The Aadhaar/PAN Judgment: Decoding the “Partial Stay”

In an article published today on Scroll.in, Apar Gupta makes an important point about the Supreme Court’s Aadhaar/PAN judgment: even as it upheld the constitutional validity of S. 139AA of the Income Tax Act against challenges based on Articles 14 (equal protection) and 19(1)(g) (freedom of trade), the Court nevertheless noted that 139AA would yet have to pass a “more stringent test” under Article 21 (right to life and personal liberty) of the Constitution. He makes the further point that the judgment “also reinforces the spirit of [the Court’s] earlier orders limiting the Aadhaar scheme by giving a limited stay on Section 139AA(2).

What is crucial to note is that the Court’s “limited stay” is itself based on the view that S. 139AA – and more broadly, Aadhaar – potentially violates Article 21 of the Constitution. The Court notes, in paragraph 125:

“At the same time, as far as existing PAN holders are concerned, since the impugned provisions are yet to be considered on the touchstone of Article 21 of the Constitution, including on the debate around Right to Privacy and human dignity, etc. as limbs of Article 21, we are of the opinion that till the aforesaid aspect of Article 21 is decided by the Constitution Bench a partial stay of the aforesaid proviso is necessary. Those who have already enrolled themselves under Aadhaar scheme would comply with the requirement of sub-section (2) of Section 139AA of the Act. Those who still want to enrol are free to do so. However, those assessees who are not Aadhaar card holders and do not comply with the provision of Section 139(2), their PAN cards be not treated as invalid for the time being. It is only to facilitate other transactions which are mentioned in Rule 114B of the Rules. We are adopting this course of action for more than one reason. We are saying so because of very severe consequences that entail in not adhering to the requirement of sub-section (2) of Section 139AA of the Act. A person who is holder of PAN and if his PAN is invalidated, he is bound to suffer immensely in his day to day dealings, which situation should be avoided till the Constitution Bench authoritatively determines the argument of Article 21 of the Constitution.”

There has been a fair amount of debate about what this paragraph actually means for taxpayers who do not yet have an Aadhaar number; for the moment, the debate appears to have been settled by a CBDT circular stating that all persons paying their taxes after July 1 must link Aadhaar and PAN. In my view, however, the importance of paragraph 125 lies not so much in the limited relief that it grants taxpayers in this specific litigation, but what it means for the larger Aadhaar challenges presently pending before various benches of the Supreme Court. What has not yet been noticed – or discussed – is that paragraph 125 will have a significant ripple affect on numerous other cases, starting with the hearing scheduled for June 27, where the question of making Aadhaar mandatory for seventeen social welfare schemes is due to be heard. In this essay, I will attempt to explain how.

When does the Court grant a “Stay”? 

A “stay”, as the word suggests, refers to a situation where a Court temporarily restrains one (or both) parties to a legal proceeding from taking certain actions until the case is heard and decided in full (a “stay” also refers to a situation where a higher Court halts the operation of the order of a lower Court, but we are not concerned with that here). Before granting or refusing a stay (or an “injunction”, as the case may be), a Court is supposed to carefully consider the pros and cons of the case before it. The traditional test for a stay is three-pronged: the Court must be convinced that the party asking for a stay has a “prima facie” good case; that the refusal to grant a stay will cause “irreparable harm“; and that the “balance of convenience” between the parties weighs in favour of a stay.

However, when the Court is faced with a request to stay a statutory provision (as opposed to private conduct or executive action), the test is much more rigorous. This is because laws, which emanate from the parliamentary-democratic-deliberative process, have a deep, presumptive legitimacy; and furthermore, their wide reach means that a stay will have broad and far-reaching consequences. For instance, in Bhavesh Parish vs Union of India, the Supreme Court held:

“When considering an application for staying the operation of a piece of legislation, and that too pertaining to economic reform or change then the courts must bear in mind that unless the provision is manifestly unjust or glaringly unconstitutional, the courts must show judicial restrain in staying the applicability of the same. Merely because a statute comes up for examination and some arguable point is raised, which persuades the courts to consider the controversy, the legislative will should not normally be put under suspension pending such consideration. It is now well- settled that there is always a presumption in favour of the constitutional validity of any legislation, unless the same is set – aside after final hearing and, therefore, the tendency to grant stay of legislation relating to economic reform, at the interim stage, cannot be understood. The system of checks and balances has to be utilised in a balanced manner with the primary objective of accelerating economic growth rather than suspending its growth by doubting its constitutional efficacy at the threshold itself.”

Consequently, when considering a constitutional challenge to a law (which is what the Court was doing in Aadhaar/PAN), a “stay” can be granted only if the provision is “manifestly unjust or glaringly unconstitutional“. The Court cannot grant a stay simply because, on balance, it would be the right or just thing to do.

The “Stay” in the Aadhaar/PAN Case

It is important to note that in the Aadhaar/PAN case, the Court could have granted the partial stay that it did, only if it was convinced that the proviso to S. 139AA(2) (cancellation of PAN if not linked with Aadhaar for paying taxes) was “manifestly unjust” or “glaringly unconstitutional”. Indeed, Mr Arvind Datar, senior counsel for the Petitioners, made the specific argument that the proviso was unconstitutional because it amounted to a disproportionate interference with the Petitioners’ fundamental right to trade and commerce under Article 19(1)(g): to deprive a person of a PAN card was effectively to shut them out of the formal economy, leading to effective “civil death”.

As I have argued in my previous post, ultimately, the Court failed to return a specific finding on the Article 19(1)(g) issue. However, as paragraph 125 demonstrates, the Court did agree with Mr Datar that the consequences of the proviso were “very severe“, and specifically cited the various transactions for which a PAN Card is compulsory as the reason why it was granting a stay, while the overall Article 21 challenge to Aadhaar remained pending before the larger bench.

Since there are no observations on “glaring unconstitutionality” – in fact, the Court categorically refused to express an opinion on the pending Article 21 challenge – it would be fair to assume, therefore, that the Court considered the draconian step of cancelling PAN Cards to be “manifestly unjust”.

The Consequences

We may now note that in the other pending Aadhaar-related challenges, the “consequences” of not having an Aadhaar Number are at least as severe as the consequences of PAN cancellation, if not more so. One of the Executive notifications under S. 7 of the Aadhaar Act, for instance, makes midday meals at schools conditional upon the production of an Aadhaar Number. No PAN Card means civil death; but midday meals can be about life and death – or at the very least, about basic health, itself a right under Article 21. The same goes for a number of other Executive notifications, where Aadhaar is linked to social welfare schemes, all of which provide crucial life support to the most vulnerable and marginalised individuals in our society.

In the Aadhaar/PAN case, the Supreme Court had occasion to carefully consider a legislation that made Aadhaar compulsory for filing IT returns, at the cost of cancelation of PAN cards. Applying its judicial mind, the Court found that the pending Article 21 challenge was credible enough, and the consequences of PAN cancellation severe enough, for the rigorous standards for granting a stay on legislation (“manifest injustice”) to be met.

Admittedly, a stay has no precedential value, and does not bind any future bench. However, once a two-judge bench of the Supreme Court has applied its mind to the merits of the case, should a different, coordinate bench of the same Court re-open the issue, consider it afresh, and refuse to grant a stay, even when the consequences in that case are even more severe than canceled PANs?

I submit that judicial discipline precludes future coordinate benches from doing so. The Aadhaar/PAN case has established two very important provisions: first, that notwithstanding the pending Constitution Bench challenge, specific piecemeal challenges to Aadhaar can be heard and decided by two-judge benches on issues outside the remit of the Constitution Bench, and that those benches can grant appropriate relief; and secondly, visiting severe consequences upon people for not possessing an Aadhaar is “manifestly unjust” – unjust enough for the Court to grant a stay.

Consequently, when a different bench of the Court hears the petitions on June 27, regarding compulsory Aadhaar for social welfare schemes, it should grant a stay without any further need for argument (note that the challenge in that case is to Government notifications, which occupy a level of sanctity lower than legislation). And this should be the course of action adopted by the Court in all future proceedings where the Petitioners can show that the consequences of not having an Aadhaar, for X or Y government notification or law, are at least as severe as the consequences of getting your PAN canceled.

Conclusion

I understand that, technically, this is not a legal argument for stay. However, it needs to be noted that in its Aadhaar/PAN judgment, the Court repeatedly invokes judicial discipline in deciding not to consider a whole range of issues that might overlap with the issues before the pending Constitution Bench. It is respectfully submitted that judicial discipline demands that judicial discipline be applied consistently. It is as much an issue of discipline not to reopen a question on which a coordinate bench has applied its mind and come to a conclusion, as it is not to interfere with the (possible) workings of a (potential) Constitution Bench. For that reason, in all future challenges before the Court, until the Constitution Bench decides the overall challenge, two-judge benches should grant stays and ensure – in the words of the original Supreme Court order that began all of this – that nobody is made to “suffer” for not possessing an Aadhaar.

 

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Filed under Article 21 and the Right to Life, Bodily Integrity, Judicial Process, Stays and Injunctions

The Aadhaar/PAN Judgment

In a judgment delivered today, the Supreme Court upheld the constitutional validity of S. 139AA of the Income Tax Act, which makes quoting one’s Aadhaar number mandatory while filing income tax returns. The Court also stayed S. 139AA(2), which provided for the cancellation of PAN cards for failure to comply. In view of the multiple Aadhaar cases pending before the Supreme Court, it is important to clarify what precisely the Court decided, what it didn’t decide, and what it left open (a summary of the arguments can be read here (Part I), here (Part II), and here (Part III)).

What the Court didn’t decide

Recall that on August 11, 2015, a three judge bench of the Supreme Court had referred the constitutional challenge to Aadhaar (then an executive scheme) to a larger bench, on the basis that the constitutional status of the right to privacy was uncertain, and needed to be authoritatively decided. That larger bench has not yet been constituted. Consequently, at the beginning of the Aadhaar/PAN arguments, the Court wanted to “tag” this case to the pending challenge before the (still-to-be-constituted) larger bench. The Petitioners then informed the Court that they would make their arguments without relying on the right to privacy. The Court agreed to this.

During the course of arguments, Mr Shyam Divan advanced arguments based on the right to bodily integrity, dignity, and informational self-determination, under Article 21 of the Constitution. In its judgment, however, the Court held that all these arguments were facets of the right to privacy, and could not be decided here. Consequently – and the Court was very clear about this – no argument under Article 21 would be decided by it, whether it was framed as an argument from dignity, or from informational self-determination. This means that the constitutional validity of Aadhaar on the ground of Article 21 has not been decided one way or another by the Court (the Court has not even expressed an opinion), and all arguments on that count remain open.

That said, it needs to be pointed out that the Court’s lumping of all Article 21 arguments into an omnibus “right to privacy” is far from satisfactory. For example, in paragraph 71 of its judgment, the Court cites an American Supreme Court judgment (invoked by the Respondents) to hold that the right to informational self-determination is an aspect of the right to privacy, and so need not be considered by it. The Court does not cite – or engage with – the material placed on record by the Petitioners which specifically demonstrated that the right to informational self-determination was different from the right to privacy, in terms of its origins (in German constitutionalism) and development. As I shall show subsequently, this is a problem that afflicts much of the Court’s opinion.

What the Court did Decide: Process

Two arguments were made before the Court on the nature of the law itself. The first was that the law could not have been passed in the teeth of Supreme Court orders specifying that Aadhaar could not be made mandatory, without taking away the basis of those orders (which S. 139AA didn’t do – see Part I for details). To this, the Court said that those earlier orders had been passed when Aadhaar was still only an executive scheme, and it was open to the legislature to pass a law making Aadhaar compulsory. The Court’s decision here would imply that in future challenges to other laws making Aadhaar mandatory, its prior orders would not be an impediment; however, insofar as Aadhaar is sought to be made mandatory for something through an executive order without a law, those earlier orders would continue to hold the field (paragraph 94).

It was also argued that the process of enrolling and obtaining an Aadhaar number, as set out under the Aadhaar Act, was a voluntary process. S. 139AA of the Income Tax Act, however, made quoting an Aadhaar number for filing IT returns mandatory, and thus indirectly forced taxpayers to enrol for an Aadhaar number, even though the Aadhaar Act explicitly stated that Aadhaar was an entitlement, and not an obligation. To this, the Court stated that the Income Tax Act and the Aadhaar Act operated in different fields, and that the Aadhaar Act was not the “mother Act.” (paragraph 92) I do not propose to deal with this reasoning in detail, since the argument has been set out at some length in Part I (link above), and readers can make up their own minds whether the Court’s answer was satisfactory.

What the Court did Decide: Article 14

It was argued by the Petitioners that S. 139AA contravened Article 14 in two ways: first, by drawing a distinction between individuals and non-individuals, and requiring the former to acquire an Aadhaar number. If – as the State claimed – its goal was to eliminate duplicate PANs and black money, then why were individuals only being singled out through the means of compulsory Aadhaar? The Court responded by stating that it was the State’s prerogative to deal with problems such as duplicate PANs and black money in an incremental or piecemeal fashion, and to make a start with targeting individuals.

It was also argued, however, that the introduction of Aadhaar would not actually solve the problem of duplicate PANs, because there was evidence to show the existence of multiple Aadhaar numbers themselves, as well as the well-documented ability to fake both biometric details and iris scans. Consequently, there was no “rational nexus” under Article 14.

It is at this stage that the judgment becomes highly problematic, because the Court appears to simply repeat the assertions of the State, without adverting to or engaging with the objections raised by the Petitioners. For example:

Respondents have argued that Aadhaar will ensure that there is no duplication of identity as bio-metric will not allow that and, therefore, it may check the growth of shell companies as well.” (paragraph 99)

“By making use of the technology, a method is sought to be devised, in the form of Aadhaar, whereby identity of a person is ascertained in a flawless manner without giving any leeway to any individual to resort to dubious practices of showing multiple identities or fictitious identities. That is why it is given the nomenclature ‘unique identity’. (paragraph 118)

“However, for various reasons including corruption, actual benefit does not reach those who are supposed to receive such benefits. One of the main reasons is failure to identify these persons for lack of means by which identity could be established of such genuine needy class. Resultantly, lots of ghosts and duplicate beneficiaries are able to take undue and impermissible benefits. A former Prime Minister of this country has gone to record to say that out of one rupee spent by the Government for welfare of the downtrodden, only 15 paisa thereof actually reaches those persons for whom it is meant. It cannot be doubted that with UID/Aadhaar much of the malaise in this field can be taken care of.” (para 118)

“To the same effect is the recommendation of the Committee headed by Chairman, CBDT on measures to tackle black money in India and abroad which also discusses the problem of money-laundering being done to evade taxes under the garb of shell companies by the persons who hold multiple bogus PAN numbers under different names or variations of their names. That can be possible if one uniform proof of identity, namely, UID is adopted. It may go a long way to check and minimise the said malaise.” (paragraph 118(ii))

“Thirdly, Aadhaar or UID, which has come to be known as most advanced and sophisticated infrastructure, may facilitate law enforcement agencies to take care of problem of terrorism to some extent and may also be helpful in checking the crime and also help investigating agencies in cracking the crimes. No doubt, going by aforesaid, and may be some other similarly valid considerations, it is the intention of the Government to give phillip (sic) to Aadhaar movement and encourage the people of this country to enroll themselves under the Aadhaar scheme.” (paragraph 119)

“As of today, that is the only method available i.e. by seeding of existing PAN with Aadhaar. It is perceived as the best method, and the only robust method of de-duplication of PAN database. It is claimed by the respondents that the instance of duplicate Aadhaar is almost non-existent. It is also claimed that seeding of PAN with Aadhaar may contribute to widening of the tax case as well, by checking the tax evasions and bringing in to tax hold those persons who are liable to pay tax but deliberately avoid doing so.” (para 119)

In each of these paragraphs, the Court effectively echoes the State’s claim, assumes it to be true, and does not engage with the detailed objections raised by the Petitioners (see Parts I and III). All the talking points are here: how biometric identification is the “best method”, how unique identity is actually “unique”, how terrorism will be tackled through Aadhaar, how “ghosts” will be removed, and so on (note that every one of these points were opposed in court). It is telling that, at various points, the Court even uses language such as “it is claimed” and “Respondents have claimed that”, but doesn’t even trouble to subject those claims to any kind of independent scrutiny.

India has an adverserial legal system. An adverserial system presumes the existence of opposing parties, who marshall their respective facts and evidence into legal arguments, and place it before the Court, which acts as a neutral umpire, adjudicating the rival claims. When there are competing claims, especially competing factual claims, the Court decides by applying legal techniques such as burdens and standards of proof, or taking the assistance of amici curiae who are domain experts. What the Court is not supposed to do is to act like a rubber stamp, simply accepting the State’s assertions as true without engaging with the counter-arguments, or subjecting them to independent scrutiny. However, “rubber stamp” is the only way to describe the Court’s recitation of one side’s arguments, and sidelining (to the point of ignoring) the other.

What the Court did not decide: the strange case of the vanishing Article 19(1)(g)

The Court records Mr Datar’s argument that the invalidation of PAN cards affects an individual’s right to do business, and violates Article 19(1)(g) of the Constitution. The Court also records – and agrees – with his argument that for an infringement of Article 19(1)(g) to be justified under Article 19(6), the test of proportionality is to be applied. However, after recording this, and after waxing eloquent about the wonders of biometric identification, the Court returns no finding on the issue of proportionality. The discussion on Article 19(1)(g) begins at paragraph 106, and ends at paragraph 124, where the Court notes:

“Therefore, it cannot be denied that there has to be some provision stating the consequences for not complying with the requirements of Section 139AA of the Act, more particularly when these requirements are found as not violative of Articles 14 and 19 (of course, eschewing the discussion on Article 21 herein for the reasons already given). If Aadhar number is not given, the aforesaid exercise may not be possible.”

However, there is absolutely no analysis on whether making Aadhaar compulsory, on pain of cancellation of PAN cards, is proportionate in relation to the stated goal of deduplicaton. This is a crucial omission, because the proportionality test is a detailed and complex four-part test, which requires the State to show that its proposed act infringes upon a right only to the minimal extent necessary to achieve the goal, as well as an overall balancing exercise. It is here that a number of arguments would have become extremely salient, including statistics on the percentage of duplicate PANs (0.4%) which the Court dismisses at an earlier part of the judgment, the existence of multiple Aadhaars (which the Court never engages with), and so on – all of this would have been extremely important in determining whether S. 139AA was a proportionate interference with the right under Article 19(1)(g). (Notably, the only response of the Attorney-General of India to the 19(1)(g) argument was “who cares about Article 19(1)(g) these days?)

The omission is all the more glaring because the proportionality test was introduced by the author of this judgment – Justice Sikri himself – in his judgment in the NEET case. It is truly extraordinary that a judge who introduces a doctrine in one judgment, writing for a Constitution Bench, simply refuses to apply it a few months later when sitting as part of a two-judge bench!

What is even more problematic is the absence of a finding on proportionality. This is reminiscent of the Supreme Court’s judgment in Koushal vs Naz, where the Court’s chosen method of dealing with inconvenient arguments is to set out the submissions, set out the position of law, and then just move on to something else: if you close your eyes and chant “na na na”, long enough, maybe it will go away. A correct application of the four-part proportionality test would have required rigorous scrutiny of the State’s claims on behalf of Aadhaar – but if there is one thing that defines this judgment, it is a complete and utter unwillingness to hold the State to account.

Relief

There is a significant amount of confusion with respect to the relief that the Court does grant – a “partial stay” of S. 139AA(2) (cancellation of PAN) until the main Aadhaar case is decided. The Court states:

“Those who still want to enrol are free to do so. However, those assessees who are not Aadhaar card holders and do not comply with the provision of Section 139(2), their PAN cards be not treated as invalid for the time being. It is only to facilitate other transactions which are mentioned in Rule 114B of the Rules.”

One reading of this passage is that it remains mandatory to provide an Aadhaar number while filing IT returns (after July 1), but if one doesn’t already have an Aadhaar Card, then one’s PAN will not be canceled for failure to comply; however, one’s tax returns shall be invalid, and therefore subject to other penal provisions for not paying tax. On another interpretation, however, S. 139AA(2) provides the punishment for failure to comply with S. 139AA (refusal to provide Aadhaar number for IT returns). The staying of S. 139AA(2) (for those who have no Aadhaar number yet) necessarily implies that there is no penal consequence to follow from violating S. 139AA itself. Over the course of the day, I have heard both views being defended by competent lawyers, implying that at the very least, there is some amount of confusion here.

Conclusion

In its judgment today, the Supreme Court leaves the most crucial issues (Article 21) undecided, and footballs them to the unicorn Constitution Bench that is still to sit after a year and nine months after referral. The Court’s analysis of Article 14 is sketchy, defined by its uncritical reliance upon the State’s claims about Aadhaar (claims that were disputed in Court, and are disputed on a daily basis in the public sphere), and its analysis of Article 19(1)(g) is non-existent.

In a matter where the stakes are this high, this is just not good enough.

(Disclosure: The author assisted the Petitioners in the present case)

 

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Filed under Article 14, Article 21 and the Right to Life, Bodily Integrity, Equality, Freedom of Trade

Guest Post: Decoding the WhatsApp/Privacy Case

(In this Guest Post, Praharsh Johorey examines some of the key issues in the pending WhatsApp/Privacy case before the Constitution Bench of the Supreme Court)

Once the Supreme Court re-convenes after its vacation, it will begin hearing arguments on an appeal concerning privacy issues stemming from the use of ‘WhatsApp’, a popular instant messaging application. The petition against WhatsApp originally filed before the Delhi High Court challenged as unconstitutional a change made to WhatsApp’s Privacy Policy in August 2016, which allowed it to send all collected data to its parent company, Facebook. It was claimed that this breached the ‘Right to Privacy’ of all citizens under Article 21, and restricted their freedom of speech under Article 19(1)(a). Recognising the legitimacy of these claims, the Delhi High Court issued the following directions to the owners of WhatsApp on the 23rd of September, 2016:

  1. i) If the users opt for completely deleting “WhatsApp” account before 25.09.2016, the information/data/details of such users should be deleted completely from “WhatsApp” servers and the same shall not be shared with the “Facebook” or any one of its group companies.
  2. ii) So far as the users who opt to remain in “WhatsApp” are concerned, the existing information/data/details of such users upto 25.09.2016 shall not be shared with “Facebook” or any one of its group companies.  

The Petitioners filed an appeal before the Supreme Court against these directions, claiming that they only do ‘partial justice’, and create an unreasonable distinction between WhatsApp users solely on the basis of when they began using its services. This petition invariably raises questions of the ‘Right to Privacy’, rights of digital users and freedom of speech online under Article 21 – and its position under the Indian constitution. However, there exists voluminous literature on the implied existence of such a right, such as here, here and here; and the question of reading this right under the Constitution is also sub-judice before a Constitutional Bench of the Supreme Court in K.S. Puttaswamy (Retired) and Anr. v. Union of India & Ors.

Instead, this essay concerns itself with the following questions:

  • Does the Supreme Court have the jurisdiction to intervene in a contract entered into between two private companies; i.e. WhatsApp and its subscribers?
  • Assuming such jurisdiction exists, whether the Supreme Court should intervene in contracts between private parties – and does the relationship between telecommunication companies and private consumers requires such intervention.

I will examine each question separately.

Special Leave Petitions and Jurisdictional overreach

The Petitioners have approached the Supreme Court under Article 136, which allows it the power to grant a ‘special leave to appeal’:

  1. (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.

In the present case, the Supreme Court has constituted a Constitution Bench (Five Judges) to hear the appeal against the order of the Delhi High Court – having granted a special leave to appeal under Article 136. The original petition was filed as a Public Interest Litigation before the Delhi High Court under Article 226. The Respondents, WhatsApp and Facebook contended that the High Court did not have appropriate jurisdiction to hear the petition because neither company is a public body discharging public functions, and therefore not amenable to constitutional scrutiny. The observations of the High Court indicate an agreement with this contention:

  1. In fact, the users of “WhatsApp” and the Respondent No.2 (Whatsapp itself) are parties to a private contract and the users of “WhatsApp” having voluntarily opted to avail the services of the said Application, are bound by the terms of service offered by the Respondent No.2…. it appears to us that it is not open to the users now to contend that “WhatsApp” shall be compelled to continue the same terms of service.
  2. Even the ‘Right to Privacy cannot be a valid ground to grant the reliefs as prayed for since the legal position regarding the existence of the fundamental right to privacy is yet to be authoritatively decided.’
  3. Since the terms of service of “WhatsApp” are not traceable to any statute or statutory provisions, it appears to us that the issue sought to be espoused in the present petition is not amenable to the writ jurisdiction under Article 226 of the Constitution of India.

However, the unambiguous conclusion arrived at by the Court concerning its jurisdiction under Article 226 was swiftly ignored, with the Court proceeding without explanation to issue directions binding upon Whatsapp. As a result of this demonstrably unclear stance, the question of jurisdiction has now been raised before the Supreme Court – questioning the very ability of the Court to intervene in private acts of private parties.

Whatsapp and Direct Horizontality

In his essay on ‘Horizontality under the Constitution’, which can be found here, Gautam Bhatia notes that constitutional rights are deemed to regulate the relationship between individuals and the state, i.e. ‘vertically’. However, with the gradual expansion in the role of the private sector in our daily lives coupled with the simultaneous withdrawal of the State from several sectors, there has emerged a need to subject private relationships to constitutional scrutiny; i.e. impose ‘horizontality’. With respect to Whatsapp, the situation involves regulating a private act (the contract to join Whatsapp) which private citizens consent to – which is different from the Court holding the State responsible for moulding conduct of private parties in accordance with the Constitution as in Vishaka v. State of Rajasthan, or altering laws to which private parties are subject such as in R. Rajagopal v. State of Tamil Nadu. Thus, the Court could impose what is known as ‘direct horizontality’ – where the private act of a private party is challenged on grounds of the Constitution.

A similar question was posed to the Supreme Court in relation to the functioning of the Board of Cricket Control in India (“BCCI”) – and whether the legality of its activities could be judged on the cornerstone of the Constitution. In both cases relating to the BCCI, Zee Telefilms Ltd. & Anr vs Union Of India & Ors and BCCI v. Cricket Association of Bihar, extensive discussion took place as to whether the BCCI could be considered as a ‘State’ under Article 12. However, no question has been raised as to Whatsapp’s status as a private entity. Therefore, the Court’s observations in respect of the constitutional obligations of the BCCI as a non-state entity are crucial. In paragraph 30 of the Zee Telefilms case, Hegde J. notes:

‘But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution which is much wider than Article 32.’

Subsequently, in the BCCI judgement, Thakur J. observes:

Suffice it to say that if the Government not only allows an autonomous/private body to discharge functions which it could in law takeover or regulate but even lends its assistance to such a nongovernment body to undertake such functions which by their very nature are public functions, it cannot be said that the functions are not public functions or that the entity discharging the same is not answerable on the standards generally applicable to judicial review of State action.

A joint-reading of these two observations leads to the irresistible conclusion that only those private bodies that discharge ‘public functions’ are amenable to claims under Article 226, and not under Article 32. Thus, the Court’s interpretation contemplates a situation where the claim must change depending on the forum one is before; which surely was not contemplated by the drafters. Thus, the only permissible reconciliation of this position is that private parties performing public functions can be made subject to general public law standards (good faith, non-arbitrariness) which may overlap with Part III – particularly Article 14, 19 and 21; but does not imply Judicial review in respect of all provisions of Part III. At minimum, a litigant aggrieved with a Private party cannot go straight to the Supreme Court under Article 32, but must first go to the High Court under Article 226 to enforce the aforementioned administrative law standards.

Instant Messaging and the ‘Public Function’ Test

However, prior to examining which provisions of Part III the Privacy Policy may fall foul of, we must first examine whether Whatsapp can even be considered as fulfilling the ‘Public Function’ test. In Sukhdev and Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr. the Court was required to determine whether the Oil and Natural Gas Commission, Indian Finance Corporation and the Life Insurance Corporation, all of which are statutory organisations, were entitled to claim protection under Part III. The Court held that they were, stating:

Another factor which might be considered is whether the operation is an important public function. The combination of State aid and the furnishing of an important public service may result in a conclusion that the operation should be classified as a State agency. If a given function is of such public importance and so closely related to governmental functions as to be classified as a governmental agency, then even the presence or absence of State financial aid might be irrelevant in making a finding of State action. If the function does not fall within such a description, then mere addition of State money would not influence the conclusion.

As referenced earlier, there is no argument that WhatsApp is an instrumentality of the State under Article 12 – as it is neither part of the State apparatus, nor is it considered an instrumentality or agent of the State itself. Therefore, the question to be resolved is whether providing a platform for communication can be considered to be a ‘public function’ – making it amenable to 226 jurisdiction. Two facets of this question are important: first, the nature of communication services as a public good, and second, whether WhatsApp is necessarily required to exercise ‘control’ over this service to be regarded as discharging a public function.

It is undeniable that telecommunication plays a crucial role in 21st century society. A denial of all telecommunication services to society for a single day would impact global communication, impair business and disrupt the Economy – not to mention the significant mayhem it may cause in the process. Consequently, it is more than arguable to suggest that the organisations providing telecommunication services are collectively performing a ‘public function’. The Supreme Court noted that in the context of the BCCI, it was three factors – complete control over cricket, significant financial investments and state support – that lead to the determination of it discharging a public function. However, note must be made here of the unique nature of cricket in India, in that it represents a ‘primary cultural good’ (Parthasarathy); and that BCCI’s complete control over the sport in India represented its power to control access to this basic human good.

To apply this test of ‘control of basic goods’, one must understand the nature of instant messaging in India, and whether it can be said that WhatsApp exerts a comparable amount of control over this service. A majority of Indian internet users (63% of the people surveyed, MEF Survey 2016) currently rely upon WhatsApp as their primary communication device – nearly 200 million consumers. However, having significant market share is not a sufficient indicator of whether WhatsApp exercises ‘control’ over the utility in India. Unlike the BCCI, WhatsApp cannot be said to have any legitimate role to play in the governance, regulation or administration of this sector, and does not (yet) have a recognised monopoly over the utility. If WhatsApp were recognised as being the sole provider of all instant communication services to Indians, it could have been contended that its control over a public utility renders it amenable to 226 jurisdiction. However, holding so in the present context would set a dangerous precedent of all popular services being considered as effectively discharging a public function; not necessarily limited to the nature of service in question.

Re-writing Private Contracts

Even accepting that the Supreme Court has the jurisdiction to adjudicate the Whatsapp petition, one must consider the propriety of the Judiciary intervening in private contracts. It is undisputed that the millions of customers that accepted WhatsApp’s new privacy policy did so voluntarily, having accepted the terms and conditions clearly established. Resultantly, if the Supreme Court were to issue directions to WhatsApp changing the terms of such policy, it is intervening in a voluntary agreement entered into between two private parties.

However, such a situation is not unprecedented. The Supreme Court has made a number of determinations that change the very basis of private contracts – doing so particularly frequently in the context of labour contracts. In the year 2016, it mandated in State of Punjab v. Jagjit Singh that employers must ensure ‘equal pay for equal work’, holding:

It was held, that the Government cannot take advantage of its dominant position, and compel any worker to work even as a casual labourer on starvation wages. It was pointed out, that a casual labourer who had agreed to work on such low wages, had done so, because he had no other choice.

Any act, of paying less wages, as compared to others similarly situate, constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation.

The justification for intervening in a private contract therefore stems from two factors – first, the coerced consent of the labourers who have ‘no other choice’ and second, from the ‘domineering position’ of the employers who have the power to ‘enslave’ these workers. As a result, the Court intervened to protect the otherwise defenceless labourers from the exploitative practices of the employers. A similar line of argumentation has been placed before the Supreme Court by the WhatsApp petitioners – in that WhatsApp enjoys a dominant position in the instant messaging space, and its consumers are therefore have no option but to be subject to its exploitative data practices. The Supreme Court also echoed this sentiment in one of the hearings, warning WhatsApp against ‘consumer entrapment’.

However, this line of argumentation misses the key facet of consumer choice – something evidently absent in the minimum-wage labour market. Consumers are constantly advertised a number of different services that provide nearly perfect competition to WhatsApp, and are allowed free migration across these platforms. Moreover, there is no legal reason why consumers who use a platform like WhatsApp should not be allowed to waive their right to keep their data secret in exchange for using an evidently useful service. Any consumer who is dissatisfied or uncomfortable with the terms of use of such an application is legally allowed to exit its operation – making the case for judicial intervention in such a contract untenable.

Conclusion

It is not my position that we should not have a right to privacy, or that WhatsApp’s Privacy Policy is desirable. However, to entertain and adjudicate such a petition on its merits would require the Supreme Court to significantly extend its jurisdiction – and begin upon an already slippery slope of subjecting private parties to constitutional provisions. Instead, it is my position that the legislature should enact a comprehensive Data protection framework that would forbid companies from transferring data of its consumers without their express authority – and then allow the Judiciary to adjudicate disputes on such basis. By broadly invoking Article 21 and Article 19 for all privacy disputes, we risk allowing several private companies from getting away with privacy violations that are actionable in most other jurisdictions.

Who said creating a ‘Digital India’ would be easy?

2 Comments

Filed under Article 226 Remedies, Communications Technologies, Judicial Review, Jurisdiction, Public goods

Guest Post: Judicial Review and Proportionality of Punishment

(In the context of life sentences and even the death penalty being mooted for cow slaughter in some states, Jeydev C.S. examines whether the Indian Constitution requires proportionality in punishment)

How far can the State go? It is a general proposition that duly enacted penal statutes can prescribe punishments for undesirable conduct. Recent political developments suggest that this legislative freedom may be taken further than ever before. From a constitutional standpoint though, it is far from clear if the state actually has untrammelled discretion in sentencing. For instance, can it execute someone for relatively minor offences like petty theft, or sentence a man to rigorous imprisonment for life if caught driving drunk? Screaming headlines and political ramifications aside, the underlying issue here is whether our Constitution can be concerned with proportionality of punishment while dealing with the legality of penal statutes. In this post, I posit that this specific legal question has been answered in the affirmative, considering the findings of leading case law of the Supreme Court of India while interpreting the text of the Constitution.

Article 21 provides that “No person shall be deprived of his life or person liberty except according to procedure established by law”. A perfunctory reading of this clause suggests that, as far as the state has, one, established a certain procedure through law; and two, such procedure is followed by the state while depriving a person of her life or personal liberty, then such an action of deprival by the state would be permissible. However, this has not meant that unchecked excesses by state agencies under the garb of procedural propriety have been condoned by the courts. In the case of Maneka Gandhi v. Union of India, the Supreme Court held that the “procedure established by law” must be just, fair, and reasonable so as to not be in violation of article 21. To put it another way, the Court read three non-textual pre-conditions into the nature of the administrative process, in the absence of which depriving actions of the state will be rendered unconstitutional. While arriving at this outcome, Chief Justice Beg particularly rejects the notion that articles 21 and 19 are independent compartments of rights; rather, they are available together (along with article 14, particularly with regard to reasonableness) when reviewing executive action. While Maneka Gandhi does much more in the realm of article 21 jurisprudence, this facilitative reading permits us to import certain relevant standards that have been laid out with respective to articles 19 and 14.

Article 19 of the Constitution primarily addresses the protection of certain rights (such as speech, assembly, association, movement, profession et cetera). These freedoms, as articulated in clause (1) are circumscribed by the limitations of clauses (2) through (6) – the common criterion of restriction under these clauses is that such restriction must be ‘reasonable’. While there have been many instances of the courts opining on the nature of what this actually entails, for our purposes, we may turn to the case of State of Madras v. V. G. Row. This case dealt with an action of the State of Madras (as it then was) whereby it declared a political organisation to be an unlawful association. In its opinion, the Court reaffirmed the reasoning of previous cases such as Dr. N. B. Khare v. State of Delhi, that article 19 restrictions must be substantially and procedurally reasonable, and that such reasonableness may be indicated by factors such as “the extent of the evil sought to be remedied”, “prevailing conditions”, and “disproportion of imposition”. Granted, Row only envisages this to be applicable to impediments imposed upon article 19 rights. However, Maneka Gandhi clearly expects a harmonious and combined reading of these standards which can help inform the contours of what may be reasonable for the purposes of article 21. Therefore, I contend that proportionality is a relevant consideration when reviewing law that deprives life or personal liberty.

In a similar tenor, I must now address article 14, which prohibits the state from denying to any person equality before the law or the equal protection of laws within India. Most famously, a constitutional bench of the Supreme Court held in E. P. Royappa v. State of Tamil Nadu that article 14 entails a prohibition on arbitrariness in state action. Drawing upon this precedent and Maneka Gandhi, the case of Mithu v. State of Punjab sought to apply the principle to a penal provision in a criminal statute. Section 303 of the Indian Penal Code, 1860, which provided for a mandatory minimum sentence of death for those who commit murder while serving a term of life imprisonment, was assailed against the combined significance of articles 14, 19, and 21. The Court struck section 303 down as unconstitutional, for such a sentence, which on no valid basis of classification discriminates between convicts and non-convicts, would be arbitrary – further, the automatic imposition of a sentence of death, which is expected to used sparingly per the judgment in Bachan Singh v. State of Punjab, would be disproportionately oppressive; for these reasons, the impugned section was held to be in violation of article 21. Chandrachud J illustrates the importance of a proportionality test for the purposes of sentencing – he notes that a savage sentence, such as amputation for theft, would run afoul of article 21; he actively adverts to the reliance upon article 19 standards of reasonableness to assess challenges under article 21. This further reinforces the importance of proportionality, which as we have noted, has been incorporated through Row.

It is true that a substantial bulk of Mithu dealt with the disproportionality parameter, in as much as a criminal statute took away sentencing discretion from courts during trial. However, perhaps the most forceful articulation of the need for proportionate punishment is seen in Vikram Singh v. Union of India. In this case, the appellants sought to challenge the constitutional validity of section 364A of the Indian Penal Code, 1860 on the grounds that it prescribed a sentence of death, thereby in violation of article 21, as clarified in Mithu. At the earliest, the Court sought to dissuade the notion of the appellants that section 364A amounted to a mandatory death sentence. As the provision itself reads, death is only one option before the trail court – it may also choose to impose a sentence of imprisonment for life. Therefore, this case is clearly distinguishable from Mithu as the mere option of death as a possible punishment for a crime does not violate article 21. Despite dismissing the instant appeal on this ground, Chief Justice Thakur addresses the general issue of proportionality. He opines that merely because courts are deferential to legislatures on matters of punishment, generally, does not mean that penalties that are “shockingly disproportionate” to the gravity of the underlying offence are immune from constitutional intervention.

The Court then proceeds to categorically import the principle of proportionality in punishment from foreign (particularly, North American) jurisprudence. In Weems v. United States, the Supreme Court of that country affirmed the proposition in favour of ‘graduated’ and ‘proportionate’ punishment, by finding grounding in the Eighth Amendment to the United States Constitution, which prohibits cruel and unusual punishments. Similarly, cases like Enmund v. Florida, Coker v. Georgia, and Solem v. Helm have all held penal statutes to be in violation of the Eighth Amendment on account of being disproportionate to the gravity of the underlying offence. Chief Justice Thakur specifically cites the cases of Harmelin v. Michigan and Ewing v. California to be indicative of a prospective American standard, as culled from past jurisprudence – as far as there is a “reasonable basis for believing” the prescribed punishment “advances the goals” of criminal justice and was arrived at through a “rational legislative judgment”, such statutes may be deemed to be proportionate.

While affirmative reiterations of these principles exist throughout Vikram Singh, the most utility for our purposes in evaluating the Indian constitutional scheme may be derived from the enumeration of guiding considerations at paragraph 49 – first, the general principle is that punishment must be proportionate; second, that there exists a presumption that the legislature (unlike the courts) is best positioned to propose punishment; and third, that the courts must defer to its wisdom in this regard unless the prescription is outrageously disproportionate to the offence or so inhuman or brutal that it would be unacceptable by any standard of decency. This standard if further raised in cases where the prescription is one of death – the Court defers to the high standard of judicial care that is applied to the death penalty, in line with evolving jurisprudence on the issue, while also asserting that the likelihood of this punishment being deemed disproportionate is particularly high. I must reiterate however, that my quest here is to not comment on whether the death penalty is disproportionate in certain cases. Rather, it is whether any punishing statute (including, but not limited to the death penalty) is open for constitutional review on the grounds of proportionality.

It is altogether another matter that the Court in Vikram Singh chose to dismiss the appeal on the grounds that the impugned provision did not offend the aforementioned standard. Nonetheless, these principles undoubtedly constitute the ratio decidendi of this case. Being the leading Supreme Court judgment on this point, it shall be binding on courts throughout India. Hence, any criminal statute that prescribes punishment can be held against this test of proportionality; and if it is found to run afoul of this, that punishment may be declared by our constitutional courts to be ineffective on account of it being in violation of article 21. Whether the recent spate of amendments and legislative proposals merit such consideration is a question for another day.

4 Comments

Filed under Article 21 and the Right to Life, Cruel and Unusual Punishment

The Section 6A Challenge: “Illegal Migration” as “External Aggression”

(In this guest post, Praharsh Johorey examines whether the Supreme Court can strike down legislation for violating Article 355 of the Constitution, in the context of the constitutional challenge to S. 6A of the Citizenship Act).

Later this year, the Supreme Court is due to hear the constitutional challenge to Section 6A of the Citizenship Act of 1955, which codifies a special citizenship law for the State of Assam. As explained in a previous post here, Section 6A divides ‘illegal’ immigrants (a foreigner who enters India without a valid passport or other travel documents, or someone who stays in India beyond their permitted time) into three categories, depending on their date of entry: People who entered before 1966 (who were to be regularised), people who entered between 1966 and 1971 (before the Bangladesh war, who were to be taken off the electoral rolls for ten years, and then regularised) and people who entered after 1971 (who were to be expelled in accordance with existing law).

Assam, post-independence, has dealt with the severe economic and societal consequences of continued mass migration from East Pakistan (now Bangladesh), which, it is claimed, has caused ‘perceptible change in the demographic patterns’ of the State. The principle challenge to Section 6A is thus based on the continuing failure of existing law to adequately protect the state from the undesirable consequences of mass migration.

Legally, two grounds are urged. First, that the State has failed to uphold its constitutional duty to protect the Assamese people from ‘external aggression’ under Article 355 of the Constitution. Second, that the differential (and arguably weaker) laws applicable to the State of Assam is a breach of the right of the Assamese people to be granted equal protection under Article 14.

I will deal predominantly with the first issue in this essay. Article 355 reads:

“It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution.”

The substance of this question was previously before the Supreme Court in Sarbananda Sonowal v. UOI, where Mathur J., writing for a bench of three judges, decided challenges to the Illegal Migrants (Determination by Tribunals Act), 1983 (“IMDT Act”) and its corresponding rules, which also dealt with illegal immigration in the State of Assam. Having engaged in a detailed analysis of the meaning of the term ‘external aggression’, and reading illegal immigration as falling within its scope, Mathur J. concluded in paragraph 42:

‘The provisions of the IMDT Act and the Rules made thereunder clearly negate the constitutional mandate contained in Article 355 of the Constitution, where a duty has been cast upon the Union of India to protect every State against external aggression and internal disturbance. The IMDT Act which contravenes Article 355 of the Constitution is, therefore, wholly unconstitutional and must be struck down.’

To declare the IMDT Act unconstitutional, Mathur J. could have relied on one of two grounds: first, that the IMDT Act is “law” under Article 13 of the Constitution, and therefore subject to constitutional scrutiny; and second (and which is more likely), that provisions such as Article 355 imposes a positive obligation upon the Government in power, the failure to adequately discharge which is unconstitutional. I will examine the veracity of both these assumptions independently.

Article 13 and Part III

Article 13 was inserted in the Constitution to ensure that ‘laws’ or ‘laws in force’ that contravene constitutional provisions are void – applying to both existing statutes and enactments subsequent to the Constitution. The question relevant for this essay is the scope of this Article, to determine whether it can apply to Article 355. The relevant provisions of the Article read:

(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

The wording of Article 13(1) and (2) is clear and unequivocal – it applies exclusively to Part III. Applying the principle of literal interpretation, and read with Expressio Unius Est Exclusio Alterius (which was discussed in the context of the definition of ‘laws in force’ here), it is clear that ‘laws’ or ‘laws in force’ can be declared unconstitutional as a result of the operation of this Article only if they are in breach of the provisions of Part III, and not the Constitution as a whole. Demonstrably, Mathur J. did not and could not declare the IMDT Act unconstitutional under Article 13.

Part III and Unconstitutionality

Even accepting the contentious argument that the flow of illegal immigrants is contemplated under the term ‘external aggression’, we have to understand whether it is permissible for the Supreme Court to declare the inadequacy of state measures under Article 355 as being sufficient grounds to declare that such measures are unconstitutional.

Article 355 imposes a duty upon the Union to protect every state against external aggression. It is accepted legal theory that all duties have correlative rights (Hohfeld) which would imply that all states, or aggrieved citizens (as in the present dispute) have a ‘constitutional right’ to be protected against external aggression and internal disturbance by the Union.

Rights not expressly codified in Part III of the Constitution – and therefore not “fundamental rights” as such – have been nonetheless interpreted as ‘constitutional rights’ by the Supreme Court, notably in Rajbala v. State of Haryana – which recognised a Constitutional right to ‘contest elections’. In this case, the Constitutionality of the Haryana Panchayati Raj (Amendment) Act, 2015 was challenged, which imposed more stringent qualifications (educational and financial) to be eligible to contest Panchayati elections, and was challenged as effectively denying a class of people their ‘constitutional right’ to contest elections. Despite holding that the amendments were constitutional Chelameswar J. held:

‘Various provisions, by implication create a constitutional right to contest elections to these various constitutional offices and bodies. Such a conclusion is irresistible since there would be no requirement to prescribe constitutional limitations on a non-existent constitutional right…. Every citizen has a constitutional right to elect and to be elected to either parliament or the state legislatures.’

The implications of this are clear – that if the state undertakes certain actions that impede upon a constitutional right, for e.g. if it enacts legislation debarring citizens from contesting elections, its actions may be said to be ‘unconstitutional’, even though the right to contest elections is not specifically enshrined in the Constitution. However, Chelameswar J. recognised the supremacy of the legislature to alter these rights, noting:

Under the scheme of our Constitution, the appropriateness of the Legislative Body is determined on the basis of the nature of the rights sought to be curtailed or relevant and the competence of the Legislative Body to deal with the right having regard to the distribution of legislative powers between Parliament and State Legislatures. It is also the settled principle of law under our Constitution that every law made by any Legislative Body must be consistent with provisions of the Constitution.

Therefore, the exercise of a duty through legislation can only be deemed unconstitutional if it is outside the ‘Legislative competence of the enacting body’, or it abrogates ‘provisions of the constitution’. It is my contention that ‘provisions of the constitution’ here means Part III, most crucially, Articles 14 and 21. In Rajabala itself, the Court’s determination of whether the Constitutional right to contest was violated was based on an examination of Article 14, and whether the scheme imposed was ‘arbitrary’, or created a classification without intelligible differentia. The Court undertook no analysis of whether ‘Constitutional rights’ could per se be violated, and demonstrated that at best, they can be linked to a breach of provisions of Part III.

External Aggression and the Insufficiency of State Action

Assuming (but not conceding) that the Court could strike down the IMDT Act for insufficiently discharging the 355 duty, it becomes significant to note the reasons why J. Mathur declared the IMDT Act so woefully inadequate, so as to render it in direct conflict with the Union’s obligations. He first frames the duty of the state as:

‘To take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution. Having regard to this constitutional mandate, the question arises whether the Union of India has taken any measures for that purpose.

Thus, to satisfactorily discharge its constitutional obligation, the Union was required to prove that it had undertaken any measures in furtherance of protecting the State of Assam from illegal migration. The Statement of Objects and Reasons of the Act makes clear that the Union recognised this problem, stating that ‘the influx of foreigners who illegal migrated into India…pose a threat to the integrity and security of the region’ with the Preamble further elucidating that ‘the continuance of these such foreigners in India is detrimental to the interests of the public of India.’ Thus there was clear recognition of the problem, and demonstrable intent to take measures to deal with it.

The scheme created under the Act was to authorise the Government to set up Tribunals for the purpose of determining whether migrants were legal. The justification for the scheme was to ensure that adequate safeguards were granted to those migrants who entered and resided in India legally, and to prevent their arbitrary deportation by granting them access to fair judicial process.

However, a perusal of the provisions of the Act lead to Mathur J. concluding:

The application of the IMDT act and the rules made thereunder in the state of Assam has created the biggest hurdle and is the main impediment or barrier in identification and deportation of illegal migrants. On the contrary, it is coming to the advantage of such illegal migrants as any proceedings initiated against them under the said provision which, as demonstrated above, almost entirely ends in their favour, enables them to have a document having official sanctity to the effect that they are not illegal migrants.

Thus, the malfunctioning/ineffectiveness of the Act, and not the absence of measures itself that lead to Mathur J.’s declaration – which belies his own standard for the discharge of the 355 duty. We should therefore examine whether the Supreme Court has in the past struck down any acts for insufficiently fulfilling a positive State obligation, even when no discernible standard for adequate discharge is established. The positive duties of the State under Article 21 serve as an appropriate starting point.

For example, the Supreme Court has read the right to a ‘Clean and healthy environment’ as being an essential feature of the ‘Right to Life’ under Article 21 – with the right to clean water and air forming part of the broader corpus of this right. Hohfeld’s test implies that there exists a correlative duty upon the State to ensure a clean environment, with access to clean air and water. Applying Mathur J.’s test, legislations like the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution Act), 1974 are therefore liable to be struck down as being ‘unconstitutional’ if it is proven that despite their operation, the environment continues to be polluted, or that people still do not have free access to clean resources. However, the Courts have continually refused to engage in the effectiveness of these legislations (or their consequent constitutionality) in solving these problems, instead engaging only with interpreting the Right to Life under Article 21. The dictum of the Andhra Pradesh High Court in Wasim Ahmed Khan v. Government of AP is relevant. Here, a PIL was filed against the Government for its failure to provide safe drinking water and prevent the outbreak of disease in the state as illegal and unconstitutional. While recognising that providing drinking water is a ‘priority issue’, the bench noted:

‘So far as the relief in general terms which was claimed by the petitioner (of the negligence being an unconstitutional act) is concerned, it should be borne in mind that in a State or rather a country where growth of population is in geometrical proportion and the natural resources are not only static but depleting or made to deplete, it will be only utopian to issue a direction as desired by the petitioner.

It is submitted that such a demonstrable failure of a ‘priority’ state duty under Article 21 can be treated no differently from the separate duty of the State under Article 355. Both problems: ensuring access to vital resources and preventing illegal immigration, are constrained by the limited resources of the State and the partial burden that is borne by the local populous in discharging such an obligation. The AP High Court went on to note:

There cannot be any second opinion that the State is under obligation to provide atleast drinking water to all its citizens, but at the same time, the limited availability of the water resources as well as the financial resources cannot be ignored. Within the available resources, the problem should be attended to with utmost importance and promptitude. In fact, it should be treated as a priority issue. At the same time, making the Government alone responsible and liable to provide water may not solve the issue. The people at large should address themselves to the problem and learn to use the water, particularly drinking water, in a judicious and reasonable manner. Wastage of drinking water, which is not available in plenty, would naturally result in denial of the same to the other needy persons. Individual and collective efforts in this regard are very much necessary and such efforts go a very long way in minimizing the scarcity.

In respect of State duty under Article 355, considerable responsibility was placed upon the local citizenry to report incidents of illegal immigration to allow the State to maximise the resources available to it. While the ultimate functioning of the Act may have resulted in an excessive burden upon the citizens, which caused lower rates of deportation and difficulty in identification of illegal immigration, it is respectfully submitted that these are not sufficient grounds to declare that the IMDT Act is wholly unconstitutional – but that parts of it are to be enforced with greater effectiveness. In summary, only a successful challenge to the IMDT Act under Part III (which was done) should have lead to a declaration of unconstitutionality.

Fact-Finding and the Insufficiency of the Supreme Court

A close reading of the Sonowal judgement reveals another troubling truth – that the Court makes its determination of the inadequacies of the IMDT Act on the basis of a distinct lack of concrete evidence. It relies primarily on a single report of the Governor of Assam (1998) to draw its conclusions on the efficacy of the Act, disputing none of the reports factual conclusions. Without drawing any inferences as to the accuracy of the report itself, this raises the questions of the ability of the Supreme Court to make concrete factual determinations, and whether it is even the correct forum for such determinations to be made.

The Supreme Court has been vested with wide powers to do justice in the Constitution – but its power to appreciate new evidence, or interfere with the findings of lower courts is limited when exercising its appellate authority. However, the Supreme Court has called on ‘expert committees’ to assess more closely the evidence submitted by the parties. For example, in an order passed concerning the Cauvery Water Dispute between Karnataka and Tamil Nadu, the Court ordered:

‘It is submitted that it would be in the fitness of things that a High Powered Technical Team is appointed by the Chairman of the Supervisory Committee who is the Secretary of the Ministry of Water Resources…to proceed immediately to the site so that an inspection of the entire Basin is done for assessing the ground realities and prepare a report forthwith for being placed before this Hon’ble Court.’

There have been numerous incidents of the Supreme Court having relied upon neutral ‘expert evidence’, such as in State of Tamil Nadu v. K. Balu, concerning liquor vendors on highways, or its creation of a Technical Expert Committee that studied Genetically Modified Organisms in Aruna Rodrigues v. UOI. Its treatment of facts in Sonowal is thus a departure from its current practice of commissioning independent studies to determine contentious assertions of on-ground realities. The Judiciary, in comprising of judges who are (justifiably) unable to address the several scientific and complex questions of fact posed to it, is invariably one-sided in its approach, as it lacks the inherent institutional expertise to make its own determinations of fact. As a consequence, the Supreme Court isn’t equipped to scientifically determine when a partial breach of duty has taken place, and what the threshold for such partial breach should be. As a result, judgements like Sonowal ignore the often overlapping (and not the binary positive or negative) outcomes that may result from legislations like the IMDT.

Conclusion

The Constitutional Bench of the Supreme Court is required to answer a set of thirteen questions as referred to it by the Division Bench before which the case was originally placed, some of which are crucial for the purposes of this essay:

(iv)

  • Whether Section 6A violates Article 355?
  • What is the true interpretation of Article 355 of the Constitution?
  • Would an influx of illegal migrants into a State of India constitute “external aggression” and/or “internal disturbance”?
  • Does the expression “State” occurring in this Article refer only to a territorial region or does it also include the people living in the State, which would include their culture and identity?

To answer these questions effectively, it is crucial that the Supreme Court deliberate upon the nature of Article 355 – as to whether it requires that any measure be undertaken, or that these measures must also be effective. Answering these questions clearly would avoid Mathur J.’s dictum, which confused ‘unconstitutionality’ with ‘ineffectiveness’ – and may go some way to easing the plight of the Assamese.

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Filed under External Aggression (Article 355), positive rights

Judicial Censorship, Prior Restraint, and the Karnan Gag Order

When the only weapon you have is a hammer, every problem looks like a nail. In recent times, the judiciary’s approach to the freedom of speech and expression seems to be proving this adage true. In response to people saying things that may not be to a judge’s liking, the response has invariably been to reach for the hammer, to ban, prohibit, or compel. Jolly LLB has a few scenes mocking lawyers? Make a committee and order cuts. Fundamental duties don’t have enough of an impact among people? Force them to stand up for the national anthem in cinemas. Condom packets have racy pictures? Direct the Additional Solicitor-General to come up with a way of “regulating” them. People are losing touch with cultural values? Force all schools in Tamil Nadu to teach the ThirukkuralThere are bandhs in Meghalaya? Ban the press from carrying statements about them. And so on.

The judicial hammer was in exhibition again today, in the seven-judge bench order convicting Justice C.S. Karnan of contempt, and sentencing him to six months in prison. The broader contempt case is not something I want to spend time discussing here, apart from noting, as an aside, that a Supreme Court that has no time to hear crucial constitutional cases for years on end on the ground that its judges are overworked and dealing with a backlog, nonetheless found the time to have multiple seven-judge sittings between February and May. Be that as it may, it is the last line of today’s order that I want to focus on. After convicting Justice Karnan to six months imprisonment, the Court states:

“Since the incident of contempt includes public statements and publication of orders made by the contemnor, which were highlighted by the electronic and print media, we are of the view, that no further statements made by him should be published hereafter. Ordered accordingly.”

The scope of this order is breathtaking. The Court takes one individual – Justice Karnan – and gags the media from carrying any statement made by him. In my view, apart from overreaching and violating Article 19(1)(a), the Court has passed an order that it had no power to pass.

Prior Restraint

The order imposes what, in free speech law, is called “prior restraint”: “… [State] action that prohibits speech or other expression before it can take place.” It has long been a position in common law that prior restraints upon speech are impermissible unless exceptional circumstances exist. As early as 1765 in England (a time not exactly known for liberties of speech and of the press), Blackstone famously wrote that “the liberty of the press… consists in laying no previous restraints upon publication.” The American Supreme Court has held repeatedly that “any prior restraint on expression comes to this Court with a `heavy presumption’ against its constitutional validity.” In Brij Bhushan vs State of Delhi, the Indian Supreme Court held, as well, that prior restraint upon speech is presumptively unconstitutional. Prior restraint is considered specially damaging to free speech because it chokes off the “marketplace of ideas” at its very source, and prevents certain individuals, or ideas, from entering the public sphere. In other words, it gives the State exclusive control over “exclusive control over what material can or cannot be allowed to enter the marketplace of ideas.”

The Media Guidelines Case

In Sahara vs SEBI, popularly known as the “Media Guidelines Case”, the Supreme Court carved out a specific exception to the rule against prior restraint. In SEBI, the Court was concerned about the issue of media trials causing prejudice in sub judice matters. In that context, the Court held that it had inherent powers under the Constitution to “prohibit temporarily, statements being made in the media which would prejudice or obstruct or interfere with the administration of justice in a given case pending in the Supreme Court or the High Court or even in the subordinate courts.” Drawing this power under Article 129 of the Constitution, which authorised the Supreme Court to punish for contempt of itself, the Court held that the power to punish included the power to prevent as well. On this basis, the Court held that it could pass “postponement orders” (i.e., temporary injuncting the media from reporting on a particular event) in order to ensure the proper administration of justice, a fair trial, and the protection of the rights of the accused under Article 21. The Court warned that:

“Given that the postponement orders curtail the freedom of expression of third parties, such orders have to be passed only in cases in which there is real and substantial risk of prejudice to fairness of the trial or to the proper administration of justice which in the words of Justice Cardozo is “the end and purpose of all laws”. However, such orders of postponement should be ordered for a limited duration and without disturbing the content of the publication. They should be passed only when necessary to prevent real and substantial risk to the fairness of the trial (court proceedings), if reasonable alternative methods or measures such as change of venue or postponement of trial will not prevent the said risk and when the salutary effects of such orders outweigh the deleterious effects to the free expression of those affected by the prior restraint. The order of postponement will only be appropriate in cases where the balancing test otherwise favours non-publication for a limited period.”

Consequently, in SEBI, the Supreme Court authorised prior restraint only in the narrow context of an ongoing trial, where media reporting presented a “real and substantial risk of prejudice to the fairness of the trial.” The Court stressed that the postponement order must be narrow and limited, both in its scope and its duration.

The Karnan Gag Order

The SEBI case has come under serious criticism, but for the purposes of this post, let us take it as binding law, and test the Karnan order against it. It is quite obvious that none of SEBI’s pre-conditions for imposing prior restraint are not even remotely satisfied. There is no ongoing trial – by the same order in which it imposed the media gag, the Court convicted him of contempt. Consequently, the prospect of prejudicing an ongoing trial and thereby interfering with the administration of justice – the basis of the judgment in SEBI – does not exist. The order is neither narrow in scope, nor in its duration: it is, in the true sense of the word, a blanket gag order. Consequently, the Karnan gag order does not fall within the scope of the SEBI judgment.

What, then, is the justification for this sweeping exercise of judicial power to silence speech? The answer is clear: Justice Karnan has, over the course of the last few months, made a number of statements, which formed the basis of his conviction for contempt by the Supreme Court. The Court presumes that he will make more such statements, and many of them will amount to contempt of court. To prevent these statements from being given the oxygen of publicity, the Court decides to gag the media from reporting on them, in advance.

This is the case for the Court, taken at its highest. And at its highest, it is no case at all. There is something particularly disturbing about punishing a man not for what he has said, but for what he might say (we are dangerously close to the realm of thought-crimes here). There is something particularly disturbing about taking the choice and judgment away from the media about what to report and what not to report, to decide for themselves what statements might be legal and what illegal, and imposing a blanket ban on reporting anything one individual might say, in advance. There is no counter-veiling interest: no ongoing trial, no sexual harassment claim where reputations may be destroyed, no grave imperilment of national security. There is absolutely nothing here apart from a man who has made some statements that the Court has found to be contemptuous, and on that basis the Court has decided to gag the media from publishing anything he says. Even if it could possibly be argued that the Court had the power to do this under Article 129 (since, as has been held, the power to punish for contempt includes the power to prevent it), the Karnan order clearly violates Article 19(1)(a), and fails all the proximity and reasonableness tests laid down under Article 19(2).

Needless to say, I don’t believe that the Court does have the power to pass an order under Article 129. SEBI – which held that the power to “punish” contempt includes the power to “prevent” contempt – was already stretching language to its limits. But even if there is some way to justify SEBI on the grounds of its narrowly focused nature, to say that the Karnan gag order falls within the Supreme Court’s power to “prevent contempt” is to act like Humpty Dumpty, and make words mean what you want them to mean, because you are the master.

Now, if the gag order cannot be traced back to Article 129, then – in my view – there is no constitutional source for it at all. As I have argued before in my analysis of the national anthem order, under Article 19(2), speech can be restricted only by the “State”, acting through “law”. It is, by now, well-settled, that under Article 19(2), the judiciary is not “State”, and judicial orders are not “law”. The judiciary’s task is to protect citizens’ right to free speech from executive and legislative tyranny, not to get into the business of censoring speech itself! In my view, therefore, the gag order is entirely illegal and unconstitutional.

Judicial Censorship

I have written before that over the last few years, we have been witnessing a disturbing trend where, in place of the legislature and the executive, it is the judiciary that has been taking upon itself the task of regulating, restricting, and censoring speech. The Karnan gag order is the latest trend in what fast seems to be becoming an established jurisprudence of (what I have called) “judicial censorship”.

The Karnan gag order was written by the Chief Justice, but co-signed by the next six senior-most judges of the Supreme Court. Three of those six judges will serve as Chief Justice in the coming years. What this suggests is that the problem is not with individual judges, but with the fact that, as an institution, the Supreme Court simply doesn’t view the freedom of speech and expression to be of much importance.

That is, in equal parts, alarming and tragic.

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Filed under Contempt of Court, Free Speech, judicial censorship

The (Continuing) Doctrine of Judicial Evasion in the Aadhaar Case

On this blog, I have argued before that the ongoing Aadhaar litigation provides an example of the Supreme Court’s evolving doctrine of “judicial evasion”: faced with a dispute between individual and State that involves wide-ranging ramifications on civil and constitutional rights, the Court’s response is not to decide it one way or another, but to simply refuse to hear it at all. While legally this keeps the position of the parties at status quo, at the same time, it permits the State to take all steps on the ground to achieve a fait accompli that effectively makes the case academic and infructuous. In other words, by not deciding, the Court is, in effect, deciding in favour of the State, but without the public accountability that comes with the existence of a written, reasoned judgment.

The doctrine of judicial evasion ensured – as I pointed out in my posts about the Aadhaar/PAN litigation – that in the one constitutional challenge to Aadhaar that the Court did hear, the Petitioners had to argue as if they were playing a tennis match with one arm and one leg tied behind their backs. And today’s order – in Shanta Sinha vs Union of India – is another excellent example of how, by applying this doctrine, the Court has fundamentally abdicated its constitutional responsibility to protect the rights of Indian citizens.

Recall – yet again – the background. On 11th August 2015, after the Union of India argued that there was no fundamental right to privacy under the Indian Constitution, the three-judge bench of the Supreme Court referred the challenge to the Aadhaar scheme (at that point, a voluntary, executive scheme) to a larger bench for decision. The Court clarified that, pending the final decision, Aadhaar could not be made mandatory for availing of subsidies or benefits, and it recommended that the case be heard on an urgent basis. A Constitution Bench met in October 2015 to extent the list of subsidies for which Aadhaar could be used; after that, the case has not been heard, despite numerous attempts to “mention” it before the Chief Justice, and have it listed. It has been one year and nine months since the referral order.

In the meantime, the Union of India has gone full steam ahead with Aadhaar. In 2016, it passed an Aadhaar Act, providing statutory sanction to the scheme. Section 7 of the Act authorised the government to make Aadhaar mandatory for subsidies or benefits, which were paid out of the Consolidated Fund. Under the ostensible cover of Section 7, a number of notifications have been passed, making Aadhaar mandatory for a whole range of crucial, life-sustaining benefits: from schoolchildren’s midday meals to compensation for victims of the Bhopal Gas Tragedy.

Before the Supreme Court today, then, the case for the petitioners in Shanta Sinha vs Union of India was simple: seventeen notifications under the authority of S. 7 of the Aadhaar Act, which made Aadhaar mandatory for crucial subsidies and benefits, were illegal, and Section 7 itself was unconstitutional. Moreover, the case was one of utmost urgency: in most of these notifications, the last date for applying was June 30. Given that the Supreme Court was closing for the vacations today, unless some orders were passed, the case would become entirely infructuous. People entirely dependent on these subsidies for their basic survival would have no choice but to enrol for an Aadhaar number, whether they wanted to or not.

To this, the Court’s only response was to decline to hear the case, because the constitutional challenge to the Aadhaar Act was already pending before the Constitution Bench – the same Constitution Bench that had not been set up for a year and nine months, despite every attempt by numerous petitioners to persuade the Chief Justice to do so. Instead, it tagged this challenge to the already pending challenge before that Constitution Bench. Petitioners’ arguments that they would not rely upon the right to privacy – which was the reason why the referral had happened in the first place – had no impact.

Petitioners then requested the Court to at least hear the case on the issue of interim reliefs because – as pointed out above – the entire case would become infructuous by June 30. To this, the Court responded that the Petitioners could only raise the plea of interim reliefs before the Constitution Bench – that same unicorn Constitution Bench that nobody had seen a hoofprint of since August 2015. The Court then said that the Petitioners ought to approach the Chief Justice and mention this – the same Chief Justice who had publicly refused to list the case on a prior mentioning.

Needless to say, there’s going to be no Constitution Bench before June 30. In short, the Supreme Court has effectively decided the validity of seventeen notifications that make Aadhaar mandatory for accessing crucial services in favour of the government without hearing a single argument, not even arguments on an interim stay.

Presumably, judges of the Supreme Court do not live in individual silos. The two-judge bench of Justices Sikri and Bhushan who heard today’s case was surely aware of the non-progress of the Aadhaar case through the Supreme Court over nearly two years. Surely it was aware that there was going to be no listing of anything any time soon. And so, surely these judges knew that by “tagging” this case to the existing challenges before the mythical Constitution Bench, the effect was nothing other than to decide the case in favour of the government.

I have said before that the only proper description of the Supreme Court’s conduct in the Aadhaar case is institutional disingenuousness. In refusing to set up the Constitution Bench to hear Aadhaar, while simultaneously setting up three Constitution Benches in the vacations to hear three other cases (none of which carry the same urgency as this one) and in “tagging” new challenges to the main challenge that is never heard, thereby burying them as well, the Court has effectively ruled in favour of the government on Aadhaar without allowing the petitioners to argue their challenge, and without writing a reasoned judgment that would be subject to public scrutiny.

This, to me, seems nothing less than an abdication of constitutional responsibility through the doctrine of judicial evasion.

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Filed under aadhaar, Access to Justice, Article 21 and the Right to Life, Judicial Evasion, Privacy