Category Archives: Judicial Review

Review: Proportionality, Punishment and Judicial Review: A Response to Jeydev C.S.

(This is a guest post by Puneet Dinesh.)

In this Guest Post, Jeydev C.S examines a topical issue given the recent political developments of awarding life sentences and death penalty for cow slaughter. The post revolves around an important legal question: Whether the courts can review the proportionality of punishments linked to a crime?

While Jevdev analyses some crucial questions surrounding the issue, it is an interesting exercise to examine the manner in which the variants of proportionality gets incorporated in different parts of the Constitution.

I. Importing principles from Art. 19 to Art. 21

The post while examining whether the standard of proportionality can be found within Article 19, refers to the Supreme Court’s decision in State of Madras v V.G Row to argue that ‘proportionality’ can be read under the ‘reasonable restrictions’ under Article 19(2). The argument then takes the help of Maneka Gandhi to import the standard of proportionality, found in the ‘restrictions’ under Article 19(2) to Article 21. While Maneka Gandhi allows for a harmonious and combined reading of Article 19 and 21, it is crucial to understand what exactly this means. The question really is, when can a principle under the ‘reasonableness’ test be invoked for a Article 21 challenge? Bhagwati J, in Maneka provides some guidance in this regard:

The law, must, therefore, now be taken to be well settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of ‘personal liberty’ and there is consequently no infringement of the fundamental right conferred by Article 21, such law, in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that article”.

For Bhagwati J, the challenges under Art. 19 can only be tested, if a freedom under Art. 19 is affected. However, this leaves us in a difficult position- any penal law prescribing punishment ipso facto violates various freedoms under Art. 19. Bachan Singh, when faced with the same question two years later after Maneka, observes that a penal law prescribing punishment cannot affect Art. 19 rights. Interestingly, Bhagwati J, writing his dissent in Bachan Singh two years later after the majority’s opinion, criticizing the majority for applying the wrong test to arrive at the conclusion that Art. 19 rights are not affected, also refuses to answer if a penal law stands to violate Art. 19 rights.

Is there another way to understand the harmonious reading of Art.14, 19, 21 per Maneka? The alternative reading that makes sense is to consider the principles of due process developed under Art. 14 and 19 in an Art. 21 inquiry. It is through this reading, that proportionality as a principle can be examined in an Art. 21 inquiry. It is a different matter altogether (as will be addressed later) the impact of the contents and the variants that proportionality takes within Art. 19 on Art. 21. The limited point being, proportionality as a principle can be considered through the harmonious reading of freedoms under Art. 19 and 21. In fact, a similar reading can be expected in the Canadian and South African Constitutions which subjects all rights to the proportionality standard.

II. Vikram Singh’s discussion on the Eighth Amendment in the United States and ‘substantive due process’

Jeydev’s post later relies on the observations by Vikram Singh on the appropriate standard to examine the proportionality of punishment. Vikram Singh relies on a series of United States and Canada precedents to further the position that proportionality is part of judicial review when the punishment is ‘outrageously disproportionate’. However, in the United States, the Eighth amendment specifically requires the court to examine if the punishment is proportionate to the crime and Section 12 under the Canadian Charter of Rights and Freedoms also provides a right not to be subjected to cruel or unusual punishment. Therefore, the principles evolved for determining proportionality (as discussed in Ronald Allen Harmelin v. Michigan 501 US 957 (United States) and R v Smith (1987) 1 SCR 1045 (Canada)) were due to the legislative mandate provided under the Eighth amendment and Section 12 respectively. It is important to note that a parallel provision is absent in the Indian constitution and the absence has not gone unnoticed before the Supreme Court.

The court in Jagmohan Singh (1972) observed that “…so far as we are concerned in this country we do not have in our Constitution any provision like the Eighth Amendment nor are we at liberty to apply the test of reasonableness with the freedom with which the Judges of the Supreme Court of America are accustomed to apply “the due process” clause”. Vikram Singh loses sight of this important distinction and proceeds to import the standard found in United States and Canada. Although Jagmohan Singh was prior to the Maneka Gandhi dicta, statues that define punishments forms part of the substantive due process review. (See Sunil Batra).While Bachan Singh and Mithu might help in arguing for a substantive review of a penal legislation, the bench strength in both the cases was lower than Maneka Gandhi.

The proportionality standard that ends up getting imported in the Indian context through Vikram Singh is nothing different from the Wednesbury standard of reasonableness. On this note, it is important to distinguish two different reviews of proportionality in cases of punishment. First, when the judiciary is reviewing the proportionality of a prescribed punishment in a penal law (Vikram Singh or the recent Bihar High Court’s prohibition judgment) Second, when the judiciary is reviewing the proportionality of a sentence given by a lower court (Santosh Bariyar line of cases). The analysis here is restricted to the former type of review.

III. Whether ‘proportionality’ is a constitutional standard?

The elevation of an administrative law standard as grounds for constitutional review has faced severe criticism from academic circles and the Supreme Court. The Supreme Court in Royappa v State of Tamil Nadu, while adjudicating on an administrative law matter, considered that mere ‘arbitrariness’ is sufficient to constitute an Article 14 violation. As Tarunabh Khaitan, points out, the case laws following this precedent has formulated the ‘unreasonableness’ test in the name of ‘arbitrariness standard’. It is in this context, an analysis on the proportionality test as a constitutional review standard becomes relevant.

Proportionality as an administrative law standard has been a recent addition to the list of standards open to judicial review for administrative actions. Om Kumar (2001) is perhaps the first case to add proportionality to the existing standards of administrative law review. As the court in McDowell noted, in 1996, ‘..The applicability of doctrine of proportionality even in administrative law sphere ..(was)..a debatable issue’ and further proceeded to note that, ‘It would be rather odd if an enactment were to be struck down by applying the said principle when its applicability even in administrative law sphere is not fully and finally settled’. However, the incarnation that ‘proportionality’ has taken at least in the cases challenging the extent of punishment and administrative actions is nothing different from what the ‘arbitrariness’ standard has given us i.e ‘unreasonableness’ test or rather what the Supreme Court calls it the ‘Wednesbury principle of proportionality’.

Wednesbury standard and the proportionality test may constitute different or same standards of review depending on the relevant jurisdiction. In English law, the latter forms a higher threshold than the former, wherein, the proportionality standard involves a four-stage test examining if (a) the objective is necessary to limit a fundamental right, (b) the impugned measure is rationally connected to it and (c) there is minimal impairment of the right to accomplish the objective (d) balancing the rights against the restriction. In India, depending on the context, the proportionality standard has taken both the four-stage test (‘reasonable restrictions’ under Article 19(2)-(6) and the Wednesbury reasonableness (judicial review of administrative actions) approach. This scheme i.e different nature of proportionality tests for a constitutional case and an administrative law case, is worth noting for future evaluation of Vikram Singh.

Wednesbury standard, while consisting of several hierarchical standards internally, requires judicial interference only for decisions that are seriously unreasonable. Inspired by this standard, the Eighth amendment cases picks up on the ‘grossly disproportionate’ test, while the Indian counterpart, sticks to the ‘shockingly disproportionate’ test. Abhinav Chandrachud, analyses a plethora of administrative law decisions where the court uses the phrase ‘proportionality’ standard but ends up employing the Wednesbury standard of review blurring the distinction that Om Kumar had created (See Hazarila).

The four-prong test in the Indian jurisprudence has had a muddled journey so far. Mainly invoked in the context of ‘reasonable restrictions’ under Article 19 (2)- (6), the test has been severely misemployed. As Ashwita Ambast notes here, from ignoring to take certain prongs of the test into account (Brij Bhushan), disturbing the hierarchy of analyses and now, ignoring to apply the test after deliberating on it (Modern Dental College), the four-prong test is yet to be flawlessly applied. The constitutional status of this test was approved as early as in the year 1952 in VG Row. The judgment stresses on the requirement of ‘narrowest limits’ (minimal impairment) and ‘exceptional circumstances’ (necessity) – crucial aspects of the proportionality analyses. The reiteration of this test was elaborately made recently in the NEET judgment by AK Sikhri J. After making a detailed survey of the test referring to comparative sources, the court proceeds to observe the ruling in TMA Pai and PA Inamdar and satisfies itself of the ‘reasonableness’ test without making any analyses on the proportionality test. Therefore, there is very little value in the court’s effort to explore the contours of the four-prong test. The most important and the controversial part of this test is when the court examines if the impugned act is a ‘minimal impairment’ to accomplish the objective. This often requires the court to evaluate comparative sources and put forth its own ideas on what constitutes a ‘minimal impairment’. As seen earlier, Indian courts have shied away from applying this part of the test.

All these discussions, brings me to my core argument: the link between Article 19 ‘restrictions’ and Article 21 to employ the tool of ‘proportionality’

As mentioned previously, the restrictions under Article 19 have always demanded for a stricter proportionality analyses. While the traditional four-prong test might have not been employed, it is rarely the case that they have been substituted to the Wednesbury standard of reasonableness. (See Chintaman Rao). In a constitutional adjudication case, challenging the extent of punishment mandated by the legislation, the court in Vikram Singh and the recent judgment on prohibition of alcohol have employed the Wednesbury standard of proportionality. Therefore, even if one were to source ‘proportionality’ of punishments under Article 19, one cannot lose track of these difficult questions. However, since Vikram Singh’s analyses of proportionality did not originate from Article 19, it might be unfair to attack the judgment on that ground.

Where can we then place ‘proportionality’ as invoked by Vikram Singh in the Indian constitution? Article 14 is perhaps the only, but difficult, place for proportionality to clench. The scope of this essay does not extend to include Article 14 analyses but the ‘arbitrariness’ test developed post-Royappa has been unclear. Whatever one thinks of the dubious link between arbitrariness and inequality under Article 14, there are multiple instances wherein, the arbitrariness has taken the form of the ‘reasonableness’ test. In which case, it becomes easier to add one more administrative law standard i.e proportionality within the folds of Article 14 as the test essentially is one inquiring the ‘reasonableness’ of the impugned clause in the legislation. This link may be crucial to re-engage with the content of the ‘arbitrariness’ standard, a conversation which is much awaited. However, one can’t lose track of the impediments that 2G Reference; Subramanian Swamy and more recently, Rajbhala poses in this endeavor.

While the proportionality analyses for punishment clause stands on a weak footing in Indian constitutional law, it will certainly be interesting to see, the manner in which proportionality (especially, the variant of proportionality) will get invoked and incorporated in the Indian Constitution.

 

 

 

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Book Review: A Question of Design — Chintan Chandrachud’s “Balanced Constitutionalism”

In 1996, a three-judge bench of the Supreme Court was called upon to decide the constitutionality of certain provisions of the Chota Nagpur Tenancy Act of 1908, which effectively excluded women from inheritance in certain areas in Bihar. In Madhu Kishwar vs State of Bihar, a majority of the Court observed that “nonuniformities would not in all events violate Article 14“, and that it was refraining from striking down (this very obviously discriminatory Act) “as this would bring about a chaos in the existing state of law.” Instead, the Court issued “directions” the State of Bihar to “comprehensively examine the question on the premise of our constitutional ethos and the need voiced to amend the law.”

Madhu Kishwar vs State of Bihar is an almost incomprehensible judgment to those who think of judicial review as being about protecting fundamental rights and invalidating legislation that violates those rights. The Court upholds a statute with reasoning that would ensure a failing grade in Constitutional Law 101:

“… an activist court is not fully equipped to cope with the details and intricacies of the legislative subject and can at best advise and focus attention on the State polity on the problem and shake it from its slumber, goading it to awaken, march and reach the goal… however much we may like the law to be so we regret our inability to subscribe to the means in achieving such objective. If this be the route of return on the Court’s entering the thicket, it is for better that the court kept out of it. It is not far to imagine that there would follow a bee-line for similar claims in diverse situations, not stopping at tribal definitions, and a deafening uproar to bring other systems of law in line with the Hindu Succession Act and the Indian Succession Act as models.” 

What has any of this got to do with the Constitution, you might ask. In a new book called Balanced Constitutionalism, Chintan Chandrachud argues that judgments of this kind are a feature, rather than a bug, of constitutional systems ostensibly committed to judicial supremacy (that is, Constitutions that grant the judiciary the last word on the meaning and scope of constitutional rights). It is unrealistic to think – or to hope – that judges will not decide cases with a view to the potential practical consequences (even though their protestations are generally to the contrary, and Madhu Kishwar is a bit of an outlier in that “social chaos” is made an express ground for upholding an Act that otherwise appears to violate the Constitution). And when judges are faced with a stark choice between upholding a law or striking it down, they will hesitate from choosing the latter option when it would lead to great disorder in the legal system. In such situations, Chandrachud argues that judges will “mask” their rights-reasoning (that is, their genuine understanding of whether or not the impugned statute violates rights) in order to achieve a sustainable outcome. The system of judicial review-judicial supremacy, therefore, constrains judges from giving effect to their genuine understanding of what the Constitution requires, and crimps judicial reasoning in important constitutional cases.

Introduction

What is the alternative, you might ask. Surely not Parliamentary supremacy, where rights are reduced to “playthings of the majority“? No: the comparison Chandrachud draws is not with pure Parliamentary models, but with the “hybrid” or “balanced” model, the best example of which is the United Kingdom. In the UK, the Human Rights Act effectively codifies the European Convention of Human Rights into domestic law, and allows the Courts to issue a “declaration of incompatibility” in situations where it is absolutely impossible to reconcile domestic legislation with a Convention right (the structure and mechanics of the Human Rights Act are explained by Chandrachud in the opening chapter). A “declaration of incompatibility” is not tantamount to striking down a law: in fact, it has no legal force at all. In theory, the UK Parliament can entirely ignore a declaration of incompatibility, and presumably, the only potential cost will be the (debatable) political cost of having clearly defied a court’s finding that domestic law violates a binding international convention. However, as Chandrachud points out, practice invariably departs from text. Balanced Constitutionalism, then, is a comparison between the UK and Indian constitutional models as they work in practice. As the first comparative analysis of this kind (between two Parliamentary systems, one of which follows the old judicial review model, and the other the new hybrid model), it marks an important point of departure, and will hopefully provide fertile ground for the continuation of what is an important and long-overdue conversation.

Chandrachud’s comparison between the UK and the Indian models proceeds along two metrics: which model, he asks, allows Parliament more freedom to articulate its “genuine understanding” of rights? And which model allows Courts more freedom to do the same? The model that “wins” on these metrics is the more “balanced one” (the underlying assumption, of course, is that the separation of powers in a parliamentary-constitutional democracy works at its best when both organs – the parliament-executive and the judiciary – are able to articulate their understandings of constitutional rights most freely.

What Parliaments Do 

Chapter One of Balanced Constitutionalism lays out this basic normative argument. Chapter Two discusses the range of political options available to the Indian and UK Parliaments in cases where Parliament wants to respond to the exercise of judicial review. In India, responses include constitutional amendments (after Kesavananda Bharati, constrained by the basic structure), placing laws in the Ninth Schedule to the Constitution, which makes them immune from a fundamental rights challenge (after I.R. Coelho, also constrained by the basic structure, although Chandrachud draws an important distinction between Ninth Schedule basic structure review and fundamental rights amendments basic structure review), passing Ordinances, and of course, filing review and curative petitions in the Supreme Court itself. To Indian readers, this is a familiar story, and Chandrachud’s account is comprehensive. As far as the UK is concerned, Chandrachud argues that, contrary to first impressions, “the space for political responses to declarations of incompatibility is much narrower than that which is assumed” (p. 64). This is not only because of a political climate in which judicial opinion is given great weight and respect, but also because judges themselves are strategic actors par excellence when deciding whether to issue declarations of incompatibility. Chandrachud shows how such declarations are often issued when there are already existing proposals to amend the impugned law, and are sometimes accompanied by “soft suggestions” to Parliament about what route the amendment might take to address the incompatibility. The result is that “responses to declarations of incompatibility have been made either through remedial orders or primary legislation in almost every instance” (p. 83), and State action after a declaration of incompatibility has focused on “how to act“, rather than on “whether to act at all.” This situation is heightened by the existence of the European Court of Human Rights at Strasbourg, which also has the power to find the UK in breach of its obligations under the ECHR. The possibility of a declaration of incompatibility being followed up with the initiation of proceedings before the ECHR provides further incentives to the State to act in response to such declarations.

This suggests, therefore, a convergence between the two models. In India, where judicial supremacy (ostensibly) holds sway, Parliament has developed a range of responses to ensure that it is not merely a passive actor when it comes to interpretation and application of rights. In the UK, where Parliament seemingly has unbounded discretion to respond or not to respond to the Courts’ interpretation of rights, actual practice reveals that the discretion is curtailed due to a range of institutional factors. In Chapter Three, Chandrachud focuses the question further by asking which model of judicial review “engenders a more balanced allocation of powers” (p. 97). After teasing out some of the different ways in which the two Parliaments have actually responded, Chandrachud focuses on what he calls the “Time Factor“: how long does it take for Parliament to respond to, or revise, judicial understanding of rights? Through graphs, Chandrachud demonstrates that – counterintuitively – “the Indian Parliament’s response time is slightly quicker than the Westminster Parliament’s response time.” This undermines the suggestion that the hybrid UK model is “better” than the Indian judicial review model because it allows greater ease of response to Parliament. Chandrachud concludes that on the Parliamentary metric (see above) neither jurisdiction “wins” over the other.

What Courts Do 

In Chapter Four, Chandrachud turns to the Courts. His argument – which I highlighted at the beginning of this review – is that the Indian Supreme Court operates in the “shadow” of its power to strike down law. Perhaps paradoxically, it is the existence of this power – and the inevitability of its usage consequent to the finding of a rights violation – that prompts the Court to “mask” its true understanding of fundamental rights in a manner that does not happen in the UK. To make this point, Chandrachud compares three sets of cases. First, in Namit Sharma vs Union of India, while responding to a constitutional challenge to various provisions of the Right to Information Act on grounds of Article 14, the Court backtracked on its own previous findings of presumptive unconstitutionality – followed by some creative “reading in” of principles into the text of the statute to save it – and ended up upholding most of the Act even while expressing unease about its compatibility with Article 14. In R v Thompson, on the other hand, the UK Supreme Court issued a declaration of incompatibility with respect to a provision of the Sexual Offenders Act that put offenders on notification requirements for life, without possibility of review. Chandrachud argues that the Right to Information Act and the Sexual Offenders Act were similar insofar as they were both of recent vintage, qualified as “social reform laws”, were deemed to be “landmark” laws by Parliament, and – perhaps most importantly – set up complex statutory regimes to deal with a social problem. What this meant was that invalidating a provision of either of the Acts would have a ripple effect upon the system as a whole. Here, the Indian Supreme Court was unwilling to cause legislative disturbance on such a scale, while the UK Supreme Court had no similar compunctions, because a declaration of invalidity would not invalidate the statute.

Chandrachud makes a similar argument when comparing Koushal vs Naz and Bellinger vs Bellinger. He attributes the recriminalisation of homosexuality by the Indian Supreme Court in Koushal to its fear that, by striking down Section 377 of the IPC, there would be a legislative vacuum as far as child sexual offences were concerned; on the other hand, in a case involving the right of a transsexual person to a post-operative marriage with a person (now) of the opposite sex, the UK Supreme Court had no difficulty in holding that the relevant provisions of the Matrimonial Causes Act, which only contemplated marriage between parties respectively “male” and “female”, were incompatible with the Human Rights Act. Chandrachud argues that what united these cases was the consequence that there would be a “series of effects across the legal system” in case the provisions were invalidated. Here again, the impossibility of “invalidation” allowed the UK Supreme Court to interpret rights with full freedom, while the Indian Supreme Court “masked” its reading of rights.

And lastly, Chandrachud compares Kartar Singh vs State of Punjab with the Belmarsh Prison Case. In the former, the Indian Supreme Court upheld an anti-terror statute that allowed for a wide departure from the rights guaranteed to accused persons under the CrPC and the Evidence Act, despite voicing unease with the legislative measures in question. At the same time, Belmarsh was also an anti-terror case, where the UK SC found that certain detention provisions of the Anti-Terrorism, Crime and Security Act, passed in the aftermath of 9/11, were incompatible with the Human Rights Act. Here, the argument is obvious: the possibility of a vacuum in anti-terror laws was a prospect that the Indian Supreme Court could not stomach.

Through these cases, Chandrachud makes the point that the Indian Supreme Court is constrained in its rights-reasoning in a manner that the UK SC is not, because of the consequences that accompany a finding that a particular statute violates constitutional rights. He goes on to argue that the Indian Supreme Court is constrained from fashioning new and effective “remedies” that go beyond the binary of striking down/upholding because of the text of the Constitution (which does not envisage such innovations) as well as institutional constraints (Parliamentary inaction despite judicial advice to amend or modify a statute).

This is an important point, and I would like to briefly extend it: in fact – as Chandrachud notices – the Supreme Court has tried to fashion new remedies, often relying upon Article 142 of the Constitution. These include the now-legendary “continuing mandamus”, and of course, the ubiquitous “guidelines”. In fact, Kartar Singh – and other similar cases – buttress Chandrachud’s argument in an even stronger fashion than is expressly acknowledged in the book: the very fact that the Supreme Court is compelled to pass “guidelines” is evidence of that fact that it has found a constitutional infirmity (whether it admits it or not), and is trying to cure that infirmity by substituting itself for the legislature (or the Executive, as the case may be), instead of having to perform its constitutional function of striking down the law. And of course, there is a very good reason why this simply does not work: the Court is venturing into fields (legislation or administration) that it is fundamentally unsuited to be in. That, however, is an ongoing debate: the point here is that the ubiquity of guidelines is further evidence of the Court’s “masking” its rights reasoning: (legislative) guidelines instead of (judicial) invalidation has come to define the Court’s constitutional responses.

In his last chapter, Chandrachud looks at “collateral institutions” (the JCHR in the UK and the European Court of Human Rights, and the National Human Rights Commission in India), and finds – unsurprisingly – that the robustness of the former is matched by the toothlessness of the latter. He concludes, therefore, by arguing that the UK model is a more “balanced” model of constitutionalism than the Indian, on the singular metric of the extent to which Courts can freely articulate their genuine understanding of constitutional rights.

Thinking Through Issues of Design 

Balanced Constitutionalism is an important book in that it goes beyond an analysis of constitutional doctrine, and places adjudication – and constitutionalism – in its political context. Ever since Ronald Dworkin’s Taking Rights Seriously, there have been complaints that constitutional theory is too focused on appellate Courts, and ignores the role of the other organs of State. Chandrachud avoids that trap: his book is about the relationship between Parliament and the Courts, and gives equal weightage to Parliamentary debate, statutory amendments, and legislative responses and non-responses, as it does to judgments.

This helps us to understand that court judgments ought not to be read in a vacuum, but as part of an existing political ecosystem that conditions and structures the way judges act. Balanced Constitutionalism demonstrates that when we do this, the results may be surprising and counter-intuitive: systems that are formally very distinct can converge at unexpected places, and diverge at still more unexpected places. We think that the UK Parliament is supreme, and the text of the Human Rights Act suggests that, but in practice, we find that it is about as constrained as the Indian Parliament in its response to adverse judgments. And, on the other hand, we may think that a system of judicial supremacy vests great power in courts; but it turns out that the very existence of this power creates a reluctance to use it, and constructs constraints that, in some ways, are even more cloying than in systems where the power doesn’t even exist. Balanced Constitution, therefore, pushes us to think more deeply about crucial issues of constitutional design, how constitutional design is embedded in the political structures of a society, and how that – ultimately – impacts outcomes.

Points of Disagreement

In conclusion, I would like to point to two arguments where I disagree with Chandrachud.

(a) Koushal vs Naz

I believe that Namit Sharma and Kartar Singh illustrate Chandrachud’s point about the Court “masking” its rights-reasoning well. However, Koushal vs Naz does not. Chandrachud suggests that the Supreme Court upheld Section 377 because of its fear of a legislative vacuum that would allow child sexual abuse to go unpunished. This is, indeed, mentioned at one point in the judgment but, in my view, was pure eyewash by the Supreme Court. This is not only because the 2013 amendments to the IPC covered the issue (which Chandrachud points out), but also because the case was never about whether S. 377 should be struck down. The High Court had only “read down” the Section to exclude consenting same-sex intercourse between adults in private; for the rest – including child sexual abuse – 377 continued to exist. Consequently, the core of Chandrachud’s argument – that rights-reasoning is masked because of the consequences of striking down – doesn’t work for Koushal, because the case was never about striking down at all.

Secondly, it is difficult to read Koushal as a case where the Supreme Court believed a statute was unconstitutional, but didn’t strike it down because it was afraid of the consequences. Everything in the judgment suggests the exact opposite: the Court refused to return any finding on Article 21 (the right to privacy) and Article 15(1) (the right against discrimination on grounds of sex), and spent exactly two paragraphs in a 98-page judgment dealing with Article 14. In its Article 14 analysis, it held that S. 377 punished acts and not persons, and therefore there was no issue of inequality. The poverty of this line of reasoning has been discussed extensively by now, and I don’t want to go into it here; the basic point is that the Court very clearly believed that S. 377 did not violate fundamental rights, and this is more than clear by a re-reading of its notorious labels: “the so-called rights” of the minuscule minorities.” Chandrachud does hint towards the end of his discussion that the Court was guided by ideological considerations; however, I think that on a dispassionate reading of Koushal vs Naz, there is no other way to describe it other than an utterly bigoted judgment, where contempt for rights is clear and evident, rather than Chandrachud’s reading of an uneasy Court trying to reconcile its sense that the statute was unconstitutional with the consequences of striking it down. This is not to say that the argument is incorrect; indeed, Madhu Kishwar vs State of Bihar (in my view) is an excellent example of a case in which the Court expresses its unease in clear terms, but upholds a law because of the possibility of “social chaos”.

(b) Response Time

Chandrachud argues that the time taken by Parliaments to respond to adverse judicial decisions is an important indicator in determining how free they are to articulate their understanding of rights. However, I believe that his actual discussion comparing India and UK leaves out a few important variables: for instance, response time is affected by the quality of deliberation, and there is no doubt that, at present, because of various structural and institutional features, the quality of legislative deliberation is much better in the UK than it is in India (Chandrachud himself mentions plenary bottlenecks at various points). Furthermore, response time is surely affected by the anti-defection laws, which spares the ruling party the necessity of having to convince its own back-benchers to vote for a (possibly controversial) law. Consequently, it seems to me that simply comparing response times without taking into account these other factors does not do enough for the argument that Chandrachud is trying to make.

Conclusion

In sum, therefore, Balanced Constitutionalism presents an detailed comparative analysis of the systems of judicial review in the UK and in India. The obvious commonalities between the two Parliamentary democracies make this comparison a topical and important one. Going forward, Balanced Constitutionalism will undoubtedly be a point of departure for discussions about constitutional design, and the relationship between design and how Parliaments and Courts interact over issues of rights adjudication.

Balanced Constitutionalism is available to purchase here.

(Disclaimer: The writer of Balanced Constitutionalism is a friend of the author).

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Guest Post: Decoding the WhatsApp/Privacy Case

(In this Guest Post, Praharsh Johorey examines some of the key issues in the pending WhatsApp/Privacy case before the Constitution Bench of the Supreme Court)

Once the Supreme Court re-convenes after its vacation, it will begin hearing arguments on an appeal concerning privacy issues stemming from the use of ‘WhatsApp’, a popular instant messaging application. The petition against WhatsApp originally filed before the Delhi High Court challenged as unconstitutional a change made to WhatsApp’s Privacy Policy in August 2016, which allowed it to send all collected data to its parent company, Facebook. It was claimed that this breached the ‘Right to Privacy’ of all citizens under Article 21, and restricted their freedom of speech under Article 19(1)(a). Recognising the legitimacy of these claims, the Delhi High Court issued the following directions to the owners of WhatsApp on the 23rd of September, 2016:

  1. i) If the users opt for completely deleting “WhatsApp” account before 25.09.2016, the information/data/details of such users should be deleted completely from “WhatsApp” servers and the same shall not be shared with the “Facebook” or any one of its group companies.
  2. ii) So far as the users who opt to remain in “WhatsApp” are concerned, the existing information/data/details of such users upto 25.09.2016 shall not be shared with “Facebook” or any one of its group companies.  

The Petitioners filed an appeal before the Supreme Court against these directions, claiming that they only do ‘partial justice’, and create an unreasonable distinction between WhatsApp users solely on the basis of when they began using its services. This petition invariably raises questions of the ‘Right to Privacy’, rights of digital users and freedom of speech online under Article 21 – and its position under the Indian constitution. However, there exists voluminous literature on the implied existence of such a right, such as here, here and here; and the question of reading this right under the Constitution is also sub-judice before a Constitutional Bench of the Supreme Court in K.S. Puttaswamy (Retired) and Anr. v. Union of India & Ors.

Instead, this essay concerns itself with the following questions:

  • Does the Supreme Court have the jurisdiction to intervene in a contract entered into between two private companies; i.e. WhatsApp and its subscribers?
  • Assuming such jurisdiction exists, whether the Supreme Court should intervene in contracts between private parties – and does the relationship between telecommunication companies and private consumers requires such intervention.

I will examine each question separately.

Special Leave Petitions and Jurisdictional overreach

The Petitioners have approached the Supreme Court under Article 136, which allows it the power to grant a ‘special leave to appeal’:

  1. (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.

In the present case, the Supreme Court has constituted a Constitution Bench (Five Judges) to hear the appeal against the order of the Delhi High Court – having granted a special leave to appeal under Article 136. The original petition was filed as a Public Interest Litigation before the Delhi High Court under Article 226. The Respondents, WhatsApp and Facebook contended that the High Court did not have appropriate jurisdiction to hear the petition because neither company is a public body discharging public functions, and therefore not amenable to constitutional scrutiny. The observations of the High Court indicate an agreement with this contention:

  1. In fact, the users of “WhatsApp” and the Respondent No.2 (Whatsapp itself) are parties to a private contract and the users of “WhatsApp” having voluntarily opted to avail the services of the said Application, are bound by the terms of service offered by the Respondent No.2…. it appears to us that it is not open to the users now to contend that “WhatsApp” shall be compelled to continue the same terms of service.
  2. Even the ‘Right to Privacy cannot be a valid ground to grant the reliefs as prayed for since the legal position regarding the existence of the fundamental right to privacy is yet to be authoritatively decided.’
  3. Since the terms of service of “WhatsApp” are not traceable to any statute or statutory provisions, it appears to us that the issue sought to be espoused in the present petition is not amenable to the writ jurisdiction under Article 226 of the Constitution of India.

However, the unambiguous conclusion arrived at by the Court concerning its jurisdiction under Article 226 was swiftly ignored, with the Court proceeding without explanation to issue directions binding upon Whatsapp. As a result of this demonstrably unclear stance, the question of jurisdiction has now been raised before the Supreme Court – questioning the very ability of the Court to intervene in private acts of private parties.

Whatsapp and Direct Horizontality

In his essay on ‘Horizontality under the Constitution’, which can be found here, Gautam Bhatia notes that constitutional rights are deemed to regulate the relationship between individuals and the state, i.e. ‘vertically’. However, with the gradual expansion in the role of the private sector in our daily lives coupled with the simultaneous withdrawal of the State from several sectors, there has emerged a need to subject private relationships to constitutional scrutiny; i.e. impose ‘horizontality’. With respect to Whatsapp, the situation involves regulating a private act (the contract to join Whatsapp) which private citizens consent to – which is different from the Court holding the State responsible for moulding conduct of private parties in accordance with the Constitution as in Vishaka v. State of Rajasthan, or altering laws to which private parties are subject such as in R. Rajagopal v. State of Tamil Nadu. Thus, the Court could impose what is known as ‘direct horizontality’ – where the private act of a private party is challenged on grounds of the Constitution.

A similar question was posed to the Supreme Court in relation to the functioning of the Board of Cricket Control in India (“BCCI”) – and whether the legality of its activities could be judged on the cornerstone of the Constitution. In both cases relating to the BCCI, Zee Telefilms Ltd. & Anr vs Union Of India & Ors and BCCI v. Cricket Association of Bihar, extensive discussion took place as to whether the BCCI could be considered as a ‘State’ under Article 12. However, no question has been raised as to Whatsapp’s status as a private entity. Therefore, the Court’s observations in respect of the constitutional obligations of the BCCI as a non-state entity are crucial. In paragraph 30 of the Zee Telefilms case, Hegde J. notes:

‘But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution which is much wider than Article 32.’

Subsequently, in the BCCI judgement, Thakur J. observes:

Suffice it to say that if the Government not only allows an autonomous/private body to discharge functions which it could in law takeover or regulate but even lends its assistance to such a nongovernment body to undertake such functions which by their very nature are public functions, it cannot be said that the functions are not public functions or that the entity discharging the same is not answerable on the standards generally applicable to judicial review of State action.

A joint-reading of these two observations leads to the irresistible conclusion that only those private bodies that discharge ‘public functions’ are amenable to claims under Article 226, and not under Article 32. Thus, the Court’s interpretation contemplates a situation where the claim must change depending on the forum one is before; which surely was not contemplated by the drafters. Thus, the only permissible reconciliation of this position is that private parties performing public functions can be made subject to general public law standards (good faith, non-arbitrariness) which may overlap with Part III – particularly Article 14, 19 and 21; but does not imply Judicial review in respect of all provisions of Part III. At minimum, a litigant aggrieved with a Private party cannot go straight to the Supreme Court under Article 32, but must first go to the High Court under Article 226 to enforce the aforementioned administrative law standards.

Instant Messaging and the ‘Public Function’ Test

However, prior to examining which provisions of Part III the Privacy Policy may fall foul of, we must first examine whether Whatsapp can even be considered as fulfilling the ‘Public Function’ test. In Sukhdev and Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr. the Court was required to determine whether the Oil and Natural Gas Commission, Indian Finance Corporation and the Life Insurance Corporation, all of which are statutory organisations, were entitled to claim protection under Part III. The Court held that they were, stating:

Another factor which might be considered is whether the operation is an important public function. The combination of State aid and the furnishing of an important public service may result in a conclusion that the operation should be classified as a State agency. If a given function is of such public importance and so closely related to governmental functions as to be classified as a governmental agency, then even the presence or absence of State financial aid might be irrelevant in making a finding of State action. If the function does not fall within such a description, then mere addition of State money would not influence the conclusion.

As referenced earlier, there is no argument that WhatsApp is an instrumentality of the State under Article 12 – as it is neither part of the State apparatus, nor is it considered an instrumentality or agent of the State itself. Therefore, the question to be resolved is whether providing a platform for communication can be considered to be a ‘public function’ – making it amenable to 226 jurisdiction. Two facets of this question are important: first, the nature of communication services as a public good, and second, whether WhatsApp is necessarily required to exercise ‘control’ over this service to be regarded as discharging a public function.

It is undeniable that telecommunication plays a crucial role in 21st century society. A denial of all telecommunication services to society for a single day would impact global communication, impair business and disrupt the Economy – not to mention the significant mayhem it may cause in the process. Consequently, it is more than arguable to suggest that the organisations providing telecommunication services are collectively performing a ‘public function’. The Supreme Court noted that in the context of the BCCI, it was three factors – complete control over cricket, significant financial investments and state support – that lead to the determination of it discharging a public function. However, note must be made here of the unique nature of cricket in India, in that it represents a ‘primary cultural good’ (Parthasarathy); and that BCCI’s complete control over the sport in India represented its power to control access to this basic human good.

To apply this test of ‘control of basic goods’, one must understand the nature of instant messaging in India, and whether it can be said that WhatsApp exerts a comparable amount of control over this service. A majority of Indian internet users (63% of the people surveyed, MEF Survey 2016) currently rely upon WhatsApp as their primary communication device – nearly 200 million consumers. However, having significant market share is not a sufficient indicator of whether WhatsApp exercises ‘control’ over the utility in India. Unlike the BCCI, WhatsApp cannot be said to have any legitimate role to play in the governance, regulation or administration of this sector, and does not (yet) have a recognised monopoly over the utility. If WhatsApp were recognised as being the sole provider of all instant communication services to Indians, it could have been contended that its control over a public utility renders it amenable to 226 jurisdiction. However, holding so in the present context would set a dangerous precedent of all popular services being considered as effectively discharging a public function; not necessarily limited to the nature of service in question.

Re-writing Private Contracts

Even accepting that the Supreme Court has the jurisdiction to adjudicate the Whatsapp petition, one must consider the propriety of the Judiciary intervening in private contracts. It is undisputed that the millions of customers that accepted WhatsApp’s new privacy policy did so voluntarily, having accepted the terms and conditions clearly established. Resultantly, if the Supreme Court were to issue directions to WhatsApp changing the terms of such policy, it is intervening in a voluntary agreement entered into between two private parties.

However, such a situation is not unprecedented. The Supreme Court has made a number of determinations that change the very basis of private contracts – doing so particularly frequently in the context of labour contracts. In the year 2016, it mandated in State of Punjab v. Jagjit Singh that employers must ensure ‘equal pay for equal work’, holding:

It was held, that the Government cannot take advantage of its dominant position, and compel any worker to work even as a casual labourer on starvation wages. It was pointed out, that a casual labourer who had agreed to work on such low wages, had done so, because he had no other choice.

Any act, of paying less wages, as compared to others similarly situate, constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation.

The justification for intervening in a private contract therefore stems from two factors – first, the coerced consent of the labourers who have ‘no other choice’ and second, from the ‘domineering position’ of the employers who have the power to ‘enslave’ these workers. As a result, the Court intervened to protect the otherwise defenceless labourers from the exploitative practices of the employers. A similar line of argumentation has been placed before the Supreme Court by the WhatsApp petitioners – in that WhatsApp enjoys a dominant position in the instant messaging space, and its consumers are therefore have no option but to be subject to its exploitative data practices. The Supreme Court also echoed this sentiment in one of the hearings, warning WhatsApp against ‘consumer entrapment’.

However, this line of argumentation misses the key facet of consumer choice – something evidently absent in the minimum-wage labour market. Consumers are constantly advertised a number of different services that provide nearly perfect competition to WhatsApp, and are allowed free migration across these platforms. Moreover, there is no legal reason why consumers who use a platform like WhatsApp should not be allowed to waive their right to keep their data secret in exchange for using an evidently useful service. Any consumer who is dissatisfied or uncomfortable with the terms of use of such an application is legally allowed to exit its operation – making the case for judicial intervention in such a contract untenable.

Conclusion

It is not my position that we should not have a right to privacy, or that WhatsApp’s Privacy Policy is desirable. However, to entertain and adjudicate such a petition on its merits would require the Supreme Court to significantly extend its jurisdiction – and begin upon an already slippery slope of subjecting private parties to constitutional provisions. Instead, it is my position that the legislature should enact a comprehensive Data protection framework that would forbid companies from transferring data of its consumers without their express authority – and then allow the Judiciary to adjudicate disputes on such basis. By broadly invoking Article 21 and Article 19 for all privacy disputes, we risk allowing several private companies from getting away with privacy violations that are actionable in most other jurisdictions.

Who said creating a ‘Digital India’ would be easy?

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Filed under Article 226 Remedies, Communications Technologies, Judicial Review, Jurisdiction, Public goods

The BCCI Controversy, Public Functions and Cultural Goods, and the Return (?) of the Functional Test

Last month, a two-judge bench of the Supreme Court delivered its judgment in Board of Control for Cricket vs Cricket Association of Bihar. The Court accepted most of the recommendations of the Lodha Committee, which it had established through its previous order in the same case, in January 2015, and directed their implementation. These recommendations included extensive restructuring of the BCCI (e.g., age limits, conflicts of interest, and so on). Unsurprisingly, this has proven controversial. Markandey Katju, the BCCI’s ‘legal advisor’, has strongly criticised the judgment for violating the separation of powers, and also for contravening the Tamil Nadu Societies’ Registration Act (under which the BCCI is registered) by judicially altering the terms of association of a private society.

There are, however, two separate questions here. The first is whether the BCCI’s structure and functioning is subject to judicial review at all, and if so, on what basis and under which principles. The second is whether the kind of systematic overhaul recommended by the Lodha Committee ought to be implemented by the judiciary, or by Parliament (Katju’s separation of powers argument). The two questions are tangled up, because it is only after providing a principled basis (if any exists) justifying judicial intervention into the workings of a (technically) private society such as the BCCI, can we then ask whether the manner in which the Lodha Committee did it was justified or not. For this, we need to go back to the Supreme Court’s January 2015 order.

The facts that led up to the passing of that order are rather complex, but very briefly, allegations of match-fixing had dogged the Indian Premier League (IPL). In response, the BCCI constituted a probe panel. The Cricket Association of Bihar filed a writ petition against this in the High Court of Bombay, and also filed another writ praying for the removal of the BCCI President as well as the cancellation of the franchise of two IPL teams. And in yet another proceeding, the Association challenged Rule 6.2.4. of the BCCI Regulations, which allowed administrators to have commercial interests in the IPL. After the Bombay High Court passed various orders on these proceedings, the matter reached the Supreme Court. On 8th October 2013, ‘with the consent of the parties’, the Supreme Court constituted a ‘probe committee’ to look into the allegations of match-fixing. The Probe Committee returned damning findings against both players and officials. On 16th May 2014, the Supreme Court then constituted an investigation team to help the Probe Committee conduct an enquiry into the specific accusations. Its report was placed before the Court towards the end of 2014. The Supreme Court then framed seven questions, including whether allegations of match-fixing stood proven, the quantum and nature of punishment, the legality of Rule 6.2.4., and consequential orders.

Before the Court could do any of that, however, it had to work out the exact relationship between the judiciary and the BCCI, an ostensibly private body. Consequently, the first question that the Supreme Court framed was:

“Whether the Board of Cricket Control of India is ‘State’ within the meaning of Article 12 and if it is not, whether it is amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution of India?”

The Court’s discussion of this question is contained in paragraphs 20 – 30 of the judgment. Previously on this blog, we have discussed the history of the Supreme Court’s Article 12 jurisprudence. Very briefly, for a few decades, the Court fluctuated between a ‘functional test’ (i.e., looking to the functions a body is performing in order to determine whether it could be equated to ‘State’ under Article 12, and therefore subject to fundamental rights claims), and a ‘legal’ test (i.e., whether the legal form of the body can be equated with that of the State). In Pradeep Kumar Biswas, and then in Zee Telefilms, the Court finally – and decisively – adopted the legal test, holding that a body fell within Article 12 only if it was “functionally, financially or administratively” under the control of the State.

However, while the Supreme Court ultimately decided upon a narrow interpretation of Article 12, in a parallel set of cases, it began to develop a jurisprudence around ‘private bodies dealing with public functions’. The genesis of this was Justice Mohan’s concurring opinion in Unnikrishnan, where he held that educational institutions discharged a public duty, which require them to “act fairly“. This approach saw its culmination in the Zee Telefilms Case – which, as a matter of fact, was about the Article 12 status of the BCCI (!). After holding that the BCCI was not State under Article 12, on an application of the control test, the Court then went on to observe that ““it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution which is much wider than Article 32.”

A private body discharging public functions, therefore, could be subject to the writ jurisdiction of the High Courts under Article 226, for the vindication of the rights of citizens (for a discussion of what exactly this might mean, see the comments to this post).

Let us come back to the BCCI judgment. From paragraph 20 to 29, Thakur CJI recounted the judicial history of Article 12, with its culmination in Zee Telefilms. In paragraph 30, he explained why, in his view, the BCCI was performing a ‘public function’. The reasons can be broadly summarised as follows:

  • The BCCI had complete control over the game of cricket in India (including control over the careers of players)
  • The BCCI’s activities were of considerable financial scope (infrastructure, expenditure on coaches, pension schemes, selling broadcast and telecast rights)
  • The BCCI was exercising these functions with the “tacit concurrence” of the government, which had chosen not pass any law diluting the BCCI’s monopoly.

For this reasons, Thakur CJI held that the BCCI would be subject to “the standards generally applicable to judicial review of State action.” Later in the judgment, he noted that the setting up of the Probe Committee “was issued in exercise of appellate powers vested in this Court in proceedings under Article 226 of the Constitution” – thus linking the Court’s actions to the public function test, via Article 226.

After an extensive discussion of the match-fixing itself (which need not concern us here), the Court moved on to the validity of Rule 6.2.4., which allowed administrators to have commercial interests in the IPL and other T20 tournaments. Note that, technically, Rule 6.2.4. was an internal regulation of a private society, something that the Court had repeatedly held was (more or less) beyond judicial scrutiny (see, e.g., Zoroastrian Cooperative and other cases). In paragraph 69, this was Thakur CJI’s response:

We have, while dealing with question No.1 above, held that BCCI is amenable to writ jurisdiction under Article 226 of the Constitution as it discharges “Public Functions”. The natural corollary flowing from that finding is that all actions which BCCI takes while discharging such public functions are open to scrutiny by the Courts in exercise of their powers under Article 226 of the Constitution. It also implies that such actions shall when under scrutiny be judged by the standards and on principles that govern similar actions when taken by the State or its instrumentalities. The approach which a Court exercising powers of judicial review of administrative action adopts will remain the same irrespective of whether the action under review is taken by the State or its instrumentality or by any non statutory non government organisation like the BCCI in the case at hand. It follows that Rule 6.2.4 will be subject to the same tests and standards as would apply to any similar provision emanating from a statute or the general executive power of the State.”

There is, however, a crucial elision in the two underlined portions. In the first, the Court made the (uncontroversial) claim that when adjudicating upon the performance of a public function, it would exercise its jurisdiction following principles of judicial review of administrative action (that is, the Wednesbury standards, or one of its variants, most of which are marked, to different degrees, by judicial deference). However, at the end of the paragraph, the Court equated judicial review of Rule 6.2.4. to that of a statute, or executive action. This, however, is an entirely different standard altogether. When considering a challenge to a statute or to an executive act, the Court, far from employing standards governing judicial review of administrative action, tests the statute for compliance with legislative competence, and with Part III. In other words, if Rule 6.2.4. is akin to a statute, then Part III would apply to it directly, in the same manner as if the BCCI was State under Article 12 – which, as we have already seen, it is not.

The waters were further muddied in paragraph 73, when Thakur CJI noted that “in the light of the Articles of Association, we find no infirmity in the amendment to Rule 6.2.4 in so far as the legislative competence (if we may use that expression) of the authority that brought about the amendment is concerned.” Surely, this usage is not innocuous!

Subsequently, considering Rule 6.2.4. on its merits, the Court invalidated it on two grounds: first, that in allowing a man to be a judge in his own cause, it violated principles of natural justice, noting specifically that “the significance of the principles of natural justice visa-vis Article 14 of the Constitution is no longer res integra. The principles have been held to be a part and parcel of the guarantee contained in Article 14.” Secondly, it struck the Rule down on grounds of public policy, holding that it defeated the “high ideals of fairness and objectivity in the discharge of public functions.”

Bracketing out the second argument for the moment, if we read paragraph 69 alongside the Court’s examination of Rule 6.2.4., then I would suggest that it is at least strongly arguable that the Court held that private bodies performing public functions are directly subject to Part III of the Constitution. It treated the BCCI’s internal regulations as a statute, and then applied Article 14 to it. This would seem to mark a return of the functional test through the back door, with the rider that since private bodies performing public functions are (technically) not ‘State’, you cannot go straight to the Supreme Court under Article 32, but must first go to the High Court under Article 226.

Such a position (I would submit) requires a close and careful definition of what, precisely, constitutes a ‘public function’. It is here that the Court’s analysis is not entirely satisfactory. The three reasons – complete control over cricket, large-scale financial stakes, and State concurrence – are indicative of public functions, but they are surely not determinative. Without any examination of what it is about cricket that makes a monopoly over it public in nature, or that gives financial transactions a public character, the analysis is incomplete; and the State concurrence point could be applied to any other field of work as well, where there is no existing statute.

In a recent article, Suhrith Parthasarathy provides an important justification. He writes that “in India, where cricket plays such a pervasive role, the sport would therefore have to necessarily be seen as a primary cultural good, one which, to borrow from another American, the philosopher John Rawls, is critical to the fulfilment of a person’s conception of a good life.” As Rawls (and many other scholars) have noted, human beings need access to a basic set of goods to be able to lead a dignified and full life. At a basic level these include access to food, shelter, and so on, but at a more abstract level, they also include intangible goods such as cultural and social membership. Communal participation in events such as popular sports constitute an important manner in which people establish meaning in their lives. Consequently, bodies that act as gatekeepers of access to cultural goods must be deemed to be performing public functions.

The access-to-basic-goods approach, I would suggest, ought to be the blueprint upon which the Supreme Court builds its private-bodies-public-functions approach. Arguably, we claim and enforce fundamental rights against the State primarily because of the power that it exercises over us, a power that gives it the ability to control access to the most basic human goods (such as life). Similarly, when non-State bodies wield and exercise such power (including power over cultural goods), then the too must be subjected to similar standards. Note that the kind of standards to which it would be subjected to would have to have a relevant link to the question of access (for instance, if a private body controlled the entire water supply of a community, we would impose standards of Article 15 non-discrimination upon it as far as distribution of water went; but would we also directly, and in the absence of a statute, impose the same standards upon its hiring policies?)

All this, of course, is independent of what the Supreme Court actually did, finally, which was to impose a whole new structure upon the BCCI through the Lodha Committee Report. I do not claim here that the access/public functions argument justifies such intervention (in fact, I do not think that it does). It is one thing to say that the BCCI is subject to public law or Part III standards, and quite another for an external authority to so fundamentally transform it. The debate on this second aspect will continue; on the first, however, the BCCI judgment provides us with an important platform upon which to further think through issues of public functions and public standards; and – arguably – it sets a precedent for applying Part III of the Constitution directly to private bodies performing public functions.

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Filed under Article 12: Meaning of "State", Judicial Review, Public Functions, Public goods

The Governor, the Assembly, and the Court: The Supreme Court’s Arunachal Decision (Guest Post)

(In this guest post, Jahnavi Sindhu decodes the recent Constitution Bench judgment on Arunachal Pradesh.)

Last Tuesday, in a landmark verdict [“Nabam Rebia”], the Supreme Court reinstated Mr. Nabam Tuki as the Chief Minister of Arunachal Pradesh by invalidating the actions of the State Governor that had precipitated a no-confidence vote against Tuki. The core constitutional question before the Court was about the scope of the Governor’s discretionary powers in a system of responsible government. Its judgment is a significant addition to the jurisprudence dealing with the constitutional relationship between the Government, the state legislatures, and the courts.

Facts and Verdict

Briefly, the facts: on 03.11.15, the Governor, on the advice of the Council of Ministers, issued an order summoning the 6th session of the Legislative Assembly of Arunachal Pradesh on 14.01.16. In the interim, however, factional politics raised its ugly head. A notice of resolution for removal of the Speaker of the house was moved on 19.11.15, with a copy to the Governor (coming on the heels of several Congress party meetings regarding dissident factions in the party). These meetings culminated in a petition for disqualification (on 07.12.15), under the Tenth Schedule of the Constitution, of 14 defecting MLAs of the Congress (including the Deputy Speaker).

Subsequent to this, the Governor took two actions that formed the basis of the challenge before the Court. These were:

  1. An Order dated 09.12.15 issued under Article 174(1) of the Constitution, “pre-poning” the Assembly session from 14.01.16 to 16.12.15, and citing the Governor’s constitutional obligation to ensure that the resolution of removal of speaker be considered expeditiously.
  1. A message dated 09.12.15 issued to the Legislative Assembly under Article 175(2) directing that the resolution for removal of speaker be taken up as the first item on the agenda with the Deputy Speaker presiding over the session. Interestingly, the Governor also ordered that “until the session is prorogued, no Presiding Officer shall alter the party composition in the House.”

In response, the State Cabinet issued a resolution on 14.12.15, echoing the opinion of the Advocate-General that the unilateral actions of the Governor were unconstitutional. On the expiry of the notice period under Schedule X, the Speaker went ahead with disqualification proceedings and passed an ex-parte disqualification order on 15.12.15 against the MLAs including the Deputy Speaker, thus altering the party composition in the House. On the same day, the Deputy Speaker set aside this order of disqualification citing, inter alia, the impropriety of the Speaker’s action in taking up disqualification proceedings while the resolution for his removal was slated for the next day. The other faction of the assembly went ahead with the pre-poned session ordered by the Governor on 16.12.15. These proceedings resulted in the removal of the speaker, a no-confidence motion against Nabam Tuki’s Government and a confidence vote in favour of a government led by Kahiko Pul. Though the Petitioners, (the Speaker and some members of the Congress) challenged all the aforementioned orders and proceedings (except the order of the Speaker), they focussed their submission on knocking off the first domino i.e. the unilateral intervention of the Governor in matters of the House.

The Court was unanimous in its ruling in favour of the Petitioner to quash the summons order and message as unconstitutional. The majority opinion of Justice Kehar, Justice Ghose and Justice Ramana (“the majority”) restored status quo ante as on 15.12.15. Justice Lokur, while generally agreeing with the majority, recorded separate reasons for his conclusions. Justice Misra recorded separate reasons on the interaction between Article 179(c) and the Tenth Schedule of the Constitution. However, this post will only focus on the first issue of the constitutional validity of the actions of the Governor, specifically, the reasoning of the majority.

Contentions

In assailing the actions of the Governor, the Petitioners relied on the general scheme of responsible government envisaged in the Constitution that dictates governance be carried out by those who are responsible to the people, i.e. the Council of Ministers collectively responsible to the Legislature. The Governor is a nominated official who performs functions only on the aid and advice of the council of ministers. The Constitution has carefully delineated certain functions and powers which she can exercise in her discretion, but this power cannot be conflated with a general discretionary power to summon the Assembly under Article 174, and to direct the manner of proceedings in the house through messages under Article 175.

The respondents, on the other hand, relied on the broad ambit of Articles 163(1) and (2), which state that:

(1) There shall be a council of Ministers with the chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion

       (2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.

The Respondents argued that the Governor, unlike the President, is vested with discretionary powers under the constitution to avert perils to democracy of the kind that had arisen in this case. They also took strength from past instances where the Governor’s power to independently summon and dissolve the Assembly under Article 174 was considered valid. The mainstay of the Respondents’ argument was Article 163(2), which specifically vests the final determination of whether a matter falls within the discretion of the Governor with the Governor herself, and therefore bars judicial review of this aspect. The Court, therefore, was not entitled to look into the legality of the two impugned orders at all.

The Constitutional Background

Now, there can be no quarrel with the proposition that judicial review, a component of the basic structure of the Constitution, serves as a form of a check and balance on other organs of the Government and cannot be proscribed by any statute or amendment to the Constitution. However, Article 163 is distinctive for it is an original provision of the Constitution that appears to bar judicial review. The Court too, having recorded this contention of the Respondents, was conscious of the fact that the doctrine of basic structure would not apply to an original provision of the constitution to invalidate this bar on judicial review. Thus, the Court had two options: either to hold that the nature of powers exercised by the Governor in this case did not fall within Article 163(1), or to hold that Article 163(2) cannot be interpreted to mean a complete bar on judicial review. Unfortunately, it is not clear as to which of these lines the Majority tried to toe in their decision.

To answer this question satisfactorily, we need to begin at the beginning. The nature of the office of the Governor was fervently debated in the Constituent Assembly, and the relevant provisions underwent significant changes between 1947 and 1949. Initially, the Governor was intended to be an elected office. On May 31, 1949, the Assembly adopted an amendment changing the mode of selection of the Governor to a mere nomination by the President. Dr. Ambedkar justified this move explaining that, “according to the principles of the new Constitution he [the Governor] is required to follow the advice of his Ministry in all matters.”

The very next day, Article 163 (Article 143 as it then was) came up for discussion. It encountered great opposition on the ground that it gave the governor vast discretionary powers. Dr. Ambedkar once again cautioned, “The clause is a very limited clause; it says: “except in so far as he is by or under this Constitution.” Therefore, Article 143 will have to be read in conjunction with such other articles which specifically reserve the power to the Governor. It is not a general clause giving the Governor power to disregard the advice of his ministers in any matter in which he finds he ought to disregard.” Thus, it is evident that Article 163 was not intended to be a general source of discretionary power of the Governor but had to be read with those Articles in the Constitution that grant express discretion to the Governor in respect of a function or power – an enabling provision, akin to Article 355.

Now, at that time, Article 174 (i.e., the provision that grants the power to the Governor to summon the House, and was invoked by the Governor in this case) was one such provision that specifically used the phrase the phrase “Governor, in his discretion.” However, the provision was amended on June 2nd 1949 to delete “in his discretion”, on the ground that the provision to this extent was “inconsistent with the scheme of a constitutional governor.” Similarly, the phrase “in his discretion” was deleted from Article 164 and Article 200 of the Constitution, and later, on August 3rd 1949, from Article 188, which gave discretion to the Governor to temporarily take up the administration of the State in the event of a constitutional breakdown in the State. Thus it is clear, that eventually, the Constituent Assembly was of the opinion that the Governor was not supposed to have any discretionary powers as under Article 163(1) in respect of these provisions, specifically Article 174.

Over time, however, the judiciary read in “discretionary powers” into these provisions to specify certain situations where the Governor would be obliged to disregard the advice of the Council of Ministers or act on his own if the advice is not available. This judicial determination took root in Samsher Singh where the majority ruled that the Governor must only act on advice of the council of ministers. However, in paras 54 and 55, the Court adverted to Articles 200 and Article 356 to hold that under these provisions the Governor would be entitled to disregard the advice of the council of ministers. The concurring opinion of Justice Krishna Iyer and Justice Bhagwati put forth a longer list that included dismissal of a government that lost its majority, and the dissolution of the house if a government has lost its majority under Article 174. Over time, this list of “exceptional powers” has been expanded by cases and advisory reports such as the Sarkaria Commission and Justice Punchii Commission to include situations where the advice of the Council of ministers is not available, or situations dictated by propriety and constitutional necessity. Specifically Article 174 has been included in this list to the extent that the Governor can summon the assembly for a floor test when the Chief Minister who seems to have lost majority refuses to do so, or dissolve the assembly when a Government loses majority.

Therefore, the key question that needs to be posed at this stage, which has not been definitively considered or answered by the Supreme Court in any case till date, is whether these implied powers (read into the Articles by the Supreme Court) of the Governor would be covered under Article 163(1) so as to be hit by the bar upon judicial review under Article 163(2)?

The Majority Opinion and its Discontents

Interestingly – and almost paradoxically – the Majority does seem to think so. In para 143, where the majority summarises its conclusions in six points, the first point states the “measure of discretionary power of the Governor, is limited to the scope postulated therefor, under Article 163(1).” Thereafter, apart from express provisions of the constitution that grant the Governor such discretion, in points three and four, the majority holds that the Governor “can additionally discharge functions in his own discretion, where such intent emerges from a legitimate interpretation of the concerned provision, and the same cannot be construed otherwise” and “in situations where this Court has declared, that the Governor should exercise the particular function at his own and without any aid or advice, because of the impermissibility of the other alternative, by reason of conflict of interest.” A reading of Article 163 would establish that once a Governor exercises discretion covered under Article 163(1), the bar to judicial review under Article 163(2) would be attracted. Therefore, the Majority holds that “the finality expressed in Article 163(2) would apply to functions exercised by the Governor in his own discretion, as are permissible within the framework of Article 163(1), and additionally, in situations where the clear intent underlying a constitutional provision, so requires i.e., where the exercise of such power on the aid and advice, would run contrary to the constitutional scheme, or would be contradictory in terms.”

Thus, irrespective of the contentions of the parties, once the Court concedes that a particular power is within the discretion of the Governor under Article 163(1) the bar of judicial review under Article 163(2) is attracted. By the Majority’s own admission in para 151, Article 174 is a provision that encompasses situations where the Governor would have to exercise discretion as discussed above, thus perhaps attracting the bar of judicial review under Article 163(2) if the Governor chooses to act in his discretion under the provision.

Perhaps, this can be countered by arguing that the majority meant that the Governor has implied discretion in respect of certain situations as opposed to provisions. For instance, the Governor will have the discretion to summon the House for a floor test and not a general discretion to summon (which is what happened in the present case), such that only the former falls within “discretion” under Article 163(1). This strained interpretation of Article 163 is difficult to accept. The rationale of Article 163 was to specify those provisions or powers which the Governor was to exercise in her discretion and to leave to her to decide the occasion and manner of the exercise of discretion. Thus, the Court having characterised the power to summon as a discretionary power under Article 163(1), could not provide a satisfactory reason for overcoming the bar of judicial review under Article 163(2). There is an attempt to further do so in point five of the majority’s conclusions where they hold, “any discretion exercised beyond the Governor’s jurisdictional authority, would certainly be subject to judicial review.” Unfortunately, this solitary line on why Article 163(2) does not serve as a bar on judicial review only provides cold comfort.

‘Discretion’ and the Concurring Opinion

It is clear that the problem is rooted in the characterisation of these implied powers as ‘discretion’, which attracts the terms Article 163(1). And this, in my view, is where the flaw lies in the opinion of the Majority, which draws it into its dilemma. Contra the Majority’s belief, discretion under Article 163 was intended to have a very specific connotation. As admitted in the Constituent Assembly, the provision was copied from Section 50 of the Government of India Act, 1935. The provisions are almost in pari materia, with the exception that Section 50 of the Government of India Act refers to both ‘discretion’ and ‘individual judgment’ of the Governor. From the debates on Section 50 it can be garnered that both terms were intended to have distinct meaings- ‘discretion’ connoted areas of governance where the governor was supposed to act without the advice of council of ministers, areas which were reserved for the Governor. On the other hand, the exercise of ‘individual judgment’ of the Governor would arise in situations wherein the Governor was normally supposed to act on the aid and advice of the Council of Ministers but circumstances existed compelling the Governor to disregard or dissent from the advice of the Council of Ministers. This distinction has been recognised by Justice Lokur in his separate opinion. In para 125, he holds that there are three exceptions to the rule that the Governor is bound by the advice of the Council of Ministers: first, discretion conferred by the Constitution (i.e. as per express provisions in the Constitution); second, discretion conferred under the Constitution (i.e. from rules made under the Constitution such as the Rules of Procedure under Article 208) and third, individual judgment in instances specified in the constitution. Justice Lokur explains that B.N. Rau was conscious of the distinction between discretion and individual judgment of the Governor while inserting Article 163 in the first draft. Further, that this distinction continues to be maintained under the Constitution under Article 371-A and Article 371-H and has found mention in the Sarkaria Commission Report. On this basis, in para 20, Justice Lokur holds that Article 163(2) cannot be all pervasive and will only apply in respect of discretion exercised in terms of Article 163(1) (that is, discretion specified by the Constitution).

Under Article 174, the power to summon is ordinarily supposed to be exercised as per the aid and advice of the council of ministers the Governor can disregard this advice only in limited circumstances. Therefore, it is submitted that the power of the Governor in this respect falls within his individual judgment and not his discretion. Therefore, it also falls outside the scope of Article 163(1), and is not hit by the bar under Article 163(2). Indeed, to hold that the implied power to summon the assembly in certain situations would amount to exercise of ‘discretion’ by the Governor would also go against the express intention of the Constituent Assembly which specifically removed the phrase ‘in his discretion’ from Article 174.

Their reasoning notwithstanding, the majority and concurring opinion appear to converge on the conclusion that these implied powers or functions when exercised by the Governor would be subject to judicial review of the same standard afforded to other constitutional functionaries as held in the cases of BP Singhal v. Union of India and Kihoto Hollohan v. Zachilhu. On facts, the majority notes that the decision of the Governor can be faulted on the ground of constitutional impropriety since the Governor has no formal role to play in the removal of the Speaker or disputes between the political parties. The Majority seems to limit the formal role of the government to if and when the situation escalates to a point where the Government has seemingly lost majority to summon a floor test. However, in this case it is evident that the Governor’s actions were pre-mature for he failed to pause to engage with the Council of Ministers to discuss any possibility of pre-poning that the Chief Minister could refuse in the first place. Justice Lokur’s opinion further supplements the findings on constitutional impropriety by noting that the Governor in fact ignored the resolution of the Cabinet denouncing the Governor’s actions. This demonstrates that the Court was conscious that it was entering a seemingly political arena only after all political negotiations between the constitutional functionaries had failed to yield an amicable result.

In all, the decision of the Supreme Court in Nabam Rebia is a welcome development in the jurisprudence of the Court in adjudicating scenarios that warrant a balance between exigencies of governance and the constitution.

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Carving out an exception to the basic structure?: The Supreme Court’s judgment on Judicial Review and the Armed Forces Tribunal

On March 11, the Supreme Court held in Union of India vs Major General Shri Kant Sharma that Sections 30 and 31 of the Armed Forces Tribunal Act effectively excluded the jurisdiction of the High Courts to hear petitions challenging orders of the Armed Forces Tribunal. This judgment is worth a close scrutiny, because while it seems to carve out an exception to the well-accepted rule that judicial review under Articles 226 and 227 of the Constitution is part of the basic structure, the Supreme Court expressly denied that to be the basis of its decision.

The Armed Forces Tribunal Act is a law dealing with the adjudication of service-related disputes for members of the Armed Forces, as well as court martials, and matters incident thereto. The Act provides for the establishment of an Armed Forces Tribunal to adjudicate service matters with respect to the armed forces. Clearly, its functions are similar to that of the Central Administrative Tribunal (its composition is not, but since that aspect is not addressed by the judgment, we will not discuss it here).

The crucial sections at issue were Sections 30 and 31, which provided for appeals from the orders of the Tribunal. Section 30 states:

“Subject to the provisions of section 31, an appeal shall lie to the Supreme Court against the final decision or order of the Tribunal (other than an order passed under section 19).”

Section 31 likewise states:

“An appeal to the Supreme Court shall lie with the leave of the Tribunal; and such leave shall not be granted unless it is certified by the Tribunal that a point of law of general public importance is involved in the decision, or it appears to the Supreme Court that the point is one which ought to be considered by that Court.”

Sections 30 and 31, therefore, lay down the procedure for appealing an order of the Armed Forces Tribunal to the Supreme Court. Parallel to this, Section 33 excludes the jurisdiction of civil courts, and Section 34 provides the transfer of all pending cases (including cases in the High Courts) to the Tribunal, after the commencement of the Tribunal.

The question before the Court was whether Sections 30 and 31 barred the jurisdiction of the High Courts from hearing petitions (under 226/227) against the orders of the Armed Forces Tribunal. The Court began by pointing out certain specific provisions of the Constitution. Under Article 33 of the Constitution, Parliament may modify the operation of Part III to the armed forces. Article 227(4) of the Constitution, part of the provision dealing with the superintendence of the High Courts, provides that “nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.” Article 136(2), part of the provision dealing with special leave to appeal to the Supreme Court, provides that “nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.”

At this point, the following argument seems to be there to be made: admittedly, judicial review under Articles 226 and 227, and under Article 32, is part of the basic structure of the Constitution. But the Constitution itself, through various provisions, carves out an exception in the cases of the armed forces, where the scope of judicial review is to be regulated by statute (Articles 227(4) and 136(2)). Consequently, Parliament may, by law, bar the jurisdiction of the High Court to hear appeals from orders passed by the Armed Forces Tribunal.

Such an argument is open to objection. It also raises the fascinating question of whether an original constitutional provision can be unconstitutional because it violates the basic structure (if judicial review is part of the basic structure, than how can 227(4) and 136(2) be consistent with that?)). The Court, however, did not make this argument at all. Instead, it first affirmed the proposition that the Armed Forces Tribunal Act cannot take away the jurisdiction of the High Court under Articles 226 and 227 (paragraph 25).

The Court then cited a number of precedents for the proposition that although the jurisdiction of the High Court could not be taken away by any statute, in deciding whether or not to exercise its jurisdiction, the High Court must take into account the legislative intention behind the statute in question. Citing the prior case of Nivedita Sharma vs Cellular Operators Association of India, the Court observed that “when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.” (paragraph 25)

But what was the statutory forum in the present case? Here is where the judgment becomes somewhat murky. Paragraph 33 of the judgment is preceded by a heading called “Statutory remedy“. Here, the Court cited the case Union of India vs Brigadier P.S. Singh Gill, and extracted a lengthy set of paragraph that detailed the appeals procedure under Sections 30 and 31 of the Armed Forces Tribunal Act. But Sections 30 and 31, as we saw, provide for an appeal to the Supreme Court. Surely the provision of an appeal to the Supreme Court cannot be the “alternative statutory forum” to the jurisdiction of the High Courts! That would fly in the fact of the Chandra Kumar judgment, the entire history of the Tribunals Cases and, indeed, the fundamental proposition that Articles 226/227 are part of the basic structure.

But then what is the alternative statutory forum? The only possible answer has to be: the Armed Forces Tribunal itself. This, indeed, is what the Court implied earlier in the judgment. In paragraph 14, it stated that: “it is clear from the scheme of the Act that jurisdiction of the Tribunal constituted under the Armed Forces Tribunal Act is in substitution of the jurisdiction of Civil Court and the High Court.

But there is a serious problem here. And that is the L. Chandra Kumar judgment. In that case, as is well-known, a seven-judge bench of the Supreme Court held that Tribunals, as they were constituted an functioning, could act complementary to the High Courts, but not as substitutes. This was because:

“The constitutional safeguards which ensure the independence of the Judges of the superior judiciary, are not available to the Judges of the subordinate judiciary or to those who man Tribunals created by ordinary legislations. Consequently, Judges of the latter category can never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation. We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Articles 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded.”

This has been a constant position of law. In its recent judgment, striking down the National Tax Tribunals, the Supreme Court based its entire analysis on a detailed demonstration of how the Tribunals lacked the essential qualities of the Courts (judicial independence etc.), that would allow them to serve as effective substitutes.

The Court’s judgment, therefore, is question-begging. It takes the existence of the Armed Forces Tribunal to be evidence of an “alternative statutory forum” that is a “substitute” for the High Courts. On that basis, it holds that while the jurisdiction of the High Courts cannot be ousted, it should not exercise its jurisdiction because of the existence of the alternative forum! As I have endeavoured to show, in my opinion, both steps of the argument are ill-founded, and in conflict with established precedent. Furthermore, why wouldn’t exactly the same reasoning apply to the Central Administrative Tribunal? What was needed in this case, to complete the argument was a detailed analysis showing that the Armed Forces Tribunal, in its composition, structure and powers and functions, was an effective substitute for the High Court. This, however, was not done.

The Court buttressed its judgment by pointing to a possible “anomalous situation” that would be created by permitting the High Courts to exercise their jurisdiction. It observed, in para 37:

“If any person aggrieved by the order of the Tribunal, moves before the High Court under Article 226 and the High Court entertains the petition and passes a judgment or order, the person who may be aggrieved against both the orders passed by the Armed Forces Tribunal and the High Court, cannot challenge both the orders in one joint appeal. The aggrieved person may file leave to appeal under Article 136 of the Constitution against the judgment passed by the High Court but in view of the bar of jurisdiction by clause (2) of Article 136, this Court cannot entertain appeal against the order of the Armed Forces Tribunal. Once, the High Court entertains a petition under Article 226 of the Constitution against the order of Armed Forces Tribunal and decides the matter, the person who thus approached the High Court, will also be precluded from filing an appeal under Section 30 with leave to appeal under Section 31 of the Act against the order of the Armed Forces Tribunal as he cannot challenge the order passed by the High Court under Article 226 of the Constitution under Section 30 read with Section 31 of the Act. Thereby, there is a chance of anomalous situation.”

But surely, if the Armed Forces Tribunal passes an order, which is assailed to the High Court under Article 226, and either party is aggrieved by the High Court’s decision, then the petition to the Supreme Court will be against the High Court’s order, and not the Tribunal’s? Why would there be a need to appeal the order of the Tribunal before the Supreme Court, when the most proximate decision is that of the High Court?

In any event, whatever the merits of the anomalous situations, the other objections to the judgment remain. The Supreme Court has deprived members of the armed forces an important constitutional remedy against the violation of their rights. It’s justification for doing so, I would suggest with respect, is unconvincing.

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Coalgate and Judicial Review of Distribution of Natural Resources

In the previous two posts, Manish has exhaustively analysed the Supreme Court’s verdict in M.L. Sharma vs Principal Secretary [“Coalgate”]. In the broader scheme of things, the judgment makes an important contribution to the Supreme Court’s evolving jurisprudence with respect to the judicial review of distribution of natural resources. Recall that in the First Spectrum Case, the Supreme Court had taken a highly interventionist stance with respect to the 2G Spectrum Scam, not only quashing the allocation of spectrum, but also – in effect – imposing a public auction as the only legitimate method for governmental distribution of natural resources. Recall also that in the Second Spectrum Case (a Presidential reference), the Supreme Court backtracked, limiting the holding of the First Spectrum Case (public auction required) to its specific facts (distribution of spectrum, not all natural resources), and also observing that while an auction was, presumably, the only legitimate method if the objective of distribution was to raise maximal revenue, it was also open to the government to set goals other than revenue maximisation, consistent with the common good. In such cases, clearly, an auction might not be the best method of distribution.

In Coalgate, the Supreme Court affirms the view of the Constitution Bench in the Second Spectrum Case. It accepts the government’s contentions that the requirements of the industry at the time of liberalisation provided strong reasons (in 1993) not to distribute coal blocks via auction. Nonetheless, it holds the allocation itself to be illegal. It does so by examining the minutes of all 36 Screening Committee Meetings (where the allocation decisions were taken), and finds that there were no relevant guidelines to determine inter-se merit and priority between applicant companies, and that whatever guidelines were there, were constantly changed. It also finds that there was no discussion about inter-se merit before allocations were awarded. On these grounds, it finds an Article 14 (arbitrariness) violation in the State action.

I’ve written in detail about the place of Coalgate within the broader framework of the Supreme Court’s natural resources jurisprudence elsewhere (see here and here). In this post, I want to focus on something specific: the standard of review that the Court does not directly expound, but which implicitly emerges out of its analysis.

The primary reason why the Court holds the allocations illegal – as mentioned just above – is because of the absence of guidelines that would help the Screening Committee decide which applicants would succeed. In the first set of meetings, it notes, there are no guidelines at all. When some kind of guidelines are framed, they make no mention of determining inter-se merit. Notice that there are three things that the Supreme Court does not do (or rather, it is spared doing, because of the absence of guidelines): examining the sufficiency of the guidelines for actually determining inter-se merit, examining the government’s factual assessment of inter-se merit within the framework of the guidelines, and examining the outcomes of the allocations.

All this sounds very familiar. Indeed, it is analogous to the Court’s jurisprudence under Article 356 (in the emergency powers chapter) of the Constitution. Article 356 allows for President’s Rule if “on receipt of report from the Governor of the State or otherwise, [the President] satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with he provisions of [the] Constitution.” In S.R. Bommai vs Union of India, the Supreme Court held:

“The President’s satisfaction [under Article 356] has to be based on objective material. That material may be available in the report sent to him by the Governor or otherwise or both from the report and other sources. Further, the objective material so available must indicate that the government of the State cannot be carried on in accordance with the provisions of the Constitution. Thus the existence of the objective material showing that the government of the State cannot be carried on in accordance with the provisions of the Constitution is a condition precedent before the President issues the proclamation. Once such material is shown to exist, the satisfaction of the President based on the material is not open to question. However, if there is no such objective material before the President, or the material before him cannot reasonably suggest that the government of the State cannot be carried on in accordance with the provisions of the Constitution, the proclamation issued is open to challenge.”

As the Law Commission points outS.R. Bommai limits judicial review of an Article 356 proclamation to verifying whether there existed material that was relevant to a consideration that the government of a state cannot be carried on in accordance with the Constitution. What the Court cannot do is substitute its own opinion for whether a state government could or could not be carried on in accordance with the Constitution, and nor can it impugn the process by which the President (i.e., in effect, the Council of Ministers) came to that conclusion.

We can now see the similarities. The Court held the first batch of allocations (pursuant to the first twenty-one meetings) illegal because of the absence of any guidelines for determining how to select applicants on the basis of merit. It held the next batch illegal because even the guidelines that were framed were of no aid in determining the merit. Thus, the first batch related to the existence of objective 356 material, and the second batch related to its relevance – which, together, constitute the limits of judicial review under 356, and beyond which the Court, in Coalgate, did not go.

What will be particularly interesting in the future will be to see how far the Court takes its 356-analogous line of thought. Coalgate was a particularly easy case because of the absence of guidelines, or their prima facie irrelevance. What will happen if, for instance, the government does frame guidelines, which are at least prima facie relevant to determining merit – but its allocations are then challenged on the grounds that it has incorrectly – or unreasonably – applied its guidelines to the actual question of allocation, or misconstrued the objective requirements of the guidelines? Will the Court then adopt the Article 356 framework fully, and defer to the government? Or will it – keeping in mind Article 39(b) – adopt a more interventionist framework when it comes to questions of distributing natural resources to private entities? This is a fascinating question, and M.L. Sharma leaves it open – perhaps to be settled by another Court, adjudicating another scam.

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