Coronavirus and the Constitution – XXXIV: The Bombay High Court [Guest Post]

[This is a guest post by Adv. Manoj Harit.]


In the life of a noisy democracy like India, issues fanning large-scale outrage are commonplace. Easy and widespread access to social media accentuates the outrage. Frenetic, sarcastic, or fervent calls to the Hon’ble Supreme Court of India follow as matter of course. As a consequence, public-spirited persons rush to the highest Court, invoking Article 32 of the Constitution.

But while Article 32 grants the right to move the Supreme Court by appropriate proceedings for the enforcement of rights conferred by Part III of the Constitution, Article 226 goes a step further, insofar as it empowers the High Courts to issue writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. [Emphasis mine]

Thus, it is manifest that the power conferred by virtue of Article 226 is to enforce the rule of law and to ensure that the State and other statutory authorities act in accordance with law. The words ‘for any other purpose’ are for a specific reason. It is an attempt by the framers to anticipate unforeseen obstacles, if any, that may hinder or curtail the power of High Courts to do justice, review executive actions / decisions, and safeguard the primacy of Rule of Law.

The raison d’être of Article 226 has been particularly evident during the pandemic, at High Courts across the country. Article 226 and judicious exercise of the power conferred by it upon the High Courts has played a vital role in alleviating the sufferings of the citizens, especially the poor and marginalized. The High Court of Bombay has been an important actor, and has handed down a series of orders that are both legally well-founded, and within the spirit of the Constitution.

During the pandemic and the unending lockdowns, the High Court of Bombay was petitioned to intervene when adivasis were denied food rations, when non-Covid patients were facing neglect and apathy, against onerous conditions that were put upon the migrant workers for return travel to their home States, when there was denial of rations to people who did not hold ration cards, against unlawful and wavering directives of the Municipal Corporation with respect to burials of cadavers of suspected / confirmed Covid-19 infected individuals, against non-implementation of RBI guidelines on interest / repayment moratoriums by the Banks, against Air India not keeping the middle seat vacant and thereby risking lives of flyers, on multiple issues on spread of Covid-19 amongst the various correctional homes (admirably, the CJ Bench did not use the words jails or prisons), against imposition of Orders u/s 144 of CrPC by the police authorities, on welfare measures for pet animals, on Covid-19 testing protocols for frontline health workers, on non-availability of crop loans to the farmers & germination problems in soya bean seeds – to mention a few examples.

More than 150 orders have been passed by the High Court of Bombay, exercising powers under Article 226 of the Constitution during the pandemic. A closer look at the orders reveal the working of a Constitutional Court, compassionate and public spirited advocacy, and importantly, a fair and reasoned response from the Attorney-General, representing the State of Maharashtra. The Ld. Attorney General and Senior Advocates representing the Municipal Corporation of Greater Mumbai did not treat the petitions as ‘adversarial’ litigations, and proffered due deference to the suggestions made by the Petitioners (probably due to the disposition of the Bench). Some examples follow:

Ration and Food Supplies

In PIL-LD-VC-14 of 2020, when apprised of lack of ration and food supplies to tribal & adivasi people residing in Thane, Palghar & Nashik Districts of Maharashtra – where the people in remote areas were denied benefits under the Antyodaya scheme for not possessing ration cards, and, the applications for getting ration cards were not being processed due to lockdown – the High Court issued directions to District Supply Officers of Thane & Palghar Districts (both the Districts have a significant population of the Adivasis & the marginalized) to commence work on processing the ration card applications immediately, and further, directed the State to ensure that lack of ration cards did not deprive the citizens of food rations. The petition was kept pending with further directions to the State to submit, on Affidavit, the progress made, thereby keeping the State on its toes. It is the power of High Court under Article 226 that keeps a leash on the executive. And by keeping the petitions pending, the Executive is compelled to take appropriate actions in order to face the Court on the scheduled date. This acts as a catalyst in resolving the issues faced by the citizens. The files move with seemingly miraculous speed in the bureaucracy when the Court date is dangling like the “Sword of Damocles”.

Migrants

In PIL-CJ-LD-VC-11-2020, an important issue was raised: that “the migrant workers who have submitted applications for leaving the State availing Shramik Special trains and buses during the continuance of the Lockdown, have been left in the dark about the status of their applications and that till such time they can board the trains/buses to leave for their native places, they have been made to live in cramped and unhygienic shelters, without being provided with food and other essentials.”

The Additional Solicitor General representing the Union of India informed the Hon’ble Court that the Apex Court was seized of the matter and had already passed an order dated May 28, 2020 on the issue of migrant laborers. The High Court of Bombay, with due deference to the fact that the issue was actually being dealt by the Apex Court recorded that “at this stage, neither are we empowered nor do we wish to make any order contrary to the spirit of the order of the Supreme Court.” But the power of Article 226 and the spirit of Constitution compelled the High Court to further direct the State Government:

… however, having regard to the peculiar local conditions, we consider it fit and proper to call upon the State to file a report indicating therein how the plight of the migrant workers, who have been assembling at the railway stations/bus stands in Mumbai and places around it, are being addressed. In fact, we have come across photographs in newspapers showing congregation of migrant workers not only on railway platforms but also on the streets adjoining the railway stations. Such congregation, if allowed, would run counter to the object, for which the Lockdown has been imposed. The report shall, inter alia, indicate the whole procedure that a migrant worker is required to follow in order to be eligible for leaving this State, the likely time within which he could board a train/bus, the nature of shelter he is provided with during the waiting period as well as provisions made available to him for his sustenance.

Burials

The issue of the burials of cadaver of Covid-19 infected individuals brought out the pragmatic approach of the High Court. [LD-VC-46 OF 2020] In a multi-pronged and multifaceted litigation, the High Court was called upon to review executive action/s, balance the fundamental right to life of people with radically differing contentions; and, also with the right to dignity in death.

The facts:

The Municipal Commissioner, Mumbai had come out with a Circular dated March 30, 2020 under Regulation 10 of the Maharashtra COVID-19 Regulations 2020, issued under Sections 2, 3 & 4 of the Epidemic Diseases Act, 1897. It mandated cremation of the cadaver, irrespective of religion. For those wanting a burial, an option of taking the cadaver out of the city limits of Mumbai was provided. It created instant furor & outrage. By evening, an amended Circular was issued, permitting burials in Mumbai, provided that the ‘burial grounds are large enough so as not to create possibility of spread of virus in the neighbouring area’. Both the Circulars were challenged by rival petitioners – those opposing burial permission in city burial grounds and those supporting it.

On April 9, 2020 another Circular was issued in continuation of the aforesaid Circulars. Through this Circular, names and mobile numbers of the persons to contact in case of requirement of burial of a cadaver of a Muslim, and also, the list of the burial grounds were provided.

The aforesaid Circular dated April 9, 2020 was also challenged by some Petitioners claiming that the list of kabrasthans appended to the circular dated April 9, 2020 included 3 (three) kabrasthans, which are close to the Petitioners’ residences. It was contended that burial of the cadaver of a COVID-19 infected individual in a kabrasthan in the vicinity of their residences is likely to endanger their lives as well as others residing nearby and accordingly, they prayed that the Respondents (State of Maharashtra and the Corporation) might be restrained from allowing burial of the cadaver of any COVID-19 infected individual in the relevant burial grounds.

Many intervention applications were also filed. The Court allowed those applications and heard the interveners too.

The Issues Before the Court

Did the Municipal Commissioner, MCGM have an authority to issue the amended circular and its legality and propriety?;

Which of the 3 Circulars issued by the Municipal Commissioner, MCGM conformed with the guidelines issued on the subject by WHO and Government of India, and, hence, sustainable?;

Was the right to life of the Petitioners as guaranteed under Article 21 was adversely affected due to the burial of cadavers of COVID-19 infected persons in the burial grounds surrounded by dense population, including the residences of the Petitioners?;

The Court’s Analysis:

On Issue (a) & (b) : As the Petitioners, Interveners and the State were making differing contentions on the issue, the Court ‘analyzed’ the WHO and Government of India Guidelines on the question of management of cadavers of suspected/confirmed COVID-19 infected individuals. After a detailed analysis, the Court concluded (paragraph 24):

Analysing the said recommendations, it becomes clear that even according to the WHO, there is no evidence of persons having developed infection of COVID-19 from exposure to the cadaver of a suspected/confirmed COVID-19 individual. That apart, the recommendations of the WHO are further clear on the point that people who have died because of COVID-19 infection can either be buried or cremated. Such recommendations also throw light on the procedure to be observed at the time of burial of the deceased. Those who handle the cadaver have to adopt precautionary measures. Those are intended to protect them from being infected. A detailed procedure to be observed at the time of burial is also laid down. Observance of such detailed procedure at the time of burial is, in our view, sufficient safeguard from exposing the near and dear ones of the deceased who would choose to assemble at the kabrasthan/cemetry for having a last look at the deceased and to bid him a final good-bye”.

In paragraph 25: the Court asked itself a question:

“If indeed risk from a dead body would endanger the lives of human beings, the risk involved in treating COVID-19 infected patients by the medical and the para-medical staff, who are the frontline workers to combat the virus, would be much greater. Are such staff shying away from treating COVID-19 patients? The answer must be an emphatic ‘no’.

In paragraph 26, the Court made up its mind based upon the material before it:

… the order of the Municipal Commissioner rather than being founded on scientific data or material appears to have been dictated by considerations which are extraneous. The order refers to a community leader and to what was brought by him to the notice of the incumbent Municipal Commissioner. We have no hesitation in our mind that such incumbent, instead of referring to what the community leader had brought to his notice, would have been well advised to proceed for a scientific management of disposal of cadavers of suspected/confirmed COVID-19 infected individuals in accordance with the recommendations of the WHO and the GoI guidelines.

Thereafter, in Paragraph 27 & 28 the Court declared the earlier Circular dated March 30, 2020 directing that burial should not be allowed for containing spread of COVID-19 and that the dead bodies of COVID-19 patients should be cremated at the nearest crematorium irrespective of their religion, to be unsustainable. The Court further held that though the exercise of powers under Regulation 10  of the Maharashtra COVID-19 Regulations 2020 did not appear to be legal, the Municipal Commissioner could have resorted to it, provided such a measure had the sanction of the existing protocols for management of COVID-19, or was such a pivotal measure, otherwise widely acknowledged, which was not included in the GoI guidelines.

In view of the aforesaid, in paragraph 27, the Court observed that “we, thus, hold the action of the Municipal Commissioner in preventing burials to be illegal and unauthorized and hence, the amended circular cannot be operated to the detriment of the members of the community for whom burial of the dead is part of the religion they profess, practice or propagate.” Noticeably, in the very next paragraph, the Court demonstrated that it is alive to the precedence of ‘deference to the executive action in matters of policy’. The Court observed that “the Municipal Commissioner, being a creature of the 1888 Act, is bound by its terms and a decision has since been taken which conforms to such provisions read with the GoI guidelines. It is indeed a matter of policy whether to close down a place for disposal of the dead. Unless any decision shocks the conscience of the judicial review Court, it ought to stay at a distance.”

However, in this case, intervention was justified, because:

The amended circular was drastic in its operation but without any scientific basis for it to rest on and since it did not have statutory sanction, the circular dated April 9, 2020 notifying 20 (twenty) out of several kabrasthans/ cemeteries for burials was a timely move to restore sanity. To err is human but taking lessons from mistakes and rectifying the situation was the call of the moment. Proper management of disposal of dead bodies ought to have been worked out consistent with the recommendations of the WHO and the GoI guidelines as well as the sentiments of the members of the communities for whom burial of a dead member of such community is an integral part of their religious belief and faith. Though such management was initially lacking, but ultimately better sense must have prevailed upon the incumbent Municipal Commissioner who left no stone unturned to remedy the situation.

As regards to the legality of the amended Circular dated April 9, 2020, the Court held it to be in continuation of the earlier Circular, and, not a review thereof. Therefore, it did not suffer from any legal infirmity.

On issue ( c ) : the Court rejected the contention of the Petitioners that their right to life under Article 21 was under threat due to the burial of cadavers of COVID-19 infected persons in the Kabristans in the vicinity of their residences, for being misconceived and misdirected and without a scientific base or foundation.

It is thereafter that the Court invoked preambular promise of fraternity by observing that:

“We have found the petitioners to be rather insensitive to others’ feelings. The founding fathers of the Constitution felt that the people of India would strive to secure to all its citizens FRATERNITY, assuring the dignity of an individual. That is the preambular promise. In Parmanand Katara (Pt) vs. Union of India & Ors., reported in (1995) 3 SCC 248, it has been held that right to dignity and fair treatment under Article 21 of the Constitution is not only available to a living man but also to his body after his death. Right to a decent burial, commensurate with the dignity of the individual, is recognized as a facet of the right to life guaranteed by Article 21 of the Constitution. There is, thus, no reason as to why an individual who dies during this period of crisis because of suspected/confirmed COVID-19 infection would not be entitled to the facilities he/she would have otherwise been entitled to but for the crisis. Should the extant guidelines for disposal of the cadaver of an individual infected by COVID-19 be adhered to and the cadaver properly handled and placed in special covers to contain any kind of spread, we find little reason to deprive the dead of the last right, i.e., a decent burial according to his/her religious rites”. [Emphasis mine]

 

It is, even if not framed so, a balancing of the Part III rights of the living, with that of the dead, although, the dead were unidentified, and not before the Court. That for me, is Article 226 in all its importance.

Coronavirus and the Constitution – XXXIII: N-95 Masks and the Bombay High Court’s Dialogic Judicial Review [Guest Post]

[This is a guest post by Aakanksha Saxena.]


This blog has previously dealt with orders of the Gujarat and Karnataka High Court as recent exemplary instances of constitutional courts practising dialogic judicial review during the ongoing COVID-19 pandemic and lockdown crisis. Subsequently, the Bombay High Court was faced with the question of whether, in view of the scarcity of certain components of personal protective equipment (“PPE”) such as surgical masks, N-95 masks, hand sanitisers and gloves, the prices of such components were required to be capped – specifically that of N-95 masks. In the course of proceedings culminating in its 9th June 2020 Order, the High Court continued the welcome trend, by (1) throughout the course of hearings, identifying where the respective governments were lacking in their response to the issues raised, and (2) posing pertinent questions with the aim to elicit a positive approach in respect of the policy expected to be framed, all while refraining from judicial overreach and ensuring executive accountability. The Order and the approach leading up to it are a far cry from the decisions seen at the beginning of the national lockdown, which reflected a degree of judicial deference to the executive that has come under great and justifiable critique.   

 Background and Scope of the PIL

The PIL had been filed seeking a host of directions, including a ceiling on the prices of certain goods declared as “essential commodities”, stemming from concerns of hoarding and rampant black marketing of PPE (“PIL”). On a reading of the PIL petition,  it is clear that the primary reliefs prayed for were against the Maharashtra State Government. During previous hearings of the matter, submissions were in fact made by the Union of India, to the extent that the Centre had already placed a ceiling on the price of certain components of PPE, but as far as the N-95 masks were concerned, the issue of a price ceiling had been raised with the Centre by the State Government, and no response had been received. As a result, the Court by an Order granted the Centre time to take instructions specifically on this question, and file an affidavit containing its reply. Thus, while accepting the policy framed by the Centre in respect of price caps for certain PPE goods, the Court remained attuned to the concerns raised in the PIL qua the N-95 masks, which had not been included by the Centre in its formulation, despite having been declared an essential commodity by the Ministry of Consumer Affairs, Food & Public Distribution, with the very object of prevention of hoarding, black marketing and profiteering.

Final Reliefs

Eventually when the matter came up for hearing, the Petitioners apprised the Court of an order dated 11.2.2020 issued by the Central Government, which included medical devices intended for human use within the meaning of drugs under the Drugs and Cosmetics Act, 1940, which would then mean that goods such as N-95 masks fall within the purview of the Drugs (Price Control) Order, 2013 (“Control Order”). Order 20 of the Control Order places an express duty on the executive to “ensure that no manufacturer increases the maximum retail price of a drug more than 10% of the maximum retail price during preceding 12 months; and where increase is beyond 10% of maximum retail price, it shall reduce the same to the level of 10% of maximum retail price in the next 12 months”. Order 19 of the Control Order vests discretion in the Government to fix thr ceiling price or retail price of any drug for such period, as it may deem fit. 

It was established by the Petitioners that the 11.2.2020 Order and consequently the Control Order were not taken into consideration in decisions of the NPPA dated 15.5.2020 and of the Ministry of Chemicals and Fertilizers dated 21.5.2020. Vide its Order dated 15.5.2020, a direction had been passed by the NPPA directing manufacturers /importers /suppliers of the N-95 Masks to maintain parity in prices for non-government procurements and to make available the same at “reasonable” prices, without taking into account that the Control Order itself indicated what price determination was to be followed. It was opined that a price cap was not needed at the time, since the government was directly procuring the said masks from the major manufacturers. “Reasonable prices” therefore, was evidently a vague term deployed by the NPPA, which would have created unwanted discretion in the hands of the manufacturers /importers /suppliers. Where the decision had already been taken placing N-95 masks in the same category as hand sanitisers, gloves, and surgical masks, the distinction in imposing a price ceiling was arbitrary and unjustified.

The Centre sought to support the NPPA decision by way of its affidavit, and further pointed out that the price of masks had since been further reduced by 47%. Given the circumstances, the admitted position on record of reduction in price might have arguably justified judicial deference to executive policy-making, and given a quietus to the matter.

However, the High Court, on a close reading of the affidavit noticed that notwithstanding the reduction in prices, the Government was itself considering imposing a ceiling on the price of PPE. In this background, the High Court correctly directed that instructions be taken on whether the Central Government would revisit and reconsider the question of imposing a cap on the price of N-95 masks. When an affirmative statement was made in this regard, the High Court appropriately finally directed that the Central Government was required to take a fresh decision, by including consideration of the Control Order and the relevant provisions of the EC Act, and other relevant aspects, within a period of 10 days to 2 weeks.

Summing Up

The progress of the price-capping PIL before the High Court is another clear example of how constitutional courts ought to engage in judicial review by setting up an effective dialogue with the executive. Without passing directions in the nature of policy decisions (which were sought by the PIL), the High Court at every stage raised pertinent questions after analysing the stand and submissions on behalf of the government. 

The ongoing lockdown has considerably and unpredictably impacted the right of access to justice on the one hand, and given rise to several instances of grave infractions of constitutional, civil, and socio-economic rights. The rapidly changing developments have led to excessive delegated legislation by way of orders and notifications issued by the Central and State Governments, and a simultaneous deluge of PILs being filed, highlighting concerns where policy is not forthcoming. The need of the hour has therefore been that courts engage with the executive, to ensure that policy is adequately framed, and where framed that it is lawfully justified.

The High Court, in its decision, not only completely complied with precedent on price fixation laid down in Pallavi Refractories v. Singareni Collieries Co. Ltd., (2005) 2 SCC 227, but also by the formulation of relief in the Order placed accountability on the government to ensure that a timely decision is taken (failing which the problem would likely exacerbate) and communicated to the petitioners. The objective, viz. of ensuring that PPE components remain available and affordable was emphasised so as to be kept in mind by the government while reviewing its policy, without any overreaching directions being passed.

Postscript

In the aftermath of the Bombay High Court’s order, a decision by the central and state governments remains to be taken on the issue of the N95 mask price ceiling, pending which no further hearings have taken place in the PIL. The time directed for this decision to be made having lapsed, it remains to be seen whether the High Court will now hold the Centre to a higher degree of accountability, or, in the event of an absence of policy decision making, decide the question itself.

Guest Post: The Supreme Court’s Powers of Review – A Discordant Note

[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


[This is a guest post by Ashwin Vardarajan.]


Introduction

A nine-judge bench (“9JB”) of the Supreme Court of India (“SC” or “Court”), on 11th May, 2020, passed an order (for convenience, referred to as “the Order”) releasing the reasons why it is competent to decide on the questions referred to it vide the Sabarimala review judgment, a controversy concerning the entry of women into a temple located in Kerala. The review judgment (referred to as “Kantaru”) was passed on 14th November, 2019 in pursuance of the decision of the SC in Indian Young Lawyers Assn. v. State of Kerala, which struck down the law prohibiting women to enter into the temple.

The majority in Kantaru, quite interestingly, did not decide upon the review petitions on their merits and kept them pending. Rather they formulated certain questions in relation to the interpretation of Articles 25 and 26 of the Constitution of India (“Constitution”) after discussing two things: firstly, the similarity of the Sabarimala issues with those concerning muslim women, Parsi women, and the practice of female genital mutilation in the Dawoodi Bohra community; and secondly, it noted that there “seem[ed] to be an apparent conflict” between the decisions of the SC in Durgah Committee and Shirur Mutt. Owing to this, the bench referred these questions, inter alia, pertaining to the interpretation of Articles 25 and 26 of the Constitution and the permissible extent of judicial intervention in religious matters.

The Preliminary Question before Nine-Judge Bench 

When a 9JB was constituted to decide upon the questions framed and referred to by majority in Kantaru, it was contended that the reference was not maintainable. One of the contentions asserted by those objecting to the reference was that the reviews were not maintainable under Order XLVII of the Supreme Court Rules, 2013 (“SC Rules”). The 9JB rejected this argument and held that Order XLVII of the SC Rules do not limit the power of the court to review its own judgments and orders. In order to arrive at this conclusion, they relied upon an odd interpretation of Order XLVII, Rule 1 of the SC Rules. This article aims to critique this interpretation.

The Court’s Reasoning

Article 137 of the Constitution confers on the SC the power to review its own judgments, and the manner in which the SC exercises its review jurisdiction has been provided under Order XLVII of the SC Rules. Order XLVII Rule 1 reads as follows:

The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule 1 of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record.

The SC noted that the language employed by Order XLVII Rule 1 of the SC Rules was wide enough to not restrict the power of the Court to review its judgments. In order to derive this conclusion, it looked at the disjunctiveness in the rule’s language and held that the phrase “the court may review its judgment or order” and the portion after the ‘comma’, which appears after the said phrase, separates the limitations which the Court is subject to for exercising its review jurisdiction. This essentially meant the phrase “The Court may review its judgment or order” is the rule, and “but no application for review…the face of the record”, in Rule 1, is the exception; and this exception only pertains to civil and criminal proceedings before the SC.

Further, to buttress this stance, the Court observed that writs under Article 32 of the Constitution do not amount to civil or criminal proceedings. The only source of distinction it noted, when distinguishing between writ, civil and criminal proceedings, was that they are governed under different parts within the SC Rules. It observed that:

13. Part II of the Supreme Court Rules deals with Civil Appeals, Criminal Appeals and Special Leave Petitions under Article 136 of the Constitution. Order XXI refers to Special Leave Petitions (Civil) and Order XXII covers Special Leave Petitions (Criminal) proceedings. Petitions filed under Article 32 of the Constitution are dealt with under Order XXXII in Part III of the Supreme Court Rules. Sub-Rule 12 of Order XXXVIII refers to Public Interest Litigation. Admittedly, Writ Petition (Civil) No. 373 of 2006 was filed in public interest. The review petitions arise out of the judgment in the said Writ Petition.

14. Civil proceedings and criminal proceedings dealt with in Part II of the Rules are different from Writ Petitions covered by Part III of the Supreme Court Rules. The exceptions carved out in Order XLVII, Rule 1 of the Supreme Court Rules pertain only to civil and criminal proceedings. Writ Petitions filed under Article 32 of the Constitution of India do not fall within the purview of civil and criminal proceedings…” (emphasis supplied)

 

Accordingly, the SC, by merely tracing its authority to review its judgments, held that the review is maintainable.

The Appraisal

First and foremost, for the SC, the only source of distinction between civil, criminal and writ proceedings seems to be the location of the proceedings within the SC Rules. Let us say, in a hypothetical situation, that civil and writ proceedings were dealt with in the same part of the SC Rules. In that situation, would writ proceedings be the same as civil ones? Upon a closer look of the Order, it seems like the SC distinguished between the three proceedings solely on the basis of positioning of the proceedings within the SC Rules without addressing substantive distinctions.

Further, the SC sidestepped its own decision in Kamlesh Verma v. Mayawati (“Kamlesh”) wherein the Court laid down the summary of principles it is required to follow when entertaining a review petition before it. Thus, if one was to contend for the review jurisdiction to be exercised, the Court ought to see whether such an argument falls within the one of the principles enumerated in Kamlesh.

The principles enumerated in Kamlesh and the interpretation of the Order cannot co-exist, as the latter completely does away with the former and makes it look like a dead letter on a parchment. Simply reasoning that the only limitation before the Court, bizarrely identified by it in the in the rule’s grammar, is in cases of criminal or civil proceedings, bypasses Constitutional and legal principles. Quite woefully, the 9JB observed that “there is no fetter in the exercise of the jurisdiction of this Court in review petitions of judgments or orders arising out of proceedings other than civil and criminal proceedings.” (paragraph 12 of the Order; emphasis supplied).

It is unclear why the SC did not acknowledge, or even pay heed to the principles developed by its past precedents on the exercise of review jurisdiction. The decision of the SC in Kamlesh was directly relevant, as it delved into several of the Court’s past decisions and derived the principles surrounding its powers to exercise review jurisdiction (see paragraphs 12-19 in Kamlesh) In fact, the minority in Kantaru strictly conformed to the principles enumerated in Kamlesh when dismissing the review petitions before it. Thus, the Order has not only created conceptual friction in relation to established principles of the Court’s exercise of review jurisdiction, but also is an example of how the institution fails to conform to, or even acknowledge, its own decisions.

Additionally, the SC initially held that it has no fetter on the powers to review its own decisions in relation to any proceedings except those relating to civil or criminal, and then distinguished only between writ, civil and criminal proceedings. What about, for instance, Presidential references under Article 143? Are they amenable to the unfetteringly exercisable review jurisdiction too, or are they civil proceedings? In the future, if a different set of judges feel differently about a certain decision, for personal or political reasons, and admit the matter for review, if and when contended before them in relation to such a Presidential reference then the judges need not even provide adequate reasons when exercising review jurisdiction in any proceedings other than civil or criminal ones. Such a lose interpretation even casts doubt on whether the SC actually aimed to provide adequate reasons in the present Order, or merely engage in a formality.

The SC, further, conferred on itself unlimited powers review any of its decisions – other and those relating to civil and criminal proceedings – without laying down adequate determining principles of exercising it whilst side-lining pre-established determining principles on exercising review jurisdiction. The Order seems to have opened the pandora’s box for the SC to exercise review jurisdiction on its whims and fancies without auditing accountability to any legal principles. This is very troubling, since the SC has, historically, disdained entertaining review petitions, often referring to them as a “serious step and [a] reluctant resort”.

Conclusion

At the end of the day, a judicial institution reviewing its own decision somewhere demeans their credibility of its own judges’ wisdom. Procedurally relaxing the power to do so begs the question as to whether the SC sees this issue the same way.


  • The author expresses his gratitude to Rupam Jha for her inputs on this essay.

Coronavirus and the Constitution – XXV: Socio-Economic Rights and the Shifting Standards of Review [Guest Post]

[This is a guest post by V.G. Shreeram.]


Over the past few weeks, the spread of Covid-19 and the State’s response to the same has prompted a flurry of petitions in the Supreme Court and the various High Courts of the country. A significant number of these petitions pertain to the protection and enforcement of important socio-economic rights, which have been severely compromised as the social security nets of vulnerable populations have been pierced by the nationwide lockdown. Inter alia, this includes the right to health which was tested by the free testing order of the Supreme Court, the right to wages, food security and livelihood of migrant workers, and the right to education of students in the Union Territory of Jammu and Kashmir, tested in the form of the petition challenging the sanctioned Internet speed in the Union Territory.

As readers of this blog would be familiar, in contentious cases regarding policy decisions, over the past few months, the Supreme Court has shown a degree of executive deference despite the overarching concerns regarding the compromise of fundamental rights in such petitions. We’ve seen a repeat of this pattern in the recent cases pertaining to socio-economic rights, which have arisen in light of Covid-19, where the Apex Court has deferred to the executive and has had a hands-off approach to socio-economic concerns despite the established justiciability (i.e. the protection and enforcement of these rights by the State is subject to strict judicial review) of these rights, usually by citing concerns of the Court supervising the government.

It is an established principle of Indian Constitutional law that a constitutional court cannot intervene in matters of policy and that it is the exclusive domain of the government. Nonetheless, this comes with a caveat that these policy decisions do not infringe any justiciable fundamental rights. And to the extent that there is any infringement of any fundamental right, the court would be duty bound to intervene and remedy such infringement. It is my case that, that the kind of executive deference that constitutional courts are able to afford in response to the concerns being put before them, is not merely a function of the disposition of a particular bench or the facts put before it, but also a structural jurisprudential concern with socio-economic rights as adjudicated under the Indian Constitution.

In order to dismiss/dispose of a petition concerning the enforcement and/or protection of fundamental rights, the court is duty bound to record its satisfaction that either any fundamental rights at stake are duly protected to the extent as envisaged under the constitution, or that the purported infringement is in line with permissible restrictions. But socio-economic rights present a slightly different challenge. Socio-economic rights are not formally enumerated under the fundamental rights chapter of the Constitution and their development has come about through judicial precedent, primarily through courts liberally interpreting the phrase “life and personal liberty” under Article 21 and using the Directive Principles of State Policy as interpretive devices for fundamental rights. While this has had the laudable effect of elevating and according socio-economic rights formal justiciable fundamental rights status, it has left significant issues in its adjudication unaddressed.

Fashioned almost entirely out of precedent, socio-economic rights adjudication under the Indian Constitution has no fixed anchor when it comes to the standard of judicial review. While constitutional courts in India have carved out and arguably established the right to housing, education, health and food security, given that these rights are not enumerated in the text of the Constitution, the meaning, scope and extent of these rights is not grounded in any Constitutional text and adjudication is driven entirely by precedent. In a poly-vocal judicial setup, where multiple co-equal benches simultaneously adjudicate upon the same constitutional rights and where the rules regarding stare decisis (the doctrine establishing binding nature of judicial precedents upon future smaller and co-equal benches) are often themselves contested, the lack of an established standard of review can be immensely problematic. In the absence of courts declaring and explicitly setting out a threshold for state action (or inaction), as to when socio-economic rights stand violated, future adjudication upon these rights becomes fraught with inconsistency. Indian constitutional courts, while adjudicating upon socio-economic rights, often employ a shifting standard in recording their satisfaction regarding the protection and enforcement of these rights and what one bench might find as an “adequate” guarantee of the right to health might differ from what another bench finds inadequate.

For instance, in Paschim Banga Khet Mazdoor Samity, the SC, in 1996, observed that financial constraint is a constitutionally unacceptable reason to deny the right to healthcare. The court observed that it was the constitutional obligation of the State to provide adequate medical services to the peopleand that “whatever is necessary for this purpose has to be done.” The breadth of the language employed by the court is very stark, with the court having no hesitation in suggesting that whatever is necessary for this purpose has to be done, imposing a high burden on the State. While the question of free diagnostic testing presents a different challenge, it is nonetheless evident that the Court while adjudicating upon the right to free testing for Covid-19, did not engage with the question of the responsibility of the state towards a universal right and the scope of the right vis-à-vis financial constraints.

As I mentioned earlier, it is this shifting scale of the standard of review that permits the degree and frequency of executive deference that we see in socio-economic adjudication in Indian courts. Since there is no fixed standard as to what the scope and extent of the right in question is, it is relatively easy for the Court to accept the executive’s response in court as adequate. What is important to note is that it is highly unlikely that while answering in Court, the executive will deny the protection of the right or its existence as a justiciable right, simply because it would be too politically expensive to do so. The contention in most petitions will likely revolve around the mode and quantum of protection which only reinforces the need of having a robust and fixed standard of review. Additionally, given that socio-economic rights are almost exclusively framed as positive obligations upon the state, their protection and enforcement usually entails an engagement with the question of the court’s jurisdiction over the state’s budgetary constraints. Such a question only served to highlight the importance of a fixed standard of review that in turn leads to consistent and certain application of law.

As Gautam Bhatia argued in his concluding post concerning the SC’s free Covid-19 testing order, one of the reasons that the order was constitutionally warranted was because it satisfied a “minimum core” – or a threshold – “that is non-negotiable” and without which the right became “illusory.” While the merits of the minimum core test has invited much scholarly disagreement, Gautam’s argument is a reminder that the Indian socio-economic jurisprudence operates without an anchor in the form of a fixed standard of review. While some Indian scholars have pointed out that the Indian experience with socio-economic rights has largely been a form of administrative review of existing government schemes and that the court has limited itself to directing implementation of the extant socio-economic policies, the SC has also gone far beyond that in cases like the Right to Food litigation where the court passed detailed orders, converting existing schemes into fundamental rights based entitlements, extending the case to every state in the country, calling for regular implementation reports and even prescribing the minimum quantity of food and nutrition for mid-day meals.

One of the review standards that the Indian Supreme Court can perhaps consider is the “reasonableness” standard, which has been endorsed by South African Constitutional Court (SACC), widely recognised as one of the most progressive socio-economic rights courts in the world. Under the reasonableness standard, the Court, instead of providing individualised relief (i.e. no one person is entitled to shelter as an individual), would rather enquire into whether the state had undertaken reasonable measures to fulfil its constitutional obligations. Thus, the reasonableness standard would require that a significant number of desperate people in need are afforded relief, though not all of them need receive it immediately.” While the test itself has been criticised for being overly deferential to the executive, the reasonableness standard is nonetheless recognised as being mindful of the institutional competence of courts (by not directly supervising policy) and still ensuring a judicial review of the wider, systemic problems regarding access to socio-economic rights.

The consistent application of the reasonableness standard in the case of the SACC has also contributed to what is recognised as the dialogic function of socio-economic rights adjudication in South Africa. Dialogic engagement envisages that judicial review in not limited to the idea of reviewing state action (or inaction) but also to the Court acting as a public forum for the government to justify and explain its policies. This is relevant because questions of improving systemic socio-economic concerns may be “reasonably” answered in many different ways which may all be constitutionally permissible. For instance, as argued here, some may consider the right to housing to mean reasonable access to private housing while others may construe it as a direct obligation to provide public housing or a combination of both of these approaches. Therefore, a dialogic approach, where the Legislature is asked to justify its policies in Court and therefore “converse” with Court, can allow the Court to correct socio-economic policies either directly (through narrow remedies on right-based claims) or indirectly (by providing representation for counter-majoritarian voices) and remove any blind-spots that maybe present in the Legislature’s approach. Crucially, this is only possible if the Court is insistent on asking the Legislature to meet a particular, constitutionally affirmed, fixed standard of review.

While it is beyond arguing that finding the correct standard of review for socio-economic rights presents a difficult and complicated task for judges and courts across the world, it is one that cannot be left unaddressed. There is a schism in our socio-economic rights jurisprudence wherein a common and fixed standard of review for socio-economic rights is absent despite the presence of a rich rhetoric around the normative importance of these rights. This has resulted in a jurisprudential structure that permits a degree of executive deference that hampers the progressive realisation of our constitutional goals and precludes a closer scrutiny of the measures taken by the government towards the same.

Coronavirus and the Constitution – XXII: The State Disaster Risk Management Fund and the Principle of Equal Distribution – A Response [Guest Post]

[This is a Guest Post by Tejas Popat.]


In a previous post, Devesh argued that the recommendations of the 15th Finance Commission [‘Commission’] violate the principle of equality. This infraction, he states, occurs due to the use of an arbitrary formula and its results. Though Devesh does not make it explicit, the inevitable consequence would be declaring these recommendations unconstitutional or, in the alternative, redistributing funds to take care of the resulting inequality. In fact, he alludes to the latter while providing a different means of enforcing the same i.e. Article 282. I only seek to disagree with Devesh on the scope of judicial review he envisages. My thought on the issue are as follows.

Working of the Commission

The duties of the Commission have been outlined in Article 280(3). Sub-clause (d) is of relevance here. It states that the Commission shall also make recommendations on “any other matter referred to the Commission by the President in the interests of sound finance.” This enables the President to circumscribe the scope of the Commission’s recommendations through the Terms of Reference [‘ToR’]. Based on these ToR, the Commission prepares a report containing its recommendations which is then laid before the Parliament. Therefore, there arise two areas of challenge. First, the recommendations of the Commission i.e. the outcome and second, the ToR i.e. the process.

Judicial Review of Recommendations

Let us first consider the recommendations. It is highly unlikely for the recommendations themselves to be the subject matter of judicial review. This is primarily because, as Article 281 states, the recommendations are only that – recommendations. They are not binding. Therefore, the question of judicial review does not arise. However, an unreasonable application of these recommendations can invite judicial review. An order which resorts to those recommendations becomes the subject matter of challenge and not the recommendations themselves.

This is evident in the COVID – 19 crisis. As was reported, the allocation under SDRMF by the Ministry of Home Affairs [‘MHA’] was on the basis of the recommendations of the 15th Commission. The Commission prepared a Disaster Risk Index for each state devised on the basis of first, the risk of a hazard and second, the vulnerability of each state (¶1-5, Annex 6.2 of the Commission’s Report). The catch here is that the ratio was primarily based on only four hazards, i.e floods, draughts, cyclones and earthquakes (¶5, Annex 6.2). Significantly, the Commission admits that, “due to an absence of a disaster database at the national level, developing a risk index of greater complexity and accuracy has been found to be difficult.” The Commission itself sounded abundant caution before making these recommendations.

I do not question the methodology of the Commission or its approach. The problem, in my opinion, lies in order of the MHA comparing apples to oranges i.e. using a formula devised for completely different set of disasters (in nature and magnitude) and blindly transporting it to the to COVID – 19 pandemic. As is analysed here, the formula was simply a misfit for the current crisis.

In such a situation, the order of the MHA which provided for such devolution blindly following the Commission’s recommendations ought to be challenged. Such executive orders ought to follow the administrative law standard of Wednesbury unreasonableness. They ought to take into account relevant considerations and exclude irrelevant considerations. Therefore, the MHA order on fund devolution, if judicially reviewed may fail this test.

Significance of Terms of Reference and Judicial Review

ToRs in my opinion can be challenged on the ground that they are contrary to Article 280(3)(d). Before dwelling on how the ToR may violate Article 280, it is necessary to understand why the ToRs are significant and the impact that they may have. This can be usefully explained by the example Devesh takes i.e. the ToR of the 15th Commission. Among many which have been detailed by V Bhaskar in his piece, we will explore two of those fault lines in the ToR of the 15th Commission here (these fault lines are explored in legal terms, not in terms of policy).

Devesh states that Kerala could not benefit from the COVID-19 relief fund because of the ratio recommended was faulty (See this piece for the exact cause and effect). That is correct. However, as V Bhaskar and the Report of the 15th Commission 2020-21 itself suggest, the genesis of the problem lies in the ToRs of the 15th Commission. The ToR mandated the Commission to use the 2011 census data when, for over many years, the 1971 census was relied on. Some states complained that the ToR penalized them despite having succeeded in their efforts at population control. This was because comparatively, greater the population, greater is the fund devolution. Therefore, using new data where certain states lowered their population since 1971 would obviously create inequities. The Commission responded to this in its Report in ¶3.19 as follows:

Para 8 of this Commission’s ToR specifies that “the Commission shall use the population data of 2011 while making recommendations.” Our immediate predecessor, the FC-XIV, had expressed the view that though the use of dated population data is unfair, it is bound by its ToR. This Commission is of the view that fiscal equalisation being recommended by it is for the present needs of the States and this is best represented by the latest census data. Given the specific ToR to use 2011 population data, there is no further choice for this Commission.

This mandate to use the census from 2011 was the first fault-line. The second comes in the phrasing of the ToR. V Bhaskar notes that the ToRs of the 15th Commission disabled it from employing need-based assistance as a criterion in determining the ratio of devolution. He states:

Clause 3(b) of Article 280 of the Constitution is usually merged with part of Article 275 (1) and included in the ToR of a finance commission. The ToRs of the last 12 finance commissions over the past 60 sixty years did so. The words “[state] which are in need of assistance,” however, do not find place in the ToR of the XV-FC.

Again, the ToR handicapped the Commission from applying any mode of devolution, which included need-based devolution. Once the Commission is bound by the ToR, such mandates create severe difficulties in the functioning of the Commission. In any case, one conclusion is inescapable – the ToR has direct causal link with the recommendations of the Commission. This is primarily because the ToRs are binding and therefore, dictate the manner in which devolution takes place.

Judicial Review of ToR

 This brings me to the next aspect – the scope of judicial review of ToRs. Before turning to the scope of judicial review, it is necessary to understand the place of the Commission in the constitutional scheme.

The Commission is an independent body intended to advise the President, and through him the Parliament, on matters of fiscal policy. Article 280 does not allow any superintendence by the President in matters of the Commission. It merely allows the President to ask for recommendations on issues. This power, as Babasaheb Ambedkar recognized during the Constituent Assembly Debates, was enabling in nature. Without such references he said, the Commission could not function. Therefore, Article 280(3)(d) does not confer power on the President to define the manner of work of the Commission. It only allows him to define the scope of its work. Three other speakers (Shibban Lal Saxena, Hriday Nath Kunzru and Upendra Nath Barman) seemed to suggest that the Finance Commission would be independent in determining the principles on which fund allocation must take place. Such independence is a necessary ingredient for a Finance Commission to stay true to its constitutional intent.

Keeping this in mind, we will now proceed to define the scope of review. Speaking of ToRs in Nair Society’s Case, the Supreme Court remarked,

It is, furthermore, difficult for us to comprehend as to on what basis, while appointing Narendran Commission, in the terms of reference, the State of Kerala could say that the maximum benefit should be given to a particular section of people. In view of the decision of this Court in Rama Krishna Dalmia & Ors. vs. Shri Justice S.R. Tendolkar & Ors., it is no longer res integra that the terms of reference while appointing a commission may be subject to judicial review.

Though in a different context, this absolute proposition is problematic. It makes the ToR as a whole subject to judicial review. In our situation, such an exercise would involve the judiciary adjudicating on matters of fiscal prudence in determining what ought or ought not to be part of the ToR. In my opinion however, what is judicially reviewable is not the terms themselves but, the nature of the terms involved. By this, what is impugned is the competence of the President acting under Article 280(3) to define the Commission’s working beyond “referring matters.” Therefore, when ToRs include mandatory terms limiting or expanding the manner of the Commission’s work, those terms by virtue of their nature, are ultra vires the power of the President under Article 280(3)(d). Conversely, only ToRs which ask for advice (of an inquiring character) or those which nudge the Commission to adopt a course of action (recommendatory character) ought to be constitutionally permissible.

This is necessary for two reasons. The first is to maintain the independence of the Finance Commission and not allow the enabling power in Article 280(3)(d) to be used as means of superintendence over the Commission’s manner of working. Second, is to ensure that the Commission can truly fulfil its constitutional role as a “Fourth Branch Institution”, because, the result (the recommendations) will only be as fair and true to the idea of federalism as the formula (the ToR).

Therefore, the scope of judicial review in case of a ToR of a Finance Commission ought to be limited to testing its vires vis-à-vis the powers vested to the President under Article 280(3)(d).

To illustrate, the change in the ToR of the 15th Commission excluding a need-based devolution as discussed above would be unconstitutional. This is on two counts. First, because Article 280(3)(d) does not allow the President to limit the Commission’s manner of working. Consequently, the ToR is ultra vires the power under Article 280(3)(d). Secondly, because the ToR impinges on the independence of the Commission which is guarded by the scheme of Article 280. The ToR disallows the Commission from referring to the principle of need-based devolution enshrined in Article 275(1). Therefore, it seeks to override the power of the Commission which would have otherwise allowed it to refer to the principle. Such a ToR, which circumscribes the independent functioning of the Commission, ought to be unconstitutional. This rule applies equally to the mandate of using census data. It ought to be left to the prudence of the experts whether the new data ought to be used and if yes, which census data should be employed. As is evident in the extract quoted above, the 14th Commission disagreed with the ToR but could not proceed to make independent recommendations. Therefore, if the Commission ought to be a truly independent body, the nature of ToRs need to be reassessed.

As Article 280(3)(d) states, the principles of sound finance and its contours are the expertise of the Commission. ToRs which attempt to invert this scheme to suggest the modes and manner of achieving sound finance are a severe infraction of the constitutional framework.


  • The author thanks Prof. Agnidipto Tarafder, Mahima Cholera, Rishabh Mohnot and Aryan Agarwal for their comments on this piece.

The Afterlife of the Sabarimala Review: On the “Preliminary Question” before the Nine-Judge Bench

On this blog, I have previously discussed – and criticised – the “review” judgment in the Sabarimala case, as well as the Supreme Court’s subsequent actions in constituting a nine-judge bench to address some of the questions that arose out of that judgment. Earlier this week, during the course of oral argument, senior counsel brought up some of these issues – pointing out, in particular, that the five-judge bench could not, in the course of a review order, have “referred” legal questions to a larger bench. As a result, the nine-judge bench framed a “preliminary question”, which will be heard tomorrow: “whether this Court can refer questions of law to a larger bench in a review petition?”

Facts and Norms

This week’s hearing itself revealed two issues with the original “review” judgment, that we can take in turn. The first is the speculative character of the questions themselves, which go against the grain of how constitutional adjudication should normally happen. Doctrines of law evolve out of specific factual situations before the Court, and not out of abstract abstract philosophical enquiry. This is because, ultimately, doctrine has to be responsive to the wide range of factual disputes that could – and do – come up before the Court. In such a situation, a Court that deals in abstraction will inevitably create one of two undesirable situations: either it would have framed doctrine in such abstract terms, that it will be of no use in hearing and deciding the case before it; or it would have framed it in such concrete terms, that it would tie the hands of future benches in adapting doctrine to fit the peculiar facts that are before it in any given case.

To take the example of this case, the “referred” questions – that are about the intersection between religious freedom and gender equality – exist in a domain where there are a bewildering variety of social and religious practices. Take, for example, the religious practice of madesnana, that Suhrith and I discussed here (it is not about gender equality, but raises substantively similar questions); it should be obvious that practices of this kind are so particular and specific in character, that constitutional doctrine can only make sense if it flows from a careful consideration of the legal issues that they present, rather than first laying down abstract law, and seeing which side madesnana falls. In fact, in Sabarimala itself – as I have previously discussed – there wasn’t a whole lot of difference between the majority opinions and Malhotra J.’s dissent on the correct legal test – both sets of judgments agreed that religious practices that were oppressive or harmful to human dignity would fail the test of constitutionality. The only disagreement was whether in the specific facts of the Sabarimala case, the disputed practice fell within that definition or not. And that is exactly how adjudication should normally proceed.

In this context, the Chief Justice’s comment in Court – that the reason for this nine-judge bench hearing was that “these issues will arise again and again, resulting in a reference” – is an important one. Because that is precisely why, in fact, this nine-judge bench should not be hearing this case. The very fact that “these issues” (i.e., the interplay between women’s right to equality and religious freedom) will arise again and again is the reason that they should be decided as they arise, because the issues that they present to the Court will be layered, nuanced, and will require sensitive adjudication that is cognisant of those nuances. And as they arise, the judges who deal with them will – in the normal course of things – engage with existing precedent; they may agree with that precedent, they may disagree with it but nonetheless – exercising judicial discipline – follow it, or – if they think it is too wrong to follow – refer the issue for reconsideration. Once again, it is important to emphasise that this is how constitutional adjudication happens in the normal course of things, and that is entirely fit and appropriate: the law develops incrementally, responsive to facts, and gives judges the flexibility and the scope to modify, adapt, or alter doctrine as time goes by. It is that crucial flexibility – the hallmark of constitutional adjudication – that will be threatened if a practice of settling abstract questions in advance of concrete cases takes root in the Court.

Jurisdiction

While the first issue is one of desirability – i.e., that the Court should not decide these questions sitting as a nine-judge bench – there was, of course, a deeper issue raised by counsel in this week’s hearing: that the review judgment could not have “referred” legal questions to a larger bench. As discussed previously on this blog, that issue stems from the limited character of review jurisdiction, which is confined to checking if the original judgment suffered from an “error on the face of the record.”

It was contended by the Solicitor-General, in response, that Order VI(2) of the Supreme Court Rules, 2013, states that: “Where in the course of the hearing of any cause, appeal or other proceeding, the Bench considers that the matter should be dealt with by a larger Bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a Bench for the hearing of it.” The argument, thus, is that the phrase “any cause, appeal or other proceeding” includes proceedings in review.

To understand why this argument is flawed, we need to go back to the basics. How – and why – does a referral happen in the normal course of things? It happens when, while hearing a case, it is brought to the judges’ attention that there is a legal issue – most often, a conflict – that has a bearing upon the case, which they cannot resolve, and which only a larger bench can resolve (because – presumably – the bench hearing the case is of too small a size). The issue of referral, therefore, is bound up with the process of deciding a case.

review, on the other hand, takes place after the case has been decided. And at that point, the bench is no longer considering what the legal answer to the case before it is. What it is considering is whether the reasoning that led to the decision was so fundamentally flawed, in some manner that is present “on the face of the record” (and therefore, by implication, requires no “interpretation”), that it simply cannot stand.

The distinction is crucial, because it demonstrates how the reasoning process that (potentially) leads to a referral, and the reasoning process that leads to a review, are fundamentally different – and that, by definition, the latter excludes the former. Because it is critically important to recall that a Review is not a “re-hearing” of the original case. If it was, then of course, all arguments in a hearing would be open to be re-litigated in Review. A Review is limited to a situation where the error is on the face of the record, i.e., so obvious that there can be no two ways about it. But an argument for referral always – and by definition – has two ways about it: the existing doctrine – which binds the bench hearing the case – and the interpretation that the bench may be persuaded to accept, but cannot, and is therefore referring the issue to a larger bench to decide.

Consequently, even if the Review bench believes that the original judgment answered the legal question before it incorrectly, that is not a ground for it to reopen the question; the only ground is a finding that there is an “error on the face of the record” in the original judgment (which, as we have seen, the Sabarimala Review order did not even attempt to demonstrate).

While this distinction may appear pedantic, it is of vital importance in a judicial system bound to the rule of law and the doctrine of precedent. A fundamental building block of this system is the importance of consistency in precedent. So, while the Court can always revisit – and overrule – its previous judgments, there exists a set procedure for doing so, which acts to ensure that such decisions are not taken lightly. So, in the normal course of things, if there is a five-judge bench decision holding “X”, then for it to be overruled, petitioners would have to (a) convince a two-judge bench to admit a case arguing for interpretation “Y”; (b) in a referral hearing – which can be opposed by the other side – convince the two-judge bench to refer it to a three-judge bench; (c) convince the three-judge bench to refer it to a five-judge bench; (d) convince the five-judge bench to refer it to a seven-judge bench; (e) convince the seven-judge bench to overrule the original decision. These hoops exist for the simple reason that without them, the law would be in a perpetual state of unsettled chaos, where individual judges would be perpetually at odds with one another, tugging at the law in different directions.

What the Sabarimala Review order did, on the other hand, was to short-circuit this entire process, and effectively sanction a “Sabarimala Round 2” without going through the inbuilt checks and balances that the legal system provides. This is presumably what Mr. Fali Nariman meant in Court when he said that it would set a “bad precedent”, and this is also why Order VI(2) of the Supreme Court Rules ought not to extend to hearings in Review: what it would then sanction, going forward, would indeed be a situation where Review hearings would become a “Round 2” – where speculative legal questions could be raised even after the original case had been decided – and thus seriously undermine the sanctity of precedent.

Conclusion

As discussed previously, the issues at present are no longer about the merits of the original Sabarimala judgment. They are about something deeper, and more institutional: in a poly-vocal Court of thirty-five judges, where the Office of the Chief Justice wields tremendous administrative power in selections of cases and benches, how do we ensure that the Court remains a coherent institution, and does not break down into competing factions? The present institutional structure of the Court – with its number of judges and small panels – makes judicial discipline and adherence to conventions around precedent even more crucial than in a more traditional Court (such as the US or South African apex Courts) that sits en banc, and speaks as one. From that perspective, the nine-judge bench has an onerous responsibility to discharge when it hears the preliminary question tomorrow.

 

Constitutional Functionaries, Constitutional Standards, and the Role of Courts: Lessons from the Miller

(This is a Guest Post by Nivedhitha K.)


On 24th September 2019, the UK Supreme Court delivered the judgment in R (Miller) v. The Prime Minister, declaring the prorogation of the UK Parliament unlawful. Apart from the judgment being lauded as a landmark one for its timely and precise intervention, it also involves some important questions of law. In this post, I will attempt to analyse the decision of Miller, and distinguish it with the Indian jurisprudence on the question of “aid and advice.” I will then explain the inadequacy of the Indian jurisprudence on this issue, and propose for its reformation on the lines of Miller.

Facts of Miller’s Case 

A referendum was held in the UK on 23rd June 2016, where the majority voted for leaving the European Union (hereinafter referred to as “EU”). The government has since then been involved with the task of implementing the decision of the majority. Under Article 50 of the EU treaty, for a Member State to withdraw from the Union, it must notify the EU of its intention, and arrive at an agreement on the future relationship between the member state and the EU. In this context, under the EU (Withdrawal) Act 2018 – passed by the UK Parliament – the withdrawal agreement must be approved by the House of Commons, and a legislation incorporating the provisions of the withdrawal agreement must be passed. However, following an extension to the mandatory two-year period that sets into play after an Article 50 Notification, 31st October was decided to be the cut-off date for the UK to exit the EU. Therefore, irrespective of whether or not the UK Parliament was able to approve of a withdrawal agreement, the UK would have to leave the EU on 31st October.

However, an order was passed by the Queen that the UK Parliament would be prorogued from 12th September 2019 to 14th October 2019. In the UK- akin to India- the Queen (the Head of State) acts on the aid and advice of the Prime Minister. The prorogation was challenged in the High Court of England and Wales, and was dismissed on the ground that the issue was non-justiciable. On appeal, the Supreme Court (a bench of eleven) held that the issue was justiciable, and declared the prorogation unlawful.

The issues that were framed by the Court were fourfold: (paragraph 27)

(1) Is the question of whether the Prime Minister’s advice to the Queen was lawful, justiciable in a court of law?

(2) If it is, by what standard is its lawfulness to be judged?

(3) By that standard, was it lawful?

(4) If it was not, what remedy should the court grant?

The test laid down in Miller on the justiciability of aid and advice

The bench observed that the advice rendered by the Prime Minister was justiciable. The test that was applied to test the lawfulness of the advice was, “a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.” (paragraph 50)

Though facially it seems to test the validity of the prorogation, in actuality it is a test on the extent of justiciability of the advice rendered by the Prime Minister.  The two-prong test formulated to test the extent of justiciability of the advice rendered by the Prime Minister is: 1) whether the advice in effect violates a constitutional principle (violation test)? 2) Whether the violation is reasonably justified (justification test)?

To identify the sub-facets of the test, it is necessary to look at how the test was applied to the given factual circumstance. The bench rejected the improper motive standard. Therefore, the court did not look into whether the Prime Minister was motivated to violate the Constitutional principles, but rather looked into whether the act effected at the violation of Constitutional principles. In this context, the bench observed that when the house was prorogued for a longer duration- unlike a short prorogation- the constitutional principles of parliamentary sovereignty and parliamentary accountability are violated.

On the question of justification, the bench referred to the documents that had formed the basis of the advice, and held that the violation of the constitutional principles was not ‘reasonably justified’. While the violation test was guided by the ‘effects standard’, the justification test was guided by the ‘proportionality standard’ Though the court did not explicitly refer to the proportionality standard, it can be inferred by the arguments put forth below.

Establishing the proportionality standard

Firstly, not mere justification but reasonable justification was the test evolved. Therefore, the court did not regard all justifications to be reasonable justifications. What is then the standard of reasonableness? The following observations guide us on the court’s standard of reasonableness. In paragraph 60, the bench observed that “the proposal was careful to ensure that there would be some Parliamentary time both before and after the European Council meeting on 17th – 18th October. But it does not explain why it was necessary to curtail what time there would otherwise have been for Brexit related business.” The bench was not convinced by the reasoning that there would be some time; it asked: “why not the otherwise available time?” Therefore, the first test that was used by the court under the proportionality standard was whether the materials had shown relevant reason to authorise the act that had the effect of violating Constitutional principles- in this case, parliamentary sovereignty and accountability by denying the parliamentarians the otherwise available time for discussion on the withdrawal agreement.

Another observation by the bench provides further clarity. The court observed that “the Prime Minister’s wish to end one session of the Parliament and to begin another will normally be enough in itself to justify the short period of prorogation which has been normal in modern practice. It could only be in unusual circumstances that any further justification might be necessary” (paragraph 51). The bench here observed that usually- i.e when a short term prorogation was declared- the wish of the Prime Minister was a justifiable reason. However, when a long term prorogation under an extraordinary situation was declared, it would not be justifiable on the wish of the Prime Minister alone; rather, reasoning proportional to the effect would have to be provided. Therefore, the second test was whether the relevant reasoning was proportional to the effect. The court observed that the effects of a long term prorogation in the given extraordinary situation were graver in comparison to the effects of a short term prorogation, and the court required more convincing reasoning for graver effects.

Lastly, the court in paragraph 60 observed that the reasoning did not differentiate between the process of recess and prorogation. Thus, the third test that was formulated was whether the least restrictive means to achieve the objective was used. On perusal of the documents that had formed the basis of the advice, the objective of the prorogation seemed to be the need to introduce new bills. This objective could have been fulfilled by imposing a short term prorogation (a lesser restrictive means) which would not violate Constitutional principles.   It is clear, therefore, that the court looked into the materials to find a reasonable justification, for which it used the proportionality standard.

Summing up, the test for justiciability of aid and advice evolved in Miller is as follows:

  1. Whether the act (which was guided by the advice) violates a constitutional principle- in effect?
  2. Whether the violation can be reasonably justified through the application of the proportionality standard?

The proportionality standard applied requires the following tests to be fulfilled:

(a) Whether the reasoning has relevance to the effect of the use of prerogative power.

(b) Whether the relevant reasoning is proportional to the effect.

(c) Whether the least restrictive, but equally effective means is used to achieve the objective.

I will now juxtapose Miller’s test with the Indian jurisprudence on aid and advice. Before I make a comparison, two primary differences between the legal systems of India and UK will have to be addressed. First, the UK- unlike India- does not have a written Constitution. Therefore, Indian legal jurisprudence is comparatively more ‘formalist’ in nature. Secondly, Article 74(2) of the Indian Constitution restricts the justiciability of the aid and advice of the Council of Ministers (hereinafter referred to as ‘CoM’). Despite these two differences, the Indian courts will not face any obstacle in applying the UK jurisprudence- laid down in Miller- on the subject matter.

The Indian test on aid and advice

In India, the test on the extent of justiciability of the aid and advice of the CoM/ satisfaction of the President was laid down in the case of S.R Bommai. It was observed that the bar in Article 74(2) – on the justiciability of aid and advice rendered – only excludes the questioning of whether there was advice given, and what advice was given. Further, the court engaged in harmonious construction of Articles 74(2) and 142 and held the materials relied upon by the President for the use of his prerogative power shall be placed before it.

The extent of judicial review of the materials relied upon was held to be as follows: ‘…the truth or correctness of the material cannot be questioned by the court nor will it go into the adequacy of the material. It will also not substitute its opinion for that of the President. Even if some of the material on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action. The ground of mala fides takes in inter alia situations where the proclamation is found to be clear case of abuse of power, or what is sometimes called fraud on power- cases where this power is invoked for achieving oblique ends”. Therefore, unlike the UK jurisprudence, in India, it is sufficient if the material- and not reasoning in the material- is relevant to the prerogative act. However, the Court further observed that the ‘legitimacy of the inference drawn from such material’ can be questioned.

The subsidiary question is how the court could question the legitimacy of the inference drawn from such material, without questioning the subjective satisfaction of the President/Governor. The Supreme Court in the case of BP Singhal held that to test the legitimacy drawn from the material, the “reasonable prudent man’s” test will have to be applied. Therefore, the test in India is as follows:

  1. Is there any relevant material to sustainthe action (‘relevancy test’)?
  2. Will a ‘reasonable prudent man’- given the material before him- be able to arrive at the same conclusion on the use of prerogative power as the President/Governor (‘legitimacy test’)?

There are two issues in the Indian jurisprudence on aid and advice. First, the Indian courts- unlike the UK- focus on the form of the prerogative act instead of its effect. Second, the relevance of the material is deemed sufficient, with no standard for the reasonable prudent man to decide on the legitimacy of the inference.

Form and effect of the prerogative act 

Let me argue that the reliance of the Indian courts on the form instead of the effect, in practicality permits the court to analyse the ‘subjective satisfaction’ of the President/ Governor- something that it says it would not do. Let me explain this through a factual situation. In November 2019, due to the inability of the party with the maximum members in the legislative assembly but with no simple majority to form the government in Maharashtra, the governor sent a report to the President that the Government cannot be formed in accordance with the provisions of the Constitution. Therefore, following the report of the Governor and the recommendation by the CoM, Presidential rule was imposed, with the legislative assembly of the State in suspended animation. Immediately, the Shiv Sena filed a petition in the Supreme Court challenging the imposition of President’s Rule in the State. Let us hypothetically assume that the petition by Shiv Sena challenges the aid and advice of the cabinet that led to the imposition of the President’s rule, keeping aside its argument on unequal and insufficient time given to it for the formation of the government.

Let us presume that the relevancy test has been fulfilled as the court regarded the materials placed before the President to be relevant to the declaration of Presidential rule (i.e the form). Let me will now frame the legitimacy test from the perspective of the form and effect of the prerogative act.

  1. Through the relevant materials placed before a ‘reasonable prudent man’, would he regard the reasons justifiableto declare Presidential rule (i.e the form)?
  2. Through the relevant material placed before a ‘reasonable prudent man’, would he regard the reasons proportional to the suspension of parliamentary democracy (i.e the effect)?

 

There are two issues in the manner in which question A is framed. First, the form, instead of the effect (as in question B) is regarded as the end. Second, it does not prescribe a standard for the ‘reasonable prudent man’ to decide on the legitimacy. As a rough analogy one may imagine A being given the task of choosing the better of two dolls. In the first circumstance, A is asked to choose the better doll between the two, but the dolls are not completely made- they still are in clay form. In the second instance, A is asked to decide the better doll between two dolls- the dolls are completed and painted. The decision of A will be better guided in the second instance because while he looks at the final effect of the dolls, he has something concrete to base his decisions upon. Therefore, the subjective analysis of the judges would ease if the judicial attention is on the effect instead of the form.

It will not be logically sound for the courts to follow the nexus/relevance test while the effects standard is put to use. The ‘nexus’ or the ‘relevance’ standard can only be used when the end is an object or a purpose. When the effects standard is used, it would not matter if the reasoning only has some nexus with the effect. Rather, the question is whether the effect is justified – for which the proportionality standard will have to be put to use.

Summing up, the effects test and proportionality test have been inferred from the decision in Miller. The Indian jurisprudence on aid and advice, specifically on the determination of legitimacy from the material placed is explained to be inadequate. The primacy of form of the prerogative act in the Indian jurisprudence, in comparison to the effect test in the UK has been criticised with the help of an analogy. Finally, the insufficiency of relying on the relevance of the reason for the effects standard was explained. The above reasons led to the suggestion of usage of the proportionality standard (along with the three subsets) to decide the ‘reasonable prudent mans’ legitimacy test.

Proportionality standard and the Presidential rule

Before deciding on the constitutionality of the Presidential rule in Maharashtra by   applying the proportionality, it is necessary to answer a preliminary question that arises – whether on the imposition of the Presidents rule due to ‘breakdown of the Constitutional machinery’ in a State, there is no Constitution in existence for the constitutional principle of parliamentary democracy to be suspended?

The argument is that the declaration of the Presidents’ rule in the State does not necessarily mean that Constitutional principles are abrogated. The jurisprudence of basic structure evolved primarily because of the existence of certain Constitutional principles are beyond the clutches of majoritarian forces. During the Presidents’ rule, there might be suspension of the operation of the Constitutional text, but not the underlying Constitutional principles. However, provisions in the Constitution allow for the suspension of certain fundamental rights during emergency. The question that then arises is: when fundamental rights cannot be enforced, how can certain constitutional principles be enforced? For example, reasonableness that guides the golden triangle (i.e Articles 14, 19 and 21) has been held to be a basic feature of the Constitution (which is also a constitutional principle). However, the crucial point is that the operation of Article 356 differentiates between the imposition of Presidential rule for the reason of secessionist insurgency (eg: Punjab 1980’s) and inability of political party to form the government (eg: Maharashtra on November 2019). When the Presidents’ rule is declared on the reason of insurgency, suspension of enforcement of fundamental rights may be made by an executive order. In such cases, the Constitutional principles guiding the fundamental rights chapter may be suspended but other Constitutional principles would remain enforceable. While Presidents’ rule is imposed due to the inability to form the government, all Constitutional principles are enforceable.

Now, let us apply the proportionality standard that was formulated in Miller to the challenge on the Presidential rule imposed in Maharashtra. Prior to the application of the standard, one would first be required to identify the objective of the use of prerogative power, the means used to achieve the objective, and its effect on Constitutional principles. The objective of the imposition of the Presidential rule was to remedy the breakdown of Constitutional machinery, given that Mr. Devendra Fadnavis –the acting Chief Minister- had resigned on November 8. The means that was employed to meet the objective, was the imposition of Presidential rule in the state. The effect of the means used was that parliamentary democracy was frustrated by limiting the time provided to willing political parties to form the government.

On the application of the proportionality standard to the factual situation of Presidential rules’ in Maharashtra, the court would have to answer the following sub-tests of the proportionality standard: first, whether the material relied on has relevant reasoning on denial of time to political parties for forming the government. The reasoning in the material should not have merely focused on the reasons for the declaration of Presidential rule, but must have provided specific reasoning on the denial of time sought by Shiv Sena since it was willing to form the government.

Secondly, whether the relevant reasoning is proportional to the effect. Under this prong, the court should not settle for the same reasoning for acts that lead to different effects. For example, the reasons for the declaration of a Presidential rule when political parties express the ability to form the government, must be different from the reasons when political parties are unable to form the government.

And thirdly, whether the least restrictive, but equally effective means to achieve the objective was used. The court should test if there are other restrictive but equally effective means to achieve the objective of remedying the breakdown of Constitutional machinery. While deciding on this test, the court shall keep in mind the available Constitutional remedies, the resignation of the acting Chief Minister, and the need to prevent horse-trading.

Indian Jurisprudence on aid and advice, and the proportionality Standard

The closest the Indian courts have come to the UK jurisprudence is when the courts held that repromulgation of ordinances amounted to malafide use of power, where the power is used to achieve oblique ends. In Krishna Kumar II, it was observed ‘repromulgation violates parliamentary sovereignty’. In both D. C Wadhwa and Krishna Kumar II, the court found repromulgation to be manifestly arbitrary that they did not look into the aid and advice theory jurisprudence. Though there had been references to the effect on Constitutional principles, the court held repromulgation to be unconstitutional primarily on the ground of the form– the necessity of placing the ordinances before the house.  

However, the Indian courts are not completely unmindful of the proportionality analysis in the realm of Presidential satisfaction. In B.P Singhal, when the doctrine of pleasure of the President was under question, it was observed, “where a prima facie case of arbitrariness or malafides is made out, the Court can require the Union Government to produce records/materials to satisfy itself that the withdrawal of pleasure was for good and compelling reasons. What will constitute good and compelling reasons would depend upon the facts of the case.” This is a very similar analysis to that which was taken in Miller’s decision, provided the court looks at the effect while deciding whether it is a case of malafide use of power. The ‘good and compelling reason’ test is to be determined by the proportionality standard.

Therefore, the Indian jurisprudence on aid and advice would have to be modified on the lines of Miller, to prevent inadvertent prejudicial and subjective satisfaction of the judges while deciding on the satisfaction of the President.

The Supreme Court’s Recusal Order: Glaring Conceptual Flaws

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


Previously on this blog, I had written (here and here) about the problematic composition of the Constitution Bench in the ongoing case involving the interpretation of the Land Acquisition Act. As readers know, parties before the Court had argued last week asking for the recusal of Justice Arun Mishra from the bench. Orders had been reserved after hearing, and a judgment was delivered yesterday, refusing recusal. Now, given that five-judge bench of the Supreme Court had already transformed the proceedings from a legal hearing into theatrics, with Justice Mishra remarking (without contradiction) that it would be “the blackest chapter in history”* if the bench would “succumb”, it is unclear why the bench needed to undertake the farcical exercise of reserving an order than writing out a judgment over the weekend, when minds had apparently been made up at the hearing itself. However, the fact is that a judgment has now been delivered, and must therefore be analysed.

As a prelude to the analysis, I had noted in my previous post that various accusations had been made in court that a “lobby” was writing articles about recusal in order to malign the Chief Justice and the Supreme Court. Unfortunately, these accusations have now found their way into a recorded judgment. At paragraph 11 of the judgment, Justice Mishra notes the Solicitor-General’s submission that ” a tendency is growing in that as soon as important matters are listed, particular articles are written in the newspapers concerning the Constitution of the bench or to influence the decision on merits of a case. Newspaper articles are written to influence Court. The very independence of the judicial system is at stake…” In paragraph 36, he writes that “affronts, jibes, and consciously planned snubs should not deter us from discharging our onerous responsibility (emphasis supplied) In paragraph 39, he writes that “in Bal Kishan Giri v. State of Uttar Pradesh, (2014) 7 SCC 280, this Court has considered derogatory remarks and efforts to destroy the system.” And in their concurring opinion, four other learned Justices write that they agree with Justice Mishra’s “reasoning and conclusion.” One also notes that during oral arguments, Justices Mishra and Saran had made similar remarks, and none of the other judges on the bench had disagreed.

To this one can only say: if indeed there is a “lobby” engaging in “consciously planned snubs” to “destroy the system”, then this is a very serious matter indeed. Nobody can be permitted to “destroy the system.” Attempts to do so would constitute contempt of court. Now presumably, evidence for the existence and actions of this “lobby” exists, because five learned judges of the Supreme Court would surely not make or endorse such claims without evidence. That being the case, the problem would swiftly be resolved by the issuance of a formal notice of contempt to these unnamed “lobbyists”, so that the evidence for their “lobbying” could be exposed in a public hearing.

Now, on to the law: the facts leading up to these proceedings have been set out in my two previous posts, and I will not repeat them here. The key conceptual error that Justice Arun Mishra’s recusal judgment makes can be found in paragraph 11:

The first question before us is whether a Judge who has expressed an opinion in a smaller Bench and the case has been referred to a larger Bench, because of the conflict of the opinion or otherwise, can hear the matter in a larger bench.

It is almost trite to say that the answer you get depends upon the question you ask. The framing of the issue conflates three distinct situations that are, nonetheless, distinct in critical ways. The first situation is when, after the passage of time, a court is prompted to reconsider an earlier verdict that it had delivered. The second is a situation where a smaller bench, on a prima facie examination of binding precedent, makes a “referral” to a larger bench to reconsider it. And the third is a situation where within the same court, there are contrary judgments existing at the same time that require to be settled one way or another. These three situations – as I have argued in my previous posts – also need to be understood within a broader institutional framework: does the court normally sit en banc (all the judges sitting together), and therefore – for all practical purposes – speak at all times within one institutional voice, or does it (like our court) sit in multiple different panels of judges? Note that the first two situations outlined above could occur within either institutional form, while the third is limited to a court (like ours) where thirty-four judges divide themselves into numerous panels of two or three.

The problem with Justice Mishra’s framing, then, is that all his examples that follow after paragraph 11 correspond to either situation A or situation B. For example, his first example – the overruling of the five-judge bench decision in United Motors (1953) by a seven-judge bench in Bengal Immunity (1955) is an example of situation A. At that time, the Supreme Court had eight judges. An issue was decided one way in 1953, and then decided another way in 1955, with two of the judges who had sat in the first case also sitting in the second; in the first case, a majority of the court participated in the judgment, whereas in the second case, it was effectively an en banc judgment. This, therefore, was an example of the Court as an institution changing its mind about the correctness of its earlier ruling. Similarly, his second example – that of the two-judge bench order in Ujagar Prints, which doubted the correctness of the judgment in Empire Industries – is one of referral: there is existing precedent, another bench – on a prima facie examination – proposes a second look at the issue, and the question is referred to a larger bench for resolution. Justice Mishra points out that Justice Sabyasachi Mukherji, who was party to the judgment in Empire Industries, was also on the five-judge bench that reheard the issue. The issue there, however, was that Empire Industries held the field as good law: a referral does not displace or set up contrary precedent that needs to be adjudicated upon. In that sense, therefore, examples under situation B come within the same broad framework as situation A – that of an institution, acting as an institution, reviewing one of its earlier decisions.

A number of examples follow that – as discussed above – fall either within situation A or situation B. In each of these examples, Justice Mishra’s analysis is limited to pointing out that there were a few common judges in both the earlier decision, and the later decision. This is evident from his observation in paragraph 21, where he notes:

This Court has observed that law should be settled permanently and that it should be settled correctly. There may be circumstances where public interest demands that the previous decision be reviewed and reconsidered. Thus, it is apparent that this is the consistent practice of this Court that Judges who had rendered the earlier decision have presided over or been part of the larger Bench.

It is telling that in all of Justice Mishra’s list of relevant precedent, which ends at paragraph 22, there is not one case that is actually on all fours with the present situation: a situation where at the same time there existed two conflicting judgments delivered by different judges, sitting in benches of equal strength, and where the latter had declared the former to be per incuriam. In my previous posts, I have explained why this distinction matters fundamentally – an explanation that I will get back to a little later.

After paragraph 22, Justice Mishra cites a range of judgments on judicial bias that have no application to the present issue. It is unclear, for example, what relevance an American judgment stating the same judge should complete a trial despite showing signs of predisposition through the its course has to do with the controversy here – or another judgment that states that it is “desirable to have the same judge in successive causes.” In any event, after having cited these cases, Justice Mishra then comes to the substantive part of his judgment. In paragraph 27, he notes that:

There may not be even one Judge in this Court who has not taken a view one way or the other concerning Section 24 of the Act of 2013, either in this Court or in the High Court. If the submission is accepted, no Judge will have the power to decide such a matter on the judicial side. We have to deal with the cases every day in which similar or somewhat different questions are involved concerning the same provision. For having taken a view once, if recusal is to be made, it would be very difficult to get a Judge to hear and decide a question of law. We have to correct the decision, apply the law, independently interpret the provisions as per the fact situation of the case which may not be germane in the earlier matter. A judgment is not a halting­place, it is stepping stone. It is not like a holy book which cannot be amended or corrected. It may also work to the advantage of all concerned if a Judge having decided the matter either way is also a member of the larger bench. A Judge who had rendered any decision in a smaller combination is not disqualified from being part of a larger Bench when a reference is made to the larger bench. Rather, it is a consistent practice prevailing in various High Courts as well as of this Court to include the same Judge/Judges in larger Benches.

But it should now be clear that this is a mischaracterisation of the issue, because the dispute is not about whether a judge has “taken a view” on what Section 24 of the Land Acquisition Act says, or the parade of horribles that Justice Mishra trots out in this paragraph, and the ones that follow: bench-hunting, forum-shopping, etc. etc. The issue is a very narrow and simple one, that deserves to be spelt out once more: this is not a case where the institution is reviewing its earlier judgment, or deciding on a referral where a judge – on a prima facie reading – calls for a reconsideration. This is a case where a three-judge bench ruled one way on Section 24. Then another three-judge bench – headed by Justice Mishra and over the dissent of Justice Shantanagouder – held it to be per incuriam and set up its own contrary reading of Section 24. Note that Justice Mishra in that judgment did not simply express doubt about prior precedent and refer it for a fuller reconsideration (which is the normal practice). He overruled that judgment by effectively holding that it had no force in law. Not only did this go against established principles of stare decisis and judicial discipline, where you are not supposed to overrule a judgment that is binding upon you, but it also set up two conflicting lines of precedent within the same court at the same time – and it was that precise issue that the third three-judge bench was considering the day after Justice Mishra’s ruling, when the question was referred (by Justice Mishra) to the Chief Justice. It is telling that in a sixty-two page long judgment, Justice Mishra is unable to provide a single precedent – from India or from abroad – that has similar facts, and in his reasoning, he makes no reference whatsoever to this crucial point.

And the distinction matters. It matters in a polyvocal Court of thirty-four judges, where small panels hear issues on the same legal point, and return conflicting findings. All of Justice Mishra’s precedents and arguments are based upon the vision of the court acting as a unified institution, with internal mechanisms for reviewing and rethinking its previous decisions. However, you cannot eat your cake and have it too: a unified institution does not have a situation where oppositional lines of precedent are generated at the same time, and require further resolution between them. As someone pointed out: this situation is akin to Examiner A failing a student, Examiner B passing him, and the answer-script being sent back to Examiner A to “resolve” the conflict. Yes, Examiner A might be persuaded to change his mind. But that, it should be obvious, is hardly the point. It is for this reason that I had noted in the previous post that:

In India, however, we have a situation where within the highest judicial body, the existence of a multiplicity of judicial panels undermines institutional coherence, and creates a situation where the apex Court is effectively disagreeing with itself. This is what has happened in the present case: abstracting for a moment from the thicker context, what has happened is that two three-judge benches of the Supreme Court have taken diametrically opposite views on the same issue. Now the existence of thirty-four judges on the Supreme Court means that there is a ready solution to hand: send the issue to a bench that has a higher number of judges, in order to “resolve” the conflict.

Shorn of the legalese, what this effectively means is that within the highest judicial body, there is an internal appellate mechanism to deal with the problem of institutional incoherence, flowing from the Court’s unique structure. I use the word “appellate” in its ordinary sense; it is, obviously, not an “appeal” as that word is defined under Indian law, but it is basically a sui generis response to a situation where even within the apex Court, there are situations when conflicting views require a resolution in the interests of institutional coherence.

Once we understand this, however, it becomes clear that if the same judge is going to be present at both stages of the process, then this form of resolution becomes pointless. This is why it is important to understand Mr. Shyam Divan’s argument that what this effectively amounts to is a judge adjudicating upon the correctness of his own judgment in “collateral” proceedings; it is not formally an appeal, but in every significant respect, these latter proceedings are doing the work of an appeal. The source of the confusion is that – for understandable reasons – we continue to think of the Supreme Court as a unified body that speaks in one institutional voice, while the reality has moved very far away from this. A more accurate analogy would be with the European Court of Human Rights, where the same Court is divided into a “Chamber” and a “Grand Chamber.” Chamber judges and Grand Chamber judges are drawn from the same overall pool of ECHR judges: “The Grand Chamber is made up of the Court’s President and Vice-Presidents, the Section Presidents and the national judge, together with other judges selected by drawing of lots.” But: “When it hears a case on referral, it does not include any judges who previously sat in the Chamber which first examined the case.” (Emphasis Supplied)

Needless to say, this point finds no mention in Justice Mishra’s judgment. It also finds no mention in a brief concurring opinion penned by the other four judges – Benerjee, Saran, Shah and Bhat JJ – who repeat the same fallacy when they observe in paragraph 5 that: “We notice that his order has cited several previous instances where judges who rendered decisions in smaller bench compositions, also participated in larger bench formations when the reasoning (in such previous decisions) was doubted, and the issue referred to larger benches, for authoritative pronouncement.”

A final point needs to be noted. As Suhrith Parthasarathy noted at the time, there was a crucial issue of judicial discipline and respect for stare decisis in the manner in which Justice Mishra delivered the Indore Development Authority judgment. Holding a binding three-judge bench judgment to be per incuriam, effectively overruling it, and also overruling at one stroke seventeen Supreme Court judgments that had followed it – instead of doing things the normal way and making a referral – all raised serious questions about the functioning of a polyvocal court. It was precisely those issues that the three-judge bench intended to consider when this judgment was brought to its attention the next day – a process that was stalled when the case was referred to the Chief Justice. The recusal order makes it clear that those issues now stand buried. If henceforth, however, it is open to coordinate benches to overrule each other through declarations of per incuriam – and then for the Chief Justice acting as the Master of the Roster to in effect assign the case to judges who have been on one side through his powers of bench composition – then what we are looking at in the future is a factionalised court, where judicial decisions fall hostage to internal power struggles and bench-formation imperatives. There is indeed a potential parade of horribles in store – but it has nothing to do with bench hunting and forum shopping, and everything to do with the institutional integrity of the Supreme Court.

 


*”Blackest chapter”? Blacker than ADM Jabalpur? Blacker than Koushal v Naz? There is a lot of blackness down that particular road, and such overwrought hyperbole from the bench does nobody any favours – least of all “the system.”

Kashmir: Fundamental Rights and Sealed Covers

In a previous post, we discussed one of the peculiar features of the ongoing litigation regarding the communications shut-down and other restrictions in Kashmir. One of these features is the absence – in court – of the government’s orders that constitute the basis for the restrictions (whether under the Telecom Suspension Rules or Section 144 of the CrPC). As we discussed, one of the basic requirements for a restriction upon fundamental rights is the existence of a law, and its publication (i.e., the law being made available to the citizens whose freedoms it seeks to restrict). There can be no restriction of fundamental rights in the absence of law, or on the basis of secret laws.

In the hearing of 16th October, this question was (finally) put to the State by the Supreme Court Justices. It is reported that Solicitor-General Tushar Mehta stated that he had no objection to showing the orders to the Court, but considerations of national security may require him to withhold them from the petitioners – and that the petitioners had no “right” to claim access to the orders. Accordingly, the Court’s Order records that if the Solicitor-General wants to claim “privilege” over the orders, then the Court “requests him to file an affidavit indicating the reasons for claiming such privilege.” 

While we wait for the government’s affidavit, it is important to note that what is at stake here is a creeping expansion of the “sealed cover”, which we have seen so often in recent times. It is also important to note that it is entirely unjustifiable: executive orders – passed under cover of law – restricting rights of citizens are not and cannot be subject to legal privilege, or submitted to the Court in a sealed cover. 

At one level, it is questionable whether a legal order revealed only to the Court, and hidden from citizen, counts as “publication” in the relevant sense. But there is a more basic reason why this is unconstitutional. If I – as a citizen – do not have access to the legal order that purports to restrict my rights, I have no effective way of challenging it in Court and demonstrating it to be unconstitutional. I cannot show that it is disproportionate and fails the reasonableness standard under Article 19(2). What this means, in turn, is that effectively, that I have no remedy to enforce my fundamental rights. And a right without a remedy is, of course meaningless. 

Effectively, therefore, denying the order on the basis of which rights are infringed amounts to a suspension of the rights themselves. As explained in a previous post, this can only be done – and that too, partially – through a formal declaration of Emergency; in other words, the government’s arguments are entirely based upon the logic of an Emergency, without the courtesy of a formal declaration of Emergency. 

It is important to remember the last time the contrary argument was made. The last time it was made – unsurprisingly – was in ADM Jabalpur. There, the argument made on behalf of the detenus was that the suspension of the right to move the Court to enforce habeas corpus amounted to the denudation of Article 21 itself. To this, the Court said that the mere fact that you could not move the Court did not mean that the rights ceased to exist – it just meant that you had no way of enforcing them. But if ADM Jablpur has been buried “ten fathoms deep” by Puttaswamy, then surely there is no remaining scope for the Government, in 2019, to make this argument.

Consequently, therefore, no “affidavit” can justify keeping the communications suspension and S. 144 orders secret, and there is no justification for handing them over to the Court in a “sealed cover”. They must be made disclosed, and not only to the petitioners, but to the general public, so that affected parties are in a position to seek remedies before the courts of law. Any other outcome would only amount to a justification of the logic of Emergency.   

Guest Post: Resigning MLAs, Constitutional Silences and a “Fraud on the Constitution”?: A Response to Mihir Naniwadekar

(This is a Guest Post by Goutham Shivashankar.)


This post is a response to Mihir Naniwadekar’s excellent and thought-provoking posts on the Bombay High Court’s decision in Vijay Namdeorao Wadettiwar v State of Maharashtra. Naniwadekar’s posts are available here and here. Naniwadekar argues that the High Court erred in failing to hold the recent induction of Radhakrushna Vikhe Patil (“RVP”) as a Cabinet Minister in Maharashtra’s BJP-led government to be a fraud on the constitution. As I understand it, his analysis is based on certain suspect premises. I hope to set out these shaky premises, and in the process, defend the High Court’s eventual ruling from Naniwadekar’s principal line of attack, i.e., fraud on the constitution.

Naniwadekar’s analysis stands on a misreading of the text of Article 164 of the Constitution: most critically, he fails to properly distinguish between the terms “Legislature of the State” and “Legislative Assembly of the State”, both of which find mention in Article 164. This distinction is crucial, especially in bicameral states like Maharashtra, which have Legislatures consisting of a Legislative Assembly and a Legislative Council and where the Council’s membership is not entirely elected. This primary error leads to a secondary suspect assumption. He assumes, arguably incorrectly, that Article 164(4) mandates that a Minister must necessarily be “elected” as a member of the Legislature of the State. The text of Article 164(4) does not seem to prohibit a “nominated” member. But some discussion in the Constituent Assembly debates and previous decisions of the Supreme Court do lend some support to his assumption that Article 164(4) does require a Minister to be an “elected” member of the State Legislature. Finally, his analysis also proceeds on a potentially incorrect reading of the Representation of People Act, 1951 (the “ROPA, 1951”). Naniwadekar assumes that the Petitioner’s contention in the case is correct, i.e., that the ROPA, 1951 prohibits by-polls being conducted to fill in casual vacancies that arise in the fag-end of an Assembly’s term.The ROPA, 1951 however, contains is no such prohibition. At least, I was unable to find any.

The Facts Restated (with one significant correction)

Naniwadekar’s posts capture the facts of the case with precision, except for one significant error. I do not propose to reinvent the wheel, but simply extract his summary. I also indicate in bold the erroneous factual assumption which he makes, and explain its significance. Naniwadekar summarises the facts as follows:

Mr. Radhakrushna Vikhe Patil (“RVP”) was elected as a Member of the Maharashtra Legislative Assembly in the 2014 state elections, as a candidate of the Indian National Congress. He was Leader of the Opposition in the Assembly.

In early June 2019, he resigned from the Assembly; and ceased being Leader of the Opposition. Disqualification proceedings before the Speaker remain pending, where one of the issues would be whether the provisions of the Anti-Defection law can be avoided by resigning from the Assembly before being declared as a defector. Under the Representation of the People Act, 1951, it was not possible to hold a by-poll for RVP’s assembly seat (or any other by-poll). This was because the term of the Assembly itself was to get over in less than six months.

However, on 16th June 2019, RVP was appointed as a Cabinet Minister by the ruling alliance. There was no possibility that RVP would become a member of the Assembly for the remainder of the term of the Assembly, as there was no question of any by-election being held.

RVP’s appointment as a Minister (along with some other appointments) was challenged before the Bombay High Court in Civil Writ Petition 6996 of 2019 (Vijay Namdeorao Wadettiwar v State of Maharashtra).

Naniwadekar’s summation is correct except in stating that the Representation of the People Act, 1951 (the “ROPA”) precluded the possibility of holding a by-poll for RVP’s “Assembly Seat (or any other by-poll).” This is incorrect on two counts.

Firstly, the ROPA, 1951, on a plain reading, does not contain any bar on holding a by-poll in the last six months/one-year of a Legislative Assembly’s term. Secondly, the ROPA, 1951 also certainly does not enact any such bar on by-polls to casual vacancies that may arise in the State’s Legislative Council.

Subject to this significant correction, the Naniwadekar’s account of the facts is entirely apposite. I will back my correction up in my analysis below. I will also indicate how this correction is crucial to the proper analysis of the case at hand.

Summarizing Naniwadekar’s Argument for Constitutional Fraud

Naniwadekar’s line of argument, broadly, appears to be this:

(i) A person appointed as a Minister in a State Government’s Council of Ministers must become a member of the State’s Legislative Assembly within a period of 6-months. This is a facet of the underlying constitutional value of ministerial responsibility to the legislature contained in Article 164 of the Constitution.

(ii) To appoint a person as Minister, where there exists no possibility at all that she could comply with the requirement in (i) above, would be constitutional fraud, since it would undermine ministerial responsibility.

(iii) There was “no possibility at all” of RVP being elected as a member of Maharashtra’s Legislative Assembly within 6 months of his induction as a Minister. This was because the Legislative Assembly was in the last six-months of its term and the ROPA, 1951 precluded by-polls to casual vacancies at this stage.

(iv) An implicit assumption in (i) – (iii) above, is that Article 164(4) requires that an inducted Minister must be “elected” as a member of the Legislature (if he is not already one at the time of his appointment as a Minister) within the prescribed six-month period. The mode of entry into the Legislature must be election, and not nomination.

A couple of extracts from Naniwadekar’s posts would be appropriate in culling out the above arguments. For instance, when distinguishing the Supreme Court’s judgment in Manoj Narula in his first post, Naniwadekar, presumably alluding to Article 164(4) of the Constitution, asserts that:

The point ultimately is that there is an express provision in the Constitution which provides that a minister must become a member of the Assembly within six months in order to continue. The question is whether one can be appointed as Minister when there is no possibility whatsoever of that condition being complied with… …But in the case of RVP, the Constitution does indicate that there is to be ministerial responsibility to the legislature and there is indeed a requirement that within six months, a minister must become a member of the Assembly. In that scenario, is it or is it not a fraud on the Constitution to appoint someone who has no chance whatsoever of complying with the mandate? That question is, with great respect, not concluded by Manoj Narula.” (emphasis supplied)

In his second post, Naniwadekar states:

In a situation of a vacancy shortly before the expiry of the term of the legislature, when no by-election at all is possible, then that vacancy should be filled up only by an existing member of the assembly: not because the Constitution requires this in express terms, but because not doing so will in every case have the effect of negating an underlying constitutional value. True, the Constitution permits a non-member to be a minister: but that permission is circumscribed by the underlying values which mandate that the person so appointed must necessarily be one who is capable of becoming a minister.(emphasis supplied)

As I understand it, each of these premises are erroneous. But before I set out why, it is necessary for me to extract the relevant legal provisions.

The Relevant Provision of Law

Constitutional Provisions

Article 164 (2) and (4) of the Constitution are relevant. They state as follows:

164. (2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.

(4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.

Additionally, Articles 168 and 171 are important. Article 168 provides that for Maharashtra, the Legislature shall consist of the Governor, and two Houses, i.e., Legislative Assembly and the Legislative Council. Article 171 prescribes the composition of the Legislative Council. Articles 171(3) (a)-(d) envisage that a total 5/6th of the Council’s membership shall be filled through elections by different electorates. Article 171(3)(e) envisages that the remaining 1/6th of the Council’s membership is to be “nominated” by the Governor. Lastly, Article 171(2) provides that: “the Legislative Council of a State shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions of law made by Parliament by law.

Provisions of the ROPA, 1951

Sections 15, 150- 151A of the ROPA, 1951 are relevant. Section 15 states as follows:

Notification for general election to a State Legislative Assembly. —(1) A general election shall be held for the purpose of constituting a new Legislative Assembly on the expiration of the duration of the existing Assembly or on its dissolution.

(2) For the said purpose, the Governor or Administrator, as the case may be shall by one or more notifications published in the Official Gazette of the State on such date or dates as may be recommended by the Election Commission, call upon all Assembly constituencies in the State to elect members in accordance with the provisions of this Act and of the rules and orders made thereunder:

Provided that where a general election is held otherwise than on the dissolution of the existing Legislative Assembly, no such notification shall be issued at any time earlier than six months prior to the date on which the duration of that Assembly would expire under the provisions of clause (1), of article 172 or under the provisions of section 5 of the Government of Union Territories Act, 1963 (20 of 1963), as the case may be.

Section 150 of the ROPA provides for by-polls to casual vacancies in State Legislative Assemblies. Section 151 provides for by-polls to casual vacancies in State Legislative Councils. Section 151A, which allegedly contains the “bar” precluding by-polls in the fag-end of a Legislative Assembly’s term actually states as follows:

“151A. Time limit for filling vacancies referred to in sections 147, 149, 150 and 151.— Notwithstanding anything contained in section 147, section 149, section 150 and section 151, a bye-election for filling any vacancy referred to in any of the said sections shall be held within a period of six months from the date of the occurrence of the vacancy:

Provided that nothing contained in this section shall apply if— (a) the remainder of the term of a member in relation to a vacancy is less than one year; or (b) the Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye-election within the said period.”

 

Section 151A is the only provision of the ROPA, 1951 cited by the Petitioner before the High Court to substantiate his contention regarding a bar.

Four points are crucial to note here.

Firstly, Article 164(2) of the Constitution provides for “collective responsibility” of the Council of Ministers to the “Legislative Assembly”. In contrast, Article 164(4) requires that a Minister shall be a member of the “Legislature” of the State. The two terms are not synonymous. In a bicameral state, the “Legislature” of the State will include the Legislative Council as well.

Secondly, membership of the State Legislature can be achieved in at least 4 ways. One can become: (i) a Governor; (ii) a member of the Legislative Assembly chosen by “direct elections from the territorial constituencies of the State (Art. 170(1)); (iii) an “elected” member of the Legislative Council (Arts 171 (3) (a)-(d)); (iv) a “nominated” Member of the Legislative Council (Arts 171 (3)(e)). Textually, Article 164(4) does not seem to preclude a Minister securing membership of the State Legislature through any of these modes, though membership by becoming a Governor can safely be ruled out on grounds of the absurdity of a person being both Governor and Minister.

Thirdly, a Legislative Assembly has a fixed term subject to dissolution. In contrast, the Legislative Council of a State is a permanent body that is not subject to dissolution, and usually subject to biennial elections. To speak of the last 6-months of the term of the Legislative Council is erroneous.

Fourthly, neither Section 15 nor Section 151A bar the conduct of by-polls to casual vacancies arising in the fag-end of the Legislative Assembly’s term. Section 15(2) proviso merely prohibits the Election Commission from notifying the general elections too early, i.e, even before six month prior to the expiry of the Assembly’s term. The main portion of Section 151A mandates a time limit of six-months to hold by-polls in relation to casual vacancies that may arise either in the Legislative Assembly or the Legislative Council. The proviso to the section only carves out an exception to the six-month time limit in the event that the remainder of the “term of a member” in relation to a vacancy is less than one year. It does not preclude a by-poll at that stage, it merely exempts the Election Commission from adhering to the six-month limit.

The Errors in Naniwadekar’s Analysis

From my analysis of the provisions of law above, the following points emerge in relation to the Naniwadekar’s argument.

Firstly, proposition (i) of his argument as stated above is incorrect. There is no constitutional requirement that a minister must become a “member of the Assembly” within six-months in order to continue as a Minister. Article 164(4) says nothing of the kind. It states that a minister must become a “member of the Legislature”. Naniwadekar fails to distinguish between the terms “Legislature of the State” and “Legislative Assembly of the State”. Both terms appear in Article 164 of the Constitution, the former in Article 164(4) and the latter in Article 164(2). He has not considered that Maharashtra has a Legislative Council that is a part of the State’s Legislature. It is a permanent House, with biennial elections, one-third of whose members retire approximately every two years. There always existed the possibility of by-polls to fill up casual vacancies due to resignation or death of other Council members that may arise in the Legislative Council within 6-months of RVP’s appointment as a Cabinet Minister.

If I am correct, proposition (i) of Naniwadekar’s argument must be corrected to state: “A person appointed as a minister in a State Government’s cabinet must become a member of the State’s Legislature within a period of 6-months. This is a facet of the underlying constitutional value of ministerial responsibility to the legislature contained in Article 164 of the Constitution.”

If proposition (i) is restated as above, proposition (ii) would still be valid. If this restatement is not made, however, proposition (ii) would manifestly become incorrect. Put simply, it would be wrong to assert that appointing a person as Minister amounts to constitutional fraud merely because he is incapable of being elected to the Legislative Assembly within six-months of his appointment. It may, however, be correct to argue that it would amount to constitutional fraud to appoint a person as Minister if he in incapable of becoming a member of the State Legislature.

Proposition (iii) is incorrect because, as explained above, the ROPA contains no bar on conduct of by-polls in the last six-months of a Legislative Assembly’s term.

Proposition (iv) is unsubstantiated by the text of Article 164(4). The plain text does not require “election” to the State Legislature to continue holding the post of a Minister. Even “nomination” to the Legislative Council would suffice as per the plain text. However, the Constituent Assembly’s debates and many decisions of the Supreme Court do seem to proceed on the assumption that a Minister would be an elected member of the Legislature.

The upshot is this. The Bombay High Court was correct in rejecting an argument that RVP’s appointment was a fraud on the constitution. To that limited extent, Naniwadekar’s analysis is suspect. Otherwise, his analysis is brilliant. If you haven’t read his posts, please do so immediately.