Coronavirus and the Constitution – XXXVI: The Delhi High Court’s Judgment on Taxation and the Right to Health

[Update: in an order passed on June 1, 2021, the Delhi High Court’s judgment – discussed below – has been stayed by the Supreme Court. The only reason provided by the Supreme Court in its stay order is that “arguable issues have been raised” in the appeal. Needless to say, staying a carefully-reasoned High Court judgment that returned a finding of unconstitutionality against State action on the ground that “arguable issues” have been raised is problematic. This is a very low standard that keeps a High Court judgment in abeyance not because there is a prima facie error of law or fact, but because – presumably – it is possible to take another view. Furthermore, the fact that Court has issued notice returnable in four weeks means that the case has effectively been decided in favour of the union government, as – presumably – by the time the Supreme Court gets around to hearing the case, there will no longer be as pressing a need for oxygen concentrators.

One of the most frustrating parts about writing and analysing contemporary Indian constitutional law is the lack of accountability with which the Supreme Court stays High Court judgments. There is no uniform or consistent principle, and in a majority of cases, the Supreme Court does not accord the High Court judgment the courtesy of proper analysis before issuing a stay order. And, as pointed out above, in most cases – and especially in urgent cases – the stay effectively amounts to a decision in favour of the government, but without any judicial reasoning, as the delay between issuing notice and getting around to deciding the issue invariably renders the case infructuous.]

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In an interesting judgment handed down on the 21st of May (Gurcharan Singh vs The Ministry of Finance), the High Court of Delhi struck down the levy of Integrated Goods and Services Tax [“IGST] on oxygen concentrators that had been imported into the country, as a gift, and for personal use. The judgment is notable because it is a relatively rare instance of a successful constitutional challenge to a tax levy, and one that succeeded on fundamental rights grounds, rather than on a demonstration that the tax was confiscatory.

The primary basis of the Court’s judgment was that under Notification 4/2021-Customs, imposition of IGST on oxygen concentrators was exempted, as long as they were free and for the purposes of Covid relief, and imported by a State government or by an entity authorised by any State government. This, then, created two categories of persons who were importing oxygen concentrators for Covid relief: those who were doing it through a government-approved entity (exempted from IGST), and those who were not (IGST leviable) – i.e., those who were receiving oxygen concentrators as a gift, for their personal use. The Court found this distinction to be arbitrary and irrational, and consequently, a violation of Article 14 (paragraph 13).

What is of greater interest, however, is the Court’s contextualisation of the issue within the Covid-19 pandemic. The bench of Shakder and Talwant Singh JJ noted that while ordinarily, “tax … does not recognise equity”, “it must, however, in our view, bend to the will of equity in times of calamity which causes wholesale degradation in the human ability to contribute to the coffers of the State.” (paragraph 15) In this case, therefore, the Court had to examine the tax on the anvil of the right to health under Article 21 of the Constitution, keeping in mind the global pandemic (paragraph 15.1). This, in turn, required the State to demonstrate that:

… the revenue, it would possibly garner, as IGST, in respect of oxygen concentrators which are imported in the circumstances, in which, the petitioner is put, would be appreciably more than the cost incurred to administer the collection of IGST on such transactions. These details need not have borne mathematical precision; a broad-brush approach would have sufficed-so that we could be persuaded to hold that denying relief to the petitioner and persons similarly circumstanced would be in public weal. The counter-affidavit filed by the State gives us no clue whatsoever concerning this vital issue. (paragraph 15. 4)

In the absence of any such counterveiling justification, the impact of the tax on the right to health under Article 21 was evidently onerous and burdensome. It also breached the State’s positive obligations under Article 21, which it could have discharged through “delaying its collections, granting rebates, or, as in this case, permitting, import of vital medical equipment, drugs, medicines, for a defined period, till such time, normalcy is restored” (paragraph 15.7) – and which, indeed, the State had done so for other categories involving the import of oxygen concentrators.

The Court’s judgment in this case is undoubtedly correct, and its desire to contain the scope of its reasoning to the extraordinary situation generated by the Covid-19 pandemic is understandable, as it is difficult to displace the many decades of established wisdom that requires a judicial hands-off approach when it comes to testing tax law and policy on the touchstone of fundamental rights. However, when we think about it, the Covid-19 pandemic has only revealed particularly starkly what has always been true: tax law is one of the most potent tools in the hands of the State to shape and direct behaviour (as potent as criminal law), and for that reason, there is no reason why taxation should be given any greater deference by courts when it is subjected to a fundamental rights challenge. Indeed, as the Colombian Constitutional Court’s judgment striking down a tampon tax, and the Canadian Supreme Court’s judgment upholding business deductions, both in the context of challenges on the touchstone of gender equality, show us, issues of taxation are deeply intertwined with issues around constitutional guarantees of equality and non-discrimination. The Covid-19 pandemic (to reiterate) has only revealed this truth, rather than create it.

The Delhi High Court’s judgment is nonetheless important, as it breaks judicial inertia and for the first time puts these questions on the table. Admittedly, the judgment suggests that the more exacting judicial review that it applied to the IGST Notification – especially on the right to health ground – was because of the extraordinary circumstances created by the pandemic, and that the normal policy of deference would continue to apply otherwise. That said, it is also clear that the Court’s analysis is not – and indeed, need not be – attached to the specific circumstances of the pandemic. Indeed, if we think of the “tampon tax” challenge, for example, one can easily see how the issue of menstrual hygiene – as a continuing concern – is as fundamentally important to the right to health and to equality as is the issue of importing oxygen concentrators to deal with Covid-19. I would suggest, therefore, that the High Court’s reasoning contains the beginnings of a more progressive – and constitutionally more just – approach to the intersection between tax and fundamental rights.

A final point on remedy: the Court refrained from touching the Notification itself, and instead, granted the petitioner relief by reading the term “oxygen concentrator” into separate exemption notifications involving tax exemptions for lifesaving drugs. However, I am not quite sure why this was necessary: would not the purpose have been served equally by simply severing the words “by a State Government or, any entity, relief agency or statutory body, authorised in this regard by any State Government” from the impugned Notification? This would ipso facto have extended the benefit of the exemption, then, to goods “imported free of cost for the purpose of Covid relief”, and would have covered the case of the petitioner.

In any event, the technical quibble aside, the High Court ended its judgment by noting that it was travering “over what was, somewhat, new and uneven terrain.” (paragraph 22) The Court ought to be complimented for doing so judiciously and with wisdom; it is now the task of future benches to chart a further path.

Guest Post: A Critique of the Supreme Court’s Maratha Reservation Judgment – III: The Constitutionality of the 102nd Amendment

[This is a guest post by Vrishank Singhania.]

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In the previous two posts (Part I and Part II), Bhatia discussed the Supreme Court’s holding on the 50% cap and the interpretation of the 102^nd Amendment, in the Maratha Reservation judgement. With regard the interpretation of clause 4 of the 102^nd Amendment, the Supreme Court held that the power to identify socially and educationally backward classes [“SEBCs”] vested solely with the centre, to the exclusion of the states. While Bhatia argues this is an incorrect interpretation, Bhardwaj in response argues that it is correct. In this post, I take as a given the Majority’s interpretation. The next issue that the Supreme Court (specifically the majority) then had to decide was whether, on this interpretation, the 102^nd Amendment was constitutional or not.  

There were two arguments advanced on the issue of the constitutionality of the Amendment. First, given that the Amendment takes away the power of the states to identify SEBCs, it should have been passed in accordance with the proviso to Article 368(2) i.e. it should have been ratified by at least one half of the legislative assemblies of all states. Since this procedure was not followed, the Amendment is unconstitutional. Second, that the Amendment is contrary to the basic feature of federalism. Justice Bhat rejected both of these arguments and upheld the constitutionality of the Amendment. I agree that the Amendment does not fall foul of the Constitution’s basic structure. However, I argue that the Supreme Court erred in its decision on Article 368(2). Assuming the Supreme Court’s interpretation of the 102^nd Amendment is correct, the Amendment is unconstitutional qua Article 368(2). 

This essay has five sections. In the first section, I look at J. Bhat’s reasoning on the applicability of the proviso to Article 368(2). In the second and third sections, I draw out the test for the applicability of the proviso from its purpose and past Supreme Court precedent. In the fourth section, I apply the test determined in the previous sections to the 102^nd Amendment. In the fifth section, I provide a brief analysis of J. Bhat’s reasoning on the basic structure argument. 

I. Bhat J.’s interpretation of Article 368(2)

The power of the Parliament to amend the Constitution is derived from Article 368. Article 368(2) states that –

(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill: 

Provided that if such amendment seeks to make any change in— 

(a) article 54, article 55, article 73, article 162, article 241 or article 279A or 

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI,or 

(c) any of the Lists in the Seventh Schedule, or 

(d) the representation of States in Parliament, or 

(e) the provisions of this article, 

the amendment shall also require to be ratified by the Legislatures of not less than one half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.

Article 368(2) thus provides for two different types of amendments –

1. Amendments to the Constitution pertaining to the parts specified in Article 368(2) sub-sections (a) to (e); and 
2. Amendments to all other parts of the Constitution. 

The second type of amendment has to be passed by a majority in each House of the Parliament. However, the first type of amendment, in addition, also needs to be ratified by the legislatures of not less than one half of the states [as per the Proviso to Article 368(2)]. Thus, Article 368(2) limits the powers of the Parliament to bring about certain types of amendments, and if such procedure is not followed, then the amendment would be unconstitutional. 

As mentioned above, the proviso to Article 368(2) [hereinafter referred to as “the proviso”] applies only when any of the parts or provisions specified in sub-sections (a) to (e) [hereinafter referred to as “specified provisions”] are amended. In the present case, the 102^nd Amendment had not directly amended any of the specified provisions. There are two questions that then arise. First, whether the applicability of the proviso, requires a direct amendment to the specified provisions, or would an indirect amendment, that in effect amends the specified provisions also qualify. Second, if an indirect amendment qualifies, would an incidental effect on the specified provisions also suffice to trigger the proviso.  

J. Bhat does not consider this complexity, and consequently his decision on Article 368(2) is lacking in its reasoning. It is unclear as to what the test for the applicability of the proviso is according to him. However, from my reading of his judgement, the following paragraphs indicate his holding on this issue – 

181. In this regard what is noticeable is that direct amendments to any of the legislative entries in the three lists of the Seventh Schedule to the Constitution requires ratification. Thus, the insertion of substantive provisions that might impact future legislation by the State in an indirect or oblique manner would not necessarily fall afoul of the Constitution for not complying with the procedure spelt out in the proviso to Article 368(2).

182. The majority judgment [in Sajjan Singh], therefore decisively held that an interpretation which hinges on indirect impact of a provision, the amendment of which needs ratification of the states, does not violate the Constitution and that unless the amendment actually deletes or alters any of the Entries in the three lists of the Seventh Schedule, or directly amends an Article for which ratification is necessary, recourse to the proviso to Article 368 (2) was not necessary. 

It would seem that according to J. Bhat, the proviso is triggered only when there is an actual or direct amendment to the specified provisions. However, in paragraph 181 above, he also looks at the impact (or in other words the effect) of the Amendment on the specified provisions. A harmonious reading of these would suggest that according to J. Bhat, unless there is an actual or direct amendment, the impact on the specified provisions would be considered incidental, and thus, the proviso would not apply. This formalist interpretation of Article 368(2), in my opinion, is incorrect. 

In the next two sections, I shall  look at the purpose of the proviso and Supreme Court precedent on its interpretation to argue that – first, a direct amendment is not necessary i.e. that an in effect amendment is sufficient; and second, that the effect cannot be merely incidental. I will then apply the test to the 102^nd Amendment to argue that the proviso is applicable in the present case.

II. Nature of the Amendment – Direct or In Effect?

The first question to be determined is whether the applicability of the proviso requires a direct amendment to the specified provisions, or would an indirect amendment, that in effect amends the specified provisions also suffice. I argue, that based on both the purpose of the proviso and Supreme Court precedent, an in effect amendment would also suffice to trigger the proviso. 

According to Dr. Ambedkar, the purpose of the proviso was as follows – 

If Members of the House who are interested in this matter are to examine the articles that have been put under the proviso, they will find that they refer not merely to the Centre but to the relations between the Centre and the Provinces. We cannot forget the fact that while we have in a large number of cases invaded provincial autonomy, we still intend and have as a matter of fact seen to it that the federal structure of the Constitution remains fundamentally unaltered. We have by our laws given certain rights to provinces, and reserved certain rights to the Centre. We have distributed legislative authority; we have distributed executive authority and we have distributed administrative authority. Obviously to say that even those articles of the Constitution which pertain to the administrative, legislative, financial and other powers, such as the executive powers of the provinces should be made liable to alteration by the Central Parliament…without permitting the provinces or the States to have any voice, is in my judgment altogether nullifying the fundamentals of the Constitution.

As Dr. Ambedkar mentions, the proviso includes provisions that have a bearing on the federal structure of the Constitution, such as the elections of the President, the representation of States in the Parliament, the executive and legislative powers of the States vis-à-vis the Union, and the amending power itself. The purpose of the proviso is to ensure that the Parliament cannot unilaterally amend the federal structure of the Constitution, without the consent of the States. 

A formalist interpretation, such as the one suggested by J. Bhat, would allow the Parliament to in effect alter the federal structure, without directly amending any of the specified provisions. This would defeat the purpose of the proviso. It would also negate the well-established doctrine of colourable legislation – what cannot be done directly cannot also be done indirectly. A purposive interpretation to Article 368(2) has been upheld by the Supreme Court in Sajjan Singh and Kihoto Hollohan – cases which J. Bhat incorrectly relies upon to justify his formalist interpretation. 

Sajjan Singh dealt with the validity of the 17^th Constitutional Amendment which had amended Part III of the Constitution and had taken away the Supreme Court’s and High Court’s power of judicial review with respect to legislations included in the Ninth Schedule. The petitioners argued that this amounted to modifying the High Court’s powers under Article 226 [a specified provision under Article 368(2)(b)] and thus the amendment required ratification by the states. Similar to the present case, the constitutional amendment did not directly amend any of the specified provisions. While the Supreme Court held that the proviso did not apply, it did not confine itself to looking merely at whether the specified provisions had been directly amended. Instead it formulated the test as follows – 

The proviso would apply where the amendment in question seeks to make any change, inter alia, in Article 226, and the question in such a case would be: does the amendment seek to make a change in the provisions of Article 226? The answer to this question would depend upon the effect of the amendment made in the fundamental rights. (Paragraph 8, Gajendragadkar C.J.)

If the effect of the amendment made in the fundamental rights on Article 226 is direct and not incidental and is of a very significant order, different considerations may perhaps arise.” (Paragraph 14, Gajendragadkar C.J.)

Thus, the Supreme Court was concerned with the “effect” of the amendment and not merely the formal provision it amended. 

A similar issue was at stake in Kihoto Hollohan – the Supreme Court had to decide upon the validity of the 52^nd Constitutional Amendment, which had introduced the Tenth Schedule, and in paragraph 7, had taken away the Courts’ power of judicial review in matters of disqualification of a Member of a House. The test formulated by the Supreme Court was as follows –

The test applied was whether the impugned provisions inserted by the constitutional amendment did ‘either in terms or in effect seek to make any change in Article 226 or in Articles 132 and 136’. Thus the change may be either in terms i.e. explicit or in effect in these articles to require ratification. (Paragraph 158, Verma J.).

In this case, similar to the Maratha Reservation case, Article 226 had not been directly amended by the 52^nd Amendment. Nevertheless, the Supreme Court held that paragraph 7 of the Tenth Schedule was unconstitutional because in effect it amended Article 226, but without following the procedure in the proviso. 

It is unclear then as to how J. Bhat arrived at the conclusion that Sajjan Singh and Kihoto Hollohan require a direct or actual amendment, when they clearly held to the contrary. Thus, a direct amendment is not necessary – an in effect amendment can also trigger the proviso.

III. Effect of the Amendment – Does it include incidental effects?

Having established that an in effect amendment can trigger the proviso, the next question, is whether any effect, including incidental effects, are sufficient to trigger the proviso. The Supreme Court in both Sajjan Singh and Kihoto Hollohan held that an incidental effect on a specified provision would not trigger the proviso. The Court justified this decision on the basis of the purpose and structure of Article 368(2). In Sajjan Singh, it held that – 

It is urged that any amendment of the fundamental rights contained in Part III would inevitably affect the powers of the High Court, prescribed by Article 226, and as such, the bill proposing the said amendment cannot fall under the proviso; otherwise the very object of not including Part III under the proviso would be defeated.

Given that the Constitutional provisions do not operate in silos, it is likely that an amendment to a non-specified provision will effect a specified provision, thereby triggering the proviso if every effect was considered sufficient. Thus, a harmonious interpretation of the two parts of Article 368(2) requires that amendments which in their true effect seek to amend non-specified provisions, do not trigger the proviso, merely because of an incidental effect on a specified provision.  

It was this question of incidentality, that distinguishes Sajjan Singh and Kihoto Hollohan. In the former, the Court held that the effect on Article 226 was incidental, whereas in the latter it was held that the effect was not incidental. The determination of whether an effect is incidental is based on which provision the amendment truly purports to effect a change in. As mentioned above, if its true effect is on a non-specified provision, then a mere incidental effect on a specified provision, would not trigger the proviso. 

The Court in Kihoto Hollohan used this test to draw a distinction with the facts of Sajjan Singh – 

159. Distinction has to be drawn between the abridgement or extinction of a right and restriction of the remedy for enforcement of the right. If there is an abridgement or extinction of the right which results in the disappearance of the cause of action…in the absence of which there is no occasion to make a grievance and invoke the subsisting remedy, then the change brought about is in the right and not the remedy. To this situation, Sankari Prasad and Sajjan Singh apply. On the other hand, if the right remains untouched…and, therefore, the cause of action subsists, but the remedy is curtailed or extinguished…then the change made is in the remedy and not in the subsisting right.

According to the Court, in Sajjan Singh, the 17^th Constitutional Amendment’s objective was to amend the fundamental rights in Part III – that is where its true effect was. Its purpose was not to amend the remedy i.e. Article 226 and thus the effect on Article 226 was merely incidental. On the other hand, according to the Court, in Kihoto Hollohan, the true effect of paragraph 7 of the 52^nd Constitutional Amendment was to remove the power of judicial review, and not to change the underlying cause of action itself. The true effect was on the remedy i.e. Article 226 and the thus the effect was not incidental.

Therefore, the determination of incidental effect is not based on the degree of change to the specified provision, but rather on the true effect of the amendment. 

IV. Evaluation of the 102^nd Constitutional Amendment

As mentioned earlier, according to J. Bhat, clause 4 of the 102^nd Constitutional Amendment grants exclusive power to the Centre to identify SEBCs, taking away the power that the States have enjoyed for over seven decades. Applying the two-pronged test for the application of the proviso to Article 368(2), there are two questions that arise – first, whether the Amendment has the effect of amending any of the specified provisions; and second, if it does, is the effect merely incidental. 

In respect of the first prong, I argue that the Amendment has the effect of amending the specified provisions – specifically, the States’ legislative powers under Article 246 and the Seventh Schedule [as specified in sub-clauses (b) and (c) of the proviso] and their executive powers under Article 162 [specified in sub-clause (a) of the proviso].  

Articles 15(4) and 16(4), authorize the “State” to make reservations for SEBCs. According to the Supreme Court in Indra Sawhney, this includes both the Parliament and the State Legislature, as well as the Executive (both Centre and State). However, the question of which authority is competent to provide for reservations in a specific context, is dependent on the legislative competence of the Parliament/Legislature per Article 246. For instance, the regulation of State public services, as per Entry 41, List II, is within the State Legislature’s domain. Thus, the a provision of reservations for SEBCs in the context of State public services, would come within the competence of the State Legislature and not the Parliament. Further, according to Article 162, the State’s executive powers are co-extensive with the State Legislature’s powers. Since the power to regulate State public services belongs to the State Legislature, in the context of executive power, it belongs to the State. 

However, the Amendment takes away both the legislative and executive power of the States to provide for reservations in contexts such as State public services, which before the Amendment had been in their domain as per Article 246 and 162. Thus, even if the Amendment does not directly amend the specified provisions, it does have an effect on them. 

The second prong then is whether this effect is incidental or not. As mentioned above, this requires a determination of which provisions clause 4 of the Amendment truly seeks to effect a change in. To evaluate this, it is useful to compare the 102^nd Amendment to the 93^rd Constitutional Amendment, which inserted Article 15(5), authorizing the “State” to make reservations for SEBCs even in private educational institutions. The 93^rd amendment does have an effect on the powers of States. However, its true purpose was to effect a change in Article 15, and the effect on the states’ powers was merely incidental.  

On the other hand, according to J. Bhat, the true purpose of clause 4 of the 102^nd Amendment could not merely have been to continue status quo and grant constitutional authority to the National Commission for Backward Classes. Instead, per his interpretation the true effect and purpose of clause 4 was to shift the power that hitherto States exercised to the Centre (paragraphs 147-152). Unlike the 93^rd Amendment, the 102^nd Amendment did not seek to effect change in the right in Article 15(4) and 16(4), but sought to effect change in the distribution of powers between the Centre and the States to enforce that right. Thus, the effect on the distribution of legislative and executive powers between the Centre and the States was the main purpose of the Amendment. Therefore, it cannot be said that the Amendment’s effect on Articles 162 and 246 was merely incidental. 

Thus, both prongs of the test are satisfied, and the proviso to Article 368(2) is applicable. However, this does not make the 102^nd Constitutional Amendment unconstitutional as a whole. As was held in Kihoto Hollohan, an amendment is invalid only in so far as it would have required ratification by States under the proviso. In that case for instance, applying the doctrine of severability, the Court held that only paragraph 7 of the Tenth Schedule was unconstitutional. Similarly, in the present case, only clause 4 of the 102^nd Amendment would be unconstitutional. Alternatively, the Supreme Court could, as it does when exercising its powers of judicial review under Article 13, read-down clause 4 and interpret it in a manner that does not trigger the proviso i.e. interpret the Amendment as not taking away the powers of States to identify SEBCs. 

V. Basic Structure Argument

It was argued that the 102^nd Amendment falls foul of the basic structure of the Constitutions in so far as it seeks to change the federal division of powers. However, J. Bhat rejected this argument, holding that – 

187. …the alteration of the content of state legislative power in an oblique and peripheral manner would not constitute a violation of the concept of federalism. It is only if the amendment takes away the very essence of federalism or effectively divests the federal content of the constitution… that the amendment would take away an essential feature or violate the basic structure of the Constitution. 

In my opinion, J. Bhat was correct to hold that the 102^nd Amendment could not have been struck down on the grounds of a basic structure challenge. As Bhatia notes, the threshold for a basic structure challenge is quite high. As held in Nagaraj, a basic structure challenge stands only when the constitutional amendment makes the Constitution unrecognizable – not merely when there has been a change in the Constitution. 

Further, the Constitution itself tolerates changes in the distribution of powers between the Centre and States. This has been explicitly provided for in Article 368(2). Thus, even if the Amendment takes away the power of the States to identify SEBCs, this would not be enough to meet the threshold of a basic structure challenge. 

Conclusion

The proviso to Article 368(2) is a fundamental protection against the unilateral usurpation of power by the Parliament. It goes to heart of the federal structure of our Constitution. It is unfortunate, then, that this issue was treated somewhat cavalierly by the Majority judgement, even though it held that a power hitherto exercised by States for seven decades, had been exclusively taken over by the Centre.  According to J. Bhat, the ratification of States per the proviso to Article 368(2) is necessary only when there is a direct amendment to the specified provisions. This is in my opinion is a dangerous precedent – it allows the Parliament to amend the federal structure of the Constitution by stealth, while seeking shelter in the fact that no direct amendments have been made to the provisions specified in the proviso.This formalist interpretation, is yet another instance of what Bhatia calls the Supreme Court’s anti-federal tradition.

The Supreme Court’s Maratha Reservation Judgment – A Response [Guest Post]

[This is a guest post by Shrutanjaya Bhardwaj.]

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This is a response to Part-II of Gautam Bhatia’s two-part critique of the Supreme Court’s Maratha judgment. In the post being responded to, Bhatia argues that the Court interpreted the provisions of the 102^nd constitutional amendment—mainly Article 342A—wrongly. I will support the Court’s view by rebutting what I believe are Bhatia’s central arguments.

In brief, the issue was as follows. As Bhatia recounts, OBC/SEBC reservations in India have historically had two anchors—Centre (Parliament and President) and States (Legislatures and Governors). Both Centre and States would prepare separate “lists” of backward classes who, in the respective opinions of these authorities, ought to be recognized as OBCs/SEBCs for the purposes of benefits under the Constitution. The two lists had separate purposes. In any given State, only the groups mentioned in the “Central List” would be eligible for reservations etc. in jobs and educational institutions of the Central Government, while only the groups mentioned in the “State List” would be eligible in respect of jobs and colleges of the State Government.

The Maratha judgment put an end to this two-list system. The Court held that the 102^nd constitutional amendment strips States of, and exclusively vests in the Centre, the power to identify SEBCs. The main provision under contest before the Court was Article 342A which reads as under:

“(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the socially and educationally backward classes which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be.

(2) Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.”

According to the Court, this provision mandates exactly the same process for identifying SEBCs which has (admittedly) historically existed for identifying SCs and STs under Articles 341 & 342 respectively—i.e., only President draws up state-wise lists of SCs and STs, and once that is done, only Parliament has the power to amend the lists by adding or removing names. Just as the States have never had a role in designating groups as SCs or STs, they now have no role in designated groups as SEBCs.

Bhatia makes three broad arguments to oppose the Court’s conclusion. The first and main argument, which I shall respond to in this piece, is a textual argument which goes thus. Article 342A doesn’t say that the process it prescribes shall be “the sole process” of identifying SEBCs. In fact, the use of the phrase “Central List” in Article 342A(2)—a marked departure from the simpliciter “list” appearing in the analogous Articles 341(2) and 342(2)—shows that the list prepared by President under Article 342A is not to be the sole list of SEBCs. The President is to only draw the “Central List”; States are free to independently identify SEBCs and accordingly draw their own “State Lists”. Article 342A, thus, is “limited in its operation to the existing process only at the central level”. It follows that States still have the power to identify SEBCs parallelly, which power exists outside of Article 342A and remains unaffected by the 102^nd amendment.

[For the sake of completeness, let me also state the two arguments I will not address. The first is that if the text of Article 342A is ambiguous, external aids of interpretation like parliamentary committee reports and “repeated assurances” by the relevant Ministry/Minister should have been relied on. The second is that if Article 342A is capable of two interpretations, the Court should have favoured the interpretation which advances federalism—a component of the basic structure—and preserves the States’ power to identify SEBCs.]

Plain Meaning

Textual interpretation of a provision must always start with its plain grammatical meaning. The text of Article 342A(1) reveals that the President may specify, with respect to any State, “the” groups which shall “for the purposes of the Constitution” be deemed as SEBCs “in relation to that State”. In Bhatia’s reading, this provision doesn’t say that the Presidential List shall be the sole list of SEBCs, or that this process shall be the sole process of identification of SEBCs. With respect, it says exactly that.

Most important for this debate is the word “the” occurring in Article 342A(1) right after the word “specify”. This seemingly innocuous article, known as the “definite” article, when used before the plural form of a noun, usually refers to an exhaustive or definite set of objects described by that noun. To take some examples from English language, it should be obvious that “list the items we need to buy” means list all such items, “list the students who are to be designated as class monitors” means list all such students, and “list the books that need to be procured for the library” means list all such books. Similarly, when Article 342A(1) empowers the President to specify “the” groups which shall “for the purposes of the Constitution” be deemed as SEBCs “in relation to that State”, the plain meaning rule dictates that the President will specify all such groups. The corollary is that the possibility of States being able to specify other groups is not left open by Article 342A(1).

If Parliament truly intended to preserve the States’ powers, nothing prevented more words from being added into the Article. For instance, instead of saying that the Presidential List shall define SEBCs “in relation to that State”, Parliament could have said “in relation to employment and education under the Central Government in that State”. Alternatively, Parliament could have added an explanation in Article 342A to the effect that nothing in this Article shall prevent the State Governments from preparing their own lists of SEBCs. But Parliament chose to say none of that. All that has been said is that President shall draw for every State a list of “the” groups which shall be deemed to be SEBCs “for the purposes of the Constitution” and “in relation to that State”. Absent any further qualifications, the inescapable conclusion is that Article 342A(1) exhaustively covers the subject-matter of identification of SEBCs for the purposes of the Constitution.

“Central List”

The isolated phrase “Central List” occurring in Article 342A(2) cannot alone make a difference to the above reading. Some of the things Bhatia says about this phrase are undoubtedly correct, but don’t take us very far. Yes, the phrase “Central List” is somewhat vague if not seen in its historical context. Yes, the Presidential List under Article 342A(1) is conceptually the same Central List that was being prepared by the Central Government before the 102^nd amendment. But none of this implies that clause (2) contemplates or authorizes State Lists. Contrary to what Bhatia suggests, the phrase “Central List” could simply be there for abundant caution, or to make it doubly clear that henceforth there will only be a Central List.

There is good reason to prefer the second interpretation. Under settled rules of interpretation, courts must not readily assume that Parliament enacted conflicting provisions, and must try to read the provisions harmoniously so as to avoid any conflict. Bhatia’s interpretation implies that clause (2) conflicts with clause (1)—as explained above, clause (1) categorically excludes the possibility of States identifying any SEBCs, while Bhatia’s reading of clause (2) suggests the opposite. Such a conflict can be avoided by adopting the other interpretation, i.e., the phrase “Central List” in clause (2) only reinforces the idea that only the historical “Central List” shall exist while the historical “State Lists” shall stand abolished. This is also the interpretation that the majority of the Court adopted, in my view rightly.

But Bhatia rejects it; he argues that the two-list regime is so significant that its invalidation can only be done expressly. This applies even to the sovereign Parliament exercising its constituent power. He argues that if Parliament wanted to “drastic[ally]” change the historical two-list arrangement, it would have done so “in express terms, and not by implication”. Therefore, absent express words of invalidation, Article 342A(1) should be interpreted as having left the State Lists untouched.

This line of reasoning is erroneous in my view. The doctrinal question here is: When Parliament introduces a regime/scheme into the Constitution for the first time, should we presume—unless a contrary indication exists—that Parliament has defined the regime/scheme exhaustively? Respectfully, the answer is that we should. This is not only logically the correct approach (why would Parliament mysteriously leave some part unsaid?) but also a cemented principle of interpretation. Expressum facit cessare tacitum, i.e., the express mention of one thing implies the exclusion of other things. Stated differently, “expression precludes implication” (e.g., see CCI v. SAIL). Contrary to Bhatia’s argument, this maxim allows Parliament to impliedly exclude certain things simply by expressly including certain other things. Hence, once Parliament has laid out a process of identification of SEBCs “for the purposes of this Constitution”, and has said nothing about any other process by which SEBCs can be identified, the assumption should be that the ‘field’ of identification of SEBCs is now occupied by Article 342A and excludes any other processes of identification.

The Definition Clause: Article 366(26C)

If any doubt were still left, a bare reading of Article 366(26C) would cure it. This provision, also inserted via the 102^nd amendment, contains the definition of ‘SEBCs’:

366. In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say—

…

(26C) “socially and educationally backward classes” means such backward classes as are so deemed under article 342A for the purposes of this Constitution;

Bhatia argues that this provision has no bearing on the issue: “we don’t know what the definitions clause actually refers to until we have first interpreted Article 342A autonomously.” Since he believes that Article 342A “itself contemplates separate powers for the centre and the state in identifying SEBCs”, he suggests that Article 366(26C) too—automatically—treats the classes mentioned in both Central and State lists as SEBCs.

This argument proceeds on a misreading of Article 366(26C). The clause doesn’t define SEBCs as the classes contemplated by Article 342A, or those merely permitted by that provision to be designated as SEBCs. Rather, SEBCs are defined as classes that are “deemed under article 342A” to be SEBCs “for the purposes of this Constitution”. This is an unmistakable reference to the deeming provision in clause (1)—and clause (1) alone—of Article 342A, which provides that the groups specified by President shall “for the purposes of this Constitution be deemed to be socially and educationally backward classes…”. Even if Bhatia’s argument about the meaning of “Central List” is accepted, the sequitur being that States still retain the power to draw up their own State Lists, it’d be a stretch to argue that SEBCs mentioned in the State Lists are “so deemed under article 342A for the purposes of this Constitution”. Even if there were any deeming, it would be under the relevant State legislation authorizing the creation of State Lists, and not under Article 342A. [This also shows that Bhatia’s argument is self-defeating: it is his stand that Article 342A(1) refers only to the Central List.]

Thus, the clear meaning of Articles 342A & 366(26C) is that throughout the Constitution, the phrase ‘SEBCs’ shall refer only to the Presidential List drawn under Article 342A(1). This shall be so irrespective of the parallel existence of State Lists framed under State laws, even assuming arguendo that such lists can be prepared.

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[Note: Since I was in the team of lawyers representing the Petitioners in this case, readers may take my views with a grain of salt. I am grateful to Ayush Baheti for his inputs.]

Guest Post: Concerns Around the Tribunals Reform Ordinance

[This is a guest post by Shubhansh Thakur.]

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Tribunals were introduced into our justice dispensation system with the expectation to ease the burden of the traditional courts by bestowing upon them the jurisdiction to deal with certain specified matters. Certainly, it turns out that they have attained a prominent place in the adjudication of statutory rights and liabilities. The genesis of these tribunals can be traced to Articles 323A and 323B, where the former provides for the establishment of administrative tribunals as the parliament may by law provide, while the latter authorises the establishment of other tribunals falling within the subject matter specified in the second clause. The legislature has, in the exercise of its authority, established numerous tribunals to date for adjudication of several subject matter-specific disputes and correspondingly made convoluted attempts to encroach upon the independent functioning of these tribunals. One such attempt of the legislature will form the subject matter of this post: the recently promulgated “The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021” (“Ordinance”) amending the Finance Act,2017 (“Act”).

The Ordinance among other things has amended Section 184 of the Act dealing with the qualification and appointment of Chairperson and other members of the tribunal. To give a broad overview, the said section is the result of various directions rendered by the Supreme Court (“SC”) in the course of thwarting legislative attempts to retain control over the appointment for tribunals. On an overt reading of the amended section, the legislature seems to follow what has been laid by the SC but the detailed scrutiny indicates to the contrary. Here, I shall delve upon those details to highlight the dichotomy.

Initially, I shall set the background by discussing the major decisions of the court which have culminated in the Ordinance. Against this backdrop, I will argue that the Ordinance does little to solve the already existing issues, and creates scope for the creation of new ones. The Ordinance as a whole shows the need for the SC to revisit its theory of “the casting vote to CJI” as a sole means to ensure judicial dominance. The Ordinance violates several directions of the SC, but I shall restrict myself to the composition of the committee responsible for making appointments to tribunals and its impact on the primacy of the judiciary.

BACKGROUND

Before moving on to the substantive parts of the Ordinance, it is necessary to take a bird’s-eye view of the long-drawn litigation around appointments to these tribunals. The controversy erupted from the case of S.P. Sampath Kumar v. Union of India, where the ‘Administrative Tribunals Act, 1985’ was challenged. The court struck down Sec.6(1)(c) of the impugned Act, which made civil servants eligible for appointment as Chairman in these tribunals. The court saw these tribunals as complete substitutes for the HCs and thus viewed the chairman as akin to a High Court (“HC”) judge and held that such posts must be acquired by a person of proven competence with experience in the legal background, like retired HC judges. The court believed public trust and confidence would be breached if civil servants without any legal experience in fair adjudication would be left to decide the disputes. Another provision conferring exclusive discretion with the government for appointments to tribunals was also held to be unconstitutional for the reason that the government cannot have an unfettered discretion in appointing members to tribunals which are akin to HC. The court recommended alternative approaches to overcome executive control i.e. either to consult the CJI before making an appointment to these tribunals (and no appointment should be made over his/her disagreement unless for cogent reasons), or to form a high powered committee headed by the CJI, or another SC judge, or an HC judge as a nominee of the CJI, to select appointees. 

Thereafter, in L. Chandra Kumar v. Union of India, the appointment of administrative members to tribunals was challenged for their non-expertise in fair adjudication. The court annulled those challenges and noted that blanket removal of such members would strike at the very idea behind the establishment of tribunals, which were envisioned as specialised bodies where trained administrators with grass-root experience will pool in their subject-specific knowledge with the judicial members (“JM”) to reach a fair and reasoned decision. The court, by overruling the view in Sampath Kumar, held these tribunals to be supplemental to the existing HC rather than acting as their substitutes. Moreover, the decisions of the tribunals were held to be reviewable by a division bench of the HC (¶93). The court also believed that a committee headed by the CJI would ensure the recommendation of competent administrative members.

In 2010, part I-C and I-D of the Companies Act,1956 were challenged in the case of Union of India v. R. Gandhi (“R Gandhi”). The impugned parts authorised the transfer of cases from several courts to tribunals arising out of the Companies Act. The SC repelled those challenges and upheld the competence of the legislature to transfer the matters from courts to tribunals and to prescribe the eligibility criteria for appointees. However, such eligibility criteria were held to be alterable by the courts as a part of judicial review to make them comply with the independence of tribunals. The court also altered the composition of the committee responsible for appointments in tribunals due to the absence of members from judicial wing. The government was directed to include two members from the judiciary, consisting of CJI or his nominee, and any other SC or HC judge to be nominated by CJI, apart from two members from the executive wing. In the case of Madras Bar Assn. v. Union of India (“NTT case”), the aforementioned principles were reiterated to quash the formation of the National Tax Tribunal to substitute the HC, without having the salient features of a HC (¶128). 

Then came the recent case of Rojer Mathew v. South Indian Bank (“Rojer Mathew”), wherein the provisions contained under Section 184 of the Act (which has been now amended) and rules framed thereunder were challenged on the ground of excessive delegation and as being contradictory to the previous directions of SC. The SC upheld Sec. 184 but the committee responsible for recommending appointees to these tribunals was overruled since the role of the judiciary in the committee was absent except for virtual representation. The court directed the government to include members from judiciary on the lines of the Gandhi Case. The court by relying upon the fourth judges’ case also observed:

“We are in complete agreement with the analogy elucidated by the Constitution Bench in Fourth Judges case [SC Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1] for compulsory need for exclusion of control of the executive over quasi-judicial bodies of tribunals discharging responsibilities akin to courts.”

This exclusion of executive control as per the fourth judges case is a means to preserve the independence of judiciary (¶921). The primacy of the judiciary in appointment includes two elements i.e. initiation and finalisation of the names to be appointed (¶1071 of fourth judges case). The primacy is rendered to the judiciary because (or so these judgments argue) it is best suited to judge the competence of the appointees in comparison to the government, which is certainly not better qualified or equipped to do so. It is for this reasoning that the government cannot reject the names recommended by judiciary (¶692) for appointments in HC and SC. Applying these principles, the role of judiciary in tribunal appointment should also be as imperative as in judicial appointments, especially when the SC has acquiesced to the principles in fourth judges case. This premise will be used subsequently while dealing with the Ordinance.

ANALYSIS

Vexatious Provisions

Sec. 184 (3) of the Ordinance lays down the composition of the Search-cum-Selection Committee (“Committee”), which will recommend the names to the government for appointments to be made in the Tribunals mentioned in the Eighth Schedule of the Act. This Committee will consist of (i) CJI or any other judge of the SC nominated by CJI, as the Chairperson with a Casting Vote; (ii) two Secretaries, to be nominated by the government; (iii) one other member who will vary depending upon the Tribunal and post concerned. Such a member for the appointment of a new chairperson will be the outgoing chairperson of the Tribunal while in cases of an existing chairperson seeking re-appointment, a retired HC or SC judge is to be nominated by the CJI. Moreover, if the appointments relate to the Industrial Tribunal, Debt Recovery Tribunal or in a case where the chairperson to be appointed is not a retired judge of an HC or SC (usually a technical member) or for any other notified tribunal, the fourth member in the committee will necessarily be a retired HC or SC judge, to be nominated by the CJI. All the aforementioned members of the committee will have voting power. Additionally, the Committee will also have a Secretary from the concerned department or ministry, under which the Tribunal has been constituted, who will act as a convenor, without voting authority. 

Broadly speaking, the Committee will include the CJI or her nominee as the sole representative of the judiciary, while others include outgoing members of the tribunal or the retired judge of SC or HC along with a couple of representatives from the executive wing. While the composition per se may not appear to be troublesome, it becomes so when seen in conjunction with other provisions of the Ordinance. One such provision is Sec.184(8) which grants immunity to appointments from being declared invalid merely due to the absence of a member or a vacancy in the Committee (“vacancy provision”). 

Thus, applying the principles of the Fourth Judges’ case as accepted in Rojer Mathew, primacy must be rendered to the opinion of the judiciary (which includes initiation and finalisation of names). Since the Committee has a sole representative from the judiciary, its role is pervasive and imperative. Any appointment made in defiance to the opinion of such a representative will defy primacy to the opinion of the judiciary, which cannot withstand constitutional scrutiny. It is also essential to point out that the appointees also include technical members, who are usually retired Civil Servants and whose competency can be best judged by the government and not the judiciary. The government can certainly recommend the person to be appointed, however, that advice will have to be approved by the representative of the judiciary before the name can be initiated and mulled in the committee.

However, there can be two situations where the role of CJI/its nominee is at the risk of being undermined due to vacancy provision. The two situations have been discussed below:

Situation I– When the CJI/its nominee due to some contingency could not attend the committee meeting and a name has been recommended for appointment.

At the outset, it is essential to point out that the subsections do not prescribe a valid quorum for a committee meeting; instead, immunity is granted via vacancy provision to appointments made in the absence of members. However, while the Committee is free to frame its procedure, this power cannot be extended for prescribing a valid quorum for the meeting as the same would stand to nullify the effect of the vacancy provision. In other words, such a rule of procedure, if framed, would be ultra vires the parent legislation and hence invalid.

Thus, a valid quorum in the absence of a rule/provision fixing the quorum will be governed by the case of Ishwar Chandra v. Satyanarain. The SC, in this case, has held that a meeting of a committee will be valid as long as the majority of the members are present in the meeting. This majority has been interpreted to mean the majority of the members possessing voting power, which in the scenario under discussion adds to 3 [i.e. half of total plus one (4/2+1)].

A conjoint reading of the aforementioned paragraphs goes on to show that a meeting can be held to be valid even in the absence of the CJI and the recommendation made in the meeting will remain unaffected due to vacancy provision.  In such a case, consultation with the CJI can be avoided altogether, let alone the aspect of primacy to her opinion.

Situation II– When the CJI has attended the meeting but does not agree to a particular proposal while other members do.

It would also not be an unlikely scenario to imagine that the CJI does not agree to a particular proposal for an appointment, while the other three members of the Committee may. In such a case, can the appointment be held to be valid? Unfortunately, based on the Ordinance, the answer is in the affirmative. In such a case, Casting Vote will do no good because it cannot be exercised unless there is a deadlock in the Committee concerning a particular proposal.

The primacy of the judiciary in these appointments cannot be ensured unless a particular proposal receives the concurrence of CJI along with the rest of the members. This is because she/he is the sole representative of the judiciary and best suited to judge the competence of the appointees for their effective and independent discharge of functions. The primacy will be completely vitiated when a name is recommended to the disagreement of CJI and Casting Vote does nothing to make up for such disagreement. 

Escaping the Constitutional Safeguards

The importance of consultation with the CJI (as a representative of the Judiciary) and its opinion can also be understood by drawing an analogy with the appointment process of traditional courts, which are sought to be replaced by Tribunals. The Committee is primarily responsible to recommend names for appointment in the Scheduled Tribunals. These Tribunals can be bifurcated into those which are established to replace the subordinate courts exercising original jurisdiction while others include Appellate Tribunals established to supplement the supervisory jurisdiction of HC. In both of these courts, a duty to consult the judiciary has been provided for before an appointment is made by the Governor or President, as the case may be. In appointment to subordinate courts, consultation has to take place with the HC (Art.233) while in the case of appointment to HC, consultation has to be made with the CJI and CJ of HC (Art.217). It is vital to mention that the advice tendered as a result of such consultation process is binding on the government (¶133 of Fourth Judges case). When the Tribunals sought to replace/supplement the traditional courts and perform their jobs (except which the Constitutional Courts have been specifically authorised to do), safeguards in appointment imbibed in the traditional set-up must also be carried forward to the Tribunals. Therefore, consultation with the judiciary cannot be compromised and the advice so tendered as a result of the consultation will have to be adhered to by the government. If this safeguard is not carried forward, the appointments to the Tribunals will provide an indirect route to the government for interfering in judicial appointments, something that the executive has been barred from doing. 

This, however, cannot be achieved with an Ordinance where a mere Casting Vote has been conferred to the CJI. Additionally, the incorporation of vacancy provision would certainly make non-consultation with the CJI in appointments a possibility, if not a certainty. 

Executive Discretion in Finalisation of Names

Apart from this, the government has also kept to itself the power to take a final call on the appointments to be made. This has been done by employing Sec.184(7), wherein the Committee is required to recommend a panel of two names for the government to choose from within three months. It is pertinent to point out that this section has been brought to overrule the judgement of Madras Bar Assn., wherein a rule of like nature has been quashed by the SC (¶53(iii)). The court had explicitly directed the government to limit the recommendation to a single name while keeping the other person waitlisted, to be recommended if the previously recommended name has not been approved by the Intelligence Bureau. The SC’s direction is also intending to preserve the primacy rendered to the opinion of the judiciary, of which finalisation of the name to be appointed is an integral part. The executive by this has made yet another attempt to impinge upon the task exclusively reserved for the judiciary. Hence, this provision violates the primacy of the judiciary in such appointments and abridges separation of power forming part of the basic structure of the Constitution, which cannot be abridged even in the cases of ordinary legislation. 

WHAT NEEDS TO BE CORRECTED

As reflected above, therefore, the conferment of Casting Vote alone will not ensure judicial dominance in line with the principles laid down in the Fourth Judges’ case. Rather, a veto must lie with the CJI to overturn the Committee’s decision, to make primacy to the opinion of the judiciary meaningful in such appointments. This veto power will at all times be guarded with judicial review, giving the aggrieved party a remedy for overturning it, when exercised arbitrarily. If this cannot be done, then the court must issue a writ of mandamus and direct the government to replace or supplement the vacancy provision with a proviso that a meeting cannot be valid unless the CJI is present in the meeting and an appointment in the absence and without the concurrence of the CJI shall be null and void. Apart from this, the court is expected to strike down the provision where the government has kept to itself the power to take a final call on the names to be appointed and reiterate its previous direction of limiting the recommendation by the Committee to a single name to exclude executive discretion in such appointments.

CONCLUSION

The court has to appreciate the distinction between the existence of an SC judge and an HC judge as against a retired member of the judiciary. The latter cannot be considered to be a representative of the judiciary, even if nominated by the CJI. The purpose is not merely judicial dominance, but primacy to the opinion of presently serving judiciary to ensure independence and competence of these members and the Tribunals as a whole. With these shortcomings in the present system and continuous reluctance on the part of the government to accept the already laid down directions, the time is ripe for the formation of the National Tribunal Commission (“NTC”) to oversee the administrative requirements and appointments to Tribunals. NTC has been discussed at length in Rojer Mathew(¶343), to liberate Tribunal appointments from executive menace. 

NTC will include- three serving judges of the SC along with two serving HC judges, all of them to be nominated by the CJI. The others include two members to be nominated by the government while two experts will be appointed by the government in consultation with the CJI. NTC is sufficiently safeguarded as against the present set-up because the judiciary will be represented by five serving judges in a nine-membered committee. The CJI will also have a role to play in the appointment of experts, leaving the executive representation to a meagre two in a nine-membered committee. Such a majority of the judicial members will ipso facto ensure effective consultation among judicial members and there will always be a couple of members from the judiciary to make its representation in any valid meeting. The government must distance itself from judicial appointments as their role is limited to serve as a system of checks and balances and not to drive and control the entire process. 

The Ordinance has already been challenged on several other grounds and one can only expect that the Apex court will reassess its Casting Vote theory and examine the impact of vacancy provision in its adjudication, in order to preserve the public trust in the judicial system.

Notes From a Foreign Field: An Instant Classic – The Kenyan High Court’s BBI Judgment

On 13th May, the Constitutional and Human Rights Division of the High Court of Kenya handed down its judgment in David Ndii and Ors vs The Attorney General and Ors. [“the BBI Judgment”]. Through the course of this judgment, the Court examined a fascinatingly broad range of issues, including the question of whether the Kenyan Constitution of 2010 has an un-amendable “basic structure”, the extent and limits of public participation in law-making, and political representation and the alteration of constituencies. For this reason, and for the clarity of its analysis, the BBI Judgment is a landmark judicial verdict that will be studied by students of constitutional law across the world, in the days to come.

The Context

The primary issue in the BBI judgment involved a set of contentious proposals to amend the Kenyan Constitution. After winning power in 2017, in a controversial general election (the results were set aside by the Supreme Court the first time, and the Opposition boycotted the rerun), Kenyan President Uhuru Kenyatta created a “Building Bridges to Unity Taskforce” [“BBI Taskforce”], which was mandated to come up with “recommendations and proposals for building a lasting unity in the country.” After the BBI Taskforce submitted its report, the President appointed a sixteen-member “BBI Steering Committee”, whose terms of reference included “administrative, policy, statutory or constitutional changes that may be necessary for the implementation of the recommendations contained in the Taskforce Report.” The Steering Committee’s report finally turned into a Bill for bringing about wide-ranging amendments to the Kenyan Constitution [“The Constitution of Kenya Amendment Bill, 2020].

Under Article 257 of the Kenyan Constitution, one of the ways to amend the Constitution is by “Popular Initiative”, which requires – as a starting point – the signatures of one million registered voters (Article 257(1)). Consequently, the BBI Secretariat commenced the process of gathering signatures. At this point, the entire process – as a whole, as well as its component parts – was challenged before the High Court, through a number of petitions. All these petitions were consolidated, and the High Court eventually struck down the whole of the BBI process as unconstitutional.

The Court framed a total of seventeen issues for disposal.

The Basic Structure

As the challenges were to (proposed) constitutional amendments, at the outset, the High Court was called upon to answer a crucial – preliminary – question: was there any part of the Kenyan Constitution that was un-amendable, i.e., beyond the amendment processes set out in the Constitution itself (the “basic structure” question).

The Constitutional Provisions

To understand this better, let us briefly consider Articles 255 – 257 of the Kenyan Constitution, that deal with constitutional amendments. Articles 256 and 257 set out two methods of amending the Constitution: through Parliament, and through Popular Initiative. The Parliamentary Process is contained in Article 256, which requires amendments to be passed by a two-thirds majority of both Houses of Parliament. The Popular Initiative process is contained in Article 257. It requires the signature of one million registered voters, followed by a range of procedural and substantive steps, such as certification by the Independent Electoral and Boundaries Commission [“IEBC”], approval by a majority of county assemblies, and approval by a majority in both Houses of Parliament (failing which, the proposal can be put to a referendum).

Article 255 of the Kenyan Constitution places a further requirement for certain kinds of amendments. If an amendment falls into one of ten categories set out in Article 255(1) (including Kenyan territory, the Bill of Rights, Presidential terms etc.), then in addition to the processes described in the previous paragraph, it must also be approved in a referendum, by simple majority (and certain quorum rules). A perusal of the categories under Article 255(1) reveals – unsurprisingly – that they pertain to core structural issues, and are therefore deemed more important (in a way), or – dare we say it – more basic than the other constitutional provisions.

The text of the Kenyan Constitution, therefore, sets out two processes of amendment: Parliament (Article 256) and People and Parliament (Article 257); it also divides the Constitution into two sets of provisions: those that can only be amended following a referendum, and those that do not need a referendum (Article 255). The key question in the BBI Judgment was whether Articles 255 – 257 were exhaustive when it came to constitutional amendments, or whether there was a third set of provisions that could not be amended even if the scheme under these articles was scrupulously followed.

The History

To answer this question, the High Court embarked upon a detailed analysis of Kenyan constitutional history. It noted that if there was one thing that was a defining feature of the 2010 Constitution, it was that it was meant to serve as a “model … of participatory constitution building process.” (para 402) This meant that the public was meant to be involved with every step of the Constitution-making process, as opposed to the “20th century model”, where Constitutions drafted by experts were submitted for public approval, giving the people a say over only the final version (para 403).

Indeed, the 2010 Constitution – the Court argued – was designed to respond to two sets of pathologies that had plagued Kenyan constitutionalism in its previous iterations (starting from Independence in 1963). The first was a “culture of hyper-amendment” (para 406), where Presidents amended Constitutions with such ease and such frequency, that the document became little more than a “hollow shell”, creating a raft of “Constitutions without constitutionalism” (para 407).* This was especially true in the 1970s and 1980s, when Kenya effectively became a one-party State, and this was at the heart of demands for constitutional reform when multi-party democracy returned in 1991.

The second piece of constitutional history that culminated in the 2010 document was a two-decade emphasis on a citizen-led process. The High Court’s account of this history – starting at para 411 of the judgment – is deeply fascinating, and repays careful study. Despite strong pushback from the political executive – with the President sarcastically asking “What does Wanjiku [i.e. the common Kenyan] know about the Constitution?” (para 413), efforts to centre the citizen in the Constitution-making process remained undeterred. The Constitution of Kenya Review Act of 1997 specified that constitutional review had to be “by the people of Kenya” (para 415), and went on to provide a framework for public participation – insulated from legislative and executive interference – at every stage of the drafting process (para 420). The Constitution of Kenya Review Commission [“the CKRC”] implemented this at the ground level through a sequential process that involved civic education, research, public consultation, preparing the draft bill, and considering the Commissioners’ Report (para 425). After a long process that included considering more than 35,000 submissions from the people, a draft Constitution was prepared by 2002. This process was, however, short-circuited when the then-President Moi dissolved Parliament before the 2002 general election (para 427).

In the 2002 elections, however, President Moi lost power, and the opposition coalition that entered into government committed to continuing with the constitutional process. After further consultations, a draft called “the Bomas Draft” was prepared; however, the government attempted to significantly alter the draft through a non-participatory Parliamentary process that resulted in a fresh document called “the Wako Draft.” Attempts to force through the Wako Draft were forestalled when the High Court of Kenya, in 2004, famously held that the draft would have to be put to a referendum; in 2005, when the referendum did take place, the Wako Draft was voted down 58-42 (paragraph 433).

Constitutional reform came back onto the table after the large-scale violence in the aftermath of the 2007 Kenyan election, which needed international mediation (paragraph 435). The legal framework for this was provided by the 2008 Constitution of Kenya Review Act, which again placed public participation at the centre (although its implementation in this regard was criticised). On 4th August 2010, the new draft Constitution was passed with 68.55% of Kenyans voting in its favour (paragraph 450).

The Analysis

Relying upon this constitutional history – i.e., the pathologies of hyper-amendments and the two-decades-long struggle for public participation – the High Court concluded that “these principles of interpretation, applied to the question at hand, yield the conclusion that Kenyans intended to protect the Basic Structure of the Constitution they bequeathed to themselves in 2010 from destruction through gradual amendments.” (para 469) This was buttressed by the fact that the Wako draft – which did not respect the principle of public participation – had been voted down by the Kenyan people. Over the course of the years, it had become clear that participation – in the Constitution-making process – required four distinct steps:

a) Civic education to equip people with sufficient information to meaningfully participate in the constitution-making process;

b) Public participation in which the people – after civic education – give their views about the issues;

c) Debate, consultations and public discourse to channel and shape the issues through representatives elected specifically for purposes of constitution-making in a Constituent Assembly; and

d) Referendum to endorse or ratify the Draft Constitution. (para 469)

The Court thus found:

What we can glean from the insistence on these four processes in the history of our constitution-making is that Kenyans intended that the constitutional order that they so painstakingly made would only be fundamentally altered or re-made through a similarly informed and participatory process. It is clear that Kenyans intended that each of the four steps in constitution-making would be necessary before they denatured or replaced the social contract they bequeathed themselves in the form of Constitution of Kenya, 2010. (para 470)

The Court labeled this the “primary Constituent power” – i.e., the power possessed by the People themselves, as a constituent body – as opposed to the “secondary constituent power” (the Popular Initiative + Referendum process under Articles 255 and 257) and the “constituted power” (amendment only by Parliament under Article 256) (para 472). The “primary Constituent power” was located outside of the Constitution’s amendment provisions, and was plenary and unlimited; it followed that there were substantive limitations upon the which amendments secondary constituent power or the constituted power could bring about: such amendments could not “destroy the basic structure of the Kenyan Constitution”, because that right – i.e., to make or radically alter the fundamentals of a Constitution – lay only with the primary Constituent power, i.e., with “the People.” (paragraph 474)

Thus, while the High Court affirmed the basic structure doctrine in the Kenyan context, it also went one step beyond. In its classical iteration, the basic structure stops at saying that constitutional amendments cannot damage or destroy the basic structure. It hints at the possibility that such alterations can be brought about only through revolution or by a complete destruction of the existing order, but – for obvious reasons – does not spell that out. The assumption is that if a Constitution is to be replaced altogether, then it can only be done extra-constitutionally – and presumably through great revolutionary upheaval. The Kenyan High Court on the other hand – drawing from Kenyan history – spelt out a concrete, four-step process that could be resorted to if the People did want to change the basic structure of the Kenyan Constitution. There is, of course, an interesting question: now that the Court – a body that owes its own existence to the 2010 Constitution – has spelt out the process, is it “extra-Constitutional” in any genuine sense? Or is it simply a third kind of amendment process that owes its existence solely to the judiciary? This is no doubt a debate that will be joined intensely, both in Kenya and elsewhere, in the days to come.

It is nonetheless important to note, therefore, that the High Court did not actually hold that any provision or principle of the Constitution is entirely un-amendable (the default position under classical basic structure doctrine). Every constitutional provision is hypothetically amendable, but some – that the Court called “eternity clauses”, borrowing form Germany – can only be amended by “recalling the Primary Constituent Power“, in accordance with the four-step process that the Court set out. As is now familiar to students of the basic structure, the Court declined to set out an “exhaustive list” of eternity clauses, noting only that this would have to be determined on a case-to-case basis (para 474), while providing illustrative examples: constitutional supremacy, the role of international law on the one hand (eternity clauses), and the number of constituencies on the other (not an eternity clause).

A final point: it is particularly fascinating to note that the High Court derived its articulation of the basic structure not from a textual interpretation of the word “amend”, or from structural arguments about implied limitations, but from Kenyan social history. Its entire analysis was focused on how Kenyans struggled for – and won – the right to public participation in constitution-making, and that was the basis for holding that the core of the Constitution could not be altered without going back to the People. A crucial argument of transformative constitutionalism is that constitutional interpretation needs to work with an expanded interpretive canon, which centres people – and social movements – in its understanding of constitutional meaning. The High Court’s judgment is an example par excellence of transformative constitutionalism grounded in radical social history.

The Popular Initiative and the BBI Process

A second key issue that fell for determination was the exact meaning of Article 257(1) of the Kenyan Constitution. Article 257(1) states that “an amendment to this Constitution may be proposed by a popular initiative signed by at least one million registered voters.” The BBI Taskforce and Steering Committee, however, had been set up by the President. Consequently, was it legal for it to start gathering the one million signatures needed for triggering amendment by Popular Initiative?

The High Court held that it was not. Going back to the constitutional history outlined above, it held that through multiple iterations of constitutional drafts, it had been clear that the intent of the provision that finally became Article 257(1) was that the power to initiate a constitutional amendment lie in the hands of voters. (para 481) Here, the President’s direct involvement – including establishing the Taskforce and Steering Committee through gazette notifications – made it clear that the amendment bill had not been initiated by the voters (para 491). This was also impermissible because the scheme of 257 made the President the adjudicating authority of whether or not a referendum was to take place – thus making that authority both the “player and the umpire in the same match” (para 492), if he was also allowed to initiate proceedings. Thus, as the Court summed up:

It is our view that a Popular Initiative being a process of participatory democracy that empowers the ordinary citizenry to propose constitutional amendment independent of the law making power of the governing body cannot be undertaken by the President or State Organs under any guise. It was inserted in the Constitution to give meaning to the principles of sovereignty based on historical past where the reservation of the power of amendment of the Constitution to the elite few was abused in order to satisfy their own interests. (para 497)

While I find this clear and persuasive, it is – I think – an open question about how effective this part of the ruling will be. One can imagine all too easily how – without further safeguards and judicial good sense – such rulings can be subverted through use of proxies as “initiators” of the process. Whether or not that plays out in the future will be interesting to see.

In this case, however, it meant that the BBI Process – insofar as it contemplated the Steering Committee recommending “constitutional changes” as part of its terms of reference – was illegal (para 553). An executive-led amending process was unknown to the Constitution: it had to be Parliament (Article 256) or People and Parliament (Article 257).**

The Court also found the BBI Process to be unlawful for another reason – it violated Article 10’s requirement of public participation in law-making. Over the years, the Kenyan judiciary has developed a rich and substantive jurisprudence around public participation under Article 10 (readers will recall similar arguments being made before the Supreme Court of India in the Central Vista Case), that requires meaningful participation, and all that it entails (intelligibility, enough time, substantive exchange of views etc.). Here, however, the Court found a very straightforward violation: the Constitutional Amendment Bill had been made available only in English, whereas Kiswahili and Braille were constitutionally-mandated languages (readers will recall a similar issue about changes to Indian environmental legislation, that were made available only in English). Thus the Court held:

The copies also ought to have been made available in other communication formats and technologies accessible to persons with disabilities including Kenya Sign Language as required under Article 7(3)(b) of the Constitution. Only then would the voters be deemed to have been given sufficient information to enable them to make informed decisions on whether or not to append their signatures in support of the proposed constitutional amendments. (para 572)

Constituency Apportionment and Delimitation

A significant portion of the Constitutional Amendment Bill dealt with effective alterations to Article 89 of the Kenyan Constitution, which deals with “delimitation of electoral units.” The Bill sought to introduce seventy new electoral constituencies – but also directed the IEBC to complete the delimitation within a specified time, and the basis of delimitation (“equality of [the] vote.”) The roots of this, again, lay in pre-2007 distortions of constituencies that had severely compromised the one-person-one-vote principle. To correct this, in the run-up to the 2010 Constitution, the Interim Independent Boundaries Review Commission [“IIBRC”] had presented a detailed report, which recognised the importance of stakeholder participation in any constituency or electoral boundary review process, and set out five principles of delimitation that were eventually incorporated into Article 89 (para 650).

The Constitutional Amendment Bill gave the High Court an immediate opportunity to apply the basic structure doctrine that it had just crafted. The Court found that while the number of constituencies were not part of the eternity clauses, the provisions dealing with the method of delimitation were:

Both the text and the history of the Article makes it clear that Kenyans were very particular about the criteria of the delimitation and apportionment of constituencies. This was because the apportionment and distribution of electoral units has a bearing on both the right to representation (which is a political right) as well as the distribution of national economic resources (which is an economic right). The reason for this, as outlined above, is that a substantial amount of national resources distributed to the regions by the national government is done at the constituency level … Given this history and the text of the Constitution, we can easily conclude that whereas Kenyans were particular to entrench the process, procedure, timelines, criteria and review process of the delimitation of electoral units, they were not so particular about the determination of the actual number of constituencies. (paras 669 – 670)

Thus, the Constitutional Amendment Bill’s departure from the stipulated processes – in particular, by detailing how and when the IEBC had to do its job – was unconstitutional (paragraph 681). Lurking underneath this reasoning, one senses an undercurrent of concern about institutional independence: it appears clear that the Constitutional Amendment Bill amounted to an encroachment upon an independent, fourth-branch institution’s sphere of work, and – indeed – interfered with how the ground rules of the democratic processes were set. This is evident in the Court’s – correct – observation that the Bill attempted to amend Article 89 “by stealth”, setting up a parallel process of boundary delimitation, as well as dispensing with public participation and taking away the guaranteed constitutional right of individuals to challenge delimitation (also under Article 89):

We say it is an attempt to amend the Constitution by stealth because it has the effect of suspending the operation of Article 89 without textually amending it. The implications of such a scheme if allowed are at least two-fold. First, it creates a constitutional loophole through which the Promoters can amend the Basic Structure of the Constitution without triggering the Primary Constituent Power. Second, such a scheme creates a “constitutional hatch” through which future Promoters of constitutional amendments can sneak in fundamental changes to the governing charter of the nation for ephemeral political convenience and without following the due process of the law. (paragraph 696)

Although the Court did not put it in so many words, this is – in many ways – a classic checks-and-balances argument: democracy depends upon independent fourth-branch institutions, constitutionally insulated from executive interference (and, in the Kenyan case, buttressed by requirements of public participation). Distortion or undermining of fourth-branch institutions (whether explicitly or implicitly) would amount to undermining the ground rules of the democratic game, which are what render democratic outcomes legitimate. Thus – once the Court has committed to identifying a set of constitutional provisions as “eternity clauses”, provisions governing political representation are prime candidates. It is perhaps therefore rather fitting that it was Article 89 that was the basis of the High Court’s first application of the basic structure doctrine.

Miscellanous Issues

There were a number of other issues, all of which deserve a detailed analysis of their own, but which we do not have further space to examine here. These include the finding that there was no suitable legislative or regulatory framework to collect signatures and to conduct the referendum; the (fascinating) holding that amendments would have to be presented separately in multiple referenda, and not as a bloc; and the finding that County Assemblies could not alter or modify a Popular Initiative proposal (so as to avoid political capture), but were only allowed to consider and vote on it. All of these holdings raise a range of important questions that will no doubt be discussed in detail in the coming days.

Conclusion

If ever a judgment deserved to be called an instant classic, the Kenyan High Court’s BBI Judgment must surely rank as a top contender. While the High Court joins the family of courts that have adopted a variant of the basic structure doctrine, it does so in an entirely unique – and compelling – manner: relying upon social and constitutional history in order to craft a three-tiered hierarchy of constituted power, secondary constituent power, and primary constituent power; it then utilises that same social history to spell out in great detail what the components of primary constituent power would look like, thus taking on the (seemingly) paradoxical task of constitutionalising revolutionary power.

But even more than that, what is perhaps most heartening about the judgment is how it uses constitutional silences and the interpretive openness of constitutional text to advance an interpretation that in concrete and tangible ways seeks to empower citizens against the executive. From its spelling out of the basic structure, to its interpretation of Article 257, and to its reading of Article 89, at every step, the Court is keenly aware of the power difference between a powerful executive and the individual citizen, and at every step, the judgment works to mitigate that powerful imbalance upon the terrain of the Constitution. In a world that is too full of Imperial Presidencies and quiescent courts, the BBI Judgment is an inspiring illustration of Courts and Constitutions at their very best.

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*Although Indians, with our 103 amendments in seventy years, may be bemused by the twenty-six constitutional amendments between the twenty-seven year period of 1964 – 1991 that the Court singled out as an illustration!).

** This depends, of course, on Parliament being a relevant, independent, and powerful body, which is no longer the case in many formally parliamentary democracies.

Guest Post: Muddied Waters – The Supreme Court’s Decision in Gautam Navlakha’s plea for Statutory Bail

[This is a guest post by Abhinav Sekhri, cross-posted from The Proof of Guilt Blog, with permission.]

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The decision of a Division Bench of the Supreme Court in Gautam Navlakha v. National Investigation Agency [Crl. Appeal No. 510 of 2021 (Decided on 12.05.2021) (“Navlakha“)] continues the rich tradition of poorly authored judgments which frequently emerge from the Supreme Court of India and other High Courts on matters of criminal procedure and personal liberty. The judgment is unclear, to say the least, and peppered with needless extracts throughout. The result is a laborious 206 page exercise which judges, lawyers, and law students will struggle with for some time to come (and, curious laypersons would be well-advised to avoid reading it altogether).  

The Facts

The Appellant was arrested in August 2018 and transit remand was granted to the police to take him from Delhi to PS Vishrambaug. But the arrest and remand were challenged in a habeas corpus petition filed on the same day before the Delhi High Court. Since it was unable to decide the petition on the same date, the High Court did not order the Appellant’s release but directed that he be detained under “house arrest” till the petition could be decided. Later, in a separate public interest litigation, the Supreme Court extended this “house arrest” of the Appellant till it could decide that litigation. 

What we have then is a clear chain of events: the Appellant was arrested and remanded to custody by the trial court, and the terms of this custody were modified by the High Court till it decided a habeas corpus petition. The terms of this detention were clearly spelt out: the Appellant was not permitted to leave or interact with persons save his lawyers or doctors; his house was guarded by police, and crucially; he was not available for interrogation either. This detention was then extended by the Supreme Court. Ultimately, on 01.10.2018, the High Court ruled that the remand order was illegal. 

This did not spell the end of the litigation, of course, and as is well known the Appellant was arrested later and taken into custody in April 2020. In June, the Appellant raised a plea of statutory bail (or default bail) before the trial court in Maharashtra. This is a concept critical to criminal procedure and personal liberty in India. Once custodial detention during investigation crosses certain time-periods and the investigation is yet to be concluded, it triggers a right to bail for an accused under Section 167 of the Code. This “statutory bail” under Section 167 is distinct from the liberty that accused persons have to file bail applications and plead for release, because while judges retain vast discretion to grant or refuse ordinary bail applications, there is no such discretion when it comes to statutory bail. 

The Appellant claimed this right to bail because, according to him, the time spent by him in custody had to include the 34 days of custody he suffered in 2018 as well. Both the trial court and the Bombay High Court disagreed because the “house arrest” suffered by the Appellant could not been as custodial detention of the kinds envisioned under Section 167 of the Code. Even if that kind of detention could be seen as the kind of detention contemplated by Section 167, in this case the Delhi High Court had anyway held that the remand order and subsequent custody was illegal and thus stood wiped out. 

In essence, then, these were the two issues presented before the Supreme Court.

The Supreme Court’s Verdict: A Dishonesty of Convenience 

Navlakha holds that the period of custody undergone by an accused during investigation into commission of non-bailable offences must be counted towards computing the total time spent in such custody as under Section 167 of the Criminal Procedure Code 1973, even if a superior court later rules that the accused had been illegally remanded. Furthermore, it holds that confinement in “house arrest” after being apprehended by the police can be a form of custodial detention that is sanctioned in law under Section 167. In doing so, the Court expands the notion of custody beyond the usual dichotomy between “police custody” and “judicial custody”, which was traditionally seen as detention in police lock-up and being sent to jail. This custodial detention at one’s home would, by extension, also be included towards computing time spent in custody by an accused. Not only this, the judgment in Navlakha goes on the offensive and pushes for looking at house arrest more seriously at all stages of the process as an alternative to traditional judicial custody so as to reduce the prison population [Paras 137-140]. 

In the facts of the case before it, though, the Supreme Court was compelled to conclude that this particular house arrest suffered by the Appellant for 34 days could not have been ordered under Section 167 of the Code. As a result, it could not be said that his custodial detention during investigation had crossed the time-limit which entitled his release on bail.

Why does the Court conclude that the house arrest suffered by the Appellant, though certainly a kind of custodial detention, was not of the kind contemplated under Section 167 of the Code? The best chance at understanding this comes from closely reading the judgment from Para 131 onwards where reasons are offered — which are neither compelling nor consistent. It would be unhelpful to go through each of these individually and instead I’ll highlight the underlying point, which is that the terms of this house arrest were such that it would not fit within the framework of Section 167 of the Code. No case diaries were inspected before directed house arrest and, furthermore, there was no possibility of interrogating the accused given the directions of the High Court. Thus, as the judgment puts it at Para 134.

That house arrest, in turn, involved, deprivation of liberty and will fall within the embrace of custody under Section 167 of the CrPC, was not apparently in the minds of both this Court and the High Court of Delhi. This is our understanding of the orders passed by the court.

With due respect, this is bogus. It does not matter what was “apparently in the minds” of judges when they passed certain orders. In fact, because it is impossible to fathom with any degree of certainty what might have been in the mind of an authority when it took a decision, judicial review always implores judges to refrain from engaging in such an inquiry. Instead, judges must locate the decision within the framework of law, and consider whether the exercise of discretion which lay behind the decision was not arbitrary. Thus, once the Court in Navlakha concluded that house arrest is custodial detention within the meaning of Section 167 of the Code, it cannot conveniently revisit this conclusion in the facts of a particular case and locate a specific instance of house arrest outside of Section 167, because of what it thinks was “apparently in the minds” of judges. If the detention was not in terms of Section 167, then it was illegal, but that would not stop the clock for statutory bail under Section 167 as the Court concludes. 

Conclusion

As convenient as it may have seemed, it was still wholly impermissible for the Court to locate the 34 days of custody suffered by the Appellant in a no-man’s land which is both within the law and beyond it. This kind of judicial exceptionalism in the face of hard cases not only unmoors the concept of judicial review from its very foundations, but flips it entirely to permit a pick-and-choose of the worst sort imaginable. 

At this point, one would be forgiven to think this is too harsh a criticism of the judgment in Navlakha. After all, and this is a point that the judgment itself puts forth, even the Appellant and other accused persons did not imagine house arrest as a liberty-depriving measure at the time when the orders were passed. I agree; and if the Court was still unconvinced of its conclusion on this front, it could very well conclude that house arrest was not custodial detention within the framework of law. It could do this while also airing its concerns about prison overcrowding to suggest that perhaps the legislature should start to look at house arrest more seriously as an alternative to existing judicial custody detention. 

But the Court chose to not adopt this restrained course of action, which is why its conclusions are a perfect exercise in adopting what I label a dishonesty of convenience. Or, to put it more plainly, an effort to have its cake and eat it too. 

Guest Post: RTI and Transparency in Electoral Bonds

[This is a guest post by Siddhanth Sharma and Ashwin Vardarajan.]

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Background

On 21^st December 2020, the Central Information Commission (‘CIC’), a body authorised under the Right to Information Act (‘RTI Act’) to receive and inquire into the complaints of RTI applicants, dismissed an appeal from an application which sought, inter alia, the disclosure of the details of those who made political donations through the Electoral Bonds Scheme (‘EBS’), which was introduced under the Finance Act, 2017 (‘Finance Act’). The CIC held that disclosure of such information would amount to an infringement of Section 8(1)(e) and 8(1)(j) of the RTI Act. Further, they held that there was no ‘larger public interest’ involved and that the applicant was not justified in interfering with the ‘right to privacy’ of the donors, without really explaining how.

Subsequently on 26^th March 2021, the Supreme Court of India (‘SC’), refused to stay the sale of electoral bonds that would be issued between April 1 and April 10, 2021, in the backdrop of elections in four Indian states. 

Earlier, donors and donees were mandated to reveal the details of political donations made and received under the Companies Act, 2013 (‘Companies Act’) and Representation of People’s Act, 1951 (‘RP Act’), respectively; however, this mechanism is not available anymore, after the Finance Act amended them. The efficacy of the RTI Act too, in culling out such information, has been compromised through the CIC’s formulaic December order. While the CIC’s and SC’s rulings are based on different legal questions and facts, there is an underlying commonality between them: both establish in definite terms that there is no public interest in revealing details of anonymous political donors under the EBS and that the apprehensions about illicit political funding are totally misconceived.

In this essay, we argue that the disclosure of information on political donations, via the EBS, is possible under the RTI in ‘larger public interest’. We thereafter conclude by briefly reading the effects of the CIC’s and SC’s orders together.  

Disclosure in ‘Larger Public Interest’ under the RTI Act

The right to information is traceable not only to the RTI Act, but also to Article 19(1)(a) of the Constitution, as has been observed by the SC in State of U.P. v. Raj Narain (1975). The RTI Act prescribes a formal process to extract information from the authorities subjected to it. Section 4(a) of the RTI Act states that all public authorities shall “maintain all its records … in a manner and form which facilitates the right to information”, while Section 8 lists down a number of exceptions whereby the information sought may be exempted on narrowly worded grounds. Sections 8(1)(e) and 8(1)(j) exempt disclosure of information held in a fiduciary capacity, and if it is personal information, respectively. However, the Central Public Information Officer (‘CPIO’), or a competent authority under the RTI Act, may disclose the information if a ‘larger public interest’ exists.  

The RTI Act neither defines the expression ‘larger public interest’ nor lays down any parameters to be followed by the deciding authority in interpreting it. However, recently, the SC’s ruling in CPIO v. Subhash Chandra(2019) gave pertinent insights on how such a ‘larger public interest’ is to be determined by an authority under the RTI Act. According to the SC, a larger public interest would be satisfied if the disclosure relates to a matter of public concern (para.71). A matter of public concern includes matters which are integral to free speech and expression and entitle everyone to seek the truth and comment fairly about. The SC, further, had cited Union of India v. Association of Democratic Reforms (2002), wherein judicial directions had been issued for the disclosure of information relating to the personal assets, educational qualifications and criminal antecedents of election candidates, despite the same being personal and confidential information. Such a disclosure, the Court had held, was justified in light of the ‘larger public interest’ of having an informed electorate, fair elections and a dialectal democracy. The SC further noted that a larger public interest would exist if the disclosure would contribute to debates on inefficiency or wrongdoing, and the accountability of officials. Even though such debates may even ‘offend, shock or disturb’, the court/information officer, must not interpret the effect of the disclosure according to their personal value judgment.  (see, paras.99-101).

While Sections 8(1)(e) and 8(1)(j) of the RTI Act guarantee protection of informational privacy of individuals, the SC, in Subhash Chandra, observed that the right to privacy is not absolute and can be infringed, provided that the infringement adheres to the test of proportionality laid down in Puttaswamy v. Union of India (2017). Accordingly, an authority, while dealing with challenges under Sections 8(1)(e) and 8(1)(j) must see the following before disclosing private information in ‘larger public interest’: (Puttaswamy, para.180)

1. There must be ‘law’ enabling the measure violating someone’s privacy; 
2. Such violation must be pursuant to a legitimate aim;
3. The measure adopted under the law must have a reasonable nexus with the legitimate aim; and
4. The measure must be the least-intrusive of the right to privacy.

After applying these prongs to each and every category of information sought in an application, the deciding authority must cumulatively assess,  and after giving precedence to the right to information, disclose through a cogently reasoned order whether the disclosure is justified (on a case-to-case basis). Keeping this test in mind, we shall see whether disclosure of information of donors and donees under the EBS is justified under the RTI Act.

Anonymity of Electoral Bonds and Public Interest

In a multi-party democracy like ours, political parties perform significant public functions. As non-state actors, they act as pressure groups influencing Governmental policies. They also enjoy tax exemptions and substantial indirect financing through the Government exchequer. Once elected, they hold the power to decide the functions of the Government and its various policies, which directly affect the lives of billions. Thus, public interest operates against political parties too and citizens have a right to know about their activities, including the sources of their campaign funding. This necessity led the CIC to extend the RTI Act to political parties in Anil Bairwal v. Parliament of India (2013). 

In the midst of such demands for greater financial transparency, the Government introduced the EBS in the Parliament, claiming that that it would formalise political donations and maintain the purity of free and fair elections. The EBS allows political parties to purchase bonds in denominations ranging from Rs.1,000 to Rs. 1 Crore, issued by specified branches of the State Bank of India (‘SBI’), available for a period of 10 days at the beginning of every quarter of a year. The EBS is notified by the Central Government under Section 31(3) of the Reserve Bank of India Act, 1934. Any individual or company can purchase such bonds within 15 days of being issued. However, the donor’s identity is kept anonymous and only known to the SBI. The EBS is a popular source of donation amongst political parties. Between March 2018 and October 2020, bonds worth Rs.6492.43 Crore were purchased.

The value of money power in elections is not new. The 255th Law Commission Report has highlighted that political donations enable big donors to secure favourable policies from legislators and also mislead and align public interest with their vested motivations. Democracy becomes a bidding process, where the highest contributor gets to influence the policies affecting billions (pp.7-11). In the midst of it all, hefty campaign donations translate to financial superiority in elections, which enables political solicitation, advertising and publicity and eventually increases the chance of winning elections. Furthermore, the EBS also allows funding from foreign persons and companies, thereby making India’s electoral process prone to external influence. Identifying who funds political parties would ensure an informed electorate. Voters be enabled to conduct thorough fact-check on the antecedents of parties, and elect only those to power whom they believe possess and incorruptible sense of public duty. 

The arguments of anti-disclosure proponents – that the identity of the donors must be kept private – are mistaken. Section 29C of the RP Act and Section 182(3) of the Companies Act had anyways required disclosure of such information in the financial statements of the donee and donor, respectively. Although formalising the process of political funding through the EBS is welcome, there were no arguments presented by the Government as to why the identity of the donors must be protected. However, for the sake of an argument, let us assume that privacy of donors must be protected. By applying the test of proportionality to justify the violation of the donor’s right to privacy, we see that the object sought to be achieved (i.e., electoral transparency, in line with the preceding paragraph) finds a rational nexus with the legitimate action (i.e., revealing the donor’s identity) through a valid law (i.e., the RTI Act) in the least intrusive way (merely revealing the identity of the donors, which happened earlier too). Since the proportionality test squarely applicable, and since public interest evidently outweighs the right of privacy of the donors, it would be justified to disclose the identity of the donors in ‘larger public interest’ under Sections 8(1)(e) and 8(1)(j) of the RTI Act. The CIC’s order, unfortunately, did not discuss any of the points enumerated above, and thus was evidently deficient in its reasoning.

Conclusion

We now briefly discuss the SC’s refusal to stay the EBS. The SC, in its order, had an (inutile) conversation on how persons seeking information on funds received by political parties under the EBS can cull out the information through the financial statements of the corporate-donors and party-donees. Thus, they felt that the existing scheme was sufficiently transparent, and it was not as though the transactions were behind “iron curtains”, “incapable of being pierced”. However, the SC did not consider the amendments to Section 29C(b) of the RP Act, and Section 182(3) of the Companies Act vide the Finance Act, whereby corporate-donors and political parties are not obligated to disclose such information to either the registrar of companies or the Election Commission, respectively. Ironically, the SC also noted that the only grounds for disclosing of the donors’ identity is when it is “demanded by a competent court or upon registration of a criminal case by any law enforcement agency” (para.18). Thus, they assumed that the filing of annual incomes by donor-companies and other financial statements by political parties would enable a person to cull out information on party funding through a ‘match the following’ without even considering the opaque changes introduced the Finance Act. 

Such loose reasonings manifesting in a formal SC Order, tagged alongside the CIC’s ruling, leaves very little, or no room for someone to know the identity of those who donate considerable sums of money to political parties, perhaps even in return for political favours. That is sincerely against the right to information guaranteed to all citizens, and imperils the electoral process in India of becoming a corporate-run show. The CIC’s order is a dangerous precedent, and the position of law must be obverted in the interest of a truly transparent, fair and free electoral process.

Guest Post: Private tuitions, Proportionality and Policy: J&K High Court’s judgment in Farooq Ahmed v. UT of J&K

[This is a guest post by Mohammad Zayaan and Muazzam Nasir.]

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Introduction

The Jammu and Kashmir High Court recently upheld the validity of a circular issued by the UT Government which barred Government teachers from engaging in private tuitions. The judgment was delivered in the case of Farooq Ahmed v. Union Territory of J&K, where the petitioners had challenged the validity of the circular. The petitioners had assailed the impugned order on three pertinent grounds:

a) that the Right to Free and Compulsory Education Act, 2009 was invalidly applied considering its limited applicability to elementary school teachers

b) that complete ban on private tuitions was in derogation of previous orders issued by the School Education Department (hereinafter “SED”) 

c) that the complete ban was in violation of a prior judgment of the Jammu and Kashmir High Court. 

The judgment passed by the single judge bench of the High Court observed that:

“There is nothing that prevents the government from taking a policy decision in the matter of teaching faculty of the government that there shall be no sanction/grant for engagement directly or indirectly in private tuition in private coaching/tuition centres during and after the duty hours.” 

However, this post argues that the ban – being a prima facie violation of Article 19(1)(g)- needed to be examined and scrutinised thoroughly within the framework of the doctrine of proportionality. Such a restriction imposed on an important fundamental right would have to be proportional and necessary. Though the Supreme Court of India has applied (and interpreted) the doctrine of proportionality in different ways on different occasions, this post focuses on the four-limb test laid down in Modern Dental College v. State of M.P, which was later affirmed in the Aadhaar Litigation, and reiterated with respect to Article 19(1)(g) in Anuradha Bhasin v. Union of India. The post seeks to apply this test to the policy proposed by the State in the circular, and argue on the disproportionate, and consequently, unconstitutional nature of the policy.

Legitimate Aim Stage

The first limb of the proportionality test is to determine whether the policy at hand has a legitimate aim or a proper purpose (legitimate goal stage). The aim only needs to be legitimate, and not necessarily compelling. This is a manner of objective review, which resembles the traditional reasonableness test under which policy decisions were tested. The bracket of legitimate aim consists of multiple aims which are often vaguely phrased – public safety, prevention of crime, protection of morals and of the rights of others, and national security. In the present case, the aim of the State in bringing such a policy can be derived from three  sources:

1. The prohibition has been ordered under Section 10 of the Jammu & Kashmir Government Employees (Conduct) Rules, 1971 (hereinafter ‘Conduct Rules’). The Conduct Rules can be construed to be a regulatory framework which aims to regulate conduct and behaviour of Government employees. Therefore, the aim of the present order could be taken as to regulate conduct of Government teachers. However, in such a case, Section 10 can itself be called into question on grounds of being unreasonable and disproportionate. 
2. The second source is the Supreme Court judgment in the case of Asha Seva Bhavi Sanstha v. State of Maharashtra.While reviewing the scope of Section 28 of the RTE Act which imposes similar restrictions, the Court observed that the aim of such a measure was “to ensure teachers should contribute in imparting quality education in school itself”. Even though the petitioners in the present case had contended that the petition was not maintainable by virtue of it being ordered under Section 28 of RTE Act, the J&K High Court held that the section would only apply to a certain group of teachers (those imparting elementary level education). However, this observation could be taken to understand what the aim of such a measure is.
3. In the present judgement, the Court has observed that a lot of teachers engage in private tuitions at the cost of their own jobs, and therefore, driven by ‘insatiable greed’, they impart education in private institutions. Though these were all assertions which were not backed by any proper study, report, or complaints, one can get an insight as to what the Court has construed as the aim of the policy. 

Through these three sources, the aim of the measure becomes quite clear- to make Government schools more efficient. While this is a legitimate aim, it becomes important to scrutinise the methods in which the State proposes to reach this aim. What the State has done in the present case is impose a blanket ban on all Government teachers, assuming that it would enhance their performance in schools. This is the main concern – the State uses the most restrictive measure instead of the least restrictive one to reach the aim. In doing so, it gives no data to support the claim of the aim being met due to such intrusive restrictions. 

Rational Nexus Stage

The second limb of the proportionality test requires the policy decision to be a suitable means of achieving the aim (suitability or rational connection stage). Essentially, there should be a rational nexus between the aim and the act done to reach that aim. In the present case, there are no reports, evidence, or studies to suggest that engaging in private tuitions affects the performance of teachers in their schools. The Court has not backed its assertions with any form of complaints or reports. Assuming that such assertions were true, the question to be asked is: how does a blanket ban solve it? Such a restriction does not guarantee better quality education, and neither does it guarantee enhanced performance. If the argument revolves around attendance, there are other measures (as will be discussed further) which can be employed to keep a check on it. If the argument revolves around engagement in other activities which affect work of the teacher, the same argument can be made for other types of charitable and social work which are exceptions to Section 10 of the Employee Code of Conduct Rules. Therefore, unnecessarily restricting individuals with respect to one form of activity and not another is unreasonable, and such a restriction has no rational nexus to achieving better education in Government schools. If a teacher does not engage in private tuitions in his free time, it does not guarantee that he will impart quality education in school.

The Least Restrictive Measure Stage

The teaching fraternity in the UT is governed by the Conduct Rules. Section 10 of the Conduct Rules reads: 

“No government employee, whether on leave or active service, shall except with the previous sanction of the Government engage directly or indirectly in any trade or business or undertake any other employment”. 

The court, in the present case, read the phrase “except with the previous sanction of the Government ” as devolving a wide policy discretion onto the government to decide on the conduct of private tuitions by government teachers. However, such an interpretation is afoul of the third-prong of the proportionality test in Modern Dental College. The relevant articulation under the test is that: the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation. The “least restrictive measure” has to be established on examination of facts. The court has to ascertain the available alternatives in congruence with the intended goal of the state, and, accordingly choose the least restrictive but equally effective measure. The intended aim of the State is to ensure that education in Government schools does not suffer because of parallel private commitments of government teachers. The court underlines this aim at para 14:

As government teachers are engaged in imparting education to children and building future of the nation, it would always be fair and reasonable for the Government to take a policy decision not to allow teaching faculty of the Government at any level to engage in private business of imparting coaching in private tuition centres.

The aim directly supported the ruling of the court that the government may, by policy decision, decide not to give any sanction to all or any class of employees for private tuitions. The court failed to address the available alternatives before ruling to the contrary. The SED in 2005 had issued a circular proposing an alternative: Government teachers could engage in private tuitions two hours before the opening of the school and two hours after the closing of the school.  The SED rescinded the alternative pursuant to the ruling of the J&K High Court in a PIL filed by Vikas Kranti Manch in 2011. Consequently, the State Government challenged the judgment in the apex court. The court affirmed the ruling of the J&K High Court. However, both judgments pertained to the “general permission” for conduct of private tuitions granted to government teachers. In 2015, the SED noted that private tuitions by government teachers during “work hours” had a disparaging impact on the overall interests of school children. Thereafter, in 2017, SED circular issued a ban on private tuitions by government teachers – unless prior sanction was obtained from the competent authority. The court had to sift through the least restrictive alternative according to the intended goal. It could have, for example, gauged the impact of private tuitions by government teachers before and after designated working hours on the purported goal of maintaining teaching quality in government schools. However, it deferred to the governments’ resolve for a blanket ban, and in doing so, failed to meet the proportionality test under Article 19.

Defeating the purpose of balance

The fourth prong of the test is the requirement of “balancing” the competing interests at hand. In the present case, the court ought to have established a balance between Article 19(1)(g) and the purported social limitation to the same. The J&K High Court identified the social importance of the limitation at para 20: Instead of concentrating on their pious job and contribute to nation building, the God has chosen for them, for, they, moved by their insatiable greed, engage in activity of private tuition. The ruling largely echoes the Supreme Court’s line of restricting the nature of education as “charitable”. However, despite the charitable nature, the protection under Article 19(1)(g) still persists. The only limitation could be “a shorter shrift to profit” while weighing the balance under Article 19(6). The court, instead, makes a value judgment and offers zero shrift to profit. It adopts a total deference approach to a complete ban on private coaching and, thus, fails to establish a balance between the competing interests.

Conclusion

The pertinent test to be imbibed in Farooq Ahmad was the proportionality review to ascertain the violation of Article 19(1)(g). The court, instead, showed total deference to the governments’ wisdom. It chose to strictly fixate the contours of its judgment to the policy tentacles of the government. The four-pronged redressal under the proportionality framework points to a gap between the court’s judgment and the constitutional validity of the circular banning private tuitions. 

A Critique of the Supreme Court’s Maratha Reservation Judgment – II: Federalism

[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 (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)].

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In the previous post, we discussed the Supreme Court’s holding on the 50% cap in the Maratha Reservation judgment. In this post, we shall discuss the second set of issues that came before the Court, i.e., the interpretation of the 102nd Amendment to the Constitution, and whether the power to identify socially and educationally backward classes [“SEBCs”] was vested only with the centre, or with both the centre and the states. By a 3:2 majority, the Supreme Court held in favour of the former view, and thus denuded the states of their power to identify SEBCs for the purposes of reservation, going forward.

The 102nd Constitutional Amendment made three significant changes to the Constitution. First, through a new Article 338B, it created a National Commission for Backward Classes with constitutional status. Article 338B largely followed the scheme of Article 338 (National Commission for Scheduled Castes) and 338A (National Commission for Scheduled Tribes). Secondly, through a new Article 342A, it specified a process for the identification of SEBCs that closely followed the process of identification set out in Articles 341 (Scheduled Castes) and 342 (Scheduled Tribes) – albeit, with one significant difference, to which we will come to in a moment. Thirdly, it added a new sub-clause (26C) to the Constitution’s definitions clause (Article 366), which stated that the term “SEBC” means “such backward classes as are so deemed under Article 342A for the purposes of this Constitution.”

There were two competing interpretations of these changes. According to the first interpretation, the new constitutional provisions did not substantively alter the status quo, according to which the centre and the states exercised joint and separate powers to identify SEBCs (a central list and several state lists), for their own purposes (educational institutions and public employment). According to the second interpretation, however, these provisions created a new structure that was identical to the situation of Scheduled Castes and Scheduled Tribes (SCs and STs): the power to identify beneficiaries now lay solely with the centre, and no longer with the states.

At the outset, there were two textual reasons in support of the first proposition. First, unlike in the case of SCs and STs, the existing arrangement – i.e., state and centre exercising powers separately – had been in existence since the beginning of the Constitution. It was therefore implicit that if a constitutional amendment intended to change that to a drastic degree, it would do so in express terms, and not by implication. Notably, at no point did Article 338B or 342A state that the process it was codifying was the sole process of identifying SEBCs. Secondly, there was one notable difference between Articles 341 and 342 on the one hand, and Article 342A on the other. All three articles, in their first sub-clause, authorised the President to notify the list of beneficiaries (SC, ST, or SEBC). In their second sub-clause, Articles 341 and 342 clarified that a Presidential notification could only be amended by Parliament. Article 342A(2), however, used the following language: “Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class…“

The reference to the Central List is new, and strongly indicates that the new constitutional arrangement was limited in its operation to the existing process only at the central level, i.e., with respect to the Central List of SEBCs (and not the state lists). If the intention of the new scheme was to do away with state lists altogether, then Article 342A(2) would have followed the wording of 341(2) and 342(2), which only used the terms “list of Scheduled Castes” and “list of Scheduled Tribes.” The phrase “Central List” made sense only in a context in which there existed state lists to start with.

As we have seen, however, by a 3:2 majority, the Supreme Court disagreed with this reading. Let us first examine the judgment of Justice Bhat, with which Justices Gupta and Rao agreed. As Bhat J. insisted that the wording of the amendments was unambiguous, and a literal reading pointed to only one possible interpretation, I will – for the moment – set aside the extensive references to Parliamentary Committee reports and to policy reasons underlying the constitutional changes, and focus on textual and structural arguments. A close examination of Justice Bhat’s judgment reveals the following reasons for disagreement: first, Article 366(26C) defined SEBCs by referring to Article 342A, “for the purposes of this Constitution.” The phrase “for the purposes of this Constitution” was to be interpreted broadly, and – following precedent on the interpretation of Articles 341 and 342 – read to include the entirety of the Indian Constitution, which therefore also included Articles 15(4) and 16(4) (the reservation provisions). Consequently, Article 342A now exclusively governed the field with respect to the identification of SEBCs. Secondly, previous amendments to the definitions clause had been given effect to “in their broadest manner”, including in situations where this would cut down the powers of the several states. Thirdly, given that, under the National Commission for Backward Classes [“NCBC”] Act, the central government already had the power for publishing lists of SEBCs for union employment and central PSU posts, there was no reason to amend the Constitution and provide for a power that already existed; fourthly, the word “central” was used at various places in the Constitution, and therefore only signified a list prepared by the President at the behest of the central government, and not a list for employment under the central government; fifthly, Parliament intended, through the 102nd Amendment to replicated the regime for identification of SCs and STs, for SEBCs as well, and that is why Article 338B was a “mirror image” of Articles 338 and 338A. The “total alignment” between the three processes was then achieved by Article 342A.

With respect, each of these arguments is flawed.

The problems begin with the first argument (“for the purposes of this Constitution”), which was – indeed – the lynchpin of Bhat J.’s interpretation (and therefore reiterated by him throughout the judgment). The problem is a simple one: in essence, Bhat J.’s reading puts the cart before the horse. Article 366(26(C)) states that SEBCs, for the purposes of this Constitution, mean the backward classes deemed so under Article 342A. But it is the interpretation of Article 342A itself that is under dispute, because of the use of the term “Central List”. If, for the purposes of argument, we assume that the correct interpretation of “Central List” is, indeed, the list that refers to union employment and central PSUs, and not the list prepared by the centre, then Article 342A itself contemplates separate powers for the centre and the state, in identifying SEBCs. Justice Bhat’s argument might have been correct if Article 366(26(C)) had referred back only to Article 342A(1) – which is about the Presidential notification of SEBCs. But Article 342A contains two sub-clauses – (1) and (2), (2) refers to the “Central List”, and 366(26(C)) refers to both 342A(1) and (2). It therefore follows that the implication of the term “for the purposes of this Constitution” under Article 366(26(C)) will change depending upon how you first interpret Article 342A, on its own terms. Instead, Bhat J. used Article 366(2C)) to settle the issue of the interpretation of Article 342A. This, then, would have a knock-on effect on a lot of other arguments deployed by him, such as, for example, giving an exhaustive meaning to the word “means” under Article 366(26(C)) as well. And if Bhat J.’s first argument falls, then the second argument – giving amendments to the definition clause their “full impact” falls as well, because we don’t know what the definitions clause actually refers to until we have first interpreted Article 342A, autonomously.

The third argument works no better. It is equally plausible to argue that Parliament wanted to provide constitutional status to what had hitherto been only a statutory procedure under the NCBC Act. Constitutional bodies exercise greater prestige than statutory bodies (recall the whole debate about the necessity of having a putative NJAC under the Constitution, and not left to statute). Without further evidence of Parliamentary intent, neither interpretation can be favoured over the other.

Justice Bhat’s fourth and fifth arguments can be taken together, as they both pertain to the phrase “central list.” On his fourth argument, the fact that the Constitution uses the word “central” at various points does not help the case: the issue is not with the word “central”, but with the term “central list”, and with the fact that Articles 341(2) and 342(2) do not use that phrase, and instead, use the phrase “lists of…” If, indeed, the term “central list” meant a list prepared by the central government (through the President), then the exact same phrase should have been used in Articles 341(2) and 342(2) as well – because the list of SCs and STs is also prepared by the central government. This also addresses Justice Bhat’s fifth argument, about the “mirror image” and “total alignment”: this argument is simply belied by the textual differences between 341(2), 342(2), and 342A(2): the moment Article 342A(2) uses the phrase “central list” – a conscious departure from “lists of…”, there is evidently no “total alignment.”

In my view, these arguments demonstrate that the textual evidence is clear for the other interpretation of these provisions: that they were not meant to disturb the status quo and denude the states of their powers to identify SEBCs. At the very least, however, these arguments reveal that the provisions are ambiguous, and therefore require extrinsic aids to interpretation. In this context, I do not have much to add to Bhushan J.’s discussion of the Parliamentary debates and reports that led up to the 102nd Amendment, as I find it both persuasive and compelling. In brief, objections were raised as to how the Amendment, in its presently worded form, might take away the states’ powers, and the minister piloting the amendment made it clear that the purpose was not to take away states’ powers, but to codify central powers. Bhat J. points to the fact that proposed amendments aiming to set this out in express terms were rejected. The rejection of an amendment, however, can be motivated by two reasons: on the one hand, it could be because Parliament did not agree with the substance of the amendment. On the other hand, it could be because Parliament was of the view that the amendments did not alter or add to anything that was already there – and obviously so – in the original text. Repeated assurances by government ministers that the Bill was not altering the status quo suggests the latter reading. Bhat J. also draws a distinction between assurances that states’ powers would not be diluted, and states’ interests would be taken care of. A look at the legislative history makes it clear, however, that both sets of assurances (not just one) were made.

One could argue, of course, that the parliamentary history – like the text – is inconclusive. A final point then remains: that of federalism. Let us say, for the purposes of argument, that the text of the provisions admitted of no definite interpretation, and neither did parliamentary history. In such a context, faced with two equally plausible interpretations of the text, it was at least abundantly clear that one interpretation would advance federalism (a part of the basic structure of the Constitution), while the other would undermine it. As in the famous UK Supreme Court judgment in Miller II, constitutional principles can – and often do – serve as implied limitations upon constitutional power, where more than one reading of a text is possible. It is my submission that as long as Article 342A could bear a plausible interpretation that would support federalism, it was the Court’s duty to give effect to that interpretation.

Unfortunately, however, not only did Bhat J.’s judgment not do this, but also found this to be a policy reason in support of his anti-federal reading. Bhat J. made references to how a single, central list would help to prevent politicisation of the process, and ensure objectivity in identifying beneficiaries. Not only are these claims evidence-free, however, they are also quite bizarre: why would one think that taking power away from state governments and giving it to the central government would remove politicisation, instead of just shifting its locus from point A to point B (there is, furthermore, a latent prejudice here against the idea of politics, and in favour of an apolitical, technocratic process, but let us leave that discussion for another day)? Justice Bhat’s arguments reveal an unfortunate bias that has long been part of Indian judicial discourse: the assumption that state governments are prone to corruption, rent-seeking, and institutional capture, while the central government stands aloof and objective. There is, however, no historical basis to this claim, and indeed, in the case of SEBCs, there are powerful arguments to be made that local governments are best positioned for the purposes of identification.

Whatever the final reasons, however, the Marathe Reservation judgment only adds to what is now a fairly long anti-federal judicial tradition of interpreting constitutional ambiguities so as to transfer power from the states to the centre. In the long run, this belies our courts’ rhetorical commitment to the principle of federalism and is, in my view, an unfortunate part of our constitutional jurisprudence.

A Critique of the Supreme Court’s Maratha Reservation Judgment – I: Equality

[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 (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)].

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On May 5 2021, a Constitution Bench of the Supreme Court struck down the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018 [“the impugned Act”]. The impugned Act had granted reservations to the Maratha community in education and public employment (as a result, the total reservation in Maharashtra had gone over 50%, which was also the subject of challenge). Three substantive judgments, spanning 569 pages, were authored. The Court framed six questions, which – for the sake of simplicity – can be divided into three main issues. First, did the 50% cap on reservations (subject to ‘extraordinary circumstances’), as articulated by some of the judges in the Indira Sawhney judgment, merit reconsideration? Secondly, was the impugned Act correct in granting reservations to the Maratha community? And thirdly, following the 102nd Constitutional Amendment, were the several states competent to identify socially and educationally backward classes within their jurisdictions, or did that power now lie only with the centre? With respect to the first two issues, the five-judge bench unanimously answered “no”. On the third issue, by a 3:2 majority (Bhat, Rao and Gupta JJ), the bench found in favour of exclusive central competence (i.e., states can no longer identify SEBCs for the purposes of reservation).

I do not propose to address the second issue in too much detail. A perusal of the record (three separate Commissions had found that the Marathas did not constitute a “backward” community, and available data backed this up) shows that Court’s conclusion on this point is difficult to argue with, even though its scrutiny arguably went beyond what existing precedent permitted. Rather, in this post, I will focus on the first question (the 50% cap), and in the next post, on the federal issue.

On the first question, I will argue that the judgments of Bhushan J. (joined by Nazeer J) and Bhat J. suffer from numerous errors of law and logic. With respect, the impact of these judgments is to entrench – and perpetuate – a duplicity that has existed in Indian affirmative action jurisprudence right from the time of Indira Sawhney: in rhetoric, the Court commits itself to a broad and substantive vision of equality, but in practice, it affirms a narrow and formal vision.

The 50% Rule: An Overview

The “50% rule” has caused significant dispute and confusion over the years. Pared down to essentials, however, the issue is straightforward, and I will set it out here before enquiring how the Court dealt – or did not deal – with it. A reading of the first part of the judgment will reveal that many of the arguments I make here were placed before the Court by Mr. Mukul Rohatgi, and so my task is primarily an expository one.

The “50% rule” was first articulated by the Supreme Court in M.R. Balaji vs State of Mysore, where it was held that reservations under Article 16(4) cannot exceed 50%. When M.R. Balaji was decided, the Indian Supreme Court believed that Articles 14, 15(1), and 16(1) embodied a formal, or “caste-blind” vision of equality, where classifications based on suspected categories (caste, race, gender etc) were constitutionally impermissible. Article 16(4) carved out a specific exception to Article 16(1), by allowing reservations. Thus, formal equality of opportunity was the rule, and reservation was the exception. As the exception could not “swallow up” the rule, reservations had to be capped at 50%.

This understanding of equality was, however, overturned by a seven-judge bench of the Supreme Court in State of Kerala vs N.M. Thomas, where a majority held that Article 16(4) was not an exception to Article 16(1), but a facet of it (or, an “emphatic restatement” of the principle). In other words, the equality code of the Indian Constitution embodied a vision of substantive equality, which took into account existing structural and institutional disadvantages. Affirmative action, thus, was a part of genuine equality of opportunity, rather than clashing with it. In N.M. Thomas, two judges also spelt out the logically necessary corollary: the 50% cap in Balaji was no longer justifiable.

It was in Indira Sawhney, however, that waters were substantially muddied. While the plurality of opinions in the judgment make culling out a ratio a difficult task (and indeed, the ratio of Indira Sawhney was in dispute in the present case), it is at least plausible to argue that the judgment did two irreconcilable things: it both affirmed N.M. Thomas, and affirmed the 50% rule (subject to extraordinary circumstances). These two positions are irreconcilable because, as a matter of logic, the 50% rule must stand or fall with the proposition that Article 16(4) is an exception to Article 16(1). The moment you accept that Articles 16(1) and 16(4) both embody a vision of substantive equality, the 50% rule makes no sense at all. Substantive equality requires you to look at disadvantage, and if more than 50% of a given population is disadvantaged (to put the point at its most abstract level), there is no reason to limit affirmative action to 50%.

Indira Sawhney, thus, was an internally contradictory judgment, despite attempts by later judgments to make it make sense by holding that 16(4) was neither an exception to, nor a facet of, 16(1), but that both had to be “balanced” against one another. For this reason alone, it merited reconsideration.

The Judgment of Bhushan J.

Now, what reasons did the Court give to decline the request for reference, and reaffirm the 50% rule? Let us first consider the judgment of Bhushan J. Bhushan J. observed, first, that only two judges in N.M. Thomas had opined on the 50% rule. This is true. It is also irrelevant. As pointed out above, the 50% rule and Article 16(4) being an exception to Article 16(1), are joined at the hip. If one goes, the other must necessarily go. Secondly, Justice Bhushan observed that “Articles 15(1) and 16(1) of the Constitution are the provisions engrafted to realise substantive equality whereas Articles 15(4) and 16(4) are to realise the (sic) protective equality.” (paragraph 155) With respect, the learned Justice provided no explanation for what he meant by “protective equality”, how it differs from “substantive equality”, and why the difference matters (if it does). Thirdly, Bhushan J. quoted a speech by Dr. B.R. Ambedkar in the Constituent Assembly to argue that the intent of Article 16(4) had always been to limit reservations to a “minority”. This use – or misuse – of Ambedkar’s speech is one of the most troubling and problematic aspects of the judgment for me, and I will address it later. Fourthly, Bhushan J. held that the judgment in Balaji was not premised only on the fact that that Article 16(4) was an “exception” to Article 16(1), but that it was a “special provision.” A close reading of the actual judgment reveals, however, that this argument is pure misdirection. In Balaji, the Supreme Court noted that:

It is because the interests of the society at large would be served by promoting the advancement of the weaker elements in the society that Art. 15(4) authorises special provision to be made. But if a provision which is in the nature of an exception completely excludes the rest of the society, that clearly is outside the scope of Art. 15(4).

It is therefore clear that the Balaji Court used “special provision” and “exception” interchangeably; indeed, it could not be any other way, because the phrase “special provision” has no independent meaning: something is “special” in that it does not occur in the ordinary course of things. It is difficult to parse quite what Bhushan J. thought he had accomplished by drawing a distinction between “exception” and “special provision”, because the learned Justice failed to explain any further, and instead only repeated the Balaji dictum of 50%.

Fifthly, Bhushan J. noted that:

The 50% rule spoken in Balaji and affirmed in Indra Sawhney is to fulfill the objective of equality as engrafted in Article 14 of which Articles 15 and 16 are facets. The Indra Sawhney itself gives answer of the question. In paragraph 807 of Indra Sawhney held that what is more reasonable than to say that reservation under clause (4) shall not exceed 50% of the appointment. 50% has been said to be reasonable and it is to attain the objective of equality. (paragraph 162)

This paragraph, unfortunately, suffers from the logical fallacy known as begging the question. Bhushan J. observed that the “50% rule” was required to fulfil the objective of “equality” under the Constitution as held by Indira Sawhney – while the entire argument was that this is only true if equality under the Constitution is formal equality, which was denied by N.M. Thomas (and N.M. Thomas, of course, was affirmed by Indira Sawhney). Thus, on the one hand, Bhushan J. strenuously argued that Articles 15 and 16 embodied a vision of substantive equality, while on the other hand, he equally strenuously affirmed a 50% rule that only made sense if Articles 15 and 16 were about formal equality.

The paragraph then went on to ask “what is more reasonable than to say that reservation shall … not exceed 50% of the appointment?” Unfortunately, however, this is not the mic-drop that Bhushan J. appeared to believe that it was. The answer to the question is: any figure that accurately reflects the extent of group disadvantage in any given context is “more reasonable” than a flat figure of “50%”, assuming of course that the Indian Constitution is committed to substantive equality.

Mr. Mukul Rohatgi raised a number of other arguments for reconsidering the 50% cap, which I will not discuss here: the significant issues, and Justice Bhushan’s failure to deal with them, have already been addressed. The implications of this failure were made evident when Justice Bhushan came to consider the Gaikwad Report, which had recommended reservations for the Maratha community. The Report had done so on the basis that the representation of Marathas in public employment and education was far less than their representation in Maharashtra’s population. Now, as I had clarified at the beginning of this post, I will not here consider the veracity of their claims. What is important to note, however, is that Justice Bhushan held that even if this was true, it would not be a basis for granting reservation, as it was not an “extraordinary circumstance” within the meaning of the Indira Sawhney judgment. Latching on to an observation in Indira Sawhney that had said that extraordinary circumstances might include “remote and far flung areas” where people are removed from the “mainstream of national life”, and holding that this was “illustrative but indicative” (huh?), Bhushan J. held that a finding that 80-85% of the population was “backward” (which was the reasoning given by the Gaikwad Commission) would not be a ground for increasing the reservation above 50%.

It should be immediately clear that this flies in the face of any defensible understanding of “substantive equality”. The impact of Bhushan J.’s observation is that no matter the extent of disadvantage that exists in society, no matter the caste or class composition, no matter the history or contemporary reality of oppression – all of this is irrelevant to determining the quantum of reservation. To put the matter in the abstract, even if one hypothetically proved to Bhushan J. that in a given society, 20% of the population had oppressed the other 80%, and erected enduring structural and institutional barriers to their equal participation in society, Bhushan J. would still hold that “reservation cannot exceed 50%.” To say that such a blanket proposition is in any way consistent with substantive equality is to twist words and concepts out of shape. It is also particularly ironic, given that across the world, a substantial gap between representation in the total population, and representation in a specific area, is taken as presumptive evidence of indirect discrimination.

it is therefore submitted, with the greatest of respect, that Bhushan J.’s judgment is deeply flawed in every respect with respect to the rule of 50%; in all but in name, it takes affirmative action back to the Balaji days of Article 16(4) being an exception to Article 16(1), and the Constitution of “formal equality”. One could only wish that the learned Justice had the courage of his convictions and expressly spelt this out, rather than leaving us to read between the lines.

The Judgment of Bhat J.

Let us now turn to the concurring opinion of Justice Bhat. This judgment is somewhat difficult to parse, as it contains a smattering of quotes from figures such as Franklin Roosevelt and Anatole France, undertakes a comparative survey of reservation jurisprudence in the USA, Canada, and South Africa without explaining why those jurisdictions have been selected or what the purpose of comparative analysis is, embarks upon an entirely irrelevant excursion into various schemes and programs for the uplift of disadvantaged sections, delivers a moral sermon on alternatives to reservations, and puts out a number of observations on the concept of merit that are entirely at odds with its conclusions. Negotiating through the surplusage, however, one arrives at the following lines of reasoning. First, Justice Bhat held that a majority in Indira Sawhney had “decisively” ruled in favour of the 50% cap. However, as pointed out above, even if that is true, a majority in Indira Sawhney had also upheld N.M. Thomas, and the two propositions are contradictory. This is why the request for reconsideration of the 50% rule by a larger bench was justified. Secondly, Justice Bhat cited the principle of stare decisis, and the need for stability in the law. (paragraph 11). One might have been minded to accept this argument, were it not for the fact that the learned Justice’s new-found respect for stare decisis was strangely absent a little while ago when, as part of a bench led by Arun Mishra J., he saw no problem with overruling seventeen Supreme Court judgments on Section 24 of the Land Acquisition Act, which had consistently been followed by High Courts across the country. With due respect, stare decisis is a question of principle, not of convenience.

Thirdly, Bhat J. held that Indira Sawhney was based on the principle of “balance” – i.e., “balancing” equality of opportunity and reservations. However, as I have pointed out above, a “balance” that takes the form of a 50% cap is just a subtler way of rephrasing the “exception” paradigm: in no objective sense are you being “balanced” if (to repeat the hypothetical) 20% of a society oppresses 80%, but reservation is fixed at 50%. Once again, therefore, the word “balance” simply assumes the conclusion in the premise. This was made crystal clear in paragraph 34 of Bhat J.’s judgment, where the learned Justice noted that:

Upon examination of the issue from this perspective, the ceiling of 50% with the “extraordinary circumstances” exception, is the just balance what is termed as the “Goldilocks solution” – i.e. the solution containing the right balance that allows the state sufficient latitude to ensure meaningful affirmative action, to those who deserve it, and at the same time ensures that the essential content of equality, and its injunction not to discriminate on the various proscribed grounds (caste, religion, sex, place of residence) is retained. 

It is entirely impossible to reconcile this paragraph with N.M. Thomas: here, Justice Bhat stated unambiguously that in his view, the “essential content” of equality is at odds with “affirmative action” – and not that affirmative action fulfils the demands of substantive equality. As with Justice Bhushan, this was a return to the Balaji era of the exception, only without expressly saying so.

I could not locate further substantive arguments in this concurring opinion. It is worth pointing out, however, that in a section considering the “larger issues” around affirmative action, Bhat J. noted how the concept of “merit” is, in itself, inherently discriminatory, decontextualised, and ignores situational inequalities. There is a deep irony here, because the entire framework of “balancing” equality of opportunity against reservation is premised on an uncritical acceptance of the concept of “merit”, which frames the understanding of formal equality of opportunity. If merit had to be understood contextually, then reservations and equality of opportunity would not be at odds, and nothing would have to be “balanced.”

(Mis)Using Ambedar’s Speech

Let me, finally, come to the issue of Dr. Ambedkar’s speech. There are at least four reasons why Bhushan J.’s use of Ambedkar’s Constituent Assembly speech – where he stated the reservation would be confined to a “minority” – is entirely flawed. First, no self-respecting theory of constitutional interpretation endorses deriving constitutional meaning from one speech delivered by one member of the Constituent Assembly. At the very least, the learned Justice needed to do his homework on whether Ambedkar’s view was the view of the Assembly as a whole. He did not do so. Secondly, even if Ambedkar’s view did represent the Assembly as a whole, it was a view about how Article 16(4) ought to be applied – not about the meaning of 16(4) itself. As Ronald Dworkin famously argued, there is a distinction between the “concept” of equality, and competing “conceptions” of the concept. And as long as the Constitution is framed at the level of concepts, the framers’ views about what specific conceptions it might take, are to be accorded no greater deference than anyone else’s view. Thirdly, in a jurisprudential tradition that continues to uphold Maneka Gandhi as a crown jewel of constitutional interpretation, it is rather jarring to find a sudden love for original intent. Recall that the evidence for the fact that the Constituent Assembly intended Article 21 to be limited to “procedure established by law” was far, far stronger than a single B.R. Ambedkar speech: it involved multiple debates, multiple failed amendments, and a cast-iron consensus that due process was to be kept out of the Constitution. Maneka Gandhi ignored all of that. I do not here intend to get into an argument about whether that was right or wrong, but the Court cannot say “I will use original intent when it supports my preferred conclusion, and discard it when it doesn’t.” That, to repeat, is a constitutionalism of convenience.

And finally, Ambedkar’s speech – when understood in context – is not as clear-cut as it might seem. I have argued elsewhere that Ambedkar’s speech was made in the context of a debate over the introduction of the word “backward” in Article 16, to qualify the word “classes”. Ambedkar’s reconciliation of the “competing claims” of (formal) equality of opportunity and adequacy of group representation was based on a qualitative addition to Article 16 (the word “backward”), and not a quantitative addition (a numerical cap, which Ambedkar discussed in his speech, but consciously refrained from writing into Article 16(4)). I do not here claim that my reading is necessarily correct, but that it is an alternative reading that, at the very least, precludes easy – and lazy – conclusions about the interpretation of Article 16(4) based on Ambedkar’s speech.

Conclusion

There is one point in the judgment where, to use an old proverb, one can see the mask slip. In paragraph 164 of his opinion, Justice Bhushan made the extraordinary statement that:

To change the 50% limit is to have a society which is not founded on equality but based on caste rule. The democracy (sic) is an essential feature of our Constitution and part of our basic structure.

What is one to make of this? All one can say is that the bogeyman of reservations leading to “caste rule” belongs in a WhatsApp forward, not in a judgment of the Supreme Court. One should perhaps not dignify this further with serious analysis. I do think, however, that this observation is particularly revealing. In both Justice Bhushan’s judgment, with its exhortations about how the country has progressed in the seventy years since Independence, and in Justice Bhat’s judgment, with its lengthy detours into various government schemes for disadvantaged classes, there is a clear undercurrent of opinion: “reservations have gone on too far and too long, we really should get rid of them now.” Justice Bhushan’s statement about “caste rule” sees those fears bubble to the surface but, as pointed out above, the undercurrent is present throughout, and ultimately seems to play a role in the Court’s repeated incantation about how the “50% rule” is so integral to the very idea of equality. I have previously argued that the history of reservations jurisprudence in India can be divided into three phases: the “exception phase”, the “facet phase”, and the “balancing phase”. With recent Supreme Court judgments repeating themselves about how there is “no right to reservation” (another overruling-of-N.M. Thomas-by-stealth move), coupled with today’s judgment, it is possible that a fourth phase – where the Supreme Court moves to limit and roll-back reservations while continuing to maintain the rhetoric of substantive equality – might have begun.

Postscript: EWS?

Does today’s judgment have any impact on the constitutional challenge to EWS reservations? Justice Bhushan expressly declined to comment on the issue. However, given the insistence of both Justice Bhushan and Justice Bhat about how the 50% rule is “integral” to equality, and given the fact that equality is undisputedly a part of the basic structure, it becomes difficult to see how the Supreme Court can reach any conclusion other than striking down EWS reservations as unconstitutional. That said, we wait to be surprised!