The Aadhaar Judgment: Telecom Operators and the legal standing of Chandrachud J.’s “dissenting” opinion

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(A stand-alone essay in our ongoing series on the Aadhaar judgment, this is a guest post by Prasanna S.).

Justice DY Chandrachud’s celebrated judgment in the Aadhaar case has been described as, broadly speaking, a ‘dissent’. Just before he pronounced the judgment, he had himself announced in open court that it was a partial dissent. However, there is nothing in the judgment to indicate he had read the other two judgments or if any of the other two had read his judgment. There is neither an expression of dissent nor concurrence in the judgments. The extent of disagreement between the ‘Majority’ opinion led by Justice Sikri and the ‘Minority’ opinion of Justice Chandrachud’s is to be analysed and understood. The opinion of Justice Bhushan who broadly concurred with Justice Sikri (barring on the issue of Bank Account-Aadhaar linking) is, for simplicity, not discussed here.

A selection of key issues and the indication of broad agreement/disagreements in the judgments is as follows.

Concurrent findings of the Majority and the Minority:

  1. The decision of the Speaker on the certification of a Bill as a Money Bill is not immune from judicial review. (I understand that the Majority has equivocated on whether this needs to be decided at all in this case. Be that as it may.)
  2. Use of Aadhaar by private parties is unconstitutional (Section 57).
  3. The PMLA Rule that provided for mandatory Aadhaar-Bank Account linking is unconstitutional.
  4. The DoT circular that mandated Mobile-Aadhaar linking is unconstitutional.

Divergence between the Majority and the Minority:

  1. The Minority held that the entire Aadhaar Act and the Aadhaar project are unconstitutional. The Majority upheld the Act.
  2. Section 59 of the Act that purported to save the Aadhaar scheme prior to the passage of the Aadhaar Act was struck down as unconstitutional by the Minority. It was upheld by the Majority.
  3. Section 57 as a whole was struck down by the Minority. On the other hand, Section 57 was read down only partially by the Majority.

The focus of this article is the issue of the decision on the Mobile-Aadhaar linking under the 23.03.2016 DoT circular. As seen above, both the Majority and the Minority quashed the circular as unconstitutional. The Minority however went on to direct that the Union of India and TRAI should immediately direct the telecom operators to delete Aadhaar and biometric data of subscribers within two weeks (Para 285, internal page 394 of the Minority judgment). This article argues that such a direction, although present only in the Minority opinion, is binding law and the Union of India and TRAI are required to comply with it, unlike what some seem to think. The author did a brief twitter thread on the issue. This article attempts to somewhat exposit it.

Reading separate opinions

When there are separate opinions delivered by the Supreme Court, the exercise extracting the ratio or the ‘law declared’ by the Court is not always straightforward. Sometimes, there is a summary of the judgment signed as the ‘View of the Court’ (or ‘View by the Majority’), which may be of help – as was the case in Puttaswamy(I) (the privacy judgment). Such a summary arrived at by the bench interpreting their own judgments without hearing all the parties as to the reading of each of the judgments has at times created controversy (such as in Kesavananda Bharati).

It is a common practice to analyse the opinions on an issue-by-issue basis and find the bench strength that has supported a particular view in regard to each issue, as this blog did for Puttaswamy(I) on the question of limitations of the fundamental right to privacy. (Incidentally, the author of that post Gautam Bhatia has concluded that the law of the land as to the test of constitutionality for a law impacting the right to privacy is to be found in Justice Kaul’s opinion, which was a separate concurring opinion which was written only for himself, and clearly in the ‘minority.’)  This approach of trying to extract or mine ratio from minority opinions (which may be, broadly speaking, ‘concurring’, ‘dissenting’, or partly ‘concurring’) is not plucked out of thin air. It has not only been part of the common law legal tradition (on the principle that there is a presumption that each of the judgments has been read by everyone on the bench and a lack of dissent on any of the points in the judgment should be taken as a concurrence on that point), but also anchored in the text of India’s constitution.

Distinction between a ‘judgment’ and ‘law declared’ – Can a ‘dissenting judgment’ be a source of law?

The law on this mining exercise is governed by Articles 141 and 145(5) of the Constitution.

Article 141 of the Constitution says,

The law declared by the Supreme Court shall be binding on all courts within the territory of India.

Article 145(5) of the Constitution says,

No judgment and no such opinion shall be delivered by the Supreme Court save with the concurrence of a majority of the Judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a Judge who does not concur from delivering a dissenting judgment or opinion.

One of the earliest cases that decided the question of whether the judgment in Article 145(5) means the same as ‘law declared’ under Article 141 was Mahendra Thakar v. S.P. Pande AIR 1964 Bombay 170. Therein, a division bench of the Bombay High Court held that:

“There does not appear to be any warrant for reading the provision of Article 145(5) into the provisions of Article 141, and we do not think that the “law declared” can be approximated to the judgment delivered by the Supreme Court. On the other hand, having regard to the provisions of Article 145(5) that a Judge who does not concur may also deliver a judgment, it is clear that the law declared may as well be in a dissenting judgment as in a majority judgment. The argument, therefore, that the three Judges whose decision resulted in the allowing of the appeal in Purshottam’s case did not form a majority of those holding that Article 14 applied to the second proviso to Section 34(3) does not make that the law declared.”

Prem Prakash Gupta v. Union Of India AIR 1977 All 482 held that:

The majority opinion did not express any opinion on this issue but the minority opinion, as expressed by Mahajan J., did examine this issue and answered it in the negative. In my view, in a situation where the majority of the Judges of the Supreme Court expressly chose not to examine a particular issue and decided the suit on certain other grounds, then the expression by the minority on such an issue can be said to have a binding force on the courts in India. In this view of the matter, I think the observations made by Mahajan J., are binding on me.

A similar approach has been followed in or has been laid down in a number of other High Court decisions, including the 2009 decision in Narinder Batra v. Union of India, where the current Union minister for finance, Arun Jaitley argued and won on that proposition.

 

It must be said that the aforementioned high court judgments have neither been overturned nor reaffirmed by the Supreme Court. There have been atleast two instances where the question has been argued. However, in both those instances, the supreme court did not venture an opinion on that as it was found that the majority judgments cited in the cases had in fact disagreed with the reasoning given by the minority opinion sought to be relied upon by the counsel.

Do directions contained in an opinion not expressly endorsed by the majority have the binding force of ‘law’?

However, in Ashok Kumar Gupta v. State of Uttar Pradesh (1997) 5 SCC 201, the Supreme Court dealt with the question of whether a direction by a plurality of judges led by Justice Jeevan Reddy in the Mandal Case (Indra Sawhney v Union of India) is binding given that the plurality was one-judge short of the majority of the judges in the bench.  The Court relied on Sawant J’s separate opinion, concurring on that relevant conclusion and held that the direction by Justice Jeevan Reddy had binding force.

Both these propositions on binding law and binding directions also appeal to common sense. If there is a judicial opinion by a judge or set of judges sitting in the highest constitutional court of the land, it should normally be binding unless strong and compelling reasons exist to suggest otherwise – namely either a clear expression of disagreement with that opinion by a majority of judges of that bench, or a later supreme court decision of a larger bench having overruled it or disagreed with that opinion.

Conclusion

In the instant case, on the telecom circular issue, both the Majority and the Minority judgments in the Aadhaar case had agreed on both the conclusion and the reasons for its unconstitutionality. The Majority expressed no opinion on the deletion of the data, but the Minority directed such deletion. It must be presumed that the Majority impliedly concurred with that direction. The directions contained in the Minority opinion of Justice Chandrachud’s to the Union of India and TRAI relating to the deletion of telecom subscriber Aadhaar data is binding and has the force of law.

(Credit: The author is thankful for the inputs provided by Goutham Shivshankar.)

(Disclosure: The author assisted the petitioners in the Aadhaar case before the Supreme Court)

The Aadhaar Judgment and Reality – III: On Surveillance (Guest Post)

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(This is the third and penultimate essay in Anand Venkat’s four-part series examining the factual foundations of the Aadhaar judgment.)

In our attempt to further decode the factual errors in the Aadhaar judgement, it is worth asking an important question: why is genuine engagement with contradictory facts very hard? Charlie Munger wrote about 24 causes of misjudgement in 1995 and, not surprisingly, simple psychological denial comes up as number 2 in that list.

In this post, we will argue that simple denial alone can’t explain the Majority’s inability to deal with aspects of the petitioners’ challenge. Technological illiteracy is a factor as well.

Surveillance

What is surveillance? If a policewoman tags along a person, at all times, then it fits the definition of surveillance, because she knows all about the person. Now what if, instead of a policewoman, a recording device is always present? That too fits the definition. So surveillance is not simply someone knowing about a person, but having the capability to know all about her, and actively using that capability.

How is it possible for someone to have the capability to know all about a person ? The answer is “Body Tagging”. If every activity that the person ever does in her life can be reliably attached to her body, a detailed profile can be built about the person, which enables surveillance. Put simply, profiling is surveillance.

Body tagging a person’s life across multiple activities can be easily done, if the “body” is given a unique number, and the unique number is attached to every activity. Thus, if a technological means called “Aadhaar” can produce perfect “unique numbers” that are attached to a body, as the Majority judgement states in paragraph 55 – “when it comes to obtaining Aadhaar card, there is no possibility of obtaining duplicate card” – then mass  surveillance is a logical corollary, if it is attached to other databases.

Surveillance: The absence of factual engagement

The Majority, however, chooses not to engage with the petitioners’ submissions about how the body tagging of persons, across multiple databases, is surveillance. It was brought to the court’s notice that many states have built “State Resident Data Hubs [“SRDHs”], which have body tagged sensitive personal details of their residents, available in multiple silos, and have merged them into one “golden” record. For instance, the state of Andhra has gone further than most and built star-trek dashboards, that display the intimate personal details of 43 million of the state’s 50 million residents: GPS coordinates of their homes, the medicines they use, the food rations they eat, what they say about the Chief Minister on their social media accounts, real-time feeds of thousands of security cameras (with some cameras inside people’s homes – voluntarily, of course), their castes and sub-castes, their religion, their student scholarships and old-age pensions, their movement in every state ambulance, and of course — their Aadhaar numbers.

The Majority avoids engaging with the argument because if it did, it would result in arriving at the same conclusion that Chandrachud J arrives at, in his dissenting opinion, that the technological design of the project actually subverts the Aadhaar Act – actually enabling profiling through surveillance – and hence cannot stand: 

When Aadhaar is seeded into every database, it becomes a bridge across discreet data silos, which allows anyone with access to this information to reconstruct a profile of an individual’s life. It must be noted while Section 2(k) of the Aadhaar Act excludes storage of individual information related to race, religion, caste, tribe, ethnicity, language, income or medical history into CIDR, the mandatory linking of Aadhaar with various schemes allows the same result in effect. For instance, when an individual from a particular caste engaged in manual scavenging is rescued and in order to take benefit of rehabilitation schemes, she/he has to link the Aadhaar number with the scheme, the effect is that a profile as that of a person engaged in manual scavenging is created in the scheme database. The stigma of being a manual scavenger gets permanently fixed to her/his identity. What the Aadhaar Act seeks to exclude specifically is done in effect by the mandatory linking of Aadhaar numbers with different databases, under cover of the delivery of benefits and services. (Chandrachud J., dissenting, paragraph 274)

Surveillance: Internal contradictions

Instead of focussing on body tagging across various databases, the Majority instead focuses only on the surveillance potential of the “Metadata” stored in the CIDR. This leads to logically contradictory observations.

For instance, if Facebook and Google, can know the places where one has shopped and also know the movies that one watched, they already have “data.” But the Majority then went on to make the very bizarre claim that in Para 160 that “data” can turn into “meta-data”! All this data is there with the companies in respect of its users which may even turn into metadata.”

In the very same paragraph, it makes the further astonishing claim that OTPs are sensitive personal information in the same manner as biometrics:

Every transaction on a digital platform is linked with some form of sensitive personal information. It can be an individual’s user name, password, account number, PAN number, biometric details, e-mail ID, debit/credit card number, CVV number and transaction OTP etc.

The Majority’s inability to understand technology also becomes clear from its discussion on “Authentication log retention”, in paragraph 260.

We do not find any reason for archiving the authentication transaction data for a period of five years. Retention of this data for a period of six months is more than sufficient after which it needs to be deleted except when such authentication transaction data are required to be maintained by a Court or in connection with any pending dispute. Regulations 26 and 27 shall, therefore, be amended accordingly. (paragraph 260)

Let us deconstruct the ruling here carefully. The judgement says that

  1. Authentication transaction data needs to be deleted after six months.
  2. But not if there is any pending dispute or ordered by a court.

By doing so, it restricts the time frame, in which a dispute could arise to “only six months”. This has ramifications for biometric fraud disputes such as Gujarat biometric data trade, where biometrics of legislators was sold en-masse for 7 lakh rupees and the Airtel LPG routing scam, as these scams went on for months before detection. But the Majority, through its ignorance of technology, ensures instead that it would not be possible for law enforcement to investigate such cases, through limiting the retention of metadata.

And here’s the contradiction: after all, if surveillance is indeed impossible and far fetched as was stated in para 197 (“… therefore, the threat to real-time surveillance and profiling may be far-fetched...”), why would long term retention of authentication logs would be an issue at all? The reading-down is both inexplicable and logically incoherent.

Addendum: Direct Benefit Transfer

There are three important pillars in Direct Benefit Transfer (DBT).

  1. The Aadhaar number
  2. Mobile
  3. Bank Account

In the earlier rollout of DBT, the various schemes’ databases merely collected the bank account numbers or the post office savings bank account numbers of the beneficiaries. There was simply no need for either Aadhaar numbers or mobile numbers. However, once mandatory biometric authentication was introduced as a pre-condition for DBT, the situation changed drastically.

Biometric authentications are always fallible and the Majority’s refusal to engage with that simple technological fact, does not change the reality. Hence the only recourse is OTP authentication via the linked mobile phone. However, UIDAI does not verify the phone, during enrolment, which makes OTPs ineffective. The only “technological hack” then available for UIDAI to avoid biometric exclusion is Mobile linking.

Ever since National Payment Corporation of India (NPCI) introduced the Aadhaar mapper, which links bank accounts to Aadhaar numbers, central and state departments no longer collect beneficiary bank accounts, and instead use the NPCI Mapper to do Direct Benefit Transfers. Hence, for DBT via NPCI to work, seeding Aadhaar numbers into bank accounts was essential.

The court does not engage with the technological aspect of this ecosystem, when it rules that both Mobile and Bank linking are unconstitutional, and strikes them down. So in effect, without perhaps intending to, it has also brought the current Aadhaar-based DBT ecosystem, where NPCI and banks are important players, to a grinding halt. Further, it  has only worsened the exclusion problem caused by fallible biometric authentication, by removing the OTP option.

Conclusion

The factual and logical contradictions outlined so far, lead one to conclude that the Majority has not understood that technological progress is making the law irrelevant. As Lawrence Lessig pointed out:

Every age has its potential regulator, its threat to liberty. Our founders feared a newly empowered federal government; the Constitution is written against that fear. John Stuart Mill worried about the regulation by social norms in nineteenth-century England; his book On Liberty is written against that regulation. Many of the progressives in the twentieth century worried about the injustices of the market. The reforms of the market, and the safety nets that surround it, were erected in response.

When faced with a civil liberties case, that is second longest in the history of the court, the least that the Majority could have done was to engage with the facts and the new emerging technological domain of cyberspace, and how it could make constitutional rights irrelevant. As Lawrence Lessig again points out:

Cyberspace will change from a place that protects anonymity, free speech, and individual control, to a place that makes anonymity harder, speech less free, and individual control the province of individual experts only.

By obstinately refusing to engage with the factual and technological aspects of the Aadhaar project, and how the architecture of the project nullifies the very Aadhaar Act that it upheld, the Majority has only demonstrated its own ignorance of technology, and has probably accelerated the Supreme Court’s own irrelevance, as Lessig had proclaimed so boldly.

Ends Without Means, Outcomes Without Reasons: A Look Back at Dipak Misra and the Constitution

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Dipak Misra is no longer the Chief Justice of India.

It would be fair to say, I think, that his Chief Justiceship has been controversial. From the famous judges’ press-conference, to the “master of the roster”, to the impeachment effort, a significant part of the controversy has been political. On this blog, I have covered some of those events. I have written, for example, about how CJI Misra constituted a bench to hear a case that indirectly implicated himself in criminal conduct, thus violating the cardinal “no person shall be a judge in her own cause” principle. He has also presided over benches that have pronounced judgments dealing with the powers of the Chief Justice, while he was Chief Justice. There have been issues, as well, with disposing off cases without issuing notice or pleadings (Judge Loya), granting restitution in bail petitions (Unitech), or quashing a chargesheet against M.S. Dhoni in Andhra Pradesh in a challenge against a complaint registered in Karnataka.

In this essay, however, I will not discuss any of that. The political legacy that CJI Misra leaves behind is being debated, and will be debated in the years to come. Nor shall I discuss his judgments in terms of their outcomes: there has been enough of that on this blog, and it will be for future scholars to place his judgment in Navtej Johar and his signing on to the Majority in Aadhaar alongside each other, and ask themselves how they stack up.

What I will do in this essay is situate CJI Misra in the broader context of his role as a judge in a constitutional court. My argument will be this: CJI Misra’s judicial tenure represents the high-water mark of a tradition in the Supreme Court that can be described as “outcome-oriented.” This tradition, which (arguably) had its beginnings in the 1980s, calls upon judges to use their power to do (what they perceive to be) “substantive justice”, even where the legal system has itself put checks and constraints upon the exercise of that power. These checks – statutory texts, judicial precedent, the separation of powers, doctrines of jurisdiction and maintainability, and above all, the giving of reasons for an outcome –  are treated as inconveniences to be negotiated rather than principles to be respected. And all of this is justified by nice-sounding – but intellectually vapid – catchphrases such as “procedure is the handmaiden of justice.”

CJI Misra’s tenure represents – as I said – the high-water mark of this tradition. In his judgments, legal constraints are devalued to such an extent, that we reach a near-vanishing point. If earlier we had ends at the cost of means and outcomes privileged over reasons, in CJI Misra’s judgments, we find ends without means and outcomes without reasons.

I should clarify – once again – that this is not a dispute over outcomes. I find CJI Misra’s judicial instinct on social and gender rights – as reflected by his judgments in 377, Adultery, and Sabarimala – to chime with my own. At the same time, I disagree strongly with his instinct on free speech. But that is not the point. The point is whether the manner in which CJI Misra reaches these outcomes – which we may agree or disagree with – is consistent with a democratic set-up that prizes the rule of law over the rule of judges. I believe that it is not, and I shall attempt to demonstrate that in the examples that follow.

Ignorance of statutory text: The Make-Up Artists Case

In November 2014, Misra J (as he then was) struck down a clause of the Cine Costume Make-Up Artists and Hair Dressers Association bye-laws that prohibited women from becoming members. This was immediately hailed as a landmark judgment for gender rights. Importantly, however, the Association was a private body, that had the right to frame its own regulations. To strike down the bye-laws, therefore, Misra J had to find a way of holding that the constitutional norms of Articles 14, 15(1) and 21 were applicable even between private parties.

How did Misra J do this? He noted that the Trade Unions Act – under which the Association was registered – required that “any person who has attained the age of fifteen years” was entitled to be a member of a registered Trade Union. He then argued that as the Act did not make a distinction between men and women, the Association could not – through its bye-laws – introduce such a distinction.

This is impeccable reasoning, except for one fact. Section 21 of the Trade Unions Act – which Misra J. quoted and relied upon – is about the rights of minors to membership of Trade Unions, and the full text states:

Any person who has attained the age of fifteen years may be a member of a registered Trade Union subject to any rules of the Trade Union to the contrary, and may, subject as aforesaid, enjoy all the rights of a member.

As you can see, the underlined portion knocks the bottom out of the argument. It is not that “any person who has attained the age of fifteen years” is entitled to membership of any Trade Union; her entitlement is subject to the rules of the Trade Union, which, of course, were what the Respondents were relying upon in the Make-Up Artists Case.

There is a larger debate to be had about private discrimination, especially when that discrimination is carried out by associations that have near-monopoly power in an industry. Misra J. could very well have reached his conclusion on constitutionally justifiable grounds. But he didn’t do so. Instead, he took a statutory text, relied upon the part that suited him, snipped out the part that didn’t, and got his answer. That will not do.

Ignorance of precedent: The Devidas Tuljapurkar Case 

In Devidas Tuljapurkar, Misra J (as he then was) was considering a plea for quashing charges of obscenity with respect to a poem called “Gandhi Mala Bhetala” (‘I Met Gandhi’), published in 1994 and meant for private circulation among the employees of the All India Bank Association (the SLP was filed by the publisher). Misra J. rejected the plea, and in doing so, invented an entirely new standard for adjudicating obscenity claims: the threshold, he ruled, would be higher in the case of “historically respectable personalities.”

I use the word “invented” with due care. Where did the phrase “historically respectable personalities” pop up from? It is not there in Section 292 of the Indian Penal Code, which defines obscenity. It is not there in any Indian judgment interpreting the meaning of “obscenity.” As I pointed out at the time, it does not flow from the logic of the Section or from the restrictions on free speech in the Constitution – indeed, it is at stark odds with both. The “historically respectable personalities” test had no source at all, outside the imagination of Misra J.

This is not a light matter. The freedom of expression is crucially important constitutional right. Its contours have been carefully delineated in the constitutional text, and restrictions have been imposed. Over the years, Courts have been engaged in a process of interpreting the right and its restrictions. Court judgments on the point have a huge impact in terms of self-censorship and the chilling effect. But in inventing a new restriction altogether – and then omitting to define it with any degree of precision – Misra J. seemed oblivious to all of this.

Ignorance of Legal Logic: The Criminal Defamation Judgment

In 2016, Misra J (as he then was) upheld the constitutional validity of Section 499 of the Indian Penal Code. There are multiple things profoundly wrong with this judgment, as I have discussed at some length (not least the invention of a wholly new ground –  “constitutional fraternity” as a basis for restricting speech). But in keeping with the theme of this post, I want to focus on one specific aspect.

It was pointed out to the Court that in R. Rajagopal v State of Tamil Nadu, the Supreme Court had held that strict-liability defamation in civil law was too stringent a restriction upon free speech. To put it in simpler language, the civil law offence of defamation kicked in if it was established that a defamatory statement had been made, and the only defences open to the defendant was to show that it was true, or a fair comment, or covered by legal privilege. What slipped through the cracks was, for example, an honest mistake: a statement that had been made after due care and reasonable checking of facts, but which nonetheless turned out to be false. In Rajagopal, the Supreme Court found that this was inconsistent with the Constitution, and “read in” the NYT v Sullivan standard of actual malice: that is, as far as public figures were concerned, a statement would have to be false and made with actual malice (i.e., knowing that it was false or having a reckless disregard for its truth or falsity) for civil defamation to apply.

Now, as it was pointed out to the Court, this set up an irreconcilable contradiction with Section 499 of the IPC, which not only retained the strict liability form of defamation in the criminal context, but also had fewer defences (an accused had to show not only that the statement was true, but true and in the public interest). In other words, the same legal standard that the Supreme Court had ruled unconstitutional in the context of civil defamation continued to hold the field for criminal defamation, and then some. As a matter of simple legal logic, therefore, the Court had to at least bring the two on par.

Misra J.’s response to this was … to ignore it altogether. It is a 268-page judgment that ranges across wide swathes of law and life, but on the one point that is not even a question of legal argument, but just one of logic (and therefore unanswerable), it chooses to remain silent.

Ignorance of Maintainability: National Anthem

In late-2016, Misra J (as he then was) passed an “interim order” in a PIL, directing that all cinema halls play the national anthem before every movie. Once again, there are many things that were wrong with this order, and which I pointed out at the time: from the fact that Misra J had adjudicated a very similar claim (brought by the same Petitioner) while he was a judge of the Madhya Pradesh High Court, to the fact that the order grossly violated both Article 19(1)(a), and the separation of powers, and effectively involved the Court in doing something it did not have the power to do: censor speech directly.

But all that apart, there was one very basic point that Misra J ignored entirely before passing this “interim order” (that ended up lasting for more than a year). Article 32 of the Constitution states, in relevant part:

The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

It is therefore beyond cavil that when you are moving an Article 32 petition (and PILs fall within that category), you must show that there is a violation of a fundamental right under Part III. In the PIL era, you are now entitled to move the Court to enforce somebody else’s rights on their behalf, but that does not exempt you from the burden of showing that there exists a right in the first place. And this straightforward point has been recognised in multiple Supreme Court judgments, which make it clear that for a PIL to be maintainable, there must be a right under Part III that is impacted.

What fundamental right under Part III was the PIL-petitioner agitating in the National Anthem case? It is obvious that there is none. And Misra J.’s interim order did not even begin to address that rather basic point, focusing instead on “fundamental duties” – which, as a matter of constitutional text, are not part of the “rights conferred by this Part” that Article 32 talks about.

Interestingly, midway through the hearings, while the interim order was already in force, this point was grasped by Mr Rakesh Dwivedi, the senior counsel for the Petitioner, the first time that he was engaged to appear in the case. Mr Dwivedi promptly had the Petitioner amend his pleadings, and at the next date, present a case that the Prevention of Insults to National Honour Act violated Article 14, because it did not protect the national anthem as much as it protected the national flag. I think that that is a bizarre argument, but at least it is an argument for establishing maintainability in the first place. But even that threshold requirement was not deemed necessary by Misra J before passing his slew of orders that would have a direct impact on freedom of speech and expression.

Ignorance of Jurisdiction and the Separation of Powers: Meesha 

Meesha was a case I wrote about recently, and is perhaps most characteristic of CJI Misra’s tenure: big words, grandstanding, and empty reasoning. The facts of Meesha were that novel serialised in Kerala generated some controversy. Certain groups approached the State government and attempted to have the book banned. The state government refused. A PIL was then filed to have the book banned. With dazzling alacrity, CJI Misra allowed a special mentioning, listed the case for hearing, reserved orders, and then passed a judgment dismissing the PIL.

The problem, however, is that he had no power to do most of this. Our constitutional scheme is a very carefully crafted one, when it comes to free speech and other civil rights. It effectively sets up a three-step procedure: first, there must exist a law that sets out the circumstances under which speech can be restricted. Secondly, the Executive implements that law. And thirdly, the Court can review either legislative or executive action for compliance with the Constitution. This is a multi-layered set of safeguards, which ensure that before speech is censored finally, there are a number of checks and balances.

In the case of book bans, the system works like this. The relevant law is the Code of Criminal Procedure. The CrPC grants to state governments the power to ban books if certain specific laws have been violated. And this ban, in turn, can be reviewed by a three-judge bench of the High Court, on an application from an interested party (with a further appeal to the SC). What the Constitution does not permit is for the Supreme Court to unilaterally ban a book. And if the Supreme Court doesn’t have the power to ban a book, then it stands to reason that it cannot admit or hear a PIL for that purpose.

This careful constitutional scheme was torn to shreds by Misra CJI in Meesha, simultaneously creating an entirely new – and dangerous – jurisdiction for the Court: where any interloper could show up to any High Court or the Supreme Court with a PIL, asking for a book to be banned, and try his luck.

Ignorance of Procedure: Navtej Johar

It is trite to say that the Section 377 judgment was a welcome one. But a look at how it came about reveals, on more than one occasion, legally problematic conduct by Misra CJI, acting in his capacity as Chief Justice. First – technically, Koushal v Naz Foundation was not yet over. The curative petitions in that case were still pending. But while the older proceedings were still in progress, Misra CJI admitted a lis on an identical issue (the constitutional validity of S. 377), and had it referred to a Constitution Bench. It will not do to say that the pending curatives were PILs, while Navtej Johar was a writ petition. The point is that effectively, the Court admitted a petition asking for the reconsideration of Koushal before even the Koushal proceedings had attained finality! There was a correct way to do this, which was easily available: he could have listed the curatives, disposed them off, and then admitted Navtej Johar. He did not do so.

SecondlyNavtej Johar was referred to a Constitution Bench on the very same day and in the same hearing that it was admitted! Surely referral to a Constitution Bench is not something that ought to be done in such a cavalier fashion? Surely the question of whether a matter involves a substantial question of law pertaining to the interpretation of the Constitution (the requirement of a referral) has to be separately contested?

And thirdly, the initial listing of cases had Navtej Johar as fourth on the list, to be heard after Aadhaar, adultery, and Sabarimala. Aadhaar took up the entire first half of the year, and ended just before the vacations. On the Thursday after the Court reopened, the list was juggled, and Navtej Johar was bumped up to the top of the list for the coming Tuesday. This effectively blindsided the State, whose counsel protested on the Tuesday that four days was too short a time to prepare for a case of this magnitude. Expectedly, Misra CJI gave short shrift to this, and went ahead with the hearing.

Koushal v Naz was a horrendous decision, and deserved to be overturned at the earliest. But it is unclear to me why that needed to be done at the cost of inverting some very basic procedural requirements, especially when – at most – they would have caused nothing more than a few weeks’ delay.

Ignorance of Intra-Court Discipline

On two distinct occasions, Misra CJI, using his powers as Chief Justice, has set himself up as the head of an intra-Court appeals division. He did this first on the issue of the MoP for judicial appointments: after a different, two-judge bench had issued notice on the case, with respect to the government delaying the MoP, the case was transferred to Misra CJI’s Court, and promptly dismissed. As Bar&Bench wrote:

An intra-court appeal is unheard of in the Supreme Court and it is unclear on what ground the two cases were transferred to a 3-judge Bench when the 2-judge Bench had passed no order to that effect.

 

Conclusion

There are other glaring examples of Misra CJI’s ends-without-means constitutional jurisprudence: his attempts to introduce the doctrine of “auto-block” on the internet (before better sense prevailed), his attempt to invent further restrictions to free speech on grounds of “constitutional compassion”, and so on. But the instances given above are sufficient, I feel, to make the point.

As I wrote at the beginning of this essay, this is not an assessment of CJI Misra’s substantive jurisprudence. Over the last five years, I have written about almost all of his constitutional judgments, praising some and criticising others. And at a moment when emotions are running high after the last week, it is probably too soon to engage in a dispassionate analysis of a judicial career that includes 377, adultery and Sabarimala on the one hand, Aadhaar, Master-of-the-Roster, and all the free speech judgments on the other, takes into account other controversial cases such as Judge Loya, Bhima-Koregaon, the Uttarakhand President’s Rule case, and Arunachal, and lastly, examines CJI Misra’s administrative role in the allocation of cases.

But it is never too soon, I think, to make this simple point: in constitutional matters, CJI Misra has taken the trope of the crusading judge, who roams the field seeking out his own vision of truth, justice, and beauty, to its logical end-point. I am not here saying that his judgments are motivated by extraneous considerations: no doubt CJI Misra sincerely believes that he has been doing justice according to the Constitution. But in the course of doing that justice, every institutional check that has been put into place to ensure that we have a rule of law instead of a rule by judges, has been devalued to its vanishing point. In CJI Misra’s judgments, text does not matter. Precedent does not matter. Legal consistency does not matter. Jurisdiction does not matter. Maintainability does not matter. Separation of powers does not matter. Judicial propriety does not matter. Reasons do not matter. All of this is subsumed within one overarching, totalising vision of his sense of justice, topped off with language that is so opaque, turgid, and impenetrable, that it all it reminds you off is those dark, slime-ridden ponds immediately after the rainy season.

It would be unfair to blame CJI Misra for this entirely, since he is after all, a product of a system that has systematically devalued these checks and balances, and where academics have contributed to that devaluing by castigating them as relics of “Anglo-Saxon jurisprudence.” But ultimately, it is these relics of “Anglo-Saxon jurisprudence” that stand between us and the tyranny of the unelected. The unchecked expansion of judicial power can only lead to a situation where judges feel less and less accountable to constitutional checks, and feel less and less inclined towards justifying their judgments on constitutional grounds.

Misra CJI’s tenure reveals that truth in its starkest form.

The Aadhaar Judgment and the Constitution – III: On the Money Bill (Guest Post)

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(In this, the concluding essay in our series analysing the legal foundations of the Aadhaar judgment, Suhrith Parthasarathy examines the issue of the money bill.)

The Supreme Court’s judgment in the Aadhaar case is troubling at many different levels. As Gautam Bhatia’s post highlights, the majority’s opinion, authored by Justice AK Sikri, on behalf of himself, Chief Justice Dipak Misra and Justice AM Khanwilkar, is riddled with doctrinal inconsistencies and fails to so much as a maintain a sense of internal logic. This makes criticism of the judgment an especially demanding task. Not only are the court’s chosen standards of review questionable, its application of those flawed choices is often equally unsatisfactory. These fallacies are, perhaps, best exemplified by the majority’s approach to the questions concerning the enactment of the Aadhaar Act as a money bill. The court’s decision in this regard is productive of consequences that are likely to have a deep bearing on India’s democracy.

The Background

When the Aadhaar scheme was originally introduced in 2009, the government thought it unnecessary to enact a suitable legislation. In what represented a blatantly illegal move, it thought an executive notification would suffice for the purpose. Eventually, when the draft of a statute was presented in December 2010, to purportedly validate the scheme, it was introduced in the Rajya Sabha as an ordinary bill. This meant that the bill, like most other laws in India, required the assent of both houses of Parliament to turn into law. As it happened, the draft bill was sent to a Parliamentary Standing Committee even before it could secure the Upper House’s clearance. After substantial concerns were raised by the committee, the government, now under a different dispensation, withdrew the bill from consideration in March 2016, and introduced, in its place, a new draft legislation, titled the Aadhaar (Targeted Delivery of Financial & Other Subsidies, Benefits & Services) Bill, 2016. But this time the draft statute was introduced in the Lok Sabha with an added certificate from the speaker of the House classifying the proposed legislation as a money bill. This meant that all that the bill needed to turn into law was the Lok Sabha’s affirmation, which the bill secured within days of its introduction. And with that, the Aadhaar Act came to be enacted.

A number of the petitions challenging the Aadhaar programme in the Supreme Court explicitly questioned the introduction and enactment of the law as a money bill. The petitioners in these cases argued that the court possessed the power to judicially review the speaker’s decision, and, what’s more, his decision to certify the law as a money bill was patently unconstitutional.

Money Bills and the Constitutional Framework

Now, generally, under India’s Constitution, for a bill to be enacted into law it requires approval by both the Lok Sabha and the Rajya Sabha. The only exception to this rule is contained in Article 110(1), which defines a “money bill” in the following terms:

(1) For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters, namely

(a) the imposition, abolition, remission, alteration or regulation of any tax;

(b) the regulation of the borrowing of money or the giving of any guarantee by the Government of India, or the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the Government of India;

(c) the custody of the consolidated Fund or the Contingency Fund of India, the payment of moneys into or the withdrawal of moneys from any such Fund;

(d) the appropriation of moneys out of the consolidated Fund of India;

(e) the declaring of any expenditure to be expenditure charged on the Consolidated Fund of India or the increasing of the amount of any such expenditure;

(f) the receipt of money on account of the Consolidated Fund of India or the public account of India or the custody or issue of such money or the audit of the accounts of the Union or of a State; or

(g) any matter incidental to any of the matters specified in sub clause (a) to (f). (Emphasis Supplied)

Critically, Article 110(3) adds that in cases where a dispute arises over whether a bill is a money bill or not, the Lok Sabha Speaker’s decision on the issue shall be considered final. It was this provision that the government placed particular emphasis on in its defence. The Union of India argued that the speaker’s decision was altogether immune from judicial review. In any event, according to it, the categorisation made in this case was in conformity with clause 1 of Article 110.

The Majority Approach: Judicial Review 

In deciding the case, common logic ought to have dictated that the court considered the question of whether the Aadhaar Act was a validly enacted legislation first. After all, if the court were to find that it had the power to review the speaker’s decision and if it found that the decision made in this case was unconstitutional, the entire legislation would have been rendered null and void, effectively making every other argument advanced in the case moot. Yet, the court chose a different path. For reasons best known to the majority, it chose to frame the question concerning the validity of the Aadhaar Bill’s categorisation as the sixth issue for consideration. Bizarrely, issues that preceded this included questions over whether the Aadhaar Act created a surveillance state, whether the Act violated the right to privacy, and whether children could be brought within the sweep of the programme. Thus, the majority chose to decide what ought to have been a preliminary question only once it gave its imprimatur to the general architecture of the Aadhaar programme. This approach, it must be said, runs counter to the most fundamental principles of judicial decision-making.

Making matters worse, the court’s ultimate approach in deciding the issue was just as illogical. Quite opposed to addressing, at the outset, the government’s objection that the speaker’s certification was beyond judicial review, the court first chose to consider whether the bill, in fact, met the requirements of Article 110(1). Once it did this, and once it found that the bill fell within the categories prescribed in Article 110(1), the court altogether brushed aside the question of whether a speaker’s decision is judicially reviewable or not. Now, it’s difficult to understand whether we can presume from the fact that the court conducted an examination on the provisions of the bill to conclude that it was a money bill that the majority did believe the speaker’s decision to be reviewable. The majority offers no clear and precise answer for this.

But, given that the government’s argument wasn’t entirely meritless, in that it was backed by at least one decision of a 3-judge bench of the Supreme Court, in Mohd. Saeed Siddiqui v. State of UP (2014), in the present post we shall endeavour to consider the issue by first answering the question of whether a speaker’s decision under Article 110 is judicially reviewable or not.

In Siddiqui, the question before the court concerned a categorisation made under Article 199 of the Constitution, which defines a money bill for the purposes of state legislatures. The provision is in pari materia with Article 110, and, as such, any decision made interpreting Article 199 ought to apply directly to Article 110 too. There, the Supreme Court had ruled that a Speaker’s decision to classify a draft statute as a money bill was not judicially reviewable, even if the classification was incorrect, since the speaker’s mistake constituted nothing more than a mere procedural irregularity. The court arrived at its decision, as Justice DY Chandrachud’s dissenting opinion in the Aadhaar case correctly points out, on a misunderstanding of a constitution bench judgment in Mangalore Ganesh Beedi Works vs. State of Mysore (1963).

In Mangalore Ganesh Beedi Works, the court had found that the Indian Coinage (Amendment) Act, which introduced a new system of coinage, was not a taxing measure. The petitioners had argued that through the substitution of 2 naya paisas in place of 3 pies as tax, there was a change in the tax imposed by the Mysore Sales Tax Act, which could only have been done by passing a Money Bill under Articles 198, 199 and 207 of the Constitution. Since no money bill had been introduced, the Act itself, the petitioners argued was illegal and invalid. It was in those circumstances, having found that a substitution of coinage did not result in an enhancement of tax, that the court ruled that Article 199 was simply not attracted. The further observation made by the court that the “the validity of an Act cannot be challenged on the ground that it offends Articles 197 to 199 and the procedure laid down in Article 202” ought to therefore be viewed in light of the ratio decidendi of the judgment.

Yet, in Siddiqui the court proceeded on the grossly mistaken premise that the decision in Mangalore Ganesh Beedi Works was somehow an authority for the proposition that a speaker’s decision to categorise a draft law as a money bill was beyond judicial review. Once again, as Justice Chandrachud’s dissenting opinion in the Aadhaar case points out, there is a consistent thread that emerges from the court’s judgments in (a) In re Special Reference No. of 1964, (b) Ramdas Athawale v. Union of India, and (c) Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, which makes it clear that the validity of proceedings in Parliament or a State Legislature can be subject to the rigours of judicial review on the ground that there is a constitutional violation. Considering the trend of these judgments, and considering the grave consequences that emanate out of a certification of a draft law as a money bill the majority in the Aadhaar case ought to have at the least tested the continuing applicability of the court’s verdict in Siddiqui. For, as Justice Chandrachud writes:

Barring judicial review of the Lok Sabha Speaker’s decision would render a certification of a Bill as a Money Bill immune from scrutiny, even where the Bill does not, objectively speaking, deal only with the provisions set out in Article 110(1).[Paragraph 83]

What’s more, as Justice Chandrachud adds:

The existence of and the role of the Rajya Sabha, as an institution of federal bicameralism in the Indian Parliament, constitutes a part of the basic structure of the Constitution. The decision of the Speaker of the Lok Sabha to certify a Bill as a Money Bill has a direct impact on the role of the Rajya Sabha, since the latter has a limited role in the passing of a Money Bill. A decision of the Speaker of the Lok Sabha to declare an ordinary Bill to be a Money Bill limits the role of the Rajya Sabha. The power of the Speaker cannot be exercised arbitrarily in violation of constitutional norms and values, as it damages the essence of federal bicameralism, which is a part of the basic structure of the Constitution. Judicial review of the Speaker’s decision, on whether a Bill is a Money Bill, is therefore necessary to protect the basic structure of the Constitution. [Paragraph 339(d)]

Interestingly, Justice Bhushan in his separate opinion agrees with Justice Chandrachud that Siddiqui requires explicit overruling. It is unfortunate that despite the length of its opinion the majority has singularly failed to engage with this central point of contention.

The Aadhaar Act as a Money Bill 

What the majority does do, though, (and here Justice Bhushan agrees with it) is to hold, erroneously, that the speaker’s certification of the Aadhaar Bill as a money bill was in conformity with Article 110(1).

The government had argued that since Section 7 of the Aadhaar Act, “which was the heart and soul” of the legislation concerned subsidies, benefits and services, for which the expenditure was to be incurred from the Consolidated Fund of India, the requirements of Article 110(1) were met. It was sufficient, according to the government, if a law, in pith and substance, met the tests laid down in Article 110(1). In other words, so long as a draft legislation broadly concerned itself with one of the elements contained in clauses (a) to (f) of Article 110(1), the speaker was well within his rights to categorise the law as a money bill.

To start with, it needs to be noted that the doctrine of “pith and substance” is applied to adjudicate legislative competence, and has no role to play in examining whether or not the requirements of Article 110 are satisfied. But in any event, without expressing any specific opinion on the argument predicated on the doctrine of pith and substance, the majority in the Aadhaar case agrees with the government to the extent that Section 7 conforms to Article 110(1)(e) (“expenditure charged to the consolidated fund”), that all other provisions of the Act are only incidental to Section 7, and, therefore, fall within the meaning of Article 110(1)(g) (“incidental matters”). As Justice Chandrachud points out in his dissenting judgment this is an extraordinarily fallacious ruling. The majority altogether overlooks the fact that for a bill to be certified as a money bill under Article 110 it must contain “only provisions” that deal with every or any one of the matters contained in Article 110(1). Therefore, a bill, which contains a single item beyond the scope of the subjects enlisted in clauses (a) to (g) of Article 110(1) cannot be introduced as a money bill. Here, as Justice Chandrachud’s meticulous reading of each and every provision of the Aadhaar Act shows us there are a host of clauses that deal with items well beyond the scope of clauses (a) to (g) of Article 110(1). He holds:

The substantive provisions of the Act are, however, not confined to the object specified in the Preamble. Indeed, they travel far beyond the boundaries of a money bill under Article 110(1). The enrolment on the basis of demographic and biometric information, generation of Aadhaar number, obtaining consent of individuals before collecting their individual information, creation of a statutory authority to implement and supervise the process, protection of information collected during the process, disclosure of information in certain circumstances, creation of offences and penalties for disclosure or loss of information, and the use of the Aadhaar number for any purpose lie outside the ambit of Article 110. These themes are also not incidental to any of the matters covered by sub-clauses (a) to (f) of Article 110(1). The provisions of Section 57 which allow the use of an Aadhaar number by bodies corporate or private parties for any purpose do not fall within the ambit of Article 110. The legal framework of the Aadhaar Act creates substantive obligations and liabilities which have the capability of impacting on the fundamental rights of residents. [Paragraph 107].

The majority’s finding, such as it were, can be found in paragraphs 408 to 411 of its judgment, where it holds, inter alia, that since Aadhaar-based authentication is mandated by Section 7 of the Act for the receipt of a subsidy, benefit or service, and since such subsidies, benefits and services accrue out of the Consolidated Fund of India, Section 7 has to be seen as the “core provision of the Aadhaar Act and this provision satisfies the conditions of Article 110 of the Constitution.” Having held thus, in paragraph 411, the majority says:

To facilitate this, UIDAI is established as Authority under the Act which performs various functions including that of a regulator needing funds for staff salary and it’s own expenses. Respondents have rights remarked that the Authority is the performer in chief, the predominant dramatis personae. It appoints Registrars, enrollers, REs and ASAs; it lays down device and software specifications, and develops softwares too; it enrols; it de-duplicates; it establishes CIDR and manages it; it authenticates; it inspects; it prosecutes; it imposes disincentives; etc. And all this it does based on funds obtained by appropriations from Consolidated Fund of India (Section 24).

It’s difficult to understand the majority’s precise point here. But if its intent is to suggest that virtually any governmental activity would fulfil the condition laid down in Article 110(e), given that most government functions would be funded out of the Consolidated Fund of India it can only be a ruling that is predicated on a flagrant misunderstanding of the Constitution. The entire idea behind Article 110(e) is that the law must contain “only provisions” that involve “the declaring of any expenditure to be expenditure charged on the Consolidated Fund of India or the increasing of the amount of any such expenditure.” In other words, under clause (e), a money bill must deal with the declaring of any expenditure to be expenditure charged on the Consolidated Fund of India.

As Justice Chandrachud, once again, correctly holds, not even Section 7 of the Aadhaar Act fulfils this requirement. As he writes in paragraph 110 of the dissent:

What Section 7 does is to enact a provision allowing for Aadhaar to be made mandatory, in the case of services, benefits or subsidies which are charged to the Consolidated Fund. Section 7 does not declare them to be a charge on the Consolidated Fund. It provides that in the case of services, benefits or subsidies which are already charged to the Consolidated Fund, Aadhaar can be made mandatory to avail of them. Section 7, in other words, is a provision for imposing a requirement of authentication and not declaring any expenditure to be a charge on the Consolidated Fund of India. Hence, even Section 7 is not within the ambit of Article 110(1)(e).

The majority’s troubling holding on the money bill issue doesn’t end here. It also holds that by virtue of it striking down Section 57 of the Act, it was unnecessary for it to consider whether the provision was merely incidental to the other provisions, specifically to Section 7. This finding is yet another instance of the judgment’s incoherence. The Aadhaar Act was enacted as a package. Section 57 was very much a part of the bill which was presented for the Lok Sabha’s consideration. So, if Section 57 wasn’t merely incidental to Section 7 (and it would have involved a huge stretch even of the majority’s logic to hold that it was), the draft legislation simply could not have been categorised as a money bill.

In other words, the majority effectively inverts basic judicial reasoning. Instead of considering the Aadhaar Act as a whole, and testing whether it qualifies as a money bill, the majority first examines provisions of the Act for substantive compliance with the Constitution, strikes down Section 57 as unconstitutional, and then turns around and says, “hey, now that Section 57 is gone, the remainder of the Act is a money bill after all.” As explained above, this is simply absurd.

Conclusion

 

Ultimately, the court’s ruling here creates a dangerous precedent. Now, virtually any legislation can be pushed through as a money bill, by ensuring that the law contains an “element” of one or the other of the clauses contained in Article 110. If the judgment is allowed to stand on this point its impact could be far-reaching. It will give government a carte blanche to enact all manners of laws by-passing the Rajya Sabha altogether.

The majority’s judgment in the Aadhaar case, therefore, requires immediate overruling. It will be interesting to see when the government next amends the Aadhaar Act (as it’s surely likely to do) if it will introduce the draft amendment as a money bill. Any such effort must serve as an opportunity for the court to reverse the majority’s findings here, and to restore, in Justice Chandrachud’s words, “the delicate balance of bicameralism” which lies at the heart of India’s parliamentary democracy.

The Aadhaar Judgment and the Constitution – II: On proportionality (Guest Post)

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(This is the second post of our three-part series on the Aadhaar Majority’s legal reasoning. This is a guest post by Mariyam Kamil.)

The five-judge bench decision of the Indian Supreme Court on the constitutional validity of the Aadhaar scheme was handed down on 26 September 2018. The judgment was split 4:1. Justice Sikri, who wrote the majority judgment on behalf of himself, Chief Justice Misra and Justice Khanwilkar upheld the scheme. Justice Bhushan in a separate opinion concurred and Justice Chandrachud dissented.

This post will focus on one theme from the judgment: the standard of judicial review against which privacy infractions are tested. This issue was at the core of the privacy challenge. It also turned out to be the most critical factor in the Court’s analysis that ultimately upheld the Aadhaar scheme. For now, I will focus on the majority judgment.

The post will proceed as follows. In Part A, I will consider the three ‘standards of review’ that have been discussed in the Indian privacy context. Part B will outline the majority’s adoption of the ‘proportionality’ test. Part C will examine the Court’s application of this test to the Aadhaar card scheme.

Part A: The Three Tests

 Prior to the nine-judge bench decision in Puttaswamy, most Indian privacy cases appeared to oscillate between two standards of judicial review: the traditional reasonableness analysis and the stricter standard of ‘compelling state interest’.

After Puttaswamy, three things became clear as far as standard of review for privacy infractions was concerned. First, the minimum threshold that the State had to satisfy in order to legitimately curtail the right to privacy was the standard of ‘just, fair and reasonable’. Second, penumbral notions of privacy must satisfy the standard of review applicable to the respective constitutional provisions under which the infraction is claimed. Third, there was some support for the view that ‘proportionality’ would be the standard of review applicable to privacy cases going forward.

It is crucial to understand how these three standards differ from each other. What is the conceptual distinction between ‘reasonableness review’, ‘compelling state interest’ and ‘proportionality’? Do they overlap with each other? Are they only distinct in degree or do they also differ in content?

Most authors agree that ‘compelling state interest’ and ‘proportionality’ are more stringent standards of review than traditional ‘reasonableness’ (see, for instance, Dr Tarunabh Khaitan’s work). The Indian Supreme Court has also affirmed this view in the past (see for example, Ashok Kumar Thakur).

Moreover, an exposition of these standards also reveals a variation in scrutiny. The starting point for all the three tests is that the infringing act must have the authority of law. If the impugned State action does not have the authority of ‘law’, the Court will look no further.

If this hurdle is overcome, we then get to the next enquiries. The ‘just, fair and reasonable’ test requires the Court to answer two questions: 1) Is the State pursuing a legitimate state aim or objective? I will call this the ‘objective review’. If the answer to this question is in the affirmative, the Court will ask a second question. 2) Is the State using reasonable means to achieve this State objective? Put differently, is there a rational nexus between the means used and the objective sought to be achieved. I will call this ‘means review’.

The ‘compelling state interest’ test is one part of the two-pronged strict scrutiny standard. As part of strict scrutiny, the Court answers the following two questions: 1) Is the State pursuing a ‘compelling’ State aim? 2) Is the State pursuing the least intrusive means of achieving its compelling objective?

Strict scrutiny is a more rigorous standard of review. However, the difference between reasonableness review and strict scrutiny is mainly one of intensity. The degree of intensity of the ‘objective review’ and ‘means review’ changes, but the enquiries remain largely similar. So, in strict scrutiny, within the ‘objective review’ we ask: is the State pursuing a compelling State interest rather than a legitimate one. Under ‘means review’, we question whether this is the least intrusive manner of achieving the State’s compelling objective rather than a reasonable means of achieving that aim. This limb of strict scrutiny is referred to as ‘narrow-tailoring’.

‘Proportionality’, on the other hand, is qualitatively different from the other two. It varies not only in intensity but also in content. Proportionality consists of four enquiries. First, is the State pursuing a legitimate purpose? Second, is there a rational nexus between that purpose and the infringing act? Third, can another, less intrusive, measure be used to achieve the State’s purpose? Finally, is the infringement of the right too great in comparison to the public purpose?

The first two limbs of proportionality align closely with the ‘objective review’ and ‘means review’ under the traditional reasonableness analysis. The third limb resembles the narrow-tailoring limb of strict scrutiny. However, it is the fourth limb of proportionality that is unique. The fourth limb requires the Court to make a value judgment. It requires the Court to balance the importance of the State interest on the one hand, with the importance of the right or the extent of its intrusion, on the other. For instance, the Court may ask, is the public benefit in pursuing the State interest greater than the extent of infringement of the right? Therefore, a State interest could be legitimate (first limb), rationally connected to its objective (second limb) and narrowly tailored (third limb), yet it could still fail the balancing component under the fourth limb of proportionality.

Many criticise the proportionality standard for this very reason (see, for example, Francisco Urbina’s book). To them, proportionality allows the Court to review legislative choices. However, it is this fourth balancing limb of proportionality which is characteristic of the test. It is what makes the test, on occasion, even more stringent than strict scrutiny.

Part B: The Majority’s Understanding of ‘Proportionality’

 The majority speech in the Aadhaar judgment adopts ‘proportionality’ as the standard of judicial review for testing privacy infractions. Interestingly, the majority adopts a slightly modified version of this test.

The majority begins their consideration of proportionality with a doctrinal and academic analysis leading them to note that ‘some differences about the approach on the application of proportionality doctrine’ exist. For instance, the Judges point out the differences between tests adopted by the German Constitutional Court and the Canadian Supreme Court. They explain the German test as follows:

According to this test, a measure restricting a right must, first, serve a legitimate goal (legitimate goal stage); it must, secondly, be a suitable means of furthering this goal (suitability or rational connection stage); thirdly, there must not be any less restrictive but equally effective alternative (necessity stage); and fourthly, the measure must not have a disproportionate impact on the right-holder (balancing stage). [120]

This appears to be the conventional approach. The majority speech contrasts the German test with the Canadian Oakes test:

In contrast, Canadian Supreme Court… has held that the objective must be ‘of sufficient importance to warrant overriding a constitutionally protected right or freedom’; there must be a rational connection between measure and objective; the means must ‘impair “as little as possible” the right or freedom in question’; and finally, ‘there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”’. [122]

 As the Court points out, there are two main differences between the German approach and the Canadian one. First, the Canadian test requires the State aim to be of ‘sufficient importance’ rather than just legitimate. Second, the German test insists that there must exist no other ‘less restrictive but equally effective alternative’. In contrast, the Canadian formulation only requires that the State impair the right ‘as little as possible’.

The majority speech then turns to the task of deciding the best formulation between these variations of the test for India. It points to two main criticisms levelled against the German test. First, all the moral work in the German test is done at the balancing stage, rendering the first three limbs of the test predominantly useless. Second, “the balancing act at the final stage is often carried out in an impressionistic fashion which seems to be largely unguided by principle and thus opens the door for subjective, arbitrary and unpredictable judgments encroaching on what ought to be the proper domain of the democratic legislature.” [123]

These criticisms are not new to proportionality review. Interestingly, the Court turns to Professor David Bilchitz’s work to answer one of these criticisms. According to Professor Bilchitz, the first concern i.e. that the balancing stage of proportionality doing all the work rendering other limbs useless, can be addressed by focusing on the necessity stage (third limb) instead of the balancing stage (fourth limb). He does this by supplementing the necessity stage in the following way:

First, a range of possible alternatives to the measure employed by the Government must be identified. Secondly, the effectiveness of these measures must be determined individually; the test here is not whether each respective measure realises the governmental objective to the same extent, but rather whether it realises it in a ‘real and substantial manner’. Thirdly, the impact of the respective measures on the right at stake must be determined. Finally, an overall judgment must be made as to whether in light of the findings of the previous steps, there exists an alternative which is preferable; and this judgment will go beyond the strict means ends assessment favoured by… the German version of the proportionality test; it will also require a form of balancing to be carried out at the necessity stage. [123] (emphasis added)

Two points merit attention at this stage. Foremost, is the majority’s uncritical adoption of Professor Bilchitz’s proposition. It has been argued elsewhere on this blog that this choice is questionable. In addition, some aspects of the Bilchitz thesis are themselves open to objection. For example, according to Professor Bilchitz (and the majority) the third limb of proportionality now requires a comparison of different measures all of which achieve the State objective ‘fairly and substantially’. Having identified a range of measures that can ‘fairly and substantially’ achieve the State aim, why is it that, among those objectives, the State is not required to adopt the least intrusive option? Notably, the majority does not require the State to do so. Instead, they say that there is a balancing exercise to be undertaken at this stage of the analysis. However, the majority does not clarify what the content of this balancing is. What are the values that are balanced at this stage?

As for the second criticism levied against the German test—that the fourth balancing stage is carried out in an impressionistic fashion, unguided by principle—the majority holds that it can be overcome by using established ‘bright-line rules’:

Insofar as second problem in German test is concerned, it can be taken care of by avoiding ‘ad-hoc balancing’ and instead proceeding on some ‘bright-line rules’ i.e. by doing the act of balancing on the basis of some established rule or by creating a sound rule. [124] (emphasis added)

This, again, is a controversial claim. What are these bright-line rules? The majority offers no guidance on this. The fourth limb requires the Court to weigh against each other the importance of the public purpose pursued by the State against the intrusion it causes into individual rights. It is difficult to understand how bright line rules can offer an answer to this value-laden process. Indeed, one of the main criticisms of this limb of proportionality has been that it requires weighing up against each other of incommensurable values.

 In sum, the Court adopts the German proportionality test but tempers down intensity of the third limb of narrow-tailoring with Professor Bilchitz’s analysis and qualifies the fourth balancing limb with its own caveats. This the Court refers to as its nuanced proportionality test which is the amalgam between the German and Canadian tests, and this is the test that the Court formulates and adopts for its privacy and Aadhaar analysis.

The next section will attempt to understand the Court’s application of its own test to the facts before it.

Part C: The Majority’s Application of Proportionality

 The majority has propounded a version of proportionality which requires the Court to consider the following enquiries:

  1. Is the State pursuing a legitimate aim?
    1. The State aim must be legitimate, not necessarily compelling.
  1. Are the means used to achieving this aim reasonable or suitable?
  1. Is there a less intrusive way to achieve the State objective? This enquiry includes:
    1. Identifying alternatives to the measure adopted by the State.
    2. Asking how effective each of these alternative measures are. Do they achieve the State objective in a ‘real and substantial manner’?
    3. What is the impact of each of these measures on the infringed right?
    4. The Court will undertake a ‘balancing exercise’ at this stage.
  1. Balancing the State objective on the one hand with the importance of the right and the extent of intrusion on the right on the other.
    1. This balancing is best done by following bright-line rules which are either established or need to be created.

Let us now examine the Court’s application of its own test, particularly with reference to the highly contested third and fourth limbs of proportionality.

On the first limb of proportionality i.e. whether the State is pursuing a legitimate objective, the Court observes that it is.

Section 7 of the Aadhaar Act is aimed at offering subsidies, benefits or services to the marginalised section of the society for whom such welfare schemes have been formulated… [263]

[T]he aim of the Act is to ensure that these benefits actually reach the populace for whom they are meant. This is naturally a legitimate State aim. [266]

The majority speech then proceeds to analyse the Aadhaar scheme based on the second limb of proportionality. The question here is: is there a rational nexus between the means used to achieve the State objective? Here, again, the Court reasons that there is a rational connection between the means i.e. the Aadhaar enrolment scheme and its authentication, and the State objective i.e. providing welfare benefits:

At this point of time, we are discussing the issue as to whether the limitation on the rights of the individuals is rationally connected to the fulfillment of the purpose contained in the Aadhaar Act… Section 7, which provides for necessity of authentication for receipt of certain subsidies, benefits and services has a definite purpose and this authentication is to achieve the objectives for which Aadhaar Act is enacted, namely, to ensure that such subsidies, benefits and services reach only the intended beneficiaries. [278]

These two limbs of proportionality are largely uncontroversial. It is the Court’s application of the third and fourth limbs that creates difficulty.

On the third limb of proportionality—the necessity limb—although the majority endorses Professor Bilchitz’s thesis, as discussed above, it completely fails to engage with it in its own analysis. All that the majority had to say on the third limb is this:

Insofar as third component is concerned, most of it stands answered while in the discussion that has ensued in respect of component No. 1 and 2. The manner in which malpractices have been committed in the past leaves us to hold that apart from the system of unique identity in Aadhaar and authentication of the real beneficiaries, there is no alternative measure with lesser degree of limitation which can achieve the same purpose. In fact, on repeated query by this Court, even the petitioners could not suggest any such method. [280]

This reasoning is, with respect, unfortunate. There is no consideration at all of alternatives to the Aadhaar card scheme. The Court shirks this enquiry on the basis that the petitioners have suggested no such alternates. It has been pointed out elsewhere on this blog that this is factually incorrect. There is no discussion of the effectiveness of these alternate measures either. Further, there is also no assessment of the impact of Aadhaar and other alternate measures on the right to privacy. Importantly, and as a logical corollary, no balancing exercise is in fact carried out at this stage.

The Court had to clarify, through its own four-part enquiry, how it concluded that Aadhaar was the only scheme with no available alternatives to achieve the State purpose. This analysis was certainly not done in the first and second components of the test discussed above. Significantly, it was important for the Court to engage with this analysis because the strongest challenge to the Aadhaar scheme would have come from the third and fourth limbs of proportionality as these are more rigorous in nature than the first two prongs.

The Court’s examination of the fourth limb of proportionality is also intriguing. Interestingly, at this stage the majority introduces a two-part enquiry into its balancing exercise:

  • Whether, ‘legitimate state interest’ ensures ‘reasonable tailoring’?… Here the Act is to be tested on the ground that whether it is found on a balancing test that the social or public interest and the reasonableness of the restrictions outweigh the particular aspect of privacy…
  • There needs to be balancing of two competing fundamental rights, right to privacy on the one hand and right to food, shelter and employment on the other hand. [285]

The first enquiry, although it is not articulated clearly, is the conventional proportionality analysis. It requires the Court to balance against each other the importance of the state objective and the extent of intrusion into the right. The second enquiry, in contrast, balances two fundamental rights against each another. I will consider the majority’s approach to each of these enquiries in turn.

On the first enquiry, the Court instead of balancing the importance of the State purpose against the extent of intrusion into privacy, engages in a detailed evaluation of the ‘reasonable expectation of privacy’ test. Borrowing heavily from the English Court of Appeal’s decision in R Wood v Commissioner, the Court says,

Therefore, when a claim of privacy seeks inclusion in Article 21 of the Constitution of India, the Court needs to apply the reasonable expectation of privacy test. It should, inter alia, see:

  • What is the context in which a privacy claim is set up?
  • Does the claim relate to private or family life, or a confidential relationship?
  • Is the claim a serious one or is it trivial?
  • Is the disclosure likely to result in any serious or significant injury and the nature and extent of disclosure?
  • Is disclosure relates to personal and sensitive information of an identified person?
  • Does disclosure relate to information already disclosed publicly? If so, its implication? [292]

It is imperative to understand what the ‘reasonable expectation of privacy’ really is. It is a test propounded in a 1967 decision of the United States Supreme Court: Katz v United States. This test was generally applied to American Fourth Amendment unreasonable search and seizure claims. The test has a subjective component and an objective component. The subjective component asks whether the person whose right is violated actually expected privacy in such a situation? If the answer is in the affirmative, the Court then asks whether, objectively, the society would find the expectation of privacy unreasonable? The Court’s use of the ‘reasonable expectation of privacy’ test is open to two main objections.

First, as pointed out elsewhere on this blog, the reasonable expectation of privacy test has been discredited in the land of its origin. Further, its application to Indian privacy cases is also disputed. Nariman J, for one, expressly rejected it in Puttaswamy.

Second, the purpose of the reasonable expectation of privacy test is to determine whether the infringement occurred in a sphere where the petitioner has a valid claim to privacy. Consequently, it relates to a stage anterior to proportionality review. If the petitioner had no reasonable expectation of privacy, then there is no breach of the right to privacy to begin with. There is simply no need to engage in the exercise of balancing competing interests.

Curiously, the Court had adopted this understanding of the ‘reasonable expectation of privacy’ test in an earlier part of its reasoning. It said:

Before we proceed to analyse the respective submissions, it has also to be kept in mind that all matters pertaining to an individual do not qualify as being an inherent part of right to privacy. Only those matters over which there would be a reasonable expectation of privacy are protected by Article 21. [260]

Thus, if the petitioner has no reasonable expectation of privacy, she is outside the protective scope of Article 21. It is puzzling, therefore, that while undertaking a balancing exercise under the fourth limb of proportionality, the Court decided to use the ‘reasonable expectation of privacy’ test. With respect, this is conceptually indefensible.

On the second aspect of the balancing enquiry, the Court attempted to balance the right to privacy on the one hand, and the rights to food, livelihood and social welfare benefits on the other, to conclude that the invasion on the right to privacy is minimal. The majority reasoned in the following terms:

Let us advert to the second facet of balancing, namely, balancing of two fundamental rights. As already pointed out above, the Aadhaar Act truly seeks to secure to the poor and deprived persons an opportunity to live their life and exercise their liberty. By ensuring targeted delivery through digital identification, it not only provides them a nationally recognized identity but also attempts to ensure the delivery of benefits, service and subsidies… [298]

In the aforesaid backdrop, this Court is called upon to find out whether Aadhaar Act strikes a fair balance between the two rights… To reiterate some of the important features, it is to be borne in mind that the State is using Aadhaar as an enabler for providing deserving section of the society their right to food, right to livelihood, right to receive pension and other social assistance benefits like scholarships etc. thereby bringing their right to life to fruition. This necessity of Aadhaar has arisen in order to ensure that such benefits are given to only genuine beneficiaries. The Act aims at efficient, transparent and targeted delivery of subsidies, benefits and services. In the process, it wants to achieve the objective of checking the corrupt practices at various levels of distribution system which deprive genuine persons from receiving these benefits… As against the above larger public interest, the invasion into the privacy rights of these beneficiaries is minimal. [307, 308]

Conclusion

To conclude, there are three main takeaways from the judgment on the standard of review applicable to privacy claims.

First, the standard of judicial review is now, unambiguously, proportionality. Second, the majority creates its own version of proportionality for the purposes of Indian privacy jurisprudence. Strikingly, this includes a balancing exercise under the third, necessity limb. Yet, it remains unclear what the content of this commensuration exercise is. Finally, the Court’s application of the proportionality standard to the Aadhaar card scheme is defective in at least two main respects: it fails to engage meaningfully with the less intrusive alternatives and it, wrongly in my view, conflates the fourth limb of proportionality review with the ‘reasonable expectation of privacy’ test.

The Nagaraj/Creamy Layer Judgment and its Discontents

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On September 26th, a Constitution Bench of the Supreme Court delivered judgment in Jarnail Singh v Lacchmi Narain GuptaThe Court was essentially called upon to decide whether the correctness of the previous five-judge bench judgment in M. Nagaraj v Union of India ought to be referred to a seven-judge bench for reconsideration.

Nagaraj was a reservations case (examining a challenge to Articles 16(4A) and (4B) of the Constitution. In particular, two of its findings were under challenge: firstNagaraj had held that as a precursor to granting reservations (including to Scheduled Castes and Scheduled Tribes), the State would have to collect “quantifiable data” demonstrating their backwardness. And secondlyNagaraj had held that the “creamy layer” concept – where certain members of a group were deemed to belong to the “creamy layer” and therefore not entitled to reservations – was also applicable to Scheduled Castes and Scheduled Tribes. The Attorney-General for India argued that both these findings were incorrect, as they were contrary to the holding of the nine-judge bench in Indira Sawhney v Union of India.

Quantifiable Data 

On the first issue, the Constitution Bench – in a unanimous judgment authored by Nariman – held that Nagaraj stood directly contrary to Indra Sawhney, and was therefore incorrect:

Insofar as the State having to show quantifiable data as far as backwardness of the class is concerned, we are afraid that we must reject Shri Shanti Bhushan’s argument. The reference to ―class‖ is to the Scheduled Castes and the Scheduled Tribes, and their inadequacy of representation in public employment. It is clear, therefore, that Nagaraj (supra) has, in unmistakable terms, stated that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes. We are afraid that this portion of the judgment is directly contrary to the nine-Judge Bench in Indra Sawhney (1) (supra). (paragraph 14)

While this is no doubt correct on law (and indeed, on logic – the Presidential list under Articles 341 and 342 containing the list of Scheduled Castes and Scheduled Tribes is already based on an assessment of marginalisation and vulnerability), it does raise a question of judicial propriety. Can a five-judge bench hold that a coordinate bench wrongly interpreted the law, and is therefore incorrect? Does not propriety require that the subsequent bench refer the case to a seven-judge bench, which can then overrule the (allegedly) incorrect judgment? Not that this is not even a case where it was argued that Nagaraj was per incuriam: rather, what was advanced was the far more modest claim that Nagaraj got Indira Sawhney wrong. But even if Nagaraj got Indira Sawhney hopelessly, irredeemably wrong, that was not for the Constitution Bench in Jarnail Singh to decide.

Creamy Layer

Nariman J. then went on to hold that even though Indira Sawhney had not expressly chosen to apply the creamy layer principle to Scheduled Castes and Scheduled Tribes, it had always been clear that the principle was a facet of constitutional equality. Nariman J. relied upon N.M. Thomas for this principle, relying upon some observations in Krishna Iyer J.’s concurring opinion, to note that:

The whole object of reservation is to see that backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were. This being the case, it is clear that when a Court applies the creamy layer principle to Scheduled Castes and Scheduled Tribes, it does not in any manner tinker with the Presidential List under Articles 341 or 342 of the Constitution of India. The caste or group or sub-group named in the said List continues exactly as before. It is only those persons within that group or sub-group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation. Even these persons who are contained within the group or sub-group in the Presidential Lists continue to be within those Lists. It is only when it comes to the application of the reservation principle under Articles 14 and 16 that the creamy layer within that sub-group is not given the benefit of such reservation. (paragaraph 15)

Importantly, Nariman J then went on to hold that courts could themselves “exclude” the creamy layer from reservations (paragraph 16).

But for a conclusion of this magnitude, Nariman J.’s reasoning is disappointingly sketchy. There are at least two good reasons why the creamy layer doctrine should not be applied to Scheduled Castes and Scheduled Tribes, neither of which are addressed or acknowledged by the judgment. First, the very concept of a “creamy layer” presupposes that some members of a subordinated group have attained a level of privilege, that they no longer share the characteristics of subordination, and therefore, are no longer a part of the “group” in that limited sense. Now, when the subordination is economic or political, it makes sense to assume that it is at least possible for some people, or groups of people, to “escape” that subordination, so to say. However, that is a far more dubious claim when the subordination is social in character, and is founded on discrimination of a certain kind, where group identity itself is the locus of disadvantage. We don’t have to go too far afield to understand this – there are more than enough examples of Dalits who have broken free of economic marginalisation or penury, but continue to be subjected to the most shocking forms of social discrimination. And indeed, this has historically borne out: right from the early-20th century, the first lists of “Depressed Classes”, drawn up by British commissions, focused on social stigma as the basis of classification (for a detailed discussion, see Marc Galanter’s Competing Inequalities). Recall Ambedkar’s own words about how caste society was based on an “ascending scale of hatred and a downward scale of contempt.” Does the concept of a “creamy layer” make any sense here? Well, if it does, than it requires substantially more detailed justification than the Court provides.

And secondly, even if we are to accept that “creamy layer” makes conceptual sense in the case of SCs and STs, there nonetheless remain justifications for the existing reservation model that the Court does not touch upon. It is argued, for example, that even if the benefits of reservation are “captured” by the elite within a group, even that constitutes positively towards greater social mobility (of the group) in the long term apart from ancillary benefits of greater political salience. I am not saying that these arguments are correct, or persuasive; however, it does behoove the Court to address them if it is going to introduce the creamy layer concept into these two categories.

Conclusion

Jarnail Singh suffers from two problems. On one point, it overrules a coordinate bench without even a finding of per incuriam. And on the second point, it puts its seal on a significant doctrinal shift in reservations jurisprudence, but does not back it up with the depth of analysis that it demands. I suspect, however, that this is not the last that we have heard on the issue – especially from the government’s side!

The Aadhaar Judgment and Reality – II: On Fallibility

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(This is the second post in a four part series by Anand Venkat examining the factual claims underlying the Majority judgments in Aadhaar.)

How do we know that a certain technology works as claimed? The steps to ascertain that it does indeed work, as expected, are fairly standard, and are neutral to the technology deployed, as described below:

  1. First a trial or a laboratory exercise is conducted, under pristine or controlled conditions, to see how the technology performs.
  2. It is a given at this stage that this is the best possible condition, which is not representative of the real world, because no small scale experiment can capture the complex reality of the real world in full.
  3. The results are then published, with precise descriptions of the laboratory conditions including an assessment of the assumptions.
  4. Then, extrapolations are  made, based on the conditions necessary to extend it to the real world. These are usually accompanied by error bands or confidence intervals.
  5. The technology is then rolled out slowly, and the predictions are checked against real world measurements. The applicability is  continuously determined
  6. The side effects of deviation from laboratory conditions are then addressed, either through improvements, or, if the deviations are relatively small, then manually.

The description above is essential for the reader to understand a key issue that the Majority in the Aadhaar judgement, dodged — all technology solutions are fallible, but what matters is the deviation from expectations, to determine applicability.

Biometric Fallibility

The Majority points out one key study in its judgement (Page 16), that was submitted by the UIDAI itself, titled “Role of Biometric Technology in Aadhaar Authentication”. The study points out on page 24, the following conclusion:

Finally 1.87% of residents participating in the study were found to have fingerprint Quality not sufficient for fingerprint authentication.

They were not included in the further authentication tests.

In essence, the headline accuracy figures of 99.3%, that the Majority quoted in its judgement, came after excluding those from the study that UIDAI conducted, for whom biometrics does not work at all.

This specific facet was argued by the petitioners in depth, which the Majority chose to ignore. Instead, the judgement specifically used a headline figure of 99.76% (Paragraph 314, Page 384), but this is one that even the UIDAI did not claim, in its own study.

The Authority has claimed that biometric accuracy is 99.76%. It was, however, submitted that where more than 110 crores of persons have enrolled themselves, even 0.232% failure would be a phenomenal figure,  totalling 27.60 lakh people.

It might be possible to argue that this is nitpicking on numbers, but let us deconstruct the basic technology issues here, from elementary probability the kind that is taught in 10th standard schooling. For biometric authentication to work reliably, the following parameters are required.

  1. Fingerprint quality of the resident itself.
  2. Fingerprints/IRIS scans captured at a good quality during enrolment.
  3. Working scanners during authentication.
  4. Internet Connectivity
  5. Various back end servers, configured by the service providers (PDS, MNREGA) that work reliably.

Every one of the above are fallible, and can fail. So, across a wide population, the chances of failure are a sum of (1-5). The UIDAI has already admitted that (1) above is 1.87% at controlled conditions. So it is only natural by the iron law of probability addition, again, one that is taught in primary schools, service denials are embedded in the design and architecture of the project.

The numerous affidavits filed by petitioners are testimonials to the mathematical certainty that form the basis of the challenge. But the way in which the majority dealt with mathematical certainties backed by data is stunning. It pronounced an undying faith on technological improvements, backed without evidence or data.

We understand and appreciate that execution of the Aadhaar scheme, which has otherwise a laudable objective, is a ‘work in progress’. There have been substantial improvements in the system over a period of time from the date of its launch.It was stated by the learned Attorney General as well as Mr. Rakesh Dwivedi, at the Bar, that whenever difficulties in implementation are brought to the notice of the respondents, remedial measures are taken with promptness. Cases of denial of services are specifically looked into which is very much needed in a welfare State and there can be a genuine hope that with the fine tuning of technology, i.e. the mode of advancement at rapid pace, such problems and concerns shall also be completely taken care of.

It is important to understand the implication of the above paragraph. When asked to make difficult decisions on the fallibility of a technological solution, the Majority first refused to engage with the unyielding iron laws of mathematics. It then made up a factually inaccurate claim that there have been improvements since the date of  launch of the project, and then finally hoped that the technology will further improve over time, to address this issue, when the UIDAI’s CEO’s presentation itself showed authentication failures on government schemes increasing over time:

PPT

From the Power-Point Presentation submitted by the UIDAI Chairperson in Court

By doing so, the Majority avoided facing questions of fallibility, that were raised strenuously by the petitioners, through hope (and perhaps a prayer).

Witch Doctors and Bleeding

A very significant contribution of modern medical trials is the idea of Randomized Controlled Trial (RCT). A medical intervention that is expected to cure an ailing patient is put through a rigorous evaluation, to ascertain the effectiveness of the medical intervention, and also to identify unwanted side effects. This is important, to distinguish various competing interventions that attempt to cure the patient with the same problem.

While RCT is complex, it is also considered as the gold standard for evidence based policy making. For instance, corruption and leakage in welfare delivery can be thought of as a disease, one that plagues the ailing nation, and various interventions, including Aadhaar, can be thought of as state interventions that aim to cure the problem.

But how many of these interventions are effective? For instance, medieval witch doctors also had a noble intent, the curing of diseases through constant bleeding of the patient. While no one can question the state’s noble intent to remove corruption, the question of effectiveness of various measures still remains.

The state’s preferred method of showcasing the effectiveness of an intervention is “Savings to the Exchequer”. It cited fantastic figures, that always keep increasing over time, but which were refuted in depth by the petitioners, as noted by the Majority, in Para 316, Page 385. The Majority recorded the Petitioners’ following submissions: 

First, it [i.e., the State] has failed to discharge its burden of showing that the purported leakages were exclusively caused due to identity fraud, and that those leakages would not exist if  Aadhaar is implemented. The state has not given any empirical data. Leakages exist due to eligibility frauds, quantity frauds and identity frauds. Studies filed in Petitioner’s affidavits show that eligibility and quantity frauds are the substantial cause for leakages. Assuming that the Aadhaar Act prevents leakages, the biometric identification system can, at best, only cure leakages related to identity fraud. The government’s claims of savings inter alia of Rs. 14,000 crores in the PDS system, due to the deletion of 2.33 crore ration cards is incorrect, inflated, and based on wrong assumptions for the following reasons:

1. It admittedly does not have estimates of leakages in PDS, nor has any study been done to see if POS machines are effective in removing PDS irregularities;

2. It conflates issue of “bogus /ineligible ration cards” (eligibility fraud) with identity fraud

3. The figure of 2.33 crore includes West Bengal, where ration cards are issued to each person, as opposed to each household

4. A large number of these 2.33 crore cards were deleted even before Aadhaar-integration and seeding came into effect;

5. The savings figure includes even those eligible beneficiaries who have been removed from the list due to failure to link Aadhaar properly; and

6. It does not value the cost of loss of privacy. Most importantly, the basis for reaching such savings figure has not been disclosed.

Similarly, incorrect averments have been made in the context of LPG savings, using Aadhaar-enabled Direct Benefit Transfer (‘DBT’) scheme known as PAHAL.

How did the Majority deal with such detailed factual rebuttals? In Page 350, Paragraph 279, it points out that:

There have been cases of duplicate and bogus ration cards, BPL cards, LPG connections etc. Some persons with multiple identities getting those benefits manifold. Aadhaar scheme has been successful, to a great extent, in curbing the aforesaid malpractices.

 

That is about it. There is no engagement with facts, no weighing contradictory evidence, no engagement with methodology or the lack of it, behind the state’s assertions.

Conclusion

One of the stunning achievements of the human race, that distinguishes us from other organisms, is the fact that we can engage with the physical and material world through complex reasoning Technological progress emerged from such reasoning, and mathematical theory and laws form the bedrock of technology.

Methodological correctness, therefore, is also a side effect of technological progress. For instance, can one claim that one is a billionaire without any assets, jobs or wealth and only with a number written on a piece of paper?

A person who makes such a claim would be laughed out in seconds as delusional, yet the highest constitutional court, allowed the state to make the fantastic claim that Aadhaar helped in curbing malpractices, with no evidence, methodological backing or proof, and get away with it.

Worse still, though, it also endorsed it, and declared it as the truth.

By doing so, it relapsed to argumentum ad verecundiam, where statements made by authority figures, even if they are totally without basis, are held as the ultimate truth.

The Aadhaar case is fundamentally about the intersection of power, technology and freedom as noted by Chandrachud J. in his dissent. In understanding the interface between governance, technology and freedom, this case will set the course for the future.

A factual engagement with technology, mathematics, scientific approach and methodology was essential for the court to understand the issues involved. That it chose to depend on a ‘slideshow’ presentation and that too, only selectively (it ignored the increasing authentication failures in government schemes) to arrive at its conclusions, is disturbing, for more than one reason.

Part 3 of this series will highlight how it incidentally tripped up not only the petitioners, but also caused nightmares to the UIDAI and the state accidentally, because of its technological illiteracy.

The Sabarimala Judgment – III: Justice Chandrachud and Radical Equality

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Justice Indu Malhotra’s dissenting opinion sets up a crucial constitutional question: how do you reconcile the Constitution’s commitment to pluralism – which entails respect for group autonomy – with the claims of equality and non-discrimination, addressed from within those groups? It is this question that is at the heart of Justice Chandrachud’s concurring opinion.

Chandrachud J. sets up the issue in the introductory part of his judgment, where he observes that the Indian Constitution is transformative in two distinct ways: first, in setting up the governing institutions of an independent republic, transitioning from colonial rule; but also, “placing those who were denuded of their human rights before the advent of the Constitution – whether in the veneer of caste, patriarchy or otherwise – … in control of their own destinies by the assurance of the equal protection of law” (paragraph 2). The reference to caste and patriarchy is important, because it acknowledges that discrimination is not limited to State action, or even to hostile individual action, but that it also flows from institutional design: caste and patriarchy are neither “State” nor an agglomeration of individual acts where you can attribute discriminatory agency to identifiable individuals. They are social institutions.

And because they are social institutions, their impact upon the lives of the people that they touch is not merely a private matter. In paragraph 5, therefore, Chandrachud J. observes:

Essentially, the significance of this case lies in the issues which it poses to the adjudicatory role of this Court in defining the boundaries of religion in a dialogue about our public spaces. (paragraph 5)

The use of the word “public spaces” is crucial, and especially when you juxtapose it with Malhotra J.’s dissenting opinion, which we discussed in the previous post. Recall that for Malhotra J., there was a distinction between a “social evil” like Sati – where a Court could potentially intervene – and a case like Sabarimala, where the challenge was based on irrationality or immorality. It is this public/private binary – social evil (public) and bare immorality (private) – that Chandrachud J. rejects, by framing the issue as about access to public spaces.

It is within this framework that Chandrachud J. begins his substantive analysis.

Essential Religious Practices 

After surveying the body of precedent concerning the ERP test – and also noting the shift from “essentially religious” to “essential religious”, that we have discussed on this blog – Chandrachud J.’s judgment has a section titled “The engagement of essential religious practices with constitutional values.” At the threshold, Chandrachud J. finds that the Respondents have failed to establish that the exclusion of women from Sabarimala is either an obligatory part of religion, or has been consistently practiced over the years. The evidence, at best, demonstrates the celibate nature of Lord Ayappa, but this in itself does not establish that exclusion of women is part of ERP (paragraph 51).

However, apart from the traditional and straightforward analysis of whether or not a religious claim amounts to an essential religious practice, Chandrachud J. also advances an important alternative argument: that “the test of essentiality is infused with … necessary limitations” (paragraph 50), limitations that are grounded in constitutional morality, and the constitutional values of dignity and freedom. So, at paragraph 55, Chandrachud J. notes:

The Respondents submitted that the deity at Sabarimala is in the form of a Naishtika Brahmacharya: Lord Ayyappa is celibate. It was submitted that since celibacy is the foremost requirement for all the followers, women between the ages of ten and fifty must not be allowed in Sabarimala. There is an assumption here, which cannot stand constitutional scrutiny. The assumption in such a claim is that a deviation from the celibacy and austerity observed by the followers would be caused by the presence of women. Such a claim cannot be sustained as a constitutionally sustainable argument. Its effect is to impose the burden of a man’s celibacy on a woman and construct her as a cause for deviation from celibacy. This is then employed to deny access to spaces to which women are equally entitled. To suggest that women cannot keep the Vratham is to stigmatize them and stereotype them as being weak and lesser human beings. A constitutional court such as this one, must refuse to recognize such claims. (paragraph 55)

As a piece of discrimination law reasoning this is, of course, impeccable. But there is something more at work here, which I want to highlight. Chandrachud J.’s observation that the effect of the celibacy argument “is to impose the burden of a man’s celibacy on a woman” is the crucial link between the denial of the right to worship (which Malhotra J., in her dissent, regards as a private, internal matter to religion) and the public aspect of this case. What Chandrachud J. recognises is that the justification offered to exclude women is an integral part of a far broader discourse that is founded on the exclusion and subordination of women in social and community life. This becomes clear two paragraphs down, where he discusses the stigma around menstruation (another justification that was advanced by the Respondents), and observes:

The stigma around menstruation has been built up around traditional beliefs in the impurity of menstruating women. They have no place in a constitutional order. These beliefs have been used to shackle women, to deny them equal entitlements and subject them to the dictates of a patriarchal order. (paragraph 57)

The phrase “patriarchal order” is an important one. It indicates that the exclusion of women from Sabarimala is not simply – as Malhotra J. would have it – a unique and particular feature of that specific religious community, and something that can be isolated from the broader world around it. Rather, the exclusion of women from Sabarimala on the grounds of celibacy and menstruation is one among countless ways in which patriarchy – as a social institution – works to keep women in a position of subordination.

Justice Malhotra and Justice Chandrachud, therefore, come at the issue from opposite angles. What Malhotra J. sees as a claim requiring that religion be subordinated to the diktats of morality, Chandrachud J. understands as challenge to one manifestation of patriarchal subordination itself. According to Chandrachud J., you cannot divide social life into different silos, and say that discrimination and subordination are fine as long as they stay within a defined silo. At least as far as religion and society are concerned, in the context of India, the silos are forever merged. As Alladi Krishnaswamy Iyer said in the Constitutional Drafting Committee, “there is no religious question that is not also a social question.”

It perhaps needs to be noted that history is on Justice Chandrachud’s side. In India, temple-entry movements have a long history, and have always been framed in the language of civil rights, and access to public spaces. This was especially true of the great caste-based temple-entry movements of the 1920s and 30s (which are discussed later in the judgment). This substantiates the argument that in India, the “thick” character of religious life implies that you cannot simply wall it off from the rest of social life. Consequently, discrimination within religion is hardly an isolated event, like – for example – the non-appointment of a woman to a clerical post in an American Church, which was upheld by that Supreme Court. Rather, at the heart of Chandrachud J.’s judgment is the understanding that discrimination within religion both reinforces and is reinforced by, discrimination in broader social life.

Untouchability 

This understanding is reinforced in what is undoubtedly the boldest and most radical part of Chandrachud J.’s judgment. An argument was made by the intervenors that the exclusion of women from Sabarimala amounts to “untouchability” within the meaning of Article 17. The Chief Justice and Nariman J. do not address this argument, and Malhotra J. rejects it on the ground that “untouchability” under the Indian Constitution is limited to caste-based untouchability.

Chandrachud J. disagrees. After a detailed survey of the Constituent Assembly Debates (which we have discussed previously on this blog, here), he correctly observes that there was no consensus in the Constituent Assembly over the precise scope and ambit of the phrase. But when you place the moment of constitutional framing within broader history, you have an answer:

The answers lie in the struggle for social emancipation and justice which was the defining symbol of the age, together with the movement for attaining political freedom but in a radical transformation of society as well. (paragraph 73)

And:

Reading Dr Ambedkar compels us to look at the other side of the independence movement. Besides the struggle for independence from the British rule, there was another struggle going on since centuries and which still continues. That struggle has been for social emancipation. It has been the struggle for the replacement of an unequal social order. It has been a fight for undoing historical injustices and for righting fundamental wrongs with fundamental rights. The Constitution of India is the end product of both these struggles. It is the foundational document, which in text and spirit, aims at social transformation namely, the creation and preservation of an equal social order. The Constitution represents the aspirations of those, who were denied the basic ingredients of a dignified existence. (paragraph 74)

This reminiscent of Granville Austin’s famous line, that the fundamental rights chapter was framed amidst a history of fundamental wrongs. In these paragraphs, Justice Chandrachud argues that the meaning of fundamental rights ought be determined by asking the following question: what was the legacy of injustice that the Constitution sought to acknowledge, and then transform? That legacy was defined by social hierarchies and social subordination. At its most virulent form, this took the shape of caste untouchability. However, caste was not the only axis for exclusion from, and subordination within, the social order. There were others, prime among which was, of course, sex. Consequently, as Justice Chandrachud observes:

The incorporation of Article 17 into the Constitution is symbolic of valuing the centuries’ old struggle of social reformers and revolutionaries. It is a move by the Constitution makers to find catharsis in the face of historic horrors. It is an attempt to make reparations to those, whose identity was subjugated by society. (paragraph 75)

It is, of course, important not to overstate the case. Not every form of discrimination or prejudice can fall within Article 17. The framers did after all use the specific word “untouchability”, limiting the sweep of the Article only to the most horrific kind of discrimination. Chandrachud J. is aware of this, because he then goes on to justify why exclusion based on menstruation falls within Article 17:

The caste system represents a hierarchical order of purity and pollution enforced by social compulsion. Purity and pollution constitute the core of caste. (paragraph 76)

And of course, it is purity and pollution that are at the heart of excluding menstruating women – not just from temples but, as regularly happens in our country – from all forms of human contact during the menstrual period. Chandrachud J.’s important insight, therefore, is this: the social exclusion of a set of people (who are in any event historically subjugated), grounded in ideas about purity and pollution, amounts to a manifestation of the kind of “untouchability” that the Constitution seeks to prescribe. This does not mean, of course, that it is not caste-based untouchability that is at the heart of Article 17; nor does it seek to dilute the severity of that institution, or the Constitution’s commitment to wipe it out. What it does acknowledge, however, is that the same logic that is at the base of caste-based untouchability, also takes other forms and other manifestations. These manifestations may not be at the core of Article 17, but they do deserve its protection:

Article 17 is a powerful guarantee against exclusion. As an expression of the anti-exclusion principle, it cannot be read to exclude women against whom social exclusion of the worst kind has been practiced and legitimized on notions of purity and pollution. (paragraph 75)

And therefore:

The caste system has been powered by specific forms of subjugation of women. The notion of “purity and pollution” stigmatizes the menstruation of women in Indian society. In the ancient religious texts and customs, menstruating women have been considered as polluting the surroundings. Irrespective of the status of a woman, menstruation has been equated with impurity, and the idea of impurity is then used to justify their exclusion from key social activities. (paragraph 81) (internal footnotes omitted)

In an important way, this links back to the previous argument about essential religious practices. It is obviously absurd to compare the exclusion of women (and mostly upper-caste women at that) from a temple with “untouchability” as we understand it. But that is something that Chandrachud J. very consciously does not do. What he does do is to link the underlying basis of the exclusion in Sabarimala with something that goes far beyond, and permeates very layer of society: this is why he specifies that the idea of impurity justifies exclusion from “key social activities.” In other words, it is not about exclusion from worship, but – yet again – how that exclusion both reinforces and is reinforced by an existing and overarching set of discriminatory institutions and systems.

Exist, Pursued by a Bear: Narasu Appa Mali 

There is one more important thing that Chandrachud J. does in his concurrence. Noting that the exclusion of women has also been justified on the basis of “custom”, he examines – and overrules – the Narasu Appa Mali judgment on the specific point that customs are not subject to fundamental rights.

In terms of outcomes, this is not new: in Madhu Kishwar v State of Bihar, the Supreme Court has already held that customs are subject to fundamental rights. However, that case did not examine Narasu: here, Chandrachud J. does, and specifically finds that its reasoning is flawed.

This is very important, because Narasu also held that “personal law” – that is, uncodified religious law – was outside the scope of fundamental rights review. The reasoning for that was the same, and so, also stands discredited. As Chandrachud J. points out, the reasoning given by the Bombay High Court in Narasu – that, for example, the existence of Article 17 shows that the framers intended to specifically include customs that they wished to proscribe – does not hold water. More importantly, however, is the affirmative case that Chandrachud J. advances:

Custom, usages and personal law have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny, is to deny the primacy of the Constitution. (paragraph 99)

In other words, there cannot be islands of norms and prescriptions that are granted constitutional immunity.  As with the ERP and the untouchability argument, the rationale is the same: the individual is the basic unit of the Constitution, and norms, practices, prescriptions, rules, commands and whatever else that have the potential to impair individual dignity or block access to basic goods in society, must pass constitutional scrutiny (paragraph 100).

And indeed, Chandrachud J. goes on step further with this thought, noting that the ERP test itself ought – in future – give way to a test that asks not whether a practice is “essential” (which is, after all, a question that the believers, and not the Court, should answer), but asks whether the impugned practice is socially exclusionary, and denies individuals access to the basic goods required for living a dignified life (Disclaimer: this part of the judgment cites an article of mine, and I will readily admit to being biased in favour of the anti-exclusion argument.)

Conclusion

In the previous post, we discussed Malhotra J.’s dissent. We saw how Malhotra J. raises an important question: how do we reconcile the Constitution’s commitment to pluralism with judicial intervention into internal religious affairs? We have now seen how Chandrachud J. has answered it: the commitment to pluralism and respect for group autonomy must be understood within a Constitutional framework that places individual freedom and dignity at its heart. The Constitution recognises group autonomy because, often, group life promotes individual freedom and dignity. Community, after all, is crucial to self-development. But groups can also restrict freedom and dignity, and it is in those circumstances that a Court must step in and balance the competing claims.

In Sabarimala, Chandrachud J. attempts to demonstrate how, in fact, the proscription in question does restrict freedom and dignity, and therefore, should be judicially invalidated. He does so by telescoping outwards from the singular event itself (exclusion from worship in one temple), and showing how this single event of exclusion is nested in an entire social and institutional order that is characterised by hierarchy, subordination, and exclusion. We may call this patriarchy, or we may call this something else, but the argument is clear: it’s not about worship at Sabarimala (which is what Malhotra J. limits it to, and therefore classifies it as simply about seeking morality or rationality), but about what exclusion from worship means in a broader context. To take an example: think of a Whites-Only signboard outside a restaurant in Apartheid South Africa. The point is not that one private restaurant owner has decided to exclude blacks from his private property. The point, rather, is how that signboard is an integral element of the practice and institution of apartheid. The crucial insight that Chandrachud J. brings in his judgment is that recognition of the institutional character of discrimination and inequality, and how that must be constitutionally combatted. As he notes, towards the end:

In the dialogue between constitutional freedoms, rights are not isolated silos. In infusing each other with substantive content, they provide a cohesion and unity which militates against practices that depart from the values that underlie the Constitution – justice, liberty, equality and fraternity. Substantive notions of equality require the recognition of and remedies for historical discrimination which has pervaded certain identities. Such a notion focuses on not only distributive questions, but on the structures of oppression and domination which exclude these identities from participation in an equal life. An indispensable facet of an equal life, is the equal participation of women in all spheres of social activity. (paragraph 117)

It is that which makes it a transformative judgment.

The Sabarimala Judgment – II: Justice Malhotra, Group Autonomy, and Cultural Dissent

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I had originally intended this series to follow a more familiar chronology – moving through the concurring opinions, and ending with Justice Indu Malhotra’s dissent. However, on a closer reading of the judgment, it strikes me that Malhotra J.’s dissent raises some crucial points, which remain unanswered in the opinions of the Chief Justice and Nariman J. – but are addressed in Chandrachud J.’s concurrence. For this reason, I will use this post to discuss the dissenting opinion, and flag its foundational arguments, and then – in the next post – examine Chandrachud J.’s concurrence.

Maintainability

How unusual – but how refreshing – to see a judge taking maintainability seriously, and that too in a PIL! Malhotra J. starts her analysis with the following observation:

The right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the Petitioners’ personal rights to worship in this Temple have been violated. The Petitioners do not claim to be devotees of the Sabarimala Temple where Lord Ayyappa is believed to have manifested himself as a ‘Naishtik Brahmachari’. To determine the validity of long-standing religious customs and usages of a sect, at the instance of an association/Intervenors who are “involved in social developmental activities especially activities related to upliftment of women and helping them become aware of their rights”, would require this Court to decide religious questions at the behest of persons who do not subscribe to this faith. (paragraph 7.2).

Malhotra J. goes on to warn that the issue of maintainability is not a “mere technicality” in this case, but something more important. It would open the floodgates for “interlopers” to question all kinds of religious beliefs and practices, something that would cause even graver peril for “religious minorities.” (paragraph 7.3) Malhotra J. then sums up:

The right to equality under Article 14 in matters of religion and religious beliefs has to be viewed differently. It has to be adjudged amongst the worshippers of a particular religion or shrine, who are aggrieved by certain practises which are found to be oppressive or pernicious. (paragraph 7.4).

While Malhotra J.’s concern about the floodgates is well-taken, I am not sure that that, by itself, can be a ground for rejecting the PIL on the basis of maintainability. However, I believe that in observing that “[The Article 14 claim] has to be adjudged amongst the worshippers of a particular religion or shrine“, Malhotra J. articulates a crucial point, which demonstrates why, even in the PIL era, the issue of maintainability is particularly crucial to this case.

To understand why, let us examine the nature of the claim. The claim is for women between the ages of ten and fifty to be allowed to enter Sabarimala. This claim is set up against the argument of the Sabarimala priest (and certain other devotees), that the entry of women is barred by religious custom. Sabarimala, therefore, is a classic example of what Madhavi Sundar calls “cultural dissent“: norms and values defined and imposed by cultural gatekeepers and dominant groups, have been challenged.

That cultural dissent is at the heart of Sabarimala is recognised by both the Chief Justice and Nariman J., in their opinions. The Chief Justice notes that Article 25(1) protects both inter-group and intra-group rights. In a very interesting observation, Nariman J. suggests that when there is internal dissent about a practice, its “essential” character to the religion (and therefore, its claim to protection under Article 25(1)) will be thrown in doubt. However, what is crucial to note is this: by its very nature, a claim to cultural dissent has to be articulated by the dissenters themselves. Because what is under challenge – as Justice Malhotra recognises – is the question of whether certain practices – internal to the religion – are “oppressive” or not. And given that religions are self-contained and self-referential systems of belief and practice, the question of what constitutes “oppression” will, in most cases, be an internal question.

Let me be clear: this is not an argument against the Courts interfering in religious practices on the touchstone of equality and non-discrimination. Quite the opposite: when marginalised groups within cultures or religions challenge oppressive norms or practices, more often than not, they will need an external authority (such as Courts, acting under the Constitution) to support them in that struggle. But what I am saying is that the claim must originate from the marginalised groups themselves. An external authority cannot assume the mantle of speaking on their behalf.

There is, of course, a significant exception to this: when the marginalised group is (literally) silenced from articulating its claims. But I feel considerable hesitation in applying that standard to Sabarimala. Are we going to say that every woman devotee at Sabarimala is either too brainwashed or too terrorised to approach the Court for her rights? That would seem to me to be not only factually incorrect, but highly demeaning as well – a saviour complex redolent of Lila Abu-Lughod’s excoriation of liberal interventionism in her tellingly-titled article, “Do Muslim Women Really Need Saving?

I recognise that this is an unpopular position, I believe that the Majority should have voted with Malhotra J. to dismiss the PIL on grounds of maintainability, while granting liberty to any affected party to approach the Court through a writ petition.

Group Autonomy

Running through Malhotra J.’s judgment is a vision of group autonomy. She believes that the Constitution’s religious freedom clauses act to insulate religious groups from having their beliefs and practices subjected to constitutional scrutiny. As she observes:

It would compel the Court to undertake judicial review under Article 14 to delineate the rationality of the religious beliefs or practises, which would be outside the ken of the Courts. It is not for the courts to determine which of these practises of a faith are to be struck down, except if they are pernicious, oppressive, or a social evil, like Sati. (paragraph 8.2)

The devil, of course, is in the detail. Malhotra J. concedes that practices that are “pernicious, oppressive, or a social evil” can be reviewed by Courts. But that, indeed, was the Petitioners’ argument in Sabarimala: excluding women from the temple was a pernicious and oppressive practice, even though it did not (of course) reach the level of Sati. How does Malhotra J. respond to this? There is no immediate answer, but we do get something of an answer late in the judgment. In paragraph 10.13, Malhotra J. observes:

Judicial review of religious practises ought not to be undertaken, as the Court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practise one’s religion according to one’s faith and beliefs. It would amount to rationalising religion, faith and beliefs, which is outside the ken of Courts. (paragraph 10.13)

The argument, therefore, appears to be this: a practice like Sati is not simply “religious”. In actually killing women, its impacts go far beyond, and into the “real world.” The question of the right to worship at Sabarimala, however, remains a question internal to the religion: its a moral issue, a question of whether within the community of Sabarimala devotees, men and women are treated equally. For Justice Malhotra, that is not something that Courts can go into. As she observes towards the end of the judgment:

Worship has two elements – the worshipper, and the worshipped. The right to worship under Article 25 cannot be claimed in the absence of the deity in the particular form in which he has manifested himself. (paragraph 13.9)

 

For Malhotra J., therefore, unlike Sati, Sabarimala is a pure question of faith, and therefore immune from judicial review and the application of constitutional norms of equality and non-discrimination.

Why is this so? Malhotra J. buttresses this point by two further arguments, both of which are grounded in principles of group autonomy. The first is that of “essential religious practices” [ERPs]. Malhotra J. takes strong issue with the Majority for holding that the exclusion of women is not an essential religious practice (and therefore not protected by Article 25(1)), and argues, instead, that this determination should be left solely to the religious community itself (paragraph 10.10). In the present case, Malhotra J. relies upon the statements of the Sabarimala Thanthri and the Travancore Devaswom Board to the effect that “the limited restriction on access of women during the notified age of 10 to 50 years, is a religious practise which is central and integral to the tenets of this shrine, since the deity has manifested himself in the form of a ‘Naishtik Brahmachari’.” (paragraph 13.7)

This is an important point, because it goes entirely against the grain of six decades of ERP jurisprudence, where the Court – relying upon textual and scriptural materials – makes this determination. It is also, in my opinion, correct (as I have pointed out on this blog before): the Courts – as a number of scholars have argued for a while now – is entirely unequipped to make determinations about what practice is or is not “essential” to religion: it lacks both the competence and the legitimacy to do so.

There is, of course, a latent peril in advocating this view: and that is that in any community (religious or otherwise) norms and practices are inevitably imposed top-down by dominant groups, who are invariably male. But this is exactly where Malhotra J.’s initial point about maintainability comes in: it is one thing when within a group, norms and practices are challenged, and the marginalised sub-groups invoke the Court’s aid. But it is another thing when an external party comes to Court, and is opposed by the religious community’s gatekeepers: in that situation, Malhotra J.’s views about the nature and scope of the ERP test make eminent sense.

The second argument advanced by Malhotra J. pertains to constitutional pluralism. It was argued by the Petitioners that discrimination against women runs counter to constitutional morality. Malhotra J. turns this argument on its head, noting that constitutional morality in India’s plural society requires respect and tolerance for different faiths and beliefs, which have their own sets of practices that might nevertheless appear immoral or irrational to outsiders (paragraphs 11.2, 11.4, 11.6 & 11.8).

The full argument, therefore, is this: our Constitution respects religious pluralism. Pluralism entails granting to the diverse religious groups and communities within our nation, the freedom of internal self-government, and the freedom to decide what norms and practices are integral to their existence and functioning. Where these norms or practices result in actual social harm, the Court can step in; however, the Court cannot intervene when the grounds of challenge are limited to bare immorality, irrationality, or unequal treatment. And the Court can especially not do so when the challenge is brought by external parties.

Religious Denomination

Malhotra J. then addresses the statutory point: that is, the question of whether, in view of Section 3 of the 1965 Act (guaranteeing non-discriminatory access to “all” classes), whether Rule 3(b) (that allows for excluding women if custom demands it) is ultra vires. Malhotra J. holds that it is not, on the ground that the worshippers of Lord Ayappa at Sabarimala constitute a separate “religious denomination”, and is therefore exempted from the operation of Section 3 as per the Act itself (through a specific proviso).

Unfortunately – and in stark contrast with the rest of Malhotra J.’s judgment – this part is disappointingly sketchy. On the basis of a Government notification, Malhotra J. asserts that the worshippers of Lord Ayappa at Sabarimala “follow a common faith, and have common beliefs and practises.” (paragraph 12.3) She then goes on to note, on the basis of precedent, that:

If there are clear attributes that there exists a sect, which is identifiable as being distinct by its beliefs and practises, and having a collection of followers who follow the same faith, it would be identified as a ‘religious denomination’. (paragraph 12.8)

Malhotra J. recognises, however, that this is a considerably more relaxed threshold than that articulated by previous judgments, and followed by the Majority. She tries to get around this by once again implicitly invoking the group autonomy principle, and arguing that a “liberal” interpretation should be accorded to the question of what constitutes a “religious denomination.” But this will not do: unlike the question of essential religious practices, which are required for threshold protection under the Constitution’s religious freedom clause, religious denominations are entitled to special and differentiated rights under Article 26: maintenance of institutions, acquisition and administration of property, and (textually) a greater autonomy in determining internal religious matters. For this reason, the critique of the essential religious practices standards cannot be uncritically applies to the definition of religious denominations: there are good reasons for a higher threshold, adjudicated by Courts. To depart from that principle would require a detailed and persuasive argument, which Malhotra J. does not offer. And indeed, she appears to recognise this herself, when she notes at paragraph 12.10:

The proper forum to ascertain whether a certain sect constitutes a religious denomination or not, would be more appropriately determined by a civil court, where both parties are given the opportunity of leading evidence to establish their case.

Miscellaneous

Malhotra J. makes two further findings. She rejects the argument – advanced by Amicus Curae – that Article 15(2) includes temples under the definition of “places of public resort.” And she also rejects the argument – advanced by the Interveners – that exclusion of women on grounds of menstruation amounts to “untouchability” under Article 17 of the Constitution. Both these arguments are based on the structure and the drafting history of the Constitution. With respect to Article 15(2), I believe the Malhotra J. is unarguably correct. Article 17 will be addressed in the next post.

Conclusion

Justice Malhotra’s dissent is powerful and persuasive on many counts. On maintainability, on essential religious practices, and on constitutional pluralism, I believe that her arguments are correct, and truer to the constitutional text and history than prevailing Indian religious freedom jurisprudence, which the opinions of CJI Misra and Nariman J. closely hew to.

Where then lies the disagreement? At one level, it is statutory: if Malhotra J.’s religious denomination argument is incorrect, then her case falls purely on statutory grounds, and the Majority is vindicated. I have a deeper disagreement, however, with the foundational assumption of Malhotra J.’s dissent, which comes through in her paragraph differentiating Sabarimala and Sati: the assumption is that in India, you can cleanly separate the religious and the social. This is a reality that has been recognised throughout history: in the Drafting Committee, Alladi Krishnawamy Iyer wryly remarked that “there is no religious matter that is not also a social matter.” In the Constituent Assembly, Ambedkar memorably spoke about how vast religious conceptions are in India, covering everything from birth to death. In his dissenting opinion in Saifuddin, Chief Justice Sinha discussed how religious excommunication had a debilitating impact upon civil rights. And so on. The point is this: it is a mistake to uncritically assume that Sabarimala is simply a right-to-worship case, a straightforward internal dispute within a religious community. It is a mistake, because it ignores how deeply intertwined religious, social, and public life is in India, and how discrimination within one sphere inevitably spills over into other spheres. Therefore, Malhotra J. is entirely correct when she says that practices that are “pernicious, oppressive, or a social evil” can be subjected to judicial review. But the question of what constitutes “oppressiveness” is more nuanced and complex than she allows.

It is that nuance which forms the heart of Chandrachud J.’s concurrence, which is what we shall turn to in then ext post.

The Sabarimala Judgment – I: An Overview

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Earlier today, a Constitution Bench of the Supreme Court held, by a 4 – 1 Majority, that the Sabarimala Temple’s practice of barring entry to women between the ages of ten and fifty was unconstitutional. While the case raised a host of complex issues, involving the interaction of primary legislation (statute), subordinate legislation (rules), and the Constitution, the core reasoning of the Majority was straightforward enough. On this blog, we will examine the Sabarimala Judgment in three parts. Part One will provide a brief overview of the judgment(s). Part II will examine some of the issues raised in the concurring judgment of Chandrachud J. And Part III will analyse the dissenting opinion of Indu Malhotra J.

Let us briefly recapitulate the core issue. The exclusion of (a class of) women from the Sabarimala Temple was justified on the basis of ancient custom, which was sanctioned by Rule 3(b), framed by the Government under the authority of the 1965 Kerala Hindu Places of Worship (Authorisation of Entry Act). Section 3 of the Act required that places of public worship be open to all sections and classes of Hindus, subject to special rules for religious denominations. Rule 3(b), however, provided for the exclusion of “women at such time during which they are not by custom and usage allowed to enter a place of public worship.” These pieces of legislation, in turn, were juxtaposed against constitutional provisions such as Article 25(1) (freedom of worship), Article 26 (freedom of religious denominations to regulate their own practices), and Articles 14 and 15(1) (equality and non-discrimination).

In an earlier post, I set out the following map as an aid to understanding the issues:

(1) Is Rule 3(b) of the 1965 Rules ultra vires the 1965 Act?

(2) If the answer to (1) is “no”, then is the Act – to the extent that it authorises the exclusion of women from temples – constitutionally valid?

(3) If the answer to (2) is “no”, and the Act is invalid, can a right to exclude be claimed under Article 25(1) of the Constitution?

(4) If the answer to (3) is “yes”, then is the exclusion of menstruating women from Sabarimala an “essential religious practice” protected by Article 25(1)?

(5) If the answer to (4) is “yes”, then is the exclusion of women nonetheless barred by reasons of “public order”, “health”, “morality”, or because of “other clauses of Part III”, which take precedence over Article 25(1)?

(6) Do Sabarimala worshippers constitute a separate religious denomination under Article 26?

(7) If the answer to (6) is yes, then is temple entry a pure question of religion?

While the judgments are structured slightly differently, this remains a useful guide. Here is a modified map, with the answers:

(1) Does the phrase “all classes” under the Act include “gender”? By Majority: Yes.

(2) Do Sabarimala worshippers constitute a separate religious denomination under Article 26, and are therefore exempted under the Act from the operation of Section 3? By Majority: No. Malhotra J. dissents.

2(a) Is Rule 3(b) of the 1965 Rules therefore ultra vires the 1965 Act? By Majority, logically following from (1) and (2): Yes. However, Nariman J., instead of holding it ultra vires, straightaway holds it unconstitutional under Articles 14 and 15(1). Malhotra J. – also logically following from 2 – dissents. 

(2b) If the answer to (1) is “no”, then is the Act – to the extent that it authorises the exclusion of women from temples – constitutionally valid? Does not arise.  

(3) If the answer to (2) is “no”, and the Act is invalid, can a right to exclude be claimed under Article 25(1) of the Constitution? Per Misra CJI and Khanwilkar J.: Yes, in theory. Per Chandrachud J.: No, because it violates constitutional morality. Per Nariman J.: No, because it violates Article 25(1), which stipulates that all persons are “equally entitled to practice religion.” Malhotra J.: Yes. 

(4) If the answer to (3) is “yes”, then is the exclusion of menstruating women from Sabarimala an “essential religious practice” protected by Article 25(1)? Per Misra CJI and Khanwilkar J.: No, on facts. Per Nariman J.: Assuming the answer is yes, (3) answers the point. Per Chandrachud J.: No, on facts. Per Malhotra J.: Yes, on facts.  

An overview of the judgments handed down by the CJI and Khanwilkar J., and Nariman J., is provided below:

Misra CJI and Khanwilkar J. 

Misra CJI and Khanwilkar J. hold that the devotees of Lord Ayappa at Sabarimala have failed to establish that they constitute a “separate religious denomination” (paragraph 88 onwards). This is because the test for “separate denomination” is a stringent one, and requires a system of distinctive beliefs, a separate name, and a common organisation. The Sabarimala Temple’s public character (where all Hindus, and even people from other faiths) can go and worship, along with other temples to Lord Ayappa where the prohibition of women does not apply, leads the two judges to hold that it does not constitute a separate “denomination.” Misra CJI and Khanwilkar J. then hold that the fundamental rights chapter applies to the Temple, as it is governed by a statutory body (the Devaswom Board). Consequently, women have an enforceable Article 25(1) right to entry. This right is not undermined by a contrary right of exclusion because, on facts, excluding women does not constitute an “essential religious practice” that is protected by Article 25(1). This is because no scriptural or textual evidence has been shown to back up this practice (paragraph 122), and it is not possible to say that the very character of Hinduism would be changed if women were to be allowed entry into Sabarimala (paragraph 123). Moreover, on facts, this practice appears to have commenced only in 1950, and therefore lacks the ageless and consistent character that is required of an “essential religious practice” (para 125). Therefore – Misra CJI and Khanwilkar J. hold – since Section 3 of the 1965 Act prohibits discrimination against “any class” of Hindus, and the Temple is not a denominational temple, Rule 3(b) is ultra vires the parent Act, and therefore must fall (paras 132 and 141 – 142).

Nariman J. 

Nariman J. accepts, for the purposes of argument, that barring women of a certain age from accessing Sabarimala is an essential religious practice, and therefore protected by Article 25(1) (paragraph 25). However, he agrees with Misra CJI and Khanwilkar J that Sabarimala fails the rigorous test for a “separate denomination.” Article 26, therefore, is not attracted, and the proviso to S. 3 of the Act is not attracted (paragraphs 26 – 27). Therefore, even if there is an essential religious practice excluding women, this practice is hit by Section 3 of the Act, which provides for non-discriminatory access to all “classes” of Hindus (paragraph 28). This is further buttressed by the fact that the 1965 Act is a social reform legislation, and therefore, under Article 25(2)(b) of the Constitution, can override the right to religious freedom (paragraph 28).

However, Nariman J. adds that even otherwise, this case involves a clash of rights under Article 25(1): the right of women to worship, and the right of the priests to exclude them. The text of Article 25(1) – which uses the phrase all persons are “equally entitled” to practice religion, decides the clash in favour of the women. (paragraph 29).

Even otherwise, the fundamental right of women between the ages of 10 and 50 to enter the Sabarimala temple is undoubtedly recognized by Article 25(1). The fundamental right claimed by the Thanthris and worshippers of the institution, based on custom and usage under the selfsame Article 25(1), must necessarily yield to the fundamental right of such women, as they are equally entitled to the right to practice religion, which would be meaningless unless they were allowed to enter the temple at Sabarimala to worship the idol of Lord Ayyappa. The argument that all women are not prohibited from entering the temple can be of no avail, as women between the age group of 10 to 50 are excluded completely. Also, the argument that such women can worship at the other Ayyappa temples is no answer to the denial of their fundamental right to practice religion as they see it, which includes their right to worship at any temple of their choice. On this ground also, the right to practice religion, as claimed by the Thanthris and worshippers, must be balanced with and must yield to the fundamental right of women between the ages of 10 and 50, who are completely barred from entering the temple at Sabarimala, based on the biological ground of menstruation.

And insofar as Rule 3(b) is concerned, Nariman J. holds it directly contrary to Article 15(1), and strikes it down.

Consequently, like the Majority – but using a different approach – Nariman J. holds in favour of the right of women to enter Sabarimala.