after the judgement of this Court in Maneka Gandhi…(para 25)”

Conclusion

Theinterpretation in Kunal Julka is, in my opinion, an archetypal adherence to the crime-control model as against the due-process model that Mrinal Satish and Aparna Chandra prove still pervades jurisprudence in cases of admissibility of evidence and criminal-law jurisprudence in general. In one part of the judgement, it even holds that, howsoever the evidence is collected, fair-trial and justice mandate its admissibility (para 35). Claims that a right to fair trial had to be preferred denying it impacted the public as against a personal impact if privacy was violated (para 23), further substantiate this point. If such substantive-truth seeking jurisprudence re-develops in future cases notwithstanding Puttaswamy, without even applying its tests, it may serve as the death knell for privacy and procedural truth, especially with modern technologies like Fitbits, etc., being used in trials as evidence. In any case, the argument this piece makes, is that the reasoning in Kunal Julka is extremely tenuous, dealing a heavy blow to the transformative character of Puttaswamy. The judgement exemplifies the truism, that whether a judgement is interpreted conservatively or expansively, could determine the outcome of a range of cases not specifically anticipated by it.

Guest Post: On the Dangers of Reading Disparate Impact into Manifest Arbitrariness – a Response to Dhruva Gandhi

September 12, 2020 Gautam BhatiaLeave a comment

[This is a guest post by Shreyas A.R.]

Previously on this blog, Dhruva Gandhi had suggested that the Court in Navtej Johar attempted to read disparate impact analysis into the manifest arbitrariness test. In this piece, I will respond to Dhruva’s arguments by arguing why such a formulation is unnecessary, especially considering that the impacts analysis has been read into the reasonable classification test in Navtej itself, making the arbitrariness doctrine quite irrelevant for this purpose.

A brief recap is in order.

Reasonable classification and manifest arbitrariness are the two grounds which the Courts use to determine the constitutional validity of a measure when faced with an Article 14 challenge. Under the former test, a law will be held violative of Article 14 if it (a) classifies people without an intelligible differentia, and (b) the object sought to be achieved through the law has no rational nexus with the classification made. The manifest arbitrariness test, on the other hand, is well, arbitrary – in the sense that the Supreme Court itself has been unable to determine what the test really requires them to do. Indirect discrimination happens when a policy or a measure which appears neutral on the face of it puts members of a protected group at a disproportionate advantage as compared with the members of a cognate group. Disparate impacts analysis is the name given to the test to determine whether indirect discrimination has occurred.

For the purposes of this post, I will restrict myself to a specific question: does the test of manifest arbitrariness support a finding of indirect discrimination?

There are two reasons why it should not:

I. As Prof. Khaitan points out, indirect discrimination is structurally comparative, insofar as it disadvantages certain groups of people in relation to a cognate group. The arbitrariness test, on the other hand is a “test of unreasonableness of measures which do not entail comparison.” Take Nariman, J.’s framing of “manifest arbitrariness”, as laid down in Shayara Bano:

Manifest arbitrariness, therefore, must be something done capriciously, irrationally and/or without determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary.

None of the underlined words in the definition above seem to suggest that a comparative analysis could be possible under the test, which explains why manifest arbitrariness is also termed ‘non-comparative unreasonableness’. Seervai shares this suspicion, when he notes that the test “hangs in the air, because it propounds a theory of equality without reference to the language of Article 14”. Also note that when Navtej struck down Section 377 as being manifestly arbitrary, no equality analysis is done. Dhruva recognizes this objection, and argues that:

The words ‘excessive and disproportionate’ appear to refer to the impact of a measure and to that extent cover the disproportionate, adverse effect which constitutes disparate impact. The absence of an ‘adequate determinative principle’ is the absence of a justification necessary to sustain a measure of indirect discrimination. Therefore, it is possible for judges in Navtej to apply this doctrine to arrive at a finding of disparate impact.

What it means is this: in order to support a finding of indirect discrimination, the Courts will ask whether there is a reasonable justification, or an ‘adequate determinative principle’ for upholding the differentia, i.e. the disadvantaged and the cognate group. In Navtej of course, the Court does not ask what the differentia is while determining the arbitrariness – it does so when it is testing Section 377 under the classification test itself.

In my opinion, Dhruva’s interpretation of manifest arbitrariness resembles the rational nexus prong of the traditional reasonable classification doctrine, much less an entirely separate ground of review. Recall that under the rational nexus prong, the Courts will ask whether there exists a reasonable connection between the objectives sought by the impugned measure and the differentia. In the absence of a rational nexus, or an ‘adequate determinative principle’, the Court will strike down the law as being violative of Article 14.

II. Another objection I take to the manifest arbitrariness test is that it prescribes no thresholds for the test to be activated. This could possibly be attributed to Bhagwati, J.’s framing of equality as being antithetical to arbitrariness in Royappa:

Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14…

My point is this: What capricious/ irrational/ without determining principle/ excessive/ disproportionate could possibly mean for the purposes of Article 14 has not been clarified by the Courts as yet. Why? By Royappa’s logic, the Court is not required to do so – the inequality is implicit in the arbitrariness of the measure itself. But even for the sake of playing the devil’s advocate, how do we determine what the implicit inequality is? There is no answer to this, and the Courts do not know either. This possibly explains why the Courts do not do much in terms of equality analysis while applying the manifest arbitrariness test. This enables individual judges to impose their own standards of morality to legislative review, which often results in the legislature’s wisdom being replaced by that of the judge, thus allowing the Court to enter into policy making under the garb of rights protection.

While this could occasionally have positive effects, such as Navtej where the Court applied constitutional morality to strike down a colonial law, it could easily go the other way as well. This objection is best exemplified by the Court’s judgement in the Bar Dancers case, where the Court chose to apply, and uphold the same colonial morality it had struck down in Navtej. (A detailed analysis by Anup Surendranath of all that was wrong with Bar Dancers is available here). This arbitrariness in application of the arbitrariness test does not bode well for equality jurisprudence, and can leave it at the mercy of the caprices of the judges who happen to be hearing the case.

Why does this matter?

Cases of indirect discrimination, and civil rights in general often involve inquiries into deeper questions on the moral goodness of a law, and what it means to be equal. On the other hand, the arbitrariness test divorces the content of equality from the inquiry. By characterizing discrimination as the mere result of an arbitrary state action, the Court loses an opportunity to afford judicial recognition to the various forms of structural inequality as they currently exist, (and as I will argue in the next section) update its jurisprudence accordingly, and possibly redeem itself. Navtej is transformative constitutionalism at its best– using constitutional morality to advance a notion of equality that could contribute in altering popular morality.

Having demonstrated the dangers of the arbitrariness test, I will now show that the reasonable classification test was used to make a disparate impact analysis in Navtej.

Typically, under the disparate impact test, when it is shown that a measure has led to disproportionate harm being caused to a group as against the cognate group, the Courts will hold that the right to equality has been prima facie infringed. It will then shift the burden to the defendant, and ask whether the measure nevertheless achieves its intended goals. In some jurisdictions, even if the defendant shows that there exists a legitimate justification for the practice, the plaintiff will prevail if it is demonstrated that there exists a better, alternate measure which can achieve the same goal without the disproportionate harm. On similar lines, Prof. Khaitan argues that the scope of inquiry under the nexus prong of the classification test could be expanded by asking the following questions:

Is the measure necessary to achieve the objective? Can the same objective be achieved using means that do not restrict fundamental rights?

I would suggest that Misra, C.J.’s reasons for finding Section 377 unconstitutional under the classification test employed the same analysis as well:

A perusal of Section 377 IPC reveals that it classifies and penalizes persons who indulge in carnal intercourse with the object to protect women and children from being subjected to carnal intercourse. That being so, now it is to be ascertained whether this classification has a reasonable nexus with the object sought to be achieved. The answer is in the negative as the non-consensual acts which have been criminalized by virtue of Section 377 IPC have already been designated as penal offences under Section 375 IPC and under the POCSO Act.
Per contra, the presence of this Section in its present form has resulted in a distasteful and objectionable collateral effect whereby even consensual acts, which are neither harmful to children nor women and are performed by a certain class of people (LGBTs) owning to some inherent characteristics defined by their identity and individuality, have been woefully targeted. [paragraph 237]

Misra, C.J.’s reasoning here is quite simple: not only is the objective of protecting women and children from carnal intercourse already achieved by other laws (thereby making Section 377 unnecessary for that purpose), the measure also has the effect of excluding the LGBT peoples, thereby violating their fundamental rights. Therefore, it is my opinion that Misra C.J. read in a crude disparate impact analysis into the classification test, albeit without using the same words. Elsewhere on this blog, Gautam has analyzed how Chandrachud J.’s critique of the classification test recognized indirect discrimination for the first time in Indian equality jurisprudence. Navtej has been celebrated for several reasons – expanding our understanding of equality and its jurisprudence should be one of them.

Coronavirus and the Constitution – XXXV: Examining the GST Compensation Crisis [Guest Post]

September 8, 2020 Gautam Bhatia6 Comments

[This is a guest post by Varun Kannan.]

Over the course of the last two weeks, multiple State Finance Ministers have criticized the Central Government’s decision to avoid compensating the State Governments for the revenue shortfall that has occurred due to the implementation of the Goods and Services Tax (GST). Thomas Issac, (Finance Minister of Kerala), and Manpreet Badal (Finance Minister of Punjab) have argued that the Central Government has a legal, and a moral obligation to compensate the State Governments for the revenue shortfall (see here and here).

On the other hand, the Central Government has inter alia contended that the revenue shortfall is on account of the Covid-19 pandemic, which is an ‘Act of God’. Instead of directly compensating the State Governments, the Centre has presented them with two alternative options, under which the State Governments shall have to themselves borrow the money.

In this piece, I shall examine the Central Government’s contention that it has no legal obligation to compensate the State Governments for the shortfall in revenue that arose after the implementation of the GST. After examining the constitutional framework of the GST and the relevant provisions of the GST (Compensation to States) Act, 2017, I aim to address an inherent contradiction in the Central Government’s contentions. I shall also discuss as to how this crisis highlights a basic design flaw in the functioning of the GST Council, where the Centre’s veto allows it to renege on its assurances to the States.

The Constitutional framework of the GST

Before we discuss the nuances of the Centre’s arguments, it is instructive to refer to two significant features of the constitutional framework upon which the GST is founded. The constitutional framework for the GST was given effect through the GST (101^st Amendment Act), 2016 (‘the GST Amendment’). As the GST is a single tax that replaces multiple other indirect taxes, both the Centre and the States had to give up their exclusive powers to levy different indirect taxes. Through the GST Amendment, the Centre lost out on its power to levy taxes such as excise duty, while the States could no longer levy entry tax, VAT etc.

As the GST is a tax that is to be levied concurrently by the Centre and the States, a GST Council was established under Article 279A of the Constitution. The GST Council is headed by the Union Finance Minister. The other members of this body include the Union Minister of State for Finance, and the Finance Ministers of all the State Governments. The GST Council was envisaged to facilitate collective decision-making between the Centre and the States, for all matters concerning the GST, including the rate of GST applicable on different goods and services.

As the GST is implemented through a process of collective decision-making, both the Centre and the States have lost out on their autonomy to unilaterally determine their indirect tax policies. This is reflected in clause (9) of Article 279A, which lays down the voting pattern that shall be adhered to before any recommendation of the GST Council is ratified.

Under the voting pattern, the Centre’s vote shall have a weightage of one-third of the total votes cast, which effectively gives it a veto over all decisions that may be put to vote before the Council. While the State Governments can also collectively exercise a veto, no individual State Government can exercise a veto over any decision of the Council. But the significant point here is that the Centre’s veto power allows it to block any proposal moved before the GST Council, even if all the State Governments unanimously approve of the same. This veto power also has implications for the present crisis, which I shall address in the concluding sections of this piece.

Another significant aspect to note here is that the State Governments ceded their autonomy to independently frame their tax policies because they were assured of full compensation from the Centre, for revenue losses that may arise under the GST. This is reflected in Section 18 of the GST Amendment, which states that – “Parliament shall, by law, on the recommendation of the Goods and Services Tax Council, provide for compensation to the States for loss of revenue arising on account of implementation of the goods and services tax for a period of five years” (emphasis supplied).

Interestingly, although Section 18 was part of the Constitutional Amendment Bill, it did not amend any provision of the Constitution. But it mandated Parliament to pass a law that would lay down a framework under which States would receive compensation for 5 years from the date of GST implementation (1^st July 2017).

As Thomas Issac (Finance Minister of Kerala) points out, the assurance of compensation was one of the main foundations on which the States agreed to the GST in the first place, and ceded their autonomy to frame their tax policies independently. If this assurance of compensation was not mandated by law, States may not have agreed to the GST in the first place. In furtherance of the mandate given under Section 18 of the GST Amendment, Parliament enacted the GST (Compensation to States) Act, 2017 (‘the Compensation Act’). This legislation forms the root of the present controversy, as the Centre’s arguments to deny payment of compensation is based on its provisions, which we shall discuss next.

The Compensation Act

The Preamble of the Compensation Act clearly states that the statute aims to provide “compensation to the States for the loss of revenue arising on account of implementation of the goods and services tax in pursuance of the provisions of the Constitution (One Hundred and First Amendment) Act, 2016”. The statute lays down the manner in which the compensation is to be paid for the first 5 years of the implementation of the GST (i.e. the transition period). Under Section 3 and Section 7 of the Compensation Act, the percentage of annual revenue growth of a State has been projected to be 14%. Under Section 7, if the annual revenue growth of a State is less than 14%, the State is entitled to receive compensation under the statute.

The compensation that is to be paid is the shortfall in the revenue growth. For instance, if the annual revenue growth of Maharashtra after GST implementation is 4%, it shall be compensated for the balance 10% – which is the shortfall. On the other hand, if the revenue growth of Tamil Nadu is 12%, it shall be compensated for the balance 2%. Under Section 9, the Centre has been granted the power to levy a GST Compensation Cess, which shall generate the funds required to compensate the States. The proceeds of this Cess have to be transferred to the GST Compensation Fund, from which the States shall be compensated for their revenue shortfall. Now, Section 10(2) of the Compensation Act states that “All amounts payable to the States under section 7 shall be paid out of the [GST Compensation] Fund”.

The Centre’s arguments and its discontents

As of today, the amount present in the GST Compensation Fund is insufficient to cover the revenue shortfall of the States. This is a result of a fall in GST collections due to the lockdown, and the Centre has been unable to collect the amount of Cess that is required to meet the revenue shortfall of the States. In this scenario, the Centre has taken benefit of Section 10(2) of the Compensation Act to argue that it has no further obligation to pay compensation to the States.

Through a Policy Paper issued by the Ministry of Finance (available here), the Centre has referred to Section 10(2) to contend that in case the amount present in the GST Compensation Fund is insufficient to fulfil the revenue shortfall of the States, it has no further obligation to compensate the States by tapping into other sources of funds. The Centre has argued that by virtue of Section 10(2), it has no obligation to compensate the States through the Consolidated Fund of India, or through any other source of finance.

But, at the same time, the Policy Paper also acknowledges that the Centre has an obligation to compensate the States for the entire shortfall of projected revenue, that arises by virtue of implementation of GST. Moreover, the Policy Paper accepts that this mandate cannot be evaded on account of an ‘Act of God’, such as the Covid-19 pandemic. The Policy Paper also refers to a legal opinion given to the Ministry of Finance by Attorney General K.K. Venugopal. In his legal opinion, K.K. Venugopal mentions that the Centre has an obligation to pay the full amount of compensation, even if there is a shortage in the amount available in the GST Compensation Fund.

This highlights an inherent contradiction in the arguments of the Centre. On the one hand, the Centre states that it has no obligation to compensate the States by tapping funds from other sources if there is a shortfall in the amount present in the GST Compensation Fund. But, simultaneously, the Centre is also acknowledging that it has an obligation to pay the full amount of compensation to the States, even if there is a shortage in the GST Compensation Fund. The Policy Paper itself accepts that there is no provision in the GST Amendment or in the Compensation Act, which exempts the Centre from paying compensation, on account of an ‘Act of God’. This is a mutually contradictory argument – as if the obligation to pay compensation is absolute, the Centre cannot then renege on its legal mandate.

Moreover, Section 10(2) of the Compensation Act does not bar the Centre from tapping into other sources of funds to compensate the States. Section 10(2) only states that all amounts payable to the States under Section 7 of the statute shall be out of the GST Compensation Fund, and does not in any way state that if there is a shortfall, the Centre can evade its primary obligation to the States. In this scenario, Section 10(2) should also be read in conjunction with Section 18 of the GST Amendment, and the Preamble of the Compensation Act. Both Section 18 and the Preamble unambiguously mention that States are entitled to compensation for the loss of revenue, which arises on account of GST implementation.

Also, as discussed above, the constitutional bargain which cements the GST is based on the Centre’s obligation to compensate the States for the shortfall in revenue. If the Centre would not have assured compensation to the States, the States would never have consented to the GST Amendment, by limiting their taxation powers. Hence, if the true spirit behind Section 18 of the GST Amendment is taken into account, it can be argued that the Centre has an absolute obligation to compensate the States without exception – even if the amount present in the GST Compensation Fund is insufficient.

Another argument made by the Ministry of Finance in the Policy Paper is with reference to Section 10(1) of the Compensation Act. Under Section 10(1), the inflows to the GST Compensation Fund are to be made from the GST Compensation Cess, and any other sources as may be recommended by the GST Council. The GST Council can hence decide to tap the shortage and compensate the States through any other source of finance, such as the Consolidated Fund of India. But this is exactly where the design flaw in the GST Council’s functioning begins to hurt the States.

The Centre’s veto – a design flaw in the GST Council’s functioning

As mentioned above, the Centre effectively has a veto over any proposal made in the GST Council. Even if all the States were to unanimously agree to a proposal, the proposal cannot be passed unless the Centre agrees. As Alok Prasanna Kumar and Suhrith Parthasarathy point out (see here and here), this veto power results in a situation where the Centre always wins, and no proposal can go through if the Centre does not want it to. In this scenario, even if all the State Governments were to agree that the Centre should tap into other sources of finance to compensate the States, the Centre can effectively veto this proposal. Although there has been no formal vote in the GST Council on this issue of pending compensation payments, the Centre’s veto power ensures that any such voting process initiated in future will be a foregone conclusion.

This also gives the Centre the leeway to entirely transfer the burden of revenue loss to the States. This is exactly what the Centre has done in the present case, by providing the States with two options under which the States will have to themselves borrow the amount of revenue shortfall. This design flaw in the GST Council’s voting mechanism has effectively put the States at the mercy of the Centre, and unless the Centre relents, the States have no scope to successfully push an alternative proposal.

The road ahead

Based on our discussion above, it is clear that this crisis can be resolved if the Centre takes note of the true spirit on which the GST’s constitutional bargain was based, and provides full compensation to the States for the projected shortfall in revenue. At the same time, this crisis highlights the need for the States to develop a consensus against the voting mechanism of the GST Council, and propose a constitutional amendment that would reduce the Centre’s veto power. This is significant, as similar stalemates where the States are left at the Centre’s mercy may arise in future as well.

There is also a larger question which the Centre must address here. When Late Finance Minister Arun Jaitley pioneered the GST Amendment in Parliament, he mentioned that the GST would usher in a new era of cooperative federalism. This is possible only if the Centre honors the foundations on which the States sacrificed their taxation powers. Unless this is done, the States would be left as mere appendages of the Centre, and this experiment of cooperative federalism is bound for failure.

Guest Post: The Supreme Court’s Eviction Order Ignores the Rights of Jhuggi Dwellers

September 5, 2020September 5, 2020 Gautam Bhatia12 Comments

Editor’s Note 1: Posts about the contemporary Supreme Court may be read in the context of the caveats set out in this post (link).

[This is a guest post by Rishika Sahgal.]

On 31 August 2020, a 3-judge bench of the Supreme Court passed an order, requiring the removal of 48,000 jhuggi jhopdis (hutments) built along Railway tracks in Delhi, within a period of 3 months. The order makes no mention of the right to housing of the thousands of residents of these jhuggi jhopdis. The order, besides being callous and oppressive, is contrary to the law, and represents and the kind of PIL cases powerfully critiqued by Anuj Bhuwania in Courting the People.

Olga Tellis and the fundamental right to housing

We can begin with a quick recap of the law as it stands.

In 1985, a 5-judge bench of the Supreme Court established in Olga Tellis, that the right to life under Article 21 of the Indian Constitution includes the right to livelihood and housing. It recognized 2 sets of entitlements as part of the right to housing – a right to notice and hearing prior to evictions, and access to rehabilitation under existing schemes for the same.

These two entitlements are thin and minimal. The notice and hearing framework is too narrow, not offering any meaningful opportunity for residents to challenge evictions. The rehabilitation requirement is also minimal and conditional – it depends on existing policies in place for rehabilitation, which tend to exclude people from access to alternate accommodation based on ‘cut-off dates’.

Olga Tellis has therefore been widely criticised for being too weak, symbolically affirming housing as a right, without offering access to any meaningful entitlements. For instance, Usha Ramanathan has criticised the case for shrinking the right to livelihood and housing ‘to a minimum procedure of notice and hearing’. In similar vein, Anindita Mukherjee has argued that, ‘shelter has been recognised by Indian courts as part of each person’s right to life, but always in a rhetorical manner.’

Nevertheless, these entitlements continue to be the law of the land. As is well established, decisions of a higher bench strength of the Supreme Court, are binding on benches with the same or lower bench strength. A 3-judge bench of the Supreme Court is bound by Olga Tellis, and any failure to abide by that decision is contrary to the law. The Supreme Court’s recent order makes no mention of the right to livelihood and housing of those it ordered to be removed. It makes no mention of the need to provide notice and hearing, as well as rehabilitation in accordance with existing schemes, to those ordered to be removed. It makes no note of Olga Tellis at all. To that extent, the order is contrary to law.

The law in Delhi: Sudama Singh, Ajay Maken and the DUSIB Act

In 2010, in Sudama Singh, the Delhi High Court held that prior to carrying out any eviction, it was the duty of the state to (i) conduct a survey of all persons facing evictions to check their eligibility under existing schemes for rehabilitation, and (ii) to carry out a rehabilitation exercise ‘in consultation with each one of them [persons at risk of an eviction] in a meaningful manner.’ These obligations on the state, and corresponding entitlements for rights holders, formed part of their right to housing under Article 21 of the Constitution.

The Sudama Singh decision was confirmed twice by the Supreme Court. First, while dismissing as withdrawn a special leave petition filed by the Delhi Government against the Sudama Singh decision, the Supreme Court noted that the decision had ‘attained finality’ (SLP (Civil) No. 445-446/2012). Second, while hearing an appeal against an order of the Delhi High Court passed in contempt proceedings, the Supreme Court reaffirmed the Sudama Singh holding, and directed the Government of Delhi to implement it ‘in full measure’ (Civil Appeal Nos. 21806-807/2017).

In 2019, the Delhi High Court reiterated the Sudama Singh entitlements in Ajay Maken. In the case, the Ministry of Railways had forcibly demolished Shakur Basti, built on Railway land in Delhi, rendering 5000 people homeless. The Ministry was unable to present any evidence of having provided a notice to the residents of Shakur Basti prior to the demolition. The Ministry also admitted that no survey had been conducted of the residents regarding their eligibility under existing schemes for rehabilitation. The Delhi High Court held that this was a violation of the entitlements recognised in Sudama Singh, which formed the relevant law for all evictions/demolitions/removals in the state of Delhi, including eviction of settlements on Railway land.

Both Sudama Singh and Ajay Maken have informed the relevant statutory framework for the improvement, redevelopment, as well as removal and resettlement of jhuggi jhopdi bastis in Delhi. The Delhi Slum & JJ Rehabilitation and Relocation Policy 2015 framed under the DUSIB Act 2010, prioritises the in situ redevelopment of bastis, and permits removal of bastis built prior to 2006 only for exceptional reasons. While bastis built in ‘Railway safety zones’ may be removed, the Policy provides access to alternate accommodation to those who fulfil the relevant eligibility criteria. The Draft Protocol framed under the Act requires DUSIB to conduct a survey to determine people’s eligibility for rehabilitation, and to carry out rehabilitation through meaningful engagement with residents of bastis, prior to any eviction/demolition exercise.

The Supreme Court’s order makes no note of the statutory framework and case law applicable to the state of Delhi. It requires the removal of all jhuggi jhopdis built in Railway safety zones within three months, with no reference to the need for a survey and rehabilitation exercise to be conducted through meaningful engagement, prior to any removals. The failure to make any reference to relevant statutory and case law makes this order per incuriam – having no force of law at all.

Continuing the oppressive legacy of Almitra Patel

This order of the Supreme Court is reminiscent of its widely-criticised decision in Almitra Patel. There, too, the Supreme Court treated bastis and consequently basti dwellers as producers of garbage that needed to be cleared away, rather than as rights holders. It paid no attention to the right to a clean environment, besides the right to housing, of jhuggi jhopdi dwellers. It did not, for instance, order the provision of waste disposal and sanitation facilities to the bastis. Rather, it ordered the clearance of the bastis, along with clearance of other garbage. Once again, through this order, the Supreme Court has furthered a bourgeois environmentalism, while trampling on the rights of the urban poor.

By ordering the removal of jhuggi jhopdis in the middle of the covid-19 pandemic, the Supreme Court has endangered the lives, and failed to uphold the interconnected rights, of jhuggi jhopdi dwellers. As recognised by the UN Special Rapporteur on Housing, ‘in the face of this pandemic, being evicted from your home is a potential death sentence.’ The Special Rapporteur has therefore called on states to ensure, amongst other things, an end to the forced eviction or displacement of informal settlements. Courts in other countries have passed orders to prevent any eviction of informal settlements during these times (eg. South Africa). It is a matter of deep concern that the Indian Supreme Court has not only failed in its duty to protect the rights to housing, health and other interconnected rights of jhuggi jhopdi dwellers during the pandemic, but also exacerbated their plight.

PIL, politics and participation

This order was passed in a public interest litigation originally filed in 1984-85 by environmentalist MC Mehta, in what is popularly known as the Delhi Vehicular Pollution Case (see Bhuwania). It isn’t clear why the Supreme Court has continued to keep the case alive while moving beyond the original subject of the petition. The ‘multiple lives’ of this PIL (see Bhuwania), have certainly been devastating for Delhi’s jhuggi jhopdi dwellers. Here, I argue that the Supreme Court’s failure to hear the urban poor before making adverse orders against them in the PIL, may be an important reason for this.

The Supreme Court has previously held that persons who are vitally affected by any decision of courts in exercise of their writ jurisdiction must be heard by the court (see Prabodh Verma, Ranjan Kumar, Bhuwania). Moreover, Article 226(3) of the Indian Constitution is explicit about the need for parties to be heard before an interim order is made against them by High Courts. It is unclear why this basic principle of natural justice has been abandoned by the Supreme Court in PIL cases such as this one (in many ways, typifying the tenure of Justice Arun Mishra, who headed the bench (see here and here). If jhuggi jhopdi dwellers were heard before an order was passed for the removal of their homes, it is likely that many arguments I have presented in this blog, would be canvassed before the Court in support of their right to housing.

The PIL jurisdiction must not be used to exclude the voices of persons whose rights are at stake. In the context of the right to housing, this should apply both when (i) petitions are filed for securing the right to housing of residents of informal settlements, as well as (ii) when petitions involve the right to housing of residents of informal settlements because, for example, the eviction of informal settlements is sought before courts. Excluding the voice of the most marginalised turns the logic of PIL on its head, given that the dilution of rules of standing in PIL cases was justified, among other things, by the need to enable cases that involve people’s fundamental rights to be heard by courts when marginalised people are themselves unable to access the judiciary (SP Gupta).

It is interesting to examine who has been heard by courts in PIL cases involving the eviction of informal settlements. In cases filed to secure the rights to livelihood and housing of residents of pavements and informal settlements, residents themselves have often been heard. In such cases, residents have often secured varying degrees of protection against evictions, or access to alternate accommodation. Olga Tellis was a PIL case filed by the journalist Olga Tellis. Other petitioners in the case included human rights organisations People’s Union of Civil Liberties (‘PUCL’) and the Committee for the Protection of Democratic Rights. At the same time, several petitioners in the case were themselves residents of pavements and informal settlements. Sudama Singh involved several petitions filed directly by residents of informal settlements before the Delhi High Court. Ajay Maken was initially filed as a PIL by politician Ajay Maken, but later two residents of the informal settlement demolished by the state were impleaded as petitioners in the case. As discussed above, in these cases, residents of informal settlements managed to claim some relief with respect to their right to housing.

In cases of the second kind, filed in the interest of various ‘public’ causes other than the right to housing of residents of informal settlements, residents have often not been heard by courts prior to ordering their eviction. For example, Lavanya Rajamani notes that in Almitra Patel, there was limited participation of those evicted on orders of the Supreme Court. While there were limited avenues for participation of NGOs working on behalf of waste-pickers before committees set up by the Court, there weren’t any avenues for the direct participation of those evicted by the order of the Court. Similarly, Bhuwania notes that in eviction cases before the Delhi High Court, residents of informal settlements have seldom been heard before ordering the demolition of their settlements.

If the PIL jurisdiction is to play any useful role in opening the doors of constitutional courts to the most oppressed in India, rights holders themselves must be heard by the courts. Direct participation of rights holders may be the most important means to secure their fundamental rights.

Perhaps the Supreme Court was aware of the power of participation of residents of jhuggi jhopdi bastis, when it ordered that ‘no Court shall grant any stay with respect to removal of the encroachments’. Perhaps it was aware that should residents of bastis approach courts to secure their right to housing, they would be at a solid standing to, at the very least, obtain a stay against eviction. The Court seemed to be even more afraid of ‘political interference’ to put a stop to demolitions. In India, residents of jhuggi jhopdi bastis have sometimes been able to approach their elected representatives to secure their homes against demolitions. This is often derided as ‘vote bank politics’. Instead, I see it as unleashing the potential of universal franchise – when those oppressed by multiple and intersecting institutions of oppression (the caste system, capitalism, patriarchy, able-ism, etc.) are finally able to use the power of political participation to secure their rights. Direct participation by rights holders before courts, in PIL and other cases, as well as before other institutions of democracy, may be the most powerful means to secure their right to housing, besides other rights.

Constitutional Law and Philosophy

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

Month: September 2020

Guest Post: Minority Educational Rights and the Supreme Court’s Madrasah Judgment

Guest Post: The Re-Appropriation of MP-LAD Funds – a Case of Bypassing Constitutional Procedure

Coronavirus and the Constitution: XXXVI – The Supreme Court’s UGC Judgment [Guest Post]

Notes from a Foreign Field: Executive Law-Making in Romania [Guest Post]

Guest Post: Migrant Workers and the Right to Vote

Notes From A Foreign Field: The Ninth Circuit Court of Appeals and Bulk Metadata Surveillance [Guest Post]

Guest Post: (Mis)Applying Puttaswamy – The Delhi High Court on Privacy and Evidence

Guest Post: On the Dangers of Reading Disparate Impact into Manifest Arbitrariness – a Response to Dhruva Gandhi

Coronavirus and the Constitution – XXXV: Examining the GST Compensation Crisis [Guest Post]

Guest Post: The Supreme Court’s Eviction Order Ignores the Rights of Jhuggi Dwellers