Coronavirus and the Constitution: Round-Up

This post brings together ICLP’s coverage of Covid-19, the Constitution, and the Courts over the past one year.

A. On the Disaster Management Act, Executive Decrees, and Judicial Review

  1. Coronavirus and the Constitution – XVIII: Models of Accountability
  2. Coronavirus and the Constitution – XX: Parliamentary Accountability
  3. Coronavirus and the Constitution – XXVII: On (Permanent) Crisis Governance [Guest Post]
  4. Coronavirus and the Constitution – XXXVIII: One Year On

B. On Civil Rights

  1. Coronavirus and the Constitution – III: The Curfew and the Quarantine
  2. Coronavirus and the Constitution – IV: Privacy in a Public Health Crisis [Guest Post]
  3. Coronavirus and the Constitution – VI: On the Freedom of Movement
  4. Coronavirus and the Constitution – VII: Balancing Privacy and Public Health in Karnataka [Guest Post]
  5. Coronavirus and the Constitution – IX: Three Curious Bail Orders
  6. Coronavirus and the Constitution – XV: The Odisha High Court on the Ban on Vehicles [Guest Post]
  7. Coronavirus and the Constitution – XXI: The Mandatory Imposition of the Aarogya Setu App
  8. Coronavirus and the Constitution – XXIV: Aarogya Setu and the Right to be Forgotten [Guest Post]
  9. Coronavirus and the Constitution – XXVI: Migrant Workers, Freedom of Movement, and Positive Obligations [Guest Post]
  10. Coronavirus and the Constitution – XXX: PM-CARES Fund and the Right to Information Act [Guest Post]

C. On Labour Rights

  1. Coronavirus and the Constitution
  2. Coronavirus and the Constitution – II: Household Staff and Employment Protection: Obligations, not Charity [Guest Post]
  3. Coronavirus and the Constitution – XXXI: The Payment of Wages Order
  4. Coronavirus and the Constitution XXXII: Payment of Wages and Judicial Evasion in a Pandemic
  5. Coronavirus and the Constitution – XXXVII: The Pandemic, Labour Rights, and the Supreme Court’s Judgment in Gujarat Mazdoor Sabha

D. On Fiscal Federalism

  1. Coronavirus and the Constitution – V: Financial Emergencies
  2. Coronavirus and the Constitution – XIX: The State Disaster Risk Management Fund and the Principle of Equal Distribution [Guest Post]
  3. Coronavirus and the Constitution – XXII: The State Disaster Risk Management Fund and the Principle of Equal Distribution – A Response [Guest Post]
  4. Coronavirus and the Constitution – XXIX: Sub-National Debt & Art. 293(4) – Some Constitutional Concerns [Guest Post]
  5. Coronavirus and the Constitution – XXXV: Examining the GST Compensation Crisis [Guest Post]

E. On the Supreme Court

  1. Coronavirus and the Constitution – VIII: A Critique of the Supreme Court’s Migrants Order [Guest Post]
  2. Coronavirus and the Constitution – X: Rights, not Policy
  3. Coronavirus and the Constitution – XI: The Supreme Court’s Free Testing Order
  4. Coronavirus and the Constitution – XII: The Supreme Court’s Free Testing Order – A Response (1) [Guest Post]
  5. Coronavirus and the Constitution – XIII: The Supreme Court’s Free Testing Order – A Response (2) [Guest Post]
  6. Coronavirus and the Constitution – XIV: The Supreme Court’s Free Testing Order – A Rejoinder (1) [Guest Post]
  7. Coronavirus and the Constitution – XVI: The Supreme Court’s Free Testing Order – A Response (3) [Guest Post]
  8. Coronavirus and the Constitution – XVII: The Supreme Court’s Free Testing Order – Some Concluding Remarks
  9. Coronavirus and the Constitution – XXV: Socio-Economic Rights and the Shifting Standards of Review [Guest Post]
  10. Coronavirus and the Constitution: XXXVI – The Supreme Court’s UGC Judgment [Guest Post]

F. On the High Courts

  1. Coronavirus and the Constitution – XXIII: Judicial Approaches Towards the Right to Food
  2. Coronavirus and the Constitution – XXVIII: Dialogic Judicial Review in the Gujarat and Karnataka High Courts
  3. Coronavirus and the Constitution – XXXIII: N-95 Masks and the Bombay High Court’s Dialogic Judicial Review [Guest Post]
  4. Coronavirus and the Constitution – XXXIV: The Bombay High Court [Guest Post]

Coronavirus and the Constitution – XXXVIII: One Year On

The first Indian national lockdown in the wake of Covid-19 was announced on 24th March, 2020. The management of the pandemic by the central and state governments is a matter for the history books (although, of course, the pandemic is not yet over). Over the course of the past year, however, these governments’ far-reaching actions – aimed at containing the pandemic, but with numerous spill-over effects – raised numerous constitutional issues. These involved, for example, civil rights, access to healthcare, the rights of migrants, and so on. On this blog, there have been thirty-seven posts examining the interface between Covid-19, state action, the Constitution, and the Courts. One the first anniversary of the lockdown, it is a good time to take stock.

Pandemic Management by Decree

The greatest concern remains how Covid-19 turned into a cover for executive aggrandisement, both at the central and at the state level. At the centre, this involved the invocation of the Disaster Management Act of 2005, and a somewhat extended interpretation of its provisions, to arm the central government with wide-ranging powers over everyday life. At the state level, the several state governments invoked the colonial Epidemic Diseases Act, to exercise similar powers over their territories (including the arguably ultra vires “sealing off” of certain districts from time to time). This, in turn, was supplemented by the liberal use of Section 144 of the Code of Criminal Procedure to restrict movement in specific areas.

At all levels, therefore, Covid-19 was managed by an interlocking set of executive decrees, passed under broadly-worded laws, and leaving no scope for the representative bodies – parliament of the state legislatures – to debate or to question these moves. It is, of course, trite to say that the legislature in India has become effectively moribund, and even a functioning Parliament and State Assemblies would have scarcely made a difference to the handling of Covid-19. That is true enough, but the formal exclusion of deliberative representative bodies from the management of a criss by invoking broadly-worded laws remains a matter for concern, whatever the state of those bodies: as Abhinav Sekhri put it, it took us into a space of “permanent crisis governance“.

Civil Rights and Proportionality

That Covid-19 was – and remains – a public health crisis that would require governments to take far-reaching measures – many of which would have a severe impact on everyday life and on civil rights – is unquestionable. But what is equally unquestionable is that Covid-19 does not accord governments a carte blanche to suspend Part III of the Constitution altogether. State action violating rights would still need to conform to the principles of proportionality, albeit with the rider that the importance of the State goal (preventing the spread of a global pandemic) would necessarily allow the government a wide degree of leeway in fashioning measures to deal with the problem.

That said, throughout the pandemic – and especially in its early stages – there was a range of dubious State action that arguably fell foul of the proportionality standard. These included, for example, curfews, public disclosure of the private details of quarantined individuals, restrictions on individual movement, compelling quarantined people to upload “selfies” to a government portal, the notorious Aarogya Setu App (with its Aadhaar-esque mandatory-voluntary nature), and bans on vehicular movement. Unfortunately, most of these measures escaped judicial scrutiny. The exception was Odisha’s vehicles ban, which was modified by the Odisha High Court in a measured and well-reasoned judgment, that is a good example of the application of the proportionality standard in a public health emergency.

Equality and Non-Discrimination

Pandemics do not discriminate between the rich and the poor, but the State certainly does. A lockdown, for example, has a severely disproportionate impact, depending on the socio-economic status of a person. “Work from home” jobs statistically track along socio-economic lines (the higher paid your job, the more likely it’s a job that can be done from home), and the forced closure of all establishments has a direct impact on the right to life and livelihood of migrant workers, living on daily payments, in particular. The decision to impose a hard national lockdown, therefore, raised important constitutional concerns around equality and non-discrimination. Note that this does not mean that the lockdown should not have been imposed (scientific evidence shows that lockdowns are essential to breaking the chain of transmission of the virus). What it does mean, however, is that once the lockdown was imposed, the State had an affirmative obligation to deal with its discriminatory impact – and that its failure to do so merited constitutional scrutiny.

Unfortunately, however, the unequal and discriminatory impacts of the lockdown were given short shrift; for example, the Supreme Court passed a cursory judgment failing to properly engage with the multiple equality concerns with the UGC’s Circular on the conduct of examinations. Secondly, PIL requiring the State to guarantee the payment of minimum wages to workers affected by the lockdown was not taken seriously by the Supreme Court, with the Court – unfortunately – indicating that it viewed the issue as a matter of “policy” (the rights to equality and to livelihood are not matters of policy).

Eventually, it was the government that took action, with a regulation under the Disaster Management Act requiring payment of wages to workers for a certain period of the lockdown. In one of the most unfortunate orders to be passed during the pandemic, the Supreme Court effectively stayed this provision (ironically, the only provision the Court stayed under the DMA was the one provision that sought to protect workers’ rights) – and then buried the case by adjourning it while asking the employers and employees to “negotiate” (as the old saying goes, a mediation between the sword and the neck). Thus, the regulation requiring the payment of wages to those who had suffered from job loss because of the lockdown was judicially nullified.

By contrast, the Supreme Court’s decision in the Gujarat Mazdoor Sabha case – where the State of Gujarat’s attempts to cut back on labour protections by citing Covid-19 as an excuse were turned back by a thoughtful and closely-reasoned judgment – stands out precisely because, for once, the Court refused to accept Covid-19 as a carte blanche for the curtailment of rights, especially on the basis of vague invocations of “public emergency”. One wishes that this judgment had been the exception, and not the norm, as we shall see below.

The Supreme Court’s Deference

The Supreme Court’s excessive and undue deference to the executive was starkly visible in multiple separate instances. First, despite legitimate constitutional and legal concerns, PILs challenging the PM-CARES fund were dismissed as frivolous and ill-founded. It is telling that to this day, we do not know the breakdown of spending under the PM-CARES fund, something that should be anathema to any jurisdiction styling itself a constitutional democracy.

Secondly – and in what will undoubtedly go down as a moment of great infamy – when the Supreme Court was petitioned about the severe difficulties faced by migrants due to the sudden and unplanned lockdown, first accepted the Solicitor-General’s statement that there were no migrants on the road, and then passed an extraordinary order blaming migration on “fake news”, and praising the government for its efforts in tackling Covid-19.

Thirdly, acting on a petition before it, a bench of the Supreme Court in April 2020 ordered that Covid testing be made free of cost. While the order had gaps, in my view – as I argued at the time – given the nature of the Covid-19 pandemic, it was legitimate (but see here, here, here, here, and here) for the extensive debate that this sparked upon the blog). However, upon various private bodies moving the Court, and at the instance of the State, it did a complete – and wholly unreasoned – volte face, changed its own order, and while appearing to introduce a means-testing requirement, effectively killed it. Now, there is a debate to be had over whether the Court’s initial order was right or wrong. What is troubling, however, that in a matter as important as this – involving the right to equality and the right to health during a global pandemic – the Court provided no reasons for its flip-flops. Indeed, it accorded no judicial scrutiny to the most basic of factual claims – for example, that Rs 4500 as the price for a test had been determined after consulting experts (reports showed that no experts had been consulted), or of a causal link between making testing free (or cheaper), and the availability of tests.

Thus, both in the migrants’ case and in the free testing case, the issue was not that the Court interfered – or declined to interfere – with questions of policy; it was – as I argued here – that the Court failed to hold the government to account in following its own policies; this does not require judicial activism, but classic, old-school judicial scrutiny, scrutiny that was made all the more necessary because of the bypassing of Parliament, leaving the Courts as the only checking bodies left. The Court’s failure to do so effectively created a situation of Caesarism: i.e., rule by acclamation, not under democratic checks and balances. But the larger issue it revealed is perhaps even more important: at present, under our Constitution, there is no consistent standard for the recognition and enforcement of socio-economic rights. While this has always been known, it was the (often failed) attempts to actually enforce these rights during Covid-19 that brought the point home.

The High Courts’ Vigilance

There was, however, a marked difference in how the several High Courts approached their responsibilities during the pandemic – demonstrating, perhaps, that in public health emergencies that are managed at a more localised level, High Courts might be in a better position to adjudicate a range of issues involved. . For example, the Delhi High Court passed an important order regarding the implementation of the right to food, and keeping open PDS shops, during the pandemic. The Madras High Court passed a good order on the right to movement of migrant workers.

Most importantly, in a series of excellent orders, the Karnataka and the Gujarat High Courts held the State governments to account on issues involving the rights of migrants, medical care, food, shelter, and other grave lapses in pandemic management. The actions of the Karnataka and Gujarat High Courts stand out as models of judicial engagement with State action during the pandemic: both Courts engaged in dialogic judicial review, i.e., not substituting judicial wisdom for State policy, but by holding the governments to account for their failure to protect constitutional rights during the pandemic (unfortunately, in the Gujarat High Court, one of the judges hearing the case was swiftly replaced, and the hearings died a quiet death). Both Courts, for example, asked the State governments to file affidavits, and it was quickly found, on a reading of those affidavits, that the governments were failing on their own terms. The Courts’ orders were then premised on a rectification of those failures, and indeed, directing the government to act to mitigate those failures. It is in this way that the High Courts engaged in dialogic judicial review, and ensuring executive accountability under the Constitution on a continuing basis.

The Bombay High Court also engaged in dialogic judicial review when considering the issue of price-capping N-95 masks, closely engaging with information provided by the government, on its own terms. There were also thorough and detailed orders passed on access to food, migrant rights, and the right to a decent burial.

The Conclusion

Whenever we face an emergency of any kind, it becomes particularly easy to argue that rights are a luxury that cannot be afforded in times of existential threat, and that the State must be given complete leeway to tackle the emergency as long as it lasts. It is also tempting to turn the truism that the Courts should not get into the day-to-day management of the pandemic, into an excuse for judicial abdication. Tempting as it is to make these arguments, history has also repeatedly shown us that it is wrong-headed; not only is it more than possible to handle emergencies while being protective of basic rights, it is also the case that executive aggrandisement of power during an emergency inevitably becomes permanent, with emergency and normalcy eventually bleeding into each other.

There is little purpose in knowing history if we do not intent to learn from it. In this context, the invocation of the DMA and the Epidemic Diseases Act to manage the pandemic via executive decree is the repetition of an old story, which recurs every time there is an emergency. One can only hope that after the pandemic is over (of which there is no sign so far), we will be vigilant about the expansion of such executive rule into daily life.

Secondly, the pandemic has revealed the hollowness – in a sense – of India’s Article 21 jurisprudence. Ultimately, when it came to the crunch, the grand rights to livelihood, food, and health meant very little in practice, especially at the Supreme Court: the migrant and free testing cases are testament to how, in the enforcement, these rights are paper tigers.

Thirdly, however, there are reasons for optimism as well. The Supreme Court’s judgment in Gujarat Mazdoor Sabha was a classic example of the role a vigilant judiciary can play in stopping a government that tries to use the pandemic as a cover to cut back on workers’ rights. And the orders of the Karnataka and Gujarat High Courts provide models of dialogic judicial review, and the walking of the delicate tightrope between judicial abdication on the one hand, and the judiciary (wrongly) trying to “manage the pandemic” on the other. As we eventually emerge from the pandemic, there is a lot to reflect on – and to learn – from the legacy of this past year, and about the role of courts and of rights in a crisis.

Guest Post: The Allahabad HC – Abortion of Legislation by Judicial Fiat?

[This is a guest post by Tanishk Goyal.]

On March 3, 2021, a Division Bench of the Allahabad High Court took suo motto cognizance of the Uttar Pradesh Education Service Tribunal Bill, 2021. This cognizance was against the backdrop of a week-long abstention from judicial work by the advocates at the call of the Allahabad High Court Bar Association and the Awadh Bar Association, Lucknow. Briefly put, The Uttar Pradesh Education Service Tribunal Bill, 2021 seeks to establish an Education Tribunal for expeditious disposal of service cases relating to teaching and non-teaching staff of of Basic, Secondary and Higher Educational Institutions in the State. In order to do so, the Bill proposes to establish the principle bench of the Tribunal at Lucknow with a circuit bench at Allahabad. The proposed location of the Tribunal has been the subject matter of controversy since 2019, when this Bill was first passed by the State Legislature.

Taking cognizance of the said matter In Re Constitution Of Education Tribunals, the Division Bench did two things. First, it availed the details of the pendency in Service Law matters in the State which were sought to be adjudicated by the Education Tribunal. Upon availing the above details through the Court’s Registry, the Bench came to the conclusion that the pendency in Service Law matters was “not too much” and the same could be effectively remedied through the constitution of special benches by the High Court itself. Second, it passed the following directions. The wordings and implications of the directions so passed are instructive and deserve to be quoted in full:

“(i) The Chief Justice, Allahabad High Court be requested to

constitute appropriate dedicated Benches at Allahabad as well as at Lucknow for expeditious disposal of service matters related to teaching and non-teaching staff of aided institutions.

(ii) The Legislature may complete the process of enacting the Act of 2021, if so desires, but, shall establish Educational Tribunals as proposed only after the leave of this Court”.  (emphasis supplied).

While the concerns regarding the constitutionality of the bill itself have been raised on this blog earlier, through the present piece, I only seek to highlight certain constitutional concerns with the stay order passed by the Division Bench of the Allahabad High Court on March 3, 2021. However, before analyzing the constitutional concerns with the said order, it would be pertinent to understand the object and purpose of the Uttar Pradesh Service Tribunal Bill, 2021.

The Object and Purpose of the UP Service Tribunal Bill, 2021

The ultimate objective of the Bill of 2021 as evidenced through its Statement of Objects and Reasons is twofold. Firstly, “to provide a mechanism for the speedy resolution of disputes in service matters of teachers and non-teaching employees of basic, secondary and higher educational institutions. Secondly and relatedly, “to maintain and improve the quality of efficient functioning of institutions of basic secondary and higher education. This objective was against the backdrop of the rapid growth in litigations involving service matters of teaching and non teaching staff of these institutions. This objective was also against the backdrop of the judgment of an eleven-judge bench of the Supreme Court in the case of T.M.A Pai Foundation v. State of Karnataka, where it held that:

64In the case of educational institutions, however, we are of the opinion that requiring a teacher or a member of the staff to go to a civil court for the purpose of seeking redress is not in the interest of general education […]. It would, therefore, be appropriate that an educational Tribunal be set up in each district in a State, to enable the aggrieved teacher to file an appeal, unless there already exists such an educational tribunal in a State — the object being that the teacher should not suffer through the substantial costs that arise because of the location of the tribunal; if the tribunals are limited in number, they can hold circuit/camp sittings in different districts to achieve this objective.(emphasis supplied).

Thus, the constitution of a Tribunal that can speedily decide cases relating to service matters of the teaching employees and non-teaching staff, lies at the heart of the UP Service Tribunal Bill, 2021. In order to achieve the said objective, the Bill of 2021, through Sections 3-11 vests the Tribunal with various powers. These Sections, inter-alia provide for the establishment and composition of the Tribunal, the procedures to be adopted before it, the bar on civil suits, the power of the Tribunal to punish for its contempt and most importantly, a revisional jurisdiction to be exercised by the High Court. However, as will be illustrated forthwith, the Division Bench order of March 3, 2021 strikes at this heart of the Bill and renders it nugatory for all practical purposes.

Before analyzing the order of the Division Bench any further, it would be pertinent to reiterate here that while the Bill of 2021 still suffers from the same statutory defects that the Bill of 2019 did, which may ultimately render it ultra vires the Constitution, it is still not upon the judiciary to pre-empt its implications and put a stay upon its enforcement. This has been discussed forthwith.

The Order of the Division Bench of the Allahabad High Court

Having apprised the reader of the object and purpose of the Bill of 2021, an important point of departure here would be highlight the concerns that arise with respect to the two directions issued by the Division Bench in its order of March 3, 2021. The first direction holds that dedicated benches shall be created at Allahabad as well as Lucknow for the expeditious disposal of service matters related to teaching and non-teaching staff of aided institutions. This direction essentially creates an Original jurisdiction of the High Court when only a revisional jurisdiction had been envisaged by the Bill of 2021. The second direction issued by the Division Bench restrained the State from constituting the Education Tribunal under Section 3 of the Bill of 2021 without the leave of the Court. As discussed earlier, the constitution of an Educational Tribunal that can speedily decide cases relating to service matters of the teaching employees and non-teaching staff, lies at the heart of the UP Service Tribunal Bill, 2021. Therefore, while the order says that“The Legislature may complete the process of enacting the Act of 2021, if it so desires”, the Court has effectively aborted the very essence legislation even before it came into effect.

This issuance of the above directions is classic example of the exercise of judicial fiat by the Division Bench where it has effectively defeated the legislative exercise undertaken by the State Legislature. The Bench has done so by essentially pre-empting that a dedicated Education Tribunal would be of no use if the original jurisdiction of the High Court is able to dispose off the cases in its capacity as the Court of First instance. Having pre-empted so, the Bench has also stayed the constitution of the Education Tribunal until a leave is sought from the Court. In doing so, the Bench only relied on the pendency data made available to it by the Registry of the Court. This essentially means that the Court discounted the need for any debate or discussion on the pendency data which was done in the Legislature when the Bill of 2021 was passed.

This approach was condemned by the U.S Supreme Court in the American Federation of Labour v. American Sash and Door Co., 335 US 538 (1949). Speaking through Justice Frankfurter, the Court held that:

But, even if a law is found wanting on trial, it is better that its defects should be demonstrated and removed by the legislature than that the law should be aborted by judicial fiat. Such, an assertion of judicial power defeats responsibility from those on whom in a democratic society it ultimately rests (emphasis supplied).

In a similar situation in India where the Court had extended the applicability of the Easements Act, 1882 to the State of Assam when the legislature had made it clear that the said Act had no application in Assam, the Court, in Panchugopal Barua v. Umesh Chandra Goswami, (1997) 4 SCC 713 held that:

“12. It is not permissible to extend the provisions of an Act, made not applicable by the legislature to a State, by a judicial order as it amounts to enacting legislation by the High Court, a power not vested in the judiciary” (emphasis supplied).

It is trite to mention here that while interpreting a statute, the Courts defer to the legislative wisdom by adopting a construction which makes it effective and workable. This deference is essentially in light of the principle of Separation of Powers and in light of the accepted fact that the legislature represents the will of the people, and the Court cannot substitute such wisdom with that of its own, unless the legislation is impossible to sustain. The Division Bench, in its order of March 3, 2021 has not given any reasons why such Bill may be impossible to sustain. Despite the absence of these reasons, the Bench not only struck at the heart of the Bill of 2021, It also usurped the field reserved for the legislature by creating an Original jurisdiction where only a revisional jurisdiction existed, based on empirical data which has neither been verified nor debated upon the by the State Legislature. 

While the concerns with respect to putting a stay on a legislation have been raised on this blog earlier, the Allahabad High Court’s substitution of the legislative will with its own notions of expediency, and its pre-emption of the ineffectiveness of an Education Tribunal (which ultimately led to the abortion of the Bill in its infancy), has struck at the root of separation of powers enshrined in Article 50 of the Constitution of India. Not only does this order go against the judgment of the eleven judge bench in T.M.A Pai(supra), it also violates the Basic Structure of the Constitution. This sentiment was emphatically echoed by a Constitution Bench of the Supreme Court in the case of GVK Industries Ltd. v. ITO [(2011) 4 SCC 36 where it held that:

“34. […] One of the foundational elements of the concept of basic structure is it would give the stability of purpose, and machinery of Government to be able to pursue the constitutional vision into the indeterminate and unforeseeable future.

35. Our Constitution charges the various organs of the State with affirmative responsibilities of protecting the interests of, the welfare of and the security of the nation. Legislative powers are granted to enable the accomplishment of the goals of the nation. […] Consequently, it is imperative that the powers so granted to various organs of the State are not restricted impermissibly by judicial fiat such that it leads to inabilities of the organs of the State in discharging their constitutional responsibilities” (emphasis supplied).


Notwithstanding the fate of vires of the Bill of 2021, it is imperative that the March 3rd order of the Allahabad High Court not become precedent for future cases. This is essentially because the order gives power to any Court which is conscious of an ongoing legislative process, to injunct the same quia timet, and transgress into a field which has only been reserved for the Legislature under the Constitution.

Having said that, it is now upon the State to contest this petition (the status of which is still shown as pending) and it can only be hoped that the above order is rectified so that the separation of powers as envisaged by the Constitution is brought to fruition in letter and in spirit in the times to come.

Guest Post: Legislative Privilege and Competence – Facebook (and the Union of India) vs the Delhi Assembly)

[This is a guest post by Rahul Narayan.]

When the Delhi Assembly summoned Facebook honcho Ajit Mohan to depose before its Peace and Harmony Committee, it unwittingly provoked a litigation that may have far-reaching implications on Federalism, the Separation of Powers and Fundamental Rights in India.

Parliamentary privileges

Parliamentary Privileges are a set of rights and immunities that are essential for the functioning of Parliament. The right to free speech in the House, guaranteed to the Commons since 1688, and the right to call for evidence and witnesses, are central to the role of the legislature. In our Constitution, both Parliament and State Assemblies were conferred with the same privileges as the Commons. Apart from discussions about judges, no other speech is barred for legislators in the text of the Constitution. Unlike the devolved legislature of Scotland under Section 23 of the Scotland Act 1998, the power of discussion is not limited to fields where the state legislature is competent to legislate.

The case made by the Union of India is that legislative privilege is a function of legislative power. The Union relies upon several judgments of the Supreme Court to make this case- MSM Sharma, Keshav Singh, State of Karnataka v. Union of India, Kalpana Mehta and Raja Ram Pal. It is contended that since the Delhi Assembly specifically does not have power under items 1 and 2 of the State List, it has no privilege to call for witnesses or evidence apropos the same. The Union then goes on to argue that in “pith and substance” the inquiry by the Delhi Assembly relates to something beyond its powers under the Legislative Lists. It also argues that this is an “occupied field” by the Union and that accordingly the Delhi Assembly has no authority to call for witnesses in the present case.

The sequitur of the Union’s arguments is that the Delhi Assembly lacked the competence to call Ajit Mohan to depose before the Peace and Harmony Committee because they could not have passed a law on “peace and harmony” in Delhi- the powers to so legislate being with the Union Government. This logic also inexorably leads to the contention, though this has not been categorically stated, that State Assemblies do not have the competence even to discuss such issues since such discussions would be the sole preserve of Union Parliament.

On the face of it, as argued by the Union, Federalism imposes an insuperable challenge to the traditional broad reading of Parliamentary Privilege. The broader argument goes: Unlike the House of Commons, the powers of State Assemblies are more limited. If the State Assembly cannot pass a law on a subject, how can it claim a right to discuss it or call witnesses for it?

However, this framing is misleading. First, legislation is not the only goal of Assembly discussions. Legislatures also have a separate non-judicial power of inquiry which has been judicially regarded as being inherent to the Legislature, flowing perhaps from what Walter Bagehot would call the expressive and informative function of the House. Politically, the Assembly is the voice of the people of a State and their discussions are an expression of popular will. Atomic energy is the exclusive preserve of the Union. Does that mean a State Assembly cannot inquire into the possible ecological implications of a nuclear waste site within the State? Cannot State legislatures hear testimony from soldiers and pass resolutions to honour the armed forces? At least six States have passed resolutions against the Citizenship (Amendment) Act as affecting their people. Parliament may not be bound by discussions in State Legislatures but it is entirely reasonable to assume that discussions will have a persuasive value for them. 

Second, the Legislative Lists in Schedule VII frequently overlap and Courts resolve any conflict by adopting a test of pith and substance of the law in question. But how would this apply pre-emptively at the inquiry stage when the discussions may or may not lead to legislation? In fact it is also possible that the State Assembly may recognise that the discussions are not fruitful and end the same.

Third, we live in the era of co-operative federalism. How can the Union and the States cooperate if they are barred from even discussing or taking evidence on issues beyond their limited legislative competence? It must be remembered that the Constitution does not seem to envisage such strict limits. The union has the right to pass legislation on state subjects pursuant to international treaties or on the request of 2 or more states. States have been given the explicit right to discuss formation of new states or alteration of state boundaries even if they have no power to bind Parliament to their will.

Fourth, there is the delicate issue of whether the courts can or ought to sit in judgment on the proceedings of State Assemblies determining what can or cannot be discussed based on the courts’ view of the topic. As a “watchdog of the Constitution”, it is undoubtedly the role of the Court to uphold the federal separation of powers and fundamental rights, but this has never meant a wholesale intervention into legislative proceedings as would be needed to enforce any bars on discussions or witnesses in any legislative proceeding. In Keshav Singh’s case, the issue was the power of the State Assemblies to punish for contempt Judges who granted bail to a publisher who had allegedly been in contempt of the House. The issue was relatively clear cut and a bright line rule could be laid down- contempt of a House is an issue touching upon the fundamental rights of people and can, and must, be examined by the Courts. The fact situation presents a stark contrast with the present case. The Court here is faced with a claim that calling a witness is a fundamental right violation per se because the State Assembly lacks the legislative power to pass a law on the subject of inquiry. Calling witnesses to Assembly proceedings or Parliamentary proceedings is not a fundamental right violation per se, and arguments about the right against self-incrimination or right to silence don’t work as well merely at the stage of a summons for a non-judicial hearing. It would be startling if the Court were to hold that Parliament or State Assemblies have no right to call for witnesses to assist lawmaking, or inquiries based on the right to silence or the right against self incrimination. 

How is the court to interpret the discussions in a State Assembly to make a judgment about legislative power before a law that finally expresses the will of the house is passed? Consider that even recourse to Parliamentary discussions was verboten for the Courts for purposes of interpreting a law for the longest time. No theory of judicial review would justify such a deep dive into the “political thicket” to examine the proceedings of the House with a view to determining whether the discussion has a reasonable nexus with its legislative powers. Such an inquiry would also be in the teeth of the Constitution as judicial examination of proceedings in the house is something our Constitution expressly bars.

The judgments cited by the Union to support the argument that legislative power limits legislative privilege do not actually appear to do so. It seems clear that in the State of Karnataka judgment, what was argued was that the “powers” of the State Assemblies under 194(3) were argued to be inclusive of the sole right to judge for bribery of the CM and that the Grover Commission could  not have looked at the same. The Court rejected this argument holding that the State Assemblies had no right to conduct judicial or quasi-judicial inquiries under our Constitution or even in England. It is clear that the Court did not address the issue of legislative inquiries independent of quasi-judicial ones because it was careful enough to observe that the powers were “quite apart from its recognised powers of punishment for its contempt or the power of investigations it may carry out by the appointment of its own committees.”  

The experiences of Canada and Australia, both Common Law Federal jurisdictions, are also instructive. The Canadian chronicler Maingot hints about restrictions based on legislative competence but is careful to add that they are self-imposed, not court mandated. In Australia, the Privy Council in appeal from the High Court held that “it is hardly possible for a Court to pronounce in advance as to what may and what may not turn out to be relevant to other subjects of inquiry on which the Commonwealth Parliament is undoubtedly entitled to make laws”.

In 1397, Sir Thomas Haxey presented a petition criticising the household costs of King Richard II in Parliament and was punished for treason with his property seized. In 1399, the new King Henry IV reversed this judgment as being against the traditions of Parliament, recognising a privilege that was eventually crystallised in the Bill of Rights in 1688 from whence it travelled to the US, Canada, Australia, New Zealand and to India. The privilege is a landmark of liberty as it allows elected representatives to challenge the most powerful people of the land on behalf of commoners. This ancient tradition would be effaced if the court were to appoint itself an arbiter of legislative discussions. It is difficult to craft any discernible principle upon which such unprecedented power could be judiciously exercised without inhibiting free speech that is the hallmark of our legislative tradition.

Guest Post: Puducherry and the Aftermath of the Supreme Court’s Shivraj Singh Chouhan Judgment

[This is a guest post by Anmol Jain and Sayantani Bagchi.]

Frequent readers would recall that this blog had hosted an extensive discussion on the Supreme Court’s decision in Shivraj Singh Chouhan v. Speaker, Madhya Pradesh Legislative Assembly during April-May, 2020. In this case, the Court had upheld the gubernatorial exercise of discretionary power to direct a convening of the Legislative Assembly for holding a trust vote. Critiquing the decision, one of us had observed that the decision might facilitate excessive intervention on the part of the the Governor in the proceedings of the state Legislative Assembly and render the process of no-confidence motion nugatory. There were apprehensions that by exercising this power, Governors could easily override the entire process laid down in the Rules of Procedure and Conduct of Business of the respective Legislative Assemblies for conducting a no-confidence motion, and thus interfere with a process which primarily falls in the Legislature’s domain. After all, the Cabinet is accountable to the Legislature and not to the Governor. Unfortunately, the current political impasse in Puducherry reminds us of something similar.

Over the last few days, a few Congress MLAs have resigned from the Puducherry Legislative Assembly, bringing the government below the majority mark. This prompted the Leader of Opposition to approach the LG and request for holding a trust vote. On February 18, 2021, the Lieutenant General (LG) acceded to their demands and issued a Press Release summoning the Assembly to meet on February 22, 2021, for a single agenda – to determine ‘whether the government of the incumbent Chief Minister continues to enjoy the confidence of the House’. Interestingly, apart from quoting her power to summon the Legislative Assembly under Section 6 of the Government of Union Territories Act, 1963, the LG also identified the Supreme Court’s decision in Shivraj Singh Chouhan as the source of her authority to issue the said directions. As the Court had stated in its decision:

“…there may be situations where the House is not in session, having been prorogued, and there arise circumstances leading the Governor to a reasonable belief that the government has ceased to command a majority in the legislative assembly. This, in our view, would certainly be one of the situations where the Governor would be justified in calling for a special session in the course of which the incumbent government may be required to establish that it continues to hold the confidence of the House.”

In this background, we reiterate that allowing such interference by centrally appointed Governors in the legislative business could heavily impact the primacy of the legislature in holding the Executive to account through a no-confidence motion. Rule 257 of the Rules of Procedure and Conduct of Business of the Pondicherry Legislative Assembly, 1966 (see page 227) envisages an extensive procedure for the conduct of a no-confidence motion against the incumbent Council of Ministers (CoM). It also establishes important thresholds that the opposition parties must meet before any discussion on the no-confidence motion can be taken up by the assembly. It provides that after a motion expressing want of confidence in the CoM is properly presented to the Speaker, the Speaker ‘shall read the motion to the House and shall request those members who are in favour of leave being granted to rise in their places, and, if not less than one-fifth of the total number of the members of the house rise accordingly, the Speaker shall intimate that leave is granted’. Moreover, Rule 257 also circumscribes the power of the Speaker to check its abuse. It mandates that the no-confidence must be taken up by the Speaker within 10 days from the date on which the leave is granted. By allowing the Governor to replace this entire legislative process with a single stroke of a pen, the Court has undermined, in Gautam’s words, ‘the sovereignty of the legislature to determine the proceedings within the house.’

Once we dispute the active role of Governors in this exercise, naturally a question would arise – what should be the role of Governors when they perceive that the incumbent CoM has lost the majority in the house? First of all, if Governors are given the responsibility to determine if the incumbent CoM has lost the confidence of the house, then there would always be questions about the correctness of such determination. Should the Governor rely on the signatures by enough number of MLAs opposing the CoM or should there be any other method? How should the Governor satisfy himself of the veracity of such signatures? Therefore, any answer that gives a prominent role to the Governors in this exercise wouldn’t be devoid of concerns of arbitrary actions on her part.

In such a scenario, we suggest that the role of the Governor in this exercise must be minimal and restricted to merely summoning the assembly. In case the incumbent CoM wishes to move a confidence motion in the assembly, the Governor must simply exercise his power to summon the assembly with the advise of the CoM. However, when there are apprehensions that the incumbent CoM has lost the confidence of the house and the opposition parties wish to move a no-confidence motion, the Governor must not direct anything apart from summoning the assembly for a special session. In this situation, if the CoM advises anything contrary to the Governor, she must reject the same to uphold the larger principle that the executive must always remain accountable to the legislature. Once the assembly is summoned, the opposition parties would be able to move a no-confidence motion under the Rules of Procedure and Conduct of Business of the assembly and exercise their power to hold the executive accountable. In this manner, both the principles – the executive’s accountability to the legislature and the legislature’s sovereignty to determine the proceedings within the house – could be secured. 

Adopting this legal reasoning would not only reduce the interference of Governors but also help the case of those opposition parties which have to face Governors appointed by a different party (See, for instance, the case of Congress in Haryana). As such Governors would be reluctant to summon the assembly, imposing a mandate upon them to compulsorily summon the assembly when opposition parties wish to move a no-confidence motion would further strengthen the principle of continued parliamentary oversight over the executive.        

Contesting State Power

We are firmly in the midst of a new narrative being written. A new narrative that touches all aspects of Indian society, from the historical to the sociological, informational, and inevitably, the constitutional. This post examines one proposition of our new Indian narrative – that the power exercised by a validly elected government should not be contested. At its core, this position consists of two elements: (i) the actions of such a government represent the will of the people; and (ii) when in power, the elected representatives of such a government claim sole authorship over the Indian polity – other groups will have their chance at authorship (if) and when they are elected.

In this post, I question these twin assumptions from the perspective or republican self-government. I argue that for a State to be legitimate, it must create a system of popular control where ‘the people’ are the ultimate arbiters of the efficacy of a government. Elections and ‘the will of the people’ are insufficient controls. Rather, what is required is a system of contestation on every site of public-decision making. I seek to demonstrate how despite elections, contestation by ‘the people’ is not an inconvenience to be tolerated, but a vital control on State power that ensures the continued legitimacy of the State as a whole. I end by briefly commenting on the outer limits of contestation, the case of unjust laws and the fraying legitimacy of the State.

The role of the State

States exist to coordinate a community’s behaviour and achieve a better life for the community’s members (e.g. we all drive on the same side of the road, allowing us to drive more safely). At its most basic, a State may protect its members from external threats. People band together on a patch of land for geo-strategic reasons and determine who is worthy of protection. Long before the Indian Constitution talks about rights or principles, it talks land, territory, and citizenship (Art. 1 to 11). Once these primal concerns are addressed, members begin to fine tune their State to better their lives vis-à-vis each other. See Articles in the Indian Constitution attacking centres of dominating private power such as gender, caste, and religion.

To achieve these goals, the State must be empowered to take action. As citizens, we want the State to have the power to protect our borders, we want the State to exercise coercive power to dismantle the inequalities of gender, caste, and religion. However, empowering the State raises a parallel concern – will the State itself become a source of unfreedom? State power when exercised for private or factional interests can be detrimental to the members of a political community. This dilemma lies at the heart of constitutional law. As James Madison summed it up, “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself” (Federalist 51). Madison responds to the dilemma in his very next line – “A dependence on the people, is no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

Before addressing ‘the people’, a word on ‘auxiliary precautions’: these are design choices to restrain State power and thus lower the risk of it being manipulated. The two most pertinent being the rule of law and the dispersal of power. Legislating in a principled and general (not particularistic) manner and ensuring laws apply equally to all guards against State power being used in a factional or private interest. This is why selective (‘political’) prosecutions or discriminatory legislation are intuitively inimical to us as citizens, because the coercive power of ‘our’ State is being manipulated. Further, States typically disperse power to limit the ability of any one authority drastically restricting a citizen’s freedom. See checks and balances across branches of government, bicameralism, and federalism as other classic examples of breaking up power.   

Control by ‘the people’

However, as Madison noted, ‘the people’ form the primary control on government. The ability of citizens (as a collective) to continually ensure that the coercive power of the State is being employed for their benefit forms a background justification for tolerating the authority of the State. In other words, the State must prove to be acting in the interests of citizens, else it must be abolished.

As Akhil Amar notes, long before the American second amendment protected individual gun enthusiasts, it enshrined a distrust of large standing armies who may not act in the citizens’ interests (see Myanmar in 2021). The American founders firmly believed that a real republic should be guarded by its own citizens, far more reliable than a motley band of outsiders armed to the teeth. Vesting control with citizens means granting them the power to “alter or abolish the established Constitution, whenever they find it inconsistent with their happiness”. A blog post is not the place to discuss the varying textures of the Indian constitution, but our framers were not blind to the need the State to track the well-being of citizens; see the adoption of universal suffrage, parliamentary accountability, and the nexus between the inviolable right of individuals to approach courts (Art. 32), and the power of courts to strike down a broad range of State action (Art. 12 & 13).

The other side of this coin is that where citizens are controlling the State to act in their interests, citizens have a corresponding obligation to obey its general authority (more on this later). But how do we determine whether the State is acting in the interests of the citizens, especially as reasonable citizens can disagree over what constitutes the citizen’s interests in a plural society? And does obeying the general authority of the State mean accepting its every decision?

Contesting Specific Actions

States represent a compromise between the individual and the community. Individual agency sometimes must give way to facilitate coordination (e.g. for all of us to drive safely, I forgo the right to drive on whichever side of the road I choose). However, correspondingly, the State must recognise the claims of individual and groups to autonomy and opinions. One understanding of how this achieved is consent to government action – individuals consent to their autonomy being limited on specific sites. But as Philip Pettit notes,

If explicit individual consent is required, non-arbitrariness in public decision-making becomes an inaccessible idea. If implicit consent is thought to be enough, and an absence of protest is taken as evidence of implicit consent, then non-arbitrariness in public decision making becomes an idea so accessible as to be empty.”      

Philip Pettit, ‘Republicanism: A Theory of Freedom and Government’ (1997).

Within our democratic framework, one solution to this quandary is contestation. More specifically, when citizens or groups disagree with specific actions of a State (usually through its elected government), they have a right to contest this action. At every site of public-decision making, individuals and groups must be capable of raising questions as to whether government action involves the appropriate considerations to further the citizen’s interests. Although elections are a form of contestation, elections alone represent a far too intermittent and imperfect method of popular control (especially in the age of powerful political parties and an anti-defection regime). Thus, elections are not the exclusive form of citizen control. Transparency in government decision making (facilitative), the right to information (facilitative), public consultations as part of Environmental Impact Assessments, jury trials (before they were abandoned), challenging State action in courts, parliamentary sub-committees, parliamentary debate itself, and finally public protest are all institutionalised forms of contestation that ensure State power is continually used for ‘the people’. As Pettit notes,

The self-ruling demos or people may often run on automatic pilot, allowing public-decision making to materialize under more or less unexamined routines. But what makes them self-ruling is the fact that they are not exposed willy-nilly to that pattern of decision making: they are able to contest decisions at will and, if the contestation establishes a mismatch with their relevant interests or opinions, able to force an amendment.”

Philip Pettit, ‘Republicanism: A Theory of Freedom and Government’ (1997).

(Unfortunately, the systemic weakness of many of these forms of contestation has left Indian citizens with few options to retain control over the government other than taking to the streets.)

This stands in stark contrast to populist reasoning that the elected representatives are the sole authors of a nation’s fate. What emerges is system where an elected government has a mandate to act in the citizens best interests, and individual and groups operating through various inflection points within our constitutional democracy keep them honest to this goal. The process of contestation attempts to bridge the all-important gap between individual/group autonomy and the needs of the collective by arriving at a compromise where neither is unduly subordinated. Perfect consensus may not always emerge, but the process of contestation ensures that an individual’s/group’s autonomy is not supressed for the sole reason that its views are at variance with an elected government or ‘popular will’. Rather, compromise is achieved based on publicly-defensible norms.

How should the State be contested?

Recall that where a State is legitimate and generally pursues the citizens interests, citizens have a corresponding obligation to obey the State. How do we square this with the above discussed right of citizens to contest the actions of the State? Simply put, I can continue to respect my State’s general authority while still challenging the exercise of the State’s specific authority. The framers of our Constitution were all too conscious of this crucial distinction. For example, in explaining why the offence of sedition should be scrapped, Ananthasayaman Ayyangar distinguished ‘an attack on the government’ from ‘the entire State being overthrown’ (See Bhatia, ‘Offend, Shock and Disturb’). The former could never be criminalised because, in systems of self-government (which India was about to become), the people’s right to argue that government action was not in the interests of citizens is inherent and a vital control on State power. Based on this rationale, the bar for sedition is not even that seditious speech may lead to violence (this can be dealt with by ordinary criminal law), but rather that the speech must advocate the overthrow of the State itself – i.e. contest its general authority.

It follows that even beyond the institutionally recognised methods of contestation, a citizen’s right to contest specific actions of elected governments continues insofar as they do not contest the general authority of the State itself. This may include breaking a law citizens view as unjust. For example, Pettit notes that the member of a civil disobedience movement may break a perceivedly unjust law but still accept the authority of the State to prosecute and the courts to judge them. When the authority of the State is divided into general and specific, and contestation is understood not as an inconvenience, but as inherent to self-government, the hollowness of a particular grammar of patriotism is laid bare – most notably the use of the term ‘anti-national’ to those critical of a government, or the flagrant use of the sedition provision. 


To recap, in a system of self-government, citizen control over State power forms the background justification for obeying the State’s laws. Viewed from the perspective of autonomy, we are willing to tolerate our loss of autonomy if the State (through its coordinating power) grants us even more autonomy by furthering our interests. In addition to the rule of law and dispersal of power, citizen control is not achieved not solely by electing representatives, but rather through a system of public decision making that allows citizens to contest the specific authority of the State on various sites. Crucially, elections are not an infinite mandate to exercise the coercive power of the State but a conditional power. At any point, the demos may rise up and contest. Where citizens do contest, they may do so through institutional means or even by breaking the law and suffering the penalty. But in a legitimate State they must continue to respect general authority (i.e. not advocate the overthrow of the entire state).

This last point must be caveated given our present circumstances. The overall legitimacy of a State is always a matter of degree. It is therefore possible that that within a largely legitimate State, actions may be taken that “breach the conditions of legitimacy that the regime generally respects”. For example, Tarunabh Khaitan’s recent paper (here) distinguishes between actions that may ordinarily be taken by an elected government and actions that debase liberal democratic constitutionalism itself. Where the fabric of the State itself is changed to rob citizens of continued control, the State may lose a degree of legitimacy and should be prepared for challenges to its general authority.

Note: The intention of this post was solely limited to highlighting the contestatory tenets that underlie our system of self-government and rebutting arguments on the dispositive nature of elections. Readers interested in the comprehensive scholarly accounts of contestatory democracy and republican self-government may refer to: (i) Pettit, ‘Republicanism: A Theory of Freedom and Government’; (ii) Pettit, ‘On the People’s Terms’; (iii) and Raz, ‘The Morality of Freedom’ (on the political obligations of citizens).

Safoora Zargar and Disha Ravi: A Tale of Two Bail Orders

The order granting bail to Disha Ravi in a sedition case is remarkable not so much because of its outcome, but because of the short shrift that it gives to the State’s hysterical accusations of conspiracy-by-Google-Docs. In ordinary circumstances, this would not be remarkable either – judicial skepticism towards the State’s claims of far-reaching conspiracies to justify keeping people in jail, when there exists no evidence linking them to actual violence, should be par for the course. However, that has conspicuously not been the case in recent times, at all levels of the judiciary. Consequently, what makes the bail order remarkable is how (sadly) uncharacteristic it is. Indeed, the order stands in stark contrast to the order of 4th June 2020, that denied bail to Safoora Zargar, in what have come to be known as “the Delhi Riots cases.” A comparison between the two, therefore, merits scrutiny.

In the aftermath of Disha Ravi’s bail, it did not escape public attention that both orders were handed down by the same judge. It is important to clarify, however, that the purpose of this post is not to serve up some kind of a gotcha! conclusion, or point to judicial hypocrisy. As all human beings, judges themselves evolve over time and reflect on their own judgments and orders, and one can hope – in light of yesterday’s order – that future cases before the same judge would follow his more recent convictions on liberty, free expression, and skepticism of State power, rather than his older ones. The comparison is merited, however, the underlying State case in both circumstances was remarkably similar (and indeed, appears to be following a specific legal “toolkit”, if one may use that word), and the verdicts in both cases reflect two starkly opposed judicial approaches to the question of personal liberty.

Admittedly, there is a significant legal difference between the two cases, in that while Disha Ravi was “only” accused of sedition, Safoora Zargar was booked under the UAPA, whose Section 43(D)(5) throws up significant barriers to granting bail, barriers that have been made worse by the Supreme Court’s notorious Watali judgment. A perusal of the two bail orders reveals, however, that in this context, the distinction is largely irrelevant. Even though Disha Ravi’s counsel specifically argued that sedition is a milder offence that – even on conviction – allows judges to levy only a monetary fine by way of sentence, this did not form the basis of the bail order. Even the classic bail conditions – whether the accused is a flight risk, and whether the accused can tamper with the evidence or the witnesses – occupy only a small space in the Disha Ravi bail order; for the most part, the learned ASJ focuses on whether, on the facts presented by the Prosecution, a prima facie case of sedition is made out or not (and finds that it isn’t). This is exactly how he proceeded in the Safoora Zargar case – and indeed, under 43(D)(5) of the UAPA, bail can be granted if no prima facie case has been made out.

This is where the similarities between the two cases become important. In both cases, there were certain incidents of violence. Neither Disha Ravi nor Safoora Zargar had engaged in violence, been present at the scene of the violence, or incited violence (there were vague claims that Safoora Zargar had given “inflammatory speeches”, but these were not adverted to by the Court, and did not form part of its order). For this reason, in both cases, the Prosecution attempted to pin the actions or speeches of others onto the accused, by alleging the existence of an overall conspiracy, of which the accused were a part.

How did the Court deal with this? In Disha Ravi’s case, it very correctly noted that “conspiracy cannot be proved merely on the basis of inferences. The inferences have to be backed by evidence” (para 22). Dealing with the Prosecution’s contention that Disha Ravi was in contact with secessionists, the Court then noted:

“… it is not mere engagement with persons of dubious credentials which is indictable rather it is the purpose of engagement which is relevant for the purpose of deciding culpablity. Any person with dubious credentials may interact with a number of persons during the course of his social intercourse. As long as the engagement/interaction remains within the four corners of law, people interacting with such persons, ignorantly, innocently or for that matter even fully conscious of their
dubious credentials, cannot be painted with the same hue. In the absence of any evidence to the effect that the applicant/accused agreed or shared a common purpose to cause violence on 26.01.2021 with the founders of PJF, it cannot be presumed by resorting to surmises or conjectures that she also supported the secessionist tendencies or the violence caused on 26.01.2021, simply because she shared a platform with people, who have gathered to oppose the legislation.” (para 22)

Now this is entirely correct, and follows a long line of Supreme Court precedent that has clarified that if you’re going to damn someone by association, it has to be active association (in UAPA cases, active membership of banned organisations). This is crucial, because without limiting the chain of association, just about anyone who has ever shared a platform or interacted in any form with any dubious individual can be brought into the net of criminality through the legal device of a “conspiracy”, and incarcerated for years without trial. But this is also what the Court very conspicuously did not do Safoora Zargar’s case; in fact, in that case, the Court said:

“Further, even if no direct violence is attributable to the applicant/accused, she cannot shy away from her liability under the provisions of the said Act [UAPA]. 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.”

But this is precisely the endlessly extendable guilt-by-association doctrine that the Court (correctly) rejected in Disha Ravi’s case. Safoora Zargar was damned specifically for (allegedly) having associated with people who engaged in violence, without any evidence against her – either by way of commission of violence, or by way of incitement. In Disha Ravi’s case, the Court (correctly) insisted that allegations of conspiracy require evidence, and found evidence lacking, as there was no common intention and no proof of anything beyond allegations of mere association; in Safoora Zargar’s case, the Court began by accepting the allegations of conspiracy, and then, on that basis, imputed the actions of some of the alleged conspirators to Safoora Zargar as well, because of their mere association. Ultimately, the issue boils down simply to this: in one case, the Court insisted that the State back up its claims against the specific, criminal culpability of an accused, including as part of a larger conspiracy; in the other case, it didn’t.

The difference in the two approaches is particularly stark on the key legal issue of the relationship between disaffection in violence. In Disha Ravi’s Case, after citing the judgment in Kedar Nath Singh, the Court noted:

Evidently, law proscribes only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. ‘Violence’ seems to be the gravamen of the charge. (para 20)

In Safoora Zargar’s case, after citing the judgment in Kedar Nath Singh, the Court noted:

Therefore, evidently, law frowns upon any act which has a tendency to create disorder or or disturbance of law and order or incitement to violence. Therefore, mere violence is not the gravamen of the charge under u/s 2(o) of the UAPA.

The substitution of the word “any” with “only”, and the removal of the word “not” led the Court to a 180-degree turn, when considering the same judgment (Kedar Nath Singh) and the same legal term (disaffection, albeit in different laws). The distinction is crucial, because how strongly the Court requires the causal link to be established between the accused and the act of violence is the fact upon which everything else turns. Disha Ravi was (correctly) granted bail because the Court asked for evidence. Safoora Zargar was (wrongly) denied bail because the Court relied on a metaphor.

As I clarified at the beginning, the point of this post is not to play gotcha! games; at the same time, inconsistency in judicial pronouncements in matters relating to personal liberty presents a serious challenge to the rule of law. The Disha Ravi case shows that notwithstanding the Supreme Court’s Watali judgment, it is entirely possible for a trial Court judge to examine the basics of the State’s “conspiracy” claim, and find them utterly lacking in evidence or particulars, thus completely breaking the chain of causation between the accused and the act of violence. All it needs is a dose of judicial skepticism, some probing questions, and clarity on the legal position that whether it is sedition of the UAPA, violence (and incitement thereof) is the gravamen of the charge, and even the Prosecution’s prima facie case requires to pass at least that basic threshold before the bar under 43(D)(5) is invoked. If that is done consistently, then we will have no more Safoora Zargar cases, and no more imprisonment by metaphor.

Vikash Kumar v UPSC: An Important Judgment on Disability and Reasonable Accommodation

Editor’s Note 1Posts about the contemporary Supreme Court may be read in the context of the caveats set out in this post (link).

Editor’s Note 2: 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 (link) 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)].

On the 11th of February, a three-judge bench of the Supreme Court handed down an important judgment in Vikash Kumar vs Union Public Services Commission. The Appellant was a civil services aspirant who suffered from writers’ cramp. However, his application for writing the Civil Services Examination with the assistant of a scribe was rejected by the UPSC, on the basis that he did not have a “benchmark disability”, as defined by the Persons With Disability Act, 2016 (in this case, limited to blindness, locomotor disability, or cerebral palsy, to the extent of 40%). On a perusal of the relevant rules and the Government Office Memorandum issued by the Ministry of Social Justice and Empowerment, the Court found that while individuals with a benchmark disability were entitled to a scribe, those individuals who did not fall within those categories could also be allowed to have one, in the event that they could produce a certificate to that effect from an approved government institution. Indeed, while the UPSC argued in Court that it was not permitted to deviate from the rule of benchmark disability in allowing for a scribe, the Ministry of Social Justice itself observed that there did exist non-benchmark disabilities that could significantly hamper writing ability. The Court then found that this was buttressed by the statutory policy as well: the PwD Act had a separate category for benchmark disability, that was limited to the issue of reservations; it was therefore unwarranted to deny other rights to the residual category of non-benchmark persons with disability. As Chandrachud J., writing for the Court, observed:

The second concept which is embodied in Section 2(s) is that of a person with disability. Section 2(s) unlike Section 2(r) is not tagged either with the notion of a specified disability or a benchmark disability as defined in Section 2(r). Section 2(s) has been phrased by Parliament in broad terms so as to mean a person with a long term physical, mental, intellectual or sensory impairment which in interaction with various barriers hinders full and effective participation in society equally with others. (paragraph 26)  

Having established that the mere absence of a benchmark disability was not sufficient cause to deny the appellant the benefit of a scribe, the Court then went on to engage with the statutory purpose of the PwD Act. The Court noted that the purpose of the PwD Act was to deepen the social commitment to equality, and impose positive obligations – both upon the State and upon the private sector – to ensure that its objectives were fulfilled. For this reason, as an interpretive matter, limiting certain rights ipso facto to persons with a benchmark disability was clearly contrary to the statutory purpose:

Except in the specific statutory context where the norm of benchmark disability has been applied, it would be plainly contrary to both the text and intent of the enactment to deny the rights and entitlements which are recognized as inhering in persons with disabilities on the ground that they do not meet the threshold for a benchmark disability. (paragraph 41

Next, the Court considered the concept of reasonable accommodation, at the heart of the PwD Act. The Court noted that, in accordance with the PwD Act, disability was primarily a social construct, in the sense that the barriers imposed upon disabled individuals were because of the way society constructed itself, with a certain concept of able-ness as the norm (a good example of this is the use of stairs – and not ramps – as default structures to connect levels within a building). Consequently:

The principle of reasonable accommodation acknowledges that if disability as a social construct has to be remedied, conditions have to be affirmatively created for facilitating the development of the disabled. Reasonable accommodation is founded in the norm of inclusion. Exclusion results in the negation of individual dignity and worth or they can choose the route of reasonable accommodation, where each individuals’ dignity and worth is respected. Under this route, the “powerful and the majority adapt their own rules and practices, within the limits of reason and short of undue hardship, to permit realization of these ends.” (paragraph 45)

Chandrachud J. made four important points about the principle of reasonable accommodation, as set out under the PwD Act: first, it was an individualised principle, which meant that the needs of individuals would have to be considered on a case-by-case basis; secondly, as the purpose of the PwD Act was to advance equality, the burden would lie upon the entity denying reasonable accommodation, rather than the one seeking it; and thirdly, the obligation was immediate in nature – i.e., the right to reasonable accommodation was directly enforceable, and not subject to gradual or incremental fulfilment; and fourthly, reasonable accommodation required meaningful dialogue – or engagement – with the affected individual to determine how best to overcome the barrier in question (paragraphs 44 – 46). Each of these is a crucial interpretive finding in the context of the PwD Act, and the consequences remain to be worked out in the fullness of time.

Importantly, the Court also noted that its 2019 judgment in V. Surendra Mohan v State of Tamil Nadu, which had been severely criticised for its refusal to allow a visually disabled person from becoming a judge, was no longer good law, as it failed to take into account the principle of reasonable accommodation. In particular, Chandrachud J. observed:

By definition, reasonable accommodation demands departure from the status quo and hence ‘avoidable complications’ are inevitable. The relevant question is whether such accommodations would give rise to a disproportionate or undue burden. (paragraph 54 )

Two important inferences follow from this. First, the kind of situation that was upheld as lawful in Mohan – where a blanket 50% visual impairment bar was imposed on qualification for judicial service – would be ipso facto unconstitutional, as it would make reasonable accommodation – in its individualised component – unenforceable; and secondly – other then the evidentiary burden lying upon the entity (State or private sector) denying reasonable accommodation, the legal standard to be met would be that of showing that reasonable accommodation would cause an “undue” or “disproportionate” burden. While this legal standard doesn’t entirely address the basic issue of a world where the norm is that of able-ness (because, by allowing denial of accommodation in “undue burden” cases, it retains able-ness as the norm), it goes some way towards doing so – and much will depend on how future judges interpret the term “undue burden.”

In conclusion – and in this specific case – the Court rejected the Union government’s arguments of potential misuse (using the striking analogy that the solution to copying in an exam using “chits” was not to impose a dress code that would make it impossible for some people to write the exam altogether), directed that the Appellant be allowed a scribe, and also directed the Ministry of Social Justice and Empowerment to frame guidelines on the issue of scribes, taking into account the individualised character of reasonable accommodation.

Vikash Kumar marks the Supreme Court’s first serious engagement with the concept of reasonable accommodation under the PwD Act, and sets out some important principles to help ensure that the Act can fulfil its role in advancing substantial equality under the Constitution. It lays a strong and durable foundation for future cases to build upon.

Guest Post: Union of India v K.A. Najeeb – a Ray of Hope for UAPA Undertrials?

Editor’s Note 1Posts about the contemporary Supreme Court may be read in the context of the caveats set out in this post (link).

Editor’s Note 2: 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 (link) 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)].

[This is a guest post by Bharat Harne.]

The Supreme Court (SC) on 1st February 2020 delivered an important judgment, Union of India v KA Najeeb (K.A. Najeeb), related to granting of bail in Unlawful Activities Prevention Act  (UAPA) 1967 cases. The Court held that any constitutional court has the power to grant bail to people accused of offences under UAPA irrespective of Section 43-D (5), so as to enforce the right to speedy trial which is guaranteed under Article 21 of the Constitution.  The judgment has been hailed as the step in the right direction, given that the stringent provisions of Section 43-D (5) makes it almost impossible for a person to secure a bail for an offence under UAPA and under-trials languish in jail while the trial drags on for years. In this post I will highlight the importance of the judgment in the context of the operation of UAPA on ground and will try to answer some of the questions which K.A. Najeeb has thrown up.

UAPA – A Tool of Oppression

 The UAPA creates an alternate criminal justice system where the Code of Criminal Procedure (CrPC) does not apply and there are little safeguards for the accused. Empirical research has shown that two-thirds of the accused end up getting acquitted. However, the criminal trial drags on for years and most of the accused end up serving significant amount of time in jail before the trial concludes. This is primarily because of Section 43(D)-5 of the UAPA. According to Section 43(D)-5 a person accused of an offence under UAPA cannot be released on bail if, on a perusal of case diary or the report made under s. 173 of CrPC, the court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. Notice that the standard of prima facie is extremely low. In NIA v Zahoor Ahmad Shah Watali held that the to satisfy the standard of prima facie no elaborate scrutiny or dissection of the material is required. Simply put, the court merely has to rely on the words of the investigating agency and see whether the allegations fit the offences. In view of such stringent bail provisions and lengthy trials there was no way for undertrials to get bail even though they ultimately they might end up getting acquitted. Thus, an accusation under UAPA becomes as good as conviction and a way for the State to punish people without subjecting them to a fair trial.

The lack of any interim relief paved the way to a particularly odious practice i.e., informal plea bargaining. Since undertrials languished in jails for years and years they end up serving a significant portion of the sentence of the crime they are accused of even before the trial has concluded. This leads to the accused reaching an informal arrangement with the prosecutors wherein the former plead guilty, resulting in a conviction that is usually for the period already served as undertrial or a reduced sentence. It is not unlikely that quite a few accused who were actually innocent pleaded guilty just so that they can get out of prison. The fact that a person is forced to plead guilty for a crime that they did not commit is illustrative of how UAPA is doing grave injustice to the accused and violating their right to liberty.

It is in this context that the decision of the SC becomes very important. The court has held that bail can be granted to an undertrial irrespective of Section 43-D (5) of the UAPA if the court finds that right to speedy trial under Article 21 is being violated. In the instant case the accused had spent nearly five years in prison out of maximum 8-10 for which he could potentially get convicted. Moreover, 276 witnesses who were left to be examined when the matter came before the SC. It held Section 43-D (5) is not a bar when right to speedy trial is violated and accordingly granted bail in this case. The decision of the court is welcome, however the decision itself has opened up a few questions which I will now explore.

A Few Concerns

First, it is not exactly clear what is the standard used by the Court to arrive at the finding that right to speedy trial has been violated. The court seemed to have been led by two considerations – a) the period of time spent in jail and b)- the possibility of early conclusion of trial. With respect to the first condition the accused had spent five out of the maximum of 8-10 years for which he could be convicted. However, the court stopped short of giving any principled reasoning which could be used in future cases to decide whether the right to speedy trial has been violated. Currently s. 436A of CrPC (which does not apply to UAPA) states that if an accused has spent half the period of time out of the maximum period of punishment specified for that offence, the accused has to be released on bail. This provision was not a part of the original CrPC and was added in 2005. Although the Statement of Object of Reasons to the CrPC amendment does not talk about s. 436A, the rule of giving bail on spending half the time specified for that offence is prison emerges out of the jurisprudence of SC in cases concerning right to speedy trial. In Hussainara Khatoon v Home Secretary, State of Bihar (which laid the foundation of right to speedy trial)- the court observed how several undertrial prisoners has spent more than one half of the maximum punishment of which they could be convicted. The court directed the government to appoint lawyers for such undertrials and file an application for bail. In Supreme Court Legal Aid Committee v UoI, another case dealing with right to speedy trial, the court issued a number of directions with respect to pending cases. One such direction was to release those undertrials who were accused of an offence under NDPS Act carrying maximum punishment of five years or less and have spent time in jail which is not less than half the punishment provided. It was only after this line of cases that s. 436A was added to the CrPC. It can be safely be assumed that the legislature was inspired by jurisprudence on right to speedy trial. It is therefore submitted that the rule contained in s. 436A of CrPC i.e., half the maximum punishment as undertrial can be a good standard for UAPA cases where the right to speedy trial is being prayed because the source of this rules itself is jurisprudence on right to speedy trial. If not as a fixed rule, it should at least give a presumption that the right to speedy trial has been violated and then the burden should shift on the state to justify continued detention.

Second, the court also took into consideration the time which it would take to conclude the trial. The court was of the opinion that in the present case since 276 witnesses were yet to be examined the trial will take long to finish and the accused ought to be released. It will be noticed that in the present case the court is concerned with a particular stage of criminal justice process, i.e., trial. However, it is well settled that right to speedy trial extends to all stages including investigation, inquiry, trial, appeal, revision and re-trial. In the context of UAPA it is important to pay attention to one particular stage i.e., investigation. This is because the NIA which is India’s anti-terror agency deliberately slows the investigation to keep the accused in prison for as long as possible. This is done by filing chargesheets and supplementary chargesheets with long gaps, which ensures that the trial is kept in suspended animation and the accused is in prison. This is especially done when the agencies know that their case is weak and will not stand a trial. This strategy has been adopted by the agencies in Delhi Riots case and Bhima Koregoan case. In both these cases the accused have been mostly denied bail. Since the right to speedy trial includes the stage of investigation the courts in the future will have to take this reality into account and expand the scope of SC’s decision in K.A. Najeeb. The SC’s jurisprudence on speedy trial and long period of investigation itself does not inspire much hope. In Rahubir Singh v State of Bihar the police of Bihar were accused of delaying the investigation to keep the accused in jail at any cost. The accused were a group of people caught while they were secretly attempting to cross the Indo-Nepal border at the height of Sikh militancy in 1984. It turned out that one of the persons was himself suspended from Indian Police Services for his anti- India activities. The court observed that the investigative agencies were justified in extending the investigation because the case involved ‘suspected conspiracies bristling with all manners of complexities’ and therefore even though there were ‘lulls’ in investigation it cannot be said that right to speedy trial was violated. While these considerations might have been true in that case, it is well known that arguments of ‘national security’, and ‘conspiracies involving complex investigation’ are a slippery slope to giving the executive free hand to trample on the liberties of its citizens. This exceptionalism might well play a role in future cases because the UAPA itself deals only with such suspected conspiracies and threats to national security and the Indian judiciary is notorious for buying into such arguments of ‘national interest’ and ‘national security’ too easily.

Third, India’s bail jurisprudence is notoriously inconsistent and discriminatory. For example, the MP High Court did not even apply the well settled principles of bail law in Munawar Faruqui case and inexplicably relied on Fundamental Duties to deny bail. Similarly, while bail was granted to Arnab Goswami in Article 32 petition because the courts thought the police was misusing its power, journalist Siddique Kaplan is languishing in jail and his Article 32 petition was rejected and when Arnab Goswami case was cited, it was simply remarked that every case is different. If constitutional courts fail to apply even well settled principles of bail law to regular cases, only time will tell how K.A. Najeeb will be applied in the future especially because the judgment does not even lay down any concrete principle on which bail is to be given and therefore remains susceptible to inconsistent and unprincipled application.


K.A. Najeeb has the potential to remedy injustice that is caused by stringent bail condition under s. 43-D(5) of UAPA.  However, this potential can be realized only if there is principled application of the judgment. In K.A. Najeeb the court relied on two considerations the period of time in jail as undertrial and the time left for conclusion of trial in order to determine whether right to speedy trial was violated but failed to specify any principled rule to decide future cases. In this post firstly, I have argued how the law can take shape in the future firstly showing how the rule in s. 436A of the CrPC can be a good indicator if not a brighline rule for violation of right to speedy trial; secondly, I have argued that the courts need to take into account the delaying tactics used by investigative agencies to effectively enforce right to speedy trial. In conclusion it is submitted that only if we have some settled principle based on which bail can be given in UAPA cases can we hope to effectively enforce right to speed trial and remedy the injustice caused by UAPA.

Guest Post: From Foreigners Tribunal in Assam to Justice Pushpa Ganediwala – A Question of Decisional Independence?

[This is a guest post by Talha Abdul Rahman.]

Reportedly, in Assam’s Foreigners Tribunal, the renewal of annual contract of its Members depends upon the ‘conviction rate’. In other words, it means that if the members of the Foreigners Tribunals declare a higher number of persons as foreigners, higher are their chances of being retained on their posts.  Elsewhere,  I have criticised Foreigners Tribunals in Assam for a variety of reasons, including being an affront to decisional independence.

‘Decisional Independence’ is a facet of ‘independence of the judiciary’ where every individual judge is (expected to be) insulated from external forces that may influence her decisions. This includes factors that may move her conscience to please the Government or a party to the litigation. As a doctrine, this even requires a judge to be able to think and apply her mind independently from other judges on the bench.  Thus, when members of the Foreigners Tribunals are expected to have a certain ‘conviction rate’ just to be able to remain in employment or are expected to please the body ‘supervising’ their function, it naturally means that their decision making process lacks the required hallmark – independence. This fear of ‘reprisals’ for deciding cases according their conscience denudes the legal system of its legitimacy.

The situation of a member of the Foreigners Tribunal whose contract is not renewed and the situation of Justice Pushpa Ganediwala whose judicial appointment to be made permanent has been withdrawn by Supreme Court is qualitatively comparable. A judge cannot be punished for wrong judgments which are otherwise within her jurisdiction. This is because when a judgment is bad, there are ways to have it corrected. I have no quarrel that the reasons given by Justice Ganediwala’s judgment in her judgment in the recently reported POCSO Cases  are perverse – and in the same breath, all of us can count at least half a dozen other judgments of High Courts and Supreme Court whose reasoning we find perverse.  However, to punish a judge for taking a particular view on the matter is not supported by the Constitution. 

It would be a good moment to also recall that Justice R. N. Agarwal and Justice U. R. Lalit were not confirmed as judges of the High Court for their actions in blocking the State actions during the Emergency. Between the Emergency and today, we are still doing the same thing our judges – albeit for seemingly different reasons.

One may argue that non-confirmation of an additional judge of a High Court is not a ‘punishment’. It is much like an employee on probation who has not been confirmed – there is no vested right.  To this,  I have two preliminary replies: a judge’s position is different from an ordinary employee, and second, once the services of a probationer have been confirmed, an avenue of withdrawal of confirmation may not necessarily be available under the service rules.  And, on facts, can one really say that the action of withdrawal of recommendation is not punitive?

In Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1, the Hon’ble Supreme Court has held that:

714. The independence of the judiciary takes within its fold two broad concepts: (1) Independence of an individual Judge, that is, decisional independence; and (2) Independence of the judiciary as an institution or an organ of the State, that is, functional independence. In a lecture on Judicial Independence, Lord Phillips [ Former President of the Supreme Court of the United Kingdom and Lord Chief Justice of England and Wales] said: “In order to be impartial a Judge must be independent; personally independent, that is free of personal pressures and institutionally independent, that is free of pressure from the State.”

718. The entire package of rights and protections ensures that a Judge remains independent and is free to take a decision in accordance with law unmindful of the consequences to his/her continuance as a Judge. This does not mean that a Judge may take whatever decision he/she desires to take. The parameters of decision-making and discretion are circumscribed by the Constitution, the statute and the Rule of Law. This is the essence of decisional independence, not that Judges can do as they please.

726. Generally speaking, therefore, the independence of the judiciary is manifested in the ability of a Judge to take a decision independent of any external (or internal) pressure or fear of any external (or internal) pressure and that is “decisional independence”. It is also manifested in the ability of the institution to have “functional independence”. A comprehensive and composite definition of “independence of the judiciary” is elusive but it is easy to perceive.

The judgment in Supreme Court Advocates-on-Record Assn (supra) makes it rather clear that any action that may be destructive of decisional independence would not pass the muster of the basic structure test of independent judiciary. The precedent of withdrawing recommendation to make an additional judge permanent does not appear to be happy one. Admittedly, the case of Justice Pushpa Ganediwala is a hard case. Since hard cases make bad law, I think the issue now, for the future, is not so much of the withdrawal, but of what factors that went in approving her appointment in the first place?

Postscript: At some point, the Supreme Court must look at the working conditions  of contractually appointed members of the Foreigners Tribunals of Assam and of the Foreigners Tribunals itself. I mentioned it in the beginning, not only for its shock value – but because it is a unique tribunal that is being systemically and systematically constrained to declare Indians as foreigners rendering them Stateless – and that is the real point of this article. The opinions produced by Foreigners Tribunals in Assam are as shocking as judgments of Justice Pushpa Ganediwala  but in Assam the authors of such perverse judgements are rewarded by renewing their contracts. Their members compete to be the highest wicket takers – a pejorative for declaring persons foreigners.