How to read the Constituent Assembly Debates – I

For any student of the Indian Constitution, the Constituent Assembly Debates are both invaluable and indispensable. They are, however, difficult to read, as well as difficult to relate to the final constitutional text. This is not simply because of their volume, but because a significant part of the actual drafting took place outside the proceedings of the Assembly, and in Committees. A bare reading of the Debates, therefore, can often be confusing: the language of the draft articles changes, as does their numbering. The Debates frequently refer back to what happened in the Committees. Trying to understand the Debates without the Committee proceedings is bit like trying to swim with one arm and one leg.

Fortunately, the Committee proceedings are available in B. Shiva Rao’s six-volume edited collection titled The Framing of India’s Constitution: Select Documents. However, much like the Debates, the Select Documents cannot be read as self-contained volumes. This is because, as the Assembly drew on what was happening in Committee, the Committees discussed and revised the drafts that they received from the Assembly. A holistic understanding of the framing of India’s Constitution therefore depends on a (somewhat) careful exercise that involves reading together the debates and the committee proceedings. This process is equally important if you’re trying to trace the history of a particular clause or set of clauses. The various iterations of a draft clause can shed significant light on the best way to interpret it within the constitutional scheme. For example, Article 17 of the Constitution, which prohibits untouchability, places the word “untouchability” within quotes. This seemingly innocuous choice of form actually has a significant history, a history that becomes clear when we read the multiple rounds of debates – in Committee and in the Assembly – around the untouchability clause. In fact, the use of quotes around “untouchability”, when read in the context of the drafting history, go some way towards us telling us how Article 17 is to be understood in 2018.

What follows is a brief guide to reading the Constituent Assembly Debates, taking the example of the Fundamental Rights chapter (the approach to other parts of the Constitution will be broadly similar).

Volume 1 of Shiva Rao’s collection contains various constitutional documents that Indian nationalists came up with through the course of the early 20th century, and the build-up to the Constituent Assembly (including its establishment). That is interesting enough in its own right, but for the purposes of this exercise, it can be ignored. The action really begins in December 1946 and January 1947, when the Constituent Assembly held its first set of sittings. Volumes I and II of the Constituent Assembly Debates (all volumes are available online) cover this period. Most of it pertains to administrative details, but the highlight is the Objectives Resolution (moved by Nehru on December 13, 1946), which was meant to be a blueprint for the Constitution. Those minded to do so can wade through the debates around the Resolution; Shiva Rao’s documents have the relevant portions of Nehru’s speech, and Radhakrishnan’s speech commending the Resolution to the Assembly (Volume 2, pages 3 to 18).

After 25th January 1947, the Assembly had a three-month recess, and reconvened on 28th April. In the meantime, in accordance with the Cabinet Mission Statement (under whose auspices the Assembly was Constituted), an Advisory Committee was set up to consider the questions of fundamental rights, minority rights, and the administration of certain frontier areas. Sardar Patel was elected the chairperson of the Advisory Committee, and the Advisory Committee was then further divided into Sub-Committees to consider, inter alia, the issue of fundamental rights (Shiva Rao, Volume 2, pages 56 – 63). The Fundamental Rights Sub-Committee then had three sittings during which drafts of fundamental rights were written, circulated, and debated. The Sub-Committee produced its report on April 16, 1947 (with notes of dissent), and it was this Report that went to the Advisory Committee.  After further debate, the Advisory Committee submitted an (interim) report to the Constituent Assembly.

Therefore, in order to understand what it was that the Constituent Assembly discussed in its sessions from April 28 onwards, it is essential to first read the deliberations of the Fundamental Rights Sub-Committee, and the discussion of the Report in the Advisory Committee, between January and April 1947. These can be found in Shiva Rao, Volume 2, pages 21 – 176, and 210 – 292. These proceedings are somewhat complex in their own right: B.R. Ambedkar, K.M. Munshi, and Harnam Singh all produced draft bill of rights. K.T. Shah and B.N. Rau – the Constitutional Advisor – submitted notes on fundamental rights. In its three sittings in March 1947, the Fundamental Rights Sub-Committee took Munshi’s draft as its blueprint, while also discussing clauses from Ambedkar and Harnam Singh’s drafts from time to time, and referring to Rau and Shah’s work as well. At the end of its deliberations, the Sub-Committee produced an interim report on 3 April 1947, with a draft bill of rights. Members of the Sub-Committee then commented on the draft, and added notes of dissent. The Sub-Committee met on April 14 and 15, took these into account, and then produced a final report – to which the members added their final comments and notes of dissent.

This document was then forwarded to the Sub-Committee on Minorities, which was asked to comment on fundamental rights from the perspective of minorities (Shiva Rao, Volume 2, pages 199 – 209). Because of the paucity of time before the Advisory Committee met, the Sub-Committee on Minorities held a somewhat rushed set of meetings between April 17 to 19, and submitted an interim report. This report, along with the final report of the Sub-Committee on Fundamental Rights, was sent to the larger Advisory Committee (consisting of seventy-two members), which met on April 21 and 22, 1947 (Shiva Rao, Volume 2, pages 210 – 292).

The Advisory Committee debated the draft bill of rights extensively. Proceedings in the Advisory Committee naturally referred to Clauses by their number, so when you read the Advisory Committee proceedings, you have to keep turning the pages and referring back to the Sub-Committee’s final report (Shiva Rao, Volume 2, pages 169 – 176) to connect the debate with the text of the provision that is being debated.  The Advisory Committee then came up with an Interim Report on April 23. Sardar Patel – the Chairperson of the Advisory Committee – forwarded this to the Constituent Assembly, along with the draft bill of rights hammered out in the Advisory Committee, for the sessions beginning on April 28, 1947.

As we can see, therefore, before the Constituent Assembly even met, three Committees, over a period of three months, had met, debated, and drafted a detailed bill of rights. In the interests of clarity, let us call this Committee Drafting: Phase One (February – April 1947). To sum up Phase One:

Constituent Assembly appoints Advisory Committee (seventy-odd members) —> Advisory Committee appoints Fundamental Rights Sub-Committee —-> Drafts and Notes on Fundamental Rights produced and sent to the Sub-Committee –> Sub-Committee deliberates and produces and Interim Report and Draft Bill of Rights —-> Comments and Notes of Dissent by Members —–> Fundamental Rights Sub-Committee Final Report —-> Comments and Notes of Dissent by Members —–> Final Report forwarded to Minorities Sub-Committee to examine from the perspective of Minorities —-> Interim Report of the Minorities Sub Committee —–> Both reports forwarded to the larger Advisory Committee —-> Advisory Committee deliberates —–> Advisory Committee produces an interim report and a modified draft bill of rights —–> Advisory Committee Interim Report and Draft Bill of Rights forwarded to the Constituent Assembly for consideration.

Many important things happened in the first phase. It was here that the enduring distinction between “justiciable” and “non-justiciable” rights (Directive Principles) was first mooted, much to the consternation of K.T. Shah. It was in the Sub-Committee that Minoo Masani, Hansa Mehta and Rajkumari Amrit Kaur argued strongly for a right to inter-religious marriages and to a uniform civil code (with Ambedkar’s support), but were voted down. It was in the Advisory Committee that the right to privacy (secrecy of correspondence and prohibition of unreasonable searches and seizures) was dropped from the draft bill of rights, as was the right to vote. Here you find Ambedkar’s eloquent arguments for the link between constitutional rights and the economic structure, and K.T. Shah’s radical proposals to make remuneration for housework a fundamental right. In short, endlessly fascinating stuff. The debates on citizenship – with the framers’ near-unanimous rejection of racial criteria for citizenship – are particularly relevant for the present times. And another interesting aspect of the debates is that they were conducted before Independence, Partition, and the integration of the princely states. So you have many instances where the framers refer to the possibility of the Muslim League “coming into the Assembly”, how to deal with princely states who may want to maintain a monarchical system of government, and how to frame a fundamental rights chapter in the shadow of the fact that the country for which it is being framed is not yet in existence, and nobody knows what it may look like.

Because of the paucity of time, the Advisory Committee finally submitted what it called an “Interim Report on Fundamental Rights”, along with a draft bill of rights, and requested the Constituent Assembly for an extension of time to submit a final report. This was granted. The Assembly then took up the draft Bill of Rights for discussion starting April 29, 1947 (Vol. III of the Constituent Assembly Debates, available online – use the “Complete HTML file” option to view day-to-day proceedings). The debates were lively: as Patel (the chairperson of the  noted, more than 150 amendments were tabled).

The first set of debates spanned four full days – April 29 to May 2, 1947. A large part of the Advisory Committee’s draft Bill of Rights was accepted (for the draft bill of rights approved by the Constituent Assembly, see Shiva Rao, Vol. 2, pages 300 – 304), with various modifications. Some of the clauses that proved particularly contentious – or suffered from ambiguous drafting – were “remitted” back to the Committee (such as the clause prohibiting forced labour, where a dispute arose about whether it banned conscription as well, as well as the clause prohibiting fraudulent conversions and conversions of minors). The Advisory Committee considered these over the summer, and on August 25, it submitted a Supplementary Report to the Constituent Assembly, which contained two re-drafted clauses (primarily to do with religious instruction and admissions in schools), a recommendation to drop the prohibition on forced conversion from the list of fundamental rights, and finally, a list of non-justiciable rights, which would eventually go on to form part of the Directive Principles of State Policy (available online, bottom of page).

The Supplementary Report was taken up by the Constituent Assembly on August 30, 1947 (available online), and adopted. This ended the second phase, which we can call Constituent Assembly: Phase One (April – August 1947), and the draft bill of rights was forwarded to the Drafting Committee.

Constituent Assembly debates, modifies and adopts the Advisory Committee’s draft bill of rights – three clauses sent back to the Advisory Committee – Advisory Committee deliberates and produces a Final Report with redrafted clauses and a set of non-justiciable rights – Final Report forwarded to the Constituent Assembly – Constituent Assembly debates, modifies and adopts the Final Report – forwarded to the Drafting Committee.

The Constituent Assembly would not convene again until January 1948.

(To be Contd.)

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Round-Up: The Delhi High Court’s Experiments with the Constitution

(This is the second part of three blog posts that round-up some recent judicial pronouncements. For work-related reasons, I did not have the time to write about them when they were delivered. – Ed.)

Benches of the Delhi High Court have issued a series of interesting rulings in the first half of 2018. A summary follows.

Article 14 and Genetic Discrimination

In United India Insurance Company v Jai Parkash Tayal, a single-judge bench of the Delhi High Court invalidated a clause of an insurance contract that excluded “genetic disorders” from the scope of insurance. The judgment proceeded on multiple grounds, and makes for fascinating reading. In particular, Justice Pratibha Singh invalidated the clause on the grounds of Article 14 (equality before law), 21 (right to health), and the impermissibility of changing an insurance contract to the detriment of the insured. The Article 21 issue is not one I will discuss here: as readers of this blog will know, the reading in of broad socio-economic rights into Article 21, and their exceedingly uneven application on a case-to-case basis, is not something I am very comfortable with. This case, like so many others, tells us that there is a right to health, and then uses it to achieve a specific outcome, but somewhere along the way, the precise spelling out of the scope, contours and limits of this right, and the nature of the obligations it places upon the State, is lost by the wayside.

What I find much more interesting, however, is the manner in which the Court used Article 14. In paragraph D1, Justice Singh observed:

Article 14 of the Constitution of India prohibits discrimination of any kind. This would include discrimination based on genetic heritage of an individual.

There is, however, something odd about this framing. Article 14 is the equality clause. The non-discrimination clause is Article 15(1), which prohibits the State from discriminating on grounds of race, religion, caste, sex, and place of origin. Moreover, Article 15(1) is a closed list – unlike certain other Constitutions, no additional, analogous grounds can be brought within its ambit. Article 14, on the other hand, is a general equality clause that has been interpreted by the Courts to exclude irrational classification or arbitrary State action, on a case-to-case basis. Unlike Article 15(1), Article 14 does not – a priori – rule out specific grounds upon which differentiation may be based. The distinction between Articles 14 and 15(1) was expressed by Patanjali Sastri CJ in a classic exposition, in Kathi Raning Rawat v The State of Saurashtra (1952)

As we can see, Justice Singh’s observation that Article 14 prohibits discrimination on the basis of genetic heritage appears to conflate Sastri CJI’s distinction between Articles 14 and 15(1).

In the latter part of the judgment, however, Justice Singh modulates the claim. In the context of insurance contracts, she concedes that there may be a class of narrowly defined cases (to be articulated by the policy-makers) where certain kinds of genetic diseases can be excluded by the insurer. Her specific problem is with the width of this exclusion clause (covering all “genetic disorders”) which – as she states in the operative part of the judgment – violates Article 14. Consequently, Justice Singh’s argument is not that “discrimination” on the basis of genetic characteristics will automatically violate Article 14, but rather, it will presumptively violate Article 14, unless strong reasons can be shown that justify the violation. In other words, differentiation based on genetic differences will be subjected to stricter judicial scrutiny than other classifications.

Is there any constitutional warrant for this reading of Articles 14 and 15? I have recently argued that there is, in a defence of the Delhi High Court’s Naz Foundation judgment (SSRN version here). Briefly, the argument is as follows: an analysis of the Constituent Assembly Debates shows that the framers did not intent Articles 14 and 15 to operate as separate silos. Rather, Article 14 was the general expression of the concrete commitment towards non-discrimination under Article 15(1). The framers took the five most publicly salient grounds at the time – race, religion, caste, sex, place of origin – and prohibited all discrimination involving those grounds. However, the framers also realised that forms and sites of discrimination evolve, and what is not salient today can become salient tomorrow (classic examples: sexual orientation, disability, and age, which are all present in some more recent Constitutional documents). For this reason, the framers included Article 14, whose more open-ended language would allow future Courts to develop new grounds of discrimination, and subject them to stricter scrutiny (something akin to a proportionality standard). Unfortunately, however, this possibility has never seriously been explored by the Courts, who have been caught between the classification and the arbitrariness standards under Article 14. Naz Foundation represented the first serious articulation of this vision of Articles 14 and 15(1). United India Insurance Company is another small, incremental step towards it.

Uncertainties over Horizontality

The Delhi High Court was very clear that Articles 14 and 21 applied to all insurance contracts, whether entered into by a State insurer or a private insurance company. This, however, is a problematic conclusion. Articles 14 and 21 very categorically apply to State action. “State”, under Article 12, is limited to government and entities under the “functional, financial, and administrative” control of government. Without some additional reasoning, a private insurance company cannot be brought within the ambit of the fundamental rights chapter.

The Court’s response was to argue that insurance contracts are unequal (like contracts of adhesion, although the Court did not use the term), and place the insurance applicant at a disadvantage. That is correct – and many jurisdictions recognise that such contracts are of a special kind, that cannot be interpreted in a normal way (see the recent decision of the UK Employment Tribunal involving Uber’s contracts with its drivers). However, the remedies for that are provided within contract law: interpret ambiguous terms in favour of the weaker party, and if the unconscionability is clear, void the contract on grounds of public policy. The Court could even have said – as it came close to doing – that such contracts had a public element, and therefore could be subjected to public law norms (which include norms of non-discrimination). There is no warrant, however, for making Part III of the Constitution directly applicable to private insurance contracts, and to the extent the Court did so, I submit that it erred.

The same issue arose in another Delhi High Court decision that made the news recently, Sanghamitra Acharya v State (NCT) of DelhiSanghamitra Acharya involved the commitment of an adult woman into a mental hospital at the instance of her parents. Justice Muralidhar, writing for the division bench, held that the woman’s rights to liberty, autonomy and dignity had been violated (especially in view of the Puttaswamy judgment), that the parents, police, and the hospital were in breach of their legal obligations, and ordered compensation. This is, of course, impeccable; in the course of the judgment, however, the Court expressly held that Articles 19 and 21 (along with Articles 15(2), 17, and 23) were horizontally applicable between private parties.

It is true that Articles 19 and 21 are not categorically framed as injunctions against the State. Article 19 stipulates that “All citizens shall have the right… to freedom of speech and expression…” and Article 21 states that “no person shall be deprived of his life or personal liberty except according to procedure established by law.” Therefore, there is no express textual bar against reading Articles 19 and 21 horizontally. However, the reference to State restrictions under Articles 19(2) to 19(6), and the specific reference to “procedure established by law” under Article 21, strongly indicates that these Articles are meant to apply vertically, between State and individual. This is buttressed by the fact that where the framers did intend the horizontal application of fundamental rights, they were clear and unambiguous about it (Articles 15(2), 17, 23, 24). And lastly, this is how the Courts have almost uniformly understood and interpreted them (there are some exceptions, such as the Aruna Shanbaug judgment). It is, of course, open to the Delhi High Court to hold that this jurisprudence is misguided; however, such a radical change in the interpretation of Articles 19 and 21, it needed to provide strong reasons for that holding, and also to elaborate its own theory justifying the horizontal reading of Articles 19 and 21. With respect, the Court did not do that.

Legal Interpretation in the Shadow of the Constitution

What the Court did do very well, in my opinion, was bring the Constitution to bear upon the interpretation of the Mental Health Act, which was the relevant legislation at issue. The Court was examining whether the “involuntary admission” into a mental hospital was consistent with the scheme of the Act. Under Section 19, a person could be involuntarily admitted into a mental hospital by their relative or friend, if the medical officer in-charge was “satisfied” that it was in the interests of the patient. The Court held that although Section 19 was a “stand-alone” provision, the rights under Article 21 required that the word “satisfaction” be read as “objective satisfaction”; that is, the medical officer would have to follow the legal definition of “unsoundness of mind” (which is narrow and circumscribed) before allowing involuntary admission. On facts, it was found that the medical professional had not even attempted to apply any objective standards in his determination.

The form of interpretation that the Court engaged in here is one that Indian Courts have attempted in the past, but only sporadically: borrowed from German law, it is called “the radiating effect” put broadly, holds that a Constitution is not merely a set of rights, but an objective “order of values”, and these values “radiate” through the legal system. In concrete terms, a Court is to interpret laws – including private law – in a manner that advances and promotes the constitutional order of values. By interpreting “satisfaction” (an ambiguous word) to refer to “objective satisfaction”, and to justify that reading by specifically pegging it to constitutional rights, the Sanghamitra Acharya is an important judgment in the context of the theory of the radiating effect.

Traces of this are visible in two other judgments the Delhi High Court delivered, on the subject of labour law. In Indu Munshi v Union of India, a division bench of the Delhi High Court ordered the regularisation of a batch of Kashmiri Pandit schoolteachers. The schoolteachers had been forced to flee from the Valley in 1993, and had come to Delhi. They had been given contractual jobs as schoolteachers in 1994 – and then kept on contract for the next twenty-four years. The issue of regularisation is a fraught one, and any Court that wishes to order regularisation has to content with the challenge of the Supreme Court’s Constitution Bench judgment in Uma Devi’s Case, which invoked the constitutional right to equality of opportunity to hold that contractual employees who had been appointed by the “back door” could not later be regularised “at the cost of” other employees. Uma Devi’s ratio has, however, been subsequently whittled down (the High Court discussed some of these judgments), and here Justice Bhat, writing on behalf of a Division Bench, held that, on facts, there was no “back door appointment.” One of the crucial features that weighed with Justice Bhat was the fact that the Kashmiri Pandits had arrived as refugees, and were compelled to accept whatever offer of employment was open to them, without any genuine choice or bargaining power. When combined with the fact that the process of appointments was competitive, and that the teachers had worked against regular (unfilled) vacancies for twenty-two years, as well as a number of other technical factors, Justice Bhat held that, notwithstanding Uma Devi, the case for regularisation was unanswerable. The Court also held that the contractual teachers deserved remuneration that was equal to the sanctioned remuneration for regular schoolteachers. It adopted a broad version of the “equal pay for equal work” doctrine (which focused on the nature of work) rather than a narrow version (which made technical factors such as cadres and sources of appointment – which could easily be undermined – determinative), and again, framed the issue as a right against exploitation:

Turning to the issue of equal salary and remuneration, the Govt of NCT of Delhi had argued that the teachers could not question their emoluments, because they had accepted their contractual status and functioned in that capacity for over a decade and a half. The teachers’ argument is that they had practically no choice; the alternative to accepting the job with reduced emoluments was starvation or no employment. Such a Hobson’s choice is not meaningful. This court agrees with the contention and holds that there cannot be any estoppel in such situations, barring claims to parity. Long ago, in Sanjit Roy v State of Rajasthan, AIR 1983 SC 328, the Supreme Court characterized as forced labour the acceptance, under compulsion of circumstances, by a person without employment, remuneration that was lower than the minimum wage and stated “that it may therefore be legitimately presumed that when a person provides labour or service to another against receipt of remuneration which is less than the minimum wage, he is acting under the force of some compulsion which drives him to work though he is paid less than what he is entitled under the law to receive.”

And:

In the facts of the present cases too, the court is of the opinion that the mere nomenclature of “contract teachers” is an artificial one given to the teachers who approached this court through the writ petitions that have led to these appeals; they were appointed against regular vacancies, their services are unbroken and have not been continued on account of any stay or court directed interim order; their appointments were pursuant to a constitutionally recognized and acceptable procedure of advertisement and calling names from employment exchange; they each held and hold the requisite qualifications, including B.Ed; all of them were interviewed before their appointment. For these reasons, having regard to their unbroken employment for over two decades, in line with the decision in Umadevi (supra) as understood in Pratap Kishore Panda (supra), Malati Dass (supra) and Sheo Narain Nagar (supra), the said Kashmiri migrant teachers are entitled to be treated as regular appointees. They shall also be entitled to provident fund benefit, gratuity and pension upon attaining the age of superannuation. If any of the petitioners or any other Kashmiri migrant teacher has already attained superannuation or has died in the interregnum the Govt of NCT of Delhi shall calculate their entitlement and release them to such retired employees, and in the case of death, release such amounts to the legal representatives of such deceased employees.

Of course, the Constitution was not directly involved in this case, in the sense that there was no legal provision under challenge. However, it is obvious that the Constitution – and especially, its egalitarian and anti-exploitative ethos – permeated each of the choices the judges had to make. Uma Devi had invoked the doctrine of equality of opportunity to set up “regular” and “back door” appointees in conflict with each other, competing for the same scarce public good (jobs). The Delhi High Court rejected this race-to-the-bottom vision of equality and, instead, focused upon an understanding of equality that was sensitive to exploitation and disparities in bargaining power, to hold that Uma Devi was inapplicable to the present case, and furthermore, the the constitutional principle of equal pay for equal work would also apply.

The Constitution was more directly at play in M/s Metrro Waste Handling v Delhi Jal Board, a brief judgment concerning manual scavenging, and bookending its holding by quotes from Dr. B.R. Ambedkar. The Delhi Jal Board issued a tender for mechanised sewer cleaning, where it did two things: first, it stipulated that only one machine would be issued per bidder; and second, it stipulated that preference would be given to the families of deceased manual scavengers and ex-manual scavengers. The first condition – it argued – was to encourage small entrepreneurs and the underprivileged class to apply. The justification for the second is obvious. The Petitioner challenged the first condition as being arbitrary, and the second as imposing a “100 percent reservation”, which was unconstitutional.

The Court rejected both arguments. On the first, it found that the DJB had set up an elaborate system of loans and other forms of aid to genuinely enable underprivileged sections to effectively bid for the tender; the argument from arbitrariness, therefore, was dismissed. From a constitutional point of view, however, the second issue is more interesting. The Court rejected the argument that the DJB’s order of preference was establishing 100 percent reservation. This was not – it observed – a system of “quotas”:

What is in issue, however, in this case is the attempt of the state, uniquely to ensure that the livelihood and lives of sewage workers performing manual scavenging tasks are meaningfully uplifted. The system of preference is not reservation, in any sense of the term. The court recollects what was held in Government of Andhra Pradesh v Vijaykumar1995 (4) SCC 520 that the wording of Art. 15(3) enables “special provisions” is wider than Article 16(4) which enables a special provision by way of reservations. Article 15(3) is wider and includes “positive action programmes in addition to reservations”.

However, if what was involved was not reservation, then the provisions of Articles 16(4) (since it specifically mentions reservation). Nor could 15(3)’s “special provisions” be invoked, since they are limited to women and children. The only alternative, therefore – as the Court noted – was that preferential treatment of underprivileged classes was itself consistent with the guarantee of equality of opportunity under Article 16(1). Or, in other words – as the concurring opinions of Justices Mathew and Krishna Iyer had famously held in NM Thomas, but which were not subsequently developed in detail – the constitutional vision of equality is a substantive vision, which factors in structural and systemic discrimination, and views the overcoming of structural barriers as part of the very meaning of equality. As Justice Bhat – again, writing for a division bench – held:

Seen from the context of the decisions quoted previously, the NIT conditions are not meant to exclude the “general” class of citizens. They afford an opportunity to an utterly marginalized section a “step up” (or to use the expression in Nagaraj (supra), “catch up”) with the other citizens. The object of such preference is plainly to enable the meaningful participation of the most marginalized section, i.e. workers involved in manual scavenging, and scheduled caste/scheduled tribe communities (who are so chosen, having regard to what the Constitution framers stated as “a backward section of the Hindu community who were handicapped by the practice of untouchability”). The state, i.e., DJB, in our opinion, had a compelling interest in promoting the welfare of these class of citizens, while conceiving and implementing this system of preferences, in the impugned NIT.

Indirect Discrimination

This provides an ideal segue into the last case: Madhu v Northern RailwayMadhu involved the interpretation of certain Indian Railways rules. The dispute centred around a railway employee taking his wife and daughter “off” his list of “dependents” entitled to free medical treatment, on the ground that he had “disowned” them. The Railways argued that for a person’s dependents to avail of treatment, he had to make a “declaration” that they were part of his family; in this case, since the employee had refused to do so, the Railways was justified in denying them medical treatment. The Division Bench, speaking through Justice Bhat – yet again! – rejected this argument, arguing that not only was such an interpretation textually untenable, but also that accepting it would perpetuate indirect discrimination:

The Northern Railways contends that the Appellants are not denied the medical card because they are women, but rather because their husband and father had not made the requisite declaration. However, this explanation is not enough. It is not sufficient to say that the reasoning of Northern Railways did not intentionally discriminate against the Appellants because they were women. Law does not operate in a vacuum and the reasoning and consequent decision of Northern Railways must be examined in the social context that it operates and the effects that it creates in the real world. Even a facially neutral decision can have disproportionate impact on a constitutionally protected class.

The reason that the drafters of the Constitution included Article 15 and 16 was because women (inter alia) have been subjected to historic discrimination that makes a classification which disproportionately affects them as a class constitutionally untenable. The Northern Railways decision to not grant the Appellants medical cards clearly has such a disproportionate effect. By leaving an essential benefit such as medical services subject to a declaration by the railway officer/servant, the dependents are subject to the whims and fancies of such employee. The large majority of dependents are likely to be women and children, and by insisting that the railway officer/servant makes a declaration, the Railway authorities place these women and children at risk of being denied medical services.

It is irrelevant that the Railways did not deny them the medical card because the Appellants were women, or that it is potentially possible that a male dependent may also be denied benefits under decision made by the Railways. The ultimate effect of its decision has a disparate impact on women by perpetuating the historic denial of agency that women have faced in India, and deny them benefits as dependents.

The concept of indirect discrimination – discussed in some detail on this blog previously – has been incorporated into the jurisprudence of many other constitutional courts (the High Court cited some of them). Indian Courts have taken tentative steps towards it, but Madhu represents perhaps the first full-blooded articulation and defence of indirect discrimination as a form of discrimination prohibited by the Constitution. It will, hopefully, be the first of many instances.
 

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Filed under Ambedkar, Article 12: Meaning of "State", Article 15 (general), Article 21 and the Right to Life, Bodily Integrity, Disparate Impact, Equal Pay for Equal Work, Equality, Horizontal Rights, Labour Law and the Constitution, Meaning of "State", Non-discrimination, Privacy, Regularisation, Reservations/Affirmative Action, Right to Health, Sex Discrimination, Sex Equality

Guest Post: The Absence of Deliberative Democracy – The Fetters of the Anti-Defection Law

(This is a guest post by Udit Bhatia. It is based on the article, Cracking the Whip: The Deliberative Costs of Strict Party Discipline in the journal, Critical Review of International Social and Political Philosophy).

The anti-defection law, introduced by the 52nd amendment to the Indian Constitution, prohibits legislators from voting against their party’s whip on any legislation, or voluntarily giving up membership of their party. Legislators who violate their party’s whip stand to lose their place in parliament. Much of the rationale for such law – indicated by the Parliamentary Debates that went into its framing – seems to have been the prevention of horse-trading. This was evidenced in recent fears about corruption in the aftermath of the Karnataka election. But the scope of the amendment is wider than that, since it does not just forbid legislators from voting against their party during a trust motion or no-confidence vote. Rather, it also seeks to stop them from voting against the party line on any legislative matter where a whip is issued. Following the Supreme Court’s 1996 ruling in G. Viswanathan vs The Honourable Speaker, Tamil Nadu Legislative Assembly, the law binds a member of parliament (MP) to her party’s directives even if that party has expelled her. India is among a handful of states—the others being Pakistan, Bangladesh and Fiji—that bind MPs to the will of the party leadership in this manner.

The anti-defection law, thus framed, has important negative effects on parliament’s capacity for discussion. Why, one might ask? After all, the anti-defection law merely prohibits legislators from voting against the party. But this would ignore ways in which restrictions on the vote affect legislators’ voices as well. Constraints on how legislators vote can restrict the formation of opinions contrary to their party’s line. If the only position that an MP is required to endorse is the one mandated by their party, this leaves them with little incentive to engage in the demanding task of scrutinising alternative ideas. Fetters imposed by the anti-defection law can also restrict the expression of dissent through their chilling effect on backbench MPs. If a legislator criticised her party’s stance and publicly expressed disagreement, she would ordinarily be expected to demonstrate consistency by voting against it. This is particularly true where disagreement runs deep or revolves around an issue considered central to her political project. But if one criticises the party on a wide range of issues, or vehemently so on some particular issue, electors might ask why one yet continues to remain member of that party and vote in accordance with its whips. ‘Why not just vote against your party if you disagree that much’, electors could ask. Party leaders could raise the cost of cross-voting by penalising dissenting voters. At the same time, legislators do not wish to be viewed as hypocrites. As a result, putting up a façade of consistency means that one is unlikely to express opinions contrary to that one is required to vote for. Finally, the anti-defection law also restricts the uptake that legislative dissent is likely to receive. In well-functioning parliaments, even when backbenchers ultimately vote with their party, they can exercise considerable influence behind the scenes. Party leaders have to anticipate their backbench’s reaction, and put effort into allaying their concerns so as to secure their consent. In India, on the other hand, the anti-defection law takes away any such incentive for party bosses to do so, by enabling them to rely on whips rather than discussion with their backbench colleagues.

Such constraints on legislation have important implications for legislative discussion. In the first instance, they undermine the benefits of the legislature’s numerical size. There is a reason why parliaments, compared to judiciaries, are large-sized bodies. With their total strength of 545 and 250 members, the Lok Sabha and the Rajya Sabha are considerably larger institutions than the highest court in the country. This is because legislatures are supposed to pool information widely dispersed across a society. Their role is to ensure that varied interests in a large, heterogeneous country like India’s find representation through an appropriately sized body of persons. Following recent innovation in the social sciences and political theory, we conceive the primary strength of parliaments as their ability to manifest the wisdom of the multitude. For instance, following Scott Page and Lu Hong’s experimental work, Helene Landemore’s book, Democratic Reason draws upon their ‘diversity trumps ability theorem’, and argues that inclusive groups of diverse decision-makers outperform small groups of expert ones. However, the anti-defection law undermines the numerical benefit of the legislative chamber, restricting effective decision-making to a small, relatively homogenous group of party leaders.

Further, the anti-defection law can also deprive us of the benefits of having two chambers. There is a reason why the framers of the constitution insisted on establishing two legislative houses: the Lok Sabha and the Rajya Sabha. One of the primary thrusts behind this design was that law-making bodies, like any other collective, are fallible. They can make errors, pass laws in haste, or fail to adequately consider some relevant interests. Bicameralism offers the opportunity to obtain a second opinion on legislative affairs. At the moment, the ruling party lacks a majority in the Rajya Sabha. But what if this were not the case? In that case, the government, with its majority in parliament, could enact laws in the Lok Sabha, and issue a whip to see those measures through in the Rajya Sabha as well. In such cases, second chambers cannot really offer a second opinion on decisions adopted by the first chamber. For second chambers to serve this purpose, they must be constituted of a distinctive set of persons. To see why, imagine that all members of the ruling party in the second house were chosen from that party’s MPs in the first house. In this hypothetical case, some legislators would serve a dual role as members of the first and the second chamber of Parliament. This situation would be deemed unacceptable as a way of offering a second opinion rather than allowing members of the first chamber to re-affirm their own decision. After all, MPs already do so in the course of multiple readings of a bill in the first chamber. Deliberative autonomy and the ability to form independent judgments is crucial for the distinctiveness of legislators. But distinctiveness cannot be simply about the physical presence of two different sets of legislators. If the only permissible view they can voice is the one sanctioned by the party’s leadership, and if they lack the capacity to form opinions that differ from that view, then distinctiveness no longer obtains. We, then, lose, an important benefit that bicameral division of the legislature offers.

Finally, there is a third negative cost that the anti-defection law imposes on legislative discussion. Part of the role of a well-functioning legislature is to clarify for the wider public the different shades of opinion that exist on any topic. Parliamentary discussion should be oriented at demonstrating the underlying dimensions on which various political disagreements exist, locating different political parties on the space of political reasons. By stifling the expression of dissenting views, the anti-defection law undermines parliament’s ability to offer this map of opinion. In doing so, it can also foster sharp polarisation, because we fail to see how internally variegated parties are, and how there are political actors across the aisle who might actually agree with us. Consider, for example, a debate on a healthcare policy. It is valuable for us to see how, despite the opposition party leaders’ criticism of that policy, there are members within that very party who agree with the government.

In India, the deliberative costs of the anti-defection law are exacerbated by its lack of adequate intra-party discussion. Were parties to offer vibrant internal mechanisms for deliberation, we might think that the constraints they impose within are parliament are less troublesome. However, the dictatorial state of our parties precludes such a stance. So far, much of the commentary on the Indian parliament has focused on the lack of adequate discussion caused by frequent disruptions. This is understandable. The scale of disruptions and the rowdy scenes we have come to witness in recent years are worrying symptoms for the health of our democracy. But we should not assume that all our legislators need to do is behave themselves and conduct themselves in an orderly fashion. As I have tried to show, the problem lies much deeper. What they can and are likely to say is conditioned by the anti-defection law. Even if disruptions stopped, and legislators could speak more freely, parliamentary discussion is likely to fall short of deliberative ideals.

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Guest Post: Navigating Gubernatorial Discretion: The Riddle of a Hung Assembly

(This is a guest post by Riddhi Joshi).

Over the past 68 years, there have been many controversies regarding the role of the Governor and the discretion accorded to her ‘by or under this Constitution’. The most recent example of this was the controversy in Karnataka, which began with Mr. Yeddyurappa of the BJP being sworn in as Chief Minister, and ended instead with the Congress-JD(S) alliance winning the floor test. While it appears that the worst of the political crisis has passed, a petition in the case of G. Parameshwara v. Union of India on the question of exercise of the Governor’s discretion in the appointment of a Chief Minister is pending before the Supreme Court.

On the face of it, it appears that there are two main questions which the Supreme Court must address- a) Whether, despite Articles 163(2) and 361, the Court can hear a challenge to a Governor’s decision inviting a party or combination of parties to form the government, taken in the exercise of her constitutional discretion; and b) Whether the Court has the authority to circumscribe such discretion, specifically in the appointment of a Chief Minister under Article 164(1) in the case of a hung assembly.

Through this post, I aim to analyse past judicial pronouncements and the bearing they will have on the outcome of G. Parameshwara v. Union of India.

Understanding the Scope of Gubernatorial Discretion

Unlike the President, the Governor has been accorded some discretion in the exercise of her duties by way of Article 163-

  1. Council of Ministers to aid and advise Governor

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

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

(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.

While the President is bound to act in accordance with the aid and advice of the Council of Ministers, the Governor exercises three kinds of powers

  1. executive power taken in the name of the Governor;
  2. power exercised by her on the aid and advice of the Council of Ministers, headed by the Chief Minister; and
  3. power exercised by her in her sole discretion.

In the case of Samsher Singh v. State of Punjab (para. 153), the Supreme Court recognised some situations in which the Governor acts in her own discretion. Through a merely indicative and not an exhaustive list, the appointment of a Chief Minister where the paramount consideration is that she should command a majority in the House, the dismissal of a government which has lost majority but refuses to quit office, and the dissolution of a House, were seen as part of the Governor’s discretionary power. That, however, leaves one question unanswered: are there any circumstances in which the Courts can review the Governor’s exercise of her discretionary powers?

On Judicial Review

Judicial review is the power of the judiciary to examine the actions of the co-ordinate branches, ie., the executive and legislature, under the Constitution or statutes. Judicial review, especially in instances of formation of government, presents a distinct dilemma in India. Considering that India is a nation with a quasi-federal structure as well as the Westminster system of parliamentary democracy, there have been recurring conflicts between Parliamentary Sovereignty and Judicial Supremacy.

A.V. Dicey defined Parliamentary Sovereignty as the right of the Parliament to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament. This is a feature prevalent in the unitarian system followed in the United Kingdom. However, as far back as in 1861, J.S. Mill observed that there can be no true federal spirit without the power of judicial review. Amongst the various organs and levels of the government, there must be an independent umpire to settle disputes. The supremacy of the Constitution, and the authority of the Court to interpret it, can never be questioned.

Applying this in the Indian scenario, it means that the conduct of Parliament is not immune to questioning by the Court. In fact, in In Re., Keshav Singh (para. 38), the Supreme Court clearly observed that the dominant feature of the British Constitution, ie., parliamentary sovereignty, has no place in a federal constitution as in India.

In view of this, it can be inferred that the Court can also look into questions pertaining to formation of government. Yet, if one were to go by the bare text of the Constitution, there is no scope to challenge a decision taken by the Governor in her discretion, one of the many such decisions being the appointment of a Chief Minister. In fact, there is an explicit bar against this, expressed in Articles 163(2) and 361, stipulating that the Governor shall not be answerable in any court of law for the exercise and performance of her powers and duties.

There already exists jurisprudence on the issue of judicial review of the Governor’s sole discretion. Beginning with the landmark case of B.R. Kapur v. State of Madras (para. 51), the Court struck down the appointment under Article 164(4) of Ms. Jayalalitha as Chief Minister while she was still a non-legislator, on the ground that she suffered from disqualifications under Article 191. While placing some constitutional limitations on the powers of the Governor (a point discussed later in this post), the Court also took cognisance of Article 361. Here, the Court judicially reviewed the Governor’s discretionary action on the ground that the immunity under Article 361 does not extend to the appointee. Therefore, while the Governor herself cannot be held responsible, the Court can still go into the question by making the appointee prove the constitutionality of her own appointment.

Notwithstanding that Rameshwar Prasad (VI) v. Union of India (para. 173) is a case pertaining to the declaration of Emergency under Article 356, the Court still had to navigate the immunity granted by way of Article 361. In this case, the Governor had acted in his sole discretion by claiming a breakdown of constitutional machinery in the state of Bihar, as no single party had been able to secure a majority in the Legislative Assembly, and thereby, the Governor had been unable to appoint a Chief Minister. In this case, the Court’s approach was that the personal immunity from answerability provided in Article 361 did not bar the challenge that may be made to the actions of the Governor. In such a situation, it becomes incumbent on the respondent state government to defend the exercise of gubernatorial discretion.

The momentous decision in S.R. Bommai v. Union of India (para. 118) expanded the scope of judicial review and held it to be a basic feature of the Constitution, which could not be done away with even in exercise of constituent powers. In this case, when the support to the ruling party in Karnataka was declining, the Governor recommended a proclamation of Emergency to the President. The Court held that in cases where the Governor’s decision smacked of mala fides, arbitrariness, or irrelevant considerations, the Court had the power to strike it down.

Lastly, the position regarding justiciability of a Governor’s discretion was cemented in Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly (para. 148). Here, the Court applied the doctrine of harmonious construction by analysing the provisions surrounding Article 163 to conclude that if the decision of a Governor in her discretion were to be final, she would be converted into an all-pervading super-constitutional authority. To avoid this, the Court would have to be conferred the power of judicial review.

Hence, in light of the above considerations, it is likely that the Court will permit judicial review of the Governor’s sole discretion in G. Parameshwara v. Union of India.

 On Gubernatorial Discretion: Three Possibilities

There could be three possible outcomes of this petition. The Court could (a) uphold full discretion to the Governor in the aspect of appointment of a Chief Minister, or (b) circumscribe the discretion with judicially enforceable guidelines, or (c) completely restrict the Governor’s power to exercise his discretion in this regard.

Complete Discretion

The consequence of upholding full discretion of the Governor in the appointment of a Chief Minister is that the Court would not have the power to review any exercise of such sole discretion. There are a number of High Court decisions that have ruled so in the past. From S. Dharmalingam v. Governor of Tamil Nadu to Sapru Jayakar Motilal C.R. Das v. Union of India, the common reasoning appeared to be that the Governor acting under Article 164(1) exercised absolute, final discretion and that there was no possibility in the Constitution to read into Article 164(1) any restriction or condition.

This view, however, has been rejected by the Supreme Court when it overruled the cases of M.P. Sharma v. P.C. Ghose and Pratapsingh Raojirao Rane v. State of Goa in Nabam Rebia v. Speaker, Arunachal Pradesh Legislative Assembly (para. 155.6). Both M.P. Sharma and Pratapsingh upheld the view that the appointment of a Chief Minister fell within the ambit of exercise of the Governor’s discretion, and that the same could not be questioned in any Court.

Hence, it is highly improbable that the Supreme Court will decline to intervene in the matter, considering that the prevailing view seems to be that the exercise of pleasure under Article 164(1) does not lie solely in the domain of the Governor’s discretion.

Limited Discretion

If the Court were to adopt this approach, it would uphold the Governor’s discretionary power, yet temper it with enforceable guidelines, to be applied specifically in the situation of a hung assembly. Therefore, while the Governor would still act without the aid and advice of the Council of Ministers, she would be bound by these guidelines.

In B.R. Kapur v. State of Madras (para. 72), it was held that the Governor was not bound by the will of the people, but rather by the spirit of the Constitution. Consequently, a Governor cannot permit, nor be party to, any subversion of the law. ‘Government, or good governance, is a creature of the Constitution’. The Governor, being the topmost executive functionary in a state, bears the responsibility of preserving and maintaining the democratic framework.

In this regard, guidelines have already been stipulated by the Sarkaria Commission in 1988, the recommendations of which were echoed by the M.M. Punchhi Commission in 2010. In its report, it recognised that in choosing a Chief Minister, the Governor’s guiding consideration should be to call that party/alliance which commands the widest support in the Legislative Assembly to form the government. If there is no such party, the Governor should select a Chief Minister from among the following parties or group of parties by sounding them, in turn, in the order of preference indicated below:

  1. An alliance of parties that was formed prior to the Elections.
  2. The largest single party staking a claim to form the government with the support of others, including ‘independents’.
  3. A post-electoral coalition of parties, with all the partners in the coalition joining the Government.
  4. A post-electoral alliance of parties, with some of the parties in the alliance forming a Government and the remaining parties, including ‘independents’ supporting the Government from outside.

This appears to be the most likely outcome of the pending petition in question. While retaining a semblance of the constitutional discretion accorded to the Governor, the Court would still exercise ultimate authority over it, by laying down parameters similar to those prescribed in the Sarkaria Commission Report and permitting review of the discretion, should the Governor divert from these guidelines.

Negation 

The third option is that the Court could completely restrict the exercise of the Governor’s discretion in the appointment of the Chief Minister. Article 164(1) merely states that the Chief Minister and other ministers shall be appointed by the Governor. No where in the text of the Constitution is it mentioned that the Governor must invite the leader of a party/alliance who will then take oath as Chief Minister after which she, in the case of a hung assembly, would display her strength on the floor of the House.

Instead, the Court could rule to discard all the intermediary steps, and order a speedy floor test (in order to prevent horse trading) after every election verdict which produces a hung assembly. It is accepted (para. 119) that the proper test for the strength of the government is on the floor of the House, and not dependent on the subjective satisfactions of Governor. The floor test would automatically show which party/alliance enjoys the support of the majority of the House. In such a situation, the role of the Governor would simply be limited to just appointing the Chief Minister, thereby not requiring any exercise of her discretion. In fact, this possibility has already been recognised in the case of K. A. Mathialagan v. Governor of Tamil Nadu (para. 11).

This would be in accordance with principles of parliamentary democracy as envisaged in S. R. Chaudhuri v. Union of India (para. 21). Here, the Court observed that representation of people, responsible government, and accountability of the Council of Ministers to the Legislature form the pillars of a parliamentary democracy. There can be no better way to ensure this than by reducing Executive interference and omitting this aspect of the Governor’s discretion. ‘In a democracy governed by rule of law, the only acceptable repository of absolute discretion should be the courts.’

The concerns regarding the abuse of gubernatorial discretion were raised even in the Constituent Assembly. H.V. Kamath, Shibban Lal Saxena, and Rohini Kumar Chaudhuri, all expressed apprehensions that the discretion accorded to the Governor would be wrong in principle and contrary to the tenets of constitutional government. It was considered all the more serious as the Governor was to be nominated and not elected. The view was that the discretion under Article 143 (as it then was) was a colonial relic that should have been done away with. To this, B.R. Ambedkar’s only response was the Article should be retained as the constitutions of Australia and Canada had similar provisions and there had been no need to delete them even after nearly a century.

In today’s times, the concerns of abuse of discretion are valid. Yet, this radical approach of negating discretion completely appears to be an unlikely path for the Court to follow. It, however, poses an interesting academic question.

Conclusion

The judgment in G. Parameshwara v. Union of India is highly awaited as it will finally lay to rest issues pertaining to the Governor’s role in a hung assembly. This will have consequences on the health of the federal democracy and constitutional spirit in the country.

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Freedom of Speech: A Round-Up of Recent Judicial Pronouncements

(Editor’s Note: Over the last few months, I have been unable to write here as frequently as I would have liked to. Over the course of this month, I will try to post a series of round-up pieces summarising some broad developments since January ’18. The first of these posts is about the freedom of speech.)

The Supreme Court’s right to privacy judgment was meant to be about expanding the individual rights against State (and private) power. However, as the last few years have shown, our Courts are experts at turning shields that are meant to guard rights into swords to cut them down. An excellent example of this is the Madras High Court’s judgment in Thiru P. Varadarajan v Kanimozhi, which imposed a gag order upon a Tamil magazine with respect to articles about the “private life” of Kanimozhi. The High Court was hearing an application to vacate an injunction against a magazine that had been granted four years ago. In refusing to vacate the injunction, the Court relied upon the right to privacy judgment – citing copiously from it; the core of its reasoning was this:

“The concluding remarks of Hon’ble Mr. Justice Sanjay Kishan Kaul [in the privacy judgment] are as follows:

‘Let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in part-III of the Constitution of India, but subject to the restrictions specified, relatable to that part. This is the call of today. The old order changeth yielding place to new.’

Therefore, the Hon’ble Supreme Court had while recognising the right of privacy is a fundamental right, in fact called for a new order, which would offer a preeminent position to the right to privacy.”

This is a standard of legal “reasoning” that would get you a failing grade in Legal Methods 101. The High Court cites the closing line of the concurring opinion of one judge out of nine – a line that is self-evidently pure rhetoric, and uses that to invent a mythical “new order” in which privacy has been given “pre-eminence” (over the freedom of speech). The High Court seems to be unaware of the operative part of the privacy judgment, which affirms all the cases that have elaborated upon the scope of the right to privacy after Gobind, including cases where the balance between privacy and free speech was discussed (such as R. R. Rajagopal). The question of whether the balance is to be struck by granting (everlasting) injunctions has been a fraught one, and there is at least one detailed and well-reasoned High Court judgment (Khushwant Singh) that holds that the correct remedy is not to gag speech, but to provide for damages in case privacy is breached.

There is, therefore, no warrant for the High Court’s free-floating conclusion that “the theory that there cannot be a prior restraint or a gag order upon the press or Media stands diluted… after Puttaswamy’s Case.” Puttaswamy has absolutely nothing to say about prior restraint or gag orders. Puttaswamy was never dealing with the issue of balancing competing rights (in this case privacy and the freedom of speech), and did not change the law in this regard in any manner. Mercifully, the High Court does not, in the end, grant a blanket injunction, but a qualified one (albeit with entirely vague contours, banning any articles about the “private life” of Kanimozhi), along with a blanket right of reply.

Unfortunately, the Madras High Court’s order is not even the worst of the gag orders in recent times. That prize is jointly shared by two Delhi High Court orders: the incoherent, four-page stream-of-consciousness order gagging Cobrapost from reporting its sting on Dainik Bhaskar, and the order restoring the gag upon the publication and sale of Ramdev’s biography; as well as the Gujarat High Court order gagging The Wire from publishing about Jay Shah. Notably, the latter two examples are of High Courts stepping in to restore gag orders after trial courts hearing the cases have vacated them.

These “interim” orders, which have the luxury of being virtually unreasoned because they are granted before any kind of substantive hearing, effectively kill the speech in question, given how long legal proceedings take in India. They are effectively decisions on the merits without any kind of examination of merits, and they choke off the marketplace of ideas at the very source. In developing a philosophy of “gag first, ask questions later“, the High Courts seem to be blissfully oblivious of the fact that what is at stake is a foundational fundamental right (Article 19(1)(a)); this is not some civil suit where you direct “status quo” pending final resolution. The more that “gag first, ask questions later” becomes standard judicial practice, the more Article 19(1)(a) will be reduced to a dead letter – and the doing of the deed will not be by the executive, but by the judiciary.

Unfortunately, the Supreme Court has tended to be as careless with words as the gagging High Courts. A recent example of this is Bimal Gurung v Union of IndiaThe case was about transferring FIRs to an independent investigation agency. While the FIRs were, in part, based on violent demonstrations, there was no need for the Court to go into the constitutional status of demonstrations in the first place. However, it chose to do so, and then came up with this:

“Demonstrations are also a mode of expression of the rights guaranteed underArticle 19(1)(a). Demonstrations whether political, religious or social or other demonstrations which create public disturbances or operate as nuisances, or create or manifestly threaten some tangible public or private mischief, are not covered by protection under Article 19(1).”

The Constitution is a carefully-drafted document. The framers agonised over the fundamental rights chapter, and in particular, there were long and stormy debates about the restrictions that were being placed upon fundamental rights. Every word that finally made it into the Constitution was debated extensively, and there were many words that were proposed and dropped. This is why Article 19(2) has eight very specific sub-clauses that list out the restrictions on speech. They include “public order”, “the sovereignty and integrity of India”, and “incitement to an offence” (among others). They do not include “nuisance”, “disturbance”, or “private mischief.” Apart from the fact that these are very vague terms that a judge can apply in a boundlessly manipulable fashion to shut down speech that he doesn’t like (recall that similarly vague provisions were struck down as unconstitutional in Shreya Singhal), there is an excellent constitutional reason why “nuisance” and “disturbance” are not part of 19(2). That is because if only acceptable speech was legally permitted, you would never need to have a fundamental right guaranteeing it. It’s only speech that is, in some ways, a nuisance or a disturbance, which a government (or powerful private parties) would like to curtail. This is especially true for demonstrations: the whole point of a demonstration is to put your point across by causing a degree of nuisance and disturbance (short of violence or incitement to offences). What that degree is, is a matter of judicial determination, by applying a reasonable time-place-manner test.

It may be argued that we should not make much of these stray observations, made in a case that was about an entirely different issue (a transfer of FIRs). However, that misses the point: words matter, and they matter especially when the Supreme Court is the author. The normalisation of “disturbance” and “nuisance” as invented restrictions on free speech can have a creeping effect on the scope of 19(2), especially given how stray Supreme Court paragraphs are regularly cited before lower Courts, and regularly applied by judges. In that context, there is an even greater obligation upon the Supreme Court to be careful with words.

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Notes from a Foreign Field: The Constitutional Court of Lesotho Strikes Down Criminal Defamation

In a terse, 37-page judgment delivered last week, the Constitutional Court of Lesotho struck down criminal defamation as unconstitutional. The judgment repays some scrutiny, because many of the arguments raised – and addressed – by the Court are similar to the arguments that were made in the unsuccessful constitutional challenge to criminal defamation in India two years ago. Further, the Lesotho Constitutional Court’s application of the global proportionality standard to invalidate criminal defamation shows a potential path forward here, where proportionality has come to the fore after the judgment in Puttaswamy.

The constitutional challenge in Lesotho arose out of criminal proceedings against a satirical article that mocked the Commander of the Lesotho Defence Forces. The author of the article was accordingly prosecuted. Section 104 of the Lesotho Penal Code defined criminal defamation in terms somewhat similar to the IPC. The relevant defences – also akin to the IPC – included proving that the material was true and for public benefit, or establishing legal privilege.

Section 14 of the Constitution of Lesotho guaranteed the right to freedom of speech and expression. The section also authorised restrictions upon the freedom of speech, including, inter alia, “for the purpose of protecting the reputations, rights and freedoms of other persons (interestingly, the Section also provided for a right of reply).

The Court began its analysis by noting the intrinsic and instrumental benefits of the freedom of expression in a democracy (paragraph 8). These are well-worn by now, and do not need repetition. In particular, the Court focused on the importance of satire in a democracy, and the need for any guarantee of the freedom of speech to protect satire (paragraph 9) – especially where “public figures” such as the (former) Commander of the Lesotho Defence Force were concerned, who ought to “display a higher degree of tolerance” (compare this with the Indian Supreme Court’s invented doctrine of “historically respectable personalities). Within this framework, the Court then applied the three-step proportionality standard to decide whether criminal defamation was constitutional. This standard – in the form that the Court endorsed – requires, first, that a restriction upon rights be imposed only through a law, which has a rational connection with the goal; secondly, that the law impair rights only to the minimal extent necessary to achieve the State interest; and thirdly, that there be an overall balancing between the extent to which the right is infringed, and the importance of the goal (paragraph 16).

Criminal defamation cleared the first hurdle, which was a rational connection with the legitimate State interest of protecting reputation. However, it fell at the second hurdle, that of minimal impairment. The Court found, first, that the law was over-broad and vague, inter alia, because the defence of “public benefit” had not been defined, and that “anything could be characterised as not being for “public benefit” due to the elasticity of this concept” (paragraph 18). In particular, by using this concept as a filter, the Court noted that “the Legislature has granted an unfettered discretion to the Prosecutorial authorities”, which would inevitably cast a chilling effect upon freedom of speech and expression (paragraph 18). The Court also found that through its requirement of “truth”, the Section effectively criminalised satire which, by its nature, “exaggerates and distorts reality” (paragraph 18).

Next, the Court held that criminal defamation also failed on the third prong of proportionality – that of a balance between the goal of protecting reputation, and its curtailment of speech. This included the very real possibility of self-censorship, and the existence of civil remedies (paragraph 19), which helped to achieve the same goal without the stigma, direct targeting, and greater punishments that defined the criminal legal regime. The Court closed with noting that the international trend – from a recent judgment of the African Court on Human and Peoples’ Rights (paragraph 21) to international legal instruments (paragraphs 22 – 23) – was towards holding that criminal defamation was no longer consistent with the requirements of democratic societies. The Court therefore concluded:

“The means used to achieve the purpose of protecting reputation interests, in some instances, are overbroad and vague in relation to the freedom of expression guarantee in Section 14 of the Constitution. Furthermore, having concluded that criminal defamation laws have a chilling effect on the freedom of expression, and that, civil remedies for reputational encroachment are more suited towards redressing such reputational harm, I have come to the conclusion that the extent of the above-mentioned sections’ encroachment on the freedom of expression is “not reasonable and demonstrably justified in a free and democratic society.”” (paragraph 24)

Criminal defamation was, accordingly, struck down.

In light of the Lesotho Constitutional Court’s judgment, and before it, in recent times, the judgment of the High Court of Kenya and the African Human Rights Court (both holding criminal defamation to be unconstitutional, in different ways), the Indian Supreme Court’s rambling, near-incoherent, 268-page judgment in Subramanian Swamy v Union of India (2016), which invented new doctrines such as “constitutional fraternity” in order to uphold criminal defamation as constitutional, seems more and more anachronistic. That apart, however, the Lesotho judgment suggests a way forward: in Swamythe two-judge bench of the Supreme Court did not examine the constitutionality of criminal defamation on the three-step proportionality standard. Many of the arguments made before the Lesotho constitutional court – including overbreadth and vagueness, the chilling effect of terms such as “public good”, and the disproportionality of criminal remedies, were dismissed by the Court without a serious examination under the proportionality standard. In Puttaswamy, however, a nine-judge bench of the Supreme Court definitively incorporated the global proportionality standard into Indian constitutional law. In addition to Swamy’s failure to consider may relevant constitutional arguments (see here), this now makes the case for revisiting that judgment even stronger.

In Puttaswamy, the Court acknowledged – within the short span of five years – that its judgment in Koushal v Naz Foundation had been a mistake. This is to the Court’s credit. It would be equally to its credit to acknowledge that its judgment from two years ago, in Subramanian Swamy, was as grave a mistake – and to join the growing ranks of post-colonial countries that have consigned this anachronistic provision to the dustin of history.

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Filed under Comparative Constitutional Law, Defamation, Free Speech, Lesotho

Guest Post: Summary Dismissal of Impeachment Motions: Neither Final nor Infallible

(This is a guest post by Tejas Popat.)

Impeachment proceedings are not a routine in India. Rather, they are a matter of necessity in ensuring the continued trust of the people in the judiciary. As a result, in the 68 years of our constitutional history, only a handful of impeachment proceedings have been initiated.

On April 20th, the first against the Chief Justice, Dipak Misra was set in motion. However, the Rajya Sabha Chairman refused to admit the motion (Order of the Chairman). Only once before has such a motion been summarily rejected. This was in the motion against J.C. Shah J. when GS Dhillon was the Speaker of Lok Sabha. Acting on the counsel of the then Chief Justice M. Hidayatullah he dismissed the motion as ‘frivolous’ as it concerned some remarks made by Shah J. during a hearing against a certain OP Gupta. Without analysing the merits of each, such summary dismissals have wide ramifications. They raise questions on the powers the Chairman can exercise at such a nascent stage of an impeachment proceeding.

In this blog, I seek to analyse the scope and extent of this power to refuse to admit a motion under the Judges Inquiry Act, 1968 (hereinafter ‘the Act’) read along with the constitutional scheme. But, before I dwell on that aspect, I shall for sake of context set out the procedure for impeachment. Drawing from the procedure and after analysing the scope of the power, I conclude that in the case of Misra CJ., if challenged, this order of dismissal will not withstand any reasonable judicial scrutiny.

To clarify, I have used the term Chairman for ease of reference but, the same shall equally apply to the Speaker if proceedings are brought in the Lok Sabha.

Procedure of Impeachment

As Seervai explains (Vol. 3, pg. 2914), a successful impeachment motion goes through five stages.

  • At the outset, requisite number of signatures are to be obtained on the notice of motion for presenting an address for the removal of the judge in either house of Parliament. S. 3(1) requires fifty members of the Rajya Sabha or one hundred members of the Lok Sabha to sign such a motion.
  • After such a motion is presented to the Chairman, the S. 3(1) confers discretion to either admit or refuse to admit the motion. This decision is based on consultations the Chairman has or after he has gone through the materials before him (Notice of Motion and the documents which may have been submitted by the parliamentarians).
  • If the motion is admitted, the Chairman under S. 3(2) is mandated to set up a committee ‘for the purpose of making an investigation into the grounds on which the removal of a Judge is prayed for.’ This involves the committee following the procedure set out in S. 3(3) to 3(9) of the Inquiry Act aided by the powers conferred on them under S. 5 (asking for discovery of documents, examination of witnesses etc.) to prepare its report. The hearing before the committee are of a judicial nature allowing the Judge to present his or her case.
  • This stage involves the committee forwarding the report to the Chairman where the committee would have found the judge guilty or not of the charges framed. If the committee finds the judge not guilty, the proceedings come to an end as per S. 6(1). Otherwise, the motion which was till now with the Chairman is now forwarded with the report of the committee to the houses of the Parliament for voting on the motion.
  • Voting on this motion has to be completed as provided in Art. 124(4). Upon such motion being passed in Parliament, S. 6(3) states that ‘the misbehaviour or incapacity of the Judge shall be deemed to have been proved’ and this motion and the result of voting is forwarded to the President for him to exercise his powers under Art. 124(4). The President concludes the process by passing an order for the removal of the Judge.

Thus, only after such a rigorous process comes to fruition, does a member of the higher judiciary lose his office. I shall now come to the proceedings initiated against the Chief Justice.

The motion against Misra CJ.

We now come to the order passed by the Chairman on April 23rd in refusing to admit the motion.

The scope of the Chairman’s power to admit such a motion is only found in S. 3(1) of the Act. Thus, any analysis of the sufficiency of the motion must also be circumscribed by the requirements of S. 3(1). It reads thus:

If notice is given of a motion for presenting an address to the President praying for the removal of a Judge signed,-

(a) in the case of a notice given in the House of the People, by not less than one hundred members of that House;

(b) in the case of a notice given in the Council of States, by not less, than fifty members of that Council,

then, the Speaker or, as the case may be, the Chairman may, after consulting such persons, if any, as he thinks fit and after considering such materials, if any, as may be available to him either admit the motion or refuse to admit the same.’

Now, the only explicit requirement provided in S. 3(1) is the numerical threshold of the signatures required. Thus, the Chairman must only assess whether this has been met. The instant case presents a great illustration. The motion submitted was signed by 71 members. However, in the meanwhile the 7 members had demitted office which led to the Chairman to find in the opening paragraph of the order that only 64 members could validly sign on the notice of motion. As reported, the members pointed this out to the Chairman but in any case, it presents a good example of how the powers which the Chairman may be limited to examining a procedural invalidity. In ¶ 4 he acknowledged that the requisite number of members had attested their signature and thus the requirement of S. 3(1) have been met. Therefore, ordinarily, the motion should have been admitted and he should have proceeded to put into motion the mandate of S. 3(2) viz. the constitution of the inquiry committee. But, that may not be the end of the debate.

It can be argued that some additional discretion may be vested in the Chairman vide S. 3(1) apart from merely considering the procedural validity of the motion. This lends itself not only from the words of S. 3(1) but also the fact that this power is made redundant if the job of the Chairman is merely to tally the numbers against the text of the Constitution. It is this discretion which would allow for consideration of the weight of evidence and the seriousness of allegations presented to him. Thus, what has to be determined the extent of this judicial power vested in the Chairman.

Here, it is relevant to consider the decisions in Mrs. Sarojini Ramaswami v. Union of India and M. Krishna Swami v. Union of India. The similarities between the two decisions are that Verma J. authored the majority opinion in both and they were also pronounced on the same date. But, on this specific point he contradicts himself. In the former he states that the Chairman forms the committee under S. 3(2) after forming a prima facie opinion (¶99). In the latter, he states that ‘the Chairman need not weigh the pros and cons to determine if there is a prima facie case. He merely has to act with a sense of responsibility which is guided by considerations of larger interest of the public administration of justice’ (¶44). Therefore, there is a need to determine a specific standard vis-à-vis the extent of the power and the scope of review by courts. A look at analogous situations where constitutional functionaries exercise adjudicative powers may help.

The Chairman has also been given a judicial power in the proviso to Art. 101(3). This is para materia to the proviso to Art. 190(3). Under this, the Chairman shall not accept the resignation of an M.P, ‘if from information received or otherwise and after making such inquiry as he thinks fit, the Speaker or the Chairman, as the case may be, is satisfied that such resignation is not voluntary or genuine.’ Commenting on Art. 190(3), the Chhattisgarh High Court noted, ‘Clause (b) of Article 190(3) gives an absolute right to the member of the House of the Legislature of the State to resign his seat. The only impediment in accepting the resignation is the enquiry which the Speaker/Chairman is bound to conduct. If no enquiry is conducted by the Speaker or the Chairman and the resignation is accepted, then the member of the House may challenge the act of the acceptance on the ground that the act of resigning was neither voluntary nor the resignation was genuine.’ The High Court thus seems to indicate that the scope of review by Courts is extremely limited. It is only when there is no enquiry which was conducted. By necessary implication, the Court will not interfere with the subjective satisfaction of the Chairman’s decision as long as the decision is based on some inquiry.

The standard the Chhattisgarh High Court seems to espouse the standard in the Bommai decision pertaining to the standard of satisfaction vis-à-vis the President under Art. 356. Before turning to the standard, we see if the same standard can be applied here. Though the Bommai standard was formulated in a different context but the standard is not specific to that context. The Bommai decision itself developed the standard from general administrative law principles (¶57) and therefore it cannot be restricted to Art. 356. Moreover, it has been applied to determinations made under Art. 123 or 213 as well in Krishna Kumar Singh (Sikri J. and Chandrachud J. agreed on this point thus forming the majority view) and Art. 72 in Epuru Sudhakar. Resultantly, the test in Bommai is not specific to the Emergency provisions but a general guidance on the manner in which discretion exercised by constitutional functionaries may be judicially tested. Now, coming to the test laid down in Bommai.

The Bommai ruling on this point can be dissected as follows. The President’s satisfaction is measured against four factors, first, the presence of material, second, whether the material is relevant, third, whether the material is sufficient, and fourth, whether inference drawn was legitimate. Now, the whole it may not be appropriate in the current context. As Chandrachud J. notes in his dissent in Krishna Kumar Singh by relying on Indra Swahney the level of scrutiny must depend on the subject matter and the nature of right affected (¶40). Thus, it would do well to recollect that the Bommai test is applied to a final determination and not a preliminary one like that of the Chairman given the five-stage impeachment process.

Keeping this in mind, the standard for reviewing a Chairman’s decision must, in my opinion, only involve a two-fold analysis. First, whether there was some material placed before the Chairman and second, the relevance of such material to the facts set out in the notice of motion. Thus, the Chairman would be justified in admitting a petition if these two grounds have been satisfied. Conversely, the burden on the Chairman is higher when he refuses to admit the motion. The standard to be met then is that there either exists no material or the material that exists is so spurious that the motion must be summarily rejected. The rationale for excluding the remaining two factors of the Bommai standard is that the proceedings before the inquiry committee are of a judicial nature. The charges against the Judge must be proved beyond reasonable doubt after examining the sufficiency and reliability of the evidence. Therefore, questions relating to burden and standard of proof are matters to be left for the members of the inquiry committee to decide.

The above formulation allows the Chairman some leeway in determining the admissibility of the motion on its substance as well. Evidently, this discretion is extremely limited, but, in the motion against Misra J. the Chairman started off on the wrong foot itself while scrutinizing the substantive allegations. In conducting his analysis, the Chairman as I shall elaborate now incorrectly sourced his power from Art. 124(4) and not S. 3(1). Not only that, the analysis based on the interpretation accorded to Art. 124(4) in this context was equally incorrect. Therefore, coming back to the order the Chairman.

Immediately after essentially conceding that the motion is admissible per S. 3(1), he begins ¶ 5 by stating, ‘I have carefully considered the question whether I should admit the motion submitted by the Hon’ble Members of Parliament or not, under Article 124(4) …. At the stage of admission, I have to apply a test that if every statement stated in the petition is believed to be true, would it still amount to a case of “proved misbehaviour” within the scope of Article 124(4).’

In the following few paragraphs he elaborates on the lengthy discussions he undertook before deciding this motion which are not of any immediate concern. After that, in ¶ 10, carrying forward what he stated in ¶ 5, he begins an analysis whether this motion can be admitted under Art. 124(4). This is erroneous on multiple counts.

First, Art. 124(4) does not even govern the role of the Chairman with regard to such a notice of motion. It confers an exclusive power on the President to remove the Judge from office by passing an order to that effect. This power is exercised after the procedure under Art. 124(4) has been complied with viz. misbehaviour or incapacity has been proved and the requisite address in each house of the Parliament has been passed to request the President to pass an order for removal of the Judge (See, Rule 16 of Judges (Inquiry) Rules, 1969 elaborating the detailed procedure for the adoption and passing of such an address and subsequently Rule 17 mandating that such an address to be presented to the President). Thus, the Chairman could not have even relied on Art. 124(4) to determine the issue of admissibility.

Second, assuming the Chairman can proceed to determine the motion in terms of Art. 124(4) he provides rather modest reasoning to support this. He states that, ‘the prefix ‘proved’ places an obligation of actually proving the misbehaviour before the Parliamentary Procedure for removal of a Judge can come into play.’ In support of this conclusion, he cited the decision of the Supreme Court in In Re. Mehar Singh Saini.

At the outset, the case did not deal with Art. 124(4) but Art. 317. Thus, the statement is a passing observation without the binding effect given to Supreme Court decisions under Art. 141. Second, this statement was made in order to distinguish the nature of the provision under Art. 124(4) and Art. 317 when the latter employs the word ‘misbehaviour’ and the former requires proved misbehaviour (¶ 74, (2010) 13 SCC 627). Thus, the decision is hardly of help.

Regardless of the above reservations, if we assume the authority to be of some assistance, such a conclusion contradicts the test that must be applied. Further, it not only contradicts the entire constitutional and statutory scheme but also jeopardises the purpose of having an inquiry committee to determine the guilt of the judge (See, S. 3(2)). While the latter is self-explanatory, I will now elaborate on the former.

The first instance in which the words ‘misbehaviour or incapacity’ are preceded by the word ‘proved’ is Art. 124(4). As I stated earlier, this is the provision which vests the authority in the President to issue an order which culminates the impeachment process viz. the fifth stage in the proceeding as Seervai explains it. None of the statutory or constitutional provisions dealing with any of the four preceding stages even mention the word ‘proved’ in the context of misbehaviour or incapacity (See as illustrations S. 3(1), 3(5), 3(6), 3(7) 6(1), 6(2) of the Act and the Inquiry Rules). The reason for this can be ascertained if we refer to S. 6(2) and 6(3) of the Act.

S. 6(2) states, ‘If the report of the Committee contains a finding that the Judge is guilty of any misbehaviour or suffers from any incapacity, then, the motion … referred to in sub-section (1) of section 3 shall together with the report of the Committee, be taken up for consideration by the House or the Houses of Parliament in which it is pending.’

Thereafter, S. 6(3) states, ‘if the motion is adopted by each House of Parliament in accordance with the provisions of clause (4) of article 124 … then, the misbehaviour or incapacity of the Judge shall be deemed to have been proved.’

Thus, only upon a finding of guilt by the inquiry committee and the parliamentary approval does any misbehaviour or incapacity stand ‘proved’ for the power under Art. 124(4) be exercisable. This is enabled by the deeming provision in S. 6(3). Thus, Only at such time when the charges have been proved, does the President get the authority to remove the Judge from office. At any stage before this, there are merely charges of misbehaviour or incapacity which have to be proved. This is evident from the fact that the elaborate judicial process is conducted by the inquiry committee. It frames the charges, allows for examination of witnesses and allows for the judge to be represented by a counsel (See, S. 4 and 5 of the Act). Furthermore, S. 3(2) makes this explicit when it states, ‘If the motion referred to in sub-section (1) is admitted, the Speaker or, as the case may be, the Chairman shall keep the motion pending and constitute, as soon as may be, for the purpose of making an investigation into the grounds on which the removal of a Judge is prayed for …’ Thus, the burden of investigation and proving of charges is solely vested in the inquiry committee.

As Seervai notes:

‘In the context of s. 3(3) and s. 3(4) of the Inquiry Act the word “proved” can only mean that in presenting the notice of motion to the Speaker or to the Chairman that not less than 100 Members of the Lok Sabha or 50 Members of the Rajya Sabha believe that when oral and/or documentary evidence is led before the Committee constituted under s. 3(3) of the Inquiry Act, the allegation made in the notice of motion the Judge would be proved…. When after a full judicial inquiry prescribed by s. 3(3) and (4) the Committee finds the Judge concerned guilty of one or more or all the charges framed against him, the word “proved” is used in its ordinary sense, for the truth of the guilt of the Judge has been established by oral and/or documentary evidence and the Report to be sent to the Speaker would say so.’ (Vol. 3, pg. 2920)

 

Thus, it would be unreasonable to prove the charges as a precondition to merely admit the motion. It was on such an erroneous assumption that the Chairman proceeded to analyse the allegations terming them as a ‘mere suspicion, a conjecture or an assumption’. He concludes in ¶ 15 as follows: ‘I have applied my mind to each of the five charges as made out in the Motion. I have examined all the documents annexed to the motion. I am of the clear opinion that all the facts, as stated in the motion, read with the context of the annexed documents, do not make out a case under Article 124(4) of the Constitution which can lead to any reasonable mind to conclude that the Chief Justice of India on these facts can ever be held guilty of “misbehaviour”

Not only did the Chairman proceed on an erroneous basis, his analysis seems to have far exceed the level of scrutiny which may be made at this stage of the proceeding. Thus, if challenged, this order of the Chairman may find it difficult to be legally sustainable.

The author would like to thank Mr. Agnidipto Tarafder for his timely encouragement. He would also like to thank the Editor of the Blog, Ms. Aishwarya Gupta and Mr. Rishabh Mohnot for their comments and suggestions on the earlier drafts of this blog. The author can be reached at tejaspopat97@gmail.com.

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Filed under Impeachment, The Judiciary