Coronavirus and the Constitution XXXII: Payment of Wages and Judicial Evasion in a Pandemic

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Two days ago, on this blog, we discussed the pending challenge before the Supreme Court to the government’s directions requiring employers to pay wages to their workers during the nationwide lockdown imposed under the Disaster Management Act. At the time, the matter had been reserved for orders; today, the Supreme Court passed an order that can only be described as bizarre: it refused to rule on the legal issues before it, postponed arguments to the end of July (seven weeks from now), directed employers and employees to “negotiate” between themselves, but in the meantime extended its interim orders preventing any coercive action against employers for not complying with the direction to pay wages. In effect, therefore, the Court made the wages direction unenforceable without holding it to be illegal or unconstitutional, at least for the foreseeable future.

What reasons did the Court provide for this failure to decide? It said that the issues raised had to be decided “together”, and could not be given “piecemeal consideration.” (paragraph 29) With respect, this is bogus. A perusal of the orders in the case reveals that the lead petition – Ficus Pax Private Lts. v Union of India was taken up for hearing on 27th April 2020, which – at the time of writing – was forty-seven days ago. On that day, the Court granted the Solicitor-General two weeks time to reply. The matter was then taken up on 15th May 2020, when notice was issued, made returnable in a week. It was taken up for a third time on 26th May 2020, where the Court noted that the Union’s counter had not been filed, and granted it another week, specifically in order for the Union to clarify its stand. A fourth hearing took place on 4th June 2020, where the Court observed that the counter affidavit had been filed, and that the hearing was complete.

How then can the Court turn around on the 12th of June 2020, and say that because the issues cannot be considered “piecemeal”, the Union would be given time to file a more detailed counter-affidavit, with the hearing set for the end of July? Were four hearings not enough for the Court to achieve clarity on the exact scope of the case, for parties to file written submissions, and for arguments to take place – especially given how time-sensitive this litigation is (involving payment of wages to people living – literally – from paycheck to paycheck)? This becomes all the more inexcusable when we remember that if you pare it down to the essentials, all this case involves is a pure question of law: was the direction for the payment of wages, passed under the DMA, legal? This is a legal question that has one of two possible legal answers: “yes” or “no”.

The Court’s order, however – as I noted in the first paragraph – did not merely delay the hearing. It delayed the hearing in a way that effectively skewed the case in favour of the employer. This is because, from April itself, the Court had passed orders directing that no coercive action be taken against employers who were violating the wages direction. In the 12th June order, the Court directed that this interim order remain in place; thus, it immunised the employers for (at least) a further seven weeks from requiring to comply with a direction that still remains presumptively legal and valid. Consider, also, what the direction was: the payment of wages for a total of fifty-four days (until the government withdrew it); the class of people most affected by it are precisely those for whom non-payment of wages is – quite literally – an existential issue; we have already seen, in this context, the large-scale migration (and the suffering that that has unleashed), predominantly caused by the closure of industry and the absence of livelihood options for workers who already exist in an extremely precarious economic situation. So it is unclear what purpose is served by the Court deciding at the end of July the issue of wages that were payable in the month of April, to those particularly dependent upon monthly payment.

This, therefore, is a classic case of judicial evasion: the Court refrained from answering the legal question before it, but its refusal to answer created a status quo where one party benefited at the expense of the other (a decision by refusing to decide). Up until now, this technique was clearly seen in civil rights cases involving individuals against the State; unfortunately, it now seems to have bled into labour law cases pitting employers against employees.

In order to justify its refusal to decide, the Court framed its task as one of balancing the claims of the employers and employees, in a context in which each needed the other. With respect, this is – again – bogus; because that balance was already struck by the government in the wages direction, where it ordered the payment of wages for a temporary and time-bound period (which was not even the full length of the lockdown). Now, in litigation, the limited remit of the Court was to find that the balance had been correctly struck – and uphold it – or to find that it was irrational or arbitrary, and strike it down.* But it was most emphatically not the Court’s task to suspend the operation of the direction – and then compound this by directing the employers and employees to negotiate with each other for the next seven weeks, until the matter could be heard again.

This last part of the order – i.e., requiring employer-employee negotiation – is perhaps the most astounding part of the entire story, because here the Court entirely reversed the balance that the government had chosen to strike in the wages direction. The very fact that the government issued the wages direction in the first place was because, in its view, an open negotiation between employers and employees – “collective laissez faire“, in the words of Kahn-Freund – would not have protected the interests of the latter; the reasons are obvious, and they rest in the vast differences in power between the two parties. When, therefore, the Court stayed coercive action and directed negotiation, it was not achieving any kind of “balance”: rather, it was overturning the government and holding in favour of the employers, without even the courtesy of a reasoned judgment or a finding of illegality.

What explains this? It is my submission that – as pointed out in the previous post – the wages direction was so inextricably bound up with the rest of the lockdown regulations, that it would have been very difficult for the Court to strike it down without the lockdown itself (legally) unraveling; furthermore, the inequity of a situation in which numerous rights violations by the government over the last two months had been nodded and winked at, while the only effective legal measure in support of vulnerable sections had been struck down, would have been too stark to stomach. Thus, we have a via media where, in the finest traditions of judicial evasion, the stronger party wins, but it wins through an indirect maintenance of the status quo rather than a direct judgment that would require the Court to actively hold in favour of the stronger party.

This is, for obvious reasons, unfortunate.


* On this point, it is important to note that even in contexts not involving big industries, the law often imposed a basic notice-and-one-month-wages obligation on employers; for example, Section 39 of the Karnataka Shops and Establishments Act requires that prohibits dismissal of any employee without one month’s notice or payment in lieu of wages; so it is difficult to see how the wages direction went particularly beyond even the existing legal framework in requiring payment of wages for fifty-four days, far from radically altering the balance of power between employer and employee.

Coronavirus and the Constitution – XXXI: The Payment of Wages Order

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On March 29th 2020, the Home Secretary – acting in his capacity as the Chairperson of the National Executive Committee under the Disaster Management Act – issued an order requiring, inter alia, that “all the employers, be it in the Industry or in the shops and commercial establishments, shall make payment of wages of their workers, at their work places, on the due date, without any deduction, for the period their establishments are under closure during the lockdown.” The context of the Order is important: this direction was one of five directions passed in light of the fact that, after the announcement of the nationwide lockdown on March 24th, there had been large-scale movement of migrant labourers back to their home-towns. Mandatory payment of wages was one measure to forestall this movement, along with other measures such as suspension of rent for a month, a temporary ban on evictions, and so on.

This order was challenged before the Supreme Court in Ludhiana Hand Tools Association v Union of India. After granting a temporary stay on coercive action against businesses that were not complying with the order, the Court heard arguments, and judgment is expected later this week.

The primary argument of the employers turns upon the contention that the Disaster Management Act does not grant the central government the power to compel the payment of wages to the workers. The order itself invoked section 10(2)(l) of the DMA, and the employers argue that this provision only enables guidelines to government authorities, not private entities. Petitioners also contend that Section 65 of the Disaster Management Act, which allows the National Executive Committee to “requisition resources” in order to ensure a prompt response, and is followed by Section 66, which compels the payment of compensation in case of requisition, is the only provision under the DMA which authorises the government to impose obligations on private parties is Section 65. This (or so the argument goes), on its terms, does not allow a direction for the mandatory payment of wages; and that in any event, even if it does, the terms of Section 66 have not been complied with.

Now, as a legal argument, this contention is very clearly flawed. There are two reasons for this. The first is that the series of guidelines and orders issued on and after the 24th of March 2020 have not been issued under Section 65 of the DMA, but under Sections 10 – in particular, 10(1) and 35 of that Act. Previously on this blog, we have critiqued these sections for being over-broad and enabling executive carte blanche; however, as long as these sections remain on the statute books, the power of the government to act remains within the framework of the DMA (Section 35, in particular, authorises the government to take measures that are “expedient” for the purposes of the Act).

More importantly, however, the point is this: the impugned direction in the order of 29th March cannot be severed from all the other directions that have been passed by the NEC under the framework of the DMA. These directions – that constitute the warp and the weft of the lockdown itself – impose obligations upon private parties. These include, for example:

  1. The order of closure of shops and establishments, which gave rise to this controversy in the first place.
  2. Orders restricting the movement of individuals between state borders.
  3. Orders imposing “night curfews.”
  4. Orders banning public gatherings.
  5. Orders mandating social distancing.

Examples can be multiplied, but the basic point is that if the Court was to hold that the payment of wages direction is unconstitutional because the DMA denies to the government the power to impose obligations upon private, then it would necessarily follow that the lockdown itself – which is nothing more than a web of interlocking obligations imposed upon private parties – is itself unconstitutional, as a whole.

Or, to put it another way: in order to enforce the lockdown, the government imposed a series of obligations and restrictions upon a whole host of private parties and individuals, that have put them to a significant amount of hardship. It would be oddly asymmetrical if those restrictions were upheld, but directions to mitigate their impact upon some of the most vulnerable and marginalised segments of society, were struck down for want of power.

Now it may be argued that the distinction between the orders set out above, and the direction for the payment of wages, is that in the latter case, there is an already existing regime of labour law (set out in the Industrial Disputes Act and other laws) that governs this question. This argument, however, is flawed as well: the DMA has a general non-obstante clause (Section 72) that makes it prevail over inconsistent statutory provisions in other laws; however, the Industrial Disputes Act has a specific exception to its non-obstante clause for provisions that are more beneficial to workmen than what they may get under the ID Act; the impugned direction, it should be clear, falls squarely within the scope of the objection, thus obviating any need for adjudicating between seemingly conflicting laws.

Consequently, the challenge to the competence of the NEC in issuing the directions for the payment of wages cannot succeed. What of the substance of the direction itself? It may be argued that it violates Article 19(1)(g) (freedom of trade and commerce) by compelling employers to pay wages even when their shops themselves have been closed down. In this context, it is important to note the following: the source of the dispute is State action; in particular, the Order of 24th March 2020, mandating the closure of all shops and establishments for the duration of the lockdown. Now, imagine a situation in which the impugned Direction had not been passed. The result of this would be that workers would – effectively – be deprived of their right to livelihood (under Article 21), as a direct consequence of State action.

It is therefore clear that Article 19(1)(g) is not the only right at issue in the present case, but that Article 21 is involved as well. It is further crucial to note that Article 14 is also implicated: the ability and means to work from home is directly related to socio-economic class, and therefore the Guidelines of closure of 24th March disproportionately impacted workers who are already the most vulnerable and marginalised in society.

Now, in its recent judgment on the Right to Information Act, the Supreme Court noted that in case there was a clash of two fundamental rights, the doctrine of proportionality would apply. Proportionality – in such cases – requires a balancing exercise that ensures that neither of the two rights is effaced. It is clear that no Direction at all would deprive the workers entirely of their right to livelihood during the period of the lockdown, and thus effectively efface Article 21 during that time. On the other hand, it is not evident that a temporary order for the payment of wages would efface the right under Article 19(1)(g) (i.e., force permanent closure of business). To the extent that it does impose a burden upon employers – that also flows from State action – there is no doubt that the State ought to pay compensation. For that, however, there should lie a direct claim against the State for its failure to protect rights under Article 19(1)(g) after its own action has led to their deprivation. However, the remedy for that cannot be to throw the other party to the equation – the more vulnerable and marginalised party – to the wolves, by striking down the payment of wages order itself.

It is therefore my submission that under the existing legal framework, the Direction for payment of wages is legal; at the same time, however, there should be an enforceable fundamental rights claim made against the State for its failure to adequately compensate employers as a result of the lockdown that it imposed following the Order and Guidelines of 24th March 2020.

Coronavirus and the Constitution – XXX: PM-CARES Fund and the Right to Information Act [Guest Post]

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[This is a guest post by Shloka Shah.]


On March 28, a public charitable trust in the name of the Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (“PM CARES”) was announced to combat the effects of the COVID-19 pandemic. On May 29, in response to an application filed under Section 6 of the Right to Information Act, 2005 (“RTI/Act”), the PM’s Office refused to divulge information about the Fund, stating that it did not fall under the ambit of ‘public authority’ under Section 2(h) of the Act. Through the Supreme Court’s (“SC”) analysis of the relevant provisions of the Act, I intend to counter this response, and analyze the exemptions available to a public authority from disclosing information.

Meaning of ‘Public Authority’

Access to information under the control of public authorities is a fundamental right guaranteed under Article 19(1)(a) of the Constitution. It is therefore imperative to understand its scope. Under the RTI Act, Section 2 states:

(h) “Public authority” means any authority or body or institution of self-government established or constituted—

a. by or under the Constitution;

b. by any other law made by Parliament;

c. by any other law made by State Legislature;

d. by notification issued or order made by the appropriate Government,

and includes any—

(i) body owned, controlled or substantially financed;

(ii) non-Government organisation substantially financed,

directly or indirectly by funds provided by the appropriate Government.

PM CARES is not a product of the first three clauses. Given that the legal origin of the Fund is shrouded in secrecy, as the trust deed has not been made public, application of the fourth clause is debatable. This line of reasoning has been argued before Court in the past on Prime Minister’s National Relief Fund (“PMNRF”) (more on this ahead).

What brings PM CARES under the ambit of this section is sub-clause (i). In D.A.V. College Trust & Management Society v. Director of Public Instructions the SC bench comprising of JJ. Deepak Gupta and Aniruddha Bose were faced with applicability of the RTI Act to a body not constituted under an act or notification made by the Government. Holding the section to be “inartistically worded”, the Court noted “a big gap” between the four clauses (a) to (d) (“first part”) and following two sub-clauses (i) and (ii) (“second part”). Applying the principle of purposive construction, the Court interpreted as follows, in paragraph 17:

We have no doubt in our mind that the bodies and NGOs mentioned in sub-clauses (i) and (ii) in the second part of the definition are in addition to the four categories mentioned in clauses (a) to (d). Clauses (a) to (d) cover only those bodies, etc., which have been established or constituted in the four manners prescribed therein. By adding an inclusive clause in the definition, Parliament intended to add two more categories, the first being in sub-clause (i), which relates to bodies which are owned, controlled or substantially financed by the appropriate Government. These can be bodies which may not have been constituted by or under the Constitution, by an Act of Parliament or State Legislature or by a notification. Any body which is owned, controlled or substantially financed by the Government, would be a public authority.

The scope of a ‘body owned or controlled’ by the Government was discussed by the SC bench comprising of JJ. K.S.P. Radhakrishnan and A.K. Sikri in Thalappam Service Co-op Bank Ltd. v State of Kerala:

A body owned by the appropriate Government clearly falls under Section 2(h)(d)(i) of the Act. A body owned, means to have a good legal title to it having the ultimate control over the affairs of that body, ownership takes in its fold control, finance, etc. (paragraph 35)

Elucidating further, the Court determined how to test such ownership or control:

We are of the opinion that when we test the meaning of expression “controlled” which figures in between the words “body owned” and “substantially financed”, the control by the appropriate Government must be a control of a substantial nature. The mere “supervision” or “regulation” as such by a statute or otherwise of a body would not make that body a “public authority” within the meaning of Section 2(h)(d)(i) of the RTI Act. In other words just like a body owned or body substantially financed by the appropriate Government, the control of the body by the appropriate Government would also be substantial and not merely supervisory or regulatory.

We are, therefore, of the view that the word “controlled” used in Section 2(h)(d)(i) of the Act has to be understood in the context in which it has been used vis-à-vis a body owned or substantially financed by the appropriate Government, that is, the control of the body is of such a degree which amounts to substantial control over the management and affairs of the body. (paragraph 44, 45)

That the PM CARES Fund is substantially controlled by the Government is evident from its management. The Board of trustees comprises of the Prime Minister as the ex-officio Chairman, and the Ministers of Defence, Home Affairs and Finance as ex-officio trustees. The trustees alone determine how the funds accumulated will be disbursed, as was made evident by the announcement of utilizing INR 3,100 crores on May 13.

It is even recognized as a ‘fund set up by the Central Government for socio-economic development and relief’ by the Ministry of Corporate Affairs (“MCA”) in a statement accepting contributions to the Fund as CSR under Section 135 of the Companies Act, 2013. Interestingly, the MCA categorizes such contributions under the ambiguous entry (viii) of Schedule VII, which relates to ‘social projects’, and not entry (ix), which relates to ‘contribution to the PMNRF or any other fund set up by the Central Government or the State Governments for socio-economic development and relief’, in spite of using those very words. One can only interpret this as a pre-emptive measure to bring the Fund outside the purview of Section 2(h), should it ever be (successfully) challenged in Court.

Since its genesis, the PM CARES Fund has attracted widespread comparisons with the PMNRF. They are analogous in their manner of creation (PMNRF was established subsequent to an appeal made by Pandit Jawaharlal Nehru to combat the effects of Partition), constituent members (PMNRF is also managed by the PMO), and recognized as public trusts liable for 100% tax exemption under Section 80G of the Income Tax Act, 1961. They are also not audited by the Comptroller and Auditor General of India (“CAG”).

In light of this, it becomes relevant to examine the Delhi High Court’s judgment in Prime Minister’s National Relief Fund v Aseem Takyar. The question of whether PMNRF could be interpreted as a public authority under Section 2(h) of the Act was placed before JJ Ravindra Bhat and Sunil Gaur, with the bench rendering a split decision. The matter is presently referred to a third judge.

Justice Bhat, recognizing that Government Servants holding positions in their ex-officio capacity, ipso facto does not amount to the Government exercising control, nonetheless differentiated this principle from PMNRF as follows:

[…] However, PMNRF is not managed by mere officers or government employees. It is PMNRF is headed by Constitutional Authority, i.e. the Prime Minister of India and administered by the Joint Secretary to the Prime Minister-as Secretary of the fund. In addition, who is assisted by the officer of the rank of a director. Furthermore, all disbursements from PMNRF are made solely on the discretion of the Prime Minister. He or she is a public authority and decisions taken by him or her with respect to operation of PMNRF cannot be said to be made in a personal capacity. The decisions of the Prime Minister in this regard must be taken to be official decisions. To say that the use of funds is a personal decision, is a half truth. No doubt, the decision of where to use the funds or make disbursements, is subjective and discretion dependent. However, the use of those funds are not for a personal purpose; rather it is always for some public purpose.

Additionally, recognizing that the three conditions laid down in Section 2(h)(d)(i) are distinct from each other, Justice Bhat brought PMNRF under the ambit of ‘public authority’. Therefore, the summary dismissal of the RTI application by the PMO’s Central Public Information Officer (“CPIO”) was not good in law.

Available Exemptions

The right to information is not absolute. It is fettered in part by Section 8 of the Act, which lays down ten exemptions from disclosure of information. The ones relevant here are Sections 8(1)(e), which protects information emanating from a public authority’s fiduciary relationship with another, and Section 8(1)(j), protecting personal information, the disclosure of which is irrelevant for public interest. Neither of these are applicable to PM CARES Fund.

In Central Board of Secondary Education v Aditya Bandopadhyay, the question for consideration was whether an examinee could review his corrected answer booklet from CBSE, which had rejected such request citing breach of ‘fiduciary relationship’ under Section 8(1)(e) of the Act. The bench comprising of JJ. R.V. Raveendran and A.K. Patnaik discussed as follows:

The term “fiduciary” refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term “fiduciary relationship” is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction(s). The term also refers to a person who holds a thing in trust for another (beneficiary).

While the Court ultimately held that no fiduciary relationship existed between the two, even if one were to assume its existence, the scope of Section 8(1)(e) only extended to prevent information from being disseminated to a third party:

There is no question of the fiduciary withholding information relating to the beneficiary, from the beneficiary himself. (para 44)

 

As a public charitable trust, the beneficiary of the PM CARES Fund is the public at large. Therefore, while the Fund may reserve furnishing information about specific third parties, general questions such as corpus of funds accumulated should not be rejected.

The test to determine the existence of a fiduciary relationship was discussed in Reserve Bank of India v Jayantilal Mistry. The SC bench comprising of JJ. Eqbal and Nagappan laid down a four-pronged test, consisting of (1) No conflict rule; (2) No profit rule; (3) Undivided loyalty rule; and (iv) Duty of confidentiality, the existence of all conditions being necessary pre-requisites. Noting that PIOs often misused Section 8 to defeat the purpose of the Act, the Court held:

[…]Since the RTI Act is enacted to empower the common people, the test to determine limits of Section 8 of the RTI Act is whether giving information to the general public would be detrimental to the economic interests of the country? To what extent the public should be allowed to get information? (para 65)

In relation to PM CARES, this question is best answered by Justice Ravindra Bhat in PMNRF (supra) itself:

In the present matter, the Fund does not offer any service to the donors or the beneficiaries. Furthermore, the relationship between PMNRF and the donors/beneficiaries does not take colour of a ‘fiduciary relationship’ as described above. The donors do not repose trust in PMNRF in conducting their business and the same holds true for the beneficiaries. On the contrary, the act of donation is an act of charity which is not sufficient to establish a fiduciary relationship. Therefore, the question of there existing a fiduciary relationship does not arise. Consequently, the defence of exemption sought by the Appellant under Section 8(1)(e) of the RTI Act is not sustainable.

As for Section 8(1)(j), a constitution bench of the SC comprising of JJ Gogoi, Ramana, Chandrachud, Gupta and Kaul in Supreme Court of India v Subhash Chandra Agarwal stressed on the need to strike a balance between right to information under Article 19(1)(a) and right to privacy under Article 21, with right to ‘informational privacy’ being recognized in K.S. Puttaswamy & Anr. v Union of India. Any invasion of an individual’s personal information, which does not warrant public interest (i.e., something to know in interest of public welfare, not merely something which is of interest to the public) can thus be protected. But even this is conditional – if on weighing the risks, the CPIO if of the opinion that dissemination of such information is vital, then he may proceed to make such information available. Thus ‘public interest’ is supreme.

It is important to note that in both reported RTI applications rejected by the PMO, no such information was sought. Additionally, the CPIO always has the option to ‘sever’ personal information under Section 10 of the Act. Public interest is clearly at stake, just as it was for PMNRF, as noted by Justice Bhat in his judgment (supra):

A disclosure of such information will ensure that the voluntary donations made by the citizen body is not appropriated by any government official. In this regard, the disclosure of the information sought by the petitioner indeed serves a public purpose. (para 35)

Conclusion

While the PMO’S CPIO continues to deflect important questions on the PM CARES Fund, and the SC continues to dismiss PILs questioning the legality of the Fund as frivolous and ‘having political colour’, giving petitioners the option to either withdraw or pay fines, some progress in the search for clarity comes from the Nagpur Bench of the Bombay High Court. On June 2, a division bench of JJ. S.B. Shukre and A.S. Kilor issued notice to the Fund’s trustees to file an affidavit stating their stand within two weeks, despite the Additional Solicitor General Anil Singh’s contentions that a similar petition was earlier dismissed by SC. The High Court differentiated based on reliefs sought, which included a periodical update on the quantum of funds accumulated, appointment of remaining trustees from opposing political parties and brining the Fund under the review of the CAG. With some glimmer of hope, it remains to be seen how the matter will unfold.

Guest Post: Slum Rehabilitation and Constitutional Rights – A Bewitching Dream

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[This is a guest post by Vaibhav Charalwar.]


In a population of approximately 2 crore inhabitants in Mumbai, nearly 40% are either living in slums or on the pavements. Dharavi (one of the largest slums in Mumbai and Asia) which houses approximately 8 to 10 lakh people remains infamous for its lack of basic facilities. In order to address this crisis, the State of Maharashtra enacted the Maharashtra Slum Area (Improvement, Clearance and Redevelopment) Act, 1971 (Slum Act). Despite enactment of this welfare legislation in 1971, the city of Mumbai is failing to provide a roof, clean water and hygienic living conditions to nearly 40% of its dwellers till date. There is a necessity to develop these slums at a faster pace, as letting them exist in inhuman conditions is a health hazard, which has today brought the city to its knees in this pandemic.

Certain inherent flaws in the Slum Act and the Development Control Regulations are the reason for the proliferation of slums in Mumbai. For a slum dweller to be eligible for an accommodation in the slum rehabilitation scheme, he / she must be a holder of a ‘photo-pass’ which is a document issued by the slum authority. It is issued in the event the dweller is able to prove by documents that her/his structure was in existence prior to 1st January 2000. Allocation of rehabilitated tenement based on an arbitrary cut-off date completely defeats the purpose of slum rehabilitation. The Act further provides that if 51% of the eligible slum dwellers agree to participate in the process of slum rehabilitation, only then would the process of rehabilitation commence. This requirement of consent has led to unending litigation and horse-trading of slum schemes amongst the developers. The article seeks to analyse the flaws and seeks to provide alternate models.

Slum Rehabilitation Act and the Development Control Regulation – General Scheme

Up until the early 1970s, the government treated the slum dwellers as illegal encroachers and their settlements were demolished. The slum dwellers whose hutment suffered the fate of demolition, simply moved to another slum settlement within the city. The response of the Government changed after the implementation of the Slum Rehabilitation Act in 1971. Soft loans were provided to the slum dwellers for renovating their structures. This model did not work as the conditions of the slums did not improve over a period of time despite providing the financial wherewithal.

The next phase involved incentivization of development of slum lands. In order to attract developers to carry out the slum rehabilitation projects, the Government started giving incentives in the form of additional Floor Space Index for carrying out construction of flats in addition to the rehabilitation units. The implementation of this too was fraught with many formalities and permissions, which would be provided with inordinate delay.

In 1995, the Slum Rehabilitation Act was substantially amended based on the suggestions of the Afzalpurkar Committee. A Slum Rehabilitation Authority was established under the Act. This authority was established to obviate the hurdles of acquiring permissions from multiple departments of the government. The Slum Act provides for the establishment of the slum authority and substantive provisions for the redevelopment. The procedure for carrying out the Slum Rehabilitation Scheme is specified in the Development Control Regulation, 2034 (DCR), particularly Regulation 33(10).

However, this amended model too has miserably failed. In order to understand the flaws in the legislation, it is first essential to understand the rights that slum dwellers possess.

Rights of Slum Dwellers

In 1981, the then Chief Minister of Maharashtra announced that pavement dwellers and slum dwellers would be forcibly evicted and deported to their respective native places. A petition was filed under Article 32 before the Supreme Court by a public-spirited citizen challenging this order of the Chief Minister. There was another batch of Writ Petitions in which the slum dwellers of the Kamraj Basti challenged this particular resolution by the State government. The Supreme Court in its celebrated judgment of the Olga Tellis case, laid down the foundations of fundamental rights of the slum dwellers. The question which arose before the Court was whether the Municipal Corporation had unfettered powers under Section 314 of the Bombay Municipal Corporation Act to evict persons without notice. The Court held that the pavement dwellers and slum dwellers cannot claim a right on public spaces. However, equally, the state cannot snatch away the residence of the said pavement and slum dweller as they reside in these conditions to be closer to their respective places of work. The Supreme Court in my opinion recognized a ‘right of residence’ for the pavement or slum dwellers. This is a form of right which is otherwise unprecedented in the legal jurisprudence of ownership. The Court effectively recognized that although a pavement or slum dweller does not have a right to claim ownership of the public land being squatted on, however, the state has to ensure that a suitable alternate accommodation is provided to such dwellers to reside at. The Court said this in the context of pavement dwellers and those slum dwellers whose hutments were identified and / or those residing on a particular land for more than 20 years. The court, calling it constitutional phraseology, observed that “Eviction of petitioners will lead to deprivation of their livelihood and consequently to the deprivation of life”.

The ‘right of residence’ often comes at the cost of the ownership rights of either the government or the private individuals on whose lands the slums dwell. The Bombay High Court in the case of Tulsiwadi while addressing wider questions pertaining to the Slum Rehabilitation Act, recognized the encroachment of slum dwellers on government lands and the inability of the government to address it effectively. Despite encroachment the government and private lands, the Court also recognized the need to provide a residence to the pavement and slum dwellers simply because it is the responsibility of the state to protect their fundamental rights. To summarize, in formal terms, although slum dwellers, commence their residence as “encroachers” on lands, however such occupation is not treated as an illegality, and they are entitled to reside either on the same land or in an alternate place where the government can provide appropriate accommodation. The Slum Act however creates hurdles in recognition and enforcement of the constitutional right of residence.

Issuance of Photo-passes

As per the Slum Act, only the slum dwellers who have a photo-pass which is issued by the Government are entitled to receive accommodation in the rehabilitation process. This photo-pass is issued to a protected occupier whose hutment is in existence prior to 1st January 2000. The government resolution which sets out the procedure for issuance of photo-pass makes it mandatory for submission of documents like certified copies of electoral rolls from the year 2000 as a pre-condition for issuance of photo-passes. And herein lies the rub. The date of 1st January 2000 creates a sub-class of persons who are not entitled to benefits because they are unable to prove residence. The rationale behind this date appears to be only to establish the years of residence.

There is a palpable disconnect between the rights that the government wishes to recognise and its understanding of the target – i.e., the rights-bearers. Some of the persons that are entitled to receive these benefits are those who do not have sufficient documents to prove citizenship, let alone years of residence. The rationale behind the date of 1st January 2000 is nowhere to be found, and has no rational nexus with the object the legislation seeks to achieve. By specifying a date, probably with the intent of establishing years of residence, the legislation creates two categories of citizens, both equally in need of housing, and both such classes having the constitutional right of residence recognized by the Supreme Court. One class comprises citizens who are able to prove that the hutment they have been occupying has existed prior to 1st January 2000, and become eligible for accommodation. The other class gets evicted, which leads to them settling in another slum. This requirement of photo-passes in fact causes displacement and leads to an increase in the number of illegal hutments and encroachment on other lands. This process of issuance of photo-passes is exclusionary and does more damage than welfare in a legislation which is intended for the later. The sub-class of citizens it creates is discriminatory and is not based on an intelligible differentia, as the dwellers entitled for accommodation and the ones excluded are both equally in need of accommodation.

An argument can be made that if there is no cut-off date or criteria, there will be mass migrations from other parts of the country into Mumbai and formation of larger slums in order to avail the benefit of free housing in Mumbai. This can be easily obviated by doing a census of all the slums and issuing identification numbers to each hutment which are existing as on date. A slum dweller is not a mere encroacher and is a person whose life and livelihood is protected by Article 21 of the constitution. The Supreme Court has recognized that such class of persons have a vested right of residence which cannot be arbitrarily taken away. Specifying a date ensures that one class of persons is deprived of this right.

51% consent:

The requirement of consent features in Regulation 33(10) of the DCR. Once the eligible slum dwellers are identified, a slum rehabilitation scheme can commence only if 51% of such slum dwellers are willing to participate in such scheme. If 51% vote in favour of participation, a society is formed and it selects the builder who can execute the slum rehabilitation scheme. This rehabilitation scheme includes constructing a rehabilitation building on the very same site where the slum dwellers will be housed, and an additional free-sale building which can be sold by the developer. There is of course an exception set-out in 33(10)(3.14) which states that if the slum are on public lands which are “required for public purpose” and all the dwellers cannot be accommodated on the very same land, then an alternate unencumbered land will be provided by the government itself.

It is very frequently observed by the courts that the developers who are not selected try to buy out factions of slum dwellers creating a deadlock in the selection process. The appointment of the developers is challenged on the ground that they do not enjoy the requisite amount of consent. As a result, orders of injunction are passed stalling the slum rehabilitation schemes causing inordinate delay in implementation. Pertinently, these consents are also not exercised to decide the nature of new houses which are being constructed. As per the provisions of the DCR, house of minimum 27.88 sq. mt. is to be provided to the slum dweller.

In my opinion, the requirement of consent is a perfunctory condition. The lands on which these slum dwellers reside are owned either by the government or private individuals. The need for rehabilitating these areas is immediate due to squalid and unhygienic conditions of residence, which are the result of structural factors. The slum dwellers refusing to grant consent would effectively mean that these conditions are permitted to continue. Further, while an area is being declared a slum area, it is being done because it may be a source of danger to health, safety or the convenience of public of that neighbourhood and the residents themselves. A refusal to participate in a slum rehabilitation scheme is essentially permitting the dwellers to exist in these conditions. The requirement of consent only permits the developers to sway hutment dwellers who support any other developers application, which is in fact the cause of unending litigations in slum schemes.

This condition of 51% consent is contained in the DCR which is a delegated legislation only in aid of the Slum Rehabilitation Act. The concept of consents does not feature anywhere in the Slum Act itself as it is a procedural provision and not a substantive one. The requirement of consent as elaborated hereafter is a part of the DCR only for the sake of consistency and in my opinion this concept of consent does not logically find its place in DCR 33(10) which pertains to slum redevelopment. The provision is manifestly arbitrary and has no rational nexus with the object of reduction of slums.

This requirement of consent features in the DCR more with the intention of maintaining consistency in the DCR than logic. In the other forms of redevelopment in which owners of the buildings agree to redevelop old structures the condition of consents exists because there is an aspect of ownership of lands. This other form of redevelopment involves owners coming together to redevelop their respective units, as opposed to a Slum Rehabilitation Scheme which involves dwellers who are recipients of housing schemes under a welfare legislation. Granting the option of consent entails that the slum dwellers can refuse redevelopment of their hutments altogether. A refusal to redevelop a slum puts not only the slum dwellers at risk, but also inhabitants of neighbouring areas.

An alternate and more effective way of redevelopment would be to first identify all the eligible slum dwellers who will be receiving their alternate accommodations and make the lands feasible for redevelopment. The government can regularize all the impediments on the lands (like reservations under the Town Planning Act and Coastal Regulatory Zone restrictions) making the schemes viable for commercial utilization as well. Tenders can be floated and bids can be invited from developers which would then be in the nature of a public private venture. It would be an obligation in which the developer would be contractually bound and answerable to the State in case of lapses. This would ensure a more focussed and faster redevelopment of slums and would obviate the horse trading and inordinate delays caused by the criteria of consent.

Tests of Manifest Arbitrariness

A provision which does not have a rational nexus with the object it seeks to achieve and is arbitrary falls foul of the rigors of Article 14 of the Constitution of India. The Supreme Court in the case of Shyra Bano laid down the tests for manifest arbitrariness. The Court relying on a plethora of earlier judgments held that a provision which is not fair, not reasonable, discriminatory, not transparent, capricious, biased, with favouritism or nepotism and not in promotion of healthy competition is held to be manifestly arbitrary. In this case, the statutory provision relies on an arbitrary date which is 1st January 2000. Further, the requirement of consents as shown hereinabove is not only being abused but finds no logical place in order to facilitate the process of slum rehabilitation.

Conclusion:

A slum rehabilitation scheme lies at the heart of moving towards a classless egalitarian regime and achieving housing and basic amenities for everyone. The government by not addressing the issue of slums is not only perpetrating their proliferation, but also absolutely failing in providing basic amenities to the most vulnerable class of persons. The deeper problem lies in the relationship between a slum dweller and the state. Despite being citizens, or aliens with rights of residence, the state has been floundering in providing facilities and amenities as the intended recipient of the largess is not leading in contributing monetarily to the progress of the state.

In the early 1990s, when the BJP – Shiv Sena proposed construction of 40 Lakh slum rehabilitation tenements for slum dwellers based on this very model, Shirish Patel’s prophetic question was if it is “A bewitching dream that will evaporate within minutes of waking up?”. It appears the question still looms large.

Imprisonment by Metaphor: The Safoora Zargar Bail Order

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“… when you choose to play with embers you cannot blame the wind to have carried the spark a bit too far and spread the fire.”

 

When a Court needs to rely upon metaphor instead of law to justify keeping an individual in prison, it is perhaps time for the justice system to take a long, hard look at itself. The Order passed today by a District and Sessions Judge at Patiala House, New Delhi, denying bail to Safoora Zargar, an accused in what has colloquially come to be known as the “Delhi riots case”, is a deeply disturbing one. It is disturbing because it takes the Unlawful Activities Prevention Act [“the UAPA”], a law so stringent that it precludes judges from granting bail if even a “prima facie” case is made out, and then stretches its provisions from one side, and the facts from the other, to ensure that the prima facie case is made out. In the process, what it effectively does – as we shall see – is criminalise the exercise of one set of constitutional rights (the freedom of speech and expression), and deny the exercise of another (personal liberty).

A close reading of the bail order reveals the following:

  1. Taking only the Prosecution’s case (as this was a bail hearing), there is evidence that there existed a “conspiracy” to block a road, which the accused was involved in (the role of the accused in this “conspiracy” – even prima facie – is not spelt out, only some WhatsApp messages and disclosure statements are referred to).
  2. That “one cannot ignore the case of the prosecution that the accused persons have conspired to cause disruption of such an extent and such a magnitude that it would lead to disorderliness and disturbance of law and order at an unprecedented scale.” The Order does not clarify what “unprecedented scale” means. It does not clarify whether the “unprecedented scale” refers to the same “conspiracy” referred to in (1), or whether it refers to something else; if the latter, the Order does not clarify how the participation of the accused was deduced in that separate “conspiracy”; if the former, the Order does not clarify the link between the “conspiracy” to block the road and its “unprecedented scale”, in a country where blocking roads happens every second day.
  3. That although there was no evidence of the accused committing any act or making any speech that instigated violence, nonetheless, as there existed a “conspiracy”, nonetheless “when you choose to play with embers you cannot blame the wind to have carried the spark a bit too far and spread the fire”, and that consequently, the “acts and inflammatory speeches of the co-conspirators are … admissible against the accused.” Now, it is unclear what the “acts” are, as the Order never mentions them; it is also unclear what the “inflammatory speeches” are, as the Order does not mention them either.

The lynchpin of the Order, therefore, is a prima facie finding of a “conspiracy”, in specific terms, to “block a road.” This conspiracy rose to an “unprecedented level” – we are not told how. But the fact that the accused is also – prima facie – one of the conspirators (regardless of specifics, because this remains a prima facie appraisal), meant that ipso facto the “acts and inflammatory speeches” (we are not told which) were attributable to her. It should be immediately clear that such an approach casts the net of criminality so wide, that just about anyone can be brought within its ambit. At the threshold level, it dispenses with the gravity requirement needed to trigger the UAPA, by failing conspicuously to specify how “blocking a road” reaches that threshold; at the more substantive level, upon a prima facie finding of a “conspiracy”, it dispenses with the need to show any causal connection between the accused and the events in question.

This would be problematic for acts (which the accused didn’t commit) as well, but when it comes to “inflammatory speeches” (which the accused didn’t give), it becomes even more problematic. This is because, recognising the problematic character of laws such as the UAPA which make the grant of bail effectively impossible, both the Supreme Court (in Arup Bhuyan, while examining the similarly-worded TADA) and the Bombay High Court (in the Kabir Kala Manch cases) have narrowly interpreted the substantive offence, limiting it to cases involving the incitement of violence. This is, indeed, nothing new: going back to the field of metaphors, as the Supreme Court held in S. Rangarajan, the proximity between speech and consequence needs to be like that of a “spark in a powder keg” for criminality to be imposed.

Now, the image of a “spark in a powder keg” suggests a relationship of immediacy and inevitability. The metaphor chosen by the Sessions Court on the other hand – that of playing with “embers” that the wind then “carries” is the exact opposite of a “spark in a powder keg”. The wind can carry embers as far, and in any direction, that the State or the judge might please; what this effectively does is do away with any causal requirement between speech-act and consequence. Such a doctrine, therefore, buries the fundamental right to free speech: if there is no need for a causal requirement between speech-act and consequence, anything can be criminalised, taking us directly into the territory of thought-crimes.

A reading of the Order, therefore, makes it clear that insofar as both the law and the facts stood in favour of bail, the Court got around the first barrier by replacing legal doctrine with a metaphor of its own invention, and vaulted the second barrier by replacing an accounting of the facts with a set of adjectives (“unprecedented scale” and “inflammatory speeches”) that spared it the necessity of an explanation. In this way, the law was stretched from one side, and the facts from the other, and they met in the middle to make out a prima facie UAPA case.

This prima facie case was then used to justify keeping a pregnant woman in an overcrowded prison in the middle of a nationwide pandemic. What that says about the state of the justice system is best left to the readers’ judgment.

Guest Post: Unicorn Industries v. Union of India – A Constitutional Case in Disguise

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[This is a Guest Post by Rahul Narayan.]


The Judgment in Unicorn Industries v. Union of India dated 6.12.2019 does not refer to the Constitution; nor was any constitutional argument made in the oral submissions in the case, though there was reference made in the pleadings. However, the case touches upon an important Constitutional question: one which was not framed and therefore not answered correctly. What is the nature of a surcharge imposed by the union government on existing levies such as excise duty?

Brief Factual Background

In a nutshell, the dispute in Unicorn Industries arose because the Department refused to allow Unicorn Industries to take a refund or re-credit for the National Calamity Contingent Duty (“NCCD”), Education Cess, and secondary and higher education cess (“SHE cess”) under a Notification applicable in Sikkim that “hereby exempts the goods….from so much of the duty of excise or additional duty of excise, as the case may be, leviable thereon under any of the said Acts”.

The NCCD was introduced vide Section 136 the Finance Act 2001 as “levied and collected for the purposes of the Union, by surcharge, a duty of excise”. The education cess was brought about under Sections 91 and 93 of the Finance Act 2004 “as surcharge for the purposes of the union, a cess to be called the Education cess…”. “The education cess …shall be a duty of excise.” The SHE Cess was brought about under Sections 126 and 128 of the Finance Act 2007as surcharge for the purposes of the union, a cess to be called the Secondary and Higher Education Cess…”. “The Secondary and Higher Education Cess …shall be a duty of excise.”

The question that squarely arose before the Court in Unicorn Industries was whether the NCCD, Education Cess and SHE Cess were covered as “duties of excise or additional duty of excise” under the Notification. If they were, then Unicorn was entitled to take the benefit of the exemption, if not, then Unicorn was not so entitled.

The Sikkim High Court held that the NCCD, Education Cess and SHE Cess were not covered under the Notification as they were not in essence duties of excise and that the case was covered by the earlier Supreme Court case of Union of India v. Modi Rubber (1986) 4 SCC 66. By the time Unicorn Industries was heard in the Supreme Court, the Supreme Court had held that the Education Cess and SHE Cess were duties of excise in the division bench judgment of SRD Nutrients v. CCE, (2018) 1 SCC 105 and that the NCCD was a duty of excise in he division bench judgment of Bajaj Auto v. Union of India, 2019 SCC Online SC 421.

In Unicorn Industries, the Supreme Court sitting in a bench of 3 judges held that the NCCD, Education CESS and SHE Cess are additional or special duties of excise (para 40). As a sequitur to this finding, the Court went on to rely upon the judgment of the Supreme Court in Modi Rubber Limited, (1986) 4 SCC 66 which dealt with additional and special duties of excise imposed by the Finance Act 1979 and stated that the Notification did not extend to the NCCD, Education Cess and SHE Cess. It then went on to overrule SRD Nutrients and Bajaj Auto for being per incuriam for having ignored the 3 judge bench in Modi Rubber.

Analysis

Under Article 265 of the Indian Constitution, as indeed under common law, there is no power to tax without the authority of law. Thus when examining the nature of any levy, one has to see the charging section and the Constitutional power under which such section has been enacted.

The charging sections of the NCCD, Education Cess and SHE Cess each make it abundantly clear that the same have been imposed as a Surchargefor the purposes of the Union”.

A surcharge is a special kind of levy in our Constitutional scheme. Chapter I of Part XII of the Constitution generally provides for how taxes are imposed and how they are to be apportioned or distributed between the Union and the States. Generally speaking, under Article 270 taxes and duties referred to in the Union List are levied and collected by the Union and are distributed to the States as per formulae determined by the Finance Commission. Article 271 provides for the power to increase any of the duties or taxes mentioned in Article 269 and 270 by a surcharge for the purposes of the Union and that the entire proceeds of such surcharge form part of the Consolidated Fund of India and are thus not shared with the States. A similar provision existed as the proviso to Section 137 under the Government of India Act 1935. The Constituent Assembly adopted the same on 5th August 1949.

A textual analysis of Article 271 reveals that the surcharge is “an increase of the duties and taxes” referred to under Articles 269 and 270 for the purposes of the Union. The Supreme Court has consistently held that a surcharge is a higher rate of tax or additional charge or imposition resulting in the enhancement of the tax and that the nature of the additional imposition is the same as the underlying levy. Thus a surcharge on income tax is also income tax and a surcharge on estate duty is also estate duty.

On the other hand, in Modi Rubber, the court was specifically dealing with an additional levy of excise imposed under the Finance Act 1979 and not with a surcharge. On facts and an analysis of the phraseology of the notification in question, it was found that the exemption notification under the Central Excise Act did not apply to additional duties of excise imposed under different Acts. Further, the notification in Modi Rubber spoke only of “duty of excise” and not duties of excise and special duties of under any Act as provided in the Notification in question in Unicorn Industries.

There is a two-fold Constitutional difference between a surcharge and an additional levy that has not been considered in Unicorn Industries. Firstly, an additional levy imposed by law may take the character of an existing levy, or not, as the ratio in Modi Rubber reveals. On the other hand, a surcharge on an existing levy takes the character of the underlying levy as a matter of Constitutional law. Secondly, an additional levy imposed by law under the Union List is shared between the Union and the States as per the formula of the Finance Commission under Article 270 whereas a surcharge is for Union purposes only and is not shared with the States under Article 271.

In Unicorn Industries, the judgment does not deal with the fact that the NCCD, Education Cess and SHE Cess have each been imposed as surcharge on duties of excise. By the operation of Article 271, the NCCD, Education Cess and SHE Cess are each an increase of excise duty for the purposes of the Union and are thus, by binding precedent of 3 judges and 2 judges, excise duties albeit those imposed under the Finance Acts rather than Central Excise Act.

SRD Nutrients also did not discuss the nature of the levy as a surcharge but it relied upon and approved of the judgment of the Rajasthan High Court in Banswara Syntex v. Union of India (2007) SCC Online SC. 365 which had specifically held that the decision was based on the fact that the levy was a surcharge and not an additional duty of excise. Bajaj Auto followed SRD Nutrients. Thus, the finding in Unicorn Industries that SRD Nutrients and Bajaj Auto were per incuriam as they did not cite Modi Rubber is incorrect. They did not cite Modi Rubber as that judgment was not relevant for levies of surcharge.

Unicorn Industries holds that the NCCS, Education Cess and SHE Cess are in the nature of additional duties of excise. This is erroneous. As Surcharge on excise duty, they are duties of excise per se due to the operation of Article 271. Unicorn should have been allowed the exemption under the Notification.

The Supreme Court’s Madhya Pradesh Government Formation Judgment: Round-Up

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Below is a round-up of the six posts discussing the judgment of the Supreme Court in the Madhya Pradesh government formation case.

  1. A Question of Jurisdiction (by Rishav Ambastha)
  2. On the Powers of the Governor (by Anmol Jain)
  3. On the Powers of the Governor: A Response – I (by Amlan Mishra)
  4. On the Powers of the Governor: A Response – II (by Nivedhitha K)
  5. On the Powers of the Governor: A Rejoinder (by Anmol Jain)
  6. Some Concluding Remarks

The Supreme Court’s Madhya Pradesh Government Formation Judgment – VI: Some Concluding Remarks

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[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].


Late last month, this blog hosted an extensive debate on the Supreme Court’s judgment in the Madhya Pradesh government formation case (see Rishav Ambastha’s initial post on jurisdiction; Anmol Jain’s post questioning the correctness of the judgment; Amlan Mishra and Nivedhitha K.’s posts responding to Amlan; and Amlan’s rejoinder). The judgment is a particularly important one, because it is the first reasoned verdict by the Supreme Court, after many years of interim orders that were passed every time a government formation crisis arose.

In this post, I want to offer a few brief concluding remarks, drawing from the debate. Recall once again that the key question before the Supreme Court was whether the Governor of a state had the power to direct a convening of the legislative assembly, for the purposes of holding a floor test. The Supreme Court held that the Governor did indeed have that power. The key constitutional question was whether this power fell under the “discretion” of the Governor – i.e., whether it was an exception to the general principle that the Governor could only act upon the “aid and advice” of the Council of Ministers. The Supreme Court held that it did.

As the debate between Anmol, Amlan, and Niveditha on this blog demonstrates, a close reading of the Constituent Assembly Debates does not yield a definitive answer to this question. This is why the answer lies in a structural and purposive reading of the Constitution: which interpretation better fits with the Constitution’s overall structure and guiding principles? According to the Court, the argument goes something like this: in the ordinary course of things, when you have an existing government and a functioning house, the accepted way of challenging that government’s legitimacy is through a no-confidence motion, which then culminates in a floor test ordered by the Speaker. However, there may arise situations where a government that has lost the confidence of the legislature impedes or prevents the holding of a floor test, and continues in office de facto. This would be a violation of the principle of collective responsibility, and undermine executive/legislature relationship within a parliamentary structure. It is therefore justified for the Governor to step in, and direct a floor test, for the limited purpose of determining whether or not the government continues to enjoy the confidence of the house. The power of the Governor is thus derived from a structural reading of the Constitution, and the principles of parliamentary democracy.

The problem with the argument, however, is this: the protection of one principle of parliamentary democracy (executive accountability to the legislature) comes at the cost of another: the sovereignty of the legislature to determine the proceedings within the house, and the supremacy of the Speaker. This, indeed, is the key distinction between a government formation dispute after elections but before the formation of the government (which is what happened, for example in the first Karnataka case in 2018), and a government formation dispute when the composition of a functioning house is altered because of the resignation of sitting MLAs. This distinction was drawn by Dr. Singhvi during oral arguments, but was rejected by the Court. The distinction, however, is crucial, for the reasons pointed out above.

Now, the argument made by the Court – and in Amlan’s piece – is that vesting the discretion with the Governor is required because the standard method of bringing down a government that has lost the confidence of the house – i.e., a no-confidence motion – can be circumvented either by an adjournment of legislative proceedings, or by the Speaker simply sitting on the no-confidence motion (indeed, readers will recall that during the previous NDA government at the centre, the Speaker – quite literally – did not allow a no-confidence motion tabled by the Opposition to be voted upon). However – and this came out in Anmol’s rejoinder piece – both these attempts have a straightforward solution: judicial review. The UK Supreme Court has recently taught us exactly how and when a Court may declare a prorogation unlawful: when it is clear that the effect of that prorogation is to defeat the constitutional principle of executive accountability to the legislature. And our own Supreme Court, last November, while considering the issue of money bill, provided strong and persuasive reasons when the discretion of the Speaker can be challenged in Court. If mala fide certification of bills as money bills attracts judicial review, there is no reason why mala fide refusal to hold a no-confidence vote cannot.

The question, therefore, boils down to this: structurally, which is the better option to ensure executive accountability: the Governor or the Court? It is, to my mind, obvious that it is the latter, for the very straightforward reason that the Governor is a central government appointee, and judges are not. Given a choice, further accretion to the powers of the Governor infringes the federal structure in a way expanded judicial power does not.

I think this issue is particularly important, because in deciding these cases, the Court must necessarily navigate through three sets of facts that it cannot turn a blind eye to (and indeed, all three are flagged in the judgment). First: Governors should be neutral, but they are not. They act effectively act as agents of the central government. Second: Speakers should be neutral, but they are not. They effectively act as agents of their parties. And third: horse-trading happens. Legislators are paid staggering amounts of money to switch sides and bring down the government, and the technique of resignations is used to circumvent the rigours of the anti-defection law. A judgment that proceeds on the assumption that any one of these three things does not exist essentially operates in a parallel reality, where constitutional principles have come entirely unmoored from the factual situation that they are meant to apply to.

Now given these facts, how should the Court decide? In a previous post, I argued that the judicial doctrine should evolve in a manner such that the Court does not determine substantive outcomes (such as installing or replacing a government); but also, that the Court needs to ensure that the impact of the three issues highlighted above, upon the democratic process, is minimised. So, for example, in cases involving government formation immediately after a closely-run election: the Court cannot stop horse-trading from happening, but it can – by ordering an immediate floor test – minimise the time open to parties to engage in horse-trading, and curtail gubernatorial abuse (as happened in the Karnataka case). Once again, if in the case of a sitting government, a host of MLAs resign in a coordinated fashion to alter the composition of the house, this is not something the Court can stop; what it can do, however, is prevent the emergence of collusive situations involving the governor and the political party that appointed the governor, by eliminating him from the power equations at play. In addition, the Court’s approach should be informed by the fact that coordinated resignations suggest that horse-trading is going on. Thus, just as there is an overriding need in post-election government formation cases to prevent horse-trading through an immediate floor test, when the horse-trading has already happened (through resignations), an immediate floor test that does not allow the Speaker at least a reasonable amount of time to decide upon the resignations (the extent of the Speaker’s discretion here is a debate for another day) will have the effect of entrenching horse trading.

Some of these factors, I suggest, were bracketed by the Court, as it did not believe it could go into such issues. That, however, is a mistake: the Court is already making (correct) assumptions about the lack of neutrality of the Speaker, when it gives to the Governor the power to direct a floor test. What is sauce for the goose is sauce for the gander: in an ideal world, Speakers and Governors are neutral, and horse-trading does not happen. But we cannot recognise one departure from the ideal – the politicisation of the office of the Speaker – without recognising the other – i.e., bringing down governments through horse-trading. A holistic recognition of the structural problems involved, I would submit, would lead one to Anmol’s answer as the preferable one: the no-confidence motion remains the sole means of testing the continued legitimacy of an elected and functioning government, with the possibility of judicial review in case of an impediment is thrown up.

A final, somewhat unrelated point: as I have noted above, the Court acknowledges, towards the end of its judgment, that horse-trading is a feature of the polity. But here’s the thing: horse-trading is enabled and facilitated by vast amounts of money sloshing through politics, and for the last two years, the sloshing of unimaginable sums has been enabled by the mechanism of electoral bonds, which allow opaque and limitless corporate donations to political parties.  Constitutional challenges to the electoral bond schemes have been pending in the Supreme Court for more than two years, and successive Chief Justices have dodged, ducked, and evaded hearing the case. For this reason, one can only read judicial lamentations about horse-trading with a wry smile: the institution that actually has the power to do something about it (even if is a little bit) is the institution that is refusing to act. Of course, the decision to hear the case lies with the Chief Justice; therefore, it is not that the two judges who authored this judgment are responsible for the delay. But that, unfortunately, is becoming an enduring issue with the poly-vocal character of the Supreme Court: the same institution, speaking through different judges, criticises horse-trading, while refraining from hearing a case that would have a non-trivial impact upon that same horse-trading. If the Supreme Court is to retain its character as a constitutional Court, this problem desperately requires a solution.

To CAP or not to CAP: The Bombay High Court on Equality and Access to Education

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In an interesting judgment delivered yesterday (Yash Pramesh Rana vs State of Maharashtra), a Full Bench of the Bombay High Court struck down Government Resolution [“GR”] dated 27.2.2013. This Government Resolution had restricted the application of a fee-reimbursement scheme only to those SC/ST/OBC students who had taken college admission through the government-run Common Admissions Procedure [“CAP”].

The facts were straightforward. To enter an engineering college in the state of Maharashtra, a student had to undertake the Common Entrance Test [“CET”]. On the basis of ranks obtained in the CET, students could then participate in the CAP, and gain admission into any of the colleges that were part of the CAP. However, not all colleges – including some minority colleges (the case itself concerned a Gujarati-language linguistic minority college) – were part of the CAP. Certain colleges had their own admissions process, that was approved by the Pravesh Niyantran Committee. The impugned GR – as indicated above – provided for a fee-reimbursement scheme to SC/ST/OBC students, but limited it only to the former category (i.e., those who took part in the CAP).

In a judgment authored by Dama Seshadari Naidu J., the Bombay High Court found that the impugned G.R. was entirely arbitrary, and violated Article 14 of the Constitution. The judgment is noteworthy, because it was decided almost entirely on the basis of a textbook application of burdens and evidentiary standards under Article 14. The Court observed that as the impugned G.R. created a classification, and disadvantaged one set of people (the category of students that was not granted fee reimbursement), a prima facie case of discrimination was made out. This, then, shifted the burden of justification onto the State. The State essentially produced two arguments: first, that extending the free-reimbursement scheme to all SC/ST/OBC students would be financially prohibitive, and secondly, that students who had gone through the CAP and those who had not constituted two separate “classes”, as the CAP was a transparent, well-documented, well-regulated, and non-discriminatory process of allocation.

On the first count, the Court held that mere financial difficulties, without something more, could not be a ground for discriminatory treatment. In other words, in a class of similarly situated people, the State could not refuse to one set of people a benefit that it was granting to another, on the basis that it did not have the financial capacity. This is self-evidently correct and logical. On the second count, the Court held that the State had failed to bring any evidence on record to show that the non-CAP process was any less rigorous and transparent than the CAP process, in any sense that justified withholding of identical benefits. Indeed, the Pravesh Niyantran Committee was also run by the government. Consequently, as the State had produced no evidence to justify its claim, the impugned G.R. was arbitrary and unconstitutional. As the Court correctly noted, following the US Supreme Court, the presumption of constitutionality would not stretch so far as to imagine the existence of an “undisclosed and unknown reason for subjecting certain individuals or corporations to hostile and discriminatory legislation.”

It is also interesting to note that Naidu J. framed the dispute within the backdrop of historical inequalities concerning access to education in India (going back to the 1850s), and the use of affirmative action as tool of corrective justice. This was relevant to the case, as one of the arguments raised by the State was that fee-reimbursement was simply a benefit it was conferring upon certain students; as there was no antecedent right to claim fee-reimbursement, a person who had been deprived of it had no locus to move the Court. Now at one level, of course, the Court correctly answered this by stating that any State action – including “largesse” – had to conform to constitutional principles. However, the Court also noted that – within the backdrop of structural inequality in India – fee-reimbursement for SC/ST/OBC students had to be understood as “a facet of affirmative action.” This immediately took it from the domain of largesse/benefits and into the domain of constitutional obligation, thus making it even more incumbent upon the State to frame a non-discriminatory policy of access.

Now, an interesting corollary of the Court’s observation is that if indeed fee-reimbursement is a form of affirmative action, then – as a non-reservation based form of affirmative action – it falls within Article 16(1) of the Constitution (guarantee of equality of opportunity). This raises a host of fascinating questions for the future, including whether specific claims of fee-reimbursement can be made against the State by socially disadvantaged communities (as 16(1) is framed as a right), the fact that such schemes can go beyond SC/ST/OBC communities (as 16(1) affirmative action measures are not limited to 16(4) beneficiaries), and so on. Of course, none of these questions were before the Court; however, it will be interesting to see whether future judgments will carry forward the logic of fee-reimbursement being a form of affirmative action, and what that might mean in practical terms.

Guest Post: Preventive Detention and the Dangers of Volcanic, Ever-Proximate, Ideologies

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[Editorial Note: On 8th February, I hd written this blog post, about the judgment of the Jammu and Kashmir High Court upholding the administrative detention of Mian Abdool Qayoom, the 76-year old President of the Jammu and Kashmir Bar Association. In that post, I had pointed out that the High Court’s quotation of a line spoken by the Greek King Menelaus, in Sophocles’ play Ajax (itself copied without attribution from a prior judgment by Dipak Misra J) was unwittingly revealing: it demonstrated how Qayoom’s detention could not be justified under any framework of legal or constitutional reasoning, but only by an appeal to the brute power of arms (sticking with classical Greece, as the Athenians would say, “the strong do what they can and the weak suffer what they must.”)

At that time, it was difficult to imagine a future judgment of this High Court sinking even lower; but when the bottom is an abyss, it seems there is no limit to just how low you can go. A judgment by a division bench of the J&K High Court – also involving Qayoom’s detention (now approaching its tenth month, without trial) has achieved the spectacular feat of besting even the February judgment’s Greek fantasies in its intemperate language, its partisanship, its ignorance of basic constitutional principles, and its desire to defeat all other comers in achieving a swift and seamless merger of the judiciary with the executive. This is a guest post by Abhinav Sekhri, analysing it (cross-posted from the Proof of Guilt Blog. – G.B.]


81. As mentioned in para 37 of this judgment, while addressing his arguments on the ideology nourished and nurtured by the detenue, the learned Advocate General submitted that such ideology cannot be confined or limited to time to qualify it to be called stale or fresh or proximate, unless, of course, the person concerned declares and establishes by conduct and expression that he has shunned the ideology (emphasis supplied in original).

82. In light of the above legally rightful and sound argument taken by the learned Advocate General, we leave it to the detenue to decide whether he would wish to take advantage of the stand of the learned Advocate General and make a representation to the concerned authorities to abide by it. … (emphasis mine)

[Extract from Mian Abdool Qayoom v. Union Territory of J&K & Ors., LPA No.28/2020, decided on 28.05.2020]

This exchange is not part of the judgment of the Jammu & Kashmir High Court dismissing Mian Abdool Qayoom’s appeal against a Single Judge order that had rejected his challenge to order condemning him to preventive detention under the Public Safety Act. Instead, it is part of the order dismissing an application seeking Qayoom’s temporary release from Tihar Jail due to Covid-19. The High Court unequivocally supported requiring an oath of loyalty as a condition for releasing a 76-year-old diabetic detenu who is on surviving one kidney during a pandemic which has placed him under high risk.

A preventive detention order against political dissidents is not new for India, and certainly not new for Jammu and Kashmir. It is telling that one of the last judgments of the Federal Court, passed six days before the Constitution came into force, was one which upheld the preventive detention of Machindar Shivaji Mahar, mainly because he was a member of the Communist Party which advocated for armed revolution. Then as now, judges held that actively supporting violent ideologies can make it likely that the person will act in a manner prejudicial to public order.

The cynic would argue, then, that we never left the place which the Jammu & Kashmir High Court shows us in Qayoom’s appeal. The cynic is mistaken, because in between we gave to ourselves a Constitution, which ensured persons like Machindar Shivaji had a fairer process governing preventive detentions than what might have been granted under the erstwhile laws (processes which now apply to the Union Territory of Jammu & Kashmir). On top of this, the Indian Supreme Court has tried to enhance the fairness of these procedures over seventy years.

Even if the record of the Supreme Court on preventive detention is largely regrettable on the whole, there are times when one gets a glimpse of what justice looks like in a system where executive discretion is strongly tested by vigilant courts on the anvil of fundamental rights. It was one such moment in 1979 which saw the Supreme Court quash the detention orders of Mohd. Yousuf [(1979) 4 SCC 370], passed by the then State Government of J&K. A detention order passed against this “Die Hard Naxalite” was methodically taken apart by the bench and shown for what it was: An executive act based on vague and irrelevant grounds that could not deprive any person of her constitutionally reified right to personal liberty.

Mian Abdool Qayoom’s continued detention by virtue of the J&K High Court judgment is, I would argue, antithetical to the kind of justice shown in Mohd. Yousuf, where a court adopted a critical lens to executive determination without substituting its own judgment. Here, illegal grounds in Qayoom’s detention order are justified as being “clumsy”, and then the Court jumps in to fill the gaps despite proclaiming an inability to step into the shoes of the district magistrate authorising detention.

This is nowhere more apparent than the remarkable excursus about the relevance of ideology while considering preventive detention. The High Court goes much beyond a simple argument of allowing the police to consider a prior record to justify need for urgent preventive actions. It also goes beyond Machindar Shivaji and permits reference to activities of one’s political party as a basis to consider risks to public order. Instead, it suggests the authorities have legitimate grounds to detain persons for years without trial, based on their “ideology”.

48. Having considered the matter, we may say that an ideology of the nature reflected in the FIRs and alleged against the detenue herein is like a live volcano. The ideology has always an inclination, a natural tendency to behave in a particular way; It is often associated with an intense, natural inclination and preference of the person to behave in the way his ideology drives him to achieve his latent and expressed objectives and when he happens to head or leading a group, as the allegations contained in the FIRs suggest, his single point agenda remains that his ideology is imbued in all those whom he leads. … Generally, when a criminal act takes place, its impact may be felt within a small circle or its repercussions may be of bigger consequence, but with the passage of time the impact and the consequences generally subside or vanish. When it comes to propensity of an ideology of the nature reflected in the FIRs supported by the intelligence reports we have gone through, we are convinced that it subserves the latent motive to thrive on public disorder. In that context, we feel that most of the judgments of the Apex Court do not fit the facts and the given situation.

Therefore, we are left with no option but to say that an ideology that has the effect and potential of nurturing a tendency of disturbance in public order, such as is reflected in the FIRs registered against the detenue in the instant case, and of which the detaining authority is reasonably satisfied, can be said to be different from a criminal act or acts done sometime in the past and, therefore, would always continue to be proximate in their impact and consequence and, therefore, would not attract the judgments cited at the Bar on the point. … Furthermore, we are also of the view that such an ideology alleged against a person, if mentioned in the earlier grounds of detention, because of its nature of subsistence and propensity, would not lose its proximity and, therefore, can be taken into account and used for detaining such person subsequently if the detaining authority is satisfied that such an ideology of the person has the potential to goad or instigate disturbance in public order, in a susceptible given situation, like the one it was at the relevant point of time. … (emphasis mine)”

 

Let us take a moment to understand the significance of this rhetoric. Preventive detention powers are conferred upon executive officers to prevent certain kinds of danger by detaining a person without trial. While courts cannot review the officers’ subjective satisfaction of the facts requiring detention, there are some judicial checks in place. To ensure that this discretionary power is not beholden to an officer’s arbitrary prejudices and remains justiciable, the law requires that each detention order be backed by reasonable, relevant, and germane grounds which explain why detention was urgently necessary, which must be expressed clearly to enable a detenu to make an effective representation against the orders.

Requiring clear, germane, and proximate reasons meant that executive officers had to cite some instances of illegal / suspicious conduct as overt manifestations of any ideology which they considered prejudicial to public order — i.e., to flesh out an inherently vague notion. What the J&K High Court has done is taken this close connexion between objective real-world anchors for a subjective concept like ideology, and treated it to serious social distancing. Into the resulting gap falls judicial review of preventive detention. Ideology now becomes a blank cheque to be encashed by the executive whenever the circumstances suggest that its “volcano-like” qualities can prove detrimental to the public order; no matter that the most recent overt display of this purported ideology dates back several years. By no longer requiring the executive officer’s subjective satisfaction to have a proximate real-world anchor, judicial review is nearly reduced to its pre-1970s avatar of only checking if procedures are complied with.

The J&K High Court has, seemingly unwittingly, shown us a system that runs on punishing thoughts and beliefs. Only, here, we have no punishment with a trial and courts, but prevention, with the executive serving as judge, jury, and executioner. The only conduct “legally rightful” and sufficiently redemptive to erase the marks of a dissident ideology is an oath of loyalty, and its perpetual performance, subject to the satisfaction of the same authorities.

This time, too, shall pass.