Notes from a Foreign Field: In Re Humphrey – A Case Against Cash Bail [Guest Post]

March 31, 2021 Gautam BhatiaLeave a comment

[This is a guest post by Kieran Correia.]

The Supreme Court of California (“the Court”), in a unanimous ruling, held that detaining defendants solely because they are unable to afford bail was “unconstitutional.” This judgement marks a rupture from the routine of requiring defendants — even indigent defendants — to post large, often outrageously high amounts of cash bail, a practice that results in the disproportionate incarceration of people of colour in America.

Some background to this case is in order. Humphrey, an African American sixty-six-year-old man, allegedly committed theft against a seventy-nine-year-old Elmer J. who lived in a senior home. Humphrey reportedly barged into Elmer’s home and, after threatening him, robbed $7 and a bottle of cologne. At arraignment, the prosecution demanded bail be set at $600,000 — more than 4 crores in Indian rupees — an astronomical figure, especially in comparison to the amount Humphrey stole from Elmer. Humphrey’s request to be released on his own recognizance — essentially, without posting bail — was denied and the amount was set at $600,000. Humphrey challenged the decision, pointing to the racism inherent in California’s criminal justice system and his rehabilitation from drug addiction among several other ameliorating aspects. However, the court dismissed his release request yet again, whilst reducing the bail amount to $350,000 — an amount still unaffordable to Humphrey.

Humphrey then filed a habeas corpus petition in California’s Court of Appeal. The appeals court granted his petition after the Attorney General reversed his decision of contesting bail. The appeals court ordered a new bail hearing, and Humphrey was subsequently released on certain nonfinancial conditions. The case was not appealed, but, at the request of certain authorities, the California Supreme Court took up the matter to settle the constitutionality of money bail in California.

Cash/money bail is still the dominant condition courts world over impose on defendants if they want to secure pretrial release. The bail amount can be egregiously high, as it was in this case, especially so in California, something the Court notes as well. This has led to the commercialization of furnishing bail in the United States: bail insurance companies and bail bond agents take advantage of the system, lining their pockets in the bargain.

The United States Supreme Court — most notably in Bearden v. Georgia — has, in the past, indicated its unwillingness to allow an indigent defendant’s probation to be revoked because of their being unable to pay a fine. The Supreme Court opined that the state could only imprison the probationer if “alternatives to imprisonment [were] not adequate in a particular situation to meet the State’s interest in punishment and deterrence,” as long as he has made efforts to pay the fine. Though this ruling has rarely been upheld in practice, it nonetheless indicated the Supreme Court’s opinion vis-à-vis imprisoning probationers solely because of lack of money: that it was “fundamentally unfair.”

The Court draws on this broadly similar case to argue that it is not “constitutional to incarcerate a defendant solely because he lacks financial resources.” This is because, the Court argues, to do so would violate the defendant’s substantive due process rights to liberty as well as her equal protection rights — a similar argument made in Bearden. Substantive due process is an American constitutional law principle that argues that due process, a notion that finds a place in both the Fifth and Fourteenth Amendments to protect against arbitrary action on the part of the state on certain issues, also protects certain substantive rights — such as the right to liberty.

The Court acknowledges that bail is set to ensure the defendant appears in court proceedings and to protect the victim and the public. However, whilst setting bail, courts often ignore the accused’s financial situation; a high bail order can, therefore, in effect, become a “pretrial detention order.” As a corrective, the Court posits:

An arrestee may not be held in custody pending trial unless the court has made an individualized determination that (1) the arrestee has the financial ability to pay, but nonetheless failed to pay, the amount of bail the court finds reasonably necessary to protect compelling government interests; or (2) detention is necessary to protect victim or public safety, or ensure the defendant’s appearance, and there is clear and convincing evidence that no less restrictive alternative will reasonably vindicate those interests. Pretrial detention on victim and public safety grounds, subject to specific and reliable constitutional constraints, is a key element of our criminal justice system. Conditioning such detention on the arrestee’s financial resources, without ever assessing whether a defendant can meet those conditions or whether the state’s interests could be met by less restrictive alternatives, is not. (Emphasis supplied)

Thus, two things can be understood from this. First, the court does not entirely do away with the concept of cash bail, as some have reported: defendants who have the means — as determined by the court — to post bail but fail to do so will not benefit from this judgement. And second, the test of “clear and convincing evidence” by the state in order to deny bail has been reinforced: pretrial detention can only be an option where less restrictive alternatives cannot satisfy the state’s interests.

This is a welcome change from the status quo on cash bail. Cash bail in the United States has played an unenviable role in incarcerating around 700,000 people pending trial, ensuring the United States has the largest jail population in the entire world. Releasing defendants who were only detained because of their inability to post bail will also disproportionately benefit Black Americans who bear the brunt of the carceral state.

However, this ruling, welcome as it is, does not go all the way in reforming California’s money bail system. Illinois, for example, recently became the first state to completely abolish money bail from the criminal justice system, and the State of New Jersey and Washington, D.C., have already nearly abolished the money bail system. Keeping the cash bail system partially intact, as this judgement does, only allows the continuation of the funnelling of enormous amounts of money into bail insurance corporations. What is more, is that bail will continue to be set by a rigid schedule — the same schedule that recommended bail be set at $600,000 for the crimes committed by Humphrey; though many may have the means to pay those amounts of bail, they are still immense amounts of money that are taken away from a potentially innocent defendant.

Nonetheless, progress, wherever made, should be heralded. The lessons here for India’s criminal justice system cannot be ignored. Like the United States, marginalized sections in India are disproportionately incarcerated: Muslims, Dalits, and Adivasis, whose share of the population is 39%, comprise a little over 50% of the imprisoned population in India. Though India’s Supreme Court has held, on numerous occasions, that bail is the exception rather than the rule — encapsulated quite succinctly by Justice V.R. Krishna Iyer’s “[t]he basic rule may perhaps be tersely put as bail, not jail” — Indian courts have rarely lived up to this ideal.

Moreover, as in California, judges in India set bail at a high amount, leading to several thousand indigent defendants languishing in jail even as wealthier defendants who commit the same offence are let off. During the Covid-19 pandemic, for instance, hundreds of arrestees were in jail because they could not meet their surety conditions. These problems with bail had prompted Justice P.N. Bhagwati in Hussainara Khatoon to remark that it was “imperative that the bail system should be thoroughly reformed so that it should be possible for the poor, as easily as the rich to obtain pretrial release without jeopardizing the interest of justice.” The reason for eliminating high sureties as conditions for bail for indigent defendants in India is, thus, clear. Indeed, the California court’s judgement can serve as a useful roadmap. The right to liberty, for instance — a cornerstone of the California court’s judgement — is a core feature of the Indian constitution as well, enshrined in Article 21 of the Constitution of India, as is the right to equal protection before the law, codified in Article 14. Reading these articles together underscores the unconstitutionality of mandating cash bail even for poor defendants — a practice that, in effect, results in what Justice Cuéllar of the California court dubbed a “pretrial detention order,” when other conditions of release could have worked.

The California Supreme Court’s judgement is certainly promising. The inclusion of cash bail in the justice system was always bound to incarcerate poor arrestees whilst acting as a get-out-of-jail-free card for the wealthy. This ruling shows us a way out of this.

Guest Post: The Shaheen Bagh Review Order – An Unreasonable Restriction on the Right of Assembly

March 30, 2021 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 Arsh Rampal.]

The Supreme Court, on 9^th February 2021, passed an order dismissing the review petition filed by the anti-CAA protestors at Shaheen Bagh. The petition prayed for a review of the 2020 judgment in Amit Sahni v. Commissioner of Police (hereafter referred to as “Sahni”) and additionally prayed for clubbing the review with the petitions concerning the ongoing farmers protests. By dismissing the review, the court has given finality to its reasoning in Sahni pertaining to the exercise of the fundamental right to peaceful assembly. Through this post, I attempt to dissect the judgment of the court and its implications on the right to peaceably assemble in India. The Court, in its judgment, also remarked upon ancillary aspects of the protest including the role of social media in protests. However, the same shall not be discussed in the post for it has little bearing upon its ratio decidendi.

Background of the Case

In December 2019, the Central Government enacted the Citizenship Amendment Act (hereafter referred to as “CAA”) which excluded certain persons from the definition of an “illegal immigrant” under the Citizenship Act, 1955 and relaxed the time requirement to obtain Indian citizenship by such persons. The various constitutional aspects concerning the legislation have been discussed on this blog previously, namely here, here, here and here.

The legislation sparked protests in several parts of the country, including at Shaheen Bagh in Delhi, which was a protest led by women in the form of a peaceful sit-in. As part of the protest, the protestors had occupied the Kalindi Kunj-Shaheen Bagh Road 13A, resulting in the shutting down of these routes by the administration. It was alleged that due to the blockade, there was an increase in traffic around the area and commuters had to take longer routes to travel to their destination, thus causing them inconvenience (although this was factually disputed). This led the petitioner to file a writ petition before the Delhi High Court praying for a direction to the relevant authorities, to remove the closure of the road. The High Court disposed of the petition on the first day, leading the petitioner to approach the Supreme Court by way of an SLP, praying for similar directions.

The Court’s Reasoning in Sahni

The reasoning of the court can broadly be categorised into three grounds. Firstly, that the right to peaceful assembly is subject to reasonable restrictions in the interest of public order, as envisaged u/a 19 of the Constitution. Secondly, there ought to be some balance between the rights of the protestors and the rights of commuters. Lastly, that indefinite occupation of public spaces is an illegitimate form of protest u/a 19(1)(b) of the Constitution.

Reasonable Restrictions in the interest of Public Order

The right to assemble peaceably without arms is subject to restrictions u/a 19(3) of the Constitution. Regarding such restrictions on the ground of public order, the court stated:

“These rights are subject to reasonable restrictions, which, inter alia, pertain to the interests of the sovereignty and integrity of India and public order, and to the regulation by the concerned police authorities in this regard.”

The above statement is the only reference made directly by the Court apropos reasonable restrictions on the right to protest, and there has been no endeavour to expand on the various aspects of such restrictions as they apply to the facts of the case. The requirements of article 19(3) can be divided into three aspects, namely that there is a law imposing a restriction on the right, that the restriction is in the interest of public order and lastly, that the restriction is reasonable. Additionally, the Supreme Court has developed the doctrine of proportionality u/a 19 which requires that the restriction must be proportional to the purpose it seeks to fulfil.

The first aspect requires that any restriction on the right must be imposed by a law. In its 13-page judgment on the issue, the Court fails to mention or discuss any law that imposes restrictions on the right of the protestors in the present case. It is peculiar that the Court discusses restrictions in the context of the Himmat Lal K. Shahjudgment (discussing validity of rules under Section 33(1)(o) of the Bombay Police Act, 1951) and the Mazdoor Kisan Shakti Sangathan judgment (discussing orders passed against protestors u/s 144 of the Code of Criminal Procedure, 1973), yet fails to even make a passing remark on the law applicable to the protestors at Shaheen Bagh.

Let us now, for the sake of argument, assume that there is a law applicable to the present case such as section 144 CrPC, the Delhi Police Act, 1978, or any other law conferring general policing powers on the Delhi Police. While such laws are considered to be in the interest of public order, would they satisfy the requirement of reasonableness? In the context of protests and orders u/s 144, the Court has previously ruled that the restrictions imposed must be proportional to the right. While Section 144 by itself is a reasonable restriction on the right, its use must only be in situations where public disorder is imminent. The requirements of public disorder include aggravated threats to the rule of law in an area. A peaceful occupation disrupting traffic does not satisfy these requirements. The requirements of “in the interest of public order” u/a 19(3) have clearly not been met in this case.

Doctrine of Balancing of Rights

The crux of the judgment in Sahni can be summed up as an attempt by the Court to balance the rights of the protestors and the rights of the commuters. The judgment notes that the present case was not one of protests taking place in an undesignated area, but one of a blockage of a public way causing grave inconvenience to commuters (para 17). It relies upon the following excerpt from Justice K.K. Mathew’s opinion in Himmat Lal (para 70) to elaborate its reasoning:

“Streets and public parks exist primarily for other purposes and the social interest promoted by untrammeled exercise of freedom of utterance and assembly in public street must yield to social interest which prohibition and regulation of speech are designed to protect. But there is a constitutional difference between reasonable regulation and arbitrary exclusion.”

The reliance on the doctrine of balance of rights is problematic for multiple reasons which have been discussed here. In the the present case, the application of the doctrine is misplaced for the following reasons. First, as stated above, the judgment has failed to provide an elaborate reasoning for restricting the right u/a 19(3). In the absence of an adequate reasonable restriction, it is incorrect for the Court to place reliance on the doctrine of balance of rights to limit the scope of rights u/a 19. Second, the Court has stated that the occupation of the road at Shaheen Bagh does not amount to a protest at an undesignated location, but a blockage of a public roadway. While I disagree with such a classification of the protest, such a statement can only be inferred to mean that in the absence of a protest, there is no exercise of a right by the protestors. The attempt to balance the right of protestors with the rights of the commuters in this case thus becomes an unnecessary exercise undertaken by the court. Third, there is no mention of the exact right which the commuters claim, and under which provision they derive this right, making it difficult to understand what exactly is the court balancing. Lastly, the Court’s reliance on J. Mathew’s opinion is selective. The following text precedes the aforementioned text quoted in Sahni:

“… Public streets are the ‘natural’ places for expression of opinion and dissemination of ideas. Indeed it may be argued that for some persons these places are the only possible arenas for the effective exercise of their freedom of speech and assembly.
70. Public meeting in open spaces and public streets forms part of the tradition of our national life. In the pre-Independence days such meetings have been held in open spaces and public streets and the people have come to regard it as a part of their privileges and immunities. The State and the local authority have a virtual monopoly of every open space at which an outdoor meeting can be held. If, therefore, the State or Municipality can constitutionally close both its streets and its parks entirely to public meetings, the practical result would be that it would be impossible to hold any open air meetings in any large city. The real problem is that of reconciling the city’s function of providing for the exigencies of traffic in its streets and for the recreation of the public in its parks with its other obligations, of providing adequate places for public discussion in order to safeguard the guaranteed right of public Assembly.”

Placing reliance on J. Mathew’s opinion to establish that in an attempt to balance the two rights, the protestors must yield to the commuters would thus be incorrect. There may be circumstances wherein public streets can be used by protestors to hold a public assembly in exercise of their right.

Time, Place and Manner of a Peaceful Assembly

The third and final aspect of the judgment is the discussion regarding time, place and manner of a peaceful assembly. It is stated that demonstrations expressing dissent must be in designated places only, and the occupation of public streets and spaces indefinitely is impermissible. An indeterminable number people cannot assemble whenever they choose to protest (para 17).The Supreme Court has consistently adopted an approach that the time, place and manner of peaceful assemblies can be subject to restrictions as long as the restriction are not be arbitrary or excessive, which has been highlighted in the Himmat Lal judgment. The approach undertaken in Sahni to limit the time, place and manner however fails this test for being excessive and disproportionate for multiple reasons which can be summed up as follows:

It is inconsistent with Himmat Lal which recognises that the State has a monopoly on public spaces, and thus any prohibition on protests in public areas would be an unreasonable restriction. Such an interpretation is unsustainable in light of the fundamental character of the right to peaceful assembly.
An approach that protests must only be in designated areas would result in a situation that all spontaneous protests and assemblies will be delegitimised. This is further evident from the order dismissing the review petition. Such a restriction cannot be said to be in aid of the right and is excessive and disproportionate.
The judgment casts an absolute prohibition (blanket ban) on indefinite occupation as a manner of peaceful protest. Such a restriction is vague and arbitrary, as it is indeterminable at what point an occupation becomes “indefinite”. In the absence of any guidelines, issued by law, such a restriction by the Court is not only inconsistent with Article 19(3) and 14 of the Constitution, but goes beyond the judicial functions of the Court.

Concluding Remarks

The judgment in Sahni is an example of the Supreme Court failing to apply fundamental principles of constitutional law. The Court has failed to provide elaborate reasons to justify the grounds on which it has granted the prayer of the petitioner, and has departed from the approach taken in the very judgments it has relied upon. To sum up, the requirements u/a 19(3) have not been met, the exercise of balance of rights is unnecessary and misplaced, and the judgment imposes arbitrary and unreasonable restriction on the right. The excessive restrictions have chipped away the fundamental character of the right of peaceful assembly. The restriction has become the norm and the right the exception, an interpretation which is unacceptable under the Constitution. The judgment will become a tool in the hands of the State, and the common citizenry to break off protests, a trend which can be seen in the recent farmers’ protests. The judgment has the potential to cause immense damage not only to the rights of protestors, but human rights and constitutional jurisprudence which has been built over the years, and it is hoped that the same is remedied soon.

Article 21 in a Time of Genocide: The Rohingya Case before the Supreme Court [Guest Post]

March 28, 2021 Gautam Bhatia6 Comments

[This is a guest post by Suhrith Parthasarathy.]

On Friday the Supreme Court reserved orders in a plea seeking interim directions to restrain the central government from deporting Rohingya refugees detained in Jammu and Kashmir. The application further urged the court to order the release of the detained refugees and to direct the government of J&K and the Union Home Ministry to grant these persons identification cards through the Foreigners Regional Registration Office. This petition for interim relief was filed on the back of a slew of news reports that showed that the J&K administration had set up a sub-jail in Kathua as a “holding centre” under the Foreigners Act, and had rounded up and placed in these cells more than 150 Rohingya refugees, including many women and children. The prayers for temporary respite are nestled within a larger challenge to the Union government’s direction to the states to identify Rohingya in India as “illegal immigrants” and to have them deported to Myanmar in a “continuous manner.”

By most accounts the Rohingya, who are a mostly Muslim ethnic group, constitute the world’s most persecuted minority. They represent the largest single group of “stateless” people and live without citizenship and access to basic legal rights. In August 2017, thousands of Rohingya fled Myanmar’s borders, either by foot or sea, after the launch of a lethal assault on them by the country’s army. The United Nations’ high commissioner for human rights described the attack as a “textbook example of ethnic cleansing.” (This report provides a timeline of the successive cycles of violence and persecution against the Rohingya in Myanmar).

The consequences of the violence that commenced in 2017 were felt across the globe. The Indian government’s immediate reaction to the arrival of Rohingya, who had fled persecution, was to direct the States to conduct surveys under the Foreigners Act and to arrange for the deportation of the immigrants. In response to queries pointing to the issuance of identity cards to Rohingya refugees by the United Nations High Commissioner for Refugees, the Union Minister of State for Home Affairs Kiren Rijiju said, “they are doing it, we can’t stop them from registering. But we are not signatory to the accord on refugees. As far as we are concerned, they are all illegal immigrants They have no basis to live here. Anybody who is illegal migrant will be deported.” It was this endeavour by the State that came under challenge in the original petition filed under Article 32 by a pair of refugees, in Mohammad Salimullah v. Union of India. The primary plea remains pending till date. In it, the petitioners claim that India’s commitments under international law, in particular the principle of non-refoulement, would stand breached should they and other refugees be deported to Myanmar. What is more, they also argue that their rights under the Constitution of India are under threat, specifically the right to equality guaranteed by Article 14 and the right to life and personal liberty promised under Article 21.

The principle of non-refoulement is enshrined in Article 33(1) of the 1951 United Nations Convention Relating to the Status of Refugees. It stipulates that “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Article 33(2) contains a limited exception. It states that “The benefit of the present provision [i.e. Article 33(1) referred to above] may not however be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.”

In the present case, there can be little argument against the threat faced by the Rohingya in Myanmar. The International Court of Justice granted provisional measures in January 2020 in a case brought by Gambia, and recognised that there was prima facie evidence of breaches made by Myanmar of the 1948 Genocide Convention and that the remaining Rohingya population were “extremely vulnerable” to attacks by the military. The Court took note of the resolution passed in December 2019, by the United Nations General Assembly, which recorded “its grave concern that, in spite of the fact that Rohingya Muslims lived in Myanmar for generations prior to the independence of Myanmar, they were made stateless by the enactment of the 1982 Citizenship Law and were eventually disenfranchised, in 2015, from the electoral process.”

It’s therefore clear that should the Rohingya refugees in India now be deported to Myanmar, the actions will doubtless be in breach of Article 33 of the Refugee Convention. But the government’s argument in the Supreme Court is that India is not a party to the convention and is therefore not bound by the requirements of Article 33. This argument is fine as far as it goes. But treaty law isn’t the only source of international law. Article 38(1)(b) of the Statute of the International Court of Justice lists “international custom, as evidence of a general practice accepted as law” as one of the sources of law which binds all nation-states. For a rule to amount to international custom, two factors need fulfilling: consistent state practice and opinio juris, that is a sense on behalf of a state that it is bound to the law in question. The principle of non-refoulement, as a 2007 advisory opinion by the UNHCR makes clear, is widely regarded as fulfilling both these factors and as therefore constituting a rule of international custom. Although contested, there is also a substantial body of opinion that points to the rule against refoulement constituting what is regarded in international law as a jus cogens norm, as a peremptory principle against which no derogation whatsoever is permissible. Even domestic laws inconsistent with such a norm would have no validity under international law. Therefore, the government’s argument that it is not bound by the principle of non-refoulement merely because India isn’t a party to the Refugee Convention ought to be rejected.

In any event, as an intervention application filed in the Supreme Court by the United Nations’ Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance demonstrates, there are other treaties to which India is a party that will stand breached should the Rohingya be deported to Myanmar. Specifically, the application points out that the following treaties, among others, will stand violated: (1) International Convention on the Elimination of All Forms of Racial Discrimination; (2) Articles 2(1), 6 and 7 of the International Covenant on Civil and Political Rights (ICCPR); (3) Articles 2(2) & 3 of the International Covenant on Economic and Social Rights (ICESCR); (4) Article 2 of Convention on the Elimination of All Forms of Discrimination Against Women. The special rapporteur argues that barring a few exceptions, these treaties require states to guarantee non-nationals equal enjoyment of civil, political, social and economic rights and that the obligations under these treaties require India not to discriminate on the basis of national origin by satisfying principles of racial equality.

Regrettably, though, the Supreme Court has thus far refused to hear the counsel appearing on behalf of the special rapporteur. But still the question remains: to what extent can the court compel India to act in consonance with international law? Past judgments of the Supreme Court are divided on the question. Courts have been hesitant to apply international norms when domestic law is manifestly contradictory to those rules. But, in this case, a reading of the Foreigners Act, 1946, shows us that the powers vested under it on the government is discretionary. There is no domestic law that mandates the government to act contrary to the principle of non-refoulement. This being the case, the Supreme Court must accord the greatest respect possible to India’s obligations both under treaty and customary international law. If nothing else, these obligations ought to guide the court in providing a proper interpretation of the fundamental rights that serve as the basis of the petitioners’ challenge.

Indeed, two high courts have already read Article 21 as including within its ambit a right agasint refoulement. In their judgments in Ktaer Abbas Habib Al Qutaifi v. Union of India (1998) and Dongh Lian Kham v. Union of India (2015) the Gujarat and Delhi High Courts have both held that the principle of non-refoulement is inherent in Article 21’s guarantee of the right to life and personal liberty. In the former case, the Gujarat High Court noted that “the principle of ‘non-refoulment’ is encompassed in Article 21 of the Constitution of India and the projection is available, so long as the presence of the refugee is not prejudicial to the national security,” and that “where no construction of the domestic law is possible, courts can give effect to international conventions and treaties by a harmonious construction.” As the high courts recognised, the right under Article 21 is available to both citizens and non-citizens alike.

Images coming out of Myanmar’s streets tell their own story. Already following the military coup of February 1, the country’s armed forces have killed hundreds of protestors, including those who have expressed sympathy with the Rohingya. On Saturday alone the army killed over 100 people, including a five-year-old child. The Rohingya have long faced similar assaults from the country’s junta. To deport them at a time like this is to condemn them to sure death. There is a reason why Article 21 of the Constitution is made applicable to all persons, irrespective of citizenship. And nowhere is that reason more evident than in the plight of the Rohingya refugees.

Lt. Col. Nitisha vs Union of India: The Supreme Court Recognises Indirect Discrimination

March 26, 2021 Gautam Bhatia3 Comments

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

In early 2020, the Supreme Court delivered judgment in Secretary, Ministry of Defence vs Babita Puniya, holding that the Indian Army’s policy of denying women officers a permanent commission [“PC”] was discriminatory. Following this judgment, the Union Government put into place a procedure for the grant of PCs to eligible women officers. The results of this process – that involved 615 eligible women officers – spurred a second round of litigation before the Supreme Court. In a judgment delivered yesterday, Lt. Col Nitisha vs Union of India, the Supreme Court – speaking through a bench of Chandrachud and Shah JJ – held that the implementation of the Babita Puniya judgment had also been discriminatory. In particular, the importance of Lt. Col. Nitisha lies in the fact that the criteria for grant of PCs to women were facially neutral, but found to be indirectly discriminatory. This marks the first occasion that the Supreme Court has categorically held indirect discrimination to violate the Constitution, and set out an account of what indirect discrimination entails.

As in Babita Puniya, the facts of the case are somewhat complicated, and this post must necessarily present a somewhat schematic account. Broadly, there were three contentious criteria of assessment for the grant of PC: first, that the women officers had to clear a certain percentage score, as well as score higher than the lowest scoring male officer who had been awarded a PC; secondly, that Annual Confidential Reports [“ACRs”] were to form part of the grading; and thirdly, certain medical requirements had to be fulfilled.

On the face of it, these criteria were neutral, i.e. they did not, on their face, discriminate between male and female officers. On digging a little deep, however, it was found that the very fact that for all these years, women had not been eligible for the grant of PCs, had a direct bearing on some eligible candidates’ failure to fulfil the criteria. For example, ACRs were prepared with a view to recommendations for the grant of a PC. Given that female officers had not been eligible for PCs, in their case, the reports were more lackadaisical than those of their male counterparts; these were also affected by the fact that women officers had not applied for a range of opportunities, or courses, that were supposed to be considered in the ACRs. This was because their career options had hitherto been blocked – thus, effectively, leading to a cycle of discrimination that now meant that they applied with relatively unfavourable ACRs. Similarly, with respect to the medical criteria, the Court found that male officers took their medical tests at the time they applied for PCs (and once granted PCs, they were not required to maintain the same levels of fitness). However, female officers – who had been ineligible all these years – were now required to prove the very level of fitness that otherwise similarly situated male officers were no longer required to prove (as they had been granted PCs many years before).

Of course, other than the requirement of scoring higher than the lowest-scoring male candidate, none of the eligibility criteria required any facial comparison between women and men. For this reason, the Supreme Court was required to reach further, and articulate an alternative model of equality and discrimination. It did so by drawing a distinction between intention and effect, and discrimination wrought by individual acts on the one hand, and by the impersonal workings of institutions and structures on the other. Chandrachud J. held that the concept of substantive equality – to which the Constitution was committed – required accounting for both systemic and indirect discrimination (paragraph 45). After an extended comparative examination (paragraphs 51 – 65), Chandrachud J. held that the two-step test for discrimination evolved in the Canadian Supreme Court case of Fraser (discussed on this blog here) was the most appropriate. The Fraser test – as set out by the Supreme Court – requires that:

First, the Court has to enquire whether the impugned rule disproportionately affects a particular group. As an evidentiary matter, this entails a consideration of material that demonstrates that “membership in the claimant group is associated with certain characteristics that have disadvantaged members of the group”. However, as such evidence might be hard to come by, reliance can be placed on evidence generated by the claimant group itself. Further, while statistical evidence can serve as concrete proof of disproportionate impact, there is no clear quantitative threshold as to the quantum of disproportionality to be established for a charge of indirect discrimination to be brought home. Equally, recognizing the importance of applying a robust judicial common sense, the Court held: “In some cases, evidence about a group will show such a strong association with certain traits—such as pregnancy with gender—that the disproportionate impact on members of that group will be apparent and immediate” … Second, the Court has to look at whether the law has the effect of reinforcing, perpetuating, or exacerbating disadvantage. Such disadvantage could be in the shape of: “[e]conomic exclusion or disadvantage, [s]ocial exclusion…[p]sychological harms…[p]hysical harms…[or] [p]olitical exclusion”, and must be viewed in light of any systemic or historical disadvantages faced by the claimant group.” (para 65)

The Court also noted that while statistical data would aid in establishing a finding of indirect discrimination, it would not necessarily exist in every case (paragraph 68); and that while due deference ought to be accorded to employer arguments around suitability criteria for the job, the Court would have to be vigilant to avoid endorsing the same stereotypes or generalisations that were responsible for the discrimination in the first place (paragraph 70). Effectively, the Court indicated that it would have to check whether the employer had acted proportionately – ensuring, for example, that there were no other measures that could have been taken that did not have the same discriminatory effect. The Court correctly noted, as well, that structural discrimination would often require structural remedies (paragraph 73).

Applying this analytical framework to the case at hand, indirect discrimination was easily made out. It was the very fact that female officers had been formally denied a set of opportunities for all these years, that now ensured that a seemingly neutral set of criteria – neutral in that the same set of criteria was applied to eligible male candidates – was discriminatory in effect (note that the female candidates were not competing against male candidates in this case, so this judgment also shows that a finding of discrimination does not need a comparator group). The quality of the ACRs, the limited consideration of awards or achievements attained only as on the 5th or 10th year of service, and so on, were all indications of this. Thus, as Chandrachud J. pointed out: “A formalistic application of pre-existing policies while granting PC is a continuation of these systemic discriminatory practices. WSSCOs were continued in service with a clear message that their advancement would never be equal to their male counterparts.” (para 96). The same was the case with the medical fitness criteria, as explained above: while there was nothing wrong with the criteria per se, it was their application that was indirectly discriminatory. Female officers, who were not eligible for PC for all these years, were asked to pass a medical test now that their similarly situated male counterparts had been entitled to take at a substantially younger age (and then not required to maintain). Thus the Court held:

The WSSCOs have been subject to indirect discrimination when some are being considered for PC, in their 20th year of service. A retrospective application of the supposedly uniform standards for grant of PC must be modulated to compensate for the harm that has arisen over their belated application. In the spirit of true equality with their male counterparts in the corresponding batches, the WSSCOs must be considered medically fit for grant of PC by reliance on their medical fitness, as recorded in the 5th or 10th year of their service. (para 112)

While the facts of this case are undoubtedly complex, it will be easy to see what the Court was trying to remedy by looking at another similar case, but with much simpler facts. In Australian Iron and Steel Co v Bankovic, a company imposed a “last in, first out” retrenchment policy (i.e., you got retrenched based on how short a time you spent in the company). It turned out, however, that the company had only recently begun to employ women, and that therefore, the retrenchment policy was much more likely to target women, simply for this reason. This was found indirectly discriminatory. Thus, this was the sequence: first, there was formal and direct discrimination, that put women at a disadvantage. Then, formal discrimination was ended, but criteria were put in place that failed to account for that prior disadvantage – and thus ended up entrenching and perpetuating it, indirectly. In a very similar way, in this case, for the longest time, women faced formal and direct discrimination by not being eligible for the grant of PC. This formal discrimination was struck down by the Court in Puniya – but the policy that was framed for implementing it failed to account for the disadvantage that had been caused (directly) all these years. Thus, by the very fact of its “neutrality”, the policy was indirectly discriminatory.

Of course, not all such examples of indirect discrimination will be as clean-cut – that is, effectively piggybacking off former direct discrimination. Importantly, however, as we have seen above, Chandrachud J.’s formulation was detailed enough to address those more complex cases when they do arise. The proof of the pudding is, of course, in the eating, but for now Lt Col Nitisha’s Case marks an important advance in its acknowledgement, recognition, and articulation of indirect discrimination under the Indian Constitution.

Mobile Phones and Criminal Investigations: The Karnataka HC Judgment in Virendra Khanna [Guest Post]

March 26, 2021March 26, 2021 Gautam Bhatia2 Comments

[This is a guest post by Abhinav Sekhri, cross-posted from the Proof of Guilt blog].

(This post connects to a primer available on SSRN which deals with these issues, which is available here).

Earlier this month, a Single Judge Bench of the Karnataka High Court delivered the judgment in Virendra Khanna v. State of Karnataka and Anr. [W.P. No. 11759/2020 (Decided on 12.03.2021)]. The decision is likely to prove the first in a series of cases in the near future, in which courts grapple with issues posed to criminal investigations by mobile phones and similar digital devices. These issues require courts to not only consider the scope of constitutional protections but also interpret existing provisions of the Criminal Procedure Code 1973 [“Cr.P.C.”] and Information Technology Act 2000 [“IT Act”].

In this post, I argue that the conclusions arrived at in Virendra Khanna — in respect of the applicability of the fundamental right against self-incrimination, of the Cr.P.C. search and seizure provisions, and of the fundamental right to privacy, all in context of accessing digital devices — are incorrect. The interpretation that is endorsed by the High Court is also deeply problematic, as in the face of advancing technology, it seeks to restrict rather than enhance the contours of our constitutional rights to equip individuals with the means to protect themselves against unlawful incursions into enjoyment of one’s personal liberty by state agencies. The post does not engage with the guidelines provided by the Court, or its reiteration of the law laid down in Selvi [(2010) 7 SCC 263] that compelled administration of a polygraph test was is illegal.

The Facts and Issues Before the Court

The Petitioner was a person caught in the crosshairs of law enforcement agencies, and his mobile phone was allegedly important to advance the investigation into offences. In September 2020, the police went before the trial court asking for court orders to direct the Petitioner to unlock his mobile phone and grant access to email accounts, as the Petitioner had refused to cooperate. The court duly passed this direction and it appears the Petitioner complied. Then, the police moved another application before the trial court, this time asking for directions that the Petitioner be subjected to a polygraph test to confirm the mobile / email passwords, as it appeared that the Petitioner had been lying about the same during investigation. The court allowed this application as well and directed the polygraph tests be conducted — orders which, according to the Petitioner, were passed without ever giving him an opportunity to be heard and without considering if he had indeed consented to undergoing such tests. The Petitioner challenged this order and the consequent direction to undergo a polygraph test.

Following the judgment in Selvi, no court can direct any accused person to undergo polygraph tests unless such person consented to the same, and if seen from that perspective Virendra Khanna was an open-and-shut case requiring that the order be set aside. But the High Court was more indulgent with the legal issues placed before it and considered questions that lay beneath the surface as well. Out of these, I focus on the following three points taken up in the judgment:

What is the specific legal regime under which police can seek access to a digital device for pursuing its investigation?
What is the interplay between Article 20(3) and directions issued to an accused person for unlocking a digital device?
What are the legal limits, if any, upon law enforcement agencies while they “explore” the contents of a digital device for investigation purposes?

Issue 1: The Relevant Legal Regime

The High Court first considered whether there was any legal basis to root the actions of police officers in accessing a digital device for purposes of investigation. It observed that an officer could always ask an accused to open the device, but to direct compliance required some basis in law. This legal basis was found in the existing search and seizure regime of the Cr.P.C., concluding that the regime — which it admitted only applied to a “place” — was also applicable for accessing a digital device. Accordingly, the police would have to apply for search warrants to access a phone under Sections 93 / 94 of the Cr.P.C., and in emergent circumstances they could dispense with this requirement and act under Section 165 Cr.P.C. The obligations of the accused would be the same in both scenarios, i.e. assist in providing access to any locked space as provided by Section 100 Cr.P.C.

Extending the existing search and seizure regimes from the realm of physical space to that of electronic / digital space is a path that many countries are taking. Erecting a need for judicial supervision by requiring search warrants to be sought before digital devices can be accessed helps redress the imbalance of power in such situations and also helps to keep law enforcement activity tailored to the needs of investigation and avoid roving inquiries into personal data. Viewed in the abstract, then, the choice of the Court does not seem problematic at all but a pragmatic solution.

The problems only arise when we move beyond the realm of abstraction into practice. The Indian search and seizure regime does not mandatorily require search warrants; instead, police liberally use their powers under the “emergent circumstances” exception to conduct searches. The result is a situation where privacy is at the mercy of police. This is not to say that the search warrant regime itself, when invoked, supplies the necessary bulwark. The Cr.P.C. 1973 adopted wholesale the search regime that was present in the old British codes, the avowed purpose of which was to maximise scope of interference with personal liberty and not to safeguard it. Under this antiquated regime, general warrants allowing a roving search at a place are the rule, and a court may “if it thinks fit” restrict the scope of this search expedition.

As noted above, this regime was designed to maximise state interests. Importing this regime in 1973 was a dubious decision. Applying it in 2021 to digital devices which are nothing short of portable vaults full of sensitive personal data, is a disastrous one.

Issue 2: The Right against Self-Incrimination and Unlocking Mobile Phones

The High Court held that compelling a person to give up a password and / or biometrics to unlock a digital device did not attract the fundamental right against compelled self-incrimination as it was not the kind of evidence protected by the prohibition: providing a password did not disclose anything incriminating, and it was not the “testimonial compulsion” which Article 20(3) sought to protect. As a result, adverse inferences could be drawn if a person refused to comply with court orders. This analysis was coupled with portraying disaster if the view was taken to its logical consequence, which according to court:

“… would result in a chaotic situation: no blood sample could be taken; no sample for DNA analysis could be taken; no handwriting samples can be taken; no other body sample for the purpose of DNA analysis could be taken; no search of a house or office could be undertaken; the data of a laptop or computer or server cannot be accessed by the investigating officer; offences like cyber crime could never be investigated; offences like pornography, child pornography which are more often than not, on the internet, could not be investigated.”

Both these conclusions of the High Court are, unfortunately, incorrect. The legal position is misstated, and the approach on the factual aspects is deeply misguided and troubling.

The High Court called upon the “testimonial compulsion” concept in its reasoning and concluded that the furnishing of a password / biometrics was not of this nature, but was akin to “physical evidence”. This binary logic was engrafted upon Article 20(3) by the Supreme Court in Kathi Kalu Oghad [AIR 1961 SC 1808], according to which there is a kind of material called “physical evidence” which falls outside the scope of the protection and persons can be compelled to furnish it. This includes blood samples, hair samples, or even asking an accused to wear specific clothing. Then, there is “testimonial compulsion” which is the material Article 20(3) covers, which traditionally makes one think of confessions. What is the basis behind this distinction? “Physical evidence” is only relevant for purposes of comparison and so by itself it is not incriminating — police take the sample to compare it with other material. “Testimonial compulsion” is incriminating by itself, and conveys to the police information that is the direct product of testimony. The key then is whether the testimonial act — be it speaking, or making gestures — conveys information that can help furnish a link in the chain of evidence, by its own merit.

Is giving the password / biometrics really not conveying any information? Is it of no value as testimony by itself? Surely, the answer is no. At its most basic formulation, the testimonial value in having an accused person unlock the phone lies in the many inferences that can be drawn from this act. Not only does it lend support to the inference that the accused owns the phone, but also to the inference that the accused was in control of its contents. And where the contents of this device are what are potentially incriminatory, surely this is as obvious a link in the chain of evidence as any.

On a more specific point, while the Court relied upon Kathi Kalu Oghad, it seemingly ignored the decision in Shyamlal Mohanlal Choksi [AIR 1965 SC 1251]. Otherwise, the High Court could not have observed that giving a password is not testimonial compulsion because “it is only in the nature of a direction to produce a document.” After all, Shyamlal specifically held that a direction of this nature could not be issued to an accused person as it would run contrary to Article 20(3).

Since the High Court was incorrect in comparing the giving of a password with giving of bodily samples and the like, it is already obvious that the “heavens will fall” approach to the consequences of concluding an Article 20(3) violation are an exaggeration unfounded in the law. But let’s ignore that for a minute, and take up the assertion on its face value. What it reveals is a troubling state of affairs where the High Court assumes that cooperation by an accused is necessary to secure any or all of these obviously legitimate investigative aims. This cannot be further from the truth and, in fact, the Court itself alludes to this when at a later point in the decision it recommends that police proceed to “hack” a device to gain access where the accused refuses to cooperate. What is troubling here is that this kind of piggybacking upon an accused to secure investigations is what a protection against self-incrimination, in its myriad forms, was designed to reduce. Technological advances have made it more possible for police to do their job independently and have helped to usher in a situation where investigations are not subject to the sweet will of an accused, and at the same time are free of any potential taints of accused persons being assaulted to secure information. It is unfortunate that the High Court endorsed a view which still sought to place the accused as the focal point of a police investigation, without appreciating the well-established perils of this approach.

Issue 3: The Right to Privacy

The High Court in Virendra Khanna was keenly aware of the potential invasion of one’s privacy at stake considering how much data is found on our digital devices. It acknowledged that once police gain access to a device, even if for a specific reason, that often enables full-blown access to all aspects to a person’s life. After heading in this direction, the High Court simply noted that the use of any such data during the course of investigations would not amount to a violation of the right to privacy, as it was protected under the exceptions carved out. At the same time, the High Court observed that unlawful disclosures of this material with third parties could certainly amount to an actionable wrong.

With all due respect, the High Court’s analysis of the privacy issues barely scratched the surface and, in effect, simply placed the cart before the horse. Yes, a criminal investigation can certainly require invasions of the right to privacy that are otherwise prohibited, but to confer a blanket protection over all all kinds of activities that may be done under the pretext of an investigation effectively extinguishes the fundamental right altogether. Let’s take an example. The police allege that an accused spoke to other conspirators over email and this correspondence is evidence to show the existence of an agreement to commit a crime. This is as genuine a law enforcement need as can be justifying going inside an email account and one’s private chats.

According to Virendra Khanna, when faced with this situation a court should support untrammelled access for police agencies to the email account. Such an approach is hardly the only way out and actually asks courts to forsake their responsibility of crafting a proportionate intrusion to best safeguard law enforcement interests without sacrificing one’s privacy altogether. Rather than confer a carte blanche upon the police, an approach which took privacy seriously — the respect a fundamental right deserves — would have a court consider if the police could demonstrate with reasonable particularity what they hoped to find or if it was just a hunch and, importantly, create a time-limit so that the individual is not forever beholden to police snooping through her inbox.

The seemingly benign way in which the High Court viewed potential breaches of the right to privacy can be seen not only from how it viewed state interests as an unquestionable concept, but also in how it failed to address what remedies may lie in the event of a breach. As mentioned above, the High Court did note that disclosures to third parties were possible and could constitute a breach, but it neither offered nor suggested a remedy to the aggrieved accused in this regard. What’s worse, the High Court in its support for getting search warrants endorsed the regular position that the fruits of an illegal search could still be admissible as evidence. It failed to engage with the small but significant line of recent cases where another High Court took strong exception to searches being conducted without following procedures, noted that this amounted to a breach of the right to privacy, and excluded material gathered pursuant to search from being considered as evidence.

Conclusion: Setting Back the Clock, by Some Measure

On its face, the petition in Virendra Khanna offered a straightforward issue — administering polygraph test without consent. The High Court looked past this simplicity to address the underlying legal questions which are becoming critical in their relevance to law enforcement needs and ordinary life. That it chose to do so and contributed to the discourse by offering clear answers to some questions was a welcome move. The problem is that the answers themselves are severely wanting, either proceeding on an incorrect legal basis or drawing exaggerated hypothetical conclusions.

How this judgment is treated by the other benches in the Karnataka High Court, the state police, as well as other courts, will be interesting to see.

Coronavirus and the Constitution: Round-Up

March 25, 2021March 25, 2021 Gautam Bhatia1 Comment

This post brings together ICLP’s coverage of Covid-19, the Constitution, and the Courts over the past one year.

A. On the Disaster Management Act, Executive Decrees, and Judicial Review

B. On Civil Rights

C. On Labour Rights

D. On Fiscal Federalism

E. On the Supreme Court

F. On the High Courts

Coronavirus and the Constitution – XXXVIII: One Year On

March 24, 2021 Gautam Bhatia2 Comments

The first Indian national lockdown in the wake of Covid-19 was announced on 24th March, 2020. The management of the pandemic by the central and state governments is a matter for the history books (although, of course, the pandemic is not yet over). Over the course of the past year, however, these governments’ far-reaching actions – aimed at containing the pandemic, but with numerous spill-over effects – raised numerous constitutional issues. These involved, for example, civil rights, access to healthcare, the rights of migrants, and so on. On this blog, there have been thirty-seven posts examining the interface between Covid-19, state action, the Constitution, and the Courts. One the first anniversary of the lockdown, it is a good time to take stock.

Pandemic Management by Decree

The greatest concern remains how Covid-19 turned into a cover for executive aggrandisement, both at the central and at the state level. At the centre, this involved the invocation of the Disaster Management Act of 2005, and a somewhat extended interpretation of its provisions, to arm the central government with wide-ranging powers over everyday life. At the state level, the several state governments invoked the colonial Epidemic Diseases Act, to exercise similar powers over their territories (including the arguably ultra vires “sealing off” of certain districts from time to time). This, in turn, was supplemented by the liberal use of Section 144 of the Code of Criminal Procedure to restrict movement in specific areas.

At all levels, therefore, Covid-19 was managed by an interlocking set of executive decrees, passed under broadly-worded laws, and leaving no scope for the representative bodies – parliament of the state legislatures – to debate or to question these moves. It is, of course, trite to say that the legislature in India has become effectively moribund, and even a functioning Parliament and State Assemblies would have scarcely made a difference to the handling of Covid-19. That is true enough, but the formal exclusion of deliberative representative bodies from the management of a criss by invoking broadly-worded laws remains a matter for concern, whatever the state of those bodies: as Abhinav Sekhri put it, it took us into a space of “permanent crisis governance“.

Civil Rights and Proportionality

That Covid-19 was – and remains – a public health crisis that would require governments to take far-reaching measures – many of which would have a severe impact on everyday life and on civil rights – is unquestionable. But what is equally unquestionable is that Covid-19 does not accord governments a carte blanche to suspend Part III of the Constitution altogether. State action violating rights would still need to conform to the principles of proportionality, albeit with the rider that the importance of the State goal (preventing the spread of a global pandemic) would necessarily allow the government a wide degree of leeway in fashioning measures to deal with the problem.

That said, throughout the pandemic – and especially in its early stages – there was a range of dubious State action that arguably fell foul of the proportionality standard. These included, for example, curfews, public disclosure of the private details of quarantined individuals, restrictions on individual movement, compelling quarantined people to upload “selfies” to a government portal, the notorious Aarogya Setu App (with its Aadhaar-esque mandatory-voluntary nature), and bans on vehicular movement. Unfortunately, most of these measures escaped judicial scrutiny. The exception was Odisha’s vehicles ban, which was modified by the Odisha High Court in a measured and well-reasoned judgment, that is a good example of the application of the proportionality standard in a public health emergency.

Equality and Non-Discrimination

Pandemics do not discriminate between the rich and the poor, but the State certainly does. A lockdown, for example, has a severely disproportionate impact, depending on the socio-economic status of a person. “Work from home” jobs statistically track along socio-economic lines (the higher paid your job, the more likely it’s a job that can be done from home), and the forced closure of all establishments has a direct impact on the right to life and livelihood of migrant workers, living on daily payments, in particular. The decision to impose a hard national lockdown, therefore, raised important constitutional concerns around equality and non-discrimination. Note that this does not mean that the lockdown should not have been imposed (scientific evidence shows that lockdowns are essential to breaking the chain of transmission of the virus). What it does mean, however, is that once the lockdown was imposed, the State had an affirmative obligation to deal with its discriminatory impact – and that its failure to do so merited constitutional scrutiny.

Unfortunately, however, the unequal and discriminatory impacts of the lockdown were given short shrift; for example, the Supreme Court passed a cursory judgment failing to properly engage with the multiple equality concerns with the UGC’s Circular on the conduct of examinations. Secondly, PIL requiring the State to guarantee the payment of minimum wages to workers affected by the lockdown was not taken seriously by the Supreme Court, with the Court – unfortunately – indicating that it viewed the issue as a matter of “policy” (the rights to equality and to livelihood are not matters of policy).

Eventually, it was the government that took action, with a regulation under the Disaster Management Act requiring payment of wages to workers for a certain period of the lockdown. In one of the most unfortunate orders to be passed during the pandemic, the Supreme Court effectively stayed this provision (ironically, the only provision the Court stayed under the DMA was the one provision that sought to protect workers’ rights) – and then buried the case by adjourning it while asking the employers and employees to “negotiate” (as the old saying goes, a mediation between the sword and the neck). Thus, the regulation requiring the payment of wages to those who had suffered from job loss because of the lockdown was judicially nullified.

By contrast, the Supreme Court’s decision in the Gujarat Mazdoor Sabha case – where the State of Gujarat’s attempts to cut back on labour protections by citing Covid-19 as an excuse were turned back by a thoughtful and closely-reasoned judgment – stands out precisely because, for once, the Court refused to accept Covid-19 as a carte blanche for the curtailment of rights, especially on the basis of vague invocations of “public emergency”. One wishes that this judgment had been the exception, and not the norm, as we shall see below.

The Supreme Court’s Deference

The Supreme Court’s excessive and undue deference to the executive was starkly visible in multiple separate instances. First, despite legitimate constitutional and legal concerns, PILs challenging the PM-CARES fund were dismissed as frivolous and ill-founded. It is telling that to this day, we do not know the breakdown of spending under the PM-CARES fund, something that should be anathema to any jurisdiction styling itself a constitutional democracy.

Secondly – and in what will undoubtedly go down as a moment of great infamy – when the Supreme Court was petitioned about the severe difficulties faced by migrants due to the sudden and unplanned lockdown, first accepted the Solicitor-General’s statement that there were no migrants on the road, and then passed an extraordinary order blaming migration on “fake news”, and praising the government for its efforts in tackling Covid-19.

Thirdly, acting on a petition before it, a bench of the Supreme Court in April 2020 ordered that Covid testing be made free of cost. While the order had gaps, in my view – as I argued at the time – given the nature of the Covid-19 pandemic, it was legitimate (but see here, here, here, here, and here) for the extensive debate that this sparked upon the blog). However, upon various private bodies moving the Court, and at the instance of the State, it did a complete – and wholly unreasoned – volte face, changed its own order, and while appearing to introduce a means-testing requirement, effectively killed it. Now, there is a debate to be had over whether the Court’s initial order was right or wrong. What is troubling, however, that in a matter as important as this – involving the right to equality and the right to health during a global pandemic – the Court provided no reasons for its flip-flops. Indeed, it accorded no judicial scrutiny to the most basic of factual claims – for example, that Rs 4500 as the price for a test had been determined after consulting experts (reports showed that no experts had been consulted), or of a causal link between making testing free (or cheaper), and the availability of tests.

Thus, both in the migrants’ case and in the free testing case, the issue was not that the Court interfered – or declined to interfere – with questions of policy; it was – as I argued here – that the Court failed to hold the government to account in following its own policies; this does not require judicial activism, but classic, old-school judicial scrutiny, scrutiny that was made all the more necessary because of the bypassing of Parliament, leaving the Courts as the only checking bodies left. The Court’s failure to do so effectively created a situation of Caesarism: i.e., rule by acclamation, not under democratic checks and balances. But the larger issue it revealed is perhaps even more important: at present, under our Constitution, there is no consistent standard for the recognition and enforcement of socio-economic rights. While this has always been known, it was the (often failed) attempts to actually enforce these rights during Covid-19 that brought the point home.

The High Courts’ Vigilance

There was, however, a marked difference in how the several High Courts approached their responsibilities during the pandemic – demonstrating, perhaps, that in public health emergencies that are managed at a more localised level, High Courts might be in a better position to adjudicate a range of issues involved. . For example, the Delhi High Court passed an important order regarding the implementation of the right to food, and keeping open PDS shops, during the pandemic. The Madras High Court passed a good order on the right to movement of migrant workers.

Most importantly, in a series of excellent orders, the Karnataka and the Gujarat High Courts held the State governments to account on issues involving the rights of migrants, medical care, food, shelter, and other grave lapses in pandemic management. The actions of the Karnataka and Gujarat High Courts stand out as models of judicial engagement with State action during the pandemic: both Courts engaged in dialogic judicial review, i.e., not substituting judicial wisdom for State policy, but by holding the governments to account for their failure to protect constitutional rights during the pandemic (unfortunately, in the Gujarat High Court, one of the judges hearing the case was swiftly replaced, and the hearings died a quiet death). Both Courts, for example, asked the State governments to file affidavits, and it was quickly found, on a reading of those affidavits, that the governments were failing on their own terms. The Courts’ orders were then premised on a rectification of those failures, and indeed, directing the government to act to mitigate those failures. It is in this way that the High Courts engaged in dialogic judicial review, and ensuring executive accountability under the Constitution on a continuing basis.

The Bombay High Court also engaged in dialogic judicial review when considering the issue of price-capping N-95 masks, closely engaging with information provided by the government, on its own terms. There were also thorough and detailed orders passed on access to food, migrant rights, and the right to a decent burial.

The Conclusion

Whenever we face an emergency of any kind, it becomes particularly easy to argue that rights are a luxury that cannot be afforded in times of existential threat, and that the State must be given complete leeway to tackle the emergency as long as it lasts. It is also tempting to turn the truism that the Courts should not get into the day-to-day management of the pandemic, into an excuse for judicial abdication. Tempting as it is to make these arguments, history has also repeatedly shown us that it is wrong-headed; not only is it more than possible to handle emergencies while being protective of basic rights, it is also the case that executive aggrandisement of power during an emergency inevitably becomes permanent, with emergency and normalcy eventually bleeding into each other.

There is little purpose in knowing history if we do not intent to learn from it. In this context, the invocation of the DMA and the Epidemic Diseases Act to manage the pandemic via executive decree is the repetition of an old story, which recurs every time there is an emergency. One can only hope that after the pandemic is over (of which there is no sign so far), we will be vigilant about the expansion of such executive rule into daily life.

Secondly, the pandemic has revealed the hollowness – in a sense – of India’s Article 21 jurisprudence. Ultimately, when it came to the crunch, the grand rights to livelihood, food, and health meant very little in practice, especially at the Supreme Court: the migrant and free testing cases are testament to how, in the enforcement, these rights are paper tigers.

Thirdly, however, there are reasons for optimism as well. The Supreme Court’s judgment in Gujarat Mazdoor Sabha was a classic example of the role a vigilant judiciary can play in stopping a government that tries to use the pandemic as a cover to cut back on workers’ rights. And the orders of the Karnataka and Gujarat High Courts provide models of dialogic judicial review, and the walking of the delicate tightrope between judicial abdication on the one hand, and the judiciary (wrongly) trying to “manage the pandemic” on the other. As we eventually emerge from the pandemic, there is a lot to reflect on – and to learn – from the legacy of this past year, and about the role of courts and of rights in a crisis.

Guest Post: The Allahabad HC – Abortion of Legislation by Judicial Fiat?

March 19, 2021March 19, 2021 Gautam BhatiaLeave a comment

[This is a guest post by Tanishk Goyal.]

On March 3, 2021, a Division Bench of the Allahabad High Court took suo motto cognizance of the Uttar Pradesh Education Service Tribunal Bill, 2021. This cognizance was against the backdrop of a week-long abstention from judicial work by the advocates at the call of the Allahabad High Court Bar Association and the Awadh Bar Association, Lucknow. Briefly put, The Uttar Pradesh Education Service Tribunal Bill, 2021 seeks to establish an Education Tribunal for expeditious disposal of service cases relating to teaching and non-teaching staff of of Basic, Secondary and Higher Educational Institutions in the State. In order to do so, the Bill proposes to establish the principle bench of the Tribunal at Lucknow with a circuit bench at Allahabad. The proposed location of the Tribunal has been the subject matter of controversy since 2019, when this Bill was first passed by the State Legislature.

Taking cognizance of the said matter In Re Constitution Of Education Tribunals, the Division Bench did two things. First, it availed the details of the pendency in Service Law matters in the State which were sought to be adjudicated by the Education Tribunal. Upon availing the above details through the Court’s Registry, the Bench came to the conclusion that the pendency in Service Law matters was “not too much” and the same could be effectively remedied through the constitution of special benches by the High Court itself. Second, it passed the following directions. The wordings and implications of the directions so passed are instructive and deserve to be quoted in full:

“(i) The Chief Justice, Allahabad High Court be requested to
constitute appropriate dedicated Benches at Allahabad as well as at Lucknow for expeditious disposal of service matters related to teaching and non-teaching staff of aided institutions.
(ii) The Legislature may complete the process of enacting the Act of 2021, if so desires, but, shall establish Educational Tribunals as proposed only after the leave of this Court”. (emphasis supplied).

While the concerns regarding the constitutionality of the bill itself have been raised on this blog earlier, through the present piece, I only seek to highlight certain constitutional concerns with the stay order passed by the Division Bench of the Allahabad High Court on March 3, 2021. However, before analyzing the constitutional concerns with the said order, it would be pertinent to understand the object and purpose of the Uttar Pradesh Service Tribunal Bill, 2021.

The Object and Purpose of the UP Service Tribunal Bill, 2021

The ultimate objective of the Bill of 2021 as evidenced through its Statement of Objects and Reasons is twofold. Firstly, “to provide a mechanism for the speedy resolution of disputes in service matters of teachers and non-teaching employees of basic, secondary and higher educational institutions”. Secondly and relatedly, “to maintain and improve the quality of efficient functioning of institutions of basic secondary and higher education”. This objective was against the backdrop of the rapid growth in litigations involving service matters of teaching and non teaching staff of these institutions. This objective was also against the backdrop of the judgment of an eleven-judge bench of the Supreme Court in the case of T.M.A Pai Foundation v. State of Karnataka, where it held that:

64. In the case of educational institutions, however, we are of the opinion that requiring a teacher or a member of the staff to go to a civil court for the purpose of seeking redress is not in the interest of general education […]. It would, therefore, be appropriate that an educational Tribunal be set up in each district in a State, to enable the aggrieved teacher to file an appeal, unless there already exists such an educational tribunal in a State — the object being that the teacher should not suffer through the substantial costs that arise because of the location of the tribunal; if the tribunals are limited in number, they can hold circuit/camp sittings in different districts to achieve this objective.” (emphasis supplied).

Thus, the constitution of a Tribunal that can speedily decide cases relating to service matters of the teaching employees and non-teaching staff, lies at the heart of the UP Service Tribunal Bill, 2021. In order to achieve the said objective, the Bill of 2021, through Sections 3-11 vests the Tribunal with various powers. These Sections, inter-alia provide for the establishment and composition of the Tribunal, the procedures to be adopted before it, the bar on civil suits, the power of the Tribunal to punish for its contempt and most importantly, a revisional jurisdiction to be exercised by the High Court. However, as will be illustrated forthwith, the Division Bench order of March 3, 2021 strikes at this heart of the Bill and renders it nugatory for all practical purposes.

Before analyzing the order of the Division Bench any further, it would be pertinent to reiterate here that while the Bill of 2021 still suffers from the same statutory defects that the Bill of 2019 did, which may ultimately render it ultra vires the Constitution, it is still not upon the judiciary to pre-empt its implications and put a stay upon its enforcement. This has been discussed forthwith.

The Order of the Division Bench of the Allahabad High Court

Having apprised the reader of the object and purpose of the Bill of 2021, an important point of departure here would be highlight the concerns that arise with respect to the two directions issued by the Division Bench in its order of March 3, 2021. The first direction holds that dedicated benches shall be created at Allahabad as well as Lucknow for the expeditious disposal of service matters related to teaching and non-teaching staff of aided institutions. This direction essentially creates an Original jurisdiction of the High Court when only a revisional jurisdiction had been envisaged by the Bill of 2021. The second direction issued by the Division Bench restrained the State from constituting the Education Tribunal under Section 3 of the Bill of 2021 without the leave of the Court. As discussed earlier, the constitution of an Educational Tribunal that can speedily decide cases relating to service matters of the teaching employees and non-teaching staff, lies at the heart of the UP Service Tribunal Bill, 2021. Therefore, while the order says that“The Legislature may complete the process of enacting the Act of 2021, if it so desires”, the Court has effectively aborted the very essence legislation even before it came into effect.

This issuance of the above directions is classic example of the exercise of judicial fiat by the Division Bench where it has effectively defeated the legislative exercise undertaken by the State Legislature. The Bench has done so by essentially pre-empting that a dedicated Education Tribunal would be of no use if the original jurisdiction of the High Court is able to dispose off the cases in its capacity as the Court of First instance. Having pre-empted so, the Bench has also stayed the constitution of the Education Tribunal until a leave is sought from the Court. In doing so, the Bench only relied on the pendency data made available to it by the Registry of the Court. This essentially means that the Court discounted the need for any debate or discussion on the pendency data which was done in the Legislature when the Bill of 2021 was passed.

This approach was condemned by the U.S Supreme Court in the American Federation of Labour v. American Sash and Door Co., 335 US 538 (1949). Speaking through Justice Frankfurter, the Court held that:

“But, even if a law is found wanting on trial, it is better that its defects should be demonstrated and removed by the legislature than that the law should be aborted by judicial fiat. Such, an assertion of judicial power defeats responsibility from those on whom in a democratic society it ultimately rests” (emphasis supplied).

In a similar situation in India where the Court had extended the applicability of the Easements Act, 1882 to the State of Assam when the legislature had made it clear that the said Act had no application in Assam, the Court, in Panchugopal Barua v. Umesh Chandra Goswami, (1997) 4 SCC 713 held that:

“12. It is not permissible to extend the provisions of an Act, made not applicable by the legislature to a State, by a judicial order as it amounts to enacting legislation by the High Court, a power not vested in the judiciary” (emphasis supplied).

It is trite to mention here that while interpreting a statute, the Courts defer to the legislative wisdom by adopting a construction which makes it effective and workable. This deference is essentially in light of the principle of Separation of Powers and in light of the accepted fact that the legislature represents the will of the people, and the Court cannot substitute such wisdom with that of its own, unless the legislation is impossible to sustain. The Division Bench, in its order of March 3, 2021 has not given any reasons why such Bill may be impossible to sustain. Despite the absence of these reasons, the Bench not only struck at the heart of the Bill of 2021, It also usurped the field reserved for the legislature by creating an Original jurisdiction where only a revisional jurisdiction existed, based on empirical data which has neither been verified nor debated upon the by the State Legislature.

While the concerns with respect to putting a stay on a legislation have been raised on this blog earlier, the Allahabad High Court’s substitution of the legislative will with its own notions of expediency, and its pre-emption of the ineffectiveness of an Education Tribunal (which ultimately led to the abortion of the Bill in its infancy), has struck at the root of separation of powers enshrined in Article 50 of the Constitution of India. Not only does this order go against the judgment of the eleven judge bench in T.M.A Pai(supra), it also violates the Basic Structure of the Constitution. This sentiment was emphatically echoed by a Constitution Bench of the Supreme Court in the case of GVK Industries Ltd. v. ITO [(2011) 4 SCC 36 where it held that:

“34. […] One of the foundational elements of the concept of basic structure is it would give the stability of purpose, and machinery of Government to be able to pursue the constitutional vision into the indeterminate and unforeseeable future.
35. Our Constitution charges the various organs of the State with affirmative responsibilities of protecting the interests of, the welfare of and the security of the nation. Legislative powers are granted to enable the accomplishment of the goals of the nation. […] Consequently, it is imperative that the powers so granted to various organs of the State are not restricted impermissibly by judicial fiat such that it leads to inabilities of the organs of the State in discharging their constitutional responsibilities” (emphasis supplied).

Conclusion

Notwithstanding the fate of vires of the Bill of 2021, it is imperative that the March 3rd order of the Allahabad High Court not become precedent for future cases. This is essentially because the order gives power to any Court which is conscious of an ongoing legislative process, to injunct the same quia timet, and transgress into a field which has only been reserved for the Legislature under the Constitution.

Having said that, it is now upon the State to contest this petition (the status of which is still shown as pending) and it can only be hoped that the above order is rectified so that the separation of powers as envisaged by the Constitution is brought to fruition in letter and in spirit in the times to come.

Guest Post: Legislative Privilege and Competence – Facebook (and the Union of India) vs the Delhi Assembly)

March 10, 2021 Gautam Bhatia1 Comment

[This is a guest post by Rahul Narayan.]

When the Delhi Assembly summoned Facebook honcho Ajit Mohan to depose before its Peace and Harmony Committee, it unwittingly provoked a litigation that may have far-reaching implications on Federalism, the Separation of Powers and Fundamental Rights in India.

Parliamentary privileges

Parliamentary Privileges are a set of rights and immunities that are essential for the functioning of Parliament. The right to free speech in the House, guaranteed to the Commons since 1688, and the right to call for evidence and witnesses, are central to the role of the legislature. In our Constitution, both Parliament and State Assemblies were conferred with the same privileges as the Commons. Apart from discussions about judges, no other speech is barred for legislators in the text of the Constitution. Unlike the devolved legislature of Scotland under Section 23 of the Scotland Act 1998, the power of discussion is not limited to fields where the state legislature is competent to legislate.

The case made by the Union of India is that legislative privilege is a function of legislative power. The Union relies upon several judgments of the Supreme Court to make this case- MSM Sharma, Keshav Singh, State of Karnataka v. Union of India, Kalpana Mehta and Raja Ram Pal. It is contended that since the Delhi Assembly specifically does not have power under items 1 and 2 of the State List, it has no privilege to call for witnesses or evidence apropos the same. The Union then goes on to argue that in “pith and substance” the inquiry by the Delhi Assembly relates to something beyond its powers under the Legislative Lists. It also argues that this is an “occupied field” by the Union and that accordingly the Delhi Assembly has no authority to call for witnesses in the present case.

The sequitur of the Union’s arguments is that the Delhi Assembly lacked the competence to call Ajit Mohan to depose before the Peace and Harmony Committee because they could not have passed a law on “peace and harmony” in Delhi- the powers to so legislate being with the Union Government. This logic also inexorably leads to the contention, though this has not been categorically stated, that State Assemblies do not have the competence even to discuss such issues since such discussions would be the sole preserve of Union Parliament.

On the face of it, as argued by the Union, Federalism imposes an insuperable challenge to the traditional broad reading of Parliamentary Privilege. The broader argument goes: Unlike the House of Commons, the powers of State Assemblies are more limited. If the State Assembly cannot pass a law on a subject, how can it claim a right to discuss it or call witnesses for it?

However, this framing is misleading. First, legislation is not the only goal of Assembly discussions. Legislatures also have a separate non-judicial power of inquiry which has been judicially regarded as being inherent to the Legislature, flowing perhaps from what Walter Bagehot would call the expressive and informative function of the House. Politically, the Assembly is the voice of the people of a State and their discussions are an expression of popular will. Atomic energy is the exclusive preserve of the Union. Does that mean a State Assembly cannot inquire into the possible ecological implications of a nuclear waste site within the State? Cannot State legislatures hear testimony from soldiers and pass resolutions to honour the armed forces? At least six States have passed resolutions against the Citizenship (Amendment) Act as affecting their people. Parliament may not be bound by discussions in State Legislatures but it is entirely reasonable to assume that discussions will have a persuasive value for them.

Second, the Legislative Lists in Schedule VII frequently overlap and Courts resolve any conflict by adopting a test of pith and substance of the law in question. But how would this apply pre-emptively at the inquiry stage when the discussions may or may not lead to legislation? In fact it is also possible that the State Assembly may recognise that the discussions are not fruitful and end the same.

Third, we live in the era of co-operative federalism. How can the Union and the States cooperate if they are barred from even discussing or taking evidence on issues beyond their limited legislative competence? It must be remembered that the Constitution does not seem to envisage such strict limits. The union has the right to pass legislation on state subjects pursuant to international treaties or on the request of 2 or more states. States have been given the explicit right to discuss formation of new states or alteration of state boundaries even if they have no power to bind Parliament to their will.

Fourth, there is the delicate issue of whether the courts can or ought to sit in judgment on the proceedings of State Assemblies determining what can or cannot be discussed based on the courts’ view of the topic. As a “watchdog of the Constitution”, it is undoubtedly the role of the Court to uphold the federal separation of powers and fundamental rights, but this has never meant a wholesale intervention into legislative proceedings as would be needed to enforce any bars on discussions or witnesses in any legislative proceeding. In Keshav Singh’s case, the issue was the power of the State Assemblies to punish for contempt Judges who granted bail to a publisher who had allegedly been in contempt of the House. The issue was relatively clear cut and a bright line rule could be laid down- contempt of a House is an issue touching upon the fundamental rights of people and can, and must, be examined by the Courts. The fact situation presents a stark contrast with the present case. The Court here is faced with a claim that calling a witness is a fundamental right violation per se because the State Assembly lacks the legislative power to pass a law on the subject of inquiry. Calling witnesses to Assembly proceedings or Parliamentary proceedings is not a fundamental right violation per se, and arguments about the right against self-incrimination or right to silence don’t work as well merely at the stage of a summons for a non-judicial hearing. It would be startling if the Court were to hold that Parliament or State Assemblies have no right to call for witnesses to assist lawmaking, or inquiries based on the right to silence or the right against self incrimination.

How is the court to interpret the discussions in a State Assembly to make a judgment about legislative power before a law that finally expresses the will of the house is passed? Consider that even recourse to Parliamentary discussions was verboten for the Courts for purposes of interpreting a law for the longest time. No theory of judicial review would justify such a deep dive into the “political thicket” to examine the proceedings of the House with a view to determining whether the discussion has a reasonable nexus with its legislative powers. Such an inquiry would also be in the teeth of the Constitution as judicial examination of proceedings in the house is something our Constitution expressly bars.

The judgments cited by the Union to support the argument that legislative power limits legislative privilege do not actually appear to do so. It seems clear that in the State of Karnataka judgment, what was argued was that the “powers” of the State Assemblies under 194(3) were argued to be inclusive of the sole right to judge for bribery of the CM and that the Grover Commission could not have looked at the same. The Court rejected this argument holding that the State Assemblies had no right to conduct judicial or quasi-judicial inquiries under our Constitution or even in England. It is clear that the Court did not address the issue of legislative inquiries independent of quasi-judicial ones because it was careful enough to observe that the powers were “quite apart from its recognised powers of punishment for its contempt or the power of investigations it may carry out by the appointment of its own committees.”

The experiences of Canada and Australia, both Common Law Federal jurisdictions, are also instructive. The Canadian chronicler Maingot hints about restrictions based on legislative competence but is careful to add that they are self-imposed, not court mandated. In Australia, the Privy Council in appeal from the High Court held that “it is hardly possible for a Court to pronounce in advance as to what may and what may not turn out to be relevant to other subjects of inquiry on which the Commonwealth Parliament is undoubtedly entitled to make laws”.

In 1397, Sir Thomas Haxey presented a petition criticising the household costs of King Richard II in Parliament and was punished for treason with his property seized. In 1399, the new King Henry IV reversed this judgment as being against the traditions of Parliament, recognising a privilege that was eventually crystallised in the Bill of Rights in 1688 from whence it travelled to the US, Canada, Australia, New Zealand and to India. The privilege is a landmark of liberty as it allows elected representatives to challenge the most powerful people of the land on behalf of commoners. This ancient tradition would be effaced if the court were to appoint itself an arbiter of legislative discussions. It is difficult to craft any discernible principle upon which such unprecedented power could be judiciously exercised without inhibiting free speech that is the hallmark of our legislative tradition.

Guest Post: Puducherry and the Aftermath of the Supreme Court’s Shivraj Singh Chouhan Judgment

March 2, 2021 Gautam BhatiaLeave a comment

[This is a guest post by Anmol Jain and Sayantani Bagchi.]

Frequent readers would recall that this blog had hosted an extensive discussion on the Supreme Court’s decision in Shivraj Singh Chouhan v. Speaker, Madhya Pradesh Legislative Assembly during April-May, 2020. In this case, the Court had upheld the gubernatorial exercise of discretionary power to direct a convening of the Legislative Assembly for holding a trust vote. Critiquing the decision, one of us had observed that the decision might facilitate excessive intervention on the part of the the Governor in the proceedings of the state Legislative Assembly and render the process of no-confidence motion nugatory. There were apprehensions that by exercising this power, Governors could easily override the entire process laid down in the Rules of Procedure and Conduct of Business of the respective Legislative Assemblies for conducting a no-confidence motion, and thus interfere with a process which primarily falls in the Legislature’s domain. After all, the Cabinet is accountable to the Legislature and not to the Governor. Unfortunately, the current political impasse in Puducherry reminds us of something similar.

Over the last few days, a few Congress MLAs have resigned from the Puducherry Legislative Assembly, bringing the government below the majority mark. This prompted the Leader of Opposition to approach the LG and request for holding a trust vote. On February 18, 2021, the Lieutenant General (LG) acceded to their demands and issued a Press Release summoning the Assembly to meet on February 22, 2021, for a single agenda – to determine ‘whether the government of the incumbent Chief Minister continues to enjoy the confidence of the House’. Interestingly, apart from quoting her power to summon the Legislative Assembly under Section 6 of the Government of Union Territories Act, 1963, the LG also identified the Supreme Court’s decision in Shivraj Singh Chouhan as the source of her authority to issue the said directions. As the Court had stated in its decision:

“…there may be situations where the House is not in session, having been prorogued, and there arise circumstances leading the Governor to a reasonable belief that the government has ceased to command a majority in the legislative assembly. This, in our view, would certainly be one of the situations where the Governor would be justified in calling for a special session in the course of which the incumbent government may be required to establish that it continues to hold the confidence of the House.”

In this background, we reiterate that allowing such interference by centrally appointed Governors in the legislative business could heavily impact the primacy of the legislature in holding the Executive to account through a no-confidence motion. Rule 257 of the Rules of Procedure and Conduct of Business of the Pondicherry Legislative Assembly, 1966 (see page 227) envisages an extensive procedure for the conduct of a no-confidence motion against the incumbent Council of Ministers (CoM). It also establishes important thresholds that the opposition parties must meet before any discussion on the no-confidence motion can be taken up by the assembly. It provides that after a motion expressing want of confidence in the CoM is properly presented to the Speaker, the Speaker ‘shall read the motion to the House and shall request those members who are in favour of leave being granted to rise in their places, and, if not less than one-fifth of the total number of the members of the house rise accordingly, the Speaker shall intimate that leave is granted’. Moreover, Rule 257 also circumscribes the power of the Speaker to check its abuse. It mandates that the no-confidence must be taken up by the Speaker within 10 days from the date on which the leave is granted. By allowing the Governor to replace this entire legislative process with a single stroke of a pen, the Court has undermined, in Gautam’s words, ‘the sovereignty of the legislature to determine the proceedings within the house.’

Once we dispute the active role of Governors in this exercise, naturally a question would arise – what should be the role of Governors when they perceive that the incumbent CoM has lost the majority in the house? First of all, if Governors are given the responsibility to determine if the incumbent CoM has lost the confidence of the house, then there would always be questions about the correctness of such determination. Should the Governor rely on the signatures by enough number of MLAs opposing the CoM or should there be any other method? How should the Governor satisfy himself of the veracity of such signatures? Therefore, any answer that gives a prominent role to the Governors in this exercise wouldn’t be devoid of concerns of arbitrary actions on her part.

In such a scenario, we suggest that the role of the Governor in this exercise must be minimal and restricted to merely summoning the assembly. In case the incumbent CoM wishes to move a confidence motion in the assembly, the Governor must simply exercise his power to summon the assembly with the advise of the CoM. However, when there are apprehensions that the incumbent CoM has lost the confidence of the house and the opposition parties wish to move a no-confidence motion, the Governor must not direct anything apart from summoning the assembly for a special session. In this situation, if the CoM advises anything contrary to the Governor, she must reject the same to uphold the larger principle that the executive must always remain accountable to the legislature. Once the assembly is summoned, the opposition parties would be able to move a no-confidence motion under the Rules of Procedure and Conduct of Business of the assembly and exercise their power to hold the executive accountable. In this manner, both the principles – the executive’s accountability to the legislature and the legislature’s sovereignty to determine the proceedings within the house – could be secured.

Adopting this legal reasoning would not only reduce the interference of Governors but also help the case of those opposition parties which have to face Governors appointed by a different party (See, for instance, the case of Congress in Haryana). As such Governors would be reluctant to summon the assembly, imposing a mandate upon them to compulsorily summon the assembly when opposition parties wish to move a no-confidence motion would further strengthen the principle of continued parliamentary oversight over the executive.

Constitutional Law and Philosophy

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

Month: March 2021