Sanjay Singh’s Bail: Judicial Evasion by Non-Order?

On 2nd April, the Supreme Court granted bail to Aam Aadmi Party [“AAP”] MP Sanjay Singh, in what has come to be known as the “liquor scam” case. At the time of writing, Singh had spent around six months in jail.

While the order is undoubtedly significant in that this is the first time that one of the accused in the “liquor scam” case has received bail, the manner in which it has been passed raises a number of crucial issues pertaining to the role and function of the Supreme Court as a court of law. Let us set out the order:

Mr. S.V. Raju, learned Additional Solicitor General appearing for the respondent – Directorate of Enforcement was asked in the morning session to obtain instructions. He states that the respondent – Directorate has no objection in case the appellant – Sanjay Singh is released on bail during the pendency of the proceedings arising out of ECIR no. HIU-II/14/2022 dated 22.08.2022 instituted in respect of offences under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002.

We must record that the concession has been made on behalf of the respondent – Directorate before commencement of arguments on their side. In view of the statement made, we allow the present appeal
and direct that the appellant – Sanjay Singh will be released on bail … []

We clarify that the concession given in the Court today would not be treated as a precedent. We also clarify that we have not made any comments on the merits of the case.

There are three issues with this Order – better called a “non-Order” in my view – that I discuss below.

First, a perusal of the oral arguments reveals that in the morning session (referred to in the Order), the Court made it clear in its remarks that it believed there was no case to be made out against Sanjay Singh. The Court itself encouraged the lawyers for Enforcement Directorate to take instructions from the Agency, and noted that if it came to the examining the case, it would have to pass certain observations about Section 45 of the PMLA (presumably to the detriment of the ED’s powers). As a result, in the afternoon session, the ED’s lawyers came back and told the Court that they had no objection to Sanjay Singh being released on bail. The Order, thus, was passed on the basis of a concession by the State.

However, if you pause to think about this for a moment, there is something bizarre about a Court actively seeking the State’s cooperation so as to avoid ruling against the State. This is no part of the functions of a Court of law. Nor is this the kind of inter-personal dispute where a Court sometimes acts as a mediator. This is a criminal case, where an individual has spent six months in jail, and where multiple courts below have rejected his bail application (needless to say, there was no question of the ED making any concessions as long as it was winning before the lower courts). In other words, it is exactly the kind of case where it is incumbent upon the Court to hold the State to legal and constitutional standards, and to make it abundantly clear – through written, enforceable judicial orders – if the State is failing in its obligations.

Secondly, the concession order has a downstream effect. Recall that the “liquor scam” has seen multiple political leaders behind bars, including the Chief Minister and Deputy Chief Minister of Delhi. While individual cases are, of course, different, there is a common substratum of facts that underlies those cases. While the Court’s reasoned order granting bail to Sanjay Singh need not necessarily have affected those other cases, it might well have done so. The point is, however, that we shall never know, as the Court evaded passing a reasoned order. The result of this is that the other accused in the “liquor scam” case are deprived of even the opportunity of using Sanjay Singh’s bail order in their own, respective future applications for bail. This – for no justifiable reason – tips the balance in favour of the State, and against the individual. And this has become an unfortunate habit of late: recall how, in 2021, the Supreme Court injuncted lower courts from treating the Delhi High Court’s Asif Iqbal Tanha bail order as precedent, for absolutely no reason. The asymmetry here is glaring: when bail applications are rejected, the Supreme Court writes detailed orders explaining why the accused are not entitled to bail (going so far as to observe that “bail is the exception, jail is the rule”), and you can bet that the prosecuting agencies take full advantage of those reasoned orders! But when the boot is on the other foot, we get concession orders or “not to be treated as precedent” remarks, where – at best – one individual might be released from jail, but there is no legal consequence of note that follows.

This brings us to the last point, which is the Supreme Court’s statement that it is not commenting on the merits of the case. This may be a fair comment in general bail cases, but – as we have discussed previously on this blog – when it comes to laws such as UAPA or the PMLA, which encode the “twin test” for bail, this is disingenuous. The reason for this is that the “twin test” statutorily brings in merits considerations into the stage of bail. When the “twin test” says that an accused shall not be released on bail unless “there are reasonable grounds for believing that he is not guilty of such offense,” this is, by definition, merits hearing bundled up into a bail hearing (see the previous discussion, in the context of the UAPA, here). Indeed, the very asymmetry and injustice of the “twin test” lies in the fact that it forces the defence into a merits hearing without the tools normally available to the defence in a criminal case (leading evidence, cross-examination etc). And it is because of that very reason that UAPA/PMLA bails are overwhelmingly rejected, and individuals have to spend months and years in jail without trial.

But this, in turn, means that if an accused individual runs the gauntlet and succeeds in getting bail even under the twin test, he or she should be entitled to benefit from that during the merits phase of the trial as well: what is sauce for the goose is sauce for the gander. Indeed, as I have noted above, it is actually impossible for a “twin test” bail to be granted without an examination of the merits. The concession order, therefore, additionally deprives Sanjay Singh of the very tangible and very real benefits of a reasoned bail order. Again, one would have thought that if you have spent six months in jail without trial, this would be the least you are entitled to from a court of law.

Over the years, it has become increasingly clear that “special laws” such as the UAPA and the PMLA, with their twin test for bail, overwhelmingly stack the deck in favour of the State, and against the individual. In such a context, with the scope of scrutiny of State action already so limited, “concession orders” like the one in Sanjay Singh are disappointing. Arguably, they constitute judicial evasion by another name: an evasion of holding the State to account for its actions that have far-reaching consequences for individual liberty.

The Unexamined Law: On the Supreme Court’s Stay Order in the Election Commissioners Case

In a previous post (“The Mysterious Disappearance of the Stay Hearing“), I had pointed to the Supreme Court’s refusal to hold stay hearings in cases involving time-sensitive constitutional challenges. Perhaps the only thing worse than a refusal to substantively decide a stay application is a judicial order that purports to decide it, but on scrutiny, turns out to be a caricature, or a parody, of legal reasoning. This is the Supreme Court’s order of 22nd March, that dismisses the applications for staying the Election Commissioners Act (that we have discussed extensively on this blog).

The striking thing about the Supreme Court’s ten-page order – authored by Khanna and Datta JJ – is its refusal to engage with the core of the constitutional challenge before it – indeed, its refusal to even advert to it. Recall that the challenge was, in effect, that by replacing the Chief Justice of India in the selection committee for the Election Commissioners (the “interim arrangement” set out in the Anoop Baranwal judgment) with a cabinet minister nominated by the Prime Minister, the impugned legislation impermissibly modified, or overturned, the Court’s judgment. In paragraph 9 of its order, the Court purports to deal with this argument by stating that the committee constituted in Anoop Baranwal (the CJI, the PM, and the LoP) was a “pro-tem measure.” This is correct on its own terms, but also, it is a highly selective reading of Anoop Baranwal. As noted in this blog’s analysis of Anoop Baranwal, the interim committee constituted by the Court did not pop out of thin air. The basis of Anoop Baranwal was that Article 324 of the Constitution encoded a constitutional expectation that the manner of appointment of the Election Commission would ensure institutional independence from the executive. This is repeated multiple times in Anoop Baranwal, most specifically in paragraphs 32-33, and then even more categorically in paragraph 215:

We have set down the legislative history of Article 324, which includes reference to what transpired, which, in turn, includes the views formed by the members of Sub-Committees, and Members of the Constituent Assembly. They unerringly point to one conclusion. The power of appointment of the Members of the Election Commission, which was charged with the highest duties and with nearly infinite powers, and what is more, to hold elections, not only to the Central Legislature but to all the State Legislatures, was not to be lodged exclusively with the Executive. It is, accordingly that the words ‘subject to any law to be made by Parliament’ were, undoubtedly, incorporated. 

The “pro-tem measure” that the Supreme Court’s order refers to – as is therefore obvious from a very basic reading of Anoop Baranwal – was pro-tem because Parliament had failed to enact a law consistent with its obligations under Article 324; these obligations were – to repeat – to ensure that, under the legislation, the Election Commission would be institutionally independent, and not subject to executive dominance. The “pro-tem measure”, thus, was not “pro-tem until parliament passes any law that it pleases”, but “pro-tem until parliament passes a law consistent with maintaining EC independence from the executive.”

The real question before the Court in the stay application, therefore, was whether the impugned law – on a prima facie reading – violated the institutional independence of the EC. This is a question which the Court entirely evades answering, for the very good reason that it has no answer: under the impugned law, the members of the EC are, in effect, appointed by the executive. Quite apart from the fact that this would be impossible to reconcile with institutional independence, it would also by hypocritical, given that the Court, in considering the question of its own independence, has held that executive dominance in appointments was inconsistent with institutional independence (the NJAC judgment). No wonder, then, that the stay order passes delicately over the real question that it had to answer, and instead answers a question that nobody has asked.

To mask the absence of reasoning, in paragraph 10, the Court then recites well-worn principles of judicial deference when considering stay of legislation, but – unsurprisingly – does not apply those principles to the case before it, and does not explain how they apply. Remarkably, however, the order then gets even worse. In paragraph 11, the Court states that “any interjection or stay by this Court will be highly inappropriate and improper as it would disturb the 18th General Election, which has been scheduled and is now fixed to take place from 19.04.2024 till 1.06.2024.” On a bare reading of this paragraph, one would think that the Petitioners had only shown up to Court the day before; however, as the order sheet demonstrates, the case was first called for hearing on 12th January, 2024, and posted to April 2024 for hearing. One would be hard-pressed to think of a more self-serving piece of judicial reasoning: the Court itself schedules a stay hearing more than two months after the case is filed, and then uses its own delay as a ground to deny stay, because it is now too close to the general elections. One is reminded of the Chief Justice Ranjan Gogoi’s infamous order declining stay of the electoral bonds scheme ahead of the 2019 General Elections, on exactly the same grounds – and after the Supreme Court had, itself, refused to consider the issue for two years. Readers of this blog will, of course, be well aware of what finally happened to the electoral bonds scheme, and consequently, how much damage the Court’s six-year delay in considering the issue caused.

Quite apart from the self-serving nature of this reasoning, the Court never explains why the administrative difficulties caused by a stay outweigh the potential “irreparable injury” caused by an election conducted by an Election Commission where two out of three Commissioners have been unconstitutionally appointed: indeed, one would imagine that when placed in the balance, electoral integrity would outweigh administrative inconvenience (for which, again, no empirical evidence is actually provided). However, there is no reasoning as to why the administrative concern outweighs the constitutional concern, other than a statement of simple judicial fiat.

To sprinkle salt on the (constitutional) wound, the Court then records numerous procedural issues with the selection, including lack of information provided to one of the Committee members (the LoP) (paragraph 14). Having said this, it then goes on to note that “in spite of the said shortcoming, we do not deem it appropriate … to pass any interim order or directions.” One wonders why, if the Court is not minded to pass any orders, it felt the need to make comments on the procedure: it behooves a Constitutional Court to decide the legal questions before it, and not to engage in moral sermons which are not attended by any legal consequences. Instead, the Court finishes with a classic exposition of its unique brand of “hope and trust jurisprudence”, noting that “the assumption is that they [the election commissioners] shall adhere to constitutional role and propriety in their functioning.” No justification is provided for this assumption, but there is – of course – the obligatory quote from Dr. Ambedkar that follows (paragraph 15).

Socrates was said to have observed at his trial that the unexamined life is not worth living. For the Supreme Court, however, it seems that the unexamined law is certainly worth upholding. Its order on the Election Commissioners stands as a stark example of that aphorism.

Guest Post: The Supreme Court’s Article 370 Judgment – V: On the Extinction of Statehood

[This is a guest post by Kieran Correia. Following previous posts on the President’s power to abrogate Article 370, and the scope of Article 356, this piece discusses the Court’s non-decision on the conversion of the state of Jammu and Kashmir into two union territories.]

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Article 370, to Sheikh Abdullah, was a repository of the particularity of Kashmiri autonomy, of ambitions to protect their distinct ethnolinguistic and religious identities and to embark on large-scale land reform. As he remarked in the Jammu and Kashmir Constituent Assembly, on 25 March 1952, there was no doubt that there was “no other State which enjoy[ed] similar constitutional status.” The premise of this, however, was full-fledged statehood – the promise that Jammu and Kashmir would be an equal part of the Union with a distinct status to respond to its demands.

The Union, after decades of chipping away at Jammu and Kashmir’s distinct status, eventually extended the entire Constitution to Jammu and Kashmir. The constitutional saga was not to end there, however. The Jammu and Kashmir Reorganisation Bill 2019 was introduced on the same day, carving out two Union Territories (UTs) – Jammu and Kashmir, and Ladakh – from the existing State. The idea of “no other State” was buried; now, it appears, Parliament wanted no state at all.

The Reorganisation Act, it bears no reminder, was unprecedented in Indian constitutional history. At no time, with any of the multiple Reorganisation Acts that have been passed in our history, has Parliament demoted a state – in its entirety – to a UT, or UTs in this case. In my third and final post on In Re: Article 370, I attempt to dissect the Court’s treatment of Parliament’s exercise of power under article 3.

Interpretive evasion and the Executive(’s) Court

Petitioners impugned the Reorganisation Act on the grounds that it was ultra vires the Constitution, as the power of degrading the status of a state to a union territory is not provided to Parliament or, at least, not provided to Parliament in article 3. Petitioners conceded that in the process of redrawing state lines, a state may be extinguished: take, for example, the State of Bombay being reorganized into the States of Maharashtra and Gujarat. However, what is distinct in the reorganization of the State of Jammu and Kashmir is that the status of the state as a whole was downgraded, and its statehood extinguished.

Chandrachud CJ agreed with the distinction between “extinguishing a State and extinguishing the character of a constituent unit as a State” (para 499) (emphasis in original). The latter is when a state is “converted into a Union territory in full, with no part of it retaining statehood,” a scenario clearly different from, for example, the reorganization of the State of Bombay.

However, in a bizarre move, the Court chose to abdicate its responsibility of pronouncing on the issue entirely, invoking a submission from the Solicitor General that “statehood will be restored to Jammu and Kashmir and that its status as a Union territory is temporary” (para 503). This is – with due respect – absurd for a constitutional court. The judicial function, in its most conservative sense, is to frame issues, hear both sides, and subsequently pronounce on those issues, with adequate reasons. Relying on assurances from one side – assurances made in the air, with no fixed timeline or enforcing mechanism – is out of the ordinary.

Of course, this is far from new for the Court. This judgement is of a piece with a subtle, but noticeable, shift in the Court, as it resembles, more and more, an “Executive(’s) Court.” Sealed cover jurisprudence (fortunately no longer in vogue), judicial evasion, judicial vagueness, and so on marked the culmination of a scepticism towards procedure and a fascination with rhetoric. The manner in which the Court deals with the issue of the extinction of statehood here is best described as interpretive evasion – a practice of avoiding deciding on an issue or supplying any reasoning, preferring, instead, an ad-hoc style of adjudication characteristic of informal adjudication.

The Court thus kicks the can down the road, leaving the question of whether the “character of statehood” can be extinguished for another Court to rule on – despite its centrality to the present case. The underlying basis of the Reorganisation Act, as one set of Petitioners submitted, is one that “place[s] the very concept of statehood at the mercy of the Union Parliament” (Mr CU Singh’s Written Submissions, para 73) (emphasis in original) – a constitutional question which goes unaddressed in the judgement. The assurances of the Solicitor General, unfortunately, cannot resolve constitutional issues.

Dispensing with procedure as constitutional practice

The other question before the Court was whether Parliament could have substituted its views for those of the state legislature under the first proviso to article 3, which allows for the alteration of areas and boundaries of existing states. The Court, however, could only have proceeded to this question if it found that article 3 confers the power of extinction of statehood in the first place. If this power did not exist – or, at least, article 3 did not grant such power – the question of requiring the views of the state becomes moot.

Because the Court elected to cop out, its discussion of the first proviso to article 3 has no actual bearing on the case. Nonetheless, the Court’s analysis of the interface between article 356 and article 3 is important to understand – if only as a portent of things to come.

While the first proviso to article 3 requires only the views, and not concurrence, of the state legislature – as confirmed by Babulal Parate – the Court held even this requirement to be dispensable. Parliament could thus substitute its own views for those of the state legislature. However, the Court failed to consider the dialogic value of the state legislature submitting its views: that of creating the conditions for a more considered decision, informed by the views of a body bent slightly closer to the ground, by the President when she recommends a reorganization bill to Parliament for its consideration (or, as it works out in practice, allowing for a more considered decision by Parliament).

Parliament supplying its own views in place of the legislature’s defeats this purpose. While the power of the veto was – with good reason – withheld from the states at the time, lest dominant groups sabotage minorities within a state, the requirement of eliciting the views of the state legislature cannot be held to be meaningless. Indeed, if the Court’s reasoning is applied in practice, the Union can simply impose President’s Rule on a state and consult with itself before reorganizing a state; much like self-concurrence, self-consultation is a contradiction in terms. The Court thus greenlit a clear-cut case of abusive constitutionalism.

Before I conclude, the Court also briefly discussed the second proviso to article 3, added by Constitution Order 48 in 1952. The proviso stated: “Provided further that no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State” (emphasis added).

The second proviso was suspended with the Presidential Proclamation that imposed President’s Rule in Jammu and Kashmir. However, temporally, CO 272, which extended the entire Constitution to Jammu and Kashmir and did away with any exceptions and modifications to the provisions of the Constitution, preceded the Reorganisation Act. Since the Court held that aspect of CO 272 to be valid, the second proviso ceased to exist. Therefore, ruling on the validity of the suspension of the second proviso to article 3 would be redundant and the Court does not address this issue substantively.

Tying the threads

In my first post, I had cautioned against seeing In Re: Article 370 as an aberration, a manifestly unconstitutional judgement that flies in the face of decades of settled constitutional jurisprudence. The Constitution, despite its pretensions to federalism, has placed the Union in a position of structural dominance over states – a position the Court has, as a rule, chosen to take interpretive inspiration from rather than mitigate in some way.

As we acknowledge its continuity with a longer strand of jurisprudence, however, the specificity of this verdict should not be lost on us. The Court here engages in what I call interpretive evasion with a perfection that only comes with practice. It makes a mess of interpreting the Constitution, emphasizing the text where convenient – even to the exclusion of other factors – and ignoring it where not. A pro-Union and pro-Executive bias congeals into a judgement that engages in an interpretation of the Constitution that sanctions blatantly abusive constitutionalism. Considering the entire abrogation exercise and the subsequent reorganization collapsed pivotal contradictions that are central to federal jurisprudence in India, the immediate task must be to limit the verdict to its facts.

There is no doubt that In Re: Article 370 represents a crisis in Indian constitutional law. As Gautam notes at this juncture, “[T]ext, structure, precedent, and the canons of constitutional interpretation have become negotiable materials in constitutional adjudication, especially when the constitutionality of acts of State is under challenge.” This, however, is no reason to be despondent. As a famous thinker once quipped: “Everything under heaven is in utter chaos; the situation is excellent.”

The Supreme Court’s Marriage Equality Judgment – III: Judicial Creativity and Justice Kaul’s Dissenting Opinion [Guest Post]

[This is a guest post by Masoom Sanyal.]

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Introduction

The Supreme Court has handed down its verdict in Supriyo @ Supriya Chakraborty v. Union of India (‘Supriyo’) or the Marriage Equality Case. By a majority of 3:2, the Court has held that (i) there is no unqualified fundamental right to marry under the Indian Constitution, (ii) there is no right to civil union available to unmarried couples, (iii) the Special Marriage Act (‘SMA’) is not violative of any fundamental rights, and (iv) the SMA cannot be read in a gender-neutral manner, in a way that would allow queer couples to marry under its provisions. The right to adoption has also been denied to unmarried couples by the Court. A unanimous Court has, however, held that transgender and intersex persons may marry under the SMA, so long as such a marriage is heterosexual.

Justices S Ravindra Bhat, Hima Kohli, and P S Narsimha wrote the opinion for the majority. Chief Justice Chandrachud and Justice S K Kaul wrote the minority opinions. Interestingly, Justice Kaul is the only justice on the bench who finds the Special Marriage Act violative of Article 14 of the Constitution. However, he does not strike it down; instead, by exercising an unprecedented form of ‘judicial creativity’ he makes it workable in line with the fundamental rights. This article analyses Justice Kaul’s judgement and the creative approach he has employed in order to remedy the defect of ‘unconstitutionality’ of the Special Marriage Act. There are 2 remarkable aspects of the judgement: (i) determination of legitimacy of the aim of the statute; and (ii) extending the statute’s operation to a distinct class of people by employing a creative approach.

The Unconstitutionality of the SMA: Illegitimate Objective

The test of reasonable classification under Article 14 is a two-pronged test: (i) the classification made must be based on an intelligible differentia, i.e. there must be a clear and intelligible difference between the classes, and (ii) the classification must have a reasonable nexus to the objective sought to be achieved by the statute.

Justice Kaul notes that the SMA creates two distinct and intelligible classes of people, by implication: the first class is that of heterosexual partners who are eligible to get married under the Act, while the second class is that of non-heterosexual individuals who are ineligible to marry under the Act. After referring to the scope and object of the Act, Justice Kaul observes that it postulates a ‘special form of marriage’ available to any person in India, irrespective of faith. In Justice Kaul’s opinion, the intent of the SMA was not to regulate marriages on the basis of sexual orientation. (In fact, doing so would be violative of Article 15 as well, since, per Justices Kaul and Chandrachud’s understanding, ‘sex’ in Article 15 includes ‘sexual orientation’. The Majority’s opinion does not appear to have addressed this point at all.)

In Justice Kaul’s mind, if the object of the statute is to facilitate inter-faith marriages, a classification based on sexual orientation of individuals can have no rational nexus with it. Further, if the objective is to regulate only heterosexual marriages, Justice Kaul holds that such an objective cannot be a ‘legitimate state objective’ on the ground that it would be violative of Article 15, which includes discrimination on the basis of ‘sexual orientation’ as well. Justice Kaul, in no unclear terms, declares the SMA unconstitutional and violative of Article 14 (Para 16). Here is the first unusual aspect of the judgement. Generally, Courts are reluctant to question the state’s aim in enacting a statute; usually, only two questions are looked into when satisfying the two-pronged test of reasonable classification under Article 14, as noted above: first, whether there is an intelligible differentia; and second, whether it has a rational nexus with the aim of the legislation. It is rare, even for a Constitutional Court, to venture into the arena of holding the aim of the legislation itself illegitimate.

However, he then takes a curious and intriguing turn. A prayer of the petitioners was that instead of striking down the SMA as unconstitutional, the Court must read it in a harmonious manner, and provide a gender-neutral reading of the Act, in order to include non-heterosexual partners within the ambit of the law. Justice Kaul notes that “there are multifarious interpretive difficulties in reading down the SMA to include marriages between non-heterosexual relationships.” (Para 17)

In short, a gender-neutral reading of the Act is not possible since the legislature has used clear and unambiguous words. According to Chief Justice Chandrachud’s opinion, such substantial reading would be beyond the powers of a Constitutional Court, and if the Court carried out such an exercise, it would invariably venture into the legislative domain, thereby violating the doctrine of separation of powers. Justice Kaul concurred with the Chief Justice on that point.

Judicial Creativity: Extending the SMA to Same-Sex Couples

However, Justice Kaul, in Para 18 of his judgement, lays down a curious position of law. He writes, “[I]t would not be prudent to suspend or strike down the SMA, given that it is a beneficial legislation and is regularly and routinely used by heterosexual partners desirous of getting married. For this reason, this particular methodology of recognizing the right of non-heterosexual partners to enter into a civil union, as opposed to striking down provisions of the SMA, ought to be considered as necessarily exceptional in nature.”

Chief Justice Chandrachud and Justice Kaul’s minority opinion lays down that non-heterosexual couples have a fundamental right to civil union that the state is under a duty to recognize. In line with that, Justice Kaul employs a creative interpretive technique, for which he cites the South African Constitution which contains an explicit provision that all statutes must be interpreted in ‘due regard to the spirit, purport and objects’ of the chapter on fundamental rights. Justice Kaul argues that we, in India, must adopt a similar approach to statutory interpretation.

By applying this technique of statutory interpretation, Justice Kaul observes, “In this context, legislations that confer benefits on the basis of marriage should be construed to include civil unions as well, where applicable.” (Para 26) Therefore, Justice Kaul’s judgement has the effect of stretching the ‘bouquet of rights’ available to married couples to the non-heterosexual civil unions. The remarkable part about this judgement is that a rather rare approach is taken here, by using a principle of statutory interpretation that finds an explicit mention in the South African Constitution, and importing it into Indian jurisdiction.

Conclusion

Justice Kaul’s judgement, albeit a dissenting opinion, is remarkable. It grants the recognition to non-heterosexual civil unions as well as extends to such civil unions all applicable rights that are available to married couples. It holds the SMA’s application only to heterosexual couples as violative of test of reasonable classification under Article 14 of the Constitution. He ventures into the area of determining the legitimacy of the aim and objective of a statute itself. Further, instead of striking down the statute, he remedies the constitutional violation by introducing a creative technique of statutory interpretation that he imports from South African constitutional principles. It is submitted that this technique of statutory interpretation should gain more currency in the Indian context. There has been some debate around this approach. A question that has been asked is whether such judicial creativity should be permissible? In other words, how much judicial creativity is too much judicial creativity? It is submitted that judicial creativity, so long as it is in order to protect fundamental rights and the Constitution, and within the scope of the judicial role, should be encouraged.

ICLP turns 10: Addendum – Unsealed Covers

Following up on yesterday’s tenth anniversary post, I wanted to note that the occasion is being marked, and what better way to mark it than with a book.

Over the last few months, I’ve worked on putting together a selection of blog pieces from the last ten years – a highlight reel, if you will – and curating them by theme (personal liberty, equality, federalism, and – yes – the profiles of Supreme Court Chief Justices). All of this is now in a book called Unsealed Covers, which is being published by Harper Collins, and has been formally announced today. The book is already up for pre-order, and will be out in bookstores on August 10.

The content of the posts is (more or less) unchanged, as I’ve tried to keep that sense of urgency and immediacy, but the organisation of the book places them next to each other in a chronological and thematic order (for example, the evolution of UAPA jurisprudence since Watali) in a way that blogging, of course, cannot.

If you get the book, I hope you enjoy it as much as the blog!

ICLP Turns 10 || For the Record

The Indian Constitutional Law and Philosophy Blog turns ten years old today.

A decade is a very long time, and there have been a lot of words. Almost a thousand blog posts (992, to be precise), which works out to just under two every week, for ten years. To the guest-post writers, to the commentators, and of course to the readers – thank you; the blog only exists because you exist.

Writing about the Indian Constitution in these last few years has not always been easy on the soul, or on the heart. But in the bleaker moments, the words of the Kenyan civil rights lawyer, Waikwa Wainyoke, serve as a little star of Eärendil: Wainyoke recounts asking Pheroze Nowrojee (one of the doyens of Kenyan civil rights law) why they kept challenging the President’s authoritarian actions in court through the dark periods of Kenyan history, when it was clear they would lose every time. To this Nowrojee – as Wainyoke recounts – said: “For the record! Nothing is more powerful in history than the record.“

This thought is cold comfort at times, but cold comfort is better than no comfort. It is also all we have.

Here’s to another decade of keeping the record.

Guest Post: The Application of Equal Marriage to the States of Mizoram and Nagaland

[This is a guest post by Benjamin Vanlalvena.]

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A Constitution Bench of the Supreme Court of India is presently faced with the question of recognition of same-sex marriages under the Special Marriage Act. Though this issue has been addressed in depth by various authors, I wish to bring a slightly different perspective. This article proceeds on the assumption that same-sex marriage is recognised/permitted in some shape/form/manner since in the alternative: that is, it assumes that the petitioners before the Court prevail with respect to their proposed interpretation(s) of the Special Marriage Act. 

An Act promulgated, if it purports to extend to the whole of India, applies to the whole of India, save for exceptional circumstances. It is some of these exceptional circumstances that I wish to address, specifically those that arise through Articles 371A and 371G of the Constitution. The relevant provisions read as follows:

371A. (1) Notwithstanding anything in this Constitution,— (a) no Act of Parliament in respect of— (i) religious or social practices of the Nagas, (ii) Naga customary law and procedure, (iii) administration of civil and criminal justice involving decisions according to Naga customary law, (iv) ownership and transfer of land and its resources, shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides; … … …”

371G. Notwithstanding anything in this Constitution,— (a) no Act of Parliament in respect of— (i) religious or social practices of the Mizos, (ii) Mizo customary law and procedure, (iii) administration of civil and criminal justice involving decisions according to Mizo customary law, (iv) ownership and transfer of land, shall apply to the State of Mizoram unless the Legislative Assembly of the State of Mizoram by a resolution so decides: Provided that nothing in this clause shall apply to any Central Act in force in the Union territory of Mizoram immediately before the commencement of the Constitution (Fifty-third Amendment) Act, 1986; … … …”

At the outset, it will be noticed that while the Mizoram clause has a saving provision, the Nagaland clause does not. It is for this reason that there had to be an enactment making the Special Marriage Act applicable to Nagaland.

The aforementioned provisions are significant for two reasons. The first, in the context of Article 371A, is as to the interpretation of the phrase Act of Parliament in the context of judicial interpretation of the provisions of the statutes (which is what the petitioners seek in the present case). This presents a curious problem when one considers that at the relevant time, the Nagaland Legislative Assembly may not have contemplated this interpretation of the Special Marriage Act (i.e., one that would authorise equal marriage). Would this then require the Nagaland Legislative Assembly to pass a resolution making such interpretation applicable to Nagaland? Unless explicitly ordained through Article 142 of the Constitution, the position of law is that when a court interprets a provision, such an interpretation relates back to date of the law as it stood in the beginning. If the position of interpretation being applicable from the first day is what would apply, what effect does it have on the specific acceptance by way of a resolution by the Legislative Assembly? Article 371A does not bar a recognition of fundamental rights; however, the necessity of a resolution by the Legislative Assembly of the State of Nagaland in relation to certain practices and laws illustrates a specific socio-political circumstance which perhaps needs to be taken into account. The position as to interpretation of law on the specific practices/laws enacted by the State of Nagaland appears to be separate as regards interpretation of any other law being made applicable to the State of Nagaland by a resolution by its Legislative Assembly.

A plain reading of Article 371A would show that there is no explicit bar from the Legislative Assembly resolving that the Special Marriage Act would no longer apply to the State of Nagaland.

If however, the position of interpretation having a prospective effect obtains, requiring a resolution afresh as regards the interpretation of the provisions of the Special Marriage Act, would this mean that individuals domiciled in Nagaland are placed at a lower footing compared to every one else? The classification does not appear to be reasonable on the face of it, for it would prevent not only marriage between individuals of the same sex, but also marriages that are inter-caste, inter-tribe, inter-religion, etc. This is since the Supreme Court, by interpreting what is and is not permissible within the Special Marriage Act would not be enacting a new section, and in any case that would not be an Act of Parliament. It is also to be seen if by such an interpretation, the resolution clause is either rendered nugatory, or as an extreme, the Supreme Court holds that the Legislative Assembly is estopped from making the Special Marriage Act inapplicable to the State of Nagaland on the sole ground that the institution of marriage for individuals of the same sex is recognised/permitted.

The second issue is in the context of Article 371G. A plain reading of Article 371G clearly shows that the Special Marriage Act and any interpretation thereof, would have no scope of being barred. The issue however arises as regards the law of Marriage as applicable to Mizos. Section 10 is relevant in its distinctness. It reads: “10. Void marriages: The living together as husband and wife of (a) two persons of the same sex (b) a person with another person having a spouse living and (c) either or both are under age are void ab-initio”. This explicit bar is unlike those in other codified marriage acts (see Sections 4, 24, 25 of the Special Marriage Act, 1954; Sections 4, 17 of the Foreign Marriage Act, 1969; Sections 5, 11, 12 of the Hindu Marriage Act, 1955; Sections 4, 60 of the Indian Christian Marriage Act, 1872), which can possibly be interpreted to the extent that such laws only mandate that the male individual is to be of a specific age, and the female individual has to be of a specific age, with no express requirement that a marriage must constitute both a male individual and a female individual. It is argued that with the prohibitions on recognition of marriage not explicitly contemplating marriage by individuals of the same sex, the interpretation must be in favour of recognising fundamental rights of individuals, and the only prohibitions being as to prior marriage, unsoundness of mind, or being within the degrees of prohibited relationship (parties related by blood/adoption), etc, and. that such prohibitions would have to be read in a strict and restricted manner.

The question that then arises is that if the court holds that individuals have a fundamental right to marry consenting adults of their own choice (As already held by the Supreme Court inter-alia in Laxmibai Chandargi B & Anr vs The State of Karnatka & Ors ; Shafin Jahan vs Asokan KM & Ors ; Lata Singh vs State of UP & Anr), even if that be between two individuals of the same sex, what follows is that by necessary implication, section 10 of the Mizoram Act would have to fall as being ultra-vires of the Constitution to the extent of the first bar which renders marriages between two individuals of the same sex as being void ab-initio.

The present article is not on the necessity or otherwise of Articles 371A and 371G which are results of socio-political negotiation with the intent to protect the culture of these minority communities from being eroded. However, within such a class of racial/ethnic/demographic minorities, in the name of protecting tradition, the rights of other individuals within such class (who are also donning the cap of being minorities by reason of their sexual orientation) cannot be barred. The question of who is a majority depends on the class/section of individuals being identified. A minority within a class can certainly be a majority within a sub-class; and it is against this majority-minority is where the purpose of a recognition guaranteed fundamental rights comes into fore, which must be protected from the disdain of such majority-minorities.

Guest Post: Judicial Review of Legislative Process – Analyzing Calcutta High Court’s Decision in Ambika Roy

[This is a guest post by Anmol Jain.]

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On 28 September 2021, the Calcutta High Court delivered a significant order in a plea filed by Ambika Roy, a sitting MLA of the West Bengal Legislative Assembly elected on BJP’s ticket, against the appointment of Mukul Roy as the chairperson of the Public Accounts Committee (PAC). The primary ground of challenge was that once Mukul Roy defected from BJP to TMC, the Speaker could not have chosen him to chair PAC given the long tradition of choosing a legislator from the opposition parties for the position. While the Court did not finally rule on the validity of Roy’s selection as the chairperson as his disqualification petition for defection is still pending before the Speaker, it made certain observations on the ambit of judicial review of legislative actions, which form the basis for this short opinion piece.

Judicial Review of Legislative Process

Articles 122 and 212 of the Constitution define the ambit of judicial review of legislative processes in India. Article 122(1) states that ‘the validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.’ A similar prohibition is set for judicial review of proceedings of state legislative assemblies under Article 212 of the Constitution. The Supreme Court has interpreted these provisions as limiting judicial review only in cases of procedural irregularity and not when substantive illegality is found. For instance, in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha and Ors, a Constitution Bench of the Court noted that

“On a plain reading. Article 122(1) prohibits the validity of any proceedings in Parliament from being called in question in a court merely on the ground of irregularity of procedure. In other words, the procedural irregularities cannot be used by the court to undo or vitiate what happens within the four walls of the legislature But then, ‘procedural irregularity’ stands in stark contrast to ‘substantive illegality’ which cannot be found included in the former. … The proceedings which may be tainted on account of substantive illegality or unconstitutionality, as opposed to those suffering from merely irregularity thus cannot be held protected from judicial scrutiny by Article 122(1) inasmuch as the broad principle laid down in Bardlaugh acknowledging exclusive cognizance of the legislature in England has no application to the system of governance provided by our Constitution wherein no organ is sovereign and each organ is amenable to constitutional checks and controls, in which scheme of things, this Court is entrusted with the duty to be watchdog of and guarantor of the Constitution.”

While the Supreme Court delineated substantive illegality from procedural irregularity, the understanding of ‘substantive illegality’ remained unclear. In later decisions, the Court tried to define the phrase by connecting it to the violation of any constitutional mandate. For instance, in his dissenting opinion in the K.S. Puttaswamy (II) judgment, Justice Chandrachud observed that a legislative process would be amenable to judicial review ‘if it suffers from illegality or from a violation of constitutional provisions’. The Constitution Bench in Roger Mathew followed the same definition and noted that Article 122 does not prohibit judicial review when a challenge is made on the ground of illegality or unconstitutionality under the constitutional scheme.

The Calcutta High Court adopted and extended the this approach in Ambika Roy v. Hon’ble Speaker, West Bengal Legislative Assembly and Ors. to conclude that judicial review under Article 212/122 would even include violation of constitutional conventions. The Court noted, particularly by referring to the comments made by the Speaker on the floor of the House, that a rich tradition and convention is being followed for at least the last 54 years to appoint a legislator form the opposition party as the chairperson of PAC. Further, as the Speaker found himself bound by such a tradition, it elevated the tradition to the status of a constitutional convention, the violation of which would be amenable to judicial review under Article 212.

While such a formulation of Article 122/212 expands the scope of judicial review of legislative processes, it still keeps ‘substantive illegality’ linked to the violation of a constitutional norm. There is no clarity on whether the courts would also include a violation of parliamentary rules as a ground for allowing judicial review, a scenario which has occurred on multiple instances in the near past, for instance, when the Deputy Chairperson of Rajya Sabha did not allow division of votes in clear violation of the ‘Rules of Procedure and Conduct of Business in the Council of States’.

In this backdrop. I argue that the Indian judiciary ought to adopt the comparative political process theory as advocated by Prof. Stephen Gardbaum and allow judicial review in all those scenarios that constitute as ‘political process failure’. In his paper titled ‘Comparative Political Process Theory’, Gardbaum refines and builds on the work of John Hart Ely on judicial review as a tool for the protection of representative democracy by broadening the types of political process malfunctions that a representative constitutional democracy might face on account of autocratic governance. As against Ely’s two-pronged understanding of political process failures – (1) where the incumbent government attempts to entrench itself to avoid political change in power; and (2) where the majority suppresses and systematically disadvantages the minority, Gardbaum includes ‘all the processes by and through which public power is allocated, exercised and held to account’ as part of his comparative political process theory. Based on this understanding, he develops a normative theory of judicial review and the specific manner in which the courts could secure the structures and processes of representative democracy which gives central importance to the deliberative model of law-making.

One of the political process failures that Gardbaum discusses is the failure of the legislature to hold executive accountable (a fundamental constitutional principle, an offshoot of the separation of powers). Applying this theory to the scenario in Ambika Roy, it could be argued that appointment of a legislator who holds allegiance to the majority party as the chairperson of the PAC could impact legislative ability to hold the executive accountable, and thus warranting judicial review. It would then make irrelevant the inquiry of whether the tradition has taken the shape of a constitutional convention. The mere fact of it being an important parliamentary rule or tradition integral to the legislature’s ability to hold executive accountable would support judicial review in case of its violation.

There are two benefits of adopting the comparative political process theory. First, adopting this approach would delink ‘substantive illegality’ from the violation of a constitutional norm and allow courts to quash any legislative action, including the passing of a law, in cases of violation of core parliamentary rules and tradition designed to achieve this manner of accountability. For instance, it would make it possible to quash any law only on the ground that the political majority did not extend legislative due process to the opposition parties and fast-paced the bill without any meaningful deliberation.

Second, adopting this approach would also equip judges with a definite tool to determine whether a particular violation calls for judicial review or not. Under the present framework, and as evident from the chain of cases pertaining to the possibility of judicial review of Speaker’s certification of a bill as a Money Bill, the determination that a particular violation is an irregularity or an instance of substantive illegality is a highly discretionary process. The comparative political process theory could guide the exercise of such discretion and may bring certainty in decision-making.

Concluding Remarks

Judicial review of legislative process aside, this case again brings to light the unregulated powers of the Speaker/Chair of the House. Despite Supreme Court decision in Keisham Meghachandra Singh mandating the Speaker to decide disqualification petitions under the Tenth Schedule to the Indian Schedule within a period of three months, Biman Banerjee did not take a decision on Mukul Roy’s defection and his consequent disqualification within the stipulated period. Such abuse of power by the Chair is pervasive. To quote a few instances from the recent past, the Speaker in Shivraj Singh Chouhan adjourned the house to avoid floor test; the Speaker of the Lok Sabha has virtually stopped referring bills to departmentally-related standing committees and wrongly certified many bills as Money Bills; and the Deputy Chairperson of Rajya Sabha denied division of votes despite legislators specific demand. Instead of being a neutral player envisaged to ensure legislative due process to all political parties, the Chair thus is being reduced to just another partisan office. While expecting any reforms from the legislature might not be reasonable in the present political scenario, the judiciary could definitely play important role in regulating the wide powers of the Chair. It is, therefore, important that courts approach such cases of abuse not as independent inquiries, but as a part of the larger scheme towards ensuring independence of the Chair.

ICLP Turns 8 || What Dreams May Come

The Indian Constitutional Law and Philosophy blog turns eight years old today.

On previous blog anniversaries, I have used the occasion to reflect on some of the important events of the preceding year. I suppose it is unsurprising that the tone of those posts has grown steadily bleaker and more pessimistic. As another year comes around, I find that I have very little to say: as far as civil rights and State impunity is concerned, nothing much has changed from the last time around, nor are there any significant indications that anything will change in the near future. Indeed, for the reasons that I outlined in the seventh-anniversary post, “A Constitutionalism Without A Court”, I find myself writing less frequently about the Court(s), and with minimal enthusiasm. To analyse “normal” judgments about – say – the Delhi legislative assembly’s summons to Facebook, in the normal course of things, as if everything was normal, while those jailed for 3+ years without trial in the Bhima Koregaon case are repeatedly denied bail by the same judicial system, creates a contradiction that I find increasingly difficult to overcome.

So I thought I’d do something different this time around: instead of looking back, look forward – but to a hypothetical future. In this future, the things that we should take for granted – that is, constitutional courts deploying the Constitution as a sword against State impunity – actually do happen. To imagine that future, I set out below a set of ten headlines and summaries that would be written every time the courts acted in that way. Needless to say, I do not ever expect to be writing those headlines in the actual future; that is why they belong in the category of what dreams may come.

The Supreme Court Strikes Down Section 43D(5) of the UAPA

In a landmark judgment, a seven-judge bench of the Supreme Court struck down Section 43D(5) of the UAPA as unconstitutional. The Court held that the provision – which prohibits the grant of bail as long as a prima facie case is made out against an accused – violated the constitutional guarantees of personal liberty, fair trial, and equal protection before law. The seven-judge bench also overruled the prior decisions of the Supreme Court in Kartar Singh vs State of Punjab and National Investigation Agency vs Zahoor Ahmad Shah Watali. The Court said that the latter judgment, in particular, had been a ‘catastrophic error’, responsible for keeping many individuals in jail for years without trial, and that it deserved to be buried next to ADM Jabalpur, “ten fathoms deep with no chance of resurrection.” The Court stressed, by way of conclusion, that the presumption of innocence and the rule of bail were fundamental features of the criminal justice system, that could not be sacrificed at the altar of special legislation.

The Supreme Court Strikes Down Sections 3 and 4 of the Citizenship Rules, 2003

A Constitution Bench of the Supreme Court has struck down Sections 3 and 4 of the Citizenship Rules 2003, that authorise the creation of a nationwide National Register of Citizens (popularly known as “the NRC”). The Court held the offending sections created a nationwide presumption of non-citizenship, akin to general warrants or dragnet surveillance without reasonable cause, and consequently, violated the right to privacy as well as being manifestly arbitrary. In doing so, the Court overruled its prior judgment in Sarbananda Sonowal v Union of India, noting that it was a “deeply flawed decisions that raised the presumption of non-citizenship to a constitutional principle, with no basis in the constitutional text.”

The Supreme Court Strikes a Blow for Federalism: Implied Limitations on Executive Authority Under Article 356 and on Parliamentary Authority Under Article 3 Upheld

Adjudicating a batch of petitions challenging what has popularly come to be known as the “events of August 5, 2019”, a Constitution Bench of the Supreme Court held that Constitutional Order No. 272 and the Jammu and Kashmir Reorganisation Act of 2019 were void. While expressing no view on the merits of Article 370 of the Constitution, the Court held, first, that the executive government – or its delegate – acting under Article 356 of the Constitution, could not permanently alter the structures of governance of a federal unit; and secondly, that under Article 3, Parliament lacked the power to convert a state into a union territory. The Court noted that a contrary interpretation of Article 3 would mean that Parliament had the power to hypothetically convert every state into a Union Territory, and thus destroy the federal structure altogether; consequently, any such interpretation of Article 3 had to be rejected.

The Supreme Court Strikes Down the Electoral Bond Scheme

In a terse, ten-page judgment, a three-judge bench of the Supreme Court today struck down the electoral bonds scheme for “being destructive of Article 19(1)(a) of the Constitution, and of the basic feature of free and fair elections.”

The Supreme Court Strikes Down the Uttar Pradesh Recovery of Damages to Public and Private Property Act

Terming it a “grossly disproportionate interference with the right to protest”, a Constitution Bench of the Supreme Court struck down UP’s Recovery of Damages Act, which inter alia made the organisers of a protest liable for any damage to property, regardless of individual responsibility, and shifted the burden of proof to the accused. The Court noted that the Act would cast a “permanent chilling effect” even over peaceful protests; it also overruled its prior 2009 judgment in In Re: Destruction of Public and Private Properties, upon which much of the challenged law was based.

The Supreme Court Mandates Prior Judicial Authorisation for Internet Shut-Downs; Holds Rigorous Application of the Proportionality Standard Necessary

Two weeks ago, acting upon a petition the same afternoon that it had been filed before it, the Supreme Court had stayed a government order requiring an internet-shut down in Jammu & Kashmir. In a detailed judgment delivered today, the Court held that except where a formal Emergency had been declared, internet shut-downs were presumptively illegal, and in any event, could not be imposed without judicial authorisation. Noting that India had long been the “Internet shut-down capital of the world”, a matter of some shame for a democracy, the Court went on to note that the proportionality standard had to be applied strictly to any proposed internet shut-down; and, given that available research showed no demonstrable link between shutting down the internet and the maintenance of public order, an affirmative duty to establish the same would lie upon the State. Analysts have said that the judgment could have significant consequences in prompting the Supreme Court to take a second look at its long-encrusted jurisprudence on Section 144 of the CrPC as well.

The Supreme Court Strikes Down the FCRA (Amendment) Act, 2020

In an omnibus challenge, the Supreme Court struck down several amendments to the Foreign Contributions Regulation Act (FCRA), as well as provisions of the 2010 statute. The Court found that several restrictions – such as regulations on the proportion of funding that a non-governmental organisation could use on administrative expenses, the requirement of holding a bank account in Delhi, prohibitions on inter se transfers of funding between non-governmental organisations, and so on – constituted an “undue and disproportionate burden upon the freedom of association under Article 19(1)(c), and that “other than invoking the phrase ‘national security’ like a prayer”, the State had provided no argument – or evidence – for their necessity.

The Supreme Court Strikes Down the RTI (Amendment) Act, 2019

In a landmark judgment, the Supreme Court held that the Right to Information Act, 2005, was in the nature of a constitutional statute, as it was enacted specifically to give effect to the fundamental right to information. The Court went on to find that the 2019 amendments to the Right to Information Act compromised the independence of the Information Commissioners, and were therefore unconstitutional.

Supreme Court Holds Meaningful Public Participation to be Implicit in Article 21 of the Constitution; Applies it to Evictions

Breaking with precedent, a Constitution Bench of the Supreme Court held that the principle of public participation was implicit in Article 21 of the Constitution. Setting aside an eviction order, the Court held that evictions or demolitions of long-standing jhuggis could not take place until meaningful engagement with the residents had taken place, with respect to the provision of reasonable alternative accommodation. With this judgment, the Supreme Court joins with constitutional courts such as those of South Africa and Kenya, that have recently attempted to address the problem of deeply skewed land distribution in unequal societies by increasingly questioning the sanctity of background property rules.

Swiggy and Zomato Delivery Personnel Held to be “Employees” under the Code of Wages Act

After a long-running litigation, in a significant judgment, the Bombay High Court upheld the finding of the Labour Court that delivery personnel working in what is euphemistically called “the gig economy” fall within the definition of “employees”, and are therefore entitled to the benefits of the Code of Wages Act. The High Court held that the use of the algorithmic “app” by platforms led to an exercise of control over work that made the formal classification of delivery personnel as “contractors” a “sham”. The immediate impact of the judgment is expected to be widespread, as it applies equally to platforms like Uber and Ola, and ensures that delivery personnel have access to a range of individual and collective labour rights beyond those in the Code of Wages Act.

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Feel free to add your own in the comments; the dreamier the better!

Guest Post: The Supreme Court’s Tribunals Judgment – II

[This is a guest post by Shubhansh Thakur.]

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This part continues from the last part. This part will discuss the substantive challenges to the Ordinance concerning two significant grounds: the age requirement and retrospective application.

GROUNDS OF CHALLENGE

The petitioner challenged the first proviso to Section 184(1) of the Ordinance, according to which a person below the age of 50 was made ineligible to be appointed as Chairperson or Member of the Scheduled Tribunals (Age Challenge).

Section 184(11) provided for the age of superannuation for the Chairperson and Members of the Scheduled Tribunals. The Chairperson was allowed to hold the office until they attain the age of 70 years or for a term of four years, whichever is earlier, while the other members could hold office till the age of 67 or for four years, whichever is earlier. The proviso to the said section carved out the appointments made between the period of 26 May 2017 till the date of the Ordinance, i.e., 04 April 2021. It was provided that if the tenure in the appointment order between these dates was greater than what has been specified under 184(11), then the tenure under the order would be applicable subject to a maximum period of five years. This proviso was also challenged by the MBA (Retrospective Challenge).

AGE CHALLENGE

Rao J struck down the proviso restricting the age to fifty years on two grounds- firstly, the directions by the court in MBA-III requiring advocates with ten years of experience were in the nature of mandamus, and the proviso to Sec.184(1) was in direct conflict to the said judgement. Secondly, by relying on Rojer Mathew and MBA-I, he underlined the need for including young members from the bar and ensuring their long tenure. While declaring the said proviso unconstitutional, he also held that it would be difficult for an advocate appointed after 50 years to resume his legal practice once his tenure is over. To him, the age requirement violated the security of tenure and conditions of service that are core components of the independence of the judiciary (See ¶48 and 49). The AG’s consent in MBA-III for making advocates eligible for appointment in tribunals based on experience, on lines similar to that of an HC, judge also weighed with the court (¶48).

The Danger of Treating Directions as Mandamus

Firstly, the SC has always shown deference to issue mandamus to the executive. However, in cases where it has been issued, it has been issued to compel the government to consider exercising power, in its role as a delegate of the Parliament. For the present case, the court could have merely directed the UOI to consider framing the rules; but that cannot bind it to frame the rules, let alone in a specific manner.

Additionally, there lies a distinction between directions and issuance of writs, as visible from Article 32(2), which uses the two words separately. The author’s submission is that unless there is a specific mention in the judgment for issuance of the writ, directions cannot by themselves subsume the nature of the writ. The judgement in MBA-III merely had certain directions with no mention of issuance of writ making it difficult to discern how the court treated them to be the same.

Assuming for the moment that the directions in MBA-III did take the form of mandamus – at the most, mandamus can compel the UOI in its executive authority where it acts solely, without any other sanction. In such cases, the AG’s consent can bind or estop the UOI in subsequent cases relating to framing of any rule. However, the UOI in its legislative capacity requires sanction from the two houses and the President. In such a case, mandamus cannot take effect unless the legislators, who are not a part of UOI, are also compelled to pass the bill as the courts have directed. It would render Parliament’s power to discuss, debate, and persuade, which lies at the core of parliamentary democracy redundant. In other words, AG can speak for the UOI alone and not for other legislators that are involved.

Thus, it would make the institution of Parliament redundant. It would leave scope to bypass several provisions of the Constitution concerning the bill’s passing and the aspect of having discussion and debate, which lie at the core of parliamentary democracy.

The Ordinance essentially is framed by the UOI alone but the Constitution treats it as an exercise of legislative power and it is as effective as a law made by the parliament. Thus, as soon as UOI moved away from its executive character in MBA-III to legislative capacity in the present case, the effect of mandamus in the author’s submission should have been construed to stand vitiated. In the present case, for instance, the UOI lays the Ordinance for approval before the houses (See Article 123) with the changes as the court has directed. It would force the legislators to pass the Ordinance otherwise it would fail to pass the muster of Constitutionality according to the SC.

[The argument is closely related to Justice Gupta’s partially dissenting opinion. He places reliance on Article 144 to argue that the said article does not mention Parliament, and thus the effect of mandamus ends at the door of Parliament.]

Security of Tenure

Secondly, the security of tenure cannot mean that the legislature must protect the present tenure and ensure the future availability of jobs. Security of tenure merely means that a presiding member’s tenure should not be at the risk of being curtailed when acting as the presiding member, as it would affect his independence to render a fair decision. In other words, his manner of deciding disputes should not affect his tenure. However, neither the age requirement nor the future employment affect the decisional autonomy of the person appointed, and hence the two are unrelated. In the absence of any other reason, it was erroneous on the part of the court to treat the two to be related.

At this stage, it becomes essential to highlight Gupta J’s opinion, where he relied upon the Memorandum of Procedure (“MOP”) framed by the SC for the appointment of an HC judge. The age in the MOP has been kept at 45 years, though the Constitution prescribes only a limited ten-year experience at the bar for appointment to HC. Before reproducing the provision, it is essential to highlight that the official MOP (available here) does not point out any such condition. The author also cannot locate any other document with the relevant condition. The opinion of Gupta J merely confirms the fact that the SC had sent the MOP for approval in the year 2017, leaving it ambiguous whether the rule is presently in existence or not. For the present analysis, the author has considered this to be a part of the current appointment process based on Gupta J’s observation. The relevant clause reproduced from the judgement reads:

“”17. A person shall not be eligible to be considered for appointment as Judge of a High Court against Bar quota, unless he has completed 45 years of age on the date of recommendation by the High Court Collegium.”

This at least confirms the position that age is a factor in the suitability of candidates. The only question pertains to fixing fifty years rather than forty-five, as provided in the MOP. It is submitted that MBA-I merely required the conditions of the tribunal members to be as nearly as equal to that of HC judges, and there was no requirement for the legislature to keep them congruent. Thus, the court could have tolerated such a meagre difference in age as the power to draw the bright-line vested with the legislature. Apart from the MOP, it is a policy matter to fix the cut-off age and decide the suitability of the candidates based on various other factors such as the antecedents of the person, her report from the intelligence bureau etc. – which the legislature is best suited to determine and fix.

Gupta J upheld the provision dealing with the age on two major grounds-firstly that future job prospects cannot be a ground to declare a provision to be unconstitutional. Secondly, he held that the age requirement of 50 years has not been picked from the hat (a term used by Rao J and Bhat J) but based on Section 413 of the Companies Act, which remained unchallenged in MBA-I, and has attained finality.

The first ground has been discussed while discussing Rao, J’s judgment. The second ground becomes very important as it is based on the plea of constructive res judicata, a principle provided for under Sec.11 of the Code of Civil Procedure,1908 (CPC). It is vital to highlight that the CPC is inapplicable in stricto-sensu to writ proceedings, but it is up to the court to apply CPC principles whenever deemed fit. Gajendragadkar, J highlighted the importance of the constructive res judicata in Devilal Modi v. STO:

“This rule postulates that if a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action; but basically, even this view is founded on the same considerations of public policy, because if the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another and urge new grounds every time; and that plainly is inconsistent with considerations of public policy to which we have just referred.

MBA had the opportunity to challenge Section 413 of the Companies Act, but it chose not to do so. Thus, the issue of age competency attained finality at least between the parties, and MBA could not have raised it subsequently. There was nothing wrong on the part of the legislature to take this into account while framing the present Ordinance and fix the same age which previously remained unchallenged. It is this policy of the legislature that courts must have attempted to preserve.

Bhat J held that the proviso concerning age was unconstitutional as there was no empirical data to support the fact that older candidates fare better than younger candidates. Thus he concluded that discrimination is purely based on age and thus wholly arbitrary and picked from the hat. (¶31) However, while acting in its administrative capacity, the court has framed a MOP that defines age as a criterion for appointment. There is a long line of judgments (affirmed and shown here) that argue that the judiciary is best suited to judge the competence of the candidates to be appointed in such tribunals. The SC’s collegium system has always considered age to be a factor in HC and SC appointments. The difference in the forum cannot vitiate the argument that the appointment of judges does take age into account. Thus, what appears is that the legislature prescribed the age criteria for the members of the tribunals based on previous legislation and also based on informal criteria evolved by the courts. When the legislature merely acted in consonance with the informal criteria developed by the judiciary with a slight alteration, the age criteria could not be said to be wholly arbitrary.

RETROSPECTIVITY CHALLENGE

Concerning the retrospective application challenge, the majority opinion relied upon various decisions to argue that the financial benefits once vested in an individual by mandamus cannot be taken away by a subsequent enactment. The legal position is indisputable. However, Rojer Mathew and MBA-III (reiterated before) show that the court never intended to give finality to its interim orders. The directions were issued to keep the tribunals operational with the limitation that financial benefits should not be curtailed subsequently. Thus the minority opinion correctly holds that the Ordinance ultimately subsumed the interim measures. It is thus submitted that majority opinion’s view that the interim measures attained finality is contrary to the plain text of the judgment itself. Thus, there was no reason for the court to overturn the retrospective provision, as liberty lay with the UOI to seek a modification of the order. When the UOI chose to replace the rules with a statutory enactment, the interim order must have been held to be subsumed in the Ordinance making it irrelevant to overturn them.