‘Atypical’ Love: The Supreme Court’s Decision in Deepika Singh vs CAT

[This is a guest post by Karan Gupta.]

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In a recent judgment delivered in Deepika Singh v. Central Administrative Tribunal and Ors., the Supreme Court of India granted relief to a woman, who had been denied maternity leave on the ground that she had previously availed child-care leave for her two non-biological children. Although it is a short judgment, the underlying premises and the observations recorded have far-reaching implications for the socio-legal understanding of parental-care as well as the traditional understanding of the ‘family unit’.

I argue that the line of enquiry adopted by the Court was informed by the target beneficiary of the provisions (women) and the manner in which gender-ascribed parental-care roles exclude women from the job market. The Court relied on these ascribed roles for the limited purpose of assessing whether twin-benefits of maternity leave and child-care leave may be extended. At the same time, the Court was cautious to avoid the trap of essentialising women with child-care responsibilities [I]. I assess how the Court’s expansion of the traditional parent-child paradigm as extending beyond biological children has implications for the traditional socio-legal understating of the ‘family’ as being a fixed and unchanging unit comprised solely of a married cis-heterosexual man (father/husband) and a cis-heterosexual woman (mother/wife), and children born to them. I explore the broader contributions of this to Indian jurisprudence [II]. I conclude that the Court recognised not just the myriad ways in which individuals assume parental responsibility, but also the myriad ways in which individuals forge familial ties. In doing so, the Court has invited a re-imagination which offers a significant contribution to broadening the ambit of a “right to love” from being restricted to the right to form intimate relationships with a limited set of individuals, to mean the right to form intimate relationships with anyone.

Facts

The case concerned a challenge to the denial of maternity leave to a woman (‘appellant’) for her first biological child. Under Rule 43(1) of the Central Services (Leave Rules) 1972 (‘1972 Rules’), a female government employee “with less than two surviving children” may apply for maternity leave for a period of 180 days. Under Rule 43-C, a female government employee with minor children may apply for child-care leave for a maximum period of two years to take “care of up to two children”. The Post Graduate Institute of Medical Education and Research (‘Institute’) denied the appellant’s maternity leave application on the ground that she had entered into the register and availed child-care leave for two children of her spouse from his previous marriage. Consequently, her first biological child, deemed by the Institute to be her third child, disentitled her to maternity leave under Rule 43(1), as she failed to meet the statutory condition of having fewer than two surviving children.

The court of the first instance (Central Administrative Tribunal) and the appellate court (High Court of Judicature) dismissed her challenge on similar grounds. The core question before the Supreme Court, centered around Rule 43(1), was whether a woman who availed child-care leave for two non-biological children was disentitled from availing maternity leave for a biological child.

Holding

The Court held that maternity leave and child-care leave constituted distinct entitlements, with the latter being available at any time (for instance, during the child’s education or sickness) and not just at the time of birth. The Court further held that merely because the appellant undertook child-care responsibilities “in ways that may not find a place in the popular imagination”, she was not disentitled from availing maternity leave. The Court concluded that “the fact that the appellant’s spouse had two biological children from his first marriage would not impinge upon the entitlement of the appellant to avail maternity leave for her sole biological child.” Thus, even though the Institute had permitted the appellant to register two non-biological children and avail child-care leave, she would be entitled to maternity leave under Rule 43(1) for her first biological child.

It is how the Court reached this conclusion that is worth unpacking in some detail.

Analysis

Framing the line of enquiry under a (beneficial) delegated legislation

Note that the 1972 Rules are silent on whether the word ‘children’ in Rules 43(1) and 43-C means biological children only. A focus on defining the word could have resulted in an anomalous situation. If the Court had concluded that ‘children’ in Rule 43(1) meant only biological children, the appellant would have been granted relief, but a strong argument could then be made to deny the grant of child-care leave under Rule 43-C for non-biological children (as both provisions use the word ‘children’). On the other hand, if the Court had concluded (as the Respondents argued) that the word ‘children’ in Rule 43(1) included non-biological children, the appellant would have been denied maternity leave on the ground that her first biological child is a deemed third child.

Could an alternate line of enquiry be framed which may avoid this anomalous situation? The Court shifted focus away from the ambit of the word ‘children’ to the target beneficiary of the two provisions – women. This involved an exercise in determining the objective with which the 1972 Rules were framed.

The Court examined similar provisions (under the Maternity Benefit Act 1961) and held that the objective of these provisions is to ensure that childbirth or child-care responsibilities do not disentitle an individual from being paid their wages during a period of leave for childbirth or child-care. In their logic, the 1972 Rules “entrench and enhance” the general non-discrimination principle of Article 15 of the Constitution and flow from the enabling provision in Article 15(3) to enact beneficial provisions for advancing the interests of women. Having reached this conclusion, the Court’s enquiry was further informed by the effect of gender-ascribed parental roles in preventing women from accessing the economic marketplace.

The Court opined that that in cis-heterosexual families (such as the present case), women often undertake a disproportionate share of child-care. The Court relied on statistics which found that women spend 577% more time on unpaid work than men (presumed to account for disproportionate child-care responsibilities), and held that “women continue to bear the primary responsibility for child-care”. Consequently, the 1972 Rules align with Constitutional postulate under Article 15 and cognate legislation and constitute socially beneficial delegated legislation.

An important question is apposite here – does this reliance on gender-ascribed parental roles unwittingly essentialise women with child-care? The Court avoided consciously falling into this trap. The Court noted that women are “pressed” to undertake a disproportionate share because of “gendered roles assigned to women and societal expectations”. Compelled by these social circumstances, they often find themselves excluded from the economic marketplace. The Court was careful in recognizing that child-care includes maternity leave, paternity leave and child-care leave. These observations are significant. The Court referred to gender-ascribed parental roles which operate in society to prejudice and stereotype women (de facto) to frame the nature of the 1972 rules as a beneficial delegated legislation. At the same time however, the Court carefully rejected an essentialisiation through an underlying reasoning that the idea of women as caretakers is not ‘natural’ but ascribed.

The recognition of de facto inequality or unfavorable treatment and employing it in extending a benefit to those at its receiving end itself promises broad implications beyond a case on maternity leave. Recall here that it is a common defense against indirect discrimination claims generally that as long as the law applies equally to all people (de jure equality), it is irrelevant how the same may perpetuate inequality in effect on the ground (de facto inequality). In this understanding, any interpretation of the law or action operates independently of the social current and on-ground realities. However, a fundamental problem with this acontextual interpretation is that it overlooks that the legal order, in fundamentally seeking to govern social relations, must be informed by social realities. For instance, it is odd to fix an arbitrary minimum wage without a complete understanding of present-day wages, the purchasing power of those wages, and the minimum standard of living required for a fulfilling life. There is a strong argument then social currents and power structures must be recognised and inform the interpretation of the law.

Here, the Court undertook two distinct steps – first, it recorded a finding on the objective of the 1972 Rules by focusing on women as the target beneficiaries and second, crucially, it recognised and relied on de facto inequality caused by gender-ascribed parental roles to inform its understanding of the 1972 Rules and conclude that it is a socially-beneficial delegated legislation. In the process, it affirmed that the law and its interpretation must be alive to social realities, including de facto inequality which operates in society. Further, it is possible to inform our understanding and the interpretation of the law by recognising de facto inequality, without essentialising/crystallising those identities (see Seigal’s excellent work on how a rejection of de facto inequality in informing law and policy has complicated the affirmative action debate of the SCOTUS).

Adopting the reasoning above enabled the Court to frame the core enquiry in the adjudication – whether an individual could be extended a twin-benefit (child care-leave and maternity leave) under a beneficial delegated legislation. This was a viable alternative to focusing on the ambit of ‘children’ and consequently adopting one of the two alternate paths which would frustrate one benefit. This sets the stage for the judgment to assume further significance in inviting a re-imagination of parental care and the understanding of ‘family’.

The Forms of Parental Care and Familial Love

In the traditional parent-child paradigm, parental care is assumed to be restricted to biological children. The Court recognised that this understanding ignores the myriad ways in which individuals come to assume parental-care responsibilities – either by choice or circumstance. Guardians and caretakers of children, who often occupy the roles of ‘mother’ and ‘father’, may “change with remarriage, adoption, or fostering.” Thus, individuals often assume parental-care responsibilities towards non-biological children as well.

For instance, in the present case, the appellant had transcended the traditional parent-child paradigm and assumed the role of a parent by caring for two children who were born to her husband from his previous marriage. Similarly, an individual may adopt a child and consequently assume the role of a parent. In both cases, the individual transcends the traditional parent-child paradigm and assumes parental responsibility for non-biological children. By reading the terms ‘guardian’ and ‘caretaker’ on one hand and ‘parent’ on the other as non-exclusive terms, the Court was alive to social realities and questioned the foundation of restricting the understanding of parental-care to only biological children. To the Court (and rightly so), parental-care manifests in numerous ways which extends beyond biological children. On the face of it, these observations are significant in recognising that individuals manifest their love towards both biological and non-biological children and step into the shoes of a parent.

What implications does this have for the conception of the ‘family’?

The traditional parent-child paradigm often informs and is informed by an understanding of the family as a fixed and unchanging unit comprising a married heterosexual man (husband/father) and a heterosexual woman (wife/mother), and children born to them. In this understanding, the family unit exists for the procreation and care of children and by extension, a family unit is definitionally a marital union between a man and a woman. In society and in law then, any other union is not considered a family, and individuals in such unions who assume child-care would be guardians at best, but not parents. This understanding of the family, coupled with the traditional parent-child paradigm, excludes from the popular understanding of a family and parental responsibility any non-conforming structures which may comprise loving partners (including queer relationships) and child-care responsibility (including non-biological children).  

However, as the Court broadened the traditional parent-child paradigm to include parent-care outside marriage (i.e., through remarriage, adoption, or fostering), this opened one door to interrogate and reject the assumption of the family as a fixed and unchanging unit comprising a union between a man and woman. Addressing this understanding of the family, the Court held:

“…This assumption ignores…the fact that many families do not conform to this expectation to begin with. Familial relationships may take the form of domestic, unmarried partnerships or queer relationships. A household may be a single parent household for any number of reasons, including the death of a spouse, separation, or divorce. Similarly, the guardians and caretakers (who traditionally occupy the roles of the “mother” and the “father”) of children may change with remarriage, adoption, or fostering. These manifestations of love and of families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation.” [Emphasis added]

The above observations are significant. The Court recognised that unmarried partnerships or queer relationships, though outside popular imagination, are manifestations of a family and are equally deserving not only of protection under the law (say in the negative sense of non-discrimination), but also the benefit of the law (say in the extension of social benefits and entitlements). To the Court, the family is not a fixed and unchanging unit, but is fluid in being a manifestation of the many ways in which we express love.

This expanded understanding of the ‘family’ is significant for two reasons:         

First, in India, the beneficiaries of marriage legislation (and by extension divorce and maintenance legislation) are cis-heterosexual individuals, and the beneficiaries of adoption legislation are married couples or single individuals. Whilst some benefits have been extended to unmarried partnerships, this is largely confined to cis-heterosexual partnerships. Presently, as same sex marriage has no legal basis, queer relationships are denied legal recognition of marital ties as well as the right to adoption. For instance, under the Adoption Regulations, 2017, framed by Central Adoption Resource Authority, despite some ambiguity, only married couples having at least two years of stable marital relationship are eligible for adoption. Thus, while there is no direct prohibition to same-sex couples adopting children, the lack of a legal recognition of same-sex marriage means that adoptions by same-sex couples are indirectly barred. Keep in mind that this bars not only individuals who enter atypical familial relationships from adopting/or fostering but also children from receiving love and care from such individuals.

Recall here my observations above that the Court’s recognition of de facto inequality and unfavorable treatment has broad implications beyond this case. Pending and future cases which either challenge the exclusion of certain forms of companionship or parent-care from legal recognition can bring to fore and rely on how the lack of legal recognition furthers de facto inequality and unfavourable treatment. In backdrop of multiple petitions pending before the Delhi High Court seeking the recognition of same-sex marriage and the opposing stand of the Union Government that ‘spouse’ means only a husband and wife, the observations on de facto inequality invite an interpretation which extends the protection under and benefit of the law, rather than denies the same. Further, the marked observations on unmarried partnerships and queer relationships as a manifestation of family assume significance in setting the basis for a precedent-backed argument for legal recognition.

Second, these observations contribute to the rising stream in Indian jurisprudence which broadens the understanding of a “right to love” from being restricted to the right to form intimate relationships with a limited set of individuals, to mean the right to form intimate relationships with anyone. Recall here that in decriminalising consensual sexual relations between same-sex individuals and also recognising the right to love as extending beyond sexual acts, the Supreme Court in Navtej Johar had opined that the battle against:

“…the limits imposed by structures such as gender, caste, class, religion and community makes the right to love not just a separate battle for LGBT individuals, but a battle for all.”

The Court also held that:

“…decriminalisation is a first step. The constitutional principles on which it is based have application to a broader range of entitlements.” [Emphasis added]

This steady stream has seen other recent inflows from different quarters. In 2019, the Madras High Court upheld a marriage between a cisgendered man and a transgender woman, thus legitimising the validity of marriage across different genders. In Shafin Jahan v Ashokan, the Supreme Court opined that:

“The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable. The absolute right of an individual to choose a life partner is not in the least affected by matters of faith.” [Emphasis added]

This stream hints that the time is ripe to interrogate the socio-legal barriers which reduce the right to love to demarcated and pre-defined patterns of companionship. In Deepika Singh, not only did the Court recognise manifestations of love which cut across the traditional parent-child paradigm and the traditional understanding of the ‘family’, it also concluded that equal benefit of the law (here maternity leave) may not be denied on such basis. This advocates for a step further than the mere removal of legal barriers and extends to the benefits provided under law.

It appears that the Court did not record a definitive finding on the meaning of ‘children’ in the Rules 43(1) and 43-C. It appears to have avoided the anomalous situation noted above by expanding the traditional parent-child paradigm to include child-care for non-biological children whilst also opining that the Institute’s decision to grant child-care leave for the appellant’s non-biological children may be a matter on which the Institute took a compassionate view at the relevant time. Informed however by its understanding that the 1972 Rules facilitate the continuation of women in the workplace and that an interpretation which extends the twin-benefits of child-care leave and maternity leave should be adopted, the Court held that appellant should not be denied maternity leave merely because she entered into a parent-child relationship or undertook child-care responsibilities “in ways that may not find a place in the popular imagination”.

Conclusion

At first glance, the extension of the maternity leave benefit to the appellant appears to be a work-around explicit statutory text making maternity leave conditional to having fewer than two surviving children. However, as I have argued above, it is in the underlying premises and the reasoning adopted by the Court in reaching its conclusion, that the judgment assumes significance. By recognising gender-ascribed parental stereotypes and extending a twin benefit under the 1972 Rules on its basis, the Court advanced gender justice and also invited a more inclusive reimagination of the family. In recognising the numerous ways in which individuals manifest love towards children (remarriage, adoption, and fostering), and the atypical ways in which individuals manifest love towards one another (unmarried partnerships or queer relationships), the Court recognised not just the myriad ways in which individuals assume parental responsibility, but also the myriad ways in which individuals forge familial ties. In doing so, Deepika Singh marks a significant contribution to broadening the ambit of a right to love from being restricted to the right to form intimate relationships with a limited set of individuals to mean the right to form intimate relationships with anyone.

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Disclosure: the author is a former judicial-law-clerk of the judgment-author.

The Sound of Silence: The Legacy of Chief Justice NV Ramana

Since 2018, this blog has assessed the legacies of Chief Justices of India upon their retirement (see here, here, and here). For the first two of these – Chief Justices Dipak Misra and Ranjan Gogoi – there was no shortage of material. These Chief Justices wielded their powers as “masters of the roster” to hear (some) important constitutional cases, and cases involving high political stakes. The outcomes of these cases were critiqued, but at least there were cases, and there were outcomes.

With respect to Chief Justice Bobde – the last but one CJI – the situation was different: as I wrote upon his retirement, this was a seventeen-month long tenure that yielded precisely zero judgments of constitutional import. Nonetheless, it was a very consequential tenure, as the Court’s maintenance of status quo directly benefited the political executive, and because even though he didn’t deliver judgments, Bobde CJI passed various interim orders that were also in favour of the political executive. CJI Bobde’s tenure was also consequential because of the arbitrary allocation of cases to various benches that led to the Supreme Court speaking with a “forked tongue” when it came to crucial matters involving life and personal liberty.

CJI NV Ramana – who retires today – took over from CJI Bobde on April 24, 2021. When we look back at his sixteen-month tenure, the picture that emerges is similar to that of his predecessor, with one marked difference: unlike CJI Bobde (see here) – and indeed, before him, CJI Gogoi (see here) – CJI Ramana did not indulge in the intemperate and partisan pro-State broadsides that had become something of a habit for his predecessors. To those who value appearances, this is no doubt important. However, once you strip away the rhetoric and focus on the record, it becomes easier to see the similarities between CJI Ramana and his immediate predecessor.

Judicial Evasion and the Sound of Silence

The most striking feature of CJI Ramana’s sixteen-month tenure is the sound of silence. When he took over as Chief Justice in April 2021, the following crucial constitutional cases were pending:

• The constitutional challenge to electoral bonds (which allow unlimited, anonymous corporate funding of political parties) (from September 2017)
• The constitutional challenge to the effective abrogation of Article 370, and the splitting of the erstwhile state of Jammu & Kashmir into two union territories (from 6th August, 2019)
• The constitutional challenge to EWS reservations (from 10 January 2019)
• The Constitutional challenge to the Aadhaar amendment ordinance (later the Act) (from July 2019)
• Judicial review over money bills (from 13 November 2019)
• The constitutional challenges to the Citizenship Amendment Act (from December 2019).

During CJI Ramana’s tenure, not one of these cases were decided: in effect, they have now been pending for sixteen months longer than they were when he took office. Indeed, the CJI’s tenure – exactly like CJI Bobde’s – did not see a single significant constitutional judgment (with the possible exception of the Benami Act judgment, delivered in his final week) (see this piece for more details).

Why does this non-decision matter? It matters because in all these cases (other than the CAA case), the status quo directly benefits the political executive. This is what I call “judicial evasion”. Judicial evasion is defined thus:

… by keeping a case pending, and delaying adjudication, the Court effectively decides it in favour of one of the parties (most often, the party in a stronger position, i.e., the government), simply by allowing status quo to continue.

Judicial evasion is most starkly visible in the Court consistently refusing to decide the electoral bonds case, even as election cycle after election cycle sees vast amounts of money being fuelled into the political system, with a disproportionate amount going to the ruling party (the reason for this is that, structurally, under the electoral bonds scheme, the government has access to donor data, while opposition parties do not). This is a distortion of the electoral playing field – the ground rules of democracy – at its starkest, and exactly the kind of situation where the Supreme Court’s role as constitutional umpire is most desperately needed. It is also the case where the political stakes are particularly high, and where status quo benefits the political executive to a very high degree. Readers may therefore make up their own minds what the continued refusal by the Supreme Court to hear and decide the case – a tradition in which CJI Ramana now follows his three predecessors – means. The consequences of judicial evasion are, in addition, clearly visible in the Article 370 case and the Aadhaar case, where continued inaction by the Court results in the creation of a fait accompli “on the ground” that eventually becomes irreversible in fact, and makes a Court judgment effectively infructuous.

No doubt, Simon and Garfunkel had this in mind when they correctly noted that “silence like a cancer grows.”

For the sake of completeness, it is important here to briefly flag the Maharashtra Political Crisis case, where the Supreme Court changed speed and direction more quickly than a fencer: in June, when the political crisis was at its height, a vacation bench of the Supreme Court swiftly heard the case, effectively suspended the Xth Schedule through an interim order, and then compelled a floor test within twenty-four hours through a second interim order, having just immunised MLAs under threat of disqualification through the first order. Expectedly, the government fell. Once the new government came in, and Court vacations ended, the matter came before the CJI. At this point, all the urgency the Court had shown before vanished like a dream: the CJI showed no inclination to hear the case, suggested referring it to a Constitution Bench (guaranteed, months-long delay), while the effects of the interim order – i.e., a wholesale change in government – continued, and continued to entrench themselves with each passing day; in effect, the interim orders, with all their huge consequences – for all practical purposes – seem to have become final.

The One Case: Pegasus

The Pegasus spying scandal broke in July 2021. Shortly thereafter, the Supreme Court was approached. The Pegasus case is the only significant constitutional case that CJI Ramana handled himself, and its fate is instructive.

Let us begin with a caveat: the Supreme Court could have declined to hear this case. It could have said that the case belonged to the political thicket, or that the question of surveillance raised national security issues that automatically took it outside the ken of the Court’s jurisdiction (indeed, this was strenuously argued by the Solicitor-General). Had the Court done that, the matter would have been fought out in the public sphere (such as it is), without judicial involvement.

The Court did not do that. CJI Ramana was at great pains to stress that “national security” was not a shibboleth that could be invoked to oust the jurisdiction of the Supreme Court. But here’s the thing: once the Court agreed to take on the case, once it held that its jurisdiction had been properly invoked, a heavy burden lay upon it to do its job, and vindicate citizens’ rights against State impunity. This is because now, the outcome of the case would have judicial sanction. Were the Court to shield the State from accountability for mass surveillance, it would, in effect, amount to judicial validation, and stymie – if not bury – any other attempts at accountability.

Unfortunately, the bench headed by CJI Ramana failed completely to hold the State accountable. During multiple hearings in August and September 2021, the government categorically refused to state to the Court – including in affidavit – whether Pegasus had been used by it or not. Note that this was not a question about specific details, which might raise questions around national security: as I wrote at the time, it was a straightforward “yes” or “no” question that the Court was well within its rights to ask; indeed, without that basic fact (which was also not forthcoming from the government in Parliament), nothing could proceed further. However, for two and a half months, the bench led by CJI Ramana refused to pass any consequential orders; indeed, not only did it refuse to pass consequential orders, but it simultaneously stopped a committee (headed by a retired judge) – set up by the state of West Bengal – from examining the issues. What was the harm in a state government-appointed inquiry committee examining a potential case of mass surveillance? We do not know, but this is yet another example of a phenomenon that is growing increasingly common: when it comes to issues involving high political stakes (the FCRA matter is another recent example), the Supreme Court is loathe to let any constituted authority other than itself have any say in the matter. This might still be justifiable if the Court had a proud record of protecting citizens’ rights. When, however, it has a proud record of protecting the State, it becomes a problem.

Instead, after a further delay of many months, the Supreme Court appointed its own “committee” to look into the matter. This Committee, in turn, took several more months, before producing a report that was submitted to the Court, and taken up by CJI Ramana on his penultimate day in office (25th August, 2022). What does the Report say? We do not know, because the CJI refused to make it public. All we know is that there was “no conclusive proof” to show that the malware that the Committee found on five phones was Pegasus. But because the Report is not public, it is impossible for cybersecurity experts to examine the methods used by the Committee to arrive at its “no conclusive proof” determination. We also know – because it was stated in Court – that the government did not cooperate with the Committee. What consequences follow from this? Presumably, none, because all that CJI Ramana ordered was that a set of recommendations – made by the judge heading the Committee – about surveillance and privacy, be uploaded online. The value of these recommendations – as experience tells us – is not worth the digital space that they occupy.

CJI Ramana’s handling of the Pegasus case inverts the relationship between the individual and the State, and the role of the Court in protecting individual rights against State impunity. If fundamental rights mean anything at all, they mean that individuals who have reason to believe they have been subjected to State surveillance have the right to question that, to ask the basis upon which they have been surveilled, and to seek remedies. In the Pegasus case, the Court’s conduct ensured that at no point was the State made answerable for any of this: not before the Court and not before the Committee; and to put a “seal” on it (literally), the refusal to make the Report public ensured that the citizen was not even in a position to question the basis on which the Committee arrived at its “no conclusive proof” determination.

In all but the name, this is what is called a “whitewash.”

The Strange Controversy Around “Freebies”

Let no-one think that his refusal to hear the electoral bonds case meant that CJI Ramana was uninterested in electoral issues. In the last month of his tenure, he suddenly – and inexplicably – took up a PIL asking the Court to regulate and restrict political parties from offering “freebies” during election campaigns. This “freebies” case took up hours of Court time (time that the Court apparently never had to hear the electoral bonds case), and presented some truly astonishing spectacles, such as counsel equating electoral promises to “bribes”, and the Solicitor-General seeming to hint that it was impermissible for a political party to promise to eliminate a specific tax if they came to power.

As I have written elsewhere, the “freebies” debate is not even a debate (as it suffers from definitional incoherence), and at the very least, not a debate that the Court has jurisdiction to adjudicate. And indeed, in his final week, CJI Ramana himself washed his hands off it – after repeatedly proposing to set up a “Committee” to look into the matter – by sending the matter off to another bench. However, the issue with the “freebies” debate is not so much that finally, the Court didn’t “do” anything: it is that for a number of days, the Court’s intervention set the public discourse (the issue was “debated” on prime time by TV channels) at the exact same time that the political executive was saying the exact same thing.

To this, two other crucial things need to be added: the PIL that formed the basis of the “freebies” debate in the Supreme Court was filed by a leader of the ruling party; and in Court, the government’s law officer – the Solicitor-General – repeatedly egged the Court on find a way to prohibit “freebies”.

Thus, if you were an external observer, you would see this:

• The head of the political executive criticises “freebies” in a public speech.
• Out of nowhere, the Supreme Court suddenly starts hearing a case on “freebies”, repeatedly calling it a “very serious issue.”
• The “freebies” case is itself filed by a leader of the ruling party.
• In the hearing, the Solicitor-General and the Court are completely at idem about how “serious” the issue is, and the fact that “freebies” need to be dealt with.

And if you were this same external observer, what would you conclude from this? Would you not conclude that the Court and the Executive were marching in lock-step, with the Court providing judicial validation to what would otherwise have been a purely partisan piece of political propaganda? Would you not think that this appeared to be the behaviour of what I recently called “the Executive(‘s) Court“?

Indeed, CJI Ramana’s sudden obsession with regulating “freebies” stands out all the more when you remember – and apologies for reiterating this yet again! – that there was a genuine issue concerning political party funding that was pending before his Court from the day he took office; and yet, instead of hearing and deciding the electoral bonds case, the CJI spent hours of judicial time on a case that – if we’re being very charitable – was a non issue; and if we’re not, was yet another instance of the Executive(‘s) Court in action.

The Master of the Roster

In situations where a Chief Justice, during the course of his tenure, yields us with no significant constitutional decisions to analyse, some focus must then be cast on whether there were judgments during his tenure at all. This is important because, as we have discussed previously on this blog, the Chief Justice enjoys absolute power – as master of the roster – to assign (and re-assign) cases to various benches. That the Supreme Court, at any given time, has more than twenty-five judges, is a fact. That judicial ideology exists is also a fact. What follows is that the Chief Justice’s power of case allocation carries with it a non-trivial power to influence outcomes.

Let me be clear about two things. The first is that this is not a defence of the powers of the “master of the roster.” This blog has repeatedly criticised the judgments that sanctified these powers: these judgments arose out of a specific crisis at the Supreme Court, where CJI Dipak Misra’s authority was under threat, and his response was to insulate himself from accountability for bench allocation. As I have maintained previously, in a polyvocal Court such as the Supreme Court, the only fair system is either an arbitrary allocation, or a permanent Constitution Bench fixed according to seniority. But that said, this is the system we have right now. The Chief Justice does have absolute power to allocate cases among the judges of the Supreme Court. And this includes the absolute power to re-allocate cases (a power that has, indeed, been used before). For the reasons mentioned above, this does mean that the Chief Justice has power and influence over outcomes, and the choice to exercise this power – or not – therefore attracts scrutiny.

The second – related – point is this: the argument is not that there is some collusion between the Chief Justice and individual judges, where the Chief Justice simply escapes responsibility for pro-executive judgments by assigning them to reliably pro-executive judges, instead of writing them himself. The point, rather, is that given the Chief Justice’s powers as Master of the Roster, the CJI bears some degree of responsibility for the overall record of the Court during his tenure, in a way that other judges of the Court – who are responsible only for their own judgments – do not. And this becomes especially true when a Chief Justice has opted not to write constitutional judgments, and – instead – the heavy lifting in that regard has been done by others during his tenure (there is, of course, nothing wrong with the Chief Justice leaving certain cases to his colleagues – it is just that the nature of the scrutiny changes accordingly).

What, then, was the overall record of the Supreme Court during CJI Ramana’s tenure? It must be acknowledged, in fairness, that the strong bail order in Mohammad Zubair’s case, handed down by a bench led by Chandrachud J., was a valuable order in the cause of civil liberties; so also was the refusal – by a bench led by Lalit J – to interfere with the default UAPA bail granted to Sudha Bharadwaj in the Bhima Koregaon case. One can very easily imagine different outcomes in both cases, had they gone to different benches of the Supreme Court. Thus, one must give credit to the CJI – as Master of the Roster- for assigning these civil rights cases to benches that have had a history of passing positive, pro-liberty orders in such cases before.

However, when we consider the Court’s record in constitutional challenges, the picture remains as bleak as it was before. Two of the most significant judgments passed by the Supreme Court during CJI Ramana’s tenure were the FCRA judgment and the PMLA judgment, both delivered by benches led by Khanwilkar J. I have examined Khanwilkar J.’s record as being a more executive-minded judge than the executive here; in this post, suffice it to say that on crucial civil rights issues, both judgments were exceedingly pro-State judgments delivered by a judge with a long-standing public record of being exceedingly pro-State in his judgments. Admittedly, these cases were not assigned to Khanwilkar J by CJI Ramana: they were assigned by his two predecessors. CJI Ramana’s responsibility, thus, is not direct; but the fact that these cases were heard and decided on CJI Raman’s watch – while he retained absolute powers of case allocation and re-allocation, with among a pool of 25+ judges to choose from – is something that cannot be ignored.

A Job Quarter-Done: The Sedition Case

Finally, one may point to the interim order passed by CJI Ramana’s bench, which effectively put a stop to sedition prosecutions until further notice. There is little doubt that a halt on sedition prosecutions in the country is, in its own right, a good thing. But here again, context matters. The case in question was a challenge to the constitutional validity of sedition. The government attempted to buy time by stating that it would constitute a committee to look into whether sedition still served any purpose. To this, there is only one appropriate judicial response: to tell the government – politely, but firmly – that it was at perfect liberty to set up its committee, but that that had no bearing on the constitutional case that the Court was hearing.

CJI Ramana’s bench, however, did not do that, and instead, used the government’s submission to pass its interim order. There are two problems with this. The first is that unlike a judgment, which has binding force, an interim order can be vacated at any time by whichever subsequent bench the case goes before. The second – as I have pointed out in some detail in this post – is that given the vast range of criminal law provisions at the government’s disposal to harass and jail its critics – not least the UAPA – any judicial order on sedition would, at best, be of merely symbolic value, unless it was accompanied by strong reasoning reiterating established constitutional principles on freedom of speech, and limits to which the State could restrict rights – reasoning that could then be used to bring other, more draconian provisions in line with constitutional standards.

An interim order, by definition, fails to do any of that. And this is why it is a case of a job being quarter-done, at best. Yes, until further notice, people cannot be prosecuted for sedition, and that is a good thing. But, as we have seen repeatedly by now, if the State really wants to keep you in jail for years without trial, it does not need the sedition law to do that. When CJI Ramana took up the constitutional challenge to sedition, he had a chance to solve a few of those problems; regrettably, however, the interim order that he finally passed did not do so.

Conclusion

It is not easy being a Supreme Court judge. It is specifically not easy being a Supreme Court judge in the time of an absolute majority government, whose approach to the Constitution is like Douglas Jardine’s approach to the Bodyline series: stretch the rules to their absolute breaking point, and see what the umpire will let you get away with. It is reasonable for critics to temper their expectations of the Court at times like these, and to appreciate that – as a political actor with limited political capital – the Court will have to negotiate a space for itself, and that negotiation will often require a degree of compromise.

But while one can sympathise with the difficult position that the Court finds itself, what is disappointing is when it appears that the Court is not even trying. As with his predecessors, CJI Ramana’s determination to avoid crucial constitutional cases with a ten-foot barge pole crosses the line from judicial caution to judicial pusillanimity: no matter how difficult the situation, there can be no excuse for the Court refusing to do its basic job of at least attempting to hold the State to account. Why else do we have a Supreme Court in the first place?

But as the Pegasus case and the Freebies case show (in different contexts), what is worrying is not just the inability to protect rights, but the formation of the Executive(‘s) Court that marches in lock-step with the executive, acting as both its shield and its sword. In Pegasus, the Court acted as a shield, protecting the government from accountability – from the first day of the hearing, when it refused to ask the “yes or no” question, to now, when it refused to publish the technical report of the Committee. In the Freebies case, the Court acted as the sword, amplifying – and providing judicial validation to – a debate that the political executive conjured up out of nowhere.

The Executive(‘s) Court did not begin with CJI Ramana. And we can perhaps be grateful that – at least – it did not become worse with him. We can also perhaps be grateful for the specks of light in his tenure, which were notably absent in the tenures of his predecessors: the Benami Act judgment, the last-day decision to reconsider Khanwilkar J.’s PMLA judgment (albeit on limited grounds), the interim order on sedition, and the assignment of Mohammad Zubair’s case to one of the more pro-liberty benches of the Supreme Court.

But at the end of the day, if we were to honestly ask ourselves: does he leave the Court better than he found it, the answer would have to be “no.” The Supreme Court’s drift towards the Executive Court and the Executive(‘s) Court was neither reversed, nor halted, but at best – perhaps – temporarily kept in abeyance.

As CJI Ramana’s tenure passes into history, we wait to see the direction in which his successors will now take the Supreme Court.

Guest Post: The Afterparty II – the EC, the “Real” Shiv Sena, and “Factional” Disputes in Political Parties

[This is a guest post by Karan Kamath.]

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In a previous post on this blog, I discussed the Election Commission’s jurisdiction to adjudicate factional disputes in political parties and its arbitrary and unfair exercise by the Commission. This post discuss how the Commission ought to be exercising its jurisdiction. However, prior to that, this post also considers how the Commission’s jurisdiction should be triggered in the first place.

The Jurisdictional Trigger

As noted in the previous post, the Election Commission has jurisdiction in relation to “splinter groups” and “rival factions” of a political party. The jurisdiction is triggered when the Commission is “satisfied on information in its possession” that there exist rival sections or groups. This trigger itself is repugnant to freedom of association.

In the Supreme Court’s words, there are two “vital elements” that form an association – “members and a common purpose for which they associate”. When an association is so formed for a common purpose, members pool resources towards that association. These include tangible resources like funds and property, and intangible ones like human time and effort. Associating individuals establish rules with respect to those resources, entering into a contractual arrangement with one another. They may opt for unanimity or majority rule, or create bespoke rules for every single transaction. But they must agree to some form of rules. The English Court of Appeal explained an ‘unincorporated association’ in Conservative and Unionist Central Office v Burrell as:

[T]wo or more persons bound together for one or more common purposes, not being business purposes, by mutual undertakings, each having mutual duties and obligations, in an organisation which has rules which identify in whom control of it and its funds rests and upon what terms and which can be joined or left at will. (Emphasis mine)

An association has three principal kinds of rules: rules as to self-administration, as to disposal of funds, and as to membership. At this backdrop, ‘factionalism’ in the sense the Commission’s rules use the word, means nothing. It is indeed possible that the association’s members segregate into two or more rival factions. However, with respect to the association, there is an agreed position on the association’s administration, and that position is determined by the association’s rules. This position is unaffected merely because there are splinter groups or factions.

The Commission’s jurisdiction triggers when it is “satisfied on information in its possession” that factions exist. Every political party has to mandatorily inform the Commission of its internal elections, and appointments. The Commission, therefore, is expected to know whose leadership or control a party incumbently stands. As it knows the incumbent ‘party’, there is no reason for it to adjudicate disputes merely because it has information on existing factionalism. The faction is free to use the party rules to try and take control of the party or withdraw from the party entirely. The Commission should only deal with the incumbent administration. For example, if there are two candidates for the same election claiming to be candidates of the ‘real’ faction. Then, the Commission knows the incumbent ‘party’, and its candidate should be considered ‘the candidate’.

Contractual Disputes

Even if the Commission is empowered to adjudicate factional disputes, this jurisdiction should solely consist of ensuring that the party administration follows the party constitution. Further, the first (and perhaps the only) assessment is the interpretation of the party constitution.

The Hindi Sahitya Sammelan, a voluntary association, experienced a deadlock in the 1970s, prompting the Parliament to establish a statutory body by that name, intending to supersede the existing association. The old members of the body were to continue as members of the statutory association, with some additional ones added by the statute. In Damayanti Naranga v Union of India, the Supreme Court struck down that legislative intervention, laying down that the old members had contractually agreed on rules of membership. The addition of new members violated the right to freedom of association because:

The right can be effective only if it is held to include within it the right to continue the Association with its composition as voluntarily agreed upon by the persons forming the Association.

Although Naranga addresses new membership, its rationale is simple and has been reiterated again and again in this post: association is contractual, and that foundational contract determines the association’s fate.

There understandably exists the risk of such interpretation leading to ‘inequitable’ results, but because the members of a faction subscribed to the party constitution when they initially joined the party, they have admittedly undertaken that risk. In Burnley Nelson Rossendale and District Textile Workers’ Union v Amalgamated Textile Workers’ Union ([1986] 1 All ER 885), BNR, a trade union wished to secede from ATWU, an association of unions. BNR intended to take with it an equitable proportion of the pooled funds and property. There was no such funds provision in the ATWU’s original contract, and BNR could not manage to successfully amend the contract. The English High Court declined relief to BNR, correctly observing that it would be “an unjustified intervention” into ATWU’s affairs, when BNR had failed to make the necessary provision in the original contract or terms of merger.

The law is unconcerned with the inequitable results of a private associational contract. A member joins an association on the basis of that contract, and the inquiry in any dispute as to the administration of the association, is merely concerned with the interpretation of that contract.

Political Parties in a Democracy

The Commission’s approach to factional disputes is to consider the opinions of MPs and MLAs to decide the “real” party. This is wrong for two reasons. Firstly, although legislators are elected on the symbol of a political party, they form a separate ‘parliamentary / legislative group’ in the Parliament or the respective Assembly. Although there is a political connection between that group and the political party, these are not one and the same. To borrow the Court of Appeal’s words in Burrell, there are “no constitutional links” between the two. The pooling of resources and membership has nothing to do with the parliamentary group. Indeed, the association itself is free to empower its MPs and MLAs to determine or influence factional matters. But in those circumstances, the Commission is merely interpreting the party constitution and not following its incumbent arbitrary standards.

Secondly and more importantly, political parties are associations where members pool funds and resources to effectively advocate their ‘common purpose’. In a democracy, political parties represent competing interests by utilising the pooled resources. By ignoring the party constitution and forming its views on factionalism in the parliamentary and legislative groupings, the Commission effectively exercises jurisdiction on allocating political power in the society. By swaying opinion amongst a handful of legislators, anyone can ensure frustration of a contractual association and take over its pooled resources. Therefore, the proper alternative is to let the association decide its own matters, in accordance with its own rules. If there are inequitable results of that process, then that is to the member’s peril. But the inequitable results of the Commission’s process, unjustifiably peril democracy.

Book Review: Thomas Grant’s “The Mandela Brief: Sydney Kentridge and the Trials of Apartheid”

There is a long-standing debate about the role and the limits of law in enabling resistance to an authoritarian regime. On the one hand, these regimes often utilise law in service of their repressive goals. This includes co-opting nominally independent judiciaries into validating both oppressive laws, as well as shielding State impunity. On the other hand, the very language of law – with its commitment to certain universally applicable procedures, and formal impartiality – places at least some limits upon any State that publicly claims to abide by the rule of law. Thus, while law cannot serve to dismantle authoritarianism, it can – if wielded strategically, and on occasion – temper some of its worst excesses (see, e.g. E.P. Thompson’s famous critique of the rule of law).

Thomas Grant’s The Mandela Brief: Sydney Kentridge and the Trials of Apartheid illustrates this tension. The apartheid South African government (that formally lasted from 1948 to 1994) was a brutal and authoritarian regime, which weaponised law and courts both to secure its own power, and against its opponents. But also, during those five decades, there were many sites of resistance to apartheid. One of those sites was the courtroom. It was in the courtroom where leaders like Nelson Mandela were put on trials for their lives, and defended by lawyers; where oppressive legislation such as the Pass Laws were contested; and where the State’s extra-judicial executions of figures like Steve Biko were challenged.

One of the most prominent advocates in these battles was Sydney Kentridge, an anti-apartheid lawyer whose practice in the South African courts spanned three decades. During these three decades, Kentridge represented – among others – Nelson Mandela at his treason trial, the communist lawyer Bram Fischer, Winnie Mandela, the anti-apartheid priest Gonville ffrench-Beytagh, and also represented the victims in two of the most significant cases of extra-judicial murder during this period: the Sharpeville Massacre and the custodial killing of Steve Biko.

Thomas Grant QC

The Mandela Brief takes these six cases as its focus. At one level, the book is about how repressive laws – such as the Pass Acts, the Suppression of Communism Act, and the Terrorism Act – facilitated State impunity by codifying vast executive discretion and inverting standard principles of criminal law; at another level, it is a profile of Sydney Kentridge himself, and the chronicle of a remarkable – and principled – life, under extreme pressures; but perhaps most interestingly for our purposes, it is an account of the importance of law, and of lawyering, in an authoritarian regime. Is there any point to lawyering in a compromised system? Does it only serve to legitimise an unethical and immoral structure? How should a lawyer conduct themselves in such a context? These, and many other such questions, are explored in the book, through the lens of Sydeny Kentridge’s life.

One important context that Thomas Grant provides at the beginning of his book is to note that while the South African judicial system during apartheid was certainly compromised, it was not entirely a farce, or a sham. The political executive did appoint its favourites to the bench; and these judges were not only politically beholden to the government, but also – in many cases – ideological fellow travellers who were themselves invested in upholding apartheid and white supremacy. This made succeeding in the apartheid courts against the apartheid regime extremely difficult. At the same time, however, in public and abroad, the South African state insisted that its judiciary was independent and followed the rule of law. Internally, not all judges were politically and ideologically compromised, and even some political appointees – once they were on the bench – felt the need to assert their independence as judges, on occasion. Grant argues that this push-and-pull within the system differentiated apartheid South Africa from, say, Soviet or Chinese show-trials (one wonders why Grant needed to travel so far from his home shores of England to find examples of show-trials, but be that as it may!), where even the pretence against sham had been completely abandoned (in a similar context, the Israeli human rights lawyer Michael Sfard refers to this phenomenon as the “liberal crack”, which can sometimes let some light in).

Not everyone, however, accepted the distinction as meaningful. One of the important features of The Mandela Brief is that although the book is about Sydney Kentridge – and the path that Kentridge chose, i.e., of lawyering in and through the apartheid regime – Grant also shines a spotlight on two other principled, anti-apartheid lawyers who chose differently. One, of course, is Bram Fischer, the Afrikaner lawyer who represented Mandela at the Rivonia trial, and was both a committed anti-apartheid activist, and a leader of the (banned) South African Communist Party. Bram Fischer eventually decided that his political commitments were inconsistent with his continuing to practice within the compromised legal system. For this, the price he paid was immense: he was put on trial, went underground, was recaptured, sentenced to life in prison, struck off the rolls of the Bar, and eventually died of cancer that was diagnosed too late.

Bram Fischer

The second lawyer was Joel Carlson, who took on the State on many occasions, and was Winnie Mandela’s lawyer. After two decades of practice, Carlson eventually left South Africa for the US, and lived out the rest of his life there. As Grant reveals through Carlson’s own words, one of the reasons for him doing so was an increasing conviction that continuing to participate in the apartheid regime’s legal processes was tantamount to giving them a veneer of legitimacy (this is a thought that plagues Kentridge himself, on more than one occasion).

Thus, in addition to the path that Kentridge chose, there was the path of the rebel (Fischer) and the path of the exile (Carlson). Grant is, of course, sympathetic to Kentridge (Kentridge is, after all, the subject of the book), but he is not prescriptive: indeed, by allowing us to read Fischer and Carlson in their own words, through their letters, speeches, and courtroom testimonies, he lets these two people speak for themselves, and allows readers to make up their own minds.

What of the path that Sydney Kentridge chose? The first thing to note is that he managed to achieve some crucial successes in the courtroom. This included the acquittals in the Treason Trial, and perhaps most memorably, the acquittal of Winnie Mandela and many others on the criminal procedure ground of autrefois acquit, a verdict that saved her from many years of incarceration. Grant paints a vivid and sometimes thrilling picture of these trials, demonstrating Kentridge’s eye for detail, the importance of cross-examination in our legal system, and how even unsympathetic and hostile (but not entirely dishonest) judges were ultimately left with no choice but to find that on an application of the law, the State had to lose.

But this was not always the case. The Mandela Brief is as much – if not more – a story about courtroom defeats as it is about courtroom victories. The most poignant of these is the Steve Biko inquest. Biko died from head injuries, sustained while in police custody. The official police version was that he injured himself after initiating a “scuffle” with police officers. In his cross-examination of the police officers and the doctors who examined Biko before (and after) his death, Kentridge demolished this version, making it clear – through the record – what everyone already knew: that Biko was beaten to death by the police. None of this had any effect, as the result of the inquest was that “it had not been proven” that Biko’s death could be attributed to the acts or omissions of any person. This was effectively one of those verdicts that could only be arrived at if you ignored “the evidence of your eyes and ears” (which is what the judge did); or, in other words, a verdict reflective of a system that has indeed abandoned the pretence and embraced the sham (indeed, Grant mentions that upon the decision, Kentridge questioned whether there was any point to continuing to practice in the South African legal system).

Steve Biko

Was there a point? And if so, what? One answer that emerges from the book is that there is an importance to the courtroom process that goes beyond victory or defeat, and that is the record. The public character of the legal process, the opportunity that it allows – no matter how distorted or compromised – to the oppressed side to present its version, and the further opportunity to challenge the State through cross-examination – all have value, independent of the final outcome. This value lies in the ability to create a true record of what really happened, a counter-point to the State’s narrative, and one that will last. And the purpose of this record is both in the present moment, as well as for an indeterminate future, when the authoritarian system has been dismantled; for example, it was in the Truth and Reconciliation Commission, two decades later, that the truth about Biko’s killing was finally officially acknowledged, but it is questionable whether even that would have happened had it not been for Kentridge’s cross-examination, which established on record what everyone knew to be true.

In the end, therefore, despite persistent doubts and misgivings, The Mandela Brief reaffirms the value of anti-authoritarian lawyering in an authoritarian system. Of course, the fact that in all likelihood you will not win in Court does not excuse naive or un-strategic lawyering: indeed, one thing that comes through very strongly in the course of the book is how legal strategy – when to go to court, how to go to court, and most importantly, when not to go to court – is of paramount importance in a compromised system. The stories here are quite familiar: of the State withdrawing a prosecution before a strict judge and bringing it back before a more pliant judge, of the accused publicly firing their lawyers in a calculated move to embarrass the system, in strategic applications for judicial recusal, and many others. Thus, while you may not win – and you know that in all likelihood you won’t – you still owe it to your clients (whose literal lives are at stake) and to the wider struggle, to give your case the very best shot it has of winning.

The Mandela Brief is thus a gripping and moving account of how the language of law can be used in the struggle against injustice. Its greatest contribution lies in the fact that while it is the story of a specific time and place, the questions that it asks and the lessons that it imparts are of urgent relevance to people who face similar contexts, both now, and in the future.

“Freebies” at the Supreme Court

In Ashwini Kumar Upadhyay v the Union, the Supreme Court is currently hearing a petition challenging the practice of political parties to promise “irrational freebies” if elected to power. This post examines past instances where courts have been asked to curb identical practices, most notably the distribution of colour TVs and laptops by state governments in Tamil Nadu. However, unlike those cases where the Court was faced with concrete schemes (identifying the exact schemes alleged to be a “freebie”); the petition in Ashwini Kumar Upadhyay is a plea to restrict the practice in the abstract. Indeed, a perusal of the courtroom exchanges suggests substantial disagreement over what constitutes a “freebie”, highlighting the problem with engaging with such issues in the form of public interest litigation. The crux of the issue can be summed up by two observations by the Chief Justice. First, that ‘India is a welfare state and individuals want public distribution schemes, but money should also be spent on building infrastructure’, and second, there is an element of fiscal irresponsibility with such schemes.

The disagreement over what constitutes a “freebie” and the Chief Justices concerns raise two principled issues: (i) how to decide what is ‘good’ and ‘warranted’ public expenditure (e.g., should the government build roads to increase real income by facilitating economic activity, or should it directly give cash to people), and (ii) who should choose amongst competing approaches to ‘good/warranted’ public expenditure. Examining past decisions of the Court it is apparent that what constitutes ‘good’ public expenditure has turned on interpreting the phrase ‘for a public purpose’ in Article 282 of the Constitution (more on that later). On the second question, while it is traditionally the elected government that decides what approach to pursue, the petition in Ashwini Kumar Upadhyay seeks judicial regulation of what kinds of approaches an elected government should be allowed to promise voters, shifting the balance away from elected governments to the judiciary and technocrats. This is demonstrated by the Court’s 3 August order constituting an ‘Expert Committee’ to decide whether parties should be allowed to offer “irrational freebies”.

This post begins by examining how the Court, when confronted with the promises by Tamil Nadu governments of TVs and laptops, effectively refused to engage in this area. Relying on Amartya Sen’s ‘capabilities’ framework, it then argues that deciding what constitutes ‘good’ public expenditure is not a technical problem, but rather a value judgement by each citizen on whether a governmental measure will help them achieve the goals they themselves desire in the circumstances they face. Given this, the answer to the second question of ‘who decides’ must be – the citizens. The post concludes by suggesting approaches the Court could adopt that are consistent with its constitutional role and past decisions.

Colour TVs in Tamil Nadu

As recently as 2013, the Supreme Court in Subramaniam Balaji v Tamil Nadu heard a challenge to the practice of both DMK and AIDMK governments promising to distribute (at government expense) inter alia colour TVs, grinders, and laptops to citizens if elected to power. Among several issues, the Court had to determine: (i) whether such promises were “corrupt practices” (namely bribery) under Section 123 of the Representation of the People Act, 1951 (“RPA”); and (ii) whether these schemes were for a “public purpose” under Article 282. This was because Article 282 provides that the Union or States can make a grant (i.e., expenditure) on any subject, even if not empowered to pass laws on the subject, if the expenditure is for a “public purpose”. Prior to Subramaniam Balaji, a Constitution Bench in Bhim Singh had interpreted the term “public purpose” broadly, as anything that furthered the Directive Principles of State Policy or the goals of political, social, and economic justice found in the Constitution’s Preamble. However, the petitioners in Subramaniam Balaji argued that the distribution of household appliances did not further these objectives and thus expenditure on these items fell foul of Article 282.

On the question of bribery under Section 123 of the RPA, the Court in Subramaniam Balaji ruled that the promise to distribute goods if elected did not constitute bribery. The Court noted that almost every promise in an election manifesto (even if not promising “freebies”) was a promise of some benefit to induce an elector to vote in a particular way (¶53). For example, the Court noted that even a promise to develop a particular locality was effectively a promise to induce a voter. Noting that Section 123 was a penal provision that to be interpreted strictly, the court ruled that manifesto promises were not hit by Section 123 of the RPA. This highlights the definitional problem of what constitutes a “freebie”. Almost every promise by a political party, from loan waivers, to grain distribution, to distributing TVs, results in a benefit to someone, and the Court was unwilling to effectively criminalise the promise of a better, future government.

However, this raises the issue of whether there is a material difference between building roads or simply handing over TVs, which was dealt with under the framework of Article 282’s “public purpose”. Is building roads expenditure for a “public purpose” while handing over TVs not for a “public purpose”. The Court ruled that an elected government was within its rights to choose amongst competing ways to improve individuals’ livelihoods. Justice Sathasivam for the Court,

“The concept of State largesse is essentially linked to Directive Principles of State Policy. Whether the State should frame a scheme, which directly gives benefits to improve the living standards or indirectly by increasing the means of livelihood, is for the State to decide […] The concept of livelihood and standard of living are bound to change in their content from time to time. It is factual that what was once considered to be a luxury has become a necessity in the present day. (¶¶ 57, 61) (emphasis added)”

To recap, on the question of what constitutes ‘good’ or ‘warranted’ public expenditure, the Court in Subramaniam Balaji tied “public purpose” in Article 282 to the broad concept of improving livelihoods but held that the provision did not discriminate between competing approaches to improving livelihoods.

 On the question of who decides, the Court was perhaps even more emphatic – not it.

“Judicial interference is permissible when the action of the Government is unconstitutional and not when such action is not wise or that extent of expenditure is not for the good of the State. We are of the view that all such questions must be debated and decided in the legislature and not in the court (¶62).”

Capabilities

The Court’s approach to the two questions of what constitutes ‘good’ expenditure and who decides finds strong support in Amartya Sen’s, Development as Freedom. Sen notes that different philosophical theories offer competing answers to maximising public welfare. For example, utilitarianism may argue that public expenditure should maximise the ‘utility’ or ‘well-being’ of citizens (often translated into real income). However, Sen notes that such singular metrics fail to capture the diversity of individuals and the circumstances they face. The classic example provided is that of a bicycle: if the government were to distribute bicycles to all citizens, the value (or ‘utility’) derived from the bicycle would be radically different for an abled bodied and a disabled person. However, diversity is not limited to personal characteristics, but the physical and social environments individuals face (e.g., a rural and urban dweller), the relational diversity amongst citizens (e.g., as hinted by Justice Sathasivam, a laptop may be a necessity for some and not for others), and the diversity in family structure (e.g., improved roads may not result in added utility to a woman if her husband does not let her drive).

Faced with this diversity, Sen argues that public welfare must be evaluated by the extent a measure enhances the freedom of individuals to pursue outcomes the individuals’ themselves value in the circumstances they face (i.e., an individual’s capabilities). From this lens, the answer to whether public expenditure is ‘good’ or ‘warranted’ is not a static conception of “public purpose” or maximising utility, or long-term economic growth, but whether the expenditure enhances the ability of individuals to pursue outcomes they value. This may be different for a disabled person, an urban dweller, and a woman. This inescapably has a bearing on the second question of who decides what types of public expenditure should be undertaken.

Because the touchstone for public expenditure is whether it enhances an individual’s ability to pursue goals they themselves value, Sen argues that deciding amongst competing governmental measures is not a mathematical or technical question, but rather question of “valuation and judgement”. He thus rejects placing such decisions in the hands of technocrats (like the Supreme Court’s Expert Body). Further, because this judgement has a social element, the “acceptability to others” of any decision arrived at is crucial. As individuals are best placed to decide if roads or cash will help them pursue the goals they desire, the process of deciding must be one where all individuals have their say. Democratic process ensure that this decision making is divided equally across the electorate and thus the outcome sufficiently legitimate that individuals are willing to accept the result even if it isn’t exactly what they wanted. As Subramaniam Balaji notes, this discussion is best had in legislatures, and in the case of poll promises, amongst and by the electorate.

Conclusion

Perhaps most troubling of all is that we have been here before. In the aftermath to Subramaniam Balaji, while dismissing the petition the Court requested the Election Commission of India to frame certain guidelines on the types of promises that could be included in election manifestos. These guidelines, now an annexure to the Model Code of Conduct state that: (i) manifestos cannot contain anything repugnant to the ideas and principles of the Constitution; (ii) while no objection may be taken to the promise of welfare schemes, promises which contravene the ‘purity of the election process’ should be avoided; and (iii) manifestos should reflect the rationale of welfare promises and indicate the manner in which they will be finances.

It is submitted that these guidelines offer a direction the present hearings in the Supreme Court should take. Promoting scrutiny and enhancing public reasoning of public expenditure is a valuable goal the Court is equipped to undertake. This would also combat the risk of fiscal irresponsibility highlighted by the Chief Justice. The Supreme Court (minus the farce that is now Electoral Bonds) has a long history of empowering the Election Commission to compel disclosure and aid informed decision making by voters. Rather than enter the quagmire of whether “freebies” are a waste of public expenditure, the Court could focus on enforcing the Election Commission’s guidelines on explaining the financing for welfare schemes. For example, the Congressional Budget Office in the United States provides independent analyses of budgetary and economic proposals. The Office is set up by statute, has strict rules on independence, and does not make policy recommendations because (in words Sen would approve off) ‘public policy inevitably involves value judgements that the agency does not and should not make.’ This represents an elegant balance between enhancing public scrutiny of government expenditure while letting citizens choose amongst competing approaches to their own welfare.   

Evictions, Homelessness and the Constitution: The Delhi High Court and the Limits of Judicial Imagination

[This is a guest post by Rishika Sahgal.]

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Two recent decisions of the Delhi High Court engage with rehabilitation for jhuggi dwellers in the face of the demolition of their homes. On 4 July, in Samarpal v Union of India the Delhi High Court interpreted the relevant rehabilitation policy to hold that the jhuggi dwellers were eligible for rehabilitation. On 2 August, in Shakarpur Slum Union v DDA, the Delhi High Court stayed a demolition exercise and granted temporary relief, but did not order a survey to determine eligibility for rehabilitation for the jhuggi dwellers. I discuss both decisions in detail below.

Overall, these cases are symptomatic of the original sin in Olga Tellis, wherein the Supreme Court recognised only a conditional right to rehabilitation. In subsequent cases, there has been no consistent response of courts regarding the requirement of rehabilitation prior to eviction. The inconsistency and inadequacy of these decisions will be resolved only once courts recognise rehabilitation as an essential component of residents’ right to shelter and housing, so that no evictions can take place without provision of rehabilitation, when the eviction will render residents homeless.

Samarpal

Samarpal represents the best case scenario under the existing framework. In the case, the Delhi High Court interpreted an existing rehabilitation policy in a rights-affirming manner, to hold that residents were eligible for rehabilitation.

Shahid Basti, a settlement near the New Delhi Railway Station, was demolished by the Indian Railways in 2008, to expand and modernise the station. Five residents of Shahid Basti claimed access to rehabilitation under the relevant policy, according to which residents of jhuggis which had been set up on or before 30 November 1998 were eligible for rehabilitation. The Railways claimed that these five residents were ineligible for rehabilitation, because their jhuggis had been set up in 2003. The residents admitted that the jhuggis they were living in at the time of demolition had only been set up in 2003, but they argued that they had been residing in another location near the New Delhi Railway Station since the 1980s, and were evicted by the Railways from that location in 2003, for a prior expansion of the station. They argued that their residence since the 1980s, rather than since 2003, ought to be considered for determining their eligibility for rehabilitation. These facts were not in dispute, and the controversy in the case revolved around how the cut-off date ought to be applied for determining eligibily for rehabilitation – whether residence in the jhuggi being demolished ought to be considered, or whether residence in a prior jhuggi also ought to be taken into account.

Justice C Hari Shankar of the Delhi High Court held that the rehabilitation policy ought to be ‘broadly and liberally interpreted’, given that it was an ameliorative scheme designed to fulfil fundamental rights (the right to shelter as part of the right to life under Article 21) and directive principles of state policy (Articles 38 and 39). If residents were able to indicate their residence prior to the cut-off date of 30 November 1998, albeit not in the jhuggis which were demolished by the Railways in 2008, they ought to be eligible for rehabilitation. This was more so because the Railways was responsible for the prior eviction of residents in 2003, and ought not to be able to take advantage of its prior action to avoid granting rehabilitation to residents eligible under existing policy.

Shakarpur Slum Union

In this case, the Delhi High Court adopted a restrictive approach towards the issue of rehabilitation, rather than the ‘broad and liberal’ approach in Samarpal. The case involved the demolition of 300 jhuggis by the Delhi Development Authority (‘DDA’). No notice was given prior to the demolition, and residents were unable to gather their belongings as their jhuggis were bulldozed.

The petitioners in the case, a union of the residents of Shakarpur basti, argued for the implementation of prior decisions of the Delhi High Court in Sudama Singh and Ajay Maken, The Delhi Slum & JJ Rehabilitation and Relocation Policy 2015, and the protocol framed under the Delhi Urban Shelter Improvement Board Act 2010 (‘DUSIB Act’). They asked that the Court order a survey to be conducted to determine the eligibility of residents for rehabilitation under existing policy, and for rehabilitation to take place through meaningful engagement with residents. They were not asking for a revision of existing policy, nor for the Court to go above and beyond existing policy. Rather, they sought relief within the limits of existing judicial doctrine and state policy.

Justice Subramonium Prasad of the Delhi High Court read the requirements of Sudama Singh, Ajay Maken, the DUSIB Act and the 2015 rehabilitation policy in a restrictive manner. He determined that only those residents were eligible for rehabilitation, who were already notified by DUSIB as being so eligible (para 37). If a jhuggi jhopdi cluster had not already been notified, then it could not be eligible for rehabilitation, even if it fulfilled the requirements of the 2015 policy, and especially the cut-off dates put in place. This was a re-writing of the 2015 policy, and the protocol for eviction, rehabilitation and relocation of jhuggis in Delhi.

The Court simultaneously placed the burden on residents to prove their eligibility under the 2015 policy; and held that a writ court cannot get into ‘excruciating details of fact’ (para 29). But this is effectively having it both ways; instead, the Court ought to have required that these facts be determined by the relevant authority – DUSIB – by conducting a survey through meaningful engagement with residents, in accordance with Sudama Singh, Ajay Maken, the 2015 rehabilitation policy and the relevant protocol.

It is useful to recall the protocol at this point. This was drafted while the Delhi High Court was hearing Ajay Maken (para 41), and requires DUSIB to be involved prior to all evictions taking place in Delhi. The relevant land-owning agency is required to send a proposal for removal of jhuggis to DUSIB sufficiently in advance, and DUSIB is required to determine whether the residents are eligible for rehabilitation under the 2015 policy through conducting a survey. The protocol is explicit that:

If the JJ Basti was in existence prior to 01.01.2006, then the DUSIB will notify the said Basti under s 2(g) of the DUSIB Act, if not notified earlier…

When applied to the Shakarpur case, this should mean that DUSIB conduct a survey to determine the eligibility of residents under the 2015 policy. The protocol contemplates a situation wherein a basti has not already been notified under s 2(g), and requires that the basti be notified once it is found that residents are eligible for rehabilitation. A literal interpretive approach would lead to this conclusion, let alone a broad and liberal construction of the protocol.

While the Delhi High Court in Shakarpur included lengthy quotes from Ajay Maken and the protocol, but it did not enforce the same, and particularly paragraph 189 of Ajay Maken wherein Justice Muralidhar held:

The key elements of the 2015 Policy, which are in conformity with the decisions of the Supreme Court of India discussed in Part VII of this judgment as well as in Sudama Singh, would apply across the board to all bastis and jhuggis across the NCT of Delhi. In other words, conducting a detailed survey prior to the eviction; drawing up a rehabilitation plan in consultation with the dwellers in the JJ bastis and jhuggis; ensuring that upon eviction the dwellers are immediately rehabilitated – will all have to be adhered to prior to an eviction drive. Forced eviction of jhuggi dwellers, unannounced, in co-ordination with the other agencies, and without compliance with the above steps, would be contrary to the law explained in all of the above decisions.

In this case, the Delhi High Court granted limited relief, holding that no demolition could take place without notice, early in the morning or late in the evening, and that a temporary location was to be provided to residents facing demolition so that they weren’t rendered completely shelter-less. The requirement of at least a temporary relocation may yet create more radical possibilities in an otherwise narrow decision.

Bourgeoise environmentalism, fragmentation and polyvocality

It should be noted that the demolition in the Shakarpur case took place upon the orders of the National Green Tribunal (‘NGT’), in a matter regarding rejuvenation of the Yamuna floodplains, whereby jhuggis on the floodplains were required to be removed by the DDA. When the Shakarpur Slum Union raised concerns regarding a violation of their right to housing if the DDA were to execute the NGT’s orders, without following the relevant judicial doctrine and state policy requiring determination of eligibility for rehabilitation prior to eviction, the NGT clarified that ‘it is only concerned with the pollution and is not the authority or forum to entertain pleas against demolition.’ On the other hand, the Delhi High Court held that, ‘as the NGT has assumed jurisdiction of the sensitive issue pertaining to the resuscitation and rejuvenation of the Yamuna floodplains, this Court does not deem it appropriate to disturb the same by way of a mandamus to the DDA to allow DUSIB to conduct a survey.’

This raises two issues. The first is of bourgeois environmentalism. As Baviskar argues, this kind of environmentalism does not strike at the root of what is jeopardising our environment; rather, it sacrifices the urban poor to resolve environmental issues as framed by the urban elite, through solutions that exacerbate inequality and often environmental degradation. It does not begin a shared conversation about environmental concerns that affect everyone, but more so the most marginalised. Here, to protect the Yamuna floodplains, jhuggis were demolished, whereas large scale development on the Yamuna floodplains, including an Information Technology Park, metro depot, and the sprawling Akshardham temple complex have been permitted to remain on the floodplains (see Baviskar ch 6).

Second, it raises the issue of fragmentation. If the NGT is concerned only about the protection of environment, but in the implementation of its orders, the state impinges on the right to housing, then it is a matter of concern that the issue about residents’ right to housing is not to be heard before the same forum. Simultaneously, the High Court cannot simply defer to the NGT without considering the impact on the rights of residents of jhuggis when the DDA implements the orders of the NGT. It ought to have required implementation of relevant judicial doctrine and state policy, especially conducting a survey prior to eviction to determine residents’ eligibility for rehabilitation, as the DDA implemented the NGT’s orders.

The issue of fragmentation of judicial decision-making across different fora should be seen in the backdrop of polyvocality within the courts. The response of Indian courts to the issue of rehabilitation prior to eviction has always been inconsistent, and it is important to recognise that this inconsistency is exacerbated by polyvocality within the High Courts as well as the Supreme Court. The High Courts and Supreme Court do not hear cases en banc, but rather in benches of different strengths. As I have indicated above, two different benches of the Delhi High Court took very different approaches to the issue of rehabilitation prior to eviction in Samarpal and Shakarpur Slum Union, indicating the inconsistent jurisprudence being developed by the Court.

The shifting contours of rehabilitation and the need for resolution

On the whole, Indian courts have not taken a consistent approach towards the requirement of rehabilitation prior to eviction. In Olga Tellis, the Supreme Court recognised a conditional right to rehabilitation, requiring the state to provide alternate land under existing schemes to people being evicted, if they were found to be eligible under those schemes. That has placed constraints upon any future cases engaging with the issue of rehabilitation; arguably for this reason, courts have not held that residents must be eligible for rehabilitation regardless of the limits in existing legislation or state policy. On the other hand, courts have required eviction without rehabilitation, even with the existence of state policy requiring rehabilitation to some extent. While Almitra Patel is a prominent example, perhaps Okhla Factory Owners Association is the most stark case of this kind, wherein the Delhi High Court declared a scheme for rehabilitation unconstitutional when the scheme permitted evictions from public land only when alternate accommodation was made available to all those being evicted.

This inconsistent approach towards the requirement of rehabilitation prior to eviction ought to be resolutely resolved once and for all, by holding that rehabilitation is an essential component of the right to shelter and housing, when an eviction will render people homeless. It has been almost 40 years since a constitutional bench of the Supreme Court last heard a case on the right to housing in Olga Tellis, and perhaps it is time to revisit the issue to strengthen the right to shelter and housing.

Separating Power: The Kenyan Supreme Court’s Judgment on Constituency Development Funds

The separation of powers is assumed to be an integral element of contemporary democratic constitutionalism. However, mapping the ideal of the separation of powers onto the complex reality of the modern administrative State is a challenging task. Enforce separation too rigidly, and governance will become impossible. Allow for too much leeway, and you risk a drift towards concentration and centralisation of power. How and where to draw the line has been a vexed question, which constitutional courts across the world have been forced to grapple with.

Introduction

In this context, the judgment of the Supreme Court of Kenya in The Institute for Social Accountability vs The National Assembly (8th August 2022) is a landmark judicial contribution to this global conversation. At issue before the Supreme Court was the constitutionality of the Constituency Development Fund Act of 2013 (as amended by Act No. 36 of 2013) [the “CDF Act”]. In short, the CDF Act created a fund [the “Constituency Development Fund”, or “CDF”], with money up to 2.5% of national government revenue collected in the financial year. The CDF would be used to fund various “community-based projects”, for the benefit of “a widespread cross-section of the inhabitants of a particular area” (s. 22(1)). The implementation of these projects would be monitored by the Constituency Development Fund Committee of the particular constituency (s. 31(3)). Importantly, eight out of ten members of the CDF Committee were to be appointed by the local member of parliament (who was, himself, an ex officio member of the Committee) (s. 24(3)).

The Issues

If we take a step back, therefore, we can see that in simple terms the CDF was (a) a national fund, (b) to be deployed for developmental projects on a constituency-wise basis, and (c) the implementation of the projects was under the effective control of the local MP. To Indian readers, this will be rather familiar: it is quite similar to the MPLAD scheme.

The CDF Act was challenged before the High Court of Kenya, which found it to be unconstitutional. The High Court’s judgment was partially upheld and partially reversed by the Court of Appeal. The case then traveled to the Supreme Court of Kenya, which – by its judgment on 8 August 2022 – also found the CDF Act to be unconstitutional in its entirety.

The gravamen of the substantive challenge before the Kenyan courts can be summed up through the following two propositions: first, the CDF Act undermined the devolved system of government under the Kenyan Constitution, by setting up a parallel, third level of government (at the constituency level), in addition to the national and the county levels, without constitutional sanction (this is essentially a federalism challenge, although – as we shall see – the Court did not analyse it in federal terms); and secondly, the CDF Act violated the separation of powers by granting MPs – who are part of the legislature – essentially executive powers of administration and implementation of developmental projects. There were other – procedural – challenges as well: for instance, it was argued that the CDF Act substantially affected the functioning of county governments. This required it to be scrutinised by the Kenyan Senate (the “Second Chamber”), which – under Article 96 of the Constitution – is tasked with representing the Counties, and safeguarding their interests. This, however, had not been done.

The Involvement of the Senate

On the procedural issue, the Supreme Court found that the 2013 amendment to the CDF Act had transferred the constitutional basis of the CDF from Article 202(2) of the Constitution (which authorises the national government to make “additional allocations” to county governments) to Article 206(2) of the Constitution (which authorises withdrawal of money from the Consolidated Fund). The Court found that this alteration of the constitutional basis of the CDF “had an effect on the functioning of country governments” (paragraph 64). In particular, the CDF Act contemplated that projects would pertain to infrastructural development, such as roads, health, agriculture, and trade, which were within the domain of county governments (paragraph 71). For this reason, the Senate’s involvement was a constitutional pre-requisite, before the CDF Act could have been validly passed (paragraph 72).

While this finding is logical enough, there are two interesting aspects. The first is that in this case, the Speakers of the National Assembly and of the Senate had resolved that the CDF (Amendment) Bill – as it then was – did not concern counties, and therefore, did not need to be tabled before the Senate. The Supreme Court’s response to this was straightforward: it upheld the High Court’s finding that while the decision of the Speaker(s) merited due deference, it did not oust the power of the Court to answer a “question regarding the true nature of legislation.” (paragraph 75) In other words, therefore, despite the Speaker’s position as the leader of the House, their decision on the character of legislation would be subject to judicial review. Naturally, this would apply to other situations as well, such as – for example – classification of bills as Money Bills. The importance of this finding lies in the fact that it allows the judiciary to act as a safeguard against partisan speakers, who can help the ruling party in the First Chamber circumvent the participation of the Second Chamber simply by mis-classifying bills as Money Bills (or, as in this case, as not involving county governments). This is particularly significant, as the Kenyan Constitution does not explicitly guarantee or protect the independence of Speakers. And once again, Indian readers will recall that the exact same issue has been pending before the Supreme Court of India for the last four years.

Secondly, it was argued that the CDF Act offended constitutional design by violating federal principles. The Supreme Court rejected this argument by noting that the Kenyan Constitution was not federal, but a “unitary system of government that decentralises key functions and services to the county unit.” (paragraph 80) It is submitted, with respect, that the distinction between a federal system, and a unitary system with devolution is not an iron-clad one, and there are cases where terminology might obscure more than it reveals. Indeed, if we look at the Supreme Court’s actual analysis on the devolution question (which we shall turn to in a moment), we find that is actually far more respectful of core federal principles than many other “formally” federal polities.

On Devolution

As indicated above, the first core substantive argument before the Court was whether the CDF Act offended the division of functions between national and county governments (see Article 6 of the Constitution). In simpler terms, the issue was whether the CDF Act basically undermined the decentralisation of power guaranteed under the Constitution of Kenya. The Court noted that under Article 95 of the Constitution, the powers of the National Assembly included legislation, oversight over national revenue and its expenditure, and allocation of national revenue between levels of government, but not “the power to implement projects as a service delivery unit at the county level” (paragraph 83). The service delivery mandate was essentially an executive function at the county level, and was therefore meant to be exercised by County Executive Committees which, under Article 179 of the Constitution, were meant to exercise the “executive authority of the County.” Thus, according to the Court:

…where a Member of the National Assembly is allowed to play a role related to functions vested in devolved units, then this will compromise the vertical division of powers between the national and county governments. (paragraph 85)

And in particular:

Subsidiarity is the broad presumption that sub-national governments ought to be assigned those functions and powers which vitally affect the life of the inhabitants and allow the development of the country in accordance with local conditions of sub-national units, while matters of national importance concerning the country as a whole and overarching policy formulation are assigned to the national government. (paragraph 88)

The Supreme Court thus held that the Constitution did not authorise the “national government to … usurp the mandate of the county governments.” (paragraph 90) Nor did it authorise a “third level” of governance, tied to the constituency. Crucially, the Court noted that this was because the constituency – in an electoral system – was tied to the idea of political representation, and not service delivery: in essence the constituency is an electoral unit, with its function tied to the functions vested in an MP; and that role, essentially, is a legislative role. (paragraph 92) For this reason, the CDF Act could not be saved by tying it to the unit of the constituency, as the whole purpose of having “constituencies” in the first place was entirely different. I would respectfully submit that this is a very important finding: a clear separation between the constituency as a unit for political representation, and as a unit of service delivery, provides the conceptual foundation for preventing the concentration of power at the level of the MP: it prevents a situation where MPs serve both as legislators, but also as dispensers of project-linked patronage in their constituencies, and – arguably – prevents the incumbency bias that comes along with placing MPs in charge of disbursal of funds for project development within the constituency.

On the Separation of Powers

Indeed, this last bit was an important feature of the Supreme Court’s separation of powers analysis. Arguments before the Court on this point followed a familiar theme, with the Appellants arguing that the CDF Act violated the separation of powers by vesting executive functions with legislators, and the Respondents arguing that there was no such thing as “pure separation of powers.” However, the Court’s response to this is of particular significance. The Court accepted that the Kenyan Constitution did not follow a “pure” separation of powers model, where the branches of government were hermetically sealed off from one another (indeed, which Constitution does?). However, that did not resolve the question in favour of the Respondents. The crucial question that needed to be asked was what purpose separation of powers was meant to serve in a particular constitutional system, and to derive its content from that analysis.

Here, the Court then found that the purpose of the separation of powers was essentially to prevent concentration:

Kenyans having witnessed excesses of absolute power vested in the Executive branch which operated with abandon and riding roughshod over other state institutions sought to constrain and temper the exercise of public power. Citizens during the pre-2010 dispensation chose to respond to excesses of that legacy by explicitly dividing state power into three branches of government to preclude the exercise of arbitrary power. (paragraph 116)

Keeping this in mind, the Supreme Court proposed a two-pronged test for determining when, in a given case, the separation of powers had been violated: first, ask whether a state agency was straying into the “nucleus, core functions, or pre-eminent domain” of another branch of government, from a functional point of view (as discussed in the previous paragraph); and secondly, ask whether the exercise of the impugned power would threaten the values and principles articulated in the Constitution. (paragraph 118) Applying this two-pronged test, the Supreme Court then found, first, that the Constitution was clear about what legislative power entailed: it was representation, legislation, and oversight over the government (paragraph 120). Under the CDF Act, however, through the Constituency Development Fund Committee, MPs were “in effective control [of the Committee] and that means that he/she influences the selection, prioritization of projects, allocation of funds and also monitors the implementation of the projects.” (paragraph 124) Therefore:

This means that the Fund, as conceived under the CDF Act 2013, vested in the Legislature and its personnel – being the Members of the National Assembly, functions that typically fall within the nucleus, core function, or pre-eminent domain of the Executive branch. (paragraph 124)

What of the separation of powers in terms of constitutional values and principles? Here, the Court found that a core function of the separation of powers was to bring about a system of checks and balances, leading to accountability and good governance. At the heart of this was the avoidance of conflict of interest. However, the CDF Act created an open conflict of interest by giving to MPs a personal stake in the determination and implementation of projects out of the National Assembly’s CDF fund. In other words, MPs could not effectively perform their oversight functions over the use of the Fund, if they themselves stood to benefit politically from decisions about its implementation (paragraph 127). Thus, the Court summed up by holding that:

We, therefore, find that a Fund operating outside the strictures of separation of powers and the system of checks and balances would not be constrained given the absence of legislative oversight and therefore would be prone to be abused. In effect, a Fund that allows personnel from the Legislative branch to exercise executive powers is problematic from a constitutional lens. In the context of this case, we adopt the view that the constitutional scheme on separation of powers should be upheld given its implication for underlying constitutional values; that is, the maintenance of accountability and good governance. Were we to adopt a contrary approach, as urged by the respondents, even for the best of policy reasons, these constitutional values and principles will be eroded. (paragraph 129)

Comparing Institute for Social Accountability and Bhim Singh

The rigorous and in-depth analysis of the Supreme Court of Kenya stands out particularly starkly when we compare it with the judgment of the Indian Supreme Court in Bhim Singh, where the constitutionality of the MPLAD scheme was challenged (I have briefly analysed this case here). On the issue of the separation of powers, the Supreme Court repeated the mantra of there being no “strict” separation of powers, that “each one of the arms at times perform other functions as well“, and that “it is quite logical for the Member of Parliament to carry out developmental activities to the constituencies they represent” (needless to say, there was no explanation forthcoming for why this proposition is “quite logical”, because – unlike the Supreme Court of Kenya, there was no analysis of the role played by the “constituency” in the political process).

The Supreme Court also repelled the separation of powers challenge by noting that under the scheme the power of the MP was a “recommendatory” power, with the decision about which projects to implement lying with the district authority. Once again, though, the judgment of the Kenyan Supreme Court shows us how a Court need not equate form with substance: even under the CDF Act, the relevant MP was not directly implementing projects, as though he or she was a personal administrator. Rather, what the Court found was that the scheme, as a whole, gave to an MP a measure of effective control over how projects were selected and implemented. It is abundantly clear that MPLAD – in slightly different ways – has the same effect.

The federalism challenge was dealt with by the Supreme Court in similarly superficial fashion, by noting that India is a “quasi-federation”; indeed, it is particularly ironic that the Supreme Court of India used the mantra of the “quasi-federation” to avoid any serious analysis of whether the MPLAD scheme violated the Constitution, while on the other hand, the Supreme Court of Kenya – even while insisting that the Constitution of Kenya is unitary – engaged in a much more detailed consideration of whether the CDF Fund violated the devolved scheme of powers between national and county governments set up under the Constitution of Kenya. One can only wonder what the outcome of Bhim Singh would have been, had the Indian Supreme Court taken a principled approach towards the separation of powers and federalism under the Constitution, rather than a box-checking exercise.

Conclusion

In my view, the judgment of the Supreme Court of Kenya in Institute for Social Accountability vs The National Assembly is a landmark judgment, that makes many significant contributions to the global conversation around constitutional democracy. Among the highlights are: (a) the Supreme Court’s finding that the Speaker’s classification of bills is subject to judicial review, especially in situations where the participation of the Second Chamber turns upon how a bill is classified; (b) the Supreme Court’s clear analysis of the role of the constituency as a unity of political representation, and not of service delivery – and the consequences this has for the powers of MPs; (c) the Court’s principled, two-pronged test for when functional separation of powers is violated, and – in particular – its emphasis on preventing concentration of power and enabling accountability as the basis of the doctrine; and (d) its application of the principle to the case at hand, including the articulation of the distinction between legislative functions and executive functions.

Indeed, if we read the judgment as a whole, what comes through most clearly is the Supreme Court’s pushback against a blurring of legislative and executive functions in a way that makes the constitutional terrain the site of a centralising drift. Although the Court doesn’t say so in as many words, its insistence on articulating the doctrine of separation of powers in a way that gives it “analytical bite” shows a clear preoccupation with preserving the Constitution as a check upon the centralisation of power. In this, there are lessons for all of us, around the world.

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[My thanks to Joshua Malidzo Nyawa for giving this piece a once-over.]

The ConCast: Episode 4 (5 August 2022)

In Episode 4 of the ConCast, I spoke to Gauri Pillai about abortion laws and the legal landscape of reproductive rights in India. We discussed the recent High Court and Supreme Court orders relating to a twenty-four-week pregnant woman’s petition for an abortion, the history, design, structure, and implementation of the Medical Termination of Pregnancy Act, the origin of “medical boards”, and what a progressive abortion/reproductive rights law might look like.

The Podcast is available to listen below, and also on Podbean, Google Podcasts, Apple Podcasts, and Spotify.

References:

Section 312, Indian Penal Code, 1860 [“IPC”].

Medical Termination of Pregnancy Act, 1971 [“MTPA”.

Medical Termination of Pregnancy (Amendment) Act, 2021.

Medical Termination of Pregnancy (Amendment) Rules, 2021.

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Ms X vs Government of NCT of Delhi (High Court order).

Ms X vs Government of NCT of Delhi (Supreme Court order).

Gauri Pillai, “Two Courts, Two Conclusions: Abortion Law in India.”

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Suchita Srivastava vs Chandigarh Administration.

Nand Kishor Sharma vs Union of India.

High Court On Its Own Motion vs State of Maharashtra.

Aparna Chandra, Mrinal Satish, Shreya Shree & Mini Saxena, “Legal Barriers to Accessing Safe Abortion Services in India: A Fact Finding Study.”

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R vs Morgentaler (Canadian Supreme Court).

ICLP Turns 9 || The Leap of Faith

The Indian Constitutional Law and Philosophy Blog turns nine years old today.

Previous blog anniversaries have been used to look back on important events in the year gone by, or to look ahead to the future. This time around, though, I thought to briefly address a question that seems to become more salient with each passing year: the point – or purpose – of writing about the law (and constitutional law in particular), in the context within which we are presently located.

Recently, I was presenting some of my current research work in a seminar. That research deals with the Indian Constitution as a terrain of contestation between different visions of power. During the Q&A, a Russian political theorist in the audience raised his hand. He said that for him, the very idea of a Constitution as a terrain of contestation was a novel one. The thought that a Constitution could shape and constrain political power, rather than simply becoming whatever the dominant political power desired it to be at any given time, was something inconceivable.

The comment has stayed with me. I was thinking about it last month, for example, when a two-judge bench of the Supreme Court suspended the Xth Schedule of the Constitution through an interim order, and ordered a floor test through another interim order – while the Xth Schedule stood suspended, thus changing the composition of the House – all within the space of two days; soon after, the government fell. Now, you can try and somehow analyse that under existing doctrines of constitutional law. If you try hard enough, and engage in enough linguistic and conceptual pyrotechnics, maybe you’ll even succeed. Or you could trust the evidence of your eyes and ears, and acknowledge that what is happening here is not the application of constitutional law, but the Constitution – and constitutionalism – shaping itself to meet the demands of political power.

Examples of this could be multiplied. I have discussed some glaring illustrations in the seventh anniversary post for this blog. From the non-hearing of crucial cases such as the electoral bonds case, to countless substantive decisions (the most recent being, of course, the PMLA judgment, and other “Executive’s Court” judgments discussed in this blog post) where existing principles of constitutional interpretation are either discarded or simply ignored in order to reach the outcome, it seems to me that our present context is not too dissimilar from what my Russian colleague described: a situation where constitutional law is no longer constraining political power, but instead, is subservient to it, and in many cases, serves to entrench and legitimise it. This is the antithesis of both the idea of constitutionalism, and the idea of the rule of law.

Such a situation raises the obvious question of what purpose – if any – is served by constitutional scholarship and writing, which must continue to assume a reality that no longer exists in practice. In this piece, for example, Andras Jakab discusses various ways in which one may teach constitutional law in such a context – and how one might maintain one’s intellectual integrity in the process – but doesn’t go further in asking why one ought to do so, or what the point of it is.

One answer, I believe, is found in comparative constitutional history. For example, South African lawyers have highlighted the importance of a continued and regular engagement with constitutionalism and the rule of law during the years of apartheid, when – for decades – legal doctrine and court rulings valued neither. The importance of engagement lay in the fact that when South Africa transitioned into a constitutional democracy in the mid-1990s, it did not have to discover from scratch the concepts of constitutionalism and the rule of law. These concepts had been kept alive in adverse circumstances, and this meant that that the the tradition could simply continue, instead of having to be reinvented. The purpose of constitutional scholarship and writing, thus, is future-looking: it seeks its justification in keeping alive an intellectual tradition and a way of thinking that might be held in contempt in the present, but has been indispensable in the past, and will become indispensable again in the future.

If we do take this as the justification for continued constitutional scholarship and writing at this time, however, intellectual honesty demands admitting to ourselves a few uncomfortable truths. The first is that as far as the present is concerned, constitutional scholarship has no tangible contribution to make (to put it bluntly, it is useless). You can, for example, study the drafting history of the Xth Schedule, read all the prior cases on the point, and construct detailed arguments about interpretation, but when the exigencies demand it, the Xth Schedule will get suspended by a one-line interim order of the Supreme Court, and it simply will not matter what the canons of interpretation are. As pointed out above, constitutional scholarship operates in a world in which the Constitution determines the scope and limits of political power. There is another world in which political power determines the scope and limits of the Constitution. When the latter becomes the “real world” – the world in which we live in – then, for obvious reasons, constitutional scholarship becomes as illusory as the world within which it exists.

We then say that the justification for constitutional scholarship lies in the long term, and what sustains it is a vision of the future, much like the South African lawyers were sustained by a vision of the future. However, that requires a second admission, which is that there is no way of knowing just how “long” the long-term might be. Prominent Kenyan lawyers and constitutionalists who fought for constitutionalism and the rule of law in the 1980s were lucky enough to see something of it come to pass within twenty-five years, but not everyone might be so lucky (once again, I’m thinking of my Russian colleague). In that sense, then, continuing to engage in constitutional scholarship and writing requires admitting to oneself that not only is the work useless in the present, but might continue to be useless for a good while in the future, and indeed, one might never actually see it come to any use.

In doing this, therefore, one is betting upon a future that might never come to pass. This becomes even more difficult to justify when one thinks of the fact that there are other, more immediate, and more tangible uses to which the law can be put: for example, bail applications. In that context, continuing to focus on constitutional writing and analysis seems to become an almost unforgivable luxury. To keep doing it, one has to convince oneself to take a leap of faith.

As this blog enters its tenth year, these are the guiding principles under which it will continue to exist. The focus will remain on examining the interface between political power, the rule of law, and constitutionalism in present-day India, without deceit, and without illusions. And to the question of why, the only answer is: we are all on a leap of faith.