The BBI Case at the Supreme Court of Kenya – Day 3

As with Day 2, the final day of the proceedings in the BBI Case before the Supreme Court of Kenya can be divided into three phases (watch here). In some ways, it was a microcosm of the entire hearing – and indeed, of the entire BBI case so far: in Phase One, the Respondents finished their arguments. In Phase Two, the bench put a series of questions to the Respondents. In Phase Three, the Appellants made their Rejoinder. This, then, concluded the hearing (read analysis of Day 1 and Day 2 here), and judgment was reserved.

Phase One: The Respondent’s Arguments

Carolene Kituku advanced detailed submissions on the IEBC/Quorum issue, arguing – in particular – that when a judgment struck down a legal provision as unconstitutional, the default position was that the provisions so struck down were deemed to have been always unconstitutional, right from the moment of their enactment (and not from the date of the judgment). Now if these amended provisions were void ab initio and never came into force, it would follow that the original, pre-amended provisions were never actually replaced, and continued to hold the field in the interim period. Thus, when in the Katiba Insitute case it was held that amended paragraphs 5 and 7 of the Schedule to the IEBC Act were unconstitutional, it would follow that the pre-amended provisions for quorum – which the IEBC was in breach of – would continue to apply during the intervening period – and indeed – as Elisha Ongoya argued later in the day – would be applicable until either the declaration of unconstitutionality was set aside, or another, legally valid amendment, was enacted. Carolene Kituku also advanced submissions on why the popular initiative process failed to pass the threshold of public participation (insufficient time, the draft bill only on the internet, PDFs, and so on).

In his submissions, Elisha Ongoya pointed out that at this stage, the BBI case had received close attention from a dozen judges combined (five at the High Court and seven at the Court of Appeal), and their concurrent findings should, therefore, be treated with a modicum of deference; in particular, and in any event, factual findings (such as insufficient public participation) should not be disturbed. Following up on this argument, Elisha Ongoya argued that the High Court’s determination of the basic structure doctrine – and the four-step-sequential process – was rooted in a detailed analysis of the text, structure, and history of the 2010 Kenyan Constitution. Ongoya argued that the onus was on the Appellants to demonstrate, specifically, which of these considerations was wrong or irrelevant; however, they had not done so, choosing instead to attack the High Court in general terms, for having converted itself into a philosophical tribunal. In particular, on Article 89 (delimitation of constituencies), the High Court produced six specific reasons, none of which had been disturbed by the Appellants. Moving through the abstract and the particular (as he had in the Court of Appeal), he illustrated the very specific political and historical concerns around constituency delimitation that had necessitated the High Court to evolve the basic structure doctrine. He was followed up on this by Evans Ogada, who argued that by prescribing a procedure and a time limit for the IEBC to carve out these new constituencies, the BBI Bill fatally compromised the independence of this fourth-branch institution. The line-up on the Respondents’ side was finally completed by Dr. John Khaminwa, who summed up the arguments in favour of the basic structure doctrine.

Phase Two: The Judges’ Questions

In my opinion, the brief half an hour around midday today was perhaps the most important part of the hearing; having heard the judges’ questions to the Appellants the day before, their questions to the Respondents perhaps indicated in the clearest manner what their concerns were, and what the issues were upon which the decision would finally turn.

On the basic structure, Ouku J asked whether the High Court and Court of Appeal had provided sufficient guidance to the citizens of Kenya for determining what the basic structure was; and further, was the four-step-sequential-process to be found within the Constitution, or coming from outside. Smokin Wanjala J asked about the distinction between “amendment” and “alteration”: what meaning was to be given to the “disappearance” of the word “alteration” from the constitution-making process, and how might that word be revived, constitutionally. He also asked about the where the juridical form of the constituent power was located. Koome CJ wondered if Kesavananda Bharati had attained the standard of a municipal decision that could be taken to lay down “a general principle of international law” – and whether, indeed, it had informed the framing of Kenya’s own Constitution, in particular Articles 255 – 257. Sticking with the theme, Lenaola J asked where in Kesavananda Bharati was it said that the Indian Constitution has any “eternity clauses”. He then asked what – in my view – was the most important question of the hearing (I will examine the reasons for this below): given that Article 255(1) specified which entrenched matters had to go to a referendum for amendment Article 257(1), what were those matters outside Article 255(1) that might need to go to the primary constituent power for amendment?

On the IEBC and quorum, Ouku J asked what would happen to those acts that the IEBC had done while it was improperly constituted. Njoki J asked if the quorum requirements could be read into the Constitution – and if not, why did the Constitution provide a “minimum” and a “maximum” number for the composition of commissions. Smokin Wanjala J wanted to know what would happen if Parliament made a law for a three-member commission, and fixed quorum on that basis. Similarly, Lenaola J asked what the meaning was of Article 250(1) setting the minimum number at three (as no constitutional provision ought to be considered superfluous), and what – if any – acts the Commission could undertake with three members.

On public participation, Njoki J asked what specific steps the IEBC could have taken to reach ordinary Kenyans. And Koome CJ expressed a concern similar to the one she had expressed during Appellants’ arguments: was there something in the Constitution that could be used to determine the standards for public participation, even in the absence of express statutory framework?


Discursion: Thinking through Lenaola J’s Question

Before continuing with this post, I want to briefly think through Lenaola J’s question, as I believe it is fundamental to the case. The point is basically this: as the Appellants argued repeatedly, the Kenyan Constitution has a two-track process for amendment. The regular Parliamentary route on the one hand (Article 256), and then, for the ten entrenched subjects under Article 255(1), the public participation + referendum route under Article 257. Appellants argued that this two-track process was doing the same work that the basic structure doctrine was otherwise meant to do: it was identifying the basic features of the Kenyan Constitution, and then prescribing a more onerous, people-involved way of amending them, which approximated the primary constituent power.

This being the case, the obvious challenge for the basic structure doctrine is this: if you say that the basic structure of the Kenyan Constitution is the ten subjects under Article 255(1) (the supremacy of the Constitution, the territory of Kenya, the sovereignty of the People etc), then an immediate problem arises – given that there is a specific and express way to amend these subjects (Article 257), how then can the four-step process be simply superimposed upon this scheme? If, on the other hand, you say that the basic structure of the Kenyan Constitution is not in these ten subjects, then a whole host of other problems arise. What, for example, is even more fundamental or basic than sovereignty, or the bill of rights, or constitutional supremacy, that would need an even higher threshold of amendment than what is set out in Article 257? And how would you identify what those even more fundamental themes are?

So how does one answer Lenaola J’s question? I think there are two sequential (sorry!) responses. The first is to accept that the basic structure is (largely) located within Article 255(1) of the Kenyan Constitution (as the Court of Appeal, in fact, did) and not outside of it. However, here is the key: not every amendment to an Article 255(1) subject will trigger the basic structure doctrine and the four-step-sequential process. It is important to note here that the OG basic structure case – Kesavananda Bharati – never actually said that you cannot amend the basic structure. What it said – and this is crucial – is that you cannot damage or destroy the basic structure. And the distinction is significant: for example, amendments to Article 16 of the Indian Constitution setting out the modalities for affirmative action have passed the judicial scrutiny, even though they “amend” the Constitution’s equality code, which is unambiguously part of the basic structure.

So, even with respect to the subjects set out under Article 255(1), not every amendment will necessarily trigger basic structure scrutiny. Consider, for example, 255(1)(e) – the Bill of Rights. Article 24 of the Kenyan Constitution sets out the conditions for limiting a particular fundamental right. It follows familiar language – the nature of the right, the purpose of the limitation etc. Now, suppose you wanted to amend Article 24 and make the language clearer – for example, incorporate into the Article, in express terms, the global proportionality standard that is now followed in many jurisdictions across the world. This would be an amendment to an Article 255(1) subject, and therefore trigger Article 257. However, it would not be damaging or destroying the basic structure in a manner that would trigger the primary constituent power, and the four-step-sequential process. Indeed, you can think of many ways in which the subjects set out under Article 255(1) could be amended (i.e., making language more precise, modifications to standards, adding standards etc) that would not trigger what we generally think of as basic structure scrutiny. On the other hand, if you were to repeal Article 24 altogether, and replace it with a provision such as: “All rights in this Part may be limited whenever the government deems fit in the public interest” – now that would be a basic structure violation that would go beyond Article 257 and trigger the four-step-sequential-process.

This point is crucial, because it really does go to the heart of the case – the difference between amendment and repeal – and why the existence of the two-track process (as the Appellants argued) does not preclude the operation of the basic structure doctrine. This is because at the end of the day, the two-track process is concerned with amendment – whether of non-entrenched provisions (Article 256 route) or entrenched provisions (Article 255(1) + 257 route). The two-track process does not contemplate wholesale repeal of the Constitution (express or implied). It is for those situations that the primary constituent power and the four-step-sequential process is needed. Thus, there is nothing absurd about saying that one does’t need to go looking for the basic structure outside of Article 255(1): the same sub-clauses under Article 255(1) might trigger either Article 257 or the four-step-sequential-process, depending upon the nature of the change in the Constitution sought to be effected, and whether it genuinely amounts to an amendment, or whether it is repeal. In other words, the key is not Article 255(1), but the nature of the change.

My second, brief point is that at the same time, one might hesitate to definitively say that Article 255(1) necessarily exhausts the basic structure. Arguments were made before the HC and the CoA, for example, showing how the questions of boundary delimitation – given Kenya’s context and history – needed to be considered as basic structure questions (arguable this would come within sub-clause (g), but bracketing that for the moment). One can also think of a case such as Indira Nehru Gandhi v Raj Narain, for example, where a constitutional amendment that simply precluded a challenge to the Prime Minister’s election was invalidated by the Court. Again, this would arguably fall within 255(1)(d) (the rule of law) and (g) (independent of the judiciary), but it is possible to differ on that. In any event, I do not think too much turns on this point: I think it is also perfectly reasonable to finally and conclusively say as follows:

the basic structure – as the Appellants correctly argue – is found in Article 255(1). But not every amendment to Article 255(1) triggers the application of the basic structure doctrine, the primary constituent power, and the four-step-sequential-process. For the primary constituent power to be triggered, the amendment must be of such nature, extent, and consequence, that it amounts to an implied repeal of the Constitution or its basic structure. Thus, if you were to make a venn diagram, there would be a larger circle of amendments to Article 255(1) subjects, and a smaller circle – contained within it – of amendments that triggered the basic structure doctrine.


With respect to the judge’s questions, Nelson Havi argued that both the HC and the CoA had correctly stated that to identify the basic structure, you would have to look at the context and history of each provision. For example, in order to understand why the independence of the judiciary was part of the basic structure, you would have to look at how the colonial judiciary was a department of the executive, and how and why it migrated from the State department to independent status. On the four-step-process, Havi argued that it was not found within the Constitution, but a means of preventing constitutional death: it was found in the process that made the 2010 Constitution. Indeed, it had to be outside the Constitution because the primary constituent power was, by definition, primordial. On the distinction between “alter” and “amend”, Havi submitted that the reason for the change was precisely the flaws that had been discovered with the Independence Constitution providing for the means of its own “alteration”.

Esther Ang’awa then argued that quorum could not be read into the Constitution, as the Commission had to operate on the basis of both the Constitution and legislation (the two engines). This argument was supplemented by other counsel, who pointed out that “composition” was just for membership, whereas quorum was to transact business – thus, the two concepts remained fundamentally distinct.

On public participation, Carolene Kituku provided various ways in which it could have been secured (e.g., use of other media of communication, such as radio). She also made an interesting burden of proof argument. Flipping the question around – i.e., what evidence was there that public participation was insufficient – she asked, instead, that what evidence had been produced by State organs to show that public participation had taken place. I believe that this question is correctly framed: because if public participation is a guaranteed right under the Kenyan Constitution, and if it is easier for the State to prove the affirmative (i.e., that public participation had been carried out), then to me it seems to follow that the initial evidentiary burden lies upon the State: until the State has produced satisfactory evidence that the public participation requirement has been fulfilled, the presumption ought to be that it has not (this flows from the fact that the it is a right).

Finally, Topua Lesinko made the point that the judgments of the HC and the CoA were different in crucial respects from Kesavananda: to continue with the running theme of the proceedings, while in Kesavananda the Court permanently shut out certain amendments from being made altogether, the HC and CoA surrendered them to the primary constituent power without shutting them out. In my view, another way of putting it would be that Kesavananda puts substantive limits on constitutional amendments based on their content, while the HC and the CoA placed procedural limits based on deepening public participation, so that the People could adequately determine when the content could be allowed to go through and when not.

Third Phase

The last segment of the hearing saw the rejoinder by the Appellants. I will focus here on the basic structure doctrine, as the rest of the arguments were addressed, but only briefly, and with arguments similar to those that have already been discussed previously.

On the subject of the basic structure, in closing, the Attorney-General’s legal team laid out the core of their case: that the the basic structure constituted the foundational provisions of the Constitution. These were entrenched, and were to be found in Article 255(1). At the same time, the basic structure doctrine was an extra-constitutional doctrine that substantively limited the power of amendment. Thus, the Kenyan Constitution had a basic structure, but did not contemplate the basic structure doctrine. The Kenyan Constitution’s basic structure was protected not by the basic structure doctrine, but by the onerous amendment provisions under Articles 255 and 257.

The reason why the basic structure was located in Article 255(1) was to be found in the history of the constitution-making process. The People’s concern during the framing – as captured in the CKRC report – was how quickly and how fundamentally the Independence Constitution was amended. The CKRC then identified the People’s solution: a distinction between entrenched and non-entrenched provisions, with a stringent procedure being put into place for the amendment of the latter. This would safeguard the core of the Constitution. And that core was what was provided under Article 255(1).

The AG’s team argued that the basic structure doctrine was being deployed to obstruct the sovereign (i.e., the People’s) right to amend the Constitution under Article 257. In this context, there was no real difference between “amendment” and “alteration.” The contextual meaning of the word “amend” simply flowed from the ability of the sovereign to make or unmake anything, and that was the manner in which it was used in Chapter XVI of the Kenyan Constitution.

George Oraro SC then took up the baton. Speaking about the four sequential steps, he argued that what the HC and CoA judges were trying to do was to revert to the original ratification procedure as a basis for legitimising the basic structure doctrine. But – according to Oraro SC, as I understood him – this, ultimately, was a futile endeavour: the power of making a Constitution was primordial and belonged to the People. By definition, it could not be regulated by a Court. The People had the right of reserving to themselves how they would use this power (e.g., Article 1(1)) – but even that could not stop them from coming up with a new method of creating of recreating a Constitution.

However, for now, the People had set out the route that they wanted to take, and that route was through Articles 255 and 257. The role of the Court, thus, was to ensure that those strict provisions for exercising the primary constituent power were very strictly followed: for example, sufficient participation, sufficient consultation. In essence, the role of the Court was to ensure that the right of the People to exercise their primary constituent power was protected. Oraro SC closed by stating that ultimately, it was the citizens – who were registered voters – who were holders of the primary constituent power, and it was this primary power that had been textualised under Article 257. This – thus – precluded the application of the basic structure doctrine.

As a closing remark of my own, I believe that this is as clear a statement of the case as it is possible to make. However, I am not entirely convinced that it responds to the core point: namely, that while the People indeed chose to constitutionalise the amendment to entrenched provisions under Article 257, that does not necessarily imply that said power carried with it the power of repeal or abrogation. Oraro SC’s argument assumes a conflation of that distinction, but in my respectful view, does not demonstrate it. It does not respond (in my view) to the independent arguments making that distinction, and showing why the primary constituent power is different from the power of amendment, and why – therefore – it must lie outside the Constitution.

Conclusion

The three days’ hearing before the Supreme Court saw arguments touch upon a wide range of issues crucial to both Kenyan constitutional law, and to comparative constitutional law in general. What is at stake (in my view) is one of the most unique contributions to global jurisprudence in recent times: a basic structure doctrine that is not substantive but procedural, that does not impose a judicial veto but seeks a deeper form of public participation to amend the Constitution, and which provides to direct deliberative democracy an integral role in processes of significant constitutional change. We will now wait to see the final fate of this case.

As Solicitor-General Kennedy Ogeto said at the very end of the hearing, the judgment of the Court would be with Kenya for posterity. To that I will only add: it is also the kind of judgment that will echo in the annals of global constitutional law and thought, for generations to come.

The BBI Case at the Supreme Court of Kenya – Day 2

Day 2 of the BBI hearing (read analysis of Day 1 here) at the Kenyan Supreme Court (watch here) can be divided into three phrases. In the first phase, counsel supporting the appellants (i.e., broadly, the pro-BBI side) finished their submissions. In the second phase, the bench posed a series of questions to the pro-BBI side. In the third phase, the anti-BBI side (or, the Respondents) commenced its submissions. This typology is slightly reductive: for example, Mr. Isaac Aluochier, who argued in the first session, was against the basic structure doctrine, but was also against the BBI (for other reasons). Mr. Morara Omoke, who argued in the third session, was technically an appellant, as he had filed a cross-appeal on the question of single and multiple referendum questions. However, in the interests of sanity, this typology will have to do for the purposes of this post.

First Phase

The President’s legal team opened Day 2. SC Waveru Gatonye addressed the Court on the issue of Presidential immunity. Like his predecessors the day before, he focused on how the Kenyan Constitution contains inbuilt accountability mechanisms that are consistent with wide-ranging Presidential immunity from civil proceedings during the term of office. For example, wronged parties could sue the Attorney-General, and impeachment proceedings could always be launched. A bar upon suing the President during their term of office, therefore (for things done in the operation of their office) would not lead to impunity. Continuing on the theme of Presidential powers, SC Kimani Kiragu then argued on Presidential involvement in the Popular Initiative under Article 257: he argued that the sovereign People of Kenya had delegated a part of their authority to H.E. the President. Once that had been done, there could be no half-measures: the President must be deemed to possess all sovereign powers that had been delegated – including the power to initiate constitutional reform – unless there was an express limitation in the Constitution. In the context of Article 257, there was no such limitation. Readers will take careful note of this argument; as we shall see, it will become particularly important when contrasted with the Respondents’ submissions on this point.

Mr. Isaac Aluochier took the podium, to argue against both the basic structure doctrine and Presidential immunity. I want to flag one particular argument, as it was made before the Court of Appeal as well: that the basic structure doctrine is precluded by Article 1 of the 2010 Constitution of Kenya, which states that “all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.” Mr. Aluochier argued that Article 1 is express authority for the proposition that there can be no “extra-constitutional defence mechanism” for the Constitution, such as the basic structure doctrine. However, as I have tried to show before, this argument proves too much: at all times, the phrase “this Constitution” presumes the existence of the Constitution under advisement, that is, the 2010 Constitution. However, the whole point of the basic structure doctrine is to prevent or regulate amendments that are of such a nature that “this Constitution” will no longer be “this Constitution”, as its fundamental identity has been altered. Thus, if the basic structure doctrine is otherwise correct, Article 1 does not refute it: when you say that sovereign power will be exercised in accordance with this Constitution, it already excludes situations where this Constitution is no longer this Constitution – which is the situation that the basic structure doctrine is meant to cover. To be clear: this is not an affirmative argument in support of the basic structure doctrine. It is, however, a defensive argument that demonstrates that whatever other arguments there might be against the doctrine, Article 1(1) cannot be pressed into service here.

Second Phase

In an interesting turn of events, the bench did not pose any questions to counsel while they were arguing; instead, in the second phase, each of the judges took turns in posing a series of questions. Counsel for the pro-BBI side were then granted three minutes each to respond to the questions most relevant to their brief.

Let us group the questions thematically. On the subject of the basic structure, Lenaola J asked what it meant to say that sovereignty was “extra-constitutional”. Njoki J wanted to know if the four-step sequential process was found anywhere in the Constitution. Smokin Wanjala J asked why the appellants located the Kenyan Constitution’s basic structure within Article 255 – and why believed that the basic structure doctrine was inapplicable in Kenya. On the popular initiative, Lenaola J asked if there was any global precedent for a President – or a President-like figure – being involved in something like a popular initiative. Njoki J asked if the President was authorised to move under a popular initiative in order to fulfil his constitutional functions (readers will note this question, as an interesting answer was provided during Respondents’ submissions). Smokin Wanjala J enquired why it was being argued that the popular initiative kicked in only after the collection of a million signatures – and not before. Koome CJ also asked about the initiation of the popular initiative, and whether the requirement of public participation required a legal framework or rules of procedure, to be instantiated. Finally, on the subject of distinct and separate referendum questions, Ouku J made the important point that while four judges in the Court of Appeal seemed to endorse the “thematic unity” approach to referendum questions (i.e., referendum questions within a single theme could be grouped together, but not from different themes), the final disposition of the Court of Appeal reflected the opposite holding. Lenaola J asked if it was correct to say that the question was not yet ripe, as the IEBC was yet to decide how to frame the referendum questions; and Njoki J wanted to know if – given that there was nothing express in the Constitution – whether the thematic approach implied inserting into the Constitution something that was not there.

Responses to these questions were along familiar and expected lines: counsel reiterated – or further explained – the positions they had taken, including the argument that the basic structure doctrine applies only when there is a parliamentary monopoly over amendments, that the Kenyan Constitution’s basic structure was identified in Article 255 and provision for its amendment set out in Article 257, that Kesavananda Bharati is inapplicable to Kenya, that the scope of public participation is expressly set out in Article 257, and varies with the stage of the popular initiative, that the referendum question issue was unripe. Most of these points were addressed in yesterday’s blog post, and I will not repeat the arguments here.

Let me, however, flag two interesting responses. One response came on the question of global precedent: apparently, in Lichtenstein, the Prince had proposed a series of constitutional changes through a popular initiative (including the power to appoint judges), which were eventually passed by a referendum. Now, it was undoubtedly fascinating to hear – for the first time – some comparative constitutional law from Lichtenstein! I do wonder about the appropriateness of the example, though: a Prince taking control of the judiciary through constitutional amendment doesn’t exactly feel like a particularly inspiring instance of the use of the popular initiative. Out of curiosity, I did some digging after the hearing: it appears that the Venice Commission strongly criticised many of the constitutional reform proposals for their anti-democratic character, for the reason that they would result in excessive centralisation of power with the monarch. If anything, therefore, the Lichtenstein example seems to show that letting a powerful head of State bring about constitutional reform through popular initiative is more a recipe for abuse than anything else!

The second response was on the basic structure. Perhaps for the first time, counsel bit the bullet, and told the Court that if, tomorrow, there was a constitutional amendment seeking to curtail judicial review itself, the Court could participate in the public discussion around it – but would have no power to invoke the basic structure to invalidate the amendment. Putting the point in such stark terms – i.e., telling the Court that it had no legal power to protect even its own existence from constitutional amendment under Article 257 – is undoubtedly a starkly honest – and rather bold! – argumentative technique. It remains to be seen how the Court will respond to the issue being framed in such categorical terms.

Third Phase

The third phase was kicked off by Mr. Morara Omoke’s team, which had filed a cross-appeal on the referendum questions issue, but ultimately launched a full-throated defence of the High Court and Court of Appeal judgments. Counsel responded directly to the Appellants’ Kesavananda point, noting that there was a key distinction between Kesavananda and David Ndii. Kesavananda expressly “locked out” a set of amendments altogether. The High Court and the Court of Appeal, however, were equally express that in principle, every provisions of the 2010 Kenyan Constitution – including its basic structure – could be amended (as I argued in yesterday’s post, this distinction is crucial, as it – in my view – tracks the contextual differences between the Kenyan and Indian Constitutions). Secondly, counsel argued that the purpose of the four-step sequential process was to deepen public participation in the amendments process. It is important to read the two arguments together. The first argument is an argument demonstrating the need for a different form of the basic structure doctrine in the Kenyan context; and the second argument is an argument demonstrating that the form chosen by the High Court and the Court of Appeal was justified: where the amendment process already provides a role for the People (the two-track process referred to by the Appellants), the basic structure doctrine can only exist to the extent that it deepens that role to a level commensurate with constitutional framing. That, in essence, was what – according to counsel – the High Court and Court of Appeal did, and that was why this particular form of the basic structure doctrine (i.e., the four-step sequential process) was justified in the specific context of Kenya.

Mr. Morara Omoke then advanced a series of arguments supporting the High Court and Court of Appeal: on the issue of IEBC quorum, that Article 250(1) mentioned that the composition of Commissions had to be a minimum of three – but that composition did not equate to quorum. Extending the argument – in terms somewhat similar to the constitutional statute point made in yesterday’s blog post, he took the example of the tax code: if – Mr. Morara Omoke argued – amendments to the tax code were struck down, would it be the case that the Code itself would be treated as repealed, leaving the entire domain unregulated? He argued that that could not be the case – and similarly, the striking down of Sections 5 and 7 of the IEBC Act Schedule could not lead to the conclusion that there was now no statutory regulation governing the functioning of the IEBC.

For the sake of completeness, this argument was carried forward later in the day by Ester Ang’awa, who pointed out that the IEBC was regulated by both the Constitution (Article 250(1)), and by statute (the IEBC Act) – both of which, together, functioned as two wings of a plane, and were necessary for it to continue flying. On the failure of one engine (the statute, parts of which were struck down), the plane could not simply run perpetually just on the other. Readers may here again spot similarities with the constitutional statute argument, without the term expressly being mentioned.

Finally, on the issue of referendum questions, Mr. Morara Omoke noted that he had written to the Court of Appeal after its judgment, requesting clarification on the apparent contradiction between the holdings and the disposition; he had a reply stating that there was no contradiction (pretty impressive due diligence!). Mr. Omoke then made the case in favour of the “thematic unity” approach. The case is, by now, a familiar one: a voter cannot exercise choice in any true sense if she is provided with a grab-bag of seventy-four constitutional amendments – some of which she may support and some of which she may oppose – and then asked to approve or reject all of them in an up-down vote. This is a specific problem when “sweeteners” that have nothing to do with constitutional reform are thrown into the mix with the specific intention of making the reform proposals more palatable.

The Respondents then formally opened proceedings, with Mr. Nelson Havi starting the case. His conceptual and theoretical arguments on the basic structure should – by now – be familiar; one important point to flag is that Mr. Havi affirmed that – by its very nature – primary constituent power must lie outside of the Constitution itself. This is a direct response to the argument – made by George Oraro SC the day before – that the 2010 Constitution had textualised the primary constituent power within Articles 255 and 257. Now, while this is true as a matter of constitutional theory, a more subtle point that the appellants had made remains: which is that the closer the amending process in a Constitution gets to the primary constituent power, the less role there is for judicial intervention through the basic structure doctrine. To this, Mr. Havi replied that the four-step sequential process was what provided the wedge between constitutional amendment and constitutional repeal. The four-step sequential process – which lay outside the Constitution – kicked in only when what was being attempted was constitutional repeal (express, or through necessary implication). Thus, no matter how close an amendment process came to approximating the primary constituent power, when what was being done was not an amendment at all, but a repeal, it became necessary to look outside the Constitution in order to find the power for such an action; because, recall – Mr. Havi argued – that the primary constituent power is the power to frame, re-frame, or repeal a Constitution, and must therefore lie outside of it.

On the involvement of the President in the popular initiative, Mr. Havi inverted the argument made by the Appellants: he asked, instead, where in the Constitution was the President granted the power to involve himself in the popular initiative process. This emphasises the point that I made in yesterday’s blog post: the popular initiative dispute is, at the end of the day, a dispute about how to interpret a constitutional silence, and will turn upon what the Court thinks is the purpose of Article 257. If the Court thinks that the purpose of Article 257 is to establish bottom-up direct democracy, it will exclude the President; if, however, it does not view Article 257 in that manner, it may not do so.

In the final set of arguments for the day, Elias Mutuma addressed submissions on Presidential involvement in the popular initiative – again, responding specifically to the appellants’ core point that in the absence of any constraining provision, the President should be deemed to have the power as part of the normal exercise of his constitutional rights. While it was true – Mr. Mutuma argued – that the People had delegated sovereign power to the President, it was important to note that what had been delegated was executive, not legislative power; thus, to the extent that the President wanted to legislate (and constitutional reform through the Popular Initiative was a form of legislation), he needed express authorisation under the Constitution. A constitutional silence, thus, would need to be interpreted against the President.

Mr. Mutuma went on to make a fascinating argument about the nature of the popular initiative, and when it could be deemed to commence. Under Article 257 – he noted – the People had to be involved with enacting the constitutional reform in question. This envisaged an active role for the People right from the beginning, and not simply a situation where the People were just given a constitutional reform proposal to endorse or reject. Thus, the mere fact that there was a reform proposal with one million signatures did not ipso facto mean that the requirements of Article 257 had been fulfilled.

I want to pause for a moment and reflect upon the deep roots of this argument in democratic theory. Article 257 of the Kenyan Constitution – as I’ve argued before – is a particularly important provision in how it seeks to infuse direct democracy into the constitutional amendment process. Direct democracy itself, however, can be of two kinds, depending upon whether the citizenry is to be treated as passive consumers of laws, or active participants in their enactment. In the former situation, the political elite continue to devise and frame the laws, with the “direct” role of the People being limited to (mostly) accepting them by acclamation, or (rarely) turning them down. In the latter situation, however, the involvement of the People is deeper, and begins from the moment of the devising of laws. Mr. Mutuma argued that Article 257 envisioned the latter conception of direct democracy, and this would have an impact (a) on the question of when the Popular Initiative could have been deemed to have begun, and (b) on the scope of public participation. Incidentally, it would also have an impact on the question of Presidential involvement: it is far more difficult to justify Presidential involvement if the purpose of Article 257 is to empower an active citizenry to play a front-stage role from the get-go. Top-down, led initiatives are in fundamental conflict with this vision of direct democracy.

Finally, Mr. Mutuma posed a hypothetical: if this was a pre-constitutional moment, and the 2010 Constitution was being submitted for ratification, would the procedure under Article 257 be deemed sufficient? He argued that it would not, and that was why the four-step sequential process – which provided for a deeper and more sustained level of public participation – was justified. Arguments for the day were then concluded by Caroline Jerono, who argued that as all the terms in Article 257 (Bill, Amendment, Suggestion) were in the singular, it was a strong indication in favour of the thematic unity approach to referendum questions.

Conclusion

This brings us to the close of day 2 of the hearings. By now, it is evident that the battle lines have been drawn, and the points of conflict are beginning to appear in a clearer fashion. Tomorrow should bring the curtains down upon the case, and leave us with a clear sense of the issues on which this case will finally turn.

The Marital Rape Exception Case: Two Constitutional Issues

Oral arguments in the constitutional challenge to the exception to Section 375 of the Indian Penal Code [“the marital rape exception”] are presently being heard before a two-judge bench of the High Court of Delhi. In this post, I will focus on two constitutional questions that have emerged during the course of the hearing: first, is “marriage” – or “marital status” – a valid classification for the determining when sexual assault constitutes rape or not; and secondly, will striking down the marital rape exception amount to “creating a new criminal offence”?

Marital Status as an Unreasonable Classification

To avoid getting sidetracked by superfluous arguments, let us first clarify what the marital rape exception does not say. The marital rape exception [“MRE”] does not say that sexual assault within a marriage will not be an offence at all. Such acts will continue to be punished under other criminal law provisions (for example, Section 498A, or the offence of causing grievous hurt). What the MRE does say is that sexual assault within a marriage is legally not rape, and will not be punished as rape.

Highlighting this distinction is essential, because it appears to have become the basis of an attempted constitutional defence of the MRE. Reconstructing the argument from various bits and pieces, the defence appears to be as follows:

  1. As a basic principle, consent to sex is fundamental and paramount.
  2. That said, marriage is an institution that brings with it certain reciprocal rights and obligations, one of which is a “legal right to expect reasonable sexual relations” (I use this framing only because it is the exact question that was put Hari Shankar J to the amicus curae, Mr. Rajshekhar Rao, during arguments).
  3. Consequently, it is constitutionally justifiable to use marital status as the basis for a graded scale of punishment. While it would not be constitutional to let marital rape go completely unpunished, it is valid for the legislature to punish it differently (and to a lesser degree), given the “legal right to expect reasonable sexual relations” within a marriage.

This argument rests upon the premise that the otherwise sacrosanct right to consent is somehow conditioned within a marriage by the “right to expect reasonable sexual relations”, and may therefore be treated differently, as long as it is not erased altogether. This is the legal version of eating your cake and having it too: “yes, consent is important, but also, rape within marriage is not exactly rape.”

In responding to this argument, it is sufficient to state that as of 2022, and as a matter of law, the proposition that there is a “legal right to expect reasonable sexual relations”, that can in someway qualify or diminish the rule of absolute consent, is quite simply incorrect. To understand why, one must examine a seemingly unrelated branch of law: family law, and – in particular – section 9 of the Hindu Marriage Act. Titled “the restitution of conjugal rights”, this section provides a remedy for a situation in which one spouse has “unreasonably” withdrawn themselves from the company of the other.

The relevance of the restitution of conjugal rights to this case is as follows: it is based on the precise logic that underpinned Hari Shankar J’s question to the amicus. The logic of the restitution of conjugal rights (the provision was originally imported from the 1865 Matrimonial Causes Act in England) is that marriage brings with it a legally enforceable right to “conjugal” (i.e., including sexual) relation, breach of which can be remedied by filing a lawsuit. While, over the years, the actual operation of this provision has been rendered largely toothless (it now serves as a springboard for filing a divorce claim, rather than a trigger for forcing an unwilling spouse into the company of the other), its underlying premise remains constant.

Indeed, this logic was recognised by the Andhra Pradesh High Court in the famous case of T. Sareetha v Venkatasubbaiah. In that case, Justice Chaudary struck down the provision precisely because – in his view – it “transferred the decision of whether or not to have sexual intercourse from the individual to the State.” In particular:

“Sexual expression is so integral to one’s personality that it is impossible to conceive of sexuality on any basis except on the basis of consensual participation of the opposite sexes. No relationship between man and woman is more rested on mutual consent and freewill and is more intimately and personally forged than sexual relationship.”

The argument, therefore, that marital status in any way affected the issue of consent to sex was squarely rejected, and the individual – in this case, the woman’s – right to decisional privacy and dignity was upheld. As is well-known, a year later, Sareetha was overruled by a three-judge bench of the Supreme Court. However, the logic of Sareetha has since been explicitly vindicated in the nine-judge-bench privacy judgment (Puttaswamy v Union of India). A plurality in Puttaswamy specifically noted that:

Yet, it must also be noticed that women have an inviolable interest in privacy. Privacy is the ultimate guarantee against violations caused by programmes not unknown to history, such as state imposed sterilization programmes or mandatory state imposed drug testing for women. The challenge in this area is to enable the state to take the violation of the dignity of women in the domestic sphere seriously while at the same time protecting the privacy entitlements of women grounded in the identity of gender and liberty.

The teaching of Puttaswamy is therefore that far from being diminished in the “domestic sphere”, the right to privacy and decisional autonomy of women attains an even higher salience than it might have in the public sphere. It therefore follows that after Puttaswamy, marital status cannot – by definition – be invoked as a ground to condition or in any way qualify the absolute character of privacy as decisional autonomy (and, thereby, the right to consent). Reading Sareetha and Puttaswamy together, we reach the inescapable conclusion that – under Indian constitutional law – any argument that there exists a “legal right to reasonable sexual relations” which qualifies the character of consent, is untenable. And once this argument falls away, the MRE no longer has a leg to stand on: marital status is entirely irrelevant to the question of forced sex being rape, whether within a marriage or out of it.

This conclusion is buttressed by the judgment of the Supreme Court in Joseph Shine v Union of India (the “adultery case”). In justifying the decision to strike down the criminal prohibition upon adultery, Chandrachud J specifically noted that:

“… Control over women’s sexuality is the key patriarchal assumption that underlies family and marriagemarriage is a significant social institution where this subordination is pronounced, with entrenched structures of patriarchy and romantic paternalism shackling women into a less than equal existence …  Constitutional protections and freedoms permeate every aspect of a citizen’s life – the delineation of private or public spheres become irrelevant as far as the enforcement of constitutional rights is concerned …the enforcement of forced female fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality.

It should be noted that these observations are squarely on point, and clarify that – as held in Sareetha and in Puttaswamy – marital status cannot be a ground to differentiate between the nature and character of the right to consent. And if marital status cannot be a ground for that differentiation, the MRE must fall, as that is the distinction upon which it is based.

Would Striking Down the MRE Create a New Offence?

In the previous section, it was established that the MRE violates Articles 14 and 21. Ordinarily, this should be all the reason that is needed to strike it down. A knotty question, however, presents itself: is a Court authorised to strike down a law if it results in the creation of a new criminal offence?

Would striking down the MRE result in the expansion of the scope of criminal law? In a trivial way, yes: hitherto, married men could not be prosecuted for rape. Now they can. A class of individuals who enjoyed legal immunity from criminal prosecution for a specific offence have now lost it. In that very literal sense, yes, the scope of criminal law has been expanded.

However, it is important to parse this further. The MRE exists in criminal law as a specific immunity, for a specific class of people, from being prosecuted for a specific offence. The ingredients of the offence (in this case, rape) have been set out in the substantive part of Section 375 of the IPC. The MRE does not in any way affect that. The MRE does not say, for instance, that “there is always deemed consent to sex within a marriage” (although it could have). The MRE simply decrees that although all the legal elements of rape have been satisfied, if a married man has committed the offence, “it is not rape”. The MRE is legal fiction in its truest sense: it simply takes a class of people outside the ambit of a defined offence, for no reason other than the fact that they belong to that class.

Consequently, all that striking down the MRE will do is to remove the immunity from prosecution for rape from married men (an immunity that, for the reasons discussed above, is founded upon unconstitutional reasons). To take a parallel example, imagine a second exception tacked on to Section 375: “provided that, sexual intercourse by a man who is a registered member of a political party, is not rape.” If this exception is challenged before the Court, can anyone be heard to say that the Court cannot strike it down because to do so “would be to create a new offence”? I believe not; and if the arguments in the previous section are correct, then there is no material difference here between “member of a political party” and “married man”.

It should further be noted that – for the reasons advanced above – striking down the MRE is not going to open up a parade of horribles where every criminal law can be challenged on constitutional grounds, starting with the rape law itself, on the ground that it is not gender neutral and therefore violates the right to equality. There are, of course, many arguments for why rape law should be made gender-netural – and indeed, how it should be made gender neutral, in a way that reflects the realities of patriarchy and institutional power. However, to change rape law in a way that makes it gender neutral would actually require the Court to adjudicate upon questions of legal policy, and – ultimately – to legislate. There is an entire set of legislative models for accomplishing this outcome, and it is not for the Court to fashion or craft legislative models. However, none of these concerns apply to the question of striking down the MRE: the removal of an arbitrary immunity based on marital status has no equivalence with refashioning the criminal law from one understanding of gender and structures of power, to another.

It should be further noted that this does not also mean that every criminal law immunity – or mitigation of punishment – will become vulnerable to challenge, and a marauding judiciary will then jump upon the opportunity to cut back everyone’s criminal law rights. Suppose, for example, that there is a law that says that in a case of damage to property, the fact that an accused was acting upon a genuine belief that she was protecting the environment, will be a mitigating factor in sentencing. A court striking down the MRE will not serve as a justification for striking down this hypothetical law: to do so, it will have to be shown that the political choice that the legislature has made to treat environmentally-motivated crimes in a less serious way, is equivalent to the gender-discriminatory decision that marriage makes consent less salient.

Finally, a quick note: the Supreme Court has already done this. In Independent Thought, the MRE was removed in case the wife was between fifteen and eighteen years of age. This is not to say that Independent Thought controls the outcome in this case; it is, however, precedent for the proposition that Courts can – and should – strike down an arbitrary immunity of this kind.


Disclosure: I was involved with the drafting of one of the petitions before the High Court in 2017. I have not been formally involved with the case since 2019.

The BBI Case at the Supreme Court of Kenya – Day 1: Some Observations

Today, arguments commenced before a seven-judge bench of the Supreme Court of Kenya in Attorney-General v David Ndii and Ors, popularly known as “the BBI Case.” On this blog, I have covered in some detail the progress of this case, including the judgment of the High Court (see here), the oral arguments at the Court of Appeal (see here), and the judgment(s) of the Court of Appeal (Part 1, Part 2, Part 3, Part 4). Because of the issues that it raises – about the limits of the constitutional amending power, public participation in popular initiatives, the conduct of referenda and the framing of referenda questions, the role of fourth branch institutions, and Presidential immunity, to name just a few – the BBI Case is not only hugely significant for Kenya and for Kenyan constitutionalism, but also for global and comparative constitutionalism more generally. The three-day argument this week is now the final round, and the Supreme Court’s judgment will be the last chapter of this story.

Oral proceedings before the Kenyan courts are broadcast live, and can be watched all over the world. Over the next three days, therefore, I will post summaries of the day’s arguments in the case, with some analysis (if applicable). A quick disclaimer: I am now formally a part of the proceedings, having submitted an amicus brief to the Supreme Court of Kenya, supporting the correctness of the High Court and Court of Appeal judgments.

The Basic Structure

Recall that the BBI Bill [“the BBI”] is a set of seventy-four proposed amendments to the Kenyan Constitution. Both the High Court (5-0) and the Court of Appeal (6-1) struck down BBI on the ground that it violated the Kenyan Constitution’s basic structure. The High Court held (5-0) – and the Court of Appeal confirmed (4 – 3) – that the basic structure could not be amended through the procedures set out within the Kenyan Constitution itself, under Articles 255 – 257 (“the secondary constituent power”). Rather, the basic structure could only be amended through a process that recreated the conditions under which the Kenyan Constitution of 2010 was framed (“the primary constituent power”). This required a sequential four-step process – civic education, public participation, a Constituent Assembly, and a referendum.

Before the Supreme Court, this finding was under challenge by the Appellants and the supporting Respondents, most of whom argued today (see Day One’s arguments here). In my opinion, the clearest and most lucid statement of the Appellants’ case can be reconstructed by studying the combined oral arguments of the Solicitor-General and – after him – George Oraro SC. Put simply, the argument is this: the mischief that the High Court and the Court of Appeal were seeking to remedy through the basic structure had already been identified – and then remedied – within the text of the Kenyan Constitution itself, specifically through Article 257 (the popular initiative). The Solicitor-General noted that the core problem – that is, the problem of “quick and fundamental” amendments to a Constitution effectively eviscerating constitutionalism itself – was specifically recognised during the framing of the 2010 Constitution, and it was solved through the drafting of Articles 255 and 257. Where an amendment to a core feature (i.e., the basic structure, taken in a non-technical sense) was sought to be made, Articles 255 (that listed these core features) and 257 would kick in, which required a detailed process of public participation and – eventually – a referendum. In other words, the Solicitor-General argued that Article 255 and 257 were doing the same work that a basic structure doctrine was otherwise meant to do: that is, protect a Constitution’s core identity from majoritarian abrogation. The Kenyan Constitution did have a basic structure; it was contained in Article 255; and the procedure for its amendment was set out in Article 257.

The theoretical gloss upon this argument was put by George Oraro SC, who argued that what the High Court defined as “primary constituent power” – i.e., the power of creation (or re-creation of a Constitution, as opposed to simple amendment) had been textualised within the Constitution itself, through Articles 255 and 257. Thus, when the Kenyan Constitution stated that for amending certain parts (set out under Article 255), the popular initiative process of public participation and referendum (under Article 257) had to be followed, it was effectively providing an internal, constitutional route for the exercise of primary constituent power. And both the Solicitor-General and Oraro SC noted that with this two-track procedure of amendment, which reflected the exercise of primary constituent power, there was no need of a basic structure doctrine, as the two were effectively meant to do the same thing.

Echoes of this argument were made by various counsel through the day. Counsel for the National Assembly specifically argued, for example, that the basic structure doctrine – as it judicially originated in India – was not meant to be a limitation on constitutional amendments per se, but on parliamentary monopoly over constitutional amendments (an argument repeated by counsel for the Senate as well as counsel for the 74th Respondent). Where Parliamentary monopoly had already been taken away by the constitutional text – and indeed, taken away in favour of direct participation by the people – there could be no place for the basic structure doctrine.

One notes a subtle – but unmistakable – shift in the Appellants’ arguments from the Court of Appeal (and indeed, in response to the Court of Appeal’s judgment(s)). In the Court of Appeal, it was straightforwardly argued that Articles 255 – 257 provided a self-contained code that explicitly contemplated the amendment of every provision of the Constitution; now, it was argued that conceptually, Articles 255 – 257 were encoding primary constituent power (or something like it). This shift is expressed most clearly in Oraro SC’s argument that amendment procedures in a Constitution are best understood upon a spectrum; and – on this spectrum – the closer that an amendment process is to the exercise of primary constituent power in its design, the less scope should there by for judicial intervention via the basic structure doctrine.

I want to use this idea of the spectrum as the springboard for a few brief comments. I think Oraro SC’s insight that amendment procedures are best understood along a spectrum that goes from Parliamentary monopoly at one end (India) towards primary constituent power on the other, is an important one. However – and this is crucial – in exactly the same way, the basic structure doctrine is also best understood along a spectrum, a spectrum that goes in precisely the opposite direction. The particular form that a basic structure doctrine takes in a particular jurisdiction is directly responsive to where, on the spectrum, that jurisdiction’s amendment procedures lie. So, in a jurisdiction like India, where there exists parliamentary monopoly over the amendment process, the basic structure doctrine takes a thick, substantive form, and is effectively a judicial veto over amendments (because that is the only way to protect constitutional identity from evisceration). On the other hand, in a jurisdiction like Kenya, where the amendment process creates space for the People, the basic structure doctrine takes a thin, procedural form, and the judiciary no longer exercises a veto over amendments. This was the fundamental point that – in my view – the High Court correctly grasped when it crafted a doctrine of the basic structure that was radically different from Kesavananda Bharati, precisely because the Indian and Kenyan Constitutions were at different places along the spectrum.

If we understand this, we are also in a position to re-formulate the argument made by counsel for the Senate and for the National Assembly. Thus, it is perhaps not entirely accurate to argue that the basic structure doctrine is limited to curtailing parliamentary monopoly over amendments. It is more accurate to say that the basic structure doctrine in its thick, substantive, judicial veto form is limited to curtailing parliamentary monopoly over amendments. However, as the judgments of the High Court and the Court of Appeal show, that is not the only basic structure doctrine that is on offer. The basic structure doctrine can take a form that is applicable to a Constitution where the amendment process incorporates elements of participation and democracy. This form will be thinner, it will be procedural, and the judiciary will take a more backstage role – exactly the features of the doctrine that the High Court did evolve (note that – contrary to Oraro SC’s submissions – this is not the first time this has happened. The basic structure doctrine in Bangladesh evolved at a time when the amendment process did provide for a referendum).

The Popular Initiative

The Appellants’ arguments on the popular initiative – and the question of whether the President could be involved in the popular initiative – were more familiar and straightforward. Textually, the Appellants (and their supporting Respondents) argued that there was no express bar upon the President’s involvement in the popular initiative process. Structurally, they argued that much like the President did not lose their other constitutionally guaranteed rights on becoming President (such as the right to vote), there was no justification for denying them the right to political participation through involvement in the popular initiative. Historically, they argued that Article 257 – the popular initiative – was meant to curb Parliamentary monopoly over the amendment process. Purposively, they argued that Article 257 was meant to address situations where a President who had been elected on a platform of constitutional reform was stymied by a hostile or recalcitrant Parliament. On a combination of all these arguments, they therefore submitted that Article 257(1) ought to be interpreted liberally: that is, the words “an amendment to this Constitution may be proposed by popular initiative” should be read to mean “an amendment to this Constitution may be proposed by any person by popular initiative…”

Readers will note that these are – more or less – the arguments that were made before the Court of Appeal, and have been discussed in previous posts. As I have argued earlier, the interpretation of Article 257 depends, ultimately, upon the interpretation of a constitutional silence. Article 257 neither permits nor prohibits Presidential involvement in the popular initiative. The question, however, is whether Presidential involvement is consistent with a provision that seeks to encode bottom-up direct democracy as a method of constitutional amendment. In other words – and there is an interesting tension here between the Appellants’ arguments on Presidential involvement on the one hand, and their argument that Article 257 encodes primary constituent power on the other – will the political agency that Article 257 seeks to provide to the People be fatally undermined by allowing the process to be taken over by the State’s most powerful public official? If the answer to that is “yes”, then the structural argument falls away; and as to the historical and purposive arguments, it is equally plausible to argue that a recalcitrant Parliament standing in the way of the President is precisely the point: the very purpose of separation of powers – and of distributing power among different branches of government as opposed to concentrating them in one – is to prevent unilateral decisions, especially on matters as significant as constitutional reforms of basic principles.

It is also perhaps important to flag arguments on the issue of whether different referendum questions could be lumped together into an omnibus bill, whether different questions would have to be put separately the People (the High Court judgment), or whether the “unity of theme” approach should apply (Court of Appeal judgment). Other than the familiar, Oraro SC made the (I believe) new argument that prescribing how the referendum should be carried out wasn’t a task for the judiciary at all; rather, the issue would have to be governed by rules prescribed by Parliament, and by legislation (in this case, the Elections Act). However, Oraro SC also went on to argue that the Court could step in if the referendum was carried out in contravention of the Constitution. This – in my submission – potentially cuts out the legs from under the argument, because the import of the High Court and Court of Appeal judgments is precisely that a referendum in which disparate issues are shoe-horned into a straight up-down vote is unconstitutional. The before/after distinction, therefore, falls away.

The IEBC and the Quorum

The Independent Electoral and Boundaries Commission addressed submissions at some length on the question of whether or not the IEBC had quorum to carry out the BBI process. As in the Court of Appeal, the argument turned on a technical point about the consequences of a judgment striking down a legal provision, and its operation in rem (i.e., against the world at large). In brief, the IEBC argued that at the time the BBI case was being heard in the High Court and in the Court of Appeal, a prior judgment of the High Court had already struck down Sections 5 and 7 in the Second Schedule of the IEBC Act (which had altered the quorum requirements of the IEBC). The effect of this striking down – the IEBC argued – meant that these amendment provisions were gone altogether, and the previous provisions – which they had replaced – were also gone. Thus, there was no law governing the question of quorum anymore, and the position reverted to the default under the Constitution (see Article 250(1)), which was a quorum of three (this was fulfilled).

While the Court of Appeal judgment(s) addressed this point at some length, I believe one important addition to the discussion is the idea of a constitutional statute. Certain constitutional rights cannot be implemented directly, but need an institutional framework for effective implementation. A classic example is the right to vote, which is meaningless without an independent election commission. A constitutional statute is a statute that creates the institutional framework that is necessary to implement a constitutional right. Now, the crucial point is this: as long as a constitutional statute has not been enacted, the State is arguably in breach of its positive obligation to fulfil constitutional rights; but also, there is no real remedy, as the Court cannot force the State to legislate. However, once a constitutional statute has been enacted, there is arguably a bar on the State from then affirmatively going back to the pre-statute position where the right in question was unprotected (think of it like the principle of non-retrogression): because to do so would be a judicially reviewable breach of the State’s constitutional obligations. To take an example: having passed a voting law and set up an independent election commission, it would then be unconstitutional for the State to repeal the law and erase the Commission altogether (unless it proposed an equally efficacious statutory framework for fulfilling the right to vote).

I think that similar logic applies to the IEBC issue. If the Appellants’ arguments are to be accepted, then the consequence of a judicial striking down of amendments to the IEBC Act is not simply that the amendments are gone, but that the statutory regulation of that sphere (in this case, the quorum requirements for the IEBC to function) is gone altogether, sending us back to a situation where no legislative framework holds the field. For the reasons I’ve advanced above, I think that a better route is the route taken by the High Court and the Court of Appeal.

Conclusion

Towards the end of the day’s hearing, James Orengo SC noted that once the People had clearly established the route by which they wanted to enact amendments to the Constitution, the Court should be slow to interfere; and doing so might “prompt Kenyans to find other paths to reach their desired goals.” This formulation, in my view, represents the fundamental wedge in this case. Orengo SC’s critique – which he termed as judicial usurpation – would be undoubtedly accurate if the High Court and the Court of Appeal had actually “usurped” the power of amendment – i.e. established a judicial veto over constitutional amendments, based on their substantive content. However, it is questionable whether the High Court and the Court of Appeal did that. Both Courts were fairly clear that even the basic structure of the Constitution is amendable, but that conceptually, the procedure for amending it and for altering constitutional identity itself – the exercise of primary constituent power – has to be found outside the Constitution, and not within it. That process was anchored (by both Courts) in the re-creation of the conditions under which the Constitution was enacted: i.e., public participation in a deep sense, going beyond what is provided under Article 257.

It will now be interesting to see how the Respondents argue these points in the coming two days.

Guest Post: Transfer Petitions in Administrative Tribunals – A Critique of the Supreme Court’s Alapan Bandyopadhyay Judgment

[This is a guest post by Shubhansh Thakur.]


The Hon’ble Supreme Court (“SC”) passed a judgement in the case of Union of India v. Alapan Bandyopadhyay on 6 January, 2022, through which it set aside the judgement rendered by a division bench of the Calcutta High Court (“impugned judgement”) in a petition filed under Article 226. Further, the SC directed the Petitioner to approach the High Court (“HC”) having the jurisdiction over the matter. The judgement of the SC has two aspects. One pertains to certain remarks made by the HC, which were expunged from the record by the SC. The other pertains to the legal question, which formed the basis for setting aside the judgement of the HC. In this post, I will deal solely with the latter aspect.

Factual Matrix

An IAS officer (“Petitioner”) was working as a Chief Secretary with the West Bengal government and was required to do so, till he attained superannuation, which was due on 31st May 2021. The State government requested the Union to extend his service by three months till August, which was allowed and his tenure stood extended by an official notification.

Due to certain developments in relation to a meeting between the Prime Minister and Chief Minister, who was accompanied by the Petitioner, on 28 May 2021, a communication was received, informing the State government that the Petitioner’s appointment had been approved with the Union government and he may be released by 31 May 2021 to join at New Delhi. However, the State government refused to do so and cancelled the earlier notification extending the service of the Petitioner beyond 31 May 2021. Thus, the Petitioner stood superannuated on 31 May, 2021.

On the day of his superannuation, Petitioner received a show cause notice by the Union government under the National Disaster Management Act, 2005. Thereafter, a major penalty charge sheet was also issued to the Petitioner in relation to the meeting held on 28 May 2021. The officer replied to the aforementioned notice and charges. In the said reply, he raised several issues regarding the maintainability and jurisdiction with respect to the actions being taken against him by the Union. Thereafter, an enquiry authority was appointed fixing a preliminary date for hearing in October, 2021.

Petitions in the Administrative Tribunals

The Petitioner then filed an application under Section 19 of the Administrative Tribunals Act, 1985 (“Act”) before the Kolkata Bench of the Central Administrative Tribunal (“CAT”) on 7 October 2021. The CAT at Kolkata fixed the matter for 22 October 2021.

Meanwhile, the Union government filed a transfer petition before the chairman at the principal bench of the CAT in New Delhi, for getting the matter transferred there, under Section 25 of the Act. A copy of this transfer petition was received by the Petitioner’s advocate on 20 October at around 5 p.m. (one of the submissions made before the Calcutta High Court). The transfer petition was taken up for hearing on 22 October, 2021. The Petitioner raised objections on the maintainability of the transfer Petition and prayed for time to file comprehensive objections against the same (even recorded by the principal bench). The principal bench did not grant the permission to file objections. Instead, it allowed the transfer petition on two grounds i.e., firstly, that the matter required expeditious hearing and vacations were going on in Kolkata bench; and secondly, that the disciplinary actions were initiated and would be continued in Delhi, and the Petitioner would certainly come to appear in Delhi. Thus, the case stood transferred to the principal bench and was listed for admission on 27 October, 2021.

Writ Petition before the High Court

The petitioner assailed the validity of the order passed in the transfer petition and the manner in which it was passed, which infracted his legal right to contest the case before the Kolkata bench. The case of the Petitioner can be understood by the following observation of the HC:

“Hence, the bone of contention in this writ petition is the petitioner’s exclusive legal right to file O.A. 1619 of 2021 before the Kolkata Bench of the CAT, which has allegedly been transgressed by the Principal Bench by arbitrarily transferring the matter to itself”

Thus, the HC was aware that the order was passed by the principal bench at Delhi. However, the petitioner did not merely assail the legality of the order but also the manner in which it was passed flagrantly, without taking into account his rights relating to principles of natural justice. In other words, the Petitioner through the writ petition either wanted to get the case continued at the Kolkata bench, or to ensure that he should have been afforded with a reasonable opportunity to contest the transfer petition, since the legal provisions for filing the case before Kolkata bench stood in his favour.

The HC allowed the petition on two grounds. Firstly, the HC was of the opinion that the petition was not only concerned with the legality of the order passed in the transfer petition but also with the fundamental and legal rights of the petitioner to litigate before the Kolkata bench, where he worked and was residing at the time when the petition came to be filed. Secondly, it was held that the incidence under enquiry through the disciplinary proceeding took place in Kolkata. Thus, the majority of the bundle of facts comprising the cause of action took place in West Bengal, conferring the jurisdiction upon the HC.

Appeal in the Supreme Court

Being aggrieved by the judgement of the HC, Union government preferred a Special Leave Petition under Article 136. The SC granted the leave and subsequently framed the following question of law in appeal:

“Whether the bundle of facts that constitute the cause of action for filing an Original Application under Section 19 of the Administrative Tribunals Act, 1985 (for short ‘the Act’) and determinative of the place of its filing would remain as the decisive factor in case such an application is subsequently transferred from the Bench where it was filed to another Bench of the Tribunal falling under the territorial jurisdiction of another High Court, to ascertain the jurisdictional High Court to exercise the power of judicial review qua the order of transfer passed by the Chairman of the Central Administrative Tribunal at New Delhi in exercise of power under Section 25 of the Act’.”

Thus, the SC limited the ambit of the entire proceeding to the question of whether the place where the original application was filed (Kolkata, here) will play a decisive role in deciding the jurisdiction of the HC capable of entertaining a Writ Petition, especially when the application subsequently stood transferred to another bench by a tribunal falling within the jurisdiction of another HC.

The SC answered this question in the negative by relying upon the following observation of seven-judge bench in L. Chandra Kumar v. Union of India:

All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls.”

The SC opined that the “decisions of these Tribunals” will cover the tribunals passing orders in transfer petitions and the HC within whose jurisdiction such tribunals will fall, will be solely capable of entertaining the Writ Petition for judicially reviewing the order.

It was held by the SC that once the HC found the order impugned to be passed by the principal bench at Delhi, the interference of Calcutta HC was unwarranted (¶15). It is essential to highlight that the SC held that it was bound by the observation of the seven-judge bench in L. Chandra Kumar. It further went to hold that the SC bench of lesser strength and the HCs have no authority to ascertain whether the bundle of facts would confer territorial jurisdiction them under Article 226(2) of the Constitution since it would involve revisiting the law laid down by a Constitution bench (¶16). The SC also observed:

“ We are of the considered view that taking another view would undoubtedly result in indefiniteness and multiplicity in the matter of jurisdiction in situations when a decision passed under Section 25 of the Act is to be called in question especially in cases involving multiple parties residing within the jurisdiction of different High Courts albeit aggrieved by one common order passed by the Chairman at the Principal Bench at New Delhi.”

Thus, the SC opined that a contrary interpretation would cause great difficulties in cases where several parties are aggrieved by a transfer order passed by the Principal Bench. Such parties will file cases in different HCs assailing the validity of the transfer order, giving rise to multiple proceedings in relation to the same order. Before moving onto analysis, it is of seminal importance to note that no such scenario had arisen in the instant case since there was a single petitioner assailing the validity of the order.

At the outset, it is submitted that such extraneous consideration should not have weighed the mind of the SC in deciding the appeal as the it was totally unrelated to the case and could have been dealt by the appropriate bench at an appropriate time. Assuming for the purposes of argument that such multiple petitions do arise in any other case, the Constitution has sufficient mechanism to deal with such situations (See Article 139A) and in my submission, such consideration was totally uncalled for.

Analysis

Legal Rights of the Petitioner

Before moving towards the provisions of the Constitution, it is essential to take a look at the legal rights conferred by the provisions of the Act and rules framed thereunder, on the Petitioner. Section 25 of the Act authorizes the chairman to transfer the matter before one bench to another bench, after giving notice to the parties and hearing them or on his own motion without such notice. In this regard, it is also essential to take note of Rule 6(2) of the The Central Administrative Tribunal (Procedure) Rules, 1987, which provides that the person who has ceased to be in service by reason of retirement, dismissal or termination can file an application before the bench within whose jurisdiction such person is residing at the time of making application.

In the present case, there is no dispute with the fact that petitioner had ceased to be in service by reason of his retirement and was residing at Kolkata. Thus, there was no infirmity with the Petitioner approaching the Kolkata bench. It is precisely this legal right of the Petitioner that was sought to be protected by filing the petition before the Kolkata Bench. In view of the provisions mentioned hereinbefore, it is submitted that the judgement of the HC could not be doubted and the interference with it was unwarranted.

Scope of Article 226(2)

Further. it is essential to understand the scope of Article 226(2) of the Constitution. This article states that:

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.”

From a bare perusal of the provision, it becomes abundantly clear that the HCs are at liberty to exercise their jurisdiction in cases where the ‘cause of action partly or wholly’ has arisen in their territorial jurisdiction irrespective of the seat of the authority whose order is under challenge. At this juncture, it is essential to understand the meaning of cause of action as understood by the SC in the case of State of Rajasthan v. Swastika Properties:

“In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant.”

In the present case, it is submitted that the bundle of facts would never be complete unless the proceedings at the Kolkata bench are taken into account. The legal right of the Petitioner to continue the proceedings before the Kolkata bench was always one of the questions to be considered. Apart from this, a part of the cause of action will always arise in Kolkata due to several other factors occurring in relation to the Petitioner there including his residence, his place of service, and the place of being aggrieved by the order of Union along with his legal right to file the application. Thus, it is submitted that the Calcutta HC had territorial jurisdiction under Article 226(2).

The judgement of the SC means that the transfer order solely constituted the bundle of facts for giving rise to cause of action. It is submitted that unless the transfer order passed at Delhi is seen vis-à-vis the case pending before the Kolkata bench, the bundle of facts will neither be complete nor will entitle the Petitioner to seek the relief that he intends to seek i.e., to get the proceedings continued before the Kolkata Bench. In my submission, it is true to say that a part of cause of action arose in Delhi but it will not be wrong to contend that part of it also arose in Kolkata. Thus, there seems to be nothing gravely illegal or erroneous in the judgement of the HC, warranting the interference by the SC.

The present Article 226(2) was introduced for the first time through the Fifteenth Constitutional amendment as subclause (1-A) to Article 226, which thereafter attained its present form as sub-clause (2) through the forty-second Constitutional amendment. Thus, it is essential to take note of the statement of objects and reasons for the introduction of the clause:

“Under the existing article 226 of the Constitution, the only High Court which has jurisdiction with respect to the Central Government is the Punjab High Court. This involves considerable hardship to litigants from distant places. It is, therefore, proposed to amend article 226 so that when any relief is sought against any Government, authority or person for any action taken, the High Court within whose jurisdiction the cause of action arise may also have jurisdiction to issue appropriate directions, orders or writs.”

Thus, Article 226(2), as it stands now, incorporated the words cause of action to specifically reduce the hardships caused to the litigants in cases where the seat of the authority is not within the territorial jurisdiction of the HC. In the present case, the case of the Petitioner solely rested upon the hardship that he would have faced, if the proceedings were continued at Delhi. Thus, the interference of the Calcutta HC seems to be consistent with the literal and purposive interpretation of Article 226(2).

The (mis)placed burden of L. Chandra Kumar

Coming to the case of L. Chandra Kumar, it is submitted that the observation relied upon by the Court could not be considered to be ratio decendi of the case. L. Chandra Kumar was a case where the SC was required to adjudge the constitutional validity of Articles 323-A(2)(d) and 323-B(3)(d). The precise question was whether the existence of these clauses would exclude the jurisdiction of the HC under Article 226 and 227 of the Constitution, and nothing more. Before dissecting it further, it is essential to take note of the observation of the SC in Union of India v. Dhanwati Devi, where it was observed:

10. Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents.”

It is submitted that the interpretation of Article 226(2) never really felt for consideration before the SC. Thus, the interpretation with regard to Article 226(2) can only be seen at the most as obiter dicta.

The observation of the SC, even if taken to be ratio decendi, cannot be considered to be an exhaustive proposition of law on the jurisdiction of the HC. This means that while it can be relied upon to contend that the Delhi HC also has the jurisdiction to entertain a writ petition assailing the validity of the transfer order, it cannot mean that it has sole jurisdiction to do so.

Indeed, if the interpretation proferred by the SC is relied upon, it would render Article 226(2) otiose, wherein the concept of ‘ cause of action’ has been introduced specifically to reduce hardships faced by the litigants. Thus, to harmoniously construe the two, the observation of the SC cannot be considered to be an exhaustive proposition of law as suggested earlier in the post.

The SC in Alapan Bandyopadhyay’s Case then even went on to suggest that the HCs and benches of lesser strength have no authority to ascertain whether the cause of action will confer jurisdiction upon them. This, ex-facie, goes contrary to the text of the Constitution. It is submitted that such an approach could not have been envisaged by the bench of L.Chandra Kumar; when the Constitution confers the authority on the HCs to decide their jurisdiction as per the cause of action, such a discretion could not have been rendered meaningless.

Conclusion

To conclude, it is my submission that when there are two alternative interpretations possible, an interpretation that preserves the powers of the HC must be preferred, as the HCs too are constitutional courts, with a status equal to that of the SC. This has not been done in the present case, and one can only hope that in time, the SC will revise its approach to the issue.

Guest Post: A Tale of a Commission and a Committee

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


[This is a guest post by Krishnesh Bapat.]


On December 16, 2021, the counsel for an NGO named Global Village Foundation Public Charitable Trust mentioned before the Chief Justice of India a petition challenging the constitution of the Commission of Inquiry (‘Commission’) by the State of West Bengal under the Commission of Inquiry Act, 1952 (‘Act’). The Commission was constituted to inter alia enquire into whether the Pegasus Spyware was used to surveil individuals in West Bengal, and the role of State/Non-State actors in such surveillance. Based on this mentioning, the petition was listed the very next day, and the Court by order dated December 17, 2021 (‘17.12.21 17.12.21 Order’) stayed the proceedings of the Commission (which is headed by a former judge of the Supreme Court.) Incidentally, December 17, 2021, was also the last working day of the Court before winter vacations.

The 17.12.21 Order is as intriguing as it is minimalist. It records that on August 25, 2021, the counsel for the petitioner had sought a stay on the proceedings of the Commission to which the counsel for West Bengal (not the Commission) had stated that ‘no orders would be necessary’. Yet the Commission continued with the proceedings, and that the counsel for West Bengal submitted that they could not make a statement on behalf of the Commission (even though they did so on August 25, 2021). The Court held that the Commission should be impleaded as a party but also held that the proceedings of the Commission should remain stayed in the meanwhile.

The 17.12.21 Order raises several questions as it is not immediately clear why the Court stayed the proceedings. Media reports suggests that the Court stayed the Commissions proceedings because it has formed a committee of its own to investigate the use of Pegasus, and it did not want ‘parallel inquiries’. But the Court chooses not to record this in the 17.12.21 Order. Instead, it has prohibited the Commission from continuing with its proceedings without recording reasons, without hearing the counsel for the Commission, and at the behest of an NGO which does not seem to have any relationship with the case, its subject matter, or even the State of West Bengal.

To appreciate these concerns, a background of the Commission is necessary. The Commission was appointed by the State of West Bengal on July 26th, 2021 in the wake of disclosures by an international consortium of journalists that 300 Indian mobile telephone numbers were surveilled using spyware called ‘Pegasus’. These phone numbers included those used by ministers, opposition leaders, journalists and the family of the complainant who accused a former Chief Justice of India of sexual harassment. The consortium also reported that the Pegasus Spyware could be installed on a phone without any action on part of the victim, and once installed it can collect and transmit data, track activities such as browsing history, and control functionalities such as the phone camera. Notably, Pegasus is manufactured by an Israeli cyber-arms firm called the NSO Group, and according to the NSO Group itself, sold only to ‘vetted government(s)’.

While the State of West Bengal appointed the Commission to examine whether Pegasus was used in West Bengal, the Central Government dismissed the disclosures. Left remediless, several individuals, including those whose phones were forensically analysed, approached the Supreme Court seeking relief against the violation of their fundamental rights. The Court conducted its first hearing on August 5, 2021, and on October 27, 2021, formed a Technical Committee (‘Committee’) to inter alia examine whether the Pegasus Spyware was used on phones or other devices of the citizens of India. While the Committee has been directed to submit its report ‘expeditiously’, the Commission had to submit its report to the State Government within six (6) months from July 26, 2021, i.e. by January 26, 2022. Moreover, while the Committee has only recently issued a public notice inviting any citizen who may have felt that their phone was infected by Pegasus malware, the Commission issued a public notice as well as notices to several individuals, and has already conducted many hearings. Yet the Court chose to stay the proceedings of the Commission.

The stay raises the following concerns, detailed below –

Firstly, similar to the Supreme Court’s order staying the farm laws (discusssed here on this blog), the 17.12.21 Order does not provide any reason for staying the proceedings of the Commission. The Court could have imposed a stay only if it found the notification constituting the Commission to be ex-facie unconstitutional or that the balance of convenience entirely lied in favour of the petitioners or that it was unjust/unfair for the proceedings of the Commission to continue.  We do not know what compelled the Court to issue the 17.12.21 Order, and therein lies the problem. As pointed out previously on this blog, the effect of a minimalist order is that there is nothing one can engage with, disagree with, or critique, and this is deeply irregular because the authority of the Court is founded entirely on reason.

Secondly, assuming that the Court stayed the proceedings because it did not want a ‘parallel inquiry’, it is not clear why that should be the case. There is no legal bar on two bodies inquiring into allegations related to an overlapping set of facts (State of Karnata vs Union of India). Even criminal proceedings and department proceedings can proceed simultaneously (Captain M Paul Anothony vs Bharat Gold Mines Limited & Ors). Unlike both of those proceedings, neither the proceedings before the Commission nor those before the Committee have any teeth at least with respect to the report these bodies may submit. The Commission of Inquiry Act, 1952 does not impose any obligation on the government to act on the recommendations of the Commission, and the Supreme Court itself has held that the role of Commission of Inquiry is to merely enable the government to decide what administrative or legislative measures must be taken to eradicate the evil found (T.T Antony vs. the State of Kerala). Moreover, the Supreme Court has also held that the findings of the Commission of Inquiry are not binding on the Supreme Court (In Sham Kant vs. the State of Maharashtra). Similarly, and surely the report of the Committee is also not binding upon the Supreme Court. As an aside, the Committee’s report may not even be open to public scrutiny if past precedent is anything to go by.

Lastly, the Supreme Court should not have granted interim relief to the NGO without addressing whether the NGO had the locus standi (Soumitra Kumar Sen vs Shyamlal Kumar Sen). On the face of it, the NGO does not seem to have any connection with the disclosures made by the Pegasus Project. The NGO also was not summoned as a deponent by the Commission, and to the best of the knowledge of the author, it did not stand to gain/lose by the continuation of the proceedings. Thus, propriety required that the Court at the least detailed why the submissions of the NGO were accepted, especially since the State of West Bengal had questioned their bona fides.

As a result of the order of the Court, the Court-Appointed Committee is the only body examining the allegations raised by the petitioners who have reportedly been surveilled by the Pegasus Spyware. The report will be placed before the Court which will then examine the petitions. It is anybody’s guess when this will happen. If the Court had not stayed the proceedings of the Commission, it would have had the benefit of the finding of an enquiry conducted by a former Supreme Court justice. The public at large would have also gotten more details regarding the devious surveillance. But now the Commission has to wait until the next date of hearing (04.02.2022 – computer generated!) before it can seek a vacation of the stay order. Meanwhile, the victims of the Pegasus Spyware keep waiting for relief in the hope that their phones are not being surveilled.


Note: The author was part of the team of lawyers representing the petitioners who approached the Supreme Court seeking relief against the use of Pegasus Spyware on them.