The Maharashtra Political Crisis Judgment – IV: The Speaker, the Election Commission and the Legal Fiction [Guest Post]

[This is a guest post by Shiva Krishnamurti.]

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In a recent interview with The Hindu, published on 25.05.2023, the Hon’ble Speaker of the Maharashtra Legislative Assembly, talking about the Shiv Sena dispute, stated that he is not bound by the order of Election Commission (ECI) and will decide the disqualification petitions filed by both factions of the Shiv Sena independently. He also affirmatively stated that the Hon’ble Supreme Court, vide its judgement dated 11.05.2023 in Subhash Desai v. Principal Secretary to Government, Maharashtra, WP (C) No. 493 of 2022 (Shiv Sena Constitution Bench Judgement) has widened the role of the Speaker under the X Schedule of Constitution (X Schedule), and has also asked him to investigate who the “real” Shiv Sena political party was as of July 2022.

It is now not out of the place to mention that this affirmative statement made by the Hon’ble Speaker finds its force from the discussion and conclusion  under Part E of the Shiv Sena Constitution Bench Judgement, between paragraphs 125 to 159 of the Judgement.

However, if the said discussion and the latest interview of the Hon’ble Speaker make one thing very clear, it is that there now exists a situation of chaos, which has blurred the powers of ECI and under Paragraph 15 of the Election Symbols (Allotment and Reservation) order, 1968 (Symbols Order) and the power of Hon’ble Speaker under X Schedule of Constitution.

The Hon’ble Supreme Court categorically states that the ECI is an independent Constitutional Body and so is the Speaker, and the pendency of a concurrent issue initiated before one authority shall not await the result of the other, pending before the other authority. However, the stand of the Hon’ble Supreme Court essentially makes it impossible for either the ECI or the Speaker to proceed, without creating a situation of chaos and unsettlement, and essentially a paradox.

The relationship between the proceedings under the X Schedule of Constitution and Paragraph 15 of the Symbols Order

Though hyper-technically, or even theoretically, the X Schedule and Paragraph 15 of the Symbols Order operate in totally different fields with no relation whatsoever to each other, the recent twists to the political events across the nation has brought (and intertwined) both the legal frameworks to an interesting cross roads.

On the one hand, the Speaker, under the X Schedule has the power to disqualify any member of the Legislative Assembly when there is any defection by a member from the political party they are associated with. Defection is defined under the X Schedule (primarily, voting against the party whip).

On the other hand, Paragraph 15 of the Symbols Order only comes into play when there are two factions inside one single party and both believe that they are “THE PARTY”. In these circumstances, the ECI determines the real party in tune with the law laid down by Hon’ble Supreme Court in the case of Shri Sadiq Ali and Anr. v. Election Commission of India and Ors. (1972) 4 SCC 664.

Now, the question arises when there is a split inside the Political Party and both factions seek the disqualification of each other. This is precisely what happened in the Shiv Sena Case, which started in June 2022. Now in this scenario the following difficulty arises:

1. If the Speaker decides upon the disqualification of either split faction’s members, it will impact the test of majority while deciding the allotment of symbol issue by the ECI to determine “THE PARTY”
2. If the ECI decides “THE PARTY”, essentially that member would not have defected form “THE PARTY” so defined and hence ought not to be disqualified.

Now, since the Supreme Court refused to grant constitutional sequence to either of the proceedings, there is enough potential to create a paradox where there will be two concurrent (and contradictory) decisions given by two Independent Constitutional Authorities, which will leave the political party and the legislature at the cross roads.

SC on ECI and its powers under Paragraph 15 of Symbol order vis-à-vis the Judgement of Shri Sadiq Ali and Anr. v. Election Commission of India and Ors. (1972) 4 SCC 664

The Uddhav Thakeray faction before the Constitution Bench asked the SC to set a Constitutional Sequence, as to which Constitutional Authority i.e., either Speaker or the ECI shall decide the issue of Disqualification or the dispute under Paragraph 15 of the Symbols Order. However, while denying this categorically, interestingly, the Supreme Court has given a different interpretation to decide the disputes under Paragraph 15 of the Symbols Order.

So far, the ECI has been only adopting the test of majority in every dispute under Paragraph 15 of the Symbols Order. It means that the ECI used to determine which faction has greater numerical strength in the Legislative and Organizational wings of the party. Consequently, the faction having such numerical strength used to get the symbol of the party and would be determined to be “THE PARTY”.

However, the above test is not enumerated in the legislative text of the Symbols Order but has evolved through the law laid down by Hon’ble Supreme Court in the case of Sadiq Ali (supra). In that case, the Apex Court formulated 3 essential tests to determine the “THE PARTY”. The first test was to analyse the constitution of any Political Party in question and determine the real faction. The second test was to see which faction furthers the aim of the Political party and determine the real faction through that. The third test, and probably the most relevant one, was to determine the strength of numerical support/majority.

Now here is where it gets interesting. There are two factors which were not present during the Sadiq Ali case, which left the vacuum as it is. First, there was no X Schedule in existence. It was inserted in 1985. Therefore, the Hon’ble Court was never posed with a challenge to determine the overlapping of fields between the X Schedule and Paragraph 15. Secondly, owing to the facts and circumstances which were present back then, the Court felt that the first two tests were not applicable to the case of Sadiq Ali and merely gave a judgment pertaining to the test of majority/numerical strength.

However, over the years, the ECI adopted one single method (the third test) and did not even attempt to develop the other two tests mentioned in Sadiq Ali case to determine the real party in cases of a contest between two factions.

Hence, when the dispute as that of Shiv Sena arose, it resulted in a conundrum.

Supreme Court’s Judgement and the possible paradigm shift and a situation of legal fiction and paradox

The Hon’ble Supreme Court rightly pointed out the complication in the case at hand and attempted to harmonize the X Schedule and Paragraph 15 of Symbols Order. Now, when this complex and difficult situation was presented before the Hon’ble Supreme Court, it correctly determined that the ECI has not explored the possibility other two tests and has been relying upon the rule of majority alone. Therefore, to that extent, the Supreme Court was right in stating that ECI should try to adopt other methods to determine the real faction. However, still the issue of the Speaker and the ECI giving contrary decisions is a hanging sword.

Thus, the matter could not be left at that, and to put an end to the paradox, the Supreme Court further pondered upon the possible outcome in such complication. However, at this juncture, the Hon’ble Court contemplated only two outcomes – first, when the ECI decides prior to Speaker and determines the real faction; and second, when the Speaker decides prior to the ECI on the issue of disqualification. The SC however did not contemplate or give finding upon the possible contrary outcomes by Speaker and ECI, concurrently. Hence, the Judgement did not deal with that aspect which has now let the Speaker state that he should determine the real party, in his interview discussed above.

Therefore, at this juncture the SC, even though it stated that it is harmonizing the X Schedule and Paragraph 15 of the Symbols Order, has given absolutely no possible solution as to how to deal with the possible situation where the decision of Speaker is contrary to that of the ECI. The SC merely states that “a question may arise as to whether the decision of the ECI under the Symbols Order must be consistent with the decision of the Speaker under the Tenth Schedule. The answer is no. This is because the decision of the Speaker and the decision of the ECI are each based on different considerations and are taken for different purposes.”

When we try to find answers as to what would be the way forward for dealing with the overlapping situation as that in hand, where Speaker affirms that he will determine the real Party, whereas the ECI has already seized of the matter to determine the Real Party, it creates a paradoxical situation where the two Constitutional bodies are set to possibly determine the same issue and possibly in two different directions (a possibility).

The Constitution Bench by suggesting to the ECI to adopt alternate tests and deviate from the years-old majority rule to determine real faction, though logically arguably correct, would surely create turbulence in the settled jurisprudence of Paragraph 15. Furthermore, it still does not resolve the core underlying issue of the possible legal fiction that would be created. We live in interesting times, and would possibly find answer to the paradoxical situation in either the plea filed against the Order of the ECI by Udhav faction or in the larger bench proceedings of Nabam Rebia. Till then, we shall continue to witness the the continual evolution of our nation’s election jurisprudence.

Guest Post: A Critique of the Supreme Court’s “Irretrievable Breakdown of Marriage” Judgment

[This is a guest post by Aditi Bhojnagarwala.]

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Introduction

The Supreme Court, on 1^st May 2023, in the case of Shilpa Sailesh v Varun Sreenivasan (“Shilpa Sailesh”), ruled that it could grant a divorce under Article 142 of the Constitution, if it deems that there has been an “irretrievable breakdown of marriage”. This decision was praised for acknowledging the fact that when a marriage has broken down beyond repair, granting of a divorce might be a better option than prolonging the misery of the parties. However, there was an important aspect in this decision which requires greater scrutiny; the court having the power to grant such a divorce even when one of the parties does not consent to it.

The aim of this article is to analyze this very provision in light of a very specific situation; where the woman had relatively little to no fault in the breaking down of the marriage and she refuses to consent for divorce, while the husband claims a decree for the same. The reasons why a woman might refuse to go for a divorce have been first provided, to ensure that the social background in which this scenario takes place is well understood. Finally, an analysis of the ‘parens patriae’ jurisdiction of the court and whether the court should prioritize the welfare or the agency of a woman, has been presented.

What is Irretrievable Breakdown of Marriage?

Irretrievable breakdown of marriage (“IBM”) is a condition where the marriage has broken down to an irreparable degree and it is impossible to revive the marriage again. There are situations where bitterness and incompatibility have dominated the marriage between two people. However, any specific marital offence may not be possible to prove. Hence, the court cannot grant divorce through the fault grounds mentioned under Section 13 of the Hindu Marriage Act, 1955 (“HMA”) or Section 27 of the Special Marriage Act, 1954 (“SMA”). Further, it is also possible that either of the spouses refuses to consent to the divorce. Therefore, divorce through mutual consent under Section 13B of HMA or Section 28 of SMA is also unavailable. Such cases, where cohabitation and resumption of normal married life are impossible and yet provisions of HMA and SMA cannot be utilised, are the ones which the court seeks to address through its jurisdiction under Article 142.

What is Article 142 and what is the extent of its scope?

Article 142 bestows upon the Supreme Court the power to pass any decree or order in relation to any cause or matter before it, which it deems necessary in order to do ‘complete justice’.

The scope of Article 142 has been re-defined by the court multiple times, due to its wide ambit and discretionary nature. Its present scope was provided in the case of Supreme Court Bar Assn. v. Union of India. The court, here, held that Article 142 was a supplementary provision, and not one capable of supplanting existing substantive law of the statutes. Moreover, it was clarified that Article 142 could not be used “to build a new edifice where none existed earlier” or “achieve something indirectly, which cannot be achieved directly”.

In the present case, the court held that it could grant divorce on the grounds of IBM through its power under Article 142. The court justified its decision by stating that the scope of Article 142 only restricted the court from supplanting a pre-existing law through creation of new law, or from passing an order which was ignored express substantive law provisions. Since power could be exercised in a novel area, and IBM was a novel area, decisions on the same could be passed by the Supreme Court until relevant laws are framed by the Parliament.

IBM: from a non-consenting woman’s perspective

The court specifically ruled that its power to grant divorce under Article 142, on the grounds of IBM, would extend to a situation where either of the spouses does not consent to the divorce. Moreover, it must be noted that since IBM is not a fault-based ground, a party who might have caused greater harm resulting in the breakdown of the marriage, could also be the one who files for a divorce. The legal maxim of nullus commodum capere protect de injuria sua propria (no man can take advantage of his own wrong), is inapplicable when divorce is granted under IBM.

In this article, a very specific situation is addressed. It is one where the man has caused greater harm and has subsequently filed a suit for divorce under IBM. However, the woman refuses to consent to the divorce. In such a circumstance, is the court justified in making a unilateral decision on its conception of welfare, or should a greater weightage be given to the agency of the woman?

It is agreed that there are various factors that the court keeps in mind before granting a decree of divorce under IBM. These include the duration of marriage and separation, nature of allegations, attempts at mediation, economic and social status of parties, educational qualifications, custody of children, etc. Hence, one might claim that the consent of a woman would rarely be ignored. However, there have been multiple cases in the past where the Supreme Court has in fact chosen to side-line the choice of the woman.

In Ashok Hurra v. Rupa Bipin Zaveri, the couple had separated due to difference of opinions. They had lived separately for 13 years, and during the pendency of the proceedings, the man had re-married and started a new family meanwhile. In Munish Kakkar v. Nidhi Kakkar, the divorce proceedings had been ongoing for decades, whereby the woman had shifted to a new country and was on medications for depression. In Sivasankaran v. Santhimeenal, the man had re-married within six days of the passing of the initial decree of divorce. The appeal by the wife against said decree had been pending for years. In all these cases, it is well obvious that the marriage had for all practical purposes ceased to exist, and yet the women wanted the marriage to continue on paper. It becomes important to understand why a woman chooses to make such a decision. Moreover, it must also be noted that in all these cases divorce was granted by the Supreme Court under Article 142, despite the woman having caused little to no harm, and her resistance against the decree.

The three cases mentioned above were in fact the only cases cited by the court in the Shilpa Sailesh judgment, as precedents to prove that divorce under Article 142 has been granted despite the absence of consent of a party. What is interesting to note, however, is that in all these cases the party who refused to consent was the woman. Hence, it becomes important to understand as to why a woman might want a marriage to continue on paper, despite it having ceased to exist for all practical purposes.

Why do some Indian women choose to stay in a bad marriage?

There are multiple reasons, especially in the Indian context, as to why a woman might be hesitant to go for a divorce, despite being wronged. One of the primary causes is the economic hardship faced by women after divorce. According to the NSSO report, 2/3 women in the country are homemakers and are dependent on the income of their husband, having little financial security and stability of their own. Hence, walking out of marriages often becomes a difficult task. They are also burdened with the additional responsibility of child-rearing and the immense expenses required for the same. One might argue that the provisions of maintenance and alimony, provided for under various statutes like Sections 24, 25 of HMA, Section 37 of SMA, Section 18 of Hindu Adoption and Maintenance Act, Section 125 of Code of Criminal Procedure, and Section 20 of Protection of Women from Domestic Violence Act, is for the very purpose of ensuring that financial constraints do not hold a woman back from walking out of a bad marriage. However, very often the money provided under such provisions is not adequate for a woman to sustain herself and her children; Indian laws have not yet evolved – as they have in other countries (such as, for example, New Zealand or South Africa) – to a point where courts take into account non-monetary contributions in order to ensure that the structurally more vulnerable party in a marriage is not left in an economically precarious position on divorce.

Another factor, which probably impacts an Indian woman even more than financial constraints, is the social stigmatization she has to face as a divorcee. Because of social norms, the woman is often disproportionately blamed for a failed marriage. The marital offence that a husband might have committed is also deemed to have been caused due to the wife’s inappropriate behaviour. Due to reasons of social stigmatization as well as economic burden, a woman is often rejected from her parental house as well. Hence, being well aware that she would have no place to seek refuge in, she chooses to stay in the marriage, for the sake of her reputation and the welfare of her children. These strains and burdens often lead to immense psychological impediments for divorced women as well, who are seen to experience insomnia, mental breakdowns, and in some cases even depression.

Priority of the court: Welfare or Agency of the Woman?

The interference of the court in situations where the woman has faced most of the hardships in the marriage, and yet refuses to consent to divorce, may be justified by some on the principle of ‘parens patriae’. The parens patriae jurisdiction, where the court acts like the parent and makes decisions for the welfare of the party, is often used in cases involving children, mentally unsound, etc.  Hence, some might argue that keeping this principle of welfare in mind, it would be the duty of the court to ensure that a woman can get out of a bad marriage, despite her fears of social stigmatization. However, a clear distinction must be made between a child and a competent adult woman. In the former case, the court may be justified in exercising said jurisdiction, for the child is deemed by law to not know what is best for himself. However, the same is not true for a woman, who surely understands the nature and consequences of her actions and decisions.

This very distinction was emphasized by the Supreme Court in Soni Gerry v. Gerry Douglas. The court ruled that upon attaining adulthood, a person is entitled to make independent choices regarding all subjects that affect their life. The court could not act like “super guardians” or assume the role of “parens patriae”. Here, the court specifically stated that where a person is competent to make decisions, being well aware of the consequences that might follow, the court was in no position to interject.

Keeping the limited scope of parens patriae in mind, one must now question whether what the court, in its opinion deems to be the ‘welfare’ of the woman, should be prioritized over the agency of a woman. Here, of course, it is acknowledged that whatever decision a woman might take in such a situation cannot really be termed as ‘completely independent’. This is due to the fact that her social and economic condition, on the background of the larger patriarchal setting of society, to an extent forces her to make the choice to stay in the bad marriage. In a utopian scenario, we would obviously wish for the existence of complete autonomy in the choices made by women, yet we must not stray from the practical realities and alternatives that she is presented with.

Hence, the main question then boils down to the following- Despite the existence of limitations and constraints to her choice, should a woman be deprived of the ability and right to make a decision about the trajectory of her own life? Should she be deemed so incompetent that a bench of judges are vested with the responsibility to decide what is best for her? Since the judiciary predominantly consists of upper-caste, upper-class men, their perception of ‘welfare’ is likely to be biased and unrepresentative of the actual needs of the woman. Moreover, the anti-essentialist feminist legal theorists acknowledge that law may not affect all women in the same way, and that her intersecting social identity would largely shape her experiences. Hence, it would be relatively easier for a woman from a privileged class and caste to deal with the consequences of divorce than it would be for a poor lower-caste woman. The law cannot then turn a blind eye against the living realities of such women by taking an idealist saviour approach. It is not for a third party to decide as to what would be ‘best’ for an adult competent woman, when she clearly expresses what she desires and wants.

Hence, in cases where she has caused minimal harm, the court should respect the decision taken by the woman to not want a divorce. In passing such decrees under IBM, the court must be cognizant of the various constraints that a woman might face, and her choice should be given priority in this regard.

Conclusion

The Shilpa Sailesh judgment was hailed by majority of the people, due to its acknowledgment of the futility of continuing a marriage on paper, when it has ceased to exist for all practical purposes. However, an important aspect of the judgement on the power to grant such divorce despite the presence of only unilateral consent, and its possible implications on women, was largely ignored. Judgments which are blatantly bad are quick to face backlash. However, it is the seemingly ‘good’ judgments are never scrutinized and analysed thoroughly, something which must be relooked into and rectified. The purpose of this article was not necessarily to offer a criticism against the final order of the court. Rather, it is to depict a possible scenario that might arise in the future course, and highlight the court’s responsibility of the court to ensure that it deals with the same in a fair manner.

Before ending, I would like to put forth a small caveat; this article in no way presents the opinion of all women or any ‘common’ feminist opinion, for the mere reason that the existence of such a common opinion is not possible. The feminist discourse thrives on diversity of thoughts and experiences, my opinion being just one of them.

The Supreme Court’s Maharashtra Political Crisis Judgment – III: On Constitutional Romanticism and the Role of the Speaker [Guest Post]

[This is a guest post by Chiranth Mukunda, and continues the blog series on the Supreme Court’s Maharashtra Political Crisis judgment. Parts One and Two may be read here.]

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On May 11, a five-judge bench of the Supreme Court delivered a unanimous decision with nine conclusions in the Maharashtra political crisis case (Shubhash Desai vs Principle Secretary). The complex sequence of events that unfolded involved the roles of constitutional functionaries, including the Governor, the Deputy Speaker (and then the Speaker), the ECI and most importantly, the Court. The political sequence cannot be comprehended without considering the associated decisions by these constitutional functionaries, intermingling with each other and forming a web. As pointed out previously, the interim court order extending the time given to the rebel MLAs for replying to the first batch of disqualification petitions, on natural justice grounds, significantly altered the power equations. The intervening period saw an appointment of a Speaker to the vacant post, the Governor’s call for a floor test, and a change in government.

Now the Supreme Court has held that the decision of the disqualification petitions by the Speaker will only have prospective operation without having an effect on the validity of the proceedings in the intervening period (“Conclusion C”). As the Court recognized, the speaker’s role under the scheme of the Tenth Schedule becomes more significant when there is a factional dispute. It necessitates the speaker to prima facie decide the ‘real’ political party for the purposes of the Tenth Schedule in a situation where different factions emerge. The consequences of this will be discussed later in the essay. The mismatch between the position of the speaker, who continues to be a political figure, and the role entrusted to them, is bound to increase litigation, with consequent time lag, and result in ineffective or infructuous remedies (as in this case).

The continuing contradiction between the role of the speaker under the Tenth Schedule, which envisages the speaker as an impartial adjudicatory authority, and the actual workings of the office, was too visible for the court to have ignored in this case. The judgment glosses over these arguments without addressing the core concern about the partisan actions of the speaker. Constitutional romanticism regarding the supposed neutrality of the speaker continues to have its day. In this piece, by analysing the present judgment, I therefore highlight some inconsistencies that emerge under the current regime of the anti-defection law, which places the speaker at its centre.

The Interim Measure

The Tenth Schedule makes the Speaker the adjudicatory authority for disqualification petitions. The decision of the speaker is subject to judicial review, as held in Kihoto Hollohan.

Now, considering the possibility of misuse of the Court’s decision in Nabam Rebia, which had held that the Speaker was barred from adjudicating disqualification petitions if a motion for their own removal was pending, and which was referred to a larger 7-judge bench in this case, the Supreme Court here adopted an interim measure to serve the constitutional purpose of the Tenth Schedule. The Court held that the Speaker’s jurisdiction under the Tenth Schedule extends to deciding and ruling upon applications questioning said jurisdiction. Upon an application questioning the jurisdiction of the Speaker (a pending notice of removal under article 179(c) can be an example), the Speaker can either adjourn the proceedings under the Tenth Schedule if the application is bona fide, or proceed with the disqualification petitions with relevant reasons. This decision of the speaker is subject to judicial review.

This interim measure is meant to avoid a ‘constitutional hiatus’ in the operation of the Tenth Schedule. The constitutional ideal would be for the Speaker to act in a fair and impartial manner while considering application which questions their jurisdiction. In reality, this constitutional ideal is unrealisable because the Speaker continues to maintain their political affiliation. In most scenarios, the Speaker will be part of one of the political ‘factions’ that emerge or will have a stake in one of the factions of any other party with whom the possibility of government formation holds, as can be seen even in the Maharashtra political crisis. For example, the newly elected Speaker (whose position itself was a matter of challenge) appointed a new whip from the breakaway legislative party, with whom his party formed the government (an appointment that the court in its analysis held to be illegal). It is important to note that subjecting the decision of the speaker to judicial oversight is only part of the solution. As seen in this case, time holds crucial value in politics: a significant delay in judicial resolution would have altered the balance of power on the ground.

On Bypassing the Authority of the Speaker

One of the questions that arose was whether the court could decide on disqualification under the Tenth schedule, absent a decision by the speaker. The petitioners urged the court to decide on the matter of disqualification directly, because, they argued, the newly appointed Speaker was proven to be incapable of acting in a fair and impartial manner. The Court rejected this argument by citing a passage from Kihoto Hollohan which held that the office of Speaker embodies propriety and impartiality and that it is inappropriate to express distrust in the office of Speaker in a parliamentary democracy. It was held that since the Speaker was elected by MLAs (including the MLAs against whom disqualification petitions are pending), following the proper procedure laid down in the rules, the Speaker was the appropriate authority to decide the disqualification petitions. Petitioners contended that alternatively, it should be the Deputy Speaker, who was acting in the role of Speaker whose seat was vacant at the time when the alleged act constituting disqualification was made, to decide on the petitions. The Court rejected this on the ground that a Deputy Speaker acts only when the post of Speaker is vacant, and the post of Speaker was occupied as of July 3, 2022. Hence, in this anomalous situation, the incumbent Speaker is now going to decide on the disqualification petitions where the grounds for disqualification include going against the party whip issued to not elect him in the speaker’s election to fill the aforementioned vacancy. Thus, the vacant Speaker’s office at the relevant time effectively smoothed the process for the Shinde Faction, because the deputy speaker’s role was easily neutralised by electing a speaker from the party (BJP) with whom they formed the government, as opposed to the 14-day notice period that is required to remove a Speaker.

At this point, there are two aspects that merit consideration.

Rule of Law

The Speaker is undoubtedly a member of the political party that forms the government and is an active political figure, which the tenth schedule is incognizant of. There is ample evidence of the Speaker acting in a partisan manner by favouring the government and the ruling party. For the Speaker to continue to hold office, the support of a majority of MLAs is needed, which is usually provided by the MLAs of a ruling party or coalition parties forming the government. In this case, the Speaker was elected by the new coalition consisting of MLAs of the Shinde faction of Shiv Sena and the BJP, which then formed the government. Now, since the decision on the disqualification petition is entrusted to the Speaker, the Speaker’s decision will have a bearing on continuation of his own coalition government (since the Speaker continues to be a party member and a political figure). Impartial exercise of adjudicatory powers might lead to fall of the government of his own party/faction if the MLAs are disqualified. As a result, adjudication by the speaker has the potential to violate the principle of natural justice ‘nemo judex in sua causa ‘or that no one is a judge in his own cause. The court evaded this issue by maintaining the Kihoto line that great traditions of high office of Speaker are not to distrusted with and “…the robes of the Speaker do change and elevate the man inside”.

But it is no answer to say that the Speaker will indeed act impartially; the form of the Speaker’s office – who need not give up his party affiliation upon entering the office – permits reasonable apprehension of bias, which is enough to vitiate the proceedings. However, essentially, the Supreme Court has adopted a view that romanticizes the role of speaker by removing any link between the Speaker and the political party. This is far from the constitutional reality. Therefore, the present regime of anti-defection laws has the potential to violate the rule against bias, which is an essential ingredient of rule of law. The partisan role played by the Speaker was implied when the court held that the appointment of new whip and leader of the legislative party was illegal. But the Court refused to accord it the significance it deserved and deal with the consequences of its finding; rather, it continued to romanticize the high office.

On the Validity of Proceedings in the Interregnum

The second aspect is the continuation of the Speaker in the office. If the Speaker’s decision on disqualification relates back to the date when the act constituting the disqualification (i.e., the date of defying the party whip or act of voluntarily giving up the membership of the party) was made, the proceedings in the interregnum, which included the election of the Speaker himself, would be cast in doubt. Hence, it is probable that Speaker would decide against the disqualification petitions, being a judge in his own cause, and consequently failing to act in an impartial and fair manner. This line of argument was rejected by the Court by holding that the decision of speaker on disqualification and its consequences will not have a retrospective effect but only a prospective effect from the date of the decision (Para 92). The court did not find any authority on the question of whether the proceedings in the house in the intervening period, between the disqualification-inducing act and the decision by the Speaker, would be subject to the final decision on disqualification. The court considered it afresh and held it in negative. It held that MLAs are entitled to participate in the proceedings until they are disqualified, which is the date when the speaker makes the decision.

In its reasoning, the court held that situation under article 189(2) (which stipulates that the validity of any proceedings of the legislature shall not be questioned on the ground that it was discovered subsequently that a legislator who was not entitled to vote or sit, took part in the proceedings) never arose, because the decision of the speaker on disqualification is only prospective. The court interpreted Rajendra Singh Rana to mean that the relevant reference point of time for the Speaker’s decision on disqualification is the time of the prohibitory act under tenth schedule. It means that even though the Speaker makes the decision with reference to a back date, the consequences of the decision will take effect only from the date of the decision by the Speaker, i.e., the member may have incurred disqualification under the Tenth Schedule prior, but the seat becomes vacant only after the decision on disqualification by the speaker. This effectively means that the Tenth Schedule operates from the date the Speaker wishes for it to operate, because the rigours of disqualification are incurred only from the date the Speaker makes the decision, and the proceedings in the intervening period are protected. This is compounded by the fact that there is no time limit for the speaker to make a decision (without a judicial order). The only requirement is that the decision be made in ‘reasonable time’.

Speakers’ Role under the Tenth Schedule when there is an Effective ‘Split’

The Court held that the Speaker who is the adjudicatory authority under the Tenth Schedule, may be called to decide who is the ‘real’ political party or the ‘original political party’ for the purpose of disqualification under paragraphs 2(1)(a) and 2(1)(b) of the Tenth Schedule. Since the defence of split is no longer available after the ninety-first constitutional amendment, one of the factions/groups is bound to lose out if they are considered by the speaker not to be the political party at the time the act constituting defection was made. When two or more factions issue whips, the court held that the speaker has to prima facie decide, for the purpose of para 2(1)(a) and 2(1)(b), which whip represents the political party (not the legislative party); but this has no bearing on the decision by the ECI under paragraph 15 of the  Elections Symbols (Reservation and Allotment) Order. Similarly, the Court held that the decision of ECI on which group or faction is the ‘real’ political party under paragraph 15 of the Symbols Order will have no bearing on the decision of the speaker, who has to decide which group or faction is the political party for the purpose of making a decision on the question of disqualification, with reference to the date on which the member voluntarily gives up his membership or defies the whip. This means that in the present case, the decision of the ECI recognizing the Shinde Faction as the real Shiv Sena will have no bearing on the decision of the speaker, who has to make a decision considering the facts on the day the act incurring disqualification was committed (see Part II of this series for a detailed critique).

The decision of the ECI under paragraph 15 of the Symbols order will only be prospective in operation. The court also held that the proceedings under paragraph 15 of symbols order cannot wait until the final adjudication under the Tenth Schedule. This is because, the ‘test of legislative majority’ is not the only test but merely one of the factors to be considered while making the decision. When legislative strength is in doubt (example, when disqualification petition is pending), other factors should be given greater weight.

Importantly, the court here is envisaging similar roles for the Speaker and the ECI in deciding who is ‘real’ Shiv Sena, albeit for different purposes, by banking on the impartial role that the Speaker ought to play. The factors which the Speaker has to consider overlap with the factors which the ECI considers while resolving factional disputes. In both cases, the Court discouraged using the ‘test of legislative majority’ and suggested looking for the structure of leadership outside the legislature (para 168), and other factors in cases where legislative strength is a matter of dispute, as in this case, because of pending disqualification petitions. In this scenario, it is entirely possible for the Speaker and ECI to reach different conclusions on which faction or group is the ‘real’ political party for the purpose of disqualification and granting symbols, respectively. Here again, the role, position and capacity of the Speaker to perform the task is doubtful. Since the Speaker could well be a member of a political faction, his functioning will be biased towards a particular faction. In absence of objective criteria like the strength in the legislature, subjective political considerations are bound to play a decisive role. This might result in the Speaker being the kingmaker, with his faction being saved from the proceedings of disqualification. It might be said that the decision of the Speaker is subject to judicial review, but once again, with the time factor making the crucial difference, it is unclear how effective this will be (as the present case itself amply demonstrates); furthermore, the repeated need for judicial involvement, thereby increasing the role of the judiciary in settling disputes of political nature, will not bode well for a constitutional democracy and judicial independence.

The original sin lies in the Tenth Schedule, which envisaged a quasi-judicial adjudicatory role for the speaker, who nonetheless continues to be a member of a political party either de facto or de jure. Recognising the pattern of partisan actions by the Speaker, the court in Keisham Meghachandra Singh vs Hon’ Speaker Manipur, made observations regarding the need for an independent adjudicatory mechanism outside the house in the form of a tribunal. The speaker being an authority within the house, and his tenure being dependent on the majority will, the court reasoned, create a potential for bias. Similarly, in Shrimanth Baladaheb Patil vs Hon Speaker, the court recognized the growing trend of speakers acting against their constitutional role of being neutral. Hence, this case once again underscores the need for a revaluation of the Speaker’s role under Tenth schedule.

Conclusion

With factional disputes reaching the courts and repeated instances of constitutional functionaries disregarding their constitutional role which leads to judicial intervention, the Court is becoming an arena for waging political battles. This ‘judicialization of politics’ by increasing the role of the court might lead to the court being accused of political bias. Outsourcing political decisions and the constitutionally entrusted roles of other functionaries to the courts is a growing trend. This has happened with explicit or implicit acceptance of political actors in the hope of favourable judicial decisions or simply to avoid making a decision to escape accountability. With politically consequential decisions increasingly emanating from the bench, the judiciary becomes the target for control, with threat to its independence. In political disputes like these, balancing the opposing political interests in the backdrop of judiciary’s institutional interest, judges are made to engage in a political balancing act.

One high constitutional office that has been repeatedly accused of partisan bias is the office of the Speaker. Disregarding constitutional conventions by the Speaker has been a regular feature both in the parliament and the state legislatures. This political crisis is a feature of it; paradoxically, however, the judgement reinforces that very existing framework of the Speaker at the centre of the Tenth Schedule, which is the cause of the problems that brought this dispute to Court.

The Supreme Court’s Maharashtra Political Crisis Judgment – II: On the Tenth Schedule and the Symbols Order [Guest Post]

[This is a guest post by Yogesh Byadwal, and continues this blog’s examination of the Supreme Court’s judgment in the Maharashtra Political Crisis case. Part One is available here.]

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Recently, the Supreme Court announced its verdict in Subhas Desai v. Principal Secretary, Governor of Maharashtra & Ors. The court concluded that the Governor was not justified in calling upon Mr. Thackeray to prove his majority and the decision of the speaker in recognising the whip appointed by Shiv Sena legislature party(SSLP) was incorrect, since a whip can only be appointed by the political party. The court rejected the request of restoring status quo ante since Mr. Thackeray did not face the floor test and tendered his resignation.

In this post, I will focus on the part of judgement dealing with the relationship between the Tenth schedule and Para 15 of symbols order. The Tenth Schedule of the Constitution – or the anti-defection law deals with disqualifications of sitting members of Parliament and state legislatures on grounds of defection from their political parties. Para 15 of the Symbols order, on the other hand, deals with recognition of registered political parties by the Election Commission of India (ECI) for the purpose of allotment and reservation of election symbols to the recognized political party, and further allotment of election symbols to the candidates sponsored by them at the time of elections.

On the relationship between the two, the Supreme Court concluded that the respective outcomes need not be consistent because each is based on different considerations. The Court held that the adjudication of any dispute under these laws must be independent of each other, and the decision of one authority cannot be relied upon by the other for deciding the matter under its own consideration. I argue that the reasoning used by the court, while acknowledging that the two proceedings are intertwined, creates an artificial separation. I will highlight three major inconsistencies in this judgement which will lead to undesirable results in the future. I have divided the posts in three parts to put into perspective the various aspects of the judgement. I conclude that the reluctance on part of the court to put the controversy to rest in the present case has implication for representative democracy, as the abuse of these provisions will continue unabated.

Positives

The judgement begins striking all the right notes. It acknowledges the intertwined relationship of the Tenth schedule and the Symbols order while deciding intra-party disputes. It notes:

When the Tenth Schedule and the Symbols Order are invoked concurrently, complications may arise … if the ECI applies the ‘test of majority,’ it will be required to consider (among other things) which of the two factions enjoys a majority in the Maharashtra State Legislature. Therefore, which faction has a majority in the House will have some bearing on the outcome of the proceedings before the ECI. Whether or not a particular faction has a majority in the legislature will depend on whether members from that faction have incurred disqualification … the outcome of the dispute before the ECI may change depending on the outcome of the disqualification petitions.

I have previously argued here how the ‘different fields theory’ does not have an application when it comes to the Symbols Order and the Tenth Schedule. Rather, the decision under Para 15 of the Symbols Order has significant bearing on disqualification proceedings, since ignoring the same would have ‘irreversible consequences.’ Simply put, if the ECI decides that the rebel faction is the original political party, it would mean they never effectively left the party, engaged in anti-party activities, or defied any party whip. Therefore, the Speaker would have no grounds to disqualify the members. The observations in the judgement are clearly opposed to the reasoning which has been employed by ECI frequently in deciding Para 15 dispute – that Para 15 and the Tenth Schedule operate in two distinct fields. Also, the Court makes it clear that ECI is not supposed to use only the ‘test of [legislative] majority’ in each and every case as has been the practice post Sadiq Ali. Rather, the ECI can use other tests in order to reach a conclusion under Paragraph 15 of the Symbols Order, such as an evaluation of the majority in the organisational wings of the political party, an analysis of the provisions of the party Constitution, or any other appropriate test. This will help in preventing abuse of the provision by simply proving the majority in legislative wing as in the present case.

Objections

The SC judgement is, however, problematic in certain aspects. I will highlight three instances where the judgement is flawed in its reasoning.

Firstly, the judgement holds:

… disqualification relates to the date on which the act of defection takes place to mean that acts or events subsequent to the commission of the conduct prohibited under the Tenth Schedule, do not have an exculpatory effect. In other words, subsequent acts or events do not have the effect of curing such conduct or releasing the actor from the consequences which follow.

This essentially means that once a legislator commits any act or omission which makes him liable for disqualification under Para 2, the Speaker can disqualify such member any time thereafter notwithstanding any act or event in the intervening period of the act of defection and decision of disqualification proceedings.

In the present case, this would mean that even if the Shinde faction was declared the ‘original Shiv Sena’ under Para 15 of Symbols order, its members would still be liable to be disqualified by the Speaker since the members of the Shinde Faction stood to be disqualified by the speaker for defying the Chief whip of the party. In fact, the court held:

The decision of the Speaker recognizing Mr. Gogawale as the Chief Whip of the Shiv Sena is illegal because the recognition was based on the resolution of a faction of the SSLP without undertaking an exercise to determine if it was the decision of the political party … The decision of the Deputy Speaker recognising Mr. Ajay Choudhari as the Whip in place of Mr. Eknath Shinde is valid.

This means that Ajay Choudhari was the whip of the legislative wing of the party in the relevant point of time. The whip was defied by the Shinde faction during various occasions when the whip called to vote against the ‘vote of no-confidence’ which, in turn, calls for disqualification under Para 2(b) . The disqualification will not lead to automatic disqualification from the party but only from the house.

Now suppose that the Speaker today disqualifies the thirty-four MLAs of the Shinde Group. Which party will they belong to? On the reasoning used, it seems obvious that the MLAs are not disqualified from the party to which they originally belonged to i.e. the ticket of the political party from which their faction emerged, which in this case is Shiv Sena lead by Mr. Uddhav Thackeray.

However, in the same breath, the court notes:

The decision of the ECI has prospective effect. A declaration that one of the rival groups is that political party takes effect from the date of the decision.

This observation would mean that the Shinde faction is the real Shiv Sena, and at the helm of the internal matters and decision. Here, my contention is that if the disqualification will relate back to the date when the impugned act was committed, as the Court notes above, reading it with the observation that such member will remain the member of the party on whose ticket he contested election, only one conclusion can be reached: The disqualified member will still be the member of the party, as it existed then, during the relevant point in time, when the impugned act was committed. In this case, the party Shiv Sena was headed by Mr. Uddhav Thackeray during the relevant point of time. One could argue that ECI order declared the Shinde Faction as the Original Shiv Sena and, therefore, Thackeray faction loses claim to it. However, I am trying to reconcile this situation with the observation of the court that ‘it is up to the political party and its internal process to determine whether to expel a member’. It is hopeless to expect that any action will be taken against the Shinde faction since its members are heading the organization. In this sense, to uphold the intention behind Tenth Schedule, it is essential that the party, as constituted during the relevant point of time, should get an opportunity to decide whether to expel such members. Arguing on the Court’s reasoning only, ‘acts or events subsequent to the commission of the conduct prohibited under the Tenth Schedule, do not have an exculpatory effect’. Therefore, it would be immaterial what the Election Commission holds in the intervening period, as the ‘taint of disqualification does not vaporize.’

The SC also notes that if only some members are disqualified from the group awarded the symbol, then remaining members will have to again apply for a fresh symbol under the Symbols order. Why? Why should the members who are not disqualified subject themselves to symbol order proceedings when they already have been assigned a symbol? Which party did they belong to then? The court provides no answer to these questions. Instead, the reasoning in effect renders the order of the Commission nugatory and ineffective based on the decisions of the speaker under Tenth schedule proceedings.

Secondly, the court recognises the interrelationship between Tenth Schedule and Symbols order, when it notes:

Therefore, which faction has a majority in the House will have some bearing on the outcome of the proceedings before the ECI. Whether or not a particular faction has a majority in the legislature will depend on whether members from that faction have incurred disqualification.

The court here recognises two scenarios-

1. The ECI renders its decision prior to the Speaker’s decision on disqualification ( as in the present case), or;
2. The Speaker decides the disqualification proceedings before ECI’s decision.

It is evident that the latter situation is the ideal position. Symbols Order Para 15 disputes are usually resolved by applying the ‘test of majority’ (among others) to decide which faction is to recognised as the original party. If the disqualification proceedings are completed prior in point of time, ECI will have a clear picture as to which faction commands the majority by accounting for the disqualified members. This would remedy the current situation where the faction declared to the original political party is itself subject to disqualification proceedings. The absurdity of the same has been noted in the previous argument.

However, despite acknowledging the intertwined nature of the proceedings, the Court notes:

To hold that the ECI is barred from adjudicating petitions under Paragraph 15 of the Symbols Order until the “final adjudication” of the disqualification petitions under the Tenth Schedule would be, in effect, to indefinitely stay the proceedings before the ECI….The ECI, which is a constitutional authority, cannot be prevented from performing its constitutional duties for an indefinite period of time. Proceedings before one constitutional authority cannot be halted in anticipation of the decision of another constitutional authority.

The express concern is that preferring one constitutional authority over another will impinge on the authority of the other. Also raised is the concern of ‘indefinite delay’ which may happen if proceedings before ECI is delayed until Speaker decides disqualification proceedings.

However, the decision of the Court, in fact, enables the encroachment of one constitutional authority over the exclusive domain of other in two ways.

First, the decision notes in Para 157 that it is necessary for the Speaker to determine which is the ‘original political party’ at the time the alleged act of defection was committed. I will consider two scenarios here:

1. Speaker decided prior to ECI
2. ECI decides prior to speaker

Consider a situation where Party X is divided into two faction, A & B. A has 60 and B has 40 members. The Speaker decides that A, in fact, is the original political party on whose ticket members of the faction B fought the elections. Under the Tenth Schedule, speaker disqualifies the members of B faction from the assembly. Note that the members are not disqualified from membership of the party. Therefore, members of B, according to court’s reasoning, will be considered members of Party X after disqualification. In this scenario, even before the ECI decides Para 15 dispute, the issue has been pre-decided by the speaker. The decision of the speaker, then, will have a significant impact on the ECI’s determination, as legislative majority is one of the factors it must consider.

Second, as I have argued here, if the ECI decides the dispute before Speaker, the proceedings before the Speaker become nugatory. For instance, in the present case, the Commission declared the Shinde-faction as the original Shiv Sena party, which meant it never left the party or indulged in anti-party activities or defied any party whip. The pending disqualification petitions are effectively pre-decided by the ECI even before the Speaker. The SC, moreover, notes (excerpted above) that members of the group who have been awarded the original party symbol and not been disqualified from the house, will have to apply under the Symbols Order for a fresh symbol. Isn’t the SC undoing the ECI order under Para 15 order allowing the symbol?

As can be seen, either way, the decision passed by the speaker or the ECI is impinging on the decision making authority of the other by pre-deciding the issue and leading to undesirable results.

Third, the court interprets the deletion of Para 3 of the Tenth Schedule to mean:

The inevitable consequence of the deletion of Paragraph 3 from the Tenth Schedule is that the defence of a split is no longer available to members who face disqualification proceedings. In cases where a split has occurred in a political party or in a legislature party, members of neither faction may validly raise the defence that they are the political party in the event that each faction files petitions for the disqualification of members of the other faction. The defence sought to be availed of must be found within the Tenth Schedule as it currently stands…..The percentage of members in each faction is irrelevant to the determination of whether a defence to disqualification is made out.

The court realises, in fact, that in case where a split has occurred, the only recourse is to have the speaker decide which faction is the original political party. The numbers of the group will not matter; rather the ‘structure of the leadership’ determines the issue. However, the Court also notes that such determination will not impact any other proceedings including the proceedings under Paragraph 15 of the Symbols Order. The court is arguing that both the proceedings are independent of each other. It supplements this by saying that:

Whether the decision of the ECI under the Symbols Order must be consistent with the decision of the Speaker under the Tenth Schedule. The answer is no. This is because the decision of the Speaker and the decision of the ECI are each based on different considerations and are taken for different purposes

This raises the question of whether the court is wilfully ignoring the implications of the acknowledgement that the ‘tenth schedule’ and ‘symbols order para 15’ are intertwined. The aforesaid para gives a clear imprimatur that both constitutional authorities are clear to ignore the decision of the another despite the clear interrelated nature of the proceedings and the undesirable results that might follow. The court does not try to harmonize these processes. Rather, it argues on constitutional lines to argue that one constitutional authority cannot prevent the other from adjudicating where, on the other hand, it clearly allows them to effectively encroach on each other’s exclusive domain leading to undesirable outcomes.

Causes for Concern

It is disappointing that the judgment fails to put to rest the controversy even when it had the opportunity. In spite of recording that there exists an interrelationship between the Tenth Schedule and the Symbols Order, the Court stops short of providing any solution to the problem. This inconsistency is vulnerable to further abuse in the future. As in the present case, a rebel group within the legislature wing of the party may arise with ministerial ambitions, which, to escape the wrath of Tenth Schedule, will simply claim their group as the original political party based on numbers and hence appropriate the party as their own. The usual practice of the ECI to apply the ‘test of majority’ in such cases enables such tendencies, as it is satisfied with counting the numbers in the house rather than organization wing. This should sound alarm bells for smaller and regional political parties, where the numbers are easier to manipulate with allurements of money and ministerial posts. The present case exemplifies the abuse of this inconsistency, where the Party chief was himself ousted and his party appropriated by his legislators without any determinations as to the organisational structure or support in the organisational wing of the party.

For this reason, the Petitioners requested the court to lay down a ‘constitutional sequence’ to decide such matters which would ensure fairness. They proposed that the ECI must render a decision only after the Speaker decides the Tenth schedule petitions. However, on constitutional lines, court rejected this request. I have already established in this post why this is wrong. Also, if looked from constitutional lens, the request was in fact valid. The Tenth Schedule, which is part of the Constitution, must have precedence over over a statute such as the Symbols Order (see here) Thus, the Court’s reluctance to resolve the issue is unwarranted, and could lead to similar situations arising in the future.

Guest Post: For Reasons of the State – II: Notes on the Judicial Legacy of Justice M.R. Shah (Taxation)

[Editor’s Note: This is a guest post by Deepak Joshi, and is the second part of a two-part series on the judicial legacy of Justice M.R. Shah. It deals with the issue of tax jurisprudence, ought to be read along with – and complementary to – Part One, by Abhinav Sekhri, which examined Justice Shah’s legacy in the field of criminal law.]

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An examination of a judge’s contribution to the tax jurisprudence can be conducted in the context of the underlying themes of taxation. Do the judgments authored by the judge further build on the basic themes of tax law and policy or whether the judgments depart from the settled canons of tax law & policy without rhyme or reasons? To answer this query in the right earnest, one must embark on a quick journey on the importance of tax policies, basic tenets of tax law, and how Indian jurisprudence has stuck close to those basic tenets. It is only then can we analyse how far, how extreme, or how close to them the judicial philosophy of Justice M.R. Shah in tax matters has been.

The year 1776 is considered important as far as taxation is concerned. Constitutional law scholars, legal historians and political commentators refer to it as the year in which the Declaration of Independence of the United States first came into being. The importance lies in the fact that the Declaration of Independence came after years of struggle & protests against the unfair and arbitrary taxation policies adopted by the British Crown in its American colonies. Quite apart from this, Adam Smith also published his seminal work – The Wealth of Nations – in the year 1776. Adam Smith gave us the four essential canons of taxation – equality or equity, certainty, economy and convenience.

Indian tax jurisprudence has long recognised the above concepts in deciding disputes between taxpayers [“assessees”] and the tax department [“Revenue”]. The Hon’ble Supreme Court (“SC”) in the case of Commr., Commercial Tax U.P vs M/S Oswal Greentech Limited  has observed that consistency and certainty in tax matters is necessary. Clarity in tax law is necessary. The SC has acknowledged that the interpretative vision should also be on the same lines. The Court, in Principal Commissioner of Income Tax, New Delhi vs. Maruti Suzuki India Ltd. stated in no less emphatic terms that there is a value which judiciaries must abide by in promoting the interests of certainty in tax litigation. Not doing so will only result in uncertainty and displacement of settled expectations. There is thus a significant value which must attach to observing the requirement of consistency and certainty. Individual affairs are conducted and business decisions are made in the expectation of consistency, uniformity and certainty. To detract from those principles is neither expedient nor desirable.

Thus, the impact and importance of tax laws and policies, aided by sound judicial interpretation, cannot be understated. It is in this backdrop that one should examine the contribution of Hon’ble Justice M.R. Shah (“Justice Shah”) insofar as tax jurisprudence is concerned (covering the Income Tax Act, 1961 (“ITA”), GST, etc.). This becomes all the more important in view of the fact that the Chief Justice of India, acting as the master of the roster, had appointed two tax benches last year, one of which was headed by Justice Shah.

Judicial introduction of onerous conditions for taxpayers

Under various indirect tax laws, there is a concept of input tax credit (“ITC”). In simple words, an assessee purchases goods/services and pays the tax on such purchase. At the time of onward sale of same goods/services or finished products, the assessee collects tax on such sale. However, while discharging its tax liability for the relevant period, an assessee is entitled to avail ITC of the tax paid on purchases and thus deposit only the net amount after deducting the ITC to the tax department. This helps in better fund management and also avoids the cascading effect of tax on tax. The conditions for availing such ITC are often mentioned under the relevant statute. One such statute which fell for consideration before the SC in State of Karnataka vs. Ecom Gill Coffee Trading Private Limited was the Karnataka VAT Act, 2003 (“KVAT”). As per Section 70 of the KVAT, the burden of proving the genuineness of a transaction for the purpose of availing ITC is on the purchasing dealer. Admittedly, the provision does not prescribe the nature of documents to be produced or obligations for discharging such burden. The High Court (“HC”) in this case had allowed the claim for ITC on the ground that the sale price was paid to the seller by an account (AC) payee cheque and that copies of invoices were produced. The tax department was in appeal against this judgment before the SC. Justice Shah reversed the finding of the HC, thereby introducing onerous & stringent conditions for availing ITC. It was held that the dealer claiming ITC has to prove beyond doubt the actual transaction which can be proved by furnishing the name and address of the selling dealer, details of the vehicle which has delivered the goods, payment of freight charges, acknowledgement of taking delivery of goods, tax invoices and payment particulars, etc. The aforesaid information would be in addition to tax invoices, particulars of payment, etc.

These documents and obligations are absent under the relevant law. Yet, Justice Shah wrote a judgment expanding the scope of the Assessing Officer’s (“AO”) powers to reject a taxpayers claim to ITC. It is important to note that the SC has rejected reliance on payment through banking channels. A direct fall-out of such an expansive proposition can be felt in other similarly worded tax laws (including GST) wherein the tax department can now insist on onerous documentation even though the transactions have been made through banking channels. The other fall-out is the test of the discharging the burden “beyond doubt”. The “beyond doubt” test (which is borrowed from criminal law, and is generally thought of as a burden on the State), without any guidance or determinative factors, unnecessarily burdens the buyer. A long list of judgments under indirect tax laws have stated that the buyer will not be penalised for a tax fraud committed by the seller. The legislature in its wisdom prescribes/doesn’t prescribe documents/obligations for the discharge of the burden, keeping in view the case to case peculiarities of commercial transactions. A judge-made condition/obligation, with no reference to the underlying law, muddies waters and complicates the implementation of law. It has the tendency to become a weapon in the hands of tax department, rather than a measure of regulation.

Article 142 – complete injustice

In Ashish Agarwal, the tax department had challenged the quashing of tax notices for reassessment which were issued under the unamended section 148 of the ITA, when in fact, the ITA had already been amended with the introduction of a new regime for reassessment under section 148A. Various HCs in the country had ruled in favour of the taxpayers stating that such notices couldn’t have been issued under the unamended provisions (as those provisions had been replaced by the new regime). However, in the appeals, Justice Shah invoked Article 142 (i.e., the power of the Court to do “complete justice”) of the Constitution to validate tax notices issued for reassessment of income of the taxpayers. The use of Article 142 powers in tax matters has been the subject matter of debate between legal luminaries (here and here). Leaving the larger debate aside, a reading of Justice Shah’s decision makes it clear that there was no ground available to the SC for invoking Article 142.

Justice Shah acknowledged the following important aspects in his ruling:

1. The introduction of section 148A is a game changer
2. Under the new regime, there is a change in procedural safeguards
3. The notices ought not to have been issued under un-amended law but under the new provision of Section 148A
4. There was genuine non-application of the amendments

A reading of the above observations would give an impression (rightly so) that the amended provision is a substantial change in law and affects the procedural safeguards as well vested rights of the assessees. Ordinarily (and after having acknowledged that the notices were wrongly issued), the HC judgments would not have been disturbed at all. However, after observing the above, Justice Shah, suo motu, noted that it was a bona fide belief of the Revenue (i.e., the State) that amendment wasn’t made effective. It is on the basis of this observation, completely unsupported by law and bereft of any reasoning, that the SC concluded that some leeway ought to be given to the tax department and deems (through a legal fiction) the old notices to be issued under new regime.

This is a leap of faith in as much as the court is effectively stating that though the Government has notified the amendment, its own machinery is blissfully unaware of the same (and is entitled to benefit – at the cost of the assessee – from its own lack of awareness). What is even more interesting is that this wasn’t even the case of the department. The order doesn’t state this as the Union’s contention or argument. There was no scope for invocation of the discretionary powers of the SC under Article 142 in view of the aforementioned findings. It further ignores the now famous dictum of Justice HR Khanna that it is essential that those who are entrusted with the task of calculating and realising taxes should familiarise themselves with the relevant provisions and become well versed with the law on the subject.

Apart from this, the ruling very conveniently ignores ignorantia juris non-excusat (“ignorance of law is no excuse) to show some leeway to department. This strikes at the very root of the doctrine of strict interpretation of tax laws and also goes contrary to the canons of taxations as enumerated by Adam Smith.

Expanding the scope of tax department’s jurisdiction

Transfer Pricing litigation revolves around factual issues, such as use of comparable companies in the transfer pricing study, financial ratios, functions-assets-risk analysis or the method adopted to determine the arms’ length price under Chapter X of the ITA, namely, Sections 92, 92A to 92CA, 92D, 92E and 92F of the Act and Rules 10A to 10E of the Rules. An appeal to the HC lies only on substantial question of law. The tax department has to show some perversity in the order of the tax tribunal. HCs have refused intervention in transfer pricing litigation on grounds that the tax tribunal is the final fact-finding authority. However, Justice Shah in SAP Labs India Pvt Ltd disturbed that sense of finality that many taxpayers had achieved in transfer pricing litigation at the tribunal level. More damaging are the observations wherein the SC states that the HC can now examine whether the factual issues have been considered judiciously and on the basis of relevant material. While stating so, Justice Shah has not laid down the parameters to decide what is judicious or relevant and what is not. Hence, the gates have been opened wide for the tax department to now question each and every factual aspect of the transfer pricing litigation.

Restricting the rights of taxpayers

In Wipro Ltd, the SC was faced with the issue of whether a claim once made in the original return can be subsequently withdrawn by filing the revised return under section 139(5). The assessee had initially claimed deduction under section 10B of ITA while filing the original return and had thus opted not to carry forward the loss in view of the income being exempt. However, subsequently it filed a revised return by giving up claim under section 10B and reinstating its claim of carry forward of loss. The department sought to disallow the same in view of the fact that the said option was not exercised within the due date of filing of return as required under section 10B(8) and according to it, the same could not have been done by filing revised return. Justice Shah denied the deduction to the assessee on the grounds that the an assessee claiming exemption has to strictly comply with the conditions.

Justice Shah based his judgment on the premise that Section 10B is an exemption and hence the conditions mentioned therein had to be strictly construed. However, in doing so, Justice Shah lost sight of the ruling of the SC in Yokogawa India Ltd. wherein it has been held that Section 10B is a provision for deduction and not an exemption. Hence, the test doesn’t apply in its strict sense.

Further, Justice Shah denied the withdrawal of claim under the revised return under section 139(5) on the basis that the withdrawal of claim would fall outside the scope of section 139(5). This finding is bereft of any reasoning or analysis. Finally, there was no discussion whatsoever on the long standing judicial precedent in Jute Corporation of India which has held that an assessee can make additional claims to the claims not made in the income tax return, at the stage of assessment as well as appellate proceedings. Hence, substantial rights of the assessees have been restricted without any meaningful discussion on the statutory scheme or judicial precedents.

New doctrine – department cannot be left remediless

Justice Shah has time and again incorporated a previously unknown doctrine to grant some relaxation or benefit to the tax department i.e. “the department cannot be left remediless.” For example, in Abhisar Buildwell, after holding in favour of the taxpayers that the department cannot make additions to the income in absence of any incriminating material under section 153A of the ITA, Justice Shah nonetheless went on to hold that the power of tax department to reassess income under the general provision section 147/148 ought to be saved, otherwise it would be left without remedy. The conspectus of the matter would reveal that there was absolutely no need for such an observation because this was never the issue in question. This seemingly innocuous finding has given the tax department enough powers to seek reassessment of income in the same proceedings in which they have failed under section 153A, even though the period of limitation may have lapsed. On similar lines, in Ashish Agarwal, Justice Shah decided to give some leeway to the tax department only after observing that the department cannot be made remediless.

This benevolent test of being left remediless has never been applied in tax jurisprudence before these judgments, and is unheard of. The consequence of such observations has also lead to complications post the pronouncement of judgments. As an exhibit, after the Abhisar Buildwell matter, the Union filed a clarification application seeking clarification that the notice under section 148 could be issued notwithstanding the fact that the period of limitation has lapsed.

Conclusion

It has now been well recognised that arbitrary assessments and procedures of taxations are reprehensible. It is social injustice by the tax collector to the people. It is the court’s duty to not be an enabler of such social injustice through whimsical taxation. A careful analysis shows that the judgments of Justice Shah have resulted in:

1. Enlarging the procedural powers and substantial jurisdiction of tax department at the cost of restricting or reducing the rights of the taxpayers.
2. Using of judicial discretion in favour of tax department, where no such room for discretion existed in the first place.
3. The interest of tax department has been put on a higher pedestal, to an extent where even if the department has faltered, it cannot be left remediless.
4. Well established judicial precedents have been disturbed to give a fresh lease to the actions of the tax department.
5. Reduced certainty and clarity in implementation of tax laws in the country.

A perusal of the above reveals that Justice Shah is leaving behind a legacy which will be remembered for expanding the scope of the State power, taxation being a small but important aspect of it. Justice Shah’s tax jurisprudence has indeed been an enabler of inflicting social injustice at the hands of the tax collector. Justice Easwar had once held that a court cannot impose its moral standards in tax matters as there is no equity about a tax. Viewed thus, Justice Shah’s judicial philosophy in tax matters has been far away from and at odds with the basic philosophy of taxation i.e. equity, certainty, economy & convenience but tied very closely to the moral standards that he may have held.

Guest Post: The Notice Regime under the Special Marriage Act

[Editor’s Note: The present editor is involved in the equal marriage case before the Supreme Court, in which judgment has been reserved. A part of the case included a challenge to the notice-and-objection regime under the Special Marriage Act. By way of disclosure, this guest post was submitted independently to the blog, through the normal submission channels, after arguments had concluded, and was reviewed and accepted in the same way.]

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[This is a guest post by Rehan Mathur.]

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The Supreme Court articulated its disapproval with respect to the notice regime under the Special Marriages Act (‘SMA’), during the recently concluded same-sex marriage hearings. While this case may not be the specific case to adjudicate upon these provisions, the time is right to remove these provisions from the statute books given the advances in jurisprudence surrounding decisional autonomy. These provisions must be removed from the SMA if any recognition of same-sex relationships (whether under marriage or civil union) is to be of any real value given the social realities of oppression and violence faced by couples marrying under the Act, which have been well documented here and here.

Section 5 of the SMA requires parties intending to marry to give a notice in writing to the Marriage Officer of the district in which at least one party has resided for minimum 30 days immediately preceding the date on which the notice is given, while Section 6 mandates such a notice to be published at a ‘conspicuous place’ and allow any person desirous of inspecting such notice to do so at any time. Further, Section 7 allows individuals to raise objections to the marriage within 30 days after the publication of the notice while section 8 empowers the marriage officer to stop the solemnization of such marriage if they uphold the objection.

For the purpose of the article, I analyse specifically sections 5-8 of the Special Marriages Act, by unpacking the legislative intent of the provisions and analysing the provisions as a whole to argue that the notice regime is violative of the Right to Privacy under Article 21. I conclude, that any recognition of same-sex relationships under the SMA must also be followed by removal of the notice regime under the SMA for such recognition to be of practical value.

Tracing the legislative history of Notice Requirements

The present SMA has been greatly influenced by Act III of 1872, which attempted to introduce civil marriage based on contract in India for those interested in marrying without the restraints of religion. This Act was heavily contested by the orthodoxy of the time. A prime example of this was that while one of the draft bills required a five-day residential period and permitted solemnisation five days after the publication of notice, the Act eventually included a residential requirement of 14 days in the district the marriage was to be registered before the submission of the notice, much like how presently section 5 stands. Similarly, such a 14-day period was to be observed after the publication of the notice after which the marriage could be solemnized.

Such an extension was put in to satisfy the orthodoxy who wished to give time to families before the marriage was solemnised to travel to the district where the notice of marriage was registered to put up their objections to the marriage. Clearly, this displayed the preference of the law to include the parents and by extension, society as stakeholders in the marriage. Such marriages of “choice” were viewed as ones which would, after the Act’s passage promote unions whose foundation lay in lust and ‘carnal desires’ of men. The infusion of public morality in viewing the role of women in such marriages was clear as a binary was created. A “corrupt” woman would begin to live with their paramour as husband and wife on one hand while the other woman was the innocent, gullible, easily seduced one whose chastity had to be protected.

Post independence, when the Special Marriage Bill, 1952 was introduced, some members of the Lok Sabha advocated for extending the residence requirement period to thirty days. The members argued that such an increase was necessary to prevent the runaway couple from getting themselves registered in an unknown place without adequate notice to the parties who are really interested in the marriage. This was clear legislative disapproval of so called ‘run-away marriages.’ This is reflected in Section 7 as well which allows ‘any person’ to object to the marriage on the ground that such marriage would contravene some conditions specified in section 4.

The present section 6(3) was also a new section inserted in the Special Marriage Bill which got activated in situations where the notice given was in a district where neither party was permanently residing. In such a situation, the Marriage Officer has an obligation to transmit a copy of the notice to the Marriage Officer of the district the parties are permanent residents of. Such a copy must also be affixed on some conspicuous place. This provision ensured that the notice was sent to the home-town of the parties where it was easier for the families to find out and obstruct the intending couple from marrying.

All these additions clearly indicate the moral reprehensibility of Inter-faith marriages in the opinion of the state. Such marriages are viewed from a lens of public morality and other than the couple, the larger public was also a stakeholder and an interested party in the marriage. It is thus clear, that at the time of the passage of the SMA, the main intent for inserting the 30-day residence and objection requirement was to give a notice to the general public and the families of the parties. However, the intent of keeping the notice regime has at present changed. The Union of India, in its counter affidavit, in a plea challenging the 30-day public notice period in the Delhi High Court, argued that without the 30-day objection period, it would not be possible to verify the credibility of parties involved.

However, it is curious to note that such verification requirements are missing with respect to couples marrying under other laws. Thus, the question arises, why essentially is the state interested in verifying the credibility of only a certain type of couples? The answer seems to be the same, packaged in different wording. Even today, the state looks at inter-faith, inter-caste and possibly same-sex marriages with fear and thus, seeks to restrict them through the backdoor by continued application of such provisions.

Constitutionality of Sections 5-8: Violation of Right to Privacy?

Though made in the context of inter-caste marriages, Justice M. Katju in Lata Singh observed, that in a free and democratic country, a major can marry whomsoever they like. The maximum that disapproving parents can do is cut off ties with their wards, but they “cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage.” In Shakti Vahini, while holding that the choice of an individual is an inextricable part of dignity, the court recognised the right to marry while giving primacy to the consent of the consenting adults. An erosion of such a liberty and choice, envisaged under the constitution could not be compatible with the dignity each individual possesses.

This position was buttressed in Shafin Jahan, where the court held that the right to marry a person of one’s choice was a fundamental right under Article 21. Since the Constitution protects the choice and ability of each individual to pursue their way or life, faith and matters of love and partnership are central to individual identity, society has no role to play in the determination of who consenting adults should marry. Since members of the LGBTQ community are equal citizens capable of enjoying the full range of constitutional rights including the liberties protected by the Constitution, as was recognized in Navtej Singh Johar.

Similarly, decisional autonomy has also found a place within the scheme of Article 21 under the Right to Privacy. In Puttaswamy, Justice Chadrachud concluded that “privacy includes at its core, the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.” He observed further, though in the context of sexual orientation, certain rights were elevated to the pedestal of fundamental rights to protect their exercise from sanction of popular majorities, recognising how insular minorities face discrimination due to non-adherence of norms. Such a position also affirms how popular acceptance (or lack thereof) of same-sex marriages cannot in any way be a valid basis to disregard the couples’ fundamental right to marry whoever they wish to. The reference to the term “popular majority” clearly displays the rejection of curtailing of decisional autonomy in the face of public morality.

It is clear that by requiring the marriage officer to publicly affix the notice of marriage under section 6 which in many situations leads to harassment, boycott and even threats to the life of the intending couple, is an unwarranted invasion of their privacy, in a matter that is extremely personal. By allowing any person to object to such a notice clearly violates the dictum of the Supreme Court in recognising the primacy of the intending couple to marry, allowing public morality and social approval to restrict the rights of the couple. These provisions force consenting adults to choose between two alternatives, their freedoms or the possibility of violence and repression. Such a choice is antithetical to the constitutional morality envisaged under article 21 which places the individual at the centre and not society.

Limitations to the Right to Privacy

While it is established that the notice requirements violate the Right to privacy of couples, the central government has argued that the right to privacy can be restricted in the context of the SMA, under social, moral and compelling public interest. While it is true that even Article 21 can be restricted by the state, this test for restricting the Right to Privacy does not form a part of the plurality judgement in any case. However, reading Justices Chadrachud and Kaul’s judgements reveals a four-fold stringent test to determine state intrusions into privacy. The test is as follows:

(i) The action must be sanctioned by law; (ii) The proposed action must be necessary in a democratic society for a legitimate aim; (iii) The extent of such interference must be proportionate to the need for such interference; (iv) There must be procedural guarantees against abuse of such interference.”

Necessity & Legitimate Aim

In the plurality opinion of Justice Chandrachud, the requirements of a legitimate state aim are enunciated, which hold that the nature and content of the restriction imposing law must fall under Article 14 and should not suffer from manifest Arbitrariness. In Shayara Bano, it was held that “manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle.”

In differentiating marriages under the SMA and other personal laws, it is clear that there is no rational determining principle in light of each individual’s right to marry on the basis of their choice. There appears to be no rationality in ghettoising couples marrying under the SMA who clearly do not meet the requirement of an ‘intelligible differentia’. Even if an intelligible differentia is made out, there is no a rational nexus in distinguishing between couples marrying under the SMA and other personal laws. Both types of couples possess the same decisional autonomy, yet couples under the other acts are not subject to notice requirements. Is there really any ground for differential treatment other than non-adherence to social norms? 

As the history of the SMA has shown, the aim of the notice provisions is one which was designed to include the consent of third parties, who have no stake in the marriage and restrict the right to marry of the intending couple. In Satyawati Sharma, the SC argued that a legislation could be struck down even if it subsequently became arbitrary or unreasonable. Even if it is assumed that the aim of the notice requirements at the time of enactment was reasonable, given the wide recognition of rights at present, the notice requirements must be deemed to be unreasonable and arbitrary to the extent they limit decisional autonomy of an individual. In the present day and age, such an aim is neither legitimate nor necessary in a democratic society as it clearly restricts decisional autonomy under the larger scheme of the Right to Privacy by prioritising social approval and discriminating against couples marrying under the SMA.

Proportionality Test

Arguendo notice requirements have a legitimate aim of checking the “creditability of the parties involved”, the provisions of the SMA must meet the proportionality test which mandates that there must be a rational nexus between the aim of the infringement and the means of achieving such an aim. The law must minimally infringe rights in this process. Alternatively, if it is established that the state can achieve its goals through a less intrusive method, the law would not be proportional.

It is clear that that there is dissonance between the aims of the provisions and the method adopted. How exactly is a marriage officer seeking to ascertain the veracity of the parties by the publication of a notice with all the private details of the couple? The Marriage Officer can easily ascertain the identity, residence of couple by the documents submitted at the time of the registration. From the realities on ground, it is clear that a public notice is not used for any rational ascertainment but rather for disclosure of private details of the parties allowing others to disproportionately intervene in the marriage.

Conclusion

The history of the SMA reveals the inclusion of such sections in the Act to allow families and other members of society to object to and stop marriages which are seen to be deviant and invoke strong social disapproval. These provisions have had the intended effect of harassment of such couples, the non-solemnisation of their marriages and the state and society playing a greater role in determination of partners. The provisions of the SMA have consistently acted as impediments in special marriages by making the process of marriage more public, time-consuming and onerous for the intending couple.

All the arguments presented above apply to same-sex relationships as well which invoke strong social disapproval. Merely coming out, leave aside publicly declaring the intention to marry someone from the same sex in a society entrenched in patriarchal practices centred around family reputation and warped conceptions of honour is something extremely difficult for members of the LGBTQ community to do. Noting the experiences of other couples marrying under the SMA, reveals that continuing with the notice regime would leave same sex couples (individually and collectively) open to harassment, violence and ultimately non recognition of their relationships. This could take place either by sending marriage notices to the residential address of the couples by the police (a practice later stopped by the Delhi HC) or by being locked up in one’s own home, requiring a Habeas Corpus petition to be filed to be free, or even being forced to publish the notice of their marriage in a national newspaper.

All these actions constitute arbitrary and unreasonable intrusions in an extremely private matter, unreasonably restricting the exercise of decisional autonomy and a possible recognition of same-sex relationships which could take place within the SMA. Unless the notice regime is done away with, any sort of recognition of same-sex relationships will be merely illusory in nature leaving same-sex couples exposed to violence from the family and pressure groups.

Guest Post: For Reasons of State – Notes on the Legacy of Justice M.R. Shah

[This is a guest post by Abhinav Sekhri.]

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A tradition of this blog has been to chronicle the tenures of Chief Justices at the time of their retirement. Limited exceptions to this tradition have discussed the tenures of specific judges. This post adds yet another entry to that list of exceptions, discussing the tenure of Justice M.R. Shah, who retired on May 15, 2023. Justice Shah was an extremely prolific member of the Bench (by one account the most prolific thus far) and it is beyond my competence or ability to engage with all of his contributions in various fields of law. Instead, I attempt to engage with his forays in the realm of criminal law and procedure, which were not insubstantial either. 

Constitutional lawyers ignore criminal law adjudication at their own peril. The frontiers of criminal law are the frontiers of personal liberty, and there could be no dearer value within a constitutional setup which respects human dignity and autonomy. Looking at how courts and judges deal with criminal law issues, then, offers us a lens into their overall thinking on issues of personal liberty vis-a-vis state power.

A spectrum of approaches is on offer. At one end of the spectrum is an approach emphasising the ‘culture of justification’ embodied in a constitutional setup that demands strict justifications for state action depriving, or imperilling, personal liberty. At the other end, there is an approach which pays deference to state power and instead assumes its justified nature, placing the burden of exhibiting otherwise upon the individual, and only intervening when an exceptionally strong case is made out.        

Where would we place Justice Shah’s judicial approach within this spectrum? This post argues that the philosophy of deferring to, and unconditionally trusting, state power and judicial discretion in the criminal process shines through his approach in matters of criminal law. This meant adopting a default position of trusting the state’s case as well as expanding judicial discretion (at the cost of ‘bright-line’ procedural safeguards for accused individuals), in order to secure what are felt as ‘correct’ outcomes. It is not as simple as terming the approach ‘anti-liberty’ or ‘anti-bail’ and moving on. Granted, personal liberty was an obvious casualty in an approach based on not questioning state power, but what Justice Shah embodied is a classic belief in the correctness of state power and judicial discretion: any deprivation of individual liberty that might be caused in the process was, therefore, justified. In this, he continued the views of a long line of judges, the most outstanding exponent of the tradition probably being Justice M.H. Beg, exhibited by the “motherly care of detenus by the state” remarks made in ADM Jabalpur while upholding the exclusion of the right to enforce fundamental rights during the Emergency.  Or even – going further back – all eleven Justices in Kathi Kalu Oghad, who held that ‘mere’ questioning by police cannot be presumed as carrying an element of coercion.

On Matters of Procedure

Justice Shah delivered some notable decisions in the realm of criminal procedure. Besides rulings on specific issues – which I will turn to in a bit – I want to first flag a general theme of his decisions in this arena. I would label this the ‘standard of review’ line of thought, which we see in his engagement with appeals from High Court orders granting / rejecting bails, quashings, or acquittals.  

On the one hand, Justice Shah (often while sitting with the then-Justice Chandrachud) frequently set aside orders granting bail/anticipatory bail, finding those to be insufficiently reasoned, and sent the accused back into custody. The insufficiency was, predominantly, on grounds of the merits of the case: that the judicial orders granting bail either did not consider the serious offences involved in the case, or did not do so in their proper perspective [see here, here, and here]. As he notes in an interview in response to a question about his approach to bail, it is his belief that murder cases or serious frauds are not those where bail should ordinarily follow. On the other hand, at the same time, Justice Shah set aside orders that had quashed criminal proceedings on grounds that too detailed an examination of the merits had taken place by the courts below, as such an approach short-circuited the trial process [see here and here]. He, much like many predecessors, strongly emphasised that the scope under Section 482 of the Criminal Procedure Code for the High Courts to stay investigations or quash cases was minimal, going so far as to narrow it even for quashing cases following settlements between parties [see here, here, and here]. 

Two features of such an approach deserve highlighting. First, its unyielding support for the cause of judicial discretion, and that too only at the apex level. The only winner here is litigation at the Supreme Court, because nobody knows how to judge whether the factual engagement by the courts below was too little, too much, or just right – apart from the Supreme Court itself, of course. The second is that the approach is an inherently inconsistent one: it involves looking at facts in one preliminary setting (bail) but not another (quashing). The interpretive choices only make sense when we place them within the broader preferences of trusting state power and using judicial discretion to do justice in each case rather than be hemmed-in by any perceived rules (many of which are – as indicated above – bright-line procedural safeguards meant to protect accused persons from State power (including – it appears – discretionary judicial power!))

This brings us to the judgments on specific issues. Justice Shah wrote the opinion for a Constitution Bench in Mukesh Singh which resolved a short conflict in the law that came up in 2019. The issue here was the impact on the fairness of investigations, where the official who was the first informant (say, where the officer lays a trap) continues the investigation. A three-judge Bench in 2019 held that such a circumstance would vitiate proceedings on grounds of perceived bias, going against earlier decisions which required some proof of bias or prejudice to be shown [for a longer discussion, see here]. In tune with an approach that is built on trusting state power and retaining judicial discretion at the cost of bright-line procedural safeguards, the unanimous Constitution Bench opinion authored by Justice Shah held that such a circumstance by itself would be insufficient to vitiate proceedings without some other facts showing prejudice (which would be judged by the Court). 

Then there was the stay and eventual reversal of acquittals awarded by the Bombay High Court to Prof. G.N. Saibaba, amongst others, on grounds that there was no proper sanction to have conducted the prosecution in the first place. The final order is in the nature of a concession by parties and ought not to be looked at independently of the first order which had kept the acquittal in abeyance and, arguably, resulted in that concession. The circumstances in which that first order was passed have been chronicled on this blog. Here, I want to present the issue from the lens of Justice Shah’s judicial philosophy. The choice was between supporting an acquittal in a case involving serious allegations of terrorist acts, without even considering these facts but adopting a strict rule-based reading of procedural law (i.e., that an absence of proper sanction to prosecute vitiates the case and must result in an acquittal), as against an approach which treated any procedural non-compliance as one instance in a panoply of factors including the merits of the case, and leaving sufficient room for the judge to decide (and, in the process, push through his own convictions). There was only one outcome.

More recently, Justice Shah delivered two opinions in the field of custody and bail which strongly reflect the underlying philosophy I identified. First, there was Vikas Mishra, a case involving allegations of corruption and money laundering. As per an earlier decision of the Supreme Court, police custody remand could only be granted during this period of the first fifteen days after an arrest. In Vikas Mishra, the state challenged orders denying police custody remand outside of this period, claiming that the cunning accused had been admitted to hospital for the first fifteen days, and citing the deleterious impact it cast on an investigation which pertained to serious offences. Not only did Justice Shah grant the request agreeing with the state’s contentions that the medical ailments appeared a convenient development designed to frustrate the police custody remand, he went ahead to recommend revisiting the earlier case law which projected a bright-line rule of no police custody beyond the first fifteen days of arrest. 

Finally, there is Gangi Reddy, where Justice Shah allowed a request by the state to cancel ‘default bail’ that had been granted in a murder case. Default bail refers to a species of bail which accrues as an indefeasible right to an accused who is arrested and detained during an investigation, and police fail to complete the investigation within 60 / 90 days (time limits depend on the alleged offence). It does not matter what the alleged offence is – if the time limit is crossed, the person must be released (if she is willing to comply with some basic conditions). In Gangi Reddy, the state requested for cancelling default bail on ground that a chargesheet had been filed and it carried serious allegations against the accused (as if a chargesheet would contain non-serious allegations, but that is besides the point!). Using pre-existing ambiguity in the standard for cancelling default bail — there must be ‘strong reasons’, whatever that meant — the Court allowed the request [discussed in detail here]. 

While doing so, the judgment highlighted the hallmarks of Justice Shah’s judicial approach. The rule-based setting of default bail which was agnostic to the seriousness of allegations had often been diluted in the past. Justice Shah took that line of thought much further in Gangi Reddy by suggesting that any default bail would forever remain contingent upon the seriousness of allegations disclosed in the chargesheet, whenever it was eventually filed. Moreover, he emphasised the harms of any rigid approach which excluded discretion: what if default bails for serious crime like murder were secured by corrupting police into delaying the investigation? That default bail entailed necessary loss or life and liberty for 60 / 90 days was, presumably, a minor detail and justified cost to secure the sanctity of the process and make the right call.

On Matters of Substantive Law

Justice Shah, to my knowledge, did not author many judgments exploring the boundaries of substantive criminal law. His most important contribution in the field was authoring the lead opinion in the Three Justices’ review of Arup Bhuyan (there were separate concurring opinions as well). 

In an earlier time, when the practice of law was perhaps less insecure about foreign precedent (or less pompous about Indian jurisprudence), the Supreme Court in Arup Bhuyan, Raneef and Indra Das had considered judgments from other jurisdictions to point at the unfairness of an expanded doctrine of guilt by association which arose on a plain text reading of Section 3 of TADA, Section 10 of the UAPA, and other allied offences. These judgments had held that it would require establishing an ‘active’ association to prosecute and convict a person on allegations of membership in a banned organisation, and mere membership would be insufficient. The Arup Bhuyan (Review) reversed this position concluding that there was no such requirement. While doing so, it laid great emphasis upon the perceived in-built check that the law only punished association after an organisation had been banned, which meant giving an opportunity for persons to sever ties and avoid facing prosecutions.    

There are many missteps in this opinion [see here] but something that deserves attention is how the Arup Bhuyan (Review) gives us a brief glimpse into Justice Shah’s approach to questions of substantive criminal law and the relationship between the state and the individual. For him, it was not a problem that ‘membership’ as a concept went undefined in the statutes. Nor was it a problem for him to prosecute persons for such an undefined nature of association with an organisation. What mattered to him was the fact that, at some point of time, a competent authority had made a decision designating a certain organisation as dangerous. Not your run-of-the-mill dangerous, but dangerous because of its threat to the unity and sovereignty of the state. The seriousness of state interests at play warranted broad offences potentially criminalising any membership rather than restricting the scope of offences at the outset. For Justice Shah, it was wrong to assume that the state would misuse powers flowing from broad-based offences by launching false prosecutions, because state power had to be trusted. Furthermore, any dangers of such action were mitigated by the robustness of the legal process where an accused had a chance to lead defence evidence to prove her innocence before a judge. 

The criminal process, on this reading, is not an interaction between a set of unequal actors; nor is criminal law with its sanction of imprisonment a domain which ought to be limited by way of culpability requirements (‘active’ as opposed to ‘mere’ association) because of the grave prejudice that may be caused by wrongful prosecutions and convictions. Instead, criminal law and procedure are reflections of state power, and state action deserves our trust, especially where it is used towards defending critical national security interests. 

Conclusion – A Mirror for the Conflict at the Heart of the Constitution and Criminal Justice

To conclude, I return to the looming elephant in the room: the caricature of Justice Shah’s legal philosophy being overwhelmingly pro-state and anti-liberty. What I attempted to show is that it is a simplistic rendition of what is a more complicated, but hardly novel, judicial approach that Justice Shah remained faithful to in his engagements with criminal law and procedure. This approach was built upon (almost) unconditionally trusting the exercise of state power, and maximising the scope for judicial discretion within the criminal process, at the cost of criminal procedure rules that sought to protect the rights of the accused by establishing bright lines and minimising judicial discretion. 

If anything, Justice Shah’s approach mirrors a conflict that remains at the heart of the Indian Constitution and the criminal process. The former framework is built upon ideas of empowering citizens to question exercise of state power, while the other requires citizens to trust and defer to it. Hoping that the Constitution would somehow transform the criminal process without addressing this conflict was nothing but attempting to fit a square peg in a round hole. More often than not, whenever push has come to shove and courts have had to pick, the choice has been to show deference to state power rather than enforce the constitutional logic of justifications that is at the heart of the transformative ideal of India’s Constitution.

Until that very fundamental conflict is resolved, the popularity of the judicial philosophy espoused by Justice Shah is unlikely to dim anytime soon. 

Freedom of Assembly and “Regulations” Disguised as Bans: The Judgment of the Andhra Pradesh High Court

On January 2, the Andhra Pradesh government issued a G.O. that purported to “regulate” processions, meetings, and assemblies on public roads, on the ostensible ground of “safety.” The trigger for this G.O. – it was claimed – was a stampede at a rally organised by the opposition Telugu Desam Party (TDP). The stated legal authority came from Section 30 of the Police Act of 1861.

Section 30 of the Police Act grants to high-level police officers the authority to “direct the conduct of all assemblies and processions on the public roads, or in the public streets or thoroughfares, and prescribe the routes by which, and the times at which, such processions may pass.” In cases where a breach of peace is anticipated, a license may be required. Section 30A authorises the police to stop any procession that violates the terms of the license, and Section 31 casts an affirmative obligation upon the police to keep order on public roads.

The scheme of Sections 30-32 set out what, in freedom of expression terminology, are known as “time/place/manner” (“T/M/P”) regulations: that is, in certain contexts, the State can regulate the time, the place, and the manner in which the freedom of speech (or assembly, or association) are to be exercised; but thee regulations must be content-neutral, and – importantly – they cannot amount to disguised prohibitions.

In this context, let us look at the G.O. (linked above). In paragraph 8 – after noting the history of accidents on highways – the G.O. notes that “it is therefore ideal that no license be granted for any application seeking permission to conduct a meeting on state highways and national highways”, but that in “rare and exceptional circumstances and for reasons to be recorded in writing, such an application could be considered.” The G.O. goes on to state that what these “rare” circumstances are would be dependent on factors such as “the width of the road, the duration of the meeting, the location of the venue, exit points, number of people likely to attend the meeting, crowd control measures etc.”

In a detailed and closely-reasoned judgment delivered on 12 May 2023, the Division Bench of the High Court of Andhra Pradesh struck down this G.O. as unconstitutional (Kaka Ramakrishna vs State of Andhra Pradesh). Chief Justice Prashant Kumar Mishra, writing for the bench, based his reasoning on the fact that the impugned G.O. was a restriction upon the right to freedom of speech and assembly, poorly masquerading as a T/M/P regulation.

CJ Mishra structured his opinion in the following way. He held, first, that it was beyond cavil that the constitutional right to freedom of expression and assembly included the ability to presumptively exercise that right on public roads. This was borne out by the long arc of Indian history, where protests and assemblies on roads had been an integral part of the freedom struggle, and also in the post-constitutional era, as an avenue for seeking change and reform (as an aside, it is somewhat refreshing to see a Court invoke the freedom struggle specifically for a rights-expanding interpretation!) (para 29, 36). This took care of the government’s argument that the constitutional guarantees were extinguished or diminished in spaces like public roads – on the contrary, they applied – at least at the first instance – with even greater force. As CJ Mishra eloquently put it:

Therefore, it is clear from a reading of these judgments that historically, culturally and politically, the tradition of public meetings, processions, assemblies etc., on streets, highways etc., have been recognized in this country. These meetings, processions etc., constitute an important facet of our political life. The freedom struggle is replete with examples of processions, dharnas, satyagrahas etc., conducted on the roads which lead to India’s tryst with destiny on 15.08.1947. If the political history of contemporary Andhra Pradesh is also considered, it is clear that there were many processions, padayatras, assemblies etc., which were conducted on public roads/highways across the State. (para 43)

Having established the right, the Court turned to the restriction. It noted that the “rare and exceptional” circumstances referred to in the G.O. had not been enumerated or described (para 30) (relying upon the judgment in Himat Lal K. Shah). This, in effect, was a case of “unfettered discretion” (para 33); and when this was combined with the G.O.’s statement that “it would be ideal” if no license was granted, the net effect was that the G.O.:

… virtually takes away the discretion that is to be exercised by the officers at a lower level. In effect it directs them not to issue licenses, on roads, highways, streets etc., and to suggest alternative places, for congregations, processions. This virtually amounts to a direction to act in a particular way which is the exact opposite of what the Act contemplates by leaving it to the discretion of the officer. (para 38)

In other words, the G.O. sought to bypass the canalised discretion vested in police officers with respect to issuance of licenses, with a regime where this discretion was effectively overtaken and reshaped by the executive, without any constraining features. As CJ Mishra pithily put it, by “an executive order the provisions of the Act are sought to be diluted and also controlled.” (para 38) 

The Court then went on to hold that, in addition, the G.O. failed on the grounds of proportionality (para 39). Indeed – and this happens rarely – the Court held that it failed on the second prong itself, i.e., on the relatively easy threshold of “rationality.” As the Court noted:

The fact that an accident or incident occurred at a particular place cannot be used as an “objective/cause” to curtail the right to assemble, to take out processions etc., on all other roads. The cause of the earlier accident or incident relied on by the State should be studied fully and then safeguards or guidelines can be issued to prevent the repetition of such an incident if there is similarity in the ground level situation etc. (para 40) The Court deployed this test by noting that given that an important right was at stake, any attempt at curtailment had to be reviewed strictly: and under this strict level of scrutiny, the G.O. failed the rationality/objectivity test (para 44). Having held that the G.O. was, in effect, a ban on the right altogether, the Court accordingly struck it down (para 46).

Taken as a whole, the High Court’s judgment is an impeccable example of a constitutional court effectively protecting fundamental rights against executive impunity, in a timely and effective fashion. Although the case traveled back and forth between the HC and the SC on an occasion, the final verdict has come within a matter of months, and without undue delays. Secondly, on the substance of the judgment itself, four important features stand out: first, the use of constitutional history to establish the right to free speech and assembly, even and indeed especially on “public” roads; secondly, the express observation that the state’s rationale for limiting rights has to be scrutinised strictly, with the burden of justification lying upon the state, and not the other way round; thirdly, the juxtaposition of the text of the G.O. with the workings of the Police Act to show that, in effect, the G.O. amounts to a ban on protests, thinly masquerading as regulation; and fourthly, the effective deployment of the proportionality standard to scrutinise – and strike down – the restriction. It is to be hoped that the excellent example set by the High Court will now be followed across the board, when courts are called upon to examine cleverly-worded but grossly unconstitutional executive-imposed restrictions upon fundamental rights.

Reasonable Accommodation for Religious Beliefs in Schools: The Judgment of the Kenyan Court of Appeal

Yesterday, in Philip Okoth vs Board of Management, St Anne’s Primary School, the Kenyan Court of Appeal delivered an interesting judgment reaffirming certain important principles with respect to the religious rights of students in the schoolroom, and the principle of reasonable accommodation. The case involved the expulsion of certain school students – who were Jehovah’s Witnesses – for refusing to attend a mandatory, thirty-minute Catholic mass organised by the school (the first petitioner/appellant was later re-admitted, but required to sign a declaration that she would attend mass).

The High Court found against the Appellants/Petitioners, on the bases that they had indicated their willingness to comply with the school rules (which included mandatory mass), and that they had not established that mandatory mass amounted to an impingement of their own freedom of belief.

The Court of Appeal – consisting of Kiage, Tuiyott, and Ngugi JJA – disagreed, for the following reasons. First, constitutionally-guaranteed rights (such as the freedom of religion, guaranteed under Article 32 of the Kenyan Constitution) could not be deemed to be implicitly waived by prior conduct. Thus, the fact that the appellants/petitioners had initially participated in the school’s inter-faith activities could not stand in the way of a constitutional claim, whenever it might be raised (pg 21). The Court of Appeal linked this to the Respondent’s argument that if the Petitioners/Appellants had a problem with the school rules, they could simply have left and taken admission in another school. This argument, of course, is familiar to us. But, relying upon the previous judgment of SDA – where the Court had labeled this a “lame and gloomy” argument – the Court of Appeal cited with approval the observation that:

This view is not only impractical, but also ignores many factors that a student or parent considers in choosing a school, such as the availability of public schools where the students’ particular religious beliefs would be accommodated, the student’s personal career choice and academic standards of the school. It violates, not only sub-article (3) of Article 32 of the Constitution but also section 34 of the Basic Education Act.

This observation is important, as it reiterates the simple point that in cases involving constitutional rights, the burden of finding alternatives for the exercise of the right in case it is blocked off in certain spaces should not be upon the rights-bearer (i.e., in this case, the students). In particular – although the judgment does not go further into this point – what is implicit is that the existence of constitutional guarantees carries with it the right to be able to exercise those guarantees without undue burden. This is particularly important in the case of schools, where it is well-documented that wrenching a child out of a school environment in which they are well-settled triggers a number of mental and psychological harms. This is, of course, independent of the facts – as noted in the judgment – pertaining to the availability and accessibility of alternatives. In other words, therefore, the Court affirmed the students’ right to access a school where the exercise of their constitutional rights would be reasonably accommodated. (see pg 22)

The Court of Appeal then went on to hold that as “religion is a fundamentally subjective matter of faith”, and that it was evident from the record that “the appellants’ belief was genuinely held”, nothing more was needed to trigger the exercise of the right (pg 26). That being the case, the Court went on to find that an exemption from attending mass fell well within the contours of reasonable accommodation (pg 27): this was because – as Counsel Ochiel Dudley had argued – the rule itself was facially neutral, but had a discriminatory impact; and secondly, the application of this rule was particularly apposite in a “specific, localised context”, such as a workplace or a school, where the balance between rights could be struck.

Interestingly, as a final point, the Court referred to a Ministry of Education Circular from 4 March 2022, which itself had noted that “the violation of religious rights in schools has negative effects on maintenance of peace and tranquility and some students end up dropping out altogether.” This, the Court held, accorded with the thrust of its own judgment – a case where the judiciary and the executive were ad idem on the constitutional principles involved!

The final declaration of the Court is important. It held that “the 1st appellant’s expulsion from school on the basis of her religious views amounted to indirect discrimination; constituted a violation of her right to education and right to dignity and is therefore null and void.” It is worthwhile to focus on this because – as the analysis above showed – cases of this kind involve a number of intersecting rights. It is not simply a case of an assertion of religiosity by a minority group; but it is – crucially – about indirect discrimination (i.e., facially neutral rules that nonetheless enforce majoritarian cultural norms, whether it be mass or regulations about the uniform), about the right to education (i.e., forcing students to pick between an exercise of constitutional rights and dropping out of education altogether), and the right to dignity (through singling out and exclusion). It is therefore a mistake to think of these cases as only involving religious expression versus uniformly applicable school regulations: a sensitive exploration of the issues – as was undertaken by the Court of Appeal – reveals much more at play.

As a post-script, it will be interesting to see what the impact of this case might be on potential future litigation on issues such as – for example – the wearing of the hijab in schools. Recall that this same Court of Appeal had – in Fugicha’s Case – had affirmed the right to wear the hijab, in a closely-reasoned judgment (see the analysis on this blog, here) (indeed, Kiage JA – the author of today’s judgment – was also a party to Fugicha). That judgment had eventually been overturned by the Supreme Court, but only on procedural grounds. Interestingly, today’s judgment quotes extensively from Fugicha (as also from SDA); and it does appear that its observations apply squarely to more complex cases such as the hijab case. Indeed, the Court’s clear invocation of the right to education in this case, and its dismissal of the argument that students unhappy with the rules could simply leave and go elsewhere, create a strong foundation for rights-protective rulings in those cases, where the argument on behalf of school authorities rests on instinctively stronger foundations (such as the need for a ‘uniform’ uniform). It remains to be seen how the Kenyan courts carry forward this progressive jurisprudence.

Guest Post: The Doctrinal Discomforts of Default Bail

[This is a guest post by Abhinav Sekhri, and first appeared on the Proof of Guilt blog.]

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As the Indian Constitutional Law and Philosophy Blog discussed what seems like an eternity ago (it was only twelve days), a peculiar set of events had unfolded in the Supreme Court where a judgment passed by a Division Bench on 26.04.2023 was challenged by adopting a hitherto unknown process of a ‘recall’ application. The application had not yet cleared the registry to make it to the list of matters was therefore ‘mentioned’ orally on 01.05.2023 before a Division Bench comprising the Chief Justice, who directed that it shall be reconsidered and in the meantime not given effect to. 

There are rumours about the alleged procedural irregularities associated with the progress of the original case till its ultimate judgment. One does not know enough and therefore cannot comment on whether it was these set of circumstances which prompted the Supreme Court to adopt this unprecedented route thus far. But two wrongs never do make a right. Here, I take a different approach, and engage with the legal issues instead.

The judgment in question was Ritu Chhabaria v. Union of India [W.P. (Crl.) 60 of 2023 (“Ritu Chhabaria“)]. The issue that it dealt with was that of bail under Section 167(2) of the Criminal Procedure Code 1973 [Cr.P.C.], or what is popularly called ‘Default Bail’. It is a species of bail which accrues as a right to a person detained in custody during an investigation, and where the investigating agency fails to complete its investigating by filing the police report within the stipulated time-period of 60 or 90 days (depending upon the seriousness of the alleged crime). 

More specifically, the issue in Ritu Chhabaria was determining what amounts to completing investigation for purposes of extinguishing the right under Section 167(2). If triggering this right can be circumvented by police simply filing any collection of papers in court before expiry of the 60 / 90 day period, it renders default bail completely anodyne and illusory. It also undercuts the very intent behind incorporating this set of provisions in the first place: As Ritu Chhabaria and several decisions in the past have pointed out, the point was to try and curb the then-rampant habits of police to file ‘preliminary chargesheets’ at the end of 15 days (the earlier time limit) only to keep undertrials behind bars. The 1973 Code raised the limits by a wide margin, but this was done while incorporating default bail to ensure that undertrial incarceration is not oppressively long.

Herein lies the problem in this oft-retold tale of Section 167 being a means to rein in bad police practices. The tale is incomplete, giving us only half the picture, because by a sleight of hand it wants us to forget that the process of keeping a person behind bars is not a one-man show but a tag-team event. It needs both the police and the courts. The police will ask for custody, but it is the magistrate who must sanction it, and the tragedy of incessantly and oppressively long undertrial incarceration was as much a product of judicial apathy to personal liberty and treating bail as linked to the merits of a case. To sum up, the introduction of Section 167 was not only to deal with bad police practices, it was also to curb bad judicial practices by taking away fuzzy discretion and introducing a concrete rule for bail.      

You cannot change the stripes on a tiger as they say, and in a way that is the story of what has followed. The time limits were seen as insufficient by many and prompted the Supreme Court to label Section 167 as a ‘paradise’ for criminals in its first foray into the statutory provision. The sense of panic at the thought of countless ‘criminals’ being let loose led to amendments in 1978 increasing 60 days to 90 days for a subset of offences carrying higher sentences. In parallel came litigation before high courts where accused persons challenged rejections to their bail applications on grounds that what the police had done was nothing other than file a ‘preliminary chargesheet’ even at the end of 60 / 90 days. Since the late 1970s till today, we have had courts — both High Courts and the Supreme Court — adopting myriad approaches to deal with this perceived problem of letting the criminals go on a ‘technicality’. 

What connected all of these approaches was that all of them concurred in rejecting a bright-line approach that required an investigation to be complete in all respects at the end of the 60 / 90 days period. The stakes were simply seen as too high for the result to be decided on a rule, and so courts did what they do best and brought in wriggle room to make individualised decisions. Instead of demanding complete investigations, the judiciary substituted that rule with one that retained a measure of discretion for itself. Determine for yourself, magistrates were told, as to whether the document before you suggests the investigation is more or less complete. If so, reject the default bail. The result was to open a new arena of litigation within the matrix offering both the accused and police an opportunity to challenge unfavourable orders, and ensure that there can never be a settled law on the point.  

Ritu Chhabaria was the latest chapter in this history and, in that regard, offered an entirely unremarkable conclusion when it observed that any chargesheet or complaint filed without completing the investigation would not extinguish the right to default bail. Rather, the problem I would argue is what the judgment can be seen to stand for — a harkening back to a stricter rule of default bail requiring the agencies do more within the stipulated time period and restore some measure of importance to default bail. This is clearer if we look at the facts, which do not involve an alleged incompleteness because of some forensic reports not being filed, but question the very nature of the investigative exercise conducted which, to the court, was hopelessly short of the standard it considered to be required by Section 167.  

A stricter, more bright-line, rule of default bail in respect of completeness of investigations is a past which is certainly not appreciated by the police and other agencies which continue to decry the shortness of time to complete investigations, never fully answering the more pointed question — why does this require the continued incarceration of the individual as well? But as I suggest, a bright-line approach to default bail is not one that the courts are too fond of either, because they never came around to fully accepting the radical premise behind a concept of bail completely de-linked from the merits of the case (as argued elsewhere on the blog). These are serious allegations, and continued incarceration of undertrials is presumably a small price to pay to make sure that courts can apply their mind to these facts to get it right. 

History would suggest that the Supreme Court in reconsidering Ritu Chhabaria will nudge the pendulum back to the perceived centre on this issue. Old habits die hard, after all.