The NRC Case and the Parchment Barrier of Article 21

Previously, I have written about the multiple procedural irregularities that have characterised the Supreme Court’s NRC Case: the use of sealed covers, consequential decisions being taken in closed-door hearings, and the bench’s disturbing disregard for due process rights. In the course of this years-long proceeding, the Court has far exceeded its brief as the apex judicial organ of the country, with its repeated stress on deportations making it appear more executive-minded even than the executive: more the Supreme Deportation Authority rather than the sentinel on the qui vive. But yesterday’s hearing in Harsh Mander v Union of India marks a low point even within this ongoing story.

According to accounts of the oral proceedings, the government of Assam brought forward a plan to secure the monitored release of foreigners who had been in detention centres more than five years. The plan entailed the detainees paying a hefty deposit amount of Rs 5 lakhs, having their biometric details taken, and then set free from the detention centres. The Chief Justice-led bench reacted to this with great anger, questioning the government repeatedly about its failure to deport individuals who had been held to be foreigners (this has been a common theme of every hearing). The Chief Justice claimed that the government was asking the bench to be “a part of an illegal order where a foreigner who has no right to stay in the country will remain and sign a bond and so on.” He further lectured the government about what it should have been arguing, noting that “the stand of the government of India and the state of Assam should be that the foreigners detenues should be deported as soon as possible. But we do not see that stand, Mr Chief Secretary.” When the amicus curae made the rather basic point that technically, deportation could hardly be carried out without the cooperation of the host country, the Chief Justice’s only response was “we can say that the government has failed to do its job.” The Chief Secretary then promised to come up with “better measures.”

Separation of Powers and International Law

There are a few things worth noting here. To start with, Harsh Mander v Union of India is a PIL about inhumane conditions in detention centres. How it has become a case about deportations is anyone’s guess. And there is a particularly cruel irony in the fact that a case filed to draw attention to inhumane conditions in detention centres has now brought us to a pass where the Court nixes the government attempts to release a small class of detainees from those centres.

But leave that aside for the moment. The Chief Justice’s repeated enquiries about deportation suggest not only an ignorance of the basic international law principles of non-refoulement and against statelessness, but also either ignorance – or contempt – of the principle of separation of powers. Section 3 of the Foreigners Act is pellucidly clear: the entry, departure, or presence of foreigners in India is a matter for the central government. It is not for the Court to browbeat the government into taking a stand on whether or not to deport (notwithstanding some observations in Sarbananda Sonowal, which are not only obiter, but completely unsupported by any legal principle of authority). Matters are worse confounded by the fact that when a Foreigners Tribunal makes a decision on the status of an individual, its decision is limited to deciding whether or not the said individual is an Indian national. The Foreigners Tribunal does not – and cannot – return a finding on whether that individual is a national of a named other country. The Chief Justice’s reaction – “why don’t you deport?” – therefore flies in the face of reality as well, because there will be – and there are – many situations where a Foreigners Tribunal declares an individual as a foreigner, but there is no country to deport that individual to, because no country is claiming them as their national.

In sum, therefore, the law on deportation is that it is a decision for the government to make, a decision that is constrained by principles of customary international law. What the Court is doing in these proceedings is taking a bludgeon to this legal structure, by ignoring both these core legal elements. This is damaging in many respects, but it is particularly damaging because the task of checking whether the government is exercising its discretion to deport in consonance with principles of customary international law is a judicial task. However, when the Court itself is acting in this fashion, to which forum are people supposed to appeal, if they think that the government is acting illegally? This is why the separation of powers exists: for courts to review the actions of the government, and ensure the government acts legally. And this is why the blurring of the line between the court and the political executive – of which the entire NRC case is an exemplar – is so profoundly dangerous.

Article 21

But let us come to an even more serious issue. As indicated above, the government set out a plan where detainees who had spent more than five years in detention centres were to be conditionally released. The conditions of release are so onerous that in my view, they rise to the level of being unconstitutional, but let us ignore that for the moment. The Court refused to accept this proposal as, in the opinion of the CJI, it amounted to sanctioning an “illegality”. Why? Because the government should have been deporting them.

It is at this stage that it becomes necessary to revisit the text of Article 21 of the Constitution – a provision that has come to mean everything to everyone in recent years, but which seems to mean nothing when it actually matters. Article 21 of the Indian Constitution states as follows:

No person shall be deprived of his life or personal liberty except according to procedure established by law.


There is no – no – law that authorises indefinite detention of an individual, whether citizen or foreigner. And if there was a law that did so, it would almost certainly be struck down as unconstitutional. On what basis, therefore, does the Court say that releasing detainees who have spent more than five years in detention would be endorsing an illegality? The boot of illegality, rather, is on the other foot: by refusing release, it is the Court that is sanctioning a flagrant and continuing violation of Article 21, the provision that is supposed to be the heart and soul of the Constitution. And one can hardly ignore (once again) the almost brutal irony at the heart of this: it is the government that wants to release detainees from detention centres, and the court that wants to stop it. Which is the political executive and which is the sentinel on the qui vive? Who is the protector of rights, and who the encroacher? It is impossible to tell any more.

Conclusion

Like every other legal culture, we too have our “never again” moment. For us, that “never again” moment is the notorious judgment in ADM Jabalpur, the Habeas Corpus case. The Supreme Court’s judgment in that case that sanctioned Emergency-era excesses – most of which were visited upon detainees – is what we hold up as the marker of that “valley of shadow” into which we’ve been, and into which we must not go again.

But when the Supreme Court prevents the government from (conditionally) releasing detainees who have been in detention centres (which, by all account, are inhumane places) for more than five years, thus condemning them to a continuing, lawless deprivation of personal liberty, then it is perhaps time to ask whether all we can do is keep saying “never again”, even as it happens all over again.

Imprisonment by Quotation: On the Sharjeel Imam Bail Order

The law on speech, violence, and the link between the two is well settled in India. In Shreya Singhal v Union of India, the Supreme Court made it clear that, consistent with Article 19(1)(a) of the Constitution, the correct standard for criminalising speech was that of incitement to violence. Not advocacy; not violent thoughts; but incitement. The judgment in the Shreya Singhal case articulated an evolving latent standard in Indian free speech law, that had been expressed in various forms since the Ram Manohar Lohia judgment in 1960: the requirement of close proximity between a speech and an unlawful act, summed up through phrases such as a “spark in a powder keg” (Rangarajan).

While it may appear tedious to recount uncontroversial Supreme Court jurisprudence – and indeed, it is tedious for the person doing the recounting – the exercise is made necessary by the fact that from time to time, courts seem either unaware of precedent, or seem to believe that following precedent is an optional exercise. A good example of this is today’s astonishing order of the Additional Sessions Judge at Saket, denying bail to Sharjeel Imam in the Delhi riots case. In brief: Sharjeel Imam gave various speeches on 13th December, 2019 and 15th December 2019. On the afternoon of 15th December, it is alleged that there was mob violence and stone pelting in an attempt to march to the Parliament. The prosecution’s case was that Imam had instigated the mob with his speech.

In the disclosure statement – extracted in paragraph 3 of the judgment – Imam’s speech can be roughly translated and summarised as follows: first, that he opposed the CAA and the NRC; secondly, that he called upon his community to oppose these laws and make the government bow; thirdly, that he called for “chakka jam” (blockades); and fourthly, he warned that if the CAA-NRC were not opposed, they would all land up in detention camps and have their citizenship stripped. In paragraph 5, the Court sums up the Prosecution’s case as follows:

As per prosecution, applicant/accused Sharjeel Imam had delivered provocative speeches on 13.12.2019, 15.12.2019 and 16.01.2020, which resulted into riots at several places. The speech dated 13.12.2019 is the subject matter of present FIR i.e.
242/19, PS New Friends Colony. It is alleged that in the said speech, applicant/accused was seen instigating a particular religious community against the government by creating unfounded fears in their minds regarding CAB and NRC. As per prosecution, speeches delivered by the applicant/accused were seditious, communal/divisive in nature and were aimed at promoting enmity between different religions.

It is important to note that on the Prosecution’s own case, neither a prima facie case under Section 124A (sedition), nor 153A is made out: “instigating … against the government” is not equivalent to “inciting … to violence”, and arguing that a particular law targets a particular community is not a S. 153A offence: as has been held multiple times, for 153A to be apply, the specific communities have to be singled out in express terms, between whom enmity is being generated. Thus, this is not – evidently – a case of hate speech (and indeed, as we shall see, the Court does not make any further mention of S. 153A).

Now in that context, in paragraph 10, the Court notes:

As far as allegations against applicant/accused for offences under section 143/147/148/149/186/353/332/333/307/308/427/435/323/341/120B/34 IPC & 3/4 Prevention of Damage to Public Property Act & under section 25/27 Arms Act with aid of section 109 IPC are concerned, after going through the record, I am of the prima facie view that the evidence in support of the allegations (rioteers got instigated by the speech dated 13.12.2019 of applicant/accused and thereafter they indulged in the acts of rioting, mischief, attacking the police party etc), is scanty and sketchy. Neither any eye witness has been cited by prosecution nor there is any other evidence on record to suggest that co-accused got instigated and committed the alleged act of rioting etc upon hearing the speech of applicant/accused Sharjeel Imam. Further, there is no evidence corroborating the version of prosecution that alleged rioteers/coaccused were a part of the audience addressed by applicant/accused Sharjeel Imam on 13.12.2019. Upon specific inquiry by this court, Ld. Special Public Prosecutor fairly conceded that at this stage, there is no material available with prosecution to the effect that applicant/accused and other co-accused persons were members of any common social platform viz whatsapp etc so as to fasten the liability of acts of co-accused upon present applicant with aid of section 109 IPC. The essential link between the speech dated 13.12.2019 and the subsequent acts of co-accused is conspicuously missing in the instant case.

One would think that at this point, an order granting bail would follow immediately: not only are the multiple cited sections of the IPC not made out, but the failure to establish even a prima facie causal link between Imam’s speech and the riots – let alone a causal link strong enough to meet Shreya Singhal‘s incitement standard – makes the sedition case a non-starter. However, in paragraph 15, the Court then says:

Thus in view of settled position of law, the issue whether the said speech would fall within ambit of section 124A IPC or not, requires a deeper analysis at an appropriate stage. However, suffice it would be to observe that a cursory and plain reading of the speech dated 13.12.2019 reveals that same is clearly on communal/divisive lines. In my view, the tone and tenor of the incendiary speech tend to have a debilitating effect upon public tranquility, peace and harmony of the society.

In other words, the Court entirely ignores the legal test for the application of Section 124A – the incitement test – and replaces it with an entirely subjective assessment of the speech – that is on “communal/divisive lines” and would “tend to have a debilitating effect upon public tranquility.” But these are a whole lot of words that can mean just about anything: what is on “communal lines” or “tends to” have a “debilitating effect” on public tranquility is not a judicial standard that can be assessed on any reasonably measurable scale: it is, to use a phrase in vogue these days, “just vibes”. But imprisoning people for years on end (at the time of writing, Imam has already been in jail for a year and a half) on the basis of just vibes seems to have become a feature of the Indian judicial system of late.

It is telling that the Court sees fit to begin its order by quoting certain lines from Swami Vivekananda: “We are what our thoughts have made us; so take care about what you think; Words are secondary; Thoughts live; they travel far.” This is an excellent – if unwitting – insight into the mind of the Court: the problem is not that Imam incited a riot (he very evidently didn’t) or broke the law, it’s just that – put very simply – the Court doesn’t like the kind of stuff he seems to be thinking. And on that basis – and in complete disregard of existing bail jurisprudence – the Court decides that he must stay in jail for the foreseeable future.

The Court’s order here is eerily reminiscent of “imprisonment by metaphor: that is, of the Patiala House District and Sessions Judge order from last year, which denied bail to Safoora Zargar. There again, a perusal of the Prosecution’s material had revealed no definable offence, and no link between speech, protest, and violence. To keep Zargar in jail, the Court was forced to resort to metaphor, talking about how if you “play with embers” you can’t blame the wind for “spreading the fire”. And this is the whole issue: if, as a Court, you are going to take the extremely weighty step of keeping people in jail for years pending trial, the least you can do is to provide specific reasons showing what the particular, identifiable, unlawful act is: not metaphor, not quotes from Swami Vivekananda about bad thoughts.

The problem seems to be, however, that Courts do not regard keeping people in jail for years as a weighty issue – or indeed, an issue of any concern whatsoever. Individual liberty is degraded currency at the Court, and for that reason all we get are orders sanctioning imprisonment by metaphor or imprisonment by Swami Vivekananda quotes.

A Memory for Forgetfulness: Some Thoughts on a Judicial Retirement

The retirement of a Supreme Court judge is marked by a few time-worn traditions: a farewell ceremony on the Supreme Court lawns, brief addresses by high constitutional functionaries, a rendition of the judge’s qualities (some evident through the course of their judgeship, others not so much), and curtain. It is over in an afternoon – harmless enough, as these things go.

The August 12 retirement of R.F. Nariman J has been characterised by something a little more. On Twitter, a senior counsel tells us that his was “an exemplary career in the law – as a jurist, a counsel and a judge.” On Moneylife, another senior counsel calls him “the perfect judge”, a “model professional with a high EQ”, and says that his legacy is “unmatched”. On BloombergQuint, a third senior counsel quotes Marc Antony and askswhence comes such another?” Other encomiums of this kind can be found on the internet.

As a preliminary point, I want to say that, even accounting for the demands of the profession, such breathless hyperbole does our legal culture no favours. It is worth remembering – yet again – that judges of the Supreme Court (one of the three wings of the State) wield tremendous power, and the exercise of said power requires respectful – but critical – scrutiny, and not reams of purple prose. That apart, however, I believe that these encomiums are particularly inapposite in the case of this particular judicial retirement, as they seek to obscure a set of events – in which the judge in question was an active participant – that reflect the Supreme Court, as an institution, in particularly poor light. As we shall see, these pieces – and others – either ignore, or acknowledge but attempt to minimise, R.F. Nariman J’s role in those events.

Any honest reckoning of R.F. Nariman J’s legacy must, I believe, place at least two of these events at its centre. Why is this important? It is important because what we choose to tolerate, justify, or explain away now is very revealing of what we will continue to tolerate, justify, and explain away in the future. I thus offer up this critique not as a personal attack, but in the spirit of Hagai El-Ad’s anti-hagiographic assessment of the legacy of Aharon Barak: that in the struggle of memory against forgetting, there are some things that are vital to remember.

The NRC

It is by now tedious – yet important – to reiterate the Supreme Court’s role in ramming through the Assam National Register of Citizens [“NRC”]. The process started with the 2014 judgment in Assam Sanmilita Mahasangha vs Union of India. This judgment – authored by RF Nariman J “referred” a number of constitutional questions regarding amendments to the Citizenship Act to a Constitution Bench (one of them being whether immigration constitutes “external aggression” against the country) – and in the same breath, directed the immediate preparation of the National Register of Citizens (even as the question of its constitutionality had been referred to a larger bench in the same judgment). What followed is a matter of historical record: the Supreme Court repeatedly drove the State to complete the citizenship list as soon as possible, set hard deadlines, threw due process to the winds, took information in sealed covers, elevated the State Coordinator to some kind of privileged High Priest mediating between God (the Court) and the citizens, in secret conclaves, and essentially violated every basic principle underpinning the judicial function.

In history, there are innumerable instances of governments setting in place spirals of exclusion, violence, detention camps, and death, through the making of “Citizenship Lists”. To my knowledge, the series of orders passed between 2014 and 2019 is the only case where a constitutional court did so, and to an obsessive degree. And the results were indeed violent: more than fifty people took their own lives in fear of the consequences of being off the NRC list; Genocide Watch issued two warnings; and we continue to pay the cost in human suffering.

What do senior counsel have to say about this? One says, astonishingly, that the “bench passed crucial orders which led to the publication of the final NRC in July 2018″ – a bit like saying that Winston Churchill took “crucial decisions” regarding food distribution in West Bengal in 1942. In the Marc Antony piece, we are told that admittedly, that Assam Sanmilita was the “one blot” in an otherwise magnificent judicial career, but that RF Nariman J was likely “influenced” by his companion on the bench, CJI Gogoi. At this stage, RF Nariman J seems to have turned into Schrodinger’s Judge – both fiercely independent-minded and subject to “influence” by his companion judges, both unyielding and malleable, all at the same time. This will not do. The Marc Antony piece then goes on to note that “as these issues are still at large before the Constitution Bench of the Supreme Court and are still being debated politically, it may be best to say no more on the subject.” But this is an utter cop-out. Every order passed by the Supreme Court between 2014 and 2019 was a continuation of the 2014 judgment, and every order had a real-world impact. When assessing a judge’s legacy, you cannot cherry-pick the things that make him look good, and lightly pass over the rest, as if it were the shadow of a dream. These things happened.

But it seems that, reading the encomiums, they happened elsewhere, at another time, to someone else. The past is a foreign country. And it is this distance, this detachment, that we seem to achieve so easily, that I find of concern. Just as there was very little critique of the Court when these orders were being passed, there appears to be an equal unwillingess to acknowledge them as part of the judge’s record and his legacy. That indicates that if it happens again, we will only too easily look away again.

Re Matter of Great Public Importance Concerning the Independence of the Judiciary

Once again, reams have been written about the events that took place in May 2019, when allegations of sexual harassment were levelled against the Chief Justice. It is now almost universally accepted that the treatment of the complainant was unjustified at every level, and that a grave injustice was done. But injustice does not happen by an invisible hand: injustice is done, people do it. And in this case, at various points over the course of that week or so, no fewer than eight Supreme Court justices were involved in that injustice.

RF Nariman J’s role was in the second hearing, on the Monday following the Saturday. This was the hearing at which a lawyer showed up out of nowhere and claimed he had evidence that the Supreme Court Registry was being manipulated, ostensibly in order to “fix” the Chief Justice. The insinuation was that the accusations against the Chief Justice were politically motivated, a weapon of blackmail. It is a story that has repeated itself across time and place.

The Supreme Court hearing in which RF Nariman J was an active participant, gave credence to exactly this story. It completely derailed the actual accusations, turned the case from a sexual harassment case to an “independence of the judiciary case”, and by asking for an affidavit in a “sealed cover” and directing an investigation under an ex-Supreme Court judge, reinforced and entrenched exactly the kind of victim-blaming narrative that – it is well-documented by now – makes justice and accountability for sexual harassment an impossibility. And this is what is genuinely astonishing: that two days after an accusation of sexual harassment, someone shows up muttering darkly about conspiracies and threats to the nation, is so wild a plotline that fiction editors would reject it out of hand as too contrived. But instead of throwing it out and keeping the focus on the allegations themselves, the Supreme Court bench bought – or chose to buy into it – hook, line, and sinker. The Moneylife and Marc Antony pieces, unfortunately, equally choose to ignore it.

Two and a Half: Santosh Gupta

I found it a little surprising that none of the assessments of RF Nariman J’s legacy dealt with the judgment in Santosh Gupta, where RF Nariman J held that to the extent of repugnancy, the provisions of the SARFAESI overrode Section 140 of the Jammu and Kashmir Transfer of Property Act (as it then was), which had specific protections regarding certain kinds of property transfers. Opinion may vary about the correctness of Santosh Gupta, but there is little doubt that it had a huge impact with respect to issues of federalism and freedoms; its omission from legacy assessments is, I think, a little telling about how, even after 2019, Kashmir continues to occupy a collective black hole in our constitutional imaginations (something I have been frequently guilty of as well).

Conclusion

It is impossible not to be deeply moved on reading Marc Antony’s funeral speech for Julius Caesar. In his speech, Antony was inventing a legacy on the spot, transmuting Caesar’s dictatorial tendencies into humility and abnegation, and explaining away inconvenient facts. Antony knew what he was doing: after successfully exhorting the Plebs to violence and riot, he ends the scene by quietly saying to himself “now let it work. Mischief, thou art afoot.”

Let us therefore take the encomiums to RF Nariman J, framed through the lens of Marc Antony’s funeral speech, on their own terms. Soon after that funeral speech, the Roman Republic fell and Caesar’s dictatorial tendencies were solidified into an Empire. Perhaps the lesson there is that we should all take funeral – and farewell – speeches with an appropriate amount of salt.

 

ICLP Turns 8 || What Dreams May Come

The Indian Constitutional Law and Philosophy blog turns eight years old today.

On previous blog anniversaries, I have used the occasion to reflect on some of the important events of the preceding year. I suppose it is unsurprising that the tone of those posts has grown steadily bleaker and more pessimistic. As another year comes around, I find that I have very little to say: as far as civil rights and State impunity is concerned, nothing much has changed from the last time around, nor are there any significant indications that anything will change in the near future. Indeed, for the reasons that I outlined in the seventh-anniversary post, “A Constitutionalism Without A Court”, I find myself writing less frequently about the Court(s), and with minimal enthusiasm. To analyse “normal” judgments about – say – the Delhi legislative assembly’s summons to Facebook, in the normal course of things, as if everything was normal, while those jailed for 3+ years without trial in the Bhima Koregaon case are repeatedly denied bail by the same judicial system, creates a contradiction that I find increasingly difficult to overcome.

So I thought I’d do something different this time around: instead of looking back, look forward – but to a hypothetical future. In this future, the things that we should take for granted – that is, constitutional courts deploying the Constitution as a sword against State impunity – actually do happen. To imagine that future, I set out below a set of ten headlines and summaries that would be written every time the courts acted in that way. Needless to say, I do not ever expect to be writing those headlines in the actual future; that is why they belong in the category of what dreams may come.

The Supreme Court Strikes Down Section 43D(5) of the UAPA

In a landmark judgment, a seven-judge bench of the Supreme Court struck down Section 43D(5) of the UAPA as unconstitutional. The Court held that the provision – which prohibits the grant of bail as long as a prima facie case is made out against an accused – violated the constitutional guarantees of personal liberty, fair trial, and equal protection before law. The seven-judge bench also overruled the prior decisions of the Supreme Court in Kartar Singh vs State of Punjab and National Investigation Agency vs Zahoor Ahmad Shah Watali. The Court said that the latter judgment, in particular, had been a ‘catastrophic error’, responsible for keeping many individuals in jail for years without trial, and that it deserved to be buried next to ADM Jabalpur, “ten fathoms deep with no chance of resurrection.” The Court stressed, by way of conclusion, that the presumption of innocence and the rule of bail were fundamental features of the criminal justice system, that could not be sacrificed at the altar of special legislation.

The Supreme Court Strikes Down Sections 3 and 4 of the Citizenship Rules, 2003

A Constitution Bench of the Supreme Court has struck down Sections 3 and 4 of the Citizenship Rules 2003, that authorise the creation of a nationwide National Register of Citizens (popularly known as “the NRC”). The Court held the offending sections created a nationwide presumption of non-citizenship, akin to general warrants or dragnet surveillance without reasonable cause, and consequently, violated the right to privacy as well as being manifestly arbitrary. In doing so, the Court overruled its prior judgment in Sarbananda Sonowal v Union of India, noting that it was a “deeply flawed decisions that raised the presumption of non-citizenship to a constitutional principle, with no basis in the constitutional text.”

The Supreme Court Strikes a Blow for Federalism: Implied Limitations on Executive Authority Under Article 356 and on Parliamentary Authority Under Article 3 Upheld

Adjudicating a batch of petitions challenging what has popularly come to be known as the “events of August 5, 2019”, a Constitution Bench of the Supreme Court held that Constitutional Order No. 272 and the Jammu and Kashmir Reorganisation Act of 2019 were void. While expressing no view on the merits of Article 370 of the Constitution, the Court held, first, that the executive government – or its delegate – acting under Article 356 of the Constitution, could not permanently alter the structures of governance of a federal unit; and secondly, that under Article 3, Parliament lacked the power to convert a state into a union territory. The Court noted that a contrary interpretation of Article 3 would mean that Parliament had the power to hypothetically convert every state into a Union Territory, and thus destroy the federal structure altogether; consequently, any such interpretation of Article 3 had to be rejected.

The Supreme Court Strikes Down the Electoral Bond Scheme

In a terse, ten-page judgment, a three-judge bench of the Supreme Court today struck down the electoral bonds scheme for “being destructive of Article 19(1)(a) of the Constitution, and of the basic feature of free and fair elections.”

The Supreme Court Strikes Down the Uttar Pradesh Recovery of Damages to Public and Private Property Act

Terming it a “grossly disproportionate interference with the right to protest”, a Constitution Bench of the Supreme Court struck down UP’s Recovery of Damages Act, which inter alia made the organisers of a protest liable for any damage to property, regardless of individual responsibility, and shifted the burden of proof to the accused. The Court noted that the Act would cast a “permanent chilling effect” even over peaceful protests; it also overruled its prior 2009 judgment in In Re: Destruction of Public and Private Properties, upon which much of the challenged law was based.

The Supreme Court Mandates Prior Judicial Authorisation for Internet Shut-Downs; Holds Rigorous Application of the Proportionality Standard Necessary

Two weeks ago, acting upon a petition the same afternoon that it had been filed before it, the Supreme Court had stayed a government order requiring an internet-shut down in Jammu & Kashmir. In a detailed judgment delivered today, the Court held that except where a formal Emergency had been declared, internet shut-downs were presumptively illegal, and in any event, could not be imposed without judicial authorisation. Noting that India had long been the “Internet shut-down capital of the world”, a matter of some shame for a democracy, the Court went on to note that the proportionality standard had to be applied strictly to any proposed internet shut-down; and, given that available research showed no demonstrable link between shutting down the internet and the maintenance of public order, an affirmative duty to establish the same would lie upon the State. Analysts have said that the judgment could have significant consequences in prompting the Supreme Court to take a second look at its long-encrusted jurisprudence on Section 144 of the CrPC as well.

The Supreme Court Strikes Down the FCRA (Amendment) Act, 2020

In an omnibus challenge, the Supreme Court struck down several amendments to the Foreign Contributions Regulation Act (FCRA), as well as provisions of the 2010 statute. The Court found that several restrictions – such as regulations on the proportion of funding that a non-governmental organisation could use on administrative expenses, the requirement of holding a bank account in Delhi, prohibitions on inter se transfers of funding between non-governmental organisations, and so on – constituted anundue and disproportionate burden upon the freedom of association under Article 19(1)(c), and that “other than invoking the phrase ‘national security’ like a prayer”, the State had provided no argument – or evidence – for their necessity.

The Supreme Court Strikes Down the RTI (Amendment) Act, 2019

In a landmark judgment, the Supreme Court held that the Right to Information Act, 2005, was in the nature of a constitutional statute, as it was enacted specifically to give effect to the fundamental right to information. The Court went on to find that the 2019 amendments to the Right to Information Act compromised the independence of the Information Commissioners, and were therefore unconstitutional.

Supreme Court Holds Meaningful Public Participation to be Implicit in Article 21 of the Constitution; Applies it to Evictions

Breaking with precedent, a Constitution Bench of the Supreme Court held that the principle of public participation was implicit in Article 21 of the Constitution. Setting aside an eviction order, the Court held that evictions or demolitions of long-standing jhuggis could not take place until meaningful engagement with the residents had taken place, with respect to the provision of reasonable alternative accommodation. With this judgment, the Supreme Court joins with constitutional courts such as those of South Africa and Kenya, that have recently attempted to address the problem of deeply skewed land distribution in unequal societies by increasingly questioning the sanctity of background property rules.

Swiggy and Zomato Delivery Personnel Held to be “Employees” under the Code of Wages Act

After a long-running litigation, in a significant judgment, the Bombay High Court upheld the finding of the Labour Court that delivery personnel working in what is euphemistically called “the gig economy” fall within the definition of “employees”, and are therefore entitled to the benefits of the Code of Wages Act. The High Court held that the use of the algorithmic “app” by platforms led to an exercise of control over work that made the formal classification of delivery personnel as “contractors” a “sham”. The immediate impact of the judgment is expected to be widespread, as it applies equally to platforms like Uber and Ola, and ensures that delivery personnel have access to a range of individual and collective labour rights beyond those in the Code of Wages Act.


Feel free to add your own in the comments; the dreamier the better!

Guest Post: Revisiting the CAA in Light of the May 28 Notification

[This is a guest post by Moosa Izzat.]


On May 28, 2021, the Central Government issued a notification authorizing the local governmental bodies of various districts to entertain applications for citizenship from a specific category of persons. This category comprised of people fitting two requirements: first, they ought to have entered India from Afghanistan, Pakistan, or Bangladesh; and second, they ought to have been Hindu, Sikh, Buddhist, Jain, Parsi, or Christian by religion. This category of persons was conspicuously similar to that which was singled out by the controversial Citizenship Amendment Act, 2019 (‘CAA’). In fact, the categorization was identical barring the cut-off date for entry, i.e., December 31, 2014, laid down in the CAA.

In spite of the similarities between the categories of people targeted, the Central Government has insisted that the two legal instrument were unrelated. However, no public clarification as to how the May 28 Notification is distinguishable from, and not pursuant to, the CAA has been given (statements made by unnamed ministry officials reported here and here). The basis of distinction must, therefore, be inferred from a comparison of the two instruments and statements made by unnamed ‘ministry sources’ to major news agencies.

The May 28 Notification instructed the concerned authorities to exercise their powers to grant to the specified category of persons certificates of registration or naturalisation, whichever may be applicable. Registration and naturalisation are the two primary modes of wilful acquisition of citizenship provided for by the Citizenship Act, 1955 (‘Citizenship Act’), which are governed by Sections 5 and 6 respectively.

Incidentally, the CAA had inserted Section 6B into the Citizenship Act, which dealt exclusively with the citizenship of the specified category of persons. The provision did not provide an alternate route to citizenship. Instead, it mandated the fulfilment of the requirements laid down under Sections 5 or 6, whichever may be applicable. Additionally, however, the CAA had also amended the Third Schedule of the Citizenship Act, such that the specified category of persons had to complete a shorter minimum period of residence, of 6 years instead of 11, before becoming eligible to apply for naturalisation.

Upon its enactment, massive protests against the CAA had erupted nationwide. Meanwhile, arguably another hurdle to the immediate enforcement of the CAA were the constitutional challenges it faced before the Supreme Court of India. Over a year later, the Supreme Court has not yet passed a judgement on its constitutionality. During this state of limbo, the Central Government twice postponed the enactment of the requisite rules under the CAA. It has thus been the Government’s position that in the absence of the requisite rules, the CAA is not yet in force.

Two bases of distinction

This formed the backdrop for the May 28 Notification. Returning to the central issue, there are two facts that distance the May 28 Notification from the CAA. First, the notification referred to Sections 5 and 6, and not Section 6B, of the Citizenship Act. While the mere reference to Sections 6B would have had no impact on the route to citizenship acquisition, this was the sole indicator in the text of the Notification that demonstrated an intent to follow the provisions of the Citizenship Act as it existed before the enactment of the CAA.

Second, the persons covered by the Notification were required to fulfil the longer period of minimum stay of 11 years laid down in the Citizenship Act as it existed prior to the enactment of the CAA. It must be noted, however, that this second basis of distinction was not indicated by the text of the Notification. Instead, it was stated in the above-mentioned clarifications subsequently made to major news agencies.

***

A third argument to distance the May 28 Notification from the CAA has surfaced which goes as follows: nearly identical notifications were published in 2014 and 2018, years before the enactment of the CAA. This line of argument, however, must be rejected outright. When the legality of all such acts by the Government are questionable, in that they potentially violate Article 14 of the Constitution, the existence of similar notifications in the past do not confirm that the May 28 Notification could exist independently of the CAA. On the contrary, the CAA would ensure, at the very least, that such administrative actions had a firm basis in existing legislation and were not arbitrary uses of administrative authority.

Prior to the enactment of the CAA, that these notifications were in conformity with existing citizenship laws was contestable. This is because the already existing provisions dealing with citizenship acquisition was contingent on the concerned category not falling under the category of illegal immigrants. While the CAA would do away with any ambiguity in this regard, earlier measures had protected the concerned category from such a designation in a round-about way.

On September 27, 2015, two pieces of delegated legislation were issued which partially protected a similar category of persons from designation as illegal immigrants. These were amendments to the Passport (Entry into India) Rules, 1950, and the Foreigners Order, 1948. Rule 3 of the Passport (Entry into India) Rules barred those without valid documentation from entering India while Rule 4 carried a list of exempted persons. The September 27 notification amended Rule 4 such that people belonging to the above-mentioned religions having entered before the specified date from Bangladesh and Pakistan were added to the exempted categories. The entry into India of the concerned category of persons was thus legalised.

Meanwhile, the Order amending the Foreigners Order laid down that the provisions of the Foreigners Act, 1946, would not be applicable to the above-mentioned category. Further, the amending Order mirrored the phrasing used to define illegal immigrants in the Citizenship Act; it referred to those who had entered without valid documents and those who had entered with valid documents but overstayed beyond the period of valid stay.

Read together, the measures on September 27, 2015 protected the concerned category from designation as illegal immigrants in two ways. First, their entry into the country was legalised. Second, the law which could be used to declare them to be illegal immigrants, namely the Foreigners Act, was made not applicable to them.

Yet, for the purposes of the Citizenship Act, there existed no explicit confirmation that the concerned individuals were not ‘illegal immigrants’. Based on the above notification and order, a strong argument undoubtedly existed in favour of the concerned category. By contrast, the CAA, by explicitly exempting the concerned category from designation as ‘illegal immigrants’, made clear what was hitherto ambiguous. Just as importantly, the CAA provided a statutory basis for what would otherwise be an exercise of executive discretion.

Reassessing the CAA’s significance

Upon its enactment, the CAA was criticised for discrimination on religious grounds. It was the first instance where India’s citizenship regime would explicitly favour the followers of certain religions over others. What the above discussion has revealed, however, is that even prior to the enactment of the CAA, the Central Government had, on at least two occasions, singled out people belonging to certain religions and expedited their path to citizenship acquisition.

The primary differentiator was that on the two previous occasions, this was done through notifications and not through an Act of Parliament. They were administrative acts, wherein an existing beneficial legislation was used to grant citizenship to an already eligible category of persons. The provisions dealing with naturalisation and registration are provisions of beneficial legislation in the sense that they allow non-citizen individuals to acquire citizenship and the bundle of rights that come with it. The notifications merely singled out the categories of people who would be immediately granted this bundle of rights. The measures were thus an exercise of executive discretion. The CAA, on the other hand, made certain substantive changes in the law that would be applicable only to the specified category of persons. Foremost of these changes were as follows:

First, it exempted the specified category of persons from being designated as “illegal immigrants” by adding a proviso to Section 2(1)(a) of the Citizenship Act. As citizenship acquisition through naturalisation and registration is barred for illegal immigrants, this appears to be a significant amendment. However, the CAA’s impact in this regard must not be overstated. As discussed above, certain measures had already existed to protect the specified category from designation as illegal immigrants. Therefore, the CAA merely confirmed and made unambiguous the legality of the specified categories’ stay in the country.

Second, the CAA amended the Third Schedule of the Citizenship Act so as to reduce the minimum period of stay required for a person to be eligible to apply for a naturalisation certificate. The cut-off date for entry being December 31, 2014, the reduced period of six years allowed the concerned category of persons to be eligible for citizenship acquisition shortly after the enactment of the CAA. This, it is argued, was the more substantial amendment effected by the CAA. As of June 2021, every individual belonging to the specified category laid down in the CAA is eligible to apply for a certificate of naturalisation. In the absence of the CAA, some belonging to the specified category would have to wait till up to 2025 to become eligible.

But the function of the CAA goes far beyond the specific legal changes listed above. I have attempted to emphasise one of these functions: the provision of an explicit statutory basis for what was hitherto achieved through delegated legislation (2018 and 2021 Notification) which, in turn, relied on other pieces of delegated legislation (September 27 Notification and Order).

Guest Post: The UP Hoardings Case and Misplaced Comparativism

[This is a guest post by Shubhangi Agarwal and Harsh Singh.]


In March, the Uttar Pradesh administration had ordered the putting up of banners in Lucknow with names, photographs and addresses of more than fifty CAA – NRC protesters, asking for compensation from them for allegedly causing damage to private and public property. Observing a clear case of a breach of privacy, the Allahabad High Court took suo moto cognizance and registered a PIL against the government administration. The court rightly ruled that the actions of the state are “an unwarranted interference in privacy of people” (discussed here). However, this decision was appealed before the Supreme Court, and the apex court, after placing reliance on a UK Supreme Court judgment, ordered that the case be referred to a larger bench for consideration. This article seeks to juxtapose the crisp and timely intervention of the Allahabad High Court with the Supreme Court’s referral order and analyzes the apex court’s misplaced reliance on UK case law.

The Allahabad High Court’s swift justice

The Allahabad High Court criticised the UP administration for displaying such banners on the roads. It applied the proportionality test laid down in the Puttaswamy judgment and observed that the authorities failed it on all the three counts. Firstly, there was no law which permitted such actions. Secondly, the aim to deter mischief and recover money from protesters for alleged damage to public property was not a legitimate aim, as they were not fugitives, and there was no need to publicize their personal details. Lastly, there existed no rational nexus between the means employed and the objective sought to be achieved. Lakhs of accused persons in UP were also facing criminal trials but their personal details were never subjected to such publicity. The court even went on to remark that “the placement of personal data of selected persons reflects colorable exercise of powers by the Executive.”

The Supreme Court’s waywardness

The Supreme Court, on the other hand, shied away from its responsibilities when dealing with the same questions. It relied on a UK Supreme Court case – In the matter of an application by JR38 for Judicial Review (Northern Ireland), and referred the appeal to a larger bench. It is pertinent here to explain the facts of the foreign case to distinguish it from our case. In the UKSC case, the appellant, aged fourteen years, was engaged in rioting and his CCTV footage (taken during the course of rioting) was published in two newspapers by the police authorities. The publication was done to ‘identify’ him and to deter future disturbances. The question was whether there was a breach of privacy under Art. 8 of ECHR.

The UK Supreme Court judgment on this can be divided into two parts – the majority opinion and the minority opinion. The majority (Lord Toulson, Lord Clarke and Lord Hodge) opined that there could have been no reasonable expectation of privacy in the facts of the case, because of the nature of the criminal activity the appellant was involved in. Therefore, the appellant could not have expected non-publication of his photograph by the police for his identification. However, their conclusion that the appellant did not have any reasonable expectation of privacy was greatly dependent upon the ‘identification’ purpose of the police.

Lord Clarke, with whom Lord Hodge concurred, held that (paragraph 112):

I agree with Lord Toulson that on the facts here the criminal nature of what the appellant was doing was not an aspect of his private life that he was entitled to keep private. He could not have had an objectively reasonable expectation that such photographs, taken for the limited purpose of identifying who he was, would not be published. I would not however hold that the mere fact that a person is photographed in the course of a criminal activity deprives him or her from the right to prevent the police from publishing the photographs. Thus, if the photographs had been published for some reason other than identification, the position would have been different and might well have engaged his rights to respect for his private life within article 8.1. I would not therefore put the point quite as broadly as Lord Hope does in para 21 of Kinloch quoted above.

The minority opinion (by Lord Kerr and Lord Wilson) held that that the appellant retained a reasonable expectation of privacy primarily because he was a child at the time the photograph was taken, and factors like age, consent, and risk of stigma also play a role when determining the question of privacy. However, after applying the proportionality test, the judges came to the conclusion that the interference with the appellant’s right to privacy under Art. 8 of ECHR was justified for the same reasons as that of the majority opinion.

Lord Kerr J. with whom Lord Wilson concurred, stated (paragraphs 41 and 76):

Prima facie, therefore, the taking and use of a photograph of an individual will lie within the ambit of article 8. The essential question is whether it is removed from that ambit because of the activity in which the person is engaged at the time the photograph was taken and because the person could not have a reasonable expectation that his or her right to respect for a private life arose in those particular circumstances. The fact that the activity in which the person is engaged is suspected to be criminal will not, by reason of that fact alone, be sufficient to remove it from the possible application of article 8.

The painstaking approach taken by the police service to the objective of identifying young offenders such as the appellant has been explained by Chief Inspector Yates and Superintendent Robinson. Internal police inquiries were made; community leaders and social services were asked whether they could identify those involved; and it is ironical that the appellant and his father were shown the photograph that was later published. Had they identified the appellant, no publication would have occurred.

 

As is clearly evident from the above paragraphs, the photograph was published with the clear purpose to identify the wrongdoer; in the present case, however,, banners with personal details were put up to seek compensation from protesters for damage to public property, and to ‘name and shame’ them. There is a stark contradiction in both the objectives. These protesters were not fugitives and were not trying to bypass their interrogation and trial.

Conclusion

Only a few days before this referral order, the Supreme Court in Shah Faesal v Union of India, had remarked on judicial references. It had noted that “when substantial judicial time and resources are spent on references, the same should not be made in a casual or cavalier manner.” Regrettably, it failed to follow its own laid down principle. Moreover, the recovery notices which were issued to the protestors were challenged by them and the matter was already pending before the court. In such circumstances, the reference order was evidently unjustified. The result of this was that the swift justice delivered by the Allahabad High Court was derailed in the Supreme Court, in no small part because of erroneous reliance upon UKSC case law, as well as a failure to correctly apply the Puttaswamy judgment.

CAA, Coronavirus, and Civil Rights at the Bar of the High Courts

Amidst the continuing fall-out of the CAA/NRC/NPR protests, and the new fall-out of Covid-19, some of India’s High Courts have delivered admirable judgments protecting civil rights in fraught times. In Kamil Siedczynski v Union of India, a single-judge bench of the Calcutta High Court set aside a “Leave India Notice” [“LIN”] issued by the government to the Petitioner, who was a Polish student studying in India. The ostensible basis of the Notice – issued under Section 3(2)(c) of the Foreigners Act – was that the petitioner, being a foreign citizen, could not have participated in “political rallies” while in the country. The petitioner impugned the LIN on both procedural and substantive grounds: namely, that he had not been heard, that the LIN was not supported by any reasons, and that it violated his rights under Article 21 of the Constitution. The State, on the other hand, raised a set of familiar arguments: it relied on its prerogative powers in matters of entry or expulsion into India, submitted materials in a sealed cover, denied any obligation to accord a hearing, and argued that foreigners could not agitate constitutional rights that flowed from Article 19.

Sabyasachi Bhattacharyya J found for the Petitioner on all counts. He began by noting that the Petitioner was lawfully in India on a valid student visa. Consequently, the right of the Petitioner to reside in India – flowing from his visa – could not be revoked without a hearing (paragraph 49). Bhattacharyya J then observed that the material in the “sealed cover” was essentially two sheets of paper that referred to the Petitioner’s attendance at an anti-CAA rally, and a decision taken by “higher formations” to expel him from the country. This led him to consider the substantive question at issue. On this, Bhattacharyya J held that:

For a brilliant student of the academic standard of the petitioner, it is but natural that the petitioner shall have free interactions in an atmosphere of freedom with Indians, at least while in India. (paragraph 58)

Consequently:

The very premise of such qualifications, which the petitioner has, provide for the petitioner’s ability to engage in such activities as indicated above. Hence, the ‘life’ and ‘personal liberty’ of the petitioner cannot be limited to a bare existence worth the name but also contemplates his right to actively pursue his interests and fields of specialization, which are necessary for the petitioner to lead a healthy life. The personal liberties of any person cannot be restricted merely to the right of staying in India. Since the student visa in favour of the petitioner confers the right on the petitioner to live in India up to August 30, 2020, the rights to pursue his intellectual interests and to seep in the ethnicity and lifestyle of different communities in India also go hand in hand with his right to life. (paragraph 59)

Thus, even though Article 19 was not available to the Petitioner (as a non-citizen), Article 21 – available to “all persons” – covered his right to participate in protests and rallies. Additionally, Bhattacharyya J. pointed out that the powers under Section 3 of the Foreigners Act were not “unfettered”, but had to be exercised within the constitutional framework. Interestingly, he also held that some of the earlier Supreme Court judgments – that seemed to indicate that no hearing was necessary as a Section 3 order was a “purely executive order” – were not only distinguishable, but had also been overtaken by the progress of Article 14 and 21 jurisprudence, which now required a more “liberal” approach. Thus – and in sum – Bhattacharyya J condemned the actions of the government as a “paranoid overreaction” (paragraph 88), and set aside the LIN. The judgment stands out both for the lucidity and clarity with which it enunciates the relevant constitutional principles, and its refusal to simply defer to the State on questions of expulsion and the rights of foreigners. At all times, Bhattacharyya J. insisted, the State had to comply with its constitutional obligations: both in terms of respecting individual rights, and in terms of providing reasons for coercive action. Here – as often happens – the slightest scrutiny of the State’s putative “reasons” (even though they were submitted in a sealed cover) resulted in a clear realisation that they were, in essence, no reasons at all.


Meanwhile, the Madurai Bench of the Madras High Court passed a strong order on the right to protest. The plea concerned the denial of police permission to protest against the CAA/NPR/NRC, on grounds of inconvenience to traffic, and law and order. Justice G.R. Swaminathan noted that “officials invariably deny permission for holding meetings protesting governmental laws and policies”, citing either Section 30 of the Police Act of 1861 or Section 41 of the Chennai City Police Act of 1988 (both laws clothe the police with extremely broad powers to deny permission to protests). Citing recent observations by judges of the Supreme Court (Chandrachud and Deepak Gupta JJ) in extra-judicial speeches, Justice Swaminathan then observed that:

The right to hold public meeting is traceable to Article 19(1)(a) and 19(1)(b) of Constitution of India. These provisions guarantee to all citizens the right to freedom of speech and expression and to assemble peaceably and without arms. The Constitution Bench of the Hon’Ble Supreme Court in the decision reported in (1973) 1 SCC 277 (Himat Lal K.Shah V. Commissioner of Police) held that the right to hold public meetings flows from Article 19(1)(b) and that the state cannot impose unreasonable restrictions. It was also observed that public streets are the natural places for expression of opinions and dissemination of ideas. It forms parts of the tradition of our national life. (paragraph 8)

In light of this, Swaminathan J noted that the task of the State authorities was to stand in aid of fundamental rights, dealing with law and order problems if – and when – they arose, and not to start with the “easy option” of curtailing rights. This was especially the case as in the present situation, the organisers had committed to abiding by all rules and regulations.

The denial of permission was thus set aside, although – in the meantime – Covid-19 had intervened, and there a fresh prohibition on public gatherings had been issued. Swaminathan J. therefore completed by holding that “the jurisdictional Deputy Superintendent of Police, will issue proceedings permitting holding of the event at the petition mentioned site immediately after the ban issued by the Government in the wake of novel coronavirus pandemic is lifted.” (paragraph 12)

Although brief, the judgment stands out, therefore, for three things: first, a reiteration of the principle that “public streets” are “natural avenues” for the exercise of constitutional rights; secondly, a reiteration that the obligation of the police and other authorities is to support the exercise of these rights, instead of moving to stop them on grounds of administrative convenience; and thirdly, effective relief by directing the grant of permission once Covid-19 passed (whenever that might be!). During a time when there is substantial judicial hedging even on such basic principles, the categorical nature of this judgment is welcome.


Covid-19 has caused substantial economic dislocation. One form of dislocation has been loss of income (both to individuals and businesses) caused due to the necessity of social distancing and of working from home. This precipitous fall in income – that has hit some sectors particularly hard – has led to calls for economic relief packages across the world. These have included demands for direct cash transfers, for the government to pay salaries of people stuck at home, and – crucially – a temporary moratorium on evictions, recoveries of dues, and other similar forms of coercive financial action.

In view of this, on March 18 and 19, the High Courts of Allahabad and Kerala passed brief orders. The Allahabad High Court directed that in view of the extraordinary situation, and for a limited period of two weeks (until 6.4.2020), recovery proceedings by district or statutory authorities, auctions, orders for presence of persons, demolitions, and evictions would stand suspended. The reason – as the High Court noted – was that given the imperative of social distancing and the impact on the right to health, such temporary relief was essential. The Kerala High Court’s order was somewhat broader:  it directed recoveries under the SARFAESI Act, the Income Tax Act, VAT and Motor Vehicles tax be deferred to after the 6th of April. Crucially, and at the same time, the High Court left it open for State authorities to move for modification of the order in specific individual circumstances; thus, broadly, the default was a two-week relief period, subject to reasonable exceptions, if established in Court.

As Swaroop Mami notes in this piece, the High Courts’ orders were both constitutionally sound, and also – at a basic level – humane:

These are vital orders for both protection of fundamental rights of citizens and to grant some kind of relief to a sagging economy in the wake of the virus. A businessman, already having to pay salaries without business, deserves a two-week tax relief. As any tax practitioner, be it a chartered accountant or a lawyer, will tell you – the two weeks leading up to March 31 are when the tax department, desperate to hit annual revenue targets, will be at its most unreasonable. A relief against this is always welcome, but even more so during this crisis. Also, it is basic human decency that during an unprecedented worldwide pandemic requiring self-isolation, aperson should not be evicted from her house for recovery of bank dues, and the State should not carry out demolitions of buildings for violation of building laws. These can wait for two weeks.

In the case of the Kerala High Court, the orders were passed for the protection of Court officers. It is important to understand that like hospitals, courts can never be fully shut down – bail, habeas corpus writs and urgent civil relief often cannot be postponed. The best one can do is reduce the burden on the courts, which is what the Court sought to do.

 

It is therefore deeply unfortunate that both these progressive orders were stayed ex-parte by a bench of the Supreme Court, in an entirely cryptic, unreasoned, one-paragraph order. In his article, Swaroop deals with the flawed stand of the Union of India at some length, and I will not rehearse those arguments here. It is, however, important to note that in granting this ex parte stay within hours of filing, the Supreme Court allowed the government to break every known procedural rule in the book; moreover, as Manu Sebastian points out in this Facebook post, many of the directions of the Allahabad High Court did not concern the interests of the central government at all, but rather, those of the UP state government – which did not appeal the order.

Two further points. The State’s SLP – as Swaroop points out – is almost entirely based on the issue of separation of powers and the encroachment of the judiciary into the domain of policy. Here, however, is the bizarre thing: for the last three decades, the courts – and especially, the Supreme Court – have repeatedly “encroached” into the domain of policy, even to the extent of engaging in judicial law-making. The principal argument for this has been that because of the “vacuum” caused due to legislative and executive “inaction”, the Supreme Court has had to step in. From that perspective, even if you believe that the Allahabad and Kerala High Court orders were “encroachments” (and Swaroop argues persuasively that they were not), they were scarcely outliers: here is a situation involving a global pandemic, with cities and entire states under lockdown, where the central government has (so far) failed to come up with a relief package, and where – to tide over an emergency – the High Courts passed narrow and temporary orders dealing with enforcement relief. Does this even begin to compare with the Supreme Court’s sweeping judicial law-making in a case like Vishaka, or its recent use of Article 142 to legalise police interrogation techniques? Separation of powers, thus, seems to have become just another weapon of convenience in the Supreme Court’s armoury – it doesn’t exist on Tuesday and Wednesday, when the Court is perfectly content with passing legislative guidelines, but is suddenly birthed on Thursday, when the State comes up and asks for a stay.

Secondly, the Supreme Court order notes that the basis of the stay is that “the Government is fully conscious of the prevailing situation and would itself evolve proper mechanism to assuage concerns and hardships of everyone.” This is an astonishing statement for a constitutional Court to make – a level of abject deference reminiscent of its September 2019 order in the Kashmir lockdown case, where the government was politely requested to ease restrictions on fundamental rights “subject to national interest.” Notably – and contrary to the two High Court judgments that it was staying – no details whatsoever are provided in the order of what the “proper mechanism” might look like; indeed, that same evening, the Minister in charge of the Covid Taskforce herself admitted that there was no clarity on when the relief package would be ready. This in itself is a complete vindication of the two High Court judgments, which – it needs to be repeated – granted narrow and temporary relief precisely because the government had not acted.

In essence, therefore, the Supreme Court (a) stays two detailed and well-reasoned orders of High Courts that temporarily protected individual rights in the absence of government action, (b) does so in flagrant violation of procedure, and (c) on a vague and completely open-ended assurance of the government. This, one will note, is a courant with the Supreme Court’s actions in recent times, reinforcing the impression that at this point, the Court’s functioning is more about “cohesion” with the government, rather than protecting people’s rights.

Civil Rights at the Bar of the High Courts: Section 144 in Karnataka, Privacy in UP

On 13th February 2020, in Sowmya Reddy v State of Karnataka, the High Court of Karnataka held that the imposition of Section 144 throughout the city of Bengaluru for a period of three days, had been unconstitutional. The Section 144 order had been imposed between 19th and 21st December 2019, in the wake of anti-CAA protests. The arguments before the High Court took a now-familiar form: the petitioners argued a violation of the rights to free speech and assembly, while the State responded by citing law and order concerns, and asked the Court to defer to administrative assessment of the on-ground situation.

In a closely-reasoned opinion – that proceeded primarily on procedural grounds – a division bench led by Oka CJ. struck down the order, but also clarified some important points with respect to the scope and limits of the State’s discretion when acting under S. 144 to ban protests and assemblies. Noting the importance of the fundamental rights at issue, Oka CJ. reiterated the “least restrictive” standard that had recently been affirmed by the Supreme Court in Anuradha Bhasin (paragraph 15). In this case, however, there was no necessity for the Court to test whether banning protests throughout the City of Bengaluru met the “least restrictive” standard, as the S. 144 order suffered from multiple procedural flaws.

The Section 144 order was based on eight letters that the Deputy Commissioners of Police [“DCPs”] had addressed to the Commissioner of Police (who, under Section 144, also acts as the District Magistrate – the competent authority to issue orders). The Court found that these letters were worded in more or less identical terms, and generically spoke about how, in the course of protests against the CAA/NRC, “anti-social elements” might take the opportunity to damage public property and breach law and order. The District Magistrate/Police Commissioner’s S. 144 Order effectively reproduced the content of these letters. Now, Section 144 of the CrPC requires the District Magistrate to form an “opinion” that such an Order is required, with “material facts” to justify it. As Oka CJ. noted, however, the impugned Order did not record an “opinion”: it simply reiterated reliance on the police reports (without any accompanying enquiry), and did not set out any material facts (paragraph 18).

On a survey of precedent – and especially Anuradha Bhasin – Oka CJ. went on to observe that the “objective parametres” upon which the “subjective satisfaction” of the District Magistrate/Commissioner was to be based included (a) the least restrictive standard, (b) proportionality, and (c) the existence of an “urgent situation”. The “reasons” accompanying a Section 144 Order, thus, would have to demonstrate that these objective parametres had been considered by the Authority, and how that had been done so (paragraph 22). In this case, it was obvious on the face of it that none of this had been done (paragraph 23) – and in fact, this was doubly problematic because – as had been held in Anuradha Bhasin – the absence of reasons made it essentially impossible for aggrieved parties to mount a challenge (because how do you challenge an order without knowing the grounds on which it has been issued?) (paragraph 26). The Court also rejected the attempts of the State to supplement its reasons during the hearing, noting that if an order was made on certain grounds, then the reasons would have to be reflected in the order – they could not be “improved on” later, if a challenge was made.

The Court ended by noting that even if the State had provided grounds, the Section 144 order clearly violated the parametres laid out in Anuradha Bhasin (paragraph 30). The Court did not, however, go any further into the question (as it did not need to). The actual finding, therefore, remained confined to the procedural argument. Thus, what flows from the judgment of the High Court is the following: at the minimum, a Section 144 order must (a) reflect the material facts and the reasons underlying its passage; (b) these reasons cannot be generic in nature (“in the interests of maintaining law and order” etc.), but must cleave to the constitutional standards set out in Anuradha Bhasin (least restrictive standard, proportionality, urgent danger); and (c) the reasons are subject to judicial review (although that was unnecessary in this case, as the State had failed on both (a) and (b)).

The importance of Oka CJ.’s judgment is that it reiterates the centrality of the “culture of justification”, that we have discussed previously on this blog. Recall that the culture of justification – borrowing from South African scholar Etienne Mureinik – posits a culture in which “every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command.” The culture of justification, obviously, is redundant if S. 144 orders can be passed mechanically, if they can simply reiterate the clauses already there in the Constitution (“security of the State”, “public order” etc.), and  if the State can avoid scrutiny by simply invoking deference and refusing to explain itself. It is that manner of impunity that the Karnataka High Court judgment seeks to address.


More recently, earlier today, the Allahabad High Court passed an important judgment on an issue that it took up suo motu yesterday. After the CAA protests in UP, the government had passed orders directing individuals that it alleged were responsible for destruction of public property, to pay financial compensation for the said destruction. The legality of these orders – that purport to flow from a 2009 Supreme Court judgment – is currently itself under challenge before the SC. In the meantime, however, the UP government put up hoardings and banners in prominent public places in Lucknow, where it identified the accused individuals, with their names, photographs, and addresses spelt out, ordering them to pay compensation or have their properties confiscated.

In a brief, lucid, and tightly-reasoned judgment, a bench of Chief Justice Govind Mathur and Ramesh Sinha J. found this to be a gross violation of the fundamental right to privacy. Before the Court, the State argued that the purpose of the hoardings was to “deter the mischief mongers from causing damage to public and private property.” As the Court noted, however, the State’s action was entirely without statutory foundation:

Under the Code of Criminal Procedure, 1973, the power is available to a Court to publish a written proclamation requiring appearance of a persons against whom a warrant has been issued and such person is concealing himself to avoid execution of warrant. No other power is available in the Code to police or the Executive to display personal records of a person to public at large. There are certain provisions empowering the investigating agencies or other Executives to take picture of accused for the purpose of their identification and record but that too is not open for publication. The only time these photographs be published is to have assistance in the apprehension of a fugitive from justice.

In other words, therefore, given the serious privacy harms at issue when personal data is forcibly taken by the State – and made public – existing law only allowed for that in a set of narrowly-tailored circumstances: for example, look-out notices against individuals hiding from the court process. Even where personal data was required for identification (such as, for example, in the Identification of Prisoners Act), it could not be made public.

Mathur CJ then linked this with the constitutional guarantee of privacy, invoking the Puttaswamy judgment to observe that any breaches of privacy would have to meet the tests of legality, proportionality, and procedural safeguards. Legality had already been violated, in the absence of a statute. With respect to proportionality, Mathur CJ held that the State action clearly violated the “necessity” prong of the proportionality standard:

On scaling, the act of the State in the instant matter, we do not find any necessity for a democratic society for a legitimate aim to have publication of personal data and identity. The accused persons are the accused from whom some compensation is to be recovered and in no manner they are fugitive. Learned Advocate General also failed to satisfy us as to why placement of the banners is necessary for a democratic society for a legitimate aim.

And as far as the State’s justification of deterrence went, the Court noted that it failed the simplest test of internal consistency:

… learned Advocate General failed to satisfy us as to why the personal data of few persons have been placed on banners though in the State of Uttar Pradesh there are lakhs of accused persons who are facing serious allegations pertaining to commission of crimes whose personal details have not been subjected to publicity. As a matter of fact, the placement of personal data of selected persons reflects colorable exercise of powers by the Executive.

The State, therefore, was directed to remove the hoardings, as they constituted a disproportionate invasion of the right to privacy.

The judgment of the Allahabad High Court is an important one, as it is one of the first judgments after Puttaswamy to apply the proportionality standard under Article 21, and follow through to its logical conclusion by invalidating the State action under consideration. Mathur CJ.’s judgment expressly measures executive action against both the legality and proportionality standards, assesses the justifications offered by the State’s counsel, and finds them lacking. Going forward, therefore, it provides a model of judicial reasoning rights-adjudication post-Puttaswamy.


The judgments of the Karnataka and Allahabad High Court raise a few important points for consideration:

  • These judgments demonstrate the importance of the proportionality standard – if applied rigorously – to civil rights cases. In both judgments – one drawing from Anuradha Bhasin and one drawing from Puttaswamy – State action was found to fail constitutional standards.
  • The power of the proportionality standard lies in how it compels the State to justify its actions, within a clearly defined constitutional framework. In the Section 144 case in Karnataka, the State did not provide and justification at all. In the hoardings case in UP, the State’s justification (deterrence) fell apart with some basic questioning.
  • Both cases demonstrate the importance of rigorous judicial review in civil rights cases. It is important to note that neither the Oka CJ nor Mathur CJ were being “activist” in any sense: even on a basic application of the constitutional tests, executive action was found to be an abuse of power.
  • However, that said, the Karnataka HC’s judgment came two months after the Section 144 order. The Allahabad HC’s judgment was substantially quicker, but nonetheless – presumably – a significant amount of damage had been done already. Presumably, the utility of these judgments lie in the fact that they set out constitutional principles for future cases; however, in the teeth of a recalcitrant executive, there is every chance of future breaches that – again – can only be brought to court after the damage is done. For this reason, in cases where there is clear executive abuse (as there was here), it is worth considering the imposition of costs upon the State or upon the erring public officials, in order to achieve genuine deterrence, and future compliance with constitutional standards.

[Disclosure: The author assisted counsel in one of the petitions before the Karnataka High Court.]

Guest Post: Article 131 and the Power of State Governments to Challenge Laws

[This is a guest post by Amlan Mishra.]


The question of whether Article 131 of the Constitution can be used by states to challenge the vires of a Central legislation was referred to a larger bench of the Supreme Court in State of Jharkhand v. State of Bihar. With Kerala and Jharkhand challenging the constitutionality of Central laws, this question has come to the limelight again. In this piece I put forward a structuralist interpretation of the Constitution, to argue that states have such a right. ‘Structural interpretation’ here is taken to indicate the use of multi-provisional implications which are sensitive to the context and purpose of the provisions of the constitution.

Legal position so far

Article 131 provides that the Supreme Court shall have original jurisdiction to try cases between different federal units, if the dispute involves ‘any question of law’ on which the ‘existence or extent of a legal right depends’. The reference to a larger bench is for the interpretation of the words ‘legal right depends’. Two cases of the Supreme Court propose contradictory interpretations to this question. Both cases fail to offer any substantial philosophical or structural reading of the constitution in arriving at their conclusions.

First, consider State of Karnataka v. Union of India, where the Supreme Court held that ‘legal right’ here does not just mean the ‘legal right of the state’, but includes any legal right of State government or of other people. This case identified two ingredients that are necessary for an original suit under A. 131, a) the two parties (states or centre) and b) a substantial question of law arising out of ‘some legal right’. The interpretation of ‘legal right’ was delinked from the concept of a ‘cause of action’, such that the legal right of the ‘plaintiff’ (in this case, the state) need not be violated to move an original suit under this Article. The absence of a ‘legal right of the plaintiff’, the court held, should not stop the court from hearing the parties on merits. J. Chandrachud stressed on the ‘delicate relationship’ between the centre and the state to point out that the constitutional capacity of the litigants under Article 131 should not be narrowly limited. J. Bhagwati in his opinion undertook a textual reading of the Article, by noting that it does not explicitly say ‘legal right of the plaintiff only’. In absence of such a clear indication in the article, he was unwilling to read the concept of ‘cause of action’ into it.

The second case is State of MP v. Union of India wherein the constitutionality of a legislation was held to be unassailable by a state government moving a suit under Article 131. It gave a strained explanation which hinged on the 42nd Amendment and its subsequent repeal. It held that the amendment had, in the past, weakened writ jurisdiction under Articles 32 and 226 by giving exclusive jurisdiction to the Supreme Court, to adjudge constitutionality of central laws by inserting Art. 131A. So the latter repeal of Art. 131A, the court held, should be understood to mean that constitutionality of central laws are now to be decided solely under the writ jurisdiction of the courts. State of Madhya Pradesh does not, however, articulate as to why an additional challenge to constitutionality of statute cannot be moved under Article 131 (as is the case in Kerala’s challenge to the Citizenship (Amendment) Act, 2019), alongside other petitions under Art. 32. A petition under one need not limit the other.

In what follows I propose that using a structural interpretation of the Constitution, states have the right to challenge Central laws under Article 131.

Structuralist reading of Article 131: Basic structure as supra-statutory duty

The immutability of the key provisions of the Constitution, in the face of executive or legislative action, is a crucial facet of liberal democratic Constitutions. For example, the US Constitution provides under Article IV that the federal government shall guarantee a ‘republican form of government’. Deriving from this (see Ambedkar’s statement drawing the parallel), the Indian Constitution under Article 356 provides that the President’s rule can be invoked if the administration of the state is ‘against the provisions of the Constitution’.

In SR Bommai v. Union of India, Article 356 was invoked in 3 BJP ruled states, on the grounds that the state governments were acting against secular principles during the Babri Masjid demolition. The Supreme Court observed that ‘administration according to the provisions of the Constitution’ includes within its ambit more than mere ‘governance in accordance with electoral democracy’. It also includes fidelity to fundamental values of the Constitution, such as secularism. Accordingly, the test of ‘government in accordance with the Constitution’ demanded adherence to the ‘basic structure’ of the Constitution. Consider these statements by the judges.

Justice Sawant observed:

Any profession and action that go counter to [secularism] are a prima facie proof of the conduct in defiance of the provisions of the Constitution.

Similarly, Justice Reddy observed:

[I]t is clear that if any party or organisation seeks to fight the elections on the basis of a plank which has the proximate effect of eroding the secular philosophy of the Constitution it would certainly be guilty of following an unconstitutional course of action.

It is to be noted that SR Bommai did not hold merely that anti-secular actions were a violation of basic structure, (thereby integrating basic structure considerations into the review of a higher executive’s action). It also established concomitantly, as Gary J. Jacobson argues in The Wheel of Law (2003), that the Union government has the power to take positive action to uphold the basic structure. Thus ‘electors’ and ‘courts’ were not the only decision-makers as to whether a government was working ‘against the provision of the Constitution’. The centre could also invoke Article 356 to put forward its version of the Constitutional truth and the courts, by reviewing such an exercise, could adjudicate if that reading of the Constitution was correct. In Bommai, the courts rooted this power of the Centre – in the duty of elected governments to not only abide by the basic structure but also to positively enforce it. Consider this by J. Ramaswamy in Bommai:

Secularism . . . is a part of the fundamental law and basic structure of the Indian political system to secure to all its people socio-economic needs essential for man’s excellence with material and moral prosperity and political justice.

 

Jacobson reads this as “[g]overnment is being invited to act in furtherance of the basic features of the Constitution, not simply to refrain from acting in situations where fundamental rights have been threatened or violated.”(Pg. 150)

Is this invitation to act in furtherance of the Constitution a one way street? Surely, no counterpart of Article 356 exists for the states to move against the Centre. However, Article 356 is useful to see how one unit’s interference in the sphere of another is justified if it is to further the basic structure of the Constitution. The centre, by virtue of its more dominant position, can discipline the states if they don’t follow the basic structure.

But states also have a similar, albeit less explicit obligation to defend the Constitution in their respective spheres. This is by virtue of the oath a Governor takes where he swears to ‘preserve, protect and defend’ the Constitution. The Chief Minister of a state similarly swears to act ‘according to the Constitution’. In Manoj Narula v. Union of India the court read the oath to confer a ‘constitutional expectation’, albeit non-binding, upon the Prime Minister and the Chief Minister, to not include criminals in their cabinets. The oath of these functionaries, read with Jacobson’s idea that states have a positive duty to enforce the basic structure, raises a strong Constitutional expectation in the state government to defend and work in furtherance of the basic structure. What happens when their constitutional obligation/expectation to protect and defend the Constitution is in the opinion of the state in conflict with any act of the centre?

To illustrate this let me draw an analogy between the basic structure of the Constitution and Radbruch’s idea of ‘Supra- Statutory authority’. Evolved after the carnage of the holocaust, the principle says that actions of any government functionary should not be tested just on the ‘positive law’/’orders of superiors’ but also against some basic supra-statutory principles like human rights. The oath of a Governor can be said to test the action of a State Government (acting under his name) on the touchstone of the Constitution. This cannot, however, mean that the states should dissent when confronted with an unconstitutional act by the Centre. The Constitution, as I discuss below, forbids such dissent. There should be an alternative mechanism to voice this disagreement.

Enforcing unconstitutional directions?

Crucially, Article 247 under the Indian Constitution provides that directions can be issued to the State government, inter-alia to not impede the Centre’s executive functioning. Article 365 provides that non-adherence to instructions of the Centre is enough to invoke Article 356 in the states. Such a compulsory direction from the Centre cannot exist in absence of the right to challenge the constitutionality of the Central government legislation on the ground that it goes against the duty of the centre to act in furtherance of the basic structure. For example, if during the enforcement of the recently enacted Citizenship (Amendment) Act, 2019, the Centre directs State Government to make its machinery available for verifying the documents of refugees in India for eligibility for citizenship, the state may have to enforce what it feels is an unconstitutional act of the centre.

The states then should have a mechanism to clarify if it is indeed a violation of the Constitution. It can be done only by challenging it with reference to the Constitution.

Integrating text with structure

Let us see if we can apply the aforesaid structural reading to the text of Article 131. Article 131 uses in clear terms the phrase: ‘legal rights depends’. What I propose is to look closely at J. Chandrachud’s opinion in State of Karnataka. He stressed the ‘delicate federal relationship’ of India to read the words ‘legal right depends’ liberally. Inherent in this idea is the understanding that ‘the legal right’ should arise in the course of the federal relationship, which admittedly is incapable of precise description. On similar lines, in the case of State Bihar v. Union of India the court noted that ‘the legal right [under Article 131] should arise in the context of the constitution and the federalism it sets up’.

What is important to note here is that the Indian Constitution does not provide ‘rights’ (claim rights) to constituent units against each other (in the strict Hohfeldian sense). Instead it gives them ‘power to legislate’ (see Article 246). In addition to this the Constitution provides for immunities (enjoyed by constitutional functionaries), duties, privileges (enjoyed by legislators), and expectations (arising out of oaths) to/on constituent units [jural relationships]. More often than not, all constitutional provisions confer on constituents a fusion of these ‘jural’ terms. For example Article 356, as Jacobson’s exposition shows, confers on the central government a ‘power + duty’ to enforce provisions of the Constitution in a state.

Let us imagine these ‘jural relationships’ as spheres inside of which the units must operate, with occasional access to each other’s sphere as laid down in the Constitution [jural spheres]. It is the unconstitutional encroachment into each other’s ‘jural spheres’ that must be at stake for a dispute to fall under Article 131. Each unit, as I have established above, enforces the Constitution in its own sphere. [See a similar characterisation of the word ‘rights’ in J. Bhagwati’s opinion in State of Karnataka]

For the Centre, enforcement of the Constitution maybe mean incursion into the state’s sphere through the invitation in Article 356 to act in furtherance of the Constitution. This is an issue squarely under the jurisdiction conferred by Article 131 as illustrated by State of Rajasthan v. Union of India, wherein Article 131 was used to challenge the dissolution of State Legislative Assembly. Similarly a duty/expectation to defend the Constitution in a state is also incumbent on the States acting in the name of their higher functionaries. A violation of core constitutional values by the centre may then infringe the higher functionaries ability to ‘defend the Constitution’, thereby infringing on the sphere of action of the state.

Such a conflict of ‘legal rights’ may not seem as obvious a conflict as the issue of ‘who can try the Chief Minister of the state for corruption’ (a question involved in State of Karnataka). But this is definitely a question arising out of the federalism set up by the Indian Constitution. Thus the phrase ‘legal right depends’ can be read to mean competing jural relationships in the Constitution which arise from the obligation of each constituent unit to enforce and uphold the Constitution in its respective sphere.

In sum, therefore, if the states hold a good faith belief that the enforcement of the CAA or the NRC (for example) runs contrary to core constitutional tenets, Article 131 ought to be read as granting to them the right to challenge this before the Court, and contest the centre’s understanding of what the Constitution allows.

The Devil’s in the (future) Detail: The Supreme Court’s Internet shut-down Judgment

Previously on this blog, we have discussed in some detail the litigation challenging the five-month-long internet shut-down in the Kashmir Valley. Today, a three-judge bench of the Supreme Court handed down its judgment in the challenge. While there was no effective relief in the judgment – the Court did not order a restoration of internet services in the valley, as it did not return a finding on the issue (see below) – it nonetheless reiterated certain important constitutional principles. While it is unfortunate, therefore, that the longest internet shut-down in a democratic country continues (at least for the foreseeable future), in this post, I will set out what the judgment actually did do, and how it provides a platform for future challenges to internet shut-downs as well as to the imposition of Section 144 of the Code of Criminal Procedure.

What the State Lost 

To understand the judgment, it is important to understand two bizarre claims advanced by the State at various points of the hearing. The State (i) refused to produce the orders that it had passed under Section 144 CrPC and the 2017 Telecom Suspension Rules, and which were the legal bases of the fundamental rights restrictions in the Valley; (ii) cited terrorism in Kashmir to argue that it was exempted from following the proportionality standard while restricting fundamental rights, and that, in the interests of national security, the Court ought not to intervene.

In essence, therefore, what the State – and its lawyers – were asking for was a complete carte blanche with respect to the operations in Kashmir. If the orders restricting fundamental rights did not need to be produced, there was no effective way to challenge them; and if the Court could not intervene because “terrorism”, then there was no effective forum where to challenge them. In other words, the State – and its lawyers – asked the Court to effectively hold that Kashmir was in a state of permanent Emergency, where fundamental rights stood suspended and at the mercy of the State, even though there had been no declaration of an Emergency at any point. The dangers of such an argument are obvious; as I’ve argued before, what the State wanted was a permanent normalisation of the Emergency regime, where the invocation of “national security” would grant an automatic judicial immunity from justifying the constitutionality of fundamental rights restrictions.

On both counts, however, the State’s arguments were comprehensively rejected. On the first issue, the Court made it clear that the orders providing legal cover to the imposition of Section 144 CrPC and the internet shut-down had to be made public, so that citizens could know – and, if they chose – challenge the bases on which their fundamental rights were being restricted. If the State wanted to withhold any part of such orders because of national security concerns, it would have to justify that, on a case to case basis.

On the second count, the Supreme Court reiterated that, at all times, restrictions upon fundamental rights had to be consistent with the proportionality standard. In particular, as part of the proportionality standard, the State had to select the least intrusive measure to achieve its legitimate goals. As the Court noted in paragraph 70:

However, before settling on the aforesaid measure, the authorities must assess the existence of any alternative mechanism in furtherance of the aforesaid goal. The appropriateness of such a measure depends on its implication upon the fundamental rights and the necessity of such measure. It is undeniable from the aforesaid holding that only the least restrictive measure can be resorted to by the State, taking into consideration the facts and circumstances. Lastly, since the order has serious implications on the fundamental rights of the affected parties, the same should be supported by sufficient material and should be amenable to judicial review.

And as it went on to note in paragraph 71:

The degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation.

 

Applying this standard to the specificity of internet shut-downs, the Court made four further observations. First, that the right to use the internet as a medium for free speech and expression and for trade and commerce, was protected under Article 19(1)(a) of the Constitution; secondly, that Article 19(2) allowed for the restriction of “abrasive statement(s) with imminent threat … if the same impinges upon the sovereignty and integrity of India…”; thirdly, that a perpetual internet shut-down would fail the test of proportionality; and fourthly, that the State’s argument that it couldn’t selectively block websites because of a lack of technology could not be accepted, as “[if] a contention is accepted, then the Government would have.”

Taking these four observations together, it is evident that the ongoing internet shut-down in Kashmir completely fails constitutional standards, as the government did not even attempt to justify it on grounds of proportionality, or that it was only targeting statements carrying an “imminent threat.” The Court went on to note that all of this required that when orders were being passed under the Telecom Suspension Rules to shut dow the internet, those orders would have to explicitly reflect how – in the specific case – the State action was proportionate.

While the reiteration of the proportionality standard in the context of internet shut-downs was a reinforcement of existing law, the Court also applied the same standard to Section 144 orders – which marks an incremental advance in the law. Up until now, the judgments governing the imposition of S. 144 were the old decisions of Babulal Parate and Madhu Limaye, whose language remained vague enough to be taken advantage of by unscrupulous State actors. Today the Supreme Court made it clear, however, that Section 144 orders would also have to abide by the proportionality standard (paragraph 126, and that that would have to be reflected in the text of the orders themselves. The Court also observed that in the normal course of things, S. 144 orders would have to be limited to particular areas or issues – thus casting severe doubt on the constitutionality of wide-ranging long-running 144 orders such as the one recently imposed in all of Bangalore, or the continuing order in Ahmedabad.

What the Petitioners Didn’t Win

Despite these findings, however, the Supreme Court did not rule on the validity of the internet shut-down or the imposition of S. 144 throughout the Valley. Its reason for that was somewhat curious: it held that because all of the internet shut-down orders had not been placed before it, it could not (yet) engage in judicial review. This is curious, because the onus of producing these orders undoubtedly lay on the State – indeed, the Court expressly directed it to do so in the operative part of its judgment. Furthermore, once the Court had held that the right to access information through the internet was protected by Article 19(1)(a), and that restrictions had to be proportionate, surely then the default situation was that the right would have to prevail over the restriction; in other words, until the government actually published the relevant orders with all the reasons (as required by the judgment), the internet ought to have been restored.

Instead, the Court directed that the Review Committee under the Telecom Suspension Rules would have to review the shut-down orders on a weekly basis, and that all the orders so far would have to be reviewed. Presumably, then, once this is done – and once the orders are published – a fresh challenge could be mounted on the basis of the principles laid out in this judgment (which, as I have indicated above, strongly suggest that the Kashmir shut-down is – and had always been – illegal).

Consequently, to the extent that the basis of the Court’s decision to not review the internet shut-down orders was that the State had not produced the orders in question (for five months), the consequence should have been that until the State – and its lawyers – decided to follow the law and the Constitution once again, fundamental rights could not continue to be restricted. That, however, seems like it will be a battle for another day. In the meantime, it is important to recall that in the wake of the CAA/NPR/NRC protests, the indiscriminate use of Section 144 and of internet shut-downs has been back in vogue, and there are now pending challenges in several High Courts. Today’s judgment sets out the principles on the bases of which these can be adjudicated: and the principles are that these orders restricting fundamental rights are subject to strong judicial review, that the State – and its lawyers – cannot get away by singing paeans to national security, that each order must be published, made public, and explicitly set out why the measure is proportionate, and that lastly, the Court shall – and must – examine whether least restrictive measures have been used, keeping in mind the importance of the internet to fundamental rights. These are sound procedural – and substantive bases – to move forward.


[Disclaimer: the author was one of the lawyers representing the petitioners.]