The Supreme Court’s Electoral Bonds Judgment – II: The Arbitrariness of Manifest Arbitrariness [Guest Post]

[This is a guest post by Kieran Correia.]

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In an earlier post, I discussed the majority opinion’s analysis of the first issue in the Electoral Bonds Case – whether the non-disclosure provisions which the Finance Act 2017 introduced in various legislation, and included in the Electoral Bond Scheme (EBS), were unconstitutional. Apart from this, Chandrachud CJI also briefly looks at another central feature of the new electoral financing régime – the elimination of the cap on corporate financing – which this post will take up.

As discussed in the previous blog, corporate donations to political parties were strictly regulated since 1960, when the Companies (Amendment) Act 1960 first introduced a cap. Then, a few years after the Santhanam Committee’s report in 1963, which uncovered high-level corruption, Parliament outrightly prohibited and criminalized corporate funding – a ban which was to last till 1985, when a cap of five per cent of a company’s average net profits in the preceding three years was introduced. This restriction carried over to the new Companies Act 2013 – now at seven and a half per cent.

Section 154 of the Finance Act 2017 entirely did away with this restriction. The 2017 Act amended section 182 of the Companies Act to delete the limit which it contained. This was the first time since 1960 that corporations were not limited, or prohibited, from political contributions. The Petitioners therefore challenged the elimination of this restriction for being unconstitutional, invoking articles 14 and 19.

Article 14 and the Problem of Unlimited Corporate Funding

The Court sticks to the article 14 challenge with respect to section 154, and only invokes the manifest arbitrariness doctrine. Manifest arbitrariness, or at least Nariman J’s spin on it (first articulated in the Shayara Bano case), has been enjoying its day in the sun of constitutional jurisprudence. For a law to be “manifestly arbitrary,” on Nariman J’s account, it must be “irrational, capricious, or without an adequate determining principle.”

Chandrachud CJI takes a different, slightly less ambiguous, approach to the doctrine. In his version, the test comprises two disjunctive prongs: either the legislature fails to make a classification by recognizing the degrees of harm (which he borrows from Misra CJ’s opinion in Navtej), or the purpose is not in consonance with constitutional values (para 209).

The Court invokes the first component – non-classification – in the failure to distinguish between corporations and individuals and between profit- and loss-making companies (paras 211–214). An individual’s political contributions have never been capped by law. However, corporations’ donations have historically been restricted. The reasons for this – as the Court recounts – were to prevent loss-making and shell companies from donating large amounts of money to political parties.

By dispensing with the proviso to section 182(1) of the Companies Act, which ensured only profit-making companies could contribute to parties, section 154 essentially allows loss-making companies to funnel large sums to parties – an act that nakedly resembles a quid pro quo. Allowing contributions by shell companies, on the other hand, does away with the safeguard of corporate democracy that exists within corporations, and allows large sums to change hands – and thereby distort the electoral process – with no oversight whatsoever.

Finally, the Court notes how “unlimited contribution by companies to political parties is antithetical to free and fair elections because it allows certain persons/companies to wield their clout and resources to influence policy making [sic]” (para 210). The Court again employs the principles of political equality and free and fair elections it articulates in deciding the first issue in finding the provisions unconstitutional. In other words, the Court finds the sanction of unlimited contributions manifestly arbitrary because its purpose is not in consonance with the constitutional value of free and fair elections.

Manifest arbitrariness and its discontents

The Court, in its analysis, focuses on the article 14 challenge, and chooses to sidestep entirely the classification test. In this context, it is important to note that the manifest arbitrariness doctrine – a change in costume from the arbitrariness doctrine of the 1970s – has come under immense criticism from scholars, who have faulted it for its vagueness, imprecision, and lack of place in legislative review (the review of legislation by courts).

The arbitrariness doctrine, Tarun Khaitan argues, is essentially the Court smuggling Wednesbury unreasonableness – a standard of administrative action review – into legislative review (a feat paralleled by a similar move in “proportionality” review cases). The locus classicus of the “new” arbitrariness test, EP Royappa, also concerned executive action, as Khaitan notes; unfortunately, subsequent judgements of the Court have elevated it to a standard of legislative review.

The problem with the arbitrariness doctrine, as many scholars have pointed out, is that it ignores the text of article 14, which is essentially comparative. A petitioner complaining of her right under article 14 being violated must show how she has been treated unequally in comparison to someone else similarly situated. However, the arbitrariness doctrine is non-comparative – if one seeks to charge a provision with arbitrariness, one does not need to compare it with another provision to prove the point. As HM Seervai points out, this renders redundant the law’s “equal protection of the laws” to persons and therefore “hangs in the air” (Constitutional Law of India, 4th edn, vol 1, p 438). Since everyone is not, in fact, equal, the purpose of the classification test is to ensure that the law can differentiate between people who are not similarly situated.

It is perfectly possible, as Khaitan notes, for something to be unreasonable but not unequal – or even arbitrary but not unequal. This problem plagues the second component the Court identifies – when the purpose of a provision is not in consonance with constitutional values – even as it represents an attempt to give the doctrine some meaning. A purpose not aligned with constitutional values, whatever that would mean, is essentially a non-comparative test – it does not involve a comparison of any kind and is a free-standing enquiry.

More than non-comparison, article 14 thus becomes an empty vessel for the Court to pour any “constitutional value” – itself a dangerously vague phrase – into. The Court does not show us how free and fair elections are connected to the equality guarantee. The only principle the Court tethers free and fair elections to is democracy. But equality is not the same as democracy; where the two overlap, it is on the Court to show us where and how they do. The Court thus detaches equality review entirely from the text of article 14, as Seervai had long ago chastised the Royappa Court for doing (p 438).

As for the first component of the test, the failure to classify on the part of the State is built into the reasonable classification test, which the Courts has recognized on multiple occasions (see here and here). Indeed, that is the logical conclusion of the Aristotelian principle of treating “likes alike,” which is the basis of the classification test. A failure to classify where classification is necessary – as it is with corporations and individuals or profit- and loss-making companies – contravenes this principle.

It is thus unclear why the Court had to use the manifest arbitrariness doctrine at all, especially considering the doctrine as it stood at the time did not include this principle, as – if we recall – it was two judges (Misra CJ and Khanwilkar J), out of five, who recognized it initially. Admittedly, while there is much to criticize in the highly formalistic Aristotelian version of equality. However, the Court only muddies the waters by classifying – ironically enough – the failure-to-classify principle under the manifest arbitrariness doctrine.

The road(s) not taken

There is nothing objectionable, to be sure, with the Court’s final conclusion. The elimination of the cap on corporate donations to political parties – thereby allowing unlimited funding – is unconstitutional. However, the Court must be careful in carrying out the task of judicial review, especially legislative review. The Constitution is made up of words, and words, after all, have meaning.

The arbitrariness doctrine was, from its inception, a rhetoric-heavy test that had little grounding in the principles of legislative review. The outcome of using the first component of this Court’s version of the test – the failure to classify – could just as easily be achieved using the classification test. The second component, on the other hand, presents an opportunity for the Court to use article 14 as a decoy to invoke any constitutional value, thereby unravelling the test’s already tenuous connection with the text of article 14. A more constitutionally sound method would be to test these provisions on the ground of the classification test, which the Court does indirectly. For some reason, however, the Court cloaks it in the garb of the manifest arbitrariness test, and collapses one into the other.

Another option for the Court would be to assess the impugned provisions vis-à-vis article 19(1)(a), which it had already extensively analysed while deciding on the first issue. As one of the Petitioners had submitted, the elimination of restrictions “violates Article 19(1)(a) insofar as it permits deep pocketed companies to flood out the voice of citizens who do not have access to such funds” (Petitioner’s Written Submissions, para 76). Unfortunately, however, the majority opinion – signed by four out of five judges, no less – cements this iteration of the manifest arbitrariness test in article 14 jurisprudence, leaving us doctrinally worse off.

Guest Post: Manifesting Equality – Moving Beyond Percentages for Disability Law

[This is a guest post by Aakash Dwivedi. The author would like to thank Kanishk Pandey for his guidance and advice.]

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Introduction

On 16th October 2023, the Supreme Court (‘SC’) delivered its decision in Mohamed Ibrahim v Managing Director, highlighting the constraints inherent within the Rights of Persons with Disabilities Act, 2016 (‘the Act’ or ‘RPWD’). 

The case calls into question the standards of eligibility propounded by the statute – specifically, section 2 (r), which creates a threshold of 40% of a ‘specified disability’. As per the section, to qualify as a ‘Person with Benchmark Disabilities’ (‘PwBD’), the individual must have a disability to the extent of 40% or more. The fulfilment of such criteria is a condition precedent to gaining access to many rights and benefits under the statute. It thus forms the fulcrum on the basis of which rights are granted, and denied, to beneficiaries.

The case reflects the plight of persons with disabilities (‘PwDs’) who fail to meet this threshold i.e., persons who are disabled as per the act’s definition, but do not qualify the 40% criteria, and as a result, are not protected by the act’s provisions. The court in its critique calls into the question the effectiveness of the provision in protecting stakeholders. It contemplates whether this threshold is conducive to the achievement of the stated objectives of the act, or merely a barrier to the same.

Justice Ravindra Bhat authored the opinion and retired from the bench four days later. It is fitting that through his last case, Justice Bhat has articulated with some finality the inadequacies of disability rights in India. He has been a torchbearer for the rhetoric and demand of inclusiveness in disability rights in India. His critique of an indiscriminate 40% threshold assumes great importance in this case, and has received a concrete articulation through Mohamed Ibrahim.

Aside from Justice Bhat’s remarks, the absence of a broader judicial (and non-judicial) discourse surrounding the inadequacies of disability rights frameworks in India has led to a consistent denial of rights to PwDs. This is evident from the abundance of RPwD litigation as seen in Vikas Kumar, Avni Prakash, and finally Mohamed Ibrahim. Although scholars have periodically engaged in a critical review of the act, such engagement has largely been limited to enforcement mechanisms, lack of public awareness or implications for persons with mental illnesses (See here, here, and here).

There is a clear lacuna in literature examining the eligibility criteria espoused by the act, and dissent has largely been limited to the courtroom. Thus, I attempt to engage in a policy analysis of the act in an effort to identify the root of recent grievances. I claim that section 2(r) is first, underinclusive in nature, and secondly, is manifestly arbitrary and therefore, is ultra vires to the Right to Equality under Article 14 and must be amended.

Unpacking Under-inclusiveness

In this section, I argue that Section 2 (r) is under-inclusive in nature. To do so, I rely on the definition laid down in Ambica Mills, I further demonstrate the provision’s under-inclusiveness through Mohamed Ibrahim and Vikash Kumar.

In order to determine whether Section 2(r) is under-inclusive, it is first necessary to articulate the contours of this determination. What does it mean to say that a rule is under-inclusive? And how do we determine the same? In State of Gujarat v Ambica Mills, a seven-judge bench of the SC provided a clear definition of under-inclusiveness as ‘when the State benefits persons in a manner that furthers a legitimate purpose, but does not confer the same benefit on others who are similarly situated.’ Hence, it is required for us to determine if (a) a benefit is being conferred by the state, (b) in pursuit of a legitimate purpose, and (c) whether such benefit is extended to all similarly situated persons. I argue that although the act bestows benefits and privileges onto PwDs, for a legitimate purpose, it does not extend its benefits uniformly onto all similarly situated persons.

In Chapters VI and VII, the act promulgates numerous provisions for the benefit of PwBDs, including, but not limited to, reservations for employment and education. The act is hence reflective of the state’s recognition of the necessity of affirmative action in order to alleviate barriers encountered by PwDs. It hence (a) extends benefits (b) in pursuit of a legitimate objective. Does it extend these benefits to all similarly situated persons? Through Section 2(r), the act excludes all PwDs who do not meet the 40% threshold, from the benefits set out under Chapter VI. Irrespective of how similar their disability is to those who are eligible. It hence distributes benefits in an irregular, and non-uniform manner. However, does such distribution lead to an exclusion of similarly situatedpersons? I argue that it does. This is easily demonstrable.

In Mohamed Ibrahim, the appellant, who suffers from defective vision, applied for a position in a government establishment. The government rejected the application on the basis of the appellant’s ‘disability’ and refused to accommodate the appellant under the provision for reservation enshrined in the act. Such refusal was premised on the fact that the appellant failed to meet the criteria set out under Section 2 (r). The court recognised that the appellant, for all practical purposes, suffers from a disability and encounters barriers similar to those who meet the threshold, and is thus similarly situated. Nevertheless, he is exempted from Chapter VI benefits and safeguards, due to failure to meet the threshold of 2(r). Justice Bhat observed that the act hence extends benefits to one class of people, at the expense and exclusion of another.

The SC has also previously recognised the exclusionary nature of Section 2(r)’s design in Vikash Kumar v UPSC. Here, the court examined a grievance analogous to Mohamed Ibrahim. The appellant, a PwD as per the act’s definition, was denied a scribe while appearing for an examination. The refusal was, again, premised on the contention that the appellant failed to meet the 40% threshold. Relying on the principle of equality laid down in E.P Royappa, the court observed that the right to equality requires the law to apply equally to similarly situated persons. In cognizance of this, it quashed the order of the examination-authority, and mandated that the appellant be accommodated despite his non-status as a PwBD. The court recognised that the application of sec. 2(r) leads to an unreasonably narrow extension of the Act’s benefits by precluding other similarly situated individuals, such as Vikash Kumar and Mohamed Ibrahim.

In conclusion, although the statute meets the first two prongs of the Ambica Mills test, it fails to fulfil the third, by virtue of its exclusion of other similarly situated persons. Therefore, I submit that Section 2 (r) is under-inclusive in nature.

2(r): Arbitrary Equilibria

I organise the following section in two parts. First, I examine whether a ground for review exists under Article 14 for under-inclusive laws. I strive to discern (a) the substance of such review, and (b) the form that it may take. Secondly, I apply the test of manifest arbitrariness as envisaged in Shayara Bano.

Having argued that the impugned section is under-inclusive in nature, one might contend that mere under-inclusiveness does not constitute grounds for challenge. It is true that historically, courts have tolerated, with deference to the legislature, both under & over-inclusive classifications. However, it must be noted that such tolerance stems from the rights that legislation relates to, and not the degree of inclusiveness of the legislation itself (See here and here). In other words, deference and judicial constraint are exercised when statutes fall under the domain of legislative expertise. However, when legislation relates to the individual’s constitutional rights, a stricter standard of review is adopted. Presently, the under-inclusive nature of the provision interferes with the PwD’s right to equal protection by the law. Thus, judicial review is warranted.

It is now important to determine the substance of such a review. How may a ground for review be articulated in light of Article 14 jurisprudence? In E.P Royappa, the SC established that the guarantee of equality imposes a positive duty on the state to apply the law equally to all similarly situated persons. The court further clarified that Article 14 exists as a safeguard against arbitrary state action, postulating that arbitrariness is antithetical to equality. As a corollary to my arguments in the first section, I claim that by excluding other similarly situated persons from the benefits of the act, Section 2 (r) is arbitrary in nature and breaches the right to equality.

To determine whether Section 2(r) is arbitrary in nature, I rely on the doctrine of Manifest Arbitrariness as propounded by Shayara Bano. The court defines the doctrine as follows: ‘Manifest arbitrariness, must be something done by the legislature capriciously, irrationally or without adequate determining principle. Also, something which is excessive and disproportionate’. Although this definition provides the contours of the doctrine’s application, it does not provide a tangible framework with which one may test legislation. Therefore, in order to test Section 2(r) methodically on the touchstone of the doctrine of manifest arbitrariness, I rely on existing literature.

Through a doctrinal analysis of Shayara Bano and subsequent cases that successfully apply the doctrine, Vasu Aggarwal discerns a four-step test that articulates the doctrine in applicable terms (Aggarwal pg. 9). The four steps are as follows:

1. Whether the provision is a rule or standard? (Doctrine applies only to the former)
2. Whether the rule is under/over-inclusive?
3. Whether there are any socially undesirable results as a consequence of the rule? Whether there are conflicting socially desirable results?
4. Reconciling the socially undesirable and desirable results of the rule (If any).

It must be noted that the scholar’s test is not external to the doctrine. It is an articulation of the pattern in which the doctrine has been applied by courts. For example, one may look at Navtej Singh, wherein the Supreme Court applied the doctrine in the form of a four part test to read down Section 377 of the IPC. The court, first, recognised that Section 377 operates in the form of a rule, and not a standard, insofar as the section is given content at the legislative stage. Secondly, the court held that by criminalising even consensual intercourse, the section is over-inclusive. Thirdly, the court highlighted an undesirable result, wherein the section robs the individual of their agency of choice. Fourthly, it balanced this undesirable result with the ‘socially desirable’ result of protecting social morality. In its balancing act it found that the force of the former prevails. It thereby found the provision against same-sex relations to be manifestly arbitrary.

Such a pattern is recognisable in manifest arbitrariness litigation that followed Shayara Bano (Aggarwal Pg. 10). Thus, I argue that this test qualifies the form and substance of the manifest arbitrariness doctrine. The above demonstration also illuminates how the test will be applied in this essay.

APPLYING THE DOCTRINE

1. Rule v/s Standards

In order to determine whether Section 2(r) constitutes a rule, I rely on Twining & Miers‘ construction of a rule. They write that a rule is one which determines that ‘In circumstances X, to persons in class Y, Z takes place’. The structure propounded by Twining & Miers is identifiable in 2(r); In circumstances where the person has a ‘specified disability’ (X) and is in the class of PwDs with a disability of 40% (Y), they are a person with ‘Benchmark disability’ (Z).

Moreover, 2(r) provides an ex-ante determination of the provisions application. This is in contrast to a standard, which would have allowed for determination of benchmark disability at an adjudicatory stage, on the basis of a flexible threshold (for ex: disability to a ‘reasonable extent’). The use of an unchanging threshold, in place of a flexible standard, distinguishes 2(r) as a rule.

I therefore submit that 2(r) is a rule, and the first prong is met.

2. Under-inclusiveness

The importance of determining under-inclusiveness arises because courts, through the exercise of this doctrine, employ a strictly corrective approach. They strive to remedy grievances arising due to ‘excessive or disproportionate’ laws, rather than occupying a legislative role through the promulgation of new standards or rules.

In the previous section I have already argued that the provision is under-inclusive because it does not uniformly benefit all similarly situated persons. Therefore, this prong is also met.

3. Whether there exist any socially undesirable results:

In this step, the doctrine contemplates the actual social consequences of the provision.

It is evident from the previous section that the under-inclusiveness of Section 2(r) has detrimental consequences for many PwDs. It precludes them from accessing the affirmative action benefits set out under Chapter VI of the act. Thus, it acts as a constraint on their social integration and material development. Furthermore, the scheme of administrative and educational affirmative action for PwDs in India is tailored around Sec. 2(r), as reflected in Vikash Kumar and Mohamed Ibrahim. Hence, it creates a constant need to litigate in order to claim one’s rights.

The next question that arises is whether there are any conflictingsocially desirable results of the provision. It is indisputable that Section 2(r) creates immense benefits for PwDs, although not all of them. It is not my argument that these benefits be done away with altogether, rather that corrective measures are necessary to enhance the provision’s efficacy.

4. Balancing

In pursuance of its corrective approach, the doctrine seeks to balance socially undesirable and desirable results, if any.

In the given case, I argue that a balancing and reconciliation of the desirable and undesirable results of the law is wholly possible. Courts may hold the provision to be manifestly arbitrary. Subsequently, they may read down the 40% requirement, to make the provision more inclusive, while at the same time not disturbing the socially desirable results of the law.

Courts have previously employed manifest arbitrariness in order to make provisions more inclusive, by remedying their disproportionate nature, without necessarily striking them down.

CONCLUSION

In this blog, I critically examine Section 2(r) of the RPwD, highlighting its under-inclusive nature. I subsequently use the manifest arbitrariness doctrine to demonstrate that such under-inclusiveness is contrary to the constitutional guarantee of equality.

I must clarify that the metric of under-inclusiveness, as well the application of the doctrine are mere heuristics, with which we may understand the legal barriers encountered by PwDs. The broader aim of this blog is to further Indian legal discourse on PwD rights. It seeks to advocate for inclusive and fair laws that protect their interests, irrespective of the extent of their impairment.

The development of such an alternative framework is a separate analysis in of itself. I constrain myself from addressing the same extensively here. Nevertheless, I believe there could be two possible options.

First, courts, or the legislature, read down the 40% criteria to a lower threshold. This would expand the ambit of 2(r). However, courts and legislators will then have to determine what threshold would be perfectly inclusive: is it 10, 20, or 30%? Such a consideration is unavoidable, due to the fact that any ex-ante threshold cannot anticipate all possible grievances and is thus bound to be arbitrary. The converse, which is scrapping the threshold requirement altogether, would make the provision over-inclusive. It would render Chapter VI a dead letter due to impracticability of enforcement. Therefore, this option is not feasible.

The alternative consists of developing a flexible standard, as contemplated by Justice Bhat. In a diaspora with millions of PwDs, anticipating thresholds that are adequately inclusive is a burdensome task. Hence, individual determinations balance the legislature’s lack of perfect knowledge, by allowing application at the adjudicatory stage. A qualitative, rather than a quantitative, standard would prove to be more effective in protecting potential beneficiaries. A qualitative standard here refers to consideration of the barriers and constraints encountered as a result of disability, and not the extent of the disability itself.

The development of an alternative standard is a pertinent question that deserves answering. I can only hope that the end of this essay may be the beginning of a richer discourse on disability rights in India. Is it time to move beyond percentages as a metric of disability and impairment?

Guest Post: Lombardi Engineering v. UVNL: ‘Arbitrariness’ over ‘Party Autonomy’? – A Response

[This is a guest post by Shweta Kushe.]

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Introduction

In 1975, Lord Denning famously postulated the doctrine of unconscionability, which envisaged a watchdog status for the larger framework of common law to the extent that boundaries between public and private law are blurred in pursuit of equity. Since then, there have been very few takers for Denning’s idea; some even went to the extent of calling Denning’s opinion a lead balloon – one that can never fly. Fast forward to 2023, the Supreme Court of India (‘SC’) has breathed new life into Denning’s concept via its judgment in Lombardi Engineering Limited v. Uttarakhand Jal Vidyut Nigam Limited (2023). Through Justice Pardiwala’s pen, the SC has rekindled a discourse on the delicate balance between the constitutional underpinnings that shape our legal terrain and the freedom of contract. 

In this judgment, the apex court ruled that a clause requiring a pre-deposit as a pre-condition for the appointment of arbitrators violates Article 14 of the Constitution. According to a guest post by Shaharyaar Shoukat Shahardar, this probe by the apex court was necessary since it is the court’s moral duty to protect constitutional rights, especially in cases involving government contracts. But to my mind, the precise controversy raked up by this judgment is on the flip side of Shaharyaar’s argument – can the Constitution be the arbiter of fairness in arbitration agreements? The SC answers this question in the positive by relying on the premise that, “for an arbitration clause to be legally binding it has to be in consonance with the ‘operation of law’ which includes the Grundnorm i.e. the Constitution,” thereby putting all private contractual claims subject to the arduous test of constitutionality. This essay critiques Justice Pardiwala’s judgment on four specific points –

1. Kelsen’s concept of the ‘Grundnorm’ cannot be conflated with the Constitution of India’s position in the Indian legal system.
2. Following the 2015 Amendment, the legislative intent underlying Section 11(6) of the Arbitration and Conciliation Act, 1996 (‘the Act’) has been to limit judicial interference.
3. By categorizing the issue of pre-deposit clause as a matter of jurisdiction instead of admissibility, the court has usurped the arbitrator’s jurisdiction.
4. The Court’s silence on the Respondent being a state instrumentality further complicates the jurisprudence on pre-condition clauses in arbitration agreements.

Factual matrix and the Court’s ruling in Lombardi Engineering Limited (supra)

The case in point relates to a contract between Lombardi Engineering Limited, a Swiss multinational design consultancy firm and Uttarakhand Jal Vidyut Nigam Ltd. (‘UJVNL’) wherein a pre-deposit clause became a central point of contention. As mentioned earlier, the clause mandated that the party initiating the arbitration claim shall have to deposit 7% of the arbitration claim in the shape of Fixed Deposit Receipt as security deposit. On the fulfillment of this condition, the case would be referred to a Sole Arbitrator appointed by the Respondent.

The Petitioner sent a notice of arbitration dated 6^th May 2022, requesting the Respondent to appoint an arbitrator in accordance with the ratio laid down in Perkins Eastman Architects DPC and Another v. HSCC (India) Limited (2020). In response, the Respondent terminated the contract on 9^th May 2022 alleging non-fulfilment of the contractual obligation. The SC upheld the Petitioner’s claims in toto by fundamentally relying upon Hans Kelsen’s Pure Theory of Law. The court also rejected the Respondent’s position that the pre-deposit was supposed to be deposited as a refundable security, since there was no explicit mechanism provided in the contract as to how the amount would be ultimately adjusted at the end of the arbitral proceedings; this, according to the bench, rendered the clause to be unconscionable.

Alternative Dispute Resolution and the hierarchy of legal norms

As rightly noted by Shaharyaar, the Court puts an emphasis on the phrase ‘operation of law’ employed in three previous instances (here, here and here) – cases where the court adjudicated on an application filed under Section 11(6). But he misses out on a detail – none of the cases cited by the court explicitly invoked Article 14 of the Constitution. Nonetheless, by solely relying on the inclusion of the phrase ‘operation of law’ in these instances, Justice Pardiwala establishes a direct connection with the Constitution of India. He further draws from Kelsen’s theory:

… at the top of the pyramid is the Grundnorm, which is independent. The subordinate norms are controlled by norms superior to them in hierarchical order…. Our constitution is the paramount source of law in our country. All other laws assume validity because they are in conformity with the Constitution…. This again unveils the principle of Grundnorm which says there has to be a basic rule. The Constitution is the basic and the ultimate source of law.

On this ground, the bench then puts forth a compliance hierarchy of sorts:

Thus, the Arbitration Agreement, has to comply with the requirements of the following and cannot fall foul of Section 7 of the Arbitration and Conciliation Act; any other provisions of the Arbitration and Conciliation Act, 1996 and Central/State Law; and the Constitution of India, 1950.

In his post, Shaharyaar doesn’t contest the Constitution being equated to the Grundnorm. However, this vexed question lies at the heart of Justice Pardiwala’s judgment. In my opinion, the bench has erred in positing that Kelsen’s idea of a Grundnorm can be equated to that of the Constitution in a legal system. This is fundamentally wrong since Kelsen himself sharply distinguished between the idea of the Grundnorm and the Constitution. In fact, when Julius Stone attempted to amalgamate these two concepts, Kelsen staunchly defended their distinct nature. Then, what is the Grundnorm? The Grundnorm is a theoretical presupposition or foundational assumption that underlies the entire legal system. It is an abstract concept that represents the ultimate point of reference for the validity of all other norms within a legal order, including the Constitution. As a result, in the Indian legal system, the true Grundnorm is not the Indian Constitution, but the presupposition that the Indian Constitution is valid and has inherent authority. Therefore, much like the Privy Council in Madzimbamuto v. Lardner-Burke (1969), the bench in Lombardi Engineering (supra) has also committed a confusion between the Grundnorm and the Constitution.

The bench has further not addressed the eminent need and efficacy of putting the arbitration agreement through the test of constitutionality at the stage of a Section 11(6) application. To a large extent, this seems to be an attempt to avoid future unconstitutionality of an award by striking down a clause at a pre-mature stage. This approach raises concerns as it further dilutes the fundamental principle of Alternative Dispute Resolution – the principle of ‘party autonomy,’ i.e. self-arrangement of legal relations by individuals according to their respective will. In the instant case, the bench was correct in holding that unilateral appointment of arbitrator is against the existing jurisprudence. However, to use the opportunity of a Section 11(6) application to adjudicate on a third issue – the unconscionability of a pre-deposit clause – is a stretch.

Defeating the legislative intent

Post the 2015 Amendment of the Act, the jurisdiction of a Section 11-Court has been limited to ascertaining whether a valid arbitration agreement exists or not. Section 11(6A) mandates that a court, while appointing arbitrators, “…notwithstanding any judgment, decree or order of any Court, confine to the examination of the existence of an arbitration agreement.”  It is clear that the legislature’s intent is to minimize judicial intervention in arbitration proceedings.  Therefore, according to the ratio laid down in DuroFelguera S.A. v. Gangavaram Port Limited (2017), the court is not expected to enter into a merit-based assessment of the claim or the facts of the dispute since the court’s role during the appointment stage is limited to determining the existence of an arbitration agreement. the leeway granted to courts in Vidya Drolia v. Durga Trading Corporation (2019) is supposed to be used sparingly and only in selective circumstances. However, the SC has lately broadened its scope during the stages of reference and Section 11, and the judgment in Lombardi Engineering (supra) is only a new step in this trend.

This trend is acknowledged by Shaharyaar in his post, but he stops short of addressing the legislative intent and exploring the ramifications of the apex court’s failure in recognising the same. It cannot be ignored that the legislative intent gets obliterated, if at every stage, the courts take it upon themselves to transgress the ambit of the application in front of them and decide to adjudicate on secondary/aligned issues. In the instant case, the Petitioner neither alleged coercion nor alleged unequal bargaining power while agreeing to the inclusion of pre-deposit clause in the arbitration agreement. Therefore, in the absence of coercion and significant disparities in bargaining power, exemplified by the present case involving two parties of largely similar economic standing ­­– namely, a Swiss multinational company contracted by a State-owned corporation – parties ought precluded from seeking judicial intervention to modify the contract at any juncture. Such actions undermine the inherent ‘alternative’ role of the alternative dispute resolution mechanism, essentially nullifying the principle of ‘party autonomy.’

Conflation of jurisdiction

When it comes to Indian jurisprudence, there is lack of consistency and coherence in judgments on validity of pre-arbitral steps, especially with respect to pre-deposit clauses. Notably, the pre-deposit clause in Lombardi Engineering (supra) is a ‘shall’ clause. Considering the principles of party autonomy and party consent, it has been held in various jurisdictions that ‘shall’ clauses are to be substantially complied with. Further, under Section 11 of the Act, the Court’s power to appoint an arbitrator is a matter of jurisdiction, while the non-fulfillment of pre-deposit clause relates to admissibility. This aligns with the global practice of categorizing pre-deposit clauses as admissibility concerns rather than jurisdictional concerns. But, when the courts bring pre-deposit clause into the jurisdiction bucket along with the issue of appointment of arbitrators, this leads to a conflation of issues.

Court’s eerie silence on the Respondent being a state instrumentality

Without categorically citing the apex court’s judgment in Central Inland Water Transport Corporation v. Brojonath Ganguly (1986), Justice Pardiwala in Lombardi Engineering (supra) builds on Justice Madon’s idea that constitutional limitations on government corporations are not the same as those on the private ones (albeit in an indirect fashion). It was Justice Madon who for the first time gave a wide reading to Article 14 and held that the courts will “strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power.” Shaharyaar observes in his post that the court’s analysis of the facts and circumstances needs to be looked through the lens of a government contract that is purportedly unconscionable, hence it deserves a different treatment from an unconscionable contract between private entities. But, the court itself has chosen not to address this important distinction and this is exactly where a fault line emerges.

In Lombardi Engineering (supra), the court’s silence on the Respondent’s status as an instrumentality of the State muddies the water further. Moreover, in this case, the court was not seized with the instant question only because the Respondent was an instrumentality of State, but the parties approached the court u/s 11(6) of the Act. As stated earlier, the only test that Section 11(6A) lays down is whether an arbitration agreement exists or not: at this stage there is no scope to examine fairness of the arbitration clause. Further, a commercial contract cannot be treated on the same footing as an employment contract as it was done in the case of Central Inland Water Transport Corporation (supra), which is also why the court in ICOMM Tele Limited v. Punjab State Water Supply and Sewerage Board and Another (2019) explicitly held the principles of unequal bargaining power and doctrine of unconscionability cannot always be applied to commercial contracts.

Consequently, even if one assumes that the judgment in Lombardi Engineering (supra) is sound since the Respondent is a government entity, yet its application to arbitral proceedings between two purely private entities will be difficult since the SC has time and again held that Brojonath Ganguly(supra) is wholly inapplicable to contracts which do not involve an instrumentality of the State. Therefore, in Lombardi Engineering (supra), the court had a chance to bridge this gap and establish a clear, consistent understanding of unconscionability in arbitration agreements, applicable to both private entities and state instrumentalities. This oversight by the bench will in all likelihood lead to multiplicity of proceedings as the question remains far from settled.

Conclusion

On a careful analysis of the judgment, it is clear that the one glaring issue in the judgment is the SC’s reliance on the apparent grandiosity of the Grundnorm. The bench’s entire argument for the pre-deposit clause being unconscionable and in violation of Article 14 is tethered to the proposition that, “for an arbitration clause to be legally binding it has to be in consonance with the ‘operation of law’ which includes the Grundnorm, i.e. the Constitution.” But, as discussed above, the Constitution can never be considered to be the Grundnorm of a legal system. Hence, the SC’s ruling in Lombardi Engineering (supra) adds another layer of complexity to the already intricate jurisprudence on pre-conditions to arbitration.

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(The author expresses sincere gratitude to Sawani Chothe for her patient and thoughtful reading of an early draft.)

Guest Post: Lombardi Engineering v. UVNL: ‘Arbitrariness’ over ‘Party Autonomy’?

[This is a guest post by Shaharyaar Shoukat Shahardar.]

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Introduction

On 6 November 2023, the Supreme Court of India delivered a noteworthy decision in Lombardi Engineering Pvt Ltd. v. Uttarakhand Jal Vidyut Nigam Limited (Lombardi Engineering case). A three-judge bench comprising Chief Justice D.Y. Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Misra inter alia decided, whether the validity of a pre-arbitral deposit condition could be looked at in backdrop of Article 14 of the Indian Constitution. To this, the bench unanimously answered with a categorical “yes”. The Court was of the opinion that for an arbitration clause to be legally binding, it must be in consonance with the “operation of law” (para. 84), wherein the Constitution of India operates as the “grundnorm”. Hence, an ambiguous pre-arbitral deposit condition may be invalidated as arbitrary and therefore violative of Article 14 of the Constitution. Although this isn’t the first time the Court has decided on the validity of an arbitration clause vis-à-vis Article 14 of the Constitution, however, considering the recent trend of rulings, a question arises whether the Supreme Court has become a “gatekeeper” of arbitration in India. The author argues that the decision of the Court in the Lombardi Engineering case stands on a different pedestal, although there are possible implications of the judgment in relation to disputes between two private entities.

Factual Background

On 25 October 2019, Lombardi Engineering Pvt. Ltd. (“Petitioner”), a Swiss company entered into a contract with Uttarakhand Project Development and Construction Corporation Limited (UPDCC) for “providing consultancy services and preparation of modified comprehensive and bankable detailed project report” related to a hydro-electric project in Uttarakhand (para. 4). By an order dated 5 May 2020, the transfer of the project to Uttarakhand Vidyut Nigam Limited (“Respondent”)was directed. Accordingly, on 6 October 2020, Respondent took over the project through a tripartite agreement, leading to a transfer of all contractual rights and liabilities. The arbitration agreement outlined in Clause 53 and Clause 55 of the contract provided that in case of a dispute, the party initiating the arbitration proceeding would deposit 7% of the arbitration claim as a security deposit (para. 7). When disputes arose between the parties, Petitioner issued a notice of arbitration dated 6 May 2022, calling upon Respondent to appoint an arbitrator in terms of the arbitration clause. However, the Respondent issued a termination letter dated 9 May 2022, thereby terminating the contract. 

Arguments of Parties

The counsel for Petitioner inter alia contended that a condition for pre-deposit was unfair, arbitrary and violative of Article 14 of the Constitution. The petitioner supported its assertions by citing an earlier decision of the Supreme Court in ICOMM Tele Limited v. Punjab State Water Supply and Sewerage Board and Anr.,where the Court did subject the validity of an arbitration agreement to Article 14 of the Constitution. On the other hand, the counsel for Respondent inter alia contended that the Supreme Court ought not to test the validity of a condition stipulated in the arbitration agreement on the grounds of Article 14 of the Constitution. The security deposit contemplated under the Contract between the parties was refundable, with the object of ensuring that only bona fide claims are made and that the Project is not halted basis of frivolous claims.

Judgement: ‘Arbitrariness’ over ‘Party Autonomy’

The “right to equality” has been recognized as a fundamental right under Article 14 of the Indian Constitution. Moreover, the courts have categorized ‘arbitrariness’ as an antithesis to ‘equality’. Coming to the Lombardi Engineering case, the Supreme Court dealt extensively with the jurisprudence on ‘arbitrariness’ under Article 14 of the Constitution. Over the years, we have seen how Article 14 has been provided with an even more ‘dynamic interpretation’. This nature of Article 14 was acknowledged in E.P Royappa vs. State of Tamil Nadu. The constitution bench, speaking through Justice Bhagwati, had remarked that “equality and arbitrariness are sworn enemies.” Moreover, in Ajay Hasia v. Khalid Mujeeb, the Apex Court, called ‘arbitrariness to be a logical corollary to inequality’. Therefore, the existence of arbitrariness would automatically result in the negation of equality.

However, what was interesting to see is the Court’s take on ‘party autonomy’ vis-à-vis the Constitution. This is important because party autonomy forms at the core of all arbitration agreements. The Supreme Court in this context remarked that the concept of “party autonomy” as pressed cannot be stretched to an extent where it violates the fundamental rights under the Constitution (para. 74). The Supreme Court even went on to discuss Kelson’s Pure Theory of Law emphasizing how the Constitution prevails. For an arbitration clause to be legally binding it has to be in consonance with the “operation of law” (para. 74) which includes the “grundnorm” i.e. the Constitution. At the top of the pyramid is the Grundnorm, which is independent. The subordinate norms are controlled by norms superior to them in hierarchical order (para. 78). The system of norms proceeds from downwards to upwards and finally closes at Grundnorm (para. 78). Thus, in the context of an arbitration agreement, the layers of the Grundnorm would be in the following hierarchy (para. 82): –

• Constitution of India.
• Arbitration & Conciliation Act, 1996;
• Agreement between the parties.

Accordingly, the Supreme Court held that an ambiguous pre-arbitral deposit condition may be invalidated, as arbitrary and therefore violative of Article 14 of the Constitution.

Conclusion and Opinion

The Supreme Court’s decisions on matters pertaining to ‘arbitration’ have met severe criticism lately. Being accused of causing unnecessary intervention which may result in an adverse impact on India’s budding arbitration infrastructure. For the arbitration community, this alleged “unnecessary interjection” would possibly go back to Booz Allen & Hamilton Inc v. SBI Home Finance Ltd., where the Court decided on the arbitrability of disputes in India. Later, in Vidya Drolia & Others v. Durga Trading Corporation, the Court decided that non-arbitrability of dispute could also be examined by the courts at the reference stage to protect parties from being forced to arbitrate when it was demonstrably non-arbitrable and “to cut off the deadwood”. More recently, the Court’s ruling in N.N. Global Mercantile Private Limited v. Indo Unique Flame Limited, where the Court passed an order holding non-stamped or insufficiently stamped arbitration agreements to be void and unenforceable was also harshly condemned. All this does raise a question as to whether the Supreme Court has assumed the role of gatekeeping the arbitration in India.

The criticism of these judgments may seem to have some substance especially when looked into from the perspective of pure commercial sense. However, the Supreme Court’s decision in the Lombard Engineering case stands on a different pedestal. The Court cannot shy away from answering a question when an element concerning a constitutional right or obligation is alleged. In such a case, it isn’t only a moral duty of the Court to ensure compliance with the law but the Court is constitutionally bound to ensure that the justice is delivered. Another important thing to consider in this case is an underlying government contract. That is to say, this case is an example where an instrumentality of the state was party to an arbitration. Accordingly, the arbitration agreement was subjected to the test of Article 14 of the Indian Constitution. Nevertheless, unconscionable clauses do find their place in arbitration agreements among private parties. In Kaushal Kishore v. State of Uttar Pradesh, the Supreme Court went on to observe that fundamental rights could potentially be enforced against non-state actors. Therefore, it would be interesting to see what will be the threshold of judicial scrutiny when the question of ‘arbitrariness’ among private parties is alleged after this judgement.

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

[This is a guest post by Vinayak Aren.]

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

Section 6A of the DSPE Act and Subramanian Swamy

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

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

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

Concern with the Judgment in Subramanian Swamy running retrospectively

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

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

Court’s Analysis

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

Guest Post: Predictability as a Component of Fairness – the Doctrine of Legitimate Expectation

[This is a guest post by Karthik Ravinchandran.]

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Introduction

Recently, a Division Bench of the Supreme Court delivered a split verdict in KB Tea Products v. Commercial Tax Officer, Siliguri, a taxation case involving the State of West Bengal and a local manufacturer. The main question before the Court concerned the doctrine of legitimate expectation which has over the years, emerged as a remedy against the rescinding of policies that benefit an individual or an organisation, if they have a “legitimate expectation” of its continuation. Developed in England, the doctrine was incorporated into Indian law in State of Kerala v. KG Madhavan Pillai,  a case in which the Supreme Court lifted the abeyance by the State of Kerala on a sanction given by it to an educational agency to open private schools in a list of areas. The abeyance was struck down on the grounds that once the sanction was granted, the agency had a legitimate expectation of being able to continue with documental procedure which they had already begun, for the building of the schools.

The remedy has been held by the Supreme Court to be grounded in Article 14 of the Constitution. However, the doctrine, as the law currently stands, is not applicable to the rescinding of policies through legislation. In the present case, Krishna Murari J delivers a well reasoned argument for this to change. But instead of going into the usual exercise of trying to subjectively discern “arbitrariness” in the impugned state action, Murari J simply underpins its unfairness on its sheer unpredictability which he regards as a fundamental component of arbitrariness and contrary to the rule of law. On the other hand, MR Shah J argues that the Court must be reluctant to scrutinise any rescinding of policy let alone those brought in by legislative amendments, which according to him in any case, are completely out of the scope of the doctrine of legitimate expectation. In this piece, I argue that the former opinion should be the one that must be upheld when the case goes to a larger bench.

The Facts

The appellants opened a small scale Tea Blending business in 1999 after the Government of West Bengal introduced an incentive scheme that offered an exemption from sales tax to small scale industries, under Section 39 of the West Bengal Sales Tax Act, 1994. The appellants could avail the scheme because Section 39 was applicable to small businesses engaged in “manufacturing” which as defined in Section 2(17) of the Act, included “Blending of Tea”. The appellants thus obtained a certificate of eligibility for tax exemption for seven years. Two years into their exemption period however, Section 2(17) was amended through the West Bengal Finance Act, 2001 to exclude “Blending of Tea”  from the definition of manufacturing. The appellants were thereafter served a notice that required them to alter their eligibility certificate in accordance with the amendment to the definition, depriving them of their exemption for the rest of the promised period. This notice was challenged in the West Bengal Taxation Tribunal on the grounds that the amendment to the definition could not apply to businesses already into their exemption period. The Tribunal rejected this contention as did the Calcutta High Court on appeal. 

The Opinion by MR Shah J 

Shah J in his opinion makes it absolutely clear that the general non-amenability to judicial review, of any “policy decision” is axiomatic to him unless it is “so arbitrary” (sic). This however is not followed up by actually checking the impugned amendment for “arbitrariness”. The opinion simply paraphrases the content of the amendment and declares that because the definition of the term “manufacturing” was changed by the amendment, tea blending is not manufacturing for the purposes of the Act which ipso facto kills the exemption prospectively. (Paragraph 8.2). In fact, not only does the opinion fail to critically engage with the amendment, Shah J also does not engage with the doctrine of legitimate expectation at all. The only time it is ever mentioned is in Paragraph 8.3 in the following manner:

..Now, so far as the submission on behalf of the appellants on legitimate expectation and/or promissory estoppel and the submission on behalf of the appellants that the “vested right” cannot be taken away is concerned, the aforesaid has no substance. There cannot be any promissory estoppel against the statute as per the settled position of law…

In addition to the complete lack of analysis vis a vis the jurisprudence of legitimate expectation, Shah J also conflates the doctrine with promissory estoppel which is a remedy under private law and which as he (rightly) mentions, is not available against legislation. (See Kasinka Trading v. Union of India) But as Murari J points out in his opinion, despite the similar theme (broken promises) and common roots of both these principles, they have through the rigours of common law, developed into two separate doctrines (Paragraph 33). Legitimate expectation as opposed to promissory estoppel is a public law remedy and once a law “enters the public sphere”, it is liable to a stricter level of scrutiny and becomes susceptible to judicial review. (Paragraph 34).

Shah J also endorses a rather strange distinction made in the Calcutta High Court judgement between a vested right and an “existing” right. The High Court Bench observes that since according to it, sales tax exemptions are liable to be withdrawn or modified at any point of time, there is no “irrevocable vested” right to an exemption. (Paragraph 46). What the exemption entails is an “existing” right which subsisted till it applied to the appellants but was lost once the definition of “manufacturing” was amended. (Paragraph 47). But interestingly, the High Court opinion itself seems to have created a caveat to this reasoning in the same paragraph where it observes that such a retraction of policy can be questioned on the grounds of infringement of rights under the Constitution. Shah J seems to have completely ignored this and does no Article 14 review of his own, simply using the vested/existing right distinction to propose a near complete bar on judicial review of policy retractions.

The Opinion by Murari J

The contrasting approach in the opinion of Murari J is evident right from the way that he frames the controlling question as follows:

Whether the doctrine of legitimate expectation is applicable in the present case since the appellants had set up their industrial units on the basis of the allurement of a tax holiday granted by the Government?

Right from the beginning, Murari J establishes that by introducing the incentive scheme while tea blending was still under the umbrella of manufacturing, the government created an “allurement” of a tax exemption. In other words, it induced a certain kind of behaviour by the appellants, namely the investment of all their savings in a small-scale tea blending unit in hope of exemption from sales tax for a specified time period. This hope was furthered by the Government when it granted an eligibility certificate which specifically guaranteed a seven-year exemption. The opinion begins its analysis by connecting the idea of a legitimate expectation from authority to the very concept of rule of law which is contingent upon authorities acting fairly. Murari J very notably highlights predictability of laws as one of the important things that the rule of law ensures and premises his entire Article 14 review of the impugned amendment on the same. This is significant because often in the practice of applying the Arbitrariness Standard from Royappa’s case (of which there is no real definition yet), judges ignore some of the more fundamental characteristics of unfairness which are easier to identify on a case to case basis. Instead of trying to discern “arbitrariness” (arbitrarily) by invoking subjective terms like “capricious” and “irrational” and ascribing them to the legislature, it is far more convenient to consider the state action against what are essentially components of arbitrariness but far less subjective and much easier to establish. One such component applicable to the present case was the utter unpredictability of a potential retraction of the appellants’ guaranteed exemption from sales tax for seven years. For Murari J, it is immaterial that the retraction was a consequence of a statutory amendment. He thus observes in Paragraph 31:

…To elucidate on why such a blanket bar on the invocation of legitimate expectation against a statute is contrary to the rule of law, we must first take such an interpretation to its logical conclusion.If the aforesaid interpretation is adopted, then the state, by way of amendments, can entice persons and institutions to act in a certain manner with the expectation of a certain outcome, and suddenly, without any demonstration of public interest, rescind the same. Such a scenario… would remove any and all certainty of the legal system, and directly become an antithesis to the rule of law…

Then having made the above-mentioned distinction between legitimate expectation and promissory estoppel, the opinion goes on to define the ingredients of a legitimate expectation in eight points.The most important of these however is the fifth point which requires the state to demonstrate the public interest objective in the modification of a policy which takes away a legitimate expectation. Murari J places the burden of proof on the state to justify the modification once it has been demonstrated that a legitimate expectation was “snatched away”. Thus, the opinion states on Paragraph 42:

…a mere claim of change of policy is not sufficient to discharge the burden of proof vested in the government. The government must precisely show what the change of policy is, and why such a change of law is in furtherance of public policy, and the public good….

Then the opinion goes on to apply the doctrine to the facts of the present case and concludes that the Government in this case has not been able to provide a cogent reason for changing the definition of manufacturing. While the legislative amendment itself is not struck down, Murari J holds that the Government is liable to provide the benefit of the exemption to the appellants until the end of the original exemption period.

Two things emerge. Firstly, the legislature is just as accountable for the rescinding of policy as it is for its introduction. An existing law induces patterns of behaviour in the public which are interrupted when a law is rescinded without any warning or explanation. Therefore, the effects of all legislative policy retractions are amenable to judicial review and the Government is required to discharge the burden of explaining why the public interest objective behind the retraction outweighs the losses incurred by the benefactors. Secondly, Murari J manages to conduct his Article 14 review without getting into the muddle of any subjective ascriptions to the legislature. The retraction of the exemption is arbitrary simply because there was no way the appellants, even as they were obtaining their eligibility certificate, could have predicted a minor legislative change that would alter the very meaning of their occupation

Conclusion

The two opinions could not have been more divergent in terms of degrees of deference to the state. While Shah J is content with exempting the state from any scrutiny merely because the state action in question is in the form of legislation, Murari J identifies that in this case, the means through which rights are deprived are completely irrelevant for the sake of substantive evaluation of the same. Therefore, the Government is required to be subjected to relatively high standards of accountability as to why it brought in the change to the definition and why the same must apply to entities already enjoying the exemption promised to them for a specific time period. The implications of the conduction of Article 14 review primarily through the prism of unpredictability, are wide. Consider just as an example, the utter unpredictability and unfairness of being taken off a short list of recruits to the army and air force after it is published because the entire recruitment process is cancelled suddenly in favour of a new entry scheme. Or consider the unpredictability of a government drive that suddenly questions one’s citizenship after generations of ostensible guarantee and then requires one to produce documents that one is not likely to have or face detention camps or deportation. The arbitrariness standard currently, is whatever judges make of an array of adjectives. While the unpredictability factor cannot fit all situations and neither can every unpredictable law be dubbed unfair, it is at least a start at refining equality jurisprudence.

The Unconstitutionality of the 2023 Delhi Services Ordinance – II

In a previous guest post, Ashwin Vardrajan has argued that the 2023 Delhi Services Ordinance [“the Ordinance”] – which effectively denudes the Delhi government (and the Delhi Legislative Assembly) from exercising control over services within the National Capital Territory – amounts to an “atypical constitutional amendment”, and should therefore be subject to basic structure scrutiny. While I do not disagree with this argument, in my view, one does not need to travel as far as the basic structure in order to challenge the Ordinance. I believe the Ordinance is unconstitutional on two grounds: implied limitations, and manifest arbitrariness.

Implied Limitations

Recall that the the Ordinance was enacted as a response to the Supreme Court’s May 2023 judgment (discussed here), which had held that Entry 41 of List II of the Seventh Schedule [“Services”] did apply to the NCT of Delhi. In other words, the Delhi legislative assembly had the competence to legislate on services (and, by extension, the Delhi government had executive power over services). The Ordinance seeks to undo this position by stating that the ‘Legislative Assembly [of NCTD] shall have the power to make laws as per Article 239AA except with respect to any matter enumerated in Entry 41.’

Now, one line of argument – advanced by Manu Sebastian, among others – has been that the Ordinance is unconstitutional because it directly overrules the Supreme Court’s judgment, and thus violates the separation of powers. Sebastian’s piece sets out the argument in its most comprehensive form, and I do not intend to traverse that territory again. Let us assume for the purposes of argument, however, that that argument fails, on the basis that – as the Supreme Court itself held – under Article 239AA, Parliament does have the competence to legislate under Entry 41 of List II, and parliamentary legislation will override any law that the Delhi legislative assembly might pass, to the extent of inconsistency. On this argument – which is likely to be the Union’s main argument when – inevitably – this Ordinance is challenged – Parliament has simply exercised its parallel – and superior – legislative competence under Entry 41 of List II, to validly exclude the Delhi assembly and government from control over services.

In my opinion, the reason why this argument fails is because of a subtle – but crucial – distinction between a law that Parliament might make with respect to matters under Entry 41 in exercise of its own competence (the language of Article 239AA), and a law that takes away wholesale the Delhi legislative assembly’s competence under Entry 41. To understand why, consider the design of Article 239AA: it explicitly takes away three fields of legislation from Delhi under List II: public order, land, and police. For these three entries, Parliament has exclusive competence to legislate. With respect to matters under other entries under List II, both Delhi and the union have power to legislate. Now what the Ordinance does – in effect – is that, through legislation, it adds a whole other field to the three (public order, land, and police) that have been explicitly excluded – that is, Entry 41 of List II. In other words, the Ordinance tries to accomplish through ordinary law-making what was explicitly denied to it by Article 239AA. To repeat: the Ordinance is not a law passed “with respect to any matter under Entry 41″ (the wording of Article 239AA). The Ordinance is a law that takes away the Delhi Assembly’s competence to legislate under Entry 41.

It is at this point that the Supreme Court’s rationale underlying its May 2023 judgment becomes important. Recall that the Court based its interpretation of Articles 239AA and Entry 41 on the constitutional principles of asymmetric federalism and the “triple chain of accountability” within representative democracy (civil servants — cabinet —- legislature — electorate). Insofar as the Delhi assembly’s competence to legislate under Entry 41 flows from these constitutional principles, it places an implied limitation upon Parliament’s competence to legislate under the same Entry. Of course, Parliament’s power also flows from a constitutional principle – in this case, the principle of preserving national interests in the national capital. The question then arises: how are the two to be balanced? An answer was provided in the landmark UK Supreme Court case of R vs Miller: namely, when two or more constitutional principles are in conflict, the Court must interpret their operation so as to ensure that neither destroys the other. In the specific case before us, if Parliament’s powers to legislate with respect to Entry 41 were held to extend to denuding the Delhi assembly altogether, then it would violate the constitutional principles of asymmetric federalism and sever the triple chain of accountability that is integral to representative governance. If, on the other hand – as Vardrajan suggests in his blog post – if Parliament’s power was to be limited to passing specific laws dealing with specific situations under Entry 41 (which, in turn, could be traced back to the reason why Parliament is granted this power in the first place – i.e., preserving the national interest within the capital) – then this reading would reconcile both constitutional principles, without destroying either.

Manifest Arbitrariness

This leads me to the second argument. If you read through the Ordinance, there is only one stated rationale for its passage: the need to “balance” the interests of the elected government of Delhi with national interests in the national capital. What this justification misses, however, is that this balance has been expressly encoded into the design of Article 239AA. Article 239AA recognises the need for this balancing. To achieve this – in the legislative domain – it does two things. With respect to three fields – public order, land, and police – it takes the fields away from the Delhi assembly wholesale. For all other fields (and this has now been formally upheld by the Supreme Court), it preserves the competence of the Delhi Assembly, while also authorising Parliament to pass legislation under those entries. The rationale for this is obvious: Parliament’s competence is retained because it may not be possible to foresee all possible situations that might arise under any of the other entries that might – in concrete terms – implicate national interests in the national capital.

The Ordinance, however, eviscerates this balance by – as noted above – adding a fourth field to the three already excluded. Now, whatever the justification for this might be, what it cannot be is “balancing the interests of the elected government and national interests in the national capital.” This is because those particular interests have already been balanced in the constitutional provision itself, by the two-pronged device of excluding three named fields (and services is not one of them), and preserving parallel competence in all other unnamed fields. Thus, the exclusion of one of the unnamed fields (services) is not in aid of the constitutional balance, but rather, undermines it.

One of the circumstances under which a law can be struck down on grounds of manifest arbitrariness is if it lacks a “determining principle.” The above discussion should make clear that the Ordinance suffers from precisely this defect. For reasons already discussed, the determining principle cannot be “balancing of interests.” However, what is the determining principle then? The Ordinance makes no mention of any other possible alternative. Indeed, it is quite difficult to see what principle would justify such a wholesale transfer of power from Delhi to the Union: what national interest is served by taking control of services wholesale in the national capital? It is submitted that in the absence of any other possible alternative, the Ordinance must therefore be struck down on grounds of manifest arbitrariness.

Conclusion

While at first glance the Ordinance seems to trace its legality to Article 239AA, Entry 41 of List II, and the Supreme Court’s 2023 judgment, once you scratch the surface, its unconstitutionality is evidence. First, the Ordinance is unconstitutional as it traverses beyond the implied limitations upon the scope of Parliament’s powers under Article 239AA read with Entry 41 of List II, relative to the NCT of Delhi: while Parliament is competent to pass specific legislation dealing with matters arising out of Entry 41 (which must, in turn, be traceable to the purpose of preserving national interests in the national capital, as in doing so, Parliament is overriding the principle of asymmetric federalism and the triple chain of accountability), it cannot pass a law effectively denuding the Delhi assembly of its competence to legislate under Entry 41. And secondly, the Ordinance is manifestly arbitrary: it lacks a determining principle, and the principle it does invoke – that of balancing interests under Article 239AA – is self-evidently flawed, as the balancing it seeks to achieve already exists internal to Article 239AA. It ought to be struck down.

Guest Post: The Notice Regime under the Special Marriage Act

[Editor’s Note: The present editor is involved in the equal marriage case before the Supreme Court, in which judgment has been reserved. A part of the case included a challenge to the notice-and-objection regime under the Special Marriage Act. By way of disclosure, this guest post was submitted independently to the blog, through the normal submission channels, after arguments had concluded, and was reviewed and accepted in the same way.]

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[This is a guest post by Rehan Mathur.]

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The Supreme Court articulated its disapproval with respect to the notice regime under the Special Marriages Act (‘SMA’), during the recently concluded same-sex marriage hearings. While this case may not be the specific case to adjudicate upon these provisions, the time is right to remove these provisions from the statute books given the advances in jurisprudence surrounding decisional autonomy. These provisions must be removed from the SMA if any recognition of same-sex relationships (whether under marriage or civil union) is to be of any real value given the social realities of oppression and violence faced by couples marrying under the Act, which have been well documented here and here.

Section 5 of the SMA requires parties intending to marry to give a notice in writing to the Marriage Officer of the district in which at least one party has resided for minimum 30 days immediately preceding the date on which the notice is given, while Section 6 mandates such a notice to be published at a ‘conspicuous place’ and allow any person desirous of inspecting such notice to do so at any time. Further, Section 7 allows individuals to raise objections to the marriage within 30 days after the publication of the notice while section 8 empowers the marriage officer to stop the solemnization of such marriage if they uphold the objection.

For the purpose of the article, I analyse specifically sections 5-8 of the Special Marriages Act, by unpacking the legislative intent of the provisions and analysing the provisions as a whole to argue that the notice regime is violative of the Right to Privacy under Article 21. I conclude, that any recognition of same-sex relationships under the SMA must also be followed by removal of the notice regime under the SMA for such recognition to be of practical value.

Tracing the legislative history of Notice Requirements

The present SMA has been greatly influenced by Act III of 1872, which attempted to introduce civil marriage based on contract in India for those interested in marrying without the restraints of religion. This Act was heavily contested by the orthodoxy of the time. A prime example of this was that while one of the draft bills required a five-day residential period and permitted solemnisation five days after the publication of notice, the Act eventually included a residential requirement of 14 days in the district the marriage was to be registered before the submission of the notice, much like how presently section 5 stands. Similarly, such a 14-day period was to be observed after the publication of the notice after which the marriage could be solemnized.

Such an extension was put in to satisfy the orthodoxy who wished to give time to families before the marriage was solemnised to travel to the district where the notice of marriage was registered to put up their objections to the marriage. Clearly, this displayed the preference of the law to include the parents and by extension, society as stakeholders in the marriage. Such marriages of “choice” were viewed as ones which would, after the Act’s passage promote unions whose foundation lay in lust and ‘carnal desires’ of men. The infusion of public morality in viewing the role of women in such marriages was clear as a binary was created. A “corrupt” woman would begin to live with their paramour as husband and wife on one hand while the other woman was the innocent, gullible, easily seduced one whose chastity had to be protected.

Post independence, when the Special Marriage Bill, 1952 was introduced, some members of the Lok Sabha advocated for extending the residence requirement period to thirty days. The members argued that such an increase was necessary to prevent the runaway couple from getting themselves registered in an unknown place without adequate notice to the parties who are really interested in the marriage. This was clear legislative disapproval of so called ‘run-away marriages.’ This is reflected in Section 7 as well which allows ‘any person’ to object to the marriage on the ground that such marriage would contravene some conditions specified in section 4.

The present section 6(3) was also a new section inserted in the Special Marriage Bill which got activated in situations where the notice given was in a district where neither party was permanently residing. In such a situation, the Marriage Officer has an obligation to transmit a copy of the notice to the Marriage Officer of the district the parties are permanent residents of. Such a copy must also be affixed on some conspicuous place. This provision ensured that the notice was sent to the home-town of the parties where it was easier for the families to find out and obstruct the intending couple from marrying.

All these additions clearly indicate the moral reprehensibility of Inter-faith marriages in the opinion of the state. Such marriages are viewed from a lens of public morality and other than the couple, the larger public was also a stakeholder and an interested party in the marriage. It is thus clear, that at the time of the passage of the SMA, the main intent for inserting the 30-day residence and objection requirement was to give a notice to the general public and the families of the parties. However, the intent of keeping the notice regime has at present changed. The Union of India, in its counter affidavit, in a plea challenging the 30-day public notice period in the Delhi High Court, argued that without the 30-day objection period, it would not be possible to verify the credibility of parties involved.

However, it is curious to note that such verification requirements are missing with respect to couples marrying under other laws. Thus, the question arises, why essentially is the state interested in verifying the credibility of only a certain type of couples? The answer seems to be the same, packaged in different wording. Even today, the state looks at inter-faith, inter-caste and possibly same-sex marriages with fear and thus, seeks to restrict them through the backdoor by continued application of such provisions.

Constitutionality of Sections 5-8: Violation of Right to Privacy?

Though made in the context of inter-caste marriages, Justice M. Katju in Lata Singh observed, that in a free and democratic country, a major can marry whomsoever they like. The maximum that disapproving parents can do is cut off ties with their wards, but they “cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage.” In Shakti Vahini, while holding that the choice of an individual is an inextricable part of dignity, the court recognised the right to marry while giving primacy to the consent of the consenting adults. An erosion of such a liberty and choice, envisaged under the constitution could not be compatible with the dignity each individual possesses.

This position was buttressed in Shafin Jahan, where the court held that the right to marry a person of one’s choice was a fundamental right under Article 21. Since the Constitution protects the choice and ability of each individual to pursue their way or life, faith and matters of love and partnership are central to individual identity, society has no role to play in the determination of who consenting adults should marry. Since members of the LGBTQ community are equal citizens capable of enjoying the full range of constitutional rights including the liberties protected by the Constitution, as was recognized in Navtej Singh Johar.

Similarly, decisional autonomy has also found a place within the scheme of Article 21 under the Right to Privacy. In Puttaswamy, Justice Chadrachud concluded that “privacy includes at its core, the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.” He observed further, though in the context of sexual orientation, certain rights were elevated to the pedestal of fundamental rights to protect their exercise from sanction of popular majorities, recognising how insular minorities face discrimination due to non-adherence of norms. Such a position also affirms how popular acceptance (or lack thereof) of same-sex marriages cannot in any way be a valid basis to disregard the couples’ fundamental right to marry whoever they wish to. The reference to the term “popular majority” clearly displays the rejection of curtailing of decisional autonomy in the face of public morality.

It is clear that by requiring the marriage officer to publicly affix the notice of marriage under section 6 which in many situations leads to harassment, boycott and even threats to the life of the intending couple, is an unwarranted invasion of their privacy, in a matter that is extremely personal. By allowing any person to object to such a notice clearly violates the dictum of the Supreme Court in recognising the primacy of the intending couple to marry, allowing public morality and social approval to restrict the rights of the couple. These provisions force consenting adults to choose between two alternatives, their freedoms or the possibility of violence and repression. Such a choice is antithetical to the constitutional morality envisaged under article 21 which places the individual at the centre and not society.

Limitations to the Right to Privacy

While it is established that the notice requirements violate the Right to privacy of couples, the central government has argued that the right to privacy can be restricted in the context of the SMA, under social, moral and compelling public interest. While it is true that even Article 21 can be restricted by the state, this test for restricting the Right to Privacy does not form a part of the plurality judgement in any case. However, reading Justices Chadrachud and Kaul’s judgements reveals a four-fold stringent test to determine state intrusions into privacy. The test is as follows:

(i) The action must be sanctioned by law; (ii) The proposed action must be necessary in a democratic society for a legitimate aim; (iii) The extent of such interference must be proportionate to the need for such interference; (iv) There must be procedural guarantees against abuse of such interference.”

Necessity & Legitimate Aim

In the plurality opinion of Justice Chandrachud, the requirements of a legitimate state aim are enunciated, which hold that the nature and content of the restriction imposing law must fall under Article 14 and should not suffer from manifest Arbitrariness. In Shayara Bano, it was held that “manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle.”

In differentiating marriages under the SMA and other personal laws, it is clear that there is no rational determining principle in light of each individual’s right to marry on the basis of their choice. There appears to be no rationality in ghettoising couples marrying under the SMA who clearly do not meet the requirement of an ‘intelligible differentia’. Even if an intelligible differentia is made out, there is no a rational nexus in distinguishing between couples marrying under the SMA and other personal laws. Both types of couples possess the same decisional autonomy, yet couples under the other acts are not subject to notice requirements. Is there really any ground for differential treatment other than non-adherence to social norms? 

As the history of the SMA has shown, the aim of the notice provisions is one which was designed to include the consent of third parties, who have no stake in the marriage and restrict the right to marry of the intending couple. In Satyawati Sharma, the SC argued that a legislation could be struck down even if it subsequently became arbitrary or unreasonable. Even if it is assumed that the aim of the notice requirements at the time of enactment was reasonable, given the wide recognition of rights at present, the notice requirements must be deemed to be unreasonable and arbitrary to the extent they limit decisional autonomy of an individual. In the present day and age, such an aim is neither legitimate nor necessary in a democratic society as it clearly restricts decisional autonomy under the larger scheme of the Right to Privacy by prioritising social approval and discriminating against couples marrying under the SMA.

Proportionality Test

Arguendo notice requirements have a legitimate aim of checking the “creditability of the parties involved”, the provisions of the SMA must meet the proportionality test which mandates that there must be a rational nexus between the aim of the infringement and the means of achieving such an aim. The law must minimally infringe rights in this process. Alternatively, if it is established that the state can achieve its goals through a less intrusive method, the law would not be proportional.

It is clear that that there is dissonance between the aims of the provisions and the method adopted. How exactly is a marriage officer seeking to ascertain the veracity of the parties by the publication of a notice with all the private details of the couple? The Marriage Officer can easily ascertain the identity, residence of couple by the documents submitted at the time of the registration. From the realities on ground, it is clear that a public notice is not used for any rational ascertainment but rather for disclosure of private details of the parties allowing others to disproportionately intervene in the marriage.

Conclusion

The history of the SMA reveals the inclusion of such sections in the Act to allow families and other members of society to object to and stop marriages which are seen to be deviant and invoke strong social disapproval. These provisions have had the intended effect of harassment of such couples, the non-solemnisation of their marriages and the state and society playing a greater role in determination of partners. The provisions of the SMA have consistently acted as impediments in special marriages by making the process of marriage more public, time-consuming and onerous for the intending couple.

All the arguments presented above apply to same-sex relationships as well which invoke strong social disapproval. Merely coming out, leave aside publicly declaring the intention to marry someone from the same sex in a society entrenched in patriarchal practices centred around family reputation and warped conceptions of honour is something extremely difficult for members of the LGBTQ community to do. Noting the experiences of other couples marrying under the SMA, reveals that continuing with the notice regime would leave same sex couples (individually and collectively) open to harassment, violence and ultimately non recognition of their relationships. This could take place either by sending marriage notices to the residential address of the couples by the police (a practice later stopped by the Delhi HC) or by being locked up in one’s own home, requiring a Habeas Corpus petition to be filed to be free, or even being forced to publish the notice of their marriage in a national newspaper.

All these actions constitute arbitrary and unreasonable intrusions in an extremely private matter, unreasonably restricting the exercise of decisional autonomy and a possible recognition of same-sex relationships which could take place within the SMA. Unless the notice regime is done away with, any sort of recognition of same-sex relationships will be merely illusory in nature leaving same-sex couples exposed to violence from the family and pressure groups.

Proportionality’s Fifth Prong

In an interesting judgment delivered on 20th February 2023, a two-judge bench of the Supreme Court undertook further evolution of the proportionality standard under Indian constitutional law.

Ramesh Chandra Sharma vs State of UP arose out of the Greater Noida Authority’s decision to pay differential compensation rates for certain land that it had acquired under the old Land Acquisition Act. The Authority divided landholders into “Pushtaini” and “Ghair-pushtaini.” Pushtaini landholders were those who had acquired the land before the establishment of the Authority in 1991, or who had subsequently received it through partition or a family settlement. Ghair-pushtaini landholders were those who had purchased the land after the establishment of the Authority. Pushtaini landholders were paid greater compensation than Ghair-pushtaini landholders. Before the High Court, the Authority defended this classification on the basis that it was providing for the “sons of the soil”, i.e., landholders whose income depended directly on the land, as opposed to those who had purchased it for other reasons. A Full Bench of the Allahabad High Court agreed, and upheld the classification.

The Supreme Court, however, disagreed. A two-judge bench of Murari and Bhat JJ held that the impugned classification failed all three tests under Article 14: reasonable classification, arbitrariness (which the Court framed as a Wednesbury enquiry), and proportionality. With respect to reasonable classification, the Court found that the Authority’s basis for distinction between Pushtaini and Ghair-pushtaini landholders was both under-inclusive and over-inclusive: to the extent that the idea was to protect people who made their living off the land, the 1991 cut-off date was not fit for purpose, as it would leave some people who did depend on the land out of the loop, while protecting others who did not. This is an interesting finding, as the Supreme Court does not often strike down State action on grounds of under- and over-inclusiveness; it generally holds that legislation cannot draw bright lines, and some play in the joints is always available. Clearly, in this case, the Court felt (although it did not say) that the under- and over-inclusiveness was too great to justify, even under deferential standards. The Court then further held that the classification lacked a determining principle, and therefore failed Wednesbury arbitrariness.

It is the Court’s proportionality analysis, however, that is most interesting. We normally think of the proportionality test as containing four prongs – legitimate State aim, suitability, necessity, and balancing (proportionality stricto sensu). Here, however, relying upon the judgment of Gujarat Mazdoor Sabha, the Court added a fifth prong: that “the state should provide sufficient safeguards for the possibility of an abuse of such rights infringing interference.” (paragraph 50) On an analysis, it found that the Greater Noida Authority’s classification violated more or less every one of the five prongs of the proportionality standard.

The addition of a fifth prong to the proportionality standard is a very interesting development. One of the common recourses that the Court has often taken to uphold problematic laws has been to say that the possibility of abuse does not make a law unconstitutional, and that consequently, if there is abuse, the individual is free to invoke legal remedies to save themselves. This reasoning, however, is flawed: abuse rarely takes place in open contravention of law. Almost always, it takes place under cover of law, and is enabled because the law leaves far too much room for discretionary executive action within its interstices.

The Supreme Court’s awareness of this fact in Ramesh Chandra Sharma is evident in the reasoning that it gave for adding the fifth prong. It noted that:

State action that leaves sufficient room for abuse, thereby acting as a threat against free exercise of fundamental rights, ought to necessarily be factored in in the delicate balancing act that the judiciary is called upon to do in determining the constitutionality of such state action – whether legislative, executive, administrative or otherwise. (paragraph 51)

This is extremely important, as it recognises, first, that abuse does not take place outside the law, but is baked into the law; and secondly, it places the burden firmly upon the State to affirmatively mitigate abuse within the legislation itself. Under the doctrine laid down by the Court, therefore, in future, highlighting the potential for abuse in a law is a good ground for challenging its constitutionality, under the proportionality standard.

Of course, it remains to be seen whether the fifth prong will have any genuine bite. Ever since the proportionality test was first articulated in formal terms by the Supreme Court in 2016, its record has been patchy: whereas the Court has deployed it rigorously in cases where the stakes are low, in cases with higher stakes for the political executive – as we have discussed on this blog – proportionality has been deployed inconsistently, and has been used a tool to wave State action through rather than to scrutinise it. The proof of the pudding, therefore, will be in the eating.

Guest Post: Misinterpreting Harsora – Male Complainants and the Domestic Violence Act

[This is a guest post by Mohammad Zayaan.]

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On 29.11.2021, the Judicial Magistrate (1st class), Jammu [hereinafter ‘Magistrate’], took cognisance of a complaint filed by a husband against his wife under Section 12 of the Protection of Women from Domestic Violence Act, 2005 [hereinafter ‘Act’]. The Order handed by the Magistrate [hereinafter ‘order’] identifies the judgments in Hiralal P. Harsora v. Kusum Narottamdas Harsora [hereinafter ‘Harsora’] and Mohammad Zakir v. Shabana [hereinafter ‘Zakir’] as sufficient grounds to proceed against a wife under Section 12 of the Act. No further reasoning is provided as to how the two judgements lead to such an interpretation.

This post is divided into three parts. Part I deals with the importance of a judicial magistrate in the criminal justice system in India and how taking cognizance of such an act- though at the lowest level- could lead to wide (and unnecessary) ramifications for the accused. Part-II deals with the ratio of the two judgments in Harsora and Zakir, and what they actually held. Part-III argues that the order was erroneous as it misapplied the ratio laid down in Harsora and used Zakir as a precedent incorrectly, thereby arriving at an erroneous conclusion.

The Important of a Judicial Magistrate

A Judicial Magistrate (Ist Class), under Section 29(2) of the Code of Criminal Procedure [hereinafter ‘CrPC’] is empowered to pass any sentence authorized by law except the sentence of death, life imprisonment and imprisonment more than 3 years. They may also impose a fine up to Rs. 10,000. This amount has been increased to Rs. 50,000 in Rajasthan and Maharashtra. However, more importantly, they have the power to take cognizance of a complaint, which sets the entire criminal justice system in motion. Under Section 190 of the CrPC, Magistrates are empowered to take cognizance of offences after receiving a direct complaint from the aggrieved, upon a police report, upon information received from ant other person, or upon the concerned Magistrate’s own knowledge. In Nupur Talwar v. CBI, the Supreme Court of India noted as follows:

“We feel constrained to observe that at this stage, this Court should exercise utmost restraint and caution before interfering with an order of taking cognizance by the Magistrate, otherwise the holding of a trial will be stalled. The superior Courts should maintain this restrain to uphold the rule of law and sustain the faith of the common man in the administration of justice.”

Therefore, it is difficult for a higher court to scrutinize the process of taking cognizance by the magistrate. Consequently, erroneous orders given by magistrates in the backdrop of a fractured criminal justice system only increase the hardships faced by the accused.

What Harsora and Zakir held

In Harsora, two women (mother and daughter) filed two separate cases against their family members, alleging acts of violence on part of them. Three of the respondents were women, while one of them was a man. The case had been filed under Section 2(a) r/w Section 2(q) of the Act. Section 2(a) defines an aggrieved person as

“… any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.”

Section 2(q) of the Act defined Respondent as:

“… any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act.”

The three female Respondents filed an application in the Court of the Metropolitan Magistrate seeking their discharge from the case. They argued that Section 2(q) only encompassed adult males as respondents and since they are not a part of that class or category, a complaint cannot be made against them under these provisions. However, the Metropolitan Magistrate dismissed this application. This order was appealed before the Bombay High Court, which overruled the verdict of the Metropolitan Magistrate and held that the wording of Section 2(q) clearly excludes any person other than an adult male from the ambit of the act, and therefore, women cannot be Respondents in such cases. This was further appealed in the Supreme Court of India, where it was argued that Section 2(q) of the Act was discriminatory and violated Article 14 of the Constitution of India. Apart from other issues, the Supreme Court primarily dealt with the constitutional validity of Sections 2(a) and 2(q) of the Act. In its judgment, the Court struck down a part of Section 2(a) and read down the words ‘adult male’ from Section 2(q), which essentially meant that a woman could file a complaint under the Act against anyone, irrespective of their gender. This, however, was strictly laid down in context of the Respondent, giving women the liberty to file cases against other women who might be complicit in their abuse.

In Zakir, a single bench of the Karnataka High Court misinterpreted Harsora to hold that a man can also file a complaint under the Act. The High Court held that since the words ‘adult male’ were removed from Section 2(q), “any aggrieved person, in terms of DV Act, whether male or female, is entitled to invoke provisions of the Act”. However, the judge later withdrew this order on grounds of being ‘patently erroneous’ and restored the petition to the file. Therefore, the order in Zakir, notwithstanding the misinterpretation of Harsora, could not have been used as a precedent at all, as it had been subsequently withdrawn.

The Order

The Order given by the IInd Class Magistrate in Jammu essentially made two errors- firstly, it misinterpreted Harsora and repeated the error made in Zakir, and secondly, incorrectly relied on Zakir to support the misinterpretation. Not only was Zakir itself erroneous but was also withdrawn and therefore could not have been used as a precedent.

Harsora only stressed on who the respondents could be and did not deal with who could or could not file a complaint. The omitting of the words ‘adult male’ from Section 2(q) of the Act does not automatically imply that anyone could file a complaint under the Act, but only means that a case can be filed against anyone, rather than by anyone. Section 2(q) was struck down to expand the scope of the Act to include females who are complicit in acts of domestic violence, rather than to include men as complainants under the Act. The Court rightly looked at the Statement of Objects and Reasons of The Protection of Women from Domestic Violence Bill, a part of which reads:

“It is, therefore, proposed to enact a law keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.”

Therefore, the law was essentially brought to tackle the cases of domestic violence against women, who are affected by such violence disproportionately. The intent of the legislation coupled with a literal interpretation of the text of legislation clearly excludes men from filing cases under the Act.