Is the 103rd Amendment Unconstitutional?

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Yesterday, the President assented to the Constitution (One Hundred and Third Amendment) Act, which introduces reservations based on economic criteria, into the Constitution. The swift passage of this amendment through both houses of Parliament (from start to finish, it took 48 hours) has raised serious questions about democratic accountability. The Amendment itself has been castigated (repeatedly) as an election gimmick, and contrary to the very purpose of providing reservations. However, this is now history: the Amendment is here, awaiting only to be notified by the Government. And so, to the only relevant legal question that remains: is the 103rd Amendment unconstitutional?

The Basic Structure

 

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It is trite – but nonetheless important – to recall that, as the Constitution stands amended, the only constitutional challenge that remains is a basic structure challenge. It is also worthwhile to remember – in order to set the context – of how high a threshold that is. Contrary to the beliefs of basic structure critics, who see the doctrine as some kind of Damocles Sword that errant judges are always threatening to drop upon the neck of democracy, the Supreme Court has almost never used basic structure to invalidate constitutional amendments. The high-profile striking down of the NJAC notwithstanding, in the forty-five years since Kesavananda Bharati, the doctrine has been used on an average of once in a decade. And in the seventy-four constitutional amendments after Kesavananda, only five have been struck down on substantive basic structure grounds (a strike rate of around 7%).

It’s also interesting to note (by way of example) what the Supreme Court has allowed to stand in the teeth of a basic structure challenge: in Nagaraj, a whole-scale restructuring of Article 16 that would effectively breach the 50% Rule (more on that in a moment), and in Poudyal, a departure from the principle of one-person-one-vote (more on that shortly, as well). Even when the Court has invoked basic structure, it has elected to use the scalpel rather than the bludgeon: in Raj Narain and in Minerva Mills – two of the starkest cases of constitutional abuse in our history, both by Indira Gandhi – the Court only snipped away a clause (granting immunity to Indira Gandhi from electoral malpractice) and a phrase (effectively getting rid of the fundamental rights chapter altogether) respectively, while upholding the rest of the (abusive) Amendments under challenge.

This is the case because the Court – conscious of the legitimacy issues with striking down a constitutional amendment – has been very careful about the language that it uses. Kesavananda Bharati didn’t say “modify”, “tinker”, or “change” – it said that a constitutional amendment cannot “damage or destroy” the basic structure. Nagaraj refined this by introducing the “width and identity” tests, making it clear that a basic structure challenge would have to demonstrate that the constitutional amendment makes the Constitution virtually unrecognisable.

The Amendment 

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Within this context, let us briefly examine the 103rd Amendment. The Amendment introduces Articles 15(6) and 16(6) into the Constitution. 15(6) allows for reservations for “economically weaker sections of citizens” other than the classes mentioned in Articles 15(4) and 15(5) (i.e. effectively, other than the SCs/STs/OBCs). Article 16(6) does the same for public employment. The quantum of reservation is fixed at 10% over and above the existing reservation for SCs/STs/OBCs. An Explanation states that “economic weakness” shall be decided on the basis of “family income” and other “indicators of economic disadvantage.”

I want to focus on three features that (in my view) can form the basis for a potentially credible basic structure challenge. The first is the “50% question.” The second is (what seems to be) the use of family income as the primary determinant of economic disadvantage. The third is potential arbitrariness.

The Challenge 

A. The 50% Rule

It has become almost an article of faith that reservations cannot cross the threshold of 50%. The roots of this stipulation lie in M.R. Balaji v State of Mysore, where the Supreme Court held that because Article 16(4) (reservations) was framed as an exception to Article 16(1) (equality of opportunity), anything more than 50% would imply that the exception was swallowing up the rule. In Indra Sawhney v Union of India, this judicial rule was affirmed once again, and a governmental notification providing for 10% reservations on the basis of economic disadvantage was struck down. However, neither Balaji nor Sawhney were concerned with the basic structure: they were considering a law and subordinate legislation, respectively.

So, is the 50% rule a part of the basic structure? In Nagaraj, the Court suggested that it is, when it noted that:

” … the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.”

But is there any support for this observation? The only indication that the 50% limit is so crucial that it is to be deemed as inherent in the very “structure of equality of opportunity” is found in a speech by Dr. B.R. Ambedkar during the Constituent Assembly Debates in November 1948. Ambedkar observed that the purpose of Article 16 was to balance two competing principles – (formal) equality of opportunity, and compensation for inadequate representation in public employment. This balance was wrought by structuring Article 16 as it was (through 16(1) and 16(4)), and one example that Ambedkar specifically took to indicate what might upset this balance was a potential situation in which the quantum of reservation reached 70%.

There is, therefore, strong evidence to suggest that the 50% rule is baked into the scheme of Article 16, as its drafters intended (and as the Supreme Court later affirmed). However, it does not follow from that that an amendment to Article 16 that changes this scheme would be a basic structure violation. This is for two reasons. The first is that the basic structure is not reducible to a particular, concrete articulation of values, internal to a specific constitutional provision. It is open to Parliament – acting in its constituent capacity – to depart from the constitutional settlement that the framers encoded into Article 16. Parliament is entitled to believe that the social justice facet of 16 deserves greater importance than formal equality of opportunity, and to act upon that belief. Secondly – and more importantly – the “balancing” view of Article 16 is not even the only reasonable interpretation available. In N.M. Thomas, for example, a majority of four judges out of seven held that Article 16(4) is not an exception to 16(1), but a facet of it; in other words, 16(4) merely expresses, in explicit terms, a commitment to equality in terms of social justice that is already present in Article 16(1). Under this view, it is obvious that the 50% rule has no foundation, as that was predicated on 16(4) being an exception to 16(1).

I have defended this interpretation elsewhere, but here, I am not concerned with whether it is right or wrong. The point is that it is a legitimate interpretation of Article 16, that has been affirmed by a seven-judge bench of the Court, and which has never – technically – been overruled. Consequently, it is certainly open to Parliament to take that view, and amend Article 16 to reflect that.

Lastly – and keeping everything else aside – I am not even sure that on its terms, the 103rd Amendment commits Parliament to increasing the quantum of reservation above 50%. The Amendment only provides reservation to the extent of 10%; however, existing Articles 15(4), 15(5), and 16(4) do not stipulate that existing reservations must necessarily be at 50% – that has been achieved through legislation. Consequently, how can a basic structure challenge to the Amendment even raise the 50% argument? That argument – if it has to be raised at all – must come in when Parliament enacts a law to give effect to the Amendment.

B. Individuals and Groups

There is, I think, a more persuasive basic structure argument against the Amendment. There is one feature that distinguishes the Amendment from the rest of the scheme of Articles 15 and 16: by using the “family income” as the primary determinant of economic disadvantage, the Amendment advances a philosophy of reservation that focuses on remedying individual disadvantage (by taking the family as the unit for determining who is disadvantaged). At a very fundamental level, this departs from the kind of equality that the Equality Code (Articles 14, 15, and 16) envisages. The scheme of Articles 14, 15 and 16 is one that acknowledges the historical fact that in India, group membership has been the primary basis of institutional and structural disadvantage. One’s access to opportunity and chances of social and economic mobility have been mediated by one’s group identity – and primary, that identity has been structured around caste. The logic of reservation in India – and this dates back to pre-Independence times – has, consequently, always been that while the right to equality is an individual right, the only method of achieving substantive equality at an individual level is to take into account the disadvantages and barriers that exist on account of groups (and specifically, caste groups).

As a variant of this argument, Madhav Khosla has argued that the reason why the 103rd Amendment must fail the basic structure test is because it essentially contains internally contradictory provisions: the logic of 15(4), (5) and 16(4) (group-determined, social and educational backwardness) is at war with the logic of the new Articles 15(6) and 16(6).

While I agree that the 103rd Amendment makes a logical mess of the scheme of Equality Code, when it comes to a basic structure challenge, however, I find myself running up against the same difficulty that was faced in assessing the 50% challenge. And that is that the argument accords to the basic structure a level of specificity that it does not have, and one that the Court has consistently refused to give it. It is true that economic reservation goes against the grain of how social justice and equality have always been conceptualised in India, at least in constitutional terms. It is true that it sets up a contradiction (in terms of legal logic) between the SC/ST/OBC reservation provisions, and economic reservation. However, once again – the basic structure does not bind Parliament to any particular conception of equality and social justice. The basic structure does not require that Parliament follow the same logic, even within the same constitutional provision. The basic structure does not mandate clean, coherent, and logical drafting. All it requires is that a basic feature – in this case, “equality” – not be “damaged or destroyed.” And for me, it is difficult to see how economic reservation “damages or destroys” the concept of equality, because as long as there exists a reasonable understanding of equality that can accommodate economic reservation – and surely there does – it will be immune from a basic structure challenge.

The distinction between the level of the “concept” (which is the level at which the basic structure operates) and the level of the “conception” (which is the level at which the Amendment operates) is made clear if we consider the case of R.C. Poudyal: in R.C. Poudyal, which dealt with the accession of Sikkim to the Indian Union, one of the challenges involved a departure from the one-person-one-vote principle when it came to elections within Sikkim. It was argued that this violated the basic structure, because it went against democracy. The Court upheld it, however, noting that there were many different forms of democracy that were consistent with the concept of democracy. Similarly, there are many visions of equality – many concrete manifestations – that remain consistent with the concept of equality. A basic structure challenge can succeed only if equality itself is abrogated – for example, if Article 14 is repealed altogether, or if a Bill of Attainder is passed (which was the issue in Raj Narain).

Arbitrariness 

One last possible attack is on the grounds of arbitrariness – that is, the family income criteria has no relation with the goal of reservation. In other words – as many people have pointed out – reservation is not the remedy to the problem of poverty (reservation is about compensating for social and institutional barriers to representation). This makes mandating reservation on economic disadvantage arbitrary.

This raises a fascinating constitutional question, which is yet to be resolved: are there specific articles that are so important and crucial, that they themselves constitute basic features? In particular, are Articles 14, 19, and 21, standing alone, part of the basic structure, so that a constitutional amendment can be challenged, like an ordinary law, on the basis that it violates one of these articles?

The Supreme Court has hinted before that this might be the case; however, I am unpersuaded. It is one thing to say that if Parliament was to repeal Article 14, or 19, or 21 – taking away equality, freedom, and liberty altogether – then a basic structure challenge would lie. It is quite another to say that specific tests under 14, 19, and 21 should apply, mutatis mutandis, to a constitutional amendment.

Conclusion

There are powerful legal and constitutional arguments against economic reservation. However, what the above discussion has shown is that they operate at the level of the law: they would succeed were it the case that legislation was being tested against the basic structure.  However, it is far more difficult in the case of a constitutional amendment. Ironically, this is because of the precise reason that has given so much fodder to basic structure critics – the Court’s refusal to define it in concrete and specific terms. As long as economic reservation is defensible on a ground that is recognisable in terms of equality, the fact that it departs from how equality and social justice is presently understood in the Constitution, is no ground for striking it down. And that minimal threshold, in my view, is met by the 103rd Amendment. It is likely to survive a basic structure challenge.

 

ICLP Book Discussion: Rohit De’s “A People’s Constitution” – V: We (are also part of) the People

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(As part of our blog round-table book discussion, this is the fourth – and final part – of the substantive responses to Rohit De’s A People’s Constitution, by Bryan Dennis Tiojanco. All page numbers in brackets are references to page numbers in the book. This post will be followed by a response from the author.)

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Bryan Dennis Tojianco

Constitutions usually live only about 17 years. Only one of five constitutions reach the age of 50, which is usually when they become stable. That the Indian Constitution remains strong after almost 70 years is thus a remarkable feat in itself. It is ‘the longest surviving constitution in the post-colonial world, and it continues to dominate public life in India’, (2). Moreover, the Indian Supreme Court, which many consider ‘the most powerful constitutional court in the world’, continues to enjoy ‘tremendous public support’, (3). Three circumstances make this even more impressive. First, a national constitution is usually sturdier when the process that led to its enactment was more inclusive. The Constituent Assembly that drafted the Indian Constitution, however, was not popularly elected; the draft itself was also adopted without a public referendum. Second, constitutions enacted after 1945 have on average lived shorter lives than others. The Indian Constitution came into force in 1950. Third, with a population that is overwhelmingly poor, illiterate, and socially stratified, as well as ethnically and linguistically diverse, India lacks many conventionally listed social requisites of an enduring constitutional democracy.

The longevity (despite the odds) of the Constitution of India, the world’s largest constitutional democracy, makes Rohit De’s A People’s Constitution: The Everyday Life of Law in the Indian Republic a must-read book for constitutional scholars. It is ‘a social history of constitutional law’ in India during ‘the Nehruvian period, which begins with Jawaharlal Nehru’s appointment as prime minister in 1947 and ends with his death in 1964’, (22 & 26). Thus it covers the first decade of the Indian Constitution’s life. Because a country’s constitution needs to outlive its founding generation before it attracts enough ‘veneration’ to ensure it ‘requisite stability’, its first decade are the years when it is most fragile. How and why the Indian Constitution attracted sufficient support to survive this decisive decade is therefore an important question for constitutionalists. De’s account masterfully marshals many historical facts which help answer both in ways that enrich mainstream constitutional theories.

One such theory is that of Bruce Ackerman, who gives advance praise for A People’s Constitution:

This book offers genuinely original insights into the transformation of India’s Constitution into a living reality of social and economic life. Its emphasis on the role of ordinary citizens, and civil society organizations, provides a fascinating perspective ignored in standard accounts focusing on the statecraft of political elites in New Delhi, (back cover).

This praise is the equivalent of saying touché in a discussion—i.e., it is an admission that De makes a good point that complicates Ackerman’s own take on Indian constitutionalism. Indeed, De cites Ackerman when he refers to ‘Constitutional theorists’ who ‘have attributed the success of the [Indian] Constitution to its moment of founding, the installation of a popular nationalist movement that was led by farsighted leaders committed to the rule of law’, (5). In this ‘celebratory story of the Indian Constitution’, De writes, ‘the main heroes are its charismatic and dedicated founding fathers who enshrined the principles of the nationalist movement into the constitutional document and largely abided by it’, (6–7). It was only after ‘the sheen wore off the next generation of politicians’ that the Indian Supreme Court became ‘the site for strengthening constitutional values’, (7).

Ackerman summarizes the four stages of this intergenerational story in chapter two of his forthcoming book (on file with the author):

We begin…with Gandhi and Nehru transforming the Congress Party…into a mass movement during the first half of the twentieth century—and then turn to the…effort to constitutionalize Congress’ revolutionary politics [during the Nehruvian period], and then move to the bitter succession crises [after Nehru’s death] and finally the Supreme Court’s effort [after the crises] to establish itself as the leading defender of the constitutional principles left behind by the revolutionary Constitution established by the Founders.

What these four stages yield, argues Ackerman, is what he calls the constitutionalization of charisma: the Indian Constitution’s continuing legitimacy springs from its textual enshrinement of the principles that the founding generation had so valiantly won. American constitutionalists would routinely take this view for granted. In American constitutional culture, ‘the rule of law must appear to represent the people: law is authoritative because it is representative’.

Although De writes that A People’s Constitution ‘presents a contrary argument’ to this celebratory story, (9), I see it more as a needful complement. In several places, Ackerman seems to equate Nehru’s Congress Party with ‘We, the People of India’. Indeed, his previous work suggests that he is sympathetic to the view that only those who were politically mobilized at a republic’s founding were part of ‘The People’. In contrast, A People’s Constitution suggests that constitutional litigation enabled ‘groups that are marginal and have limited social capital amid a wider public’ and who ‘were vilified in public discourse’—i.e., ‘prostitutes, traders, or butchers’—to also gain representation as part of ‘We, the People’ by reframing their claims to fit the constitutional text, (222). De says that determining whether these marginalized litigants actually saw the Constitution as representing them ‘remains a puzzle for further inquiry’, and indeed may be ‘impossible to prove’, (219). Indeed, analogical evidence from anthropological studies of religion show that whether this is so may in fact be ‘entirely irrelevant’ since resort to a court, much like resort to a diviner or shaman, may be likely more ‘an empirical bet, the expectation and hope that particular rituals will [help resolve] practical concerns’, rather than an indicia of ‘faith or commitment’ to the idea of popular sovereignty. Be that as it may, the story De tells in A People’s Constitution offers a riveting account that such may have very well been the case.

Ackerman argues that the Indian Constitution did not need ratification because its ‘claim to speak for “We the People” had been established only through the exercise of charismatic authority by Nehru and Congress’. Nehru was easily able to constitutionally amend away judicial resistance because, during the Nehruvian period, ‘it was the living memory of the great sacrifices made by millions during the period of insurgency [led by Nehru’s Congress Party], not the constitutional text…that was the primary engine of popular legitimacy connecting the Parliament in New Delhi with the Indian people’.

De also acknowledges that ‘[t]he postcolonial state drew its legitimacy from its democratic mandate and development agenda, making it particularly hard for electoral minorities to challenge its agenda publicly’, (11). This is why these minorities ‘resorted to the courts’, (11). But De also notes that courts ‘were careful about what they struck down’ because they ‘remained conscious of the fact that these laws had been enacted by a popularly elected government that enjoyed both democratic legitimacy and popular authority’, (220). This proved problematic for electoral minorities, considering that ‘[t]he ambition of the postcolonial state was to reshape both society and the economy’ and ‘[t]he Constitution created a powerful central government with vast revenue-raising powers and virtually blanket powers of legislation,’ (23). Thus ‘[t]he police powers of the state expanded massively at the same time that democratic processes were being implemented’, (24).

Here we encounter what Edmund Morgan calls ‘the central problem of popular sovereignty’: ‘the problem of setting limits to a government that derived its authority from a people for whom it claimed the sole right to speak’. While Morgan notes that it is impossible to empirically demonstrate this claim, his 17th–18th century history of popular sovereignty in England and America is a tale of intergenerational efforts ‘to bring the facts into closer conformity with the fiction’ in ways that ‘gradually transformed the very structure of society’. Because the idea of popular sovereignty ‘tended to draw more and more actual people into the political process,’ writes Morgan, it enabled more and more of them ‘to translate abstractions into practice’ and thus ‘give a plausible factual basis to the fictions of popular sovereignty’. This, in turn, worked to set limits on popular government—thus helping resolve popular sovereignty’s central problem.

Similar to Morgan’s history, A People’s Constitution shows that the Indian Constitution allowed ‘some of India’s most marginal citizens’ to lead a process that ‘profoundly transformed everyday life in the Indian republic’, (9):

the Constitution…came so alive in the popular imagination that ordinary people attributed meaning to its existence, took recourse through it, and argued with it…Much to the surprise of politicians and bureaucrats across the country, Indians from all walks of life began flooding the courts and the public sphere with claims based on the Constitution’, (9).

The Congress Party established judicial review partly because part of its crusade was against the colonial regime’s arbitrariness, and it had promised that the ‘new regime would set itself apart from the colonial regime by reclaiming and instituting the rule of law’, (15). Thus, as Ackerman also acknowledges, the Indian Supreme Court ‘was far from silent’ during the Nehruvian period, and ‘identified a host of issues on which it could speak authoritatively without provoking a parliamentary override’. For Ackerman the main implication of this for constitutionalism was to bring about ‘a cultural revolution within the legal profession’: lawyers started to accept judicial review as a matter of course, and with the gradual accumulation of precedents striking down legislative initiatives, ‘the legal order’s self-confidence increased, creating a supportive environment for the professionally disciplined development of constitutional doctrine’.

For De, the ‘central actor’ of this revolution in constitutional culture was not the lawyer, but ‘the citizen litigant’, (26). They were the

thousands of individuals who turned to the court…from groups that were marginalized both socially and economically in independent India. Although only a few could be considered to be absolutely poor, many participated in the informal economy or were rendered marginal because of their religion or their sex. This diverse group of litigants included prostitutes, Muslim butchers, Hindu refugees, Muslims who had been evicted from their homes, vegetable vendors, and even the occasional peasant rebel’, (27).

Thus De suggests that ‘the constitutional culture of the 1950s was shaped predominantly by the interventions of certain marginal groups’, (222). These interventions enabled marginal ‘citizens to insert themselves into an elite conversation’, and ‘compelled state authorities, including high-ranking bureaucrats and ministers, to come to court to defend their policies. It also required them to respond specifically to the claims made by the litigants’, (25).

Take De’s account of Prohibition in India, for example. Prohibition had been a central plank of the Congress Party since the mid-1920s, and it ‘enjoyed support from a wide cross-section of the party,’ (39). Moreover, ‘[a]s a favorite project of Gandhi’s, Prohibition gained a degree of moral sanctity after his death’, (72). The Constitution, however, provided ‘a structure within which Prohibition could be resisted and negotiated’ that ‘transformed the debate over Prohibition in ways that the Constitution drafters had not anticipated,’ (34). Because the Constitution provided both ‘a space where the state’s vision of social order could be contested, and…a neutral language to challenge the democratic legitimacy that was enjoyed by the state’, constitutional litigation ‘increasingly emerged as a means through which the state policy could be safely critiqued’, (72). This strategy proved successful. As Bhatia eloquently puts it in his introduction to this series, ‘the exceptions that the Supreme Court mandated to the prohibition regime – for instance, that of medicinal alcohol – ultimately grew so unwieldy, that they destroyed the regime from within’.

De bolsters his point by adding another crucial item to the conventional list of fundamental changes to its colonial past (universal adult suffrage, an interventionist government, a liberal rights regime, and judicial review) that the Indian Constitution introduced. The Indian Constitution made India a ‘Republic of Writs’, (9), says De, by giving every citizen ‘the right to constitutional remedies’, (10). This set of innovations

allowed any citizen of India to petition the Supreme Court for the enforcement of fundamental rights granted in the Constitution. The powers granted to the state and provincial high courts (i.e., the appellate courts) were even wider: they were empowered to issue remedies in forms of writs against the state for the violation of fundamental rights, legal rights, and “any other matter”, (10).

 

Thus these remedies ‘empowered citizens to challenge laws and administrative action before the courts and greatly enhanced the powers of judicial review’, (10). I italicized part of this quote to emphasize that judicial review is not the same as the right to constitutional remedies. Recall that Marbury v. Madison, the United States Supreme Court’s 1803 decision which established judicial review in that country, ultimately ruled that even though Marbury was entitled to a writ of mandamus, the Court did not have the jurisdiction to issue it. In contrast, the Constitution of India gives the Indian Supreme Court and every High Court the power to issue writs of habeas corpus, mandamus, prohibition, quo warranto, and certiorari for the enforcement of fundamental rights.

De notes that this broad right to constitutional remedies (alongside the other breaks with India’s colonial past) ‘led to a massive explosion of litigation before the Indian courts’ and ‘radically transformed the practices of governance in ways the Constitution drafters did not expect’, (10). In the Constitution’s first year, ‘the Supreme Court heard more than 600 writ petitions’, and ‘[b]y 1962 the Supreme Court had heard 3,833 such cases’, (11). A People’s Constitution can be read as a story of how this immediate impact of the broad right to remedies greatly bolstered the legitimacy of India’s Constitution during its decisive first decade.

(The author is a post-doctoral fellow at the National University of Singapore.)

ICLP Book Discussion: Rohit De’s “A People’s Constitution” – IV: Always of the People?

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(As part of our blog round-table book discussion, this is the third – and penultimate – of the substantive responses to Rohit De’s A People’s Constitution, by Namita Wahi).

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Namita Wahi

Rohit De’s book, “A People’s Constitution: The Everyday Life of the Law in the Indian Republic” is a deeply informative, discursively deliberate, and delightfully entertaining, account, of how the “people” or “ordinary Indians”, often from minority or subaltern groups in India, not only engaged with the Indian Constitution but also transformed its application to their daily lives. In doing so, De argues that the “people” parleyed on equal terms with the state, which would not have been possible without the text of the same “Constitution”, that has been variously critiqued in scholarly literature as “undemocratic”, an “elite” project, and “an alien imposition” on the people of India. In focusing on the “individual litigant”, rather than “judges”, “lawyers”, or the “occasional politician” as the central actors of the story, De uses his elite access to the Supreme Court’s archives as law clerk to former Chief Justice K G Balakrishnan, to illuminate instead the lives and livelihoods, and trials and tribulations of what he describes as “non elite, marginalised” groups. These four groups include Parsi liquor business owners and operators, Marwari businessmen trading in state controlled commodities, Muslim Qureshi community butchers, and urban sex workers.

De’s unpretentious prose is interspersed with charming little details and newspaper cartoons about the motivations of policymakers and civil society groups who created the objectionable laws that were the subject of challenge from these four groups of “individual litigants”, and the mechanisms used by policy makers to build consensus amongst the “people” for such laws, which in turn provoked resistance from groups that De also terms the “people”.  Though loquacious at times, De tells a compelling story, and presents a textured analysis both of the processes by which laws were made in the first two decades post independence, and how they were sought to be unmade by “ordinary litigants”.

I applaud De’s scholarly excavations through the Supreme Court’s untouched archives, and find his arguments and claims in the book broadly persuasive. Below, I share some thoughts on these claims, not with a view to disagree with them, but in the hope of pushing De and other scholars to establish some of these claims more forcefully.

First, De claims, that despite the flaws in its drafting which have led some to label it as an “elite” or “alien” constitution, the Indian Constitution provided ample scope for “ordinary people” to litigate its guarantees before the Supreme Court, and in doing so, to indigenise and ordinarise it. Here, I must add, that as I have written elsewhere, the Indian Constitution was the first constitution of a commonwealth country drafted and adopted by its own nationals, which makes it more indigenous than most constitutions that came before, and most that came after. So, in my own scholarship, I have not strongly felt the burden of this criticism. But insofar as this critique of the Constitution’s legitimacy is deeply embedded within existing constitutional scholarship especially amongst historians, anthropologists, and political scientists, and continues to cause unease amongst legal scholars as noted by Gautam Bhatia in his introductory post about De’s book, it is important to take this critique head on and I welcome De’s attempt to do so in his book.

Second, De claims that, contrary to the entrenched conventional narrative about the Supreme Court, which regarded it as a Court for the “propertariat” before the emergency, and the court of the “proletariat” thereafter, in actual fact, the Court gave a voice to the “proletariat” even during the period that it was most vilified as the court of the “propertariat”. Again, I have sympathy with this claim, having sought previously to rebut it in my doctoral thesis “The Right to Property and Economic Development in India” (2014), which studies the constitutional property rights jurisprudence of the Court, that has been responsible in large part for the court’s infamy on this count. De’s painstaking description and analysis of the backgrounds of the “individual litigants”, some as religious, and others as gender minorities, and as coming from a lower social and economic status, go a considerable distance in rebutting the “propertariat” image of the Court.

Third, De suggests that the proof of the pudding is not always in the eating; it is also in the preparation of it. De demonstrates that ultimately, legal victories in the Supreme Court are not the only way of evaluating the success of the Constitution’s “fundamental rights” guarantees for Indian citizens. Sometimes, legal loss is but a step in building consensus towards a more long lasting social victory (as seen in the context of the s. 377 litigation in recent times). But if we trawl through the Supreme Court’s case archives, as De has done, it is quite possible that we will find many more such instances that substantiate this claim. At other times, the process of litigation helps to halt the governmental juggernaut, which gives the litigants enough time to transition to occupations or beliefs that do not fall afoul of the law (as seen in the four kinds of cases that De describes, as well as the property rights jurisprudence of the Court with which I am more familiar).

Now, I air my (mild) disagreements on some of these themes. First, the claim that the Supreme Court also protected rights of the “proletariat”, even as it protected the rights of the “propertariat” adds laudable complexity to the oft-repeated unidimensional view of the Court pre-emergency. It does not however, refute the deeply entrenched claim that the Court did stand for the “propertariat”. After all, the Nehruvian state’s painting of the Court as reactionary and anti poor was not merely because it lost the property cases that it did (though these are much fewer than what seems to be embedded in the public imagination), but its claim that these losses were fundamental barriers in reshaping the economy in a way that was essential to ensure economic development and social redistribution, which would alleviate poverty and misery. Therefore, in order to fully rebut the claim that the Court was reactionary and protective of elites, we cannot escape engagement with the court’s property rights jurisprudence.

Second, it is clear that there are many categories of elites. As Pierre Bourdieu has noted, there are many types of capital that help create social class: financial capital, social capital, cultural capital and symbolic capital. De’s “ordinary litigants” were not landowners. But insofar as these litigants were government officials (in a recent op-ed, Surjit S Bhalla has noted that India’s “jobs crisis” is in large part created by a demand for government jobs, thus providing some indication of the extent to which a government job confers economic and social capital to ordinary Indians today, even in a much more booming private market economy than that which existed during the period De interrogates), or owned businesses or participated in trades, or were taxpayers within a largely urban setting or “bazaar economy” as De calls it, at a time, when more than 70% of the Indian population lived in villages and the average life expectancy of all Indians was a mere 41 years, some of De’s “ordinary litigants” can be considered lesser elites. Of the four groups of litigants, Parsis though a religious minority, we know are, and have been a socially and economically empowered community in India, and the Marwaris, from the dominant Hindu community are also a socially and economically influential community in India. De’s claims are much more persuasive vis-a-vis the women sex workers, who both because of their gender and the “immoral” nature of their work, and the Muslim Qureshi community, who because of their “religious” minority status, and because of their involvement in a profession that was antithetical to the most sacred belief of the majority Hindu community regarding “cow worship”, can be considered truly marginalised.

De’s second argument, that the Nehruvian state was not anti-market but rather sought to reshape the market in accordance with certain social and economic goals, and used the law to achieve its goals of reshaping market relations, is also convincing. But, in my view,De could have engaged with this claim not just historically, but also theoretically. The claim in political science literature that the Nehruvian state was anti-market, stems from a pre- legal realist understanding of state market relations, according to which, the state and market are two separate domains, and it is possible for the state to choose whether to allow market forces to operate in freedom or to impose a statist vision on the economy. De’s response to this claim, insofar as he demonstrates that the Nehruvian state was not statist but actively involved in reshaping the market economy, though substantively robust appears pre- legal realist. Legal realist scholarship by scholars like Holmes, Hohfeld, Llewellyn, and Hale and further developed by Critical Legal Scholars, like Duncan Kennedy, Roberto Unger, and Morton Horwitz, has demonstrated that even in the most “free market” economy of the world, namely the United States, the state and the market are not two separate domains, but rather the state always creates the market economy through law. The reverse is not just a historically, but a theoretically untenable proposition.  De engages with the post realist literature in his description of Hendrik Hartog’s understanding that “law and legal practices were intrinsic” to the lives of ordinary Americans, noting that this understanding is missing from literature about India. Likewise, it would have been illuminating for us, if De had engaged with the post realist literature on state market relations.

But these are minor quibbles with De’s otherwise masterly account of how the Constitution empowered ordinary Indians to effectuate the promise of the Republic where all citizens, irrespective of caste, class, gender, or social and economic status, could enjoy the basic rights of life, liberty, equality, and property. Rohit De’s book is a seminal contribution to the recent body of scholarship that has sought to interrogate many conventional narratives about the Indian Constitution, and its self-appointed highest guardian, the Indian Supreme Court. It deserves to be read once for the sheer brilliance of the narrative, and its peek into the “everyday life of the law in the Indian Republic”, and reread many times for its discursive navigation across scholarly literatures, ranging from history, politics, sociology, anthropology and the law, and his insights that take our understanding further in all of those fields.

ICLP Book Discussion: Rohit De’s “A People’s Constitution” – III: Husna Bai, Sex Work, and the Constitution

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(As part of our blog round-table book discussion, this is the second of the substantive responses to Rohit De’s A People’s Constitution, by Prof. Ratna Kapur.)

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Prof. Ratna Kapur

Rohit De’s very compelling archival and historical excavation situates the Constitution and the making of Indian constitutional law in the everyday lives of the people. But not just any people. It is driven largely by those who were left out, excluded or subordinated, both historically as well as from the postcolonial liberal democratic political space. De describes this process as “constitutionalism from the margins.” These are the subalterns whose rights claims produced a constitutional consciousness.

The `marginal’ citizens that have led this process include the sex worker. De’s chapter entitled “The Case of the Honest Prostitute: Sex, Work, and Freedom in the Indian Constitution” provides a refreshing insight into rights struggles that have informed the legal regulation of sex work and how these continue to resonate in contemporary discussions on sex work, anti-trafficking and sexual morality.

The chapter provides a close reading of the case of Husna Bai, who, in 1958, filed a writ petition in the Allahabad High Court under Article 226 of the Constitution challenging the constitutional validity of the Suppression of Immoral Traffic in Women and Girls Act1956 (SITA). Her central claim was that as a sex worker and citizen of India, her right to practice her profession as a prostitute under Article 19 of the Constitution was being infringed by the new anti-trafficking regulatory regime established by SITA.  She wanted the Act to be declared ultra vires as it struck at the means of her livelihood, and “frustrated the purpose of the welfare state established by the Constitution in the country” (p. 169). The case received extensive media attention and was supported by prostitute organisations throughout the country, triggering similar cases in other high courts, including Delhi and Bombay.

De’s narrative draws attention to three important features of Husna Bai’s intervention.  The first is how it led to a convergence of opinion amongst female members of the Constituent Assembly and parliamentarians as well as social workers who had driven the legal campaign for women’s equality rights under Articles 14 and 15 of the Constitution to outlaw what they described as “immoral traffic”, and the emancipation of the prostitute. The campaign to have human trafficking and forced labour included under Article 23 of the new Constitution was led by one of India’s first female lawyers and a member of the Constituent Assembly, Durgabai Deshmukh and supported by Hansa Mehta, President of the All India Women’s Conference (AIWC).  Deshmukh and her female compatriots were aghast that a petition could be filed for upholding the “right to carry on prostitution or the business of brothel keeping” (p. 170), which they determined would undermine the national progressive agenda in favour of women’s rights to equality and freedom. Article 6 of the AIWC’s “Charter of Rights of and Duties for Indian Women”, included the role of women in maintaining moral standards. Within this framing there was no recognition of the subjectivity of Husna Bai, either as a sex worker, or as a Muslim and a citizen of India in her claim for rights. Instead she was viewed as a victim and an abject subject, to be rescued, rehabilitated and incorporated into the dominant moral order. Her future in postcolonial India would be scripted by those who viewed themselves as the keepers and preservers of Indian womanhood and the moral dignity of the nation. The position of Deshmukh and other liberal female parliamentarians presaged the anti-sex trafficking and abolitionist position of Indian feminists that has been dominant in the contemporary moment. The construction of the identity of the nation as a sexually conservative, heteronormative, marital and reproductive arrangement was to constitute the normative scaffolding within which women’s subjectivity was to be recognized and women’s equality rights conferred in postcolonial India.

Second, Husna Bai is the first case to foreground the agency and presence of the female sexual subaltern in law. The prostitute had been constructed largely as a contaminant and a source of disease in colonial law. This construction erased the plural and varied categories of female sexual subjects in the Indian context that included temple dancers, concubines, sex workers, dancing girls, classical musicians and others.  Husna Bai’s intervention signalled the arrival of the female sexual subject, who challenged the vast bureaucratic and welfare apparatus established under SITA to manage and regulate the prostitute all without her consultation or participation. This exercise of governmentality was designed to ensure the female citizen’s compliance with the emerging conservative norms of Indian womanhood through which the identity of the Indian nation came to be established. Vast powers were conferred on local magistrates as well as the police to manage this `rogue’ subject into normative compliance or be evicted from the public arena and sequestered into protective homes and shelters that rendered her completely invisible and non-existent.

Husna Bai’s challenge, filed almost immediately after the promulgation of SITA, attested to her knowledge of its implications on a range of her fundamental rights.  It also triggered the mobilisation of sex workers in the form of both protests as well as similar legal challenges against the encroachment of the new legislation on their rights. In this struggle, women’s rights advocates were directly pitted against the rights of the women affected by the new law. While sex workers had managed to navigate their lives around earlier laws through techniques such as bribes, claiming to be married (pp.182-183), labelling themselves as dancing girls or singers to avoid prosecution as `public prostitutes’, they continued to be subjected to intense legal and moral scrutiny. Husna Bai chose not to continue with these methods, which denied her status as a prostitute. Instead she opted to fully confront the repressive nature of the laws as well as the categorisation of sex workers as immoral, criminals, or deviants.  In claiming the right to practice her trade and profession on behalf of her entire class of workers, Bai presented herself as a “labouring citizen claiming economic rights” (p.189) as well as a breadwinner for her family.  The implications of such a bold position were both legal and normative. Not only did Bai insert herself as a legitimate citizen entitled to rights claims, she also disrupted the victim/contaminant rhetoric in which the sex worker’s subjectivity had been embedded in law.

The third implication of Bai’s intervention involves the court’s response to her claims and its legacy for the female sexual subaltern as well as feminist politics in the postcolonial present. Husna Bai’s petition was ultimately dismissed but not before the court examined her substantive arguments. Justice Sahai of the Allahabad High Court was of the view that prostitution could be recognized as a trade under Article 19(1)(g), and that restrictions which totally prevented a citizen from carrying out her trade would be unreasonable and void. The fact that the act criminalised `living off the earnings of a prostitute’ was found by Justice Sahai to be unreasonable, given that the trade was usually carried on in the home of families living together, and where household expenses were also shared. Bai further challenged the provision permitting a magistrate to remove a woman from his jurisdiction if the court received information that she was a prostitute. She alleged that the provision impinged her right to mobility, violated her right to equality insofar as the prostitute was treated differently from all other women and this was an unreasonable classification, and infringed her right to freely practice her trade under Article 19(6) (pp.198-199). Justice Sahai supported Bai’s objections. He was of the view that the conferring of unfettered power on a magistrate to remove a woman from his or her jurisdiction for all time, was not only arbitrary, but only served to push her into another locality, and did nothing to liberate her from the trade. In the end, while Justice Sahai accepted the merits of Husna Bai’s challenge, he declined to entertain her petition because her specific rights had not as yet been violated, and hence the petition was premature.

In 1964 the Supreme Court upheld the constitutional validity of the various provisions of the SITA that were the subject of the legal challenges brought by Husna Bai and others after her. In the State of Uttar Pradesh v Kaushalya Devi, Chief Justice Koka Subbarao not only upheld the classification of the prostitute as a separate category as reasonable, but also held that the power conferred on magistrates to remove her from the jurisdiction depended on the “values of life in a society… and the degree and urgency of the evil sought to be controlled” (p. 208). The case sought to push the sexual subaltern back into a normative box.  But De’s inclusion of Husna Bai’s case is not located within the logic of victory or defeat. It is to demonstrate the ways in which the subaltern could perform her rights under the new Constitution as an entitled citizen, challenging the dominant myth that the Constitution was a judicially driven endeavour. Bai’s case did not die with the dismissal of her petition. Justice Sahai’s reasoning has become a peg on which the sexual subaltern has fastened her subsequent rights claims. The legacy of Husna Bai thrives in the undercurrents of subsequent challenges, especially in contemporary trans rights and LGBT rights advocacy.

De’s foregrounding of Husna Bai’s petition is a crucial intervention in the debates on sex work and trafficking, which have moved rapidly to the top of feminist national and global agendas in the contemporary moment. The narrative he pursues through Bai’s case speaks to the dissonance and disruption that the female sexual subaltern brings to the legal arena, and to the neat and tidy prescriptions on how to be a proper/good Indian woman. And as De points out, the narrative also challenges the position of those feminist scholars who view the law as inherently patriarchal and incapable of accommodating the claims of women such as Husna Bai. De demonstrates how Husna Bai’s petition produced alternative understandings of female subjectivity in the legal arena that stood in direct contrast to those being promoted by (bourgeoisie) women’s rights advocates and female parliamentarians in the aftermath of freedom. The case not only triggered a series of rights claims and litigation by sex workers, it has become a part of the genealogy of sexual subaltern subjectivity that is echoed today in the rights advocacy of groups such as Calcutta’s Durbar Mahila Samanway Committee (DMSC). The case exemplifies how sex workers have talked back to middle-class women’s groups in the language of rights (p. 210) and continue to do so.

De’s excavation of the historical narrative is a vital contribution to the archive on the female sexual subaltern’s presence in Indian constitutional legal discourse. It complicates equality rights claims by highlighting the distinction between those women who were pre-selected (or self-selected) as entitled to equality rights in the nationalist and postcolonial liberal democratic order, and those subalterns who were excluded and compelled to battle through the courts for legibility through rights claims in the newly accorded space provided by the Constitution. This contribution pushes back against the often patronising and protectionist stand of nationalists as well as women’s rights groups who usurped the subaltern voice. Partnerships or alliances between conservative religious groups, progressive-left, centre- liberal, progressive secular feminist groups as well as sex work abolitionists around issues of sex work and anti-trafficking have become commonplace in the global politics of sex and gender.  De’s foregrounding of the subaltern voice not only signals the presence of the “resistive subject” in Constitutional rights making and adjudication, it presents a history of how this voice was formative in the emerging politics of women’s Constitutional rights discourse in the aftermath of independence. It provides a crucial archive for marginalised women and sexual subalterns to draw upon in contemporary constitutional rights struggles.

(Ratna Kapur is Professor of Law , Queen Mary University of London, and Distinguished Visiting Professor, Symbiosis School of Law.)

ICLP Book Discussion: Rohit De’s “A People’s Constitution – II: The Search for Truth in the Republic of Writs

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(As part of our blog round-table book discussion, this is the first of the substantive responses to Rohit De’s A People’s Constitution, by Suhrith Parthasarathy.)

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Suhrith Parthasarathy

Rohit De’s “A People’s Constitution: The Everyday Life of Law in the Indian Republic” is an extraordinary book and demands engagement not only by lawyers and historians but by anyone who’s interested in the state of India’s polity. The book seeks to bust the myth that the Constitution represents a preserve of the privileged and the elite. It shows us instead how the document came to occupy a central place in the daily life of the citizen. De achieves this by framing each of his chapters around a distinct set of constitutional challenges—the idea behind this, as he writes, is to underscore three connected themes: “the process through which the Constitution emerges as an organizational assumption and a background threat for the state; the greater accountability of procedural over substantive challenges to government action and the origins of constitutional consciousness among certain citizens.”

In the present post, I’ll look to focus on the second of these themes, that is the higher judiciary’s—both the Supreme Court and the high courts’—greater receptiveness to claims made over procedural irregularities over claims made through an assertion of substantive rights. This proclivity, which is sometimes profoundly injurious to the Constitution’s guarantee of fundamental rights, I’ll argue, is a product of design, an inherent weakness in the nature of writ jurisdiction. Assertions for substantive rights tend not to enjoy an equal level of traction as assertions made over procedure, because they require the courts to engage with competing arguments at a deeper factual level, requiring a testing of the veracity of claims and counter-claims made both by petitioners and the state alike.

Indeed, the very cases that De has chosen to concentrate on, which have no doubt intensified the Constitution’s reach, making India, in the author’s words, “a Republic of Writs,” bring to light this limitation. Consider the slew of petitions filed in 1957 challenging the validity of laws banning cow slaughter, which culminated in the Supreme Court’s judgment in Mohd. Hanif Qureshi & Others vs The State of Bihar. One of the key arguments made by the Qureshi community was that a law banning cow slaughter altogether would only prove wasteful, and would, in fact, militate against the text of Article 48, which, as a directive principle, enjoins the state to “organise agriculture and animal husbandry on modern and scientific lines,” and “take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.”

In seeking to further this argument, the petitioners in Mohd. Hanif Qureshi had cited a 1953 circular issued by the Union Ministry for Food and Agriculture, which read as follows:

“A compulsory ban on cow slaughter would lead to a lower standard of cattle life in the country. Nearly 40 million cattle in the country do not give milk and are a drain on available fodder and other cattle food. Their maintenance entails enormous expenditure, making it impossible to provide the care and nourishment to productive cattle that is required to improve their milk and capacity and traction power. The result is that even productive cattle gradually deteriorate and cease to be productive.”

 

Additionally, the Qureshis claimed in court that a ban on cow slaughter would result in depriving many people of a cheap source of food. What’s more, the measure, they contended, was economically faulty. To this end, they relied on data which showed that an increase in cattle between 1945 and 1951, on account of a reduction in cow slaughter, had not led to a concomitantly significant increase in the supply of milk. Further, a complete ban, they argued, would also substantially damage trading in leather apart from putting an end to a range of other industries, including gut making, glue making and blood dehydrating.

One petitioner, Mohammed Siddiq from Rampur, De points out, made a rather curious, but potentially compelling argument. Abandoned cattle, which went “unclaimed by anyone and which could be destroyed by no one,” he asserted, were roaming the countryside freely and were forcing cultivators to hire people to merely keep watch over the fields day and night to ensure that these cattle weren’t causing any damage to their crops.

On the other hand, one of the respondents in the Supreme Court, the Government of Uttar Pradesh, rebutted these claims by relying on the findings of the Gosamvardhan Enquiry Committee Report. The report, the state argued, had made it clear that the “absence of the ban on cow slaughter had been tried for years past with no appreciable results on the improvement of the cows, nor have uneconomic cattle been lessened with the freedom to kill.” An absolute ban on cow slaughter, the report had concluded, was the only way at achieving the objectives of Article 48.

Now, how were the judges to test the correctness of these clearly contradictory claims? After all, as a court of first instance, exercising original writ jurisdiction, the Supreme Court did not possess any clear power to call for witnesses, to take evidence from them, and to allow for cross-examination. As De observes, Chief Justice Sudhi Ranjan Das, who delivered the court’s judgment, was frustrated by these limitations. “It is difficult to find one’s way out of the labyrinth of figures,” he wrote, “and it will be futile for us to attempt to come to a figure of unserviceable agricultural animals which may even be approximately correct.”

This handicap (which isn’t present when courts of first instance exercise ordinary original civil jurisdiction, for example) has meant that the Supreme Court, and the high courts, when exercising their authority to issue prerogative writs have tended to see fact finding as lying outside the scope of their powers. Every time a court, despite claims of substantive rights violations being made, is asked to determine a question of fact it dithers. In doing so, the invariable consequence is a lending of credence to the state’s version of events. This was apparent most recently in the challenge made in the Supreme Court to the constitutional validity of the Aadhaar Act. Reams of affidavit evidence were submitted by the various petitioners highlighting the exclusionary characteristics of the programme. But these were brushed aside with disdain, and, instead the court placed enormous reliance on a “power-point presentation” made by the chairperson of the UIDAI, the nodal authority in charge of running the Aadhaar programme. Given that these facts were not supported by evidence on affidavit, ordinarily the court shouldn’t have so much as allowed the presentation to be aired. But this goes to show how far the court’s writ jurisprudence hamstrings its powers to determine disputed questions of fact.

Yet, constitutional challenges can never really be divorced from fact-finding. In the Aadhaar case, the Supreme Court’s majority opinion conceded that a test of “proportionality” ought to form the basis for judicial review when claims are predicated on a violation of a right to privacy. But, as Mariyam Kamil has pointed out in this blog, this is a test that demands an intense enquiry into facts. In the case before it, to apply the test of proportionality to the Aadhaar Act, the court would have had to answer a series of factual questions, including as Gautam Bhatia has written here, whether Aadhaar-based biometric authentication was effective at plugging welfare leakages (which was what the Act claimed as its purported goal)? Whether there were effective, alternatives to Aadhaar which can help achieve the same goal? If so, were such alternative measures less intrusive on the right to privacy? It is only in answering these questions could the court have really determined whether Aadhaar was the least restrictive measure available to achieve the legislature’s goals.

Over the years, when faced with conundrums over how to test contradictory claims, the Supreme Court has customarily either veered towards accepting the government’s statement of facts (we recently saw an extreme version of this in the Rafale judgment) or has appointed an expert (usually an amicus curiae) to file a report—in Qureshi’s case, for example, the court invited Thakur Das Bhargava, who, as a member of the Constituent Assembly, had been instrumental in drafting Article 48. But invariably the appointment of an amicus curiae has only resulted in dispensing with the standard rules of evidence in an adversarial proceeding. As S. Muralidhar, now a judge of the Delhi High Court, wrote in 1998, the upshot of all of this is that the petitioners are “entirely at the mercy of the amicus curiae who as the delegate of the court’s screening power can decide who can or cannot petition the court and what can and cannot be said by them.” [For a detailed discussion on the dangers of making petitioners dispensable, see Anuj Bhuwania, Courting the People, which was reviewed here].

De’s book shows us that on the making of the republic, writ petitions were new not just to litigants but also to lawyers and judges alike. Justice Mehr Chand Mahajan, India’s third chief justice, quite candidly admitted that his knowledge of constitutional law, when he was appointed to the bench, was rather limited, and that he spent his first couple of years on the Supreme Court reading American constitutional jurisprudence. But those early years, in which the Constitution transformed the lives of the ordinary citizen, what also became quickly apparent was the inherent limitation in using writ petitions as a means to further substantive rights. Almost right from the outset, both the Supreme Court and the high courts struggled to resolve what they perceived as a dichotomy between fact-finding and constitutional judgment. Even though the Supreme Court now recognises, in theory, that laws made by the state ought to conform to due process, both substantive and procedural, the limitations of the judiciary’s writ jurisdiction have meant that litigants, on the advice of counsel, have had to structure their strategy by predominantly grounding their arguments on procedure.

Hence, quite contrary to what the general theory of constitutional jurisprudence in India posits, adjudication continues to be centred on an assumption of legislative facts. But to conduct a meaningful judicial scrutiny of legislation, a disinterested and rigorous consideration of facts becomes essential. There is, therefore, an imminent need to think more carefully about burden of proof and rules of evidence in constitutional cases—relying merely on the filing of affidavits, counter-affidavits and affidavits in rejoinder has proved grossly insufficient. Now, no doubt, in principle, depending on the nature of the violations alleged and the nature of the scrutiny employed, the onus of establishing a set of facts tend to shift to the state. But the question of when this burden gets discharged remains. How must a court appreciate the different statements of fact made before it?

De’s book, like the best books on history, unearths events from the past by enlightening the present moment. In showing us how constitutional law can intersect with rules of evidence he presents an issue of substantial, contemporary importance. Ultimately, it’s imperative that courts establish a cogent and consistent approach to resolving disputed questions of fact. Only then will constitutional adjudication transform itself from concerns over procedure to concerns over substance.

ICLP Book Discussion: Rohit De’s “A People’s Constitution” – I: Introduction

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(Over the next few days, the Indian Constitutional Law and Philosophy Blog will run a book discussion on Rohit De’s A People’s Constitution: The Everyday Life of Law in the Indian Republic. This is the introductory post.)

There is a standard – and long-standing – narrative about the evolution of the Supreme Court of India. In the first thirty years of its existence (or so this narrative goes), the Court was an elite institution, mediating conflicts between landowners and the State in constitutional battles over the right to property, and often taking the side of the former. All this changed after the Emergency, and with the advent of public interest litigation: now the Court began to take seriously the concerns of the vast majority of Indians, transforming itself – in the words of Upendra Baxi – from “the Supreme Court of India” to “the Supreme Court for Indians.”

A striking feature about this narrative is how firmly it places the Supreme Court at its centre. It is the Court that assumed a certain institutional posture in its first three decades, and its the Court – driven by heroic, individual judge-crusaders – that reversed itself after the 1980s. Perhaps ironically, this narrative fits easily with another account: that the Indian Constitution is a top-down imposition upon the People, that was – and is – culturally and socially at odds with it. These two accounts come from opposite ends of the political spectrum, but they unite in attributing to the Court the exclusive agency of shaping Indian constitutionalism, and denying any significant role to non-institutional actors – i.e., the People.

In recent times, a certain degree of self-satisfaction with respect to the PIL project has been questioned, with books like Courting the People (discussed here) pointing out that a project that is ostensibly about democratising the law, but continues to be driven by judges and lawyers, will likely come up short in fulfilling its democratic aspirations. Rohit De’s A People’s Constitution now questions our popular beliefs about the first half of the popular narrative: the first thirty years of the Court were not quite as undemocratic as we have been led to believe. It was not just economic and social elites engaged in a war of position with the post-colonial State, with the Court serving as the battleground; rather, it involved the People, in a much deeper and more meaningful way than is presumed.

Rohit De

The Questions

De frames this argument around four early Supreme Court judgments, that will be familiar to students of constitutional law: Behram Pesikaka v State of Bombay (concerning prohibition in Bombay), Hari Shankar Bagla v State of MP (concerning commodity controls under the Essential Supplies Act), Mohd. Hanif Qureshi v State of Bihar (concerning cow slaughter prohibitions), and State of UP v Kaushaliya (concerning the regulation sex work under the Suppression of Immoral Trafficking Act). In each chapter – that deals with one of these judgments – De asks the following questions: who was the person – or people – who brought the case to Court (and, relatedly, who were the people who commenced litigation that led up to the Supreme Court judgment at issue – often, there would be prior cases, filed by other people, that would set the stage for the final adjudication)? What were the social, economic, and cultural contexts that triggered their decision to challenge the State in a court of law? Once in court, what legal strategies did the petitioners adopt to maximise their chances of success? How did the State and the broader society respond to the judicialisation of this particular conflict? And, after the judgment, what were the consequences – often going beyond what the published decision might suggest?

The Answers

Five themes emerge out of De’s study.

First – and this really is the core argument of the book – a close analysis of the discursive terrain around these cases suggests that, contrary to the caricatured account of the early Court – the Indian constitutional project was not judge-driven, or even elite-driven. Whatever the circumstances surrounding the framing of the Constitution, these cases show that once framed, the Constitution, constitutional idioms, and – dare we say it – constitutionalism percolated “downwards” very swiftly. Behram Pesikaka was a Parsi government employee, Hari Shankar Bagla a small businessman who was arrested while traveling in a train, Mohammed Qureshi one among three hundred qureshi butchers whose livelihoods were hit by cow slaughter prohibitions, and who came together to take the case to Court, and Kaushaliya a sex worker arrested under the SITA. Each of these persons elected to frame their conflict with the State in constitutional terms: that the prohibition law violated the rights to equal protection, free expression, and privacy, and that commodity controls violated the right to trade, as did the cow slaughter provisions and (strikingly) the prohibition of sex work. And each of these petitioners also framed their arguments in the constitutional language of limitations upon arbitrary State power, and the necessity of the State following the rule of law and a fair procedure. That is not all: as De shows, these cases did not appear in court out of vacuum. They required prior, public groundwork, where constitutional claims were raised and agitated in other forums – before administrative committees and town councils – before they were taken to Court. As De argues, therefore, it is facile to argue that the Constitution is received by the People as an alien imposition; the reality is far more complex, and shows that among many constituencies, affected people took the Constitution, and made it their own.

Secondly – not only were the Petitioners non-elite people, they were, in many ways, disadvantaged – in fact, De suggests that it was their very inability to influence policy that led them to turn to the Court for redress. The qureshis who challenged the cattle slaughter prohibition belonged to a religious minority, and were classified as such; small businessmen such as Bagla were (as De illustrates fascinatingly) subjected to particular scorn and obloquy in newly independent India; and sex workers, of course, were viewed as a moral threat to the character of the nation. What is particularly interesting is that these were people who had least to expect from participating in the formal channels of communication with the State. As De shows, there were other, informal options – of negotiation and accommodation – open to them; but instead, they chose another formal route to engage with – that of the Court and the Constitution.

Thirdly – this engagement mattered. On paper, the constitutional challenges failed: the Prohibition law was upheld (for the most part), commodity controls and the ESA were upheld, cow slaughter legislation was upheld, and the SITA was upheld. However, by exploring the context outside of just the published decision, De is able to show that the consequences are far more complex than is initially assumed. For example, the exceptions that the Supreme Court mandated to the prohibition regime – for instance, that of medicinal alcohol – ultimately grew so unwieldy, that they destroyed the regime from within. Similarly, the Court’s seemingly minor concession in Qureshi – that aged or infirm cattle could be slaughtered – actually provided a significant breather for the butchers whose livelihoods were affected, and forced other states to take a step back and bring their own (more stringent) laws in line with the judgment. The implementation of the SITA in a way that respected High Court pronouncements caused significant problems for the Police, and for social workers driven by ideas of moral purity and hygiene. And so on. Consequently, it is not just that the People used the Constitution as a terrain on which to defend themselves against the power of the State – it is also that they made tangible and non-trivial gains in doing so, and the State was forced – in De’s words – to “discipline itself.” This is a lesson that is particularly important for the present day – indeed, the very evening before amendments to the Aadhaar Act, in response to the Supreme Court’s judgment – are due to be introduced in the Lok Sabha.

Fourthly – the greatest successes came not through agitating substantive constitutional rights, but by insisting on fidelity to procedure. We are familiar with Justice H.R. Khanna’s famous words in ADM Jabalpur that “the history of personal liberty is the history of adhering to procedure.” De shows us how that worked in a far more quotidian set of contexts. So, judges might be reluctant to accept that sex work was constitutionally protected as a “profession” under the Constitution, but they were far more willing to consider the proposition that giving a Magistrate the power to expel a sex worker from a particular area was a breach of the Constitution. Judges may be hesitant to invalidate the prohibition regime per se, but they could be persuaded to accept that barging into an individual’s home by the police breached a constitutional boundary. And so on. Once again, at a time when fidelity to procedure is coming under the spotlight once more, this is a lesson we would do well to remember.

And fifthly, a close look at the contexts of these cases pushes back against another dominant narrative – that of the Nehruvian governments being “anti-market.” De shows through the judgments that what was actually happening was that “the new state was attempting to create a new set of market norms and reshape networks of circulation, whether of goods (alcohol, beef, and cotton), capital, or bodies.”

Conclusion

While one would not go so far as to call the moment of the framing of India’s Constitution as an “original sin”, there is little doubt that the manner in which the Constitution was framed caused – and continues to cause – a lingering unease. At the end of the day, the Constituent Assembly was not elected on the basis of universal adult franchise. The Draft Constitution was not put to the People in a referendum. The Constitution was written in English, the language of the coloniser. Members of the Constituent Assembly did protest that the concepts and vocabulary of the instrument was alien and foreign to Indian soil.

None of these are objections that can be dismissed in a cavalier fashion. And when we engage with them seriously, they present two disquieting questions: what is it that makes the Constitution legitimate? And is the constitutional project – as it stands today – worth defending?

A People’s Constitution helps us to answer both questions. The legitimacy of the Constitution stems from how its addressees – the People of India – use it to frame their claims and their interests, as a terrain on which they can shed social, economic, and cultural disadvantages, and face their opponents (often, the State) on equal terms, and as an instrument that puts them in an equal dialogue with power. De’s account of the raucous, polyvocal 1950s and 1960s shows us how the Constitution did just that. And as long as the Constitution does that, the Indian constitutional project will always be worth defending.

For that, A People’s Constitution is a profound and valuable intervention into an ongoing national conversation, and deserves to be read and studied closely.

(Three guest commentators will follow, commenting on specific aspects of the book. This will be followed by a Response from the author.)

Guest Post: Hacking the Supreme Court in the Age of AI

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(This is a guest post by Anand Venkatanarayanan).

Introduction

How do you bring down a democracy? In their seminal paper, Bruce Schneier and Henry Farrell argue that democracy is a political information system, which has the following characteristics.

  • Common knowledge – the consensus beliefs that hold systems together.
  • Contested knowledge – the knowledge that is contestable, where people may disagree.

They argue quite convincingly through the example of Russian election meddling in the US elections, that democratic systems have an inherent vulnerability that can be exploited to bring it down: this vulnerability comes into play when common knowledge becomes contested knowledge. For example, the disinformation campaign launched by the Russians included undermining knowledge assumptions about how voting works, spreading distrust about the candidates and also the political system in general, through a variety of other means.

This post builds on the above paper and further argues that dispensation of justice is also an information system in a democracy, and has the same characteristics. For instance, “settled law” can be viewed as common knowledge, while different interpretations of law by different benches of the Supreme Court of India (due to its polyvocal nature) can be regarded as contested knowledge.

When viewed through this lens, one way in which the Supreme Court could be brought down is by turning common knowledge into contested knowledge. For instance, a party that has lost a case in the court can ascribe extraneous motives to the judge who gave the judgement, and attempt to turn common knowledge (Court orders are binding) into contested knowledge (they are not binding and can be flouted because they are based on extra-legal factors).

While Courts have evolved contempt jurisdiction to handle external attempts to change common knowledge into contested knowledge, this post argues that the Supreme Court has become institutionally blind to how i’s recent judgements, in attempting to deliver substantive justice by disregarding procedure, are turning common knowledge (settled law) into contested knowledge, and thereby undermining public trust on it.

Procedure, Proof and Innovation

It is often said by Karl Popper that Science never proves, but only disproves. At the heart of his assertions is the simple observation that “criterion of the scientific status of a theory is its falsifiability, or refutability, or testability”. The difference between science and pseudo-science is that pseudo-science does not offer any testable experiments (natural or otherwise) that can disprove the hypothesis.

Testability by others, and not just by the claimants, hence is at the heart of scientific inquiry. For instance, while someone can make a claim that peacocks reproduce by crying, by virtue of their position and title (as a judge), it is deemed to be absurd because contrary evidence has been recorded by eyewitnesses and others for a very long time.

How does testability itself works in the scientific world? It is defined as a process that must be followed to ascertain the validity of the claims. This includes formal proofs, experimental observations, peer review through publishing in journals, feedback, revision and finally acceptance or rejection.

Thus process, procedure and innovation are deeply interconnected in furthering scientific knowledge. There are well known cases such as fraudulent stem cell research where all of this failed, but that was not because of lack of application of the due process – it was in spite of it. Thus, failures in applying due process are very rare and practically non-existent – and the necessity of due process itself gets strengthened through exceptions such as the fraudulent stem cell research case.

Scientific due process is hence an information system, which everyone agrees is essential (Common knowledge) to mediate substantive disputes (contested knowledge). Hence innovation (change) in due process, while permissible and welcome, is not arbitrary and accepted only when it aids on mediating disputes and in furthering scientific knowledge.

Evidence Act and other norms

In the legal system, the Evidence Act of 1872 can be viewed as the equivalent of scientific due process, since it provides a legally sanctioned framework, which covers in detail how to establish facts within the context of a legal dispute, and also issues of proof generation, and scrutinizing those proofs via cross-examination.

The Indian Evidence Act embodies the adversarial system of justice, where parties represent their case before judges, who attempt to determine the truth and pass judgment accordingly. In this system, the Courts are expected to follow due process (as set out in laws such as the Evidence Act) and other norms to decide the ratio decidendi of a particular case. This, in turn, implies that (subject to their own interpretation, of course) the rules set out under the Evidence Act and other norms can be thought of as “Common Knowledge”, which used to mediate substantive disputes (Contested knowledge). Innovation in common knowledge (i.e., modifying or bypassing due process) must be accepted only when it aids in delivering justice.

However, if common knowledge (due process and norms) can be converted into contested knowledge (due process and norms are not important and hence can be discretionary), it introduces an “attack surface” on the justice system itself, which is not patchable (in software terms, not patchable means that it can’t be fixed). What would be the implication if this attack succeeds?

The Salem witch trials offers us an example of this played out in medieval times: in these trials, “tribunals” admitted spectral evidence based on dreams and visions. Leaving aside the problematic outcomes of the witch trials, they resulted in results void of any reason and reflected the bias and prejudices of the population as well as the judge.

Modern-day effects are very similar, and a critical analysis of CJI Dipak Misra’s judgements pointed out how outcomes void of reason have become the norm. Sealed covers and power point “evidence” are the modern day variants of medieval spectral evidence. And whether it the non-existent CAG report in the Rafale judgement or the dodging of facts and inverting reality and claiming that something that was argued in open Court was never actually argued in the Aadhaar judgment, jettisoning reason has serious consequences and makes judgements unintelligible.

If reason and norms are abandoned, what replaces them? Both the Rafale judgement and the Aadhaar judgement show that it is replaced by excessive faith in the government of the day, and statements by government functionaries have higher evidentiary value, even when they are unsigned, not placed on affidavit and demonstrably false, when put under scrutiny.

Attack surfaces on the Supreme Court

The structural faults elaborated above exposes the Supreme Court to new attack vectors, which can be pulled off by actors in the age of Big data and Artificial intelligence (AI). State governments are turning towards AI systems for crime detection and even the court seems to believe that it can be used for medical education reform. Note that faith in technological regimes is not new, but even the creators of AI are not sure what they have built and how they work – in contrast to their employers, who believe that we can have, not just accurate AI but trusted AI as well. But if they manage to convince the executive and the government of the day to publicly pronounce their faith in new technological regimes, success is guaranteed against any litigation, since the court places excessive faith in the statements of the government and it’s functionaries. For example, as the creator of Aadhaar had so convincingly demonstrated, all that was required was to convince three judges that mattered, and Court’s belief in the government’s statements overrode reason, logic and other norms, including open contempt towards it’s interim orders.

This post predicts that this “trust us at the cost of established due process norms to establish contested knowledge” would be the new normal in how technology projects would be rolled out in the future, and litigation by citizens against those projects will always fail, unless the court reverses course.

Conclusion

This post made three claims based on the paper by Bruce Schneier and Henry Farrell

  1. Justice is an information system in a democracy and hence has the same vulnerabilities: common knowledge attacks are deadly to its legitimacy.
  2. The Supreme Court of India, in its quest to deliver substantive justice, has often ignored laws and norms which constitute common knowledge, and has hence unknowingly participated in an insider attack (in information security parlance) that has the potential to erode the court’s legitimacy in the public eye.
  3. The vulnerability caused by this blindness will be ruthlessly exploited by marketers of technology projects which will use Big data and AI.

It is entirely possible for others to disagree with the above claims, but the claims are at least testable in the Popperian sense; and thinking about justice as an information system that has unique vulnerabilities might bring to the fore new perspectives about its relationship to security.

Guest Post: Using International Law in Indian Constitutional Adjudication

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(This is a guest post by Shubhangi Agarwalla.)

Since the late 1970s, the Supreme Court, on the basis of Article 51 of the Constitution of India, has started articulating a sense of obligation towards applying international law in its decisions. The high visibility of the cases in which the Court has called upon international law has brought a lot of attention to this practice.

Monism and Dualism

Historically, the doctrines of monism and dualism have been used to understand the relationship between the international and the domestic order. According to monist approaches, international law ought to be automatically incorporated into the domestic legal order, without the requirement of any additional act of adoption or transformation by the state. On incorporation, international law is slotted into the hierarchy of legal sources applicable within the domestic legal order. Dualists however believe that international and domestic laws operate in distinct spheres and so the only mechanism for the transformation of international law into domestic law is through the medium of regular domestic law-making processes.

As doctrines, monism and dualism are formalistic constructs that fail to reflect the numerous ways in which global legal interactions take place, especially in light of the increasing overlap of the international and domestic legal orders. However, they are given importance by various state authorities. India, for example, allocates powers in relation to international law along the dualist paradigm. The relevant part of Article 51 exhorts the state, and not the courts, “to foster respect for international law and treaty obligations in the dealing of organized people with one another.” The Constitution Assembly debates barely shed any light on the intent, scope, or content of the provision. In fact, while introducing the draft article for discussion, Dr. Ambedkar, the Chairperson of the Drafting Committee, stated that, “[t]he propositions contained in this new article are so simple that it seems to be super-arrogation to try to explain them to the House by any lengthy speech.”

Interestingly, an argument can be made that the purpose of Art. 51 was never meant to be enforced by the judiciary to invoke international norms. The language of the article was based on the Havana Declaration, adopted at the Second Conference of American State Members of the International Labour Organization, 1939, in which the signatories proclaimed their faith in the imperative need to achieve international peace, inter alia, ‘by the maintenance of justice and the scrupulous respect for treaty obligations in the dealings of organized peoples with one another.’ Based on this Declaration, and after going through various drafts and amendments, the Art. took its present shape. The debates indicate that Art. 51 was considered non-obligatory, and was clearly intended to guide India’s foreign policy and form the basis of its international relations, rather than provide for how India should approach its international law obligations domestically.

In Search of a Principle

Unfortunately, the Court has used international law norms with cheerful abandon and offered little by the way of justification and explanation for this interpretive move. This has invited criticism that judges assert international law for its status as opposed engaging with its content. The failure of the Court to justify its use of international material is of legal significance. Take for example, Narmada Bachao Andolan v UOI, wherein the court relied on ILO Convention 107 just because it was law at the time despite the fact that it was being hotly debated for its assimilationist and paternalistic approach towards the indigenous population. This Convention came to be replaced by Convention 169. Thus, read against jurisprudence as a whole, Narmada was a mistake. Had the Court engaged with the reasons underlying the Convention it would have made it harder to overrule.

Moreover, it has directed the State to give effect to treaties which have not been incorporated into domestic law (PUCL v UOI), judicially incorporated it itself (Vishakha), referred favourably to treaties to which India is not a party (G Sundarajan) without even attempting to address concerns that it causes democratic deficit and is a veiled (if not overt) threat to the doctrine of separation of powers.

Separation of Powers and Democratic Deficit

The argument about separation of powers is that pursuant to Art 141, the role of the judiciary is to declare law and not to make law. In Vishakha, the Court relied on Art. 11 of CEDAW, an unincorporated treaty, to frame guidelines for addressing sexual harassment in the workplace. This amounts to an encroachment on the law-making domain of the Legislature.

The argument about the democratic deficit is as follows- international law is not generated within the institutional framework of liberal constitutional democracy and does not allow for a central role for electoral supervision. Theoretically, it may be argued that given the consent requirement for treaties, all that is necessary to ensure constitutional legitimacy is to establish a constitutional framework that ensures that the Executive who is authorized constitutionally to give that consent is subjected to adequate democratic controls domestically. However, it is doubtful that much legitimating value can be placed on a state’s consent to a treaty, when the state is confronted with a take it or leave it option by economically powerful Western nations which are notoriously difficult to hold accountable and the international institutions they control. Moreover, the costs of not participating or deviating from the international standard are prohibitively high, as monitoring and enforcement mechanisms are strengthened.

Thus, although state actors are participants in the international legal process, this cannot meaningfully be connected to an ideal of national self-government either with regard to the procedures followed or outcomes generated. Modern customary international law significantly discounts the requirement of long, general and consistent state practise followed by states from a sense of legal obligation in favour of an approach that focuses primarily on international pronouncements. Particularly in the area of human rights, declarations made by representatives of states either in international fora such as the General Assembly or in the context of multilateral treaty-making are central to the inquiry whether a rule of CIL has developed or not. Here too the effect is to further disconnect the creation of an international legal obligation from a state’s specific consent. Moreover it does not have sufficient legal content to be norm-creating. So when judges rely upon customary international law (Vellore) they expand their own power at the cost of the democratic process.

 There are accusations that this is an exercise in self-interest for judges make persuasive use of international law to window-dress a judgement that has already been reached on other grounds and further their own standing in the transnational judicial network. All these concerns get compounded by the lack of representation and bargaining power India has in international bodies. It is doubtful that much legitimating value can be placed on India’s consent to a treaty when the cost of not participating are prohibitively high. This increases the burden on the Court to justify its use of international law especially when it is directly incorporating it. As Bickel explains, in liberal democracies, the power of judicial review cannot be legitimised through democratic accountability so the very legitimacy of the institution hinges on its interpretive methodology.

A Model of Engagement

Thus, in the absence of any guidance from the Constitution, this becomes a question of principle. I argue that there is merit in engaging with international law as opposed to rejecting it or completing converging it with domestic law.

First, the duty to obey international law is a function of its legitimacy. The subject matter of international law has expanded significantly. Today there is significant overlap between the kind of questions that traditionally have been addressed by liberal democracies as domestic concerns and the kind of questions that international law addresses. In the context of Chapter VII of the UN Charter, for example, international peace and security encompasses concerns relating to money laundering and national criminal law, as well as violations of human rights. International law, then, has been the handmaiden of denationalization by having generated an increasingly dense set of substantive rules that directly concern questions traditionally decided by national legal processes. Scholars argue that international law reflects an emerging consensus on certain normative commitments. Thus, the Court may find it helpful to read international law not necessarily to borrow solutions but rather to test out ones supported by its own domestic traditions against other’s experiences. Moreover, they contend that norms from the domestic order get universalised and become international norms so relying on international law is simply a re-import of those ideas (for example democracy becomes self-determination). Under some circumstances, notably those involving groups disadvantaged in the political process, the outcomes of a non-parliamentary procedure may be preferable over the outcome of a parliamentary procedure. From the vantage point of a member of such a group, international law gives them the legal vocabulary to assert their rights.

Thus, we cannot simply reject international law as a whole. At the same time, international law itself comes in different shapes and sizes-and not all international law norms are progressive. This necessitates the attitude of openness towards international law to be tempered with careful evaluation of the suitability of its norms in the country’s specific domestic contexts. For example, while the use of CEDAW in Vishakha helped fill a gap on sexual harassment in the workplace, this new law through the wholesale importation of entire convention without any analysis, failed to reflect the reality of caste based discrimination India, leaving no recourse for women in the informal sector.

Second, reliance on any foreign source heightens constitutional self-understanding. International law can be used effectively to identify many assumptions, both factual and normative, inherent in Indian constitutional adjudication. By asking why international law has reasoned a certain way the Court will be forced to ask itself why it reasons the way it does. In case of a difference, it will have to justify its reasoning. International law is no treated as binding authority on constitutional interpretation- the Court may choose to accept or reject international law, as the Court may consider academic scholarship. At this stage, the presumption may be in favour of Indian cultural norms over international norms, to overcome the problem of democratic deficit. According to Habermas, citizens of a nation often use constitutional discourse as a means to “clarify the way they want to understand themselves as citizens of a specific republic, as inhabitants of a specific region, as heirs to a specific culture, which traditions they want to perpetuate and which they want to discontinue, and how they want to deal with their history.” Citizens want their law to reflect their values. Identifying what these values are is a comparative exercise. Only by placing our values against another can we have any claim to uniqueness. This serves both a functional and an expressive function. Functionally, it heightens the Court’s ability to understand its own constitutional commitments and expressively, it reflects the Court’s effort to either break away from a troubled past by showing concern for international human rights law or to distinguish itself from norms with which it disagrees. This is similar to how precedent is used both to promote its legitimacy and to reflect alignments with favoured or disfavoured cases of the past.

South African constitutional jurisprudence has much to offer by way of example in this regard. In Ministry of Home Affairs v Fourie, the South African constitutional court concluded that under its constitution, limitations of marriage to exclude same sex couples was unconstitutional. Justice Sachs recognised that international law does not afford protection to same-sex marriages, but also nothing in the international instruments forbade recognition of such marriages. The petitioners had referred to the UDHR, which encapsulates the right of “a man and a woman” to marry and has a heteronormative conception of the term “family” but Justice Sachs said their reading or UDHR was incorrect and that “rights will atrophy if they are frozen.”

In case, the assumptions are similar, the Court can still ask why these assumptions ought to be shared. Even if it doesn’t lead to legal change it can serve as a device to affirm a constitutional identity, and increase its internal legitimacy. This goes beyond a mere confirmation bias. The entire process of engagement exposes domestic traditions as practises which are mutable and circumstantial. Moreover, it can still look for ways to implement this shared assumption. All in all, this model of engagement ought to be preferred over complete rejection or convergence because it makes no normative claims about international law norms- it simply uses these norms instrumentally, as a means to stimulate constitutional self-reflection.

Third, engagement can work both ways. Not only does it have the potential to uncover the assumptions in Indian Constitutional law but it can also uncover the assumptions present in international law, particularly through soft law. The Court has unreflectively applied soft law like the Yogakarta principles (NALSA) which are framed not by states but by human rights experts. In failing to engage with these principles dialogically, the Court may have missed an opportunity to assist in the re-characterisation of international norms so that they better reflect the Third World experience.

In Navtej Johar, Justice Chandrachud followed a similar model while invoking comparative case law from various jurisdictions. He used comparative constitutional law as one of the many sources, and not a central one at that to advocate for the decriminalisation of homosexuality. International law should be used in a similar vein to facilitate the development of, and reasoning within, our established constitutional tradition.

Guest Post: The Unconstitutionality of the CBI

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(This is a guest post by Rishav Ambastha.)

There has been a proliferation of agencies at the Centre, exercising investigative powers, such as the Central Bureau of Investigation, the National Investigation Agency, the Narcotic Control Bureau, etc. This gives rise to some important constitutional questions, with federal implications. This is because legislation on the subject of the ‘police’ is within the exclusive jurisdiction of the states, under the Seventh Schedule of the Constitution. In this essay, I examine the ambit of the legislative entry ‘police’, and argue that the concept of investigation is at the core of such powers. Resultantly, any exercise of such power on behalf of the Central Legislature or Central Executive would be beyond its legislative competence, and therefore unconstitutional.

The Judgment of the Guwahati High Court

Indeed, the Guwahati High Court, in Navendra Kumar v. Union of India, held that the resolution of the Ministry of Home Affairs, which constituted the Central Bureau of Investigation [“CBI”], is non est in law. The High Court further held that the resolution is not traceable to Section 2 of Delhi Special Police Establishment Act, 1946 (“the DSPE Act”), which empowers the Central Government to constitute a special police force for a Union Territory. And additionally, it held that, in any case, the Parliament does not have any legislative competence to constitute a police force, traceable to either to Entry 8 or Entry 80 of List I. Resultantly, the creation of what is effectively a federal police force, through a notification by the central Executive, cannot be constitutionally justified. However, the Supreme Court has stayed the operation of the judgment, and has not heard the case in the last five years.

Entry 8, List I

The fundamental question is of legislative competence of the Parliament to enact a law to establish a police force with the power of investigation. In this regard, the Guwahati High Court held that the Central Bureau of Investigation cannot be traced to Entry 8 of List I, Seventh Schedule (which is titled “Central Bureau of Intelligence and Investigation”) of the Constitution, because the term ‘investigation’ appearing in the entry ‘Central Bureau of Intelligence and Investigation’ has a narrow remit. It is limited for the purpose of finding out what’s happening in the different states, and not in the sense of the word “investigation” as it understood under section 2(h) of the Code of Criminal Procedure, 1973, and which pertains to the investigatory powers of an organised police force. This interpretation also finds support in the Constituent Assembly debates:

Constituent Assembly Debates, Vol. IX, 29th August, 1949; “The Honourable Dr. B. R. Ambedkar: The point of the matter is, the word “investigation” here does not permit and will not permit the making of an investigation into a crime because that’ matter under the Criminal Procedure Code is left exclusively to a police officer. Police is exclusively a State subject; it has no place in the Union List. The word “investigation” therefore is intended to cover general enquiry for the purpose of finding out what is going on. This investigation is not investigation preparatory to the filing of a charge against an offender which only a police officer under the Criminal Procedure Code can do.”

 

Entry 80, List I

Furthermore, in Mangament of Advance Insurance v. Shri Gurudasmal, the Supreme Court acknowledged that the Section 6 of the DSPE Act relates to Entry 80 of List I, which allows the Central Government to enact laws for the purpose of extension of jurisdiction of one state to another, with the consent of the latter. In this context, the word ‘State’ in the Entry 80 of List I includes a Union Territory. The DSPE Act is traceable to two entries of different schedules. First, Entry 2 of List II, which is the power to enact laws in respect of police and second, Entry 80 of List I, which is power to enact laws to extend jurisdiction of police of one state to another. The relative legislative competence of the legislature of the province qua the central legislature (pre-Constitution) in relation to the state legislature qua the Parliament (post-Constitution) is still preserved. Entry 80 of List I of the Seventh Schedule of the Constitution relates to Entry 39 of List I of the Seventh Schedule of the Government of India Act, 1935.

It is argued that the Union does not have any policing powers, specifically, power to create agency at the Central level for the purpose of carrying out investigation into penal offences. It is to be borne in mind that the power to enact laws with respect to criminal law and criminal procedure is placed in Entry I of List III of the Seventh Schedule. While, the Union may do so, it cannot in itself create institutions which will exercise the police power except for the Union Territories.

The idea that the Union can legislate and establish a police force for Union Territory and then use that, albeit with the consent of the state, to use it as a police force for investigation of offences within other states, is therefore flawed. Doing so is a colourable exercise of power of the Parliament. The ambit of Entry 80 of List I cannot a contemplate a legislation which provides powers of investigation to the Union within the states which is within the exclusive jurisdiction of the state. That power cannot be exercised to grant jurisdiction to police which is in essence a police force of the Union. The Union cannot exercise police powers in the states for which it lacks the legislative competence to enact a law.

Section 6, DSPE Act

One potential problem with this argument is that the Section 6 of the DSPE Act allows the state to consent to the extension of the power and jurisdiction of one state to another. Typically, this would involve the extension of powers and jurisdiction of the police of one state, which has legislative competence to legislate on it, to another state. But, since the Union has power to create a police force, in effect, it ends up exercising police powers throughout the territory of India, which, as I have argued is a colourable exercise of the power of the Parliament.

The Contrary Judgment of the Bombay High Court

The Bombay High Court, in Pragyasingh Chandrapal Thakur v. State of Maharashtra, analysed the legislative competence of the Parliament to enact National Investigation Agency Act, 2008 (herein after referred as NIA Act). The act in addition to creating offences also, under Section 3(1), establishes a police force to investigate offences. Further, under Section 6, the central government has the power suo moto, without any consent of the state, to direct investigation in offences mentioned in the Schedule (which also includes offences of the Indian Penal Code, 1860). This power trammels over the investigative power of the state, since any investigation by the NIA into such offences automatically terminates any investigation conducted by the state into the schedule offences once the NIA takes over.

The Bombay High Court traced the NIA Act to Entry 8 of List I (Central Bureau of Intelligence and Investigation). This brings out the conflict in the understanding the scope of this entry between the Bombay High Court and Guwahati High Court. The conflict pertains to scope of understanding investigation, which is whether it means investigation as contemplated in the Code of Criminal Procedure, 1973 or as understood in the Constituent Assembly debates, which is limited for the purpose of finding out what’s happening in the vicinity of the states.

In addition to being contrary to the interpretation provided in the Constituent Assembly Debates, the Bombay High Court further has the effect of effacing Entry 2 of List II – the police. It seems to suggest it is open to the Union to create an agency for investigation of offences it enacts, because creation of a police force is only ancillary to enactment of penal offences.  However, the creation of a police cannot be an exercised through an ancillary power, because it is explicitly put in the State List (List II). Such interpretation would trample over the exclusive domain of the state list. Typically, this would involve the extension of powers and jurisdiction of the police of one state, which has legislative competence to legislate on it, to another state. But, since the Union has power to create a police force, in effect, it ends up exercising police powers throughout the territory of India, which, as I have argued is a colourable exercise of the power of the Parliament.

It would also raise questions about the fundamental understanding about the core functions of police. One core aspect of the function of police is to maintain law and order. However, that is already covered within the Entry 1 of List II. If it is stated that maintenance of law and order is the only core aspect of the police function, then Entry 2 of List II becomes redundant. Investigation and prosecution of offences is the other important function of the police, which I argue is what Entry 2 of List II contemplates.

The approach of Guwahati High Court is consistent with my conceptualisation of the Entry 2 of List II, which is that only Police duly constituted by States is competent to undertake investigation. The view of the Bombay High Court that word ‘investigation’ in Entry 8 of List I to mean investigation in terms of CrPC upends the constitutional tilt in favour of the states in the matters of policing powers and bestows that power in the Union. If both the Union and the State were to be contemplated to exercise powers of investigation concurrently, it would have been best placed in the List III of the Seventh Schedule. However, it is not.

Conclusion

It is tempting to look at Entry 8 of List I (“Central Bureau of Intelligence and Investigation”), and automatically assume that the wording covers the CBI. However, in this essay, I have argued that this entry stipulates legislative competence for two purpose (i) establishment of an agency – Central Bureau of Intelligence and Investigation (ii) vesting of power to carry out its ‘investigation’, which is only for the purpose of intelligence gathering, unlike the power of investigation under section 2(h) of the CrPC. The investigation under this Entry is qualitatively distinct from the investigation under the CrPC which emanates from commencement of criminal proceedings in CrPC through either registration of a First Information Report under Section 154 of the CrPC or Complaint before Magistrate under Section 200 of the CrPC.

The Constitution, as it stands today does not allow the Union to create institutions to carry out investigation outside the territorial limit of Union Territory. This becomes even more important, since the Union has enacted various laws where it has assumed the power to investigate and prosecute for penal offences.

Call for Applications: The CLPR Equality Fellowship

(Call follows below. – Ed.)

At the Centre for Law and Policy Research (CLPR), we focus on addressing discrimination at the intersections of caste, gender, sexuality, and disability and other minorities through law.

As a part of this work, we are excited to announce The CLPR Equality Fellowship.

CLPR will select 6 Equality Fellows to engage in litigation and advocacy that responds to intersectional discrimination in the states of Andhra Pradesh, Karnataka, Kerala and Tamil Nadu. We invite young lawyers who are motivated and committed to working with equality and anti-discrimination law to apply for this 2-year Fellowship.

The Equality Fellows will engage in litigation and advocacy in the states of Andhra Pradesh, Karnataka, Kerala and Tamil Nadu, to work with communities facing discrimination on the basis of caste, gender, disability, sexuality, gender identity and minority status. This will include enhancing the implementation of various equality laws including: The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act)The Protection of Civil Rights Act, 1955 (PCRA)The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 (The Manual Scavengers Act)The Rights of Persons with Disabilities, 2016 and others.

The CLPR Equality Fellowship is a paid, two-year opportunity which will be awarded to 6 young lawyers keen to pursue the practice of public interest law on a full-time basis.

CLPR will provide the Equality Fellows with training and support necessary to make an impact on the quality and delivery of legal services to marginalised communities.

Eligibility

  • Successful candidates will be young, talented lawyers who demonstrate a strong interest in rights-based advocacy and a commitment to public interest law
  • Law graduates with an L.L.B degree who have a minimum of 2 years of litigation experience
  • Applicants should be registered and enrolled with the Bar Council of India
  • Should have a working knowledge of either Kannada, Telugu, Malayalam or Tamil
  • Should have excellent writing and drafting skills
  • CLPR is an equal opportunity employer and strongly encourages persons from SC/ST backgrounds, minority religions, LGBTQI+ persons and persons with disability to apply

Application Process

Applicants must submit:

  1. A signed and completed CLPR Equality Fellowship Application Form
  2. Two (2) writing samples (published articles, essays, blog posts) between 500-2000 words
  3. Resume/CV
  4. Applications to be submitted by December 30, 2018, 11:59 pm IST

Please combine all attachments in a single PDF file labelled with “[Your Last Name], [Your First Name].” Email the PDF file to saumya.dadoo@clpr.org.in with the subject line: “[Your Name]- Equality Fellowship Application”  

Source: https://clpr.org.in/blog/call-for-applications-the-clpr-equality-fellowship/