Guest Post: The 2023 Delhi Ordinance, Services, and the Basic Structure – I

[This is a guest post by Ashwin Vardrajan.]

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Introduction

On May 11, 2023, the Supreme Court (“SC”) released its decision in Government of NCT of Delhi v. Union of India [Civil Appeal No. 2357 of 2017] (“May 11 Judgment”). In this judgment, the SC effectively struck down a notification from 2015 of the Union Government, which barred the Legislative Assembly and Government of the National Capital Territory of Delhi (“NCTD”) from exercising control over ‘[state] public services’ under Entry 41, List II of Schedule VII (“Entry 41”) of the Constitution. As summarised elsewhere, the SC did so because Article 239AA(3)(a) of the Constitution, through its wording, by default granted the Legislative Assembly and Government of the NCTD to exercise control over administrative services in its jurisdiction. Additionally, the SC also justified its reasoning for why Part XIV of the Constitution – dealing with administrative and civil services in the Union, States and Union Territories (“UTs”) – should apply to the NCTD by relying on the ‘intrinsic link between government accountability and the principle of collective responsibility.’ Simply put, civil servants are accountable to the NCTD Government Ministers, who are in-turn responsible to the NCTD Assembly, and the Assembly is responsible to the electorate. This chain of accountability is necessary for the effective operation of the principle of representative democracy manifested in Article 239AA.

Soon after the May 11 Judgment was pronounced, the Union Government promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 (“Ordinance”), amending the Government of NCTD Act, 1991 (“Act”), on May 19, 2023. Among other things, the Ordinance has added Section 3A to the Act (“Section 3A”), which states that the ‘Legislative Assembly [of NCTD] shall have the power to make laws as per Article 239AA except with respect to any matter enumerated in Entry 41’. As has been argued on several fora, the Ordinance seemingly countermands the May 11 Judgment, and is constitutionally impeachable for that reason (here, here, here and here) – there exist opposing views as well (here and here).

Broadly, the arguments against the Ordinance are that it overrules the May 11 Judgment, which is otherwise not permissible in our constitutional scheme. But the defect with this argument is that the SC was only able to allow the NCTD to exercise authority over Entry 41 because ‘“services” (that is, Entry 41) is not expressly excluded in Article 239AA(3)(a).’ Moreover, the SC also noted that the ‘intent and purpose of Article 239AA(3)(b) and Article 239AA(7) is to confer an expanded legislative competence upon Parliament, when it comes to [Government of NCTD] clearly since it is the capital of the country and therefore, must be dealt with different considerations.’

To simply argue the unconstitutionality of Section 3A on the grounds that it countermands the May 11 Judgment fails to sufficiently address the unique constitutional problem it poses. To this end, this essay demonstrates that Section 3A is actually an amendment to Article 239AA, and makes a case for why it must be assessed in accordance with the basic structure doctrine (“BSD”). A caveat here is that this essay is limited only to the assessment of Section 3A, and no other parts of the Ordinance.

Amendments other than Article 368 and the BSD

Article 368 is not the only provision dealing with the power and process for amending the Constitution. Other provisions – such as Articles 4(2), 169(3), 243M(2)(b), 312(4) etc. – state that a law passed by the Parliament to amend such parts of the Constitution shall not ‘be deemed to be an amendment under Article 368.’ In this essay, we shall call them ‘Atypical Amendments’.

The most obvious consequence of stipulations allowing Atypical Amendments is that the process under Article 368 need not be followed for amending parts of the Constitution exempted thus. Parliament can pass Atypical Amendments through a simple majority in both Houses. However, it is not immediately clear whether Atypical Amendments can be equated with ‘amendments’ under Article 368, as the BSD is otherwise applicable to ‘amendments’ passed under Article 368.

Mangal Singh v. UOI [(1967) 2 SCR 109] is perhaps the first case to opine on this point. Here, the issue was whether the Punjab Reorganisation Act, 1996 – enacted in accordance with Articles 2-4 – violated the Constitution for bypassing requirements in Article 170. In this regard, the SC observed in passing that a law enacted under Article 4(2) ‘is undoubtedly an amendment of the Constitution, [although] no such law which amends the First and the Fourth Schedule or which makes supplemental, incidental and consequential provisions is to be deemed an amendment of the Constitution for the purposes of Article 368.’

However, in Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225], several judges arrived at differing opinions on whether Atypical Amendments are substantively the same as ‘amendments’ under Article 368, thereby being subject to the BSD. The issues before the SC did not directly deal with whether Atypical Amendments are subject to the BSD. However, while reasoning what constitutes an ‘amendment’ to the Constitution, at least eight justices spoke on the nature of Atypical Amendments vis-à-vis Article 368. Justices Beg (para. 1830), Mathew (paras. 1565-70), Shelat and Grover (paras. 498, 500(v), 502, 628), Khanna (para. 1439), and Ray (paras. 790, 793 and 842) opined that the difference between ‘amendments’ under Article 368 and Atypical Amendments is simply one of form and not substance – i.e., all are constitutional amendments, and only the method of enacting them is different.

On the other hand, Justices Hegde and Mukherjea (paras. 627-28) opined that Atypical Amendments are passed like any other ordinary law (i.e., with a simple majority in the Parliament), and that they have been consciously distinguished from ‘amendments’ under Article 368. Therefore, ‘[once] this position is accepted, any law made under those provisions takes the character of an ordinary law and that law becomes subject to the other provisions of the Constitution including Article 13(2).’ In other words, for them, Atypical Amendments are not subject to the BSD, and must be treated like ordinary laws subject to the provisions of the Constitution.

While Kesavananda suffers from the confusions caused by polyvocality of opinions, clarity was brought on this point by the Patna High Court (“HC”) in Amendra Nath v. State of Bihar [AIR 1983 Pat 151]. Among other things, it was argued before the HC that the Fifth Schedule to the Constitution (Amendment) Act, 1976 – enacted under Paragraph 7 of the Fifth Schedule (comprising an Atypical Amendment clause) – violated Article 14 of the Constitution. Rejecting this argument, the HC relied on this opinion of Shelat and Grover JJ. in Kesavananda:

It appears that the statement in the articles and provisions containing the amending power other than Article 368 that any amendment made under those articles would not amount to an amendment under Article 368 merely embodied the distinction emphasised by Dr B.R. Ambedkar that one category could be amended by the Parliament by a bare majority and all the other articles could be amended by the said body but only by following the form and manner prescribed by Article 368.

According to the HC, these were ‘not […] mere incidental and casual observations which are not binding.’ Moreover, the HC pointed out that notwithstanding Kesavananda, the observations in Mangal Singh still hold good. The HC eventually ruled that an Atypical Amendment is substantively the same as ‘amendments’ under Article 368, and proceeded to decide on merits whether the 1976 Amendment violated the BSD.

A combined reading of Mangal Singh, Kesavananda and Amendra Nath leads to the conclusion that Atypical Amendments can be equated to ‘amendments’ under Article 368, and, thus, are subject to the BSD.

Section 3A as an Atypical Amendment

Under Article 239AA(7) the Parliament is empowered to amend any part of Article 239AA. Such a law, as per Article 239A(7)(a), must be of a nature ‘giving effect to, or supplementing the provisions contained [Article 239AA] and for all matters incidental or consequential thereto’. Article 239AA(7)(b) deems any law passed under Article 239AA(7)(a) as an Atypical Amendment.

To this end, one of the recitals of the Ordinance reads as follows:

AND WHEREAS for the purpose giving effect to Article 239(1) read with Article 239AA and in exercise of powers of Article 239(1), Article 239AA[3][b] and Article 239AA[7] of the Constitution of India, which includes the power to supplementing the provisions under Article 239AA including the power to make suitable amendments thereof, an Ordinance namely the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 is proposed…

A ‘supplement’ may be defined as ‘a thing added to something else to…complete it’, or which supplies ‘something additional’.* Article 239AA(3)(a) defines the legislative competence of the NCTD Assembly, and explicitly excludes, inter alia, Entries 1, 2 and 18 of List II thereof. What Section 3A also does is change the scope of the NCTD Assembly’s competence by further excluding Entry 41 from its fold, as opposed to simply overriding existing laws application in the region (in which case, the rule of repugnancy under Article 239AA(3)(c) would apply). Thus, Section 3A acts as a ‘supplementing’ provision to the authority (i.e., legislative competence) of the NCTD Assembly defined under Article 239AA(3)(a), albeit in a negative sense.

At this juncture we must note that the Ordinance is an ordinary law, and not a constitutional amendment passed like an ordinary law. Article 239AA(7)(b), however, includes within its fold Atypical Amendments which have the ‘effect of amending’ Article 239AA. To buttress how Section 3A has the ‘effect of amending’ Section 239AA, the SC’s decision in UOI v. Rajendra Shah [2021 SCC OnLine SC 474] is useful. Here, the SC decided on whether Part IX-B of Constitution violated the mandatory process of ratification enumerated in the proviso to Article 368(2). Interpreting the term ‘change’ appearing in the said proviso, the SC opined that sometimes amendments to one part of the Constitution have a colourable effect on other parts. Such ‘changes’ were termed as ‘changes-in-effect’, ‘which would mean a change which, though not in the language of any provision of the Constitution, would yet be a change which would impact a particular article…in some significant way.’ As opposed to an explicit alteration, any law which has the ‘effect of amending’ Article 239AA too must be construed as an Atypical Amendment under Article 239AA(7)(b). In any case, Atypical Amendments can be passed as ordinary laws (such as laws to reorganise Indian States under Article 4). Given that the competence of the NCTD Assembly should ordinarily be altered via an actual constitutional amendment to Article 239AA(3)(a), the Ordinance uses Article 239AA(7) by inserting Section 3A into the Act to cause the ‘effect of amending’ Article 239AA(3)(a) (as shown above).

For such reasons, Section 3A is an Atypical Amendment under Article 239AA(7). As opposed to an ordinary law, thus, it can only be challenged for being in violation of the BSD.

Conclusion

What, then, would be the most appropriate grounds for challenging Section 3A? Recall that in the May 11 Judgment, the SC had used the principle of ‘triple chain of accountability’ to justify why the Government of NCTD be allowed to exercise control over ‘services’ in accordance with Part XIV of the Constitution. According to the SC, ‘[in] order to ensure that the functioning of the government reflects the preferences of the elected ministers, and through them the will of the people, it is essential to scrutinize the link of accountability between the civil service professionals and the elected ministers who oversee them.’ In the absence of a link between the two, there arises a ‘possibility that the permanent executive, consisting of unelected civil service officers, who play a decisive role in the implementation of government policy, may act in ways that disregard the will of the electorate’.

Moreover, Article 239AA(2) states that there ‘shall’ be a Legislative Assembly in the NCTD, as opposed to other UTs which ‘may’ or may not have Assemblies (see, Articles 239 and 239A). This makes NCTD a sui generis federal unit, similar to Indian States, whereby the Government of NCTD is to be treated ‘as a representative form of Government.’ By completely discounting the need of the Government and Assembly of NCTD for possessing control over Entry 41, the principle of ‘republican and democratic form of Government’, which forms a part of the BSD, stands prima facie violated.

But by way of this conclusion, does it mean the Union Government and Parliament – which at any rate possess constitutional authority to override the Government of NCTD under Article 239AA – are completely barred from exercising control over Entry 41? Any blanket restriction on either the Union or the NCTD (as Section 3A does) is going to help neither. The most appropriate way, therefore, will be that the Government and Assembly of NCTD exercise control over Entry 41 by default, and the Union utilise Articles 239AA(3)(b)-(c) (which govern repugnancy between Union and NCTD laws) to override NCTD laws in such matters in appropriate cases. That way, the interests of the Union in the national capital, and that of the Government of NCTD as a ‘representative form of Government’, will be balanced and safeguarded.

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* Black’s Law Dictionary (Bryan Garner Ed., 2009), p. 1577; Pocket Oxford English Dictionary (2013), p. 922.

Guest Post: Schrodinger’s Substantive Equality – Conceptual Confusions and Convenient Choices in Justice Maheshwari’s Plurality Opinion in the EWS Case

[This is a guest post by Ayan Gupta.]

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The Supreme Court (SC) in its split verdict in Janhit Abhiyan v Union of India upheld the 103^rd Amendment to the Indian Constitution. The amendment permits states to introduce reservation up to 10%, on top of already existing reservations, for “Economically Weaker Section [EWS]” of the citizenry. The qualifications for being classified as EWS are notified by the Govt separately and currently include persons with a family income of less than 8 Lakhs per annum.

At almost 400 pages, the judgement comprises of four opinions. The plurality opinion of Maheshwari J., along with concurrences from Trivedi and Pardiwala JJ., find consistent with the basic structure of the Constitution (a) that reservations can be grounded in solely economic basis and (b) that such reservation can be introduced to the exclusion of Scheduled Castes, Scheduled Tribes, and Other Backward Classes. The dissent by Bhat J. (joined by Lalit CJ.) disagrees explicitly on the second point regarding the exclusion of SC, ST, and OBC beneficiaries.

Keiran Correia has already provided an insightful analysis on the dissenting opinion of Bhat J, while Kartik Kalra has likewise examined the majority judgments. In this post, I focus specifically on Maheshwari J.’s plurality opinion. I argue that the decision highlights a severe lack of conceptual clarity concerning the nature and role of reservations within the Indian Constitution. 

Clarifying Indra Sawhney: The Task at Hand

The reservation jurisprudence of the SC has always been puzzling, with the Court often moving back and forth between the choices it makes. Nonetheless, since State of Kerala v NM Thomas, it is generally accepted, at least doctrinally, if not in practice, that article(s) 15(4) and 16(4) are not exceptions to the Constitution’s equality code, but emphatic restatements of it; in other words, the Equality Code embodies a vision of substantive equality, of which Article 16(1) (for example) is the general statement, and Article 16(4) a specific application.

That is not to say that this notion has not had its fair share of resistance. In Indra Sawhney, a 9-Judge bench of the SC, despite affirming NM Thomas, upheld MR Balaji’s 50% ceiling on reservations. This position reflects a “normative tension” in Sawhney, where on the one hand, the Court commits to understanding reservations as a facet of equality, and on the other, holds that the equality of opportunity function rationale of reservation must be balanced against the right to equality of everyone else.

Affirmative Action as a Facet of (In)Equality

Indeed, this tension is the exact conflict that Janhit Abhiyan required the Court to resolve. In having to decide whether SC, ST and OBCs can be excluded from the scope of EWS reservations, the Court would have had to deal with the internal tension that Sawhney presented before it. It would have had to reason whether exclusion of backward classes within a substantive equality framework could be balanced against the equality claims of “everyone else.”

Unfortunately, as we see in the plurality opinion, the Court undertakes no such exercise. Instead, it begins with the presumption that reservations necessarily do function as an exception to the equality. Thus, after articulating the issues it is to decide, in para 31.1 the Court says:

31.1. All these points are essentially structured on three important components namely, (i) the general rule of equality enshrined in Article 14 of the Constitution; (ii) the reservations enabled in Articles 15 and 16 as exception to the general rule of equality; and (iii) the doctrine of basic structure that defines and limits the power of the Parliament to amend the Constitution.

However, despite this presumption, the Court does not reject substantive equality-oriented interpretation of the Equality Code. Though in para 44, the plurality articulates the equality function of the constitution in the classic form of “equals must be treated equally while unequals need to be treated differently,” it follows up in the very next paragraph by noting that in Indian Constitutional Jurisprudence has “…held the guarantee of equality to be substantive and not a mere formalistic requirement” [para 46].

The plurality’s articulation of the Constitution’s equality, in these two paragraphs, highlights the first signs of the conceptual confusion that plagues the reasoning that follows. In the very next section, titled “Affirmative Action by ‘Reservation’: Exception to the General Rule of Equality,” this confusion becomes glaringly visible.

The Court begins by reasoning that the state is “tasked with affirmative action” as India’s “multifaceted social structure, ensuring substantive and real equality, perforce, calls for consistent efforts to remove inequalities” [para 48]. It goes on to characterize reservations as the “basic gateway to tread the path of all-around development” [para 52.1]. Yet, it concludes the section by stating that

56. However, it need be noticed that reservation, one of the permissible affirmative actions enabled by the Constitution of India, is nevertheless an exception to the general rule of equality and hence, cannot be regarded as such an essential feature of the Constitution that cannot be modulated…

Interestingly, the Court does cite NM Thomas to say that Article 14 embodies the ”the generic principle of equality (as genus) and Articles 15 and 16, [enact] the facets of general equality (as species)” [para 52]. Yet, it does not engage with, or even acknowledge, the impact of this statement (and the Thomas decision) on its presumption that reservations represent an exception to equality since Thomas had explicitly held, and Indra Sawhney had explicitly reaffirmed, that reservations do not function as exceptions to equality!

The rest of the opinion (including this particular section) offers no reasons for why reservations have been characterized as an exception to the “general rule of equality.” It is important to note that the Court does not engage at all with the decisions in NM Thomas and Indra Sawhney in so far as they question the nature of reservations within the Constitution’s equality code.

It begs to be asked, then, if the Court is clear in its determination that reservations function as an exception to the general rule of equality, why does it articulate the equality code’s function as a substantive equality feature? Why does it characterise reservations as exceptional and yet justify their presence on a substantive equality principle?

The answer to this question perhaps lies in the plurality’s need to justify reservations based solely on economic determinant(s), a classification that did not exist prior to the amendment, and at the same time find reasons for the exclusion of SC, ST and OBCs from the scope of the new amendment.

In having to justify reservations to the exclusion of caste and group identities, the plurality takes resort to the space provided by substantive equality formulations of the Constitution. For instance, in para 63, it notes that

63. … this Court distinctly pointed out that the equality clause in the Constitution does not speak of mere formal equality but embodies the concept of real and substantive equality, which strikes at inequalities arising on account of vast social and economic differentials.

Indeed, the Court follows up by noting that in conversations concerning substantive equality, economic justice has acquired “equal focus” alongside “the principles of social justice” [para 65]. In articulating this substantive equality argument, it goes so far as to say

65. …[a]ny civilized jurisdiction differentiates between haves and have-nots, in several walks of life and more particularly, for the purpose of differential treatment by way of affirmative action.

Thus, on the one hand, the Court refuses to acknowledge that substantive equality articulations do not understand affirmative action policies as exceptions to equality. On the other hand, it uses the language of substantive equality to reason that the Constitution not only permits, but demands [para 79], that economic poverty be recognized as a group/ class of its own.

It is important to note, in this context, that the Court’s decision to allow the breach of the 50% ceiling for EWS reservations must necessarily result from a substantive equality conception of the Constitution. The introduction of the limit was based on the need to “balance” equality of opportunity and the right to equality of “everyone else.” It functions on the assumption that reservations are an exception to the “general principle” of equality, and therefore, cannot exceed 50% as exceptions cannot swallow the whole.

Thus, though the stated reasoning for permitting a breach of the limit is that it concerns Article(s) 15(4) and 16(4) and is irrelevant for EWS reservations, which form a separate category of its own [para(s) 93 and 94], any breach of the 50% limit would necessarily require substantive equality as an underlying philosophical justification. Otherwise, as is the case presently, the Court is faced with a situation where the balance is tilted in favor of one group against another, and the general rule of equality would be defeated by more than 50% reservations. This would be a result inconsistent with the vision of formal equality. Once again, this is a tension that remains unaddressed in the plurality decision.

Conclusion: A Constitutionalism of Convenience

These two contradictory choices represent, to me, a constitutionalism of convenience. In creating this conceptual confusion, the plurality made space for envisioning reservations for a group otherwise not entitled to it without having to include already existing beneficiaries of affirmative action. In essence, on both questions, first, concerning validity of economic reservations and, second, concerning exclusion of SC, ST, OBCs from such reservation, the Court used these competing visions of equality to justify the conclusion it chose.

In answering the first question, the Court held that since reservations function as an exception to equality (the formal vision), it cannot be “…regarded as such an essential feature of the Constitution that cannot be modulated” [para 56]. In answering the second question, using substantive equality’s commitment to acknowledging and countering structural injustice (substantive vision), it held that that ”..but for this exclusion [of SC, ST, and OBCs], the purported affirmative action for a particular class or group would be congenitally deformative” and therefore, the exclusion would not violate the basic structure of the Constitution [para 79].

In making these choices, the Court refuses to acknowledge the contradictions inherent in its approach. The approach is intellectually suspect, and adds to the conceptual confusions in a jurisprudence already plagued by lack of clarity across its various aspects.

Indeed, even the Court’s use of substantive equality as a bridge for creating exclusions without considering the interaction between caste and poverty only serves to highlight its evasion in refusing to engage with the complete consequences of the concepts and choices it employs. Finally, by failing to engage with the normative tensions in Indra Sawhney, the Court refuses to perform the job it was tasked with of clarifying the nature and place of reservations within the equality code.

On a parting note, I also wish to highlight an interesting observation by the Court that deserves more exploration. In para 97, the Court notes that the extent of reservations made under the EWS quota may be “determined with reference to the relevant analysis of the material data justifying a particular percentage.” In doing so, it brings forth the ghost of Nagaraj. In Nagaraj, the SC held that the State must submit quantitative data on backwardness of the beneficiaries and impact on administrative efficiency for granting reservations under Article 16(4A).

In doing so, it made granting such reservations difficult especially as it provided little to no guidance as to what such data must indicate. Though the EWS reservations do not have backwardness and efficiency related qualifications, it will be interesting to see the challenges that follow based on lack of or a need for data justifying the reservations granted (and the many methodological confusions that categorizing “EWS” would bring). Would this lead the Court away from the approach in data-focused approach in Nagraj or would it only solidify Nagaraj’s presence remains to be seen.

Guest Post: Escaping the Basic Structure Dilemma – On the Majority Judgement(s) in the EWS Reservations Case

[This is a guest post by Kartik Kalra.]

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This week, the Supreme Court delivered its judgement in Janhit Abhiyan v. Union of India, holding constitutional the 103^rd (Amendment) Act, 2019, which provides for reservations in public employment and education for economically weaker sections (“EWS”) of citizens other than Scheduled Castes (“SC”), Tribes (“ST”) and Other Backward Classes (“OBC”). In adjudicating the constitutionality of the Amendment, it split the question into three parts: the constitutionality of the use of solely economic criteria to reserve seats under Articles 15 and 16; the constitutionality of the exclusion of SC, ST and OBC candidates from the category of EWS; and, the constitutionality of the breach of the 50% ceiling on reservations. This piece concerns the first question: the constitutionality of a solely economic basis to determine the eligible class for reservations.

The Court’s engagement with this issue becomes significant due to the prior, enduring consistency of its jurisprudence with respect to the necessity of a homogenous, precisely delineated class constituting the eligible recipient of reservations under Articles 15 and 16. Indra Sawhney v. Union of India explicitly held that “a backward class cannot be determined only and exclusively with reference to economic criterion” (¶799), and Janki Prasad Parimoo v. State of JK considered income levels to be incapable in constituting a homogenous class eligible for reservations (¶36). Dayaram Verma v. State of Gujarat struck down income-based reservations on the same grounds (¶29.3).

In this piece, I argue that the Court’s deviation from well-established doctrine on the necessity of a homogenous, precisely delineated class as the recipient of reservation benefits, while motivated by a desire to avoid constitutional stultification, ignores a host of creative ways out of the basic structure dilemma. I evaluate the reasoning used by the Court in circumventing the application of prior doctrine on Articles 15/16, and argue that Maheshwari J. succumbs to the basic structure dilemma while Pardiwala J. misrepresents Chitralekha v. Union of India in order to demonstrate its convergence with the 103^rd Amendment. I also propose that the Court could have employed a constrained declaration of constitutionality like it did in M. Nagaraj v. Union of India, prescribing the mode of determination of the EWS class eligible for reservations based on its reasoning in Chitralekha. In addition, I also propose sub-classification of the EWS category within the Chitralekha criteria to be an additional weapon in the Court’s arsenal, one that it could have invoked without succumbing to the basic structure dilemma.

EWS and the Application of Doctrine under Article 16

In addressing the question of prior doctrine forbidding solely income-based reservations due to the absence of an identifiable class, Maheshwari J. proposes that Articles 15(6) and 16(6) create a new class altogether, one that isn’t subject to that doctrine in the first place:

72. …The said decisions cannot be read to mean that if any class or section other than those covered by Articles 15(4) and/or 15(5) and/or 16(4) is suffering from disadvantage only due to economic conditions, the State can never take affirmative action qua that class or section.

On the other hand, Pardiwala J. uses Chitralekha to hold that there is no real deviation from doctrine:

70. …Indra Sawhney (supra) holds that the Chitralekha (supra) propounded occupation-cum-means test can be a basis of social backwardness even for the purposes of Article 16(4). Article 15(6)(b) Explanation defining EWS could be said to be fully compliant with this norm.

Trivedi J. agrees with Maheshwari J., indicating her belief that EWS is a separate class altogether, one to which prior doctrine on Articles 15/16 has no application.

Given the exclusion of the classes under Articles 15/16(4), it is true that EWS will be a separate class. The question, however, is how this class will be identified, which strikes at a deeper question that Maheshwari J. assumes the answer to: the applicability of prior doctrine to assess reservations for any class under Article 16, which broadly mandates the existence of a homogenous class of recipients. In case this doctrine is inapplicable, then Articles 15(6) and 16(6) can function as a self-contained code with radically different philosophies and principles as compared to the rest of the equality code. If not, however, then a deviation from prior doctrine must be examined in greater depth.

State of Kerala v. NM Thomas approved Subba Rao J.’s dissent in T. Devadasan v. Union of India, holding that Article 16(4) is an emphatic restatement of the equality principle under Article 16(1) instead of being a deviation therefrom (¶78). All doctrine of Article 16 was imported to Article 15 in Ashoka Kumar Thakur v. Union of India (¶116), and Nagaraj held the entirety of Article 16 (and by implication, Article 15) to be restatements of the basic equality principle under Article 14 (¶102). There is, therefore, a degree of coherence across Articles 14, 15 and 16, and any tinkering must bear fidelity to what the equality code stands for and the means through which it is effectuated. While an author has previously argued here that dismantling caste-based structures of oppression and a reparative mode of reservations is a part of the basic structure, I do not take this burden. Even if one doesn’t subscribe to the reparative underpinnings of reservations (as none of the judges in the majority do), the mode of determining the classes eligible for reservations that has entrenched itself in Articles 15 and 16, and by implication in Article 14, cannot be ignored.

Case law on Articles 15 and 16, even including M.R. Balaji v. Union of India, has insisted on the necessity of a precise and similarly situated class that can receive reservations. Chitralekha held an occupation-cum-income based test to be accurate enough to determine backwardness (¶15); State of Andhra Pradesh v. P Sagar held the meaning of “class” under Article 16(4) to signify homogeneity, discounting the possibility of labelling a caste per se backward and necessitating the production of educational and economic criteria that would signify its backwardness (¶7); and T Murlidhar Rao v. State of Andhra Pradesh struck down the inclusion of the Muslim community in Andhra Pradesh within the OBC list because of its dissatisfaction with the accuracy of the report documenting their socio-economic status, which included both well-off and disadvantaged Muslims (¶73). More recently, Dayaram Verma reaffirmed the criteria in P. Sagar, holding that homogeneity is the sine qua non for determining the class eligible for reservations, and which cannot be achieved using economic criteria alone:

29.3 As the economically weaker sections among unreserved category cannot constitute as homogeneous group for the purpose of reservation and such reservation will not withstand to the scrutiny of twin test under Article 14 of the Constitution of India. Further, the economic criteria being fluctuating issue, the same cannot be the basis for any classification for the purpose of affirmative action for admission to educational institutions and while filling up the posts in the services under the State.

Case law, therefore, maintains that a class receiving reservations must be homogenous and precisely delineated. While Articles 15/16(4) use the term “backward” to define the eligibility of the class receiving reservations, Articles 15/16(6) use the term “economically weak”. For the former, the Court has repeatedly asserted the necessity of all constituents of the class being similarly backward. For the latter, therefore, the Court had the option of asserting the application of prior Article 16 doctrine necessitating a homogenous EWS class, one that is broadly similar in a set of indicators signifying economic capabilities. Does the EWS class possess a similarity in variables constituting economic weakness (other than income), such as, inter alia, occupational mobility, job security, blue v. white collar work, and the availability of health insurance? This is where the Court could have stepped in, mandating that the EWS class be determined in accordance with well-established doctrine that necessitates a homogenous class of recipients. This would not require the invocation of the basic structure test at all, for it would merely be an exegesis of the term “economically weak” under Articles 15/16(6) in the manner that Sawhney did for the term “backward” under Articles 15/16(4). The Court could have undertaken a similar exercise here, holding the Amendment constitutional while limiting its contours to a well-defined class.

Lastly, it must be noted that while cases like Sawhney, T. Murlidhar Rao and Dayaram Verma concerned classes under Articles 15/16(4), N.M. Thomas and Janki Prasad Parimoo concerned affirmative action under both Articles 16(1) and 16(4). Thus, the principle of class homogeneity is applicable to Articles 15/16 as a whole instead of being confined to Articles 15/16(4).

On this basis, I submit that the principle of identification of a homogenous, well-defined class is well-entrenched in the equality code, and any additions must operate within this principle. There are means of reaching this end without going down the basic structure path, other than the above discussion on an exegesis of the word “economically weak”. I explore this in the penultimate section.

Chitralekha, Article 15(6) and Blurring the Underpinnings of the Creamy Layer

As opposed to Maheshwari J., Pardiwala J. holds that reservations for the EWS category are also in consonance with the principles of identification under Article 16, and uses Chitralekha to further his contention. Chitralekha concerned the constitutionality of a reservation scheme that did not take caste as a factor affecting eligibility, instead evaluating income level and occupation type. The Court upheld the use of this criteria on the basis that the impugned scheme was effective in defining a class that was wholly backward and homogenous. Holding that the reservation scheme did not become unconstitutional solely because caste wasn’t accorded centrality, the Court said the following:

15. Two principles stand out prominently…namely, (i) the caste of a group of citizens may be a relevant circumstance in ascertaining their social backwardness; and (ii) though it is a relevant factor to determine the social backwardness of a class of citizens, it cannot be the sole or dominant test in that behalf.

Sawhney was also quite clear in its reading of Chitralekha, holding that as long as a wholly backward class was identified, insisting on the use of caste as a determining criterion was futile:

800. In Chitralekha this court held that such an identification [based on income level and occupation type] is permissible. We see no reason to differ with the said view inasmuch as this is but another method to find socially backward classes…[The] identification of backward classes can be done with reference to castes along with other occupational groups, communities and classes. We did not say that that is the only permissible method. Indeed, there may be some groups or classes in whose case caste may not be relevant to all. For example, agricultural labourers, rickshaw-pullers/drivers, street-hawkers etc. may well qualify for being designated as Backward Classes.

The overarching principle in Chitralekha, therefore, was that a backward class can be defined using non-caste criteria insofar as that other criteria are capable of constituting a homogenous class. It is true that backwardness may exist along axes other than caste, but this backwardness must constitute a precisely delineated homogenous group in the manner it did in Chitralekha. In Articles 15(6) and 16(6) and the Explanation, however, economic disadvantage is considered to be the sole assessor of backwardness. This, instead of being a derivative of the principles in Chitralekha, stands in direct contrast with them, for it constitutes no homogenous “economically weak” class as shown in the above section. The class is presently defined according to a notification issued by the Ministry of Social Justice and Empowerment, which uses solely income and property as class characteristics. This class can hardly be called homogenous, for it comprises of classes having differing occupational mobilities, job security, social safety etc.

These differences may be across lines of caste, religion, sex, income levels or any other factors, but it remains that the EWS category as defined presently does not constitute a homogenous class eligible for reservations.

Pardiwala J. disagrees. He makes the following further argument to establish the ability of purely economic criteria to constitute a homogenous class:

70. If economic advance can be accepted to negate certain social disadvantages for the OBCs [Creamy Layer concept] the converse would be equally relevant… Indra Sawhney (supra) holds that the Chitralekha (supra) propounded occupation-cum-means test can be a basis of social backwardness even for the purposes of Article 16(4). Article 15(6)(b) Explanation defining EWS could be said to be fully compliant with this norm.

If social disadvantage can be undermined by economic advancement, then what stops social advancement from being undermined by economic disadvantage? The purpose of the creamy layer, as is well-established in post-Sawhney doctrine, is to find a class that is truly backward after eliminating its constituents that show better socio-economic indicators. It must be noted that Sawhney itself considered economic advancement per se to be incapable of remedying social disadvantage, prescribing only stark forms of economic advantage that place one in a socially powerful position to sever them from the backward class they were hitherto a part of:

792. In a backward class under clause (4) of Article 16, if the connecting link is the social backwardness, it should broadly be the same in a given class. If some of the members are far too advanced socially (which in the context, necessarily means economically and, may also mean educationally) the connecting thread between them and the remaining class snaps. They would be misfits in the class. After excluding them alone, would the class be a compact class. The basis of exclusion should not merely be economic, unless, of course, the economic advancement is so high that it necessarily means social advancement.

Situation may, however, be different, if he rises so high economically as to become — say a factory owner himself. In such a situation, his social status also rises. He himself would be in a position to provide employment to others. In such a case, his income is merely a measure of his social status.

Further:

At the same time, it must be recognised that there are certain positions, the occupants of which can be treated as socially advanced without any further enquiry. For example, if a member of a designated backward class becomes a member of IAS or IPS or any other All India Service, his status is society (social status) rises; he is no longer socially disadvantaged. His children get full opportunity to realise their potential. They are in no way handicapped in the race of life. His salary is also such that he is above want.

It is, therefore, economic criteria strictly corresponding to social advantage – and not economic advancement per se – that snaps one’s link with the backward class and makes one a part of a “creamy layer”. This principle has been reaffirmed at many occasions, most prominently in Nagaraj and Ashoka Kumar Thakur. In an Article 15/16(6)-equivalent of this reasoning, the economic disadvantage being faced by a group must be so severe as to snap its link with the socially advanced class it was hitherto a part of. The continuation of this argument to reach its logical conclusion was another opportunity where scope for judicial intervention lay without invoking the basic structure test. The Court could have linked economic disadvantage and social advancement, prescribing a mode of determination that necessitates economic disadvantage so severe that social advancement is rendered meaningless. This would, perhaps, do true justice to the principle being derived from Chitralkeha, for all examples of non-caste classes that Sawhney derives using it are situations where economic disadvantage has the potential of undermining social advancement: “agricultural labourers, rickshaw-pullers/drivers, street-hawkers etc.” (¶800).

Alternatives to the Basic Structure Dilemma 

The Court faced an obvious discomfort in striking down the 103^rd Amendment, given its concern with possible stultification in holding caste-based reservations to be the only possible constitutional project and forbidding any other form of reservations under this Constitution [¶74.2.1 (Maheshwari), ¶98 (Pardiwala), ¶6 (Trivedi)]. While sufficient evidence is available to show that caste is presently the primary axis of disadvantage, it might not always be. This determination of changing axes of disadvantage could be reasonably considered outside judicial review, and the Court may choose to give deference to reservation policies addressing new axes of disadvantage. Simultaneously, it would desire to accord some significance to well-established doctrine in the equality code, requiring that additions thereto bear some familiarity to the basic principles on determining backwardness. This is the dilemma of the basic structure, where a declaration of unconstitutionality risks stultification, but a simple approval leaves much in the Parliament’s domain.

The same dilemma was faced by the Court in M. Nagaraj v. Union of India. Sawhney held that reservations can only be provided in matters of appointments, but Parliament added Article 16(4A) to also provide them in matters of promotions. Union of India v. Virpal Singh Chauhan propounded a catch-up rule for reservations in promotions, but Parliament further amended the Constitution to replace the catch-up rule with that of consequential seniority. When faced with a constitutional challenge to this set of amendments, the Court approved them, but with specific conditions on the use of this approval:

122. We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.

Given the extremely high threshold of the basic structure test and the corresponding judicial deference it introduces, the Court could have used the path in Nagaraj to uphold the amendments while also prescribing a set of constraints within which it must be exercised. As I have shown above, a class receiving reservations must constitute a discernible homogenous class. The Court could have recognized this, constraining the use of Articles 15/16(6) to reserve seats only for those economically weaker classes that satisfy the occupation-cum-income test in Chitralekha, necessitating the existence of a precise, homogenous economically weak class. Alternatively, the Court could have escaped the dilemma by effectuating the reasoning used for the creamy layer, mandating the existence of such a class whose economic disadvantage is so severe that it snaps its link with the socially advanced class it was hitherto a part of. Nagaraj paved the way to navigate the basic structure dilemma, and this case presented a ripe opportunity to reiterate it.  

Until now, I have shown three possible ways out of the dilemma: an exegesis of the term “economically weak” under Articles 15/16(6), using the framework in Nagaraj to confine benefits only for classes that meet Chitralekha’s criteria, and necessitating the existence of a class so economically disadvantaged that its social advancement is rendered meaningless.

There is, however, one more direction in which the Court could have gone: mandating (or at least encouraging) the use of the principle of sub-categorisation within the EWS class. While the principle of sub-categorisation was approved in Sawhney for the OBCs, its application to the SCs is under contestation due to conflicting judgements in E.V. Chinnaiah v. State of Andhra Pradesh and State of Punjab v. Davinder Singh, both of which navigate the question of relative homogeneity of the SC group differently. Jeevan Reddy J. explained the underpinnings of sub-categorisation in Sawhney as follows:

802. To give an illustration, take two occupational groups viz., goldsmiths and vaddes (traditional stone­cutters in Andhra Pradesh) both included within Other Backward Classes. None can deny that goldsmiths are far less backward than vaddes. If both of them are grouped together and reservation provided, the inevitable result would be that goldsmiths would take away all the reserved posts leaving none for vaddes. In such a situation, a State may think it advisable to make a categorisation even among other backward classes so as to ensure that the more backward among the backward classes obtain the benefits intended for them.

The OBCs, according to the judgement in Sawhney, may constitute a class whose homogeneity is under doubt. There could be some components that are better off, while some facing significant disadvantage. This applies equally well to the EWS class, for it includes persons with vastly diverging socioeconomic variables. The Court could have considered this another mode of constraining the use of EWS reservations, concentrating its use towards the worst-off sections of the EWS class. Simultaneously, this would also effectuate reservations for those persons whose economic disadvantage is so severe that its link with their social advancement has snapped.

Conclusion

As I have demonstrated in this piece, the majority judgement avoids meaningful engagement with the question of the application of prior doctrine under Article 16 that necessitates the existence of a homogenous recipient class. Maheshwari J. denies the application of past doctrine, and Pardiwala J. misleadingly conflates EWS reservations with the doctrine laid down in Chitralekha. While a large segment of the Court’s unsatisfactory reasoning has direct roots in the requirements posed by a basic structure challenge, this case presented a ripe opportunity for a creative solution accommodative of prior doctrine on reservations. The Court did not recognize the possibility of escaping this dilemma, which could have been achieved in at least four ways that I have demonstrated in this piece. Ultimately, it succumbed to the deference introduced by the basic structure test, validating a hitherto alien axis of assessing disadvantage. This doesn’t mean that all is lost: the criteria used to delineate the EWS class is always subject to judicial review even when the 103^rd Amendment is held constitutional. The Court may use these principles then, pulling EWS reservations closer to the philosophy of the equality code.

Guest Post: Equality as Non-Exclusion: Justice Bhat’s Dissent in the EWS Case

[This is a guest post by Kieran Correia.]

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The Supreme Court recently handed down a split verdict in Janhit Abhiyan v Union of India, upholding the 103^rd Amendment to the Indian Constitution. The Amendment, in the main, enabled affirmative action for economically weaker sections (EWS), defined by an annual family income of less than Rs 8 lakhs. The verdict cleaved along two issues, with all five justices agreeing on two questions—that reservations grounded solely in ‘economic criteria’ do not violate the basic structure of the Constitution and that reservations can be extended to unaided private educational institutions. The justices disagreed over the third issue: whether the Scheduled Castes, Scheduled Tribes, and the backward classes could be excluded from the scope of EWS reservations.

The Amendment was upheld by Maheshwari, Trivedi, and Pardiwala JJ—all tendering separate, concurring opinions. In dissent was Bhat J, with whose opinion Lalit CJ agreed. Justice Bhat’s opinion is significant for (re)articulating a vision of equality—threading various constitutional articles together into a recognizable ‘identity’—that is fundamentally non-discriminatory and non-exclusionary. Bhat J’s opinion suffers from one constitutional infirmity, which we will examine briefly. But the bulk of this post will examine the rest of the sole opinion that continues, for now in dissent, a long tradition of reading the Constitution in a manner faithful to its purpose.

Non-discrimination and non-exclusion as part of the ‘basic structure’

Since the Court was reviewing a constitutional amendment, it would have to deploy basic-structure review. While hardly perfect, the ‘basic structure’ has come to stand in for India’s constitutional identity—at least as perceived by the courts. The basic structure doctrine was introduced in the now famous Kesavananda Bharati case. In broad strokes, it encapsulates the idea that there are certain features of the Constitution—which have gradually grown through the years—that are unamendable by Parliament. The Court views these facets as so integral to this Constitution that Parliament—even with a special majority—cannot ‘damage or destroy’ them. In other words, this small constitutional pantheon of ideas and practices are inseparably sewn into the fabric of the Constitution; to do away with the basic structure is to do away with the Constitution itself.

Justice Bhat starts off with the point of dissent—whether the exclusion of SCs, STs, and the backward classes is constitutionally permissible. The Union did not disagree over whether the Amendment was exclusionary. Instead, the contention was that it did not “damage or destroy” an element of the basic structure—in this case, the Equality Code.

Bhat J begins by analysing the Equality Code (which he takes to include articles 14 to 17 of the Constitution). He sees the Code as something beyond a set of abstract platitudes; instead, it is an explicit non-discriminatory injunction against the state, which can be directly invoked against discrimination prevalent in society. The judgement locates this Code in the context of a country that is still highly stratified along caste lines and that continues to deny opportunity to individuals solely based on the caste into which they were born. The Constitution’s framers explicitly sought to combat the exclusion this system engendered, and this formed the basis of the Equality Code.

This was the outcome, Anupama Rao tells us, of a long period of organizing, first forged in the complex negotiation between colonial modernity and anti-caste activism towards the end of the nineteenth century. BR Ambedkar was able to take advantage of this and establish dalits as a class of people especially deserving of state protection, leading to the non-discrimination charter inscribed in the Constitution that specifically proscribes caste discrimination. This, moreover, was a positive duty, not merely a negative injunction. The Constitution’s drafters, Bhat J observes:

… went to great lengths to carefully articulate provisions, such that all forms of discrimination were eliminated … to ensure that there was no scope for discrimination of the kind that the society had caused in its most virulent form in the past, before the dawn of the republic. These, together with the affirmative action provisions … was to guarantee that not only facial discrimination was outlawed but also that the existing inequalities were ultimately eliminated [sic]. (emphasis author’s) (para 60)

The Constitution thus understood equality in terms of non-discrimination and non-exclusion. This is, of course, nothing new. Perhaps the most emphatic statement on this came in 2009, when the Delhi High Court read down section 377, which criminalized consensual homosexual intercourse. The HC, Gautam Bhatia observes, merged the Constitution’s guarantees of equal protection and non-discrimination, reordering our understanding of equality into one framed in the language of non-discrimination.

If this was all Justice Bhat did, it would be far from novel and fall far short of what it had set out to do. The next phase Bhat J embarks on—necessary to evaluate a constitutional amendment—is to read this vision of equality into the basic structure. Since this was the first time the State exercised its constituent amending power to ‘practice exclusion of victims of social injustice’, it presented an opportunity for the Court to hitch the principle of non-discrimination to equality. As Justice Bhat reasons:

[T]he irresistible conclusion is that non-discrimination—especially the importance of the injunction not to exclude or discriminate against SC/ST communities [by reason of the express provision in Articles 17 and 15] constitutes the essence of equality: that principle is the core value that transcends the provisions themselves; this can be said to be part of the basic structure. (para 77) (emphasis author’s)

What Justice Bhat is doing here is rearticulating the basic feature of equality in the grammar of non-discrimination. This—by its very nature—sets out a different vision of our constitutional identity, one in line with the framers’ intentions. By placing the principle of non-discrimination on the highest pedestal, Bhat J is essentially arguing that it lies at the very heart of the Constitution; not even Parliament can abrogate that.

Importing article 14’s test into basic-structure analysis

After ensconcing this imagination of equality into the basic structure, Justice Bhat makes, in my view, the misstep of importing the ‘reasonable classification’ test—a relic of an older, more formalist equality jurisprudence. The main issue here, however, is the Court’s confusion of basic-structure analysis with statutory analysis.

The Court has, in the past, engaged in testing the reasonable classification underlying an amendment. In Indira Gandhi v Raj Narain, for example, Chandrachud J (as he then was) analysed the constitutionality of the 39^th Amendment—which Mrs Gandhi’s government introduced to shield her legally contested election from judicial scrutiny—through the prism of reasonable classification. In so doing, he reduced the feature of equality, which he recognized as part of the basic structure, to article 14 and, logically, extended article 14’s test to the basic structure.

This, as Sudhir Krishnaswamy argues, is a flawed approach. The basic structure of the Constitution is not reducible to individual articles; as Mathew J’s opinion in the same case highlights, basic features must be woven out of a broad range of articles. The Kesavananda case clearly did not locate the basic features it identified—constitutional supremacy, secularism, and so on—in individual articles; indeed, they could not be. The abstraction of the basic structure in the language of principle—as its critics would agree—is the point.

Bhat J’s choice to do so here is, with respect, all the more baffling when he acknowledges that the reasonable classification doctrine is not part of the basic structure (para 78). While his analysis eventually yields the result that the Amendment violates the test, this mode of enquiry is constitutionally suspect, at the very least, in examining an amendment. Instead, his enquiry should have only been whether the amendment ‘damages or destroys’ the basic structure—which, we will see, he eventually leads to.

Resolving the individual–community dialectic

The opinion then moves on to the subject of the Constitution’s affirmative action provisions—the individual or the community. Bhat J makes a two-pronged argument here: reservation policies are made on the basis of community (i.e., caste groups) but for the benefit of the individual. The application of this understanding of compensatory discrimination runs against the logic underlying the EWS reservations.

First, the EWS reservations use economic criteria—namely, family income—as the proxy for ‘economic disadvantage’. The petitioners contended, and Justice Bhat agreed, that poverty is an individual disadvantage, in the sense that it is not reducible to ascriptive identity—for example, caste—even though it is the result of structural features in the economy. As he avers:

[The] goal of empowerment through ‘representation’, is not applicable in the case of reservations on the basis of economic criteria—which as the petitioners laboriously contended, is transient, temporary, and rather than a discernible ‘group’, is an individualistic characteristic [sic] (para 97).

This is juxtaposed with caste, which, as Bhat J earlier recognized, is a group disadvantage. The inequalities the Constitution sought to extirpate were inequalities generated by caste structures that limit the potential of an individual based on an accident of birth. Caste—Ambedkar famously defined it as an ‘enclosed class’—cannot be transient or temporary. Poverty’s transience, therefore, is important when we remember that reservations are primarily a tool for securing representation in institutions to groups historically denied this right.

Secondly, however, Justice Bhat emphasizes that the right (to equality, non-discrimination, and so on) is conferred on—and for the benefit of—the individual. A Scheduled Caste woman, therefore, who meets the criteria under the newly inserted clauses would be individually discriminated against through the exclusion principle at work here—solely because she belongs to a Scheduled Caste.

Exclusion as violative of the basic structure

Bhat J then segues into what should have been the mode of enquiry under his basic-structure review: whether the amendment reaches the level of ‘offending or damaging the very identity of the Constitution’ (para 99). A constitutional amendment is unlike ordinary legislation; once made, it is part of the Constitution itself. Therefore, it merits a higher standard of review—the ‘destroy or damage’ test Kesavananda originally laid out—that must view the impugned amendment against the backdrop of the identity of the Constitution.

Importantly, Justice Bhat finds that this high threshold is met. The exclusion of groups the Constitution markedly set out to protect damages the Equality Code of the Constitution. As he sums up:

The exclusion of those sections of society, for whose benefit non-discriminatory provisions were designed, is an indefensible violation of the non-discrimination principle, a facet that is entwined in the Equality Code, and thus reaches to the level of offending or damaging the very identity of the Constitution (para 99).

He goes on to rebuke the Union’s disingenuous framing of SCs/STs/backward classes as people already benefitting from affirmative action policies—and therefore undeserving of consideration in the EWS category. These groups are beneficiaries of compensatory discrimination meant to remedy centuries of marginalization at the hands of an order which deemed them less than equal. The exclusion inherent in ‘other than’, in the newly inserted clause, ‘strikes at the heart of the Equality Code.’

What next?

The Court has continued its trend of according deference to the Union when it comes to reservation policies. Many of the majority opinions contain disturbing obiter that run counter to the idea of equality the Constitution envisions; the dilution of reservations meant to rectify centuries-long discrimination seems the logical culmination. Bhat J’s dissent—in striking opposition—articulates a transformative vision of our constitutional identity, one that is anchored to a history of striving to ensure oppressive structures are relics of the past. But for now, its wisdom will be left to another set of lawyers and activists to reclaim.

The Kenyan Supreme Court’s BBI Judgment – I: On Constitutional Amendments and the Basic Structure

On 5th April 2022, a seven-judge bench of the Kenyan Supreme Court delivered judgment in The Hon. Attorney General and Ors v David Ndii and Ors [“the BBI Appeal”]. The judgment marked the judicial culmination of the constitutional challenge to the BBI Bill, which had proposed seventy-four amendments to the 2010 Constitution of Kenya. Recall that the case came up in appeal from the judgments of – first – the High Court of Kenya, and then the Kenyan Court of Appeal, both of which had found the Bill unconstitutional for a variety of reasons. The Supreme Court, thus, was the third Court to hear and decide the issue; and over a period of one year, as many as nineteen judges heard and decided this case. The Supreme Court framed seven issues for judgment, which can be found in Martha Koome CJ’s lead judgment (paragraph 35), and the seven judges wrote individual opinions.

In the course of three blog posts, I propose to analyse the judgments in the following manner. In this first post, I will consider the issue of the basic structure. In the second post, I will consider the issue of the popular initiative to amend the Kenyan Constitution under Article 257, and some of the remaining points in the judgment(s). In the final post, I will examine some of the potential implications of the judgment(s), going forward (for example, on the issue of whether referendum questions for constitutional amendment must be distinct and separate). It is safe to say that, as with the judgments of the two other superior courts, the range and novelty of the issues before the Court mean that its verdict will be studied across the world for a long time to come.

On the Basic Structure: Introduction

Recall that the High Court (5-0) and the Court of Appeal (6-1) had both held that the basic structure doctrine was applicable in Kenya. In addition, both Courts (5-0 and 4-3) had also held that in concrete terms, this meant that any alteration to the basic structure of the Kenyan Constitution could take place only through an exercise of the People’s primary constituent power, which existed outside of the Constitution. The primary constituent power was essentially the power to make or remake a Constitution, and would therefore could only be done under the framework within which the 2010 Constitution had originally been drafted. This – according to both Courts – required a four-step sequential process: civic education, public participation, a Constituent Assembly, and a referendum. The correctness of these findings was at issue before the Supreme Court.

The formal disposition of the Court indicates that on this point, the judgments of the High Court and Court of Appeal were set aside by a 6-1 majority (Ibrahim J the sole dissent); that is, the Supreme Court rejected the applicability of the basic structure doctrine and of the four-step sequential process in Kenya, by a 6-1 majority. I believe, however, that a close reading of the seven opinions reveals a somewhat more complex picture, which I will now attempt to demonstrate.

Hyper-Amendments and Tiered Constitutional Amendment Processes

In addressing the question of the basic structure, several judgments of the Supreme Court begin at a common starting point: what was the specific historical mischief that the Kenyan Constitution’s amendment procedures (set out under Chapter XVI) were attempting to address? The answer: a culture of “hyper-amendments” to Kenya’s Independence Constitution. In the years after Independence, the old Constitution was often seen as an impediment by the Presidency, and as a result, a series of far-reaching amendments were passed that more or less entirely devalued its status as a founding charter (and invariably concentrated power in the office of the Presidency, at the cost of other State organs and the People (Ouko J, paragraph 1918, quoting Ghai/McAuslan). Upon Kenya’s return to multi-party democracy in the 1990s, and the eventual constitutional reform process, this culture of hyper-amendments was prominently in the minds of the People and of the drafters (see Koome CJ, paragraph 189 – 191; Mwilu DCJ, paragraph 521; Lenaola J, paragraphs 1415 – 1417; Oukuo J, paragraph 1802).

Up to this point, the opinions of the Supreme Court are in agreement with those of the High Court and the Court of Appeal. Drawing upon the historical record, the Supreme Court opinions then go on to argue that the Kenyan People therefore devised a solution to the problem of hyper-amendments, and constitutionalised it; in other words, the hyper-amendments were to be addressed by a solution internal to the 2010 Kenyan Constitution. This solution is to be found in Chapter XVI of the Constitution, and – in particular – in the tiered amendment process that it sets up. Article 255(1) of the Constitution “entrenches” certain provisions of the document. For these “entrenched” provisions, the amendment procedure is far more onerous than for un-entrenched provisions, requiring a referendum with certain conditions (Article 255(2)), in addition to (or complementing) the Parliamentary amendment route (under Article 256) or the popular initiative route (in Article 257). This tiered amendment process, according to the judges, thus creates a balance between constitutional flexibility and constitutional rigidity, and also “tames” the mischief of hyper-amendments (see Koome CJ, paragraphs 192 – 197; Ndungu J, paragraphs 1161 – 1162; Lenaola J, paragraph 1418; Ouko J, paragraph 1803).

Two conclusions follow from this, according to the Supreme Court. The first is that this history – and structure – of the 2010 Kenyan Constitution therefore distinguishes it from jurisdictions such as India (where the basic structure doctrine first gained judicial acceptance). In India, where Parliament possesses the plenary power to amend the Constitution, the basic structure doctrine arises as a judicial response in order to protect the Constitution from parliamentary abuse. However, what in India requires the basic structure doctrine, is already provided for in Kenya through the tiered amendment process; in other words, the tiered amendment process does the job that the basic structure doctrine is supposed to do (Koome CJ, paragraphs 217; Mwilu J, 401-402; Lenaola J, paragraphs 1439 – 1442, 1451 – 1453; Ouko J, paragraphs 1763 – 1781, 1811). And secondly, the tiered amendment process – and its history – demonstrates that the People – in their capacity as framers of the Constitution – intended to make the amendment process gapless. The three pathways provided for under Articles 255 – 257 are exhaustive, and for this reason, the High Court and the Court of Appeal were incorrect to introduce a “judicially-created fourth pathway” to amendment (Koome CJ, paragraph 200). Koome CJ also frames this another way, noting that the High Court and the Courts of Appeal failed to demonstrate what the lacuna was in Chapter XVI that necessitated the judicial creation of the four-step process (Koome CJ, paragraphs 200; Mwilu J, 406).

This snapshot, I believe, is an accurate summary of the reasoning of a majority of the judges in this case. To my mind, however, it also raises two interlinked issues, which – when scrutinised closely – somewhat complicate the final holding of the Court.

Amendment, Repeal, and the Basic Structure

It is, of course, entirely correct to say that the plenary power of parliament to amend the Constitution (as in India) is significantly distinct from the tiered amendment process under Articles 255 – 257; and, further, that this distinction is relevant when considering the question of the basic structure. However, it is equally important not to overstate the sequitur: it does follow from this – as I have argued previously – that the version of the basic structure doctrine as developed in India (i.e., a judicial veto over amendments) cannot be transplanted into the Kenyan context. However, this was not what the High Court and Court of Appeal did. Precisely because of the tiered structure of amendments under the Kenyan Constitution, the High Court and the Court of Appeal articulated a much more reduced role for judicial review: not a substantive veto over amendments (thus making every provision potentially amendable), but a procedural role to ensure that alterations to the basic structure could be done only through the primary constituent power.

Secondly – and connectedly – this flows from a conceptual point that is left unaddressed by the summary of the Supreme Court’s argument that I have provided above: the distinction between amendment and repeal (express or implied). The tiered amendment process, the onerous requirements under Article 257 to prevent hyper-amendments, and the balance between flexibility and rigidity ensure that as a practical matter, in most circumstances, the basic structure doctrine will not need to be invoked, because the Constitution’s internal mechanisms are far more effective for dealing with potential constitutional destruction (as opposed to, say, the Indian Constitution). The fact that the basic structure doctrine will almost never need to be imposed does not, however, address the point that it exists because of the conceptual distinction between amendment and repeal, and the fact that the Constitution – as conceded by Ouko J – “does not provide for its own replacement” (paragraph 1847).

Now, how do the judges of the Supreme Court deal with this point? Let us first consider the judgments of Ibrahim J (formally in dissent) and Dr Smokin Wanjala J (formally in the majority). Ibrahim J’s judgment is straightforward: he agrees with the High Court and the Court of Appeal on the distinction between amend and repeal, the primary constituent power, and the four-step sequential process (see, in particular, paragraphs 724 – 725). Let us now come to Smokin Wanjala J, because this is where things start to get interesting. Wanjala J objects to the abstract nature of the enquiry that has been framed before – and addressed by – the superior courts below (paragraph 1000). He notes:

Speaking for myself from where I sit as a Judge, and deprived of the romanticism of academic theorizing, it is my view that what has been articulated as “the basic structure doctrine”, is no doctrine, but a  notion, a reasoning, a school of thought, or at best, a heuristic device, to which a court of law may turn, within the framework of Article 259(1) of the Constitution, in determining whether, a proposed constitutional amendment, has the potential to destabilize, distort, or even destroy the constitutional equilibrium. (emphasis supplied)

But when you think about it, this is – essentially – the basic structure “doctrine” (or the “basic structure heuristic device” if you want to call it that), without being explicitly named as such: it is an interpretive method whose purpose is to prevent amendments that “destabilise, distort, or destroy the constitutional equilibrium.” Importantly, both here – and in his disposition – Wanjala J explicitly considers Article 259(1), which requires the Constitution to be interpreted in a manner that promotes its values and principles – as a substantive limitation upon constitutional amendments, in addition to the requirements of Chapter XVI. This is particularly clear from paragraph 1026:

In this regard, I am in agreement with the observations by Okwengu and Gatembu, JJ.A to the effect that a proposed amendment must pass both the procedural and substantive test. Where I part ways with my two colleagues is at the point at which they base their substantive test not on the constitutional equilibrium in Article 259, but on a basic structure (Gatembu, J.A–Article 255(1) and Okwengu, J.A–the Preamble). By the same token, I do not agree with the submission by the Attorney General to the effect that any and every proposed constitutional amendment would be valid as long as it goes through the procedural requirements stipulated in Articles 255, 256 and 257 of the Constitution. Courts of law cannot shut their eyes to a proposed constitutional amendment, if its content has the potential of subverting the Constitution. (emphasis supplied)

Now, with great respect, one may choose not to call something “the basic structure doctrine”, but the statement that a Court of law can subject constitutional amendments to judicial review on the question of whether its “content has the potential of subverting the Constitution”, one is doing what is generally understood to be basic structure review. It might be the case that its long association with the specific form taken in India has turned the basic structure doctrine into a bit of a poisoned chalice: in that case, there should of course be no problem in dropping the term, and simply stating that “constitutional amendments that subvert the Constitution are subject to judicial review.” And in his disposition at paragraph 1122, Wanjala J agrees that while the four-step sequential process will not apply to constitutional amendments, it would nonetheless apply to “seismic constitutional moments” when the People are exercising their primary constituent power.

We therefore already have a more complicated situation than what the final disposition of the Court suggests. That disposition suggests that a 6-1 majority rejected the basic structure doctrine. That is true, because Wanjala J does not believe that the basic structure doctrine is a “doctrine”. But we already have two judges who accept the distinction between constitutional amendments and constitutional repeal (or subversion), and accept that in the latter case, the primary constituent power (with its four-step process) will apply.

I now want to consider the opinions of Lenaola J and Ouko J. To their credit, both judges recognise – and address – the issue of constitutional amendment versus constitutional repeal. In paragraph 1464, Lenaola J states:

My point of departure with my learned colleagues is that the process presently in dispute was squarely anchored on Article 257 as read with Articles 255 and 256. I shall return to the question whether the Amendment Bill was in fact a complete overhaul of the present constitutional order or whether it was an amendment as envisaged by these Articles. Suffice it to say that, should the Kenyan people, in their sovereign will choose to do away with the Constitution 2010 and create another, then the sequential steps above are mandatory and our constitutional history will be the reference point (emphasis supplied).

Thus, in paragraph 1464, Lenaola J explicitly recognises the distinction between “a complete overhaul” and “amendment”, and also recognises that the 255 – 257 procedure only deals with the latter category. Indeed, his primary point is that the BBI Bill was not, as a matter of fact, a “complete overhaul”: in paragraph 1472, he asks “why would dismemberment take centre stage when the issue before the courts below was amendment?” And most definitively, in paragraph 1473, he quotes Richard Albert’s distinction between “amendment” and “dismemberment”, with approval (paragraphs 1474 – 1475); indeed, in the paragraph he quotes, Albert specifically notes that “a dismemberment is incompatible with the existing framework of the Constitution because it seeks to achieve a conflicting purpose” – lines very similar to Wanjala J’s articulation of constitutional “subversion.” There is, admittedly, something of an internal tension in Lenaola J’s opinion here: he appears, for example, to suggest later on that dismemberment necessarily requires formally enacting a new Constitution (see paragraph 1485). It is crucial to note, however, that this need not be the case: a Constitution’s structure and identity (the language used by Richard Albert, which Lenaola J cites with approval) can be “overhauled” by something as technically innocuous as changing a single sentence – or even a single word – in a single constitutional provision. For example, an amendment changing a polity from a multi-party democracy to a single-party State can be accomplished through a single sentence, but it is undoubtedly a constitutional dismemberment; another historical example is the Indian Supreme Court judgment in Minerva Mills, where the Constitutional amendment at issue had essentially made the Indian Constitution’s bill of rights non-justiciable, as long as the government stated that it was carrying out a social policy goal. This had been accomplished by amending a part of a sentence in a sub-clause of one provision of the Indian Constitution.

A very similar tension is present in Ouko J’s opinion. In paragraph 1838, he notes:

Therefore, it is true to say that it is the prerogative of the people to change their system of government, but only by the people’s exercise of their constituent power and not through the amendment procedure. And that is the difference between primary and secondary constituent powers, the former is the power to build a new structure by the people themselves and the latter, the power to amend an existing constitution. Today, under Chapter Sixteen, this power is exercised by the people and their elected representatives.

Once again, we see the distinction between “amendment” and – in this case – “building a new structure” or “changing the system of government.” This comes to a head in paragraph 1846, where she notes:

It ought to be apparent from the foregoing that, I must come to the conclusion that a constituent assembly is an organ for constitution-making. An amendment of the Constitution under Chapter Sixteen does not recognize constituent assembly as one of the organs for the process. This Constitution, like the former Constitution does not contemplate its replacement.

And in paragraph 1849:

Therefore, the question to be determined here is whether the proposed amendments would lead to such egregious outcome. That they had the effect of repudiating essential elements of the Constitution—concerning its structure, identity, or core fundamental rights—and replacing them with the opposite features; a momentous constitutional change.

Once again, with respect, one may choose not to call this “basic structure review”, but what is happening here seems awfully close to “basic structure review” when courts or scholars do call it that. As with Lenaola J, Ouko J’s primary discomfort appears to be with the Courts below having labeled the BBI Bill as akin to constitutional dismemberment. In paragraph 1858, he labels this as “overkill”; the point, however, is that this admits the principle: if indeed any kind of formal “amendment” was possible under Articles 255 – 257, then the question of substantively assessing the amendments themselves wouldn’t even arise; indeed, it doesn’t arise in Ndungu J’s opinion, which is very clear on the point that there is no constitutional alteration that is outside the scope of Chapter XVI.

Thus, we now have an even more complicated picture. Two judges out of seven (Ibrahim and Wanjala JJ) accept, in substance, the proposition that the four-step process applies to radical constitutional alteration that cannot properly be called an amendment. Two other judges (Lenaola and Ouko JJ) accept the principled distinction between constitutional “dismemberment” and “amendment”; Lenaola J appears to suggest that in the former case, you would need the four-step process, as it is akin to making a new Constitution, while Ouko J accepts Professor Akech’s amicus brief on the point that the four-step process was not, historically, how the 2010 Constitution was framed; it is only an “approximation.” Thus, we now have a situation where, in the disposition, six out of seven judges have rejected the applicability of “the basic structure doctrine”, but (at least) four out of seven judges have accepted that there is a conceptual distinction between constitutional “amendment” and “dismemberment”, the latter of which is outside the scope of Chapter XVI amendment processes (with three out of those four seeing space for the four-step process, and the fourth holding that it is an “approximation” of the founding moment).

What of the opinion of Mwilu DCJ? In paragraph 407, Mwilu J notes that:

In my view, whether a Constitution is amendable or not, whether any amendment initiative amounts to an alteration or dismemberment and the procedure to be followed is a matter that would be determined on a case to case basis depending on the circumstances.

After then noting the distinction between “amendment” and “alteration” (paragraphs 418 – 419), she then notes, at paragraph 421:

The court always reserves the constitutional obligation to intervene provided that a party seeking relief proves to the court’s satisfaction that there are clear and unambiguous threats such as to the design and architecture of the Constitution. (emphasis supplied)

While this is also redolent of basic structure language, Mwilu J later goes on to note that while constitutional alteration must necessarily be an “extra-constitutional process” outside the scope of Articles 255 – 257, the exact form it might take need not replicate the manner of the constitutional founding: it may be through the “primary constituent power” or through “any of the other mechanisms necessary to overhaul the constitutional dispensation.” (paragraph 437) It is not immediately clear what these other mechanisms might be. Mwilu J’s basic point appears to be that the mechanism by way fundamental constitutional alteration takes place cannot be judicially determined, as it is basically extra-constitutional. The corollary of this surely is, though, that to the extent that these fundamental alterations are sought to be brought in through the amendment process, they are open to substantive judicial review, as Mwilu J explicitly notes that those kinds of alterations “are not subject to referendum” under Article 255. In other words, Mwilu J’s problem appears to be not with judicial review of formal constitutional amendments in order to decide whether or not they are fundamental alterations, but with what follows: i.e., the judiciary deciding that, in case it is a fundamental alteration, that it must be done through the four-step test. But the only other alternative that then reconciles all these positions is for the judiciary to invalidate radical constitutional alteration that is disguised as an amendment via the 255 – 257 route; in no other interpretation does paragraph 421, which calls for judicial intervention when the threat is to “the design and architecture of the Constitution”, make sense.

Finally, what of Koome CJ’s opinion? While Koome CJ is clearest on the point of the tiered amendment process achieving the balance between rigidity and flexibility, her judgment does not address the distinction between “amendment” and “repeal.” In paragraph 226, Koome CJ notes that any amendment to the Constitution must be carried out in conformity with the procedures set out under Chapter XVI; but that leaves the question unaddressed – what if it is alleged that the impugned amendment is not an amendment, but an implied repeal? In her summary of findings, Koome CJ notes further that the basic structure doctrine and the four step process are not applicable under the Constitution (paragraph 360); this is true, but also in substantial agreement with the case of the BBI challengers: the basic structure doctrine does not kick in as long as the formal amendment is actually an amendment, and as long as we are within the existing constitutional framework. It only applies when we are no longer under the Constitution.

Conclusion

Formally, by a majority of six to one, the Supreme Court rejected “the applicability of the basic structure doctrine” in Kenya. However, as I have attempted to show, a close reading of the seven judgments reveals a more complex picture. Consider a hypothetical future situation where a proposed amendment to the Constitution is once again challenged before the High Court, on the basis that it is not an amendment at all, but implied repeal, or repeal by stealth, or constitutional dismemberment. When the High Court looks to the Supreme Court for guidance, it will find the following:

1. A majority of six rejecting the applicability of the basic structure doctrine (from the disposition)
2. A majority of five accepting the distinction between “amendment” and “repeal” or “dismemberment”.
3. A plurality of three explicitly noting that this distinction is subject to judicial review (with two others not taking an explicit position on this).
4. A plurality of three holding that in case an “amendment” is actually a disguised “repeal”, the four-step test will apply (with an equal plurality of three against it, and one – Koome CJ – silent, as she does not draw a distinction between amendment and repeal).

In such a situation, how will the High Court proceed? That, I think, is something that time will tell.

Two final remarks. I think that a close reading of Koome CJ’s judgment came close to resolving the bind outlined above, without explicitly saying so. In paragraph 205, she notes:

The jurisprudential underpinning of this view is that in a case where the amendment process is multi-staged; involve multiple institutions; is time-consuming; engenders inclusivity and participation by the people in deliberations over the merits of the proposed amendments; and has down-stream veto by the people in the form of a referendum, there is no need for judicially-created implied limitations to amendment power through importation of the basic structure doctrine into a constitutional system before exhausting home grown mechanisms.

Koome CJ dwells at length upon the extent and depth of public participation required under Articles 256 and 257, and effectively equated the process with the four step test, sans the constituent assembly: running through her judgment is a strong endorsement of the civic education, public participation, and referendum (after adequate voter education) prongs of the test. What this suggests is that it might be open to argue that the procedures for participation under Articles 256 and 257 do not codify the primary constituent power (because that is a conceptual impossibility), but reflect it. In other words, if you are following the procedures under Articles 256 and 257 (in the sense of deep and inclusive public participation, as set out in Koome CJ’s judgment, and we will discuss some of that in the next post), you are exercising primary constituent power, and therefore, fundamental constitutional alterations are also possible as long as public participation happens in all its depth. This, I would suggest, might reconcile some of the potential internal tensions within some of the judgments, and also essentially keep the High Court and Court of Appeal’s judgments intact, just without the Constituent Assembly.

Secondly, one thing that appeared to weigh with the Court was the fact that in the twelve years since 2010, there has been no successful attempt to amend the Kenyan Constitution, and all attempts – whether under Article 256 or Article 257 – have failed. This is true; however, what is equally true is that were the BBI Bill to succeed, we would go from no amendments in twelve years to seventy-four amendments in twelve years, making the Kenyan Constitution one of the most swiftly-amended in the world. If it is true, therefore, that the purpose of the tiered amendment structure is to find a balance between flexibility and rigidity, while also ring-fencing entrenched provisions, then this has certain inescapable conclusions for the interpretation of Article 257 – including the question of single or multiple-issue referenda. This will be the subject of the next two posts.

The BBI Case at the Supreme Court of Kenya – Day 3

As with Day 2, the final day of the proceedings in the BBI Case before the Supreme Court of Kenya can be divided into three phases (watch here). In some ways, it was a microcosm of the entire hearing – and indeed, of the entire BBI case so far: in Phase One, the Respondents finished their arguments. In Phase Two, the bench put a series of questions to the Respondents. In Phase Three, the Appellants made their Rejoinder. This, then, concluded the hearing (read analysis of Day 1 and Day 2 here), and judgment was reserved.

Phase One: The Respondent’s Arguments

Carolene Kituku advanced detailed submissions on the IEBC/Quorum issue, arguing – in particular – that when a judgment struck down a legal provision as unconstitutional, the default position was that the provisions so struck down were deemed to have been always unconstitutional, right from the moment of their enactment (and not from the date of the judgment). Now if these amended provisions were void ab initio and never came into force, it would follow that the original, pre-amended provisions were never actually replaced, and continued to hold the field in the interim period. Thus, when in the Katiba Insitute case it was held that amended paragraphs 5 and 7 of the Schedule to the IEBC Act were unconstitutional, it would follow that the pre-amended provisions for quorum – which the IEBC was in breach of – would continue to apply during the intervening period – and indeed – as Elisha Ongoya argued later in the day – would be applicable until either the declaration of unconstitutionality was set aside, or another, legally valid amendment, was enacted. Carolene Kituku also advanced submissions on why the popular initiative process failed to pass the threshold of public participation (insufficient time, the draft bill only on the internet, PDFs, and so on).

In his submissions, Elisha Ongoya pointed out that at this stage, the BBI case had received close attention from a dozen judges combined (five at the High Court and seven at the Court of Appeal), and their concurrent findings should, therefore, be treated with a modicum of deference; in particular, and in any event, factual findings (such as insufficient public participation) should not be disturbed. Following up on this argument, Elisha Ongoya argued that the High Court’s determination of the basic structure doctrine – and the four-step-sequential process – was rooted in a detailed analysis of the text, structure, and history of the 2010 Kenyan Constitution. Ongoya argued that the onus was on the Appellants to demonstrate, specifically, which of these considerations was wrong or irrelevant; however, they had not done so, choosing instead to attack the High Court in general terms, for having converted itself into a philosophical tribunal. In particular, on Article 89 (delimitation of constituencies), the High Court produced six specific reasons, none of which had been disturbed by the Appellants. Moving through the abstract and the particular (as he had in the Court of Appeal), he illustrated the very specific political and historical concerns around constituency delimitation that had necessitated the High Court to evolve the basic structure doctrine. He was followed up on this by Evans Ogada, who argued that by prescribing a procedure and a time limit for the IEBC to carve out these new constituencies, the BBI Bill fatally compromised the independence of this fourth-branch institution. The line-up on the Respondents’ side was finally completed by Dr. John Khaminwa, who summed up the arguments in favour of the basic structure doctrine.

Phase Two: The Judges’ Questions

In my opinion, the brief half an hour around midday today was perhaps the most important part of the hearing; having heard the judges’ questions to the Appellants the day before, their questions to the Respondents perhaps indicated in the clearest manner what their concerns were, and what the issues were upon which the decision would finally turn.

On the basic structure, Ouku J asked whether the High Court and Court of Appeal had provided sufficient guidance to the citizens of Kenya for determining what the basic structure was; and further, was the four-step-sequential-process to be found within the Constitution, or coming from outside. Smokin Wanjala J asked about the distinction between “amendment” and “alteration”: what meaning was to be given to the “disappearance” of the word “alteration” from the constitution-making process, and how might that word be revived, constitutionally. He also asked about the where the juridical form of the constituent power was located. Koome CJ wondered if Kesavananda Bharati had attained the standard of a municipal decision that could be taken to lay down “a general principle of international law” – and whether, indeed, it had informed the framing of Kenya’s own Constitution, in particular Articles 255 – 257. Sticking with the theme, Lenaola J asked where in Kesavananda Bharati was it said that the Indian Constitution has any “eternity clauses”. He then asked what – in my view – was the most important question of the hearing (I will examine the reasons for this below): given that Article 255(1) specified which entrenched matters had to go to a referendum for amendment Article 257(1), what were those matters outside Article 255(1) that might need to go to the primary constituent power for amendment?

On the IEBC and quorum, Ouku J asked what would happen to those acts that the IEBC had done while it was improperly constituted. Njoki J asked if the quorum requirements could be read into the Constitution – and if not, why did the Constitution provide a “minimum” and a “maximum” number for the composition of commissions. Smokin Wanjala J wanted to know what would happen if Parliament made a law for a three-member commission, and fixed quorum on that basis. Similarly, Lenaola J asked what the meaning was of Article 250(1) setting the minimum number at three (as no constitutional provision ought to be considered superfluous), and what – if any – acts the Commission could undertake with three members.

On public participation, Njoki J asked what specific steps the IEBC could have taken to reach ordinary Kenyans. And Koome CJ expressed a concern similar to the one she had expressed during Appellants’ arguments: was there something in the Constitution that could be used to determine the standards for public participation, even in the absence of express statutory framework?

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Discursion: Thinking through Lenaola J’s Question

Before continuing with this post, I want to briefly think through Lenaola J’s question, as I believe it is fundamental to the case. The point is basically this: as the Appellants argued repeatedly, the Kenyan Constitution has a two-track process for amendment. The regular Parliamentary route on the one hand (Article 256), and then, for the ten entrenched subjects under Article 255(1), the public participation + referendum route under Article 257. Appellants argued that this two-track process was doing the same work that the basic structure doctrine was otherwise meant to do: it was identifying the basic features of the Kenyan Constitution, and then prescribing a more onerous, people-involved way of amending them, which approximated the primary constituent power.

This being the case, the obvious challenge for the basic structure doctrine is this: if you say that the basic structure of the Kenyan Constitution is the ten subjects under Article 255(1) (the supremacy of the Constitution, the territory of Kenya, the sovereignty of the People etc), then an immediate problem arises – given that there is a specific and express way to amend these subjects (Article 257), how then can the four-step process be simply superimposed upon this scheme? If, on the other hand, you say that the basic structure of the Kenyan Constitution is not in these ten subjects, then a whole host of other problems arise. What, for example, is even more fundamental or basic than sovereignty, or the bill of rights, or constitutional supremacy, that would need an even higher threshold of amendment than what is set out in Article 257? And how would you identify what those even more fundamental themes are?

So how does one answer Lenaola J’s question? I think there are two sequential (sorry!) responses. The first is to accept that the basic structure is (largely) located within Article 255(1) of the Kenyan Constitution (as the Court of Appeal, in fact, did) and not outside of it. However, here is the key: not every amendment to an Article 255(1) subject will trigger the basic structure doctrine and the four-step-sequential process. It is important to note here that the OG basic structure case – Kesavananda Bharati – never actually said that you cannot amend the basic structure. What it said – and this is crucial – is that you cannot damage or destroy the basic structure. And the distinction is significant: for example, amendments to Article 16 of the Indian Constitution setting out the modalities for affirmative action have passed the judicial scrutiny, even though they “amend” the Constitution’s equality code, which is unambiguously part of the basic structure.

So, even with respect to the subjects set out under Article 255(1), not every amendment will necessarily trigger basic structure scrutiny. Consider, for example, 255(1)(e) – the Bill of Rights. Article 24 of the Kenyan Constitution sets out the conditions for limiting a particular fundamental right. It follows familiar language – the nature of the right, the purpose of the limitation etc. Now, suppose you wanted to amend Article 24 and make the language clearer – for example, incorporate into the Article, in express terms, the global proportionality standard that is now followed in many jurisdictions across the world. This would be an amendment to an Article 255(1) subject, and therefore trigger Article 257. However, it would not be damaging or destroying the basic structure in a manner that would trigger the primary constituent power, and the four-step-sequential process. Indeed, you can think of many ways in which the subjects set out under Article 255(1) could be amended (i.e., making language more precise, modifications to standards, adding standards etc) that would not trigger what we generally think of as basic structure scrutiny. On the other hand, if you were to repeal Article 24 altogether, and replace it with a provision such as: “All rights in this Part may be limited whenever the government deems fit in the public interest” – now that would be a basic structure violation that would go beyond Article 257 and trigger the four-step-sequential-process.

This point is crucial, because it really does go to the heart of the case – the difference between amendment and repeal – and why the existence of the two-track process (as the Appellants argued) does not preclude the operation of the basic structure doctrine. This is because at the end of the day, the two-track process is concerned with amendment – whether of non-entrenched provisions (Article 256 route) or entrenched provisions (Article 255(1) + 257 route). The two-track process does not contemplate wholesale repeal of the Constitution (express or implied). It is for those situations that the primary constituent power and the four-step-sequential process is needed. Thus, there is nothing absurd about saying that one does’t need to go looking for the basic structure outside of Article 255(1): the same sub-clauses under Article 255(1) might trigger either Article 257 or the four-step-sequential-process, depending upon the nature of the change in the Constitution sought to be effected, and whether it genuinely amounts to an amendment, or whether it is repeal. In other words, the key is not Article 255(1), but the nature of the change.

My second, brief point is that at the same time, one might hesitate to definitively say that Article 255(1) necessarily exhausts the basic structure. Arguments were made before the HC and the CoA, for example, showing how the questions of boundary delimitation – given Kenya’s context and history – needed to be considered as basic structure questions (arguable this would come within sub-clause (g), but bracketing that for the moment). One can also think of a case such as Indira Nehru Gandhi v Raj Narain, for example, where a constitutional amendment that simply precluded a challenge to the Prime Minister’s election was invalidated by the Court. Again, this would arguably fall within 255(1)(d) (the rule of law) and (g) (independent of the judiciary), but it is possible to differ on that. In any event, I do not think too much turns on this point: I think it is also perfectly reasonable to finally and conclusively say as follows:

… the basic structure – as the Appellants correctly argue – is found in Article 255(1). But not every amendment to Article 255(1) triggers the application of the basic structure doctrine, the primary constituent power, and the four-step-sequential-process. For the primary constituent power to be triggered, the amendment must be of such nature, extent, and consequence, that it amounts to an implied repeal of the Constitution or its basic structure. Thus, if you were to make a venn diagram, there would be a larger circle of amendments to Article 255(1) subjects, and a smaller circle – contained within it – of amendments that triggered the basic structure doctrine.

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With respect to the judge’s questions, Nelson Havi argued that both the HC and the CoA had correctly stated that to identify the basic structure, you would have to look at the context and history of each provision. For example, in order to understand why the independence of the judiciary was part of the basic structure, you would have to look at how the colonial judiciary was a department of the executive, and how and why it migrated from the State department to independent status. On the four-step-process, Havi argued that it was not found within the Constitution, but a means of preventing constitutional death: it was found in the process that made the 2010 Constitution. Indeed, it had to be outside the Constitution because the primary constituent power was, by definition, primordial. On the distinction between “alter” and “amend”, Havi submitted that the reason for the change was precisely the flaws that had been discovered with the Independence Constitution providing for the means of its own “alteration”.

Esther Ang’awa then argued that quorum could not be read into the Constitution, as the Commission had to operate on the basis of both the Constitution and legislation (the two engines). This argument was supplemented by other counsel, who pointed out that “composition” was just for membership, whereas quorum was to transact business – thus, the two concepts remained fundamentally distinct.

On public participation, Carolene Kituku provided various ways in which it could have been secured (e.g., use of other media of communication, such as radio). She also made an interesting burden of proof argument. Flipping the question around – i.e., what evidence was there that public participation was insufficient – she asked, instead, that what evidence had been produced by State organs to show that public participation had taken place. I believe that this question is correctly framed: because if public participation is a guaranteed right under the Kenyan Constitution, and if it is easier for the State to prove the affirmative (i.e., that public participation had been carried out), then to me it seems to follow that the initial evidentiary burden lies upon the State: until the State has produced satisfactory evidence that the public participation requirement has been fulfilled, the presumption ought to be that it has not (this flows from the fact that the it is a right).

Finally, Topua Lesinko made the point that the judgments of the HC and the CoA were different in crucial respects from Kesavananda: to continue with the running theme of the proceedings, while in Kesavananda the Court permanently shut out certain amendments from being made altogether, the HC and CoA surrendered them to the primary constituent power without shutting them out. In my view, another way of putting it would be that Kesavananda puts substantive limits on constitutional amendments based on their content, while the HC and the CoA placed procedural limits based on deepening public participation, so that the People could adequately determine when the content could be allowed to go through and when not.

Third Phase

The last segment of the hearing saw the rejoinder by the Appellants. I will focus here on the basic structure doctrine, as the rest of the arguments were addressed, but only briefly, and with arguments similar to those that have already been discussed previously.

On the subject of the basic structure, in closing, the Attorney-General’s legal team laid out the core of their case: that the the basic structure constituted the foundational provisions of the Constitution. These were entrenched, and were to be found in Article 255(1). At the same time, the basic structure doctrine was an extra-constitutional doctrine that substantively limited the power of amendment. Thus, the Kenyan Constitution had a basic structure, but did not contemplate the basic structure doctrine. The Kenyan Constitution’s basic structure was protected not by the basic structure doctrine, but by the onerous amendment provisions under Articles 255 and 257.

The reason why the basic structure was located in Article 255(1) was to be found in the history of the constitution-making process. The People’s concern during the framing – as captured in the CKRC report – was how quickly and how fundamentally the Independence Constitution was amended. The CKRC then identified the People’s solution: a distinction between entrenched and non-entrenched provisions, with a stringent procedure being put into place for the amendment of the latter. This would safeguard the core of the Constitution. And that core was what was provided under Article 255(1).

The AG’s team argued that the basic structure doctrine was being deployed to obstruct the sovereign (i.e., the People’s) right to amend the Constitution under Article 257. In this context, there was no real difference between “amendment” and “alteration.” The contextual meaning of the word “amend” simply flowed from the ability of the sovereign to make or unmake anything, and that was the manner in which it was used in Chapter XVI of the Kenyan Constitution.

George Oraro SC then took up the baton. Speaking about the four sequential steps, he argued that what the HC and CoA judges were trying to do was to revert to the original ratification procedure as a basis for legitimising the basic structure doctrine. But – according to Oraro SC, as I understood him – this, ultimately, was a futile endeavour: the power of making a Constitution was primordial and belonged to the People. By definition, it could not be regulated by a Court. The People had the right of reserving to themselves how they would use this power (e.g., Article 1(1)) – but even that could not stop them from coming up with a new method of creating of recreating a Constitution.

However, for now, the People had set out the route that they wanted to take, and that route was through Articles 255 and 257. The role of the Court, thus, was to ensure that those strict provisions for exercising the primary constituent power were very strictly followed: for example, sufficient participation, sufficient consultation. In essence, the role of the Court was to ensure that the right of the People to exercise their primary constituent power was protected. Oraro SC closed by stating that ultimately, it was the citizens – who were registered voters – who were holders of the primary constituent power, and it was this primary power that had been textualised under Article 257. This – thus – precluded the application of the basic structure doctrine.

As a closing remark of my own, I believe that this is as clear a statement of the case as it is possible to make. However, I am not entirely convinced that it responds to the core point: namely, that while the People indeed chose to constitutionalise the amendment to entrenched provisions under Article 257, that does not necessarily imply that said power carried with it the power of repeal or abrogation. Oraro SC’s argument assumes a conflation of that distinction, but in my respectful view, does not demonstrate it. It does not respond (in my view) to the independent arguments making that distinction, and showing why the primary constituent power is different from the power of amendment, and why – therefore – it must lie outside the Constitution.

Conclusion

The three days’ hearing before the Supreme Court saw arguments touch upon a wide range of issues crucial to both Kenyan constitutional law, and to comparative constitutional law in general. What is at stake (in my view) is one of the most unique contributions to global jurisprudence in recent times: a basic structure doctrine that is not substantive but procedural, that does not impose a judicial veto but seeks a deeper form of public participation to amend the Constitution, and which provides to direct deliberative democracy an integral role in processes of significant constitutional change. We will now wait to see the final fate of this case.

As Solicitor-General Kennedy Ogeto said at the very end of the hearing, the judgment of the Court would be with Kenya for posterity. To that I will only add: it is also the kind of judgment that will echo in the annals of global constitutional law and thought, for generations to come.

The BBI Case at the Supreme Court of Kenya – Day 2

Day 2 of the BBI hearing (read analysis of Day 1 here) at the Kenyan Supreme Court (watch here) can be divided into three phrases. In the first phase, counsel supporting the appellants (i.e., broadly, the pro-BBI side) finished their submissions. In the second phase, the bench posed a series of questions to the pro-BBI side. In the third phase, the anti-BBI side (or, the Respondents) commenced its submissions. This typology is slightly reductive: for example, Mr. Isaac Aluochier, who argued in the first session, was against the basic structure doctrine, but was also against the BBI (for other reasons). Mr. Morara Omoke, who argued in the third session, was technically an appellant, as he had filed a cross-appeal on the question of single and multiple referendum questions. However, in the interests of sanity, this typology will have to do for the purposes of this post.

First Phase

The President’s legal team opened Day 2. SC Waveru Gatonye addressed the Court on the issue of Presidential immunity. Like his predecessors the day before, he focused on how the Kenyan Constitution contains inbuilt accountability mechanisms that are consistent with wide-ranging Presidential immunity from civil proceedings during the term of office. For example, wronged parties could sue the Attorney-General, and impeachment proceedings could always be launched. A bar upon suing the President during their term of office, therefore (for things done in the operation of their office) would not lead to impunity. Continuing on the theme of Presidential powers, SC Kimani Kiragu then argued on Presidential involvement in the Popular Initiative under Article 257: he argued that the sovereign People of Kenya had delegated a part of their authority to H.E. the President. Once that had been done, there could be no half-measures: the President must be deemed to possess all sovereign powers that had been delegated – including the power to initiate constitutional reform – unless there was an express limitation in the Constitution. In the context of Article 257, there was no such limitation. Readers will take careful note of this argument; as we shall see, it will become particularly important when contrasted with the Respondents’ submissions on this point.

Mr. Isaac Aluochier took the podium, to argue against both the basic structure doctrine and Presidential immunity. I want to flag one particular argument, as it was made before the Court of Appeal as well: that the basic structure doctrine is precluded by Article 1 of the 2010 Constitution of Kenya, which states that “all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.” Mr. Aluochier argued that Article 1 is express authority for the proposition that there can be no “extra-constitutional defence mechanism” for the Constitution, such as the basic structure doctrine. However, as I have tried to show before, this argument proves too much: at all times, the phrase “this Constitution” presumes the existence of the Constitution under advisement, that is, the 2010 Constitution. However, the whole point of the basic structure doctrine is to prevent or regulate amendments that are of such a nature that “this Constitution” will no longer be “this Constitution”, as its fundamental identity has been altered. Thus, if the basic structure doctrine is otherwise correct, Article 1 does not refute it: when you say that sovereign power will be exercised in accordance with this Constitution, it already excludes situations where this Constitution is no longer this Constitution – which is the situation that the basic structure doctrine is meant to cover. To be clear: this is not an affirmative argument in support of the basic structure doctrine. It is, however, a defensive argument that demonstrates that whatever other arguments there might be against the doctrine, Article 1(1) cannot be pressed into service here.

Second Phase

In an interesting turn of events, the bench did not pose any questions to counsel while they were arguing; instead, in the second phase, each of the judges took turns in posing a series of questions. Counsel for the pro-BBI side were then granted three minutes each to respond to the questions most relevant to their brief.

Let us group the questions thematically. On the subject of the basic structure, Lenaola J asked what it meant to say that sovereignty was “extra-constitutional”. Njoki J wanted to know if the four-step sequential process was found anywhere in the Constitution. Smokin Wanjala J asked why the appellants located the Kenyan Constitution’s basic structure within Article 255 – and why believed that the basic structure doctrine was inapplicable in Kenya. On the popular initiative, Lenaola J asked if there was any global precedent for a President – or a President-like figure – being involved in something like a popular initiative. Njoki J asked if the President was authorised to move under a popular initiative in order to fulfil his constitutional functions (readers will note this question, as an interesting answer was provided during Respondents’ submissions). Smokin Wanjala J enquired why it was being argued that the popular initiative kicked in only after the collection of a million signatures – and not before. Koome CJ also asked about the initiation of the popular initiative, and whether the requirement of public participation required a legal framework or rules of procedure, to be instantiated. Finally, on the subject of distinct and separate referendum questions, Ouku J made the important point that while four judges in the Court of Appeal seemed to endorse the “thematic unity” approach to referendum questions (i.e., referendum questions within a single theme could be grouped together, but not from different themes), the final disposition of the Court of Appeal reflected the opposite holding. Lenaola J asked if it was correct to say that the question was not yet ripe, as the IEBC was yet to decide how to frame the referendum questions; and Njoki J wanted to know if – given that there was nothing express in the Constitution – whether the thematic approach implied inserting into the Constitution something that was not there.

Responses to these questions were along familiar and expected lines: counsel reiterated – or further explained – the positions they had taken, including the argument that the basic structure doctrine applies only when there is a parliamentary monopoly over amendments, that the Kenyan Constitution’s basic structure was identified in Article 255 and provision for its amendment set out in Article 257, that Kesavananda Bharati is inapplicable to Kenya, that the scope of public participation is expressly set out in Article 257, and varies with the stage of the popular initiative, that the referendum question issue was unripe. Most of these points were addressed in yesterday’s blog post, and I will not repeat the arguments here.

Let me, however, flag two interesting responses. One response came on the question of global precedent: apparently, in Lichtenstein, the Prince had proposed a series of constitutional changes through a popular initiative (including the power to appoint judges), which were eventually passed by a referendum. Now, it was undoubtedly fascinating to hear – for the first time – some comparative constitutional law from Lichtenstein! I do wonder about the appropriateness of the example, though: a Prince taking control of the judiciary through constitutional amendment doesn’t exactly feel like a particularly inspiring instance of the use of the popular initiative. Out of curiosity, I did some digging after the hearing: it appears that the Venice Commission strongly criticised many of the constitutional reform proposals for their anti-democratic character, for the reason that they would result in excessive centralisation of power with the monarch. If anything, therefore, the Lichtenstein example seems to show that letting a powerful head of State bring about constitutional reform through popular initiative is more a recipe for abuse than anything else!

The second response was on the basic structure. Perhaps for the first time, counsel bit the bullet, and told the Court that if, tomorrow, there was a constitutional amendment seeking to curtail judicial review itself, the Court could participate in the public discussion around it – but would have no power to invoke the basic structure to invalidate the amendment. Putting the point in such stark terms – i.e., telling the Court that it had no legal power to protect even its own existence from constitutional amendment under Article 257 – is undoubtedly a starkly honest – and rather bold! – argumentative technique. It remains to be seen how the Court will respond to the issue being framed in such categorical terms.

Third Phase

The third phase was kicked off by Mr. Morara Omoke’s team, which had filed a cross-appeal on the referendum questions issue, but ultimately launched a full-throated defence of the High Court and Court of Appeal judgments. Counsel responded directly to the Appellants’ Kesavananda point, noting that there was a key distinction between Kesavananda and David Ndii. Kesavananda expressly “locked out” a set of amendments altogether. The High Court and the Court of Appeal, however, were equally express that in principle, every provisions of the 2010 Kenyan Constitution – including its basic structure – could be amended (as I argued in yesterday’s post, this distinction is crucial, as it – in my view – tracks the contextual differences between the Kenyan and Indian Constitutions). Secondly, counsel argued that the purpose of the four-step sequential process was to deepen public participation in the amendments process. It is important to read the two arguments together. The first argument is an argument demonstrating the need for a different form of the basic structure doctrine in the Kenyan context; and the second argument is an argument demonstrating that the form chosen by the High Court and the Court of Appeal was justified: where the amendment process already provides a role for the People (the two-track process referred to by the Appellants), the basic structure doctrine can only exist to the extent that it deepens that role to a level commensurate with constitutional framing. That, in essence, was what – according to counsel – the High Court and Court of Appeal did, and that was why this particular form of the basic structure doctrine (i.e., the four-step sequential process) was justified in the specific context of Kenya.

Mr. Morara Omoke then advanced a series of arguments supporting the High Court and Court of Appeal: on the issue of IEBC quorum, that Article 250(1) mentioned that the composition of Commissions had to be a minimum of three – but that composition did not equate to quorum. Extending the argument – in terms somewhat similar to the constitutional statute point made in yesterday’s blog post, he took the example of the tax code: if – Mr. Morara Omoke argued – amendments to the tax code were struck down, would it be the case that the Code itself would be treated as repealed, leaving the entire domain unregulated? He argued that that could not be the case – and similarly, the striking down of Sections 5 and 7 of the IEBC Act Schedule could not lead to the conclusion that there was now no statutory regulation governing the functioning of the IEBC.

For the sake of completeness, this argument was carried forward later in the day by Ester Ang’awa, who pointed out that the IEBC was regulated by both the Constitution (Article 250(1)), and by statute (the IEBC Act) – both of which, together, functioned as two wings of a plane, and were necessary for it to continue flying. On the failure of one engine (the statute, parts of which were struck down), the plane could not simply run perpetually just on the other. Readers may here again spot similarities with the constitutional statute argument, without the term expressly being mentioned.

Finally, on the issue of referendum questions, Mr. Morara Omoke noted that he had written to the Court of Appeal after its judgment, requesting clarification on the apparent contradiction between the holdings and the disposition; he had a reply stating that there was no contradiction (pretty impressive due diligence!). Mr. Omoke then made the case in favour of the “thematic unity” approach. The case is, by now, a familiar one: a voter cannot exercise choice in any true sense if she is provided with a grab-bag of seventy-four constitutional amendments – some of which she may support and some of which she may oppose – and then asked to approve or reject all of them in an up-down vote. This is a specific problem when “sweeteners” that have nothing to do with constitutional reform are thrown into the mix with the specific intention of making the reform proposals more palatable.

The Respondents then formally opened proceedings, with Mr. Nelson Havi starting the case. His conceptual and theoretical arguments on the basic structure should – by now – be familiar; one important point to flag is that Mr. Havi affirmed that – by its very nature – primary constituent power must lie outside of the Constitution itself. This is a direct response to the argument – made by George Oraro SC the day before – that the 2010 Constitution had textualised the primary constituent power within Articles 255 and 257. Now, while this is true as a matter of constitutional theory, a more subtle point that the appellants had made remains: which is that the closer the amending process in a Constitution gets to the primary constituent power, the less role there is for judicial intervention through the basic structure doctrine. To this, Mr. Havi replied that the four-step sequential process was what provided the wedge between constitutional amendment and constitutional repeal. The four-step sequential process – which lay outside the Constitution – kicked in only when what was being attempted was constitutional repeal (express, or through necessary implication). Thus, no matter how close an amendment process came to approximating the primary constituent power, when what was being done was not an amendment at all, but a repeal, it became necessary to look outside the Constitution in order to find the power for such an action; because, recall – Mr. Havi argued – that the primary constituent power is the power to frame, re-frame, or repeal a Constitution, and must therefore lie outside of it.

On the involvement of the President in the popular initiative, Mr. Havi inverted the argument made by the Appellants: he asked, instead, where in the Constitution was the President granted the power to involve himself in the popular initiative process. This emphasises the point that I made in yesterday’s blog post: the popular initiative dispute is, at the end of the day, a dispute about how to interpret a constitutional silence, and will turn upon what the Court thinks is the purpose of Article 257. If the Court thinks that the purpose of Article 257 is to establish bottom-up direct democracy, it will exclude the President; if, however, it does not view Article 257 in that manner, it may not do so.

In the final set of arguments for the day, Elias Mutuma addressed submissions on Presidential involvement in the popular initiative – again, responding specifically to the appellants’ core point that in the absence of any constraining provision, the President should be deemed to have the power as part of the normal exercise of his constitutional rights. While it was true – Mr. Mutuma argued – that the People had delegated sovereign power to the President, it was important to note that what had been delegated was executive, not legislative power; thus, to the extent that the President wanted to legislate (and constitutional reform through the Popular Initiative was a form of legislation), he needed express authorisation under the Constitution. A constitutional silence, thus, would need to be interpreted against the President.

Mr. Mutuma went on to make a fascinating argument about the nature of the popular initiative, and when it could be deemed to commence. Under Article 257 – he noted – the People had to be involved with enacting the constitutional reform in question. This envisaged an active role for the People right from the beginning, and not simply a situation where the People were just given a constitutional reform proposal to endorse or reject. Thus, the mere fact that there was a reform proposal with one million signatures did not ipso facto mean that the requirements of Article 257 had been fulfilled.

I want to pause for a moment and reflect upon the deep roots of this argument in democratic theory. Article 257 of the Kenyan Constitution – as I’ve argued before – is a particularly important provision in how it seeks to infuse direct democracy into the constitutional amendment process. Direct democracy itself, however, can be of two kinds, depending upon whether the citizenry is to be treated as passive consumers of laws, or active participants in their enactment. In the former situation, the political elite continue to devise and frame the laws, with the “direct” role of the People being limited to (mostly) accepting them by acclamation, or (rarely) turning them down. In the latter situation, however, the involvement of the People is deeper, and begins from the moment of the devising of laws. Mr. Mutuma argued that Article 257 envisioned the latter conception of direct democracy, and this would have an impact (a) on the question of when the Popular Initiative could have been deemed to have begun, and (b) on the scope of public participation. Incidentally, it would also have an impact on the question of Presidential involvement: it is far more difficult to justify Presidential involvement if the purpose of Article 257 is to empower an active citizenry to play a front-stage role from the get-go. Top-down, led initiatives are in fundamental conflict with this vision of direct democracy.

Finally, Mr. Mutuma posed a hypothetical: if this was a pre-constitutional moment, and the 2010 Constitution was being submitted for ratification, would the procedure under Article 257 be deemed sufficient? He argued that it would not, and that was why the four-step sequential process – which provided for a deeper and more sustained level of public participation – was justified. Arguments for the day were then concluded by Caroline Jerono, who argued that as all the terms in Article 257 (Bill, Amendment, Suggestion) were in the singular, it was a strong indication in favour of the thematic unity approach to referendum questions.

Conclusion

This brings us to the close of day 2 of the hearings. By now, it is evident that the battle lines have been drawn, and the points of conflict are beginning to appear in a clearer fashion. Tomorrow should bring the curtains down upon the case, and leave us with a clear sense of the issues on which this case will finally turn.

The BBI Case at the Supreme Court of Kenya – Day 1: Some Observations

Today, arguments commenced before a seven-judge bench of the Supreme Court of Kenya in Attorney-General v David Ndii and Ors, popularly known as “the BBI Case.” On this blog, I have covered in some detail the progress of this case, including the judgment of the High Court (see here), the oral arguments at the Court of Appeal (see here), and the judgment(s) of the Court of Appeal (Part 1, Part 2, Part 3, Part 4). Because of the issues that it raises – about the limits of the constitutional amending power, public participation in popular initiatives, the conduct of referenda and the framing of referenda questions, the role of fourth branch institutions, and Presidential immunity, to name just a few – the BBI Case is not only hugely significant for Kenya and for Kenyan constitutionalism, but also for global and comparative constitutionalism more generally. The three-day argument this week is now the final round, and the Supreme Court’s judgment will be the last chapter of this story.

Oral proceedings before the Kenyan courts are broadcast live, and can be watched all over the world. Over the next three days, therefore, I will post summaries of the day’s arguments in the case, with some analysis (if applicable). A quick disclaimer: I am now formally a part of the proceedings, having submitted an amicus brief to the Supreme Court of Kenya, supporting the correctness of the High Court and Court of Appeal judgments.

The Basic Structure

Recall that the BBI Bill [“the BBI”] is a set of seventy-four proposed amendments to the Kenyan Constitution. Both the High Court (5-0) and the Court of Appeal (6-1) struck down BBI on the ground that it violated the Kenyan Constitution’s basic structure. The High Court held (5-0) – and the Court of Appeal confirmed (4 – 3) – that the basic structure could not be amended through the procedures set out within the Kenyan Constitution itself, under Articles 255 – 257 (“the secondary constituent power”). Rather, the basic structure could only be amended through a process that recreated the conditions under which the Kenyan Constitution of 2010 was framed (“the primary constituent power”). This required a sequential four-step process – civic education, public participation, a Constituent Assembly, and a referendum.

Before the Supreme Court, this finding was under challenge by the Appellants and the supporting Respondents, most of whom argued today (see Day One’s arguments here). In my opinion, the clearest and most lucid statement of the Appellants’ case can be reconstructed by studying the combined oral arguments of the Solicitor-General and – after him – George Oraro SC. Put simply, the argument is this: the mischief that the High Court and the Court of Appeal were seeking to remedy through the basic structure had already been identified – and then remedied – within the text of the Kenyan Constitution itself, specifically through Article 257 (the popular initiative). The Solicitor-General noted that the core problem – that is, the problem of “quick and fundamental” amendments to a Constitution effectively eviscerating constitutionalism itself – was specifically recognised during the framing of the 2010 Constitution, and it was solved through the drafting of Articles 255 and 257. Where an amendment to a core feature (i.e., the basic structure, taken in a non-technical sense) was sought to be made, Articles 255 (that listed these core features) and 257 would kick in, which required a detailed process of public participation and – eventually – a referendum. In other words, the Solicitor-General argued that Article 255 and 257 were doing the same work that a basic structure doctrine was otherwise meant to do: that is, protect a Constitution’s core identity from majoritarian abrogation. The Kenyan Constitution did have a basic structure; it was contained in Article 255; and the procedure for its amendment was set out in Article 257.

The theoretical gloss upon this argument was put by George Oraro SC, who argued that what the High Court defined as “primary constituent power” – i.e., the power of creation (or re-creation of a Constitution, as opposed to simple amendment) had been textualised within the Constitution itself, through Articles 255 and 257. Thus, when the Kenyan Constitution stated that for amending certain parts (set out under Article 255), the popular initiative process of public participation and referendum (under Article 257) had to be followed, it was effectively providing an internal, constitutional route for the exercise of primary constituent power. And both the Solicitor-General and Oraro SC noted that with this two-track procedure of amendment, which reflected the exercise of primary constituent power, there was no need of a basic structure doctrine, as the two were effectively meant to do the same thing.

Echoes of this argument were made by various counsel through the day. Counsel for the National Assembly specifically argued, for example, that the basic structure doctrine – as it judicially originated in India – was not meant to be a limitation on constitutional amendments per se, but on parliamentary monopoly over constitutional amendments (an argument repeated by counsel for the Senate as well as counsel for the 74th Respondent). Where Parliamentary monopoly had already been taken away by the constitutional text – and indeed, taken away in favour of direct participation by the people – there could be no place for the basic structure doctrine.

One notes a subtle – but unmistakable – shift in the Appellants’ arguments from the Court of Appeal (and indeed, in response to the Court of Appeal’s judgment(s)). In the Court of Appeal, it was straightforwardly argued that Articles 255 – 257 provided a self-contained code that explicitly contemplated the amendment of every provision of the Constitution; now, it was argued that conceptually, Articles 255 – 257 were encoding primary constituent power (or something like it). This shift is expressed most clearly in Oraro SC’s argument that amendment procedures in a Constitution are best understood upon a spectrum; and – on this spectrum – the closer that an amendment process is to the exercise of primary constituent power in its design, the less scope should there by for judicial intervention via the basic structure doctrine.

I want to use this idea of the spectrum as the springboard for a few brief comments. I think Oraro SC’s insight that amendment procedures are best understood along a spectrum that goes from Parliamentary monopoly at one end (India) towards primary constituent power on the other, is an important one. However – and this is crucial – in exactly the same way, the basic structure doctrine is also best understood along a spectrum, a spectrum that goes in precisely the opposite direction. The particular form that a basic structure doctrine takes in a particular jurisdiction is directly responsive to where, on the spectrum, that jurisdiction’s amendment procedures lie. So, in a jurisdiction like India, where there exists parliamentary monopoly over the amendment process, the basic structure doctrine takes a thick, substantive form, and is effectively a judicial veto over amendments (because that is the only way to protect constitutional identity from evisceration). On the other hand, in a jurisdiction like Kenya, where the amendment process creates space for the People, the basic structure doctrine takes a thin, procedural form, and the judiciary no longer exercises a veto over amendments. This was the fundamental point that – in my view – the High Court correctly grasped when it crafted a doctrine of the basic structure that was radically different from Kesavananda Bharati, precisely because the Indian and Kenyan Constitutions were at different places along the spectrum.

If we understand this, we are also in a position to re-formulate the argument made by counsel for the Senate and for the National Assembly. Thus, it is perhaps not entirely accurate to argue that the basic structure doctrine is limited to curtailing parliamentary monopoly over amendments. It is more accurate to say that the basic structure doctrine in its thick, substantive, judicial veto form is limited to curtailing parliamentary monopoly over amendments. However, as the judgments of the High Court and the Court of Appeal show, that is not the only basic structure doctrine that is on offer. The basic structure doctrine can take a form that is applicable to a Constitution where the amendment process incorporates elements of participation and democracy. This form will be thinner, it will be procedural, and the judiciary will take a more backstage role – exactly the features of the doctrine that the High Court did evolve (note that – contrary to Oraro SC’s submissions – this is not the first time this has happened. The basic structure doctrine in Bangladesh evolved at a time when the amendment process did provide for a referendum).

The Popular Initiative

The Appellants’ arguments on the popular initiative – and the question of whether the President could be involved in the popular initiative – were more familiar and straightforward. Textually, the Appellants (and their supporting Respondents) argued that there was no express bar upon the President’s involvement in the popular initiative process. Structurally, they argued that much like the President did not lose their other constitutionally guaranteed rights on becoming President (such as the right to vote), there was no justification for denying them the right to political participation through involvement in the popular initiative. Historically, they argued that Article 257 – the popular initiative – was meant to curb Parliamentary monopoly over the amendment process. Purposively, they argued that Article 257 was meant to address situations where a President who had been elected on a platform of constitutional reform was stymied by a hostile or recalcitrant Parliament. On a combination of all these arguments, they therefore submitted that Article 257(1) ought to be interpreted liberally: that is, the words “an amendment to this Constitution may be proposed by popular initiative” should be read to mean “an amendment to this Constitution may be proposed by any person by popular initiative…”

Readers will note that these are – more or less – the arguments that were made before the Court of Appeal, and have been discussed in previous posts. As I have argued earlier, the interpretation of Article 257 depends, ultimately, upon the interpretation of a constitutional silence. Article 257 neither permits nor prohibits Presidential involvement in the popular initiative. The question, however, is whether Presidential involvement is consistent with a provision that seeks to encode bottom-up direct democracy as a method of constitutional amendment. In other words – and there is an interesting tension here between the Appellants’ arguments on Presidential involvement on the one hand, and their argument that Article 257 encodes primary constituent power on the other – will the political agency that Article 257 seeks to provide to the People be fatally undermined by allowing the process to be taken over by the State’s most powerful public official? If the answer to that is “yes”, then the structural argument falls away; and as to the historical and purposive arguments, it is equally plausible to argue that a recalcitrant Parliament standing in the way of the President is precisely the point: the very purpose of separation of powers – and of distributing power among different branches of government as opposed to concentrating them in one – is to prevent unilateral decisions, especially on matters as significant as constitutional reforms of basic principles.

It is also perhaps important to flag arguments on the issue of whether different referendum questions could be lumped together into an omnibus bill, whether different questions would have to be put separately the People (the High Court judgment), or whether the “unity of theme” approach should apply (Court of Appeal judgment). Other than the familiar, Oraro SC made the (I believe) new argument that prescribing how the referendum should be carried out wasn’t a task for the judiciary at all; rather, the issue would have to be governed by rules prescribed by Parliament, and by legislation (in this case, the Elections Act). However, Oraro SC also went on to argue that the Court could step in if the referendum was carried out in contravention of the Constitution. This – in my submission – potentially cuts out the legs from under the argument, because the import of the High Court and Court of Appeal judgments is precisely that a referendum in which disparate issues are shoe-horned into a straight up-down vote is unconstitutional. The before/after distinction, therefore, falls away.

The IEBC and the Quorum

The Independent Electoral and Boundaries Commission addressed submissions at some length on the question of whether or not the IEBC had quorum to carry out the BBI process. As in the Court of Appeal, the argument turned on a technical point about the consequences of a judgment striking down a legal provision, and its operation in rem (i.e., against the world at large). In brief, the IEBC argued that at the time the BBI case was being heard in the High Court and in the Court of Appeal, a prior judgment of the High Court had already struck down Sections 5 and 7 in the Second Schedule of the IEBC Act (which had altered the quorum requirements of the IEBC). The effect of this striking down – the IEBC argued – meant that these amendment provisions were gone altogether, and the previous provisions – which they had replaced – were also gone. Thus, there was no law governing the question of quorum anymore, and the position reverted to the default under the Constitution (see Article 250(1)), which was a quorum of three (this was fulfilled).

While the Court of Appeal judgment(s) addressed this point at some length, I believe one important addition to the discussion is the idea of a constitutional statute. Certain constitutional rights cannot be implemented directly, but need an institutional framework for effective implementation. A classic example is the right to vote, which is meaningless without an independent election commission. A constitutional statute is a statute that creates the institutional framework that is necessary to implement a constitutional right. Now, the crucial point is this: as long as a constitutional statute has not been enacted, the State is arguably in breach of its positive obligation to fulfil constitutional rights; but also, there is no real remedy, as the Court cannot force the State to legislate. However, once a constitutional statute has been enacted, there is arguably a bar on the State from then affirmatively going back to the pre-statute position where the right in question was unprotected (think of it like the principle of non-retrogression): because to do so would be a judicially reviewable breach of the State’s constitutional obligations. To take an example: having passed a voting law and set up an independent election commission, it would then be unconstitutional for the State to repeal the law and erase the Commission altogether (unless it proposed an equally efficacious statutory framework for fulfilling the right to vote).

I think that similar logic applies to the IEBC issue. If the Appellants’ arguments are to be accepted, then the consequence of a judicial striking down of amendments to the IEBC Act is not simply that the amendments are gone, but that the statutory regulation of that sphere (in this case, the quorum requirements for the IEBC to function) is gone altogether, sending us back to a situation where no legislative framework holds the field. For the reasons I’ve advanced above, I think that a better route is the route taken by the High Court and the Court of Appeal.

Conclusion

Towards the end of the day’s hearing, James Orengo SC noted that once the People had clearly established the route by which they wanted to enact amendments to the Constitution, the Court should be slow to interfere; and doing so might “prompt Kenyans to find other paths to reach their desired goals.” This formulation, in my view, represents the fundamental wedge in this case. Orengo SC’s critique – which he termed as judicial usurpation – would be undoubtedly accurate if the High Court and the Court of Appeal had actually “usurped” the power of amendment – i.e. established a judicial veto over constitutional amendments, based on their substantive content. However, it is questionable whether the High Court and the Court of Appeal did that. Both Courts were fairly clear that even the basic structure of the Constitution is amendable, but that conceptually, the procedure for amending it and for altering constitutional identity itself – the exercise of primary constituent power – has to be found outside the Constitution, and not within it. That process was anchored (by both Courts) in the re-creation of the conditions under which the Constitution was enacted: i.e., public participation in a deep sense, going beyond what is provided under Article 257.

It will now be interesting to see how the Respondents argue these points in the coming two days.

Guest Post: The Supreme Court’s Tribunals Judgment – I

[This is a guest post by Shubhansh Thakur.]

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In a judgement dated 14 July 2021, the Supreme Court (“SC”) in Madras Bar Association v. Union of India struck down certain provisions of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021(“Ordinance”) by a majority of 2:1. Nageshwar Rao, J, authored the leading opinion to which Justice R. Bhat expressed his concurrence in a separate opinion. On the other hand, Justice Hemant Gupta authored his partially dissenting opinion.

The petition was filed by the Madras Bar Association (“MBA”) under Article 32; however, the grounds of challenge were not restricted to Fundamental Rights under Part III, giving rise to the issue of maintainability (Maintainability Issue). Among other grounds, the Ordinance was argued to violate the Constitution’s basic features such as Independence of judiciary and separation of powers. Additionally, the Ordinance was also attacked on the ground of violating the previous directions of the court relating to tribunal appointment and conditions of service.

Initially, the author will lay down the background of the dispute as it played a pivotal role in shaping the court’s decision. In this part, the author will analyse the maintainability issue while leaving other challenges for the next part.

THE CHEQUERED HISTORY

As highlighted, since one of the grounds of challenge was concerning previous court directions, it is pertinent to take note of those directions and analyse them to the limited extent of their relevance to the case at hand.

MBA-I

Several provisions of the erstwhile Companies Act relating to the formation of tribunals were assailed before the Madras High Court (“HC”) in MBA-I. The challenges were ultimately carried forward in appeal before the SC. The SC upheld the power of Parliament to transfer judicial functions from the courts to the tribunals. However, it declared Part I-C and I-D of the impugned Act unconstitutional and issued directions for making certain amendments before the provisions could be brought into force. Interestingly, the Union of India (UOI) agreed to make suitable changes before the HC, leading the SC to direct:

“However, Parts I-B and I-C of the Act, may be made operational by making suitable amendments, as indicated above, in addition to what the Union Government has already agreed to in pursuance of the impugned order of the High Court.”

The use of the words like “may be made operational” and “as indicated” leads us to believe that the SC merely issued some directory guidelines for the UOI to cure the defects. However, there is nothing to indicate that the court envisaged them as binding before fresh legislation is brought. Interestingly, the UOI had also agreed to make specific changes in the Companies Act. The effect of this agreement will be analysed while dealing with the subsequent challenges; however, for the time being, it is sufficient to point out that such consent should not bind or estop the government.

Among various other directions, it was provided that the tenure of the members to be appointed should be increased from three years to five or seven years, along with reappointment if deemed appropriate by the committee responsible for recommending the names to the scheduled tribunals. With the retirement age of 65 years, the SC believed that such a short tenure of three years was tailored to make these tribunals a retirement haven for HC judges who retire at the age of 62 years. However, considerably longer time would be required for legal practitioners before they could acquire expertise in dispute adjudication, and three years’ tenure would prove insufficient.

The SC also pointed out that the competence of the person to be appointed is different from suitability. For suitability, experience, maturity, and status are required in addition to experience for the post.

MBA-II

The Companies Act, 2013, replaced the erstwhile Companies Act of 1956, which came to be challenged in MBA-II. However, several of the provisions that were declared unconstitutional were either copied verbatim or, in essence, in the new Act. It is unnecessary to deal with the issues separately apart from noticing that the court struck down several provisions because they were copied verbatim in the new Act without substantial changes. Additionally, the court was motivated by concerns around the independence of the judiciary in striking down the sections, but not solely on the ground that the sections failed to comply with its previous directions (See ¶27,28,30,31.3, 33). The fact of the matter is that the statutory enactment failed to remove the defect mentioned and further undermined the independence of the judiciary and separation of powers.

Interestingly, section 413 of the same Act, which provided that a person who has not completed 50 years was ineligible for appointment in the tribunals under the Companies Act, remained unchallenged as it stood.

Rojer Mathew

After that, in Rojer Mathew v. South India Bank, among several other challenges, the Tribunal, Appellate Tribunal and Other Authorities (Qualifications, Experience and Other Conditions of Service of Members) Rules, 2017 were assailed by the petitioner. The rules were struck down in their entirety, as they took away the judicial control in tribunal appointments and compromised the independence of tribunals. One rule provided for different ages of superannuation for chairman, vice-chairman, and members. This rule was struck down as violative of the parent Act, which sought uniformity in the tribunal appointment (¶175.2).

The rule prescribing a uniform tenure of appointment for the advocates elevated as members of the tribunals and retired HC or SC judges was also struck down because it sought to create equality among the unequal (¶175.1). It was also held that the short tenure of three years would deter practicing advocates from accepting the appointment in tribunals, as they would have to give up their practice for a meagre tenure of three years. It led the court to direct that tenure of five to seven years must be considered with a chance of reappointment. (¶172). It was also reiterated that MBA-I recommended a more extended period for appointment based on these principles. After the rules were struck in their entirety, the following interim relief was granted:

“We, as an interim order, direct that appointments to the Tribunal/Appellate Tribunal and the terms and conditions of appointment shall be in terms of the respective statutes before the enactment of the Finance Bill, 2017. However, liberty is granted to the Union of India to seek modification of this order after they have framed fresh rules in accordance with the majority judgment. However, in case any additional benefits concerning the salaries and emoluments have been granted under the Finance Act, they shall not be withdrawn and will be continued. These would equally apply to all new Members.“

It is clear from the reading of the above direction that the court never intended these interim directions to attain finality; instead, they merely wanted the interim directions to continue as long as there is inaction on the part of UOI and to keep the tribunals operational. The court merely fettered the power for withdrawing the financial benefits and nothing more.

MBA-III

The rules were subsequently reframed and were assailed in MBA v. UOI (“MBA-III”). The rules excluded advocates from being considered as Judicial Members to certain tribunals, while for others, advocates having a minimum experience of 25 years were made eligible. The Attorney General, in his submissions, assured the bench that the advocates would be made eligible for all the tribunals provided they had the experience of 25 years at the bar (¶39). The SC, however, held that the experience at the bar should be nearly equivalent to that required for an HC judge, i.e., ten years. Thus, the rule was directed to be amended to make younger advocates eligible for appointments. It was held (without reference to authority) that “A younger lawyer, who may not be suitable to continue after one tenure (or is reluctant to continue), can still return, to the bar, than an older one, who may not be able to piece her life together again.” The argument seems to be ex-facie erroneous because a more experienced candidate is always valued more. In any case, the state cannot ensure that every person appointed as a member of the judiciary must have employment for a lifetime.

The rules regarding appointment and condition of tenure similar to the one provided for in the present Ordinance’s Sec.184(11) were also given the retrospective effect. The court held that the subordinate legislation could not be given retrospective effect as the parent statute did not authorise such retrospective application. Due to this, the following interim direction was issued:

“According to paragraph 224 of the judgment in Rojer Mathew (supra), the appointments to the Tribunals were directed to be in terms of the respective Acts and Rules which governed appointments to Tribunals prior to the enactment of the Finance Act, 2017. For the purpose of clarity, we hold that all appointments made prior to the 2020 Rules which came into force on 12.02.2020 shall be governed by the parent Acts and Rules. Any appointment made after the 2020 Rules have come into force shall be in accordance with the 2020 Rules subject to the modifications directed in the preceding paragraphs of this judgment”

In essence, the interim order of Rojer Mathew merged with the MBA-III with some clarification. In this context, it is essential to note that this case was unique where there was a dialogue between the bench and Attorney General(AG), where he agreed to make changes in the rules as per the court’s directions. (See ¶41,47)

Before moving ahead, the author wants to highlight certain aspects that emerge out of the reading of the judgments, which will be used subsequently in the analysis: in MBA-I and MBA-II, the UOI defended legislation, which requires the assent of the Houses of Parliament and of the President. However, In Rojer Mathew and MBA-III, the UOI acted in its executive authority, as it was defending the rules that it framed udnder the authority of the parent Act.

ANALYSIS

Regarding maintainability, Rao J and Gupta J do not seem to add much apart from holding that a statute can be challenged to violate the separation of powers and independence of the judiciary, which flow as a necessary concomitant of the rule of law. This concept emerges out of equality and Article 14. It is submitted that such observations seem to depict a rather vague and subjective approach where every and any violation can be related to the rule of law and equality clause to invoke the writ jurisdiction. If such an approach is taken to be the standard for admitting a writ petition under Article 32, then even a statutorily imposed duty’s violation would equally breach the rule of law, and the court must not hesitate to admit such a petition. The postulates of separation of power and independence of the judiciary have various constituents spreading across the entire Constitution. The court should only interfere in a matter under Article 32 when one of these constituents either flows directly from or is intrinsically connected to the text of Part III.

There is a specific power conferred to the Parliament to enlarge the SC’s jurisdiction (Art.138) and issue writs for purposes other than those mentioned in Article 32(Art. 139). Here the negative Act of the Parliament abstaining from making the law also results in the exercise of that power intended to keep the jurisdiction of the SC restricted. It is thus difficult to discern how the SC has taken itself to adjudicate such disputes that are loosely connected to rights under Part III or instead interpreted in such a manner to relate them to rights under Part III in the guise of acting as the protector of the Constitution. The court must attempt to develop a test that brings in more objectivity and uniformity in the entire process of admission of the writ petition.

When the reason to interfere is not intrinsically and closely connected to part-III rights, the SC must attempt to refrain from admitting the petition. Instead, it should grant the liberty to approach the HC under Article 226, which enjoys a similar status as SC, i.e., acting as a Constitutional court, but with a wider jurisdiction.

Justice Bhat’s judgment fills the gaps in the reasoning of Rao J, and Gupta J in the development of a viable test. At first, he seems to avoid the issue of maintainability, observing that:

“It is therefore, too late in the day to contend that infringement by a statute, of the concept of independence of the judiciary – a basic or essential feature of the constitution, which is manifested in its diverse provisions, cannot be attacked, as it is not evident in a specific Article of the Constitution.”

However, he later goes on to depict a close and intrinsic relationship between the provisions of the Ordinance and the right to approach the SC under Article 32, when he observes:

“Therefore, it is the “equal protection” of laws, guaranteed to all persons, through institutions that assure the same competence of its personnel, the same fair procedure, and the same independence of adjudicators as is available in existing courts, that stands directly implicated. Consequently, when this court scrutinizes any law or measure dealing with a new adjudicatory mechanism, it is through the equal protection of law clause under Article 14 of the Constitution.”

The reasoning reflects a viable test to confer jurisdiction. It is settled that the Parliament has the power to transfer disputes from courts to the tribunals. This exercise will have to carry forward the same standards as would have been available with the traditional set-up. In other words, the forum for adjudication may be made different by the Parliament, but similar protections pertaining to independence and impartiality, as were available in the traditional set-up, should be equally provided. This test shows how Article 14 is relevant to testing other articles of the Constitution relating to the appointment, independence of courts sought to be replaced or supplemented by the tribunals.

The next part will deal with and analyse the substantive challenges to the Ordinance in the context of the previous directions of the courts, as mentioned in this part.

Notes From a Foreign Field: Some Thoughts on the Kenyan Court of Appeal Proceedings in the BBI Case

On 13 May 2021, the High Court of Kenya handed down a landmark judgment striking down the “Building Bridges Initiative”, a set of proposed amendments to the Kenyan Constitution, on grounds – inter alia – of violating the Constitution’s basic structure [“the BBI Judgment”]. At the time, I had analysed the judgment in this blog post. The High Court’s judgment was appealed to the Court of Appeal, and argued before a seven-judge bench, over four days, between June 29 and July 2. Judgment has been scheduled for August 20.

The Kenyan constitutional courts are unique in that oral arguments are live-streamed, broadcast live by major television networks, and available on YouTube (with an open comments section!). I was thus able to watch the arguments, which raised a range of fascinating issues, from the distinction between direct and indirect democracy (drawn from the Kenyan Constitution’s very particular amendment provisions), the identity of “the People”, the distinction between top-down and bottom-up constitutionalism, the meaning and purpose of public participation, and so on. Perhaps what made the arguments even more interesting was that, having been enacted in 2010, the Kenyan Constitution is a relatively young document, and not yet bowed down by layers of encrusted precedential sediment. For this reason, counsel on both sides were able to make arguments on first principle, presenting the overlaps between concrete constitutional practice and the philosophy of democratic constitutionalism, in a distilled form that we don’t often get to see.

In this post, I will examine some of the major arguments made over the course of the four-day appeal hearing. Here are the YouTube links, in sequence: Day 1, Session 1 (starts at 58 mins); Day 1, Session 2 (start at 2hrs 17 mins); Day 1, Session 3; Day 2, Session 1; Day 2, Session 2; Day 2, Session 3; Day 3, Session 1 (Respondents open with Nelson Havi at 23 mins); Day 3, Session 2; Day 3, Session 3; Day 4, Session 1; Day 4, Session 2; Day 4, Session 4 (including Appellants’ rejoinder). The first two days of the hearing were occupied by the appellants who were challenging the High Court’s decisions. These included the Attorney-General’s Office, the BBI Secretariat, the Independent Electoral and Boundaries Commission (whose powers – and their alteration – were central to the High Court’s judgment), the Hon. Raila Odinga (the opposition leader), and HE Uhuru Kenyatta, President of Kenya. I will not here examine all the arguments raised; that would be an impossible task, apart from the fact that some of the issues are beyond the scope of a comparativist’s ability to engage with. I will, however, discuss three issues that, in my view, are at the heart of the appeal.

My usual caveat: I am an outsider, and I approach this post with an awareness of my limited knowledge. While I will write as honestly as I can, there is undoubtedly much context that I do not know, and much that I may get wrong; for those trespasses, an apology, in advance.

Issue 1: Who Are The People?

First, Appellants challenged the High Court’s finding that the Kenyan Constitution had a basic structure, which could only be amended through the exercise of a primary Constituent power that – in effect – lay outside the Constitution. Recall that in its judgment, the High Court had not held that the Kenyan Constitution’s basic structure was beyond the power of amendment altogether (thus making the Kenyan basic structure doctrine entirely different from its Indian variant, and indeed, unique in the annals of comparative constitutionalism). Rather – on an analysis of Kenyan constitutional history – the High Court held that in order to amend the basic structure, the conditions around the founding of the 2010 Constitution had to be recreated (primary constituent power). This meant, in concrete terms, a four-step procedure involving civic education, public participation, the convening of a Constituent Assembly, and a referendum.

It was therefore a little surprising to note the amount of time that Appellants spent distinguishing Kesavananda Bharati v State of Kerala, or arguing for its inapplicability to Kenya. As I have mentioned above, the basic structure doctrine of Kesavananda, and the basic structure doctrine of the BBI judgment, are chalk and cheese. In particular, Appellants spent considerable time arguing that Kesavananda was a response to Parliamentary abuse of amending power, while the Kenyan Constitution explicitly envisages a role for the people (via the Popular Initiative method under Article 257) in the amending process. This is correct. But it is also, with respect, irrelevant. The distinction would have made sense if the Kenyan High Court had placed the basic structure out of bounds altogether; however, as we have seen, it did not – arguing only for deeper public participation than is provided in the Kenyan Constitution via the popular initiative method. That argument, however, needs to be tackled on its own terms, and not with reference to Kesavananda and parliamentary supremacy.

That brings us to how Appellants did attempt to tackle it on its own terms. Now here is where things get interesting. Let us go back for a moment to the amendment provisions in Kenya’s Constitution (Articles 255 – 257). Recall that Article 256 prescribes the familiar parliamentary route for certain constitutional amendments. Article 257, however, provides an alternative route known as the “popular initiative”, which requires (a) signatures of one million registered voters to initiate; (b) approval by a majority of county assemblies; (c) passage by simple majority in both Houses of Parliament, and (d) if pertaining to one of ten critical categories spelt out in Article 255, a referendum. Interestingly, therefore, the method under Article 257 is a combination of direct and representative democracy: it has elements of direct democracy in its initiation and completion (in cases of a referendum), and also elements of representative democracy through the process (ratification by county assemblies and Parliament).

In this context, Appellants argued that the participation of the people is already provided for under the Constitution, when it comes to the question of amendments. Consequently, there was no need for a separate basic structure doctrine that was itself based on public participation, as that issue had already been resolved within the Constitution. To supplement this argument, counsel referred to Article 1(1) of the Kenyan Constitution, which states that “all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.” Stressing upon the phrase “this Constitution”, Appellants argued, therefore, that popular sovereignty did not – and could not – exist outside the Constitution. It was the Constitution that – through Article 257 – facilitated the exercise of popular sovereignty through the popular initiative amendment process.

But underlying this textual point is a deeper normative claim, which goes to the heart of constitutionalism: who are the People? Effectively, Appellants argued that “the People” had no existence – or identity – outside of the Constitution; quite literally, the People are “constituted” by the Constitution. Consequently, in holding that the basic structure could only be amended by an – effectively – extra-Constitutional process initiated – and led – by the People, the High Court had misconstrued not only the text of the Constitution, but the basic premises of constitutionalism itself.

At first blush, the argument sounds powerful. I believe, however, that in the final analysis, it fails to persuade. I would submit, with respect, that in focusing on Article 1(1), Appellants inadvertently hoisted themselves on their own petards. This is because the phrase “this Constitution” begs the anterior question, which is at the heart of the basic structure doctrine: at what point does “this Constitution” cease to be “this Constitution”, and becomes something else? It is here that Kesavananda Bharati actually becomes relevant – because what many people (especially in its home country) tend to forget is that before it was anything else, Kesavananda Bharati was a textual judgment. The majority judges took great pains to parse the meaning of the word “amend”, and took equal pains to explain how it differed from “repeal” or “abrogate” or “destroy”. To put the point at its simplest: this Constitution – whose entire structure is based on the principle of (say) representative democracy, is no longer this Constitution if all those provisions are replaced with a clause turning the State into a monarchy. Indeed, the bench repeatedly put these hypotheticals to the Appellants’ counsel – without (in my view) a satisfactory answer.

Indeed, Respondents’ counsel made this point on multiple occasions. The clearest exposition of it is to be found from around 55 minutes to 1 hour during the first session of Day 3: counsel distinguished between the concepts of “amendment” and “repeal”, and then further distinguished between two kinds of repeal: express repeal (such as when Kenya’s Independence Constitution was “retired”, in advance of the 2010 Constitution coming into force); but also, repeal by irreconcilable differences, where although a Constitution is not formally repealed, it is nonetheless repealed in effect, by introducing into it principles or provisions that are fundamentally irreconcilable with its core identity.

To this, I would add two brief points. The first is that taking the argument to its logical conclusion, Article 1(1) of the Kenyan Constitution, far from supporting Appellants’ case, is fatal to it. Because if it is true that (a) Article 1(1) only authorises the exercise of popular sovereignty within this Constitution, and (b) that this Constitution is no longer this Constitution if its basic structure is altered, it must necessarily follow that (c) if the People wish to alter the basic structure, they must act outside the Constitution. Indeed, it cannot be otherwise. And if this is conceded, then the High Court’s judgment is not only arguably but correct, but indeed, the only correct outcome. Because not only did the High Court correctly rule that alteration of the basic structure must take place outside of the Constitution, it also set out the logical corollary: that the manner of doing so must resemble, as closely as possible, the manner of the writing of the Constitution. This is so because an alteration of the basic structure amounts, in effect, to re-writing the founding document, and for that, such an activity needs to be conducted within the procedural confines of the manner in which its writing took place.

The second point is that on multiple occasions, Appellants’ counsel expressly conceded that the Constitution does have a basic structure. Counsel attempted to make light of the point by arguing that every form of government – including theocracies and one-party totalitarian States – have basic structures. Counsel then argued that the existence of a basic structure doesn’t necessarily imply the existence of the basic structure doctrine. However, it is in precisely that disjunction where the problem lies: if you accept that the Constitution has a basic structure – i.e., a core set of principles that constitute its identity – then the burden falls upon you to show how an alteration of the basic structure, and thus an alteration of constitutional identity nevertheless implies that “this Constitution” at the beginning of the process is still “this Constitution” at the end of it. I believe that this was a burden Appellants did not discharge.

The Njoya Debate

I would suggest that the above argument is also relevant to answering a question that was hotly debated on both sides of the bar during the hearings: that is, the interpretation of the Kenyan High Court’s 2004 judgment in Njoya v Attorney-General. In Njoya – which involved a challenge to the then-ongoing constitutional review process – the High Court had accepted Kesavananda Bharati, and held that under the (now-retired) Constitution, the Kenyan Parliament had no power to abrogate or repeal the Constitution. Now naturally, the Respondents strongly argued that Njoya went in their favour. However, Appellants argued equally strongly that read closely, Njoya actually supported their case. The reason for this was that in Njoya, Ringera J categorically stated that (a) Parliament had no power to abrogate the Constitution, (b) that this power belonged to the People of Kenya, acting in their sovereign capacity, and (c) that the People of Kenya were entitled to a referendum on any new Constitution (paragraphs 32 & 33, Njoya). Now if you look at Articles 255 read with 257, an amendment by popular initiative – that seeks to alter one of the ten categories set out in Article 255 (such as the territory of Kenya or the functions of Parliament) must be put to a referendum. Appellants therefore argued that the dictum of Njoya had already been incorporated into the 2010 Constitution. Indeed, the bench’s question to Mr. Nelson Havi, Respondents’ lead counsel, at around 48 mins of the first session of Day 3, went to the heart to the issue: did not the 2010 Constitution enact the very requirements outlined in Njoya?

I believe that the answer is in Njoya itself, and it is the same answer as that set out above. In paragraph 29, Ringera J wrote that popular sovereignty is “the basis of the creation of the Constitution and it cannot therefore be conferred or granted by the Constitution” – although, of course, it could be juridically recognised by it. These lines, I submit, answer the bench’s question about the referendum provisions under Article 257: regardless of what Article 257 says about a referendum, ex hypothesi, the power to create a Constitution cannot lie within it. Now when you combine this with Njoya’s holding in paragraph 61 accepting the correctness of Kesavananda and holding that “amendment” does not mean “abrogation” or “repeal”, you reach the inescapable conclusion that a Constitution’s amendment provisions – whether or not they contemplate referenda – do not extend to the repeal of this or the creation of a new Constitution, something that can only be done through an external exercise of popular sovereignty. And that was what the High Court recognised.

Issue 2: The Discontents of the Presidential System

The second major issue was with respect to the identity of the initiator of the BBI Amendment(s). Articles 257(3) and (4) of the Kenyan Constitution contemplate the existence of the “promoters” of an amendment by popular initiative. Formally, the promoters of the BBI Amendment(s) were two parliamentarians named Dennis Waveru and Junet Mahomed. However, it was strongly urged before – and accepted by – the High Court that the actual moving force behind the Amendment(s) was the President of Kenya, Uhuru Kenyatta. The factual dispute continued before the Court of Appeal, and I do not intent to address it here. However, it was also argued by Appellants that even if it was the President who was behind the BBI Amendment(s), there was nothing wrong with it; in other words, just like any other registered voter, high State officials could also initiate amendments by popular initiative. In particular, Appellants argued that (a) there was no express bar under Article 257 that forbade the President from engaging in amendment(s) by popular initiative; (b) that explicitly, the President continued to retain political rights under the Constitution even on formal investiture, including, for example, the right to vote; (c) that as a matter of fact, even if the President had been acting in this case, he had been acting in his private capacity; and (d) that the entire purpose of Article 257 was to prevent legislative bottlenecks in a Presidential system. It was meant to deal with a situation where the political party with a majority in Parliament was opposed to the elected President’s agenda, and was stymying him. In such a situation of gridlock, Article 257 gave the President an avenue to to bypass Parliament and go directly to the People. At its deepest level, then, the argument was one about constitutional design. Appellants argued that the Kenyan Constitution did two things: it opted for the Presidential system, with its known problem of veto points and bottlenecks – and then also solved that problem through Article 257, by essentially saying “President + People > Parliament“.

Now there are a few points here. The first is that – as the bench acutely pointed out – Article 255(3)(b) of the Constitution states that the amendment procedure under Article 257 is by “the people and Parliament”. It therefore follows that the Constitution itself draws a distinction between “the People”, and constitutional bodies (such as the Parliament), even though – of course – those constitutional bodies are helmed by members of “the People”. It follows ipso facto, therefore, that much like “the people” and “Parliament” are distinct entities for the purposes of a constitutional amendment, “the people” and “the Presidency” must likewise be so.

Is this dispositive? No. However, what it does show is that textually, Articles 255 – 257 sustain the High Court’s interpretation. Whether it is the correct interpretation – given that the text is ambiguous – is of course a normative question, internal to the Kenyan Constitution. And it is here that the principles of representative and direct democracy come into tension with each other. As I have pointed out above, Article 256 provides the familiar amendment path via representative organs (Parliament), while 257 consciously combines elements of representative and direct democracy, and – specifically – envisages direct democracy at both the beginning and the end of the process.

I would submit, with respect, that this carefully balanced scheme of Article 257 would be nullified were representative organs allowed to initiate the process. Such an interpretation of Article 257 would undermine the fact the bottom-up character of direct democracy that the provision seeks to preserve. During the opening session of Day 3, at around 1 hour 6 minutes, Respondents’ counsel put the point perfectly when they argued that by definition, when the people delegate authority (as in representative democracy), the delegate no longer counts as part of ‘the people’ for the purposes of the exercise of popular sovereignty (as in direct democracy, envisioned by Article 257). The bench then asked – correctly – whether it would not be possible for the President to “wear two hats” – i.e., remain the President, while initiating a popular initiative process as a private citizen. The answer – which was provided a little later in the day – was that ‘yes, she can, but she needs to formally give up the trappings of office while doing so.’ This, to me, makes eminent sense: the entire point of Article 257 – and the carefully wrought distinction between direct and representative democracy – would be defeated if the President could say “I am President, but I ask for your signature on this popular initiative as a private citizen.” With respect, that distinction could be sustained only by denying reality.

As I have mentioned above, Appellants repeatedly argued that there was no express bar on the President’s powers under Article 257. That is true; but again, going back to Kesavananda – and much more recently, to the UK Supreme Court’s prorogation judgment in Miller v The Primer Minister, limitations upon powers exercised by constitutional authorities are not only express, but – in many cases – implied. In Miller, it was held that when you have two constitutional principles, the exercise of power under one is (impliedly) limited at the point at which the said exercise would frustrate or impede the operation of the other. That is exactly what is happening here: the President’s powers under the Constitution are limited by the operation of other constitutional principles; in the case of Article 257, that principle is the balance between direct and representative democracy in the popular initiative process.

Issue 3: The Nature of Referenda

The third issue also concerned the interpretation of Article 257. The BBI Amendment(s) had been pushed as a package deal, containing as many as seventy-four proposed amendments to the Kenyan Constitution. The High Court had nixed this in no uncertain terms, holding that in an amendment by way of popular initiative, every amendment had to be presented distinctly, and put through the process required by Article 257, separately. Appellants’ response to this holding was primarily textual, noting that Article 257 used the word “amendment”, and not “amendments.” Thus, an “amendment” could take the form of a proposed bill – that amended multiple provisions of the Constitution – but for the purposes of Article 257, the was to be treated as an amendment, in the singular.

Now it should be clear that once again, the text does not determine the issue. It could easily well be argued – and indeed, was argued – that the very use of the singular “amendment” actually means that you can only present one amendment at a time via the popular initiative. For interpretive support, Respondents’ counsel also pointed to Kenya’s Elections Act, Section 51(2) of which provides that “where there is more than one referendum question, persons intending to campaign for or against each referendum question shall, on application to the Commission, form one national referendum committee each and one committee each in every constituency for each referendum question.“

Textual ambiguity, once again, brings us into the domain of the normative – and the normative issue here goes once again to the purpose of referenda, and the provision of direct democracy in a Constitution. The core argument against referenda – as we well know – is that they boil down extremely complex and nuanced questions into a simple yes/no binary. In effect, therefore, they distort the expression of public opinion by simplifying an issue to a point where a yes/no vote doesn’t accurately reflect the range of views that people hold. Now, I would submit, with respect, that given that referenda already have this problem with respect to being accurate vessels for the expression of direct democracy, a package deal referendum exacerbates that precise problem even more (the reasons are easy to see). It therefore follows that if the Court is faced with two equally legitimate textual interpretations of the same provision, one of which advances the cause of direct democracy, and the other potentially impedes it, given that the purpose of the section is to facilitate direct democracy, it should choose the former interpretation. In this case, that would be to uphold the High Court’s ruling that a popular initiative can only be for one amendment at a time.

Concluding Remarks

The above analysis has only scratched the surface of the immensely complex and nuanced arguments that I heard. Some of the fascinating arguments I have not dealt with here include, for example, the question of which side bears the burden in a dispute over whether the popular initiative involved adequate public participation or not (I would suggest that if public participation is a fundamental premise of the Kenyan Constitution, the presumption must be that official acts do not acquire a constitutional seal of approval until it is affirmatively demonstrated that public participation has taken place; think of it as a precondition); the role of constituencies in distributing resources, power, and political patronage, and why, therefore, boundary alteration affects the basic structure; whether the popular initiative starts from the moment signatures are collected, or does the public participation requirement kick in before; and so on. Ultimately, what I found most striking is that for a lot of these questions, the Constitution does not provide a textual answer. For a lot of these questions, both sides presented an interpretation that, textually, was plausible; ultimately, therefore, this ruling will turn upon what principles the Court identifies as underlying these provisions, and which interpretation it believes better furthers those principles.

A few parting remarks on the oral arguments themselves. I loved watching them: there was wit, humour, seriousness, and a whole range of styles of advocacy, with consistently high quality throughout. The timekeeping was impressively strict: a big timer showed counsel their countdown, the bench cut them short when their time was up, and barring a few occasions where I thought that counsel genuinely needed more time to develop their argument, I felt that the quality of advocacy was raised by the fact that counsel had to put their point across in limited time. The questions from the bench were sharp, focused, and at times, almost frightening in how accurately they identified weak spots in the argument. And then, away from all this, I was struck by the freedom with which people were commenting and arguing with each other in the YouTube comments section, and openly poking fun at the lawyers, the President, and even the court. As far as I could tell, none of this had any perceivable impact on “justice”. Perhaps judges in other jurisdictions may take a leaf out of this YouTube book, and treat irreverence and critique with a smile.

Finally, as an outsider, I was struck by the civility with which the arguments were conducted. By all accounts, this is amongst the most – if not the most – important constitutional case under Kenya’s new Constitution, and the High Court’s judgment was a massive setback for both President Uhuru Kenyatta, and the Hon. Raila Odinga. However – barring a few good-natured jabs back and forth, I did not see personal invective. Imagine watching the State’s lawyers argue over two days, and not once insinuate that the other side is a hotbed of anti-nationals, publicity-seekers, “lobbyists”, and a threat to sovereignty and national security?

Whew, what a thought!