Guest Post: Who Judges the Judges? Intellectual Bias as a Ground for Judicial Recusal

[This is a guest post by Anshul Dalmia.]

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The Supreme Court recently, in the case of High Court Bar Association, Allahabad v. State of Uttar Pradesh (‘High Court Bar Association’), reserved its judgment on the question of whether interim stay orders granted could operate only for six months unless specifically extended. The five-judge bench was constituted on 2 December 2023 and comprised of the Chief Justice of India, Justice Abhay S. Oka, Justice J.B.Pardiwala, Justice Pankaj Mithal, and Justice Manoj Misra. This case resulted from an appeal to a three-judge bench in the case of Asian Resurfacing of Road Agency v. Central Bureau of Investigation (‘Asian Resurfacing’) that had answered the above question in affirmative.

Through this blog post, I seek to probe a different dimension of this case. Rather than commenting on the merits, I aim to evaluate the vagaries of the composition of the bench which has been constituted to hear the appeal and the fast-tracked procedure it adopted.

Where There is a Will there is a Way

Prior to the setting-up of the five-judge constitution bench, on 1 December 2023, a three-judge bench comprising of Chief Justice of India, Justice J.B.Pardiwala, and Justice Pankaj Mithal, were confronted with the appeal from the High Court Bar Association case that raised doubts, highlighted several practical problems, and showcased issues that warranted an immediate intervention vis-à-vis the Asian Resurfacing case. The Court in this case expressed reservations about the ratio in the Asian Resurfacing case due to the broad formulations laid down by the earlier bench. The Court acknowledged that an indefinite stay might be the result of an inability on part of the Court to take up the case and an automatic vacation without the application of a judicial mind shall lead to a miscarriage of justice. Since both the benches were of co-ordinate strength, the Court deemed it appropriate to refer it to a larger bench of five judges. In this case, it is thus seen that the Court takes a prima facie view regarding the correctness of the judgment which can be contended to be indicative of the Court’s inclination regarding overturning the judgment.

Surprisingly, on the very same day, another bench comprising of Justice Abhay S. Oka and Justice Pankaj Mithal was hearing a special leave petition in the case of Sukha Devi v. State of Uttar Pradesh, wherein the Court observed that the case was causing a lot of prejudice and they accordingly instructed the counsels to argue on the issue of interpretation of the directions issued in the Asian Resurfacing case. Justice Oka, the senior judge heading the bench, hinted at referring the judgment to a larger bench. He even mulled on alternatives such as providing some opportunity must be given to party to make an application for extension.

Immediately the next day, on 2 December 2023, there was a notice that stated that a constitution bench was set up to hear the criminal appeal in the High Court Bar Association case. On 13 December 2023, the case was heard, the arguments concluded, and the judgment reserved. At this juncture, it become imperative to think about the plethora of cases that have been referred to a five-judge bench for years and have not seen the light of the day. Herein, I do not contend that the other cases should have been heard and preferred rather than this one, and thus this fast-tracking attempt should not be seen as a diatribe against the Court. However, the point that I want to drive home is that if the Supreme Court of India wants to truly hear a case and dispose it, there is nothing stopping it from doing so. Hence, I wonder if this should be an indicator for all the five-judge bench cases that have been put on a back-burner all this time. Is the Supreme Court burdened with cases or is it adopting a convenient excuse for simply not wanting to decide the cases?

Further, it does not come as a shock that all the judges that had expressed a view just a day prior, and who were convinced that the Asian Resurfacing case was either causing a lot of prejudice or leading to a miscarriage of justice, now formed a larger bench to question the efficacy of that very judgment. I examine this issue in detail referring to past precedents seeking to question if such a practice is a ground to demand the recusal of judges.

Reliving the Past

The question of judges who comprise the larger bench when they themselves have referred the matter to a larger bench warrants a discussion of the significant judgment in Indore Development Authority v. Shailendra (‘Indore Development Authority’) dealing with Justice Arun Mishra’s recusal. In an elaborate order, Justice Mishra highlighted several cases wherein the judges in the larger bench comprised of the judges in the smaller referral benches. He further stateed several cases where the judges had taken opposite views of what they had originally held, showcasing the possibility of judges changing their minds while hearing a case. Hence, Justice Mishra refused to recuse on the ground that an intellectual bias highlighted through previous reasoning, judgments and referrals did not reflect a semblance of bias.

It is imperative to highlight that separately, I have argued intellectual pre-dispositions to only contain staunch, rigid and fixated opinions. However, here I seek to widen the conceptual understanding of intellectual biases to include pre-conceived notions and pre-expressed views. Coming to the present case, I believe the observation in the Indore Development Authority that a judge could not be disqualified from holding a previous view or having decided a case in a particular way, must be challenged. The Court there highlighted the presence of a safeguard i.e., the power to be convinced by:

… lawyers (who) have compelled this Court time and again to change its views and to refine the law. This Court is known for not a particular view but for refining the law and that has been done with the help, ability and legal ingenuity of the lawyers to convince this Court with aplomb to correct its view.

I believe that such a safeguard is possible solely in an ideal set-up and denotes an extremely high standard of fairness vis-à-vis the right to a fair trial. Firstly, because in a common law country, courts are likely to follow past precedents and uphold the same observations. A diversion from a precedent is frowned upon. Thus, a shift from a previously held interpretation while doctrinally feasible is not practically easy. Secondly, the institutional polyvocal nature of the Indian Supreme Court makes it difficult for junior judges in a bench to differ from the senior judges whose interpretation is likely to be dominant and upheld. This has been explained in detail here. Lastly, I argue that disqualification is warranted when referral judges are present in larger benches since it is antithetical to the basis of a fair trial. For instance, if there are two modes of interpretation, namely A & B before a judge. The Court in Indore Development Authority stated that the Court is justified in having a pre-determined interpretation, A and it is on the lawyers to convince the judge to adopt, B. Here, the Court rather than discharging the burden of being unbiased, shifts the burden onto lawyers for convincing the Courts to change their opinion, which is a herculean task in itself. I contend that such an observation is not at all fair. Fairness in adjudication would mean, lawyers from both sides convincing the judge to choose either A or B, without any prior predilections.

On the contrary, it can be argued that while every judge comes to court with an open mind, they are affected by their background and professional life. Thus, there always might be judges with predetermined opinions present. In response, I agree that while it might be a logistical nightmare to reject every judge who has expressed an opinion in the past, it would be way easier to disqualify the judges who have referred the judgment to a larger bench, since they definitively have expressed reservations and raised doubts regarding the legitimacy of the judgment. Further, it is imperative to observe that in a balancing exercise, the possibility of all judges at the Supreme Court being disqualified for having adopted an interpretation would be extremely minimal as compared to solely disqualifying the referral judges, as their inclination is extremely certain. Overall, the underlying reason behind demanding recusal is that even the mere appearance of bias should never perpetrate a proceeding. Any case before the Courts must not be tethered in prior opinion or expressed prejudices but rather must be completely free and fair. Such a process will truly satisfy the litigant’s right to a fair trial.

In the current case at hand, it was seen that the three-judge bench headed by the Chief Justice observed the judgment in the Asian Resurfacing case to cause a ‘miscarriage of justice’ whereas the two-judge bench headed by Justice Oka observed the case to cause ‘a lot of prejudice’. It is not surprising what the result would be when a larger bench comprising of exactly all these judges have heard an appeal. Hence, I seek to question whether is this proceeding truly reflective of a fair trial?

Notes from a Foreign Field: Vulnerability and Compassionate Constitutionalism in the South African Constitutional Court’s Refugee Decision [Guest Post]

[This is a guest post by Samriddh Sharma.]

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In this post, I embark on a concise examination of a recent ruling from the South African Constitutional Court in the case of Scalabrini Centre of Cape Town and Another v The Minister of Home Affairs and Others. The aim is to illuminate key themes emanating from this judgment, which can be of useful import.

The case was a constitutional challenge to subsections 22(12) and 22(13) of the Refugee Act. Simply, these provisions state that asylum seeks who fail to personally renew their visas’s date of expiry must be regarded as having abandoned their application for asylum. Consequently, they are forbidden from re-applying and should be treated as illegal foreigners under the Immigration Act. These visas, granted for a period of six months, allow the refugees to temporarily live there while their asylum application is decided. Crucially, the court notes, that asylum application takes around 5 years to be decided. And thus, in practice, a refugee renews the visa multiple times. The last safety net for the refugees whose asylum application are automatically abandoned is that they have to satisfy a standing committee with compelling reasons for their failure to renew the visa in time.

The applicants argued that the provisions- i) violate the principle of non-refoulment, ii) are arbitrary and irrational, iii) contravene the fundamental rights in the Bill of Rights. It was contended that the automatic abandonment of application and purported safety net by Standing Committee deprive the entitlement of non-refoulment mentioned enshrined within the Act. Howsoever “broadly one construes the Standing Committee’s discretion to reverse the deemed abandonment of an asylum application, it is not an assessment of an asylum claim. (para 15)” Effectively, the Standing Committee would decide on whether the delay in renewal was justified or not. Which, in even the widest possible manner, is not an assessment of asylum application on it’s merits. The system was also claimed to be arbitrary and irrational for it cannot be justified. Moreover, since the immediate result of this would be the deportation of the individuals, it violates their right to equality, safety, human dignity, freedom and “indeed life.”

The respondents did not contest the applicants and conceded, marking a departure from their stance in the High Court. In the High Court, they argued that, although the provisions curtailed constitutional rights, such limitations were justified under Article 36—a general limitation clause outlining when fundamental rights could be restricted (distinct from derogations). In India, there isn’t an overarching limitation clause; rather, limitations are explicitly outlined within the provisions themselves. However, in the constitutional court, they abandoned this assertion in light of revised principles derived from Abore and Ruta. The respondents also expressed an “intent to revisit the impugned provisions and develop provisions aligned with the principles articulated by this Court in Ruta and Abore (respondent written submission para 37).” In Ruta, the court emphasized that asylum seekers are protected by the non-refoulement principle unless rejected through a proper procedure on merit, a stance reaffirmed by the subsequent Abore decision.

Despite the respondent’s concurrence the court went ahead to do a constitutionality review because such a practice is mandated in Philips. The court agreed with the petitioner’s claim that the application abandonment is sans the merits of the application and violates principle of non-refoulement. It also highlighted that it is unclear whether the refugee will be granted a new visa pending Standing Committee’s decision. Crucially, it explained that since they are especially vulnerable group, “their plight calls for compassion (para 28),” laying grounds for compassionate constitutionalism. The court clarified that this principle is both a cornerstone of international law and enshrined in section 2 of the Refugee Act, applicable to both de facto and de jure refugees. Non refoulement necessitates that there should be a determination of merits of the asylum claim. This provision imposes a double penalty by excluding determination of merits and denying re-applying. Overall, the court gathered that the entire procedure including the standing committee is devoid of the principle of non-refoulement.

The fundamental rights claim was fairly straightforward. The court recognised that the fundamental right of dignity was infringed, because visas are required to get work, healthcare, banking and also without it one risked detention and deportation. Importantly, the court also held that a right to just administrative action was infringed, which is provided for under Section 33 of the Constitution. The amicus had brought into light the state of children who are left stranded and helpless in such scenarios, for their children’s applications are tied to their parents. The court accepted this and reiterated that was unjust to penalise children.

On the issue of arbitrariness and irrationality, the court carefully considered the claim of limited state capacity by the government. The State argued that it had to reduce the clog of application, diminish the burgeoning administrative load and encourage timely renewals. Critically, here the court illuminated another importance concept of refugee law. It noted that the State’s argument rested on the default presumption is that a refugee does not have a valid claim, which is contrary to the elemental principle that presumption operates in the favour of refugees till their claim is determined on merits. The court, relying on evidence, rejected the argument of backlogs resulting from the non-renewal of visas and determined that this provision serves no legitimate government purpose.

The judgment yields three overarching themes of significant relevance. One, an administrative procedure, while lacking explicit unconstitutionality, can nonetheless lead to unconstitutional and rights-negating outcomes. Two, it underscores the importance of acknowledging the vulnerability of distinct groups, particularly children, when interacting with state mechanisms. Three, the default presumption operates in favour of the asylum seeker. 

The right to a just administrative action is not only imperative for refugees but also ordinary citizens. Although India lacks a specific constitutional provision in this regard, the underlying constitutional principle remains invaluable. Seemingly neutral administrative procedures can, in fact, be conduits for unconstitutional objectives, underscoring the need to scrutinize not only the form but also the substance of administrative actions. Various scholars hold that during democratic backsliding, as we witness now in India, it is important to uphold ordinary law: for example, enforcing ordinary criminal law, administrative law etc. Even just enforcement of private laws and regulations is crucial to maintain constitutional goals. As an illustration, companies with close affiliations to the government might acquire independent news media outlets in a hostile and anti-competitive manner, unless oversight by regulatory bodies is in place. This depletion of free speech occurs without directly violating the fundamental rights of free speech per se. Therefore, the significance of just administration, coupled with its enforceability in court, becomes evident.

In this particular case, the court acknowledged the vulnerability of both refugees and children. The recognition of vulnerability among marginalized groups, encompassing refugees and children, is pivotal with respect to their engagement with state mechanisms. This acknowledgment plays a crucial role in averting the escalation of exclusion and inequality. As Professor Sofia Ranchordas contends, especially within the framework of a digital administrative state, empathy assumes paramount importance due to the potential disproportionate consequences stemming from minor errors in a system characterized by numerous entries and data requirements. Similarly, the acknowledgment of vulnerability and the promotion of a compassionate constitutionalism can prove instrumental in advancing equity and equality. This consideration becomes particularly significant in the context of the burgeoning digital state, where individuals who are elderly, disabled, or marginalized may face exclusion from realizing the essence of their rights and achieving equal status as citizens.

Finally, the Indian Supreme Court’s approach to refugee rights has been marked by constitutional evasion and a lack of consideration for the fundamental rights of refugees, as evidenced (see here and here). It’s important to clarify that this article does not delve into the intricacies of Indian jurisprudence on refugee law. Nonetheless, it is worth noting the South African Court’s clarification that the default presumption aligns in favor of refugees, guided by the principle of non-refoulement. Additionally, it is emphasized that an excess of administrative burden on refugees and their non-compliance does not negate the right of non-refoulement or dilute this presumption.

Guest Post: Judicial Review of Parliamentary Process – Revisiting the Case

[This is a guest post by Utkarsh Rai.]

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Recent events in India’s Parliament (i.e., mass expulsion of opposition party MPs) have once again highlighted its decline as a deliberative institution. This poses a problem for traditional separation of powers frameworks since the Parliament is a crucial check on the Executive under these frameworks. While it is arguable if the separation of powers framework, as traditionally conceptualized is even applicable in India because of flaws in India’s constitutional design, a deliberative Parliament with a culture of justification can partially address these issues.

In such circumstances, the judiciary, as the third, and most independent organ, becomes very important. However, judicial review of parliamentary proceedings in India remains contested as a result of Article 122 of the Indian Constitution. While the Court has developed doctrines to constrain these privileges, and carved out a space for itself to intervene, it is unclear if the doctrine it has created would allow it to intervene in such circumstances. (Judicial review of parliamentary proceedings has focused on certification of money bills by the Speaker, or the expulsion and indefinite suspension of members under the procedural irregularity/substantive illegality test in the Raja Ram Pal and Ashish Shelar judgements).

In such circumstances, the judiciary can adopt an approach of indirect judicial review of legislative process. For this, the article takes inspiration from the work of Sindhu & Narayan and Aileen Kavanagh, applying their ideas to the current context. The approach in this article is to compare the growth of indirect judicial review of legislative process in the UK, where the constraints imposed on such a practice was perhaps greater as a result of their conception of parliamentary privileges. Building from there, the article then proposes learning from frameworks developed in the UK to apply them to India.

ARTICLE 9 OF THE BILL OF RIGHTS AND THE HANSARD RULE

To begin with, we will look at the scheme underlining parliamentary privileges in the UK. It begins with Article 9 of the Bill of Rights. In modern parlance, Article 9 of the Bill of Rights confers on ‘proceedings in Parliament’ protection from being ‘impeached or questioned’ in any ‘court or place out of Parliament’. The meaning of the terms in the Article has not been clarified, and it has been upto the Courts to lay down the scope of this article.

In this respect, the general principle that emerges from the jurisprudence around the Article 9 is that it prohibits reliance on parliamentary material if it would expose an MP to criminal or legal liability. It is also well established that the courts cannot consider allegations of impropriety or inadequacy or lack of accuracy in the proceedings of Parliament, which are matters for Parliament to address. A practical point that the Courts have had to address is the scope of the term ‘questioned’. Controversy over the term has come up in cases where the Court has taken recourse to debates and statements in Parliament in its adjudication of the compatibility of legislation with the Human Rights Act, 1998. Another major point of change has been the setting aside of the exclusionary rule, that forbade recourse to Hansard for statutory interpretation. This was done in the case of Pepper v Hart. However, the boundaries of the Court’s new jurisprudence post Pepper v Hart remain contested.

WILSON V FIRST COUNTRY TRUST

The Court’s new jurisprudence, and the controversies inherent in it can be best summarized by the Wilson v First Country Trust case. In this case, the Court of Appeal, in a case on the Convention compatibility of the Consumer Credit Act, analysed the Parliamentary material and found that it did not provide clarity on the purpose of the legislation, and tended to confuse rather than illuminate. This led to the Court deciding on the basis of legislation as enacted, and finding the provisions not compatible with the legislation. The decision led to massive controversy, with a QC representing the Speaker in the House of Lords stating that the Court’s reference to parliamentary debate was a violation of Article 9 of the Bill of Rights. In response to this, the House of Lords provided some clarifications to the doctrine that had emerged post Pepper v Hart. However, the dicta of the judgement contains statements for both sides, with a warning note from Lord Nicholls that has been used by opponents of judicial review of parliamentary privilege. The relevant extract has been reproduced below:

The proportionality of a statutory measure is not to be judged by the quality of the reasons  advanced in support of it in the course of parliamentary debate, or by the subjective state of mind of individual ministers or other members . . . Lack of cogent justification in the course of parliamentary debate is not a matter which ‘counts against’ the legislation on issues of proportionality. The court is called upon to evaluate the proportionality of the legislation, not the adequacy of the minister’s exploration of the policy options or of his explanations to Parliament.

While Lord Nicholls provided the following warning note, the Court in the Wilson Country Trust case also held that to examine the proportionality of a legislation, the courts might have to take recourse to statements and debates in Parliament, but this is not akin to questioning proceedings in Parliament. In fact, the Court in this case placed some limitations from the doctrine that had emerged after Pepper v Hart, holding that it is essential to remember that i) will of Parliament is contained in legislation, and not in what a Minister says and ii) the intention of a Minister or a member should not be equated to the intention of the Parliament as a whole. Thus, despite its intent to clarify, the judgment in Wilson v First Country Trust has added to the confusion. A recurring point of contention is the Court’s focus on the irrelevance of “quality of reasons advanced” in adjudicating compatibility of legislation under the Human Rights Act. This has effected indirect judicial review of legislative process in the cases we will see below, as opponents have claimed that the Court’s inferences constitute “questioning” and a evaluation of the “quality of proceedings” in Parliament.

POSITIVE AND NEGATIVE INFERENCES

Post Wilson, a trend that can be seen in this area is cases where the Court has made a positive inference from the debate and careful consideration of the human rights issue under question in Parliament. This can be seen in the case of Williamson v Secretary of State for Education and Employment, and even more so in Countryside Alliance, where Lord Bingham gave weight to the fact that all opposing voices had been considered in the parliamentary debate.

In certain cases, the Courts have also made negative inference from a lack of a debate and careful consideration of the human rights issues in question in Parliament. The best example of this can be seen in the case of R (Morris) v Westminster City Council, where in finding a provision of the Housing Act 1996 in violation of Article 8 of the Convention, the majority judgments noted that Parliament had failed to consider the discriminatory impact of the legislation. In the case of R v Shayler, the Parliament’s lack of discussion  on the effect that the Official Secrets Act would have on freedom of expression under Article 10 was a factor in Lord Hope treating the legislation with more circumspection. However, the Courts making a negative inference from a lack of parliamentary engagement or debate on a human rights matter remains controversial. This is primarily because of the above discussed extract from the Wilson v First Country Trust case.

MAKING SENSE OF THE DOCTRINE

In trying to understand the Court’s doctrine, Kavanagh has used the term ‘parliamentary engagement’ to make sense of the Court’s focus on these issues in making inferences. She also further delineated the term to have 3 subcomponents (Kavanagh clarifies that these aspects do not constitute a stringent 3-part test)-

• legislative focus on the human rights issue
• active parliamentary deliberation on that issue
• opposing views fully represented in that deliberation

Each of these 3 aspects have been focused on by the courts in various judgments where they are making inferences from parliamentary engagement. Legislative focus on the human rights issue led to the Court making a positive inference in Williamson v Secretary of State for Education and Employment. The Court in Countryside Alliance also made a positive inference from the fact that all opposing views had been considered. Further, in R (Purdy) v DPP, the Court also made a positive inference from the fact that the debate was ‘thoughtful and well-informed’.

The framework articulated by Kavanagh, while factual, also looks at the quality of debate. This raises the issues we have discussed above. However, Kavanagh has a solution to them. She argues that while actually differentiating to ensure the courts do not stand in judgment over the quality is tough, it is still possible. ‘Quality’ could refer to the quality of the substantive reasons advanced by MPs during the debate, which was deemed constitutionally improper in Wilson. But it could also refer to the quality of the decision-making process in Parliament with reference to the human rights issue. The latter addresses a different set of questions, namely, whether the human rights issue was addressed or debated and, if so, to what extent, how fully or inclusively, etc.

It is true that in order to establish whether an issue was fully debated or extensively considered, the courts must have some knowledge of the content of the debates and must take some stand on their quality. But this falls short of evaluating the quality or sufficiency of the individual arguments advanced during parliamentary debate. When assessing the quality of the decision-making process, the courts are not looking at the content of the debates in order to judge the ‘quality of the reasons’ advanced by a particular Minister or to see if what he or she said was right or wrong.  The Courts could take inspiration from administrative law here, since these two types of inquiry is a central tenet of administrative law; namely that the courts can assess whether public authorities relied on relevant or irrelevant considerations, without taking the further step of assessing (or taking a view on) the weight to be attached to those considerations.

CONCLUSION

In their article on this issue, Sindhu and Narayan discussed the possibility of integrating process review into substantive review tests in India. To this end, they discussed the case of State of Maharashtra v. Indian Hotel & Restaurants Association, which saw the State prohibit dance performances in bars below three-star hotels. In setting the amendment aside, one of the factors influencing the judiciary was the lack of empirical basis behind the government’s decision. While distinct from the examples in the UK, the bench’s integration of process review in its setting aside of the amendment after substantive review presents a precedent that the Court can use to carry out indirect judicial review of legislative process in India.

In this regard, with respect to current controversies that have involved the mass expulsion of opposition party members from Parliament, it could integrate process review into any adjudication on the constitutionality of provisions of the recently passed bills. The Court could specifically adopt one aspect of the parliamentary engagement model proposed by Kavanagh, on whether opposing views were fully represented in the deliberation. This would also be in line with the UK Court’s approach in Countryside Alliance, where it made a positive inference from the fact that all opposing views had been considered. Further, unlike the UK, I believe such an approach is likely to attract less controversy in India because of the absence of the word “questioning” from Article 105 of the Constitution, since “questioning” was at the centre of opposition to indirect judicial review in the UK.

In their discussion on the approach of the UK courts on this matter, many scholars have stressed on the fact that when following strategies of deference to the ‘considered’ opinion of the legislature, courts must ensure that the opinion is actually ‘considered’. The approach suggested here might not be successful, but by treating laws passed in controversial circumstances with greater circumspection, the Court could encourage the legislature to improve its internal practices, especially when its existing doctrines and the text might not allow it to directly intervene.

Guest Post: The Many Dangers in the Post Office (Amendment) Act, 2023

[This is a guest post by Shashank Sinha and Udit Chaudhury.]

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The Indian Postal Services is one of the most iconic institutions of the modern nation-state having, as it does, a long history and deep association with colonial and nationalistic powers at different points of time. In more recent times, the postal services have emerged as something more than a mere medium through which communications are sent across the country. This has admittedly necessitated reform in rather archaic legislation dealing with the issue. To ostensibly address this need, the Post Office (Amendment) Bill, 2023 was introduced and passed in winter session of the Parliament. One of the sections of this legislation caused significant controversy when it was being discussed with opposition members present at the time condemning it passionately. This section is Section 9 of the bill which reads as follows –

 9(1) The Central Government may, by notification, empower any officer to cause any item in course of transmission by the Post Office to be intercepted, opened or detained in the interest of the security of the State, friendly relations with foreign states, public order, emergency, or public safety or upon the occurrence of any contravention of any of the provisions of this Act or any other law for the time being in force.

(2) The Central Government may cause any item referred to in sub-section (1) to be disposed of in such manner as it deems appropriate.

(3) The Central Government may, by notification, empower any officer of the Post Office to deliver an item, received from within or beyond the limits of India and reckoned to contain anything liable to duty or which is suspected to contain any prohibited item to such customs authority or any other authority as may be specified in the said notification, and such customs authority or any other authority shall deal with such item in accordance with the provisions of any law for the time being in force.

As is evident from a plain reading of the section, this section of the law envisages significant invasions into fundamental Rights – more specifically, the right to privacy which was read into Article 21 by the decision of the Supreme Court in Justice K S Puttaswamy v Union of India (hereinafter ‘Puttaswamy’). Section 9 allows any officer so empowered by the Central Government to cause any item in transmission through the postal services to be intercepted on grounds as wide-ranging as national security to friendly relations with other states or to prevent violation of any law currently in force in India. Clearly, this endangers the information of both the sender and the recipient and thereafter exposes them to wanton state prosecution.  The majority decision in Puttaswamy had unequivocally highlighted how the right to privacy entails having control over one’s information, which the impugned section seeks to deny the affected parties.

Now, of course, it would not be the first time when the activities of the state would seek to invade Fundamental Rights of the individual and this would not make them unconstitutional per se. What must be shown, as the First Amendment, Puttaswamy itself and a host of other Supreme Court judgements when read together require, is that these invasions constitute unreasonable restrictions. This article will argue that Section 9 is unconstitutional on the touchstone of Article 21 of the Constitutional as it fails the test of proportionality.  This will be done by pointing out the tenuous link between the stated aims of the state with allowing interception and the clearly disproportionate nature of the invasion given the vague grounds listed in the act.

It would be opportune at this point to make clear a caveat with which this piece proceeds on. It is based on the assumption that the constitutional courts of India, more specifically the Supreme Court, have the appetite to hold the impugned legislation unconstitutional. This is a significant assumption to make, given how recent judgments of these courts do not inspire much confidence.

Unsatisfactory Objectives of such a power

The impugned section lists out a number of grounds on which the interception of any item in transmission via postal services may be intercepted. In his reply speech before the Rajya Sabha, Minister for Communications Ashwini Vaishnaw did not cite any data to highlight how any of those aims like national security or India’s foreign relations had been brought in jeopardy due to the unscrupulous use of the postal services. Nor did he underline any event of significance in the recent past that would necessitate vesting the state with such drastic powers. Besides, even if were disregard this and think about the matter independently, it would be difficult to come to any other conclusion than that the possibility of mischief, say by a designated terrorist organization or individual, on these lines through the use of postal services, is rather impossibly remote. The authors do not claim expertise into these questions but they believe that it would be evident by reason of common sense that clandestine activities like those anticipated in the act are extremely more likely to be done through less public sources than the postal services. In this light, it is rather difficult not to think that the aim behind this section is untrammeled state surveillance and that rationales like national security are mere ruses.

Disproportional invasions of the right to privacy

As mentioned above, this section can potentially lead to invasions of an individual'(s) privacy, which has been guaranteed as a Fundamental Right under Article 21 (Right to Life) of the Constitution. Therefore, to be able to satisfy the test of constitutionality, it must satisfy all conditions of the doctrine of proportionality. The most famous recent exposition of this doctrine was in the Supreme Court decision in Anuradha Bhasin v Union of India. Borrowing from Om Kumar v Union of India and other judgements in the same vein, the Court laid down a four-pronged test for proportionality. Two of these prongs are, i) that the restriction on the Fundamental Right being imposed has some reasonable nexus to the state objective being sought to be achieved by such restriction and ii) that there is no lesser intrusive way to achieve that objective.

Section 9, we believe, fails on both prongs. As already pointed out above, the stated objectives of this section are far too vague to be tested at all on the first prong. Even if for the sake of argument, we were to disregard this and assume, for the time being, that these objectives are indeed achievable at all, it simply belies all common sense to be believe that one solution i.e. of empowering an officer with the ability to essentially do as they wish with a chosen item meant for postal transmission is the least intrusive method to prevent the myriad objectives of Section 9. It is difficult to believe, for instance, that a parcel containing some stolen articles of trivial value would need to be dealt with by the same standard as say some documents in postal transmission which might have significant ramifications for the national security of India. In other words, this section is guilty of clubbing together varied offences, of highly divergent degrees, together and treating them in the same way. In this way, there are at least some objectives which might be achieved without such extreme heavy – handedness from the state. Therefore, Section 9 of the Post Office (Amendment) Bill, 2023 fails squarely the test of proportionality.

Absence of a fair procedure

Another test that any invasion into Fundamental Rights must satisfy is that it must be done so through that is ‘just, fair and reasonable’. This test is especially relevant in the case of breaches into Article 21 in light of the judgement in Maneka Gandhi v Union of India wherein the Court read the ‘procedure’ in ‘procedure established by law’ as it appears in Article 21 to mean a procedure that is ‘just, fair and reasonable’. Thus, simply because the state envisaged a procedure, it would not be enough and it would also have to satisfy this test. We must also refer again to Anuradha Bhasin wherein the opinion of Chandrachud, J (as the Chief Justice then was) in K S Puttaswamy with regards to invasions into the right of privacy was quoted with approval by the bench. Chandrachud, J, in the impugned judgement, had held again that any invasion into the right to privacy must be ‘just, fair and reasonable’. We believe that Section 9 does not pass this test.

The first point to be noted is the complete exclusion of the judiciary from the process which determines which items in postal transmission are to be intercepted. That decision is left entirely with the executive. While this has been upheld elsewhere in the context of surveillance under the Telegraph Act and the IT At, it is important to note that the section does not care to specify what procedure even the executive will resort to in order to make this determination. Given the enormous breach into privacy that this section envisages, it is even more important that there be procedural safeguards to guard against executive abuse of the impugned section. Lack of the same renders Section 9 arbitrary and therefore liable to be held unconstitutional on this count.

Another worrying aspect about this section is how there is no particular rank of officer in the postal services prescribed in this section, who may be notified by the Central Government for the purposes of interception. Our procedural laws have tended to pose more faith in officers who have attained a certain seniority of rank. The rationale behind this is probably the greater appreciation of senior officers of the law of the legal regime involved and the rights of the affected parties. They are also presumed to be more neutral given that they are believed have less skin in individual cases. Allowing any officer of the postal services goes against this presumption and tends towards arbitrariness in the selection of the official who would be vested with wide – ranging powers.

For these reasons, it is evident that the Act fails the test of proportionality, and ought to be held unconstitutional.

Article 370: Round-Up

This is a round-up of all the blog posts on the ICLP blog dealing with the Article 370 case, from the day of the abrogation (5th August, 2019) to the judgment (11th December, 2023), and its consequences. These posts do not cover the various issues regarding internet shut-downs and habeas corpus, which also arose as a consequence of the events of August 5, 2019: these will be compiled in a separate round-up.

For readers interested in engaging with the detailed legal arguments, please refer to the archive of written submissions.

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The Day of the Abrogation:

1. The Article 370 Amendments: Key Legal Issues (August 5, 2019).

After the Abrogation:

1. Article 370: The Constitutional challenge (August 13, 2019) (by Niveditha K).
2. Article 370: A Counterpoint (August 15, 2019) (by Pranay Lekhi).
3. Article 370 – Dealing with Sampat Prakash and Maqbool Damnoo (August 15, 2019) (by Amlan Mishra).
4. One Nation, One Flag, One Constitution? – I (September 25, 2019) (by Shrimoyee Ghosh).
5. One Nation, One Flag, One Constitution? – II (September 26, 2019) (by Shrimoyee Ghosh).

The Interregnum:

1. Jammu and Kashmir’s New Domicile Reservation Policy – Some Constitutional Concerns (April 4, 2020).
2. Deepening Fait Accompli: The Supreme Court’s J&K Delimitation Judgment – I (March 5, 2023) (by Ashwin Vardarajan).
3. Article 370 and a Governor’s Interview (April 16, 2023).

The Hearing:

1. In Re Article 370 and Problems of Federalism (July 13, 2023) (by Jai Brunner).
2. Constitutional Pluralism in the Article 370 Hearings (October 20, 2023) (by Kushagr Bakshi).

The Judgment:

1. Federalism, “Permanent Changes” and the Article 370 Judgment: An Interpretive Note (December 12, 2023).
2. The Supreme Court’s Article 370 Judgment – Unilateral Declarations and Self-concurrence as Constitutional Practice (December 12, 2023) (by Kieran Corriea).
3. The Supreme Court’s Article 370 Judgment – II: On the Constituent Power of Jammu and Kashmir (December 16, 2023) (by Ashwani Singh).
4. The Supreme Court’s Article 370 Judgment – III: On the (Ab)Uses of History (December 17, 2023) (by Arvind Abraham).
5. The Supreme Court’s Article 370 Judgment – IV: Emergency, President’s Rule, and Constitutional Change (December 17, 2023) (by Kieran Correia).
6. The Supreme Court’s Article 370 Judgment – V: On the Extinction of Statehood (December 21, 2023) (by Kieran Correia).
7. The Supreme Court’s Article 370 Judgment – VI: On Representative Democracy (December 22, 2023) (by Krishnesh Bapat).
8. The Supreme Court’s Article 370 Judgment – VII: Explaining Incoherence (December 23, 2023) (by Ashwani Singh).
9. The Supreme Court’s Article 370 Judgment – VIII: On “Integration” and Ideological Choices (December 29, 2023) (by Kartik Kalra).

Guest Post: The Supreme Court’s Article 370 Judgment – VII: On “Integration” and Ideological Choices

[This is a guest post by Kartik Kalra. It is the concluding post in the blog series analysing the Supreme Court’s Article 370 judgment.]

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This month, the Supreme Court delivered its judgment in In Re: Article 370 of the Constitution, holding valid the Central Government’s abrogation of Article 370. Article 370 created three avenues of participation for the erstwhile State of Jammu & Kashmir (“J&K”), in actions the Union may take concerning its constitutional status: the President’s (that is, the Central Government’s) application of constitutional provisions to the State; Parliament’s power to legislate for the State; and the Central Government’s power to declare Article 370 inoperative. The Court, based on its conceptualization of Article 370 as a mode of pursuing J&K’s “constitutional integration” with the Union (¶342, Chandrachud, CJ.), and as a mode of bringing the State “on par with other States in [the] process of phased integration” (¶64, Kaul, J.), held that these objectives would – through Article 370’s removal – mark a “culmination of the process of integration” (¶420, Chandrachud, CJ.), and would, therefore, align with the integrationist objectives of Article 370. The Court has, per majority, laid down the following propositions:

1. “Recommendation” of the Constituent Assembly: Article 370(3) – which requires the J&K Constituent Assembly to recommend that the Article cease to operate before the Central Government declares so – does not imply that the Article dons a character of permanence due to the Constituent Assembly’s dissolution, and confers, instead, unilateral authority on the President to declare the Article inoperative (¶346, Chandrachud, CJ.; ¶74-5, Kaul J.; ¶7, Khanna J.).
2. Alteration of “Constituent Assembly” to “Legislative Assembly”: Article 370 can be modified only through Article 370(3), which, in turn, requires the Constituent Assembly’s authorization. Article 367 – which contains interpretations and definitions – cannot be amended to define the “Constituent Assembly” as “Legislative Assembly”, for that “modif[ies] the essential character” of Article 370, which is constitutionally impermissible (¶384, Chandrachud CJ.; ¶87, Kaul J.; ¶3, Khanna J.). This, however, does not matter, for the President held the power to abrogate the Article unilaterally (see above).
3. Application of the entire Constitution to the State: C.O. 273, which applies all provisions of the Constitution to the State, is valid despite the absence of “concurrence” of the Government of J&K in authorizing such a move (as required under Article 370(1)(d)), for the effect of a declaration applying all constitutional provisions is the same as Article 370’s abrogation – which, as noted above – can be done unilaterally by the President under Article 370(3) (¶427, Chandrachud CJ.; ¶94, Kaul J.; ¶3, Khanna J.).
4. Article 3 of the Constitution: Article 3 – which requires the conferral of an opportunity on the state undergoing political/territorial transformation to “express…its views thereon” – could be dispensed with during a state emergency under Article 356, for such views carry no binding value (¶511, Chandrachud CJ.; ¶110-111, Kaul J.; ¶3, Khanna J.). Section 3 of the Jammu & Kashmir Reorganization Act, 2019, which creates the Union Territory of Ladakh from the erstwhile State of Jammu & Kashmir, is, therefore, valid despite the absence of the views of Jammu & Kashmir’s State Legislature. The validity of the demotion of the erstwhile state of Jammu & Kashmir to a Union Territory was not adjudged in reference to Article 3, for the Court was “alive to the security concerns in the territory”, and that the Union promised to restore Jammu & Kashmir’s statehood soon. (¶503, Chandrachud, CJ.)

Some aspects of these propositions have been discussed in seven previous essays on this blog – Kieran Correia has proposed the impropriety in invoking the President’s power of unilateral abrogation under Article 370(3) as a justification for dispensing with the State Government’s “concurrence” under Article 370(1)(d); Ashwani Singh has proposed that “constituent power” of the people of J&K is, in fact, perpetually alive – and the possible creation of an institution exercising such constituent power in the future meant that the risk of stultification due to the previous Constituent Assembly’s dissolution was overestimated; and Arvind Abraham has proposed that a historicized account of the constitutional relationship between J&K and the Union indicates that a “one-size-fits-all” approach to integration – which the Court identifies as Article 370’s purpose – was never on the cards at the moment of enactment.

In this essay, I propose that the Court imputes to Article 370 a singular objective of facilitating J&K’s complete constitutional integration with the Union, which triumphs over all other objectives of Article 370, especially those seeking the protection of J&K’s autonomy. The pursuit of integration constitutes the Court’s overall interpretive fulcrum – the vesting of unilateral abrogating power with the Central Government, the negligible value of a “recommendation”, and the application of the entire Constitution to the erstwhile State without a semblance of its participation – all are justified in pursuit of J&K’s constitutional integration. I make this argument in the following manner – first, I discuss the circumstances causing the Court to invoke the logic of integration ad-nauseum in its interpretation of Article 370, noting the absence of alternatives – given the apparent invalidity of C.O. 272’s amendment to Article 367; second, I demonstrate the application of this logic in the construction of Article 370(3), proposing its centrality to the Court’s assessment of the constitutional relationship between J&K and the Union; and third, I discuss its spillover effects on the Court’s assessment of the “recommendation” under Article 370(3), alongside the difficult coexistence of the low thresholds attributed both “concurrence” and “recommendation”.

Different Approaches to Disregard Consent – Kaul, J. and Chandrachud, CJ. on Article 370(3)

Chandrachud, CJ. and Kaul, J., as noted above, held that any modification of Article 370 – even for the purposes of its abrogation – must occur only through Article 370(3), which requires a prior recommendation of the J&K Constituent Assembly. C.O. 272, the constitutional order modifying Article 370(3) to enable the Article’s abrogation by interpreting “Constituent Assembly” as “Legislative Assembly”, was, therefore, invalid to this extent, for its result was a substantive modification of Article 370(3), an outcome that can be pursued only through Article 370(3) (¶382-3, Chandrachud, CJ.). The Court rejected the Union’s invocation of Mohd. Maqbool Damnoo v. State of Jammu and Kashmir – a case upholding an amendment to Article 367 that interpreted the term “Sadr-i-Riyasat” as it appears under Article 370(1) as “Governor” – on the ground that the Governor was the constitutional successor to the “Sadr-i-Riyasat”, and the amendment, in that case, was only clarificatory in nature, not having the effect of substantively modifying Article 370 (¶416-7, Chandrachud, CJ.). In the instant case, however, the amendment to Article 367 had the effect of substantively modifying Article 370, for there existed “myriad differences between a Constituent Assembly and Legislative Assembly”: one exercised constituent power, and the other legislative power (¶384). On this basis, therefore, C.O. 272 – to the extent it modified Article 370 through Article 367 – was invalid.

It must be noted, however, that the validity of the entire series of actions taken by the Central Government concerning J&K – from the application of all provisions of the Constitution to the State through C.O. 273, to the Jammu and Kashmir Reorganization Act, 2019 that split the state into two Union Territories – hinged on the validity of Article 370’s abrogation, for otherwise, the erstwhile J&K’s own Constitution, as well as modified provisions of the Indian Constitution as they applied to J&K, prevented the Central Government from pursuing them.

The Court had to, therefore, develop new justifications for why – despite C.O. 272’s invalid modification of Article 370 – the Article could still be validly abrogated. Chandrachud, CJ. and Kaul, J. develop four such justifications: first, the persistence of Article 370’s integrationist objectives after the Constituent Assembly’s dissolution, which required that the possibility of J&K’s complete constitutional integration not be foreclosed; second, the proviso to Article 370(3) – which required the Constituent Assembly’s recommendation to abrogate Article 370 – becoming otiose at the moment of its dissolution, conferring unilateral powers on the Central Government to abrogate the Article; third, the character of a “recommendation”, which – even if issued by the Constituent Assembly – would not have bound the President; and fourth, the consultative underpinnings of Article 370(1)(d) becoming meaningless when the entire Constitution – as opposed to individual articles – is applied to J&K. I discuss these one-by-one.

The J&K Constituent Assembly Predeceased Article 370’s Integrationist Objectives – Navigating Article 370(3)

First, the Court makes a clear ideological choice in identifying Article 370’s objectives – it holds, with substantial repetitiveness, that Article 370 was “intended to enhance constitutional integration” between the Union and the State (¶348); that it demonstrated a “gradual process of constitutional integration” (¶465); that it was meant for “constitutional integration and not disintegration” (¶342), along with many other remarks hinting at – as is clear – constitutional integration. It imputes this objective to Article 370 through a study of history, Constituent Assembly Debates, speeches of state officials in J&K and the Union, along with the marginal note and constitutional placement of Article 370 indicating its character as temporary (¶138-9; ¶143-4; ¶231-4). Further, Kaul, J. holds that Article 370 envisioned a “process of phased integration” (¶64) between the State and the Union, noting that the Article sought to achieve “complete integration but…over a period of time” (¶59).

Kaul, J. disagreed, in letter if not in spirit, with Chandrachud, CJ.’s assessment of J&K’s “internal sovereignty” being lost through Article 370. Prem Nath Kaul v. State of Jammu and Kashmir involved a jurisdictional challenge to a law’s enactment by Yuvraj Karan Singh (J&K’s monarch, recognized as the sovereign lawmaker under the J&K Constitution) based on his sovereign lawmaking powers eroding by virtue of Article 370. The Court, rejecting this argument, recognized that a semblance of sovereignty continued being vested in, and exercisable by, the Yuvraj after Article 370’s insertion in the Constitution, and references to J&K’s Constituent Assembly thereunder verified the same (¶26, 36). Chandrachud, CJ. held that such remarks were obiter, and did not authoritatively pronounce on the issue of J&K’s “internal sovereignty”, which was, instead, “[in]distinguishable from that enjoyed by other States” (¶165). Kaul, J., on the other hand, held that Prem Nath Kaul did recognize J&K’s “internal sovereignty”, but Article 370 was nonetheless designed in a manner such that it envisioned such sovereignty to, one day, cease existing:

68. Once these aspects are read with Article 370(3), the corollary is that there was a mechanism to bring the whole arrangement to an end. The effect of the power under Article 370(3), once exercised, would be that the Article ‘shall cease to be operative’. In other words, the mechanism was meant to de-recognize the State’s internal sovereignty.

Despite the theoretical disagreement on whether “internal sovereignty” was retained by J&K after Article 370, both judges concur on the Article’s ultimate purpose being J&K’s complete constitutional integration with the Union. While I do not propose this view to be necessarily incorrect, it was, undoubtedly, the product of a conscious choice: various other perspectives to Article 370, including those identifying as its primary purpose the enhancement of its autonomy, or the creation of avenues of participation concerning decisions affecting the state, have been offered. The Court chose to accord priority only to one objective, which assisted its interpretation of Article 370(3) conferring unilateral authority of abrogation to the President after the Constituent Assembly’s dissolution.

Based on the priority accorded to the integrationist logic deemed to underpin Article 370, the Court held that if the Constituent Assembly’s dissolution became the basis of the Article’s permanence, it would constitute a “freezing of the integration” between J&K and the Union (¶346(e)). In order to prevent such stultification, it held that the Constituent Assembly’s dissolution had no impact on the President’s power to abrogate Article 370, which could now be done unilaterally (¶346(d)). In other words, the proviso to Article 370(3) – which required a prior recommendation of abrogation from the Constituent Assembly became otiose the moment the Assembly was dissolved. All that remained was Article 370(3)’s main text, which empowered the President to abrogate the Article unilaterally. In a similar vein, Kaul, J. held that Article 370’s purpose, which was to “bring Jammu and Kashmir on par with other States”, could not be fulfilled within the J&K Constituent Assembly’s lifetime, and was an “ongoing exercise” (¶70). In order to prevent obstacles to this ongoing exercise, the President would, after the Constituent Assembly’s dissolution, obtain the power to abrogate Article 370 unilaterally. In order to remedy the procedural impossibility of obtaining the defunct Constituent Assembly’s recommendation to abrogate, the Court chose to de-operationalize the proviso requiring this recommendation, justifying it primarily in reference with to integrationist aims of Article 370 that survived beyond the J&K Constituent Assembly’s lifetime.

On the Insignificance of “Recommendations”, “Consultations” and “Concurrence” – Circumventing Article 370(3); Twisting Article 370(1)(d)

Having vested the unilateral power to abrogate Article 370(3) with the President after the Constituent Assembly’s dissolution, the Court added to its justifications – it held that even if such a recommendation was issued, it carried no binding value, and was, therefore, dispensable. Chandrachud, CJ. held that the requirement of a recommendation originating in the Constituent Assembly was akin to a ceremonial ratification process of little legal value, and its non-binding character from the very inception must be a factor in appreciating the validity of its removal (¶346(a)). This approach has been critiqued in an essay by Ashwini Singh.

Kaul, J., on the other hand, offered another reason why the J&K Constituent Assembly’s recommendation – even if issued – would have been non-binding: he states that the word “recommendation” envisions negligible agreement between the entity sending and receiving the recommendation (¶77). He juxtaposed the term “recommendation” with the terms “consultation” and “concurrence”, which are conditions stipulated under Article 370(1)(d) for Parliament’s lawmaking power over J&K, holding that unlike these two requirements positing high thresholds of agreement, “recommendation” does not mean much. The problem, however, lied in the different purposes these terms served under Articles 370(1)(d) and 370(3) – while “consultation” and “concurrence” qualified Parliament’s lawmaking power over the erstwhile State, a prior recommendation from the Constituent Assembly was a procedural condition for the Article’s abrogation, making the comparative weighing of their threshold agreements a likely irrelevant enquiry.

Kaul, J., therefore, held that the President – that is, the Central Government – should be given free rein under Article 370(3), for the value of a recommendation – as opposed to a “consultation” or “concurrence” – was minimal. On the other hand, when it came to the appreciation of these exact standards in C.O. 273’s extension of all constitutional provisions to the state without “concurrence” (or even “consultation”), the Court held that because all of the Constitution was applied to the erstwhile State (as opposed to some specific segments), no concurrence or consultation was necessary. Chandrachud, CJ. and Kaul, J. held that the consultative underpinnings of Article 370(1)(d) – which require the participation of the J&K Government – were relevant only when some constitutional provisions were being applied to the State (¶427(d); 94). On the other hand, when the entire Constitution was being extended, such consultation was unnecessary, for the extension was conceptually akin to the removal of Article 370 through Article 370(3). To summarize, the value of a “recommendation” is minimal, and that of a “concurrence” higher; but when all of the Constitution is applied to the State, both the “recommendation” and the “concurrence” are rendered equally irrelevant!

Conclusion

On this basis, I submit that the logic of integration lies at the judgment’s core – the Court invokes it as the primary justification for conferring unilateral abrogating authority on the President, which, in turn, enables the attribution of immense insignificance to the J&K Constituent Assembly’s “recommendation” concerning abrogation. The pursuit of constitutional integration trumped, in a way, the Constitution itself – instead of compelling the Union to follow either, if not both Article 370(3) and Article 370(1)(d) in the process of abrogation, the Court chose to de-operationalize Article 370(3) to justify the Union’s acts of abrogation, and justified non-compliance with Article 370(1)(d) based on the practical similarity between an order under Article 370(3) and one under Article 370(1)(d).

Guest Post: The Supreme Court’s Article 370 Judgment- VII: Explaining Incoherence

[This is a guest post by Ashwani Kumar Singh.]

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In an earlier post, I critiqued the Article 370 Judgment and argued that Article 370(3) recognised the constituent power of Jammu and Kashmir, which did not cease to exist on the dissolution of the Constituent Assembly of the State. In this post, I dissect the partial invalidation of Constitutional Order 272, and attempt to understand – but not defend – the approach adopted by the Court, as constitutionally incoherent as it may be.

Timing the Review

When a constitutional court is required to determine the validity of an executive or legislative action, an obvious concern is how the executive/legislature (political organs) would respond to the judicial decision. Courts thus have to assess the cost of non-compliance for the political actors. A higher cost of non-compliance would compel the political actors to adhere to the judicial rulings. However, the political actors would be willing to take that risk in high-stakes moments (see Sergio Verdugo’s piece ‘How Judges Can Challenge Dictators and Get Away with It’, especially the introductory section). One could say that the courts – consciously or unconsciously – assess the strength of the political actors and the political value of the concerned issue.

It is no secret that the abrogation of Article 370 had been a long-time agenda of the ruling party. A lack of strong and unanimous opposition from other political parties did not help either. Most of the opposition political actors and parties were concerned with the restoration of statehood and other related issues i.e., the exercise of power under Article 3 of the Constitution. They did not identify strongly with the procedure for abrogation of Article 370 laid down in clause (3) of the provision. This is not to say that the absence of political allies relieved the Supreme Court of its constitutional responsibilities, though one wonders if the delay in hearing of the matter affected or influenced the judicial decision/approach. Despite the inconsistent and incomprehensible observations (see my previous post), the court does manage to save something for ‘itself’.

Further Observations on Constituent Power

Though the partial invalidation of Constitutional Order 272 did not have any effect – as others and I have discussed in the previous posts – on the validity of the abrogation order (Constitutional Order 273), it did achieve two things. First, the court – adhering to and strengthening the settled jurisprudence of implicit limitation on legislative power – stated that ‘Legislative Assembly cannot be equated to the Constituent Assembly’ (see Para 384 of the majority judgment). Second, the Court held that the Constitution can be amended only through the prescribed constitutional procedures, and such procedures cannot be bypassed. The Court noted, in para 390, ‘the consequence of permitting amendments through the circuitous manner would be disastrous’.

These are obvious and expected observations but nonetheless important, given the recent attacks on the basic structure doctrine. The Court elaborated on the functions of constituent assemblies and legislative assemblies. It further noted that a constituent assembly ‘has a free rein to frame a Constitution’ (see page 266 of the majority judgment). For the Supreme Court, a constituent assembly is an extra-constitutional institution. It is not constrained by the Constitution.

Thus, on one side, the Court held CO 272 as partially unconstitutional, because it modified ‘the essential character of the proviso (to Article 370(3)) by substituting a particular type or kind of body (the Constituent Assembly) with another type or kind entirely (the Legislative Assembly) (see page 266 of the majority judgment). But even as it did so, on the other, the Court identified ‘constitutional’ limitations on the Constituent Assembly of Jammu and Kashmir. For instance, the Court noted that the Constituent Assembly could ‘fill in the details and provide a pattern of governance’ consistent with the constitutional prescription but could not declare Jammu and Kashmir as an ‘independent sovereign country’. These two conclusions – modification of essential character of the proviso to Article 370(3) and limitations on the State Constituent Assembly – are conflicting. I am not arguing the State Constituent Assembly had unlimited constituent power. As also submitted by the petitioners, the Assembly had to exercise its constituent power in compliance with Article 1 of the Constitution. I am disputing the degree and kind of limitations that the Court has envisaged. It appears (to me) that if we were to accept such limitations, the State Constituent Assembly would have more in common with a legislative assembly and hardly anything in common with an institution exercising constituent power.

Concluding Remarks: Saving the Constitution but not Kashmir

The Court has ‘attempted’ to ensure that nothing from the judgment could affect the future review of constitutional amendments. It expressly identified the presence of asymmetric federalism. As Gautam has shown in a previous post, the Court arguably did not ‘grant the union carte blanche under Article 356’. The Union, he argues, cannot make ‘irreversible changes to the constitutional structure vis-a-vis the state’ under Article 356. Though the Court did leave the question relating to Article 3 open to the future, it did not abdicate its power to sit in review of such decisions. I emphasize these points not to praise the court, but to say that the primary issue was the non-compliance of the abrogation procedure laid down in Article 370(3), and the Court has let us down.

Guest Post: The Supreme Court’s Article 370 Judgment – VI: On Representative Democracy

[This is a guest post by Krishnesh Bapat.]

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The critical question in In re: Article 370 of the Constitution was whether the President (acting on advice of the Government of India) could terminate Article 370, without involving the representatives of the people of Jammu & Kashmir (‘J&K’). This obligation to involve the representatives of the people of J&K arose because of the proviso to Article 370(3). According to the proviso, a recommendation from Constituent Assembly of J&K was a pre-condition before the President issued a notification to terminate operation of Article 370.

Conceptually, a similar question arose in the United Kingdom (‘UK’) in 2017 in R v. Secretary of State for Existing European Union (‘Miller 1’). Article 50 of the Treaty on the European Union (‘EU’) provided that a member state could withdraw from the EU after complying with its own constitutional requirements. The question in Miller 1 was whether the Government of UK could unilaterally withdraw from EU in exercise of its prerogative powers or whether it had to obtain the approval of the representatives of the people of UK in the Parliament.

Thus, fundamentally, the question in both In re: Article 370 and Miller 1 was whether the executive was legislatively constrained from exercising power. In this post, I compare these two judgments. As we shall see, the judgments reveal the constitutional values the courts embrace. While the Supreme Court of India continued its practice of deferring to the executive at the cost of the legislature, the majority opinion of the Supreme Court of the UK restrained the executive from depriving people of domestic rights without parliamentary approval. The argument is not that the Supreme Court of India should have followed Miller 1 – it could not have, considering the difference in the constitutional schemes and the specific questions before them. Instead, it is to highlight which values each of the courts placed a premium upon.

Beyond this critical question, I also compare how the two courts responded to similar assurances by the executive that the legislature will enact legislation at a later date. While the Supreme Court of India readily accepted this submission and chose not to decide on the legality of converting the State of J&K into a Union Territory, the Supreme Court of United Kingdom, outrightly rejected it.  

On the critical question

The question before the Court in In re: Article 370 was whether Constitutional Orders (‘CO’) 273 complied with the procedure provided in the Constitution. Kieran Correia, in a previous post has explained the import of the CO. For our purposes it is enough to say that CO 273 notified that Article 370 shall cease to exist. It was issued under Article 370(3), the proviso to which, required a recommendation from the Constituent Assembly of the State. The purpose of the proviso was to uphold the fundamental character of representative democracy (See Mohd. Maqbool Damnoo v. State of Jammu & Kashmir). The President could not alter Article 370 without involving the direct representatives of the people of Jammu & Kashmir.

The Supreme Court did not dispute this position of law (See Para 426). Yet it upheld CO 273, even though the representatives of the people of Jammu & Kashmir did not have any say in its notification. The justification offered by the Court was that since a) the Constituent Assembly had ceased to exist, the President could unilaterally notify that Article 370 shall cease to operate; and b) the recommendation was anyway not binding on the President (para 346). As Kieran has pointed out, the first justification ignores that the proviso to Article 370(3) indicates ‘more than the Constituent Assembly as an institution, it is the constituent power of the people of Jammu and Kashmir that was represented.’ The second justification sidesteps the text of the Constitution which made recommendation from the representatives of the people a pre-condition before the exercise of executive power. It does not matter that the recommendation was not binding: the fact of the recommendation was still necessary.

How does this compare with the majority opinion in Miller 1? As mentioned above, the question in Miller 1 was whether the Executive in the UK could unilaterally initiate the process of leaving EU without parliamentary approval. The Executive in the UK has a prerogative power to enter into and withdraw from treaties. Despite acknowledging the centrality of this prerogative power in the constitutional scheme of UK, the Court held that parliamentary approval was necessary. The majority observed that ‘far-reaching change to the UK constitutional arrangements’ cannot be brought by ministerial action alone. The change was far-reaching because withdrawal from the EU would abrogate the rights available to people in the UK from EU law (para 81). These rights were created by a series of statues which the Parliament had enacted after the UK joined the EU. Therefore, parliamentary sovereignty required that only the Parliament could take away those rights, and not the executive.

Thus, the decision in Miller 1 placed a premium on the legislature, as against the executive. This was consistent with the principle of representative democracy. In contrast, the plurality opinion in In re: Article 370, crowns the executive with a power greater than what the executive itself claimed. The executive believed that a recommendation from the Parliament (and not the Constituent Assembly) was necessary, but a deferential court held that the executive could unilaterally cease the operation of Article 370. This approach which side-lines the people of Jammu & Kashmir entirely despite the explicit stipulation in the Constitution, undermines representative democracy and federalism, both of which are essential to our constitutional scheme.

On assurance

Supreme Court of India’s deference to the executive did not stop here. Another issue before the Supreme Court of India was the validity of the Jammu and Kashmir Reorganisation Act, 2019. The Act reorganises the State of Jammu & Kashmir into two Union Territories. The Petitioners argument was that the Parliament cannot use Article 3 to extinguish the character of statehood by converting a State into a Union Territory. The plurality opinion waxed eloquent for 32 paragraphs (Para 471 to 502) on the constitutional history of States and Union Territories, the reason for existence of Article 3, federalism and representative democracy. However, in the 33rd paragraph, it refused to decide the legality of the reorganisation. It did so because the Solicitor General had submitted that statehood would be restored in Jammu and Kashmir (Para 503).

The Solicitor General (for the Union of India) submitted that statehood will be restored to Jammu and Kashmir and that its status as a Union territory is temporary. The Solicitor General submitted that the status of the Union Territory of Ladakh will not be affected by the restoration of statehood to Jammu and Kashmir. In view of the submission made by the Solicitor General that statehood would be restored of Jammu and Kashmir, we do not find it necessary to determine whether the reorganisation of the State of Jammu and Kashmir into two Union Territories of Ladakh and Jammu and Kashmir is permissible under Article 3……

There are two concerns. First, what may or may not happen in the future does not change the question before the Court. The question before the Court was the legality of a reorganisation which has deprived a people of a democratically elected government for the past 4 years. If the reorganisation is illegal, the illegality should cease immediately and not at an undetermined time in the future. This is akin to detaining someone illegally and then a court ruling that it will not decide the legality of the detention as the detainee will be released sometime in future.

Second, restoring Jammu and Kashmir’s statehood would require legislation from the Parliament in terms of Article 3 of the Constitution. In law or in fact, a law officer simply cannot give any assurances regarding how the Members of Parliament would vote on a bill. The Members, including those from the treasury bench, are entitled to vote as they deem fit notwithstanding the 10th Schedule. Moreover by June next year the 18th Lok Sabha will get elected and it may not have the same composition as the 17th Lok Sabha. Here, as Apar Gupta pointed out, the decision in Shreya Singhal v. Union of India, is worth noting. In that case, the validity of Section 66A of the Information Technology Act, 2000 was under challenge. The law officer for the government assured the Supreme Court that the government would not use Section 66A to curb free speech. The Court rejected the submission and held that if Section 66A was otherwise invalid, it could not be saved by an assurance which does not even bind successor governments (Para 92).

While the Supreme Court of India readily accepted the assurance, the Supreme Court of the UK did not do so. In Miller 1, the Government of UK assured the Court that it would enact a legislation repealing EU law after initiating the process to leave the EU. The Court rejected this submission because the intentions of the government are not law, and that the ‘courts cannot proceed on an assumption that will necessarily become law’ (Para 35). Unfortunately, the Supreme Court of India has proceeded entirely on that assumption.

Concluding remarks

The majority verdict in Miller 1 is not a gold standard. The dissent in that case has been strongly defended on the ground that the majority has unnecessarily curtailed the prerogative powers of the Executive. Nonetheless, the majority opinion does further values of representative democracy, having found those values in an unwritten constitution. In contrast, the plurality in In Re: Article 370, conferred unilateral power upon the executive, even when a written Constitution required direct involvement of the representatives of the people of Jammu & Kashmir.

I would be remiss if I do not point the timeline within which both the courts adjudicated significant constitutional disputes. On June 23, 2016, the UK Government stated its intention to issue a notice to leave the EU. On January 24, 2017, the Supreme Court of UK pronounced its decision in Miller 1. The intervention in R v. Prime Minister (‘Miller 2’) was even more timely. In that case, the question was whether the advice given the Prime Minister to the Queen to prorogue the Parliament was lawful. The advice was given on August 28, 2019 and 11 judges of the UK Supreme Court unanimously ruled on September 24, 2019 that the advice was not lawful. In contrast, the COs in In re: Article 370, were notified in August, 2019 but a decision on their legality was only pronounced in December, 2023. Enough has already been said about the manner in which this case was kept pending. In any case, the Supreme Court seriously needs to introspect on how to avoid delays in cases where it is improbable if not impossible to set the clock back.

Guest Post: The Supreme Court’s Article 370 Judgment – V: On the Extinction of Statehood

[This is a guest post by Kieran Correia. Following previous posts on the President’s power to abrogate Article 370, and the scope of Article 356, this piece discusses the Court’s non-decision on the conversion of the state of Jammu and Kashmir into two union territories.]

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Article 370, to Sheikh Abdullah, was a repository of the particularity of Kashmiri autonomy, of ambitions to protect their distinct ethnolinguistic and religious identities and to embark on large-scale land reform. As he remarked in the Jammu and Kashmir Constituent Assembly, on 25 March 1952, there was no doubt that there was “no other State which enjoy[ed] similar constitutional status.” The premise of this, however, was full-fledged statehood – the promise that Jammu and Kashmir would be an equal part of the Union with a distinct status to respond to its demands.

The Union, after decades of chipping away at Jammu and Kashmir’s distinct status, eventually extended the entire Constitution to Jammu and Kashmir. The constitutional saga was not to end there, however. The Jammu and Kashmir Reorganisation Bill 2019 was introduced on the same day, carving out two Union Territories (UTs) – Jammu and Kashmir, and Ladakh – from the existing State. The idea of “no other State” was buried; now, it appears, Parliament wanted no state at all.

The Reorganisation Act, it bears no reminder, was unprecedented in Indian constitutional history. At no time, with any of the multiple Reorganisation Acts that have been passed in our history, has Parliament demoted a state – in its entirety – to a UT, or UTs in this case. In my third and final post on In Re: Article 370, I attempt to dissect the Court’s treatment of Parliament’s exercise of power under article 3.

Interpretive evasion and the Executive(’s) Court

Petitioners impugned the Reorganisation Act on the grounds that it was ultra vires the Constitution, as the power of degrading the status of a state to a union territory is not provided to Parliament or, at least, not provided to Parliament in article 3. Petitioners conceded that in the process of redrawing state lines, a state may be extinguished: take, for example, the State of Bombay being reorganized into the States of Maharashtra and Gujarat. However, what is distinct in the reorganization of the State of Jammu and Kashmir is that the status of the state as a whole was downgraded, and its statehood extinguished.

Chandrachud CJ agreed with the distinction between “extinguishing a State and extinguishing the character of a constituent unit as a State” (para 499) (emphasis in original). The latter is when a state is “converted into a Union territory in full, with no part of it retaining statehood,” a scenario clearly different from, for example, the reorganization of the State of Bombay.

However, in a bizarre move, the Court chose to abdicate its responsibility of pronouncing on the issue entirely, invoking a submission from the Solicitor General that “statehood will be restored to Jammu and Kashmir and that its status as a Union territory is temporary” (para 503). This is – with due respect – absurd for a constitutional court. The judicial function, in its most conservative sense, is to frame issues, hear both sides, and subsequently pronounce on those issues, with adequate reasons. Relying on assurances from one side – assurances made in the air, with no fixed timeline or enforcing mechanism – is out of the ordinary.

Of course, this is far from new for the Court. This judgement is of a piece with a subtle, but noticeable, shift in the Court, as it resembles, more and more, an “Executive(’s) Court.” Sealed cover jurisprudence (fortunately no longer in vogue), judicial evasion, judicial vagueness, and so on marked the culmination of a scepticism towards procedure and a fascination with rhetoric. The manner in which the Court deals with the issue of the extinction of statehood here is best described as interpretive evasion – a practice of avoiding deciding on an issue or supplying any reasoning, preferring, instead, an ad-hoc style of adjudication characteristic of informal adjudication.

The Court thus kicks the can down the road, leaving the question of whether the “character of statehood” can be extinguished for another Court to rule on – despite its centrality to the present case. The underlying basis of the Reorganisation Act, as one set of Petitioners submitted, is one that “place[s] the very concept of statehood at the mercy of the Union Parliament” (Mr CU Singh’s Written Submissions, para 73) (emphasis in original) – a constitutional question which goes unaddressed in the judgement. The assurances of the Solicitor General, unfortunately, cannot resolve constitutional issues.

Dispensing with procedure as constitutional practice

The other question before the Court was whether Parliament could have substituted its views for those of the state legislature under the first proviso to article 3, which allows for the alteration of areas and boundaries of existing states. The Court, however, could only have proceeded to this question if it found that article 3 confers the power of extinction of statehood in the first place. If this power did not exist – or, at least, article 3 did not grant such power – the question of requiring the views of the state becomes moot.

Because the Court elected to cop out, its discussion of the first proviso to article 3 has no actual bearing on the case. Nonetheless, the Court’s analysis of the interface between article 356 and article 3 is important to understand – if only as a portent of things to come.

While the first proviso to article 3 requires only the views, and not concurrence, of the state legislature – as confirmed by Babulal Parate – the Court held even this requirement to be dispensable. Parliament could thus substitute its own views for those of the state legislature. However, the Court failed to consider the dialogic value of the state legislature submitting its views: that of creating the conditions for a more considered decision, informed by the views of a body bent slightly closer to the ground, by the President when she recommends a reorganization bill to Parliament for its consideration (or, as it works out in practice, allowing for a more considered decision by Parliament).

Parliament supplying its own views in place of the legislature’s defeats this purpose. While the power of the veto was – with good reason – withheld from the states at the time, lest dominant groups sabotage minorities within a state, the requirement of eliciting the views of the state legislature cannot be held to be meaningless. Indeed, if the Court’s reasoning is applied in practice, the Union can simply impose President’s Rule on a state and consult with itself before reorganizing a state; much like self-concurrence, self-consultation is a contradiction in terms. The Court thus greenlit a clear-cut case of abusive constitutionalism.

Before I conclude, the Court also briefly discussed the second proviso to article 3, added by Constitution Order 48 in 1952. The proviso stated: “Provided further that no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State” (emphasis added).

The second proviso was suspended with the Presidential Proclamation that imposed President’s Rule in Jammu and Kashmir. However, temporally, CO 272, which extended the entire Constitution to Jammu and Kashmir and did away with any exceptions and modifications to the provisions of the Constitution, preceded the Reorganisation Act. Since the Court held that aspect of CO 272 to be valid, the second proviso ceased to exist. Therefore, ruling on the validity of the suspension of the second proviso to article 3 would be redundant and the Court does not address this issue substantively.

Tying the threads

In my first post, I had cautioned against seeing In Re: Article 370 as an aberration, a manifestly unconstitutional judgement that flies in the face of decades of settled constitutional jurisprudence. The Constitution, despite its pretensions to federalism, has placed the Union in a position of structural dominance over states – a position the Court has, as a rule, chosen to take interpretive inspiration from rather than mitigate in some way.

As we acknowledge its continuity with a longer strand of jurisprudence, however, the specificity of this verdict should not be lost on us. The Court here engages in what I call interpretive evasion with a perfection that only comes with practice. It makes a mess of interpreting the Constitution, emphasizing the text where convenient – even to the exclusion of other factors – and ignoring it where not. A pro-Union and pro-Executive bias congeals into a judgement that engages in an interpretation of the Constitution that sanctions blatantly abusive constitutionalism. Considering the entire abrogation exercise and the subsequent reorganization collapsed pivotal contradictions that are central to federal jurisprudence in India, the immediate task must be to limit the verdict to its facts.

There is no doubt that In Re: Article 370 represents a crisis in Indian constitutional law. As Gautam notes at this juncture, “[T]ext, structure, precedent, and the canons of constitutional interpretation have become negotiable materials in constitutional adjudication, especially when the constitutionality of acts of State is under challenge.” This, however, is no reason to be despondent. As a famous thinker once quipped: “Everything under heaven is in utter chaos; the situation is excellent.”

Guest Post: The Supreme Court’s Article 370 Judgment – IV: Emergency, President’s Rule, and Constitutional Change

[This is a guest post by Kieran Correia. As part of the ongoing blog series examining the Supreme Court’s Article 370 judgment, this post shifts tack from unilateral Presidential action (examined in the previous three posts), to issues around Article 356 of the Constitution.]

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[Editorial Note: As a matter of constitutional doctrine, it is important to preface this post with the observation – flagged briefly in the post – that once the Supreme Court held that the President was empowered to unilaterally abrogate Article 370 through the route of Article 370(3), the issue of whether or not this was done during the pendency of an Article 356 Emergency proclamation in the State became irrelevant to deciding the issue. Consequently, as a matter of constitutional doctrine, the majority judgment’s observations on Article 356 – discussed below – are obiter dicta, and do not form binding constitutional law. However, this must be accompanied by the caveat that the distinction between ratio and obiter – to say nothing of constitutional doctrine itself – has more or less been effaced in Indian constitutional jurisprudence.]

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In an earlier post, I had discussed the Court’s holding on the abrogation of article 370. Here, I will take up two of the limits on the President’s powers under article 356 proposed by Petitioners and how the Court responded to these claims. The first is the nature of the legislature’s powers that can be assumed by Parliament after a Proclamation of Emergency, and the second is the nature of the power that can be concretely exercised.

Before I begin, it must be noted that the key issue was whether the President and Parliament could, after a 356 Proclamation, stand in for the state government and legislature in their respective rôles under articles 370(1)(d) and 370(3). The Court made quick work of the petitioners’ written submission, holding: first, that the President can unilaterally abrogate article 370, doing away with the recommendation of the Constituent Assembly as a precondition; and secondly, that since the extension of the entire Constitution to Jammu and Kashmir under article 370(1)(d) has the same effect as abrogation under article 370(3), it does not matter if the President is – in effect – seeking his own concurrence or that of the state government.

In other words, the abrogation of article 370 did not, as a matter of law, require the Promulgation of Emergency; remove the Emergency from the equation and the Court’s holding on articles 370(1)(d) and 370(3) remains the same (see Editorial Note above). While this may seem like an obvious observation, it is important to make it for the sole reason that the Court’s obiter does not become part of, as Gautam calls it, “a kind of constitutional ‘common sense’” – and, worse, a future verdict. Nonetheless, in the spirit of academic critique, I will discuss the reasoning the Court provided while examining the Emergency issues it framed for itself.

Article 356(1) and the Effacement of Federalism

Let us begin with the text of article 356. Entitled “Provisions in case of failure of constitutional machinery in State,” article 356 states, in relevant part, that if “a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution,” the President – upon being so satisfied – may, by Proclamation, inter alia “declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament.”

The text provides us some clues about the reason for its provision and the manner in which it ought to be implemented. For one, there must be a failure of constitutional machinery in a state. For another, to avoid the gap in daily governance created by suspending the state legislature, its powers can be entrusted to the President and Parliament. This temporary takeover should be read in light of the object of an Emergency Proclamation.

The Petitioners thus offered an interpretation of the state legislature’s powers – given the impugned CO 272’s replacement of the Constituent Assembly with the legislature in article 370(3) – in this context. Petitioners distinguished between the constituent and legislative powers of the legislature, with former including the power to give its concurrence under article 370(1)(d). Chandrachud CJ prefers the broader labels of “law making” [sic] and “non-law making” [sic] powers, noting, “in addition to the legislative powers granted to the States under List II of the Seventh Schedule, the States have also been granted various non-law making [sic] powers to ensure the voice of their electorates are [sic] well represented at the constitutional plane” (para 220). These powers – which include the election of the President, the ratification of certain amendments, and, in this case, the giving of concurrence – are intrinsically incapable of being exercised by the temporary Union administration. As the judgement also goes on to recognize, these non-law-making powers “ensure[] that the constitutional governance of the State cannot be overridden by national considerations” (para 220).

Chandrachud CJ nonetheless goes on to reject this argument, observing that article 356(1) admits of no distinction. If one is to contend that even the thin layer of federal protection that exists in the Constitution can be exercised by Parliament at the time of an Emergency, the Court is essentially greenlighting, in theory, the Union unilaterally altering the fundamental workings of a State or making decisions intimately bound up with its federal identity.

Constitutional breakdowns and irrevocable changes

The second submission Petitioners made that I will analyse was that “fundamental, permanent and irrevocable” changes were not permissible in exercise of article 356 powers (Mr Gopal Subramanium’s Written Submissions, para 107). Since “emergencies” are necessarily not in the normal course of events, and Emergency powers are temporary provisions allowing for the Union to restore normalcy in the affected areas, article 356 did not give the President carte blanche. These powers are hemmed in by the fact that they are temporary. Moreover, Emergency powers are restorative and conservative (I use the term not in the partisan sense) and not generative or destructive.

The Court however rejects these arguments. Gautam, in his earlier post, advanced an alternate interpretation to the current reading that is circulating. The judgement contains two holdings: first, actions undertaken post the promulgation of Emergency must have a reasonable nexus with its object and purpose. And secondly, irreversible changes to the constitutional structure could not – logically – be the object and purpose of a declaration of Emergency, as it is intended to be restorative. Therefore, the only reading possible would be that the judgement did not have constitutional changes in mind in permitting permanent changes.

Chandrachud CJ, however, is quite clear in treating the power under article 356(1) as unlimited. In his view, articles 356 and 357(2) are watertight compartments; the power vested in state governments to repeal legislative action taken does not introduce a limitation on the President’s power under article 356. However, as Petitioners had submitted, when two constitutional principles collide, one cannot be permitted to efface the other (WS, para 118). And yet, the Court’s reading of Part XVIII of the Constitution, informed by the authoritarian logic of the Forty-second Amendment, resolves this antinomy by allowing article 356 to swallow the safeguard baked into article 357(2) – all in the guise of preventing article 357(2) from limiting the article 356 power!

Moreover, Chandrachud CJ conducts a close reading of the text of article 357(2) to find that it only covers “laws” and not “executive actions” (para 212. b.) (emphasis in original). However, he goes on to acknowledge that:

212. … c. Article 357(2) encapsulates the working of the Indian federal model by providing that though the division of powers between the Union and the State legislatures which is a core component of the federal structure is capable of being altered during the subsistence of the proclamation under Article 356, the federating units would have the power to reverse or modify the changes which were brought by the Union during the subsistence of the Proclamation. In that sense, Article 357(2) enables the restoration of federal principles.

The majority opinion, then, is in irreconcilable conflict with itself. On the one hand, Chandrachud CJ excludes any limitation on 356 powers and, further, “executive actions” from the purview of article 357(2) and, therefore, any test limiting the President’s power. On the other hand, he admits to the purpose underpinning article 357(2) – allowing the restoration of federal relations to the status quo ante – and maintains the necessity of an object and purpose test. The upshot of all this is, unfortunately, a Janus-faced reading of Emergency powers that does not do us any favours.

Conclusion

The Proclamation of Emergency – and the subsequent abrogation of article 370 under its cover – was a hot button issue but, somewhat paradoxically, rendered meaningless by the Court’s eventual ruling. Nonetheless, the judgement contained several observations that, should they be incorporated in a future holding, would hollow out an already emaciated federal scheme in India, leaving it a shell of its former self. Whether In Re: Article 370 marks a turning point in that regard rests on how we all respond to the Court.