Category Archives: Access to Justice

The (Continuing) Doctrine of Judicial Evasion in the Aadhaar Case

On this blog, I have argued before that the ongoing Aadhaar litigation provides an example of the Supreme Court’s evolving doctrine of “judicial evasion”: faced with a dispute between individual and State that involves wide-ranging ramifications on civil and constitutional rights, the Court’s response is not to decide it one way or another, but to simply refuse to hear it at all. While legally this keeps the position of the parties at status quo, at the same time, it permits the State to take all steps on the ground to achieve a fait accompli that effectively makes the case academic and infructuous. In other words, by not deciding, the Court is, in effect, deciding in favour of the State, but without the public accountability that comes with the existence of a written, reasoned judgment.

The doctrine of judicial evasion ensured – as I pointed out in my posts about the Aadhaar/PAN litigation – that in the one constitutional challenge to Aadhaar that the Court did hear, the Petitioners had to argue as if they were playing a tennis match with one arm and one leg tied behind their backs. And today’s order – in Shanta Sinha vs Union of India – is another excellent example of how, by applying this doctrine, the Court has fundamentally abdicated its constitutional responsibility to protect the rights of Indian citizens.

Recall – yet again – the background. On 11th August 2015, after the Union of India argued that there was no fundamental right to privacy under the Indian Constitution, the three-judge bench of the Supreme Court referred the challenge to the Aadhaar scheme (at that point, a voluntary, executive scheme) to a larger bench for decision. The Court clarified that, pending the final decision, Aadhaar could not be made mandatory for availing of subsidies or benefits, and it recommended that the case be heard on an urgent basis. A Constitution Bench met in October 2015 to extent the list of subsidies for which Aadhaar could be used; after that, the case has not been heard, despite numerous attempts to “mention” it before the Chief Justice, and have it listed. It has been one year and nine months since the referral order.

In the meantime, the Union of India has gone full steam ahead with Aadhaar. In 2016, it passed an Aadhaar Act, providing statutory sanction to the scheme. Section 7 of the Act authorised the government to make Aadhaar mandatory for subsidies or benefits, which were paid out of the Consolidated Fund. Under the ostensible cover of Section 7, a number of notifications have been passed, making Aadhaar mandatory for a whole range of crucial, life-sustaining benefits: from schoolchildren’s midday meals to compensation for victims of the Bhopal Gas Tragedy.

Before the Supreme Court today, then, the case for the petitioners in Shanta Sinha vs Union of India was simple: seventeen notifications under the authority of S. 7 of the Aadhaar Act, which made Aadhaar mandatory for crucial subsidies and benefits, were illegal, and Section 7 itself was unconstitutional. Moreover, the case was one of utmost urgency: in most of these notifications, the last date for applying was June 30. Given that the Supreme Court was closing for the vacations today, unless some orders were passed, the case would become entirely infructuous. People entirely dependent on these subsidies for their basic survival would have no choice but to enrol for an Aadhaar number, whether they wanted to or not.

To this, the Court’s only response was to decline to hear the case, because the constitutional challenge to the Aadhaar Act was already pending before the Constitution Bench – the same Constitution Bench that had not been set up for a year and nine months, despite every attempt by numerous petitioners to persuade the Chief Justice to do so. Instead, it tagged this challenge to the already pending challenge before that Constitution Bench. Petitioners’ arguments that they would not rely upon the right to privacy – which was the reason why the referral had happened in the first place – had no impact.

Petitioners then requested the Court to at least hear the case on the issue of interim reliefs because – as pointed out above – the entire case would become infructuous by June 30. To this, the Court responded that the Petitioners could only raise the plea of interim reliefs before the Constitution Bench – that same unicorn Constitution Bench that nobody had seen a hoofprint of since August 2015. The Court then said that the Petitioners ought to approach the Chief Justice and mention this – the same Chief Justice who had publicly refused to list the case on a prior mentioning.

Needless to say, there’s going to be no Constitution Bench before June 30. In short, the Supreme Court has effectively decided the validity of seventeen notifications that make Aadhaar mandatory for accessing crucial services in favour of the government without hearing a single argument, not even arguments on an interim stay.

Presumably, judges of the Supreme Court do not live in individual silos. The two-judge bench of Justices Sikri and Bhushan who heard today’s case was surely aware of the non-progress of the Aadhaar case through the Supreme Court over nearly two years. Surely it was aware that there was going to be no listing of anything any time soon. And so, surely these judges knew that by “tagging” this case to the existing challenges before the mythical Constitution Bench, the effect was nothing other than to decide the case in favour of the government.

I have said before that the only proper description of the Supreme Court’s conduct in the Aadhaar case is institutional disingenuousness. In refusing to set up the Constitution Bench to hear Aadhaar, while simultaneously setting up three Constitution Benches in the vacations to hear three other cases (none of which carry the same urgency as this one) and in “tagging” new challenges to the main challenge that is never heard, thereby burying them as well, the Court has effectively ruled in favour of the government on Aadhaar without allowing the petitioners to argue their challenge, and without writing a reasoned judgment that would be subject to public scrutiny.

This, to me, seems nothing less than an abdication of constitutional responsibility through the doctrine of judicial evasion.

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Filed under aadhaar, Access to Justice, Article 21 and the Right to Life, Judicial Evasion, Privacy

Constitutional Problems with the Exclusion of Jurisdiction in the Coal Block Cases

(In this guest post, Abhinav Sekhri takes on from his previous analysis of the Girish Kumar Suneja Case, and demonstrates the various constitutional issues that arise out of the manner in which the Supreme Court has excluded the jurisdiction of the High Courts in certain criminal cases. This essay has been cross-posted from The Proof of Guilt blog).

The Supreme Court did three important things in Order dated 25.07.2014 in Manohar Lal Sharma v. Principal Secretary & Ors. [W.P. (Crl.) 120/2012]:
  • Directed the competent authorities to issue requisite notifications to appoint Mr. Bharat Parashar as a Special Judge to exclusively deal with “offences pertaining to coal block allocation matters”;
  • Transferred all cases pending before courts “pertaining to coal block allocation matters” to the Court of this Special Judge;
  • Clarified that “any prayer for stay or impeding the progress in the investigation/trial can be made only before this Court and no other Court shall entertain the same.”

The Delhi High Court in Girish Kumar Suneja v. CBI [Crl. M.C. No. 3847/2016, decided on 27.10.2016] dismissed a petition under Section 482 Cr.P.C. as being non-maintainable, being of the view that the Order dated 25.07.2014 passed in W.P. (Crl.) 120/2012 by the Supreme Court completely excluded the jurisdiction of the High Court (excluding appeals against judgments).

On January 24, 2017, the Coal Bench of the Supreme Court posted a batch of eight connected matters for hearing on the 6th of February (including the challenge against the Delhi High Court order in Suneja). These cases, both directly and indirectly, challenge an important issue of law: the exclusion of the High Court in either appeals, revisions, or writ jurisdiction in the coal block allocation cases. This has been discussed earlier, and I develop those thoughts in this post in support of the position that such an exclusion is unconstitutional.
Testing Article 14
In Anwar Ali Sarkar v. State of West Bengal [AIR 1952 SC 75], the West Bengal Special Courts Act 1950 was struck down as there was no guidance offered by Section 5 of that Act in prescribing which category of cases merited the special procedure, which greatly differed from the ordinary procedure prescribed in the Cr.P.C.
The Supreme Court thus upheld, in principle, creation of a specialised procedure through statute to address a particular category of offences. In Kedar Nath Bajoria v. State of West Bengal [AIR 1953 AIR 404], the majority concluded that the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 suffered from no infirmities when it allowed the executive to selectively send certain cases to Special Courts, as long as they were from a selection of economic offences provided for in the Schedule. Similarly, in Asgarali Nazarali Singaporewalla v. State of Bombay [AIR 1957 SC 503], the Supreme Court upheld the validity of the Criminal Law Amendment Act, 1952, which created a special procedure for the trial of offences under Sections 161, 165, 165A IPC and Sections 5(2) of the Prevention of Corruption Act, 1947 (all provisions now repealed).
In Re Special Courts Bill [AIR 1979 SC 478], the Supreme Court answered a reference under Article 143(1) of the Constitution of India, when the President sought consideration on whether the Special Courts Bill, 1978, was constitutional. On the issue of Article 13, the Justice Chandrachud (as he then was) provided a thirteen-limb test to judge the Bill, and found that it passed muster.
Adopting the tests laid down by the Supreme Court, it is apparent that the Order dated 25.07.2014 is bad in law. It creates a distinct category of cases “pertaining to coal block allocation matters” without specifying the scope and extent of this classification. Nothing is provided to show how the present classification carries any objective, and how it is connected to such an objective in the first place.
Just, Fair, and Reasonable?
The particular classification enforced by the Order dated 25.07.2014 creates a procedure that violates Article 21 of the Constitution, for it is not just fair and reasonable following the test of Maneka Gandhi v. Union of India [AIR 1978 SC 597]. The Supreme Court has, since Vineet Narain [(1996) 2 SCC 199; (1998) 1 SCC 226], reluctantly agreed to monitor investigations in certain sensitive cases. These ‘Court-Monitored Investigations’, have the agency report directly to the Supreme Court during investigation to the complete exclusion of other forums. However, as clearly held in Vineet Narain, the exclusivity came to an end with the completion of an investigation, and regular criminal procedure resumed.
In the present case, the exclusivity continues for the entire duration of the trial, and thus offends Article 21 of the Constitution. The concept of a fair trial is embedded within the notion of Article 21, and the idea of a fair trial encapsulates within it the concept of effective forums of Appeal. The adjudication in appeal or extraordinary situations by a constitutional court, i.e. the High Court, is certainly part of the fair trial guarantee under Article 21. The decision by a Division Bench of the Supreme Court in Shahid Balwa v. Union of India [(2014) 2 SCC 687] where such an exclusion was upheld must be reconsidered. The nebulous concept of ‘large public interest’ cannot override the concrete constitutional guarantees made to every person under the Constitution of India.
As the denial of adjudication by the High Court for only a vague category of persons is clearly contrary to Article 21, it must then be determined whether there is any law to save such discrimination. The order dated 25.07.2014, would not be law for the purposes of Article 21, and therefore nothing saves the violation of Article 21 in the present case.
Violating the Basic Structure?
The very exercise of the judiciary creating a special procedure for the trial of certain offences is contrary to the Basic Structure. The creation of offences, and the creation of their procedure, is a function well-vested with the Legislature in the separation of powers fundamental to the Constitution’s basic structure. Such usurpation of power offends the system of checks and balances that is inherent in the Constitution. It is akin to the process of re-promulgating ordinances, which a Seven-Judge Bench of Supreme Court recently held to be a fraud on the Constitution [Krishna Kumar Singh & Anr. v. State of Bihar & Ors, Civil Appeal No. 5875/1994, decided on 02.01.2017].
Furthermore, the Supreme Court in L. Chandra Kumar v. Union of India & Ors. [(1995) 1 SCC 400] found the complete exclusion of judicial review by the Administrative Tribunals Act, 1985 to be contrary to the basic structure of the Constitution. The power of the High Courts under Article 226/227 was specifically found to be part of the Basic Structure by the Constitution Bench in L. Chandra Kumar. Therefore, the exclusion of jurisdiction perpetrated by the Order dated 25.07.2014 is illegal, and accordingly cannot be given effect to.
Although it is settled that judicial orders are outside the purview of Part III of the Constitution [Naresh Sridhar Mirajkar, AIR 1967 SC 1], this cannot be utilised to do indirectly what is impermissible directly. A Seven-Judge Bench of the Supreme Court in A.R. Antulay v. R.S. Nayak & Ors. [(1988) 2 SCC 602] reviewed and set aside orders passed by another bench of the Court in proceedings whereby a special, but illegal, procedure was created to address the trial of certain offences against the erstwhile Chief Minister of Maharashtra. While doing so, it was observed that “the power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal. Parliament alone can do it by law. No Court, whether superior or inferior or both combined can enlarge the jurisdiction of the Court or divest the person of his rights of revision and appeal.”

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Filed under Access to Justice, Article 21 and the Right to Life, Article 226 Remedies, Basic structure, Equality, Jurisdiction

ICLP Turns Three :: Thoughts on Legal Scholarship and Access to Courts

The Indian Constitutional Law and Philosophy blog turns three years old today. In its first year, I wrote this blog from the splendid isolation of a foreign country. Over the last two years, however, I have written it from the vantage point of a practicing lawyer, embedded within the legal system. The purpose of this blog has always been to contribute towards building a constitutional culture, and to initiate and participate in constitutional conversations. My time back in India has revealed to me several structural barriers standing in the way of this goal. This time last year, I wrote about academia’s abandonment of serious doctrinal scholarship, and how that is at least partially responsible for the breakdown of communication between the bar/bench and the academy. This time, I want to focus on access.

The Supreme Court has often spoken of our open and transparent justice system, something which is central to a well-functioning democratic republic. It stands to reason that constitutional conversations can only take place in an environment where the legal system is accessible. In that sense, the default language of the Courts (English) already excludes a very significant segment of our country’s citizens. Without minimising the seriousness of that issue, however (and its far too layered a problem to discuss in a blog post), here I want to highlight two very specific problems of access.

The first is physical access. To enter the Supreme Court, an ordinary person (who is neither a lawyer, nor a litigant) needs to have a pass that is signed off by an Advocate-on-Record (and the pass is issued only for one courtroom). This seems to me to be a complete negation of the principles of open justice. Why have a small group of lawyers been made the gatekeepers of the highest court in the country? Why cannot a citizen of the country get up one morning, and say to himself, “let me see how the Supreme Court dispenses justice“, and proceed to the Supreme Court to observe matters being argued (like you can do in the UK and the US)? If open justice is to mean anything, then surely it means that physical access to the Supreme Court ought to be a matter of right, and not a matter of whether I know an Advocate-on-Record.

An immediate objection to what I have just said is to point out the problem of overcrowding. This is admittedly a problem, but it is a problem that can be resolved in ways that do not involve this kind of iniquitous exclusions. The US Supreme Court, for instance, follows a first-come-first-serve pass-issuance system, and on the days of big-ticket cases, people queue up from early in the morning. Why can’t the Supreme Court do the same? If the further issue is the number of matters heard by each bench during the course of the day, then there are other ways (once again) of solving that; for instance, recently, someone suggested that each day’s cause list be divided into two, with the first half (to the extent possible) being heard in the morning, and the second half being heard in the afternoon. This suggestion was made in the context of preventing lawyers’ overcrowding, but is equally applicable to issuing passes (e.g., issue separate passes for the morning and the afternoon session).

There is, of course, the simplest solution: live video streaming of courtroom proceedings, on a dedicated Supreme Court online channel, as well as published transcripts of hearings. The courts have always been resistant to this proposal, however, and it seems a very long way away.

I fully accept that resolving the overcrowding-access issue is not an easy task. But surely the present system is makes the problem worse. It is a matter of some surprise to me how much this system has been internalised: I have never heard a judge or a senior counsel mention it as a problem that needs to be solved. If you take a step back and think about it, it seems (at least to me) obvious that – to repeat – making a small group of lawyers gatekeepers of the Supreme Court, the highest court of the land, the embodiment of the republic’s justice system, is really at odds with the ideals of the Constitution.

Physical access is one side of the problem. The other side is lack of access to court documents. At this point, as a general rule, all we have access to is the final judgment of the Court. In recent years, the Supreme Court has taken to recording the submissions of counsel in great detail (part of the reason for the increasing length of judgments), but this is not adequate. Judgments often fail to record submissions, or mis-record them. I have examples of both. The recent criminal defamation judgment, for instance, ignored several crucial legal arguments against the constitutionality of criminal defamation (its history as a public order offence and the inconsistency between the civil/criminal standards, to name just two). And during the hearings in the NJAC case, Mr Arvind Datar argued that Article 124C of the 99th Amendment violated the basic structure by converting a constituent power into a legislative power. This submission is recorded in the leading opinion, but in a manner that the core of the argument appears as something else entirely. However, even with the best will in the world, and with neither error nor avoidance, if a case is a conversation between the bench and the bar, what we have right now is a monologue that makes a feeble pretence at a conversation. Counsels’ submissions are, ultimately, only refracted through the lens of the judge’s understanding.

Compare this with the American SCOTUSBlog, for instance (and other linked sites), through which you can access briefs of the parties. And it makes a difference. Recently, while researching on some judgments delivered by the South African Constitutional Court, I also read the “Heads of Argument” submitted by counsel for the petitioners and the respondents. It immediately enriched my understanding of the case: I could see where both sides were coming from, how the Court responded to them, what arguments it found persuasive, and which it didn’t engage with.

The situation has improved somewhat in this past year, with the advent of websites such as LiveLaw, which have, on occasion, made petitions available in soft copy. It is nowhere near satisfactory, though. And in the absence of access to written briefs, it is scarcely surprising that reporting on Supreme Court proceedings is so problematic, and so inaccurate. I am not blaming the media here – in fact, it has happened to me as well. I once happened to be in Court during the hearing of an interesting case. I took notes, came back, and blogged about it. My notes turned out to be full of errors, and I had to hurriedly take down the post, with some degree of embarrassment. But what else do you expect? There will invariably be a lot that is lost in translation. Once again, you could remedy this with transcripts and/or video recordings. But with neither that option on the table, nor access to written documents, the conversation that we are having around our courts (and not just in constitutional cases) is, and will remain, severely impoverished.

Furthermore, it is not simply a matter of access. It is also a matter of democratisation. Presently, almost all constitutional matters are argued by a very small pool of senior counsel. I don’t want to get into the reasons for that here, but the conversation surely needs to be taken beyond twenty lawyers speaking to thirty judges.

Once again, there is a simple solution. Make the petitions available online, after they are filed in court. They are, after all, public documents. We shouldn’t need to file an inspection slip in the Supreme Court for an hour-long glimpse at the file (something only that lawyers engaged on the brief can do in any case). And after written submissions are handed over in court, and become part of the record, make them available online as well. Let us see what was argued. And let us also see how the Court chose to respond to those arguments, how it engaged – or didn’t engage – with them.

It is probably too much to expect an overburdened Registry to do this. However, it could be very easily done by briefing counsel and senior counsel chambers. They could put up their submissions online on Google Drive, or on Scribd, or on any other platform where it can be accessed and downloaded. For my part, I have created a new page on this blog called “Court Documents”, and I invite lawyers working on constitutional cases (if any of them comes across this post!) to send me links to soft copies of their submissions, after they have been filed in court (my email address is on the “About” page). I hope that, by this time next year, that webpage will not be as desolate as it is now, at the moment of its birth.

In many ways, it has been a deeply frustrating year for Indian constitutionalism (as was the last year, and the year before that, for that matter). But it remains, as ever, a pleasure and a privilege to think and write about the Constitution on a regular basis, and as ever, I remain deeply grateful to readers, commentators (both on the blog and through email), and of course, to the guest posters that I have hounded relentlessly, for helping me build the conversation. May it continue and get better.

G.B.

 

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Filed under Access to Justice