Guest Post: Seeking Proportionality in the FCRA – International and Comparative Perspectives

[This is a guest post by Viraj Thakur.]

---

Introduction

NGOs are often funded by foreign sources. However, the ease with which they can acquire such foreign funding differs based on the object and jurisdiction of the NGO. For instance, the United States has specifically exempted NGOs from the purview of the Foreign Agents Registration Act (“FARA”), which involves the receipt of foreign funding by entities undertaking political activities. The Declaration on Human Rights Defenders, adopted by the United Nations (“UN”) General Assembly in 1998, highlights the role of NGOs (among others) in protecting human rights; it is pertinent to note that the declaration does not contain any clause regulating foreign contribution. In fact, as noted by the Special Rapporteur on the rights to freedom of peaceful assembly and of association, UN treaty bodies have found regulations on fundraising based on the origin of funding deeply problematic.

India, however, has a strict regime for regulating foreign funding to NGOs, implemented through the Foreign Contribution (Regulation) Act, 2010 (“FCRA”). The legitimacy of the act has recently been hotly debated with the search of Harsh Mander’s home, which some view as a ‘vindictive witch-hunt.’ These searches were carried out due to alleged FCRA violations by Harsh Mander’s NGO, Centre for Equity Studies.

The FCRA was amended in 2020, and these amendments were challenged in Noel Harper v. Union of India (2022). However, in this case, as has been argued earlier, the judiciary omitted legal principles entirely, presenting rhetoric as a substitute, entirely glossing over the question of proportionality.

Naturally, now, a question arises. If the FCRA is disproportionate, can a rational nexus be struck between the purpose of the Act and the means adopted? In other words, what alternatives can be adopted to make the impact of the FCRA proportionate?

In this article, I shall attempt to answer this very question. First, I consider international standards in regulating foreign funding to NGOs. I focus on a recent report released by the Financial Action Task Force (“FATF”) and focus on policy-based improvements. Secondly, I look closely at the Foreign Donations (Voluntary Activities) Regulation Act, 2016, which is in force in Bangladesh, to suggest means to temper the FCRA while pointing out a notable problem in both. Finally, I look at an international judgement which provides for a specific test of proportionality in dealing with the right to freedom of association of NGOs. In doing so, I argue for greater proportionality within the FCRA by suggesting measures to improve the existing shortcomings.

International Standards in Regulating Foreign Funding to Civil Society

While entities such as the UN believe that foreign funding must not be regulated, bodies such as the FATF have noted before that terrorist funding to NPOs (non-profit organizations) can pose a threat to a country. To this end, the FATF recently released a paper detailing best practices in dealing with such a situation, which may provide some answers as to how to balance the right to freedom of association of NGOs and national interests. Relying on this FATF paper, my primary objective shall be to propose a framework that would push India towards a rational policy intervention via the risk-assessment model proposed in the paper.

The first step would be to conduct a survey in order to determine which organizations fall within the FATF definition of an ‘NPO’:

A legal person or arrangement or organisation that primarily engages in raising or disbursing funds for purposes such as charitable, religious, cultural, educational, social, or fraternal purposes, or for the carrying out of other types of “good works.”

The next step is to identify any “vulnerabilities”(sectoral or organisational) that can be exploited by “threats” (referring to terrorist funding or misappropriation). According to the report, if no action is taken at all, NPOs serving as fronts for terrorist funding may infiltrate civil society. However, overregulating the sector can create regulatory barriers that can force legitimate NPOs to shut down. These vulnerabilities must be assessed based on data analysis, and not just rhetoric.

Next, public consultations and greater deliberation on legislative action is a must. This must be done periodically, as using tenuous and old data is unlikely to allow a balance between the spectrum of no action and overregulation, as the report shows. Additionally, involving the primary stakeholders will help build trust and ensure a balanced approach through the inclusion of diverse perspectives. Moreover, as noted in Annexure A to the report, the 2023 French National Risk Assessment involved a systematic analysis of NPOs and the risk of terrorist funding affecting them at a national-scale. In doing so, it also established certain classes of NPOs that may be more susceptible to terrorist funding. For example, NPOs that provide humanitarian aid in conflict areas/high-risk areas may warrant greater scrutiny than another NPO not fitting these criteria. Hence, creating intelligible differentia between groups of NPOs is another step to be considered, to prevent disproportionality.

Lastly, financial transactions of registered NPOs that utilize foreign funds can be made public to promote transparency. In India, currently, only a state-wise list of organisations registered under the FCRA is available, but not their financial statements.

The government must ensure that it does not discourage social welfare altogether. Regulation is important, but taking a rational research-driven approach is the first step in ensuring balanced regulation.  The normative message it ends up sending to NPOs currently is to enter at their risk and find their own sources of funding—resorting to foreign funding brings too many regulations and too much additional risk. 

Manifesting Proportionality via the FDVA in Bangladesh

Another good starting point may be a similar legislation from Bangladesh. The Foreign Donations (Voluntary Activities) Regulation Act, 2016 (“FDVA”) deals primarily with NGOs, and bears strong resemblance to the FCRA. However, it is less stringent in terms of imposing strict requirements on NGOs receiving foreign funding, and hence may serve as a reference point for tempering the language of the FCRA.

Section 7 of the FDVA, for instance, deals with the same subject matter as Section 7 of the FCRA, i.e., dealing with transfer of foreign funds between NGOs. Yet, their approach is radically different. The FDVA allows the transfer of foreign funds between NGOs, provided three basic conditions are met:

• The entity receiving the grant must be a registered organization under prevalent laws of Bangladesh;
• The NGO granting foreign funds must provide a proposal of the project to be undertaken. This proposal must include the details of the NGO receiving funds and contain an outline of the funds to be granted;
• The granting NGO or individual shall guarantee the implementation of the project in accordance with the conditions of approval of the project.

Section 7 of the FCRA instead imposes a blanket ban on any transfer of foreign fund, without any specific rationale. One of the reasons for such routing of funds is that large NGOs support smaller ones that do work at the grassroots level. It was noted in the parliamentary debate over the FCRA that this provision has been made absolute for no well-defined reason.

Furthermore, a parallel can be drawn between Section 9 of the FDVA and Section 17(1) of the FCRA, both providing for the bank account in which an NGO may receive foreign funds. While the former allows an NGO to open a bank account in any scheduled bank, the latter requires an NGO receiving foreign funds to open an account in an SBI branch in New Delhi. Moreover, as was pointed during the parliamentary debates over the amendment, there was no cogent rationale for this move. This is especially worrying, given that 93% of NGOs have accounts outside of Delhi.

Finally, Section 17 of the FDVA provides for an appellate tribunal in case of grievances and prescribes a time limit for redressal. Instituting such an alternate mechanism in India would be ideal, given that the delays of the Indian legal system imply that any NGO challenging its FCRA license being suspended, would find itself embroiled in a long struggle of litigation. This would impose another financial barrier on the NGO, making it harder for them to function. Currently, no such dedicated mechanism exists in India.

One common issue can be spotted in both legislations. Section 8 of the FCRA and Section 6(5) of the FDVA both prescribe that foreign funds can only be used to meet up to 20% of administrative expenditure requirements.

In the context of India, reading Section 8 in conjunction with the Foreign Contribution (Regulation) Rules, 2011 (“the Rules”) shows that under Rule 5, only expenses that are associated with field work or directly with the purpose of the organisation can be met freely through foreign funds. Anything else is categorised as ‘administrative expenditure.’ In light of the same, how does the Centre expect NGOs to expand, when foreign contribution can no longer be used to meet expenses such as rent, legal charges, accounting charges, etc? Such a severe restriction on the usage of administrative expenses only impedes social welfare, especially when this particular section has no justification in the FCRA or the amendment bill.

Conclusion

The FCRA has definite fault lines and displays signs of disproportionality. However, attempting more neutral policy making such as that in the FDVA would prove immensely useful for India, as would ensuring an empirical approach derived from the FATF paper. However, it is also important to note that apart from formal requirements such as through the FCRA, informal requirements also pose a hurdle. For example, requiring registration through government officials at the local level (as in Bangladesh, via the FDVA) often means jumping through bureaucratic loops that create prolonged delays. A more holistic policy overhaul must consider this as well in the Indian context too, apart from making the FCRA itself less rights-intrusive. This would allow a balance to be struck between the rights of civil society and national interest for security.

The High Court of Kenya Strikes Down Life Imprisonment

In July of last year, the Kenyan Court of Appeal had struck down mandatory life imprisonment as unconstitutional. As the analysis on this blog noted, the judgment was delivered in a context in which the death penalty in Kenya has not definitively been held unconstitutional (just last week, in fact, a Kenyan Court controversially handed down a death sentence). However, even as the debate around the death penalty continues, the High Court – in a judgment delivered on 19th March 2024 – held life imprisonment itself to be unconstitutional.

The judgment – Justus Ndung’u Ndung’u vs Republic, authored by Justice Nixon Sifuna, is remarkably short, coming in at six pages. It was an appeal from both a conviction and a sentence (for incest), and indeed, much of the judgment is concerned with re-appraising evidence. The Court finds that the conviction was justified, and upholds it. This then brings it to the question of sentence: the magistrate had imposed a life sentence. The Court finds it unjustified not specifically on the facts of this case, but rather, on the basis that the sentence of life imprisonment itself is unconstitutional. The heart of the analysis is in paragraph 10, where the Court notes:

A life sentence is a sentence sui generis. In that, whereas it is philosophically supposedly imprisonment for a duration of time only, it is in actual sense imprisonment that is indeterminable, indefinite, uncompletable, mathematically incalculable, and therefore quantifiable only for the convict’s entire remainder of his lifetime.

Variants of this analysis are repeated in the succeeding paragraphs, before Sifuna J concludes that the sentence is, therefore, archaic, unreasonable and absurd, and violates the right to human dignity under Article 28 of the Kenyan Constitution (paragraph 17). Reconstructing the reasoning, at its heart, the issue appears to be that unlike all other sentences, life imprisonment is not definite, but pegged to a contingent event (the end of the convict’s life), which could happen at any given time. Sifuna J. therefore compares it to the death penalty (paragraph 16), and also highlights the potential absurdity of a person who dies in prison soon after being sentenced for a heinous crime, as opposed to another person who spends years behind bars for a less serious crime (paragraph 12).

Neither of these two arguments are, however, entirely convincing. The analogy with the death penalty is striking and powerful, but it is unclear if it supports the argument for unconstitutionality, given that the death penalty itself has not been struck down yet (in fact, a situation where life imprisonment is unconstitutional but the death penalty is constitutional feels somewhat anomalous!) And the potential absurdity of someone dying an early death behind bars is not quite an absurdity if we consider that the primary penological goal of life imprisonment is prevention – i.e., to prevent a convict from committing a crime again. From that perspective, there is nothing particularly absurd about a convict dying soon after being sentenced, as there is no question of recidivism after death. It is, of course, another matter whether punishment based solely on prevention, and completely ignoring reformation or rehabilitation, can pass constitutional muster; that, however, is not considered in the judgment.

We therefore come back to the question of indefiniteness, and the violation of the right to dignity. I think that the argument – although it is not spelt out in the judgment itself – is essentially one of dehumanisation, or considering the convict purely in instrumental terms. In assuming that an individual can never be re-integrated into society, the life sentence entirely strips them of agency, or the ability to make different choices in the future. The locus of the violation of human dignity, I would suggest, lies in this assumption.

Two points then arise with respect to the judgment itself. The first – as noted above – is that the judgment does not, in its consideration of the dignity question, engage with penology, or the goals of criminal punishment. In my view, striking down a sentence provision as unconstitutional is difficult without at least considering what the stated goal of the punishment is, and how the punishment itself relates to that goal. Indeed, that is a vital element of the proportionality test, which is the overarching basis of constitutional challenges, especially of this nature. Indeed, the paragraph above – that attempts to excavate the normative basis for the indefiniteness argument – finds itself going back to the penological goals of the life sentence (as it must).

The second point is a point of procedure: notably, it does not appear that the constitutionality of the life sentence was challenged in this case (if it was, then the entirety of this paragraph can be ignored). I do not have access to the pleadings, but let us go by the Court’s own framing of the question of sentence: “Whether the imprisonment sentence imposed by the trial court was unreasonable, excessive, or too harsh.” This is not the language of a constitutional challenge, but a plea for sentence mitigation on the facts of the case. The question then arises: can the High Court strike down the life sentence without it being under challenge? Would not, for example, the State have to be put to specific notice, so that it can defend the constitutionality of the sentence in those specific terms?

While, therefore, I agree with the High Court’s decision to strike down the life sentence, and I find locating the analysis in how indefiniteness violates the right to dignity, the Court’s reluctance to engage in a full-blown analysis of the dignity question (including applying the proportionality test), as well as the possibility that there was no constitutional challenge made, might leave the judgment vulnerable upon appeal. It will be interesting to see what happens at the Court of Appeal!

The Supreme Court’s Electoral Bonds Judgment – III: A Critique of Double Proportionality [Guest Post]

[This is a guest post by Chiranth Mukunda.]

---

This essay considers the doctrine of “double proportionality” in the Electoral Bonds Case. In brief: the majority opinion, written by Chandrachud CJI, holds the various amendments brought through the Finance Act 2017 unconstitutional for being in contravention of right to information protected under article 19. Once it is established that the foundational design of the scheme was to make political donations through electoral bonds confidential, the enquiry proceeds to analyse whether the right to information is engaged (i), and whether the restrictions placed on right to information are reasonable and justified (ii).  On aspect (i), the court, following Association for Democratic Reforms (2002) and PUCL (2003), holds that information about political funding is essential for the voter to exercise choice and their freedom to vote, and as a corollary, for the effective exercise of freedom of speech and expression. Aspect (ii) is where the application of proportionality and double proportionality is used by the majority to determine whether the restriction of the right to information is reasonable vis-à-vis the purpose(s) of the scheme. Hence, In part I, I highlight the necessity of application of the double proportionality. In part II, I analyse whether the test of double proportionality is correctly laid down.

Balancing fundamental rights

Chandrachud CJI recognizes two purposes of the scheme in restricting access to information. These are then assessed on the touchstone of proportionality i.e., whether the abridgement of the right is disproportionate to the legitimate aim sought by the purpose(s)/objective(s) of the scheme.

Chandrachud CJI identifies the two purposes of the scheme as a) curbing black money and b) donor privacy. The majority opinion accepts the State’s’ submission that donor privacy or confidentiality is not only a means to achieve the aim of incentivizing political donations through legitimate banking channels, but also a substantive end in itself. It therefore holds that “the Constitution guarantees the right to informational privacy of political affiliation” under article 21, and that extends to political donations being confidential (para 141). Having held so, the question now is whether the Electoral Bond Scheme adequately balances the right to information against right to informational privacy of political affiliation.

Donor privacy as a legitimate aim and double proportionality

According to the majority, the conflict is between the right under restriction i.e., the right to information (Right A) and the countervailing right i.e. right to privacy of the donor (Right B). The traditional balancing exercise to resolve or avoid the conflict can be conducted by various means, for instance:

• It can be held that the right A trumps right B because the former right subserves the ‘larger public interest.’
• Alternatively, it can be held that held that there is ‘no real conflict’ between the rights either because one of the rights is not engaged, or the boundaries of the rights are circumscribed in such a way as to avoid conflict.

However, the application of proportionality in the ‘contextual balancing’ exercise between two competing rights is considered to bring in a ‘structured balancing exercise’ where both rights are given equal importance and weightage. It will be fruitful to highlight the reasons for double proportionality in balancing two fundamental rights, in order to analyse the test laid down by Chandrachud J (Para 157), and whether it is in consonance with the principled reasons behind the application and structure of the double proportionality test.

Reasons for Double-Proportionality

Reason 1: Equal Importance of both competing rights

In Re W,  reason 1 was expressed in these terms: “… each Article propounds a fundamental right which there is a pressing social need to protect. Equally, each Article qualifies the right it propounds so far as it may be lawful, necessary and proportionate to do so in order to accommodate the other”.  Application of the double-proportionality test to balance two competing rights of equal importance is said to secure ‘procedural justice’ by recognizing that both rights require full protection, and that this is accomplished by application of the proportionality test to the restriction on each right. It structures the enquiry in ways that minimizesthe interferences with both right A and right B, thereby giving fair and equal value in the enquiry to both the interests exemplified by competing rights.

Reason 2 : Single-Proportionality favours the right under restriction (Right A) over the competing interest of Right B

Chandrachud CJI recognises that the ‘priority-to-rights’ effect of proportionality enquiry, as it tends to give prominence to the fundamental right under restriction over the competing interests (para 153), and that single proportionality might not be appropriate when two fundamental rights are involved. When the competing interest is a fundamental right in itself, the prominence given to the ‘invoked right’ i.e. restriction of right A under challenge in the proportionality enquiry cannot be a ‘balanced exercise.’ This is because single proportionality enquiry, especially in the third stage, requires the minimization of interference to the right under restriction (right A) at the expense of the competing interest.

For example, the conflict in Campbell v MGN was between freedom of speech (Right A) and the right to privacy (Right B), both of which are equally protected rights under the ECHR. If the court were to adopt a single proportionality test to review the restriction of the invoked right (A), the furthering of competing right B would form the legitimate aim and the restriction of the right to freedom of speech (A) would have to have a rational nexus to the protection of privacy (right B). However, in the third stage, the court would have to consider whether the restriction on right A is the “least restrictive measure” to further the competing interest of right B. This entails prioritizing and maximizing the protection of right A, but not maximizing the interests of competing right B. This is incompatible with the proposition that both rights require equal and full protection.

Reason 3 : Single Proportionality is insufficient to take into account the interest of the competing right

It should be noted that it is not conceptually impossible to account for the fundamental importance of the competing interest (Right B) within the single proportionality test while testing the restriction of right (Right A). However, it would require modification, or what some call ‘distortion’, of the single proportionality test in order to recognise the importance of the competing fundamental right. For example, the third stage of proportionality would require not the maximum protection of right under restriction to which proportionality is applied, but maximum protection for both the rights. Instead of asking the question whether the measure is least restrictive of the right under restriction (A) and achieves the end in ‘real and substantial degree,’ the question would be whether the alternative measure would be least restrictive of both rights and achieves the purpose in ‘real and substantial degree.’

Then, the third stage of proportionality test is no longer about prioritizing and providing maximum protection to the right under restriction, but an equilibrium position of right under restriction and competing interest (right B).This modification is considered unsatisfactory for giving maximum protection and importance to both right A and right B. Therefore, double proportionality is envisaged as the same question being examined from two perspectives, rather than two different perspectives being considered under a single proportionality review of restriction on one right (invoked right). This flows directly from the reason 1 that both the rights are fundamental and deserve equal importance and consideration.

Chandrachud CJI’s three-step test

The major case after Campbell v. MGN  where the ‘balancing of rights’ was required was In Re S. The facts were that there was a gag order on news outlets, to prevent the publication of details and photographs of a 5-year-old child whose brother had been killed by their mother. The case concerned a conflict between freedom of speech of the newspapers (invoked right) and privacy of the child (competing right). Lord Steyn laid down the four propositions for the ‘ultimate balancing test’, last three of which include those laid down by Baroness Hale in Campbell, which Chandrachud CJI relies on.

First, neither Article has precedence over the other.

Secondly, where the values under the two Articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary.

Thirdly, the justifications for interfering with or restricting each right must be taken into account.

Finally, the proportionality test must be applied to each.

Chandrachud J modifies this test by holding that that second and third propositions are subsumed within the balancing (fourth) prong of the proportionality analysis. Further, he holds that:

a. if under the constitution, no hierarchy has been presented for the rights under consideration (firstly above), then :

the following standard must be employed from the perspective of both the rights where rights A and B are in conflict:

b. Whether the measure is a suitable means for furthering right A and right B.

c. Whether the measure is least restrictive and equally effective to realise right A and right B; and

d. Whether the measure has a disproportionate impact on right A and right B.

However, it is argued below that this distorts the double-proportionality enquiry and prioritizes the right under restriction (right A) over competing right B, and approximates towards a modification of single proportionality test, rather than a double-proportionality test. This is essentially evident from the subsequent analysis which Chandrachud CJI undertakes, where the contradictions of the test he lays down become apparent.

Subsequent Analysis and Contradictions

The first prong of proportionality is satisfied as each right ( A and B) provides a legitimate aim for the restriction of other.

On proposition (b):

 (b): Whether the measure is a suitable means for furthering right A and right B.

The question is framed in such a way that it is not possible to fulfil the requirement of suitability from both sides but is only possible from the side OF the invoked right (Right A). As Chandrachud CJI holds, the measure that places restriction on right to information(right A) is suitable for purpose of realizing the informational privacy of the donor (right B). However, the measure can never be suitable for purpose of realizing the right to information (right A).

“… the purpose of securing information about political funding can never be fulfilled by absolute non-disclosure. The measure adopted does not satisfy the suitability prong vis-à-vis the purpose of information of political funding. However, let us proceed to apply the subsequent prongs of the double proportionality analysis assuming that the means adopted has a rational nexus with the purpose of securing information about political funding to voters.”(para 162)

This is obvious. It is because the anonymity of the contributor (privacy of the donor, right B) is intrinsic to the Electoral Bond scheme (para 158). The measure can never be suitable to realise right to information (right A) because the measure places no restrictions on the right to privacy (B). It is the invoked right A i.e. right to information which has the potential to place restrictions on competing right B if the challenge is successful. The court’s responsibility is to balance the involved right against the competing right by application the proportionality analysis separately to right each, by considering protection of each as a restriction on another.

Is the question posed by Chandrachud CJI analytically sound for application of Double-Proportionality analysis? The answer is no. As Prof. Huge Collins commenting on Campbell v HGN and  In re S writes : “Given that there are [equal]competing interests, rights…the correct approach appears to be a double proportionality test. In other word, the case for interference with the separate rights of each party needs to be assessed separately according to a test of proportionality. The legitimate aim that may justify such an interference with a fundamental right ….include the protection of the fundamental right of the other party”

As Chandrachud CJI himself opines, the “standard must be employed from the perspective of both the rights where rights A and B are in conflict”. So, the question must be whether the restriction of the invoked right A (right to information) by the measure is suitable/rational to achieve right B (right to privacy). The answer might be yes/no. On inverse application, the question would be whether the potential restriction on competing right B (right to privacy) by protection of invoked right A is suitable/rational to achieve right A (right to information). The answer might be yes/no. There is no logical impossibly, as Chandrachud CJI finds to be engaged by the question framed. The assumption which Chandrachud CJI makes could be avoided if there was true application of the double proportionality test as shown in the table below.

It might be said that separate application of proportionality to each right considering the other right as legitimate aim is merely unnecessary repetition that has no substantive bearing on the final conclusion reached. However, that is not the case, as a single proportionality review in case of conflict of two equal rights has the potential to skew the balance in towards the invoked right to the disfavour of the competing right that is furthered by the measure. The ‘preferential framing’ negates the reasons mentioned above for balancing two equal fundamental rights by applying double-proportionality test. The test ensures that both the rights deserve maximum judicial protection by application of proportionality test to the restriction on each right.

Restriction of invoked right A (first stage)	Potential Restriction of  competing right B by the invoked right ( second ‘inverse’ stage)	The test Chandrachud CJI lays down
Legitimate aim: Conflicting operation of right B of equal value.   Suitability/rational nexus: Whether the restriction of right A is suitable to realize right B. Whether the restriction on right A is least restrictive measure and equally effective and whether the alternative such measure realizes the purpose of right B in real and substantial degree.     Balancing stage: Comparative importance of fundamental rights and justifications for restrictions on the same; Whether the restriction on right A is disproportionate to the purpose of right B	Legitimate aim: conflicting operation/protection of right A of equal value.   Suitability/rational nexus: whether the restriction of right B suitable to realize right A     Whether the restriction on right B  is least restrictive measure and equally effective to realise  and whether the alternative such measure realizes the purpose of right A in real and substantial degree     Balancing stage: Comparative importance of fundamental rights Justifications for restrictions on the same. Whether the possible restriction on right B by invoking of right A disproportionate to the purpose of right A	b. Whether the measure is a suitable means for furthering right A and right B.   c. Whether the measure is least restrictive and equally effective to realise right A and right B; and    d. Whether the measure has a disproportionate impact on right A and right B

On proposition (c)

Consider question (c): Whether the measure is least restrictive and equally effective to realise right A and right B.

If we bifurcate the question into two parts as Chandrachud CJI does for the above question (b), then we see that the question is either illogical (as it is similar to the above), or prioritizes the invoked right against the competing right B. Non-bifurcation essentially becomes a modified version of the necessity stage of single-proportionality test (reason 3).

i. whether the measure is least restrictive [on right A] and equally effective to realised right B [right to privacy].

The framing of this question itself prioritizes right A over right B. This is because right B i.e., the right to privacy is intrinsic to the measure. The question effectively being asked is whether the restriction on right to information (right A) by the measure (in furtherance of right B) is the least intrusive. This is prioritizing and  maximization protection offered to the invoked right against the competing right B that is effectuated by the measure.

However, if the question is asked differently, i.e. whether the alternative measure would be least restrictive of both rights and achieve the purpose in a real and substantial manner( conjoined question), it is then merely a modification of the least restrictive stage in the single-proportionality test to take into account of the competing right B, with limitations of that approach to effectively maximize the protection of both the competing rights (as explained in Reason 3).

ii. whether the measure is least restrictive (on right B) and equally effective to realise right A (right to information).

The measure is not placing any restrictions on right to privacy (right B), but is placing restrictions on right to information (right A). In fact, right B is intrinsic to the measure. If that is the case, the question is redundant. However, it is not redundant if the question is whether the alternative measure would be least restrictive and equally effective to realise rights A and B. But the question is not framed in that way.

Chandrachud CJI previously holds that the measure can never be suitable to realise right to information (right A). If that is the case, then this question is also one of logical impossibility, as a measure which can never be suitable to realise A can never be the least restrictive means of doing so. However, Chandrachud CJI avoids the second logical impossibility by framing the question conjoinedly as mentioned above.

Example: How would the third stage work in proportionality, applied separately from both perspectives

It would involve asking the same question from perspective of both right A and right B. From the perspective of right A, the question would be whether the restriction of right A is least restrictive means of realizing interest of right B. From the perspective of right B, the question would be whether the restriction on right B would be the least restrictive measure to realize right A. On the latter question, it might be said that there is no restriction on right B. However, the double-proportionality enquiry is merely tasked with balancing competing interests of right A and right B in the judicial setting. The competing rights mark a conflict for the space to be occupied by the judicial outcome, where giving protection to one involves restriction on another.

Consider section 29C of the Representation of Peoples Act 1951, which Chandrachud CJI holds to be minimally restrictive of both rights and secures the purpose of both rights in a real and substantial manner (para 165). The said alternative measure has to be considered from both sides as placing some restrictions on each right. Then, the question would be whether such restriction is minimized interference with each right vis-à-vis the purpose (competing right) considered from both perspectives, rather than a single question of whether the measure under challenge is least restrictive of both rights.

On Proposition (d) whether the measure has a disproportionate impact on right A and right B.

This question suggests that the measure can have disproportionate impact on the right B. However, at the risk of repetition, the right B is intrinsic to the measure. The question makes sense only if the question is modified into whether the identified alternative has disproportionate impact on either right. As table A shows, this involves separately asking two questions from two perspective by considering protection of each right (example: in the identified alternative measure) as a restriction on each other.

However, Question (d) is not applied at all as the Chandrachud CJI holds that the necessity stage (c) has not been satisfied, and therefore there is no need of applying the balancing stage (para 167). Having held that double proportionality standard formulated by Baroness Hale in Campbell v MGN is adopted, and having held that the first two components of the Campbell standard of  “comparative importance of the actual rights being claimed in the individual case” and “justifications for interfering with or restricting each of those rights” is to be submerged within the balancing stage, Chandrachud J does not complete the said double-proportionality standard adopted. As discussed above, even the last component of Campbell standard of “applying the proportionality test to each” is not satisfactorily applied, as the questions are framed in a way that prioritizes the invoked right A against the competing right B: thus negating the very reasons for application of the double-proportionality test.

Conclusion

The Court fails to apply proportionality separately to each of the rights. Having held that there were two competing rights, the balancing exercise by application of proportionality in relation to each other is required to give due recognition to the equal importance and maximum protection to each right. Although the outcome of the case might not differ, the propositions laid down suffer from lack of clarity for future application. The question is framed in a way that would either lead to no answers or one which would prioritize the right under restriction i.e., the invoked right A. It is argued in this essay that what the majority opinion effectively applies is a modified single-proportionality test with all the analysis happening in the necessity (third) stage, making most of the questions in the test laid down redundant without a modification in the framing. This, it is submitted, makes the test incomplete.

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

Introduction

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

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

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

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

The Transplant Question

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

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

The Boundary Question

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

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

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

Intersections with Private Law

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

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

Conclusion

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

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

[This is a guest post by Kieran Correia.]

---

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

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

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

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

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

Electoral Funding and the EBS

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

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

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

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

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

Scope of judicial review

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

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

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

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

Political equality and the disclosure of information

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

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

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

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

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

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

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

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

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

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

Proportionality and Double Proportionality

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

Text and Transformation: The High Court of Kenya on the Extraterritorial Deployment of the Police

In October 2023, following a United Nations Security Council Resolution authorising the creation of a Multinational Security Support [“MSS”] for the purposes of deployment in Haiti, various high-level officials of the government of Kenya announced that Kenya would deploy police officers to Haiti under the aegis of the MSS, subject to parliamentary approval (in fact, the UNSC had recorded Kenya’s offer to lead the MSS). Naturally, this proved to be very controversial in the Kenyan public sphere; and soon afterwards, petitions were filed before the High Court, challenging this decision.

There were two questions before the High Court. First, was there an absolute bar on the extra-territorial deployment of police officers under the Kenyan Constitution? And secondly, if not, had the impugned decision followed the correct legal and constitutional procedures to do so? In a judgment delivered on the 26th of January (Ekuru Aukot and Ors vs National Security Council and Ors), the High Court answered both questions in the negative. That is, the Constitution did not prohibit the extra-territorial deployment of the Kenyan police; but the proposed deployment in the present case was illegal.

The High Court’s reasoning on both issues is straightforward – indeed, at first blush, it might appear almost deceptively straightforward. Underlying the judgment, however, are some interesting insights about the underlying purposes of the Constitution of Kenya, its approach towards public power, and issues of textual interpretation.

It was argued by the State that the source of the power to deploy police extra-territorially lay in Article 240(8) of the Constitution of Kenya. Article 240 of the Constitution establishes the National Security Council. Article 240(8) stipulates that “the Council may, with the approval of Parliament … deploy national forces outside Kenya for – (i) regional or international peace support operations; or (ii) otehr support operations.”

The key question was whether the word “forces” included “police.” The High Court held that it did not. It noted that Kenya had no “forces” “other than the Defence Forces, comprising Kenya Army, Kenya Air Force, and Kenya Navy, otherwise called the military.” (para 130) This was made clear by Article 239(1) of the Constitution, which – under the heading of “national security organs” – distinguished between “the Kenya Defence Forces” (Article 239(1)(a)) and “the National Police Service” (Article 239(1)(c)). Textually, therefore, the Constitution intended to draw a distinction between the Forces and the Service (para 131). Consequently, if the State’s argument was to be accepted, Article 240(8) should have read “national forces and services“, or “national security organs” (para 133). The specific usage of “forces”, however, implied that the police was excluded from the purview of Article 240(8). This was further buttressed by the fact that the provisions of Article 240(8) had been incorporated into the Kenya Defence Forces Act, but not in the National Police Services Act (paras 135-139).

Now, one may argue that this is a hyper-textual or mechanical reading of the Constitution. Not so. The High Court’s interpretation can be best understood as one that avoids a power creep by constraining the exercise of public power only to that which is specifically authorised by the Constitution. The importance of this lies in the fact that Kenya’s 1963 Independence Constitution saw a gradual (and then rapid) concentration of power within the office of the President, to the exclusion of other public organs or institutions. The President came to dominate all other institutions, from parliament, to the judiciary, to the commissions. One of the express goals of the movement for constitutional reform – which led to the enactment of the 2010 Constitution – was therefore to prevent a similar concentration of power, which was often achieved through incremental and gradual function creep. To this end, the 2010 Constitution articulates a clear philosophy: in the words of Yash Pal Ghai – one of the architects of the 2010 Constitution – under the document, “the powers of state institutions are prescribed with greater precision; the purposes for which powers may be exercised are specified; and rules are established to remove conflict of interests through codes of conduct and other mechanisms.” Christina Murray, another key figure behind the crafting of the 2010 Constitution, likewise notes that the bitter experience of history drove the drafters to attempt to set out the powers and functions of each body with as much clarity and specificity as possible.

It should therefore become clear that the High Court’s analysis is not simply a pedantic splitting of hairs, but entirely consistent with the Kenyan Constitution’s transformative philosophy regarding public power: in order to prevent (executive) power-creep the Kenyan Constitution requires the Court to rigorously police the boundaries of public power set up under the Constitution, and indeed, it can only do that by insisting that public power exists only where – and to the extent that – it is specifically contemplated and provided for under the text of the Constitution. This, in turn, requires the Court to closely work with the constitutional text and structure to determine where those boundaries lie – and once it has done that, to enforce those boundaries strictly. And this is exactly what the High Court did, as described above.

Did this mean that the the extra-territorial deployment of the police was prohibited? No, as the Court also found no warrant for some of the petitioners’ arguments that the Kenyan Constitution barred such deployment. The Court applied the same rigorous textual approach to find that, insofar as the National Police Service Act did provide for extra-territorial deployment, there was nothing in the text of the Constitution to suggest that this was beyond the law-making power of the Parliament. The petitioners arguments that the relevant provisions (107-110) of the National Police Service Act were unconstitutional were therefore rejected; however, these sections also made clear that extra-territorial deployment could happen only with a “reciprocating country” – a determination that the President had to publish in the Gazette. It was common cause that Haiti was not a reciprocating country under the meaning of the Act, and – consequently – the deployment was illegal.

The High Court’s analysis reveals a remarkable determination to ensure that even in cases involving potential international obligations and high policy, the route prescribed by the Constitution and the laws would have to be followed; as it noted, while the goal of the MSS mission was a noble one, the State could not act except “in accord with the Constitution and the law.” (para 146) This, the State had failed to do in the instant case.

For these reasons, the deployment was held to be unconstitutional. What is particularly interesting about the reasoning, as I have noted above, is the link between close textual reading and transformative constitutionalism: we often tend to associate transformative constitutionalism with expansive interpretation, and close textual reading with judicial conservatism. However, the High Court’s judgment gives us an excellent example of how, sometimes, there is nothing more transformative than utmost fidelity to the text.

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

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

---

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

---

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

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

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

Article 356(1) and the Effacement of Federalism

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

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

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

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

Constitutional breakdowns and irrevocable changes

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

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

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

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

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

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

Conclusion

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

Guest Post: The P&H High Court’s Judgment on Domicile Quotas in the Private Sector

[This is a guest post by Varun Dhond.]

---

Economic liberalisation, privatization and the resultant shrinking share of the public sector, has limited the extent of reservations in employment. One method for States to address this and expand the scope of affirmative action is by passing laws providing for reservations in the private sector. This will give rise to its own set of challenges and will require adjudication by Courts in the future. Another method for States to increase the share of reservation for their people is by introducing domicile quotas. These quotas are often criticised for promoting ‘linguistic chauvinism’ and failing to balance A. 19 freedoms.

The State of Haryana recently adopted a mix of both these methods, which was challenged before the Punjab and Haryana High Court.

The Haryana State Employment of Local Candidates Act, 2020 was challenged before the Punjab and Haryana High Court for (i) being Violative of Part III of the Constitution [specifically A.14 and A.19(1)(g)]; and (ii) the state not having legislative competence, since (a) the law fell within the domain of List I, Entry 81 (Inter-State Migration) of the 7th Schedule and (b) that the State was barred due to A.35, which granted exclusive competence to the Parliament/Centre..

The Act provided for inter alia 75% reservation in private employment (excluding any form of public employment under the Centre or State Govt) for ‘low paying jobs’ for a period of 10 years. According to the State, a large influx of ‘migrants’, competing with locals for low paying jobs, was impacting the local infrastructure, leading to environmental and health concerns. It was thus set out by the State that the law would promote local employment and give the state a buffer of 10 years to develop its local infrastructure to meet the demands of migrant labour. The State further contended that industrial powerhouses were exerting their dominant position to enforce an inequitable bargain with migrant labour to lower the wage benchmark, and that local unemployment needed to be addressed. Thus, the law justified creating a classification based on an intelligible differentia that had a rational nexus to the objects sought. The State also contended that industrial plots were allotted in lieu of 75% local employment as a pre-condition for allotment, but the aspect of allotment wasn’t in lis before the HC.  

There were 4 questions decided by the HC: 

(1) Maintainability: The HC followed settled law that reliefs under writ jurisdiction can’t be denied on technicalities as laid down by the 11 Judge Bench of the SC back in the ‘Bank Nationalisation Case’. The HC thus rightly held that the Petitions were maintainable, since an association of persons could invoke writ jurisdiction, if they had a legitimate interest involved. 

(2) Legality of Reservation in Private Employment: The HC opined that the Law would “destroy the precious heritage of this nation and the identity of the Constitution of India has to be protected”. By relying on Govt. of NCT Delhi v. Union of India, the HC borrowed principles of constitutional morality, which it considered an ‘essential check’ on unbridled power without checks and balances. It further stated the need for ‘cultivating the understanding of constitutional renaissance’ and that constitutional idealism would dictate ‘an implicit trust’ between constitutional functionaries. Thus, the actions of the State to distinguish between citizens of the country based on their domicile would be contrary to the above principles. I am disinclined to agree with the approach of the HC.

The HC followed a peculiar reasoning by holding that the state can’t provide for reservation in private employment, if reservation provided in the same manner, in public employment, is forbidden. While doing so, however, the HC failed to explain exactly how reservation in the public employment, if provided in the same manner, is barred. In the case of M Nagaraj, the SC had upheld reservations in promotions for SC/ST’s, relying on the flexible/dynamic nature of the constitution. While doing so, the SC laid down three tests (referred to as the ‘triple test’) which needed to be fulfilled when granting reservation in public employment. The HC failed to conduct such an exercise or engage with what are the legal standards or tests which will be needed to be applied by Constitutional Courts when evaluating/interpreting laws dealing with reservation in the private sector.  

The HC thus failed to decide the fundamental question, on whether reservations in the private sector are constitutional. The consequent question that thus arises is whether the triple test of Nagaraj ought to be applied to private reservations as well. This was a question which required adjudication by the HC as it is an issue that is likely to persistently arise in the future.

(3) Legislative Competence of the State to pass the Law was challenged on 2 grounds:

(a)  Specific Bar under A.35 r/w. A. 16(3): The HC rightly rejected this contention and held that the bar under A. 16(3) was only qua public employment and thus wouldn’t apply to the Law in challenge.

Nevertheless, the HC went on to conclude, based on the merits of the law, that it was “beyond the purview of the State to legislate on the issue and restrict the private employer from recruiting from the open market”. While doing so, the HC referred to a constitutional bar against discrimination of citizens based on their place of birth and residence, without considering the fundamental distinction (see below). While acknowledging that A. 16(3) will not be applicable to private employment, the HC followed a similar line of reasoning: that equality of opportunity in employment is guaranteed, there can’t be discrimination in employment and that if at all, it is for the Union/Centre to do so and thus beyond the purview of the State. Here, the HC’s reliance of A.16 is misplaced, since the SC in Government Of Andhra Pradesh vs P.B. Vijayakumar has clearly laid down that the scope of A.16 is limited to public employment.

(b) Applicability of Entry 81 of List 1 of the 7^th Schedule: the HC held that while the Law used the term ‘migrant’, the pith and substance of the law didn’t deal with ‘inter-state migration’. While disapproving of the term ‘migrant’ to refer to non-domiciled labour, the HC held that “an effort is being made to distinguish between the citizens of this country on account of their domicile and their belonging to the State of Haryana”. The HC further noted that “India is one integral whole and it is an indestructible unit but had only been divided into different States for the convenience of administration” and that commercial intercourse was one of the principles which were conceptualised by India’s founding fathers. The HC thus accepted the Petitioners’ contention and concluded that the underlying object of the legislation was “to create an artificial gap and a discrimination qua the citizens of India” and was thus detrimental to national interest.

The HC came to such a conclusion based on incoherent reasoning, since there is a fundamental distinction between granting reservation on the basis of ‘place of birth’ and ‘domicile’. This distinction has been accepted by the SC in DP Joshi v. State of Madhya Bharat, wherein the constitutional validity of reservations on the basis of domicile was upheld.

Another limb of the HC’s rationale was that the law was contrary to constitutional principles as it was majoritarian in nature, based on popular sentiments. Such a reasoning alone, can’t be the basis to strike down a Law unless it is found to be violating of Part-III of the Constitution. The HC also cautioned that such a law would result in different states enacting similar laws which would result in “putting up artificial walls throughout the country.” This, too, is flawed, since an unforeseeable future outcome can’t be a consideration to strike down a law in the present.

(4) Reasonable Restrictions under A.19.

The HC held that the impugned law was disproportionate, as it extended to all types of private employment, and granted the State powers to exercise absolute control over a private employer (the HC referred to this as ‘license raj’). I am inclined to agree that the impugned law, as it stood, ought to have been struck down for being disproportionate and unreasonable, due to the vast expanse of powers granted to the State. Nevertheless, the manner in which the HC arrived at its conclusion must be scrutinized.

Any form of rights based analysis would require a Court to discuss the nature of restrictions imposed and decide whether they are proportionate, based on the State justifications. The State justified the laws on the basis of policy considerations: that the law was needed to develop adequate infrastructure for migrants and address problems of local unemployment. The HC failed to engage with the State’s justifications for the law or to explain how the law is disproportionate. It is thus significant to note that the HC didn’t follow a deferential standard of review since it ignores presumption of constitutionality and the notion that the legislature must be presumed to have understood and deliberated on the needs of people. On the contrary, the HC doubted the justifications behind the law and actively rebutted it in the strongest terms.

The HC held that the Law is contrary to constitutional freedoms under A.19 and unconstitutional, since “a wall could not be built around by the State and the spirit and sole of the oneness of the Constitution of India could not be curtailed by the parochial limited vision of the State.”. It further invoked principles of fraternity to strike down the statute being contrary to foundational premises of the Constitution, as it treated the non-residents of Haryana as “secondary citizens”. While doing so, there was misplaced reliance on US SC Judgments dealing with provisions which were held violative and discriminatory on account of race, since the HC believed that the Indian Constitution borrows heavily from the USA. This chain of reasoning is flawed, since the HC ought to have examined the question of who were intended beneficiaries of the law and whether such a classification was constitutionally justified, by applying the twin tests of Article 14.

The HC concluded on the question of classification, by stating that the State cannot negatively discriminate against those who don’t belong to the state, based on the reasoning that “once there is a bar under the Constitution of India, we do not see any reason how the State can force a private employer to employ a local candidate,” without emphasising how exactly the Constitution bars reservation policies on the basis of domicile. The HC thus erred in not deciding where the appropriate balance lies between reasonable restrictions of A.14 and 19 freedoms and the power (or rather the extent of power) of states to legislate on domicile quotas. 

Conclusion

The HC concluded its analysis by stating that the “respondent-State has directed the private individual to do what itself is barred from under the Constitution.” Such an analysis is erroneous, since the HC failed to explain what exactly is barred under the Constitution. By not engaging with how the law is disproportionate, the HC followed a rather interventionist standard of review, which is in contrast to the general deferential standard that constitutional courts adopt on matters of economic and social policy. By not deciding on the fundamental question of whether reservations in the private sector are constitutional, the HC has failed to address the elephant in the room. Ambiguity about the application of the corresponding tests to decide the legality of reservation in the public sector remains. This lacuna is bound to persist in the future, when similar laws are interpreted.

The Supreme Court’s Marriage Equality Judgment – III: Judicial Creativity and Justice Kaul’s Dissenting Opinion [Guest Post]

[This is a guest post by Masoom Sanyal.]

---

Introduction

The Supreme Court has handed down its verdict in Supriyo @ Supriya Chakraborty v. Union of India (‘Supriyo’) or the Marriage Equality Case. By a majority of 3:2, the Court has held that (i) there is no unqualified fundamental right to marry under the Indian Constitution, (ii) there is no right to civil union available to unmarried couples, (iii) the Special Marriage Act (‘SMA’) is not violative of any fundamental rights, and (iv) the SMA cannot be read in a gender-neutral manner, in a way that would allow queer couples to marry under its provisions. The right to adoption has also been denied to unmarried couples by the Court. A unanimous Court has, however, held that transgender and intersex persons may marry under the SMA, so long as such a marriage is heterosexual.

Justices S Ravindra Bhat, Hima Kohli, and P S Narsimha wrote the opinion for the majority. Chief Justice Chandrachud and Justice S K Kaul wrote the minority opinions. Interestingly, Justice Kaul is the only justice on the bench who finds the Special Marriage Act violative of Article 14 of the Constitution. However, he does not strike it down; instead, by exercising an unprecedented form of ‘judicial creativity’ he makes it workable in line with the fundamental rights. This article analyses Justice Kaul’s judgement and the creative approach he has employed in order to remedy the defect of ‘unconstitutionality’ of the Special Marriage Act. There are 2 remarkable aspects of the judgement: (i) determination of legitimacy of the aim of the statute; and (ii) extending the statute’s operation to a distinct class of people by employing a creative approach.

The Unconstitutionality of the SMA: Illegitimate Objective

The test of reasonable classification under Article 14 is a two-pronged test: (i) the classification made must be based on an intelligible differentia, i.e. there must be a clear and intelligible difference between the classes, and (ii) the classification must have a reasonable nexus to the objective sought to be achieved by the statute.

Justice Kaul notes that the SMA creates two distinct and intelligible classes of people, by implication: the first class is that of heterosexual partners who are eligible to get married under the Act, while the second class is that of non-heterosexual individuals who are ineligible to marry under the Act. After referring to the scope and object of the Act, Justice Kaul observes that it postulates a ‘special form of marriage’ available to any person in India, irrespective of faith. In Justice Kaul’s opinion, the intent of the SMA was not to regulate marriages on the basis of sexual orientation. (In fact, doing so would be violative of Article 15 as well, since, per Justices Kaul and Chandrachud’s understanding, ‘sex’ in Article 15 includes ‘sexual orientation’. The Majority’s opinion does not appear to have addressed this point at all.)

In Justice Kaul’s mind, if the object of the statute is to facilitate inter-faith marriages, a classification based on sexual orientation of individuals can have no rational nexus with it. Further, if the objective is to regulate only heterosexual marriages, Justice Kaul holds that such an objective cannot be a ‘legitimate state objective’ on the ground that it would be violative of Article 15, which includes discrimination on the basis of ‘sexual orientation’ as well. Justice Kaul, in no unclear terms, declares the SMA unconstitutional and violative of Article 14 (Para 16). Here is the first unusual aspect of the judgement. Generally, Courts are reluctant to question the state’s aim in enacting a statute; usually, only two questions are looked into when satisfying the two-pronged test of reasonable classification under Article 14, as noted above: first, whether there is an intelligible differentia; and second, whether it has a rational nexus with the aim of the legislation. It is rare, even for a Constitutional Court, to venture into the arena of holding the aim of the legislation itself illegitimate.

However, he then takes a curious and intriguing turn. A prayer of the petitioners was that instead of striking down the SMA as unconstitutional, the Court must read it in a harmonious manner, and provide a gender-neutral reading of the Act, in order to include non-heterosexual partners within the ambit of the law. Justice Kaul notes that “there are multifarious interpretive difficulties in reading down the SMA to include marriages between non-heterosexual relationships.” (Para 17)

In short, a gender-neutral reading of the Act is not possible since the legislature has used clear and unambiguous words. According to Chief Justice Chandrachud’s opinion, such substantial reading would be beyond the powers of a Constitutional Court, and if the Court carried out such an exercise, it would invariably venture into the legislative domain, thereby violating the doctrine of separation of powers. Justice Kaul concurred with the Chief Justice on that point.

Judicial Creativity: Extending the SMA to Same-Sex Couples

However, Justice Kaul, in Para 18 of his judgement, lays down a curious position of law. He writes, “[I]t would not be prudent to suspend or strike down the SMA, given that it is a beneficial legislation and is regularly and routinely used by heterosexual partners desirous of getting married. For this reason, this particular methodology of recognizing the right of non-heterosexual partners to enter into a civil union, as opposed to striking down provisions of the SMA, ought to be considered as necessarily exceptional in nature.”

Chief Justice Chandrachud and Justice Kaul’s minority opinion lays down that non-heterosexual couples have a fundamental right to civil union that the state is under a duty to recognize. In line with that, Justice Kaul employs a creative interpretive technique, for which he cites the South African Constitution which contains an explicit provision that all statutes must be interpreted in ‘due regard to the spirit, purport and objects’ of the chapter on fundamental rights. Justice Kaul argues that we, in India, must adopt a similar approach to statutory interpretation.

By applying this technique of statutory interpretation, Justice Kaul observes, “In this context, legislations that confer benefits on the basis of marriage should be construed to include civil unions as well, where applicable.” (Para 26) Therefore, Justice Kaul’s judgement has the effect of stretching the ‘bouquet of rights’ available to married couples to the non-heterosexual civil unions. The remarkable part about this judgement is that a rather rare approach is taken here, by using a principle of statutory interpretation that finds an explicit mention in the South African Constitution, and importing it into Indian jurisdiction.

Conclusion

Justice Kaul’s judgement, albeit a dissenting opinion, is remarkable. It grants the recognition to non-heterosexual civil unions as well as extends to such civil unions all applicable rights that are available to married couples. It holds the SMA’s application only to heterosexual couples as violative of test of reasonable classification under Article 14 of the Constitution. He ventures into the area of determining the legitimacy of the aim and objective of a statute itself. Further, instead of striking down the statute, he remedies the constitutional violation by introducing a creative technique of statutory interpretation that he imports from South African constitutional principles. It is submitted that this technique of statutory interpretation should gain more currency in the Indian context. There has been some debate around this approach. A question that has been asked is whether such judicial creativity should be permissible? In other words, how much judicial creativity is too much judicial creativity? It is submitted that judicial creativity, so long as it is in order to protect fundamental rights and the Constitution, and within the scope of the judicial role, should be encouraged.

Guest Post: Retrospective Declarations of Unconstitutionality – CBI vs RR Kishore

[This is a guest post by Vinayak Aren.]

---

The Constitution Bench of the Supreme Court in CBI v. RR Kishore (‘RR Kishore’) was concerned with the question of whether the declaration by the Court in Subramanian Swamy v. Director, CBI (‘Subramanian Swamy’), whereby section 6A of the Delhi Special Police Establishment Act, 1946 (‘DSPE Act’) was declared unconstitutional on the ground of being arbitrary, would run prospectively from the date of the judgment, or would run retrospectively from the date the impugned provision came into force, i.e., 11^th September 2003. The Court on 11^th September 2023, answered in favor of the latter.

Section 6A of the DSPE Act and Subramanian Swamy

Section 6A of the DSPE Act was brought in by an amendment in 2003. It restricted the power of the CBI to conduct inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (‘PC Act’) except with the prior sanction of the Central government, but only in the cases of a particular class of employees of the Central Government and in no other. This requirement of the prior sanction was dispensed with in the cases of spot arrests, or put plainly, where the person was caught red-handed. It may be stated here that the immunity was only from arrests, searches, etc. without sanction and not the offence itself; thus, there existed only a procedural advantage to this class of employees. (this protection has been available in one form or the other to the officers or their certain class, except for the brief periods. See ¶16 in RR Kishore).

This provision came to be challenged in Subramanian Swamy v. CBI before the Constitution Bench of the Supreme Court on the ground of being violative of Article 14, being based on arbitrary classification. The Court declared section 6A, vide its judgment dated 6^th May 2014, violative of Article 14 and thus, invalid and unconstitutional (¶98), on the ground that the differentia contained in it – some officers of central government enjoying immunity against arrests, etc. and others not – runs counter to the object and reasons of the PC Act, of detecting and punishing high level corruption (¶87).

The Court, however, did not decide on the retrospectivity of the declaration.

Concern with the Judgment in Subramanian Swamy running retrospectively

Consider the facts of the instant case from which the reference arose: An FIR was registered on 16^th December 2004 for offences under the PC Act against the Respondent, R. R. Kishore, and a trap was laid the same evening, pursuant to which he was said to have been caught taking the bribe relating to a case under the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994. The Respondent was admittedly protected under the erstwhile section 6A of the DSPE Act and therefore, sought for discharge on the ground of the investigation having begun illegally for want of sanction from the Central government. Instead, the Delhi High Court ordered re-investigation. Aggrieved thereof, CBI appealed before the Supreme Court. Now, this is where the facts take an interesting turn. Pending the appeal, Subramanian Swamy was delivered and the CBI contended that this deprivation of immunity under the erstwhile section 6A extends to the Respondent as well. This meant that judgment operated retrospectively, relating back to its insertion in 2003, and, resultantly, failure of Respondent’s contentions.

The Court was, thus, called to decide whether Subramanian Swamy operates retrospectively; and if it does, then whether retrospective operation of a judgment declaring an immunity from arrests, etc. unconstitutional would violate the Article 20(1) protection to Respondent against ex-post facto laws: a constitutional guarantee against conviction for acts declared offences after their commission, or against punishment of greater degree than was provided for at the time of the commission of the offence took place.

Court’s Analysis

The Court framed the following three questions (¶14):

• Whether Section 6A of the DSPE Act is part of procedure or it introduces a conviction or sentence?
• Whether Article 20(1) of the Constitution will have any bearing or relevance in the context of declaration of Section 6A of the DSPE Act as unconstitutional?
• The declaration of Section 6A of the DSPE Act as unconstitutional and violative of Article 14 of the Constitution would have a retrospective effect or would apply prospectively from the date of its declaration as unconstitutional?

Inapplicability of Article 20(1) on Section 6A of DSPE Act

The Court observed that section 6A does not lay down or introduce any conviction for any offence; it is only a procedural safeguard against initiating an investigation or making an  inquiry without approval from the Central Government under the PC Act (¶23) and therefore, held that the provision is a part of the procedure only (¶24), similar to section 196 of the Code of Criminal Procedure, whereby cognizance by in case of certain offences is subject to approval of the Central Government or the State Government.

Having held so, the Court, relying on the constitution bench decisions in Rao Shiv Bahadur Singh v. The State of Vindhya Pradesh (1953) and State of West Bengal v. SK Ghosh (1962), proceed to observe that Article 20(1) is only limited to conviction or sentence and not the trial thereof, thereby advancing the proposition that its applicability does not extend to procedures under the criminal law, but only substantive change in the law in force, either with respect to the ingredients required to constitute an offence, or enhancement of punishment. In the same stride, it may also be noted that only enhancement of punishment is prohibited and not reduction in quantum or removal of the punishment. The submission that the phrase “in respect of conviction” appearing in the marginal note of Article 20 would cover anything relating to or which may be a condition precedent for recording conviction, such as the requirement of approval in section 6A, was rejected by the Court (¶34-35) and in author’s submission, rightly so, as whether the want of sanction would vitiate a trial or not remains a mixed question of law and fact; it is dependent on the nature of offence, policy behind mandating sanction of a particular authority, effect of absence of such approval on the accused’s ability to face trial, etc. (see section 465 CrPC)

In view of the discussion on questions (i) and (ii), the Court held that Article 20(1) has no applicability to the effect of section 6A of the DSPE Act. (¶36)

Retrospective Application of the Judgment in Subramanian Swamy v. CBI (2014)

After having answered the first two questions in this manner, the Court was concerned with a straight question of law that whether declaration of any law as unconstitutional has effect from the time of such law’s enactment, or it has an effect from the date of such declaration, that is, the date of passing of the judgment. For this, the Court examined the meaning of the word ‘void’ used in Article 13(2) of the Constitution, utilizing which a post-constitution law is declared void as violating Part III of the Constitution by the Court. In Kesava Madhava Menon v. The State of Bombay, the seven-judge bench of the Court, by majority held that ‘void’ in Article 13(1) implies a nullity and pronouncement thereof will be notionally taken to be obliterated for all intents and purposes, even if it remains written on the statute. The seven-judge bench of the Court in Behram Khurshed Pesikaka v. The State of Bombay, ¶69, held that the declaration of unconstitutionality of section 13(b) of the Bombay Prohibition Act, 1949 means that it is inoperative and ineffective, and thus, unenforceable in a court of law. Similar reasoning was provided in MPV Sundararamier and Co. v. State of Andra Pradesh.

In Deep Chand v. The State of UP, the Constitution Bench of the Court held that the prohibition in Article 13(2) “goes to the root of the matter and limits the State’s power to make law; the law made in spite of the prohibition is a still- born law”, and thereby, a nullity from inception, as held in Mahendra Lal Jaini v. The State of UP, observing a categorical difference from Article 13(1) when the nullity would not be from inception, but from the time the Constitution came into force. This implies that the revival of such laws is not possible without the removal of illegality that tainted their operation. In The State of Manipur v. Surjakumar Okram,(2022) a three-judge bench of the Court held that law so passed is non est for all purposes.

The Court in RR Kishore, thus, held that ‘once a law is declared to be unconstitutional, being violative of Part-III of the Constitution, then it would be held to be void ab initio, still born, unenforceable and non est in view of Article 13(2) of the Constitution’ and thus, Subramanian Swamy has retrospective operation and section 6A, therefore, is held to never have been legislated for all purposes. (¶43)

Conclusion

The Constitution Bench in CBI v. RR Kishore was conflicted with an interesting reference as to the applicability of a declaration of unconstitutionality of a procedural safeguard in favor of an accused under Article 13(2) of the Constitution for the commission of an offence alleged to have been committed before such declaration.

Rejecting the submission that the retrospective operation of such declaration has the effect of violating the constitutional guarantee under Article 20(1), the Court negatived the applicability of protection against ex post facto laws for the reason of them being available only against conviction or sentence, and thus, unavailable against a safeguard in section 6A of the DSPE Act.

With respect to the retrospectivity, the effect of voidness rendered on a law made in violation of Article 13(2), in view of the catena of judgments and on first principles as well that judiciary only declares law by expounding what it means, the reference was answered declaring the retrospective effect of the judgment from the date the provision came to be inserted in the DSPE Act, meaning thereby that the declaration dates from the enactment and not from the date of the judgment.