The Supreme Court’s Electoral Bonds Judgment – II: The Arbitrariness of Manifest Arbitrariness [Guest Post]

[This is a guest post by Kieran Correia.]

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In an earlier post, I discussed the majority opinion’s analysis of the first issue in the Electoral Bonds Case – whether the non-disclosure provisions which the Finance Act 2017 introduced in various legislation, and included in the Electoral Bond Scheme (EBS), were unconstitutional. Apart from this, Chandrachud CJI also briefly looks at another central feature of the new electoral financing régime – the elimination of the cap on corporate financing – which this post will take up.

As discussed in the previous blog, corporate donations to political parties were strictly regulated since 1960, when the Companies (Amendment) Act 1960 first introduced a cap. Then, a few years after the Santhanam Committee’s report in 1963, which uncovered high-level corruption, Parliament outrightly prohibited and criminalized corporate funding – a ban which was to last till 1985, when a cap of five per cent of a company’s average net profits in the preceding three years was introduced. This restriction carried over to the new Companies Act 2013 – now at seven and a half per cent.

Section 154 of the Finance Act 2017 entirely did away with this restriction. The 2017 Act amended section 182 of the Companies Act to delete the limit which it contained. This was the first time since 1960 that corporations were not limited, or prohibited, from political contributions. The Petitioners therefore challenged the elimination of this restriction for being unconstitutional, invoking articles 14 and 19.

Article 14 and the Problem of Unlimited Corporate Funding

The Court sticks to the article 14 challenge with respect to section 154, and only invokes the manifest arbitrariness doctrine. Manifest arbitrariness, or at least Nariman J’s spin on it (first articulated in the Shayara Bano case), has been enjoying its day in the sun of constitutional jurisprudence. For a law to be “manifestly arbitrary,” on Nariman J’s account, it must be “irrational, capricious, or without an adequate determining principle.”

Chandrachud CJI takes a different, slightly less ambiguous, approach to the doctrine. In his version, the test comprises two disjunctive prongs: either the legislature fails to make a classification by recognizing the degrees of harm (which he borrows from Misra CJ’s opinion in Navtej), or the purpose is not in consonance with constitutional values (para 209).

The Court invokes the first component – non-classification – in the failure to distinguish between corporations and individuals and between profit- and loss-making companies (paras 211–214). An individual’s political contributions have never been capped by law. However, corporations’ donations have historically been restricted. The reasons for this – as the Court recounts – were to prevent loss-making and shell companies from donating large amounts of money to political parties.

By dispensing with the proviso to section 182(1) of the Companies Act, which ensured only profit-making companies could contribute to parties, section 154 essentially allows loss-making companies to funnel large sums to parties – an act that nakedly resembles a quid pro quo. Allowing contributions by shell companies, on the other hand, does away with the safeguard of corporate democracy that exists within corporations, and allows large sums to change hands – and thereby distort the electoral process – with no oversight whatsoever.

Finally, the Court notes how “unlimited contribution by companies to political parties is antithetical to free and fair elections because it allows certain persons/companies to wield their clout and resources to influence policy making [sic]” (para 210). The Court again employs the principles of political equality and free and fair elections it articulates in deciding the first issue in finding the provisions unconstitutional. In other words, the Court finds the sanction of unlimited contributions manifestly arbitrary because its purpose is not in consonance with the constitutional value of free and fair elections.

Manifest arbitrariness and its discontents

The Court, in its analysis, focuses on the article 14 challenge, and chooses to sidestep entirely the classification test. In this context, it is important to note that the manifest arbitrariness doctrine – a change in costume from the arbitrariness doctrine of the 1970s – has come under immense criticism from scholars, who have faulted it for its vagueness, imprecision, and lack of place in legislative review (the review of legislation by courts).

The arbitrariness doctrine, Tarun Khaitan argues, is essentially the Court smuggling Wednesbury unreasonableness – a standard of administrative action review – into legislative review (a feat paralleled by a similar move in “proportionality” review cases). The locus classicus of the “new” arbitrariness test, EP Royappa, also concerned executive action, as Khaitan notes; unfortunately, subsequent judgements of the Court have elevated it to a standard of legislative review.

The problem with the arbitrariness doctrine, as many scholars have pointed out, is that it ignores the text of article 14, which is essentially comparative. A petitioner complaining of her right under article 14 being violated must show how she has been treated unequally in comparison to someone else similarly situated. However, the arbitrariness doctrine is non-comparative – if one seeks to charge a provision with arbitrariness, one does not need to compare it with another provision to prove the point. As HM Seervai points out, this renders redundant the law’s “equal protection of the laws” to persons and therefore “hangs in the air” (Constitutional Law of India, 4th edn, vol 1, p 438). Since everyone is not, in fact, equal, the purpose of the classification test is to ensure that the law can differentiate between people who are not similarly situated.

It is perfectly possible, as Khaitan notes, for something to be unreasonable but not unequal – or even arbitrary but not unequal. This problem plagues the second component the Court identifies – when the purpose of a provision is not in consonance with constitutional values – even as it represents an attempt to give the doctrine some meaning. A purpose not aligned with constitutional values, whatever that would mean, is essentially a non-comparative test – it does not involve a comparison of any kind and is a free-standing enquiry.

More than non-comparison, article 14 thus becomes an empty vessel for the Court to pour any “constitutional value” – itself a dangerously vague phrase – into. The Court does not show us how free and fair elections are connected to the equality guarantee. The only principle the Court tethers free and fair elections to is democracy. But equality is not the same as democracy; where the two overlap, it is on the Court to show us where and how they do. The Court thus detaches equality review entirely from the text of article 14, as Seervai had long ago chastised the Royappa Court for doing (p 438).

As for the first component of the test, the failure to classify on the part of the State is built into the reasonable classification test, which the Courts has recognized on multiple occasions (see here and here). Indeed, that is the logical conclusion of the Aristotelian principle of treating “likes alike,” which is the basis of the classification test. A failure to classify where classification is necessary – as it is with corporations and individuals or profit- and loss-making companies – contravenes this principle.

It is thus unclear why the Court had to use the manifest arbitrariness doctrine at all, especially considering the doctrine as it stood at the time did not include this principle, as – if we recall – it was two judges (Misra CJ and Khanwilkar J), out of five, who recognized it initially. Admittedly, while there is much to criticize in the highly formalistic Aristotelian version of equality. However, the Court only muddies the waters by classifying – ironically enough – the failure-to-classify principle under the manifest arbitrariness doctrine.

The road(s) not taken

There is nothing objectionable, to be sure, with the Court’s final conclusion. The elimination of the cap on corporate donations to political parties – thereby allowing unlimited funding – is unconstitutional. However, the Court must be careful in carrying out the task of judicial review, especially legislative review. The Constitution is made up of words, and words, after all, have meaning.

The arbitrariness doctrine was, from its inception, a rhetoric-heavy test that had little grounding in the principles of legislative review. The outcome of using the first component of this Court’s version of the test – the failure to classify – could just as easily be achieved using the classification test. The second component, on the other hand, presents an opportunity for the Court to use article 14 as a decoy to invoke any constitutional value, thereby unravelling the test’s already tenuous connection with the text of article 14. A more constitutionally sound method would be to test these provisions on the ground of the classification test, which the Court does indirectly. For some reason, however, the Court cloaks it in the garb of the manifest arbitrariness test, and collapses one into the other.

Another option for the Court would be to assess the impugned provisions vis-à-vis article 19(1)(a), which it had already extensively analysed while deciding on the first issue. As one of the Petitioners had submitted, the elimination of restrictions “violates Article 19(1)(a) insofar as it permits deep pocketed companies to flood out the voice of citizens who do not have access to such funds” (Petitioner’s Written Submissions, para 76). Unfortunately, however, the majority opinion – signed by four out of five judges, no less – cements this iteration of the manifest arbitrariness test in article 14 jurisprudence, leaving us doctrinally worse off.

Addressing Boundary and Transplant Issues in Horizontality: The Judgment of the Kenyan High Court in Busia Sugar Industry vs Agriculture and Food Authority

Introduction

In a judgment delivered earlier this month (Busia Sugar Industry vs Agriculture and Food Authority), the High Court of Kenya at Busia (through Musyoka J) made an important contribution towards the evolution of horizontal rights jurisprudence. The facts of the case are complex, and can be traced back to ongoing commercial battles over control of sugar production in West Kenya (see, for example, this report of parallel proceedings elsewhere). However, for our purposes, the relevant context is this: the Petitioner – a private sugar milling company – filed a constitutional petition against Respondent No. 1 (the statutory authority) and Respondent No. 2 (a rival private sugar milling company). The allegation was that Respondent No. 1 had wrongly granted a registration license to Respondent No. 2; and because Respondent No. 2’s mill was was within the Petitioner’s catchment area, as a direct consequence of the granting of this license – which allowed Respondent No. 2 to commence operations – the Petitioner was suffering a grave and ongoing financial loss. Compensation was, therefore, prayed for.

Midway through the proceedings, Respondent No. 1 (the statutory authority) was dropped. Consequently, with respect to this claim, the Petitioner’s case was solely against Respondent No. 2: that is, it was now a constitutional case, at the instance of one private party against another private party. Naturally, Respondent No. 2 argued that the case was not maintainable: at best, the Petitioner could pursue its grievances through a civil suit, and not through a case founded on an alleged violation of constitutional rights. Thus, the issue of the horizontal application of the Constitution was squarely before the Court.

Courts that have grappled with the question of horizontality – that is, the application of constitutional rights to “private” relations – have faced two issues: let us call these the boundary question and the transplant question (see, e.g., Chapter Three of the present author’s PhD Thesis; and here). In brief, and at the risk of being reductive, the boundary question asks: what principles must we deploy to define and limit the terrain of horizontal application, in order to preserve the integrity of private law, and avoid the “constitutionalisation” of all legal disputes. The transplant question asks: given the very different characters of the State and private parties, when can a constitutional right that is designed with a view to being enforceable against the State, be “transplanted” to apply to a private relationship (for example, the right to vote obviously cannot be transplanted; the right to privacy arguably can, with a few tweaks).

Since the advent of the 2010 Constitution, which makes the bill of rights horizontally applicable, the Kenyan courts (like their counterparts around the world) have grappled with both the boundary question and the transplant question (see, e.g., Chapter Eight of the present author’s PhD Thesis). With respect to the boundary question, one line of decisions has held that the existence of an alternate legal remedy (say, under private law) will be a good reason for the Court not to apply the Constitution horizontally (for an analysis and critique of this in terms of the doctrine of constitutional avoidance, see Walter Khobe). This is somewhat similar to Ireland’s constitutional tort doctrine, where some Irish courts have indicated that horizontality (via constitutional tort) will apply where private law is “inadequate” to deal with the issue (see e.g. W v Ireland (No 2) [1997] 2 IR 141 (HC); Hanrahan v Merck Sharp and Dohme [1988] ILRM 629 (SC); see also, the critique of this position by O’Cinneade). With respect to the transplant question, the doctrine is less clear: at times, the Courts have held that not all (private) disputes are fit for constitutional resolution, but in elaborating why, Courts have sometimes fallen back upon the boundary question, by noting that the existence of alternative legal remedies indicates that a particular dispute is not to be adjudicated through the prism of horizontality.

The Transplant Question

In Busia Sugar Industry, the Court considered both questions. It began with a terse but exhaustive summary of the constitutional position (paragraphs 75 – 77), laying out some of the issues discussed in the paragraph above. It then considered the issue of constitutional tort, and noted that a constitutional tort need not be applicable only against the State, but applies equally against non-State parties. While there has been some back-and-forth on this issue in previous judgments, in the Kenyan context, this is self-evidently correct: in Ireland, the constitutional tort doctrine was a judicial innovation where the Constitution was silent on the question of horizontality. In Kenya, however, Article 20 explicitly makes the Bill of Rights applicable horizontally. An action in constitutional tort, therefore, is one specific form of horizontal rights litigation under the aegis of Article 20 (i.e., it seeks compensation for wrongful breach of a constitutional right). Or, to put it another way, not all Article 20 horizontal rights application is equivalent to an action in constitutional tort, but all constitutional tort claims will fall within Article 20.

On the question of application to this case, however, the Court considered the nature of the claim: it was, essentially, a claim based on breach of legitimate expectations (i.e., the legitimate expectation that the statutory authority would act in accordance with legal procedures for registration and licensing). Musyoka J then noted that this legitimate expectation could not, by definition, be “transplanted” to the private sugar milling company (para 83). The “transplant question,” therefore, was decided autonomously, and by asking the question whether the right in question was capable of being transplanted into the private domain (it was not).

The Boundary Question

What of the boundary question? Respondent No. 2 argued that alternative remedies in private law existed for the Petitioner to pursue its claim. The Court began by framing this as an “exhaustion of remedies” issue, and noted that this would apply only where the alternative remedies existed outside the court system, and not within it (para 92). However, what the Respondent meant to argue, the Court noted, was a variant of the doctrine of avoidance: that is, the well-established principle that Courts should avoid deciding cases on constitutional grounds, where other grounds are available (para 93). Musyoka J then articulated the following response to the argument (paragraph 95):

I hold the view that this principle does not sit well with the application of the Bill of Rights horizontally. The horizontal application of the Bill of Rights enables the court, seized of a constitutional cause, to determine disputes that would have also been quite properly handled in ordinary suits. In John Atelu Omilia & another vs. Attorney-General & 4 others [2017] eKLR (Mativo, J), for example, the constitutional cause arose from a failed criminal prosecution, and the petitioners complained of violation of their rights, and sought compensation. There exist remedies in civil law for compensation for false imprisonment and malicious prosecution, and constitutional violations through botched criminal prosecutions, and related actions, can be redressed through the ordinary civil process. The petitioners, in that matter, had the option of seeking and obtaining equivalent relief through ordinary litigation, and the court had the option of avoiding determining the constitutional questions, and granting the reliefs sought, by referring the petitioners to the ordinary civil court. The principle of constitutional avoidance was not invoked, and the court proceeded to determine the constitutional questions, and to award compensation. Francis Mulomba Nguyo vs. Nation Media Group Limited vs. 2 others [2021] eKLR (W. Korir, J) is the other example. The cause was about breach of privacy, by a private entity, which could attract damages in tort for breach of privacy. That was also a constitutional violation or infringement. The court did not invoke the principle of constitutional avoidance, but entertained the claim, and awarded damages for violation of right to dignity and privacy. Perhaps, as a country, to avoid inconsistency, there could be a case to be made for embracing only one of these principles, and avoiding the other, for one negates the other.

This is extremely important, as it marks a clear, judicial departure from the position that the existence of an alternate remedy is a ground to defeat horizontal rights application. For various reasons, that proposition is unsatisfactory, and horizontal rights jurisprudence cannot evolve until it is abandoned.

Intersections with Private Law

With respect to the Court, however, its equation of the “alternate remedy” argument to the doctrine of constitutional avoidance might have been a little too quick. While the existence of an alternate remedy in private or non-constitutional ought not to defeat a horizontal rights claim, it certainly ought to inform the Court’s analysis. To take a reductive example, if A robs B, A is prosecuted under the penal code; it would sound faintly absurd if B filed a constitutional case against A on the ground of the deprivation of the right to property. This shows that the existence of non-constitutional law is not irrelevant to the question of horizontality: to reiterate the point made at the beginning of this essay, the boundary question is a question precisely because all jurisdictions realise the dangers of what Kumm refers to as “the total Constitution.”

In more conceptual terms, while a right is applicable horizontally, the details of its application often have to be worked out through legislation (for example, a Constitution that guarantees labour rights (such as, say, equal pay for equal work) does not obviate the need for a labour code that sets out the details of how those rights will be applied in the day-to-day context of industrial relations) – or, what Grigoire and Webber refer to as “legislated rights.” Now, one crucial advance that horizontality doctrine has made is to ensure that this legislation itself will be subjected to constitutional challenge if it does an insufficient job of protecting constitutional rights in the private context. This is why the Court was correct in discarding the position that the existence of a remedy in private law defeats a constitutional claim to horizontality. However, while correct, this does not completely answer the boundary question: for a complete answer, one must also examine whether the private law remedy is consistent with the rights framework established by the Constitution, as applicable to the private relationship (of course, with some necessary play in the joints for the legislature) (see, e.g., Chapter Five of the present author’s PhD Thesis). This, in turn, would – of course – require the Court to develop a theory of horizontality, or when – and to which – private relationships, the Constitution ought to apply as a threshold question (see the Rose Wangui Mwambo case for an attempt by the Kenyan Courts to do just that). Of course, that particular question was not before the Court in this case.

Conclusion

In his article on horizontal rights under the Kenyan Constitution, Brian Sang YK calls horizontality “a concept in search of content.” In its disaggregation and consideration of the boundary and the transplant questions, the High Court in Busia Sugar Industries takes one important step forward in infusing the concept with content. When we synthesise it with judgments such as Rose Wangui Mwambo – which set out an institutional approach to the threshold question of horizontal rights application – we may see the incremental emergence of a consistent and coherent doctrine of horizontality under the Kenyan Constitution. This would be a notable contribution to the ongoing, global conversation on the question of constitutional horizontal rights application.

On the Bombay High Court’s IT Rules Judgment: Why “Reading Down” isn’t the Answer [Guest Post]

[This is a guest post by  Samriddh Sharma and Puneet Srivastava.]

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I. Introduction

This blog post analyses the deployment of the “reading down” principle in the Bombay HC’s Kunal Kamra v Union of India judgment. Vasudev Devadasan has previously discussed vital aspects of the judgements on this blog. He explains how the two differing interpretations of §3 of the IT Rules by the two judges significantly influence their differing conclusions. While we are anchored to these discussions, our focus narrows to the issue of reading down. The central argument of this piece is that any endeavour to read down the provision, irrespective of the interpretation of §3, is untenable. We do not seek to illustrate how the State’s proposed reading downs restrict rights. Instead, we aim to show how any effort to read down the provision ultimately does not resolve the fundamental issues of vagueness and absurdity that persist within it.

In Part II, we provide background information and explain the proposed interpretative adjustments. In Part III, we argue why these adjustments are unsustainable. Finally, in Part IV, we present our conclusions.

II. Background and proposed adjustments

MeitY had amended the IT Rules, making additions to §3(1)(b)(v) of the Rules. This provision imposes a due diligence obligation on intermediaries, requiring them to make reasonable efforts to curb the dissemination of misinformation. Intermediaries must refrain from hosting information that deceives or misleads recipients regarding message origins, knowingly communicates misinformation, or presents patently false, untrue, or misleading content. This rule is already fairly broad. Nonetheless, the amendment introduces a targeted addition specifically at “fake, false, or misleading information” related to the “business of the government”, asserting its sole authority over the accuracy of such information.

Effectively, it introduces a Fact Check Unit (“FCU”). It’s tasked to identify false, fake or misleading information regarding “(the) business of the government.” Once flagged by the FCU, this information triggers the provision of §3(1)(b), placing an obligation on intermediaries not to host such content. Failure to comply with this obligation results in the intermediary being deemed to have not fulfilled its due diligence requirements. Consequently, the safe harbour protection provided under §79 of the Act is forfeited, as compliance with the due diligence obligations outlined in §3 of the Rules is a prerequisite for safe harbour. In essence, failure to cease hosting the information leads to the automatic loss of safe harbour protection for the intermediary.

Kunal Kamra and others mounted a challenge against this provision. The principled and constitutional fallouts of this provision are glaringly evident. A few key issues stand to the fore, for example: a) vagueness and over-breadth due to unclear definitions (“fake,” “false,” “misleading”); b) potential violation of free speech through government flagging and intermediary liability loss; c) reliance on a problematic “true-false” binary overlooking complexities inherent in information dissemination; d) violation of equality and due process by vesting singular authority in the government to arbitrate the accuracy of information; e) contradiction with the Shreya Singhal judgement’s intermediary liability principles; f) failure to meet the proportionality test by outweighing free speech concerns through a chilling effect.

The Solicitor-General [“SG”] argued that the rule passed the constitutional muster on all accounts. One crucial argument on how §3(1)(b)(v) is to be read is key for our analysis. The provision states that the intermediary should make reasonable efforts not to air information that:

(v) deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature or, in respect of any business of the Central Government, is identified as fake or false or misleading by such fact check unit of the Central Government as the Ministry may, by notification published in the Official Gazette, specify; (emphasis supplied)

For the SG, the inserted part is qualified by the provision’s preexisting knowledge and intent requirement (¶54 Patel J). Effectively, this means that taking down FCU flagged information would only apply to false, fake or misleading news aired with the knowledge and intention of the intermediary. This understanding of the provision is also supported by Gokhale J and is considered to narrow the scope of the provision (¶31 Gokhale J). However, Patel J dismisses this reading and says that correctly understanding the provision doesn’t necessitate knowledge and intention (¶57 Patel J). This difference in interpretation, succinctly elucidated by Vasudev Devadasan, forms the conceptual fulcrum around which other issues are examined and evaluated.

Overall, both the judges are clearly divided in their opinions. Gokhale J does not find the constitutional challenge to be met. Patel J, however, rules otherwise and strikes the provision down. Precisely here, the issue of reading down takes birth. The solicitor-general (“SG”) argued that it is well within the power of the judge(s) to save the provision by reading it down. There were three interpretative adjustments he sought to be made, which follow:

1. Information should be read strictly as facts. Patel J rejects this, saying information is clearly defined in the IT Act, and the judiciary can’t read down explicit definitions. (¶143 Patel J)
2. The takedown mandate is to be replaced by a disclaimer requirement. Patel J also rejects this. (¶144 Patel J).
3. Defenestrating the word ‘misleading.’ Simply, to keep only ‘fake’ and ‘false.’ Patel J says this would effectively be reading out, which he could not do (¶142 Patel J). He ascribes no additional reason as to why he can’t perform the reading out function.

In the next part, we aim to demonstrate that regardless of SG’s qualification argument, the provision remains unsustainable and cannot be salvaged by reading down.

III. Unsustainability of the proposed adjustments

In the previous part, we have explained how the SG argued that a reasonable interpretation of the provision would employ knowledge and intention as qualifiers. Effectively, he built on the well-established principle that the judiciary should choose a reasonable interpretation of the law, when faced with a conflict between a literal and reasonable reading of the law. In principle, this is a fair argument; Lord Denning, for example, in Birch v Wigan Corporation, is often cited for the following proposition:, “Where there is a fair choice between a literal interpretation and a reasonable one- and there usually is- we should always choose the reasonable one.” The argument of the SG, therefore, unfolds in two parts. First, the “knowledge and intention” requirement narrows down the provision. Second, in arguendo, if it still infringes rights, it can be read down employing the three adjustments produced above. In the subsequent parts, we engage with each of the suggestions made by the SG and demonstrate its unsustainability.

A. Information to be confined to facts

The SG argues in favour of reading down “information” to “facts”. This perhaps aims to do two things. One, reduce vagueness in the provision; and two, make the teleological meaning of provision (legislative intent) more pronounced. While seemingly well-intentioned, this adjustment ultimately fails to achieve its stated goals and introduces additional complexities. Before we jump into it, it is crucial to underscore some associated elements of this adjustment. This distinction between information and facts carries a deeper significance here. The Kaushal Kishore judgment asserts that speech lacking in propagating ideas or social value may be restricted by the government, as it would not be protected under Article 19(1)(a) of the Constitution from the outset (¶193.2). Thus, the defendant’s argument presumably unfolds as confining information to facts, in accordance with the principles of Kaushal Kishore, not only eradicates vagueness but also conforms to acceptable limitations on freedom of speech.

Regardless of whether Kaushal Kishore is applied or not and whether there is more clarity on legislative intent, this reading down does not rescue the provision. Defining “fact” presents a significant challenge. Is it objectively verifiable truth, widely accepted knowledge, or something in between? The lack of a clear definition leaves ample room for subjective interpretation and potentially discriminatory application, negating the intended benefit of clarity. Even within the realm of “facts,” nuances of context, interpretation, and underlying assumptions can render the distinction between legitimate criticism and “facts” ambiguous, chilling legitimate discourse. Furthermore, a strict application of the provision to only plain facts fails to consider the complexities of disciplines like statistics and their inherent uncertainties, as highlighted by the famous coastline paradox.

The proposed introduction of a “knowledge and intention qualification,” aligning with the SG’s approach, presents a potential incompatibility with the framework established in the Kaushal Kishore judgement. This incompatibility arises from the inherent tension between the conditions delineated by both approaches. The SG’s qualification would translate to mean that the Fact-Checking Unit (FCU) would only flag “plain facts” aired with “knowledge” or “intention” but without “propagation of ideas” or “social value.” However, such a restrictive standard would render the FCU’s function practically nugatory.

This is due to three reasons:

1. Knowledge implies intent to propagate: If an individual knowingly airs information as factual, it inherently suggests an intent to communicate that information.
2. Intent also implies propagation: When one intends to communicate something, it implies a desire to influence or inform others, constituting “propagation of ideas.”
3. Facts often have social value: Information presented as factual, even devoid of overt knowledge or intent, often carries inherent social value by potentially influencing societal perceptions or understandings.

Therefore, applying the SG’s qualification within Kaushal Kishore framework would effectively strip the FCU of its intended power. Nearly all “plain facts” aired with knowledge or intention would also necessarily involve “propagation of ideas” and “social value.” Overall, this renders the provision superfluous, absurd and unable to achieve its stated objectives.

Furthermore, establishing the FCU fails to rescue the provision from vagueness. Roy Sorensen posits that a law is considered vague unless the delegated authority is better equipped than the delegating authority to clarify whether “x is F,” where “x” represents a particular subject or entity and “F” denotes a specific characteristic or condition. The FCU checks whether a fact (or information) is false, fake or misleading or not. Here, the Fact-Checking Unit (FCU), in no demonstrable way, possesses particularly better expertise compared to the delegating body in determining what constitutes facts (or, for that matter, what is false or fake, as the government already issues takedown orders.) Patel J’s reasoning further supports this argument, emphasizing that while the act provides a definition of “information”, defining “facts” requires reference to the Evidence Act, which may lack specific guidelines (¶111-6 Patel J). This lack of clarity places the delegated authority at a disadvantage in determining whether “x is F,” as the criteria for identifying false information may be ambiguous or open to interpretation. Moreover, the FCU already faces challenges in determining appropriate remedies for “misleading” information, further raising concerns about its ability to objectively judge and classify information based on unclear criteria.

B. Diluting the provision employing a disclaimer requirement

The SG suggests that “giving a disclaimer” can be read into the provision, thereby diminishing the takedown obligation on an intermediary. Essentially, content flagged by the Fact-Checking Unit (FCU) would not compulsorily require removal, allowing platforms a modicum of agency in the decision-making process. In essence, intermediaries can continue to keep the information by issuing a disclaimer. Patel J rejects this argument, opting for a prudent and conservative position on judicial interference. However, the State is not making an unfair argument in principle, given that the judiciary often interprets laws to salvage them rather than striking them down entirely. This was observed in Shreya Singhal, where the Supreme Court struck down §66A but only chose to read down §79(3)(b). The court explained its reasoning, expressing concerns that granting the State the power to decide what information the public receives could lead to monopolization and unchecked censorship by intermediaries. Nevertheless, we argue that even if we were to entertain the State’s proposal of reading in a disclaimer requirement, it would be sub-optimal.

Simply, it isn’t a smooth ride to read in the disclaimer under the contours of the present law. §3(1)(b) mandates the intermediary to make a reasonable effort to “not host, display, upload, modify, publish, transmit, store, update or share” the specified information. These words, separated by commas, have to be read together using the general rules of interpretation. Its plain reading, plus the short title of 3(1) clarifies that this is a due diligence mandate. Modifying this to include a disclaimer requirement on account of the FCU would change the nature of the provision from one mandating due diligence to one specifying compliance.

Also, putting a disclaimer renders “reasonable effort” otiose. There’s practically no space for the intermediary to exercise reasonable discretion if it has to comply with the FCU’s flagging. In fact, this further leads to more uncertainty, for social media platforms may not have the practice of issuing disclaimers in the first place. This forces them to change their user interface and layout unreasonably. And, if social media companies are already mandated by IT Rules to make reasonable efforts to prevent misinformation, this compliance serves no purpose. In all fairness, the disclaimer requirement can itself lead to more constitutional challenges and be seen as infringing on the rights of trade guaranteed under Art 19(1)(g). Even if intermediaries have disclaimers like X’s community notes, there can be frustration. A company may choose to host information after making reasonable efforts, which the FCU may flag. However, the information may not be false, fake or misleading according to the intermediary even after making reasonable efforts. By the operation of this provision, the intermediary has practically no power to host such information. Further, it should be considered that there are no safeguards or review procedures, and the intermediary would immediately be stripped of the safe harbour. This closes in on their discretionary space and creates conflicts.

At the cost of a slight departure from the scope of the piece, it is essential to underscore other concerns which arise from the disclaimer requirement. If reduced to a disclaimer function, FCU may end up issuing it much more than takedowns, effectively weaponizing it. It can selectively issue them for fake news that is detrimental to the ruling party and government while refraining from issuing disclaimers for fake news that incites the majority against minorities, political opponents, and other vulnerable groups. This will create margins and make the internet an unequal place, effectively polarising the digital space, reinforcing eco-chambers, and overall deepening the divide. Although not directly, the FCU will be able to monopolise and steer discourse on the internet.

In essence, the introduction of the disclaimer requirement exposes several absurdities in the law. However, it is crucial to note that even if we were to overlook these difficulties and implement them, the constitutionality of the provision would still be circumspect.

C. Defenestrating “misleading” from the provision

To further limit the scope of the provision, the SG suggests that “misleading” be dropped from the rule and only the words “false” and “fake” remain. Every single counter-narrative on the government business can conceivably fall within the word “misleading” (¶126 Patel J). It is essential to clarify that the SG’s suggested approach to “reading down” the provision is not entirely clear. It remains unclear whether he suggests the provision be read down by construing misleading as coloured by false and fake or if he proposes for it to be entirely disregarded, resulting in its exclusion from the provision. If the former interpretation is favoured, the task of reading down the provision becomes unsustainable, given that the three terms are used disjunctively and are separated by commas and the word ‘or.’ This implies that each term must be interpreted distinctly, and satisfying any one of these conditions would trigger the provision’s application (see ¶142 Patel J).

In all fairness, the exclusion of this term constrains the rule, explicitly delineating the authority of the FCU to address solely false or fake information. Nonetheless, we maintain the position that such an interpretation would not be judicious. Embracing this approach would elevate the dangerous false-true binary in evaluating digital information. This is untenable and has been extensively argued by the petitioners; therefore, we refrain from reiterating those arguments.

IV. Conclusion

In light of the SG’s arguments for reading down the provision, this analysis is an attempt to highlight their fundamental shortcomings. Terms like “facts” and “misleading” remain vague, even with proposed adjustments, leading to subjective interpretations and potential discriminatory applications. Limiting the FCU to “facts” renders the function of FCU conceptually redundant, as “facts” often carry social value and are protected speech, even as per Kaushal Kishore. Even if Kaushal Kishore were not to be applied, “facts” lacks a clear definition. Moreover, replacing takedowns with disclaimers introduces new concerns, such as unreasonably undermining intermediary discretion and opening doors for selective weaponization of disclaimers by the FCU. The provision may also violate free speech and due process rights, even if constructional issues are addressed. In conclusion, attempts to read down the inserted provision fail to address its core issues, perpetuating vagueness and absurdity, raising concerns about FCU authority and misuse, and failing to tackle constitutional challenges.

The Supreme Court’s Electoral Bonds Judgment – I: Political Equality and Electoral Transparency [Guest Post]

[This is a guest post by Kieran Correia.]

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On 15 February, a five-judge bench of the Supreme Court handed down judgement in Association for Democratic Norms v Union of India, popularly known as the Electoral Bonds Case. Two opinions were issued – the majority opinion authored by Chandrachud CJI, joined by Gavai, Pardiwala, and Misra JJ, and a concurring opinion by Khanna J. Both held the Electoral Bond Scheme (EBS) unconstitutional; supporting legislation – such as the amendments to the Representation of the People Act 1951 (RPA), Companies Act 2013, and the Income-tax Act 1961 (IT Act) so on made by the Finance Act 2017 – were also declared unconstitutional.

The Court also passed an order requiring, inter alia, the State Bank of India (SBI) to submit details of each electoral-bond contribution and purchase from 12 April 2019 till the present within three weeks, which the Election Commission of India (ECI) is to publish on its Web site within a week.

The Court’s judgement joins a vanishingly small number of pro-democracy verdicts in recent Indian constitutional jurisprudence. The verdict’s mobilization of the principle of political equality – in ensuring equality in influence over both electoral outcomes and policy – rests on the principle that elections in a democratic system must be subject to popular oversight and made available to public participation. Combined with a rigorous order, the Court’s intervention also promises to begin the process of levelling an electoral field that has become dangerously uneven over the past few years.

The majority opinion broadly deals with two issues: the non-disclosure provision – making it optional for parties to disclose information pertaining to their funding – and the unlimited donations provision, which eliminated the limit on how much each corporation could donate to a party.

In this post, we will examine the background of the judgement at some length and discuss the Court’s preliminary analysis of the scope of its review before moving on to its reasoning for the non-disclosure provision and how it infringes voters’ fundamental rights. We will also focus at some length on Chandrachud CJI’s proportionality analysis. A later piece will take up the Court’s treatment of the second issue of unlimited donations.

Electoral Funding and the EBS

Much has already been written on the EBS, including on this blog, so I will try to be light on the facts. Chandrachud CJI’s opinion begins by diving into the history of electoral funding in India. Electoral funding is regulated by a complex legal landscape, comprising three pieces of legislation – the RPA, IT Act, and Companies Act. The opinion specifically focusses on the regulation of corporate funding, tax regulation that attempted to curb black money, and election law that mandated transparency.

Barring a brief period between 1969 and 1985, when corporate funding was explicitly prohibited, such funding has been tightly regulated by law since 1960. There was a cap on corporate funding, disclosure requirements were high, and – this was implied – donations could only be made through ordinary instruments such as cheque, bank draft, and electronic clearing system. The Finance Act 2017 loosened or eliminated all of these restrictions.

Tax legislation exempted the income of political parties through financial contributions and investments from income tax. This was made subject to, inter alia, the requirement to maintain a record of contributions. However, the Finance Act 2017 eliminated this requirement as well if contributions were received by electoral bonds.

A similar transparency requirement existed in the RPA. Political parties had to declare the details of contributions in excess of a certain amount to receive tax exemptions under the IT Act. However, the Finance Act 2017 eliminated this requirement too for electoral-bond contributions.

On 2 January 2018, the Department of Economic Affairs in the Ministry of Finance notified the EBS. The EBS defines an electoral bond as “a bond issued in the nature of promissory note which shall be a bearer banking instrument and shall not carry the name of the buyer or payee.” Importantly, the EBS notified the SBI – a nationalized bank with direct government control – as the bank authorized to issue and encash bonds. Moreover, the information received by the authorized bank was to be treated as confidential.

Scope of judicial review

The Court begins its analysis with the smaller – but no less important – issues relating to the scope of judicial review. The Solicitor General, in his submissions, argued that the impugned amendments and the EBS pertain to matters of “economic policy” (Respondent’s Written Submissions, paras 172–201). One of the petitioners, on the other hand, in their Rejoinder Submissions rebutted this contention by highlighting that “the EBS is an executive instrument that deals with political party funding, and, therefore, indisputably, with entities that participate in the electoral process” (Petitioner’s Rejoinder Submissions, para 7) (emphasis in original).

Here, the Petitioner drew on John Hart Ely’s version of the representation-reinforcing justification of judicial review – in broad strokes, the idea that the rôle of judicial review, a counter-majoritarian force in a democracy, is to correct impairments in the representative process. Since the petitioners had challenged legislation and a scheme which fundamentally impacted the electoral – and therefore representative – process, the Court could not be light touch and afford a presumption of constitutionality.

The Court cleaves apart the two issues. In dealing with the first issue – whether the impugned pieces of legislation are “economic policy” – the Court agrees with the petitioners in tagging them as “amendments [that] relate to the electoral process” (para 41) and therefore proceeding with the ordinary level of scrutiny.

However, on the second, the Court remains reluctant to divest these amendments of the protection afforded to them by the presumption of constitutionality. Unfortunately, the Court does not supply much reason here apart from declaring that it “cannot carve out an exception to the evidentiary principle which is available to the legislature based on the democratic legitimacy which it enjoys” (para 45). The consequence of this is that the burden is on the petitioners to establish a prima facie violation of their fundamental rights by the State.

Political equality and the disclosure of information

The Court sets the stage for discussing the two main issues by underscoring the connexion between money and politics. This context-framing is important as it is the power that wealthy corporations and individuals exert over the political process that makes unregulated political contributions so dangerous to democracy. The Court – to its credit – recognizes this at the outset (para 55).

The amendments to the RPA, IT Act, and Companies Act – as mentioned earlier – eliminated the most elemental requirement of electoral-financing regulation: disclosure. Companies now needed only to disclose the total amount they contribute to political parties, not the specifics. The electoral bond itself was also shrouded in secrecy, as we have already seen.

The challenge to this new régime, then, was that the non-disclosure of information infringes on the right to information of the voter under article 19(1)(a) of the Constitution. The Court responds to this challenge by analysing the jurisprudence around the right to information. In tracing its evolution, the Court noted how it shifted from an instrumental right – to further transparent government – to a right with intrinsic value. In the latter phase of the Court’s jurisprudence, the Court recognized the “inherent value in [the] effective participation of the citizenry in democracy” (para 65).

The right to information, the Court notes, was extended to the requirement of candidates to disclose their criminal records and assets. The question that subsequently arises, however, is whether this jurisprudence would apply to political parties – and not to individuals alone. The analysis of the Court has two prongs: first, whether there exists a right to information about the funding of political parties; and secondly, whether the impugned provisions and the EBS constitute a “reasonable restriction” under article 19(2).

The Court here delves into the centrality of political parties in the electoral process in India. Despite the open-list first-past-the-post system used here, the candidate is not the focal point of the election; the political party plays a prominent rôle too. This is due to a variety of reasons: the ubiquity of a pre-election manifesto, the Westminster style of governmen, with a loose separation between legislature and executive, the use of symbols to denote parties by the Election Commission of India, and the object of India’s anti-defection law being the party – all point to the political party, despite not being mentioned in the original text of the Constitution, being a central unit of the electoral process (paras 79–93).

By placing the political party at the centre of our analysis, it only stands to reason that political parties must be subject to the same requirements candidates are. The Court recognizes this basic inference (para 95). However, it goes one step further and articulates a transformative principle undergirding the political process in India – political equality.

Political equality manifests itself in two ways: the principle of “one person, one vote,” and the promise of shielding the political process from socioeconomic equalities. The two are joined at the hip: if one person is to enjoy only one vote, it follows that individuals or corporations with disproportionate power cannot exert their oversize influence on the electoral process and distort the voting process. As the opinion notes, “This guarantee [of political equality] ensures (a) equality in representation; and (b) equality in influence over political decisions” (para 98).

To enforce political equality, then, the influence of moneyed interests on the electoral process must, at the very least, take place in plain sight. The electorate must be able to – by its own initiative or through the media – have access to this information. The Court, moreover, rejects the argument that the anonymity of the contributor goes both ways; parties can exploit various loopholes to ascertain the identity of the donor. Retrieving this principle of political equality – long ignored by Parliament and the judiciary – the Court holds that the voter has the right to information about party funding, and the EBS and impugned amendments are, therefore, violative of article 19(1)(a) of the Constitution. The next step is to see whether the impugned scheme and law are saved by article 19(2) or outweighed by another fundamental right.

Before we look at the Court’s proportionality analysis, however, let us briefly look at the Court’s analysis of the amended section 182(3) of the Companies Act, which emaciated the disclosure requirement. The Court finds the replacement of the requirement to disclose the particulars by that to disclose the total amount contributed to political parties unconstitutional. Under the amended section 182(3) of the Companies Act, the company did not need to disclose to which party it has contributed money; the amended section 29C of the RPA exempted parties from disclosing information of contributions received through electoral bonds.

This information, however, was “necessary to identify corruption and quid pro quo transactions in governance. Such information was also necessary for exercising an informed vote” (para 172), leading the Court to strike down section 182(3), as amended by the Finance Act 2017, unconstitutional, restoring the older version.

Proportionality and Double Proportionality

Before we actually dive into the opinion’s proportionality analysis, a brief note about the Court’s reluctance to employ the proportionality test is in order. Many scholars have noted how the Court’s proportionality jurisprudence is muddled, often confusing it with an older proportionality review used in fundamental rights cases. Others, including the editor of this blog, have pointed out how the Court has been unwilling to use proportionality in high-stakes cases against the executive.

The use of the classic four-part proportionality test in the majority opinion represents a stark departure from both these maladies. The proportionality test, as is well known, comprises four stages: legitimate goal, rational connexion, necessity (i.e., least restrictive and effective measure), and balancing. The Court extensively subjects the EBS and the impugned provisions to each stage of the proportionality test.

The Court finds that “curbing black money” and “protecting donor privacy” are the proposed aims of the impugned scheme and provisions. The Court, importantly, agrees with the Petitioners and finds that the legitimacy of a stated goal should be traceable to the article 19(2) grounds – unless it is a competing fundamental right. While “curbing black money” could plausibly trace itself to “public order,” the Court adopts a narrow meaning of the term and concludes otherwise.

A proportionality enquiry would ordinarily end there. However, the Court chooses to proceed with the next three stages. The second stage is whether the proposed measures bear a rational nexus to the stated goal. The State submitted that anonymity would incentivize contributors to contribute using licit channels, which the Court hypothetically accepts.

The third stage, at which the Court ends its enquiry, is whether the EBS and the non-disclosure requirement are any less restrictive – but equally effective – measures available to the State. Here, too, the Court rejects the State’s arguments. The Court brings up other measures – cheques, electronic transfers, and so on – and Electoral Trusts, another method of receiving political contributions which are also effective in curbing black money. Therefore, the Court answers this question in the affirmative.

However, in analysing the second ground – donor privacy – the Court adopts the double proportionality test, as two fundamental rights are in play here: the donor’s right to privacy and the voter’s right to information. As Chandrachud CJI writes, “[The proportionality standard] would prove to be ineffective when the State interest in question is also a reflection of a fundamental right” (para 152).

While this standard is not new to Indian jurisprudence, having been invoked by the Court in Central Public Information Officer, Supreme Court of India v Subash Chandra Agarwal, the Court articulates a clear, three-part test in this case to balance the conflict between two fundamental rights if the Constitution does not create a hierarchy between the conflicting rights:

1. Whether the measure is a suitable means for furthering right A and right B (in other words, bears a rational nexus to both rights);
2. Whether the measure is the least restrictive and equally effective to realize right A and right B; and
3. Whether the measure has a disproportionate impact on right A and right B.

In the first stage, the Court finds that the EBS bears no rational nexus to the voter’s right of information as the information about contributions is “never disclosed to the voter” (para 163) (emphasis in original). It goes on to state that “[t]he measure adopted does not satisfy the suitability prong vis-à-vis the purpose of information of political funding” (ibid). Like the earlier proportionality enquiry, the Court should have stopped here but chooses to apply the next two stages.

The next stage is whether there are less restrictive measures available to the State. The Court answers in the affirmative. The RPA protects the privacy of contributions under twenty-thousand rupees. The Court understands this purpose as circumscribing the influence of money in shaping electoral outcomes and policy while still allowing the genuine expression of political views, protected by article 19(1)(a). The exact question of whether this threshold is sufficient is outside the Court’s purview; what matters is that an alternative, less restrictive, measure exists. This leads the Court to strike down the EBS as unconstitutional (para 169).

The Court – to be clear – did not need to undertake this double proportionality analysis. The principle here is not informational privacy; the stated aim, as the Petitioner argued, is unregulated donor privacy (Petitioner’s Written Submissions, para 65), which is not a legitimate state aim. However, the Court’s elaboration of the double proportionality standard supplies a useful tool for balancing two fundamental rights in a future case.

Conclusion

The Court’s judgement is a welcome departure from a long tradition of extending deference to Parliament and the Executive in matters of “policy.” Representative democracies are all too vulnerable to the problem of “the People,” as constitutional actors, retreating into their private lives as the whirring noise of legislation and government plays out in the background. The majority opinion, however, paves a path for the People to be active participants in everyday politics.

The Court’s rigorous proportionality analysis, too, is a significant positive development – possibly the first time that a majority opinion has invoked the doctrine to strike down legislation and executive policy in a high-stakes matter. If the opinion signals anything for future jurisprudence, it is that the proportionality test – and with it the culture of justification – is finally here to stay.

Guest Post: The PMLA’s “Adjudicating” Authority as an “Administrative” Body: Appraising the Madras High Court’s Decision

[This is a guest post by Saranya Ravindran.]

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Introduction

The Prevention of Money Laundering Act, 2002 (“PMLA“) allows the confiscation of property allegedly involved in money laundering by the Enforcement Directorate (“ED“) without a hearing, under specified circumstances. To safeguard against potential abuse, Section 6 establishes an Adjudicating Authority (“Authority“) to call upon an aggrieved party to show cause as to why the confiscated property must be released.

The provisional attachment made by the ED is valid for 180 days. However, within 30 days of passing the provisional order, a complaint must be filed before the Authority. If the Authority has reasons to believe that the party is in possession of “proceeds of crime” as defined in Section 2(u) after hearing the officer and the aggrieved party, then it can record a finding to that effect and confirm the provisional attachment. Such an attachment would remain effective until the pendency of proceedings before the Special Courts established under PMLA and a final order of confiscation or release is passed.

Pay Perform India Pvt. Ltd. v. Union of India

The Madras High Court recently was faced with a writ petition questioning whether a single-member bench of the Authority can consist of exclusively executive members (i.e., whether a single-member bench without any judicial member is valid). In RK Jain v. Union of India (“RK Jain“), the Supreme Court held that members of tribunals that exercise quasi-judicial functions should necessarily have experience in law, with qualifications deemed important to effectively adjudicate the dispute.

Relying on RK Jain, the Telangana High Court held that since the Authority is obligated to issue show cause notices, conduct a hearing, appreciate evidence, and give a reasonable opportunity to both parties before passing its order, its functions are similar to a judicial proceeding. On this basis, it concluded that the presence of a judicial member is mandatory. On the other hand, arguing that the Authority makes no final determination on the guilt of the party and merely passes an interim order to continue provisional attachment of properties suspected of being involved in money laundering, the Madras High Court reached the opposite conclusion.

To determine whether power is administrative or quasi-judicial, one must consider various factors, including the nature of the power conferred, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. Through this analysis, each of these factors would be considered in-turn.

Nature of Power

The petitioners argued that the powers granted to the Authority has all the trappings of a Court. It has the power to summon individuals, inspect records, and has detailed procedures for filing applications, signing pleadings, registering cases, etc. Thus, a holistic understanding of the Authority would make the procedures and powers it has akin to that of civil courts. However, the Court held that these procedures are for “dealing with the ‘administrative case’ and that by itself will not in any manner alter the Adjudicating Authority as ‘the Tribunal or the Court’.” It further held that as per Section 11(3), the proceedings are deemed judicial for the purposes of sections 193 and 228 alone, clearly indicating that it is otherwise an administrative proceeding.

However, instead of determining whether the proceedings are administrative or judicial, the Court operated from the presumption that such a case is administrative. Being administrative, any further guarantee of power akin to that of courts would be irrelevant since the proceeding is prima facie administrative anyhow. Apart from adopting such a circular reason, the Court ignored precedent such as RK Jain and State Gujarat v Utility Users Welfare Association, which noted that the nature of powers conferred is an essential consideration in determining whether a case is administrative or quasi-judicial.

This is why, in Shri Bhawan v. Ram Chand, even the simple function of granting concurrence to a landlord to file an eviction suit against a tenant on non-statutory grounds was deemed quasi-judicial, since the authorities had to consider both sides and determine the relative benefits and harms before making such a determination. This adjudication process led the Court to conclude that the powers exercised were quasi-judicial. In fact, in cases where administrative authorities have exercised similar powers to extend preliminary seizures, such orders have been held as judicial and not administrative.

In Assistant Collector of Customs v. Malhotra, the Supreme Court had to determine whether the power of the collector of customs authorities to extend the period of preliminary confiscation of illegal imports by six months was a quasi-judicial function. The Court held that while the initial seizure was subjectively determined by the authorities, the subsequent extension was not done mechanically but objectively, on facts and investigation. Hence, the power of extending the time limit was deemed quasi-judicial.

Similarly, PL Lakhanpal v. Union of India (“Lakhanpal“) held that a reviewing function of a detaining authority is quasi-judicial. The Court noted that there is a difference in the state’s power to enforce a prima facie detention and to continue them beyond six months. It held that while the initial detention can be made subjectively, further detention has to be based on an objective assessment, evidence, and an opportunity for both parties to be heard. Hence, the latter determination was classified as quasi-judicial. Thus, even if the final subject of detention is the same in both cases, the presence of certain adjudicatory powers can be grounds to classify an act as quasi-judicial. Borrowing from such precedents, an act which extends the provisional attachment of properties beyond the prescribed period must be held as quasi-judicial.

Consequences of exercising power

As per Section 5, the Authority can attach any property believed to be proceeds of crime. This includes property derived either directly or indirectly from crime, with “crime” also defined expansively to include both a scheduled offence and anything related to a scheduled offence. Thus, even links to criminality are sufficient to confiscate property. Hence, as explained previously on this blog here, if some money is invested in a house or a bank account with links to the acts of the offence, those can be attached. While the Madras High Court read this power as relatively inconsequential since the property could be released on final adjudication, the adjudication process could span several years and be an unimaginable burden for someone whose house or bank accounts remain frozen.

If we refer to cases involving similar restriction of rights by customs authorities, orders confiscating goods or imposition of penalty, are commonly regarded as quasi-judicial acts given the severe restriction they impose on property rights of individuals. This is even if such confiscation does not constitute a judgement or order of court for supporting a plea of double jeopardy, or become a conclusive determination of guilt. Under PMLA, the restrictions are even more severe since orders can be passed against persons not even named as the accused of a scheduled offence. Under Section 24, the burden is also on the accused to show how the properties are not involved in laundering. Thus, given the dangerous consequences of the Authority’s powers, discretion to executive in the absence of any judicial member merits rethinking.

Manner of exercising power

The Respondents argued that the Adjudicatory Authority is merely an “additional internal safeguard.” The Authority’s orders are appealable by the Appellate Tribunal and the High Court, with final adjudication of the dispute itself dealt with by the Special Court, which are also appealable to the High Court. Based on this structure, the Madras High Court concluded that the authority “is in place as a check and balance” and “does not also conclusively decide as to whether any property or thing is part of / proceeds of crime or out of any involvement in money-laundering.” Hence, it was held that the Authority was an administrative body.

However, there are two issues with this line of reasoning. Firstly, as seen in cases like Lakhanpal, merely because the order is subject to a final decision does not make the order non-judicial. Civil courts routinely grant interim orders conditional on the final decision. This does not make their acts any less judicial. Thus, conclusive determination is not a necessary criterion for quasi-judicial acts. Secondly, even if a body has Appellate Tribunals and its powers have extensive safeguards, that by itself does not obviate its status as a quasi-judicial entity. Hence, the mere fact that the Authority is present as an institutional safeguard is insufficient to rule out its character as being quasi-judicial, especially given the widespread implications it has for individuals.

Conclusion

The power that the Adjudicating Authority wields is immense, even if it is only exercisable on an interim base. Its exercise has so far been rife with various issues, most recently reflected in Justice Pratibha Singh’s caution to the Authority on passing “templated orders” and to refrain from using “identical templated paragraphs”. Such non-application of mind has the potential to cause serious prejudice to aggrieved parties. Hence, the presence of a balanced coram, mandatorily including judicial members outside the executive, could make a meaningful difference to the operation of the Authority.

Guest Post: A Critique of the Election Commission’s Order in the “Real NCP” Dispute

[This is a guest post by Yogesh Byadwal.]

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The Election Commission of India [“ECI”], last week, recognized THE Ajit Pawar faction as the ‘real’ Nationalist Congress Party (NCP) (refer here for copy of the order and here for background of the current controversy). The order comes months after the Supreme Court’s Subhash Desai judgement, where the SC made important observation regarding the scope of Para 15 of the Symbols order, 1968. In this post, first, I will advert to the observations made in Subhash Desai regarding Para 15, and the role of the ECI in determining the ‘real’ political party. Then, I will highlight three major issues with the order, deviating and ignoring from the observations made by the SC in Subhash Desai. I conclude that the ECI conveniently ‘picks and selects’ from the judgment to continue to decide Para 15 disputes as it did before Subhash Desai, despite obvious and major flaws with the approach (see here and here)

Subhash Desai on Para 15

In Subhash Desai, the SC made significant observations about the tests applicable while deciding a dispute under Para 15. As discussed here, the ECI has fashioned three ‘separate’ tests to resolve disputes under Para 15: 

1. Test of analysing the provisions of the constitution of the party.
2. Test of assessing which of the two rival groups adheres to the aims and objectives of the party as incorporated in its constitution.
3. Test of evaluating which of the two rival groups enjoyed a majority in the legislature (i.e., the Houses of the Parliament as well as the legislative assemblies of states) and in the organisational wing of the party.

On the test of the ‘aims and objectives of the party’, in para 153, the SC noted:

An evaluation of whether rival groups are adhering to the aims and objects of the party as incorporated in its constitution, and which of the rival groups is more in consonance with such aims and objects, is an entirely subjective exercise…It would not be appropriate for the ECI to accord its stamp of approval to the routes or methods chosen by one group over those chosen by another group. This would amount to entering the political arena…. ECI while making such an assessment would be rendering its opinion without any objective basis. The ECI must remain a neutral body and refrain from passing a subjective judgement on the approaches preferred by the rival factions.

Clearly, the Court did not consider the above as a viable test to decide a dispute under Para 15 owing to the subjective nature of the exercise. On the ‘test of majority’, the Court noted in Para 150:

It is not necessary for the ECI to rely on the test of majority in the legislature alone. In cases such as the present one, it would be futile to assess which group enjoys a majority in the legislature. (The Shiv Sena Dispute) Rather, the ECI must look to other tests in order to reach a conclusion under Paragraph 15 of the Symbols Order…. ECI must apply a test which is best suited to the unique facts and circumstances of the case before it.

The SC reminded the ECI that the test of majority was not the ‘exclusively appropriate’ or ‘primary test’ to determine a Para 15 dispute. It added that the previous observations in Sadiq Ali (refer here) were made with regards to the facts and circumstances of that case. In other words, the tests applicable while deciding a Para 15 dispute are not limited to the above-mentioned tests. Rather, the parties can propose tests suited to the facts and circumstances of the case. Alternatively, the ECI is encouraged to fashion new tests appropriate for peculiar cases before it.

Therefore, in light of Subhash Desai, the ECI cannot use the test of majority merely because the other two tests are inapplicable or that it has been consistently used to decide such disputes before. Rather, it will have to provide reasons for the suitability of the test and its applicability to particular facts (here).

Ignoring Subhash Desai: Problems with the NCP order

In the NCP order, I will highlight three instances where the ECI diverged or completely ignored the proposition of law laid out in Subhash Desai.

First, the ECI, in complete ignorance of the observations made by the SC, went ahead considering the ‘test of aims and objectives.’ As laid out in the previous section, the test was rejected by the SC as a ‘purely subjective exercise’ which was ‘without objective basis’. However, the ECI, following past practice, still applied it to the present case. Since the test was not finally used to determine the dispute, the error may seem inconsequential, however, as I will show, this is not the only instance of the ECI disregarding the SC in this order.

Second, the ECI noted the reason for application of ‘test of majority’ in para 84 of the order as:

The inapplicability of the aforesaid tests in previous symbol dispute cases had led the Commission to rely on the “Test of Majority” to arrive at a determinative outcome.

Further, it noted:

Both have proceeded to argue their case within the confines of the existing tests. In view of this and the factual matrix of this case, the Commission decided to continue the test applied consistently over the past decades i.e. the test of majority which has stood the test of time. (para 124)

The ECI did not provide any reasons as to the suitability of the ‘test of majority’ in the peculiar facts and circumstances of the case. Rather, it simply provided that since the above two tests are inapplicable, it would use the test of majority. It constantly relied on Sadiq Ali to argue for the validity of the test of majority, when, in fact, the SC had acknowledged that Sadiq Ali was rendered when Tenth Schedule did not form a part of the Constitution (para 151). However, the ECI proceeded in ignorance of the same. In a way, ECI made it seem that it was constrained to apply the test since the rival parties were not able to propose a test applicable to the facts and circumstances. This completely ignores the observation of the SC that “the ECI may either apply one of the tests proposed or fashion a new test, as appropriate”.

Evidently, the court required ECI to provide reasons for the suitability of the test and its applicability to particular facts, rather than mechanically applying the test of majority. As I have argued here, this provides, however limited, a safeguard against the mindless usage of the majority test. The SC had, in fact, explicitly rejected the application of the “test of majority in the legislative wing” in the Shiv Sena dispute.

Third, the ECI recognised Ajit Pawar’s faction as the ‘real’ NCP by placing sole reliance on the numerical strength of the legislative wing. The respondent had argued before the ECI that after Subhash Desai, it is incorrect to rely solely on the test of majority in legislative wing in the peculiar circumstances of the case. It relied on Para 151 of the judgement:

When legislators are disqualified under the Tenth Schedule, the basis of recognition of the political party under the Symbols Order and correspondingly, one of the reasons for using the test of legislative majority itself becomes diluted. Thus, it is not appropriate to confine the ECI to the singular test of legislative majority in such situations.

The ECI, in a cavalier fashion, brushed off the argument, noting:

In the present case, it is pertinent to mention that disqualification petitions were filed by the rival groups against members of the opposite group under the provisions of Tenth Schedule of the Constitution after the petition dated 30.06.2023 was filed by the Petitioner under Paragraph 15 of the Symbols Order. Thus, on the date when the dispute was brought to the knowledge of the Commission, no disqualification proceeding was pending against the members belonging to either of the rival groups. In the present case, as mentioned above, the initiation of disqualification proceedings under Tenth Schedule was subsequent to filing of petition under Paragraph 15 of the Symbols Order. This Commission ought not to await the outcome of the disqualification proceedings pending before the Hon’ble Speaker of the Maharashtra Legislative Assembly for adjudicating the present symbol dispute case.

There are two major flaws with the above reasoning.

First, the ECI, on its own, conjured a sequence, which, only if followed, would render sole reliance on numerical strength of the legislative wing unsuitable. According to the ECI, only if disqualification proceedings are filed prior to the initiation of proceedings under Para 15, would the application of the test of majority be rendered inapplicable. Nowhere, in the 141 page judgement, did the Court in Subhash Desai make the above observation. The observations regarding unsuitability of the test of majority are generally applicable for situations where Tenth Schedule and Para 15 proceedings are going on simultaneously. The court was concerned about a situation where the order of the ECI was rendered before the order of the Speaker. Why? Because, as pointed out above, in case the Speaker, later, disqualifies members of ‘real’ NCP, the whole basis of the decision of the ECI crumbles. The SC also noted in Para 147 that “even if they (MLAs of majority faction) are not disqualified, the foundation of their claim (i.e., a legislative majority) is still on uncertain ground at the time of adjudication.”

Evidently, the SC was not concerned about which petition is filed first in point of time; rather, it was concerned which outcome is rendered first, and accordingly, tried to resolve it by declaring the test of majority inapplicable in certain peculiar circumstances, such as the Shiv Sena dispute. In the NCP dispute, like the Shiv Sena controversy, simultaneous proceedings under Para 15 and Tenth schedule were going on. Similarly, the ECI outcome in both the disputes came prior to the outcome in the Tenth Schedule proceeding. Therefore, the observation of the SC that “in cases such as the present one, it would be futile to assess which group enjoys a majority in the legislature” is indeed applicable to the present dispute.

Second, ECI cited the different fields theory to reason that sole reliance on the numerical strength in legislature was tenable in the present case. It noted that “the Commission ought not to await the outcome of the disqualification proceedings.”

The SC, while explaining the different fields theory, had noted: 

... the decision of the Speaker and the decision of the ECI are each based on different considerations and are taken for different purposes.

The reason for the above observation was that since the ECI’s decision is supposed to have prospective effect, the Speaker cannot decide Tenth Schedule proceedings based on ECI’s outcome: otherwise, it will have retrospective effect, which is contrary to law (para 156). Similarly, the Speaker’s decision is based in a point of time when the alleged conduct took place, not on future splits and factions. Therefore, the “different fields theory” is aimed at allowing two separate constitutional authorities to function independently of each other and deliver on their constitutional purposes without constraints. However, there might be a situation, where both constitutional authorities, although independently functioning, might head towards a collision course. It is constitutionally desirable to avert such a situation. The SC, noting precisely this, noted in Para 147

If the faction which enjoys a majority in the House is disqualified soon after being adjudicated to be the political party, the very foundation of their claim of being the political party no longer subsists. Even if they are not disqualified, the foundation of their claim (i.e., a legislative majority) is still on uncertain ground at the time of adjudication. This is not a constitutionally desirable outcome.

From the above observations, the present NCP order by the ECI is indeed ‘constitutionally undesirable’ for deciding on the basis of legislative numerical strength, which, itself was undecided at that point.

Conclusion

After Subhash Desai, there was hope that the ECI will change the manner in which it decides Para 15 disputes. However, it conveniently ‘picked and selected’ from the judgment to continue to stick to its script in deciding these disputes. It is immaterial whether the Speaker will eventually decide in favour of the faction declared as the ‘real’ political party; rather, it is constitutionally desirable to avoid a direct conflict between two constitutional authorities. It may also be possible that the order of the Speaker in disqualification proceedings is appealed to the SC, which, in turn, may then decide against the majority faction. What then? It seems that the different fields theory has again come to haunt political parties and their future.

Revising the Basics? – On the Supreme Court’s Proclamation of “Jail as the Rule” in UAPA Cases [Guest Post]

[This is a guest post by Kartik Kalra.]

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Last week, the Supreme Court delivered its judgment in Gurwinder Singh v. State of Punjab – an appeal from the Punjab & Haryana High Court’s rejection of bail for a terror-accused – holding as a principle of law that bail rejection is the norm u/s 43D(5) of the Unlawful Activities (Prevention) Act, 1967, and that a UAPA-accused cannot be released as long as elementary factual allegations of their involvement in the terrorism offence – even if divorced from the offence’s constituents – have been made by the state. The Court’s formal pronouncement of “jail as the rule” was a choice between two competing lines of jurisprudence that have emerged in interpreting the UAPA’s bail-restrictive provisions: one, where courts have been cognizant of the extreme state-citizen imbalance they create, and have accordingly required the state to present particularistic probative material in assessing the existence of a “prima facie case” (the standard to reject bail) against the accused (the “eyes wide open” approach); and the other, where courts uncritically accept the state’s version of the accused’s involvement, a line of cases prompted by the Supreme Court’s judgment in NIA v. Watali (the “eyes wide shut” approach). The instant case epitomizes and entrenches the latter as a principle of law, formally laying down a two-pronged test mandating lengthy pre-trial detention irrespective of the strength of the state’s case – at the bail stage –against the accused. More importantly, however, it constitutes a regression even from the eyes wide shut approach, for its assessment of a prima facie case is divorced from the offence’s constituents and definitions under the UAPA.

In this essay, I discuss the judgment in Gurwinder Singh, in the context of what has been referred to on this blog as the “basics”: a set of principles that a judge cognizant of the UAPA’s state-citizen imbalances must invoke in adjudicating bail. I also discuss the Court’s proud proclamation – “bail is the exception, and jail is the rule”.

Gurwinder Singh – Law-Fact Approximation, Revising the Basics

In this case, the accused was alleged to have committed an offence u/s 18 of the UAPA, which prohibits and penalizes, inter alia, “act[s] preparatory to the commission of a terrorist act”. He was alleged to have received funds from members of Sikhs for Justice, an organization deemed an “unlawful association” u/s 3 of the UAPA by the Central Government, which were to be used in India for fuelling separatism through the procurement of weapons, and for raising demands for a separate Khalistani state (¶3). He had been imprisoned for five years when filing for bail; consequently, he also argued for the applicability of the Supreme Court’s decision in Union of India v. K.A. Najeeb, which held that UAPA-accused persons may be released on bail solely on rights-related considerations arising from delays in trial (¶18).

The bail application was to be decided within the contours of Section 43D(5), which states that the accused would be released on bail only if, based on an assessment of the charge-sheet or case diary, “reasonable grounds for believing that the accusation…is prima facie true” do not exist. This term, as interpreted in Watali, meant that materials indicating the accused’s complicity must be shown by the state, and “must be good and sufficient” to demonstrate a possible commission of the alleged offence (¶23). The Court sticks to this interpretation, reproducing the state’s version of the accused’s involvement, without desiring the production of particularistic probative material, finding the general existence of the state’s case sufficient. In this sense, it does not constitute a regression from where the law, pursuant to Watali and the “eyes wide shut” approach, stood.

Simultaneously, however, it does make a grave omission: while the accused was alleged to have committed the offence of “knowingly facilitating the commission of…an act preparatory to the commission of a terrorist act”, the Court’s analysis of the prima facie case is wholly divorced from the offence’s constituents u/s 18. The “eyes wide open” approach, which prohibits a gap-filling exercise between allegations and evidence, does not account for this eventuality, perhaps assuming that any standard – howsoever deferential – would assess the state’s case in reference to the law the accused is alleged to have violated. This is also because in Watali itself, where the primary allegation against the accused was a membership-based offence, evidence collected was directed to prove such membership, corresponding to the legal composition of the offence as it is defined under the UAPA.

If, like in the instant case, the offence concerns the facilitation of an act preparatory to the commission of a terrorist act, a prima facie case that aligns with the offence’s constituents must necessarily show three things – first, what terrorist act, i.e., for what terrorist act was the preparatory act facilitated; second, the accused’s knowledge of the alignment of their actions with the facilitation of the terrorist acts; and third, a demonstration of how the terrorist act was furthered – howsoever marginally – by the accused’s participation. Even pursuant to Watali, therefore, “good and sufficient” materials showing these three elements – which are the offence’s constituents as it is defined in the UAPA – must be shown.

In the Court’s analysis, however, there exists no appreciable link between the facts alleged and reproduced, and the offence’s constituents. It reproduces the state’s case, which contains two primary allegations, neither satisfying the offence’s constituents – first, constant communication between the accused and members of the unlawful association; and second, a disclosure statement admitting to travel – with members of the association – for the purpose of procuring weapons illegally (¶29-30). While this may have been sufficient for showing a prima facie case for a membership-based offence, such as those u/ss 10 or 20 that prohibit membership of banned groups, the offence u/s 18 contains specific constitutive elements. The Court’s omission in assessing the offence in reference to the law, therefore, necessitates revising the composition of the “eyes wide open” approach, including within it the requirement to assess the offence’s constituents in deciding the existence of a prima facie case:

Principle 1: The definitional clauses of the UAPA must be given a strict and narrow construction.

Principle 2: The allegations in the chargesheet must be individualised, factual, and particularistic. The gap between what an individual is accused of, and the actual events, cannot be filled by inferences or speculation.

Principle 3: Bail cannot be denied when the Prosecution’s evidence is of “low quality or low probative value”, and a Court must engage in an analysis of the evidence to determine that.

Principle 4: In assessing the existence of a prima facie case, the state’s case – and the Court’s assessment – must correspond to the offence’s constituents, and a vague allegation of involvement, which does not correspond to the offence, cannot defeat bail.

Apart from regressing in this dimension, the Court also harshly interprets of Section 43D(5) in rejecting bail, noting the legislative anxiety underlying the words “shall not…release on bail.” I discuss this next.

Jail is the Rule! – On Legislative Intent, KA Najeeb

The most impactful component of the judgment, which is likely to become an oft-repeated phrase in UAPA bail hearings, is the Court’s proud proclamation that in matters involving UAPA offences, jail is the rule, and bail is the exception. The Court arrives at this conclusion through an assessment of the words “shall not be…released on bail” u/s 43D(5), which indicate legislative intent to make bail a rarity (¶18). The Court seeks to align itself with this legislative intent, seeking to concretize bail rejections into law.

While the constitutionality of Section 43D(5) has not yet been decided, performing a harsh reading of the section that codifies into law prolonged pre-trial incarceration – based on probative material of little value, which may even be divorced from the law the accused is alleged to have violated – is an unfortunate move. The derivation of the bail-rejection principle solely from the text of Section 43D(5) is a misattribution – the word “shall”, at least in Indian constitutional jurisprudence, has been diluted to nullity (especially in administrative law cases), with courts consistently departing from legislative mandates that appear seemingly mandatory. Awaiting the constitutional challenge, therefore, a fairer, appropriate reading must be offered to s 43D(5), enabling courts to fairly – without pre-existing tilts towards rejection – adjudicate bail under the UAPA.

Apart from reading s 43D(5) strictly, the Court also distinguishes this case from Najeeb, which enabled UAPA pre-trial detainees to obtain bail if have undergone imprisonment for a substantial period, based on fundamental rights considerations. Contrary to Najeeb, it holds that “mere delay in trial pertaining to grave offences… cannot be used as a ground to grant bail” (¶32). In Najeeb, it notes, the accused was imprisoned for a period exceeding five years, while in the instant case, they were imprisoned only for five (¶32). It also notes that while the trial in Najeeb was likely to take a long duration, many witnesses had been examined in the instant case, with the trial expected to complete shortly. The last justification for departing from Najeeb, however, concerns the existence of a prima facie case itself (¶32-3). This is problematic, for the enquiry in Najeeb – which asks whether the detainee’s constitutional rights have been violated owing to prolonged pre-trial detention – is distinct from the question of the existence of a prima facie case u/s 43D(5):

18. It is thus clear…that the presence of statutory restrictions like Section 43­D (5) of UAPA per­se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution…the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.

It is clear, therefore, that the question of rights-violation is distinct from the existence of a prima facie case, and one can – pursuant to Najeeb – be released on bail despite its existence, given its immateriality to one’s release. The Court’s invocation of a prima facie case to reject bail on rights-related grounds, therefore, is erroneous. It would also be worthwhile to note that Najeeb itself invoked prior UAPA-related case-law, where accused persons underwent periods of imprisonment comparable to the instant case, to develop its test of rights-violations.

Conclusion

The judgment in Gurwinder Singh, therefore, is both symptomatic of the prevailing “eyes wide shut” approach, whereby courts seek to authorize detention based on general allegations of involvement in a terror-related offense, while also regressing from how this deferential determination of a prima facie case hitherto occurred. The Court’s assessment of the case against the accused in a manner divorced from the offence’s constituents necessitates a revision to the set of basic principles a judge adjudicating bail must consider. The proclamation of “jail as the rule” is a further, unfortunate move, with the Court giving the state new vocabulary to invoke for seeking prolonged pre-trial detention.

Guest Post: Hemant Soren and the Supreme Court’s “Go to the HC” Jurisprudence

[This is a guest post by Rushil Batra.]

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Of late, the Supreme Court has been asking Petitioners to approach the High Court under Article 226 before they approach the Supreme Court directly under Article 32 for violation of fundamental rights. The latest victim of this ‘Go to the HC’ jurisprudence has been Hemant Soren – a sitting chief minister, who was arrested by the Enforcement Directorate [“ED”] and denied urgent relief by the Court. I refer to such cases collectively as ‘jurisprudence’ in itself because previous Chief Justices have highlighted how the Court is actively trying to ‘discourage’ such cases.

Practically the Court may have valid logistical and pragmatic concerns of petitioners bypassing the High Courts. However, the problem with that approach is that the text of the Constitution simply does not give any discretion to the Court to deny considering the case under Article 32. The Court, which otherwise seems to highlight the importance of separation of powers, cannot dilute a right ‘guaranteed’ to citizens based on pragmatic considerations

Thus, this post first analyses the bare text of the Constitution and argues that the Court cannot deny relief to petitioners even if they approach the SC directly. Second, it highlights the inconsistent approach of the Court in selectively sending some cases back to the HC while hearing others that happen to have political undertones. Lastly, it argues that the Court’s solution of ‘discouraging’ Article 32 cases may not align with the problem of backlog that it aims to solve.  

Back to the Basics: A Textual Reading of Article 32

Article 32 [(1) and (4)] reads as follows:

 “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed…The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution” (emphasis mine)

A plain reading of the text highlights how enforcement of fundamental rights under Article 32 is ‘guaranteed’ and cannot be suspended except as provided by the Constitution itself. Interestingly, such words as rights being ‘guaranteed’ are missing from 226. On a more philosophical level, Article 32 implicitly highlights what Henry Shue has argued, and what needs to be remembered now more than ever: that rights are worthless if they are not ‘socially guaranteed’ and lack enforcement.

The general response of the Court has been – as was in Soren’s case – that this would lead to opening up the floodgates where petitioners would bypass the High Courts and the SC would have to deal with more cases even as they deal with an already exploding docket. The idea is that High Courts are also ‘Constitutional Courts’ and have the power to deal with issues concerning fundamental rights, and thus the petitioners must exhaust all ‘alternative’ remedies before reaching the Court of last resort. In other words, the argument is one of public policy. The question is whether public policy considerations like these can be brought in when the text of the Constitution is manifestly clear on it.

Upendra Baxi has argued that the Supreme Court has no discretion in providing citizens with relief if a valid case is made out. Baxi argues that even if one assumes that the Court is right on public policy considerations, the question is whether the text of the Constitution allows it to import such considerations. The answer is a resounding no. Thus, the Court does not merely have the power to allow people to ‘move’ the Court – it also has a constitutional duty (i.e., a power coupled with a duty) to decide on such claims. Even if one argues that the writ is a discretionary remedy, the Court may have discretion in granting relief or not, but it must decide on merits to make that choice.

The concern that the State (inevitably) raises is that common citizens do not get the same treatment as political litigants do. There is a simple response to this. Political litigants – or more broadly persons in public service or limelight – do stand on a different footing than ordinary citizens in some contexts simply because of the skewed incentives when it comes to State prosecution. Khaitan has argued how democracy is a ‘self-defeating system,’ where whichever party is in power is likely to do everything to remain there. The most logical step then is to reduce opposition campaigning – especially when elections are around the corner. Once again, this is not something unique to one government, but is bound to be the case with all of them in the absence of an entrenched constitutional culture, which is all the more reason for the Court to consider such cases.

The argument here is not that the Court needs to decide only in a given way. Notwithstanding the recent concerns raised regarding the bench composition of certain cases, the question in this post is not even about who presides on the bench or what their inclinations are. The Court may very well deny the application on merits after going through the arguments advanced. The question here is a much basic one i.e., of judicial evasion. The Court must decide in one way or the other. Having of late emphasized the separation of powers, the Court should remember that the text of the Constitution does not permit it to deny entertaining claims regarding fundamental rights merely because the HC has concurrent jurisdiction to entertain such claims. At best, the Constitution must be amended to deal with such policy concerns, but until that is done, the Court cannot principally justify not hearing such cases on merits.

Are the High Court’s truly ‘Constitutional Courts’?

In sending Petitioners back to the High Courts, there is an interesting (and controversial) logic that underlines the Courts reasoning more broadly for Article 32 jurisprudence. The Court seems to suggest that High Courts being ‘Constitutional Courts’ have all powers that the Supreme Court has as far as interpreting the Constitution is concerned, including striking/reading down Central Acts – which is why Petitioners should approach it before coming to the Supreme Court. While the idea seems appealing – and even correct – once again the Supreme Court has been extremely inconsistent in actually applying this idea.

The Court generally is seen to have no problem when it comes to taking up politically sensitive matters – that also incidentally enure to the benefit of the political executive – under Article 32. A recent example where the Court had no hesitation in entertaining the case was of Vishal Tiwari v. Union of India, where the Court set up an expert committee to look at allegations of short-selling in the Adani-Hindenburg Case. Another example of using Article 32 is the Pegasus Case, where the Supreme Court took it upon itself to ensure that an SIT was formed only to keep their recommendations hidden in a ‘sealed cover’.

On the other hand, in the case of Popular Front of India v. Union of India, the Court declined to exercise its jurisdiction given the Petitioners had not approached the HC. Similarly, in the Manipur Internet Shutdown Case, the Court once again refused to exercise its powers under Article 32. This instance was more shocking as the Petitioner had actually approached the HC, but given the inaction by the HC, had to approach the SC under Article 32 – but this too seemed to be inadequate for the Court to consider the case. Thus, the ‘Go Back to HC jurisprudence’ goes much beyond bail or habeas corpus matters. The current trend seems to indicate that the Court selectively takes up some politically sensitive matters while refusing to do so in other cases.The quest for reasoning, let alone principled reasoning, seems elusive in this jurisprudence.

The SC also continues to undermine its own logic of HCs having as much power (and legitimacy) as the Supreme Court. This is most apparent when the SC selectively – and arbitrarily – in numerous instances, transfers petitions pending before High Courts to itself. A recent example of this could be seen in the Marriage Equality Case, where the Court transferred all petitions before HCs to itself (from the Delhi, Punjab, and Kerala HC). It remains unclear why the High Courts were not allowed to decide on the issue. One instant response could be the need to maintain uniformity in the law i.e., the unclear consequences of what happens when one HC strikes down a provision of a Central Act. While there is no ratio on this point, in the case of Kusum Ingots v. Union of India, in an obiter the Court had held:

“An order passed on writ petition questioning the constitutionality of a Parliamentary Act whether interim or final keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act” (emphasis mine)

This obiter has actually been adopted by several HCs. For instance, in Shiv Kumar v. Union of India, the Karnataka HC (with Nagarathna J – as she then was – speaking for the Court) found itself to be bound by a decision of the Kerala HC on reading down of Section 10 of the Divorce Act. In applying the read down version of the provision, it held:

“What follows is that Section 10A(1) of the Act has been held to be unconstitutional being violative of Articles 14 and 21 of the Constitution. However, to save it from the vice of unconstitutionality, the expression of ‘two years’ has been read down to ‘one year’ in sub-section (1) of Section 10A of the Act. The Kerala High Court’s pronouncement on the constitutionality of a provision of a Central Act would be applicable throughout India.”

If the position of law today is that the striking down, or reading down, of a provision by the HC shall have effect pan-India, it remains highly unclear as to why the Supreme Court would ever find itself in a position to transfer cases, like it did in the Marriage Equality Case. The conclusion is simple: while High Courts are Constitutional Courts in some cases, they cease to be as important in others.

Debunking the Ostensible Basis for Denying Relief under Article 32

The concerns regarding approaching the HC first are not new. Going back to 1950, in Romesh Thapar v. State of Madras, a similar objection was made by the then Advocate General that the Petitioner must approach the HC first before coming under Article 32 before the SC. A five-judge bench of the Court responded in the following words:

That article does not merely confer power on this Court, as article 226 does on the High Courts, to issue certain writs for the enforcement of the rights conferred by Part III or for any other purpose, as part of its general jurisdiction. In that case it would have been more appropriately placed among articles 131 to 139 which define that jurisdiction. Article 32 provides a “guaranteed” remedy for the enforcement of those rights, and this remedial right is itself made a fundamental right by being included in Part 1II. This Court…cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights”

This logic was followed in numerous cases in the 1950s, including other constitutional benches. However, over time, the Court’s approach has clearly changed. This can be visible from Union of India vs Paul Manickam in 2003 wherein the Court held “it has to be shown by the petitioner as to why the High Court has not been approached, could not be approached or it is futile to approach the High Court” and in case of failure to satisfy this test, the Court must ‘discourage’ such petitioners. Prassana S highlights how Paul Manickam ignores Thapar, and its observations at best constitute obiter, and at worse ars per incuriam. Another problem that emerges from an unclear position of law – on something as basic as Article 32 – is that a polyvocal Court is bound to have differing views on it.

The only possible reason for a change in judicial approach to my mind can be the increasing backlog of cases. Once again, this may be a valid concern at first blush, but a closer analysis would highlight that it does little to solve the problem. We now have empirically backed claims that highlight that the court’s docket explosion is rarely due to fundamental rights claims. Aparna Chandra, Sital Kalantry, and William Hubbard, in their latest book Court on Trial, highlight how the bulk of the cases arise from SLPs. Their data-set highlights that as of March 2018, appeals, the bulk of them SLPs, comprised approximately 98.7% of the Court’s docket of pending cases (including cases pending admission). Simply put, even if the Court’s concern is of backlog, by disallowing Article 32 claims, they throw the baby out with the bathwater.

Conclusion

Thus, the Supreme Court’s ‘Go to the HC’ jurisprudence lacks both legal and principled basis. It remains unclear as to how the Supreme Court gets powers to go against Constitution bench decisions without first overruling them. This also means that being a polyvocal court, some benches allow claims of fundamental rights directly before the SC while some don’t. There is also a highly inconsistent approach where the Court selectively allows Article 32 cases in some instances, but not in others. Even if the Court in the future decides to reconsider Romesh Thapar, the Court cannot on a principled basis justify restricting Article 32 claims. If at all the problem of backlog needs to be dealt with, it must be based on empirical data where the solution matches the problem.

The Bombay High Court’s split verdict on Government Fact-Checking (Part II: Free Speech Issues)

The first blog post in this series (here) examined how the two Judges of the Bombay High Court understood the scope and effect of Rule 3(1)(b)(v) of the IT Rules in significantly different ways. Justice Patel characterized the Rule as a broad rule that could allow for the indirect censorship of any content concerning the Union Government by threatening to remove an intermediary’s safe harbour. In contrast, Justice Gokhale interpreted the Rule to apply to cases where users intentionally share misinformation and concluded that the Rule did not require intermediaries to remove the content flagged by the Government’s Fact Checking Unit (“FCU”).

As a reminder, Rule 3(1)(b)(v) caused intermediaries to lose their safe harbour if they did not make reasonable efforts to remove content that:

“deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature or, in respect of any business of the Central Government, is identified as fake or false or misleading by such fact check unit of the Central Government. (emphasis supplied)”

Once they had characterised the Rule, each Judge had to decide three notable free speech issues. First, is “fake, false or misleading” speech (as identified by the FCU) a class of speech that can be restricted under Article 19(2). Second, is the Rule unconstitutionally vague? Third, does the Rule constitute a proportional restriction on free speech and offer sufficient procedural safeguards against abuse?

False speech under the Constitution.

Article 19(1)(a) provides for the freedom of speech and Article 19(2) sets out an exhaustive list of reasons for restricting speech (¶101, 153 Patel J.). These are the security, unity, and integrity of India and its friendly relations with other States, public order, decency or morality, defamation, contempt of court, or incitement to an offence. Thus, any restriction on speech must bear a nexus to one of these State interests. Crucially, as Justice Patel notes, “public interest” (or falsehood) is not a ground to restrict free speech under Article 19(2) (¶135 Patel J.). He further observes that in certain situations, where there exists a meaningful nexus with a legitimate aim in Article 19(2), false information may be restricted. For example, he asks, “Where might a piece of ‘fake news’ calling for an insurrection or an incitement to communal or other violence fall? Conceivably, this could well be within the Article 19(2) limits of ‘public order’ (¶164 Patel J.). But in such a situation, speech would not be restricted solely because it is false, but because it threatens public order – a legitimate State interest under Article 19(2). However, Rule 3(1)(b)(v) of the IT Rules restricts speech solely on the grounds that it has been flagged as false by the FCU. Thus, as Justice Patel concludes, “The impugned Rule takes up falsity per se, and restricts content on that ground divorced from, and untraceable to, any specific part of Article 19(2). That would be impermissible. (¶164 Patel J.). It is impermissible to restrict speech solely on the ground that it is false.

This is also a classic overbreadth analysis. Justice Patel’s opinion recognises that Rule 3(1)(b)(v) may restrict speech can be validly curtailed under Article 19(2) (e.g., false information that amounts to incitement). However, because the Rule goes beyond this to also potentially restrict lawful speech that has no nexus with a State interest under Article 19(2), it is an overbroad speech restriction. As Justice Patel notes, the Rule

“necessarily and axiomatically makes suspect and subject to identification with no reference to cause, effect or Article 19(2)’s constraints, every single digital data chunk that relates to the business of the Central Government (¶157 Patel J.).  

Justice Gokhale’s approach to this question takes some breaking down. First, she observes that false speech would not be free speech under Article 19(1)(a) of the Constitution itself (¶¶41, 55 Gokhale J.). She finds that the right to free speech does not include the right to abuse one another, as this would undermine societal harmony and national security. This is problematic because nothing in the text of Article 19(1)(a), which simply provides for the “freedom of speech” suggests that any speech, let alone false speech, does not constitute free speech. It is not as though the Indian Constitution does not allow restrictions on speech, or indeed even false speech. For example, the Constitution itself identifies defamation (a type of false speech) as a ground to restrict speech. But this is provided for in Article 19(2). Therefore, Article 19(2) itself captures the balancing required between free speech and other societal interests such reputation or national security. Hence, it is submitted that the more convincing interpretation of Article 19(1)(a) and Article 19(2) is that all speech is first protected as free speech by Article 19(1)(a) and only restrictable on the grounds set out in Article 19(2).  

Justice Gokhale’s second answer to Article 19(2) is to note that the Supreme Court in Shreya Singhal v. Union of India held that an intermediary will only lose its safe harbour if a Court or government agency directs it to remove content, and that such a removal direction must relate to an Article 19(2) interest (¶20 Gokhale). This makes sense, because if the content removed exceeded a permissible restriction under Article 19(2), the Court or government agency would be removing lawful speech. Justice Gokhale then concludes that because Shreya Singhal held that an intermediary can only be required to remove content that is validly restrictable under Article 19(2), Rule 3(1)(b)(v), which requires intermediaries to take down FCU flagged content, is compliant with Article 19(2) (¶21 Gokhale J.).

With respect, this is entirely circular logic. Shreya Singhal held that a Court or the Government can only restrict content under the IT Rules when it is constitutionally permissible under Article 19(2). Rule 3(1)(b)(v) is a ground to restrict speech under the IT Rules, a ground that has been added to the Rules after the Shreya Singhal verdict. One cannot conclude that Rule 3(1)(b)(v) is constitutionally valid merely because Shreya Singhal said that all restrictions under the IT Rules must be valid. The court must test the validity of the Rule and provide an independent justification for a conclusion of validity that is not already part of its premise. If Justice Gokhale’s logic is applied, constitutional reasoning would be as follows: laws must comply with the Constitution, this is a law, therefore it is complaint with the Constitution. This is not a tenable approach and entirely evades the tests set out by the Supreme Court to judge the constitutionality of a free speech restriction.

Vagueness

On the question of whether Rule 3(1)(b)(v) was unconstitutionally vague, the two Judges’ divergent interpretations of the scope of the Rule comes to the fore. Because Justice Gokhale construed the Rule as applying to only situations where users intentionally shared false content, she found that this narrowed the scope of the Rule to within judicially manageable standards (¶31 Gokhale J.). She further held that a breach of the Rule would only occur if the user shared content with a reckless disregard for the truth or “actual malice” (¶37 Gokhale J.). Finally, Justice Gokhale concluded if content, no matter how critical of the Government was based on some “existent and not fake or known to be misleading” information, it would not be hit by the Rule (¶44 Gokhale J.).

In contrast, Justice Patel highlighted the difficulties in ensuing that content concerning the government was not “fake or false or misleading”. He pointed out that information about the government, indeed even government data concerning the economy, poverty, or health, was often within the realm of subjective assessment (¶119 Patel J.) He then referred to the Indian Evidence Act, and in particular the definition of “Proved”. The provision states that:

 “A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. (emphasis supplied)”

Justice Patel observed that the issues of fact, proof, belief, probability, prudence, and supposition, which are central to determining facts in law, was absent in Rule 3(1)(b)(v) (¶115 Patel J.). He therefore found the terms “fake or false or misleading” to be impermissibly vague because they offered no judicially manageable standards to determine restrict speech and conferred excessive discretion on the FCU.

Given that both Judges’ interpretation of the vagueness question was fundamentally shaped by their understanding of how Rule 3(1)(b)(v) operated (and that has already been discussed extensively in Part I of this blog series), we can leave this issue to rest here.   

Proportionality and Procedural Safeguards

Both Judges referred to Supreme Court precedent and acknowledge that Rule 3(1)(b)(v) must satisfy the test of proportionality. The divergence in their proportionality analysis is effectively captured by the necessity limb. Justice Gokhale found that Rule 3(1)(b)(v) is necessary because the Government is concerned about the negative impact of false information spreading on social media, which may threaten public order (¶54 Gokhale J.) However, this is not what the test of necessity requires. The necessity limb of the proportionality test requires the court to examine whether there exist any alternative measures that are equality effective. In other words, could the Government have adopted a less rights-restrictive but equally effective measure? For example, Justice Patel highlights that the Government, through the Press Information Bureau, is well equipped to independently clarify or rebut incorrect information concerning its workings (and in fact regularly does so) (¶182 Patel J.). Therefore, in his eyes, Rule 3(1)(b)(v) failed the test of necessity.

The last limb of the proportionality test concerns the existence of procedural safeguards. Justice Gokhale highlights that users whose content is taken down can approach the intermediary with a grievance, and the intermediary is required to address this grievance within 15 days (¶19 Gokhale J.). Further, she highlights that users can also approach the Government’s own Grievance Appellate Committee specifically tasked to deal with online content (¶29 Gokhale J.). Lastly, Justice Gokhale finds that merely because the FCU is staffed by members of the executive, and the information they are adjudicating the correctness of information that concerns the Union Government, it cannot be presumed that the Government will be biased (¶25 Gokhale J.). To substantiate this finding, Justice Gokhale refers Crawford Belly v. Union where the Supreme Court held that the Government’s appointment of an Estate Offer was not a ground to presume bias in the actions of the Officer (¶26 Gokhale J.).

Two points may be made here. First, the existence of procedural safeguards cannot be completely satisfied by the existence of an appeal process. There must exist meaningful safeguards against abuse in the operation of the Rule, not merely redress against the outcome. For example, there is no transparency in how the FCU operates, no requirement that it provide any reasoning for its decisions, and no requirement that a user is heard before their content is taken down. On the question of bias, it is submitted that there is a difference between an Estate Officer and individuals tasked with adjudicating the legality of speech concerning the Government. The Supreme Court has for decades closely supervised the composition of statutory tribunals precisely because of concerns over independence. Indeed, the Supreme Court has even struck down a constitutional amendment that it found to offer the executive too much influence over judicial appointments. These decisions highlight that the ex-ante composition and independence of decision-makers does matter, particularly where the government itself has a stake in the decision made by the tribunal or bench. As Justice Patel observes,

“There is no safeguard against bias. There are no guidelines, no procedure for hearing, no opportunity to counter the case that some information is fake, false or misleading. […] Even more disturbingly, the Rule clearly makes the Central Government a judge in its own cause. (¶189 Patel J.)”     

Given that Rule 3(1)(b)(v) concerns the falsehood of information concerning the Government, the composition of the FCU undoubtedly matters. The FCU allows the Government to exclusively decide whether information concerning the Government in the public realm is correct or wrong.

Conclusion

These two blog posts have attempted to capture the analytical differences between the Judges on the constitutionality of Rule 3(1)(b)(v). But ultimately this case was also about citizen-State relationship and the role of free speech in mediating this relationship. This case concerned the Government claiming a unilateral right to determine what information in the public sphere about it was true. The Government inter alia argued that false speech about the government was not protected, that the Government acted as parens patriae for citizens in the informational ecosystem, and the Government was fulfilling a sovereign duty to ensure that citizens get the ‘correct’ information about the Government. These are troubling arguments that are antithetical to our understanding of democracy which is premised on citizens freely choosing amongst competing visions of the public good. Justice Patel’s opinion emphatically rejected these submissions:

“I reject without hesitation the attempt to curtail Article 19(1)(a) buried in the submission that the fundamental right is to ensure that every citizen receives only ‘true’ and ‘accurate’ information – as determined by the government. It is not the business of the government to keep citizens from falling into error. It is the other way around. For it is very much the business and should be the duty of every citizen to prevent the government from falling into error. Governments do not select citizens. Citizens elect governments. (¶158 Patel J.)”  

The baton is now passed to the judge(s) tasked with resolving the split verdict.

*Disclaimer: One of this Blog’s editors (Gautam Bhatia) was a counsel in this case. He was not involved with the publication of this post.

The Bombay High Court’s split verdict on Government Fact-Checking under the IT Rules (Part I)

On 31 January 2024 a Division Bench (two Judges) of the Bombay High Court delivered a split verdict (here and here) on the constitutionality of the 2023 amendment to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”). Rule 3(1)(b)(v) of the IT Rules required intermediaries (such as online platforms) to make reasonable efforts to not host content that is patently false or concerned “any business of the Central Government” that has been flagged by the Union Government’s ‘Fact Checking Unit’ (“FCU”). If the intermediaries violated the Rule, they would lose the statutory immunity from liability (or ‘safe harbour’) provided to them under Section 79 of the Information Technology Act, 2000 (“IT Act”). Justice Neela Gokhale upheld Rule 3(1)(b)(v) while Justice Gautam Patel struck it down.

This two-part series critically analyses the areas of disagreements between the two judgements. This first blog examines two foundational differences about the scope and content of Rule 3(1)(b)(v). First, the judges disagreed over what the consequence of violating the Rule was, and thus whether the Rule even restricted users’ speech. Next, the judges disagreed over whether Rule 3(1)(b)(v) only prohibited content concerning the Union Government which was shared with the knowledge that it was false, or any content about the Government. These disagreements ultimately end up shaping the free speech analysis of each judge, which will be discussed in the second post (here).

Safe harbour and free speech

Justice Gokhale found that the Rule 3(1)(b)(v) did not actually require an intermediary to remove content flagged by the Union Government’s FCU. According to her, once the FCU flags content, the intermediary acts according to its “existing policy” and can either remove the content but also show a disclaimer or warning to users that the content is false (¶16-17 Gokhale J.). Crucially, she ruled that the Petitioner’s concern that merely because an intermediary loses safe harbour if it fails to remove FCU flagged content would not automatically cause the intermediary to remove the content (¶19 Gokhale J.). She noted that the loss of safe harbour would only expose an intermediary to liability for hosting unlawful speech, and the intermediary could always defend itself against such liability in court (¶29 Gokhale J.). This understanding of the consequences of loss of safe harbour is central to Justice Gokhale’s opinion as it allows her to characterise Rule 3(1)(b)(v) as a relatively innocuous measure that does not ultimately result in the removal of content or have a significant bearing on free speech.    

With respect, Justice Gokhale’s approach fails to grasp the incentives of intermediaries or the role of safe harbour in protecting free speech. Intermediaries host millions of pieces of content every day. This content is not their own content, it is that of their users. Further, intermediaries make negligible amounts of money from any single piece of content. The result of these realities is that if intermediaries are at risk of being held liable for a piece of content, the easiest thing to do for an intermediary is to remove it and avoid the time and money associated with litigating the legality of such content. This is not conjecture but has been empirically demonstrated by sending legal notices to intermediaries and recording whether they remove content or litigate these notices. Intermediaries’ unwillingness to defend their users’ speech in Court against the government is perhaps best demonstrate by the fact that not a single intermediary challenged Rule 3(1)(b)(v).

Precisely to avoid intermediaries removing content at the drop of a hat, even when it may be entirely lawful, Parliament through Section 79 of the IT Act granted them conditional immunity for hosting user generated content. The Supreme Court in Shreya Singhal v. Union of India (“Shreya Singhal”) also recognised that safe harbour was essential to protect free speech on the internet and ruled that an intermediary will only lose safe harbour if a court or government agency requires it remove content. Perhaps most crucially, safe harbour immunity protects the intermediary from liability even if the speech is illegal. In a country like India with broad laws criminalising large swathes of speech, losing safe harbour can not only embroil an intermediary in expensive and time-consuming litigation, a single adverse verdict or guilty sentence can cripple an intermediary. This creates strong incentives for intermediaries to remove the content rather than risk losing safe harbour. Thus, requiring intermediaries to remove content under threat of losing safe harbour is in reality no different from asking them to take it down.

Justice Patel’s opinion expressly acknowledges this. At paragraph 81 he notes:

“Between safe harbour and user’s rights regarding content, the intermediary faces a Hobson’s choice; and no intermediary is quixotic enough to take up cudgels for free speech. Compromising one particular chunk of content is a small price to pay; better the user content is thrown under the bus than having the bus run over the entire business. The safe harbour provision is therefore not just intermediary-level insulation from liability. It is an explicit recognition of a free speech right. (emphasis supplied)”

Justice Patel’s opinion recognises that once content is flagged by the Government FCU, the intermediary’s most obvious and indeed rational course of action would be to remove this content. Unlike Justice Gokhale, Justice Patel also notes that once content is flagged by the FCU, there is no room for the intermediary to apply its own mind or its policies, it is the FCU that is the arbiter of the falsehood of the content, and the intermediary is merely required to remove it at the threat of losing safe harbour (¶73 Patel J.). Recognising this key aspect allows Justice Patel’s opinion to accurately captures the threat to free speech posed by Rule 3(1)(b)(v). Namely that requiring an intermediary to remove content flagged by the government under threat of stripping an intermediary of its safe harbour amounts to indirect takedown request by the government. Viewed in this manner, Rule 3(1)(b)(v) poses a direct risk to free speech and causes Justice Patel to engage with the doctrines of overbreadth, vagueness, proportionality, and the permissible grounds to restrict speech in a detailed manner (as discussed in Part II of this blog-series).

The knowledge requirement

Rule 3(1)(b)(v) required intermediaries to make reasonable efforts not to host content that:

“deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature or, in respect of any business of the Central Government, is identified as fake or false or misleading by such fact check unit of the Central Government.”

The judges disagreed over whether this text covered one or two classes of content. In Justice Patel’s view, the text outlined two different sets of content: (i) where the sender knowingly and intentionally shared information which was false or misleading; and (ii) content concerning the Union Government flagged by the FCU. Crucially, Justice Patel held that because the two sets of content were separated by the word “or”, the requirement that the content was shared with the knowledge that it was false did not apply to FCU flagged content (¶59 Patel J.). In other words, the intermediary had to remove content that was flagged by the FCU even if it was not shared with an intention to mislead. The FCU was the sole arbiter of whether the content ought to stay up or not irrespective of user intention (¶69 Patel J.).

Justice Gokhale however ruled that the requirement that the content be shared with knowledge and intent to mislead applied to even FCU flagged content (¶40 Gokhale J.). Justice Gokhale’s offers two justifications for this position, both of which, with respect, are deeply flawed. First, Justice Gokhale simply reproduces the rule as interpreted by her (i.e., “knowingly and intentionally communicates information in respect of any business of the Central Government, is identified as fake or false…”). It is trite law that a judge cannot re-write a statute in the guise of interpreting it. Here however, there is no guise, the judge has simply re-written the rule. This cannot be considered reasoning, let alone sound reasoning.

Second, Justice Gokhale states that an intermediary is granted safe harbour because of its passive role, but once an intermediary has knowledge and intent, it loses safe harbour. Thus, a knowledge and intention requirement must be read into the Rule (¶40 Gokhale J.). This is a conflation of two different knowledge requirements, the knowledge of the intermediary and the knowledge of the user. A perusal of Rule 3(1)(b)(v) demonstrates that it is concerned with the sender’s knowledge. The Rule restricts content that is knowingly or intentionally communicated. It is users who communicate information and therefore Rule 3(1)(b)(v) targets situations where a user knowingly shares misinformation. Completely independent and unrelated to this is the question of whether the intermediary has knowledge of unlawful content on its network. Prior to the Supreme Court’s decision in Shreya Singhal, an intermediary would lose safe harbour if it had knowledge of unlawful content on its network but failed to remove it (post Shreya Singhal, the intermediary does not lose safe harbour until it receives a court order requiring takedown). It is submitted that Justice Gokhale’s reasoning that because an intermediary (used to) lose safe harbour upon having knowledge of unlawful content on its network, Rule 3(1)(b)(v) should be interpreted to require that even FCU flagged content by shared with a user’s knowledge that it is false is an incorrect conflation of two entirely unconnected knowledge requirements.

One final observation: Reading in a knowledge requirement may seem to diminish the risk to free speech because it raises the threshold for content that can be flagged by the FCU. However, three points need to be noted here. First, because this interpretation is at odds with the text of the Rule itself, there is no guarantee that the government officials at the FCU interpret the Rule as Justice Gokhale does. Second, verifying the intention of internet users in a time-bound manner is neigh impossible and opens the door to incorrectness and abuse. Third, there are no procedural safeguards to ensure the FCU does interpret the Rule this way or that.  

Conclusion

These foundational differences between the two Judges cause them to characterise the disputed Rule in diametrically opposed manners. In Justice Gokhale’s opinion, Rule 3(1)(b)(v) does not require or cause the removal of content. Further, by circumscribing the Rule to only cases where users intentionally share false information, the rule has a narrow field of operation. However, in Justice Patel’s opinion, Rule 3(1)(b)(v) represents an indirect restriction on speech concerning the Union Government that is enforced by threatening to strip intermediaries of safe harbour. Further, because Justice Patel finds that the Rule could be applied to remove any information concerning the Union Government regardless of why it was shared, it raises the spectre of indirect censorship. Understandably, these conclusions on the scope and effect of Rule 3(1)(b)(v) substantially influence each judge’s analysis of the free speech risks the Rule raises. Both Judges’ discussion on issues of overbreadth, vagueness, and the permissibility of restricting false speech under Article 19(2) will be discussed in the subsequent blog post (here).   

*Disclaimer: One of this Blog’s editors (Gautam Bhatia) was a counsel in this case. He was not involved with the publication of this post.