At the Third Time of Asking: Federalism, the Centralising Drift, and the Supreme Court’s Judgment in NCT of Delhi vs Union of India (2023)

In 2015, a notification issued by the Union Government sparked an eight-year-long legal battle between the national capital territory of Delhi and the Union of India. Through this notification, the union government sought to take control over the question of ‘services’ (i.e., the administrative and civil services) with respect to the governance of Delhi. The basic rationale of this notification was that Article 239AA of the Constitution granted to the legislative assembly of Delhi the power to make laws with respect to the legislative fields under Lists II and III of the Seventh Schedule “in so far as any such matter is applicable to Union territories“, and specifically excluding entries 1, 2, and 18 of the State List (i.e., public order, police, and land). Entry 41 of List II (“the State List”) refers to “State public services” and “State public service commission.” The Notification argued, however, that Entry 41 was inapplicable to Delhi, as there was no such thing as a Delhi Public Services Commission, and that in any event, service cadres for union territories were under the control of the central government. On this basis, it justified explicitly placing Delhi’s administrative and civil service officers under the control of the union government.

The Delhi government challenged this – and another notification – before the Delhi High Court, and lost. It went up in appeal to the Supreme Court, where a two-judge bench – while hearing the case – decided that a larger bench was required to lay down the constitutional principles with respect to the relationship between the NCT of Delhi and the Union of India (for an analysis of the issues, see this three-part series by Vasudev Devadasan, here, here, and here). A five-judge bench was constituted, and delivered judgment (in 2018), effectively holding that Article 239AA of the Constitution guaranteed legislative and executive power to the NCT of Delhi in certain specified domains, and with respect to those domains, the Lieutenant-Governor (i.e., the centre’s appointee) was ordinarily bound by the “aid and advice” of the Delhi cabinet (for an analysis of the judgment, see here and here). However, in a bizarre turn of events, when the matter was sent back to the two-judge bench to decide the concrete issues (such as control over services), the two judges – who had been part of the five-judge bench – split, and delivered conflicting judgments on the issue of services (in 2019). This was then sent to a three-judge bench to resolve. Before the three-judge bench, the Union of India argued – among other things – that the 2018 five-judge bench had not interpreted the meaning of the phrase “in so far as any such matter is applicable to Union Territories”, when specifying the legislative competence of Delhi with respect to fields under List II of the Seventh Schedule. The resolution of this question then led to the constitution of another five-judge bench which – finally – heard the case in late 2022, and delivered its judgment today. In a unanimous opinion – authored by Chief Justice Chandrachud – the Constitution Bench decided in favour of the NCT of Delhi, holding – quite categorically – that the Delhi government did have the competence to legislate on “services” under Entry 41 of List II, and therefore – by extension – executive control over services.

Before we examine the Constitution Bench’s judgment, it is worth noting one thing: the Constitution Bench observed – and in my view, correctly – that the issues agitated before it had already been settled by the 2018 judgment. This, however, raises the following question: why then did it need another Constitution Bench to reiterate what had already been decided just five years ago, in a case on the same issue between the same parties? What does this say, in particular, about the judgment of the (now-retired) Justice Ashok Bhushan, who purported to write a concurring opinion while sitting in the Constitution Bench in 2018, but then – according to today’s judgment – when sitting in a two-judge bench only a few months later, misinterpreted not only the majority 2018 opinion, but even his own concurring opinion, to deny control over services to the Delhi government? In a piece on this issue, I have pointed out (a) that what Justice Bhushan effectively did in 2018 was to write a dissent masquerading as a concurrence; (b) that the majority opinion – authored by the-then Chief Justice Dipak Misra – was written in such a fuzzy way, that it left open wide gaps that allowed Justice Bhushan to effectively further entrench his disguised dissent and write his split 2019 opinion, all the while appearing to only “interpret” the 2018 judgment; and (c) that the effective result of all of this was five years of limbo that benefited one party – the union government – who was able to continue effectively controlling the services while the case rumbled on in court (see “Judicial Evasion, Judicial Vagueness, and Judicial Revisionism: A Study of the NCT of Delhi vs Union of India Judgment(s)“). Understandably, today’s judgment does not dwell on Justice Bhushan’s 2019 opinion; and – to its credit – today’s judgment is written clearly and categorically enough to preclude further litigation, at least on this point. The 2018-2023 period now belongs to the history books, but it is still worth asking how the union government was able to drag on a case in the Supreme Court for five long years, even after it had – evidently – “lost” the first time around.

Be that as it may, today’s judgment repays close study. At the heart of the dispute lay a set of constitutional silences and ambiguities. Textually, there are two ways to understand the phrase “in so far as any such matter is applicable to Union Territories” that is found in Article 239AA(3). The first is that Lists II and III have certain matters that are applicable to Union Territories, and certain matters that are not. Whether a particular entry applies to a UT or not depends on a case-by-case analysis, looking at factors such as the union government’s interest, and so on (the “exclusionary reading”). But the second reading – the “inclusionary reading” – is that the phrase presumptively makes available to the Union Territory all the entries in the Lists (other than those expressly excluded – public order, police, land, and parts of certain related entries), and is needed in order to avoid the cumbersome exercise of amending all the entries in the Lists that presently use the word “state”, in order to make them apply to the NCT of Delhi.

It will be seen that purely textually, the phrase is open to both readings. Which reading is to be preferred, therefore, depends on the interpretive principles brought to bear by the Court. Chandrachud CJI articulates two such principles: asymmetric federalism (para 40) and representative democracy (para 63). Asymmetric federalism refers to the principle that in a diverse and heterogenous country, different federal units can have different forms of relationship with the centre. Chandrachud CJI invokes the principle of asymmetric federalism for two purposes: first, to clarify that not all union territories are the same, and to justify Delhi’s sui generis status; and secondly, to nest this within the broader idea of federalism, where – despite the Indian Constitution’s “centralising drift“, the sovereign powers of the states in their own domains are to be respected. Representative democracy refers, of course, to the principle that legislators ought to be (effectively) accountable to their electors, and – correspondingly – that electors ought to have an (effective) say in who governs them. Chandrachud CJI thus holds that where there is a constitutional silence or ambiguity – where, in other words, a provision (such as Entry 41) can have two possible interpretations – the reading that advances the principles of federalism and representative democracy is to be preferred. In the case of the phrase “in so far as any such matter is applicable to Union Territories”, this is clearly served by the inclusionary reading over the exclusionary reading.

An important corollary follows. The union argued that the exclusionary reading was to be preferred as the central governments had vital interests in the national capital. The use of the interpretive principles referred to above allows the Court to hold, however, that that balancing of interests has already been provided for under Article 239AA, and does not further require the Court to interpret a constitutional silence in favour of the union government. Some of the elements of this balance include, for example, that in the case of Delhi, the Parliament has overriding powers to legislate with respect to both Lists II and Lists III; the power of the LG to refer disagreements to the President, and so on. In other words, the Court holds that the carefully-crafted scheme of Article 239AA already reflects a balance of interests, and that therefore, when interpreting the text, the centre’s interests do not need to be – in a sense – “double-counted”. Rather, the constitutional values of federalism and representative democracy drive at the opposite reading.

This interpretive approach then returns in the second, crucial part of the judgment. Services under the Constitution are dealt with under Part XIV. Part XIV refers to “services under the Union and the states”, and once again, the union government jumped upon the linguistic ambiguity to argue that, in the context of Part XIV, ‘states’ did not include ‘union territories.’

Chandrachud CJI resolves this ambiguity by referring to another constitutional principle: the ‘triple chain of accountability’, and the role of civil servants in a cabinet form of government. This triple-chain goes: civil servants are accountable to the cabinet, the cabinet is accountable to the legislature, and the legislature is accountable to the electorate (paragraph 106). An interpretation of the Constitution that severs this chain is to be rejected: and indeed, depriving the elected Delhi government of control over the services would amount to exactly such a severance – because – to come back to the principles of federalism and representative democracy – the NCT of Delhi is a federal unit within the whole (paragraph 108). The severance, thus, flows from the fact that granting the union government control over Delhi’s service cadres would be granting control at the wrong level of authority (central, not federal), and therefore distorting the flow of accountability (paragraph 111). What we have, therefore, is a seamless a analytical web, where the strands of federalism, asymmetric federalism, representative government, and chains of accountability mutually reinforce each other, and constitute the interpretive framework within which the Court provides concrete readings of constitutional provisions such as Part XIV and Entry 41 of List II (in particular, granting an inclusive meaning to “state”, based on the General Clauses Act) (see paras 122 – 137).

The Court therefore concludes by holding categorically that:

The legislative and executive power over services such as Indian Administrative Services, or Joint Cadre services, which are relevant for the implementation of policies and vision of NCTD in terms of day-to-day administration of the region shall lie with NCTD. Officers thereunder may be serving in NCTD, even if they were not recruited by NCTD. In such a scenario, it would be relevant to refer, as an example, to some of the Rules, which clearly demarcate the control of All India or Joint-Cadre services between the Union and the States. NCTD, similar to other States, also represents the representative form of government. The involvement of the Union of India in the administration of NCTD is limited by constitutional provisions, and any further expansion would be contrary to the constitutional scheme of governance … we accordingly hold that references to “State Government” in relevant Rules of All India Services or Joint Cadre Services, of which NCTD is a part or which are in relation to NCTD, shall mean the Government of NCTD. (paragraphs 160 – 161)

The judgment, thus, is a valuable case study of how constitutional principles can be deployed in concrete cases. It is also important for another reason: as I have argued elsewhere, cases on federalism can be grouped into two categories. Many cases espouse what a “centralising approach”, where the existence of a “skew” within the Constitution in favour of the centre is taken as justification for interpreting constitutional silences further in favour of the centre (State of West Bengal vs Union of India is a classic example of this). But there is also a line of cases that espouse a “federalising reading”, where the existence of explicit provisions favouring the centre is taken as ground for refraining to allow any further, unwritten encroachment. I have argued that the federalising approach is far more preferable, as it avoids excessive centralisation of power – the “centralising drift” (a term also used by CJI Chandrachud in the judgment) in a Constitution that is already unbalanced. Today’s well-reasoned judgment adds to that valuable tradition of Indian constitutional jurisprudence, and provides a platform to build from.

As for the long-suffering government of the NCT of Delhi: it happened at the third time of asking – but it did happen at last!

The Kenyan Supreme Court’s BBI Judgment – III: On Referendum Questions, Other Implications and Untidy Endnotes

This is the third and concluding blog post about the Kenyan Supreme Court’s BBI judgment. Parts One and Part Two can be accessed here. In this post, I will end by examining some of the possible implications of the judgment of the Court, going forward.

Distinct and Separate Referendum Questions

Recall that one of the grounds on which the High Court had invalidated the BBI Bill was that all seventy-four amendments had been lumped together as a “package”. The High Court had held that under Article 257, potential amendments would have to be placed before the People as distinct and separate referendum questions. The Court of Appeal was split on the point, but arguably, a majority of the bench held that at the very least, a “unity of theme” approach would have to be followed: that is, potential amendments that were thematically unrelated could not be lumped together in a package. The one exception was Tuiyott J, who held that the issue was not yet ripe for adjudication, as the IEBC was yet to frame the referendum question – or questions.

A majority of the Supreme Court agreed with Tuiyott J on this point. Thus, while the judgments of the High Court and Court of Appeal were set aside, the question still remains open for adjudication.

In my submission, however, while the Supreme Court did not explicitly decide the question, the overarching logic of its judgment(s) strongly implies that when the question does become ripe at some point in the future, the unity of content approach is to be followed.

The reason for this brings us back to our discussion in the previous post: going forward, any interpretation of Article 257 of the Kenyan Constitution must be informed by the Supreme Court’s finding that the purpose of the tiered amendment process is to provide internal constitutional safeguards against abusive amendments, and – specifically – against the culture of hyper-amendment. Indeed, it is particularly interesting to note that for more than one judge, the fact that no constitutional amendment had been successfully pushed through in the twelve years of the existence of the 2010 Constitution was evidence that the internal safeguards were working.

But now consider the consequences had the High Court’s judgment in May 2021 not stopped the (somewhat advanced) Article 257 in its tracks. Had the process been completed successfully, in one fell swoop, the Kenyan Constitution would have gone from having never been amended in twelve years, to having been amended seventy-four times in twelve years – and if anything can be called a “culture of hyper-amendment”, seventy-four amendments in twelve years would surely fit the bill!

It is therefore not enough to say that the tiered amendment process provides an adequate internal safeguard against hyper-amendments. The tiered amendment process – as set out under Articles 255 – 257 – still leaves a range of interpretive questions open; and precisely how effective it is against hyper-amendments depends on how the courts answer those questions. It is easy to see that lumping all potential amendments into one referendum question is an enabler of hyper-amendments: as Musinga (P) rightly pointed out in the Court of Appeal, this enabled a culture where, in order to push through a potentially unpopular amendment, its proponents will include a range of “sweeteners” to make the Bill as a whole palatable – or, alternatively, raise the cost of not voting for it. One can see a direct link between this kind of constitutional jockeying and the culture of hyper-amendment. It is therefore my submission that the constitutional silence in Article 257 on the question of distinct and separate referendum questions ought to be resolved in favour of the unity of content approach, as that is the interpretation that would further the purposes of Article 257 in checking hyper-amendments. Indeed, this interpretive approach matches precisely the Supreme Court’s approach to the popular initiative question. Article 257 was silent on whether the President could or could not initiate a PI. The Supreme Court engaged in a purpose interpretation of Article 257 to hold that he could not, because the contrary interpretation would defeat the objective of the PI. The same considerations apply to the issue of distinct and separate referendum questions.

Constitutional Gaps

On at least two crucial issues, the Supreme Court’s judgment was informed by a gap in the Constitution that was meant to be filled in by statute, but hadn’t yet been. The first was the issue of public participation. The second was the issue of the initiation of a popular initiative.

The first issue had also been discussed by the judges in the superior courts below: in the absence of a statute setting out the scope and content of public participation under the Article 257 process, the Courts were forced to stumble around a bit and search for the light, although the judges did eventually – relying upon the constitutional standard of public participation – return findings either way on the subject. Assuming, however, that at some point a law is passed that sets out its details, it will be interesting to see how the courts scrutinise its adequacy; any such scrutiny will now need to be judged against the standard of whether or not the statute can serve as a strong enough bulwark against abusive amendments and hyper-amendments; thus, issues such as time to scrutinise bills, language, accessibility, and so on, will need to be considered from this rubric.

The second issue finds mention in Mwilu DCJ’s judgment, although its echoes are present from the High Court, to the Court of Appeal, and to the Supreme Court. This is the issue of the popular initiative: eighteen out of nineteen judges who heard this case agreed that the President cannot initiate a popular initiative under Article 257. The devil, however, is in the detail: in the present case, the President’s involvement – through proxies – was too overt and too categorical for most of the judges to ignore. One can easily imagine, however, that stung by this reversal in all the Courts, a future President might just decide to be a lot more subtle about this, and put in substantially greater distance between themselves and their proxies. At the Court of Appeal, Tuiyott J, and at the Supreme Court, Koome CJ, both exhibited a keen awareness of this problem, but at the end of the day, beyond applying good judicial common sense, there is only so much that Courts can directly do to prevent executive “hardball”. This is why Mwilu DCJ probably had it right when she listed out a range of issues – such as, for example, whether promoters could be members of political parties, or political parties themselves – that might arise in the future; and the fine-grained character of these issues indicates that they are better off addressed by the legislative scalpel rather than the judicial sledgehammer. Of course, the risk here is, given that Article 257 is meant to be a constitutional amendment route that serves as an alternative to Parliament, Parliament itself legislating on the scope of who can activate Article 257 will raise potential conflicts of interest. That is perhaps inevitable, and once again, it might just be the case that the issue will ultimately find its way back to the judiciary, and that the courts will need to consider at what point the indirect involvement of State actors reaches a threshold where it starts to threaten the fundamental purpose of Article 257.

Indeed, there is good reason to think that the BBI litigation marks the beginning and not the end of the story. Coming away from the judgment, we find that there is a window open for judicial intervention to stop constitutionally destructive “amendments” (although it is no longer being called “the basic structure doctrine”), but the length, breadth, and design of this window is also … open (pardon the pun). We also find that it has now been firmly established that the purpose of Chapter XVI – and, specifically Article 257 – is to constrain the imperial Presidency, check abusive amendments, and safeguard against hyper-amendments. But as history shows, the imperial Presidency is not so easy to contain: its “taming” will need more than one set of judgments, but rather, it is a constitutional commitment that will need to be renewed and renewed again. Stopping subtle and indirect hijackings of Article 257, package deal referendums, and inadequate public participation (to name just a few threats) will all be part of that renewal.

Conclusion: Shadow and Light

It remains to end with a disclaimer (or two). As one of the amici before the Supreme Court of Kenya in the present appeal, my analysis is naturally situated within that broader context, and the arguments I have made in these three blog posts reflect some of the arguments in my amicus brief (I am particularly grateful to the Court for having admitted the brief, and then – across multiple judgments – engaged with the arguments closely and in depth). Indeed, these arguments reflect a broader set of intellectual commitments I bring to interpreting Constitutions: I believe that Constitutions are fundamentally about power relations, about deciding who has power and who doesn’t, who gets to wield power and upon whom it is wielded, and how power (State power, in particular) is to be confronted, mitigated, and contained. Our task as interpreters is to try and ensure that Constitutions live up to their own goal (often stated in the Preamble) of democratising power, and of checking abuse and impunity.

Having had the opportunity to engage so deeply with these questions in the context of the Kenyan Constitution over the last one year has been a privilege. As an outsider who has tried to approach the subject with respect and humility, but who – no doubt – has often put his foot in it, it has been particularly wonderful to experience the openness and generosity with which the Kenyan interpretive community has treated me; for that, I am deeply grateful. After all, as Yvonne Owuor once wrote, there is a “cartography not of possession, but of – how odd – belonging.“

Contrapuntal Reading: Outlines of a Theory

In his classic book, Culture and Imperialism, Edward Said proposed a new way of reading literary texts: “contrapuntally“. Said argued that some of the most important works of the Western literary canon rested upon a submerged and unacknowledged foundation of colonialism. For example, in Jane Austen’s Mansfield Park, the protagonist’s benefactor owns a plantation in Antigua (and profits from the imperial slave trade), a fact that is mentioned in passing, but for most of the novel, is “off-stage”, as it were. The first part of Said’s contrapuntal reading (the term “contrapuntal” is derived from music, and refers to melodic lines that are in “counterpoint” with each other, but maintain their independence) required readers to “connect the structures of a narrative to the ideas, concepts, experiences from which it draws support.” In Mansfield Park, for instance, it would require an acknowledgment of the fact that Fanny Price’s wealth, and the possibilities of action open to her, depended upon the political, social, and economic relationship between the British Empire and its colonies.

The second – and critically important – part of the contrapuntal reading involved “not only the construction of the colonial situation as envisaged by the writers, but the resistance to it as well.” (Culture and Imperialism, p. 79) Said wrote:

“We must therefore read the great canonical texts with an effort to draw out, extend, give emphasis and voice to what is silent or marginally present or ideologically represented in such works. The contrapuntal reading must take account of both processes – that of imperialism and that of resistance to it, which can be done by extending our reading of the texts to include what was once forcibly excluded.” (Culture and Imperalism, pp. 78 – 9)

A contrapuntal reading of Camus’ famous L’Etranger, for example, would identify and resurrect the whole previous history of France’s colonialism and its destruction of the Algerian state, and the later emergence of an independent Algeria (and Kamel Daoud’s The Meursault Investigation is a recent, controversial attempt to do just that). A contrapuntal reading of Rudyard Kipling’s Kim would entail examining the fact that:

“Kipling’s India… has a quality of permanence and inevitability that belongs not just to that wonderful novel but to British India, its history, administrators, and apologists and, no less important, to the India fought for by Indian nationalists as their country to be won back. By giving an account of this series of pressures and counter-pressures in Kipling’s India, we understand the process of imperialism itself as the great work engages them, and of later anti-imperialist resistance. In reading a text, one must open it out both to what went into it and to what its author excluded.” (Culture and Imperialism, p. 79)

Said’s contrapuntal reading bore a strong affinity the work of the anthropologist James Scott. In a book called Domination and the Arts of Resistance, published three years before Culture and Imperialism, Scott argued that the historical relationship between dominant and marginalised groups is marked by a “public transcript” of official discourse, visible to history and to the public consciousness. However, parallel to the public transcript, there also exists a “hidden transcript”, which operates as a mode of resistance, and a form of subversion, through “speeches, gestures, and practices that confirm, contradict, or inflect what appears in the public transcript.”

Scott and Said’s important insight, therefore, was that any literary artefact – which takes the form of a narrative – is fundamentally constituted by both inclusion and exclusion. The former makes the visible artefact, and the latter is hidden, “off-stage”, or submerged, but equally important to the existence of the artefact. The task of contrapuntal reading is to both identify and resurrect what is invisible and excluded.

Law, Text, Narrative, and History

In his famous 1982 article, Nomos and Narrative, Robert Cover pointed out that “no set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning… a legal tradition is hence part and parcel of a complex normative world.” Narratives, however, are never singular. While one set of institutions – i.e., the Courts – have been granted the power to select one narrative as authoritative, this does not prevent individuals and communities from locating legal and constitutional texts in alternative narratives. Through the course of his article, Cover explored the proliferation of legal meanings and narratives through a range of of examples, taken from American history. For instance, in the mid-19th century, the “radical constitutionalists” challenged the American Supreme Court’s interpretation of the relationship between slavery and the Constitution. Instead, they:

“… worked out a constitutional attack upon slavery from the general structure of the Constitution; they evolved a literalist attack from the language of the due process clause and from the jury and grand jury provisions of the fifth and sixth amendments; they studied interpretive methodologies and selfconsciously employed the one most favorable to their ends; they developed arguments for extending the range of constitutional sources to include at least the Declaration of Independence.”

Cover’s argument about the inevitable pluralism of “meanings” that circulate around legal and constitutional texts, as well as the pluralism of the “narratives” within which those texts come to be located, along with his analysis of the legal and moral tensions that arise when the selection of meaning and narrative by the Courts is challenged by dissident individuals and communities (who build their alternative systems of meaning instead), is an important and path-breaking one (a good recent example of this in the Indian constitutional context is the disagreement between the majority and the minority in the Supreme Court’s judgment on appeals to religion during election campaigning). Here, however, I want to take Cover’s argument in a slightly different direction, focusing not upon the plurality of legal meanings and narratives, but upon non-legal ones, which play an equally important role in constituting any judicial decision. The distinction between legal and non-legal is a slippery one, but for now, let us bracket the problems that that entails.

Let us start with Cover’s invocation of the American author and historian, Mark DeWolfe Howe, which he flags, and returns to briefly towards the end of his essay, but does not develop in any great detail:

“Among the stupendous powers of the Supreme Court of the United States, there are two which in logic may be independent and yet in fact are related. The one is the power, through an articulate search for principle, to interpret history. The other is the power, through the disposition of cases, to make it…  I must remind you, however, that a great many Americans tend to think that because a majority of the justices have the power to bind us by their law they are also empowered to bind us by their history. Happily that is not the case. Each of us is entirely free to find his history in other places than the pages of the United States Reports.”

In other words, legal claims before a Court (and this is especially true of constitutional claims) often rely upon non-legal arguments for support, including arguments from history, from economics, from sociology and anthropology, from science. These claims are challenged, and the Court’s task then becomes to adjudicate between them, and to provide official, authoritative sanction (enforceable by violence and coercion, if disobeyed) to one set of claims at the expense of the other. This – presumably – is what Howe meant when he said that the Supreme Court has the power not only to interpret history, but to make it.

A fascinating example of how a Court “makes” history is found in an essay by the Italian oral historian, Alessandro Portelli, called ‘The Oral Shape of the Law’ (part of a book of essays called The Death of Luigi Trastulli). In this essay, Portelli described the “April 7 Case”, an Italian terror trial arising out of (but not limited to) the kidnapping and murder of the former Prime Minister, Aldo Moro, an act that was carried out by the Far-Left “Red Brigades”. However, the trial expanded to covering a gamut of charges of sabotage, conspiracy and insurrection against political and intellectual leaders of the Far-Left, which left – in the words of Guiliano Scarpari – “the judiciary [with the task of] the reconstruction of fragments of this history (of the New Left), especially of those which eventuated in terrorism.” (‘The Oral Shape of the Law’, p. 246) Consequently, Portelli observed that:

“The magistrates were… involved in reconstructing the past, redefining its meaning, and attempting an overall interpretation. These are historical tasks, and it is appropriate to examine the way they were performed from the point of view of the theory and method of history – oral history specifically – given the nature of most sources used.” [‘The Oral Shape of the Law, p. 246].

The framing, Portelli went on to point out, was done in terms of a “criminal conspiracy”, through an informal network of relationships within the broader terrorist “Organisation”. This meant – Portelli noted – that “terrorism… is then described… as a conspiracy, rather than a social movement… mass struggles or insurrections do not depend upon the masses or on broad social causes, but on the secret dealings of leaders whose influence on the working class was never more than marginal anyway.” [‘The Oral Shape of the Law’, p. 249] In other words, the Court took an event (“political terrorism”), and attributed its occurrence to one set of historical causes (individual conspiratorial acts) while rejecting another (social causes). The Court interpreted history. But it also made history because, as Portelli pointed out at the end of his essay:

“Historical truth is hardly ever more than a descriptive hypothesis; legal truth, on the other hand, has a performative nature, measured in years in jail. Also, legal truth has a tendency to become historical truth, in the sense that future historians will rely on the court sentence and trial records for their reconstruction of the political history of the 1970s.” [‘The Oral Shape of the Law’, p. 269]

To these two ways in which a Court “makes” history (by creating a historical record of its own, and by enforcing its interpretation in real life through the organised coercive apparatus of the State), we can add a third: the Court’s reading of history carries a particular moral, or normative force, by virtue of its position in society as a neutral, unbiased, and objective arbiter. A Court is a more powerful historian than professional historians, a more powerful economist than professional economists, and a more powerful anthropologist than professional anthropologists, because its “findings” on historical, economic and anthropological issues have moral, performative, and actual, tangible force.

Contrapuntal Readings

We are now in a position to combine Scott and Said’s insights about the existence of submerged narratives with Cover and Portelli’s analyses about the role of Courts in selecting and imposing narratives. This gives us the outline of a theory of contrapuntal reading of judicial texts:

“A contrapuntal reading of a judicial decision excavates the competing, non-legal narratives that were offered to the Court for it to ground its legal decision (whether they are visible or invisible in the text of the actual judgment), identifies the Court’s chosen narrative, and finally, resurrects the rejected narratives on their own terms.”

Let us study two examples of the contrapuntal reading, in practice.

Example 1: The Interpretation of the 1856 Hindu Widow Remarriage Act

In 1856, in response to a movement for social reform initiated by the likes of Ishwar Chandra Vidyasagar, the colonial British government passed the Hindu Widows’ Remarriage Act. The Act was ostensibly for the benefit of Hindu widows who – it was argued – were prohibited from remarrying after the death of their husbands. Section 2 of the Act stated:

“All rights and interests which any widow may have in her deceased husband’s property by way of maintenance, or by inheritance to her husband or to his lineal successors, or by virtue of any will or testamentary disposition conferring upon her, without express permission to remarry, only a limited interest in such property, with no power of alienating the same, shall upon her re-marriage cease and determine as if she had then died; and the next heirs of her deceased husband or other persons entitled to the property on her death, shall thereupon succeed to the same.”

Or, in other words, a widow, on remarriage, would forfeit the property that she had inherited from her dead husband.

As Lucy Carroll points out, the interpretation of this Act raised an immediate problem, because the bar on widow remarriage was, predominantly, an upper-caste prohibition. Among the lower castes, widow remarriage was permitted, without accompanying forfeiture of property. What, then, was the fate of lower-caste Hindu widows who remarried after the 1856 Act had been passed? Would they forfeit their property in accordance with the Act, or keep it in accordance with their custom?

The question came before the Bombay High Court in 1898 (Vithu vs Govinda), and the Court decided against the widow, holding that Section 2 “only declared what was a universal practice.” However, this finding was predicated on the assumption that it was, actually, the universal practice of Hindus to compel forfeiture of property in case of remarriage. Consequently, the Court either denied the existence of those caste customs that did allow the widow to keep her property on remarriage, or denied them any normative validity in its assessment of what constituted “Hindu law”.

A contrapuntal reading of Vithu vs Govinda – which Carroll undertakes in her essay – would begin by identifying the choice before the Court: the existence of a unified “Hindu” law, or the existence of diverse caste customs; it would then show how the Court reasoned its way to selecting the former (i.e., reliance upon geographically limited legal compendia, and the metaphysical belief that in Hindu law, the wife and husband were part of the same body); and lastly, it would resurrect the rejected narrative – the caste customs that allowed remarriage sans forfeiture of property – and place it, on its own terms, alongside the Court’s narrative of unification. Interestingly, a proto-reading of this sort was actually conducted by the Allahabad High Court in 1932, in Bhola Umar vs Kausilla, where the Court not only recognised the existence of competing customs and granted them normative validity, but also dismissed the same-body image as a “picturesque metaphor.”

Example 2: Education, Moral Capacity, and Rajbala vs State of Haryana

Contrapuntal readings are obvious, and relatively easy, when we’re dealing with colonial judgments, and especially those that deal with personal laws. It is even more important, however, to undertake contrapuntal readings of the post-Independence Supreme Court, because of the near-absolute presumption of legitimacy that its judgments enjoy, and because of its exalted status under the Constitution. In this context, consider the Court’s 2015 judgment in Rajbala vs State of Haryana, which upheld educational disqualifications for contesting local government elections. The Court’s response to the constitutional challenge to the Haryana Act, which was based on equal treatment and Article 14 of the Constitution, was to say that “it is only education which gives a human being the power to discriminate between  right and wrong, good and bad.” 

A constitutional critique of the judgment would point out the evidence-free nature of this claim, its departure from accepted principles of rational-review scrutiny under Article 14, and its refusal to consider disparate impact. A contrapuntal reading would go one step further. It would locate within the Court’s statement not simply an endorsement of “education“, but an endorsement of the centralised system of formal education controlled or approved by the State. It would argue that in elevating this system of formal education to a level where it served as a pre-requisite for the very existence of moral capacity among citizens, the Court effectively delegitimised – without argument or reason – alternative, non-formal traditions of education, and the role played by them in constituting the interior moral landscape of individuals. It would then resurrect these alternative traditions through testimonies and evidence from those who had not been part of the State’s centralised structure of education, but had nonetheless been part of its local governance structure (and, at that time, numerous such testimonies were taken).

Qualifications

It is important not to overstate the case, and to introduce some qualifications. To start with, it is a banal fact that every judicial decision, that is the outcome of an adverserial process, involves the selection and rejection of competing sets of facts and narratives. A property dispute requires the Court to accept one version of events and reject another, as does a murder trial. A contrapuntal reading, therefore, is not simply a resurrection of the story told by the defeated party in a litigation. As the Rajbala example shows, it is meant to apply to cases where the selection between a plurality of competing narratives bears a direct relationship with the nature, scope, and limits of the basic rights of citizens.

Secondly, there are areas of (constitutional) law where contrapuntal readings – although not by that name – are prevalent: most famously, within the realm of the Court’s religious freedom jurisprudence. In cases such as Sastri Yagnapurushadji and Acharya Avadhuta, where the Court is literally substituting its view of religious content for those of the adherents of that religion, a contrapuntal reading is the first form of interpretation that comes to mind (most recently, the Rajasthan High Court’s santhara judgment gave rise to numerous contrapuntally-oriented critiques about the true nature of the santhara practice). However, as cases such as Rajbala demonstrate, contrapuntal readings are equally important in other domains, especially where the Court’s selection and rejection of narratives is much less obvious.

And lastly, the legal/non-legal distinction drawn above is, I admit, a slippery one, given how intertwined legal and non-legal facts are in any complex judicial decision. For instance, in his book, The Horizontal Effects Revolution, Johan van der Walt criticises the German Constitutional Court’s “radiating effects” doctrine, calling it – in effect – a totalitarian imposition of a single set of values upon society. To what extent would a contrapuntal reading apply to a case where the selection is of a set of values in this manner? I am not sure; however, I do think that despite these troublesome issues at the border, the contrapuntal reading can serve as a useful guide to interpreting and understanding judicial decisions in a rigorous and critical manner.