The Supreme Court’s Humpty Dumpty Jurisprudence on the Question of Referral

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

In its judgment delivered on the 2nd of March (Shah Faesal v Union of India), while deciding whether the challenge to the alteration of Article 370 required to be referred to a bench of seven judges, a five-judge Constitution Bench of the Supreme Court had this to say about the importance of precedent in an adverserial system:

When   a   decision   is   rendered   by   this   Court,   it   acquires   a reliance interest and the society organizes itself based on the present   legal   order.   When   substantial   judicial   time   and resources are spent on references, the same should not be made   in   a   casual   or   cavalier   manner.   It   is   only   when   a proposition is contradicted by a subsequent judgment of the same Bench, or it is shown that the proposition laid down has become unworkable or contrary to a well­ established principle, that a reference will be made to a larger Bench. (paragraph 19)

Until very recently, this would have been a non-controversial reiteration of a proposition that virtually everyone believed was settled law. Unfortunately, however, these observations are flatly contradicted by everything that has happened since November 2019, in proceedings arising out of the Sabarimala “Review” order. These proceedings have been covered extensively on this blog, but suffice it here to recall that:

  1. The five-judge review bench (split three to two) – despite being unable to indicate any error in the original judgment – “referred” certain “questions of law” to a larger bench on the principal ground that these questions might arise in certain future cases before the Court.
  2. The five-judge review bench also justified this decision of referral by noting the existence of two prior five and seven-judge bench judgments, but failing utterly to show what the conflict was between them, or how they were irreconcilable.
  3. The new Chief Justice then established a nine-judge bench on the strength of this referral-in-review order. Before the nine-judge bench, the exact arguments that the Court makes in paragraph 19, quoted above, were made. Some of the judges on that nine-judge bench were also part of the Shah Faesal bench. Yet, the nine-judge bench decided to go ahead and hear the “referred” questions on their merits.
  4. To this day, there has been no explanation forthcoming from the Court how either of the two propositions set out in paragraph 19 – “a contradiction by a judgment of the same bench” or an “unworkable proposition” – were present in the proceedings arising out of the Sabarimala review. Nonetheless, the nine-judge bench is going ahead.

What, then, is the position of law on referral? Is it the law set out in paragraph 19 of Shah Faesal? Or is it what flows from the Sabarimala review order? And what is one to do when the same judges who sign on to paragraph 19 see no compunction in throwing its principle to the winds in a simultaneously progressing hearing?

Perhaps the only answer is to be found in the dialogue between Humpty Dumpty and Alice, in Lewis Carroll’s Through the Looking Glass:

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master*—that’s all.”

* Any resemblance to the “Master of the Roster” is purely coincidental.


Guest Post: Vijay Wadettiwar v State of Maharashtra: Resigning MLAs, Constitutional Silences and a “Fraud on the Constitution”? – II

(This is the second post in a two-part series by Mihir Naniwadekar.)

In an earlier post, we had looked at the decision and reasoning of the Bombay High Court in Civil Writ Petition 6996 of 2019 (Vijay Namdeorao Wadettiwar v State of Maharashtra). The Court held that appointing RVP as a cabinet minister (in circumstances when there was no possibility of his becoming a member of the legislative assembly during the remainder of the term of the assembly) was not liable to be quashed by the Court as being a fraud on the Constitution, and the remedy (if any) was with the electorate. The earlier post argued that the constitutional history relied on by the High Court did not entirely support the Court’s conclusion in that regard. This post considers how one can look at the concept of “fraud on the Constitution” and how such a concept may be tested in similar facts.

Evolving a framework for judicial interference in ‘political’ decisions

In order to consider what test should be applied in situations such as these – where the Court is called on to interfere in something generally considered a ‘political’ decision – it may be helpful to consider a recent example from the United Kingdom – R (on the application of Miller v The Prime Minister [Miller (No.2)]. The case concerned a challenge to the Prime Minister’s advice to the Queen for proroguing Parliament. The power to prorogue is a prerogative power of the Crown.

The Supreme Court of the United Kingdom explained [Para 35] that two distinct issues must be separated in considering prerogative powers:

The first is whether a prerogative power exists, and if it does exist, its extent. The second is whether, granted that a prerogative power exists, and that it has been exercised within its limits, the exercise of the power is open to legal challenge on some other basis. The first of these issues undoubtedly lies within the jurisdiction of the courts and is justiciable, as all the parties to these proceedings accept… The second of these issues, on the other hand, may raise questions of justiciability. The question then is not whether the power exists, or whether a purported exercise of the power was beyond its legal limits, but whether its exercise within its legal limits is challengeable in the courts on the basis of one or more of the recognised grounds of judicial review…

Having so held, the Court considered the standards by which the lawful limits are to be identified, to determine whether the power has indeed been exercised within those limits. After further analysis of the relevant principles, the Court considered that the fundamental principles of parliamentary sovereignty and accountability to the Parliament were part of the limits on the very existence of the power to prorogue. And the limit was then expressed using the following test [Para 50]:

… the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course…

In other words, an effects-based test was adopted: is the exercise of the power such that it has the effect of frustrating (without reasonable justification) a certain fundamental principle? Merely saying that a power is a “prerogative” power is unhelpful: no power, not even a prerogative power, can be exercised in a manner which has the effect of frustrating a fundamental constitutional value. In other words, for any and every power, there is an inherent limit in a constitutional setup that the power cannot be exercised to violate certain fundamental principles. The doctrine of “fraud on the Constitution” can perhaps be understood in such sense in the constitutional context.  

That may help us understand why appointing criminals to be ministers is not a “fraud on the Constitution” (because it is no part of the basic structure to prevent criminals taking part in politics, however much one may ethically detest it) while re-promulgating ordinances is (because it is a basic feature of the Constitution that laws must be made by an elected legislature exercising its legislative powers). Hence, re-promulgating ordinances is a “fraud on the Constitution”, because the power to issue ordinances is limited to doing so only in the situation of absolute necessity and ensuring legislative oversight as soon as practicable. To re-promulgate those ordinances would mean that this legislative oversight is lost: and the basic feature is therefore negated. As Justice Chandrachud observed in Krishna Kumar Singh:

… the court must adopt an interpretation which furthers the basic constitutional premise of legislative control over ordinances. The preservation of this constitutional value is necessary for parliamentary democracy to survive on the sure foundation of the rule of law and collective responsibility of the executive to the legislature. The silences of the Constitution must be imbued with substantive content by infusing them with a meaning which enhances the rule of law. To attribute to the executive as an incident of the power to frame ordinances, an unrestricted ability to create binding effects for posterity would set a dangerous precedent in a parliamentary democracy…

To come to the example given by the Bombay High Court of a person who is not a member of the Assembly being re-appointed over and over again by the simple expedient of him resigning before the six-month period is over: that is again a “fraud on the Constitution”. But why? The answer is perhaps because the relevant basic feature engaged is of legislative oversight over Minsters and the executive; and appointing the same person over and over again has the effect of frustrating that basic feature without any reasonable justification at all.

Justice Krishna Iyer’s statement in Shamsher Singh is well known, that “Not the Potomac, but the Thames fertilises the flow of the Yamuna…” The 4th edition of Halsbury’s Laws of England noted that since ministers must always be responsible to the Parliament, and the responsibility is both personal as well as collective. The rationale for the British convention that ministers must always be members of Parliament is that this ensures that ministers cannot avoid criticism of their ministry and are always accountable to Parliament for the conduct of their ministry. If it were open to become a minister without any requirement whatsoever to become a member, then this essential element of accountability to the Parliament is lost. The High Court of Australia held in Australian Capital TV & New South Wales v Commonwealth of Australia:

The very concept of representative government and representative democracy signifies government by the people through their representatives. Translated into constitutional terms, it denotes that the sovereign power which resides in the people is exercised on their behalf by their representatives. The point is that the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act…

In SR Chaudhari’s case, following this line of reasoning and expressly referring to these authorities, the Supreme Court held the second appointment of the same person as Minister (without being elected) as being invalid. In reaching this conclusion, the Court also approved of scholarly commentary that “It is basic to the system of responsible government that the Prime Minister and all the other ministers be members of parliament…” and further held:

Parliamentary democracy generally envisages (i) representation of the people, (ii) responsible government and (iii) accountability of the Council of Ministers to the Legislature. The essence of this is to draw a direct line of authority from the people through the Legislature to the Executive… The very concept of responsible Government and representative democracy signifies Government by the People. In constitutional terms, it denotes that the sovereign power which resides in the people is exercised on their behalf by their chosen representatives and for exercise of those powers, the representatives are necessarily accountable to the people for what they do. The Members of the Legislature, thus, must owe their power directly or indirectly to the people….

SR Chaudhari is clear authority for the proposition that ministerial responsibility is indeed a fundamental feature of the Constitution.

The above analysis has suggested one tentative conception of approaching the question of “fraud on the Constitution”; and it is argued that this conception appears to be in line with the approach of a 7-Judge Bench of the Supreme Court (per Chandrachud J.) in Krishna Kumar Singh. What needs to be examined is if the impugned action (the appointment of RVP) is such that it has the effect of frustrating a fundamental constitutional value (ministerial responsibility).

Conclusion: “Fraud on the Constitution” and Ministerial Responsibility

Adopting this approach, it could be contended that the effect on the underlying value of responsible government and legislative oversight is such that if a person is in a position of being unable to face by-election, then in every case that person is ineligible to be Minister. Readers will recollect that in the Constituent Assembly, one of the reasons given by Dr. Ambedkar for rejecting the proposed amendment of Mohd. Tahir was that it was desirable to leave open the flexibility to the government to appoint the best person as minister “on the assumption that he shall be able to get himself elected…” In a situation of a vacancy shortly before the expiry of the term of the legislature, when no by-election at all is possible, then that vacancy should be filled up only by an existing member of the assembly: not because the Constitution requires this in express terms, but because not doing so will in every case have the effect of negating an underlying constitutional value. True, the Constitution permits a non-member to be a minister: but that permission is circumscribed by the underlying values which mandate that the person so appointed must necessarily be one who is capable of becoming a minister. The question which was left open in SR Chaudhari (“we have declined an invitation of learned counsel for the appellant to express our opinion on the question whether a non-legislator can be appointed as a Minster, if on the date of such appointment, he suffers from a constitutional or statutory disqualification to contest the election within the next six consecutive months”) can perhaps be answered in this manner and contrary to what emerges from the Bombay High Court decision. This fits in well with the decision of the Supreme Court not just in SR Chaudhari but also in BR Kapur; and also does not detract from the general rule that a non-member who is capable of being elected in six months can be so appointed.

Even if one were to take a different view, the analysis required to uphold the appointment would be of a somewhat different nature; and would have to focus on the effect of the appointment on the underlying constitutional value. It would have to be argued, perhaps, that the principle of collective responsibility is in itself sufficient to ensure that there is no adverse effect on the underlying constitutional value of ministerial responsibility. Indeed, while one of Dr. Ambedkar’s reasons (which we have already noted in the earlier post) for rejecting Mohd. Tahir’s amendment was that there was an underlying assumption that the minister would get elected as member, Dr. Ambedkar also offered another reason for rejecting the amendment:

…My second submission is this, that the fact that a nominated Minister is a member of the Cabinet, does not either violate the principle of collective responsibility nor does it violate the principle of confidence, because if he is a member of the Cabinet, if he is prepared to accept the policy of the Cabinet, stands part of the Cabinet and resigns with the Cabinet, when he ceases to have the confidence of the House, his membership of the Cabinet does not in any way cause any inconvenience or breach of the fundamental principles on which Parliamentary government is based…

The argument would then be that the framers regarded collective responsibility in itself as being sufficient to protect the underlying constitutional value; and hence, the fact that a particular minister may not even be capable of becoming a member of the assembly is irrelevant. That is certainly a proposition which would require careful consideration: however, it is suggested that this reasoning – that collective responsibility is in itself sufficient to ensure that the fundamental value of ministerial responsibility is not lost – does not sit comfortably with the reasoning of the Supreme Court in Kapur and Chaudhari.

Perhaps, the decision of the Bombay High Court – if carried in appeal to the Supreme Court – may give the Supreme Court a chance to further consider how the doctrine of “fraud on the Constitution” is to be applied and also to elucidate how exactly the fundamental constitutional value of ministerial responsibility is to be protected in the constitutional scheme.

[The author is grateful to Gautam Bhatia for his comments on a draft version of this essay.]

The Meaning and Limits of Democracy under the Constitution: Perspective on NCT of Delhi v Union of India

On this blog (here) we recently analysed the Supreme Court’s verdict in the NCT of Delhi v Union of India. Now that the dust has settled on the judgement and its immediate outcomes, it is worth considering where the judgement stands in our constitutional jurisprudence, the idea of democracy under the constitution.

The crux of the dispute in NCT of Delhi came down to an interpretation of Article 239AA. The article creates a legislature directly elected from the constituencies of Delhi, led by a council of ministers that are “collectively responsible” to the legislature This council will “aid and advise” the Lieutenant Governor (LG). Article 239AA(4) stipulates that in the event of a disagreement between the council and the LG “on any matter”, the LG can refer the disagreement to the President. As we know, the Supreme Court held that the “aid and advice” of the council of ministers is binding on the LG, whose express approval is not required for every initiative of the Delhi government. The LG can disagree on certain matters (we will discuss this later). In interpreting Article 239AA, the Supreme Court relied on certain “principles” that it used to justify its interpretation, chief amongst these was democracy.

In this post, I seek to examine the principle of democracy espoused by the court. The court’s judgement provides a defence of democracy that stems from the political legitimacy created by every individual having a vote, and thus a say in the running of government. The court uses this foundational principle to outline what it means to be democratic within our constitutional framework. Ultimately, in interpreting when the LG can disagree with the council of ministers, the court also highlights the limits of the political legitimacy that voting creates. In other words, the democratic nature of the constitution requires all citizens to be able to influence government. The views of the citizens form the inputs of the governmental decision-making process, and all views must be heard for the decisions of government to be legitimate. However, sometimes, the needs of the citizens must be balanced with the need for the continued existence of the government itself.

The political legitimacy of democracy

Broadly speaking, the constitution uses two methods to ensure the State does not dominate its citizens: (1) by ensuring government policies treat all citizens with equal respect; and (2) ensuring all views are heard when determining government policies. An example of the former would be a fundamental rights challenge under Article 14, while an example of the latter would be preserving democracy, free speech, and free and fair elections. It is this second limb that the court focuses on in NCT of Delhi judgement.

Without making the theoretical case for democracy, some context of the republican notion of democracy is necessary to appreciate the court’s observations. In a pluralistic society, the spectrum of ideas and needs of the citizenry is immensely wide. However, some amount of convergence or coordination is necessary to decide how society should function. If we acknowledge that all citizens are autonomous moral agents worthy of equal respect, then the decision-making procedure must respect the ideas and needs of all agents equally. Democracy through voting, permits exactly this. In the words of the political philosopher Richard Bellamy, it offers a process that “acknowledges the equal moral right of all citizens to be regarded as autonomous reasoners”. In the NCT of Delhi decision J. Misra espouses exactly this justification for democracy:

The cogent factors for constituting the representative form of government are that all citizens are regarded as equal and the vote of all citizens, which is the source of governing power, is assigned equal weight. In this sense, the views of all citizens carry the same strength and no one can impose his/her views on others” (⁋50)

Similarly, when outlining the underlying principles of the Constitution, J. Chandrachud notes, “One of the essential features of constitutional morality, thus, is the ability and commitment to arrive at decisions on important issues consensually. It requires that “despite all differences we are part of a common deliberative enterprise” (⁋9). It is crucial to understand that arriving at decisions consensually does not necessarily mean everybody agrees with the outcome of the decision, rather that everybody acknowledges the inherent legitimacy of the process used to make the decision. What the court is recognising is that the equal respect for all views grants legitimacy to the decisions taken by democratic means. Irrespective of whether you agree with the decision or not, it is the outcome of a process in which you had as much of a say as the next person (we will examine limits of this later).

A second crucial facet of democracy that the court highlights is political accountability, or how reflexive the State is to the needs of the citizens. J. Chandrachud defines accountability as, “the criterion of responsiveness to changes in circumstances that alter citizen needs and abilities… In other words, accountability refers to the extent to which actual policies and their implementation coincide with a normative ideal in terms of what they ought to be.” (⁋35) If the role of democratic voting is to determine the “needs and abilities” of the citizens in a society at any given time, then there must exist a direct link between those who vote and those frame laws. This accountability allows citizens to inform political representatives of their “needs and abilities” and most importantly, reject those representatives who do not frame laws that track the citizens “needs and abilities”. Obvious examples of this are not re-electing a representative, or at an indirect level, a ‘no-confidence motion’ against the government. But as we shall see, the principle of accountability is far more widespread. As J. Chandrachud notes, “The ability of citizens to participate in the formation of governments and to expect accountable and responsive government constitutes the backbone of a free society.” (⁋11)

The democratic credentials of the council of ministers and the LG

Recall that Article 239AA creates a legislature elected from the territorial constituencies of Delhi, which is led by a council of ministers. By contrast, the LG is appointed by President on the advice of the Central Government. Also recall that the High Court ruled that all initiatives of the Delhi government needed the express approval of the LG. This conclusion of the High Court directly contradicts the view of democracy espoused by the court, as the LG neither represents the “needs and abilities” of the citizens of Delhi, nor is he accountable to these citizens. However, the LG is the appointee of a body that is answerable to the people, the central government. If the power exercised by every appointed official was considered unconstitutional on the ground that they were not elected or directly answerable to the people, the government would come to a halt. The court’s final holding is therefore not that the LG is undemocratic, rather than the council of ministers have stronger democratic credentials which cause power to vest in them.

The court argues that no power under the Constitution is conferred unless it is ultimately accountable to the people. How true this is, given the recent antics by governors is a debate for another day, but the court states,

The omnipotence of the President and of the Governor at State level — is euphemistically inscribed in the pages of our Fundamental Law with the obvious intent that even where express conferment of power or functions is written into the articles, such business has to be disposed of decisively by the Ministry answerable to the Legislature and through it vicariously to the people, thus vindicating our democracy instead of surrendering it to a single summit soul.”

In other words, where constitution vests power in two posts, there exists a presumption in favour of the power ultimately vesting in and being exercised by individuals or offices directly responsible to the citizens. This presumption is based on two parliamentary doctrines that are based on the twin ideas of all voices being heard and political accountability. These are the doctrines of “aid and advice” and “collective” responsibility.

Aid and Advice

The first constitutional doctrine discussed by the court is that of “aid and advice”. The constitution stipulates that the President, Governor, and at the level of the Union Territory, the LG, shall act on the “aid and advice” of their respective council of ministers. The question in NCT of Delhi was whether the “aid and advice” of the Delhi council of ministers was binding on the LG. A detailed discussion on this doctrine can be found in an earlier post on the High Court judgement (here). However, in the context of our current discussion on democracy it is important to understand the role the doctrine plays in a parliamentary democracy.

J. Chandrachud notes, “The doctrine of aid and advice enhances accountability and responsive government – besides representative government – by ensuring that the real authority to take decisions resides in the Council of Ministers, which owes ultimate responsibility to the people, through a legislature to whom the Council is responsible.” (⁋43). To ensure that the unelected official in whom the Constitution appears to vest power (e.g. the President, or the LG) acts in accordance with the “needs and abilities” of the citizens they govern, this unelected official is bound to act in accordance the “aid and advice” of elected individuals. The legitimacy of the “aid and advice” of these elected officials comes from the fact that all citizens had an equal chance to choose these elected officials based on the interests the officials represented. (This raises the question, why have an LG at all? Which I address in the last section of the post.)

Collective Responsibility

Collective responsibility means two things: (1) that every minister in government is responsible for her ministry; and (2) all ministers in parliament are collectively responsible for the policies of the government as a whole (the government here is not the entire legislature, but rather the ruling party or coalition). Thus, each minister is vicariously liable for the actions of all the other ministers in government. The reason why parliamentary democracy requires the principle of collective responsibility is best articulated by J. Chandrachud when he notes, “Collective responsibility governs the democratic process, as it makes a government liable for every act it does.” (⁋37) It makes the government, “continuously accountable for its actions, so that it always faces the possibility that a major mistake may result in a withdrawal of Parliamentary support” (⁋33).

By making the entire government responsible for the act of each minister, collective responsibility greatly enhances the liability of government. A single wayward act of a minister can potentially threaten a government’s rule, prompting a no-confidence motion. This results in both intra-governmental accountability, and accountability to the direct representatives of the citizens. As J. Chandrachud concludes, “Collective responsibility, as a constitutional doctrine, ensures accountability to the sovereign will of the people who elect the members of the legislature.” (⁋50).  Similarly, J. Mishra states, “the ultimate say in all matters shall vest with the representative Government who are responsible to give effect to the wishes of the citizens and effectively address their concerns.” (⁋267)

This highlights the second aspect of democracy discussed above, that of political accountability. It is not sufficient that an office of power is vicariously answerable to the people. Democracy demands a direct nexus between those in power and the citizen’s whose needs and values they represent. The Central Government that appoints the LG represents the needs of the entire country, of which Delhi is a minute fraction. If the constitution demands democratic government for Delhi, it necessarily requires a government that is directly accountable to the citizens of Delhi. The council of ministers possess this accountability, and the LG does not.

The limits of democracy

This post has so far focussed on the ­legitimacy derived from the inputs to the democratic decision-making process. Democracy ensures that all citizens can voice their views equally prior to taking any decision that governs all citizens. However, as has been noted before on this blog (here) we also care about the outcomes of the democratic decision-making process. The discussion for whether democracy needs counter-majoritarian restrains is beyond the scope of this post. However, the NCT of Delhi judgement is notable in delineating the limits of political legitimacy within the constitutional framework.

This conflict is best highlighted by J. Chandrachud when he notes,

The NCT represents the aspirations of the residents of its territory. But it embodies, in its character as a capital city the political symbolism underlying national governance. The circumstances pertaining to the governance of the NCT may have a direct and immediate impact upon the collective welfare of the nation.” (⁋55)

The conflict touched upon by the court is not merely about the distribution of powers between the elected government of Delhi and the Central Government. It is highlighting that for all the political legitimacy that democratic inputs generate, there exist certain areas of debate where the democratic process cannot be allowed to reign supreme. A common example of this is the denial of referendums and even popular government to areas that threaten to separate from the union. The court is alluding to the fact that the entire constitutional scheme is situated in a State-centric view of the world, and where the idea of democracy may be used to question the existence of the state itself, a delicate balance must be struck. J. Chandrachud articulately captures this tension when he notes, “Each of the two principles must be given adequate weight in producing a result which promotes the basic constitutional values of participatory democracy, while at the same time preserving fundamental concerns in the secure governance of the nation.” (⁋55).  Despite Article 239AA granting a democratically elected government to Delhi, Delhi is still of crucial importance to India as a State, practically and symbolically. Thus, there are limits to the legitimacy generated by granting each citizen of Delhi a vote.


Earlier we noted that ensuring the voice of all citizens influences the government’s decisions, and the government is accountable to this influence, is a crucial method of restraining governmental power. Thus, the decision in NCT of Delhi should be considered on par with any landmark fundamental rights case in terms of securing freedom. By highlighting democracy as an underlying principle of the constitution and utilising it to interpret a provision that enabled representative governance, the court has restrained the ability of the government (in this case the Central Government) to disregard the “needs and abilities” of the people. How the principles of the equality that voting is founded on and accountability that parliamentary processes create will influence future decisions of the court will be interesting to see. For example, would the anti-defection law survive a basic structure challenge based on the principles articulated here? More realistically, one hopes that in future cases of electoral reforms/restrictions, campaign finance and parliamentary affairs, the court does not forget these principles.

The Supreme Court’s Right to Privacy Judgment – IX: Living Constitutionalism, Natural Law, and Other Interpretive Issues

The Puttaswamy case came to Court because the Indian Constitution does not have a textually guaranteed right to privacy. Each of the six judgments spent considerable time establishing why, despite the constitutional text, privacy was a fundamental right. Many different arguments were advanced, and in the first two posts in the series, we discussed one of them: privacy was a fundamental right because without it, effective enjoyment of textually guaranteed rights such as the freedom of speech, the freedom of association, personal liberty, and so on, was simply impossible. Consequently, as paragraph 3 of the operative order stated, “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.” 

Living Constitutionalism

There were, however, other arguments as well. In all of the judgments, for example, we find references to how the constitutional meaning is not fixed or static at its point of origin, but must evolve with time; or, in other words, the Constitution is a “living document.” This argument was fleshed out in the greatest detail in Justice Kaul’s opinion, in a full section titled “The Constitution of India – A Living Document” (paras 23 – 49). Justice Kaul argued that the Constitution must be continuously updated to keep up with the times, and that it has certain “core values” that “manifest themselves differently in different ages, situations and conditions.” (para 40) The values themselves were derived from the Preamble, with dignity given pride of place.

The arguments against the living constitutionalism approach to constitutional interpretation are well-known, and need not be rehearsed here. What is disappointing about Puttaswamy is that (with a couple of exceptions that I shall come to), the judges did not address them at all. In one paragraph, Justice Kaul pointed out that the framers themselves were aware of changing realities, and consequently, faithfulness towards their “original intent” would itself require a dynamic and innovative approach to constitutional interpretation (para 31). That is not enough, however: one cannot simply argue that the Constitution should be interpreted dynamically, and stop at that. There must be standards that guide this organic interpretation, standards that go beyond invocations judicial wisdom. The Preamble itself, with its broad principles, underdetermines this enquiry. From time to time, the judgments referred to the freedom struggle (paragraphs 111 and 115, Chandrachud J; paragraph 18, Chelameswar J), but once again, there was little discussion on what, precisely, was the connection between the freedom movement, and the interpretation of the Constitution.

The problem is quite simply this: we may agree that the Constitution lives and grows, but in which direction ought it to grow, at what pace? How do we know what is “organic growth”? To simply say that the Constitution adapts and evolves with the times, and that judges are charged with updating it, is not enough (what if, for example, the change in social attitudes is towards the contraction of rights instead of their expansion?). There needs to be an interpretive approach that is grounded in the constitutional text, its structure, its history, and the social and political circumstances in which it was drafted, and the broad problems that it was designed to respond to.

It is perhaps in Chelameswar J.’s separate opinion that we do see an effort towards developing such a theory. In Footnote 19 of his opinion, during his discussion of the Constitution’s dark matter, he observed that:

“This court has progressively adopted a living constitutionalist approach. Varyingly, it has interpreted the Constitutional text by reference to Constitutional values (liberal democratic ideals which form the bedrock on which our text sits); a mix of cultural, social, political and historical ethos which surround our Constitutional text; a structuralist technique typified by looking at the structural divisions of power within the Constitution and interpreting it as an integrated whole etc. This court need not, in the abstract, fit a particular interpretative technique within specific pigeonholes of a living constitutionalist interpretation. Depending on which particular source is most useful and what the matter at hand warrants, the court can resort to variants of a living constitutionalist interpretation. This lack of rigidity allows for an enduring constitution.”

In the same footnote, he then pointed out:

“The important criticisms against the living constitutionalist approach are that of uncertainty and that it can lead to arbitrary exercise of judicial power. The living constitutionalist approach in my view is preferable despite these criticisms, for two reasons. First, adaptability cannot be equated to lack of discipline in judicial reasoning. Second, it is still the text of the constitution which acquires the requisite interpretative hues and therefore, it is not as if there is violence being perpetrated upon the text if one resorts to the living constitutionalist approach.”

This is crucial, because it acknowledges that no credible interpretation of the Constitution can afford to ignore its text. Issues of structure, purpose, political ethos, and framework values must supplement the text, but they cannot supplant it (readers will recognise a broad similarity with Dworkin’s approach of “law as integrity” here). Judicial discretion is, of course, a central part of the interpretive exercise, but that discretion must be shaped by the constitutional text, structure, history, and overall purposes. It cannot simply reflect a judge’s view of how the Constitution is to be updated with the changing times, within the over-broad framework of the Preamble.

Natural Law

Both the plurality and Justice Nariman expressly overruled the notorious judgment of the Supreme Court in ADM Jabalpur vs Shivakant Shukla. Recall that in ADM Jabalpur, the Court had upheld the suspension of habeas corpus during a proclamation of Emergency, on the basis – among other things – that the source of rights was confined to the four corners of the Constitution itself – and given that the Constitution itself authorised their suspension in an Emergency, there was no basis on which detainees could move Court and claim any rights. In Puttaswamy, a majority overruled ADM Jabalpur on this specific point, and held that there were certain rights that could be called “natural rights”, inhering in people simply by virtue of their being human. The Constitution did not create such rights, but only recognised them.

In a full section dedicated to this argument (Section G), Chandrachud J, writing for the plurality, observed that “privacy is a concomitant of the right of the individual to exercise control over his or her personality. It finds an origin in the notion that there are certain rights which are natural to or inherent in a human being. Natural rights are inalienable because they are inseparable from the human personality. The human element in life is impossible to conceive without the existence of natural rights.” (para 40)

Variants of this statement were repeated at various points in his judgment, and in paragraph 119, ADM Jabalpur was overruled on this ground.

In his separate opinion, Justice Bobde noted that “privacy, with which we are here concerned, eminently qualifies as an inalienable natural right, intimately connected to two values whose protection is a matter of universal moral agreement: the innate dignity and autonomy of man.” (para 12) Justice Nariman observed that “we do not find any conflict between the right to life and the right to personal liberty. Both rights are natural and inalienable rights of every human being and are required in order to develop his/her personality to the fullest.” (para 45) He also overruled ADM Jabalpur on this point (paras 90 and 91). Justice Sapre held that “in my considered opinion, “right to privacy of any individual” is essentially a natural right, which inheres in every human being by birth. Such right remains with the human being till he/she breathes last. It is indeed inseparable and inalienable from human being. In other words, it is born with the human being and extinguish with human being.” (para 25) And Justice Kaul noted that “primal natural right which is only being recognized as a fundamental right falling in part III of the Constitution of India.” (para 76)

But if privacy is a “natural right” whose existence is only recognised by the Constitution, then two questions arise, neither of which (in my view) were answered satisfactorily by the bench. The first is: how do you determine the content of natural rights? In the history of natural law theorising, at one point, the doctrines of the church were believed to be the source of natural rights; at another point, human reason replaced canon law; Justice Bobde referred to “universal moral agreement”; and Justice Nariman invoked international law (in particular, the Universal Declaration of Human Rights). In my view, however, if the judgments were going to take the significant step of overruling ADM Jabalpur, and unequivocally stating that the source of (at least a few) fundamental rights is natural law, then it was incumbent upon them to develop at least the basics of an interpretive approach towards identifying the content of natural law. We face here the same problem as we did with the living constitutionalism approach: ultimately, without clear standards, there is too much power in the hands of the judges. Today, liberal judges may seek to expand rights by incorporating a “natural right” to privacy, that predates and pre-exists the Constitution; but what is to stop a judge, in the future, from invoking his own conception of natural rights (or, for that matter, natural duties) to contract liberty?

Interestingly, Justice Chelameswar seemed to recognise the problem, because throughout his judgment, there is not one reference to “natural rights”. This was surely not an unintentional omission. And indeed, in para 19, he noted that:

“To comprehend whether the right to privacy is a Fundamental Right falling within the sweep of any of the Articles of Part-III, it is necessary to understand what “fundamental right” and the “right of privacy” mean conceptually. Rights arise out of custom, contract or legislation, including a written Constitution.”

He then went on to observe that:

“All such Constitutions apart from containing provisions for administration of the State, contain provisions specifying or identifying certain rights of citizens and even some of the rights of non-citizens (both the classes of persons could be collectively referred to as SUBJECTS for the sake of convenience). Such rights came to be described as “basic”, “primordial”, “inalienable” or “fundamental” rights. Such rights are a protective wall against State’s power to destroy the liberty of the SUBJECTS.” (para 20)

This is a crucial paragraph, because while Chelameswar J used the same language as his brother judges had used (“primordial” and “inalienable”), he consciously used it not to signify natural rights that pre-existed the Constitution, but rights that, after Constitutions had been created “came to be described as” primordial and inalienable. And again:

Fundamental rights are the only constitutional firewall to prevent State’s interference with those core freedoms constituting liberty of a human being. (para 40)

Consequently, on the issue of whether natural rights, which pre-date the Constitution, are the sources of fundamental rights, the Court was not unanimous; rather, it split 8 – 1, with Chelameswar J the lone dissent. This, however, raises another question: what if, tomorrow, a fresh constitutional convention was called, the Constitution replaced, and a new Constitution brought in to substitute it? What if that Constitution (for example) expressly stated that privacy was not a fundamental right, or expressly espoused an hierarchical, anti-egalitarian ordering of society? Would the natural rights continue to exist and be enforced by the Court, notwithstanding the terms of the new Constitution? On the majority’s view, the answer would have to be yes.

Perhaps, though, if things came to that, we’d all have more pressing worries.


Puttaswamy advanced two important theoretical propositions about constitutional law. The first was the doctrine of living constitutionalism, and the second was the endorsement of natural rights. I have my reservations about both propositions, but in this essay, my point has been that they needed a substantially stronger defence than what we find in Puttaswamy. That task, perhaps, is now left to future benches.

A Question of Sources

In a recent judgment dealing with the Domestic Violence Act, the Supreme Court, while dealing with the concept of stridhan, observed:

The next issue that arises for consideration is the issue of limitation. In the application preferred by the wife, she was claiming to get back her stridhan. Stridhan has been described as saudayika by Sir Gooroodas Banerjee in “Hindu Law of Marriage and Stridhan” which is as follows:- “First, take the case of property obtained by gift. Gifts of affectionate kindred, which are known by the name of saudayika stridhan, constitute a woman’s absolute property, which she has at all times independent power to alienate, and over which her husband has only a qualified right, namely, the right of use in times of distress.””

Gooroodas Banerjee was a 19th century jurist and judge of the Calcutta High Court. In the same book that the Supreme Court chose to quote with approval, he also wrote:

A woman is not regarded in Hindu law as an active party in marriage. In fact, she is hardly regarded as a party at all. Marriage is viewed as a gift of the bridge by her father or other guardian to the bridegroom: the bride, therefore, is regarded more as the subject of the gift than as a party to the transaction.” [pp. 45 – 46]

When dealing with a subject such as the law of marriage, it is not immediately obvious that an author’s views on one subject can be neatly segregated from his views on another (especially when both sets of views flow out of a particular conception of the nature of the marital relationship). There ought to be at least some explanation for why an author is cited as an authority on a subject, when at least a substantial part of his views are clearly out of sync with the founding principles of the Constitution as well as codified Hindu law (and, as Sudhir Chandra points out in Enslaved Daughters, p. 10, Goorodas Bannerjee’s views on marriage were contested even at the time).

The dangers of assuming expertise on a subject without even a cursory investigation, especially when the source is colonial, is neatly illustrated in the next paragraph of the same judgment. The Court notes:

“The said passage, be it noted, has been quoted Pratibha Rani v. Suraj Kumar and Another10. In the said case, the majority referred to the stridhan as described in “Hindu Law” by N.R. Raghavachariar and Maine’s “Treatise on Hindu Law”. The Court after analyzing the classical texts opined that:- ”It is, therefore, manifest that the position of stridhan of a Hindu married woman’s property during coverture is absolutely clear and unambiguous; she is the absolute owner of such property and can deal with it in any manner she likes — she may spend the whole of it or give it away at her own pleasure by gift or will without any reference to her husband.”

Here, the Court unthinkingly uses the term “coverture” as a referent of the marital relationship. As a matter of fact, “coverture” was a specific legal term referring to the subsumption of a woman’s legal status within that of her husband, upon marriage. Under 19th century common law, a woman lost her legal status upon marriage, and with it, the ability to hold property, to sue, etc. The system of coverture was overthrown after long suffragist struggles, and in India, of course, it is starkly at odds with the Constitutional scheme and the post-Independence codification of Hindu law.

In Pratibha Rani’s Case, the case referred to in the quotation, the Supreme Court uses the word “coverture” no less than eleven times (counting quotations). Gooroodas Bannerjee is quoted extensively, and throughout the judgment, the Court refers to the woman’s right to stridhan during “coverture”. In Krishna Bhattarjee (the judgment with which I began this post), the Court endorses Pratibha Rani, leading to an extremely odd situation where, in 2015, the Indian Supreme Court is using the term “coverture” to describe the marital relationship, and quoting as its source books authored during the colonial era.

All this indicates that there needs to be significantly greater attention paid to the question of sources. There is a volume of scholarship that deals with the impact of colonialism upon the legal system (see, e.g., Sudhir Chandra, Enslaved Daughters; Amrita Shodhan, A Question of Community; Anupama Rao, Caste Question, and many many more), and especially, about the manner in which “authoritative interpretations” of local laws came to be established. In view of how such interpretations were nested in, and drew from, a deeply unequal relationship, continuing to defer to colonial “authorities” in the post-Constitutional age without any further justification, is deeply problematic. There is no judgment to my knowledge, however, that has drawn upon historical scholarship to seriously ask questions about what sources ought to be taken as “authoritative” and, in particular, how Constitutional principles ought to guide such enquiries, given that the assumptions from which these authors operated were entirely at odds with the Constitution.

Hopefully, at some point, the Court will come around to asking these questions.


Transformative and Conservative Interpretation: Untidy Corollaries

(To Kunal Ambasta, fellow traveler on constitutional roads, fine human being and good friend.) 

In the last post, we explored the possibility of a Constitution serving two distinct purposes – conservative and transformative. Recall that a Constitution can be conservative in that it seeks to preserve, codify and entrench an existing set of values and institutions; or it could be transformative in that it seeks to replace them. We noted that large parts of the American constitution are examples par excellence of conservative provisions, whereas our own Articles 15 (non-discrimination) and 17 (abolition of untouchability) are paradigm cases of transformative provisions.

One enquiry was simplified by the fact that in our model, the American constitution, the conservative/transformative distinction, in large part tracked a more familiar distinction between individual rights and structures of governance. Yet things need not always be that simple (and the American constitution, after its reconstruction amendments granting equal citizenship to blacks, is certainly not that simple). There is no reason why, within the same set of rights, some can be transformative, and some conservative. Here is an example: if Ranjit Udeshi was right in upholding the ban on Lady Chatterley’s Lover (and I do not think it was), its only justification would be that Article 19(2)’s morality clause sought to conserve and codify existing dominant conceptions of “public morality“. Here you have a classic case of transformative and conservative elements blending not just within the same bill of rights, but within the same provision: Article 19(1)(a) is transformative in the sense that it grants citizens the right to free speech that they didn’t have under the Empire or previously; while at the same time, it restricts the scope of that right by entrenching an existing value system into law.

What, then, does this distinction further entail? Here is one suggestion: many of us, when we first enter the labyrinth of constitutional law, choose as our own Ariadne’s ball of thread, a particular interpretive methodology to help us navigate. We then defend our chosen method (or sometimes, combination of methods) against all others by invoking various arguments grounded in democracy, the separation of powers, or just plain common sense. Originalism suffers from the dead hand problem, for instance; “living tree” doctrines, on the other hand, would seem to vest too much power in unelected judges to substitute their own moral preferences for the majority’s; textualism makes a mockery of how language is used by refusing to take into account the rich surrounding context, both within the document and historical; structural analysis is unfaithful to the framers by imposing coherence and unity upon what was actually a patchwork quilt of bargain and compromise; and so on. But if Constitutions can themselves serve at least two very different – indeed, opposite – purposes, then perhaps there is no one correct method – or combination of methods – of interpretation. Perhaps the right way of interpreting a constitutional provision depends upon whether it is conservative or transformative, and to what extent.

Here is one trivial way in which this is true: a transformative provision obviously cannot be interpreted by invoking traditional values. If the point of inserting a free speech clause into the Constitution was transformative in that it meant to ensure that a dominant class would no longer be able to silence opinions that it perceived to be immoral or harmful, then it makes no sense to read 19(2)’s morality clause as “public morality” – because all that does is to replace the British with whatever class whose stated morals the Court decides to count as “public“.

There are also, however, subtler issues at hand. One dominant form of constitutional interpretation, championed by Justice Antonin Scalia at the US Supreme Court, is that of “original meaning” (the term is self-explanatory). Original meaning, I would submit, is a powerful interpretive method when we’re dealing with conservative constitutional provisions: because the objective is to preserve an existing set of values, what words meant at the time the provision was drafted would, indeed, be the best indicator of what content the values themselves had, and were meant to continue to have. On the other hand, originalism is inadequate to deal with transformative provisions, for the following reasons: first, a simple issue of language. While one is trying to transform a set of values, one’s tools to do that remain only words, and words not only carry with them the accumulated baggage of decades, sometimes even centuries, of consistent usage, but are also often implicit carriers of value. So it is quite possible – indeed, even likely – that the full transformative force of a concept will simply fail to be captured by extant patterns of language (“equality” being a classic example). 

Secondly, transformative provisions raise an issue of consistency. Here is an example: the framers wanted to transform a society that discriminated in all sorts of invidious and destructive ways by expressly writing a non-discrimination principle into law; they omitted sexual orientation from that list because they believed, on the basis of extant medical evidence, that homosexuality was a disease. That claim has been comprehensively debunked by medical research. So now, in 2013, what interpretation of Article 15 would be more faithful to the framers’ transformative vision? What interpretation would ensure that the Article 15 remained principled and consistent with itself? Naturally, one that read sexual orientation into Article 15 (as a parallel analogy: suppose the contract law of State X decided to shift from oral contracts to “written and printed contracts”, on the ground that it was easier to prove tangible agreements; does it make any sense to deny contractual protection to one done on microfilm?) . Note, however, that such a problem would never arise if the provision was simply conservative, because there you’re taking a set of values as given, without worrying about whether they are consistent with each other.

And lastly, consider a more speculative argument: a transformative constitutional provision is, among other things, a rebuke to illusions of infallibility; it is an admission that a particular generation got it wrong – wrong either in its identification of values, or in its attempt to entrench that value set against change by future generations; so wrong, in fact, that not just a modification, but a transformation is in order. It would be odd, then, that a provision predicated upon fallibility would arrogate to itself assumptions about its own infallibility. A transformative constitution – or rather, transformative constitutional provisions therefore, by virtue of their character, their origins and their philosophy, both invite and demand a dynamic, responsive and flexible interpretation – not a rigid, static and originalist one.

But even this isn’t the whole story, because as we discussed before, transformative constitutions in colonial contexts present a considerably more complex picture because often, alongside transforming values from the colonial to the post-colonial, they seek to conserve a perceived vision of the pre-colonial, an idea of the nation before it was conquered. At this point, I freely confess that my own grip on what interpretive strategy fits best begins to be cast off its moorings; what I would like to argue definitively, though, is that our interpretive approach to the Indian Constitution (beyond merely the question of whether to invoke traditional values in interpreting it) depends upon a detailed analysis questioning which parts of it are conservative, which parts transformative, and in what way.