Coronavirus and the Constitution – XX: Parliamentary Accountability

We have already discussed on this blog how the government’s measures to contain the coronavirus outbreak at both the state and union levels have bypassed legislative accountability (here). In this post, I want to expand the discussion on legislative accountability by exploring three points: (1) the legislature’s role in placing temporal limits on the executive’s emergency powers; (2) how involving the legislature incentivises policy scrutiny and increases transparency; and (3) understanding whether Indian legislatures could have continued to function. I use the term ‘parliamentary’ accountability, but the argument is equally applicable to legislative assemblies in the states. The goal of this discussion is not to suggest that parliament continuing to function would have served as a silver bullet to bad policy or governmental overreach. Rather, the idea is to explore how the democratic structures of our Constitution can act as a restraint on government power – making it imperative that we demand more from our elected officials.

The legal sources of the government’s measures are the Disaster Management Act 2005 (“DMA”) and the Epidemic Disease Act 1897 (“EDA”). Under these two laws, the government has issued several ‘guidelines’ that form the legal framework of India’s ongoing ‘lockdown’. We often think that legislatures, with their lengthy debates, committee procedures, and voting are cumbersome bodies not suited to the decisive action required in an emergency. The truth of this is debatable. For example, the numerous clarifications and addendums to the Ministry of Home Affairs’ circulars demonstrate the value of debate and committee scrutiny. However, the choice of the DMA and the EDA become especially significant when we consider the two courses of action the Constitution itself provides for dealing with extreme situations calling for immediate action: (1) declare a constitutional emergency; or (2) pass an ordinance. Both a constitutional emergency and the passing an ordinance require that the legislature (at some future point) ratify the government’s actions. Therefore, we can conclude that even the most extreme situations contemplated by the Constitution involve some legislative oversight. The DMA and the EDA however bypass the legislative branch altogether resulting in a “rule by executive decree”. This has some important consequences.

The temporary nature of emergencies

Emergency powers are fundamentally temporary. The term ‘derogation’ is often used to explain the relaxing of some legal requirements during periods of crisis – but such relaxations are essential exceptions to the ordinary rule of law and all derogations have a recognised beginning and most importantly an end. When the crisis subsides, the political and legal system must return to normal. When a constitutional emergency is proclaimed under Article 352 of the Constitution, the emergency automatically ceases after one month if not placed before Parliament and (if approved) again automatically ceases after six months unless re-approved by Parliament. Even ordinary legislation granting wide emergency powers such as the U.S. PATRIOT Act (enacted in 2001 to fight terrorism post the 11 September attacks) contained a ‘sunset’ clause providing that large parts of the Act would cease to operate in 2005 unless renewed. An even more poignant example is the U.K.’s Coronavirus Act. Before it was passed, the (then) Coronavirus Bill granted the government emergency powers for two years. After the opposition objected, the government agreed to amend the Bill – providing that the House of Commons must debate and renew emergency powers granted by the Bill every six months. In evaluating the Coronavirus Bill, the House of Lords’ Constitution Committee noted: “Two years would have been too long for these powers to have operated without reapproval by Parliament and we welcome the cross-party agreement to reduce the period to six months” (here). The rationale behind granting the executive sweeping emergency powers is therefore always contingent on (1) the existence of a crisis; and (2) a return to normalcy at the earliest possible instance.

The following questions now become relevant. Who declares the start of an emergency? How long will the emergency last? Does it need to be renewed? Who is responsible for its renewal? Can the legality of the declaration be challenged in a court?

Precisely because an emergency vests significant powers in the executive, it makes sense that another body should be responsible for the declaration of an emergency. Otherwise what stops the executive from invoking an emergency in manner that is at best frivolous, and at worst self-serving. For example, a government could declare an emergency and use its emergency powers to silence political dissidents. In the U.S. even though the executive is tasked with all operational aspects of fighting a war, the executive cannot take any action unless the legislature (Congress) first passes a declaration of war. The U.K.’s unwritten constitution contains no notion of emergency powers and the executive is entirely reliant on the legislature first passing a legislation enabling the executive to exercise any additional powers. The same principle applies to renewals, it makes sense that a body other than the executive is responsible for renewing the executive’s emergency powers. Requiring another body to determine whether a situation is truly exigent and how long it will likely last for is an essential check against the abuse of emergency powers by the executive. This is a significantly stronger check than having courts adjudicate on the legality of the emergency proclamation after it is made as the damage may already be done by the time the court delivers a verdict (especially at the pace the Indian Supreme Court currently hears politically sensitive cases).

The Indian Constitution does envision Parliament playing a crucial role in the declaration of constitutional emergencies by requiring that all emergency proclamations be placed before Parliament within one month. Admittedly Parliament’s record of acting as a check on the executive with respect to emergency proclamations is a poor one – in July 1974 Parliament ratified the Indira Gandhi government’s emergency proclamation leading to three years of systemic governmental overreach. One may assume given India’s model of parliamentary democracy (where the executive’s party commands a majority in the legislature), legislative ratification is a forgone conclusion. While the individual judgement of parliamentarians has been severely curtailed by the anti-defection law, there still exists the chance (especially in coalition governments) that the government will have to work harder to appease the various factions of its own support base. Moreover, having even a token debate in parliament is a significant improvement on the current situation.

It is important to understand that the DMA requires no formal declaration of emergency (even under the Act’s own framework). Therefore, the ground reality is that the executive has been granted sweeping emergency powers, the courts are virtually at a standstill and public gathers have been outlawed – all without an emergency being ‘declared’ or any justification for when exactly the coronavirus became an emergency or any indication of when the emergency will end. (The use of the term ‘notified disaster’ was used widely in the media but has no relation to the beginning or ending of the government’s emergency powers and only concerns the use of disaster relief funds.) It is particularly important to recognise that the coronavirus outbreak may be with us for a while. The nationwide ‘lockdown’ has already been extended twice. Much like the ‘war on terror’, what seemed necessary as an immediate response can perpetuate a permanent derogation from the rule of law. In a Parliament approved emergency, ratification by Parliament may have been (and with good reason) a foregone conclusion in March, but three, six or nine months later the government may have faced some pressure to justify a renewal of its emergency powers. Under the DMA however, they face no such pressure to justify a continued resort to emergency powers. Therefore, it is crucial to create temporal boundaries on the invocation of emergency powers and it is submitted that ratification by parliament is one method to do so.

Incentivising parliamentary scrutiny

The ratification of emergency proclamations and ordinances by Members of Parliament creates a powerful incentive for them to scrutinise government action and can require the government to moderate its position. During the coronavirus outbreak Italy used ‘Decree-Laws’ – a decree issued by the government which must be placed before the Italian Parliament within sixty days (here). Similarly, in India, an ordinance cannot be enacted unless Parliament is not in session and must be placed before Parliament upon its reassembly. The ordinance expires unless expressly passed as a piece of legislation by Parliament within six weeks of Parliament reassembling. What this means is that parliamentarians are on the hook for the legal content of these measures. While this may be less of an incentive for members of the ruling party, it creates an incentive for members of the opposition to scrutinise the legislation. Parliamentarians are held electorally accountable for their votes for or against a legislation and draconian measures by a government are unlikely to pass without some form of debate and scrutiny when brought before Parliament. For example, recently the opposition forced multiple adjournments in the Lok Sabha until the government agreed to discuss the communal violence in Delhi (here).

This brings us neatly to the point of parliamentary questions and debate – where members of the opposition have unfettered access to government ministers. Although the actual mechanisms of questions and the debate (or ‘zero-hour’) in Parliament are worth an independent exposition a few key points may be made here. The first is the nature of the threat we are currently facing. Unlike a war with another nation or the fight against ‘terrorism’ where increased transparency may hamper the government’s efforts to defeat the threat – in a public health crisis more transparency is always better. The government should disclose the scientific data on which it bases its decisions. This will not hamper the fight against the coronavirus but will expose bad decision making. Second, unlike questions asked in a newsroom or addressed on social media, questions asked in Parliament form part of the official record of the House and can be used to hold ministers accountable (here). Third, unlike the news media, Members of the legislature cannot be silenced by the courts (see Articles 105 and 194 of the Constitution under which Members enjoy legislative privileges). The Supreme Court’s recent efforts to silence ‘fake news’ and instead mandate reliance on information produced by the government and the statements of the Solicitor General of India make this particularly relevant. Lastly, parliamentary proceedings are broadcast live on national television and on the internet.

There is a deeper point to be made here. Government transparency, and ministerial accountability is fundamentally tied to the broader question of electoral accountability. During proceedings in parliament, it is government ministers who answer questions. This allows voters to evaluate the performance of the government first-hand in an unfiltered manner. To date, a Joint Secretary from the Ministry of Health has given almost all the coronavirus press briefings. The Joint Secretary is an unelected official and making such an official the face of the crisis disassociates ministerial responsibility from the actions of the government in combatting the crisis. Even in the U.S. where the President is not politically accountable to the legislature (outside the extreme case of impeachment), as the head of the executive the President has continued to deliver daily press conferences and answer questions – in stark contrast to the head of the executive in India. Neither the Health Minister not the Prime Minister is legally obligated to give press briefings, but their refusal to do so makes Parliament one of the last forums where the government can be asked hard questions.

Could Parliament have continued to function?

This post would not be complete without addressing the elephant in the room. On 23 March 2020 Parliament was adjourned over fears that the gathering of Members would act as a vector for transmission. Two questions must be answered: (1) can Parliament legally meet outside its official seat; and (2) what the alternative options that Parliament can adopt are. Article 85 of the Constitution permits the President to summon Parliament “at such time and place as he thinks fit” and Rule 11 of the ‘Rules of Procedure and Conduct of Business in the Lok Sabha’ states that “A sitting of the House is duly constituted when it is presided over by the Speaker or any other member competent to preside over a sitting of the House under the Constitution or these rules.” (Rule 10 of the Rajya Sabha rules contains an analogous provision.) Therefore, the short answer is that the place of meeting does not matter so long the President summons Parliament and the Speaker, or other competent person, presides over Parliament. (Interested readers may refer to Shubhankar Dam’s article on precisely this point. He cites historical instances where the ‘place’ of meeting has been in dispute.)

Therefore theoretically, Parliament can meet at an alternative location that is more conducive to social distancing norms or even potentially online. Some comparative context is useful here. Several countries, Australia, New Zealand and Germany amongst them, have struggled to keep their legislature’s open and have adjourned them during the present outbreak. However, Congress in the U.S. has met several times to pass emergency economic legislation. The House of Commons in the U.K. has met virtually, with Members asking questions from remote locations. Similarly, the Canadian Parliament has managed to meet virtually. Perhaps most tellingly, the Indian Supreme Court and various High Courts have managed to implement protocols to allow virtual hearings for thousands of litigants since the beginning of the ‘lockdown’. There would certainly be some teething troubles, but it would not be beyond the realm of possibility to assume that the Indian Parliament could continue to function during the ‘lockdown’. I will end this discussion with two points. As I noted earlier, Parliament sitting is not a silver bullet to all the country’s ailments – given the legislative frameworks which already exist under the DMA and the EDA and the ever present anti-defection law Parliament’s role would certainly be limited. However, eliminating Parliament from governance during an emergency is neither contemplated by the Constitution nor is should it be condoned by the voters who elected this Parliament. At the very least, the limited benefits of Parliament sitting highlighted here could be secured.

Concluding thoughts

Notions of accountability flowing from a separation of powers model focus on preventing the centralisation of power in one body. For example, the body making the law should be distinct from the body implementing or interpreting the law. However, this model fails to incentivise those in power to listen to citizens. Legislators in the minority can blame those in the majority, the government can blame the judiciary for curbing its measures, and the judiciary can blame an overzealous legislature or the executive (see the eternal dispute over judicial appointments).

Competition for power through democratic structures creates a vital link between citizens and their agents in government. It forces the three wings to look beyond horizontal competition inter-se the executive, the legislature and the judiciary and consider a vertical balance of power where rival power seekers must convince citizens of their ability to effectively govern. This is particularly effective in a plural society such as India where there exists a multiplicity of groups with cross-cutting interests and membership, forcing those in power to cater to a wide range of interests. Parliamentary accountability is one of the best examples of how competition for power can further the interests of citizens. ‘Politicking’ during a crisis may be frowned upon but is also an excellent method to ensure that the citizen’s preferences are accounted for in governance. It forces those in power to accommodate the needs of more diverse interests or risk losing the mandate to govern. A healthy legislative body should ensure this robust competition for power. The strength of the Indian parliament as a deliberative body which can hold the government accountable has been in decline for some time, but the present crisis should not be its death knell.

Coronavirus and the Constitution – V: Financial Emergencies [Guest Post]

[This is a guest post by Bhargavi Kannan.]


As the novel coronavirus COVID-19 holds the country, its people and its economy to ransom, the Prime Minister has called for a 21-day nation-wide lockdown to curb the unrestrained spread of the pandemic. The Finance Minister has announced a relief package worth INR 1.70 lakh crore, in a bid to alleviate the immediate economic impact of COVID-19 on the financially weaker sections of the society. Various States have also announced a slew of relief packages. The Reserve Bank of India has, on its part, introduced several measures to increase liquidity and ease banking regulations.

A few days ago, an article was published on a website named inventia.co.in, claiming that the Prime Minister was likely to announce ‘financial emergency’ under Article 360 of the Constitution of India. This created quite a furore, inviting the Press Information Bureau to tweet that the story was “malicious and fake” and that there was no such plan. Finance Minister Nirmala Seetharaman also refuted the report during her press conference.

In this backdrop, a Public Interest Litigation has come to be filed before the Supreme Court by a think tank – Centre for Accountability and Systemic Change (CASC), asking for the declaration of financial emergency under Article 360. The thrust of the plea appears to be towards unification of efforts by the Centre and the State in an effort to fight the ‘global epidemic’, particularly in view of divergent and arbitrary steps being taken by States in exercise of powers under Section 144 of the Code of Criminal Procedure, 1973; the Epidemic Diseases Act, 1897; and the Disaster Management Act, 2005.

The question that begs to be answered is whether the declaration of a financial emergency, will in fact effectively address all the issues identified by the think tank. While the Petition rightly asks for a ‘unified’ central command in the fight against COVID-19, the scope of the President’s power under Article 360 may not be as wide as one may perceive.

Article 360 titled ‘Provisions as to financial emergency’ enables:

  • The President to proclaim financial emergency, if he is satisfied that the financial stability or credit of India or of any part of the territory thereof is threatened;
  • The executive authority of the Union to direct any State to observe such canons of financial propriety as may be specified in the directions;
  • The executive authority of the Union to give “such other directions” to the States “as the President may deem necessary and adequate for the purpose”; and
  • The President to issue directions for the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of the Union including the Judges of the Supreme Court and the High Courts.

Article 360 has not been pressed into service thus far and it’s scope and ambit remains to be tested. With virtually no jurisprudence detailing the contours of Article 360, one may look to the Constituent Assembly Debates to gather some insight into the nature of powers that the President and the Central Government may come to wield if this provision is invoked.

Article 360, or draft Article 280A as it then was, came to be introduced by Dr. B.R. Ambedkar quite belatedly on the 16th of October, 1949, during the tail end of the second reading of the Draft Constitution. Dr. Ambedkar was met with stiff opposition when he sought to introduce the provision which, according to some, proposed to “introduce a new kind of emergency unknown in any system”.

Dr. Ambedkar explained that draft Article 280A drew inspiration from the National Recovery Act of the United States, passed in the year 1933 to combat the aftereffects of the great depression. The National Recovery Act could never be effectively used, since it was struck down by the United States Supreme Court, soon after its enactment. To prevent such a situation from befalling upon any prospective Indian legislation, the framers of the Constitution deemed it fit to introduce financial emergency provisions in the Constitution itself.

After that brief introduction, the Chairman invited the members to present amendments, if any, to the draft provision. The first member to offer suggestions was Prof. Shiban Lal Saxena, who felt that the powers proposed to be conferred on the Centre needed to be enhanced further. Saxena thought it fit to enable the Parliament to make laws in respect of subjects contained in the State List as if they were subjects in the Concurrent List during the emergency period since “It is quite possible that the State may be forced by some legislation of their own, by their own laws to act in a particular manner and may not have the legal authority to carry out the directions of the President… a mere order will not enable the President to pass orders or to have them carried out because they may conflict with the laws of the States and it may not be possible for the President to get those laws changed”. However, since the amendment proposed to confer sweeping powers on the Parliament, it was rejected when put to vote.

Sh. H. V. Kamath, famous for his theatrics and frequent interjections, vehemently opposed draft Article 280A. He felt that an emergency provision like this could be invoked only in the dire strait of a financial breakdown or economic disaster. Kamath apprehended that the provision as presently worded may encourage the President to consider even situations of State deficit budgets as a threat to financial stability. Mr. R.K. Sidhva later responded to Kamath, stating: “If we have a President who really declares, because of a deficit budget that there is financial emergency, then I must say that that President is not worthy of occupying the high place that he would occupy. Kamath’s amendments thus came to be rejected. Given that the government is not considering proclamation of financial emergency even when being faced with unprecedented economic breakdown, Kamath’s apprehensions may have been misplaced.

Kamath ceded the floor to Sh. Brajeshwar Prasad, who was a strong proponent of empowering the Centre and demanded that an emergency, if declared, be permitted to last till the President deemed it fit. His suggestions were not accepted by the Assembly, since his amendments stemmed from a complete lack of faith in the Parliament and his belief that “For a long time to come, the executive and the executive alone will play a dominant part in our national life.

With no further amendment forthcoming, the floor was thrown open for discussion. Mr. R.K. Sidhva defended the provision in right earnest and commended the drafting committee for having the foresight to realize that such a situation may challenge independent India in the future. He said: “But a real emergency might arise whereby the financial stability may be affected, and we will be perfectly justified if we have an article like this, and I have no doubt at all in my mind that this article then would be very helpful”.

Dr. Ambedkar however did not find a supporter in Pandit Hirday Nath Kunzru, who, like Kamath, passionately criticized the provision. However, unlike Kamath, Kunzru was of the view that draft Article 280A was toothless. Perceiving the provision as one enabling nothing more than spending cuts, he said: “The whole object of the amendment seems to be to reduce expenditure and to prevent the provincial Governments from giving up any of their existing sources of revenue. Can an amendment with this purpose be said by any stretch of language to resemble even remotely the National Recovery Act of the United States?”

 Viewing the provision as displaying complete lack of trust in the ability of the provinces to manage their own finances, Kunzru quipped: “Is there any reason why, disregarding all past experience, we should show complete distrust of the provinces and treat them as though they were children and the President a village school master?” Kunzru believed that this provision, for all practical purposes, discarded the principle of federalism enshrined in the Constitution and signalled the move towards a unitary Constitution, since “The Centre will acquire complete control over the budget of the province and will be able to dictate both to the provincial government and to the provincial legislature what financial policies they should adopt”.

At this juncture, Dr. K.M. Munshi stepped in to diffuse the situation and offer his support to Dr. Ambedkar. Responding to Pandit Kunzru’s apprehensions, Dr. Munshi said that there would not be any multiplication of functionaries, since “the Centre, when it acts under this article 280A, will act through the functionaries of the State itself.” Emphasising the need for this provision, Dr. Munshi said:

In normal circumstances, when the finances of the country are stable, so long as the credit of the country stands, there is no chance of this article being brought into force. It is only when there is a financial emergency that it has to be brought into force and till then the provinces are completely free to do what they like. The attitude is not “school masterly” as Suggested. The attitude is that the Centre will step in at the time when there is a breakdown in the financial structure of the country.

This article in the Constitution is the realization of one supreme fact that the economic structure of the country is one and indivisible. If a province breaks financially, it will affect the finances of the Centre: if the Centre suffers, all the provinces will break. Therefore the inter-dependence of the provinces and the Centre is so great that the whole financial integrity of the country is one and a time might arise when unitary control may be absolutely necessary.… In a financial emergency there cannot be a greater privilege than that all financial affairs shall be controlled and directed from the Centre, as put forward in 280A. That is the object, and I submit it is an object without which the Constitution would remain incomplete and I invite the House to carry this article unanimously.

 

The members of the Constituent Assembly heeded Dr. Munshi’s appeal and approved the article without any amendments.

While respecting the need for States to cede control to sustain the financial integrity of the country, the framers of Article 360 took great care to ensure that unbridled powers were not conferred on the Centre. In rejecting the amendments proposed by Saxena, for instance, the Constituent Assembly sought to prevent a complete takeover of State legislatures by the Centre and restrict the Centre’s involvement to the issuance of directions. However, the possibility of conflicts between the directions of the Centre and State laws, as pointed out by Saxena, remained to be addressed.

Saxena appears to have had the foresight to anticipate issues which the think tank is presently complaining of. Matters like public order, police, public health and sanitation, hospitals and dispensaries, production, supply and distribution of goods, to name a few, fall under the State List. It would be interesting to see how the Centre deals with such conflicts, if Article 360 is ever invoked.

One thing, however, emerges clearly from the debates. The directions that the Centre may issue in exercise of its powers under Article 360 can only pertain to financial matters. The issues pointed out in the petition filed by the think tank, including differences in approach in implementing S. 144 and arbitrary police action, may remain unaddressed, even if Article 360 comes to be invoked.

Be that as it may, if financial emergency is indeed proclaimed, we only hope that the Centre remembers Sidhva’s words:

I am confident that the President, whosoever he may be, he will exercise his power rightly, and interpret this article in the right sense and in the right manner and for the benefit of the country and the benefit of the people of this country. With these words, I support the amendment that has been moved by Dr. Ambedkar, article 280A.

Coronavirus and the Constitution – III: The Curfew and the Quarantine

To talk about civil rights in the midst of a global pandemic may seem out of place. However, as the Kenyan legal scholar Joshua Maldizo Nyawa reminded us recently,  Lord Atkin’s legendary dictum – that “amidst the clash of arms, the laws are not silent” – applies as much to a public health crisis as it does to times of war or to Emergencies. In fact, it is precisely because of the sweeping powers that governments arrogate to themselves during times of crises, that it becomes even more important to scrutinise the legality of their actions; and this importance is accentuated by that fact that often, those sweeping powers tend to entrench themselves into the legal landscape even after the crisis has passed.

The Curfew

The most sweeping impact upon rights, of course, is of the nation-wide twenty-one day “lockdown”. The lockdown has affected both the freedom of movement (through an effective – if not formal – curfew, and more on that later) as well as the freedom of trade. The exact scope of the lockdown has been the subject of much confusion, as it is the product of at least three intersecting sets of legal regimes.

First, at the central level, the government has invoked the National Disaster Management Act. Section 10 of the NDMA authorises the central authority to issue guidelines and directions to the several state governments with respect to addressing disasters. The Authority’s Guidelines – issued on 24th March 2020, and supplemented by various addenda from time to time – required a closure of government offices, commercial establishments, (with certain exceptions), industrial establishments, transport services, hospitality services, places of worship, large gatherings, and so on. Note that the NDMA Guidelines do not themselves impose a “curfew”. The closest they come to prohibiting individual movement is through the bar on “social/political/sports/entertainment/academic/cultural/religious function/gatherings.” Neither “functions” nor “gatherings” have, however, been defined. In addition, Guideline 14 requires Incident Commanders to “issue passes for enabling essential movements“, while Guideline 15 notes that these restrictions “fundamentally relate to movement of people.” As indicated above, however, the impact of the Guidelines upon the movement of individuals is – if at all – incidental (through the closure of public, commercial, and private spaces). The Guidelines do not themselves prohibit or restrict individual movement.

Secondly, several state governments have invoked the 1897 Epidemic Diseases Act, a legislation that grants to the states formally unlimited powers to prevent the outbreak or spread of an epidemic. Consider, for example, Regulations passed by the Maharashtra state government on 13th March, 2020, providing for isolation and quarantining of individual with a travel history, the sealing of specific areas from where Covid-19 has been reported, the banning of mass congregations, and so on. These Regulations intersect more closely with the third legal regime, which is separate Section 144 orders passed by individual magistrates/Commissioners of Police.

As many of the 144 orders are not publicly available, it is difficult to glean the exact scope of the restrictions that have been imposed in different parts of the country. What is clear, however, is that under law, there is no “nationwide curfew” at present; the NDMA Guidelines do not make any mention of a curfew, and even EDA Regulations such as those passed by Maharashtra impose a ban on gatherings, but not on individual movement. It should also be evident – in my view – that a ban on individual movement – an actual nationwide curfew – would be disproportionate. Recall that Covid-19 spreads through direct contact or close proximity; public health guidelines require “social distancing” (at a stipulated distance of two metres) for individuals in general, and self-isolation and quarantining for people with symptoms. For this reason, containment orders in other jurisdictions are more specific in this regard: the United Kingdom, for example, has issued Guidance that prohibits gatherings of more than two people outside, and allows individual movement only for good reason (such as exercise, buying essential items, and so on). The absence of such specificity in the intersecting legal regimes – as discussed above – has lead to a lot that has been lost in translation at the implementation level, with reports of policemen physically assaulting individuals for being out on the streets.

It is also important to note that neither the NDMA nor the Epidemic Diseases Act require that the government’s decisions be based on specific and verifiable scientific advice. An important limb of the proportionality standard – where rights are infringed – is that the measure be necessary to achieve the State goal (in this case, containing the “disaster” or the “epidemic”). There has to be, therefore, a strong means-ends relationship between the measures taken by the government, and the goal of containing the epidemic – a relationship that, for obvious reasons in such cases, has to be founded on scientific advice. This is an important shortcoming in both enactments, and going forward, it is worth considering the space of public disclosure requirements in laws that purport to provide government with sweeping powers in times of public health crises; the presence of such provisions, I would suggest, would itself be a step towards ensuring that these laws are proportionate.

The Quarantine

As indicated above, State regulations under the EDA require compulsory quarantining for people with travel histories, or those who show symptoms. There have been reports, however, of quarantine-jumping in many places, and state governments have taken to innovative methods to enforce the quarantine. One method involves an ink-stamp on the quarantined individual’s body, which can be erased after the expiration of the fourteen-day period. The Karnataka government, however, has gone further: it has made publicly available the house numbers, PIN Codes, and immediate travel history of those who have been quarantined (whether they have tested positive or not).

While the ink-stamp – as long as it is non-stigmatic and temporary – might just about meet the test of proportionality in this case, it seems obvious to me that the publication of personal and private details does not; what this amounts to, in essence, is the government shifting its burden of enforcement (of the quarantine) to the individual, whether or not she is at fault. In other words, the government cannot cite its inability to enforce the quarantine as a justification for infringing privacy rights; this, in my view, violates the proportionality standard (in particular, the necessity prong), as there clearly exist other, less restrictive ways of enforcing the quarantine.

Police Violence and the Closure of the Courts

A final point: as I noted above, there are widespread reports of excessive police violence in enforcing the curfew (which, as we have seen, doesn’t really exist). This has been accompanied by arbitrary action, such as the forceful closure of meat and fish shops. Unfortunately, at the same time, there has also been an effective closure of the courts, which has effectively led to a suspension of rights. While the Supreme Court remains formally open for urgent cases (as do the High Courts), there is no guidance on what constitutes an “urgent case.” In this regard, I would suggest that the Directive issued by the Chief Justice of the South African Constitutional Court: Chief Jusice Mogoeng specified that subordinate courts would remain open for urgent matters including “bail applications and appeals or matters relating to violations of liberty, domestic violence, maintenance and matters involving children.” It bears noting that the categories are inclusive – they serve as guidance for what constitutes an “urgent matter”, without being exhaustive.

Indeed, the reference to domestic violence is particularly important, as one of the corollaries of a nationwide lockdown is that individuals in abusive or violent relationships will – quite literally – be forced to stay. Or, to put it another way: courts should remain open to hear cases that arise as a consequence of the lockdown itself: whether it is State overreach in restricting individual rights in the name of fighting coronavirus, or fall-outs such as spikes in domestic violence. There is a delicate balance that needs to be drawn at this time – but it is a balance that must be drawn nonetheless.

 

Guest Post: The Kashmir Internet Ban – What’s at Stake

[This is a guest post by Suhrith Parthasarathy.]


A three-judge bench of the Supreme Court has heard oral arguments and reserved its judgment in Anuradha Bhasin v. Union of India and Ghulam Nabi Azad v. Union of India, in which the petitioners have impugned, among other things, the ongoing shutdown of the Internet in the Kashmir Valley. The arguments raised in these petitions touch upon questions critical to the functioning of India’s democracy. This post is an effort at expounding some of the issues at stake in the case.

Facts

Sometime on August 4, on the eve of the Union government’s decision to issue presidential orders divesting the state of Jammu and Kashmir of its autonomy, a complete blockade on information and communication services was placed in the region. Since then, a few of these restrictions have been lifted, but access to the Internet in the Kashmir Valley remains elusive. As the Petitioners have pointed out, while landlines and post-paid mobile phone voice calls are now functioning, only a miniscule proportion of the population in the region have access to these services. Post-paid mobile phone SMSes remain blocked and so too pre-paid mobile phone voice calls and prepaid mobile phone SMSes. Messaging services, as we’re only too aware now, are critical to carrying out various forms of economic transactions. They are, in many ways, an essential service. Even according to the government’s own response, out of a total of nearly 60 lakh mobile phones, only 20 lakh phones are working and even on those phones SMSes remain wholly blocked. What is more, access to the Internet in the Kashmir Valley continues to be prohibited, despite the critical role that the web plays today in various kinds of economic, social and educational activities.

These orders blocking communication services, Ms. Bhasin and Mr. Azad have argued, have had a damaging effect on a number of fundamental rights. In Ms. Bhasin’s case, the newspaper she edits, The Kashmir Times, could not be distributed on 5 August and went entirely unpublished between 6 August and 11 October. Today, owing to the absence of the Internet, and the barriers placed on journalists seeking to do their job, only a pruned version of the newspaper is published. Therefore, in Ms. Bhasin’s argument, the ban on communication services, in particular the restrictions placed on the Internet, have affected both her right to free speech and her newspaper’s right to freedom of the press.

The Leader of the Opposition in the Rajya Sabha, Mr. Azad, on the other hand, who was himself prohibited from visiting the Valley, until the Supreme Court intervened, has underlined various other impacts that the bans have had on people living in Jammu and Kashmir. For example, basic livelihood, he points out, has been deeply affected. Industries such as tourism, handicrafts, manufacture, construction, cultivation, agriculture and information technology have been brought to a state of cessation, with the economy in the region suffering losses running into the thousands of crores. Access to basic healthcare too, he argues, has been impeded, with people in the Valley unable to avail of the government’s Ayushman Bharat scheme. Over and above all this, the ban has meant that people in the Valley have been entirely cut out from the rest of India. Residents outside the state have been unable to speak to their families in Kashmir, leading, Mr. Azad says, to a great deal of mental stress and anxiety.

Issues and legal arguments

It’s simple enough to deduce the issues that arise in the case: (1) Does a denial of access to the Internet violate any fundamental right? And (2) can access to the Internet ever be blocked, and, if so, under what circumstances can such an action be validly enforced?

Access to the Internet

Perhaps the finest exposition of why access to the Internet is a fundamental right is contained in a recent judgment of the Kerala High Court in Faheema Sharin v. State of Kerala. There, the court recognised that access to the Internet is today essential, because it grants people an avenue not only to information but also to a host of other services. Although the web brings with it its own set of challenges there can be little doubt, as the court held, that it enhances individual freedom, in granting to people a liberty of choice, in determining what they want to read, see and hear, in determining what kind of information they wish to access, and, more than anything else, in limiting the government’s ability to control a person’s private self.

As the High Court held, the Internet has become so central today to our lives that it plays an instrumental role in the realisation of a number of constitutional guarantees. The court, in arriving at its conclusions, relied on a United Nations General Assembly Resolution which noted how access to information on the Internet “facilitates vast opportunities for affordable and inclusive education globally, thereby being an important tool to facilitate the promotion of the right to education.” Given the importance of education to the right to life and personal liberty under Article 21 and given how important the Internet was in fulfilling these promises, access to the web, the court held, ought to be considered in and of itself as a fundamental, inalienable right.

Apart from this the court also recognised, that the Internet constitutes not only a medium for speech but also promotes a gateway to information. A right to access the Internet, therefore, in the court’s opinion, has to be seen as an integral component of a citizen’s right to freedom of speech protected under Article 19(1)(a) and can only be restricted on the grounds enumerated in Article 19(2).

The Kerala High Court’s view that access to the Internet is a fundamental right is not only in keeping with global trend but is also consistent with India’s entrenched free speech jurisprudence. After all, as early as in 1961, the Supreme Court had in Sakal Papers v. Union of India, recognised the instrumental value of speech: that access to the news and the media’s role in facilitating the distribution of information and knowledge played a direct role in the promotion of democracy. That the Internet plays a significant part in ensuring the protection of the right to health, personal liberty and livelihood therefore ought to mean that accessing the web deserves to be considered as fundamental, as flowing out of the guarantees contained in Articles 14, 19 and 21, which, today, after the 9-judge bench’s judgment in Justice (Retd). KS Puttaswamy v. Union of India (Puttaswamy I) (2017) 10 SCC 1, together form a trident against arbitrariness.

Therefore, any blocking of the Internet would ex facie violate fundamental rights. As a result, to enforce a restriction on the Internet an action of the state must be predicated on compelling reasons and must necessarily be made in a constitutionally sustainable manner.

When can restrictions be made

It is today settled law, as is clear from a reading of the judgments of the Supreme Court in Puttaswamy I and Puttaswamy II (the Aadhaar judgment), that fundamental rights can only be limited by state actions that conform to the doctrine of proportionality. The test to determine what state actions are proportionate was laid down by a 5-judge bench of the Supreme Court in Modern Dental College v. State of MP. The court there relied on judgments of the Supreme Court of Israel and the Canadian Supreme Court to hold that the doctrine was inherent in Article 19 itself.

A limitation of a constitutional right will be constitutionally permissible if (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation (‘proportionality stricto sensu’ or ‘balancing’) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.

In Puttaswamy II, the Supreme Court reiterated this test when it held as follows:

The proportionality test which is stated in the aforesaid judgment, accepting Justice Barak’s conceptualisation, essentially takes the version which is used by the German Federal Constitutional Court and is also accepted by most theorists of proportionality. According to this test, a measure restricting a right must, first, serve a legitimate goal (legitimate goal stage); it must, secondly, be a suitable means of furthering this goal (suitability or rational connection stage); thirdly, there must not be any less restrictive but equally effective alternative (necessity stage); and fourthly, the measure must not have a disproportionate impact on the right-holder (balancing stage).

 

The question therefore that the Supreme Court must now answer in Anuradha Bhasin and Ghulam Nabi Azad is whether the state actions imposing the communications ban in the Kashmir Valley meets this four-prong test or not. And given that there has been an ex facie violation of a fundamental right, the burden to establish that these conditions are, in fact, met in this case lies on the state. Here, the restrictions placed quite clearly impinge on the doctrine of proportionality for the following reasons:

  • The orders imposing the Internet shutdown have no force of law. Presently, orders shutting down the Internet are made under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (“Telecom Rules”). These Telecom Rules were framed through the power prescribed on the Union executive by Section 7 of the Indian Telegraph Act, 1885. The Telecom Rules require the Executive, among other things, to provide a reasoned order when it directs the withdrawal of the Internet. Here, however, the orders imposing the shutdown were not made public. They were only released to the court during the course of the hearings, and, that too, with tremendous reluctance. A perusal of those orders that were released, however, the petitioners have argued showcase a complete non-application of mind. To take just one example, an order containing the subject: “Shut down of broadband services” was issued to extend an order whose subject read “Shut down of Land Line services.” What is more, while it is the Home Secretary (Govt. of India) or the Home Secretary of the state government concerned who is the competent authority to issue orders of suspension of the Internet under the Telecom Rules, in this case, the petitioner contend, the orders were issued by the Inspector General of Police. But, more than anything else, the orders themselves were bald and devoid of any reasons despite the Telecom Rules’ express mandate that orders suspending the Internet be issued for explicitly spelled out reasons.
  • The orders issued suspending the Internet are not in furtherance of any legitimate state aim. The government’s case is that it apprehends that the Internet will be misused by “anti-national” elements and will lead to a deterioration of “law and order.” However, neither phrase invoked confirms to the requirements of Article 19(2) of the Constitution. The Supreme Court has repeatedly held (see: Superintendent Central Prison, Fatehgarh v. Dr. Ram Manohar Lohia and In Re Ram Lila Maidan Incident) that the term “law and order” is not subsumed within “public order” which is the ground that Article 19(2) stipulates. In the latter case, the court held that: “the distinction between `public order’ and `law and order’ is a fine one, but nevertheless clear. A restriction imposed with `law and order’ in mind would be least intruding into the guaranteed freedom while `public order’ may qualify for a greater degree of restriction since public order is a matter of even greater social concern. Out of all expressions used in this regard, as discussed in the earlier part of this judgment, `security of the state’ is the paramount and the State can impose restrictions upon the freedom, which may comparatively be more stringent than those imposed in relation to maintenance of `public order’ and `law and order’. However stringent may these restrictions be, they must stand the test of `reasonability’. The State would have to satisfy the Court that the imposition of such restrictions is not only in the interest of the security of the State but is also within the framework of Articles 19(2) and 19(3) of the Constitution.” In this case, the orders imposing the restrictions on the Internet the orders reference “law and order” without showing us how preservation of “public order” legitimately required the restrictions as imposed. What is more, as the petitioners have contended, the term “anti-national” is simply undefinable and does not fall within any of the carefully delineated grounds stipulated in Article 19(2) of the Constitution.
  • The orders imposing the shutdown are not rationally connected to the fulfilment of the supposed purpose, that is the prevention of violence. While the state has repeatedly claimed that the Internet will be misused by miscreants and anti-national elements it has provided no actual evidence of such misuse being a real and genuine threat. Indeed, as the petitioners have shown, studies indicate the opposite, that a shutdown of the Internet leads to anxiety and unease and augment the risk of protests and demonstrations turning violent. Therefore, the state has simply failed to demonstrate the existence of a cogent and sensible nexus between the restrictions imposed and the purported aim behind the orders.
  • Finally, the orders also do not conform to the test of necessity, that there was a compelling need for these actions and that the purported objective could not have been achieved through less restrictive and less invasive means. When even according to the state’s own arguments it is only a minuscule minority that are likely to commit violence, and when a whopping majority of the populace represent no threat to public order it is difficult to conceive how a complete shutdown of the Internet can constitute a necessary and proper action. Indeed, as the petitioners have shown, the state has often, in the past, isolated persons prone to terrorising from others, based on their registered mobile phone numbers. What is more, the state could quite easily have also resorted to blocking certain websites alone if the intention was to prevent incitement of violence. That a wholesale blockade of the Internet has been in force for more than four months evinces the fact that the State hasn’t so much as made an effort at ensuring that it adopts the least restrictive means possible to ensure that violence isn’t perpetrated in the region.

Ultimately, therefore, the actions of the state in enforcing a host of communication barriers in the Kashmir Valley, in particular its decision to entirely restrict access to the Internet, constitute a collective punishment on the people of the region and violate, among other things, the fundamental rights guaranteed under Articles 19(1)(a) and 21 of the Constitution.

Kashmir: Fundamental Rights and Sealed Covers

In a previous post, we discussed one of the peculiar features of the ongoing litigation regarding the communications shut-down and other restrictions in Kashmir. One of these features is the absence – in court – of the government’s orders that constitute the basis for the restrictions (whether under the Telecom Suspension Rules or Section 144 of the CrPC). As we discussed, one of the basic requirements for a restriction upon fundamental rights is the existence of a law, and its publication (i.e., the law being made available to the citizens whose freedoms it seeks to restrict). There can be no restriction of fundamental rights in the absence of law, or on the basis of secret laws.

In the hearing of 16th October, this question was (finally) put to the State by the Supreme Court Justices. It is reported that Solicitor-General Tushar Mehta stated that he had no objection to showing the orders to the Court, but considerations of national security may require him to withhold them from the petitioners – and that the petitioners had no “right” to claim access to the orders. Accordingly, the Court’s Order records that if the Solicitor-General wants to claim “privilege” over the orders, then the Court “requests him to file an affidavit indicating the reasons for claiming such privilege.” 

While we wait for the government’s affidavit, it is important to note that what is at stake here is a creeping expansion of the “sealed cover”, which we have seen so often in recent times. It is also important to note that it is entirely unjustifiable: executive orders – passed under cover of law – restricting rights of citizens are not and cannot be subject to legal privilege, or submitted to the Court in a sealed cover. 

At one level, it is questionable whether a legal order revealed only to the Court, and hidden from citizen, counts as “publication” in the relevant sense. But there is a more basic reason why this is unconstitutional. If I – as a citizen – do not have access to the legal order that purports to restrict my rights, I have no effective way of challenging it in Court and demonstrating it to be unconstitutional. I cannot show that it is disproportionate and fails the reasonableness standard under Article 19(2). What this means, in turn, is that effectively, that I have no remedy to enforce my fundamental rights. And a right without a remedy is, of course meaningless. 

Effectively, therefore, denying the order on the basis of which rights are infringed amounts to a suspension of the rights themselves. As explained in a previous post, this can only be done – and that too, partially – through a formal declaration of Emergency; in other words, the government’s arguments are entirely based upon the logic of an Emergency, without the courtesy of a formal declaration of Emergency. 

It is important to remember the last time the contrary argument was made. The last time it was made – unsurprisingly – was in ADM Jabalpur. There, the argument made on behalf of the detenus was that the suspension of the right to move the Court to enforce habeas corpus amounted to the denudation of Article 21 itself. To this, the Court said that the mere fact that you could not move the Court did not mean that the rights ceased to exist – it just meant that you had no way of enforcing them. But if ADM Jablpur has been buried “ten fathoms deep” by Puttaswamy, then surely there is no remaining scope for the Government, in 2019, to make this argument.

Consequently, therefore, no “affidavit” can justify keeping the communications suspension and S. 144 orders secret, and there is no justification for handing them over to the Court in a “sealed cover”. They must be made disclosed, and not only to the petitioners, but to the general public, so that affected parties are in a position to seek remedies before the courts of law. Any other outcome would only amount to a justification of the logic of Emergency.   

Judicial Emergencies: Law and Practice

[Editorial 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 the 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.]


One of the curious features around the ongoing litigation in the Supreme Court concerning the communications lockdown and executive detentions has been the absence of written documentation filed by the government, in court. For example, we still do not have access to the legal order imposing the communications lockdown, and in the habeas corpus cases, the Supreme Court’s “innovative” remedy of telling the petitioners to travel to J&K to meet the people who are allegedly detained, has effectively exempted the government from responding on questions of legality (so far).

In the absence of the government’s responses, it is impossible to know what legal and constitutional justifications it is offering for what are undoubtedly serious rights violations. In a previous post, I explained why this is a huge problem in a country – and a Court – that continues to (claim to be) governed by the rule of law. This situation, however, changed for the first time on October 1, when the State of Jammu and Kashmir (not the Indian Government) brought on record its reply (a “Limited Affidavit”) in Anuradha Bhasin v Union of India – the first of the petitions filed to challenge the communications lockdown.

From a survey of the Limited Affidavit (a copy of which is on file with the author of this post), the State’s rationale begins to appear. In paragraph 3, it states that the modus operandi of terrorists has been to infiltrate J&K from across the border, and then instigate local militants, with the help of separatist groups. In paragraph 5, the Limited Affidavit goes on to note that the government’s actions on Article 370 would jeopardise the position of these militants, as well as the separatist elements. And because of the influence that these groups enjoyed, there was an “imminent threat of deterioration of law and order.” In paragraph 11, the Limited Affidavit observes that in view of the “apprehension of misuse of Data Services”, requests were made to service providers pertaining to “different zones/areas” based on the threat perception, and which were ultimately confirmed in accordance with the Telecom Suspension Rules of 2017. In paragraph 12, it deals with the imposition of curfew orders under S. 144 CrPC on the basis of an apprehension of the deterioration of law and order, passed by various District Magistrates. In paragraph 14, the Limited Affidavit insists that the restrictions are temporary, and will be lifted based on an assessment of the situation in “each area.” Finally (for our purposes), in paragraph 16, the Limited Affidavit states that “the need-based restrictions were/are reasonable, had nexus with the purpose (pre-empt inflammation of passions and rumour-mongering).

Now for the purposes of this post, I want to bracket the issue of curfews and S. 144 (including issues around functioning of schools, hospitals, and markets), and focus exclusively on the issue of the communications lock-down. As I had discussed in the previous post, a communications lock-down – that infringes Article 19(1)(a) of the Constitution (at the very least) – can only be justified if the State’s measures meet the threshold of “proportionality”. One of the elements of “proportionality” requires the State to impose the least restrictive measure that is consistent with its legitimate purpose or goal. To take the very specific example of a communications lock-down: given the existence of “white lists” and “black lists” – which allow the State to block or disable mobile numbers in a targeted fashion – is it proportionate to shut off the communications of the entire state, instead of targeting individuals known to be – or even suspected to be – involved in or encouraging terrorist activities?

The Limited Affidavit, however, makes no argument at all on the question of proportionality. It argues that there exists a reasonable nexus between the measure (communications lock-down) and the goal (pre-empt inflammation of passions and rumour-mongering, presumably with a view to maintaining the 19(2) goal of “public order); now while even this connection is open to question (see, for example, recent research on the topic arguing against the belief that communications lock-downs prevent rumour mongering), what is clear is that no argument is offered in the Limited Affidavit for why more targeted measures cannot work (or were even contemplated). Surely it is not the State’s case that every individual in J&K is a potential inflamer of passions and a rumour-mongerer? That argument would be entirely at odds with our entire legal system’s focus on individual responsibility, and our aversion to collective punishment, or attributing collective criminality to entire groups of people.

But if that is not the argument, then what is? The only answer is to be found in the Limited Affidavit’s mention of “zones” or “areas” of potential disturbance, and also that the assessment is being made on the basis of the situation that these “zones” are in. That argument, however, falls into exactly the same problem discussed above: it is no longer about determining that there exists reasonable cause to (preventively) deprive an individual from exercising her Article 19(1)(a) rights, but that within an “area” (and “area” here means an entire state), everyone will be presumptively apprehended to be “misusing Data Services.”

Note, here, that this is not the same as Section 144 prohibitory orders in the physical world, where the State cordons off certain areas and prohibits assemblies there, ostensibly for the purpose of preventing riots. The justification for those prohibitory orders (and even they must meet the standard of proportionality, and cannot be perpetually extended) is that once the crowd is in place, you actually can’t separate the rioters from those caught up in the riot – and so you prevent the crowd from forming in the first place. That argument doesn’t translate into the digital world, especially when you already have a Section 144 order in place preventing assemblies on the ground.

That being the case, what justifies a departure from targeted shut-downs of identified mobile numbers to an assessment of what an “area” is like? I suggest that our Constitution allows for only one situation in which that approach is permitted: a declaration or “Proclamation” of Emergency, where (certain) rights may be suspended en masse, without the need for the proportionality assessment that may require individualised targeting. In other words, our Constitution recognises that there may exist rare and exceptional situations, where the situation is such that the a proportionate restriction of fundamental rights is (temporarily) impossible, and for the period of that impossibility, the State is exempted from adhering to the constitutional standard.

But here’s the crucial point: an Emergency must be declared formally. Not only must citizens be put on notice that their rights are suspended, but the existence of an exceptional situation – because of its very character – must strictly adhere to the legal formalities that are required to bring it into force. There’s been a lot of talk lately about an “undeclared Emergency”, but the point to note is that in legal terms, an “undeclared Emergency” is an absurdity. Without the legal form, it does not exist; and if it does not exist, it cannot be assumed in Court.

Or, to put the point more simply: there are two legal regimes. The normal legal regime, which requires the Court to rigorously apply its constitutional standards to violations of rights; and the Emergency regime, in which (some of) those rights stand suspended. But the two regimes cannot (legally) bleed into one another; where there is no Emergency, the State cannot “implicitly” invoke its logic in Court – and equally, the Court cannot, in its orders, act as if there was an Emergency.

The Limited Affidavit in Anuradha Bhasin’s Case, however argues as if there was an Emergency; but what is more worrying is that the Court’s orders (until now) appear to accept that. The most glaring example of this is the September 16th Order, which I discussed in my last post: the Court’s Delphic proclamation that the State ought to ensure that “national security” must be “balanced” with personal liberties is the logic of Emergency: not only does it impose no obligation upon the State, but in avoiding any mention of proportionality, it allows the State to determine exclusively how to achieve that balance – and thus, effectively, suspends those rights as legal rights.

This is what I would like to call a “judicial Emergency”: there is no proclamation of Emergency, but the Court – on its own initiative – acts as if there exists an Emergency, and its orders reflect judicial standards that are uniquely applicable to the Emergency regime. And this, in my submission, is the most appropriate conceptual framework within which to analyse the Court’s conduct on the Kashmir petitions over the last two months – a framework that is now fortified by the State’s first formal statement to come on the court record.

Of course, if we extend the analysis beyond communications shut-downs – and to habeas corpus – we find something even more troubling: because there the Court is acting not merely as if it was a judicial Emergency, but as if it was a judicial Emergency in 1976. Remember that the 44th Amendment – after Indira Gandhi’s fall – ensured that even during an Emergency, Article 21 – and therefore, the writ of habeas corpus – cannot be suspended. The Supreme Court’s conduct on habeas corpus, therefore, takes us into a world in which not only is there a judicial Emergency, but also, a world in which the 44th Amendment … no longer exists.

That is a somewhat concerning world to live in.

Book Review: Giorgio Agamben, State of Exception

(One of the classic Constitutional chestnuts is the story of how Ambedkar believed that Article 356, which provides for emergency powers, would never need to be used, and would remain a dead letter – and how then next sixty years have demonstrated how wrong he was. Given the now-ubiquitous presence of Article 356 in national life, along with Article 370 and the use of the AFSPA throughout the country, emergency powers have now become woven into the fabric of constitutional law. In this context, it becomes important to engage with works like Giorgio Agamben’s 2005 monograph, “State of Exception”, which is amongst the most famous theoretical treatments of emergency powers in constitutional states.)

In State of Exception, Giorgio Agamben is concerned with theorising the use of emergency powers (the “state of exception”) by modern constitutional states. Ever since the German jurist, Carl Schmitt, argued that the sovereign was best understood as the entity who had the power to decide upon the state of exception, the concept has been treated as a political fact, incapable of juridical analysis. As the Stanford Encyclopedia summarises the argument:

No legal norm can govern an extreme case of emergency or an absolute state of exception. In a completely abnormal situation, the continued application of the law through the normal administrative and judiciary channels is going to lead to haphazard and unpredictable results, while preventing effective action to end the emergency… if the applicability of material legal norms presupposes a condition of normality… a polity must be entitled to decide whether to suspend the application of its law on the ground that the situation is abnormal.”

Therefore, as Agamben understands it, the justification for the state of exception is that it calls for ” a suspension of the order that is in force in order to guarantee its existence…  it is as if the juridical order contained an essential fracture between the position of the norm and its application, which, in extreme situations, can be filled only by means of the state of exception, that is, by creating a zone in which application is suspended, but the law, as such, remains in force.” He characterises this as a distinction between “norm” and “decision”; in situations of so-called normalcy, it is norms that govern action – norms that are characterised by being general, prospective, abstract – leaving very little space for individualised, particularistic decisions, based on particular facts (see this article by John Rawls for an analytical account of this distinction). In the state of exception, that relationship is reversed, and it is the decision that becomes the primary form of political action.

This reversal characterises another staple feature of the state of exception, that Agamben calls the “force of law“. The standard understanding of “law” (as we know, for instance, from Fuller) is precisely that it operates through norms – with its defining characteristics being its generality, formal equality, and so on. In the state of exception, however, Agamben points out that “decrees, provisions, and measures that are not formally laws nevertheless acquire their “force”. From a technical standpoint, the contribution of the state of exception is the separation of “force of law” from “law”. It defines a state of law in which, on the one hand, the norm is in force but is not applied (has no force), and on the other, acts that do not have the value of law acquire its force…” This distinction, and the understanding of suspended norms during states of exception, also leads to important insight that the acts undertaken during that period have no legal character – that is, they are neither transgressive (illegal) nor illegal, but exist sui generis, in a sense, beyond the reach of law (consider, for example, the immunity provisions in the AFSPA).

When we consider these features of the state of exception, and how at odds they are with our common understanding of how law ought to work, it becomes clear that – as the word “exception” would seem to signify – their only justification (if any) can lie in their temporariness and specificity. As Agamben argues, however, through the course of the twentieth century, the state of exception has become – paradoxically – the norm. He takes as his point of departure, Walter Benjamin’s famous observation in his Theses on History:

The tradition of the oppressed teaches us that the ‘state of exception’ in which we live. We must attain to a concept of history that accords with this fact. Then we will clearly see that it is our task to bring about the real state of exception, and this will improve our position in the struggle against fascism…”

While Benjamin was writing in the context of Nazi Germany (a twelve-year state of exception), Agamben locates the change at the beginning of the 20th century (although the concept of the state of exception itself, he traces from the Roman practice of iustitum, through the French Revolutionary Constitution, and its Napoleonic successors), where the idea of necessitywhich was originally understood to be a “single exception that justified not obeying existing law… in the first half of the twentieth century… came to be seen as the ultimate source of law.” That is to say, if the overall justification of law is necessity, then the state of exception is no longer a state of “exception”, but one instantiation of what necessity requires in certain circumstances.

Agamben charts the evolution of the states of exception through the twentieth century, demonstrating how – instead of being single, isolated instances – the came to gradually become the norm, used for such diverse purposes as wartime preparations, fighting the great depression, and suppressing worker-movements. “The voluntary creation of a permanent state of emergency has become one of the essential practices of contemporary states, including so-called democratic ones…” This is primarily marked by a breakdown in the classical separation of powers: going back to the force-of-law idea, the executive is conferred with greater and greater powers to issue decrees having the force of law (again, recall the warrantless-arrest provisions of the AFSPA). For Agamben, this reached its apotheosis in the Bush regime’s infamous Guantanamo Bay executive order, which has since resulted in “radically eras[ing] the legal status of the individual, thus producing a legally unnameable and unclassifiable being. Neither prisoners, nor accused, but simply detainees, they are the objects of a pure, de facto rule… what Judith Butler calls bare life reaching its maximum indeterminacy.

The book, then, has two rather bleak morals: states of exception occupy a continuum along the history of post-Enlightenment constitutional democracies, starting with revolutionary France; and that in modern times, they have become the default rather than the exception, although – crucially – they have taken a new form: “declaration of states of exception has gradually been replaced by an unprecedented generalization of the paradigm of security as the normal technique of government.” In other words, the national security state – with its ubiquitous surveillance mechanisms and police procedures, is the 21st-century instantiation of a now-permanent state of exception (along with its more extreme and brutal forms that remain territorially and spatially limited, such as the permanence of the emergency-measure AFSPA in numerous parts of India – again, making the emergency the default rather than the exception). But perhaps, as Benjamin believed, a clear understanding of this fact is the essential first step in working against it.

Malcolm Bull with an infinitely more erudite review in the LRB, here.

A brief piece, considering how the Schmitt-Benjamin debate plays out in Agamben’s work, here.