Complicity in Genocide: The Supreme Court’s Interim Order in the Rohingya Deportation Case

When an order of the Supreme Court of India is likely to have the direct effect of sending a group of persecuted refugees back into the hands of a genocidal military State, quibbling over legalities is perhaps a fool’s errand. However, the six-page interim order of the Court allowing the deportation of Rohingya refugees back to Myanmar – authored by Chief Justice Bobde, and Justices Bopanna and Ramasubramanian – stands out not only for its inhumanity, but also for its failure to comply with the most basic principles of legal reasoning. It therefore becomes important to continue to hold the Supreme Court to account upon the touchstone of the rule of law, even when the Court itself has abandoned it: both to maintain a record, and in the (perhaps forlorn) hope that a day will come when orders such as these will be remembered in the same way as the turning away of the Jewish refugees on board the MS St. Louis, back into the Nazi death-camps.

The Issues

The legal and constitutional issues arising out of the Rohingya deportation case were set out by Suhrith in a guest post last week. In short, Suhrith pointed out that even if it was to be accepted that the international law principle of non refoulement (i.e., that refugees cannot be sent back to their home country if they face a well-founded fear of persecution) was not a principle of jus cogens – and therefore not directly binding upon India – there are other reasons under the Indian Constitution for why it is impermissible for the State to deport the Rohingya back into an ongoing genocide. These are:

  • At least two High Court judgments have held that the principle of non-refoulement is part of Article 21’s guarantee of the right to life and personal liberty, available to all persons.
  • Even though India has not ratified the Refugee Convention, it is signatory to a number of international treaties that incorporate the principle of non-refoulement (and other applicable principles, such as the prohibition against racial discrimination).
  • Even though India has not ratified the Refugee Convention, there is nothing in Indian domestic law that requires the Indian government to contravene the principle of non-refoulement. Consequently, following the principles outlined in the Vishaka judgment (among others), non-refoulement and other treaty principles are a part of the Indian legal landscape.

The Reasoning

Unsurprisingly, the six-page interim order of the Supreme Court fails to address a single one of these contentions. The reasoning of the Court – such as it is – is to be found in three paragraphs – paragraphs 12 – 14 – of the order, which I extract here:

We have carefully considered the rival contentions. There is no denial of the fact that India is not a signatory to the Refugee Convention. Therefore, serious objections are raised, whether Article 51(c) of the Constitution can be pressed into service, unless India is a party to or ratified a convention. But there is no doubt that the National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with the municipal law. Regarding the contention raised on behalf of the petitioners about the present state of affairs in Myanmar, we have to state that we cannot comment upon something happening in another country.

It is also true that the rights guaranteed under Articles 14 and 21 are available to all persons who may or may not be citizens. But the right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e).

Two serious allegations have been made in reply of the Union of India. They relate to (i) the threat to internal security of the country; and (ii) the agents and touts providing a safe passage into India for illegal immigrants, due to the porous nature of the landed borders. Moreover, this court has already dismissed I.A.No. 142725 of 2018 filed for similar relief, in respect of those detained in Assam.

It would be hard to cram in more non-sequiturs, sleights of hand, and untenable legal propositions in the space of three short paragraphs. After noting that India has not ratified the Refugee Convention (which is correct), the Court observes that “National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with the municipal law.” Having observed this, the Court then goes on to say … nothing at all. Recall that the entire argument of the petitioners was that there do exist international treaties, which are not in conflict with municipal law, and compliance with which would require that the Rohingyas not be deported. However, the Court makes no mention of that argument, thus leaving the legal proposition simply hanging.

Instead, the Court makes an utterly senseless statement: “regarding … the present state of affairs in Myanmar, we … cannot comment upon something happening in another country.” This is senseless, because there exists a whole range of situations in which Courts have to comment on “something happening in another country” (think of extradition disputes, for example, or even common-or-garden conflict-of-laws cases). Indeed, in this case the situation in Myanmar is relevant to the adjudication precisely because the petitioners’ argument was centred around non refoulement, which in turn is premised upon the fact that in that “other country”, there is a genocide in progress. Thus, the Court’s glib “we … cannot comment upon something happening in another country” is not only senseless as a judicial statement in a judicial order, but amounts to active abdication of the Court’s role under the Constitution, and allows the Court to completely evade the core of the petitioners’ argument: the moment an argument of non refoulement is made, the Court cannot but comment on “what is happening in another country.”

So much for the first paragraph. In the second paragraph, the Court advances a regressive and disturbing legal proposition, based upon an unsubtle sleight of hand. After noting that the rights under Article 21 and 14 are available to non-citizens (a record of the hearings indicates that the Court was unaware of this during oral argument until it was specifically pointed out), the Court then holds that “the right not to be deported” does not fall within Articles 21 or 14, but 19(1)(e) (freedom to reside or settle in any part of India), which is available only to citizens. The sleight of hand, of course, lies in the fact that the petitioners were not claiming a free-standing right against deportation: they were claiming a right against deportation to a country where they were in active danger from an ongoing genocide. This is where the right to Article 21 comes in, which perhaps needs to be restated, as the Court appears to have forgotten it:

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

It perhaps needs to be spelt out for the benefit of the Court that deporting people back into an ongoing genocide might violate an individual’s right to life and personal liberty. That said, the Court’s attempts to confine the issue to Article 19(1)(e) appears a lot like an approach to Part III of the Constitution that walls off individual fundamental rights into separate silos, with no overlap between Articles 14, 19, and 21. In popular imagination, there is a case that did that. It was called A.K. Gopalan vs State of Madras. It was, we are told, overruled by Maneka Gandhi vs Union India, and that Articles 14, 19, and 21 now formed a “golden triangle”, but perhaps that is also only in popular imagination. That apart, the Court’s order drives home yet again a tragic irony that this blog has frequently pointed out: in 2021, Article 21 and “the right to life” includes everything under the sun, but the one thing it does not include is an individual’s right to life.

We now come to the third paragraph, which is quite extraordinary. In courtroom lingo, there is a term counsel often use to describe their rival’s arguments: that he or she is “only creating prejudice.” A lawyer says this when their rival is not making a legal argument, but attempting to manipulate the emotions of the judge in order to influence the outcome of the case (for example, through character assassination of one of the parties in divorce case). In the past few months, we have regularly seen government counsel attempt to create prejudice by playing the national security card, especially in the litigation around the restriction of internet access in Kashmir. In this third paragraph, however, it is the Court that engages in creating prejudice. It does so by reiterating the “serious allegations” of the Union of India (which have already been set out in its summary of arguments of parties) – of a “threat to internal security” and the misuse of “porous borders by touts.” Notice that the Court makes zero effort to engage with either of these “serious allegations.” There is no question of evidence, of burden of proof, of sifting arguments, of legal standards – the things that you expect from a “Court of law” – there are only these “serious allegations”, simply hanging there, without anything more. What business the Court has inserting “serious allegations” into the operative part of its judgment if it has no intentions of engaging with them is left to the imagination of its readers.

We can therefore see that in what passes for “reasoning” in this judgment, not only does the Court fail to address any of the arguments of the petitioners, but the “arguments” it does provide come from judgments that it keeps telling us belong to the bad old Gopalan days, long consigned to infamy. Indeed, if there is one judgment that the final paragraph is eerily reminiscent of, it is (unsurprisingly) ADM Jabalpur (a frequent occurrence these days). The Court says that the Rohingyas “shall not be deported unless the procedure prescribed for such deportation is followed.” Just like in ADM Jabalpur, the Court said that a policeman could shoot someone on sight with impunity as long as the right official had signed the authorising order, here the Court is saying that the refugees can be deported back into an ongoing genocide as long as the right officials (presumably) have signed the deportation papers.

One final point: in paragraph 3 of the judgment, the Court says:

Sh. Chandra (sic!) Uday Singh, learned senior counsel representing the Special Rapporteur appointed by the United Nations Human Rights Council also attempted to make submissions, but serious objections were raised to his intervention.

Much like in the third paragraph discussed above, the Court simply says “serious objections were raised”, and leaves the rest to the imagination. What were these objections? What made them serious? How did Sh. Chander Uday Singh respond to them? On what basis did the Court refuse to allow him to place his submissions? None of this is explained; that apart, to anyone remotely familiar with the workings of the Supreme Court, the hypocrisy here is simply staggering. Recall that this is a Court that has built its entire reputation over the last four decades on loosening the rules of standing and easing access, in the “larger interests of justice.” There is little doubt that where the issue concerns the legal rights of refugees under international law, the UNHRC Special Rapporteur has excellent grounds for intervention – or, at the very least, far better grounds than the interventions the Supreme Court allows on a daily basis, from persons who have no connection to a case at hand.

Conclusion

By way of conclusion, there is one thing about the order – taken as a whole – that is perhaps most disturbing of all. Historically, when Courts pass morally unconscionable orders, they do so shamefacedly. Judges write about how if they had a choice, they would not pass such an order – but that they are bound by the law, which leaves them no choice. ADM Jabalpur is, of course, a famous example of this, where the judges repeatedly emphasised how their moral senses were outraged at the State’s arguments, but that the law compelled them to take a course they had no option to deviate from.

The Rohingya order reflects none of that. There is not even a smidgen of unease that the result of the order might be to deliver refugees into the hands of a genocidal military. In fact, the only thing the judges have to say on the issue is: “we cannot comment on another country.”

Perhaps what is most disturbing, then, is not the absence of legal sense in the Court’s order, but the death of its moral sense.

Guest Post: Conditional Legislation and Executive Power – The constitutional challenge to the IBC personal guarantor notification

[This is a guest post by Aakanksha Saxena, Pooja Vasandani and Pranav Narsaria. The authors assisted Senior Counsel appearing for some of the Petitioners.]


The Insolvency and Bankruptcy Code, 2016 (“IBC/the Code”) was enacted with a view to inter alia provide for the timely resolution of insolvency of corporate persons, partnership firms, and individuals, with a  focus on the maximization of value of assets of such persons. Section 1(3) of the Code provided for the coming into force of the Code and/or its various provisions, on such date as the Central Government would by notification appoint. Several provisions were thus brought into force by the Central Government from time to time.

Vide its  (“Notification”), purportedly issued in the exercise of the power conferred on the executive under section 1(3), the Central Government brought into force the majority of Part III of the Code titled “INSOLVENCY RESOLUTION AND BANKRUPTCY FOR INDIVIDUALS AND PARTNERSHIP FIRMS”, with a limited application viz. , “only in so far as they relate to personal guarantors to corporate debtors”. Given the apparent overstepping by the executive in the Notification, in the background of the limited scope of Section 1(3), as well as other concerns in respect of the Rules and Regulations pertaining to personal guarantors that also stood notified, the constitutional validity of the Notification was challenged before several High Courts, and the Hon’ble Supreme Court (“Court”) subsequently brought up all the cases to itself for hearing. Furthermore, the Court limited the hearing to arguments on whether the MCA had the power to issue the Notification. The hearing has been completed and the Court has reserved its judgement.

In this blog, the authors will cover the specific ground of challenge to the Notification being the overreach of the executive qua Section 1(3) of the Code, the Union of India’s arguments in support thereof and the attempted consequent widening of conditional legislation, and the larger issue facing the Court in this matter.

Ground of challenge

The concept of ‘conditional legislation’ has been elaborately explained by the Court in Sardar Inder Singh v. State of Rajasthan, wherein the Court held that, “Such legislation is termed conditional, because the legislature has itself made the law in all its completeness as regards “place, person, laws, powers”, leaving nothing for an outside authority to legislate on, the only function assigned to it being to bring the law into operation at such time as it might decide.”

Now, Section 1(3) of the IBC provides that:

It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint:

Provided that different dates may be appointed for different provisions of this Code and any reference in any such provision to the commencement of this Code shall be construed as a reference to the commencement of that provision.”

Thus from a plain reading of the section, it is a classic case of ‘conditional legislation’, wherein the legislature has itself made the law, and the only function assigned to the executive is to bring the law into operation at such time as it may decide. The proviso only extends this power to bringing the provisions of the IBC into force on different dates.

However, vide the Notification, the executive sought to bring the majority of part III of the IBC into force only with respect to one class of debtors, i.e., personal guarantors to corporate debtors. This has the effect of modifying part III of the IBC, which did not otherwise create any distinction between the insolvency / bankruptcy of an individual and that of a personal guarantor to a corporate debtor. Part III provides for “Insolvency Resolution and Bankruptcy for Individuals and Partnership Firms”, and thereafter refers to these two categories of persons simply as debtors.  The effect of the Notification is that it in substance modifies the text of the actual sections of Part III, despite the clear absence of any element of legislation/legislative authority having been conferred upon the Central Government. The words “only in so far as they relate to personal guarantors to corporate debtors” forming a part of the Notification are attempted to be added like a rider to each of the sections mentioned in the Notification, clearly rendering such an exercise outside the scope of Section 1(3) of the IBC. What is interesting to note is that Part III nowhere even contains or uses the term “personal guarantor”. This argument formed the basis of the challenge mounted to the Notification, which if successful, will render the government liable to re-notify the provisions in a valid manner, or, the legislature will be required to amend the text of the Code itself and bring in a category of personal guarantors independently, both of which will then be required to stand the test of judicial review.

Other arguments canvassed by the Petitioners also arose from the inconsistency between the avowed object of the Code viz. that of revival and maximisation of value, and the frame of Part III which focuses on recovery by way of the repayment plan, and Part III being contrary to the Indian Contract Act.

Union of India’s arguments

The Union of India relied on the Insolvency and Bankrupcty Code (Amendment) Act, 2017, which had amended Section 2(e) of the IBC. Section 2 deals with the classes of persons to whom IBC shall apply. Prior to this amendment, Section 2(e) provided that the IBC would apply to “individuals and partnership firms”. The amendment substituted clause (e) and added three classes in its place. i.e.:

(e) personal guarantors to corporate debtors;

(f) partnership firms and proprietorship firms; and

(g) individuals, other than persons referred to in clause (e).”

On the basis of this amendment it was argued that Section 1(3) r/w section 2(e) authorized the executive to bring into force any part of the IBC with respect to a specific class specified in Section 2, which in this case was the class of personal guarantors to corporate debtors. The Union relied on the lack of challenge to the amendment of Section 2(e) to bolster its case of widening the scope and ambit of Section 1(3) vis-à-vis its own powers of notifying the law.

However this is clearly beyond the scope of the power under section 1(3), as explained in Sardar Inder Singh, under a conditional legislation, the legislature has made a complete law as regards, ““place, person, laws, powers””, and thus the executive is not competent to enact a provision only in so far as it relates to a specific class of persons. Such exercise, if deemed necessary can only be done by the legislature. Thus, if the Government of India thought it was necessary to bring part III of the IBC into force only with relation to a specific class of persons, then such an exercise could only be done via a legislative amendment, as it would require modification of the provisions of the IBC.

There are various other enactments containing similar provisions, for instance the Companies Act, 2013 also has a similar provision viz. Section 1(3), allowing the executive to bring the provisions of the act into force at such time as it deems fit. If the Union’s arguments are accepted, then it would mean that the executive can step into the shoes of the legislature and modify the provisions in various different legislations framed by the Parliament in its wisdom.

‘Conditional’ and ‘Delegated’ legislation

The power to modify a provision is an extreme form of ‘delegated legislation’ which is distinct from ‘conditional legislation’. The distinction between the two forms of legislation has been elaborated by the Court in Vasu Dev Singh v. Union of India, wherein the Court stated that:

“The distinction between conditional legislation and delegated legislation is clear and unambiguous. In a conditional legislation the delegatee has to apply the law to an area or to determine the time and manner of carrying it into effect or at such time, as it decides or to understand the rule of legislation, it would be a conditional legislation. The legislature in such a case makes the law, which is complete in all respects but the same is not brought into operation immediately. The enforcement of the law would depend upon the fulfilment of a condition and what is delegated to the executive is the authority to determine by exercising its own judgment as to whether such conditions have been fulfilled and/or the time has come when such legislation should be brought into force. The taking effect of a legislation, therefore, is made dependent upon the determination of such fact or condition by the executive organ of the Government. Delegated legislation, however, involves delegation of rule-making power of legislation and authorises an executive authority to bring in force such an area by reason thereof. The discretion conferred on the executive by way of delegated legislation is much wider.”

A clear example of delegated legislation can be found in Section 239 of the IBC itself, which empowers the Central Government to make rules for carrying out the provisions of the IBC.

As elaborated by the Court in Vasu Dev Singh, the discretion and power granted to the executive in a case of ‘conditional legislation’ is extremely limited, i.e. limited only to the extent of notifying a date on which provisions shall come into force, and no further. Section 1(3) being a classic example of conditional legislation, the executive could not have gone beyond the power conferred to it and attempt a modification of provisions of part III of the IBC in the garb of exercise of ‘conditional legislation’.

As elaborated by the Court in Vasu Dev Singh, the discretion and power granted to the executive in a case of ‘conditional legislation’ is extremely limited, i.e. limited only to the extent of notifying a date on which provisions shall come into force, and no further. Section 1(3) being a classic example of conditional legislation, the executive could not have gone beyond the power conferred to it and attempt a modification of provisions of part III of the IBC in the garb of exercise of ‘conditional legislation’.

The question that the Court is faced with in this case is to determine whether the executive is empowered to in effect modify a provision in exercise of power granted by ‘conditional legislation’.

Conclusion

The Central Government is right in saying that the provisions of the IBC should be extended to personal guarantors of corporate debtors, as in most cases they are the promoters of the corporate debtors who play a huge part in bringing the corporate debtor to insolvency. However, the manner in which the Government has undertaken this exercise  would unfairly and incorrectly stretch the contours of the power of ‘conditional legislation’. The Court being faced with a long line of established precedent, ought not permit this manner of notification which will then grant the executive wider powers than would be legislatively intended.

Guest Post: Government Contracts and Constitutional Remedies – A Critique of the Unitech Decision

[This is a guest post by Sholab Arora.]


This article analyses the recent judgment of the Supreme Court in Unitech v. TSIIC [2021 SCC OnLine SC 99], delivered by a bench comprising of Justices D.Y. Chandrachud and M.R. Shah, from the jurisprudential vantage point of the settled principles of law concerning the following two issues:

i) Whether a writ petition is maintainable in cases wherein issues arise purely within the private law domain of contracts even though such contracts have been entered into by a governmental authority; and

ii) Whether in a writ petition, a relief seeking refund of money simpliciter from governmental authorities can be granted.

This article disagrees with, and critiques, the judgment. But before analyzing the ruling in Unitech, it is imperative to have a conceptual understanding of the principles of law governing the aforementioned issues.

Case Law on Writ Jurisdiction and Governmental Contracts: A Conspectus

The issue whether a writ petition is maintainable in cases concerning governmental contracts has had a seemingly chequered history and a perusal of the relevant judgments of the Supreme Court, at a facile level, would reveal that somewhat contradictory and ambiguous positions have been taken therein. However, a uniform and consistent jurisprudential thread can be discerned from the case law, whose inception can be traced to the Constitution Bench judgment in K.N. Guruswamy v. State of Mysore [AIR 1954 SC 592] and appears to be maintained until the Three Judge Bench judgment in State of U.P. v. Sudhir Kumar Singh [2020 SCC OnLine SC 847]. I argue that the ruling in Unitech substantially departs from the settled jurisprudential thread, while purporting to maintain consistency.

In Guruswamy, the Court held that if the procedure of allotment of tender by a governmental authority is not open and transparent, a writ can be granted. In D.F.O., South Kheri v. Ram Sanehi Singh [(1971) 3 SCC 864], the Court, after referring to Guruswamy, held that a writ petition is maintainable if the action challenged is that of a public authority invested with statutory power even though the relief sought arises out of an alleged breach of contract. In Radhakrishna Agarwal v. State of Bihar [(1977) 3 SCC 457], the Court, after referring to Erusian Equipment and Chemicals Ltd. v. State of West Bengal [(1975) 1 SCC 70], held that only those actions of a governmental authority (within the contractual domain) can be analyzed under Article 226 on the touchstone of Article 14 which are at the threshold, or at the time of entering into a contract. After a contract has been entered into and the parties have fully entered the contractual field, a governmental authority is not encumbered with any constitutional obligation. However, even after a contract has been entered into, statutory obligations of a governmental authority can still be enforced.     

Not substantially departing from the principles laid down in the aforementioned judgments, the Court in D.F.O. v. Bishwanath Tea Co. Ltd. [(1981) 3 SCC 238] held that in case an issue complained of is purely breach of contract, even though by a governmental authority, the writ jurisdiction of a High Court cannot be invoked and the only remedy is institution of a suit. Thereafter, in Gujarat State Financial Corp. v. Lotus Hotels (P) Ltd. [(1983) 3 SCC 379], the Court held that a writ of mandamus can be granted against a governmental authority for enforcement of a contractual obligation, if essentially what the petitioner is seeking is enforcement of a statutory duty. In a similar vein, the Court in Bareilly Development Authority v. Ajai Pal Singh [(1989) 2 SCC 116] held that the writ jurisdiction cannot be invoked after a contract has been entered into unless statutory obligations are sought to be enforced, that is to say, a writ petition is maintainable in cases of statutory contracts but not in cases of non-statutory contracts. Pertinently, the Court further held that the actions of a governmental authority cannot be assessed on the touchstone of constitutional provisions after a contract has been entered into, which was even reiterated in Mahabir Auto Stores v. Indian Oil Corporation [(1990) 3 SCC 752].

One can see three jurisprudential principles emerging from the case law development until 1990: first, a writ is not maintainable if the issue complained of is breach of contract simpliciter or if the relief sought is simply for enforcement of contractual obligation; second, a writ is maintainable if the contractual obligations of a governmental authority are ensconced within a larger statutory framework and what the petitioner essentially seeks is enforcement of statutory obligations [statutory contract – non-statutory contract dichotomy]; and third, a writ is maintainable if the petitioner claims that the actions of a governmental authority at the time of entering or not entering into a contract (but not thereafter) are violative of Article 14 [pre-contract – post-contract dichotomy].

In effect, expanding on the last of the aforementioned three principles, the Court in Sterling Computers Ltd. v. M/s M&N Publications Ltd. [(1993) 1 SCC 445] and Tata Cellular v. Union of India [(1994) 6 SCC 651] held that judicial review, on the touchstone of Article 14, has to be restricted to the decision making process concerning entering or not entering into a contract or allotment of tender and the same cannot be extended to the merits of the decision itself (which dictum was reiterated in Michigan Rubber (India) Ltd. v. State of Karnataka [(2012) 8 SCC 216]). Clarifying the second of the aforementioned three principles, the Court in Kerala SEB v. Kurien E. Kalathil [(2000) 6 SCC 293] held that “a contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body” and that in itself will not raise an “issue of public law”. Thereafter, in State of Bihar v. Jain Plastics and Chemicals Ltd. [(2002) 1 SCC 216] and NHAI v. Ganga Enterprises [(2003) 7 SCC 410], the Court reiterated the first of the aforementioned three principles i.e. “writ is not the remedy for enforcing contractual obligations” and “disputes relating to contracts cannot be agitated under Article 226 of the Constitution of India”.

Then came the judgment in ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd. [(2004) 3 SCC 553] which muddied the jurisprudential waters. This judgment misconstrued the rulings in Guruswamy, Ram Sanehi Singh and Lotus Hotels (P) Ltd.  The Court in ABL International Ltd. held that “once the State or an instrumentality of the State is a party of the contract, it has an obligation in law to act fairly, justly and reasonably which is the requirement of Article 14 of the Constitution” and “a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable”. This dictum flies in the teeth of the aforementioned three jurisprudential principles as this dismantles both the statutory contract – non-statutory contract dichotomy and the pre-contract – post-contract dichotomy. This departure from the settled principles of law was continued in Noble Resources v. State of Orissa [(2006) 10 SCC 236]. However, it was clarified in Noble Resources that judicial review will be restrictive in cases of breach of contract unlike matters which are at the threshold of a contract.

Realizing that the ruling in ABL International inverted the settled principles, the Court in Joshi Technologies v. Union of India [(2015) 7 SCC 728] clarified and re-emphasized the pre-ABL International position, although in a new fashion. The Court in Joshi Technologies held as follows:

…in pure contractual matters the extraordinary remedy of writ under Article 226 or Article 32 of the Constitution cannot be invoked. However, in a limited sphere where such remedies are available only when the non-Government contracting party is able to demonstrate that it is a public law remedy which such party seeks to invoke, in contradistinction to the private law remedy simipliciter under the contract…if the matter is governed by a contract, the writ petition is not maintainable since it is a public law remedy and is not available in private law field, for example, where the matter is governed by a non-statutory contract…The Court may not examine the issue unless the action has some public law character attached to it…where the matter falls purely in private field of contract, this Court has maintained the position that writ petition is not maintainable” [public – private dichotomy].

Pertinently, the Court revives the first of the three jurisprudential principles discussed hereinbefore, and subsumes the second principle i.e. the statutory contract – non-statutory contract dichotomy within the public – private dichotomy. However, the Court departs from the third principle i.e. the pre-contract – post-contract dichotomy. Hence, even if a public law issue is raised subsequent to the formation of a contract whereto a governmental authority is a party and its actions are sought to be challenged, the same can be entertained in a writ petition.

The question arises: When can it be said that a public law issue is raised? The answer is: first, when the concerned contract is a statutory contract; or second, when the petitioner claims violation of Article 14 within the contractual domain. And, violation of Article 14 can only be claimed when the procedural due process is not followed – which is the position floated in Guruswamy (although not in very clear terms) and followed and strengthened in Sterling Computers Ltd., Tata Cellular and Michigan Rubber (India) Ltd. It is important to understand that Joshi Technologies maintains the jurisprudential thread which undergirded the position of law before ABL International. It merely spreads the Article 14 – procedural due process principle throughout the contractual field instead of restricting the same to matters at the threshold of a contract. The position on violation of Article 14 vis-à-vis procedural due process becomes more evident in the Three Judge Bench Judgment of Sudhir Kumar Singh wherein the Court held that Article 14 stood violated because the tender was cancelled by the concerned governmental authority by breaching the audi alteram partem rule.

Case Law on Writ Jurisdiction and Refund of Money: A Conspectus

The case law development on whether in a writ petition, a relief seeking refund of money simpliciter from governmental authorities can be granted has not witnessed such a tumultuous evolution like the previous issue this article dealt with. Rather, the development has been quite certain and consistent. In Burmah Construction Co. v. State of Orissa [AIR 1962 SC 1320], the issue that arose before the Constitution Bench was whether refund of tax unlawfully collected by the State could be sought in a writ petition under Article 226. The Court held that a writ petition is maintainable if the petitioner is essentially enforcing a statutory obligation on the part of the State or an officer of the State to refund the tax illegally collected. If the obligation to refund the tax illegally collected cannot be traced to a statutory provision, then the only remedy left is to file a suit. In Suganmal v. State of M.P. [AIR 1965 SC 1740], the Constitution Bench held that a writ petition solely for refund of money is not maintainable, however, the same can be entertained when refund of money is sought as a consequential relief. For instance, when the petitioner challenges an assessment order and succeeds. In such a case, the Writ Court can grant refund of money as a consequential relief. This ruling was followed in Salonah Tea Co. Ltd. v. Suptd. of Taxes [(1988) 1 SCC 401], U.P. Pollution Control Board v. Kanoria Industrial Ltd. [(2001) 2 SCC 549] and Godavari Sugar Mills Ltd. v. State of Maharashtra [(2011) 2 SCC 439] wherein the Court reiterated the “distinction between those cases where a claimant approaches a High Court seeking relief of obtaining refund only and those where refund is sought as a consequential relief after striking down of the order of assessment etc.” Even ABL International reiterates this principle of law.

There is, however, one judgment manifesting a departure from this settled principle of law i.e. Popatrao Vyankatrao Patil v. State of Maharashtra [Civil Appeal No. 1600 / 2020 (SC), Judgment dt. 14.02.2020]. In Popatrao, the appellant was the highest bidder in a public auction concerning excavation of a sand block. In pursuance of the allotment of the tender, the appellant submitted a sum of money with the government treasury, despite which, he was not put in possession of the concerned sand block. After trying his luck with the governmental authorities, the appellant filed a writ petition before the High Court seeking refund of the money deposited. The High Court refused to entertain the writ petition and relegated the appellant to a suit. On appeal, the Supreme Court held that the action of the State smacked of arbitrariness and was violative of Article 14, and granted the relief of refund. There are two issues with this judgment: first, the Court fails to realize that violation of Article 14 only arises within the contractual field when the procedural due process is not followed. Mere non-refund of money will not give rise to the same; and second, the Court ignores the settled principle of law that refund of money can only be directed in a writ petition when the same is sought as a consequential relief. Popatrao can only be considered as an aberration which gives rise to another aberration viz. Unitech.

Unitech v. TSIIC: An Analysis

In Unitech, the facts were that Unitech Ltd. was awarded the tender to develop, design and construct an integrated township project / multi services aerospace park on a particular land of about 350 acres [“subject land”] by Andhra Pradesh Industrial Infrastructure Corporation [“APIIC”], the predecessor-in-interest of Telangana State Industrial Infrastructure Corporation [“TSIIC”]. In pursuance of the allotment of the tender, Unitech Ltd. paid a sum of Rs. 165 crores. After the allotment of the tender, in a different litigation, it was held that the title and ownership of the subject land did not vest in the Government of Andhra Pradesh. Hence, the very foundation of the contract between Unitech Ltd. and APIIC / TPIIC stood eroded and the contract stood frustrated. As a result, Unitech Ltd. sought refund of the aforementioned sum of money, along with interest, from APIIC and TPIIC but in vain.

Thereafter, Unitech Ltd. invoked Article 32 jurisdiction seeking refund of money [W.P. (C) 302 / 2017]. The Court ordered that it was “not inclined to entertain the writ petition under Article 32 of the Constitution. However, the petitioners, if so advised, may approach the High Court under Article 226 of the Constitution” [Order dt. 01.05.2017]. Unitech Ltd. preferred a writ petition under Article 226 before the High Court, and both the Single Judge and the Division Bench granted the relief of refund, although differing on the interest amount. The matter approached the Supreme Court. Strangely, the Judgment records, the State of Telangana and TSIIC did not raise any objection as to maintainability of the writ petition under Article 226 or the entitlement of Unitech Ltd. to seek refund of money under Article 226. Be that as it may, the Judgment conducts an academic analysis on the issue of maintainability. The Court relies on ABL International, Sudhir Kumar Singh and Popatrao to hold that the writ petition in the instant case was maintainable and the High Court had rightly granted the relief of refund of money under Article 226.

To create a semblance of compliance with the public – private dichotomy, the Court’s purported justification is that there is a violation of Article 14 as the action of the State is arbitrary / unfair since “TSIIC, a state instrumentality, has not just reneged on its contractual obligation, but hoarded the refund of the principal and interest…” As we have seen, Article 14 violation has been restricted to cases where procedural due process was not followed by a governmental authority within the contractual domain. The same was the case in Sudhir Kumar Singh. The Court’s reliance on ABL International is misplaced as the pre-ABL International substantially stood revived in Joshi Technologies. Moreover, Popatrao is a mere aberration. If there was no allegation of non-compliance of procedural due process and the contract concerned was not a statutory contract, it is difficult to comprehend why the writ petition was held to be maintainable. Even if the Judgment is considered justifiable in expanding the scope of Article 14 violation in contractual matters, it clearly flies in the teeth of the settled principle of law that refund of money can only be claimed as a consequential relief in a writ petition, which was clearly not the case in Unitech. Therefore, it is humbly submitted that Unitech does not state the correct position of law and relies on the aberrational judgments, and as a consequence, muddies the jurisprudence on the subject.  

Notes from a Foreign Field: In Re Humphrey – A Case Against Cash Bail [Guest Post]

[This is a guest post by Kieran Correia.]


The Supreme Court of California (“the Court”), in a unanimous ruling, held that detaining defendants solely because they are unable to afford bail was “unconstitutional.” This judgement marks a rupture from the routine of requiring defendants — even indigent defendants — to post large, often outrageously high amounts of cash bail, a practice that results in the disproportionate incarceration of people of colour in America.  

Some background to this case is in order. Humphrey, an African American sixty-six-year-old man, allegedly committed theft against a seventy-nine-year-old Elmer J. who lived in a senior home. Humphrey reportedly barged into Elmer’s home and, after threatening him, robbed $7 and a bottle of cologne. At arraignment, the prosecution demanded bail be set at $600,000 — more than 4 crores in Indian rupees — an astronomical figure, especially in comparison to the amount Humphrey stole from Elmer. Humphrey’s request to be released on his own recognizance — essentially, without posting bail — was denied and the amount was set at $600,000. Humphrey challenged the decision, pointing to the racism inherent in California’s criminal justice system and his rehabilitation from drug addiction among several other ameliorating aspects. However, the court dismissed his release request yet again, whilst reducing the bail amount to $350,000 — an amount still unaffordable to Humphrey.

Humphrey then filed a habeas corpus petition in California’s Court of Appeal. The appeals court granted his petition after the Attorney General reversed his decision of contesting bail. The appeals court ordered a new bail hearing, and Humphrey was subsequently released on certain nonfinancial conditions. The case was not appealed, but, at the request of certain authorities, the California Supreme Court took up the matter to settle the constitutionality of money bail in California.

Cash/money bail is still the dominant condition courts world over impose on defendants if they want to secure pretrial release. The bail amount can be egregiously high, as it was in this case, especially so in California, something the Court notes as well. This has led to the commercialization of furnishing bail in the United States: bail insurance companies and bail bond agents take advantage of the system, lining their pockets in the bargain.

The United States Supreme Court — most notably in Bearden v. Georgia — has, in the past, indicated its unwillingness to allow an indigent defendant’s probation to be revoked because of their being unable to pay a fine. The Supreme Court opined that the state could only imprison the probationer if “alternatives to imprisonment [were] not adequate in a particular situation to meet the State’s interest in punishment and deterrence,” as long as he has made efforts to pay the fine. Though this ruling has rarely been upheld in practice, it nonetheless indicated the Supreme Court’s opinion vis-à-vis imprisoning probationers solely because of lack of money: that it was “fundamentally unfair.”

The Court draws on this broadly similar case to argue that it is not “constitutional to incarcerate a defendant solely because he lacks financial resources.” This is because, the Court argues, to do so would violate the defendant’s substantive due process rights to liberty as well as her equal protection rights — a similar argument made in Bearden. Substantive due process is an American constitutional law principle that argues that due process, a notion that finds a place in both the Fifth and Fourteenth Amendments to protect against arbitrary action on the part of the state on certain issues, also protects certain substantive rights — such as the right to liberty.

The Court acknowledges that bail is set to ensure the defendant appears in court proceedings and to protect the victim and the public. However, whilst setting bail, courts often ignore the accused’s financial situation; a high bail order can, therefore, in effect, become a “pretrial detention order.” As a corrective, the Court posits:

An arrestee may not be held in custody pending trial unless the court has made an individualized determination that (1) the arrestee has the financial ability to pay, but nonetheless failed to pay, the amount of bail the court finds reasonably necessary to protect compelling government interests; or (2) detention is necessary to protect victim or public safety, or ensure the defendant’s appearance, and there is clear and convincing evidence that no less restrictive alternative will reasonably vindicate those interests. Pretrial detention on victim and public safety grounds, subject to specific and reliable constitutional constraints, is a key element of our criminal justice system. Conditioning such detention on the arrestee’s financial resources, without ever assessing whether a defendant can meet those conditions or whether the state’s interests could be met by less restrictive alternatives, is not. (Emphasis supplied)

Thus, two things can be understood from this. First, the court does not entirely do away with the concept of cash bail, as some have reported: defendants who have the means — as determined by the court — to post bail but fail to do so will not benefit from this judgement. And second, the test of “clear and convincing evidence” by the state in order to deny bail has been reinforced: pretrial detention can only be an option where less restrictive alternatives cannot satisfy the state’s interests.

This is a welcome change from the status quo on cash bail. Cash bail in the United States has played an unenviable role in incarcerating around 700,000 people pending trial, ensuring the United States has the largest jail population in the entire world. Releasing defendants who were only detained because of their inability to post bail will also disproportionately benefit Black Americans who bear the brunt of the carceral state.

However, this ruling, welcome as it is, does not go all the way in reforming California’s money bail system. Illinois, for example, recently became the first state to completely abolish money bail from the criminal justice system, and the State of New Jersey and Washington, D.C., have already nearly abolished the money bail system. Keeping the cash bail system partially intact, as this judgement does, only allows the continuation of the funnelling of enormous amounts of money into bail insurance corporations. What is more, is that bail will continue to be set by a rigid schedule — the same schedule that recommended bail be set at $600,000 for the crimes committed by Humphrey; though many may have the means to pay those amounts of bail, they are still immense amounts of money that are taken away from a potentially innocent defendant.

Nonetheless, progress, wherever made, should be heralded. The lessons here for India’s criminal justice system cannot be ignored. Like the United States, marginalized sections in India are disproportionately incarcerated: Muslims, Dalits, and Adivasis, whose share of the population is 39%, comprise a little over 50% of the imprisoned population in India. Though India’s Supreme Court has held, on numerous occasions, that bail is the exception rather than the rule — encapsulated quite succinctly by Justice V.R. Krishna Iyer’s “[t]he basic rule may perhaps be tersely put as bail, not jail” — Indian courts have rarely lived up to this ideal.

Moreover, as in California, judges in India set bail at a high amount, leading to several thousand indigent defendants languishing in jail even as wealthier defendants who commit the same offence are let off. During the Covid-19 pandemic, for instance, hundreds of arrestees were in jail because they could not meet their surety conditions. These problems with bail had prompted Justice P.N. Bhagwati in Hussainara Khatoon to remark that it was “imperative that the bail system should be thoroughly reformed so that it should be possible for the poor, as easily as the rich to obtain pretrial release without jeopardizing the interest of justice.” The reason for eliminating high sureties as conditions for bail for indigent defendants in India is, thus, clear. Indeed, the California court’s judgement can serve as a useful roadmap. The right to liberty, for instance — a cornerstone of the California court’s judgement — is a core feature of the Indian constitution as well, enshrined in Article 21 of the Constitution of India, as is the right to equal protection before the law, codified in Article 14. Reading these articles together underscores the unconstitutionality of mandating cash bail even for poor defendants — a practice that, in effect, results in what Justice Cuéllar of the California court dubbed a “pretrial detention order,” when other conditions of release could have worked.  

The California Supreme Court’s judgement is certainly promising. The inclusion of cash bail in the justice system was always bound to incarcerate poor arrestees whilst acting as a get-out-of-jail-free card for the wealthy. This ruling shows us a way out of this.

Guest Post: The Shaheen Bagh Review Order – An Unreasonable Restriction on the Right of Assembly

Editor’s Note 1Posts about the contemporary Supreme Court may be read in the context of the caveats set out in this post (link).


Editor’s Note 2: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations (link) against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].


[This is a guest post by Arsh Rampal.]


The Supreme Court, on 9th February 2021, passed an order dismissing the review petition filed by the anti-CAA protestors at Shaheen Bagh. The petition prayed for a review of the 2020 judgment in Amit Sahni v. Commissioner of Police (hereafter referred to as “Sahni”) and additionally prayed for clubbing the review with the petitions concerning the ongoing farmers protests. By dismissing the review, the court  has given finality to its reasoning in Sahni pertaining to the exercise of the fundamental right to peaceful assembly. Through this post, I attempt to dissect the judgment of the court and its implications on the right to peaceably assemble in India. The Court, in its judgment, also remarked upon ancillary aspects of the protest including the role of social media in protests. However, the same shall not be discussed in the post for it has little bearing upon its ratio decidendi.

Background of the Case

In December 2019, the Central Government enacted the Citizenship Amendment Act (hereafter referred to as “CAA”) which excluded certain persons from the definition of an “illegal immigrant” under the Citizenship Act, 1955 and relaxed the time requirement to obtain Indian citizenship by such persons. The various constitutional aspects concerning the legislation have been discussed on this blog previously, namely here, here, here and here.

The legislation sparked protests in several parts of the country, including at Shaheen Bagh in Delhi, which was a protest led by women in the form of a peaceful sit-in. As part of the protest, the protestors had occupied the Kalindi Kunj-Shaheen Bagh Road 13A, resulting in the shutting down of these routes by the administration. It was alleged that due to the blockade, there was an increase in traffic around the area and commuters had to take longer routes to travel to their destination, thus causing them inconvenience (although this was factually disputed). This led the petitioner to file a writ petition before the Delhi High Court praying for a direction to the relevant authorities, to remove the closure of the road. The High Court disposed of the petition on the first day, leading the petitioner to approach the Supreme Court by way of an SLP, praying for similar directions.

The Court’s Reasoning in Sahni

The reasoning of the court can broadly be categorised into three grounds. Firstly, that the right to peaceful assembly is subject to reasonable restrictions in the interest of public order, as envisaged u/a 19 of the Constitution. Secondly, there ought to be some balance between the rights of the protestors and the rights of commuters. Lastly, that indefinite occupation of public spaces is an illegitimate form of protest u/a 19(1)(b) of the Constitution.

Reasonable Restrictions in the interest of Public Order

The right to assemble peaceably without arms is subject to restrictions u/a 19(3) of the Constitution. Regarding such restrictions on the ground of public order, the court stated:

“These rights are subject to reasonable restrictions, which, inter alia, pertain to the interests of the sovereignty and integrity of India and public order, and to the regulation by the concerned police authorities in this regard.”

The above statement is the only reference made directly by the Court apropos reasonable restrictions on the right to protest, and there has been no endeavour to expand on the various aspects of such restrictions as they apply to the facts of the case. The requirements of article 19(3) can be divided into three aspects, namely that there is a law imposing a restriction on the right, that the restriction is in the interest of public order and lastly, that the restriction is reasonable. Additionally, the Supreme Court has developed the doctrine of proportionality u/a 19 which requires that the restriction must be proportional to the purpose it seeks to fulfil.

The first aspect requires that any restriction on the right must be imposed by a law. In its 13-page judgment on the issue, the Court fails to mention or discuss any law that imposes restrictions on the right of the protestors in the present case. It is peculiar that the Court discusses restrictions in the context of the Himmat Lal K. Shahjudgment (discussing validity of rules under Section 33(1)(o) of the Bombay Police Act, 1951) and the Mazdoor Kisan Shakti Sangathan judgment (discussing orders passed against protestors u/s 144 of the Code of Criminal Procedure, 1973), yet fails to even make a passing remark on the law applicable to the protestors at Shaheen Bagh.

Let us now, for the sake of argument, assume that there is a law applicable to the present case such as section 144 CrPC, the Delhi Police Act, 1978, or any other law conferring general policing powers on the Delhi Police. While such laws are considered to be in the interest of public order, would they satisfy the requirement of reasonableness? In the context of protests and orders u/s 144, the Court has previously ruled that the restrictions imposed must be proportional to the right. While Section 144 by itself is a reasonable restriction on the right, its use must only be in situations where public disorder is imminent. The requirements of public disorder include aggravated threats to the rule of law in an area. A peaceful occupation disrupting traffic does not satisfy these requirements. The requirements of “in the interest of public order” u/a 19(3) have clearly not been met in this case.

Doctrine of Balancing of Rights

The crux of the judgment in Sahni can be summed up as an attempt by the Court to balance the rights of the protestors and the rights of the commuters. The judgment notes that the present case was not one of protests taking place in an undesignated area, but one of a blockage of a public way causing grave inconvenience to commuters (para 17). It relies upon the following excerpt from Justice K.K. Mathew’s opinion in Himmat Lal (para 70) to elaborate its reasoning:

“Streets and public parks exist primarily for other purposes and the social interest promoted by untrammeled exercise of freedom of utterance and assembly in public street must yield to social interest which prohibition and regulation of speech are designed to protect. But there is a constitutional difference between reasonable regulation and arbitrary exclusion.”

The reliance on the doctrine of balance of rights is problematic for multiple reasons which have been discussed here. In the the present case, the application of the doctrine is misplaced for the following reasons. First, as stated above, the judgment has failed to provide an elaborate reasoning for restricting the right u/a 19(3). In the absence of an adequate reasonable restriction, it is incorrect for the Court to place reliance on the doctrine of balance of rights to limit the scope of rights u/a 19. Second, the Court has stated that the occupation of the road at Shaheen Bagh does not amount to a protest at an undesignated location, but a blockage of a public roadway. While I disagree with such a classification of the protest, such a statement can only be inferred to mean that in the absence of a protest, there is no exercise of a right by the protestors. The attempt to balance the right of protestors with the rights of the commuters in this case thus becomes an unnecessary exercise undertaken by the court. Third, there is no mention of the exact right which the commuters claim, and under which provision they derive this right, making it difficult to understand what exactly is the court balancing. Lastly, the Court’s reliance on J. Mathew’s opinion is selective. The following text precedes the aforementioned text quoted in Sahni:

“… Public streets are the ‘natural’ places for expression of opinion and dissemination of ideas. Indeed it may be argued that for some persons these places are the only possible arenas for the effective exercise of their freedom of speech and assembly.

70. Public meeting in open spaces and public streets forms part of the tradition of our national life. In the pre-Independence days such meetings have been held in open spaces and public streets and the people have come to regard it as a part of their privileges and immunities. The State and the local authority have a virtual monopoly of every open space at which an outdoor meeting can be held. If, therefore, the State or Municipality can constitutionally close both its streets and its parks entirely to public meetings, the practical result would be that it would be impossible to hold any open air meetings in any large city. The real problem is that of reconciling the city’s function of providing for the exigencies of traffic in its streets and for the recreation of the public in its parks with its other obligations, of providing adequate places for public discussion in order to safeguard the guaranteed right of public Assembly.”

Placing reliance on J. Mathew’s opinion to establish that in an attempt to balance the two rights, the protestors must yield to the commuters would thus be incorrect. There may be circumstances wherein public streets can be used by protestors to hold a public assembly in exercise of their right.

Time, Place and Manner of a Peaceful Assembly

The third and final aspect of the judgment is the discussion regarding time, place and manner of a peaceful assembly. It is stated that demonstrations expressing dissent must be in designated places only, and the occupation of public streets and spaces indefinitely is impermissible. An indeterminable number people cannot assemble whenever they choose to protest (para 17).The Supreme Court has consistently adopted an approach that the time, place and manner of peaceful assemblies can be subject to restrictions as long as the restriction are not be arbitrary or excessive, which has been highlighted in the Himmat Lal judgment. The approach undertaken in Sahni to limit the time, place and manner however fails this test for being excessive and disproportionate for multiple reasons which can be summed up as follows:

  1. It is inconsistent with Himmat Lal which recognises that the State has a monopoly on public spaces, and thus any prohibition on protests in public areas would be an unreasonable restriction. Such an interpretation is unsustainable in light of the fundamental character of the right to peaceful assembly.
  2. An approach that protests must only be in designated areas would result in a situation that all spontaneous protests and assemblies will be delegitimised. This is further evident from the order dismissing the review petition. Such a restriction cannot be said to be in aid of the right and is excessive and disproportionate.
  3. The judgment casts an absolute prohibition (blanket ban) on indefinite occupation as a manner of peaceful protest. Such a restriction is vague and arbitrary, as it is indeterminable at what point an occupation becomes “indefinite”. In the absence of any guidelines, issued by law, such a restriction by the Court is not only inconsistent with Article 19(3) and 14 of the Constitution, but goes beyond the judicial functions of the Court.

Concluding Remarks

The judgment in Sahni is an example of the Supreme Court failing to apply fundamental principles of constitutional law. The Court has failed to provide elaborate reasons to justify the grounds on which it has granted the prayer of the petitioner, and has departed from the approach taken in the very judgments it has relied upon. To sum up, the requirements u/a 19(3) have not been met, the exercise of balance of rights is unnecessary and misplaced, and the judgment imposes arbitrary and unreasonable restriction on the right. The excessive restrictions have chipped away the fundamental character of the right of peaceful assembly. The restriction has become the norm and the right the exception, an interpretation which is unacceptable under the Constitution. The judgment will become a tool in the hands of the State, and the common citizenry to break off protests, a trend which can be seen in the recent farmers’ protests. The judgment has the potential to cause immense damage not only to the rights of protestors, but human rights and constitutional jurisprudence which has been built over the years, and it is hoped that the same is remedied soon.

Article 21 in a Time of Genocide: The Rohingya Case before the Supreme Court [Guest Post]

[This is a guest post by Suhrith Parthasarathy.]


On Friday the Supreme Court reserved orders in a plea seeking interim directions to restrain the central government from deporting Rohingya refugees detained in Jammu and Kashmir. The application further urged the court to order the release of the detained refugees and to direct the government of J&K and the Union Home Ministry to grant these persons identification cards through the Foreigners Regional Registration Office. This petition for interim relief was filed on the back of a slew of news reports that showed that the J&K administration had set up a sub-jail in Kathua as a “holding centre” under the Foreigners Act, and had rounded up and placed in these cells more than 150 Rohingya refugees, including many women and children. The prayers for temporary respite are nestled within a larger challenge to the Union government’s direction to the states to identify Rohingya in India as “illegal immigrants” and to have them deported to Myanmar in a “continuous manner.”

By most accounts the Rohingya, who are a mostly Muslim ethnic group, constitute the world’s most persecuted minority. They represent the largest single group of “stateless” people and live without citizenship and access to basic legal rights. In August 2017, thousands of Rohingya fled Myanmar’s borders, either by foot or sea, after the launch of a lethal assault on them by the country’s army. The United Nations’ high commissioner for human rights described the attack as a “textbook example of ethnic cleansing.” (This report provides a timeline of the successive cycles of violence and persecution against the Rohingya in Myanmar).

The consequences of the violence that commenced in 2017 were felt across the globe. The Indian government’s immediate reaction to the arrival of Rohingya, who had fled persecution, was to direct the States to conduct surveys under the Foreigners Act and to arrange for the deportation of the immigrants. In response to queries pointing to the issuance of identity cards to Rohingya refugees by the United Nations High Commissioner for Refugees, the Union Minister of State for Home Affairs Kiren Rijiju said, “they are doing it, we can’t stop them from registering. But we are not signatory to the accord on refugees. As far as we are concerned, they are all illegal immigrants They have no basis to live here. Anybody who is illegal migrant will be deported.” It was this endeavour by the State that came under challenge in the original petition filed under Article 32 by a pair of refugees, in Mohammad Salimullah v. Union of India. The primary plea remains pending till date. In it, the petitioners claim that India’s commitments under international law, in particular the principle of non-refoulement, would stand breached should they and other refugees be deported to Myanmar. What is more, they also argue that their rights under the Constitution of India are under threat, specifically the right to equality guaranteed by Article 14 and the right to life and personal liberty promised under Article 21.

The principle of non-refoulement is enshrined in Article 33(1) of the 1951 United Nations Convention Relating to the Status of Refugees. It stipulates that “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Article 33(2) contains a limited exception. It states that “The benefit of the present provision [i.e. Article 33(1) referred to above] may not however be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.”

In the present case, there can be little argument against the threat faced by the Rohingya in Myanmar. The International Court of Justice granted provisional measures in January 2020 in a case brought by Gambia, and recognised that there was prima facie evidence of breaches made by Myanmar of the 1948 Genocide Convention and that the remaining Rohingya population were “extremely vulnerable” to attacks by the military. The Court took note of the resolution passed in December 2019, by the United Nations General Assembly, which recorded “its grave concern that, in spite of the fact that Rohingya Muslims lived in Myanmar for generations prior to the independence of Myanmar, they were made stateless by the enactment of the 1982 Citizenship Law and were eventually disenfranchised, in 2015, from the electoral process.”

It’s therefore clear that should the Rohingya refugees in India now be deported to Myanmar, the actions will doubtless be in breach of Article 33 of the Refugee Convention. But the government’s argument in the Supreme Court is that India is not a party to the convention and is therefore not bound by the requirements of Article 33. This argument is fine as far as it goes. But treaty law isn’t the only source of international law. Article 38(1)(b) of the Statute of the International Court of Justice lists “international custom, as evidence of a general practice accepted as law” as one of the sources of law which binds all nation-states. For a rule to amount to international custom, two factors need fulfilling: consistent state practice and opinio juris, that is a sense on behalf of a state that it is bound to the law in question. The principle of non-refoulement, as a 2007 advisory opinion by the UNHCR makes clear, is widely regarded as fulfilling both these factors and as therefore constituting a rule of international custom. Although contested, there is also a substantial body of opinion that points to the rule against refoulement constituting what is regarded in international law as a jus cogens norm, as a peremptory principle against which no derogation whatsoever is permissible. Even domestic laws inconsistent with such a norm would have no validity under international law. Therefore, the government’s argument that it is not bound by the principle of non-refoulement merely because India isn’t a party to the Refugee Convention ought to be rejected.

In any event, as an intervention application filed in the Supreme Court by the United Nations’ Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance demonstrates, there are other treaties to which India is a party that will stand breached should the Rohingya be deported to Myanmar. Specifically, the application points out that the following treaties, among others, will stand violated: (1) International Convention on the Elimination of All Forms of Racial Discrimination; (2) Articles 2(1), 6 and 7 of the International Covenant on Civil and Political Rights (ICCPR); (3) Articles 2(2) & 3 of the International Covenant on Economic and Social Rights (ICESCR); (4) Article 2 of Convention on the Elimination of All Forms of Discrimination Against Women. The special rapporteur argues that barring a few exceptions, these treaties require states to guarantee non-nationals equal enjoyment of civil, political, social and economic rights and that the obligations under these treaties require India not to discriminate on the basis of national origin by satisfying principles of racial equality.

Regrettably, though, the Supreme Court has thus far refused to hear the counsel appearing on behalf of the special rapporteur. But still the question remains: to what extent can the court compel India to act in consonance with international law? Past judgments of the Supreme Court are divided on the question. Courts have been hesitant to apply international norms when domestic law is manifestly contradictory to those rules. But, in this case, a reading of the Foreigners Act, 1946, shows us that the powers vested under it on the government is discretionary. There is no domestic law that mandates the government to act contrary to the principle of non-refoulement. This being the case, the Supreme Court must accord the greatest respect possible to India’s obligations both under treaty and customary international law. If nothing else, these obligations ought to guide the court in providing a proper interpretation of the fundamental rights that serve as the basis of the petitioners’ challenge.

Indeed, two high courts have already read Article 21 as including within its ambit a right agasint refoulement. In their judgments in Ktaer Abbas Habib Al Qutaifi v. Union of India (1998) and Dongh Lian Kham v. Union of India (2015) the Gujarat and Delhi High Courts have both held that the principle of non-refoulement is inherent in Article 21’s guarantee of the right to life and personal liberty. In the former case, the Gujarat High Court noted that “the principle of ‘non-refoulment’ is encompassed in Article 21 of the Constitution of India and the projection is available, so long as the presence of the refugee is not prejudicial to the national security,” and that “where no construction of the domestic law is possible, courts can give effect to international conventions and treaties by a harmonious construction.” As the high courts recognised, the right under Article 21 is available to both citizens and non-citizens alike.

Images coming out of Myanmar’s streets tell their own story. Already following the military coup of February 1, the country’s armed forces have killed hundreds of protestors, including those who have expressed sympathy with the Rohingya. On Saturday alone the army killed over 100 people, including a five-year-old child. The Rohingya have long faced similar assaults from the country’s junta. To deport them at a time like this is to condemn them to sure death. There is a reason why Article 21 of the Constitution is made applicable to all persons, irrespective of citizenship. And nowhere is that reason more evident than in the plight of the Rohingya refugees.

Lt. Col. Nitisha vs Union of India: The Supreme Court Recognises Indirect Discrimination

[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


In early 2020, the Supreme Court delivered judgment in Secretary, Ministry of Defence vs Babita Puniya, holding that the Indian Army’s policy of denying women officers a permanent commission [“PC”] was discriminatory. Following this judgment, the Union Government put into place a procedure for the grant of PCs to eligible women officers. The results of this process – that involved 615 eligible women officers – spurred a second round of litigation before the Supreme Court. In a judgment delivered yesterday, Lt. Col Nitisha vs Union of India, the Supreme Court – speaking through a bench of Chandrachud and Shah JJ – held that the implementation of the Babita Puniya judgment had also been discriminatory. In particular, the importance of Lt. Col. Nitisha lies in the fact that the criteria for grant of PCs to women were facially neutral, but found to be indirectly discriminatory. This marks the first occasion that the Supreme Court has categorically held indirect discrimination to violate the Constitution, and set out an account of what indirect discrimination entails.

As in Babita Puniya, the facts of the case are somewhat complicated, and this post must necessarily present a somewhat schematic account. Broadly, there were three contentious criteria of assessment for the grant of PC: first, that the women officers had to clear a certain percentage score, as well as score higher than the lowest scoring male officer who had been awarded a PC; secondly, that Annual Confidential Reports [“ACRs”] were to form part of the grading; and thirdly, certain medical requirements had to be fulfilled.

On the face of it, these criteria were neutral, i.e. they did not, on their face, discriminate between male and female officers. On digging a little deep, however, it was found that the very fact that for all these years, women had not been eligible for the grant of PCs, had a direct bearing on some eligible candidates’ failure to fulfil the criteria. For example, ACRs were prepared with a view to recommendations for the grant of a PC. Given that female officers had not been eligible for PCs, in their case, the reports were more lackadaisical than those of their male counterparts; these were also affected by the fact that women officers had not applied for a range of opportunities, or courses, that were supposed to be considered in the ACRs. This was because their career options had hitherto been blocked – thus, effectively, leading to a cycle of discrimination that now meant that they applied with relatively unfavourable ACRs. Similarly, with respect to the medical criteria, the Court found that male officers took their medical tests at the time they applied for PCs (and once granted PCs, they were not required to maintain the same levels of fitness). However, female officers – who had been ineligible all these years – were now required to prove the very level of fitness that otherwise similarly situated male officers were no longer required to prove (as they had been granted PCs many years before).

Of course, other than the requirement of scoring higher than the lowest-scoring male candidate, none of the eligibility criteria required any facial comparison between women and men. For this reason, the Supreme Court was required to reach further, and articulate an alternative model of equality and discrimination. It did so by drawing a distinction between intention and effect, and discrimination wrought by individual acts on the one hand, and by the impersonal workings of institutions and structures on the other. Chandrachud J. held that the concept of substantive equality – to which the Constitution was committed – required accounting for both systemic and indirect discrimination (paragraph 45). After an extended comparative examination (paragraphs 51 – 65), Chandrachud J. held that the two-step test for discrimination evolved in the Canadian Supreme Court case of Fraser (discussed on this blog here) was the most appropriate. The Fraser test – as set out by the Supreme Court – requires that:

First, the Court has to enquire whether the impugned rule disproportionately affects a particular group. As an evidentiary matter, this entails a consideration of material that demonstrates that “membership in the claimant group is associated with certain characteristics that have disadvantaged members of the group”. However, as such evidence might be hard to come by, reliance can be placed on evidence generated by the claimant group itself. Further, while statistical evidence can serve as concrete proof of disproportionate impact, there is no clear quantitative threshold as to the quantum of disproportionality to be established for a charge of indirect discrimination to be brought home. Equally, recognizing the importance of applying a robust judicial common sense, the Court held: “In some cases, evidence about a group will show such a strong association with certain traits—such as pregnancy with gender—that the disproportionate impact on members of that group will be apparent and immediate” … Second, the Court has to look at whether the law has the effect of reinforcing, perpetuating, or exacerbating disadvantage. Such disadvantage could be in the shape of: “[e]conomic exclusion or disadvantage, [s]ocial exclusion…[p]sychological harms…[p]hysical harms…[or] [p]olitical exclusion”, and must be viewed in light of any systemic or historical disadvantages faced by the claimant group.” (para 65)

The Court also noted that while statistical data would aid in establishing a finding of indirect discrimination, it would not necessarily exist in every case (paragraph 68); and that while due deference ought to be accorded to employer arguments around suitability criteria for the job, the Court would have to be vigilant to avoid endorsing the same stereotypes or generalisations that were responsible for the discrimination in the first place (paragraph 70). Effectively, the Court indicated that it would have to check whether the employer had acted proportionately – ensuring, for example, that there were no other measures that could have been taken that did not have the same discriminatory effect. The Court correctly noted, as well, that structural discrimination would often require structural remedies (paragraph 73).

Applying this analytical framework to the case at hand, indirect discrimination was easily made out. It was the very fact that female officers had been formally denied a set of opportunities for all these years, that now ensured that a seemingly neutral set of criteria – neutral in that the same set of criteria was applied to eligible male candidates – was discriminatory in effect (note that the female candidates were not competing against male candidates in this case, so this judgment also shows that a finding of discrimination does not need a comparator group). The quality of the ACRs, the limited consideration of awards or achievements attained only as on the 5th or 10th year of service, and so on, were all indications of this. Thus, as Chandrachud J. pointed out: “A formalistic application of pre-existing policies while granting PC is a continuation of these systemic discriminatory practices. WSSCOs were continued in service with a clear message that their advancement would never be equal to their male counterparts.” (para 96). The same was the case with the medical fitness criteria, as explained above: while there was nothing wrong with the criteria per se, it was their application that was indirectly discriminatory. Female officers, who were not eligible for PC for all these years, were asked to pass a medical test now that their similarly situated male counterparts had been entitled to take at a substantially younger age (and then not required to maintain). Thus the Court held:

The WSSCOs have been subject to indirect discrimination when some are being considered for PC, in their 20th year of service. A retrospective application of the supposedly uniform standards for grant of PC must be modulated to compensate for the harm that has arisen over their belated application. In the spirit of true equality with their male counterparts in the corresponding batches, the WSSCOs must be considered medically fit for grant of PC by reliance on their medical fitness, as recorded in the 5th or 10th year of their service. (para 112)

While the facts of this case are undoubtedly complex, it will be easy to see what the Court was trying to remedy by looking at another similar case, but with much simpler facts. In Australian Iron and Steel Co v Bankovic, a company imposed a “last in, first out” retrenchment policy (i.e., you got retrenched based on how short a time you spent in the company). It turned out, however, that the company had only recently begun to employ women, and that therefore, the retrenchment policy was much more likely to target women, simply for this reason. This was found indirectly discriminatory. Thus, this was the sequence: first, there was formal and direct discrimination, that put women at a disadvantage. Then, formal discrimination was ended, but criteria were put in place that failed to account for that prior disadvantage – and thus ended up entrenching and perpetuating it, indirectly. In a very similar way, in this case, for the longest time, women faced formal and direct discrimination by not being eligible for the grant of PC. This formal discrimination was struck down by the Court in Puniya – but the policy that was framed for implementing it failed to account for the disadvantage that had been caused (directly) all these years. Thus, by the very fact of its “neutrality”, the policy was indirectly discriminatory.

Of course, not all such examples of indirect discrimination will be as clean-cut – that is, effectively piggybacking off former direct discrimination. Importantly, however, as we have seen above, Chandrachud J.’s formulation was detailed enough to address those more complex cases when they do arise. The proof of the pudding is, of course, in the eating, but for now Lt Col Nitisha’s Case marks an important advance in its acknowledgement, recognition, and articulation of indirect discrimination under the Indian Constitution.

 

Mobile Phones and Criminal Investigations: The Karnataka HC Judgment in Virendra Khanna [Guest Post]

[This is a guest post by Abhinav Sekhri, cross-posted from the Proof of Guilt blog].


(This post connects to a primer available on SSRN which deals with these issues, which is available here).


Earlier this month, a Single Judge Bench of the Karnataka High Court delivered the judgment in Virendra Khanna v. State of Karnataka and Anr. [W.P. No. 11759/2020 (Decided on 12.03.2021)]. The decision is likely to prove the first in a series of cases in the near future, in which courts grapple with issues posed to criminal investigations by mobile phones and similar digital devices. These issues require courts to not only consider the scope of constitutional protections but also interpret existing provisions of the Criminal Procedure Code 1973 [“Cr.P.C.”] and Information Technology Act 2000 [“IT Act”]. 

In this post, I argue that the conclusions arrived at in Virendra Khanna — in respect of the applicability of the fundamental right against self-incrimination, of the Cr.P.C. search and seizure provisions, and of the fundamental right to privacy, all in context of accessing digital devices — are incorrect. The interpretation that is endorsed by the High Court is also deeply problematic, as in the face of advancing technology, it seeks to restrict rather than enhance the contours of our constitutional rights to equip individuals with the means to protect themselves against unlawful incursions into enjoyment of one’s personal liberty by state agencies. The post does not engage with the guidelines provided by the Court, or its reiteration of the law laid down in Selvi [(2010) 7 SCC 263] that compelled administration of a polygraph test was is illegal.

The Facts and Issues Before the Court

The Petitioner was a person caught in the crosshairs of law enforcement agencies, and his mobile phone was allegedly important to advance the investigation into offences. In September 2020, the police went before the trial court asking for court orders to direct the Petitioner to unlock his mobile phone and grant access to email accounts, as the Petitioner had refused to cooperate. The court duly passed this direction and it appears the Petitioner complied. Then, the police moved another application before the trial court, this time asking for directions that the Petitioner be subjected to a polygraph test to confirm the mobile / email passwords, as it appeared that the Petitioner had been lying about the same during investigation. The court allowed this application as well and directed the polygraph tests be conducted — orders which, according to the Petitioner, were passed without ever giving him an opportunity to be heard and without considering if he had indeed consented to undergoing such tests. The Petitioner challenged this order and the consequent direction to undergo a polygraph test.

Following the judgment in Selvi, no court can direct any accused person to undergo polygraph tests unless such person consented to the same, and if seen from that perspective Virendra Khanna was an open-and-shut case requiring that the order be set aside. But the High Court was more indulgent with the legal issues placed before it and considered questions that lay beneath the surface as well. Out of these, I focus on the following three points taken up in the judgment:

  • What is the specific legal regime under which police can seek access to a digital device for pursuing its investigation?
  • What is the interplay between Article 20(3) and directions issued to an accused person for unlocking a digital device? 
  • What are the legal limits, if any, upon law enforcement agencies while they “explore” the contents of a digital device for investigation purposes?

Issue 1: The Relevant Legal Regime 

The High Court first considered whether there was any legal basis to root the actions of police officers in accessing a digital device for purposes of investigation. It observed that an officer could always ask an accused to open the device, but to direct compliance required some basis in law. This legal basis was found in the existing search and seizure regime of the Cr.P.C., concluding that the regime — which it admitted only applied to a “place” — was also applicable for accessing a digital device. Accordingly, the police would have to apply for search warrants to access a phone under Sections 93 / 94 of the Cr.P.C., and in emergent circumstances they could dispense with this requirement and act under Section 165 Cr.P.C. The obligations of the accused would be the same in both scenarios, i.e. assist in providing access to any locked space as provided by Section 100 Cr.P.C. 

Extending the existing search and seizure regimes from the realm of physical space to that of electronic / digital space is a path that many countries are taking. Erecting a need for judicial supervision by requiring search warrants to be sought before digital devices can be accessed helps redress the imbalance of power in such situations and also helps to keep law enforcement activity tailored to the needs of investigation and avoid roving inquiries into personal data. Viewed in the abstract, then, the choice of the Court does not seem problematic at all but a pragmatic solution. 

The problems only arise when we move beyond the realm of abstraction into practice. The Indian search and seizure regime does not mandatorily require search warrants; instead, police liberally use their powers under the “emergent circumstances” exception to conduct searches. The result is a situation where privacy is at the mercy of police. This is not to say that the search warrant regime itself, when invoked, supplies the necessary bulwark. The Cr.P.C. 1973 adopted wholesale the search regime that was present in the old British codes, the avowed purpose of which was to maximise scope of interference with personal liberty and not to safeguard it. Under this antiquated regime, general warrants allowing a roving search at a place are the rule, and a court may “if it thinks fit” restrict the scope of this search expedition.  

As noted above, this regime was designed to maximise state interests. Importing this regime in 1973 was a dubious decision. Applying it in 2021 to digital devices which are nothing short of portable vaults full of sensitive personal data, is a disastrous one. 

Issue 2: The Right against Self-Incrimination and Unlocking Mobile Phones

The High Court held that compelling a person to give up a password and / or biometrics to unlock a digital device did not attract the fundamental right against compelled self-incrimination as it was not the kind of evidence protected by the prohibition: providing a password did not disclose anything incriminating, and it was not the “testimonial compulsion” which Article 20(3) sought to protect. As a result, adverse inferences could be drawn if a person refused to comply with court orders. This analysis was coupled with portraying disaster if the view was taken to its logical consequence, which according to court: 

“… would result in a chaotic situation: no blood sample could be taken; no sample for DNA analysis could be taken; no handwriting samples can be taken; no other body sample for the purpose of DNA analysis could be taken; no search of a house or office could be undertaken; the data of a laptop or computer or server cannot be accessed by the investigating officer; offences like cyber crime could never be investigated; offences like pornography, child pornography which are more often than not, on the internet, could not be investigated.”

Both these conclusions of the High Court are, unfortunately, incorrect. The legal position is misstated, and the approach on the factual aspects is deeply misguided and troubling.

The High Court called upon the “testimonial compulsion” concept in its reasoning and concluded that the furnishing of a password / biometrics was not of this nature, but was akin to “physical evidence”. This binary logic was engrafted upon Article 20(3) by the Supreme Court in Kathi Kalu Oghad [AIR 1961 SC 1808], according to which there is a kind of material called “physical evidence” which falls outside the scope of the protection and persons can be compelled to furnish it. This includes blood samples, hair samples, or even asking an accused to wear specific clothing. Then, there is “testimonial compulsion” which is the material Article 20(3) covers, which traditionally makes one think of confessions. What is the basis behind this distinction? “Physical evidence” is only relevant for purposes of comparison and so by itself it is not incriminating — police take the sample to compare it with other material. “Testimonial compulsion” is incriminating by itself, and conveys to the police information that is the direct product of testimony. The key then is whether the testimonial act — be it speaking, or making gestures — conveys information that can help furnish a link in the chain of evidence, by its own merit.

Is giving the password / biometrics really not conveying any information? Is it of no value as testimony by itself? Surely, the answer is no. At its most basic formulation, the testimonial value in having an accused person unlock the phone lies in the many inferences that can be drawn from this act. Not only does it lend support to the inference that the accused owns the phone, but also to the inference that the accused was in control of its contents. And where the contents of this device are what are potentially incriminatory, surely this is as obvious a link in the chain of evidence as any. 

On a more specific point, while the Court relied upon Kathi Kalu Oghad, it seemingly ignored the decision in Shyamlal Mohanlal Choksi [AIR 1965 SC 1251]. Otherwise, the High Court could not have observed that giving a password is not testimonial compulsion because “it is only in the nature of a direction to produce a document.” After all, Shyamlal specifically held that a direction of this nature could not be issued to an accused person as it would run contrary to Article 20(3).    

Since the High Court was incorrect in comparing the giving of a password with giving of bodily samples and the like, it is already obvious that the “heavens will fall” approach to the consequences of concluding an Article 20(3) violation are an exaggeration unfounded in the law. But let’s ignore that for a minute, and take up the assertion on its face value. What it reveals is a troubling state of affairs where the High Court assumes that cooperation by an accused is necessary to secure any or all of these obviously legitimate investigative aims. This cannot be further from the truth and, in fact, the Court itself alludes to this when at a later point in the decision it recommends that police proceed to “hack” a device to gain access where the accused refuses to cooperate. What is troubling here is that this kind of piggybacking upon an accused to secure investigations is what a protection against self-incrimination, in its myriad forms, was designed to reduce. Technological advances have made it more possible for police to do their job independently and have helped to usher in a situation where investigations are not subject to the sweet will of an accused, and at the same time are free of any potential taints of accused persons being assaulted to secure information. It is unfortunate that the High Court endorsed a view which still sought to place the accused as the focal point of a police investigation, without appreciating the well-established perils of this approach.  

Issue 3: The Right to Privacy

The High Court in Virendra Khanna was keenly aware of the potential invasion of one’s privacy at stake considering how much data is found on our digital devices. It acknowledged that once police gain access to a device, even if for a specific reason, that often enables full-blown access to all aspects to a person’s life. After heading in this direction, the High Court simply noted that the use of any such data during the course of investigations would not amount to a violation of the right to privacy, as it was protected under the exceptions carved out. At the same time, the High Court observed that unlawful disclosures of this material with third parties could certainly amount to an actionable wrong.

With all due respect, the High Court’s analysis of the privacy issues barely scratched the surface and, in effect, simply placed the cart before the horse. Yes, a criminal investigation can certainly require invasions of the right to privacy that are otherwise prohibited, but to confer a blanket protection over all all kinds of activities that may be done under the pretext of an investigation effectively extinguishes the fundamental right altogether. Let’s take an example. The police allege that an accused spoke to other conspirators over email and this correspondence is evidence to show the existence of an agreement to commit a crime. This is as genuine a law enforcement need as can be justifying going inside an email account and one’s private chats. 

According to Virendra Khanna, when faced with this situation a court should support untrammelled access for police agencies to the email account. Such an approach is hardly the only way out and actually asks courts to forsake their responsibility of crafting a proportionate intrusion to best safeguard law enforcement interests without sacrificing one’s privacy altogether. Rather than confer a carte blanche upon the police, an approach which took privacy seriously — the respect a fundamental right deserves — would have a court consider if the police could demonstrate with reasonable particularity what they hoped to find or if it was just a hunch and, importantly, create a time-limit so that the individual is not forever beholden to police snooping through her inbox. 

The seemingly benign way in which the High Court viewed potential breaches of the right to privacy can be seen not only from how it viewed state interests as an unquestionable concept, but also in how it failed to address what remedies may lie in the event of a breach. As mentioned above, the High Court did note that disclosures to third parties were possible and could constitute a breach, but it neither offered nor suggested a remedy to the aggrieved accused in this regard. What’s worse, the High Court in its support for getting search warrants endorsed the regular position that the fruits of an illegal search could still be admissible as evidence. It failed to engage with the small but significant line of recent cases where another High Court took strong exception to searches being conducted without following procedures, noted that this amounted to a breach of the right to privacy, and excluded material gathered pursuant to search from being considered as evidence. 

Conclusion: Setting Back the Clock, by Some Measure

On its face, the petition in Virendra Khanna offered a straightforward issue — administering polygraph test without consent. The High Court looked past this simplicity to address the underlying legal questions which are becoming critical in their relevance to law enforcement needs and ordinary life. That it chose to do so and contributed to the discourse by offering clear answers to some questions was a welcome move. The problem is that the answers themselves are severely wanting, either proceeding on an incorrect legal basis or drawing exaggerated hypothetical conclusions. 

How this judgment is treated by the other benches in the Karnataka High Court, the state police, as well as other courts, will be interesting to see. 

Coronavirus and the Constitution: Round-Up

This post brings together ICLP’s coverage of Covid-19, the Constitution, and the Courts over the past one year.

A. On the Disaster Management Act, Executive Decrees, and Judicial Review

  1. Coronavirus and the Constitution – XVIII: Models of Accountability
  2. Coronavirus and the Constitution – XX: Parliamentary Accountability
  3. Coronavirus and the Constitution – XXVII: On (Permanent) Crisis Governance [Guest Post]
  4. Coronavirus and the Constitution – XXXVIII: One Year On

B. On Civil Rights

  1. Coronavirus and the Constitution – III: The Curfew and the Quarantine
  2. Coronavirus and the Constitution – IV: Privacy in a Public Health Crisis [Guest Post]
  3. Coronavirus and the Constitution – VI: On the Freedom of Movement
  4. Coronavirus and the Constitution – VII: Balancing Privacy and Public Health in Karnataka [Guest Post]
  5. Coronavirus and the Constitution – IX: Three Curious Bail Orders
  6. Coronavirus and the Constitution – XV: The Odisha High Court on the Ban on Vehicles [Guest Post]
  7. Coronavirus and the Constitution – XXI: The Mandatory Imposition of the Aarogya Setu App
  8. Coronavirus and the Constitution – XXIV: Aarogya Setu and the Right to be Forgotten [Guest Post]
  9. Coronavirus and the Constitution – XXVI: Migrant Workers, Freedom of Movement, and Positive Obligations [Guest Post]
  10. Coronavirus and the Constitution – XXX: PM-CARES Fund and the Right to Information Act [Guest Post]

C. On Labour Rights

  1. Coronavirus and the Constitution
  2. Coronavirus and the Constitution – II: Household Staff and Employment Protection: Obligations, not Charity [Guest Post]
  3. Coronavirus and the Constitution – XXXI: The Payment of Wages Order
  4. Coronavirus and the Constitution XXXII: Payment of Wages and Judicial Evasion in a Pandemic
  5. Coronavirus and the Constitution – XXXVII: The Pandemic, Labour Rights, and the Supreme Court’s Judgment in Gujarat Mazdoor Sabha

D. On Fiscal Federalism

  1. Coronavirus and the Constitution – V: Financial Emergencies
  2. Coronavirus and the Constitution – XIX: The State Disaster Risk Management Fund and the Principle of Equal Distribution [Guest Post]
  3. Coronavirus and the Constitution – XXII: The State Disaster Risk Management Fund and the Principle of Equal Distribution – A Response [Guest Post]
  4. Coronavirus and the Constitution – XXIX: Sub-National Debt & Art. 293(4) – Some Constitutional Concerns [Guest Post]
  5. Coronavirus and the Constitution – XXXV: Examining the GST Compensation Crisis [Guest Post]

E. On the Supreme Court

  1. Coronavirus and the Constitution – VIII: A Critique of the Supreme Court’s Migrants Order [Guest Post]
  2. Coronavirus and the Constitution – X: Rights, not Policy
  3. Coronavirus and the Constitution – XI: The Supreme Court’s Free Testing Order
  4. Coronavirus and the Constitution – XII: The Supreme Court’s Free Testing Order – A Response (1) [Guest Post]
  5. Coronavirus and the Constitution – XIII: The Supreme Court’s Free Testing Order – A Response (2) [Guest Post]
  6. Coronavirus and the Constitution – XIV: The Supreme Court’s Free Testing Order – A Rejoinder (1) [Guest Post]
  7. Coronavirus and the Constitution – XVI: The Supreme Court’s Free Testing Order – A Response (3) [Guest Post]
  8. Coronavirus and the Constitution – XVII: The Supreme Court’s Free Testing Order – Some Concluding Remarks
  9. Coronavirus and the Constitution – XXV: Socio-Economic Rights and the Shifting Standards of Review [Guest Post]
  10. Coronavirus and the Constitution: XXXVI – The Supreme Court’s UGC Judgment [Guest Post]

F. On the High Courts

  1. Coronavirus and the Constitution – XXIII: Judicial Approaches Towards the Right to Food
  2. Coronavirus and the Constitution – XXVIII: Dialogic Judicial Review in the Gujarat and Karnataka High Courts
  3. Coronavirus and the Constitution – XXXIII: N-95 Masks and the Bombay High Court’s Dialogic Judicial Review [Guest Post]
  4. Coronavirus and the Constitution – XXXIV: The Bombay High Court [Guest Post]

Coronavirus and the Constitution – XXXVIII: One Year On

The first Indian national lockdown in the wake of Covid-19 was announced on 24th March, 2020. The management of the pandemic by the central and state governments is a matter for the history books (although, of course, the pandemic is not yet over). Over the course of the past year, however, these governments’ far-reaching actions – aimed at containing the pandemic, but with numerous spill-over effects – raised numerous constitutional issues. These involved, for example, civil rights, access to healthcare, the rights of migrants, and so on. On this blog, there have been thirty-seven posts examining the interface between Covid-19, state action, the Constitution, and the Courts. One the first anniversary of the lockdown, it is a good time to take stock.

Pandemic Management by Decree

The greatest concern remains how Covid-19 turned into a cover for executive aggrandisement, both at the central and at the state level. At the centre, this involved the invocation of the Disaster Management Act of 2005, and a somewhat extended interpretation of its provisions, to arm the central government with wide-ranging powers over everyday life. At the state level, the several state governments invoked the colonial Epidemic Diseases Act, to exercise similar powers over their territories (including the arguably ultra vires “sealing off” of certain districts from time to time). This, in turn, was supplemented by the liberal use of Section 144 of the Code of Criminal Procedure to restrict movement in specific areas.

At all levels, therefore, Covid-19 was managed by an interlocking set of executive decrees, passed under broadly-worded laws, and leaving no scope for the representative bodies – parliament of the state legislatures – to debate or to question these moves. It is, of course, trite to say that the legislature in India has become effectively moribund, and even a functioning Parliament and State Assemblies would have scarcely made a difference to the handling of Covid-19. That is true enough, but the formal exclusion of deliberative representative bodies from the management of a criss by invoking broadly-worded laws remains a matter for concern, whatever the state of those bodies: as Abhinav Sekhri put it, it took us into a space of “permanent crisis governance“.

Civil Rights and Proportionality

That Covid-19 was – and remains – a public health crisis that would require governments to take far-reaching measures – many of which would have a severe impact on everyday life and on civil rights – is unquestionable. But what is equally unquestionable is that Covid-19 does not accord governments a carte blanche to suspend Part III of the Constitution altogether. State action violating rights would still need to conform to the principles of proportionality, albeit with the rider that the importance of the State goal (preventing the spread of a global pandemic) would necessarily allow the government a wide degree of leeway in fashioning measures to deal with the problem.

That said, throughout the pandemic – and especially in its early stages – there was a range of dubious State action that arguably fell foul of the proportionality standard. These included, for example, curfews, public disclosure of the private details of quarantined individuals, restrictions on individual movement, compelling quarantined people to upload “selfies” to a government portal, the notorious Aarogya Setu App (with its Aadhaar-esque mandatory-voluntary nature), and bans on vehicular movement. Unfortunately, most of these measures escaped judicial scrutiny. The exception was Odisha’s vehicles ban, which was modified by the Odisha High Court in a measured and well-reasoned judgment, that is a good example of the application of the proportionality standard in a public health emergency.

Equality and Non-Discrimination

Pandemics do not discriminate between the rich and the poor, but the State certainly does. A lockdown, for example, has a severely disproportionate impact, depending on the socio-economic status of a person. “Work from home” jobs statistically track along socio-economic lines (the higher paid your job, the more likely it’s a job that can be done from home), and the forced closure of all establishments has a direct impact on the right to life and livelihood of migrant workers, living on daily payments, in particular. The decision to impose a hard national lockdown, therefore, raised important constitutional concerns around equality and non-discrimination. Note that this does not mean that the lockdown should not have been imposed (scientific evidence shows that lockdowns are essential to breaking the chain of transmission of the virus). What it does mean, however, is that once the lockdown was imposed, the State had an affirmative obligation to deal with its discriminatory impact – and that its failure to do so merited constitutional scrutiny.

Unfortunately, however, the unequal and discriminatory impacts of the lockdown were given short shrift; for example, the Supreme Court passed a cursory judgment failing to properly engage with the multiple equality concerns with the UGC’s Circular on the conduct of examinations. Secondly, PIL requiring the State to guarantee the payment of minimum wages to workers affected by the lockdown was not taken seriously by the Supreme Court, with the Court – unfortunately – indicating that it viewed the issue as a matter of “policy” (the rights to equality and to livelihood are not matters of policy).

Eventually, it was the government that took action, with a regulation under the Disaster Management Act requiring payment of wages to workers for a certain period of the lockdown. In one of the most unfortunate orders to be passed during the pandemic, the Supreme Court effectively stayed this provision (ironically, the only provision the Court stayed under the DMA was the one provision that sought to protect workers’ rights) – and then buried the case by adjourning it while asking the employers and employees to “negotiate” (as the old saying goes, a mediation between the sword and the neck). Thus, the regulation requiring the payment of wages to those who had suffered from job loss because of the lockdown was judicially nullified.

By contrast, the Supreme Court’s decision in the Gujarat Mazdoor Sabha case – where the State of Gujarat’s attempts to cut back on labour protections by citing Covid-19 as an excuse were turned back by a thoughtful and closely-reasoned judgment – stands out precisely because, for once, the Court refused to accept Covid-19 as a carte blanche for the curtailment of rights, especially on the basis of vague invocations of “public emergency”. One wishes that this judgment had been the exception, and not the norm, as we shall see below.

The Supreme Court’s Deference

The Supreme Court’s excessive and undue deference to the executive was starkly visible in multiple separate instances. First, despite legitimate constitutional and legal concerns, PILs challenging the PM-CARES fund were dismissed as frivolous and ill-founded. It is telling that to this day, we do not know the breakdown of spending under the PM-CARES fund, something that should be anathema to any jurisdiction styling itself a constitutional democracy.

Secondly – and in what will undoubtedly go down as a moment of great infamy – when the Supreme Court was petitioned about the severe difficulties faced by migrants due to the sudden and unplanned lockdown, first accepted the Solicitor-General’s statement that there were no migrants on the road, and then passed an extraordinary order blaming migration on “fake news”, and praising the government for its efforts in tackling Covid-19.

Thirdly, acting on a petition before it, a bench of the Supreme Court in April 2020 ordered that Covid testing be made free of cost. While the order had gaps, in my view – as I argued at the time – given the nature of the Covid-19 pandemic, it was legitimate (but see here, here, here, here, and here) for the extensive debate that this sparked upon the blog). However, upon various private bodies moving the Court, and at the instance of the State, it did a complete – and wholly unreasoned – volte face, changed its own order, and while appearing to introduce a means-testing requirement, effectively killed it. Now, there is a debate to be had over whether the Court’s initial order was right or wrong. What is troubling, however, that in a matter as important as this – involving the right to equality and the right to health during a global pandemic – the Court provided no reasons for its flip-flops. Indeed, it accorded no judicial scrutiny to the most basic of factual claims – for example, that Rs 4500 as the price for a test had been determined after consulting experts (reports showed that no experts had been consulted), or of a causal link between making testing free (or cheaper), and the availability of tests.

Thus, both in the migrants’ case and in the free testing case, the issue was not that the Court interfered – or declined to interfere – with questions of policy; it was – as I argued here – that the Court failed to hold the government to account in following its own policies; this does not require judicial activism, but classic, old-school judicial scrutiny, scrutiny that was made all the more necessary because of the bypassing of Parliament, leaving the Courts as the only checking bodies left. The Court’s failure to do so effectively created a situation of Caesarism: i.e., rule by acclamation, not under democratic checks and balances. But the larger issue it revealed is perhaps even more important: at present, under our Constitution, there is no consistent standard for the recognition and enforcement of socio-economic rights. While this has always been known, it was the (often failed) attempts to actually enforce these rights during Covid-19 that brought the point home.

The High Courts’ Vigilance

There was, however, a marked difference in how the several High Courts approached their responsibilities during the pandemic – demonstrating, perhaps, that in public health emergencies that are managed at a more localised level, High Courts might be in a better position to adjudicate a range of issues involved. . For example, the Delhi High Court passed an important order regarding the implementation of the right to food, and keeping open PDS shops, during the pandemic. The Madras High Court passed a good order on the right to movement of migrant workers.

Most importantly, in a series of excellent orders, the Karnataka and the Gujarat High Courts held the State governments to account on issues involving the rights of migrants, medical care, food, shelter, and other grave lapses in pandemic management. The actions of the Karnataka and Gujarat High Courts stand out as models of judicial engagement with State action during the pandemic: both Courts engaged in dialogic judicial review, i.e., not substituting judicial wisdom for State policy, but by holding the governments to account for their failure to protect constitutional rights during the pandemic (unfortunately, in the Gujarat High Court, one of the judges hearing the case was swiftly replaced, and the hearings died a quiet death). Both Courts, for example, asked the State governments to file affidavits, and it was quickly found, on a reading of those affidavits, that the governments were failing on their own terms. The Courts’ orders were then premised on a rectification of those failures, and indeed, directing the government to act to mitigate those failures. It is in this way that the High Courts engaged in dialogic judicial review, and ensuring executive accountability under the Constitution on a continuing basis.

The Bombay High Court also engaged in dialogic judicial review when considering the issue of price-capping N-95 masks, closely engaging with information provided by the government, on its own terms. There were also thorough and detailed orders passed on access to food, migrant rights, and the right to a decent burial.

The Conclusion

Whenever we face an emergency of any kind, it becomes particularly easy to argue that rights are a luxury that cannot be afforded in times of existential threat, and that the State must be given complete leeway to tackle the emergency as long as it lasts. It is also tempting to turn the truism that the Courts should not get into the day-to-day management of the pandemic, into an excuse for judicial abdication. Tempting as it is to make these arguments, history has also repeatedly shown us that it is wrong-headed; not only is it more than possible to handle emergencies while being protective of basic rights, it is also the case that executive aggrandisement of power during an emergency inevitably becomes permanent, with emergency and normalcy eventually bleeding into each other.

There is little purpose in knowing history if we do not intent to learn from it. In this context, the invocation of the DMA and the Epidemic Diseases Act to manage the pandemic via executive decree is the repetition of an old story, which recurs every time there is an emergency. One can only hope that after the pandemic is over (of which there is no sign so far), we will be vigilant about the expansion of such executive rule into daily life.

Secondly, the pandemic has revealed the hollowness – in a sense – of India’s Article 21 jurisprudence. Ultimately, when it came to the crunch, the grand rights to livelihood, food, and health meant very little in practice, especially at the Supreme Court: the migrant and free testing cases are testament to how, in the enforcement, these rights are paper tigers.

Thirdly, however, there are reasons for optimism as well. The Supreme Court’s judgment in Gujarat Mazdoor Sabha was a classic example of the role a vigilant judiciary can play in stopping a government that tries to use the pandemic as a cover to cut back on workers’ rights. And the orders of the Karnataka and Gujarat High Courts provide models of dialogic judicial review, and the walking of the delicate tightrope between judicial abdication on the one hand, and the judiciary (wrongly) trying to “manage the pandemic” on the other. As we eventually emerge from the pandemic, there is a lot to reflect on – and to learn – from the legacy of this past year, and about the role of courts and of rights in a crisis.