Guest Post: The Unconstitutionality of the CBI

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(This is a guest post by Rishav Ambastha.)

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

The Judgment of the Guwahati High Court

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

Entry 8, List I

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

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

 

Entry 80, List I

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

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

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

Section 6, DSPE Act

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

The Contrary Judgment of the Bombay High Court

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

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

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

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

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

Conclusion

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

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

Call for Applications: The CLPR Equality Fellowship

(Call follows below. – Ed.)

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

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

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

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

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

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

Eligibility

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

Application Process

Applicants must submit:

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

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

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

On the Ethics of Representation in an Adverserial Legal System: A Rejoinder (Guest Post)

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(This is a guest post by Shankar Gopalakrishnan).

Gautam Bhatia and Goutam Shivshankar recently have had an illuminating and extensive debate (see herehere and here) over the ethics of representing “immoral” clients – one of the more vexing questions that confronts not only lawyers but anyone attempting to understand or engage with the legal system. In this specific case the question revolves around MJ Akbar’s decision to file a defamation case against those accusing him of sexual harassment and assault, and how morally correct it is for lawyers to choose to represent such a client in such a case.

Bhatia and Shivshankar approach this question from the angle of the ethics of the legal profession. But the ethical dilemmas around the Akbar case are rooted fundamentally in questions of power. Hence I would like to approach it from a different angle – what is the functional place of the legal system in power relations within the social system we have? Or, more broadly, what role does it play in society?

The ideas advanced below derive from the Marxist tradition, but I don’t think one needs to be a Marxist to see their merit. This argument only requires acceptance of two propositions: 1) that we live in a society, and a world, deeply riven by structures of oppression and injustice; and 2) that there are constant struggles over these structures, both by the oppressed attempting to resist or end their oppression, and by oppressors seeking to consolidate, extend or modify it.[1] One should note that I’m not taking the position that there is just one single class or section of oppressors; all that one is postulating is that there are structures of oppression and struggles over them.

In such a context the logical next question is – why then do we live in a global and national system that is broadly ‘stable’? Stable in the sense of not descending into chaos nor experiencing mass political revolutions, most of the time. How, in other words, does this system broadly succeed in reproducing itself? Or, to use the more common formulation, “why don’t people rise up?”

The broad answer appears to be that all modern political systems operate on the basis of some kind of an unequal and unjust compromise – one where certain interests of the oppressed are conceded while preserving the core structures of oppression. But since this is never actually enough to address the issue of oppression, this system is also fundamentally unstable. There is a constant struggle over what will be conceded and what will not be conceded.

Those familiar with Marxist thinking will of course recognise this as a very vague and oversimplified definition of the Gramscian concept of hegemony. But too often, both on the left and otherwise, hegemony is mistaken to mean some kind of ruling class conspiracy, whereby fake ideas are implanted in people’s minds and the oppressed are deceived into believing in their own oppression. In reality, no oppressive or ruling class in history has had some magic universal ability to see the future and conspire to avoid it all the time; and more importantly no class of oppressed has been such docile sheep. The reality is that the concessions that are granted are almost always the result of struggles. Hegemony is not and can never be a purely one-sided process. The issue is not that the oppressor figures out what “crumbs to throw to the masses” but that oppressors concede out of compulsion. But in the process of conceding, those in power attempt to defuse and twist the struggle away from their core interests. One of the fundamental ways in which this happens is not only by ‘deflecting’ the issue but – to use the phrasing of Nicos Poulantzas – by a constant effort to organise the oppressors while disorganising the oppressed.

Let’s for instance look at Indian labour law, which is a stark example of this process in action. The fact that labour laws exist at all is a result of prior working class struggles and the fear of future working class organising. No capitalist wants these laws and there is a constant effort to get rid of them, which in turn meets further working class resistance. What emerges from these struggles is a legal regime that simultaneously enshrines some progressive principles on paper while being specifically and explicitly structured to disempower the workers themselves. Hence we have the fact that, while non-payment of wages, violations of safety requirements, etc have been made criminal offences, the laws then bar workers from filing complaints directly (only labour inspectors or, for construction workers, unions can file cases). Strikes are allowed but then subjected to conditions and restrictions that make them far more difficult to carry out. Numerical limits and arcane exemptions exclude the majority of Indian workers from labour law and impose a burden of proof on them, indirectly, to show that the law applies to them in the first place. All of this has the effect not only of denying workers their rights but of actively disorganising them, preventing them from exercising and thereby experiencing their collective power.

In other words, the very victory of workers – the existence of labour law – is turned into an instrument of trying to ensure their future defeat. But, again, no instrument can actually ensure that; what happens instead is that the conflict moves on to a new terrain. If those organising manage to build on their victories, they move on to a more liberatory ‘next’ stage in their struggle, and if not, they are thrown on to the defensive until they are able to do so. One can see the same pattern in many other spheres of society – such as caste reservations, women’s struggles, or even the process of democratic elections itself.

Coming back to the courts, the question arises – what role do they play in this dynamic? Again, I want to avoid the approach that simply dismisses the legal system as some kind of oppressive fiction intended to be a deceit on the population (though to many of us it often feels that way). If that kind of trickery were feasible, it could be achieved far more easily. In reality the process of law-making and adjudication is a core structural element in every modern society’s political process and it is in many ways the central landscape of political struggle. In this too there are liberatory possibilities. Fundamental rights, the progressive aspects of the Constitution, the idea of a ‘rule of law’, the court system’s procedural guarantees, and even the ‘cab rank rule’ – which we come back to below – are all victories against oppressive systems (most of all, of course, the ones that are somewhat over-broadly described as ‘feudal’[2]).

But, that said, it seems to me clear that, out of the entire landscape of the law, it is the court system that most of all also advances the process of disorganisation. This sounds terribly abstract, but in practice anyone who has attempted to organise people against some injustice, big or small, will know how deadly the legal process can be. Long before the powerful attempt repression, the process itself attempts exhaustion. The court system is an alienating, frustrating, confusing and extremely disempowering experience for the vast majority of people (and not just in India, of course). This is not only true in cases of social struggle. It is true of individual cases as well, and perhaps the reason that lawyers are so widely hated. The only social sections for whom the legal system do not have this effect are the truly powerful, who use it to sort out their differences in a manner that avoids having to murder each other (once again, an organising function). For anyone who is a target of oppression, going to court means giving up the few advantages the oppressed often have (the power of numbers, the moral sense of justice) and instead individualising, atomising and often destroying one’s own strength. Indeed, in cases of conscious organised struggle, one of the key strategic decisions to be made is often how to ensure that any engagement with the courts does not have this effect.

If we view the court system in this manner, I think the moral debate around representation becomes clearer. The cab rank rule that both Bhatia and Shivshankar discuss takes on a different meaning. In a sense, both of them are right. Shivshankar is right that the rule was introduced to protect litigants, and in that sense it represents one facet of the court system’s need to be fair and to be seen to be fair. But Bhatia is even more right that in practice this rule has become a protection for lawyers. His point about the fact that the cab rank rule would require a UK NHS-style, publicly funded “National Legal Service” is very valid. Indeed, if the cab rank rule is articulated without simultaneously articulating this need, it becomes at best a pious incantation with little actual meaning – and at worst, as in this case, it becomes a fig leaf for the moral choices of individual lawyers, a shield for the very arbitrariness and unfairness it was meant to prevent. Once again, a victory for struggles against oppression is being sought to be turned into an instrument to prevent future victories.

The question then arises as to what moral implications individual lawyers’ choices have. I find it difficult to credit Shivshankar’s argument – that refusing immoral clients funnels them towards immoral lawyers – with much validity. This will happen in any case, simply because an ‘immoral’ client who seeks to bend or break the rules of justice will simply change their lawyer if their ‘moral’ lawyer refuses to do so. To me, if we regard these moral choices and the court system as being embedded in the larger struggles of society (rather than as floating above these struggles), the moral role of lawyers emerges automatically. The MJ Akbar case is a classic, stark instance of a powerful man using a powerful law firm to isolate, repress and exhaust his accusers. It does not matter if we assume that Akbar is guilty or not. It does not even matter if he wins. What matters is the way he has chosen to respond – that is, to choose not only to use his already considerable power to respond in public, but to deploy that power even further by filing a massive criminal defamation suit through a high powered law firm. This has the effect of repressing and disorganising the MeToo movement, creating a climate of fear and forcing his accusers into individual, expensive and time-consuming defenses, whatever Akbar’s guilt. If this is the case, no lawyer interested in being part of a just society should be part of that process. In this sense also there is clearly no parallel between this situation and the Kasab case.

In this sense, I ultimately agree with Bhatia. Lawyers’ choices, like all other choices, have moral implications. The morality of those choices has to be seen against the larger backdrop not only of the individual morality of clients, but against the morality of the legal process and what it means for social change. An integral part of the legal process’ disorganising effect is its constant attempt to force us to see social and political structures as if they were individual choices, to compel us to see the unequal as equal and the collective as atoms. Perhaps the more fundamental moral choice that all of us, lawyers or non-lawyers, have to make is whether we accept that attempt at disorganisation, and if we do not, to make our decisions about our work accordingly.

[1] The distinction between Marxist and other approaches here would be around the analytical primacy one accords to the production process, and hence to class, in understanding these structures, but that distinction is not material to our argument here.

[2] Here as well, I am not getting into the question of the specific struggles, or their class character, that led to these changes. One might note that this approach overall differs from the strand of left orthodoxy that dismisses these tenets as fictional deceits that only defend the interests of the bourgeoisie. That larger debate is outside our scope here, of course, but it draws on the heterodox Marxist theories of the capitalist state that attempted to develop the concept of hegemony.

“A petty autocracy”: The Supreme Court’s evolving jurisprudence of the sealed cover

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The present Chief Justice of India likes sealed covers. In the ongoing National Register of Citizens Case, he has – on multiple occasions – asked the state coordinator of the NRC to submit the details of his work to the Court in a “sealed cover” (including, on one occasion, refusing to share the contents of the “sealed cover” with the Attorney-General for India).  In the Rafale Case, he asked the Government to submit pricing details about its purchase of the Rafale aircraft in a “sealed cover”. And in the case involving corruption allegations at the CBI, he directed that the CVC’s report about the CBI Director Alok Varma be given to the latter in a “sealed cover”.

These constant references to “sealed covers” may sound like the stuff of thrilling detective novels, but they also happen to be deeply and profoundly anti-democratic. Let us start with the foundational principle: in India, we are committed to the value of open justice. The Courts are public forums, their work characterised by transparency and openness to public scrutiny. Judgments – and the reasons underlying them – must ordinarily be public. The Indian Supreme Court is not the Court of the Star Chamber, with its opaque and secretive processes. In a democracy, it is of fundamental importance that justice be done in full public view.

Like any principle, the principle of open justice, of course, has its exceptions. The concept of an “in-camera trial” is well-known: there are a handful of cases whose sensitive nature requires that they be closed off to the public, especially when matters of personal privacy are involved. This, however, is meant to be a situation of the last resort, taken only after hearing arguments on the issue, formally enjoined by the judge, and not a decision that she ought to take lightly.

Next, consider the following situation: an election is challenged on the ground of procedural irregularities. The results of the election are due to be announced before the Court can adequately hear and decide the case. To prevent a fait accompli, the Court asks the election authorities to refrain from declaring the results, and – instead – hand them over to the Court in a “sealed cover”, pending the adjudication of the dispute. Here, the issue is purely procedural: the material submitted to the Court has nothing to do with the Court’s final decision, and it therefore raises no concerns of open justice.

There is a third category of cases: those involving State secrets. Consider, the famous example provided by the Supreme Court of the United States in The Pentagon Papers Case: that of troop movements in wartime. Nobody would suggest that details of this kind ought to be made public. But then again, nobody would suggest that this is a matter that is justiciable in the first place: issues involving State secrets fall within the domain of Executive prerogative, a domain where courts cannot tread. Of course, there can be – and often is – a dispute over whether something qualifies as a State secret or not – that, indeed, was the whole dispute in the Pentagon Papers Case, and that is certainly a matter for the courts to decide. However, once the courts have decided (with due deference to the Executive), then there can be no halfway house: if the question involves a State secret, then it is the absolute prerogative of the Executive to deal with the information as it sees fit. If it does not, then the traditional principles of open justice and open democracy apply: if it can be shared with the Court, then it must be shared with the public.

The problem with the Chief Justice’s evolving jurisprudence of the sealed cover is that in its arbitrary and ad-hoc character, it has become a matter of personal fiat, rather than a careful consideration of balancing the core principles of open justice with the narrow exceptions that may occasionally apply. Consider, for instance, the Rafale issue, where the challenge is to the government’s decision-making process as part of public procurement in a defence deal. Now, the government argues that the price at which it obtained the fighter jets cannot be revealed, as that would compromise the deal itself: in short, the determination of pricing is a core executive function when it is striking defence deals, and not something for the Court to go into. If you agree with the government’s argument, then there ends the matter: the question of pricing has to be excluded from the proceedings altogether. If you don’t agree with the government’s argument – if you believe that the corruption allegation cannot be decided without looking into the question of pricing – then that logic has to be carried through to its conclusion: the pricing details, along with the rest of the decision-making process, has to be subjected to judicial review, and ipso facto be public. What the Chief Justice has done, instead, is to take the pricing details in a “sealed cover”, with some stray observations about how, at this time, he does not consider it relevant to the case. Fair enough – however, why ask for the pricing to be made available only to him and his brother judges, if he does not consider it relevant? And what if he changes his mind later on? Will we get an affirmative judicial finding on whether or not there was corruption in the Rafale deal – a crucial public issue – on the basis of three judges’ reading of what is contained in a “sealed envelop”?

While the fate of the “sealed envelop” in the Rafale case lays bear some of the contradictions of the Chief Justice’s approach, in the NRC case, that approach has far more sinister results. Unlike Rafale, NRC is about core fundamental rights, including the right of citizenship. As I have argued before, the Chief Justice with his “sealed covers” (and “confidential reports”) has essentially set up a regime of secret justice, where individuals are faced with life-changing (and life-destroying) decisions about their rights, without any chance to challenge or interrogate them.

What explains this? The Chief Justice’s thought process – I suggest – was laid bare yesterday, in a throwaway remark that he made during the proceedings concerning the third of my examples – the CBI case. The Chief Justice’s rationale for handing over the CVC Report to Alok Verma in a “sealed cover” was that “public confidence in the CBI” must be maintained. Now consider the facts: the two topmost officials of the CBI accuse each other of graft, the government (long-accused of treating the CBI like a “caged parrot) intervenes in a manner that is questioned by many, and the CVC is brought in to investigate the CBI Chief. All this, we are expected to believe, would not affect “public confidence” in the institution, but making the CVC Report public would somehow achieve that.

But this is nothing better than a complete infantilisation of the public: the Chief Justice is essentially telling us, in his best Colonel Jessup impression, “You want the truth? You can’t handle the truth.” The truth will stay between the high officials involved, and then a second set of high officials – the judges – will render judgment on the basis of that cloistered truth – all of which is in keeping with the sanctity of the CBI. The only threat, apparently, is of the public getting to know what the CVC has to say about the CBI Chief. This is an approach that treats people as passive subjects of justice instead of active citizens, and makes of judges that “bevy of Platonic guardians” that Judge Learned Hand was so terrified of: “sit back, relax, and let the grown-ups handle it.

A judicial regime in which the first recourse is to the “sealed cover” – thus setting up a secret dialogue between the Court and the State, to the exclusion of the citizen – has no place in a democratic set-up. Rather, it resembles a petty autocracy, where the citizens are viewed as irritants, who have no stake in the process of justice, and just need to let the guardians “get on with it.” It was a regime that our constitutional framers explicitly rejected when they made India the first country in the world to initiate universal adult franchise in a single stroke, notwithstanding the poverty and the illiteracy. In 1947, there were those who resisted this, echoing the colonial logic that Indian could not be trusted to think and decide for themselves, and would have to be led and guided until they became mature enough to do so. The constitutional framers, however, took a leap of faith, and chose the path of democracy and openness. The “jurisprudence of the sealed cover” makes a mockery of that faith.

Guest Post: Article 22(3): A Constitutional Paradox

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(This is a guest post by Abhinav Sekhri. It originally appeared on the NLSIR Blog and The Proof of Guilt, and is cross-posted here with the permission of the author).

Of late, the transformative nature and potential of the Indian Constitution has been placed under the spotlight thanks to attention from both scholars and courts. The contours of this argument are contested, but according to most versions, the Constitution is an instrument designed to realise an India where the ideals of liberty, equality, and fraternity are fully expressed and protected against arbitrary deprivation. Amidst the focus on India’s transformative Constitution, this post takes a look at Article 22(3). The clause provides that if persons are arrested and detained under preventive detention laws, or are enemy aliens, then the basic protections against arrest and detention provided by Article 22(1) and (2) do not apply. Here, I attack the resulting deprivation of the right to counsel brought about by Article 22(3).

Content and Origins

Article 22 can be understood as consisting of two parts – clauses (1) and (2), and clauses (3) to (7). The first part tells us that all persons are guaranteed certain rights upon arrest: the right to be immediately informed of grounds for arrest, to be produced before a magistrate within 24 hours if detained upon arrest, and to consult and be defended by a counsel of choice. The second part begins with clause (3) telling us that the first part isn’t actually applicable to all persons. Clauses (4) to (7) then detail minimum criteria that any preventive detention law must satisfy: it must inform persons of grounds for detention, enable them to make representations against detention, create Advisory Boards which must approve all detentions longer than 3 months, and fix a maximum period of possible detention.

I’ve discussed the origins of Article 22 at length elsewhere. It suffices here to state that the first part of Article 22 was intended to salvage what the Constitution lost by deletion of “due process” from Article 21. The second part was guided by the same intentions – since the Constituent Assembly had already decided to grant powers to enact preventive detention laws to both the Union and states, the excision of “due process” theoretically meant that there were no limits to what kind of laws are passed. Clauses (3) to (7) were meant to soften the blow and ensure that state interests are protected by laws that facilitate quick arrest and detention, without completely trouncing individual liberties.

In this attempt to strike a balance, the right to legal assistance was sacrificed entirely. I say entirely, for while the other rights provided in clauses (1) and (2) are still present in a watered-down form in clauses (4) to (7), the right to legal assistance fails to find any mention. Why? The consistent answer one gets upon consulting the Constituent Assembly Debates is an argument of efficiency. The Assembly feared that letting lawyers into the preventive detention system would invite delays of the kind that the ordinary criminal justice system suffered from, undermining the very swiftness that made preventive detention attractive in the first place.

Legislative Adaptation and Judicial Treatment

India’s Provisional Parliament passed the Preventive Detention Act, 1950 [PDA] less than a month after the Constitution came into force. Since this body comprised almost the entirety of the Constituent Assembly, one imagines that the statute closely followed the Assembly’s vision of preventive detention. What kind of proceedings did the PDA envisage? Section 7 obligated communication of grounds without fixing a time limit, and permitted non-disclosure wherever  necessary in public interest. Section 10 laid out the procedure of hearings before Advisory Boards and specifically stated that detenus were not entitled to either personal appearance or appearance through counsel. Section 14 went so far as to render grounds of detention entirely confidential, denying even constitutional courts the right to know why a person had been detained.

This, then, is the ideal vision of preventive detention: proceedings that involved acting first and explaining later, with explanations hardly beyond the bare minimum, with paper pushing and no oral hearings. From A.K. Gopalan onwards, this ideal vision was gradually demolished by the Supreme Court. Judicial engagement with preventive detention followed an accepted script: while the ultimate legality of preventive detention measures was beyond question, the harshness of the regime was not. Towards this, several judicially crafted innovations were made to enhance the fairness component, all the while operating within the bounds of Article 22.

The Emergency of 1975 – 1977 saw targeted amendments to undermine these innovations and curtail judicial review. This curtailment, though initially resisted by High Courts, was ultimately accepted by the Supreme Court itself in A.D.M. Jabalpur. As the popular narrative suggests, that Court began to restore the content of fundamental rights and its own institutional legitimacy, once the Emergency ended. This led to the opinions in Maneka Gandhi which expanded the scope of Article 21. In a flurry of subsequent decisions, the Court recognised that this expanded Article 21 contained an unenumerated right to counsel, broader than the Article 22(1) guarantee. While Article 22(1) granted a right to counsel of choice, Article 21 carried a right to counsel, thus prohibiting deprivation of life and personal liberty made in absence of legal assistance.

This belated recognition of the importance of legal assistance and its fundamental link to the right to personal liberty was also soon felt in the sphere of preventive detention. Different benches of the Court in GopalanachariKavita, and Nand Lal Bajaj – all consisting at least of either Justices Krishna Iyer, Sen, or Islam – held that the denial of legal assistance in preventive detention was not absolute. Relying on Article 21, these decisions emphasised the importance of counsel, especially where persons were detained without trial. They held that a detenu still had a right to request for legal assistance, which then had to be adequately considered by authorities. This consideration was ultimately subject to judicial review, providing some measure of oversight. One of these cases, Nand Lal Bajaj, found it “incomprehensible” that the regular criminal justice system granted legal assistance but preventive detention didn’t. But since it was not asked to decide this issue, these remarks remained obiter dicta .

A.K. Roy and the Current Legal Position

Maneka Gandhi, an expanded Article 21, and a fundamental right to counsel: this was the context in which the Supreme Court heard a batch of petitions challenging the National Security Act, 1980 [NSA]. The Constitution Bench assembled for this purpose delivered its decision late in December 1981, reported as A.K. Roy v. Union of India, and it almost entirely upheld the validity of the NSA. The controlling opinion was authored by Chandrachud CJ to which three judges signed on, while Gupta J and Tulzapurkar J dissented in part. Analysing the entire decision is beyond the scope of this post. Rather, the focus here is on how the Court unanimously saved Section 11(4) of the NSA, the provision which disentitled detenus from legal representation before Advisory Boards.

What did the Court do? It relied upon Article 22(3)(b), and held that the right under Article 22(1) to consult and be defended by counsel of choice is inapplicable in the context of preventive detention. The Court acknowledged that preventive detention laws were not only subject to Article 22, but were also open to scrutiny under Articles 14, 19, and 21. Did depriving persons of their liberty without legal assistance satisfy this scrutiny?

The Court rejected the go-around offered by petitioners: since Article 22(3)(b) only excluded Articles 22(1) and (2), the right to counsel contained in Article 21 was still applicable. The controlling opinion labelled it “impossible” to find that what one part of the Constitution had denied, another provided. It then offered a positive answer as well, holding that the original text of the Constitution was per se “just, fair, and reasonable” and so could not fall foul of Articles 19 or 21. Simply put: since the original constitutional text said detenus don’t get lawyers, there was no question about laws implementing this mandate being unconstitutional for violating rights contained in other provisions of the Constitution.

Before parting, the Court tried to mollify the harshness of this conclusion which it had arrived at “regretfully”. It held that where the government engaged counsel, a detenu must also be afforded a similar chance, and further, that nothing denied detenus the ability to ask for assistance from a “friend” in proceedings before the Advisory Board.

 A Veneer of Legality

Preventive detention laws have never been tested by a Constitution Bench since A.K. Roy, and that decision still remains the final word on the issues it considered. In this section, I demonstrate that the controlling opinion’s handling of the issue of denying legal assistance to detenus was flawed and promoted a constitutional vision irreconcilable with the idea of a transformative Constitution.

The primary basis for upholding Section 11(4) of the NSA in A.K. Roy was that Article 22(3)(b) permitted deprivations of the right to counsel and since it formed part of the original Constitution, it is bizarre to say that the framers themselves had inserted unconstitutionally unreasonable clauses. Though the opinion did not cite Golaknath, this distinction between the original text and amendments had been propounded since then: while the Court happily reviewed amendments, it kept the original text in a hermetically sealed box. This distinction was also accepted by the Court in Keshavananda Bharati as a limit to the basic structure doctrine as well.

But this privileging of the original test does not make sense. Gautam Bhatia exposed the logical fallacies in this view some time ago, arguments that I adopt and expand here. As he argued, if we think of the basic structure test as promoting faithfulness to values, then how do we justify this separate treatment for the original text? Moreover, the idea that the original text is uniquely faithful to “we, the people” is also flawed: the Constituent Assembly was barely representative of “the people”, nor was it subjected to a ratification process. Also, nothing in the constitutional text itself supports this separate treatment of the original text and subsequent amendments to it.

The flaw with this approach gets magnified in A.K. Roy because of the context: Articles 21 and 22. The Court in Maneka Gandhi had gone so far as to rewrite the original Constitution by re-inserting “due process” into Article 21. Whatever significance this had for the rest of Indian jurisprudence, the effect of this shift was tectonic in context of Article 22. After all, Article 22 was birthed because the Constituent Assembly had removed the “due process” phrase. Once due process came back into Article 21, it unmoored Article 22 from its very foundations, and directly questioned the adequacy and reasonableness of the limited guarantees that Article 22 provided.

Accepting that an expanded Article 21 contests the earlier minimums set by Article 22 is the only sensible way that the two can be read together, rather than privileging the original text. This was the direction the Court seemed to be heading in as well. It quickly resolved one issue: the minimum set by Article 22(1) in terms of the right to counsel was insufficient, and was thus expanded by Article 21. This was easy, since Article 22(1) could be argued to be silent about legal aid and not explicitly against it. Article 22(3) was much harder because it expressly excluded certain rights. Fidelity to a basic structure doctrine that focuses on values would then evaluate whether this exclusion was contrary to these values, and give us an answer.

Rather than resolve this crucial issue of harmonising an expanded Article 21 and Article 22(3), A.K. Roy simply told us that the latter was correct because it was there for longer. And it did so by trying to minimise the significance of this conflict. While the Court privileged the original text, the controlling opinion carries no mention of the peculiar history behind Articles 21 and 22. Further, it either distinguished the recent decisions on the expansion of Article 21 and a right to counsel, or amazingly did not mention them at all where they pertained to the preventive detention regime.

Conclusion

A.K. Roy subscribes to a view that the Constitution offers forever static minimum protections to safeguard life and liberty. Currently, the Supreme Court finally acknowledges that constitutional protections are meaningless in abstract, and must be tailored to the unique harms that different generations face. The harm from preventive detention is very different today from what it was in 1950. It is far from an exotic tool to deal with threats to public order, and instead is used to arrest persons on suspicions of copyright violations, video piracy, and cow slaughter. Even more importantly, the very basis for the original minimum constitutional rights secured by Article 22 has ceased to exist ever since the Court re-inserted due process into the Constitution, where it has flourished since. Thus, if the entire milieu has changed so dramatically, is it sufficient to tell us that persons, who can be arrested and jailed without knowing why and kept in jail for months on end, have no right to counsel simply because the Constitution said so from the start? I strongly disagree.

*This post is focused on preventive detention, largely because there has been no instance of applying Article 22(3)(a) that I could trace. Nevertheless, the arguments here, made in the preventive detention context, would also apply to Article 22(3)(a). 

Justice Kavanaugh and the Collegium: reflections on the increasing significance of judicial appointments

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Justice Bret Kavanaugh’s confirmation hearings have certainly given us food for thought. The issues raised by the hearings have received some expert commentary, including Jack Balkin’s insightful post on ‘constitutional rot’ (here) and the series of posts on the Law and Political Economy blog (here). While certain aspects of the confirmation hearings were unique to the American political and constitutional experience, India too has a well-documented struggle with judicial appointments and recently underwent its own moment of introspection on a key judicial figure with the retirement of former Chief Justice Dipak Misra.

In this post I ask the question, why are the stakes for a seat on the constitutional court so high? The way constitutional courts are designed certainly provides an immediate set of answers. There are only nine judges on the United States supreme court and they enjoy lifetime appointments, allowing a single judge to impact the outcome of cases for several decades. However, even in India where the supreme court consists of thirty-one judges having limited terms, the court and government have struggled to see eye-to-eye on judicial appointments. The court has repeatedly struck down attempts to reform the ‘collegium’ system, where judges themselves decide who should be appointed to the supreme court. In return, the government has refused to confirm the appointment of certain appointments made by the ‘collegium’ to the supreme court. Just this week, the Chief Justice took up the issue of the government ‘selectively’ confirming judicial appointments (here). In this post, I argue that it is the conduct and role of the court that has raised the stakes of judicial appointments to boiling point.

The conduct of the court, intended to curtail governmental overreach, has come to include detailed matters of public policy. Further, the court has become a centre of political power, advancing political views on deeply divisive issues. This piece does not seek to make an argument against judicial review, nor does it advocate, in the words of Mark Tushnet, taking the constitution away from the courts. However, in a month of historic outcomes for the Indian supreme court, it advocates some circumspect on the high stature of the court.

The role of judicial review

Part III (Fundamental Rights) of the Indian constitution explicitly recognises that individuals can approach the court, and the court can strike down government action that is incompatible with the fundamental rights. By allowing a law to be struck down on the grounds that it is incompatible with a fundamental right, the constitution recognises that an individual’s political interest cannot be subsumed by the general interest. A person’s fundamental rights must therefore be given appropriate weight when measured against the interests of the community. Famously, in the words of Dworkin, rights act as “trumps” in certain situations. The powers of the court are not strictly limited to invalidating government action, the court can, for example, direct the government to take certain actions to ensure fundamental rights are upheld (by a writ of mandamus). However, in practice, the actions of the court far exceed this.

Take the recent example of the court’s involvement in the Coordinator of National Registration (NRC) in Assam. Article 11 of the constitution states that parliament will have the power to create laws for the “acquisition and termination of citizenship and all other matters relating to citizenship.” However, the court not only ‘supervised’ the procedure by which thousands of individuals were added and omitted to the list of potential citizens, but it also determined which documents could be used to make a claim to citizenship. After the draft NRC was published, the court required re-verification of ten percent of the names would be required, so that the court could be satisfied that the list was accurate. By dictating what documents could be used by an individual to prove they were a citizen (the evidentiary standard for citizenship), the court effectively determined when an individual is a citizen.

Even more worrying was that the court acted to the exclusion of other branches of the government. For example, the court noted,

 Having regard to the nature of the work that is involved in the process of upgrading the NRC, we direct the State Coordinator to submit a report to the Court. […] The above information will be laid before the Court by the State Coordinator without any consultation with any Authority whatsoever and without reverting to the State Government or any Authority in the Union Government.

As argued by the Attorney General, this exclusion of the governments hampers the task of the officers who must deal with the facts on the ground. The court also passed orders on when the draft had to be published, if the NRC officers were permitted to speak to the press, and whether they needed police protection. The Court’s excruciatingly detailed supervision was showcased when the state government argued that more time was required to complete the NRC because of local panchayat elections. The court noted,

we, however, permit the State Government to take the services of one Additional Deputy Commissioner in each district who may be currently engaged in the NRC work and deploy the said officer in each district for the work connected with the Panchayat Elections.

The court’s conduct vis-à-vis the NRC is not a case of judicial review where an individual’s rights are aggrieved by state action. Determining how and when officers should be stationed is a distributive choice on how the nation’s resources are utilised. In close to a decade of hearing the case, the court has never once referred to either the fundamental rights at stake or even the government action that is the subject of judicial review. When the attorney general argued that certain aspects of the case were best left to the executive, the court cited executive inaction as a justification for court supervision. The NRC is not an isolated case, the court has laid down and monitored the India’s forest policy for over two decades in the (still ongoing) writ petition Godavarman v Union of India. While the pitfalls associated with the court assuming such a role are not the subject of this piece, it is evident that the conduct of the court is no longer limited to judicial review. It can compel even a government that is not seeking to undermine constitutional provisions to expend resources on certain goals that the court designates as important. The court is not merely a ‘check on governmental power’, but itself a powerful centre for policy on how the country should be run.

The court as a centre of politics  

The court has also used its power to advanced political ideas on deeply divisive issues. The most recent example of this is the court’s decision in the Sabarimala case, where the court struck down the restriction on menstruating women entering the Sabarimala temple. To understand the political significance of the judgement, it is necessary to appreciate the centrality of secularism to the Indian constitution, so a quick recap is called for.

Article 25(1) reads,

Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

Article 26 goes on to note that,

every religious denomination shall have the right […] to manage its own affairs in matters of religion 

This inherent tension in the constitution highlights both the disagreement that existed over the extent of State interference in religion and the requirement for continuity/ communal harmony, as well as the sharp contradictions that existed between the aspirational goals of the constitution and surrounding society. As Gary Jacobsohn notes, “So deep was religion’s penetration into Indian life, and so historically entwined was it in the configuration of a social structure that was by any reasonable standard, grossly unjust, that […] State intervention in the spiritual domain could not be constitutionally foreclosed.” Yet it is precisely this deep penetration of religion that leads to an inherent tension between the aspirational social-reform goals of the constitution and the requirement for communal harmony. The drafters of the constitution, operating in the shadow of partition, were acutely aware of the essential role of religion in social life. Thus, while social reform through State action was necessary, the acknowledgement of religious autonomy and permitting “culturally inflected interests” to be represented were essential to the maintenance of democracy in India.  Thus, Indian secularism required a balance between socio-economic reform of religion and tolerance of the deeply engrained and pluralistic practices existing across the country.

This is precisely the tension that the Sabarimala judgement brought to the forefront, down to the opinions of the judges. When Justice Malhotra argues for the validity of the ban on women entering the temple, she does so on grounds of respect for religious pluralism, while Justice Chandrachud gives voice to the argument that State intervention in certain situations is warranted. Of course, the rub lies in when such intervention is warranted, and who can ask for such intervention.

The religious sphere is certainly open to interference by the constitutional promise of social reform, but as Jacobsohn notes, “the legitimacy of this undertaking is at least partially dependent on preserving political space for religious identity.” By taking up the case, the court reduced this political space to the respondent’s lawyers in the courtroom. By striking down the ban, the court has struck down the practice of a religious group on the grounds of social reform at the behest of individuals who are not members of that religious group. This certainly alters the subtle constitutional balance between the social-reform goals of the constitution and the promise of communal harmony. As we have seen, the place of religion in Indian society is deeply contested. Yet the court’s seemingly insulated position often obscures the fact that the court is a vigorous and powerful participant in this contestation.

Conclusion

Given everything set out above, it is clear why the political class might seek to entrench allies in the judiciary, and consequently why, the judicial appointment process becomes contentious. Unlike in the United States, where judges are appointed by the executive branch and confirmed by the legislature, in India we have the collegium system, whereby senior judges appoint junior members of the court. While perhaps less partisan that the American court, the Indian court is no less political. As Anuj Bhuwania notes, the court’s PIL jurisdiction grants “blanket powers to judges to act as per their ideological beliefs in order to help the poor and promote distributive justice.” One would be hard pressed to find a politician who argue that his role differed from this role of the courts, except for the politician, blanket powers remain a forlorn dream.

This post sought to highlight why a place on the court is important. It is important because the court has endowed itself with vast powers and these powers are used to implement the policy and to drive the politics of the court.

The role of the court in its present iteration raises the age-old problem of political legitimacy. The court is an unelected body. As Jeremy Waldron notes, it is far easier to explain to someone who holds a contrary political opinion that, “Everyone’s votes were counted, and your side got fewer votes” than it is to say, your principled argument lost 4-1 on the constitutional bench. Can one approach the thousands of protestors at Sabarimala with the majority opinion in hand and expect immediate acceptance? What we are truly concerned about is the court exercising its expansive powers without the legitimate authority to do so. The protests against Justice Kavanaugh no doubt in part stemmed from the fact that this one man would have the power to decide whether millions of women could abort unwanted pregnancies or not. To ask if such a system is desirable is to ask where the legitimate authority to govern us comes from. Is it the constitution, the democratic process, a learned judge, or some combination of them all? Until then, we should prepare ourselves for the next round of high stakes judge selection.

Guest Post: Constituting Constitution Benches: The Dipak Misra year(s)

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(This is a guest post by Shreya Munoth.)

Reams have been written about Chief Justice Dipak Misra’s legacy at the helm of the Indian Supreme Court, both on the judicial as well as the administrative side. His jurisprudential legacy is a mixed-bag, and his administrative legacy leaves even less to be desired. But in this post, I write about Chief Justice Misra’s tryst with constituting and heading constitution benches in the year 2018.

The last month of Chief Justice Misra’s tenure as the Chief Justice of India (as he then was) saw judgments being delivered in six cases, running to 2,753 pages cumulatively. These were heard by benches comprising of five judges (constitution benches) starting from January 2018. All the benches in these six cases were headed by Chief Justice Misra. These six cases heard by constitution benches were on diverse constitutional issues – the validity of Aadhaar; the validity of Section 377 of the Indian Penal Code which criminalized consensual adult homosexual acts; the validity of restricting women from entering the Ayyappa temple at Sabarimala; the validity of Section 497 of the IPC which permitted husbands to prosecute other men who had consensual sex with their wives (‘adultery’); whether legislators could be disqualified on the basis of charges framed against them in criminal cases (‘criminalization of politics’); and the correctness of the decision in the M. Nagaraj, which excluded the “creamy layer” from reservations for Scheduled Castes and Scheduled Tribes during promotion (‘reservations in promotions’).

Article 145(3) of the Constitution stipulates that all cases involving substation questions of law relating to the interpretation of the Constitution must be heard by a bench of the Supreme Court comprising of at least five judges, otherwise called constitution benches. The Supreme Court, in ordinary course, sits in benches comprising of two or three judges. In the Supreme Court’s recent past, there have been very few instances of numerous constitution benches being set up, particularly one right after the other. Nick Robinson et al’s analysis on constitution benches that have been set up between 1950 to 2009 brought to light that the number of constitution benches annually have dramatically declined from the 1960s when, on an average, more than hundred constitution benches were set up each year, to the 2000’s where that number dropped to less than seven benches per year.

Seen in this light, Chief Justice Misra was unusually proactive in constituting constitution benches and hearing the cases listed before such benches. In his tenure as CJI, for a little longer than thirteen months (August 2017 – October 2018), he constituted and headed at least thirteen constitution benches, six of which were constituted and delivered judgments in 2018. Aadhaar was heard from January 17 to May 10, 2018, the second-longest constitution bench hearing in the history of the Supreme Court. The other five constitution bench cases of 2018, in all of which judgments were pronounced in September, 2018, were heard one after the other from July 10, 2018 to August 30, 2018. This post is, largely, limited to the six constitution bench cases heard and decided in 2018.

The six constitution bench judgments delivered in September 2018 alone – as pointed out above – cumulatively run to 2,753 pages. Two thousand, seven hundred, and fifty-three pages that are to be read by judges, lawyers, Indians, and others interested in the working of the Indian judiciary. Of these six judgments, only two judgments (criminalization of politics and reservations in promotions) had a single majority opinion, i.e. where one judge wrote the judgment on behalf of all 5 judges. Two judgments (377 and Adultery), which reached unanimous conclusions, had four judges writing separate concurring opinions. Only two judgments had dissenting opinions (Aadhaar and Sabarimala). While Aadhaar had three judges deliver separate opinions, with Justice Chandrachud dissenting from the majority and Justice Bhushan going beyond what the majority held, Sabarimala had four judges deliver separate options, out of which only Justice Malhotra penned a dissenting opinion.

There are a few aspects that I would like to highlight regarding Justice Misra’s tryst with constituting constitution benches.

Procedural Lapses

First, the manner of constituting constitution benches, the notice given to the parties and their lawyers, and the composition of these benches left much to be desired. On January 8, 2018, a writ petition, for admission, was listed before a three judge bench headed by Justice Misra challenging the validity of Section 377. At the stage of issuing notice on the petition itself, Justice Misra proceeded to refer the case to a larger bench. This is to be contrasted with the usual practice, where after notice is issued on a case, the two or three judge bench it is assigned to, if it deems necessary, refers the issue to a larger bench. This may seem like a minor technical impropriety, but seen along with other procedures that have been ridden a roughshod over, the reason for referring the 377 petitions directly to a larger bench, and then prioritizing the 377 petitions over other constitution bench cases, deserves examination.

On January 12, 2018, the Supreme Court registry issued a notice listing 8 constitution bench cases starting from January 17. The first case listed was Aadhaar (Note: Aadhaar went on to be argued for 38 days, with the judgment being reserved on May 10. Aadhaar was given the privilege of being the second longest constitutional bench hearing in the history of the Court since Independence. Importantly, the constitution benches that Chief Justice Misra constituted in 2018 only sat for 3 working hours on a good day, as opposed to the usual practice of sitting for at least 4 and a half hours. This could have been a contributing factor in the time taken to hear Aadhaar). In this January notice the 377 petition (titled Navtej Singh Johar and Ors. v. Union of India) was listed fourth in the order of hearing.

Soon after the Supreme Court re-opened after the summer break, to the astonishment of many, the Supreme Court registry issued a fresh notice on July 5, 2018, listing four cases to be heard starting from July 10, 2018. The first case listed in the new notice was on the validity of 377. One can only conjecture the reason for this new re-ordering. The lawyers for the 377 case were given a precious five days’ advance notice to prepare for a case that dealt with the fundamental rights of millions of Indians. This was not the only time this happened: as late as August 1, 2018, a constitution bench was constituted for hearing the case relating to reservations for promotions (the infamous manner and composition of the constitution bench headed by Chief Justice Misra in the 2017 petition setting out the CJI as the omniscient master of the roster has (rightly) already been heavily critiqued on this blog).

Bench Composition and Intellectual Conformity

Coming to the composition of benches, Chief Justice Misra has been a part of all, but one, constitution benches that sat during his tenure as CJI. This is not anachronistic. Robinson et al noted that the chief justice has historically sat on about 77% of constitution benches, and wrote the majority opinion in 21% of them. The only constitution bench that Chief Justice Misra constituted that he was not a part of was the one hearing the petition pertaining to impeachment proceedings moved by some parliamentarians against him. This constitution bench did not end up passing an order or a judgment as, after some oral arguments, the petitioners withdrew their plea. The manner of the constitution bench formed to hear the impeachment petition is also very circumspect.

Robinson et al also noted that:

Strikingly, we could only locate 10 times the chief justice has been in dissent in the history of all constitution benches (he wrote a dissenting opinion in eight of these cases). This record may indicate that the chief justice is potentially picking benches that are more likely to decide in a way that he favours.

 

How does Chief Justice Misra fair in this regard? Chief Justice Misra has not dissented even once in a constitution bench that he headed as the CJI. To be fair, as Robinson has pointed out, this is not something unique to Chief Justice Misra, and most CJIs have never dissented in constitution bench cases. On the issue of “picking the benches”, however, four of the six 5-judge benches of 2018 cases had the same composition (J. Nariman, J. Khanwilkar, Chandrachud and Malhotra JJ). Aadhaar, which had a (only slightly different composition) had Justices Sikri and Bhushan in the places of Justices Nariman and Malhotra (who was inducted as a judge only in July 2018). However, Justices Sikri and Bhushan were a part of at least six other constitution benches constituted by Justice Misra, in 2017 and 2018. The case pertaining to reservations against promotions had a unique bench composition that consisted of Justices Kurian Joseph and Sanjay Kishan Kaul, in addition to Justices Misra, Khanwilkar, and Malhotra. This case was the only constitution bench judgment that had one of the 4 senior-most judges (Justice Joseph), apart from the CJI, as a part of the 5-judge bench. Not a single constitution bench set up by Justice Misra, apart from this one, had any of the next 4 senior-most judges. Recall, the infamous press conference held by the 4 senior judges where one of their grievances was the assignment of cases by the Justice Misra to “benches of his preference.”

Concurring Judgments and Inordinate Length

Second, Justice Misra’s frenzy of setting up numerous constitution benches, with six major judgments all delivered in his last month at Court also resulted in a number of these decisions having concurring opinions. In fact, the only two cases that have single majority opinions (criminalization of politics and reservations in promotions) are the ones that were heard in the end. My problem isn’t just with the practice of authoring concurring opinions, but the form and manner of doing so. In the 5 constitution bench cases heard in the second half of 2018, the judgments display a clear lack of one concurring opinion engaging with the other. This is purely in the realm of speculation, but my sense on reading the judgments were that all the opinions were authored as disparate opinions which did not have the advantage of referring to the others, not at least till the very end. For instance, in Sabarimala, the three concurring opinions by Chief Justice Misra and Justices Nariman, and Chandrachud, all list out the facts, the proceedings before the Kerala High Court, extensively quote the same precedents, and summarise the submissions made by counsels. They also take divergent routes to arrive at the same conclusions. It is arguable that if the other majority judges have not dissented from specific findings, all concurring judges are speaking for the majority and that is binding on all benches of co-equal or lesser strength and on all high courts. However, it definitely leaves the door open for more judicial hours and challenges being wasted on discussing which of the majority opinions holds the field and if indeed silence by other concurring judges amounts to acceptance. Clarity should be the cornerstone of decisions, particularly larger bench decisions of the Apex Court. Unfortunately, these six decisions, with their numerous concurrences which do not speak to or inform each other, are a far cry from the clarity and precision one would expect.

Third, on a slightly related note, these six decisions, with their numerous concurrences and a few dissents, apart from being convoluted, are incredibly lengthy. The Aadhaar judgment alone runs to 1,448 pages. I’d wager that out of the 1.3 billion Indians, a maximum of 200 have read the Aadhar judgment from cover to cover. Robinson et al note that “in the four-year period from 2006 to 2009, there were 12 constitution bench decisions, of which three (or 25%) were over 100 pages and two (or 17%) were over 200 pages, making determining the law an almost monumental reading feat.” I wonder what they would have to say about the colossal task of imbibing 2,753 pages all delivered in less than a month. The lengths of other judgments by constitution benches headed by Chief Justice Misra in 2017 range around the 500-page mark. The straight-forward question of whether Parliamentary Standing Committee reports could be relied on in proceedings before Courts took the Supremes 338 pages to decide. Ironically, the same Supreme Court in September, 2018 waxed eloquent about the need for “open justice” while permitting live streaming of its proceedings. Is “open justice” then limited only to the physical accessibility of court room proceedings? Does it not necessarily extend to its judgments? Who is the Supreme Court writing its judgments for and who are they applicable to? Surely, not only a handful of elite lawyers. Are judgments an exercise of displaying deep grasp on abstract philosophical principles? The Supreme Court is routinely deciding matters that directly affect the rights and obligations of the citizenry. Couched in flowery prose, running to a few hundred pages, makes these decisions which have a real impact on the very lives of the citizens far out of reach of these very citizens its diktats are addressed to. These verbose judgments also make it impossible for commentators to meaningfully distill them in easy and comprehensive summaries. Contrast this with the South African Constitutional Court, where the judgments are generally well under 200 pages, and the Court issues a two or three pages’ long media summary along with the judgment, making them very accessible. While this criticism of verbosity and inaccessibility does not extend only to judgments in the Justice Misra era, a CJI who fashioned himself as omniscient, could surely lead by example in being concise and precise.

I end with the hopeful note that future “masters” at the helm run a tighter ship, not only in transparent selection of cases to be heard by larger benches and their composition, but also in ensuring dialogue between the judges of larger benches and in making judgments shorter and possibly, more accessible. Judges, even those hailed as the most progressive, would do well to introspect about how best they could, sitting in their ivory tower, speak to us, the laypersons, about matters that affect our very existence.

Guest Post: Acquitted but not yet Free – the Constitutionality of Section 437-A Cr.P.C.

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(This is a guest post by Abhinav Sekhri, cross-posted from The Proof of Guilt blog with permission.)

The Criminal Procedure Code 1973 [Cr.P.C.] was subjected to significant amendments in 2009. The law on arrest was drastically altered following Supreme Court admonition, and victims were given a real foothold in the criminal process for the first time. Amidst all this, a provision was added to the section on Bail in the Cr.P.C.: Section 437-A. What does it say?

Before conclusion of the trial and before disposal of the appeal, the Court trying the offence or the Appellate Court, as the case may be, shall require the accused to execute bail bonds with sureties, to appear before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of the respective Court and such bail bonds shall be in force for six months [Section 437-A(1)]

Through this post, I will try and convince the reader that Section 437-A Cr.P.C. is unconstitutional. The post first cursorily explains the concept of bail and engages with the problematic consequences flowing from the text of Section 437-A. It then discusses the origins of the provision, before moving on to argue that it is contrary to Articles 14, 19, and 21. The last section considers that there are two options, reading down Section 437-A or striking it down completely, and I support the latter course.

Understanding Bail and the Text of 437-A
One often comes across “bail” in context of criminal trials and investigations. What does this mean? In such scenarios (and others), where a person is in the crosshairs of the legal system, the law wants to ensure that legal proceedings are not frustrated by persons fleeing the jurisdiction. An obvious way to address this is to arrest everyone. But that is hardly proportionate to the needs of law enforcement and is far too heavy a strain on State resources.

Bail is the answer to this problem. The person is notionally still in the custody of the court and not at liberty, but is not actually in fetters. Note, that as the law would always need a guarantee of personal appearance, all defendants once in the crosshairs of the system are either on bail or in custody. How does it ensure appearance when required? By imposing certain conditions while releasing the person, chief among which is a requirement to appear in court or before the police. Non-compliance with the conditions is met by the threat of arrest, often along with a threat of imposing financial consequences such as forfeiture of property to the State. The financial threat often extends to other persons called “sureties”, who are thus incentivised to ensure the defendant does not flee.

Now, consider the text of Section 437-A Cr.P.C. It is very broad: the court shall require bail bonds, with sureties, before conclusion of trial and disposal of appeal. This throws up a bunch of questions. First, does it mean that the court will not proceed with the trial or appeal before getting such bail bonds? Second, if the court does proceed with the trial / appeal and finds the defendant innocent, would she then remain in custody if she cannot find sureties or comply with the other conditions imposed for bail?

Section 437-A Cr.P.C. allows for both of these eventualities. And it is for this reason that the High Courts of BombayAllahabad, and Himachal Pradesh have clarified that courts within their jurisdiction must not apply the provision in a way that causes either of these results to follow. There will be some states that I have missed, but I am certain that there are many others where no such clarification exists today. Nor has any guidance been issued by the Supreme Court, and so, it is very possible that both of these problematic outcomes are being seen across the country. From here on, this post will focus on the second of the two outcomes: the continued detention of persons acquitted of all charges for their failure to post adequate bail bonds.

The Genesis and Object of Section 437-A
I mentioned that the guidelines issued by certain High Courts curbed certain uses of Section 437-A Cr.P.C. but have not yet explained how they wanted the provision to be applied. The Courts suggested that the provision is a means to ensure that an acquitted person is available to contest any eventual appeal by the State, and so the bail bonds should only be required at the end of a trial before judgment. They also suggest that bail might be given without sureties if an acquitted person cannot find sureties.

The history of Section 437-A supports this reading. Before it was added to the Cr.P.C. in 2009, the only other provision dealing with a need to detain persons pending an appeal against acquittal was Section 390 Cr.P.C. This empowers the appellate court to detain persons pending an appeal against acquittal, if it is convinced that of the threat of them evading the legal process. But in this scheme there still exists a period between the acquittal and appeal when a scheming defendant could still flee and frustrate the State’s appeal. Taking note of this (and abortive attempts by the Gujarat High Court to fill the gap) the Law Commission in Report No. 154 of 1996 recommended insertion of a Section 437-A Cr.P.C. Why? It said that the Cr.P.C. was “silent on the point of securing attendance” during an appeal, and there had been instances where appeals against acquittals were delayed or dismissed due to this failure in securing attendance.

Two problems are immediately apparent here. First, the Law Commission said that the Cr.P.C. was “silent” on securing attendance for appeals but did not even look at Section 390 Cr.P.C. which did cater to this need, albeit differently. Second, the bogey of appeals against acquittals being dismissed was raised without any empirical data about how many such dismissals happened and why. For instance, if the prosecution filed an appeal years after acquittal (as it often does) and then failed to find the original defendant, then it is rather unreasonable to claim that a person fled or frustrated the appeal and piggyback on the dismissal of the appeal to create a perceived need for Section 437-A

Importantly, the Law Commission acknowledged that this measure might be challenged under Article 21 of the Constitution. Its basis for concluding that the proposal was constitutional was simple: the Cr.P.C. allowed appeals against acquittals, and so seeking bail bonds till the limitation period for filing an appeal subsisted was not a “restraint” on personal freedom. Further, proposed Section 437-A was eminently reasonable where it involved no “restriction of liberty or his freedom of movement”.

When Section 437-A Cr.P.C. was ultimately passed by Parliament, there were two big changes from the suggested draft in Report No. 154. The final version of Section 437-A said that a court shall require bonds while the draft version did not make it a mandatory requirement. At the same time, the final version only needed the bail bonds for six months, down from the one year period that the Law Commission had suggested.

Unconstitutional Fetters on Personal Liberty
Practically, Section 437-A Cr.P.C. does not make much of a difference to defendants already out on bail during trial. In such situations, it is easy to extend the period of that bail bond for six months after acquittal by changing the form of the bail bond. But Section 437-A works very differently for those defendants who are in actual custody, unable to post bail by finding sureties or complying with any financial conditions that a court might impose. It is only for these persons that the two scenarios highlighted earlier – delayed trial and delayed effect of acquittal – are possibly realised.

On the face of it, Section 437-A Cr.P.C. though seemingly neutral, is very selective in its impact and discriminates against one class of persons. The classification that it effects is purely built on levers of wealth, influence, and privilege, rather than pursuit of the object behind Section 437-A (perhaps they indirectly affect that object, at best). The effect of this discrimination is to deprive such persons of their right to life under Article 21 of the Constitution, by not only possibly denying a trial itself, but more importantly, by not allowing them to enjoy the liberty that is the natural concomitant of an acquittal. Thus, Section 437-A in its present form offends the equality guarantee of Article 14.

Actual confinement of a citizen after acquittal obviously curtails the freedom of movement that she is guaranteed under Article 19(1)(d). But both the legal and actual fetters on personal liberty curtail the fundamental right that Article 21 protects. Which means we must consider whether Section 437-A Cr.P.C. is protected by the tests governing restrictions of these fundamental rights.

Section 437-A Cr.P.C. contains no sense of proportionality. It does not require the State to satisfy a court that an acquitted persons might possibly flee to avoid the appeal. Nor does it require the State to show that a person, if immediately released, will pose a threat to public safety. Instead, the provision demands every acquitted person to remain in custody of the court despite till the State can make up its mind about pursuing an appeal. Thus, the rights under Articles 19(1)(d) and 21 are rendered subservient to administrative convenience, pure and simple. And this after a person is declared “not guilty”, after a full-length trial or appeal.

Reading Down vs. Striking Down
No wonder those High Courts which have recommended that personal bonds be taken are effectively reading down the text of the provision (supported in this paper too, which discusses other issues with the provision). The constitutional problems in giving Section 437-A Cr.P.C. its fullest expression are obvious, and even the Law Commission in 2017 also suggested a relook is now necessary. But here, I argue that reading down cannot save the provision and it must be struck down altogether.

First, a question of means. Saving Section 437-A Cr.P.C. does not involve merely filling in gaps or creatively interpreting the text. It involves actively re-writing it, and that is something courts cannot do. The requirement that a court “shall” take bonds with sureties will be re-written as something it “may” do. Further, the scope of discretion is altered not to allow a court to forego the demand for bail bonds altogether, but to insert the words “personal bond” in Section 437-A to change the kind of bail bonds that are required.

But far more important is the question of principles. Section 437-A Cr.P.C. must be struck down for it automatically breaks the link between a judgment of acquittal and its legal effects, in the absence of any appeal preferred by the State. This is perhaps the most problematic part of the provision At one level, it creates a conflict within the Cr.P.C. Today, Section 354(1)(d) Cr.P.C. still states that a judgment of acquittal requires that a court direct the person be set at liberty. Without amending what it means to be acquitted directly, the legislature has indirectly rendered all acquittals subject to a condition of complying with Section 437-A. Can the legislature indirectly alter the very meaning of an acquittal at all stages within our criminal justice system in this indirect fashion? No, it cannot. Because this link between a judgment of acquittal and being set at liberty is protected through Article 21 itself. It cannot be severed, and certainly not to cater to administrative convenience.

Conclusions
Perhaps I am “fetishising” what an acquittal means – after all, it is not final till confirmed in appeal. But that finality is in respect of an acquittal being legally unassailable. It does not make the effects of an acquittal automatically contingent upon the possibility of appeal proceedings. Rather, not treating an acquittal as final allows an appellate court to delay giving it effect. This delay can only occur after giving a full hearing to both sides. Any other position would deprive the verdict of a lower court of all sanctity lest it be confirmed in appeal. Moreover, it would mean that persons are condemned from the date of arrest till their case is resolved by the highestappellate court, and continue to suffer all the collateral consequences of criminal convictions for this unconscionably long period of time as well.

This is why the remedy provided by Section 390 Cr.P.C. makes sense. The state can seek detention of the acquitted person pending appeal if it can show that it is necessary, but the default is still that a person remains at liberty. Moreover, an appeal having been filed gave the court proper jurisdiction to hold someone in custody. What if, after some empirical study, it is found that something like Section 437-A is necessary to prevent persons from fleeing and frustrating appeals? Then, a hearing similar to that under Section 390 is the answer, not a position that changes the default position. If the trial court / appellate court is satisfied of a need to detain after having heard both sides it could pass appropriate orders, with the denial of liberty narrowly tailored to account for how long the State might take to file an appeal rather than simply hold persons in custody for fixed periods.

Under no situation is Section 437-A Cr.P.C. the answer. Parliament cannot pass statutes that deem an entire population to be a suspect class for administrative convenience, even after a court of proper jurisdiction has pronounced them innocent. If this is so, then the guarantee under Article 21 might soon be no better than a fig leaf.

“I send my soul through time and space/ To greet you. You will understand…”: On Sabarimala and the Civil Rights Cases

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From 1861 to 1865, a long and bitter civil war was fought in the United States of America. One of the major causes of the war was a dispute over the institution of slavery. After the pro-slavery Southern States were defeated, the institution was abolished throughout the U.S., Black people were formally emancipated, and three important amendments to the American Constitution were passed. The first of these, the thirteenth amendment, stated that “neither slavery nor involuntary servitude, except as a punishment for crime … shall exist within the United States.” The federal legislature (i.e., “Congress”) was given the power to enforce the article through “appropriate legislation.” The fourteenth amendment granted to all the “equal protection of laws” (among other things), and the fifteenth amendment prohibited the denial of the right to vote on account of race.

The Civil Rights Act of 1875 

Through the late 1860s and 1870s – a time known as the “Reconstruction Era” – the Federal legislature passed laws to implement the promise of these constitutional amendments, and to initiate positive action aimed at eradicating the continuing effects of slavery. One of these laws was the Civil Rights Act of 1875. Titled “An act to protect all citizens in their civil and legal rights“, the law stipulated that:

… all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement.

And:

… any person who shall violate the foregoing section by denying to any citizen … the full enjoyment of any of the accommodations, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such denial, shall, for every such offense, forfeit and pay the sum of five hundred dollars to the person aggrieved thereby … and shall also …upon conviction shall be fined not less than five hundred nor more than one thousand dollars, or shall be imprisoned not less than thirty days nor more than one year.

The Civil Rights Act of 1875 created what we now call “horizontal rights”: that is, rights enforceable against private parties. The law proceeded on the understanding that racism was more than just a function of State action, and was also deeply embedded within the social fabric. The subordination of black people, therefore, was not merely attributable to their formal status as slaves (now abolished). It was equally due to institutionally established conduct that systematically excluded them from mainstream economic and social life. And the only way this could be remedied was by putting constraints upon seemingly “private” expressions of racism, when they involved access to “public” spaces such as inns, modes of transport, places of entertainment, etc. We are familiar with a similar provision in the Indian Constitution: Article 15(2).

The Civil Rights Cases: The Judgment of the Majority 

The Civil Rights Act was challenged before the American Supreme Court. It was argued that the Federal Congress had no power to regulate the relationships between private individuals. The Fourteenth Amendment only protected individuals from abusive State power. In the absence of a State law or State action, therefore, the Fourteenth Amendment did not authorise Congress to pass a law such as the Civil Rights Act, which only dealt with private conduct. On the other hand, the Government argued that the Fourteenth Amendment was wide in scope, and permitted Congress to enforce its provisions through appropriate legislation. The Government also argued that the denial of civil rights was an inseparable element of slavery and involuntary servitude; consequently, the law was justified under the Thirteenth Amendment as well.

By an 8 – 1 Majority, the Supreme Court struck down the Civil Rights Act as unconstitutional. The Court held that the federal Congress had no authority to regulate private conduct or impose horizontal obligations (as that was the domain of the states, under the federal scheme), and that the law was not saved either by the Thirteenth or the Fourteenth Amendment. On the Thirteenth Amendment, the Majority opinion – authored by Justice Bradley – had this to say:

The long existence of African slavery in this country gave us very distinct notions of what it was and what were its necessary incidents. Compulsory service of the slave for the benefit of the master, restraint of his movements except by the master’s will, disability to hold property, to make contracts, to have a standing in court, to be a witness against a white person, and such like burdens and incapacities were the inseparable incidents of the institution. Severer punishments for crimes were imposed on the slave than on free persons guilty of the same offences. Congress, as we have seen, by the Civil Rights Bill of 1866, passed in view of the Thirteenth Amendment before the Fourteenth was adopted, undertook to wipe out these burdens and disabilities, the necessary incidents of slavery constituting its substance and visible form, and to secure to all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom, namely, the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell and convey property as is enjoyed by white citizens… [however] Congress did not assume, under the authority given by the Thirteenth Amendment, to adjust what may be called the social rights of men and races in the community, but only to declare and vindicate those fundamental rights which appertain to the essence of citizenship, and the enjoyment or deprivation of which constitutes the essential distinction between freedom and slavery. (p. 23)

For the Majority, therefore, the word “slavery” was a very specific term with a specific content (born out of historical experience), and its scope could not be stretched beyond that historically-determined content, to include adjusting the “social rights of men and races.” Only the “incidents” of slavery – its “substance” and “visible form” – were made subject to legal prohibition. Denial of civil rights by private parties did not constitute an “incident” of slavery.

The Civil Rights Cases: The Dissenting Opinion

Harlan J. disagreed. In a landmark dissent that has gone down in constitutional history, he observed that:

The Thirteenth Amendment, it is conceded, did something more than to prohibit slavery as an institution resting upon distinctions of race and upheld by positive law. My brethren admit that it established and decreed universal civil freedom throughout the United States. But did the freedom thus established involve nothing more than exemption from actual slavery? Was nothing more intended than to forbid one man from owning another as property? Was it the purpose of the nation simply to destroy the institution, and then remit the race, theretofore held in bondage, to the several States for such protection, in their civil rights, necessarily growing out of freedom, as those States, in their discretion, might choose to provide? Were the States against whose protest the institution was destroyed to be left free, so far as national interference was concerned, to make or allow discriminations against that race, as such, in the enjoyment of those fundamental rights which, by universal concession, inhere in a state of freedom? (p. 35)

Noting the lack of logic behind such a constrained interpretation, Harlan J. then went on to observe:

I hold that, since slavery, as the court has repeatedly declared … was the moving or principal cause of the adoption of that amendment, and since that institution rested wholly upon the inferiority, as a race, of those held in bondage, their freedom necessarily involved immunity from, and protection against, all discrimination against them, because of their race, in respect of such civil rights as belong to freemen of other races. Congress, therefore, under its express power to enforce that amendment by appropriate legislation, may enact laws to protect that people against the deprivation, because of their race, of any civil rights granted to other freemen in the same State … What has been said is sufficient to show that the power of Congress under the Thirteenth Amendment is not necessarily restricted to legislation against slavery as an institution upheld by positive law, but may be exerted to the extent, at least, of protecting the liberated race against discrimination in respect of legal rights belonging to freemen where such discrimination is based upon race. (p. 38)

And consequently:

They [i.e., the burdens sought to be removed by the Civil Rights Act] are burdens which lay at the very foundation of the institution of slavery as it once existed. They are not to be sustained except upon the assumption that there is, in this land of universal liberty, a class which may still be discriminated against, even in respect of rights of a character so necessary and supreme that, deprived of their enjoyment in common with others, a freeman is not only branded as one inferior and infected, but, in the competitions of life, is robbed of some of the most essential means of existence, and all this solely because they belong to a particular race which the nation has liberated. The Thirteenth Amendment alone obliterated the race line so far as all rights fundamental in a state of freedom are concerned. (pp. 40 – 41)

Between the Majority and the Dissent, therefore, there was a fundamental interpretive disagreement. The Majority believed that words such as “slavery” and “involuntary servitude” had clear and sharply-defined boundaries, determined a priori. These boundaries were fixed by the manner in which the words were been generally used, and by the range of elements that they had been historically believed to have referred to – on one specific and constrained reading of history. Slavery, therefore, was “slavery” – the institution under which one set of human beings was treated as the property of another, and was denied legal freedom. Once that institution was abolished, there was no further role for the Thirteenth Amendment to play.

Harlan J., however, thought otherwise. As he began his dissent by noting, “it is not the words of the law, but the internal sense of it that makes the law; the letter of the law is the body; the sense and reason of the law is the soul.” This may sound hyperbolic and manipulable, but as Harlan J.’s analysis showed, it is anything but. As Granville Austin would note many years later about the Indian Constitution, Harlan J. believed that “fundamental rights were framed in the backdrop of fundamental wrongs.” To understand the scope of fundamental rights, therefore, you had to first ask yourself: what were the fundamental wrongs that a Constitution intended to redress and to transform? This required a broad interpretive horizon, and a deeper historical vision. So where the Majority saw only the legal institution of slavery, Harlan J. saw the conceptions of racial superiority and inferiority that constituted the foundations of that institution. Therefore, while the Thirteenth Amendment used the word “slavery” in order to highlight the primacy of that institution to the Constitution’s transformative vision, and its unmatched moral horror, it also included – by implication – the acts, practices, and institutions of racial superiority and inferiority that formed the warp and the woof of the fabric into which slavery was sewn.

And one such practice – integral to the institution of racism – was the denial and exclusion of people, on the basis of race, by those who owned and controlled those public spaces.

Sabarimala and the Clash over Article 17 of the Constitution

The Supreme Court’s Sabarimala judgment has been heavily debated. Here, I don’t want to re-litigate the multiple contentious points in the judgment, but focus only on one issue: the constitutional disagreement between Chandrachud J. (concurring) and Malhotra J. (dissenting) on the interpretation of Article 17 of the Constitution. This issue was argued in some detail before the Court, but the majority opinions of the Chief Justice and Nariman J. did not consider it. Both Chandrachud J. and Malhotra J. did consider it, however, and as I shall argue, their disagreement bears a striking parallel with the constitutional debate at the foundation of the Civil Rights Cases.

Article 17 of the Constitution prohibits “untouchability” and its practice “in any form.” The question in Sabarimala was whether the exclusion of women between the ages of ten and fifty from the Sabarimala Temple fell within the scope of Article 17. For the purpose of this essay, I am going to bracket the factual debate over whether the prohibition flowed from the fact that the ten-to-fifty age-group was a proxy for menstruating women, or whether it was to do with the brahmachari character of Lord Ayappa. Whatever the origins, the fact is that menstruation was argued as one of the two reasons in Court (as well as set out in an affidavit), and the Court was therefore obliged to examine it. Consequently, putting aside for the moment the specific facts of Sabarimala, let us consider how the two judges analysed the relationship between menstruation-based exclusion and Article 17.

For Malhotra J., the issue was straightforward. Article 17 was intended to prohibit caste-based untouchability. It was an expression of the framers’ revulsion at the most horrific social practice in India, an acknowledgment of the immense suffering that it had caused for centuries, and a promise to make amends. “Untouchability” was a concrete word, with concrete, historically determined content. It could not be extended to include any other form of social exclusion.

Chandrachud J. did not disagree with the centrality of caste-based untouchability to Article 17, or with this sense of what Article 17, at its core, was about. As he noted:

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

Chandrachud J. also believed, however, that this was not only what Article 17 was about: there was something more to it:

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

In other words, like slavery was the most horrific and most tangible manifestation of racial hierarchy, untouchability was the most horrific and most tangible manifestation of  an exclusionary social order that was grounded in ideas of purity and pollution. There were, however, other manifestations of that order as well. In the case of slavery, it involved exclusion from public spaces, even to the formally “free”. In the case of menstruation, it involved exclusion from public spaces on the ground of the impurity of a biological characteristic predominantly associated with women.

It should be noted that the consequences of menstruation-based taboos are grave and severe. At various places and at various times, they have involved actual prohibitions upon touching women on their period, and/or keeping them in forced seclusion. As this article notes, for example:

According to a 2016 analysis conducted by the Tata Institute of Social Sciences (TISS), only one in eight girls surveyed faced no restrictions at all during their periods. Published in the British Medical Journal, the analysis used data collected from 138 studies and more than 97,000 adolescent Indian girls between 2000 and 2015. Further, 8 in 10 girls surveyed said they aren’t allowed to enter religious shrines when they are menstruating; 5 in 10 girls said they were not allowed to touch people or food in the kitchen; and 2 in 10 said they were asked to sleep in a separate room.

This is not to suggest for one moment that menstrual taboos are equivalent to caste-based untouchabiliy, or that Article 17 of the Constitution accords equivalent concern to the two. The point, however, is this: just like untouchability is at the centre of – and the most savage and vicious embodiment of – a structure of hierarchy, subordination, and violence, menstrual taboos are embodiments of patriarchal institutions that have been historically responsible for the subordination of women; and at the heart of both – caste and patriarchy – are concepts of purity and pollution.

It was this insight that was grasped by Chandrachud J. when he held that social exclusion based on menstrual taboos falls within the scope of Article 17 (a conclusion that he buttressed by extensive references to the Constituent Assembly Debates, where a number of framers believed that by adding the words “in any form” to Article 17, they were striking at the root of all forms of social exclusion based in structures of hierarchy and subordination, without taking away from the centrality of caste-based untouchability). And the similarity with Harlan J.’ s dissent should now be clear: Like Harlan J., Chandrachud J.’s enquiry began with the question of what kinds of injustices the Constitution intended to transform. The meaning and scope of the words of Part III would flow from the answer to that question.

And the answer?

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

Conclusion 

The title of this essay is borrowed from James Elroy Flecker’s famous poem, “To A Poet A Thousand Years Hence.” Written by one poet to another (unknown) poet in a future time, the poem ends with the lines: “Since I can never see your face,/ And never shake you by the hand,/ I send my soul through time and space/ To greet you. You will understand.” 

Like poets, judges too are in silent conversation with each other, across the gulfs of time and space. Slavery was the so-called “original sin” of the American State’s founding, and it was the one social institution that the framers of the Reconstruction Amendments decided to abolish directly by Constitutional fiat, rather than leave it to legislation. Perhaps unsurprisingly, it was the interpretation of that word that caused one of the most memorable debates in American constitutional history, and one of the most famous dissents of the American Supreme Court. Similarly, it was untouchability that our framers decided was fundamental enough to be prohibited directly by our constitutional order; and in 2018, it is a debate over the interpretation of that word that has brought to the fore two different visions about how to read the Constitution, and more fundamentally, what the Constitution is for. If Harlan J. did send his soul through time and space, he would – perhaps – be content by the manner in which the conversation has now been carried forward by the Indian Supreme Court in 2018.

Guest Post: Noisy Judges, Moderate Judgments: A Critique of UCO Bank v Dipak Debbarma

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(This is a guest post by Anmol Jain.)

Ranjan Gogoi, J. has been appointed the 46th Chief Justice of India. It is believed that he favours judicial restraint, and that the judiciary should maintain the separation of powers. This might be of high bearing, because it indicates the approach of the Supreme Court towards the upcoming constitutional matters. It is a possibility that we may witness a fewer number of judgments with the likes of Sabarimala [Indian Young Lawyers Association v. The State of Kerala], where the Court is actively involved in doing social justice. I shall support this assertion through a critique of a significant judgment delivered by Gogoi, J, in UCO Bank v. Dipak Debbarma, which has not received enough discussion. However, the impact of this judgment is serious.

This case concerns a question of repugnancy between the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [“SARFAESI Act”], which is a central law, and Tripura Land Revenue and Land Reforms Act, 1960 [“Tripura Act”], which is a state law. The SARFAESI Act is covered under entry 45 of List I of the Seventh Schedule to the Constitution, covers ‘banking’ as a subject matter of the Union, whilst the Tripura Act is covered under entries 18 [Land and incidental matters thereof and covers agricultural loans] and 45 [Land Revenue and incidental matters thereof] of the State List. The primary issue before the court was regarding the conflict between Section 13 of the SARFAESI Act and Section 187 of the Tripura Act. They read as follow:

SARFAESI: “13. (1) Enforcement of Security Interest – … any security interest created in favour of any secured creditor may be enforced, without the intervention of the court or tribunal, by such creditor in accordance with the provisions of this Act. …

… (4) In the case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely:- (a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset…”

Tripura: “187. Special provision regarding Scheduled Tribes – … Provided that the land transferred to a co-operative society or to a bank by way of mortgage in pursuance of clause (c) shall not be transferred by such society or bank to a person who is not a member of the Scheduled Tribes without the permission of the collector in writing.”

Put simply, Section 13 of the SARFAESI Act permits the secured creditors to enforce the security interest without the intervention of any judicial authority, whilst Section 187 of the Tripura Act prohibits the banks from selling mortgaged land of a person belonging to a Schedule Tribe [“ST”] to any person not belonging to an ST unless permitted by the Collector. The Court found an irreconcilable conflict between the two provisions on account of overstepping by the Tripura Act into an area of banking covered by the SARFAESI Act [¶15]. To determine which law shall prevail, the Court adopted the test of ‘dominant legislation’. According to this test, in the event where the ‘incidental encroachment’ by a legislation conflicts with another legislation actually enacted by the ‘dominant power’, the latter shall prevail [ITC Limited v. Agricultural Produce Market Committee, (2002) 9 SCC 232, ¶94]. Here, ‘incidental encroachment’ signifies a situation where a State law legislates on the subjects provided under the Union list and vice versa; and ‘dominant power’ signifies that entity which is authorised to make the law. For instance, for an item under the Union list, the Parliament is the dominant power and for an item under the State List, the State Legislature is the dominant power. Applying this test, the Court held SARFAESI Act is the dominant legislation for matters concerning banks and thus, the SARFAESI Act prevails.

I respectfully disagree with the decision of the Court for multiple reasons that, interestingly enough, originate from the precedents cited by the Court in the judgment itself. This approach shall examine the limited vision adopted by the Court while delivering this verdict.

First, I contend that there is a minimal encroachment by the Tripura Act on the Union list, which cannot be termed as an irreconcilable conflict. Section 187 of the Tripura Act is not primarily intended to legislate on the ‘banking’ matters but to provide for land reforms and an arrangement for a situation of default in repaying the agricultural loans. This claim is supported by the Statements of Objects and Reasons [See Rangamayee Chowdhury v. State of Tripura, 2010 SCC OnLine Gau 656] attached to the Second Amendment Act of 1974 and the Sixth Amendment Act, 1994 that had substantially modified Section 187 of the Tripura Act. They state that the Amendment Acts seek to introduce land reforms which are essential to remove the impediments in the matter of agricultural production, eliminate elements of exploitation and social injustice in the agrarian system, and provide certain extensive amendments to give relief to the members of the Scheduled Tribes in the State.

Therefore, the incidence on the ‘banking’ matters is minimal and is limited only to those cases involving an ST member. The banks are still permitted to sell the mortgaged securities. Section 187 merely qualifies the power of the banks by keeping the larger interest of the society in mind. The prime reason for having such a provision in the law-books is to secure the interests of the deprived community. Historically, the feudal lords and then the landlords, never let the tenants own the lands they were tilling upon. Now, if the already deprived section of the society is further deprived of their land holdings due to failure to pay loans, there shall be no improvement in their living standard.

At the same time, I understand that the interests of the banks are required to be secured. Therefore, the State Legislatures have devised such an arrangement wherein the banks are allowed to sell the lands of the defaulting mortgagee but they can sell it only to another ST member. This ensures that the ST community as a whole does not lose any part of land due to their economic vulnerability. Perhaps such an arrangement may not be viable in a long-term, but this determination is the prerogative of the Legislatures.

The Rajasthan High Court, in State of Rajasthan v. Uka [2010 (2) RLW(RJ) 705], had confronted a similar provision wherein the banks were prohibited from selling the mortgaged securities belonging to the SC/ST members to a person who is not a member of these communities. The Court upheld the validity of the provision, though with a reservation, which was expressed by Dr Vineet Kothari, J. in the obiter dictum. The Court stated that:

Such a restriction…may give rise to a vicious circle of poverty…The purpose was obviously to protect the interest of the weaker section of the society like the persons belonging to SC/ST category. If after the land of such poor agriculturists belonging to SC/ST being acquired by Bank is again to be sold to a person of same weaker section, it is almost certain and very likely that it would not fetch the full and proper market value, which could be fetched if such agricultural land is sold in the open market and so-called affluent and richer people are also allowed to buy such land.

I do not wish to further discuss the debate about whose interests should take precedence, the interests of the members of ST community or of the banks. I believe the former shall win because our constitutional setup warrants that social justice is to be done in such a manner that an unequal can be brought at a par with the so-called equals. Even the recent case of Jarnail Singh v. Lachhmi Narain Gupta (¶19) acknowledges the fact that backwardness of the members of these communities is presumed and therefore, the government need not collect the data to prove backwardness before making provisions for reservation in promotion for SCs and STs.

Thence, I conclude that the primary object of Section 187 of the Tripura Act is to further the object of land reforms and not to legislate on banking matters. The incidental encroachment is minimal in nature. Now, the question is that whether such minimal encroachment enjoys a constitutional safeguard or not.

The Court cites In re, Special Reference No. 1 of 2001 [(2004) 4 SCC 489, ¶13] and S. R. Bommai v. Union of India [(1994) 3 SCC 1. ¶276]. In these couple of cases, the Supreme Court had held that:

An entry in one list cannot be so interpreted as to make it cancel or obliterate another entry or make another entry meaningless. In case of apparent conflict, it is the duty of the court to iron out the crease and avoid conflict by reconciling the conflict. If any entry overlaps or is in apparent conflict with another entry, every attempt shall be made to harmonise the same.”

The courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States.

I find that the Court has done the opposite here. Instead of interpreting the two provisions harmoniously, the Court seems to focus on the conflict and ultimately finds Section 187 of the Tripura Act to be repugnant. Such an interpretation has indeed left Entry 18, List II of the Seventh Schedule to the Constitution as nugatory because now the State cannot make arrangements regarding the settlement of agricultural loans. However, if one reads it otherwise, i.e. if we rule that States can make arrangements regarding disposal of mortgaged security belonging to members of a particular community, it does not obliterate entry 45 of List I. ‘Banking’ matters are very vast in nature and the Central Government can still provide provisions regarding disposal of mortgaged security belonging members of all community but, the ST.

Further, the Court states that it is the ‘duty’ of the constitutional court to see if the conflict can be resolved by acknowledging the mutual existence of the two legislations (¶11). Also, it cites State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal [(2010) 3 SCC 571, ¶27] which provided that the principle of federal supremacy cannot be resorted to unless there is an irreconcilable direct conflict between the entries in the Union and the State lists. If we read Section 187 of the Tripura Act and Section 13 of the SARFAESI Act together, we find that both the provisions allow the bank to sell the mortgaged securities of the defaulting mortgagees. Therefore, I do not find any ‘irreconcilable direct conflict’ between the two provisions. Section 187 of the Tripura Act, which is a special provision, has merely narrowed the application of the general provision under SARFAESI, Act for larger public interest.

Furthermore, in In re, Special Reference No. 1 of 2001 [(2004) 4 SCC 489, ¶14, 15], the Supreme Court had held that:

An endeavour must be made to solve it, … by having recourse to the context and scheme of the Act, and a reconciliation attempted between the two apparently conflicting jurisdictions by reading the two entries together and by interpreting, and, where necessary modifying the language of the one by that of the other. … The doctrine of pith and substance is sometimes invoked to find out the nature and content of the legislation.

 

Though the Court has cited this precedent, but in vain. The doctrine of pith and substance would provide that Section 187 of the Tripura Act is a provision legislating on the matters concerning lands and agricultural loans but not banking. Therefore, we find that the conflict here is not irreconcilable; it just requires a broad vision warranted by the constitutional scheme to find that both the provision can mutually exist. The judgment has an effect of whittling down the powers reserved to the States to legislate of matters concerning lands, specifically agricultural lands.

Second, the court has employed the rule of dominant legislation to resolve the conflict. As per Rajan Gogoi, J.’s words, at ¶11, the said principle shall be applicable only if a pre-condition exits, namely, the parliamentary legislation is the dominant legislation and the state legislation, though within its own field, has the effect of encroaching on a vital sphere of the subject to which the dominant legislation is referable. As argued above, I believe that Section 187 of the Tripura Act does not encroach on a ‘vital sphere’ of the subject of ‘banking’. The only encroachment is regarding one of the banking functions, i.e. selling of the mortgaged security and concerns only one community.

Third, the Court also cites Vishal N. Kalsaria v. Bank of India [(2016) 3 SCC 762] but fails to adequately appreciate this case. In this case, the Court distinguished the objects of the SARFAESI Act and Maharashtra Rent Control Act, 1999[1] and held that a tenant cannot be arbitrarily evicted by using provisions of SARFAESI Act because once tenancy is created, the tenant can be evicted only after following the due process of law as prescribed by the Rent Control Act. The instant case presents an apt condition for the application of this precedent. The objects of the Tripura Act are different from the objects of the SARFAESI Act. Therefore, banks cannot be allowed to sell the mortgaged security of the defaulting mortgagees belonging to ST community using Section 13 of the SARFAESI Act while ignoring the rights of the STs granted under the Tripura Act.

One might disagree with my arguments. However, I believe that the Constitution demands contextual interpretation guided by the realities of the society. It would be wrong to treat the Constitution as a mere legal document. It is more than that. It is a political document. If we literally interpret a provision, we shall fail to uphold the underlined principles of our Constitution. Additionally, I do wish to clarify here that I believe judicial restraint. At the same time, I feel that the Courts should never abandon dynamism, at least when the matter is of constitutional significance.

[1] Object of the SARFAESI Act: to provide smooth and efficient recovery procedure to enable banks to recover non-performing assets. Object of the Rent Control Act: to control and regulate the rate of rent and to provide protection to tenants against their arbitrary evictions.

(The author is a third-year student at the National Law University, Jodhpur.)