Guest Post: The Case for Judicial Review of Legislative Process

[This is a guest post by Dhananjay Dhonchak.]

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Introduction

Recent writings surrounding the functioning of the Parliament and the passing of contentious legislation have, to an extent, focused their attention towards the government’s blatant misuse of parliamentary provisions. However, critique has often centered around either the government’s propensity to rule in an authoritarian manner and the complicity of the Presiding Officer, or around the unconstitutional outcomes such legislation brings. As a result, solutions have only emphasized either reforming the post of the Presiding Officer or asking the Court to strike down the legislation on grounds of unconstitutionality. In this article, I argue that legislation can bring about unconstitutional results not only because of its content but also because of the manner in which it is passed. In doing so, I identify adherence to the law-making process and the legislative procedures associated with it as a democratic and constitutional value to be protected in and of itself, independent of whatever outcome it brings. I argue that the power of judicial review must be exercised by constitutional courts to protect this democratic value.  

Judicial review in the traditional sense is understood as protecting constitutional rights from legislative action. In this sense, it is primarily substantive and does not look into the process of law-making. However, judicial review of the legislative process examines the validity of a statute on the basis of whether the legislative procedures were followed or not. Thus, a law may be constitutionally valid in the traditional sense and may not infringe on any Fundamental Rights illegally, but still be invalidated. A statute invalidated on such a basis may still be enacted again provided it is done in a proper manner. .

The need for a judicial review of the legislative process

Such robust use of judicial review can be an effective strategy to keep political leaders in check. India has a particularly troubled history when it comes to political leaders complying with the legislative procedure. For example, one of the first acts of the Indian Parliament- The First Amendment- was marred by questions of procedural impropriety. Critics had pointed out that a Provisional Parliament which was indirectly elected by the people should not have the authority to amend the Constitution especially when it concerns Fundamental Rights. Tripurdaman Singh, in his book ‘Sixteen Stormy Days’ has described the amendment as a ‘constitutional travesty’ that has left the constitution as an embarrassing monument that represents ‘an ideal of legality and procedural conduct regularly ignored by state and society alike.’ More contemporary examples of procedural infirmities plaguing the passing of legislations include the effective abrogation of Article 370 and the Farm Bills.

Both of these laws were passed by blatantly violating procedural rules, or important ‘secondary rules’. Borrowing from Hart, secondary rules are those rules which govern the method of how primary rules- which grant rights or impose obligations on citizens- are to be made, changed or extinguished. With Hart’s model in mind, I argue that the parliamentary procedures are an embodiment of certain secondary rules which provide validity to any statute. These procedures distinguish the rules made by the Indian Parliament from mere ‘orders’ of a man with a loaded gun. Thus, when a Bill is passed using a voice vote when there is clear dissension in the parliament, the normative value that this Bill carries is significantly reduced. This has drastic consequences for the democratic culture of our country and undermines the institutional integrity of the Indian Parliament.

Parliamentary procedures are inextricably linked to producing a democratic result. For example, bicameral passage of a Bill ensures that elected representatives on behalf of the citizens properly discuss a law before enacting it. Similarly, Direction 20B of the Rules of Procedure, which was violated when the Jammu and Kashmir Reorganisation Act, 2019 was passed, ensures that members get at least two days to familiarise themselves with a proposed Bill before voting on it. Thus, the democratic principle of deliberation is safeguarded to some extent through such procedures. It would be a fair objection to make that imputing a requirement of deliberation on the Indian Parliament is futile because more often than not this requirement is flouted due to the incompetence of the legislators to carry out any meaningful debate. It is also practically impossible to provide a quantitative cap on the number of hours a Bill must be discussed to realise this principle of deliberation. However, the principle of deliberation, regardless of whether it has been meaningfully realised or not, continues to remain an ideal to be followed and finds expression in the parliamentary procedures. Thus, when the procedure is violated by executive scheming, the Parliament not only falls short of the ideal but attacks the very basis of the ideal itself. This strikes at the very root of Indian democracy.

Locating judicial review of the legislative process in Indian Constitutional Law

A reading of Article 122(1) of the Constitution would make us believe that since legislative actions are immune from review by the Courts on account of procedural irregularity, there is no scope for the kind of judicial review proposed in this article. However, as highlighted here, adjudication by Indian Courts indicates a strong propensity to intervene in legislative actions when the said action or irregularity impugns on a constitutional requirement.

For example, in Puttaswamy-II, the Supreme Court was faced with a question of whether the designation of a particular Bill as Money Bill by the Speaker is open to review by the Courts. The Court held that a mere “irregularity of procedure” is different from a “substantive illegality” which occurs when there is a violation of an ‘essential constitutional condition’. The Court held that the ‘decision of the Speaker certifying the Bill as Money Bill is not only a matter of procedure, and subject to judicial review.’ Thus, for the Court an ‘essential constitutional condition’ was one which was expressed in a provision of the Constitution i.e Article 110(1) which lists out what constitutes a Money Bill. However, there may be certain features of the Constitution which do not find a place in any express provision and yet their violation is seen as a violation of the Constitution. Surely then, these basic features would be understood as ‘essential constitutional conditions’.

The Court in Kesavananda Bharati held the principle of ‘Rule of Law’ and ‘Democracy’ to be a part of the basic structure of the Constitution. As explained above, violations of procedure undermine the democratic character of the Indian state. Further, the principle of Rule of Law as understood in its most basic sense is governance through a set of rules and procedures which bind even the powerful executive as different from governance based on the whims and fancies of the sovereign. Thus, I can safely argue that the passage of a statute which arbitrarily violates established parliamentary procedure also violates the principle of Rule of Law. By placing procedural violations in the context of the principles of ‘Rule of Law’ and ‘Democracy’, constitutional courts in India can invalidate the ‘results’ of such infirmities i.e the Acts which they produce, on the grounds of violating the basic structure of the Constitution. Here, the Court is not invoking a specific constitutional provision as was done in Puttaswamy-II to evaluate a procedural infirmity. The Court is categorising the basic features of the Constitution as ‘essential constitutional conditions’ that may be violated if certain parliamentary procedures are violated.

This is not to say that all procedural requirements of the Parliament automatically become part of the basic structure. The Court will have to carry out a case specific analysis, keeping in mind the procedure violated and the content of the enacted statute to come to the conclusion that the basic structure has been violated.

Elsewhere, Sindhu and Narayan, while arguing for the proportionality test to be the default standard of judicial review, have explained how the Indian Constituent Assembly wanted to build a constitutional system similar to Mureinik’s ‘culture of justification’- one where legality of governmental action is derived from the reasoning behind the exercise of that power. According to them, judicial review guided by the proportionality standard serves to sustain this culture of justification where ‘rights are considered foundational’ and any ‘abuse of power by elected officials is checked by the Courts’.

To add to this, an understanding of ‘abuse of power by elected officials’ is complete only if both rights violations as well as violations of procedural norms fall within its ambit. The logic or rationale behind a statute is undermined at the very basic level if a fundamental procedural norm is violated to enact it. This is because the first level of inquiry or ‘justification’ regarding a statute and its impact on Fundamental Rights is only made possible with the premise that the statute was validly enacted. As explained earlier, this premise may not hold true in every case which makes it crucial for the Courts to examine the process of law making.  Violations of procedural norms would be inconsistent within a ‘culture of justification’. The model of judicial review proposed in my article does not undermine the argument and model proposed by Sindhu and Narayana but supplements and adds to it. Moreover, any advocate of judicial review and its ability to invalidate unfair infringement of Fundamental Rights must necessarily concern themselves with the process of law making.  As argued before, violations of procedure strike at the very core of the principle of Rule of Law which itself is rooted in Article 14 of the Constitution i.e., a Fundamental Right.

Thus, it is possible to locate judicial review of the legislative process within the Indian Constitution through recent adjudication by the Courts and the basic structure doctrine; and also, from a more theoretical lens which underpins the purpose that judicial review is supposed to serve in Indian Democracy, i.e., sustain a culture of justification.

Conclusion

As Prof. Khaitan has highlighted, constitutionalism may be undermined by a series of incremental and systemic assaults. In the face of such attacks, an expansive judicial review as suggested here, may in practice mean very little to safeguard democratic governance and may actually become a way of validating the procedural infirmities of India’s Parliament. For example, in Puttaswamy-II, even though the Court proceeded to review the constitutional propriety of designating the Aadhar Act as a Money Bill, it ultimately decided in favour of the government. Such a validation by a court of law would seriously undermine the efforts from civil society to highlight the decay that the India Parliament has undergone since independence. Therefore, the purpose of this article is not to suggest an all-expansive solution to protect democracy in India. It is limited to identifying the power and competence of the judiciary to review infirmities in legislative process.

The Kenyan Court of Appeal’s BBI Judgment – IV: Thirsting for Sunlight/Some Concluding Remarks

There is a story about how, for the longest time, the poetic perfection of The Iliad confounded scholars. How could Homer both be the first of the epic bards, and the most accomplished? Foundational works are tentative, exploratory, sometimes stumbling, searching for an assurance that they are doomed to never realise. That privilege is reserved for later works, which build upon the foundation and reach the pinnacle.

The mystery was ultimately resolved when it was deduced that Homer was not the first – or even (in all probability) one – person, but part of an entire oral tradition of epic composition (a lesson, perhaps, that whether artist, judge, or lawyer, acts of creation are always collaborative). Yet the point remains: when we consider work that has taken on the burden of a beginning, we should hold it to the standards of a beginning. Not every question will be answered, not every resolution will satisfy, not every path be taken to its logical destination. But without a beginning, there will be nothing to take forward.

I’d like to think of the BBI Judgment in the words of Christopher Okigbo’s poem, Siren Limits: “For he was a shrub among the poplars/ Needing more roots/ More sap to grow to sunlight/ Thirsting for sunlight…” In the years to come, constitutional jurisprudence may put down stronger roots, and more sap may flow that takes it to sunlight, but here is where the beginning is.

In that spirit, in the first section of this post, I raise a couple of questions that future courts may be called upon to answer. These are in addition to some of the issues discussed in the previous posts, which have also been left open by the judgment(s) (constitutional statutes, referendum questions, identifying the exact elements of the basic structure etc.)

Two Questions

Making the Constitution Too Rigid?

A stand-out feature of both the High Court and the Court of Appeal judgments – as we have discussed – has been that, for the first time in basic structure history, the doctrine has been held not to constitute a bar on amendments, but to require the replication of the Constitution’s founding conditions. This, it is argued, provides a safeguard against a possible juristocracy, where the Courts stand as barriers to the people’s will, thereby leaving a revolution or a coup as the only options.

To this, the counter-argument – mentioned in Sichale JA’s dissenting opinion – is that the judiciary nonetheless remains a gatekeeper, as it will decide when a proposed amendment violates the basic structure and therefore needs to go through the rigorous four-step “re-founding” procedure. This becomes problematic, because if Article 257 is meant to empower the common person – wanjiku – to initiate a constitutional amendment process, then placing the constitutional Courts as a set of Damocles’ swords, that might at any point fall upon that process, cut it short, and demand its replacement by the far more onerous re-founding procedure, can hardly be called empowerment. After all, is it fair to expect wanjiku to approach the constitutional court every time, to check in advance, whether Article 257 should apply to a proposed amendment, or whether preparations should commence for nationwide civic education, a constituent assembly, and so on?

I suspect that it is for this reason that more than one judge in the majority did try to define the basic structure with a degree of specificity, gesturing – in particular – to the ten thematic areas set out in Article 255(1) of the Constitution (we have already seen that this argument suffers from the problem that in that case, the text explicitly allows for those provisions to be amended following specific procedures). Ultimately, however, the Court of Appeal judgments could not reach a consensus on this point. The upshot of this is that it is likely that the Kenyan courts – more than courts in other jurisdictions – will be faced with litigation that will specifically require them to identify what constitutes the basic structure.

That said, however, I believe that the concern is somewhat overstated. One thing that comes through all of the Court of Appeal judgments is a clear sense that constitutional amendment is a serious endeavour. The stakes – permanent alteration of the Constitution – are high. In such a circumstance, is it that disproportionate to have the constitutional Courts involved at the stage of vetting the amendment, simply on the question of which procedural channel it should proceed into? After all, there are jurisdictions where pre-legislative scrutiny for constitutional compliance – whether by a constitutional office such as that of the Attorney-General, or even by a court – exists. And one can easily imagine how the Kenyan courts can develop norms to minimise the disruption that this will cause. For example, the point at which one million signatures are collected and verified, could become the trigger point for judicial examination of whether the initiators should proceed to the next steps under Article 257, or whether the four-step re-founding process applies. Note that this need not be an automatic trigger: the requirement that someone has to challenge the process can remain, but the courts can develop norms that will expedite such hearings, discourage appeals on the specific question of which procedural channel a particular amendment should go down, and so on. The judiciary’s role, then, would remain a limited one: simply to adjudicate whether the proposed amendments are of such import that they need the deeper public participation envisaged in the four-step re-founding process, or whether Article 257 will do. The task will obviously be a challenging one, but not one that is beyond the remit of what courts normally do.

De-Politicising Politics, and the Perils of Vox Populi, Vox Dei

There is an argument that both through the basic structure doctrine, and through its interpretation of Article 257, the Court evinces a distrust of politicians and political processes, and a (consequent) valorisation of litigation and the judicial process; that the effect of its judgment is to make the Constitution too rigid, and effectively impossible to amend; and that, if we look at Article 257 closely, it was always meant to be a joint effort between politicians and the People, because the threshold barriers that it places – one million signatures and so on – require the institutional backing of politicians to start with. It is further argued that this is not necessarily a bad thing, as (a) even historically, the 2010 Constitution of Kenya was the product of political compromise, and not the outcome of pure public participation that the High Court’s judgment made it out to be; and (b) there is no warrant to demonise politicians and politics as tainted or compromised, or at least, relatively more tainted and compromised than litigation and adjudication.

To this, there is an added concern: judgments that claim to speak in the name of the People invariably end up flattening a plural and diverse society, with plural and diverse interests, into a single mass with a single desire – which only the Court is in a position to interpret and ventriloquise. This, then, turns into the exact top-down imposition of norms and values that the doctrine of public participation is meant to forestall.

While I believe that the Court of Appeal did not make either of the two mistakes indicated above, I do think that the argument is a powerful one, and requires the judiciary to exercise consistent vigilance (primarily upon itself). A reading of the High Court and Court of Appeal judgments, to my mind, makes it clear that the Constitution Amendment Bill of 2020 was executive-driven (indeed, it would be a bold person who would go against the unanimous finding of twelve judges, across two courts, on this). But it is easy to imagine messier, and less clear-cut situations. What happens if, for instance, an amendment proposal emerges from a set of people, and then a political party or a charismatic politician takes it up, uses their platform to amplify it, and ultimately helps to push it over the one-million signature mark? A point was made repeatedly that politicians are part of The People; now, while the distinction between the two was particularly clear in the BBI Case, what happens when it is not so, and when it becomes much more difficult to definitively say, “this proposed Amendment came from the political elite, and not from the People?” Is the answer judicial deference? But if it is deference, wouldn’t it simply allow powerful politicians to use proxies, as long as they did it more cleverly and subtly than the protagonists of the BBI?

The difficulty, I believe, lies in the fact that when you say that Article 257 is a provision for The People, you run into a host of very difficult challenges about who are the People, who are not the People, when is it that the People are acting, and so on. The intuitive point that the High Court and the Court of Appeal were getting at is a clear and powerful one: Article 257 envisages an active citizenry, one that engages with issues and generates proposals for amendments after internal social debate – and not a passive citizenry, that votes “Yes” or “No” to a binary choice placed before it by a set of powerful politicians. And while I believe that that is the correct reading of Article 257, it places courts between the Scylla of short-circuiting even legitimate politics, and the Charybdis of stripping Article 257 of its unique, public-facing character.

I think that the only possible answer to this is continuing judicial good sense. Given the issues it had to resolve, I think that it is inevitable – as pointed out above – that the BBI Judgment would leave some issues hanging. But for me, this is not a weakness of the judgment, or a reason to castigate it: I think that there are certain problems that simply can’t be resolved in advance, and need courts to “make the path by walking.”

The Grammar of Power

Stripped down to the essentials, Constitutions are about power: who holds it, who can exercise it, who can be stopped from wielding it; when, how, and by whom. Constitutions are also full of gaps, of silences unintended or strategic, of ambiguities planned and unplanned. Interpretation, thus, is often about the balance of power: resolving the gaps, silences, and ambiguities in ways that alter power relations, place – or lift – constraints upon the power that institutional actors have, and how they can deploy it. When Robert Cover writes, therefore, that “legal interpretation takes place in a field of pain and death”, we can slightly modify it to say that “constitutional interpretation takes place in a field of power.”

At its heart, I think that the BBI Judgment is about power. The issues that span a total of 1089 pages are united by one common theme: the judges in the majority believe that the Constitution acts as a barrier against the concentration of power, and as a channel for its dispersal. Why require referendum questions to be grouped together by unity of content? Because doing so will constrain the power of institutional actors to force unpalatable choices upon people in all-or-nothing referenda. Why interpret Article 257 to exclude public office holders from being initiators? Because to hold otherwise would divest power vested in the public, and instead, place it in the hands of a political executive claiming to directly “speak for the People”. Why insist on contextual public participation for the Article 257 process? Because without granular participation, even a “People-driven process” will not be free from centres of power that dominate the conversation. Why insist upon fixing the IEBC quorum at five, and for a legislative framework to conduct referenda? Because independent Fourth Branch Institutions play a vital role in checking executive impunity on a day-to-day basis, in a way that courts often cannot. And lastly, why the basic structure, why this form of the basic structure? Because the power to re-constitute the Constitution is the most consequential of all powers: institutional actors should not have it, but nor should the courts have the power to stop it. Thus, the articulation of the primary constituent power, and its exercise through – primarily – procedural steps.

And I think that it is here that we find the most important contribution of the High Court and the Court of Appeal judgments to global constitutional jurisprudence. Reams have been written by now about the “Imperial Presidency”, and the slow – but inevitable – shift, across the world, towards concentration of political power rather than its dispersal. Examining the High Court and Court of Appeals judgments through the lens of power, its structures and its forms, reveals a judiciary that is working with constitutional text and context to combat the institutionalisation and centralisation of power, to prevent the Constitution from being used as the vehicle of such a project, and – through interpretive method (see the third post in the series) – to try and future-proof it from ever being so used. It is too early to know if the effort will succeed. The sap and the roots are now the responsibility of future judgments, if sunlight is to be reached, and not just thirsted for.

The Hydra and the Sword: Parting Thoughts

There are moments in one’s life when you can tell someone, with utter clarity, that “I was there when…” For my part, I will always remember where I was, and what I was doing, when, during oral arguments before the Court of Appeal, I heard Dr. Muthomi Thiankolu’s ten-minute summary of Kenyan constitutional history through the allegory of the Hydra of Lerna. It ended thus:

“If you drop the sword, My Lords and My Ladies, we have been there before. When the courts drop the sword of the Constitution, we had torture chambers. We had detentions without trial. We had sedition laws. It may sound, My Lord, that I am exaggerating, but the whole thing began in small bits.”

I remember it because by the end, I was almost in tears. It took me back to a moment, more than four years ago, when I stood in another court and heard a lawyer channel Justice William O. Douglas to tell the bench: “As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air – however slight – lest we become unwitting victims of the darkness.”

The chronicle of events that followed those words does not make for pleasant reading. But as I heard Dr. Thiankolu speak of an era of executive impunity – an impunity enabled by a judiciary (with a few exceptions) that saw itself as an extended arm of the executive – what struck me was not how familiar (detentions without trial!) his examples sounded, but that he spoke of them in the past tense. And on the 20th of August, as judge after judge in the Court of Appeal read out their pronouncement, it seemed that an exclamation point was being added to those arguments: the past really had become a foreign country.

One person’s past is invariably another person’s present. But the present sometimes overwhelms us with its heaviness. It creates an illusion of permanence that forecloses the possibility of imagining a future where this present has become the past. We cannot bootstrap ourselves out of such moments: we need someone to show us the way, or to show us, at least, that a way exists.

And so, perhaps the great – and intangible – gift that the Kenyan courts have given to those stuck in an interminable present, is a simple reminder: it needn’t always be like this.

The Kenyan Court of Appeal’s BBI Judgment – III: The Fourth Branch/IEBC

If you were to draw one of those Venn Diagrams that are so popular as internet memes these days, for the BBI Judgment, the Independent Electoral and Boundaries Commission [“IEBC”] would be at the centre. Established under Article 88 of the Constitution (see here), the IEBC is a Fourth Branch institution that – as the name suggests – is responsible for supervising elections and referenda, and for related matters such as boundary and constituency delimitation (see Article 88(4)). In the BBI Case, the IEBC was involved in a range overlapping issues: one of the grounds for challenging the Constitution Amendment Bill was that by directly altering constituencies, it took away the prescribed function of the IEBC; and furthermore, since the IEBC plays an important part under Article 257, its own conduct during the Popular Initiative came under scrutiny. Let us take some of these issues in turn.

The Constitution Amendment Bill and the IEBC

Recall that one of the features of the Constitution Amendment Bill was the creation of seventy new constituencies, allocated to twenty-nine counties. This had been invalidated by the High Court, on the basis that the independence of the IEBC and its constitutionally guaranteed role of delimitation was itself a part of the basic structure. Agreeing with this analysis, Musinga (P), in his lead judgment (with which Gatembu Kairu JA agrees), frames the issue as one of political gerrymandering (paragraph 292) (thus implicitly agreeing with Respondent’s counsel during oral arguments, where it had been pointed out that constituencies are essentially sources – and terrains – of political and resource patronage). This point is strengthened by the fact that the criteria in the Second Schedule to the Constitution Amendment Bill to determine the manner of increase of constituencies were different from the criteria set out in Article 89.

This, coupled with the fact that the Second Schedule to the Constitution Amendment Bill would essentially set up two parallel – and conflicting – power centres with respect to delimitation (without deleting Article 89(2)) allow Musinga J to hold that in any event, the creation of additional constituencies via amendment is unconstitutional (paragraphs 416 – 417; see also Nambuye JA, paragraph 150).

The deeper rationale for this is provided in Kiage JA’s opinion. Kiage JA notes:

the protective role of independence commissions over the sovereignty of the people is of critical and vital importance and can only be attained by a jealous and uncompromising assertion, exercise and defense of their independence. I apprehend that it is independent commissions alongside the Judiciary which must police and patrol the lines of delegation of the sovereignty of the people to Parliament and the legislative assemblies in the county governments, the national exercise and the executive structures in the county governments, and the Judiciary and independent tribunals. Independent Commissions are charged with duty of vigilantly and keenly ensuring that the State organs to which sovereign power is delegated maintain the stance of delegates accountable to their principals, and remain always the servants of the people. (pg 187)

These comments chime with a growing trend in comparative constitutionalism, which is the recognition of “Fourth Branch Institutions” as crucial guarantors of constitutional democracy. Information Commissions, Elections Commissions, Ombudspersons (such as, for example, South Africa’s Public Protector or India’s Comptroller and Auditor General), are examples of such bodies. Their importance lies in the fact that as far as certain fundamental rights are concerned, their effective realisation is impossible without a kind of institutional mediation. The right to vote, for example, needs an election commission to be realised; similarly, the right to information needs an information commission; and so on. Consequently, the independence of such bodies is an integral feature of the complete fulfilment of the right itself, and insofar as issues such as the membership and functions of those bodies are to be determined by legislation, such legislation must (a) be framed so as to ensure that the right is actually realised, and (b) once framed, attains the status of a “constitutional statute.” While a range of these issues were, of course, not before the BBI Court, Kiage JA’s observations – specifically about the role of commissions in ensuring accountability – gesture towards a recognition of the constitutional status of Fourth Branch institutions, and all that such recognition entails.

Kiage JA’s observations are also a response to Sichale JA’s dissent. As the High Court had held, amending Article 89 itself was permissible as long as the procedures under Articles 255 – 257 were followed. Thus, hypothetically, the total number of constituencies could be increased via a procedural amendment. However, the manner in which this increase took place would have to be such that the independence of the IEBC in matters of delimitation (which constitutes a part of the basic structure) was not compromised. Thus, the issue with the Constitution Amendment Bill was not that it sought to increase the number of constituencies, but that it sought to cut the IEBC out of the process altogether.

Sichale JA then argues that a mere increase in the number of constituencies does not amount to a “delimitation” exercise. With respect, this argument appears to play upon a distinction without a difference: the seventy new constituencies will not be created out of a vacuum. They must necessarily be carved out of existing constituencies, thus – ipso facto – altering boundaries and in effect (even if not formally) becoming an exercise in delimitation. It is this that the majority finds must require the independent assessment of the IEBC before any increase in the number of constituencies is effected. Indeed, Tuiyott JA grasps precisely this point when he notes that:

Further, section 1(2) identifies the counties where the additional seventy constituencies will be located. In doing so, delimitation in respect to these 70 constituencies is in a sense pre-set without the involvement of IEBC as they are already allocated to counties set out in the schedule. (paragraph 234)

The IEBC: Questions of Process

In the BBI Hearings, the IEBC was – interestingly – both a victim and in the dock! Its conduct in the Popular Initiative was challenged on multiple grounds: an absence of quorum, the absence of an adequate legislative framework, the absence of mechanisms for voter registration, and so on. On almost all the counts, the IEBC was found wanting, both at the High Court, and at the Court of Appeal. By a majority, the Court of Appeal affirmed the High Court’s findings that:

1. That the minimum quorum requirement for the IEBC to carry out its functions was five members (an understaffed IEBC, following a spate of resignations, did not meet this). This finding required the Court to engage with two potentially conflicting precedents on this point (Katiba Institute and Isiah Biwott); it was ultimately held that the judicial invalidation of a prior attempt to amend legislation and bring down the quorum meant that, as per law, the quorum stayed at five (but see Tuiyott JA’s opinion for the same outcome, albeit with different reasoning).
2. That, prior to the Popular Initiative, the IEBC had failed in its obligation to demonstrate continuing voter registration, which would have ensured that there was a sufficient degree of correspondence between those who were entitled to vote, and actually registered voters.
3. That the task of the IEBC under Article 257 was not simply a head-count of the million votes, but a basic level of verification as well (based on the IEBC’s own previous documents). The IEBC, however, failed to put into place a mechanism for verification; and the Administrative Procedures that it did put into place failed the threshold requirement for such secondary legislation (including, for example, that of public participation).
4. That there did not exist an adequate legislative and regulatory framework for the conduct of referenda (the provisions in the Elections Act were unfit for purpose, especially considering the seriousness of a referendum under Article 257).

The analysis here concerned detailed engagement with Kenyan statutory and administrative law. Upon this, I am not qualified to comment, noting only that I found Tuiyott JA’s opinion the most granular and instructive (although his reasoning departs from the majority in certain respects). However, there are two larger public law points that I want to briefly flag. The first is the Court’s insistence that the importance of referenda required, in essence, the strictest possible compliance by constitutional authorities. When you survey global constitutional jurisprudence, you find two approaches. One is what may be called a “leeway” approach: that the undertaking of complex administrative tasks requires play in the joints, and that therefore, upon challenge, a Court will allow the State to get away without strict compliance with law, as long as there is substantive compliance (a theory familiar, perhaps, from contract law). The other, however, is closer to criminal law: that it is the precise importance of the issues at stake that require any deviation from the established procedure to be treated with great seriousness. Across the Court of Appeal’s judgments, the point that a an amendment to the Constitution is a matter of paramount importance. Consequently, issues such as quorum – which would appear to be minor procedural flaws that should not vitiate an exercise of scale – attain the same degree of gravity as the exercise itself, and cannot be lightly brushed aside.

The second point ties in with the first half of the post, and brings us back to the point of constitutional statutes. It is interesting to note that the Court of Appeals is pellucidly clear on the point that the implementation of the Popular Initiative required the enactment of a legislative scheme (although the High Court did hold – and Tuiyott JA affirms – that for something like Article 257, the legislature’s failure to act should not be held against the People, and that consequently, a procedure that is constitutionally compliant will still pass muster). This comports with the view that certain fundamental rights are incomplete without legislative instantiation, and raises a host of interesting questions about how statute and Constitution are to be read together, when that legislation does come into existence. It has been argued by scholars that constitutional statutes are a kind of “super statute”, their status somewhere between ordinary law and constitutional law. Indeed, the precedent in Katiba Institute, involving the striking down of the attempt to reduce quorum – as discussed above – is a good example of how, once a legislative scheme does exist to instantiate a set of rights, certain kinds of clawback, or regression, will not be treated as a simple legislative amendment, but an actual constitutional violation (see here). (And this is why I respectfully disagree with Tuiyott JA’s argument that even when the revised Quorum provision was struck down in Katiba Institute, the older one did not revive; Musinga (P)’s reasoning that the older provision stays in force is closer to the theory of constitutional statutes).

For example, suppose that tomorrow Kenya enacts a Referendum Act, which follows the Court of Appeals judgment and prescribes a “unity of content” approach towards the framing of referendum questions. Now suppose that a future Kenyan Parliament decides to amend that Act to allow for a “lumping” of questions a la BBI. The theory of constitutional statutes will allow a Court to strike down such an amendment on constitutional grounds. The argument will be that once a statutory framework has been established to instantiate a certain constitutional right, it is not open to Parliament to retrogress and once again bring the legal position to that of non-compliance from compliance.

Of course, none of these questions were before the Court of Appeals. I believe, however, that the theory of constitutional statutes forms an unarticulated major premise of the Court’s findings on adequacy of legislative framework. It will therefore be exciting to see whether, in a future case where the question is front and centre, the the concept attains full articulation.

Conclusion

The BBI Appeals also considered a range of other issues, such as Presidential immunity, the question of service upon the President, the role of County Assemblies, the inclusion of the Kenyan National Union of Nurses, cross-appeals, and many others. I read these findings with great interest, and learned a lot from reading them, but their specificity precludes further analysis on my part.

This brings to an end the three-part substantive examination of the BBI judgment. I will – tomorrow – write a concluding post reflecting on some of the lingering questions, as well as what, perhaps, what comparative constitutional jurisprudence could learn from the Kenyan Courts.

The Kenyan Court of Appeal’s BBI Judgment – II: Understanding the Popular Initiative

Article 257 of the Kenyan Constitution is one of the most interesting constitutional provisions that I’ve seen. Titled “Amendment by Popular Initiative”, it sets out ten steps for amending the Constitution, which ostensibly begin with the collection of one million signatures of registered voters, and end with a referendum. In between, there is the involvement of the representative organs (Parliament and County Assemblies) as well as a fourth-branch institution (the Independent Electoral and Boundaries Commission, or the IEBC). If each of these ten steps is completed – with its mixture of direct and representative democracy, and the participation of independent constitutional bodies – the Constitution stands amended by Popular Initiative.

As the Constitution Amendment Bill 2020 was going down the Popular Initiative Route, Article 257 was at the heart of much of the litigation, both before the High Court, and the Court of Appeal. Out of the twenty-one thematic issues framed in paragraph 50 of Musinga (P)’s lead judgment, I counted six that were directly about the interpretation of Article 257, and a few more that were ancillary. For the sake of simplicity, I propose to analyse three issues here.

1. While the “promoters” of the BBI initiative were Mr Dennis Waveru and the Hon. Junet Mohammed, it was strongly urged that the actual force behind the initiative were H.E. President Uhuru Kenyatta and the Hon. Raila Odinga. This then led to a mixed question of fact and law: on fact, who was actually behind the initiative; and on law, if it was the President, then does Article 257 contemplate a situation where the President sets the popular initiative process in motion?
2. The Constitution Amendment Bill contained seventy-four proposed constitutional amendments. Does Article 257 allow for this kind of a “package deal” to be put to a referendum, or does it require each proposed amendment to be put to the People in a separate referendum?
3. What are the standards of public participation contemplated by Article 257, and did the BBI process meet those standards?

According to the Disposition, the Court of Appeal (i) unanimously held that the President was behind the BBI initiative, and that this was unconstitutional; (ii) by a 4-3 majority, held that separate amendments need not be put to the People as individual referendum questions; and (iii) did not specifically pass any orders on the third issue. Let us now consider each in turn.

Top-Down or Bottom-Up?

On the issue of who really was behind the BBI initiative, the findings are fairly straightforward. The lead judgment of Musinga (P) traces the chronology as follows: the “handshake” between H.E. President Uhuru Kenyatta and the Hon. Raila Odinga; the establishment, by the President, and through a formal gazette notification, of the BBI Taskforce; the establishment, also by the President, and also through a formal gazette notification, of the BBI Steering Committee; and the coming-into-being of the Constitution Amendment Bill 2020 as an annexure to the Steering Committee Report. Musinga (P) therefore holds:

From the foregoing, there can be no dispute that the President was the initiator of the BBI Initiative, having established and gazetted under his hand the BBI Taskforce and the BBI Steering Committee. I am in agreement with the High Court’s finding that the Amendment Bill was an initiative of the President. (paragraph 312)

During proceedings before the Court of Appeal, Appellants had nonetheless argued that the BBI Taskforce and the BBI Steering Committee were distinct from the BBI Secretariat, a voluntary alliance of political parties, and from where the actual promoters of the initiative under 257 (Mr. Waveru and Hon. Mohammed) came from. Musinga (P) rebuts this point by noting that constitutional amendment proposals were clearly within the terms of reference of the BBI Steering Committee (paragraph 321), evincing a clear intention to start the process under Article 257. Thus:

Considering the way the Amendment Bill was developed and processed, it cannot pass muster as a popular initiative. The Bill came into being after “the President and Commander –in-Chief of the Defence Forces” appointed the BBI Taskforce which prepared a report and presented it to the President, who in turn set up the BBI Steering Committee that eventually drew up the Bill. It is however not in dispute that the BBI Steering Committee toured all the counties and received views from various stakeholders, but that cannot qualify the process as a popular initiative. There is no indication whatsoever that this was a citizen initiated move. By all means, it was an executive led and driven initiative. (paragraph 325)

We find similar analysis in the other judgments (see Nambuye JA, paragraphs 66 – 71; Okwengu JA, paragraph 136, 154 – 158; Kiage JA, pgs 101 – 107, 118 – 121; Gatembu Kairu JA, paragraph 83; Sichale JA, pgs 67 – 69; Tuiyott JA, paragraphs 66 – 78, for a particularly detailed examination of affidavits).

Musinga (P) then affirms the High Court’s historical analysis, according to which a clear distinction was drawn between amendments initiated “by the People”, and those initiated by the “political elite”, with the BBI falling clearly within the latter category. A perusal of the CKRC Report reveals that the entire purpose of what eventually become Article 257 – and its passage through multiple draft Constitutions through the 2000s – was to release the amendment process from parliamentary monopoly, and provide an avenue whereby the public could be involved, not just at the end of the process (through a referendum), but at the point of initiation.

Now, what of the argument that the President could nonetheless initiate the process “in his capacity as a private citizen”, exercising his own constitutional rights? Here, Musinga (P) affirms the High Court’s conceptual analysis, noting that the Kenyan Constitution itself recognises the distinction between representative and direct democracy; consequently, a provision that expressly contemplates the latter process cannot be usurped by representative organs (paragraph 348). Other judges agree (see Nambuye JA, paragraphs 99 – 101; Okwengu JA, paragraphs 110 – 112, and also paragraph 152, noting that the President cannot “temporary remove his executive mantle”; Kiage JA, pg 108 – 110; Gatembu Kairu JA, paragraphs 77 – 81, Sichale JA, pgs 69 – 72; Tuiyott JA, paragraphs 49, 52 – 55).

I want to make two further points here. The first is that during oral arguments, Appellants pointed out a situation where the President’s agenda would be stymied by an opposition-dominated Parliament (the famous “veto points”, to borrow a term from American Presidentialism), leaving them no choice but to take their case to the People directly. Article 257 facilitated this. This argument is acknowledged by Kiage JA, but his response is, essentially, “too bad, the Constitution doesn’t allow for that.” I think, however, that Kiage JA does indeed answer this question, but as part of his basic structure analysis (see previous post). In his analysis of comparative constitutional history, Kiage JA notes how the “Imperial Presidency” came to dominate African constitutionalism after the first wave of decolonisation in the 1960s, and he goes on to argue that the 2010 Kenyan Constitution is a response – inter alia – to the pathologies of the Imperial Presidency. This is a crucial point, because the arguments in the context of Article 257 reveal the stakes here. As multiple Justices note, the text of Article 257 does not specifically bar the President from initiating or promoting the popular amendment process. The question then becomes, how do you resolve this constitutional silence? Now if you think of the Presidential system as set out under the 2010 Constitution as empowering the President against the kind of veto-points that one finds in the United States, then the Appellants’ arguments would be persuasive; however, if you think that the 2010 Constitution was meant – inter alia – to check the Imperial Presidency, then ambiguities and silences should be resolved in favour of veto points and against expanded Presidential power. As is clear, this debate goes right to the fundamental premises of the 2010 Constitution – its “basic structure”, one might almost say! And consequently, which side one takes on this will have implications beyond this judgment, in future litigation concerning Presidential and executive powers. None of the judgments in the Court of Appeal squarely address this point, and so, arguably, it remains open.

My second point involves a debate (of sorts) between Okwengu JA and Tuiyott JA on this point. In her analysis of the legality of the BBI Steering Committee itself, Okwengu JA appears to suggest that had the Steering Committee simply floated some proposals on constitutional amendment, and had those proposals then been taken up by ordinary citizens, the process under Article 257 may have been kicked off validly. This, however, raises a concern that I had indicated in my earlier post about the High Court judgment: even a ruling clarifying that neither the President nor any other State organ can initiate or promote the process under Article 257 will leave open the possibility of doing an end-run around the Constitution through clever use of proxies. Interestingly, this danger is specifically recognised by Tuiyott JA. In paragraph 60, Tuiyott JA notes that:

That said, the process of popular initiative must be guarded from abuse. A State actor, who is otherwise barred from initiating a popular initiative, cannot originate a proposal for amendment then hire or sponsor a citizen to formulate it into a Bill and then collect signatures in support. In that instance, the promoter will simply be a surrogate of the State actor. That will not be a truly citizen-driven initiative as it will an enterprise of the State actor. There will be occasion therefore when it will be necessary to look beyond the person who formulates the draft Bill and collects the signatures to discover the hand behind the initiative, only in this way will the true intent of the popular initiative process be protected against manipulation. (paragraph 60)

Tuiyott JA therefore spends the next eighteen paragraphs minutely examining the evidence on record, including – in particular detail – the affidavit of Mr Waveru, where he himself conceded links between the BBI Secretariat, Taskforce, and Steering Committee, to demonstrate that what was happening here was indeed “an enterprise of the State actor.” This is promising: I suspect that, given the Court of Appeal’s ruling, in the future, the use of proxies – only more subtly and cleverly than the somewhat ham-fisted attempt in this case – to circumvent Article 257 is a non-trivial possibility. In such cases, Tuiyott JA’s detailed consideration of evidence indicates how the judiciary may examine this issue.

The Referendum Questions

Recall that the High Court had held that in a proposal for amending the Constitution that goes to a referendum, the proposed amendments must be submitted as separate and distinct questions, and not as a “package deal”. There are many rationales for this, two of which are succinctly summarised by Nambuye JA (paragraph 121). First, the binary, up-down nature of referenda makes them particularly unsuitable for the simultaneous determination of multiple issues, especially where citizens may have different views on those issues. By forcing a “package deal” vote, actual public preferences are thus seriously distorted. Secondly – and relatedly – the “package deal” allows the State to throw in “sweeteners” to make undesired changes more palatable. Suppose I offer to buy you ice-cream for a week if – and only if – you allow me to whack you in the face, your affirmation of my “package deal” doesn’t actually signify that you want to be whacked in the face – especially when the two “offers” are entirely unrelated.

On this point, Musinga (P) – whose opinion appears to be controlling (but see below) – adopts a textual reading that is somewhat (in my submission) at odds with the tenor of the rest of his judgment. He notes that under Article 257, what is required to be submitted to the People is a “Bill”, not a “question” or “questions”. The modalities of how this is to be done lies exclusively within the domain of the IEBC (paragraph 398). Note, however, that the textual point is not quite as clear-cut as all that. As Nambuye JA notes – in a very clear exposition of the argument (paragraphs 121 – 132) – the Article 257 differs from, say, the Article V of the United States Constitution, which uses the plural “amendments”, while Article 257 uses the singular “an amendment.” (see also Kiage JA, pgs 175 – 176) There, is therefore, at least a plausible textual argument for the proposition that the Article 257 process refers to a single amendment and therefore, by definition, excludes omnibus bills that offer up multiple amendments.

Now, on all other points, the Justices in the Court of Appeal – including Musinga (P) – consistently hold that wherever there is textual ambiguity or silence, an interpretation that strengthens public participation is to be preferred over one that does not. In this context, it is hard to argue with Nambuye JA’s observation in paragraph 128, that:

It is further my position that, when a bill is limited to a single subject, it is easier for the public to more fully understand the impact of the enactment. It also prevents fraud upon the people by minimizing the possibility of promoters of the amendment hiding harmful proposals in the midst complex multi-subject measures that the common man might not be able to grasp and understand. (paragraph 128)

I respectfully submit, therefore, that on this issue, Musinga (P) departs from his own consistent interpretive methodology. Furthermore, and somewhat bafflingly, shortly after his analysis, he nevertheless goes on to say “that notwithstanding, it is improper to lump together 74 proposed constitutional amendments in a Bill” (paragraph 399) Evidently, therefore, Musinga (P) is entirely cognisant of the problem with “package deals” – and indeed, around sixty paragraphs before, he himself identifies the problem with this package deal:

Some of the proposed amendments are rather superfluous, and strictly speaking they ought not to have been proposed as constitutional amendments by the promoters. At best, they could only be proposed as statutory amendments but were intentionally included in the Amendment Bill and appropriate statutory amendment Bills drawn by the to act as sweeteners to coax voters into supporting the proposed constitutional amendments. (paragraph 336)

He goes on to describe these amendments (tax breaks, loan exemptions etc), and immediately after, notes:

These are definitely very good and appealing proposals, but anchoring them on the Constitution of Kenya (Amendment) Bill, 2020 that also proposed very far reaching alterations of the basic structure of our Constitution was a clever bait to entice the populace, and particularly the young registered voters, who are the majority, to support the Amendment Bill, without proper civic education on all the contents of the entire Bill. (paragraph 338)

But this “clever bait” is surely as much an end run around Article 257 as is the President standing behind the figures of Mr. Waveru and the Hon. Mohammed to initiate the BBI process! Thus, this makes Musinga (P)’s finding on the issue of separate referendum questions even more baffling. I wonder, though, if an answer is to be found in paragraph 400. There, Musinga (P) notes:

I do not therefore agree with the learned judges that what is to be subjected to the referendum is a question or questions, it is the Amendment Bill, but the people are to approve or disapprove of the Bill by answering a question or questions as framed by the IEBC and approved by Parliament. (paragraph 400)

This – I would submit – is a bit of a walk-back, because here Musinga (P) does become prescriptive about the form that the Amendment Bill should take, notwithstanding the IEBC. Now, realistically, it is hard to imagine how anyone might lump together 74 amendments into a single question, unless one takes the absolutely blatant route of listing out all the amendments and ending it with a single question: “Do you agree, yes/no?” What Musinga (P) seems to be saying here is that the referendum can be a single referendum, on a single Bill, but within that, the People should have a chance to vote on separate questions separately (this possibility of a multi-option referendum as solving the “Hobson’s Choice” at issue is indicated by Kiage JA, although he declines to make a finding on it, given that there is no Referendum Act in existence yet (Kiage JA, pg 179).

There is, however, a further issue that now arises. The Disposition notes that the High Court’s finding on multiple/single question referenda has been overruled by a 4-3 majority. The three in the minority are said to be Nambuye JA, Okwengu JA, and Kiage JA. I have referred to the views of Nambuye and Kiage JJA above, and Okwengu JA says that she agrees with Kiage JA.

Now, first of all, Tuiyott JA in his opinion does not return a finding on this issue: he says that there was no “live controversy” in the instant case, as the IEBC had not yet determined the manner and form in which it would frame the reference questions (paragraph 251). To start with, this already means that – even if we read Musinga (P)’s opinion as going against the Respondents, there is no majority for the proposition that multiple issues can be lumped together in a single bill.

Complicating matters further, Gatembu Kairu JA, in his consideration of the issue, has this to say:

…[the voter’s] choice, in my view, is rendered nugatory, inoperative, and inconsequential if the voter is called upon to vote on an omnibus draft Bill, that contains a raft of numerous, diverse, and unrelated proposed amendments to the Constitution, in this case over 70 proposals of amendments, that cut across the entire spectrum of the Constitution. (paragraph 156)

He then says:

The argument made for the respondents on the principle of unity of content or single subject matter, that Constitutional amendment through a referendum should deal with only one main issue, is one I find most attractive and persuasive. (paragraph 157)

And he then says:

Ultimately, it seems to me that to put a single binary question or multiple question is a matter to be informed by the nature of amendment proposed. It may well be that certain proposed amendments may require separate and distinct referendum questions to be framed. What in my view Article 257(10) of the Constitution does not contemplate is the submission to the people in a referendum of an omnibus amendment Bill, a hotchpot of an amendment Bill, such as the Constitution Amendment Bill in this case. (paragraph 159)

Gatembu Kairu JA thus seems to adopt a middle ground, where it is possible to have thematic amendment bills, where the several questions relate or are part of the same theme, thus leading to “unity of content”. It is easy to imagine examples: say, for instance, the restructuring of a regulatory body, where it wouldn’t make sense to treat the amendments separately. This determination, it is clear, must be on a case to case basis. Gatembu Kairu JA makes this explicit when, in his summary, he says that he is not overruling, but qualifying the High Court’s orders on this point by adding the phrase “subject to the nature of the amendment” (paragraph 197); but what is also clear is that Gatembu Kairu JA – along with the three other judges in the minority – is unambiguous on the point that the lumping together of unrelated amendments into an Omnibus Bill is not merely improper, but unconstitutional.

As, however, there is nothing in the overall Disposition on this, we will have to see what the future holds.

Public Participation

The final issue that I want to consider in this post is the scope of public participation under Article 257. Public participation as a constitutional value is one of the outstanding features of the Kenyan Constitution, explicitly set out under Article 10, and subject to interpretation in a number of judgments such as Kiambu County Government v Robert N. Gakuru. Public participation under Kenyan Constitutional law has both procedural and substantive elements: transparency, adequate time, accessibility, and so on.

The requirements of public participation are somewhat challenging to articulate in the abstract, and are therefore best understood through application. In the majority judgments, the following aspects come through: (a) that copies of the Amendment Bill were posted online only in English, despite Kiswhaili being both the national and an official language (Musinga (P), paragraph 333); that there was no indication that civic education about the amendments had been undertaken (Musinga (P), paragraph 335; Nambuye JA, paragraph 84; Okwengu JA, paragraphs 122 – 128;); that the time gap between when the Bill was published in local newspapers and its approval in County Assemblies, as well as at other stages of the process, was much too short to allow for any reasonable public participation; (Musinga (P), paragraph 339; Kiage JA, pgs 135 – 137). Importantly, a majority of the bench also holds that the burden of demonstrating public participation lies upon the State, as – in accordance with the law of evidence – it has the requisite information on that point. To this I would only add: to the extent that public participation is a constitutional value under Article 10, the argument that an amendment process (for example) is not constitutionally complete until public participation has been affirmatively demonstrated, is a powerful one. Beyond the law of evidence, thus, there is a constitutional reason why the burden of proof should be upon the State.

There is, however, something of a split in the bench when it comes to the stages at which this obligation exists, and the intensity to which it exists. This split reveals something of an internal tension within Article 257. On the one hand – as almost all the Justices note – public participation is particularly vital especially in the context of Article 257, given that it is an instance of direct democracy; on the other hand, given that Article 257 is meant to be initiated by the People, ordinary people (small-p) will invariably lack the resources that will allow them to conduct public participation at a national scale, at the stage of collection of signatures. This tension is articulated by Kiage J, when he notes that:

I must express my unease, brought out quite poignantly by Mr. Karori in his address to us, that it would be to place an onerous, and well-nigh impossible burden on promoters of a constitutional amendment by popular initiative, to expect them to go the whole hog captured in the above excerpt before they can properly collect the signatures. It seems to me, with respect, that the requirements stated by the judges must be present before or as at the time the voters finally make their decision on the proposed amendments at the referendum failing which the mandatory requirement for public participation will not have been met, with fatal consequences to the proposed amendment. I am of the view, however, that the elements of public participation stated must per force be understood to form a spectrum or a continuum which is incremental in character. (pg 130; see also Tuiyott JA, paragraph 209).

Similarly, Gatembu Kairu JA notes that:

For it might appear that by one hand, Wanjiku is given a vehicle by the Constitution to propose amendments to the Constitution, but the vehicle is then taken away by the other hand, by making it impossible for Wanjiku to drive that vehicle by reason of want of resources. (paragraph 88)

Gatembu Kairu JA, however, proposes a different solution. While Kiage J would simply hold that the requirement of public participation – in all its rigour – applies at the final (referendum) stage, Gatembu Kairu JA holds that in an individual case, it would be “open” to Wanjiku to claim a lack of resources (a claim that would not be open to the IEBC, when it gets involved in the process).

I respectfully submit that Gatembu Kairu JA is correct. It is true that the burden of public participation is one that should be borne by the State – or State organs – and not by wanjiku. However, this is where we come right back to the elegant design of Article 257, which accommodates the involvement of the People, of County Assemblies, of Parliament, and of the IEBC. Consequently, would it not make sense for the requirement of public participation – in all its rigour – to be applicable corresponding to the stage at which State organs get involved? This, in my respectful submission, would resolve the tension within Article 257.

Conclusion

The structure and design of Article 257 gives rise to a range of fascinating questions, many of which came to be answered by the Court of Appeal. These include the difference between top-down and bottom-up amendment, with the Court affirming that, viewed in its history and context, Article 257 precludes an executive-driven process. These also include the manner in which a popular initiative may be crystallised into a referendum question (or questions), with a clear majority of the Court holding that “omnibus Bills” that have no “unity of content” are outside the scope of Article 257. And these further include the extent to which the obligation of public participation applies to a public-initiated directly democratic process. Here, the Court affirms that it is clear that in this case – given that it was executive-driven in any event – the obligation has not been discharged; it remains open, however, what standards will apply when – in the hypothetical future – a 257 process is genuinely wanjiku-driven.

I think that some of the ambiguities and tensions in the judgment(s) reflect the challenges of interpreting what is, undoubtedly, a complex provision, and also the fact that these questions are coming up for the determination for the first time, in a relatively young Constitution. Faced with these challenges, the judges of the Court of Appeal, in my respectful submission, have done important, pioneering work (as have the judges in the High Court). It now remains to be seen how future benches take some of these principles forward, and build on them.

The Kenyan Court of Appeal’s BBI Judgment – I: On the Basic Structure

On 20 August 2021, a seven-judge bench of the Kenyan Court of Appeal delivered judgment in a set of consolidated cases known as the “BBI Appeals”. The case arose out of the judgment of the High Court of Kenya in David Ndii v Attorney General (see here), where a bill (the Constitution Amendment Bill of 2020), containing seventy-four proposed amendments to the 2010 Kenyan Constitution (see here), had been struck down for violation of the basic structure, and non-compliance with various procedural and substantive requirements under the Constitution’s amendment provisions (Articles 255 to 257). Previously on this blog, I had discussed the High Court’s judgment (here), and arguments before the Court of Appeal (here). As in those previous posts, my usual caveats apply for this one too: while I will do my best to engage with this judgment – and the constitutional system in which its embedded – on its own terms, and in all humility, I nonetheless write as an outsider, with all the limitations that that subject position carries with it.

Introduction

The Court of Appeal’s judgment comes in at a formidable 1089 pages, with all seven judges writing separate opinions. Very helpfully, however, the Court has also provided a disposition (here), that sets out eighteen findings along with the bench-split on each issue. This immediately obviates any confusion about what the judgment is, and leaves us free to focus on the Court’s reasoning. In brief: on almost all significant issues, with fluctuating majorities, the Court of Appeal upheld the judgment of the High Court, and affirmed the finding that the Constitution Amendment Bill 2020 was unconstitutional.

In the following series of posts, I propose to analyse the Court of Appeal’s judgment(s), thematically. I will begin with the issue of the basic structure. As the disposition indicates, the Court held that the basic structure doctrine is applicable in Kenya (6-1), that it provides an implied limitation upon the amendment process set out in Articles 255 – 257 (5-2), and that the basic structure can be altered only through an exercise of primary constituent power – i.e., a recreation of the conditions under which the Constitution was founded, which include a four-step process of civic education, public participation, Constituent Assembly Debate, and a referendum (4-3).

Amendment or Repeal: The Heart of the Issue

I will begin with the judgment of Kiage JA, as – in my reading – on the issue of the basic structure, it is the “lead judgment”. Kiage JA’s analysis of the basic structure issue is found between pgs 5 – 98 of his judgment. At its heart, Kiage JA’s argument is a straightforward one, and follows the logic of basic structure judgments across the world, namely that (a) there is a distinction between “amendment” and “repeal”, and (b) repeal can either be express, or implied. The latter form of repeal can take place through a set of amendments that are fundamentally inconsistent with the Constitution as it stands. At pg 83, thus, he notes that “amendments always presuppose the existence of the constitution with which they must be consistent, and which they cannot abolish.”

In my analysis of the arguments before the Court of Appeal, I had pointed out that the Appellants’ reliance on Article 1(1) of the Kenyan Constitution was counter-productive, as the words of that article – “all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution” – presuppose the existence of this Constitution; amendments that amount to implied repeal, however, are no longer operating within the framework of “this” Constitution. This is the argument that effectively forms the basis of Kiage JA’s acceptance of the basic structure doctrine: that, just like a house no longer remains a house if you knock down its foundations and pillars (as opposed to merely redecorating it), this Constitution no longer remains this Constitution, if your amendments are such that alter its identity.

Direct Democracy under Articles 255 and 257: The Kiage JA/Okwengu JA/Sichale JA Debate

Now, while this argument is a persuasive argument for adopting the basic structure doctrine per se, in the Kenyan case there is an added wrinkle. And that is that the ten “core” themes set out under Article 255 already require a referendum in case they are to be amended; and furthermore, a “popular initiative” under Article 257 also requires public participation and a referendum. For this reason, the core of the Appellants’ case before the Court of Appeal was that the concerns that the basic structure doctrine sought to address had already been addressed within the Kenyan Constitution: by having a mix of representative and direct democracy in its amendment provisions, the framers of the Kenyan Constitution – and, by extension, the People – had provided for an eventuality where any amendment to the basic structure could not be accomplished solely by the representative organs, and would have to go to the People.

Indeed, if we study the dissenting judgment of Okwengu JA*, we find that it is precisely this argument that she finds persuasive. In paragraph 76 of her judgment, Okwengu JA notes that:

This means that the popular initiative is a citizen driven process. In both instances, the people remain involved in both the popular initiative and parliamentary initiative through public participation, and are the ultimate determinant through the referendum process on whether the amendment is carried. (paragraph 76)

Okwengu JA then goes on to note that the “basic structure” of the Kenyan Constitution has already been identified in Article 255 – through the setting out of ten thematic areas that require a referendum if they are to be amended – and a specific process for its alteration (involving the People) has been set out:

That is to say that the framers of the Constitution of Kenya, 2010 conscious of these thematic areas as the main pillars forming the basic structure of the Constitution, nonetheless provided a leeway for amendment of these thematic areas, putting in place appropriate safeguards including the peoples’ participation and final decision on the amendment. This is a clear indication that in regard to amendments, the Constitution of Kenya, 2010 is explicit and self-sufficient. (paragraph 82)

We find something similar in the dissenting judgment of Sichale JA. Sichale JA finds particularly persuasive the Appellants’ argument that what distinguishes India from Kenya is that Article 368 of the Indian Constitution limits the amending power to a (representative) Parliament, while Articles 255-257 of the Kenyan Constitution explicitly envisage a role for the People (pg 29). She then goes on to note that the scheme of Articles 255 – 257 specifically respond to the pathologies identified in Kenya’s past, and their solution is found within the text itself:

Indeed, the 2010 Constitution was informed by Kenya’s dark past and its citizenry were determined “Never Again” shall we have a Constitution that can be amended at will. In the formulation of the 2010 Constitution, a conscious effort was made to ensure that we do not have hyper-amendments. (pg 37)

This is, thus, a powerful argument – commanding the acceptance of two Justices – and one that deserves a response. And in Kiage JA’s judgment, we find three responses: conceptual, historical, and theoretical. Conceptually, Kiage JA points out – taking forward the argument set out above – that by definition, if you want to replace the Constitution instead of amending it, you must go outside of the Constitution and not within it (what the High Court referred to as the primary constituent power) (pg 59). Historically, Kiage JA endorses the High Court’s historical analysis of the detailed public participation that went into the making of the Kenyan Constitution, as well as the desire to avoid hyper-amendments, but he also goes further: he locates a core pathology of post-colonial African constitutionalism as that of excessive centralisation of power within the figure of the President (this is crucial for another aspect of the appeal, which I will deal with in a future post) – and how this centralisation of power enabled various Presidents to shrug off constitutional checks and balances through the process of amendments:

It is a sad blight on Africa’s post-independence experience that no sooner did the nations gain independence than the power elites embarked on diluting and dissolving all restraints on power and authority, a blurring and final obliteration of checks and balances and a concentration of power in the Presidency. They did this principally through facially legal and constitutionally compliant changes to their constitutions. (pg 53)

Kiage JA goes on to argue that Kenyans were entirely aware of this “in their search for a new constitutional paradigm” (pg 53), and that this found reflection in the CKRC Report. Crucially, Kiage JA then uses this argument to segue into his third point, which is a democratic-theoretical point: relying upon the work of Yaniv Roznai and others, he argues that by themselves, referenda can be top-down, imposing a set of pre-decided choices upon a passive population. The fact, therefore, that Articles 255 and 257 contemplate a referendum is not sufficient justification to argue that the the reason why the basic structure doctrine exists in the first place has been adequately addressed within the Constitution itself: “an effective bulwark against abusive constitutionalism therefore seems to me to be, on the authorities, one that entails more as opposed to less people involvement.” (p. 96)

We are now, therefore, in a position to reconstruct the essence of Kiage JA’s argument: first, that amendment and repeal are two different things; secondly, that therefore, constitutional alterations that fall in the latter category amount to reconstituting the Constitution, and must be taken to the People exercising primary Constituent power; and that thirdly, the existing provisions for direct democracy and referenda under Articles 255 to 257 lack the extent and guarantees of public participation that would – in light of Kenyan constitutional history – be sufficient safeguards against abusive constitutionalism. Thus, the High Court’s finding regarding the basic structure doctrine and the four-step participation process is correct and ought to be upheld.

The Analysis of the Other Judges

Now, what of the other judges? In large part, they agree with Kiage J’s analysis (see the analysis of Nambuye JA, paragraphs 62 – 65; Kairu JA, paragraphs 32 – 55; Tuiyott JA, paragraphs 25 – 34). Some additional points are added by Musinga (P). The analysis of Musinga (P) begins at para 272 of this judgment. Musinga (P) agrees with the basic point that “any amendment that alters constitutional fundamental values, norms and institutions cannot pass as an amendment, it is in the nature of dismemberment” (paragraph 285). He then spends substantial time on illustrations: in particular, he focuses on the proposed addition of a judicial ombudsman to the Constitution, a Presidential appointee whose presence, he argues, constitutes an “ingenuous and subtle claw back to the independence of the Judiciary.” (paragraph 288). He undertakes a similar analysis for changes in the legislature, which seek to convert Kenya from a Presidential to a hybrid-Presidential system, and to the controversial issue of delimitation, where he finds that the proposed amendments attempt to take away the determination of this question from an independent constitutional body (paragraph 292).

Interestingly, Kairu JA – while agreeing with the High Court’s historical analysis and finding on the basic structure – differs as to the application of the doctrine. He finds – along with Okwengu JA on this point – that the basic structure has already been identified by the Constitution, via the ten thematic areas of Article 255(1). He then holds that while these provisions may be amended (following their stipulated process), there is a complete bar on their “dismemberment”. This actually brings Kairu JA’s finding very close to the classical (or, shall we say, Indian) version of the basic structure, and – incidentally – cuts the majority in favour of alteration of the basic structure via the four-step exercise of primary constituent power, to a wafer-thin 4-3.**

The Identification of the Basic Structure

One final point: the disposition does not specify the question of what constitutes the basic structure of the Kenyan Constitution. And by my count, there is no clear majority on this point. Out of the six judges who agree that the Kenyan Constitution does have a basic structure, a plurality of three (Okwengu, Kairu, and Tuiyott JA) hold that the basic structure is to be found under the ten thematic areas of Article 255; two Justices (Musinga (P) and Kiage JA) agree with the High Court that the enquiry is to be undertaken on a case to case basis; and Nambuye JA does not express an opinion on this point.

As historians of the basic structure doctrine will know, there is something almost deliciously fitting about this.

Conclusion

The Kenyan Constitution’s amendment provisions are singular in their detail, the obvious care with which they have been crafted, and the attention that has gone into their design. There is a reflective mix of representative and direct democracy, and the articulation of a hierarchy of norms within the Constitution – two classic features of the global basic structure doctrine. Despite this, five judges at the High Court and five out of seven at the Court of Appeal ultimately found that despite all this textual detail, there exists an additional, implied limitation upon the amending power, in the form of the basic structure doctrine.

For the reasons that I have provided in my previous analysis of the High Court judgment, and for the reasons above, I believe that both Courts are correct on this point. It is important to note that the singular Kenyan amendment provisions have called forth a singular solution: departing from global basic structure doctrine, neither the High Court nor the Court of Appeal has held that any provision of the Kenyan Constitution is unamendable per se; but rather, even the basic structure can be amended, subjected to procedural and procedural/substantive constraints that aim to replicate the participatory character of its founding.

But at the end of the day, I believe that the two Courts are correct for an even simpler reason: the very existence of the BBI and the Constitution Amendment Bill. The fact that this case came to Court at all shows that notwithstanding the care with which Articles 255 – 257 were crafted, it was still possible for to push through far-reaching constitutional changes, via a top-down elite political pact, while still staying within the formal constraints of the Constitution.

Now of course, the counter-argument will be that all the two judgments have actually achieved is replaced the elite political pact with gatekeeping by a judicial elite (and indeed, we find echoes of this fear in Sichale JA’s dissent). To this, only one answer can be made: that if future judicial decisions on this point reflect the clarity of reasoning and self-awareness exhibited by these two judgments, then fears of a judicial capture will likely not come to pass; but that, of course, is something that only time will tell. In this sense, the basic structure doctrine is a bit like HLA Hart’s famous rule of recognition: nothing succeeds like success.

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* I here go by the disposition, which holds Okwengu JA to be in dissent on this point; note, however, that it is not quite as clear cut, as Okwengu JA does hold that there is an “implicit” prohibition upon amendability running through the Constitution; amendments that go against its “spirit and purport”, as articulated by the Preamble, will be unconstitutional. It would seem to me that this puts Okwengu JA closer to the concurring camp than to the dissenting camp.

** But here again, there is a doubt about whether the disposition accurately reflects the judgment. In paragraph 59, Kairu JA does appear to affirm the High Court’s sequential four-step process for changes that amount to abrogation of the basic structure. In my analysis above – as with Okwengu JA – I have gone by the disposition, as that is – ultimately – the formal view of the Court. Perhaps unsurprisingly, however, an actual reading of seven different opinions throws up several points of contention with respect to any attempt to harmonise all these holdings into one set of orders!

A Memory for Forgetfulness: Some Thoughts on a Judicial Retirement

The retirement of a Supreme Court judge is marked by a few time-worn traditions: a farewell ceremony on the Supreme Court lawns, brief addresses by high constitutional functionaries, a rendition of the judge’s qualities (some evident through the course of their judgeship, others not so much), and curtain. It is over in an afternoon – harmless enough, as these things go.

The August 12 retirement of R.F. Nariman J has been characterised by something a little more. On Twitter, a senior counsel tells us that his was “an exemplary career in the law – as a jurist, a counsel and a judge.” On Moneylife, another senior counsel calls him “the perfect judge”, a “model professional with a high EQ”, and says that his legacy is “unmatched”. On BloombergQuint, a third senior counsel quotes Marc Antony and asks “whence comes such another?” Other encomiums of this kind can be found on the internet.

As a preliminary point, I want to say that, even accounting for the demands of the profession, such breathless hyperbole does our legal culture no favours. It is worth remembering – yet again – that judges of the Supreme Court (one of the three wings of the State) wield tremendous power, and the exercise of said power requires respectful – but critical – scrutiny, and not reams of purple prose. That apart, however, I believe that these encomiums are particularly inapposite in the case of this particular judicial retirement, as they seek to obscure a set of events – in which the judge in question was an active participant – that reflect the Supreme Court, as an institution, in particularly poor light. As we shall see, these pieces – and others – either ignore, or acknowledge but attempt to minimise, R.F. Nariman J’s role in those events.

Any honest reckoning of R.F. Nariman J’s legacy must, I believe, place at least two of these events at its centre. Why is this important? It is important because what we choose to tolerate, justify, or explain away now is very revealing of what we will continue to tolerate, justify, and explain away in the future. I thus offer up this critique not as a personal attack, but in the spirit of Hagai El-Ad’s anti-hagiographic assessment of the legacy of Aharon Barak: that in the struggle of memory against forgetting, there are some things that are vital to remember.

The NRC

It is by now tedious – yet important – to reiterate the Supreme Court’s role in ramming through the Assam National Register of Citizens [“NRC”]. The process started with the 2014 judgment in Assam Sanmilita Mahasangha vs Union of India. This judgment – authored by RF Nariman J “referred” a number of constitutional questions regarding amendments to the Citizenship Act to a Constitution Bench (one of them being whether immigration constitutes “external aggression” against the country) – and in the same breath, directed the immediate preparation of the National Register of Citizens (even as the question of its constitutionality had been referred to a larger bench in the same judgment). What followed is a matter of historical record: the Supreme Court repeatedly drove the State to complete the citizenship list as soon as possible, set hard deadlines, threw due process to the winds, took information in sealed covers, elevated the State Coordinator to some kind of privileged High Priest mediating between God (the Court) and the citizens, in secret conclaves, and essentially violated every basic principle underpinning the judicial function.

In history, there are innumerable instances of governments setting in place spirals of exclusion, violence, detention camps, and death, through the making of “Citizenship Lists”. To my knowledge, the series of orders passed between 2014 and 2019 is the only case where a constitutional court did so, and to an obsessive degree. And the results were indeed violent: more than fifty people took their own lives in fear of the consequences of being off the NRC list; Genocide Watch issued two warnings; and we continue to pay the cost in human suffering.

What do senior counsel have to say about this? One says, astonishingly, that the “bench passed crucial orders which led to the publication of the final NRC in July 2018″ – a bit like saying that Winston Churchill took “crucial decisions” regarding food distribution in West Bengal in 1942. In the Marc Antony piece, we are told that admittedly, that Assam Sanmilita was the “one blot” in an otherwise magnificent judicial career, but that RF Nariman J was likely “influenced” by his companion on the bench, CJI Gogoi. At this stage, RF Nariman J seems to have turned into Schrodinger’s Judge – both fiercely independent-minded and subject to “influence” by his companion judges, both unyielding and malleable, all at the same time. This will not do. The Marc Antony piece then goes on to note that “as these issues are still at large before the Constitution Bench of the Supreme Court and are still being debated politically, it may be best to say no more on the subject.” But this is an utter cop-out. Every order passed by the Supreme Court between 2014 and 2019 was a continuation of the 2014 judgment, and every order had a real-world impact. When assessing a judge’s legacy, you cannot cherry-pick the things that make him look good, and lightly pass over the rest, as if it were the shadow of a dream. These things happened.

But it seems that, reading the encomiums, they happened elsewhere, at another time, to someone else. The past is a foreign country. And it is this distance, this detachment, that we seem to achieve so easily, that I find of concern. Just as there was very little critique of the Court when these orders were being passed, there appears to be an equal unwillingess to acknowledge them as part of the judge’s record and his legacy. That indicates that if it happens again, we will only too easily look away again.

Re Matter of Great Public Importance Concerning the Independence of the Judiciary

Once again, reams have been written about the events that took place in May 2019, when allegations of sexual harassment were levelled against the Chief Justice. It is now almost universally accepted that the treatment of the complainant was unjustified at every level, and that a grave injustice was done. But injustice does not happen by an invisible hand: injustice is done, people do it. And in this case, at various points over the course of that week or so, no fewer than eight Supreme Court justices were involved in that injustice.

RF Nariman J’s role was in the second hearing, on the Monday following the Saturday. This was the hearing at which a lawyer showed up out of nowhere and claimed he had evidence that the Supreme Court Registry was being manipulated, ostensibly in order to “fix” the Chief Justice. The insinuation was that the accusations against the Chief Justice were politically motivated, a weapon of blackmail. It is a story that has repeated itself across time and place.

The Supreme Court hearing in which RF Nariman J was an active participant, gave credence to exactly this story. It completely derailed the actual accusations, turned the case from a sexual harassment case to an “independence of the judiciary case”, and by asking for an affidavit in a “sealed cover” and directing an investigation under an ex-Supreme Court judge, reinforced and entrenched exactly the kind of victim-blaming narrative that – it is well-documented by now – makes justice and accountability for sexual harassment an impossibility. And this is what is genuinely astonishing: that two days after an accusation of sexual harassment, someone shows up muttering darkly about conspiracies and threats to the nation, is so wild a plotline that fiction editors would reject it out of hand as too contrived. But instead of throwing it out and keeping the focus on the allegations themselves, the Supreme Court bench bought – or chose to buy into it – hook, line, and sinker. The Moneylife and Marc Antony pieces, unfortunately, equally choose to ignore it.

Two and a Half: Santosh Gupta

I found it a little surprising that none of the assessments of RF Nariman J’s legacy dealt with the judgment in Santosh Gupta, where RF Nariman J held that to the extent of repugnancy, the provisions of the SARFAESI overrode Section 140 of the Jammu and Kashmir Transfer of Property Act (as it then was), which had specific protections regarding certain kinds of property transfers. Opinion may vary about the correctness of Santosh Gupta, but there is little doubt that it had a huge impact with respect to issues of federalism and freedoms; its omission from legacy assessments is, I think, a little telling about how, even after 2019, Kashmir continues to occupy a collective black hole in our constitutional imaginations (something I have been frequently guilty of as well).

Conclusion

It is impossible not to be deeply moved on reading Marc Antony’s funeral speech for Julius Caesar. In his speech, Antony was inventing a legacy on the spot, transmuting Caesar’s dictatorial tendencies into humility and abnegation, and explaining away inconvenient facts. Antony knew what he was doing: after successfully exhorting the Plebs to violence and riot, he ends the scene by quietly saying to himself “now let it work. Mischief, thou art afoot.”

Let us therefore take the encomiums to RF Nariman J, framed through the lens of Marc Antony’s funeral speech, on their own terms. Soon after that funeral speech, the Roman Republic fell and Caesar’s dictatorial tendencies were solidified into an Empire. Perhaps the lesson there is that we should all take funeral – and farewell – speeches with an appropriate amount of salt.

 

Guest Post: Data Trusts and the Constitution

[This is a guest post by Ankit Kapoor.]

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As new and current technologies go increasingly digital, the volume, frequency, and scope of data processing activities is also increasing at unprecedented rates. The legal bedrock of these processing activities is user consent. However, besides information asymmetries and complex/lengthy privacy policies, this consent is barely meaningful since the digital economy has generated power imbalances favoring important data collectors. This has led to users losing agency/control over their data. The problem exacerbates due to the divergent interests of these data collectors and the user. The data governance objectives and practices are currently defined by corporate directors, required by law to serve their shareholders’ interests. Since shareholders’ profit/wealth maximization necessarily clashes with user’s privacy, there is an inherent conflict of interest. The current rights enforcement mechanism is through litigations, which due to their lack of proactiveness cause systemic chokes to data protection regulation.

These collective problems have necessitated revising the approaches and tools of data governance. Due to its efficacy and proportionality in addressing these problems, ‘data trusts’ have emerged as a recent but popular institutional design solution. As a mechanism for data management and sharing, it also additionally unlocks new opportunities. Notwithstanding these benefits and popularity, pushback from different disrupted stakeholders in this process is inevitable. Against this background, it is relevant and important to evaluate these solutions against the Constitution, not only to assess their validity and restrictions but also to gauge and build broad consensus around them.

Therefore, in this paper, I analyze the interface between data trusts and the Indian Constitution. In the first section, I explain the objectives, mechanism, and potential of data trusts. In the second section, I explore the relationship of data trusts with directive principles of state policy (“DPSP”), and fundamental rights (“FR”).

Understanding Data Trusts

In the Report of Committee of Experts on Non-Personal Data Governance Framework, data trusts are defined as an institutional structure, comprising rules and protocols for containing and sharing datasets. They are conceptualized as a data pool, to hold sector specific data for providing digital services, that is managed by public authorities. Alike traditional trusts, there exists a fiduciary responsibility towards the settlor and beneficiaries, i.e., herein data subjects. While they can be used for management of both personal data and non-personal data (“NPD”), the scope of this article is limited to the latter.

Data trusts help restore user’s control/agency over their data. They steward, maintain, and manage the usage and sharing of data. This includes who is allowed access to the data, under what terms, to who gets to define the terms, and how. Similar to the benefit labour unions have had for labourers, they act as a collective that can meaningfully negotiate terms and conditions on users’ behalf. They also enable communities of individuals to establish collective agency over their data.

The creation of a separate institution that protects the user’s interests under a fiduciary duty also realigns the divergent interests. The assured pooling and sharing of data based on certain pre-defined rules mitigates conflict of interest. It also ensures that data trusts regulate proactively, preventing any violations from happening. The utility of data trusts extends beyond merely addressing these problems to creating digital institutions worthy of public trust, and promoting beneficial data usage for the public good.

Constitutional Dimensions of Data Trusts

There are two main aspects of this relationship that need to be explored: (1) directive principles of state policy; and (2) fundamental rights.

DPSPs

Under Article 37, Indian Constitution, while DPSPs are unenforceable socio-economic rights, they are nevertheless fundamental in the governance of India and the State is duty bound to apply them in law-making. Article 39(b)(c), Constitution, directs state policy towards securing:

(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; and

(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.

In State of Karnataka v. Ranganatha Reddy, the Supreme Court held that the purpose of Article 39(b)-(c) is the social mission of redistribution for public good. Therefore, the question herein is whether legislations that create data sharing institutions like data trusts promote, or are justified based on, this purpose? This, in turn necessitates enquiry over two specific questions: whether data is a ‘material resource’ and its redistribution ‘subserve[s] the common good’.

Material Resource

This constitutional question requires us to assess suitability vis-à-vis the legislative history and judicial interpretation of ‘material resource’. In the Constituent Assembly, Dr. B.R. Ambedkar had empathically referenced Article 39 as an illustration of socialist principles furthering an economy democracy and governing the State in its legislative aims. While drafting, K.T. Shah had proposed an amendment to narrow the scope of ‘material resource’ to ‘natural resource’ such as mines or rivers that are managed and enforced by the State. However, this was rejected as it was felt that only a broad construction would further the intention of the drafters.

Subsequently, the Supreme Court in Sanjeev Coke Manufacturing Company v. Bharat Coking Coal Limited interpreted ‘material resources’ to include not merely natural resources but non-natural resources too. Moreover, it goes beyond resources owned by the community as a whole, and extends to resources owned by individuals, thus including private resources too. Therefore, non-public and non-natural resources are also ‘material resource’. Holding otherwise would strip Article 39 of its socialist objective. The only determining test is that the ‘resource’ must be capable of producing wealth for the community.

In the digital economy, data is termed as the ‘new oil’ as it is the primary driver of wealth creation for individuals and communities. It helps companies in improving the efficiency and efficacy of their service delivery, management, and targeting. But more importantly, it empowers individual and community users to benefit from previously unavailable goods or service. Thus, data evidently satisfies the standard for ‘material resource’.   

Manner of (Re)Distribution & Subserving the Common Good

The enquiry herein turns to whether the stipulated manner/method of redistributing material resources precludes the deployment of data trusts. If not, then whether the redistribution undertaken by data trusts actually subserves the common good.

In Tinsukhia Electric Supply Co. Ltd v. State of Assam & Ors. and State of Tamil Nadu v. L. Abu Kavur Bai, the Supreme Court held that the scope of (re)distribution within Article 39 extends to not only retail distribution among individuals but also to all manners and methods of distribution, inter alia between regions, industries, classes, and sectors. Moreover, in Re: Special Reference No.1 of 2012, it noted that restricting distribution to any specific methods may undermine the larger objective of achieving common good. Therefore, in the absence of any restraints in the method/manner of distribution, data trusts are a legally legitimate distributive instrument.

To appreciate the impact of data trusts in serving the common good, the context of the digital economy needs to be understood. On the supply side, the network effects of the digital economy have tipped the scale to benefit early movers. Large datasets coupled with sophisticated analytics enables the provision of unexplored and powerful insights. This enables these early movers with the unparalleled ability to make efficient and efficacious decisions as well as predict and influence user behaviour. The growing concentration of data among these early movers is only growing.  Therefore, this has created imbalances disproportionally favouring such entities. On the demand side, India has the second largest smartphone users and even at its current internet penetration levels, is projected as the among the largest consumers and data market. This implies larger datasets, which only increases the influence early movers hold.

Therefore, permitting data monopolies, given the demand-side and supply-side realities in India, could viciously tip the scale in favour of a few dominant companies. The denial of such datasets to other players, especially indigenous start-ups and MSMEs, could deprive them of their survival and incentive to invest. In fact, even the text of Article 39(c) directs the state to ensure that there is no concentration of wealth or means of production to the detriment of common good.

By imposing several restrictions on data processing activities and monitoring their compliance, data trusts restore control back to the users. This is through reducing the extent of data and insights gathered thereof that such early movers can have. Moreover, by serving as data pools, they operationalize easier access of such data to newer market entrants too. Therefore, such incentivized and responsible sharing of NPD can potentially reorient the digital economy to serve the public good.

FRs

The nexus between data trusts and fundamental rights is such that the former both promotes and potentially infringes onto the latter.

Right to Freedom of Trade and Profession (Article 19(1)(g))

The mechanism of data trusts may be challenged on the ground that they infringe the right to practice a profession or carry on any occupation, trade or business under Article 19(1)(g). This is likely to occur through dominant incumbents in the digital economy, who consider such arrangements to be unreasonable intrusions into their business practices. To evaluate whether such claims are tenable, an examination of Article 31C, Constitution is relevant.

Based on the recommendations of the 46^th Law Commission report, this provision was inserted through the Constitution (Twenty Fifth Amendment) Act in 1972. The provision exempted any law, which secured the principles specified in Article 39(b)-(c), from challenges that said law violates Article 14 or 19. The constitutional validity of Article 31C was also upheld by the Supreme Court in Kesavananda Bharti v. State of Kerala. It may be alleged that the nature of restraints imposed by data trusts are beyond the scope of Article 19(6), and must therefore be invalidated.

However, the Court held in Minerva Mills Ltd. & Ors. v. Union of India & Ors that content of reasonable restrictions under Article 19(6) is to be understood against the context of Article 39 (b) along with Article 31C. Therefore, such an argument is likely to be untenable. Moreover, the Court has established the test for a law to seek immunity under Article 31C. There must be a real and substantial connection between the law and the principles in Article 39(b)-(c), and also a reasonable nexus between them.

As illustrated in the section above, these tests are evidently satisfied. This is because the benefits of data trusts, towards both users and potential competitors to dominant incumbents, ensure distribution of data for the public good, which is particularly important given the current socio-economic context of the digital economy in India.

Right to Privacy (Article 21)

The right to privacy was recognized as a fundamental right by a nine-bench judge of the Supreme Court in KS Puttaswamy v. Union of India. Moreover, informational privacy was considered particularly given the advancements in modern data processing activities. Since data trusts protect and advance informational privacy of users by restoring agency and correcting divergent interests, they promote the fundamental right to privacy.

However, the scope of NPD maintained and shared by data trusts includes anonymised aggregated datasets and data inferred from or related to natural persons. Given the efficacy of modern deanonymization techniques and the presence of data brokers, reidentification of the individual or community is indeed possible. Moreover, when community or private NPD is involved, not every concerned individual may consent to their data being shared and used by subsequent service providers. These twin concerns mean that the right to privacy of at least some individuals can be potentially infringed. Therefore, it is very likely that for data trusts to operate as legally legitimate institutions, they will have to satisfy the three-fold established by the Supreme Court in Puttaswamy (I) & (II): legality, legitimate goal, and proportionality. The implication is that the legislature must necessarily enact a legislation concerning the rights, restraints, and obligations of data trusts.

Conclusion

Data trusts are a revolutionary data governance solution that address the modern privacy problems of lost user agency, divergent corporate interests, and inadequate enforcement. They also unlock data for various socio-economic opportunities that benefit the user. Their relationship with the Constitution is both enabling and restrictive.

Through the DPSPs under Article 39(b)-(c), the Constitution endorses the objectives of data trusts. Moreover, through Article 31C, a fundamental rights provision, data trusts are shielded from potential challenges on the mere ground of Article 14 or 19 violations. By solving the aforementioned problems and creating new opportunities, data trusts promote the informational aspect of the fundamental right to privacy under Article 21.

But since data trusts can also potentially infringe the informational privacy of certain stakeholders, there is need to follow the safeguards prescribed by the Constitution.

ICLP Turns 8 || What Dreams May Come

The Indian Constitutional Law and Philosophy blog turns eight years old today.

On previous blog anniversaries, I have used the occasion to reflect on some of the important events of the preceding year. I suppose it is unsurprising that the tone of those posts has grown steadily bleaker and more pessimistic. As another year comes around, I find that I have very little to say: as far as civil rights and State impunity is concerned, nothing much has changed from the last time around, nor are there any significant indications that anything will change in the near future. Indeed, for the reasons that I outlined in the seventh-anniversary post, “A Constitutionalism Without A Court”, I find myself writing less frequently about the Court(s), and with minimal enthusiasm. To analyse “normal” judgments about – say – the Delhi legislative assembly’s summons to Facebook, in the normal course of things, as if everything was normal, while those jailed for 3+ years without trial in the Bhima Koregaon case are repeatedly denied bail by the same judicial system, creates a contradiction that I find increasingly difficult to overcome.

So I thought I’d do something different this time around: instead of looking back, look forward – but to a hypothetical future. In this future, the things that we should take for granted – that is, constitutional courts deploying the Constitution as a sword against State impunity – actually do happen. To imagine that future, I set out below a set of ten headlines and summaries that would be written every time the courts acted in that way. Needless to say, I do not ever expect to be writing those headlines in the actual future; that is why they belong in the category of what dreams may come.

The Supreme Court Strikes Down Section 43D(5) of the UAPA

In a landmark judgment, a seven-judge bench of the Supreme Court struck down Section 43D(5) of the UAPA as unconstitutional. The Court held that the provision – which prohibits the grant of bail as long as a prima facie case is made out against an accused – violated the constitutional guarantees of personal liberty, fair trial, and equal protection before law. The seven-judge bench also overruled the prior decisions of the Supreme Court in Kartar Singh vs State of Punjab and National Investigation Agency vs Zahoor Ahmad Shah Watali. The Court said that the latter judgment, in particular, had been a ‘catastrophic error’, responsible for keeping many individuals in jail for years without trial, and that it deserved to be buried next to ADM Jabalpur, “ten fathoms deep with no chance of resurrection.” The Court stressed, by way of conclusion, that the presumption of innocence and the rule of bail were fundamental features of the criminal justice system, that could not be sacrificed at the altar of special legislation.

The Supreme Court Strikes Down Sections 3 and 4 of the Citizenship Rules, 2003

A Constitution Bench of the Supreme Court has struck down Sections 3 and 4 of the Citizenship Rules 2003, that authorise the creation of a nationwide National Register of Citizens (popularly known as “the NRC”). The Court held the offending sections created a nationwide presumption of non-citizenship, akin to general warrants or dragnet surveillance without reasonable cause, and consequently, violated the right to privacy as well as being manifestly arbitrary. In doing so, the Court overruled its prior judgment in Sarbananda Sonowal v Union of India, noting that it was a “deeply flawed decisions that raised the presumption of non-citizenship to a constitutional principle, with no basis in the constitutional text.”

The Supreme Court Strikes a Blow for Federalism: Implied Limitations on Executive Authority Under Article 356 and on Parliamentary Authority Under Article 3 Upheld

Adjudicating a batch of petitions challenging what has popularly come to be known as the “events of August 5, 2019”, a Constitution Bench of the Supreme Court held that Constitutional Order No. 272 and the Jammu and Kashmir Reorganisation Act of 2019 were void. While expressing no view on the merits of Article 370 of the Constitution, the Court held, first, that the executive government – or its delegate – acting under Article 356 of the Constitution, could not permanently alter the structures of governance of a federal unit; and secondly, that under Article 3, Parliament lacked the power to convert a state into a union territory. The Court noted that a contrary interpretation of Article 3 would mean that Parliament had the power to hypothetically convert every state into a Union Territory, and thus destroy the federal structure altogether; consequently, any such interpretation of Article 3 had to be rejected.

The Supreme Court Strikes Down the Electoral Bond Scheme

In a terse, ten-page judgment, a three-judge bench of the Supreme Court today struck down the electoral bonds scheme for “being destructive of Article 19(1)(a) of the Constitution, and of the basic feature of free and fair elections.”

The Supreme Court Strikes Down the Uttar Pradesh Recovery of Damages to Public and Private Property Act

Terming it a “grossly disproportionate interference with the right to protest”, a Constitution Bench of the Supreme Court struck down UP’s Recovery of Damages Act, which inter alia made the organisers of a protest liable for any damage to property, regardless of individual responsibility, and shifted the burden of proof to the accused. The Court noted that the Act would cast a “permanent chilling effect” even over peaceful protests; it also overruled its prior 2009 judgment in In Re: Destruction of Public and Private Properties, upon which much of the challenged law was based.

The Supreme Court Mandates Prior Judicial Authorisation for Internet Shut-Downs; Holds Rigorous Application of the Proportionality Standard Necessary

Two weeks ago, acting upon a petition the same afternoon that it had been filed before it, the Supreme Court had stayed a government order requiring an internet-shut down in Jammu & Kashmir. In a detailed judgment delivered today, the Court held that except where a formal Emergency had been declared, internet shut-downs were presumptively illegal, and in any event, could not be imposed without judicial authorisation. Noting that India had long been the “Internet shut-down capital of the world”, a matter of some shame for a democracy, the Court went on to note that the proportionality standard had to be applied strictly to any proposed internet shut-down; and, given that available research showed no demonstrable link between shutting down the internet and the maintenance of public order, an affirmative duty to establish the same would lie upon the State. Analysts have said that the judgment could have significant consequences in prompting the Supreme Court to take a second look at its long-encrusted jurisprudence on Section 144 of the CrPC as well.

The Supreme Court Strikes Down the FCRA (Amendment) Act, 2020

In an omnibus challenge, the Supreme Court struck down several amendments to the Foreign Contributions Regulation Act (FCRA), as well as provisions of the 2010 statute. The Court found that several restrictions – such as regulations on the proportion of funding that a non-governmental organisation could use on administrative expenses, the requirement of holding a bank account in Delhi, prohibitions on inter se transfers of funding between non-governmental organisations, and so on – constituted an “undue and disproportionate burden upon the freedom of association under Article 19(1)(c), and that “other than invoking the phrase ‘national security’ like a prayer”, the State had provided no argument – or evidence – for their necessity.

The Supreme Court Strikes Down the RTI (Amendment) Act, 2019

In a landmark judgment, the Supreme Court held that the Right to Information Act, 2005, was in the nature of a constitutional statute, as it was enacted specifically to give effect to the fundamental right to information. The Court went on to find that the 2019 amendments to the Right to Information Act compromised the independence of the Information Commissioners, and were therefore unconstitutional.

Supreme Court Holds Meaningful Public Participation to be Implicit in Article 21 of the Constitution; Applies it to Evictions

Breaking with precedent, a Constitution Bench of the Supreme Court held that the principle of public participation was implicit in Article 21 of the Constitution. Setting aside an eviction order, the Court held that evictions or demolitions of long-standing jhuggis could not take place until meaningful engagement with the residents had taken place, with respect to the provision of reasonable alternative accommodation. With this judgment, the Supreme Court joins with constitutional courts such as those of South Africa and Kenya, that have recently attempted to address the problem of deeply skewed land distribution in unequal societies by increasingly questioning the sanctity of background property rules.

Swiggy and Zomato Delivery Personnel Held to be “Employees” under the Code of Wages Act

After a long-running litigation, in a significant judgment, the Bombay High Court upheld the finding of the Labour Court that delivery personnel working in what is euphemistically called “the gig economy” fall within the definition of “employees”, and are therefore entitled to the benefits of the Code of Wages Act. The High Court held that the use of the algorithmic “app” by platforms led to an exercise of control over work that made the formal classification of delivery personnel as “contractors” a “sham”. The immediate impact of the judgment is expected to be widespread, as it applies equally to platforms like Uber and Ola, and ensures that delivery personnel have access to a range of individual and collective labour rights beyond those in the Code of Wages Act.

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Guest Post: The Supreme Court’s Tribunals Judgment – II

[This is a guest post by Shubhansh Thakur.]

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This part continues from the last part. This part will discuss the substantive challenges to the Ordinance concerning two significant grounds: the age requirement and retrospective application.

GROUNDS OF CHALLENGE

The petitioner challenged the first proviso to Section 184(1) of the Ordinance, according to which a person below the age of 50 was made ineligible to be appointed as Chairperson or Member of the Scheduled Tribunals (Age Challenge).

Section 184(11) provided for the age of superannuation for the Chairperson and Members of the Scheduled Tribunals. The Chairperson was allowed to hold the office until they attain the age of 70 years or for a term of four years, whichever is earlier, while the other members could hold office till the age of 67 or for four years, whichever is earlier. The proviso to the said section carved out the appointments made between the period of 26 May 2017 till the date of the Ordinance, i.e., 04 April 2021. It was provided that if the tenure in the appointment order between these dates was greater than what has been specified under 184(11), then the tenure under the order would be applicable subject to a maximum period of five years. This proviso was also challenged by the MBA (Retrospective Challenge).

AGE CHALLENGE

Rao J struck down the proviso restricting the age to fifty years on two grounds- firstly, the directions by the court in MBA-III requiring advocates with ten years of experience were in the nature of mandamus, and the proviso to Sec.184(1) was in direct conflict to the said judgement. Secondly, by relying on Rojer Mathew and MBA-I, he underlined the need for including young members from the bar and ensuring their long tenure. While declaring the said proviso unconstitutional, he also held that it would be difficult for an advocate appointed after 50 years to resume his legal practice once his tenure is over. To him, the age requirement violated the security of tenure and conditions of service that are core components of the independence of the judiciary (See ¶48 and 49). The AG’s consent in MBA-III for making advocates eligible for appointment in tribunals based on experience, on lines similar to that of an HC, judge also weighed with the court (¶48).

The Danger of Treating Directions as Mandamus

Firstly, the SC has always shown deference to issue mandamus to the executive. However, in cases where it has been issued, it has been issued to compel the government to consider exercising power, in its role as a delegate of the Parliament. For the present case, the court could have merely directed the UOI to consider framing the rules; but that cannot bind it to frame the rules, let alone in a specific manner.

Additionally, there lies a distinction between directions and issuance of writs, as visible from Article 32(2), which uses the two words separately. The author’s submission is that unless there is a specific mention in the judgment for issuance of the writ, directions cannot by themselves subsume the nature of the writ. The judgement in MBA-III merely had certain directions with no mention of issuance of writ making it difficult to discern how the court treated them to be the same.

Assuming for the moment that the directions in MBA-III did take the form of mandamus – at the most, mandamus can compel the UOI in its executive authority where it acts solely, without any other sanction. In such cases, the AG’s consent can bind or estop the UOI in subsequent cases relating to framing of any rule. However, the UOI in its legislative capacity requires sanction from the two houses and the President. In such a case, mandamus cannot take effect unless the legislators, who are not a part of UOI, are also compelled to pass the bill as the courts have directed. It would render Parliament’s power to discuss, debate, and persuade, which lies at the core of parliamentary democracy redundant. In other words, AG can speak for the UOI alone and not for other legislators that are involved.

Thus, it would make the institution of Parliament redundant. It would leave scope to bypass several provisions of the Constitution concerning the bill’s passing and the aspect of having discussion and debate, which lie at the core of parliamentary democracy.

The Ordinance essentially is framed by the UOI alone but the Constitution treats it as an exercise of legislative power and it is as effective as a law made by the parliament. Thus, as soon as UOI moved away from its executive character in MBA-III to legislative capacity in the present case, the effect of mandamus in the author’s submission should have been construed to stand vitiated. In the present case, for instance, the UOI lays the Ordinance for approval before the houses (See Article 123) with the changes as the court has directed. It would force the legislators to pass the Ordinance otherwise it would fail to pass the muster of Constitutionality according to the SC.

[The argument is closely related to Justice Gupta’s partially dissenting opinion. He places reliance on Article 144 to argue that the said article does not mention Parliament, and thus the effect of mandamus ends at the door of Parliament.]

Security of Tenure

Secondly, the security of tenure cannot mean that the legislature must protect the present tenure and ensure the future availability of jobs. Security of tenure merely means that a presiding member’s tenure should not be at the risk of being curtailed when acting as the presiding member, as it would affect his independence to render a fair decision. In other words, his manner of deciding disputes should not affect his tenure. However, neither the age requirement nor the future employment affect the decisional autonomy of the person appointed, and hence the two are unrelated. In the absence of any other reason, it was erroneous on the part of the court to treat the two to be related.

At this stage, it becomes essential to highlight Gupta J’s opinion, where he relied upon the Memorandum of Procedure (“MOP”) framed by the SC for the appointment of an HC judge. The age in the MOP has been kept at 45 years, though the Constitution prescribes only a limited ten-year experience at the bar for appointment to HC. Before reproducing the provision, it is essential to highlight that the official MOP (available here) does not point out any such condition. The author also cannot locate any other document with the relevant condition. The opinion of Gupta J merely confirms the fact that the SC had sent the MOP for approval in the year 2017, leaving it ambiguous whether the rule is presently in existence or not. For the present analysis, the author has considered this to be a part of the current appointment process based on Gupta J’s observation. The relevant clause reproduced from the judgement reads:

“”17. A person shall not be eligible to be considered for appointment as Judge of a High Court against Bar quota, unless he has completed 45 years of age on the date of recommendation by the High Court Collegium.”

This at least confirms the position that age is a factor in the suitability of candidates. The only question pertains to fixing fifty years rather than forty-five, as provided in the MOP. It is submitted that MBA-I merely required the conditions of the tribunal members to be as nearly as equal to that of HC judges, and there was no requirement for the legislature to keep them congruent. Thus, the court could have tolerated such a meagre difference in age as the power to draw the bright-line vested with the legislature. Apart from the MOP, it is a policy matter to fix the cut-off age and decide the suitability of the candidates based on various other factors such as the antecedents of the person, her report from the intelligence bureau etc. – which the legislature is best suited to determine and fix.

Gupta J upheld the provision dealing with the age on two major grounds-firstly that future job prospects cannot be a ground to declare a provision to be unconstitutional. Secondly, he held that the age requirement of 50 years has not been picked from the hat (a term used by Rao J and Bhat J) but based on Section 413 of the Companies Act, which remained unchallenged in MBA-I, and has attained finality.

The first ground has been discussed while discussing Rao, J’s judgment. The second ground becomes very important as it is based on the plea of constructive res judicata, a principle provided for under Sec.11 of the Code of Civil Procedure,1908 (CPC). It is vital to highlight that the CPC is inapplicable in stricto-sensu to writ proceedings, but it is up to the court to apply CPC principles whenever deemed fit. Gajendragadkar, J highlighted the importance of the constructive res judicata in Devilal Modi v. STO:

“This rule postulates that if a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action; but basically, even this view is founded on the same considerations of public policy, because if the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another and urge new grounds every time; and that plainly is inconsistent with considerations of public policy to which we have just referred.

MBA had the opportunity to challenge Section 413 of the Companies Act, but it chose not to do so. Thus, the issue of age competency attained finality at least between the parties, and MBA could not have raised it subsequently. There was nothing wrong on the part of the legislature to take this into account while framing the present Ordinance and fix the same age which previously remained unchallenged. It is this policy of the legislature that courts must have attempted to preserve.

Bhat J held that the proviso concerning age was unconstitutional as there was no empirical data to support the fact that older candidates fare better than younger candidates. Thus he concluded that discrimination is purely based on age and thus wholly arbitrary and picked from the hat. (¶31) However, while acting in its administrative capacity, the court has framed a MOP that defines age as a criterion for appointment. There is a long line of judgments (affirmed and shown here) that argue that the judiciary is best suited to judge the competence of the candidates to be appointed in such tribunals. The SC’s collegium system has always considered age to be a factor in HC and SC appointments. The difference in the forum cannot vitiate the argument that the appointment of judges does take age into account. Thus, what appears is that the legislature prescribed the age criteria for the members of the tribunals based on previous legislation and also based on informal criteria evolved by the courts. When the legislature merely acted in consonance with the informal criteria developed by the judiciary with a slight alteration, the age criteria could not be said to be wholly arbitrary.

RETROSPECTIVITY CHALLENGE

Concerning the retrospective application challenge, the majority opinion relied upon various decisions to argue that the financial benefits once vested in an individual by mandamus cannot be taken away by a subsequent enactment. The legal position is indisputable. However, Rojer Mathew and MBA-III (reiterated before) show that the court never intended to give finality to its interim orders. The directions were issued to keep the tribunals operational with the limitation that financial benefits should not be curtailed subsequently. Thus the minority opinion correctly holds that the Ordinance ultimately subsumed the interim measures. It is thus submitted that majority opinion’s view that the interim measures attained finality is contrary to the plain text of the judgment itself. Thus, there was no reason for the court to overturn the retrospective provision, as liberty lay with the UOI to seek a modification of the order. When the UOI chose to replace the rules with a statutory enactment, the interim order must have been held to be subsumed in the Ordinance making it irrelevant to overturn them.