Guest Post: Parliamentary Privileges and the Transformative Constitution – A Response to Karan Lahiri

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Parliamentary Privileges, transformative

(This is a guest post by Goutham Shivashankar.)

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This post is a response to Karan Lahiri’s absolutely fascinating post, on the recent decision of the Supreme Court in Kalpana Mehta & Ors. v. Union of India & Ors. Lahiri argues that Chandrachud’s J.’s invocation of the idea of the “Constitution as a transformative document”, was incorrect in the context of legislative privileges. To Lahiri, Article 105 of the Constitution, which provides for powers, privileges and immunities of the Houses of Parliament, is an instance where the Constitution is not “transformative” – it rather creates “explicit continuities” with India’s colonial past. Lahiri then asserts that Article 105 is better viewed as provision that is a “gateway to transformation”, since its wording imbues the Parliament with transformative potential in defining its privileges. Thus, Lahiri’s argument has two components: (i) that the Constitution was not transformative on the issue of legislative privilege but was rather an explicit colonial continuity; and (ii) that Article 105 though not transformative in itself, was pregnant with transformative potential. This post is not very concerned with part (ii) of Lahiri’s argument. It does, however, engage with part (i) seriously. I argue that the Indian Constitution was transformative qua the issue of legislative privilege, in at least one sense of the term, and in exactly the sense that Lahiri asserts it not to be. Moreover, it certainly cannot be regarded as a “colonial continuity”. In fact, Article 105 radically reverses a significant feature of the colonial rule, i.e., the pre-eminence of British Parliament over the colonial legislatures.

Fixing Concepts – “Transformative Constitution” and “Colonial Continuity”

It would help to fix concepts a little here. What do we mean by a “transformative constitution” and “colonial continuity”?

 Transformative Constitution

 As I understand it, there can be at least two conceptions of a “transformative” statute or constitution. In one sense, it could simply mean that the law “stands transformed” by virtue of statute or constitution that is enacted, i.e., a new law is brought into force that represents a radical and clean break from the position of law that preceded it. Or it could mean that the statute or constitution “has a transformative purpose”, i.e., that a change in law is brought about that is purposed to have a transformative impact on its field of action. The first conception focuses on the change in the content of the law itself and asks if the law has transformed beyond recognition. The second conception focuses on whether the change in law (which may or may not in itself be radical) is purposed to transform something else (other than the law) radically.

Differentiating between these two conceptions of a “transformative constitution” has analytical utility. It recognizes the possibility that the parts of the constitution can be transformative in the former sense, i.e., it brings about a radical change in the content of the law, while not necessarily having a “transformative purpose”. Similarly, a transformative purpose could potentially be achieved through minor changes in the law that could not be regarded as transformative of the content of law.

In Kalpana Mehta, Chandrachud J., appears to use the “transformative constitution” in both senses. He states that the constitution’s “vision is about achieving a social transformation… that seeks to place the individual at the forefront of its endeavors” (transformative purpose). This transformative purpose is achieved by transforming the content of law. Thus, he states:

“Crucial to that transformation is the need to reverse the philosophy of the colonial regime, which was founded on the subordination of the individual to the state… … For a colonial regime, individuals were subordinate to the law. Individuals were subject to the authority of the state and their well-being was governed by the acceptance of a destiny wedded to its power. Those assumptions which lay at the foundation of colonial rule have undergone a fundamental transformation for a nation of individuals governed by the Constitution. The Constitution recognises their rights and entitlements. Empowerment of individuals through the enforcement of their rights is the essence of the constitutional purpose.”

Thus, as noted by Chandrachud J., the conferment of fundamental rights to individuals was transformative in both senses of the word. It was purposed to achieve social transformation, and was transformative in the content of Indian law, by granting rights to individuals against the state in a radical, new way.

However, a law need not always be transformative in both senses of the term. In some cases, the content of law could stand radically transformed because of a preceding social transformation. Here, the law could stand transformed by a new “constitution”, but not with any transformative purpose. As I will seek to demonstrate here, the Constitution clearly transformed the “content” of the law of legislative privilege in India. Whether this change in the law’s “content” on legislative privilege was purposed to bring about social transformation of another sort, or whether it was occasioned by a preceding/underlying social transformation is less clear.

Colonial Continuity

It would also help to fix the meaning of the term “colonial continuity”. I should note that Chandrachud J. does not use this term, which Lahiri uses in his blog post. However, Lahiri is not clear on what he means by the term, though he indicates that Art. 105, by referring to the British House of Commons “establishes a colonial continuity”. If by this, he merely means that any constitutional provision referring to / establishing linkages with an institution of the erstwhile colonizer establishes a “colonial continuity”, then the concept does not really have much analytical utility. It says nothing about whether there was anything inherently “colonial” about the law on legislative privilege, and whether this “colonial” aspect of the law was “continued” by the Constitution. If, however, Lahiri means “colonial continuity” to refer to the continuation of a fundamental feature of colonial project, then Article 105 does no such thing, and Lahiri is incorrect in stating that it does. In fact, as I see, Article 105 is a radical break from the colonial law on legislative privilege in India, and the constitution fundamentally “transformed” the law in this regard, as I will illustrate below.

Chandrachud J. on legislative privilege

 Chandrachud J. seems to assume in his opinion that the law on parliamentary privileges as enacted by the Constitution was purposed to certain ends of social transformation, i.e., the assertion of rights and access to justice. This is clear when he states:

 

“Hence, in understanding the issues which have arisen before the Court in the present reference, it is well to remind ourselves that since the Constitution is about transformation and its vision is about empowerment, our reading of precepts drawn from a colonial past, including parliamentary privilege, must be subjected to a nuance that facilitates the assertion of rights and access to justice.”

He provides little evidence to substantiate any such transformative purpose to Article 105 of the Constitution, and this is rightly pointed out by Lahiri in his post. Thus far, Lahiri’s analysis is excellent. I also have no quarrel with the larger point which Lahiri makes, i.e., that there must be rigour in invoking the notion that the constitution is a “transformative document” when it is sought to be used as an interpretive tool. When invoking the “transformative constitution” as an aid to interpretation, judges must necessarily ask: (i) whether or not that part of the Constitution that they are interpreting was transformative: (ii) in what sense was it transformative, i.e., did it transform the content of pre-existing law? (or) did it have a transformatory purpose?. The “transformative constitution” should not be used as a carte blanche to interpret any and all parts of the Constitution in a free-wheeling liberal way. Indeed, Lahiri’s is an important cautionary note struck at a time when the idea of the “transformative constitution” appears to be gaining substantial recognition. Too often have Indian courts and academics used flowery language to mask flawed logic and lazy reasoning.

Why Article 105 cannot be regarded a “colonial continuity”

After correctly identifying Chandrachud J’s failure to identify or argue for a “transformative purpose” behind Article 105, Lahiri incorrectly goes on to assert that that Article 105 (both as originally enacted and after the 42^nd and 44^th constitutional amendments) is an instance of explicit “colonial continuity”. He bases his assertion on the fact that Article 105(3) made the privilege rules of Indian Parliament effectively the same as the British House of Commons. This was done by the original constitutional text through explicit reference to the House of Commons, and after the 44^th amendment, through a slightly circuitous route. According to Lahiri, this explicit reference to the privileges of the British House of Commons creates an explicit colonial continuity”. I argue that this in incorrect. On the contrary, Article 105 radically reverses a significant feature of the colonial rule, i.e., the pre-eminence of British Parliament over the colonial legislatures.

Lahiri’s analysis is incomplete in one crucial respect. He fails to ask: what were the privileges enjoyed by pre-Constitutional legislative bodies in India? Surely, “continuity” in the context of an Indian parliament would make sense only when viewed with predecessor legislative bodies in India. When thus viewed, the transformative character of Article 105 becomes immediately apparent. It was indeed transformative, as originally enacted. A large part of the analysis that follows borrows heavily from an excellent research paper by P.N.Malhan of the Punjab University, published in 1942 in the Indian Journal of Political Science. The paper provides a very good picture of the privileges enjoyed by pre-constitutional colonial legislatures in India, under both the Government of India Acts 1919 and 1935.[1]

The legislative privileges enjoyed by colonial legislatures in the British Commonwealth were radically different from those enjoyed by British Parliament. Indeed, British Parliament (and its constituent houses) was always regarded as a class apart, which derived its sanction and authority, not just by virtue of its status as a “sovereign legislative body”, but also on account of its status as the “High Court of Parliament”. The privileges of British Parliament rest upon its own law called the “lex et consuetudo Parliamenti” (i.e., the law and custom of Parliament) and upon certain specific statutory grants of privilege. In contrast, colonial legislatures have only very limited powers. As Halsbury puts it:

 

“Without express grant, a colonial legislature possesses no power to protect itself against obstruction, interruption, or disturbance of the proceedings by misconduct of any of the members in the course of those proceedings, except such as are necessary to the existence of such a body and the proper exercise of the functions which it is intended to execute. Whatever in a reasonable sense is necessary for those purposes is impliedly granted, whenever any such legislative body is established by competent authority. For those purposes protective and self-defensive powers only and not punitive are necessary. There are Legislative Assemblies in the British Colonies, which have, in the absence of express grant, no power to adjudicate upon, or punish for contempts committed either in their presence or beyond their presence.”[2]

 The position of colonial legislatures in India were no different from other parts of the Commonwealth. In comparison to British Parliament, they possessed woefully restricted privileges. As Malhan put it, the framers of the Government of India Act 1919 “summarily dismissed” the vital problem of privileges of the Legislative Councils, by enacting minimal protections. Despite calls for reform on this front, privileges were not substantially increased in the remaining period of Indian’s colonial history. Incremental increases in privileges were secured by the Legislative Members Exemption Act, 1925. The Government of India 1935 gave a little more importance to the issue, but interestingly, in language strikingly similar to Article 105, established an explicit continuity in privileges of the Chambers of Provincial Legislatures with the privileges that Legislative Councils of the Province used to previously enjoy (note that the continuity is with previous colonial legislatures in India and not British Parliament). Strikingly, it also had transformative potential of a similar nature to Article 105, albeit one that was more limited.[3] Section 71 of the Government of India Act, 1935 provided as follows:

“71.-(1) Subject to the provisions of this Act and to rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in every Provincial Legislature, and no member of the Legislature shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a Chamber of such a Legislature of any report, paper, votes or proceedings.

(2) In other respects the privileges of members of a Chamber of a Provincial Legislature shall be such as may from time to time be defined by Act of the Provincial Legislature, and, until so defined, shall be such as were immediately before the commencement of this Part of this Act enjoyed by members of the Legislative Council of the Province.

(3) Nothing in any existing Indian law, and, notwithstanding anything in the foregoing provisions of this section, nothing in this Act, shall be construed as conferring, or empowering any Legislature to confer, on a Chamber thereof or on both Chambers sitting — together or any committee or officer of the Legislature, the status of a court, or any punitive or disciplinary powers other than the power to remove or exclude persons infringing the rules or standing orders, or otherwise behaving in a disorderly manner.”

Conclusion

The upshot of the above is this. It could be argued that one of the features of the colonial project was the pre-eminence of British Parliament over colonial legislatures. One manifestation of this pre-eminence was in the special privileges that British Parliament had that colonial legislatures, including colonial legislatures in India, did not. Article 105 of the Constitution represents a radical break from the past, by conferring the same privileges upon Indian Parliament that were enjoyed by the British Parliament at the time the Constitution came into force. The equation of Indian Parliament to British Parliament is to be viewed as a radical act that is a complete break from a colonial past which subordinated Indian Parliament to British Parliament. It can by no means be regarded as an “explicit constitutional continuity” as Lahiri puts it. In addition, I would argue that the Article 105 was indeed “transformative”, just not in the way that Chandrachud J. meant it. It does not seem to have a discernable “transformative purpose” as Lahiri puts it, at least in terms of social transformation. Without doubt, however, it legislates a substantial transformation in the law on legislative privilege in India.

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[1] Malhan, P. N. “LEGISLATIVE PRIVILEGES IN INDIA.” The Indian Journal of Political Science, vol. 3, no. 3, 1942, pp. 337–359. JSTOR, JSTOR, http://www.jstor.org/stable/42742679

[2] Halsbury’s Laws of England (1936 Edition), Vol. Parliament, Part VII, Para. 697 (as quoted in Malhan, supra)

[3] The transformative potential in Section 71(2) was limited by Section 71(3). The privileges could be increased through legislation but could not confer upon Chambers of Legislature a power to punish or discipline akin to that enjoyed by a court.

Guest Post: Transformation, Continuities, and Gateways to Transformation: Reflections on the Kalpana Mehta judgment

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conservative constitution, Parliamentary Privileges, transformative constitution

(In this Guest Post, through an analysis of the Kalpana Mehta judgment, Karan Lahiri argues that the divide between “conservative” and “transformative” Constitutions/constitutional provisions is simplistic, and misses a crucial, third kind of constitutional clause: that which serves as a “gateway to transformation.” This three-pronged typology is truer to the Constitutional text, structure, history, and philosophy.)

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In May this year, a Constitution Bench of the Supreme Court pronounced its decision in Kalpana Mehta & Ors. v. Union of India & Ors., where it ruled on a question impacting the horizontal separation of powers between legislature and judiciary: namely the extent to which the Supreme Court could rely upon a Parliamentary Standing Committee Report (“PSC Report”). The Court was, essentially, called upon to identify whether, and at what point, such reliance impinged upon legislative privilege. [A post on this blog has provided some background on the issues involved.]

The Kalpana Mehta Judgment

Two questions had been referred to this bench of five judges by an Order of April 05, 2017: –

“(i) Whether in a litigation filed before this Court either under Article 32 or Article 136 of the Constitution of India, the Court can refer to and place reliance upon the report of the Parliamentary Standing Committee?

(ii) Whether such a Report can be looked at for the purpose of reference and, if so, can there be restrictions for the purpose of reference regard being had to the concept of parliamentary privilege and the delicate balance between the constitutional institutions that Articles 105, 121 and 122 of the Constitution conceive?”

The case involved the licensing and testing of certain vaccines designed to prevent cervical cancer. The Petitioners sought to rely on proceedings before a Parliamentary Standing Committee to establish, among other things, irregularities in clinical trials. The problem before the Court was that if this Report was relied on by one party as evidence of such irregularities, the contents of the Report would become contentious. The other party would dispute them, and the Court would be forced to examine the correctness of the statement made before the Committee as also the correctness of the Report itself. This is a prerogative that the rules of parliamentary privilege reserve for Parliament alone, since such Committees are limbs of Parliament and their Reports constitute advice to the House (as per the Rules of Business). Therefore, reliance by one party would trigger an institutional conflict between legislature and judiciary. This is why the Supreme Court had to clearly define situations where such conflict would not occur, and carve out a set of cases where such reliance on PSC Reports was permissible.

By way of example, let us imagine a situation where a PSC was looking into the felling of trees in Central and South Delhi. A reputed environmentalist deposes before the Committee that 16,000 trees have been cut down illegally. An NGO then files a PIL before the Supreme Court on the strength of this PSC Report, and the statement contained in the Report. The Government appears before the Court and contests the veracity of the statement that 16,000 trees were felled, and produces conflicting evidence that only 420 trees were felled after obtaining all the requisite clearances. This would place the Court in a position where it would be impinging upon the powers of Parliament, because the truth of a statement made before one of its Committees can only be questioned before Parliament itself, with possible consequences (such as proceedings for contempt of the House) following as a result. Similarly, only Parliament can deliberate upon the correctness of the advice provided by a PSC. Drawing a line between the powers of the judiciary and prerogative of Parliament is, therefore, critical, particularly in an age where the Supreme Court is sometimes acting as a fact-finding trial court, arguably going beyond its role and institutional competence as a constitutional court.

In deciding the reference, the Court handed down three plurality opinions – Chief Justice Misra wrote for himself and Justice Khanwilkar; Justice Sikri signed on to Justice Chandrachud’s opinion; and, Justice Ashok Bhushan wrote a separate opinion. As usual, this brings up the question of what the decision ultimately laid down. Based on my reading, the following points emerge: –

• All five judges agreed that a PSC Report can be used as an external aid to statutory interpretation, to throw light on legislative history, on the policy problem (referred to by lawyers as the “mischief“) sought to be addressed by a statute etc. In other words, it could be used to give context to the interpretation of statute that was deliberated upon before the Committee.
• The Court also held that judicial notice can be taken of proceedings in Parliament under Section 57(4) of the Indian Evidence Act, and this can serve as proof of the existence of the report, statements made in Parliament, historical facts etc.
• The CJI and Justice Khanwilkar, on one hand, and Justice Chandrachud and Sikri, on the other, agreed on the point that a PSC Report cannot constitute substantive evidence of underlying facts, as such facts (for instance, facts in respect of the conduct of an individual) would be contentious (triggering the issue of privilege) and, therefore, the Court would have to adjudicate on the basis of other evidence [See Paragraphs 124-127, 138(iii), 138(iv) of the CJI’s opinion; Paragraphs 67, 74, 74(iii) of Justice Chandrachud’s opinion]. On this point, Justice Bhushan was in the minority, as he seemed to hold (at Paragraph 150 of his opinion) that a PSC Report can be one of the pieces of evidence used to prove underlying facts.
• According to Justice Chandrachud (with Justice Sikri), a Parliamentary Standing Committee Report can be used to hold the State and its agencies accountable, particularly in the Court’s PIL jurisdiction. This is because, according to them, there is a functional complementarity between the Courts and the Committees in this regard, However, they were in the minority on this point, as no other judge seems to have a special carve-out in respect of government accountability. [See Paragraph 65-66 in Justice Chandrachud’s opinion]

As I was involved in the litigation, I will refrain from commenting on the outcome of the case, focusing instead on one specific aspect, namely Justice D.Y. Chandrachud’s vision of a “transformative” Constitution, and how he views the moment of creation of our Constitution as a break with the past. I believe this is particularly significant because he is a member of the Constitution Bench that recently heard the correctness of the 2013 decision in Suresh Kumar Koushal v. Naz Foundation (which had upheld the constitutionality of S. 377 IPC), as also part of another bench deciding whether it is constitutional for women of menstruating age to be banned from entering the Sabarimala temple. One side in both cases would be relying on an interpretation of the Constitution as a transformative document: first, to argue that our Constitution marked a break from Victorian morality that demanded criminalization of homosexuality (replacing it with a constitutional morality of choice where every individual could love without fear of the police State); and also, that it left behind an archaic religious morality that permitted menstruating women to be branded as impure, excluding them from an aspect of society (i.e. worship) based on immutable personal traits in a manner categorically similar to “untouchability” (as argued here on this blog).

Questioning the “Transformative Constitution”

I believe, however, that Justice Chandrachud’s emphasis on transformation, as fascinating as it may be, is actually incorrect in this particular case, because the provisions that fell for consideration in the Kalpana Mehta case explicitly establish continuities with the past. The main provision that the Court was considering is Article 105 of the Constitution, which reads:

“105. Powers, privileges, etc of the Houses of Parliament and of the members and committees thereof

(1) Subject to the provisions of this constitution and the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament

(2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings

(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined shall be those of that House and of its members and committees immediately before the coming into force of Section 15 of the Constitution (Forty fourth Amendment) Act 1978

(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament.”

[NOTE: Article 194 is the corresponding provision for State legislatures.]

It would be reasonable to ask why an issue of privilege would arise with respect to a Parliamentary Standing Committee Report, given that nothing in Article 105 seems to explicitly bar judicial scrutiny or consideration of such reports. The answer lies in the continuities explicitly created by Article 105(3), which become apparent when one looks at its drafting history. The following table highlights the amendments that Article 105(3) went through over the years.

Original Provision	Text post 42nd Amendment	Present version post the 44th Amendment
(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members of each House, shall be such as may from time to time be defined by Parliament by law, and until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of the Constitution.	(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House shall be those of that House and of its members and committees immediately before the coming into force of section 21 of the Constitution (42nd Amendment) Act, 1976, and as may be evolved by such House of Parliament from time to time.	(3) In other respects the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of the House and of its members and committees as immediately before the coming into force of Section 15 of the Constitution (Forty-fourth Amendment) Act, 1978.

 

Section 21 of the Constitution (42^nd Amendment) Act never came into force, as the Congress Government was replaced the by the Janata Alliance in 1977 before the provisions could be formally notified. Therefore, the original provision continued until 20.06.1979, when the 44^th Amendment Act brought into force the present version of Article 105(3). The amendment, however, is nothing more than semantics, merely replacing the reference to the “House of Commons of the Parliament of the United Kingdom” with a reference to the privileges “of the House and of its members and committees as immediately before the coming into force of Section 15 of the Constitution (Forty-fourth Amendment) Act, 1978”. As the Indian Parliament had made no law defining parliamentary powers, privileges and immunities as on the date that the 44^th Amendment was enacted, the privileges which existed before the coming into force of the 44^th Amendment Act were basically those that were created by the original provision, namely the rules applicable in the British House of Commons as on the date of commencement of the Constitution. [Both the table above, and the history of the provision, are from D.D. Basu, Commentary on the Constitution of India, Vol. 4, Pg. 5034 (8^th edn., LexisNexis Butterworths Wadhwa)].

I would like to highlight four things, at this point, which become evident on reading the table given above: –

• First, our privilege rules are the same as those of the British House of Commons.
• Second, the original Article 105(3) explicitly referred to the British House of Commons.
• Third, the provision place the onus on future legislatures to transform the rules of privilege and break from the traditions of the House of Commons, a duty that our Parliament has, sadly, ignored.
• Finally, the 42^nd Amendment allowed room for a second avenue for homegrown rules of privilege (other than an explicit law) evolved through Parliamentary practice when it referred to rules “as may be evolved by such House of Parliament from time to time.” This was explicitly eviscerated by the 44^th Amendment, once again establishing a continuity, which did not allow for transformation through parliamentary practice.

It is because of these explicit continuities that the questions referred to the Constitution Bench in the Kalpana Mehta case arose in the first place. As is evident from the Order of April 05, 2017, as also the final judgment of the Court, the Respondents, while making their case for exclusion of the Report, referred to precedents from the United Kingdom to formulate the proposition that records of parliamentary proceedings cannot constitute proof of underlying facts, and that records of parliamentary proceedings (including PSC Reports) cannot be relied on in a Court such that the contents of the same become contentious.  Take, for instance, the decision of the Queen’s Bench in Church of Scientology of California v Johnson-Smith, (1972) 1 Q.B. 522 where it was held that “what is said or done in the House in the course of any proceedings there cannot be examined outside Parliament for the purpose of supporting a cause of action even though the cause of action itself arises out of something done outside the House.”

The purpose here is not to exhaustively examine decisions on privilege from the U.K. Such examination was carried out by the Court in the Kalpana Mehta judgment, and the correctness of their conclusion on this aspect is not something I am examining in this essay. The point here is that such examination was required precisely because of the colonial continuities established by Article 105(3), which ties our rules of privilege to those prevalent in the British House of Commons, and the Court ought to have confined itself to this alone. In other words, the questions before the Court should have been answered in two steps: –

• Step 1: Read Article 105(3).
• Step 2: Refer to parliamentary practice in the British House of Commons based on the explicit text and legislative history of Article 105(3), and whether there is are equivalent principles in the U.K. which would throw light on the circumstances in which a PSC Report could or court not be relied upon.

In fact, the reference to the British House of Commons in Articles 105 and 194 (Article 85 and 169 of the Draft Constitution of 1948) was actually debated in the Constituent Assembly (on 19.05.1949 and 03.06.1949 respectively). H.V. Kamath sought to move an amendment to delete this reference when the provision was debated on 19.05.1949, stating that “it is far better to build our own solid ground, rather than rely on the practices obtaining in other countries.” Naziruddin Ahmad said that “after Independence, we cannot relate our rights to those available to the Members of the House of Commons. Various members (such as Prof. Shibban Lal Saksena and Dr. P.S. Deshmukh) sought inclusion of an Appendix or a Schedule, clearly delineating the privileges to be enjoyed by legislators in India. The response came from Alladi Krishnaswami Ayyar (with whom Dr. Ambedkar concurred). He mentioned that similar provisions exist in Australia and Canada, stressing on the “widest privileges” as exercised by Members of Parliament in England. He also said that a Committee had attempted to catalogue parliamentary privileges, but this effort failed as time was insufficient. Most importantly, he stressed on the fact that this was a “temporary measure” and that “[t]here is nothing to fetter the discretion of the future Parliament of India.” From the debates, therefore, it is starkly evident that, firstly, despite the protests of a few members, the incorporation by reference of the privileges enjoyed by the House of Commons in the U.K. was retained by our Constituent Assembly and, secondly, despite this ostensibly being a temporary measure, no subsequent Parliament has chosen to end the colonial continuities contained in Article 105(3), delineating privilege rules for an Independent India, despite almost 68 years having passed since the Constitution was adopted. Both the Constituent Assembly and Parliament have, therefore, deliberately eschewed transformation in this particular case.

Gateways to Transformation

Let us now look at Justice Chandrachud’s exposition on our transformative Constitution in the Kalpana Mehta judgment. He states: –

71. In finding an answer to the questions in reference, this Court must of necessity travel from a literal and perhaps superficial approach, to an understanding of the essence of what the Constitution seeks to achieve. At one level, our Constitution has overseen the transfer of political power from a colonial regime to a regime under law of a democratic republic. Legitimizing the transfer of political power is one, but only one facet of the Constitution. To focus upon it alone is to miss a significant element of the constitutional vision. That vision is of about achieving a social transformation. This transformation which the Constitution seeks to achieve is by placing the individual at the forefront of its endeavours. Crucial to that transformation is the need to reverse the philosophy of the colonial regime, which was founded on the subordination of the individual to the state. Liberty, freedom, dignity and autonomy have meaning because it is to the individual to whom the Constitution holds out an assurance of protecting fundamental human rights. The Constitution is about empowerment. The democratic transformation to which it aspires places the individual at the core of the concerns of governance. For a colonial regime, individuals were subordinate to the law. Individuals were subject to the authority of the state and their well-being was governed by the acceptance of a destiny wedded to its power. Those assumptions which lay at the foundation of colonial rule have undergone a fundamental transformation for a nation of individuals governed by the Constitution. The Constitution recognises their rights and entitlements. Empowerment of individuals through the enforcement of their rights is the essence of the constitutional purpose. Hence, in understanding the issues which have arisen before the Court in the present reference, it is well to remind ourselves that since the Constitution is about transformation and its vision is about empowerment, our reading of precepts drawn from a colonial past, including parliamentary privilege, must be subjected to a nuance that facilitates the assertion of rights and access to justice. We no longer live in a political culture based on the subordination of individuals to the authority of the State. Our interpretation of the Constitution must reflect a keen sense of awareness of the basic change which the Constitution has made to the polity and to its governance.

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73. Once we place the fulfilment of individual rights and human freedoms at the forefront of constitutional discourse, the resolution of the present case presents no difficulty. Individuals access courts to remedy injustice. As institutions which are committed to the performance of a duty to facilitate the realisation of human freedom, High Courts as well as this Court are under a bounden obligation to seek and pursue all information on the causes of injustice. Where the work which has been performed by a coordinate constitutional institution – in this case a Parliamentary Committee, throws light on the nature of the injustice or its causes and effects, constitutional theory which has to aid justice cannot lead us to hold that the court must act oblivious to the content of the report. [Emphasis supplied]

I fear that this exposition, enlightening as it may be while interpreting other portions of the Constitution, lacks precision when it comes to parliamentary privileges. To be fair, he does not ascribe a transformational purpose to Article 105. What he does, however, is employ a line of reasoning which would potentially render meaningless the text of Article 105. If we parse his reasoning, and break it down, it would go something like this:

• A literal interpretation of the Constitution in this case would be superficial. We must look at the larger transformation purpose of the Constitutional, which empowers individuals.
• One of the ways in which the Constitution empowers individuals is to given then the right to remedy injustice by approaching Courts. [Notice that he does not place any particular fundamental right in conflict with Article 105(3) or the privilege rules of the U.K.]
• When the work of inquiring into the causes of such injustice has been carried out by a coordinate institution, there is no reason why a Court should not rely on the product of such inquiry.

As appealing as this may appear, there are huge problems with this line of reasoning. First, a larger transformational purpose cannot be used to distort the explicit language of Article 105, which clearly establishes a colonial continuity by referring to the privilege rules of the British House of Commons. The statement that “our reading of precepts drawn from a colonial past, including parliamentary privilege, must be subjected to a nuance that facilitates the assertion of rights and access to justice” is in conflict with Article 105(3) itself, which explicitly draws from our colonial past and incorporates by reference the rules of privilege prevalent in Britain prior to the adoption of the Constitution. Second, in this particular case, it is not even clear as to how Justice Chandrachud would read Article 105 differently in light of the Constitution’s transformative purpose. My only guess is that he is driving towards a principle where we ignore certain privilege rules in the U.K. if they conflict with this larger, amorphous idea of a transformative Constitution. Third, the fact that individuals approach Courts to remedy injustice does not really assist us in determining the extent and limits of privilege. To remedy such injustice, a constitutional Court cannot expand its powers and trample upon the prerogatives of Parliament. Putting it another way, a constitutional form of government also protects the individuals from the legislature, executive or judiciary assuming powers beyond those granted by the Constitution. The horizontal separation of powers between judiciary and legislature cannot be disturbed on the reasoning that the individual approaches one forum directly for redress. Finally, the purpose of inquiry by a Parliamentary Standing Committee is to advise Parliament, which then deliberates on ameliorating injustice through legislation. Courts have independent fact-finding powers – especially our Supreme Court which routinely forms SITs and other such inquisitorial committees. The fact that a PSC is inquiring into the same injustice as a constitutional Court does not, in itself, justify the conclusion that “there is no reason why a Court should not rely on the product of such inquiry” because, if there is a conflict with the rules of privilege, that provides an absolute reason to preclude reliance.

I believe that Justice Chandrachud’s idea of transformative Constitution is a powerful one. It will, however, come to be identified as shorthand for judicial overreach if it is not deployed in a consistent and intellectually rigorous manner. Certain provisions in our Constitution, such as Article 17, are pregnant with transformative purpose. Others, especially those derived from the Government of India Act, 1935, establish colonial continuities. There is a third category, like Article 105(3) that provides a gateway to transformation, by placing a responsibility upon Parliament to lay down new rules for an independent India (in this case, a charter of privileges derived from post-Independent experimentation), preserving colonial continuities as a temporary measure until Parliament rises to the occasion. Our courts should, perhaps, acknowledge the patchwork nature of our Constitution in interpreting it, to preserve its truest meaning.

Round-Up: Constitution Bench Judgments on Assisted Dying and Parliamentary Standing Committee Reports

Tags

article 21, euthanasia, Parliamentary Privileges, Right to Die, standing committee reports, transformative constitution

Ever since the present Chief Justice assumed office, he has been presiding over what is effectively a permanent Constitution Bench, that has been hearing – and is scheduled to hear – a total of thirteen cases. In the first half of the year, the Bench handed down two judgments that have constitutional implications. The first was Common Cause v Union of India (now better known as the “passive euthanasia” case) and the second one was Kalpana Mehta v Union of India (the “parliamentary standing committees” case).

I do not think that either of these cases require a granular examination; the questions before the Court were broad, and were answered in broad terms. I shall briefly summarise the holdings, but before I do so, I think it is important to note, in passing, that Common Cause clocks in at 538 pages, and Kalpana Mehta at 338 pages. The length of both these judgments could be significantly shortened if the Chief Justice resisted the temptation of spending reams of pages philosophising about life and death in the first case, and about democracy in the second case. They could also be significantly shortened if the judges – none of whom dissented in either case – resisted the temptation of writing 100+-page concurring opinions (Common Cause has four separate opinions, Kalpana Mehta three).

For example, in Common Cause, Justice A.K.. Sikri wrote:

“My purpose is not to add my ink to the erudite opinion expressed in otherwise eloquent opinions penned by my learned brothers. At the same time, having regard to the importance of the issue involved, I am provoked to express my own few thoughts, in my own way, which I express hereinafter.” (paragraph 8)

It is respectfully submitted that the eminently laudable purpose of not adding ink is best served by, well, not adding ink. The provocation to express one’s own thoughts in one’s own way is an understandable one, but judges are, after all, meant to be made of stuff stern enough to recognise and avoid such provocations. This is not to say that the concurrences shouldn’t exist – for example, in Common Cause, Chandrachud J. has a significant disagreement with the other judges on the issue of causation, a disagreement that can be expressed only through an opinion that concurs in the result, but sets out its own separate reasoning. That apart, however, in both these cases, the five judges agree on almost everything. In such circumstances, a single opinion of the Court would make everyone’s life much easier.

In Common Cause, the Constitution Bench unanimously held that passive euthanasia was legal, grounded in the “right to die with dignity” under Article 21 of the Constitution, and ancillary concepts, such as the freedom of choice (to refuse medical treatment), personal autonomy, bodily integrity. The Court only legalised passive euthanasia (that is, to put it simply, the removal of life-supporting machinery from a terminally ill patient), not active euthanasia (mercy killing) or suicide. Following the Vishaka model, the Chief Justice laid down detailed guidelines (which immediately proved controversial) to facilitate the right through the mechanism of “Advance Directives”, and to prevent abuse.

There are perhaps two interesting jurisprudential points that emerge from the judgment. Four of the five judges grounded the distinction between “active” and “passive” euthanasia in the philosophical distinction between acts and omissions:

In case when the death of a patient occurs due to removal of life-supporting measures, the patient dies due to an underlying fatal disease without any intervening act on the part of the doctor or medical practitioner, whereas in the cases coming within the purview of active euthanasia, for example, when the patient ingests lethal medication, he is killed by that medication. (Opinion of the Chief Justice, para 46)

Justice Chandrachud – in my view, correctly – recognised the incoherence of this distinction, especially in the context of something like euthanasia. As he observed:

Against the background of the duty to care, the moral and legal status of not saving a life due to failure to provide treatment, can be the same as actively taking that life.A doctor who knowingly allows a patient who could be saved to bleed to death might be accused of murder and medical negligence. The nature of the doctor-patient relationship which is founded on the doctor’s duty of care towards the patient necessitates that omissions on the doctor’s part will also be penalised. When doctors take off life support, they can foresee that death will be the outcome even though the timing of the death cannot be determined. Thus, what must be deemed to be morally and legally important must not be the emotionally appealing distinction between omission and commission but the justifiability or otherwise of the clinical outcome. Indeed, the distinction between omission and commission may be of little value in some healthcare settings. (paragraph 40)

I’m not quite sure how this split in the approaches towards the act/omission distinction will play out in future cases, but – for obviously reasons – it seems to me that Justice Chandrachud’s approach – which detaches justification from the analytical classification of an event into an act or an omission – is far sounder (later on in his judgment, he – again, correctly in my view – recognises that the distinction is nevertheless maintained in the penal law, and therefore, active euthanasia can only be legalised by the legislature (para 93); and then, still later – this time, wrongly, in my view – links it to mens rea (para 98)).

The second interesting feature that I want to highlight is a little more abstract. When you pare it down to essentials, Common Cause was about a right of refusal. At one level, it was the right to refuse life-prolonging medical treatment. At a second level, however, it was also a right to refuse unwarranted technological intervention into one’s body, or – to put it in another words – the right to refuse being conscripted into a technological system, whatever its beneficial purpose. All the judges recognised this – whether it was the Chief Justice with his striking question about whether an individual should be made “a guinea pig for some kind of experiment”, or Justice Chandrachud’s repeated use of the word “intervention”.

When you combine this with the judgment’s invocation of privacy and autonomy, you get the germ of a concept that I’d like to call “technological self-determination.” In a piece written soon after the judgment, I attempted a definition:

Individuals have the right to engage with technological systems on their own terms, the right to opt into or opt out of such systems without suffering for it, and the right not to be subjected to technological intervention without being given meaningful choice. Let us call this the principle of technological self-determination: or the right of every individual to determine how, on what terms, and to what extent, she will engage with technological systems.

In Common Cause, the stakes were relatively low; however, in the years to come, as technology becomes ever more ubiquitous and ever more intrusive, the idea of technological self-determination will become crucial. One does not even need to look to the future: technological self-determination is a key aspect of the Aadhaar constitutional challenge, presently awaiting judgment. Aadhaar is a complex technological system that operates at the stages of collection, storage and use of personal data; mandatory Aadhaar authorises the government to set the terms by which individuals must engage with this system.

Technological self-determination may or may not feature in the Aadhaar judgment, but it has, at least, made an incipient appearance in Common Cause, and gives all of us something to build on for the future.

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The Constitution Bench’s second judgment dealt with the use of Parliamentary Standing Committee reports in Court. The reference arose out of a PIL, which is unsurprising: it is primarily in PILs – where broad and far-reaching (and often continuing) remedies are sought, and the Court takes on the role of an administrator – that the findings of Parliamentary Standing Committees become particularly useful.

In a forthcoming blog post, Karan Lahiri will critique the judgment in some detail; reading it, however, was a somewhat strange experience, because both sides appeared to agree on a lot of issues. Both sides agreed that the credibility of a member of Parliament could not be impugned in Court, through the production of a PSC, since the doctrine of parliamentary privileges and the principle of the separation of powers militated against it. Both sides agreed that a Parliamentary Standing Committee could be used in an interpretive enquiry – that is, while interpreting ambiguous statutory provisions, as a part of the legislative history and record. The Court accepted both these straightforward propositions. The Court also held that – in terms of the law of Evidence – a PSC could be treated as a “fact.” Broadly, this means that the existence of the PSC and the existence of its contents (including, presumably, which Minister said what) are factual, and can be relied upon in Court without dispute. However, the contents themselves cannot be relied upon. For example, if a PSC states that “x was the situation prevailing at y time”, then the fact that the PSC says can be cited in Court (say, to interpret a law, or for some other purpose), but the question of whether x was actually the situation at the time has to be demonstrated independently, and using the rules of evidence:

From the aforesaid, it clear as day that the Court can take aid of the report of the parliamentary committee for the purpose of appreciating the historical background of the statutory provisions and it can also refer to committee report or the speech of the Minister on the floor of the House of the Parliament if there is any kind of ambiguity or incongruity in a provision of an enactment. Further, it is quite vivid on what occasions and situations the Parliamentary Standing Committee Reports or the reports of other Parliamentary Committees can be taken note of by the Court and for what purpose. Relying on the same for the purpose of interpreting the meaning of the statutory provision where it is ambiguous and unclear or, for that matter, to appreciate the background of the enacted law is quite different from referring to it for the purpose of arriving at a factual finding. That may invite a contest, a challenge, a dispute and, if a contest arises, the Court, in such circumstances, will be called upon to rule on the same. (Opinion of the Chief Justice, para 117)

And:

“… whenever a contest to a factual finding in a PSC Report is likely and probable, the Court should refrain from doing so. It is one thing to say that the report being a public document is admissible in evidence, but it is quite different to allow a challenge.” (Opinion of the Chief Justice, para 124)

There is some doubt on this last point, as it appears that Justice Chandrachud and Sikri’s joint opinion envisioned a slightly more prominent role for PSCs, where it factual determinations could be impacted by virtue of being part of a PSC (this is my reading, and I am open to correction on this). However, even if that was the case, it would put them in a minority: on my reading, the majority holding in Kalpana Mehta is what I extracted in the paragraph above.

Doctrinally, it is interesting to note that, in the course of extensive discussions by the three separate opinions on issues of parliamentary privileges, democracy, and the separation of powers, it was only Justice Chandrachud, in the joint opinion, who addressed the elephant in the room: that with PIL becoming such a dominant part of the Court’s docket – which includes, inter alia, the Supreme Court often assuming the role of the first and final trier of fact – the application of separation of powers and parliamentary privileges necessarily needs to change, just to maintain internal consistency. In cases where the Court issues a continuing mandamus and monitors government action on a hearing-by-hearing basis (such cases are legion by now across India), the entire approach that was founded on the Executive being the primary implementing authority, needs to be modified. As the joint opinion observed:

“In matters involving issues of public interest, courts have been called upon to scrutinize the failure of the state or its agencies to implement law and to provide social welfare benefits to those for whom they are envisaged under legislation. Courts have intervened to ensure the structural probity of the system of democratic governance. Executive power has been made accountable to the guarantee against arbitrariness (Article 14) and to fundamental liberties (principally Articles 19 and 21).

Committees of Parliament attached to ministries/departments of the government perform the function of holding government accountable to implement its policies and its duties under legislation. The performance of governmental agencies may form the subject matter of such a report. In other cases, the deficiencies of the legislative framework in remedying social wrongs may be the subject of an evaluation by a parliamentary committee. The work of a parliamentary committee may traverse the area of social welfare either in terms of the extent to which existing legislation is being effectively implemented or in highlighting the lacunae in its framework. There is no reason in principle why the wide jurisdiction of the High Courts under Article 226 or of this Court under Article 32 should be exercised in a manner oblivious to the enormous work which is carried out by parliamentary committees in the field. The work of the committee is to secure alacrity on the part of the government in alleviating deprivations of social justice and in securing efficient and accountable governance. When courts enter upon issues of public interest and adjudicate upon them, they do not discharge a function which is adversarial. The constitutional function of adjudication in matters of public interest is in step with the role of parliamentary committees which is to secure accountability, transparency and responsiveness in government. In such areas, the doctrine of separation does not militate against the court relying upon the report of a parliamentary committee. The court does not adjudge the validity of the report nor for that matter does it embark upon a scrutiny into its correctness. There is a functional complementarity between the purpose of the investigation by the parliamentary committee and the adjudication by the court….

… The extent to which the court would rely upon a report must necessarily vary from case to case and no absolute rule can be laid down in that regard.” (Joint Opinion authored by Chandrachud J., paras 65 – 66)

I do not know if this addresses the problem to the fullest extent – to be fair, I don’t know if the problem can be addressed within existing legal vocabulary, which simply doesn’t envisage the Court as permanent administrator – but it does, at least, acknowledge the misfit, and make a start towards addressing it. Justice Chandrachud’s invocation of the “transformative Constitution” at the end of the Opinion, as an anchoring principle, is interesting, and I shall examine it in some detail in a subsequent post.

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(This ends the Round-Up Series, that dealt with important constitutional pronouncements in the first half of 2018.)