Guest Post: The Supreme Court’s Article 370 Judgment – VI: On Representative Democracy

[This is a guest post by Krishnesh Bapat.]

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The critical question in In re: Article 370 of the Constitution was whether the President (acting on advice of the Government of India) could terminate Article 370, without involving the representatives of the people of Jammu & Kashmir (‘J&K’). This obligation to involve the representatives of the people of J&K arose because of the proviso to Article 370(3). According to the proviso, a recommendation from Constituent Assembly of J&K was a pre-condition before the President issued a notification to terminate operation of Article 370.

Conceptually, a similar question arose in the United Kingdom (‘UK’) in 2017 in R v. Secretary of State for Existing European Union (‘Miller 1’). Article 50 of the Treaty on the European Union (‘EU’) provided that a member state could withdraw from the EU after complying with its own constitutional requirements. The question in Miller 1 was whether the Government of UK could unilaterally withdraw from EU in exercise of its prerogative powers or whether it had to obtain the approval of the representatives of the people of UK in the Parliament.

Thus, fundamentally, the question in both In re: Article 370 and Miller 1 was whether the executive was legislatively constrained from exercising power. In this post, I compare these two judgments. As we shall see, the judgments reveal the constitutional values the courts embrace. While the Supreme Court of India continued its practice of deferring to the executive at the cost of the legislature, the majority opinion of the Supreme Court of the UK restrained the executive from depriving people of domestic rights without parliamentary approval. The argument is not that the Supreme Court of India should have followed Miller 1 – it could not have, considering the difference in the constitutional schemes and the specific questions before them. Instead, it is to highlight which values each of the courts placed a premium upon.

Beyond this critical question, I also compare how the two courts responded to similar assurances by the executive that the legislature will enact legislation at a later date. While the Supreme Court of India readily accepted this submission and chose not to decide on the legality of converting the State of J&K into a Union Territory, the Supreme Court of United Kingdom, outrightly rejected it.  

On the critical question

The question before the Court in In re: Article 370 was whether Constitutional Orders (‘CO’) 273 complied with the procedure provided in the Constitution. Kieran Correia, in a previous post has explained the import of the CO. For our purposes it is enough to say that CO 273 notified that Article 370 shall cease to exist. It was issued under Article 370(3), the proviso to which, required a recommendation from the Constituent Assembly of the State. The purpose of the proviso was to uphold the fundamental character of representative democracy (See Mohd. Maqbool Damnoo v. State of Jammu & Kashmir). The President could not alter Article 370 without involving the direct representatives of the people of Jammu & Kashmir.

The Supreme Court did not dispute this position of law (See Para 426). Yet it upheld CO 273, even though the representatives of the people of Jammu & Kashmir did not have any say in its notification. The justification offered by the Court was that since a) the Constituent Assembly had ceased to exist, the President could unilaterally notify that Article 370 shall cease to operate; and b) the recommendation was anyway not binding on the President (para 346). As Kieran has pointed out, the first justification ignores that the proviso to Article 370(3) indicates ‘more than the Constituent Assembly as an institution, it is the constituent power of the people of Jammu and Kashmir that was represented.’ The second justification sidesteps the text of the Constitution which made recommendation from the representatives of the people a pre-condition before the exercise of executive power. It does not matter that the recommendation was not binding: the fact of the recommendation was still necessary.

How does this compare with the majority opinion in Miller 1? As mentioned above, the question in Miller 1 was whether the Executive in the UK could unilaterally initiate the process of leaving EU without parliamentary approval. The Executive in the UK has a prerogative power to enter into and withdraw from treaties. Despite acknowledging the centrality of this prerogative power in the constitutional scheme of UK, the Court held that parliamentary approval was necessary. The majority observed that ‘far-reaching change to the UK constitutional arrangements’ cannot be brought by ministerial action alone. The change was far-reaching because withdrawal from the EU would abrogate the rights available to people in the UK from EU law (para 81). These rights were created by a series of statues which the Parliament had enacted after the UK joined the EU. Therefore, parliamentary sovereignty required that only the Parliament could take away those rights, and not the executive.

Thus, the decision in Miller 1 placed a premium on the legislature, as against the executive. This was consistent with the principle of representative democracy. In contrast, the plurality opinion in In re: Article 370, crowns the executive with a power greater than what the executive itself claimed. The executive believed that a recommendation from the Parliament (and not the Constituent Assembly) was necessary, but a deferential court held that the executive could unilaterally cease the operation of Article 370. This approach which side-lines the people of Jammu & Kashmir entirely despite the explicit stipulation in the Constitution, undermines representative democracy and federalism, both of which are essential to our constitutional scheme.

On assurance

Supreme Court of India’s deference to the executive did not stop here. Another issue before the Supreme Court of India was the validity of the Jammu and Kashmir Reorganisation Act, 2019. The Act reorganises the State of Jammu & Kashmir into two Union Territories. The Petitioners argument was that the Parliament cannot use Article 3 to extinguish the character of statehood by converting a State into a Union Territory. The plurality opinion waxed eloquent for 32 paragraphs (Para 471 to 502) on the constitutional history of States and Union Territories, the reason for existence of Article 3, federalism and representative democracy. However, in the 33rd paragraph, it refused to decide the legality of the reorganisation. It did so because the Solicitor General had submitted that statehood would be restored in Jammu and Kashmir (Para 503).

The Solicitor General (for the Union of India) submitted that statehood will be restored to Jammu and Kashmir and that its status as a Union territory is temporary. The Solicitor General submitted that the status of the Union Territory of Ladakh will not be affected by the restoration of statehood to Jammu and Kashmir. In view of the submission made by the Solicitor General that statehood would be restored of Jammu and Kashmir, we do not find it necessary to determine whether the reorganisation of the State of Jammu and Kashmir into two Union Territories of Ladakh and Jammu and Kashmir is permissible under Article 3……

There are two concerns. First, what may or may not happen in the future does not change the question before the Court. The question before the Court was the legality of a reorganisation which has deprived a people of a democratically elected government for the past 4 years. If the reorganisation is illegal, the illegality should cease immediately and not at an undetermined time in the future. This is akin to detaining someone illegally and then a court ruling that it will not decide the legality of the detention as the detainee will be released sometime in future.

Second, restoring Jammu and Kashmir’s statehood would require legislation from the Parliament in terms of Article 3 of the Constitution. In law or in fact, a law officer simply cannot give any assurances regarding how the Members of Parliament would vote on a bill. The Members, including those from the treasury bench, are entitled to vote as they deem fit notwithstanding the 10th Schedule. Moreover by June next year the 18th Lok Sabha will get elected and it may not have the same composition as the 17th Lok Sabha. Here, as Apar Gupta pointed out, the decision in Shreya Singhal v. Union of India, is worth noting. In that case, the validity of Section 66A of the Information Technology Act, 2000 was under challenge. The law officer for the government assured the Supreme Court that the government would not use Section 66A to curb free speech. The Court rejected the submission and held that if Section 66A was otherwise invalid, it could not be saved by an assurance which does not even bind successor governments (Para 92).

While the Supreme Court of India readily accepted the assurance, the Supreme Court of the UK did not do so. In Miller 1, the Government of UK assured the Court that it would enact a legislation repealing EU law after initiating the process to leave the EU. The Court rejected this submission because the intentions of the government are not law, and that the ‘courts cannot proceed on an assumption that will necessarily become law’ (Para 35). Unfortunately, the Supreme Court of India has proceeded entirely on that assumption.

Concluding remarks

The majority verdict in Miller 1 is not a gold standard. The dissent in that case has been strongly defended on the ground that the majority has unnecessarily curtailed the prerogative powers of the Executive. Nonetheless, the majority opinion does further values of representative democracy, having found those values in an unwritten constitution. In contrast, the plurality in In Re: Article 370, conferred unilateral power upon the executive, even when a written Constitution required direct involvement of the representatives of the people of Jammu & Kashmir.

I would be remiss if I do not point the timeline within which both the courts adjudicated significant constitutional disputes. On June 23, 2016, the UK Government stated its intention to issue a notice to leave the EU. On January 24, 2017, the Supreme Court of UK pronounced its decision in Miller 1. The intervention in R v. Prime Minister (‘Miller 2’) was even more timely. In that case, the question was whether the advice given the Prime Minister to the Queen to prorogue the Parliament was lawful. The advice was given on August 28, 2019 and 11 judges of the UK Supreme Court unanimously ruled on September 24, 2019 that the advice was not lawful. In contrast, the COs in In re: Article 370, were notified in August, 2019 but a decision on their legality was only pronounced in December, 2023. Enough has already been said about the manner in which this case was kept pending. In any case, the Supreme Court seriously needs to introspect on how to avoid delays in cases where it is improbable if not impossible to set the clock back.

Guest Post: The Supreme Court’s Article 370 Judgment – Unilateral Declarations and Self-concurrence as Constitutional Practice

[This is a guest post by Kieran Correia.]

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On 11 December, a five-judge bench of the Supreme Court handed down a unanimous judgement on the abrogation of article 370 and the subsequent demotion of Jammu and Kashmir’s statehood. Finding for the Union in all issues but one, the Court’s verdict – three judicial opinions, with Chandrachud CJ’s opinion being in the majority (joined by Kant and Gavai JJ) and Kaul and Khanna JJ authoring separate concurring opinions – is significant, with its repercussions likely to shape Indian federalism in the years to come.

We might be tempted to forget that In Re: Article 370 is part of a larger story – of power increasingly centralized and concentrated in a Constitution already notoriously centralized and concentrated. While we must analyse the specificity of the Court’s opinion, a long line of jurisprudence has created the conditions of possibility for our present moment. It is important that we bear this in mind even as we read the Constitution against the grain and attempt to recuperate more democratic political structures.

Issues

Chandrachud CJ frames eight issues for the Court’s consideration, which I have reproduced briefly below:

1. Whether article 370 was a temporary provision;
2. Whether the amendment to article 367 – substituting “Legislative Assembly of the State” for “Constituent Assembly of the State” in article 370(3) – was valid;
3. Whether the entire Constitution could be extended to Jammu and Kashmir under article 370(1)(d);
4. Whether the abrogation of article 370 by the President under article 370(3) is constitutionally valid absent the recommendation of the Constituent Assembly of the State;
5. Whether the declaration of Governor’s Rule and the subsequent dissolution of the Legislative Assembly are constitutionally valid;
6. Whether the emergency proclamation and its subsequent extensions are constitutionally valid;
7. Whether the Jammu and Kashmir Reorganisation Act 2019 – which bifurcated the State into two Union Territories – is constitutionally valid; and
8. Whether the conversion of the State into a Union Territory while a state of emergency subsisted constitutes a valid exercise of power.

We can bracket the first four issues – which deal with the abrogation of article 370 – into one larger class, the fifth and sixth issues – which deal with emergency rule in the State at the time – into another, and the last two issues – which concern Jammu and Kashmir’s statehood – separately. We will unpack the first class of issues here.

The Events of August 2019

Before I begin, a brief summary of the events challenged by the petitioners is in order.

The President of India issued Constitutional Orders 272 and 273 under article 370(1) on 5 and 6 August 2019 respectively. These orders reworked the relationship between the Union of India and the State of Jammu and Kashmir by amending article 370, which had hitherto set the terms of this relationship.

While articles 1 and 370 themsleves applied to the State – as provided in article 370(1)(c) – article 370(1)(d) declared that “such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify” (emphasis added). A proviso appended to this clause mandated the “concurrence of [the Government of Jammu and Kashmir]” in all matters apart from those specified in the Instrument of Accession.

Article 370, in clause 3, also laid down its mode of amendment or abrogation: the President could, via notification, amend or render inoperative the article. A crucial proviso to the clause stipulated the recommendation of the Constituent Assembly of the State of Jammu and Kashmir as the condition precedent of such notification. However, the Constituent Assembly of Jammu and Kashmir was dissolved in 1957. A bare reading would yield the conclusion that article 370 is unamendable and unrepealable, unless a new Constituent Assembly is convened (or the old one reconvened).

This amendment track was circumvented. The President issued CO 272 on 5 August, adding a new clause to article 367. The newly inserted article 367(4), inter alia, read the phrase “Constituent Assembly of the State referred to in clause (2)” in article 370(3) as “Legislative Assembly of the State.” What this achieved is it made the recommendation of the state legislature the condition precedent – obviating the need to set up a new constituent assembly.

On the heels of this notification, the Rajya Sabha – since the powers of Jammu and Kashmir’s legislature were vested in Parliament under an Article 356 Proclamation – approved a Statutory Resolution recommending the President render inoperative all of article 370 except for a clause stating that the Constitution would apply to the state, notwithstanding anything to the contrary. The next day, the President issued CO 273, whereby, under the authority of article 370(3) read with article 370(1), article 370 was abrogated.

Constituent Assemblies and Interpretive Gymnastics

CO 272’s substitution of “Legislative Assembly of the State” for “Constituent Assembly of the State” was found to be invalid. As Chandrachud CJ writes, “Paragraph 2 [of CO 272] couches the amendment to Article 370 in the language of an amendment or modification to Article 367 but its true import is to amend Article 370” (para 382). Moreover, CO 272 made two different changes to the proviso to article 370(3): first, it replaces the Constituent Assembly with the Legislative Assembly as the recommending body; and secondly, it makes a new arrangement at variance with that specific Constituent Assembly (para 383).

However, this did not, to the Court, pose any hindrance to the abrogation of article 370 with CO 273. This is because the Court read the proviso to article 370(3), which stipulated the recommendation of the Constituent Assembly as a condition precedent, to mean that the Assembly’s recommendation was not binding on the President – in whom the “substantive power” of the provision was vested (para 346. d.). This would go on to form the basis – along with the lack of any mala fides – of its holding that CO 273 was constitutionally valid (para 430).

Chandrachud CJ supports this interpretation through the history of the ratification process as decided by the Ministry of States. However, article 370 – and the proviso to article 370(3) in particular – has a distinctive history, which the Court does not acknowledge here. Article 370, as Petitioners submitted, had the participation and consent of the people at its heart. The inclusion of the proviso, then, was no accident – it served the specific purpose of keeping the People centre-stage. This history of the proviso goes unnoticed and, with respect, renders the Court’s analysis of article 370(3) incomplete and incorrect.

Moreover, even if the Constituent Assembly’s recommendation was not intended to be binding on the President, the Court does not entirely address the fact that a recommendation from the Assembly is necessary before the President issues a notification under article 370(3). In responding to this, Chandrachud CJ writes, “[The Constituent Assembly of Jammu and Kashmir] was not intended to be a permanent body but a body with a specific remit and purpose. The power conferred by the proviso to Article 370(3) was hence something that would operate in a period of transition when the Constituent Assembly of Jammu and Kashmir was formed and was in existence, pending the drafting of the State Constitution” (para 346. d.).

This reasoning ignores how the Constitution’s drafters explicitly stipulated the recommendation of the Constituent Assembly as a precondition in the clause governing the article’s abrogation. That is to say, if we imagine article 370 as a timeline, with the gradual extension of the provisions of the Constitution at different intervals, abrogation would be, temporally speaking, the last event. For the clause to nonetheless require the Assembly’s recommendation belies the Court’s argument that the Assembly’s temporary nature translates into the President possessing the power to unilaterally issue a notification under article 370(3).

What, then, of article 370’s transience? Does the dissolution of the Constituent Assembly transform article 370 into a permanent provision? The Court points out that article 370 was inserted in the Constitution as a temporary provision. It infers from this that the dissolution of the Constituent Assembly could not render the article permanent (para 346. f.). However, the stated temporariness of a provision cannot override – even as an interpretive guide – the specific and explicit conditions that must be satisfied for it to be amended or repealed – even if it places “temporary” articles on the same level as other provisions in the Constitution.

Moreover, the Court does not engage the alternative argument of reviving the Constituent Assembly advanced by Petitioners. The dissolution of the Assembly does not render the article permanent. A historical reading of article 370(3) indicates that more than the Constituent Assembly as an institution, it is the constituent power of the people of Jammu and Kashmir that was represented. Therefore, keeping this in mind, a new Constituent Assembly that is the expression of the people’s sovereignty would also satisfy the requirements of article 370(3), while still honouring the distinction between temporary and permanent provisions.

First as farce, then as tragedy

The other relevant portion of CO 272 was the application of all the provisions of the Constitution to the State of Jammu and Kashmir. While part of Petitioners’ challenge hinged on whether the Constitution can be extended wholesale – which the Court rejected, citing its gradual extension over the years – the submissions also pointed out the absurdity of the President seeking his own concurrence in issuing a notification under article 370(1)(d). The Court acknowledges, too, that “[t]he purpose which the [condition mandating the concurrence of the state government] seeks to serve (collaboration between the federal units and representative democracy) would be lost if the President secures his own concurrence while exercising the power” (para 426).

However, the Court comes up with an inventive reading of articles 370(1)(d) and 370(3) to find CO 273 valid, as CO 272 – to the extent that it replaced the recommendation of the Constituent Assembly with that of the Legislative Assembly – was found invalid. “The effect of applying all the provisions of the Constitution to the State through the exercise of power under Article 370(1)(d),” Chandrachud CJ observed, “is the same as an exercise of power under Article 370(3) notifying that Article 370 shall cease to exist, that is, all provisions of the Constitution of India will apply to the State of Jammu and Kashmir, except for the fact that the former can be reversed while the latter cannot” (para 427. a.).

As a result of this, Chandrachud CJ continued, invoking Mohd Maqbool Damnoo v State of Jammu and Kashmir, “the principle of consultation and collaboration underlying the provisos to Article 370(1)(d) would not be applicable where the effect of the provision is the same as Article 370(3). Since the effect of applying all the provisions of the Constitution to Jammu and Kashmir through the exercise of power under Article 370(1)(d) is the same as issuing a notification under Article 370(3) that Article 370 ceases to exist, the principle of consultation and collaboration are not required to be followed” (para 427. d.) (emphasis added). The concurrence of the state government under article 370(1)(d), therefore, is not required.

In other words, the Court finds that since the outcome of the power exercised under article 370(1)(d) here – extending all the provisions of the Constitution to the State – is the same as a prospective outcome contemplated under article 370(3) – after an abrogation notification, the entire Constitution will naturally apply to the State – the President can seek his own concurrence because the President can anyway, as the Court discussed earlier, unilaterally issue a notification under article 370(3). Farce morphs into tragedy somewhere in the process.

The Court is, through this interpretive exercise, importing a different condition from a different clause in the article – noting, the entire time, the difference between notifications issued under the two provisions. A notification under article 370(3), irreversible as it is, should require a more rigorous condition. However, since the Court has interpreted the proviso to article 370(3) to denude the Constituent Assembly of any power, a notification which finally extended the Constitution to the State would require a lower threshold to cross. It is to avoid the illogicality of its reading of article 370(3) that it engages in a similarly absurd reading of article 370(1)(d).

Concluding remarks

Constitutions are, to state the obvious, documents about power. At their best, constitutions attenuate and disperse power – not just naked state coercion but also, for example, the power of federal governments and parliaments. Constitutions, however, can also consolidate and concentrate power, allowing large institutions to impose their will on individuals or smaller institutions.

In Re: Article 370 comprises, at its core, questions about who wields power, what safeguards we erect in the face of power, and how one ought to wield power. Unfortunately, however, the Court has opted for a vision of the Constitution that blinds itself to brazenly disingenuous constitutional acts – practices that would enrich incipient scholarship on “abusive constitutionalism.”

The abrogation of article 370 presented one of the most seemingly complicated constitutional issues before the Court. The Union Executive and Parliament engaged in practices that, endorsed by the highest court in the land, will reverberate across India’s constitutional architecture. In Re: Article 370 was the Court’s opportunity to ensure the incredible power that the Constitution vests in the Union Executive and Parliament is not abusively exercised and to read the Constitution in a manner that diffuses some of that power. Regrettably, those will be the tasks of a future Court.

Limiting Executive Power, Enabling Public Participation: The Kenyan High Court’s CAS Judgment

Earlier this week, the High Court of Kenya handed down an interesting judgment concerning executive discretion, the separation of powers, and public participation. At issue was the creation of a set of public office positions, collectively titled the “Chief Administrative Secretary” [CAS]. There were a total of fifty CAS posts, twenty-three of which had been created pursuant to a recommendation of the Public Service Commission, and twenty-seven of which – it was alleged – had been created “unilaterally” by H.E. the President, William Ruto.

A variety of arguments were raised, and the matter was complicated by the existence of a prior High Court judgment on a previous iteration of the CAS (Okiyah Omtatah vs PSC), the execution of which had been stayed on appeal, as well as a judgment of the Employment and Labour Relations Court (ELRC) on the same set of posts. This raised issues of res judicata, and navigating through the Court’s analysis of which issues were still open for hearing, and which had been settled, is a bit like traversing a minefield. What the Court did find, however, that the propositions that the CAS was a “State office”, that the creation of new posts in the public service could only be done by the President on the basis of the binding recommendations of the PSC (in accordance with Article 132(4)(a)), and that the candidates had to be vetted by the PSC and then approved by the National Assembly, were all res judicata and “excluded from determination.” (paras 201 – 206)

This brought the Court to the first of the two main substantive issues, i.e., the question of whether there had been adequate public participation – as mandated by the Kenyan Constitution – prior to the creation of the 27 additional CAS posts. Judicial adjudication around the adequacy of public participation is always a fraught process: how much participation is enough, and how does one balance the democratic requirement of public participation with its admittedly time-consuming nature? While a set of parametres have been evolved over the years – including by the Kenyan judiciary (see para 207) (was there enough time? was there enough distribution? was it communicated in languages that the people understand? etc.), giving the right to public participation actual bite has always been a challenge.

In that context, the Court’s analysis (Kimondo and Visram JJ, with Ong’udi J concurring on this point) is particularly interesting, given the specific facts of this case: with respect to the initial 23 CAS positions, there was a public notice and a call for public participation in September and October 2022 (indeed, a lot of responses to the call for public participation pointed out that the position itself was illegal, given the High Court’s prior judgment). However, subsequently, in 2023, the number of positions was expanded from 23 to 50, and on this there was no public participation.

Notice that if the High Court had wanted to do so, it could have held that the expansion from 23 to 50 created no substantive issues that required the matter to go back for public participation, as the character of the office itself wasn’t being changed – only the numbers were. Indeed, as an Indian lawyer, the facts immediately reminded me of the Indian Supreme Court’s judgment in Babulal Parate vs The State of Bombay, where the Supreme Court held that Article 3’s requirement that state legislatures be consulted before an alteration to state boundaries did not apply where a prior consultation had taken place, and the bill was subsequently amended. This effectively diluted the consultation requirement, treating it as an administrative formality rather than a democratic mandate. This interpretive option was equally open to the High Court of Kenya, but it did not take it. Rather, it reasoned that there was a substantive difference between the creation of CAS office in each ministry (the original proposal) and in each State department (the proposal for an expanded number of CAS positions) (para 220). In view of the requirement that public participation be “real” and “cover all forms of governance”, the lack of public participation for the additional 27 CAS positions was fatal. This, in essence, is an articulation of the public participation principle as an integral element of democracy, which requires the exercise to be carried out meaningfully even when it is for something such as the expansion of an original proposal: in other words, the State cannot perform the exercise on one occasion, and then assume carte blanche to deal with the subject matter as it sees fit: if it makes changes, the process must be repeated.

The second substantive issue was the larger question of whether the President had the power to create these new offices in the first place. The High Court held that it did not (with Ong’udi J dissenting on this point), for a variety of reasons: first, that while Article 132 of the Constitution authorised the President to create “an office in the public service”, this could only be done on the recommendation of the PSC, and the PSC had not filed an affidavit clarifying its role (para 242) This is important because – as we know well – where constitutional texts prescribe that something must be done “on the recommendation” of a constitutional or statutory body, the underlying idea is that the recommendation must be made independently, and for reasons internal to the role or functions that body performs. So, when you’re looking at new offices in the public service, the idea is that the Public Services Commission would evaluate the need for such an office in the context of the effective functioning of the public services, and make a recommendation accordingly; its recommendation would not be based on extraneous considerations hewing to the logic of a different state institution (such as, say, political patronage in order to maintain a governing coalition). Now, a court – in the exercise of judicial review – could only evaluate this decision-making process if the particulars of the process were open to it, which, in this case, the PSC did not do.

It is refreshing to see this insistence from the Court: recall, by contrast, the very different approach of the Indian Supreme Court in the demonetisation judgment, where similar language – “recommendation” – in the case of the Reserve Bank of India was treated with some degree of judicial disdain, with the Court proposing that “recommendation” entailed “collaboration” between the government and the independent body, instead of the independent body applying its mind to the issue and then initiating a proposal for change. 

Next, the High Court held that as the CAS position was something in between a cabinet secretary and a principal secretary, both of which required vetting by Parliament; it followed from the fact that the CAS had to report to the CS, that that particular post would also require parliamentary vetting, by virtue of a statute which – among other things – would have to provide for a cap upon the number of CAS positions. (para 248) This v. 2.0 of CAS did not do that, and therefore all fifty positions were unconstitutional.

Did this mean, however, that the President had no constitutional power to create an office such as CAS under any circumstances? On this point, the judgment is not entirely clear. The Court referred to constitutional history to point out that one of the purposes of the 2010 Constitution was to limit executive discretion to create “unnecessary offices” (leading to the abolition of the post of “assistant minister” in the final Constitution), and capped the number of cabinet secretaries. On this basis, the Court held that :

… the creation of a similar office the assistant minister, now in the name of CASs, cannot be created in the manner the 1st respondent and the 5th respondent proceeded. Based on the reasoning set out above, we do not think it was the intention of the framers of the Constitution to have 50 CASs deputising 22 Cabinet Secretaries. (para 258)

There could, however, be two readings of this passage (and the reasoning leading up to it). On one reading, the constitutional history – which militated against the creation of top-heavy executive controlled state offices – had to be read to require an implied limitation upon the interpellation of an additional office of CAS between CS and PS per se – especially as the analogous post – that of Assistant Minister – had been considered and rejected during the framing. This would certainly be an ambitious and innovative used of constitutional history and the doctrine of implied limitations. On the other, narrower reading, however, the issues were only with the process and the numbers: the process in that the CAS positions lacked anchoring legislation and had not gone through parliamentary vetting, and the numbers in that the CAS positions more than doubled the CS positions (especially given that the latter had to report to the former). A close reading of the judgment reveals – in my submission – both these interpretations are arguable, and this will no doubt be a point of contention in appeal!

In sum, therefore, the High Court judgment makes valuable – and progressive – contributions to the jurisprudence of both public participation and the limitation of executive discretion within the broader framework of separation of powers and constitutional interpretation. It will be interesting to see where this battle goes next.

The Supreme Court’s Maharashtra Political Crisis Judgment – I: To Be Hoisted on Someone Else’s Petard

Today, a Constitution Bench of the Supreme Court handed down a unanimous judgment with respect to what has commonly come to be known as the “Maharashtra political crisis” (Subhash Desai vs Principal Secretary). To cast the facts as neutrally as possible, recall that last June, there was an internal rebellion within the Shiv Sena party, which – in turn – was part of the ruling MVA coalition in Maharashtra. A breakaway set of MLAs, led by Eknath Shinde, claimed to be the “real” Shiv Sena. A number of things then happened: the Speaker (or, to be precise, at the time, the Deputy Speaker) issued disqualification notices against the Shinde faction, which – in turn – moved notices for the Deputy Speaker’s removal; rival whips were appointed; the Governor intervened, and ordered a floor test while the disqualification petitions were pending. Two of the disputes ended up before a vacation bench of the Supreme Court. The Supreme Court passed two interim orders. One of them extended the time for the breakaway MLAs to respond to the disqualification notices; the other interim order declined to stop the floor test. Before the floor test could happen, the-then Chief Minister Uddhav Thackeray resigned. The Governor then invited Eknath Shinde to become Chief Minister, which he did, with the support of the Bharatiya Janta Party. Legal proceedings continued in various forums: for example, a few months later, the Election Commission recognised the “Shinde faction” as the “real Shiv Sena” – a decision that was immediately challenged before the Supreme Court. As of today – the date of the judgment – that status quo continues.

The Constitution Bench was asked to adjudicate a series of questions arising out of this factional conflict, which it did: these issues pertained – among other things – to the Tenth Schedule, to the powers of the Speaker, to the appointment of the whip, to the role of the Election Commission, and much else. In succeeding posts, we shall examine some of these issues. In this opening post, however, I want to take a step back, and take a look at the Court’s core holding with respect to the dispute before it. The Court found that the Governor’s action to call for a floor test was illegal, but because Uddhav Thackeray resigned before facing the test, his government could not now be restored; consequently, status quo would continue.

Let me begin by noting one thing: in my view, the Constitution Bench was correct in holding that it could not now quash Uddhav Thackeray’s resignation, and – therefore – correct in the outcome. The problem, however, is that this does not tell the whole story. The part that is missing is that it was an order of a different bench of the Court itself that created the situation which this bench of the Court then found impossible to resolve when it was adjudicating the main case.

In June 2022, the vacation bench of the Supreme Court (headed by Surya Kant J) passed two interim orders, as observed above. The first order extended the time that had been granted to the Shinde faction MLAs to respond to the disqualification notices pending against them. The second order refused to stay the Governor-ordered floor test. As pointed out at the time, the twin effect of these two judicial orders was that the Shinde faction was free to disobey the whip and vote to bring down Uddhav Thackeray’s government, without facing the fear of immediate disqualification: in other words, with one interim order, the Court granted Shinde faction immunity from disqualification, and with the other, authorised the floor test (in which those very immunised MLAs were now free to vote against Thackeray). It would be disingenuous to separate Uddhav Thackeray’s decision to resign from this judicially-created context.

Now, with respect to the extension of time for the disqualification notices, the Constitution Bench finds nothing wrong with it, and indeed, consonant with the principles of natural justice. Fair enough. What the Constitution Bench also finds, however, is that the Governor’s order for a floor test was illegal – indeed, clearly illegal, as – and the Constitution Bench notes this in some detail – the Governor had absolutely no objective material to reasonably suspect a loss of majority in the House. The circumstances under which the Governor could pass such an order forcing a floor test – i.e., say, when the government is attempting to circumvent a no-confidence motion by infinitely proroguing the House – were simply not present.

What does this mean? It means that the vacation bench’s interim order authorising the floor test to go ahead was very clearly wrong. The vacation bench had before it exactly the same material that the Constitution Bench had. The Constitution Bench found absolutely no difficulty in finding that the Governor had no objective material before him justifying calling for a floor test. But if this was indeed the case, then it was surely also the case in June, and in that event, the vacation bench was grossly in error in not staying the Governor’s (illegal) order, and authorising the floor test. Obviously, it is not my claim here that the standards for a stay and the standard for a final holding are the same: what is clear, however, is that the Constitution Bench found illegal a process that the vacation bench – in its interim order – explicitly allowed to proceed.

As I have said above, Uddhav Thackeray’s decision to resign cannot be divorced from this judicially-created reality. Indeed, by holding today that the Governor’s order was illegal but also that Uddhav Thackeray might have gotten relief had he faced the floor test, what effectively follows is that Uddhav Thackeray is paying the price for refusing to participate in an illegal proceeding. We have heard of people being hoist on their own petard, but Uddhav Thackeray here seems to have been hoist on someone else – i.e., the vacation bench’s – petard!

To use a somewhat imperfect analogy from cricket: imagine this situation. There are two balls left in the match, and the chasing team needs to score four runs to win. The ball is bowled, and there’s a stumping appeal. The umpire sends it upstairs. While the third umpire is still looking, the umpire orders the bowler to bowl the next ball. The batter who may or may not have been stumped hits a four. The umpire declares the winner. Now, after all this is done, the third umpire finds that the batter had actually been stumped, but because the bowling team did not refuse to bowl the last ball, it is now too late to do anything about it. Arguably, you cannot fault the third umpire’s decision; however, there has clearly been a failure of umpiring.

And this is the crux: arguably, today’s Constitution Bench was right in the outcome; but just as much as today’s Constitution Bench is a part of the Supreme Court, so was the vacation bench who passed those two interim orders in June 2022. We cannot fault these five judges, because they did not write those two interim orders; we can even say that the two judges who did write those interim orders placed these five in an absolutely impossible situation, where no answer would have done justice. The ‘original sin’ – so to say – lay in those interim orders, which tainted everything that followed. But if every bench of the Supreme Court speaks for the Court, then ultimately, what we have, is a failure of justice per se.

Indeed, what is striking is that even as the Constitution Bench holds that the Governor’s order of the floor test was illegal, it makes no mention of the fact that this order was sanctified by the vacation bench in refusing to stay it. Mourid Barghouti once memorably wrote: “… it is easy to blur the truth with a simple linguistic trick: start your story from secondly.” To treat Uddhav Thackeray’s resignation as the beginning of the story is to begin with “secondly.” Of course, one can understand why the Constitution Bench would have to begin the story with “secondly”: it can hardly condemn what its own past self has done, in the same proceeding. And that is why it falls to the critic to complete the story, and that is what has been the task of this blog post.

Guest Post: Judicial Review of Governors’ Delay in Assenting to Bills – a Response

[This is a guest post by Paras Khetan.]

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One of the most crucial functions of the Governor is to give his assent to state Bills. This power is derivable from Article 200 of the Constitution. Recently, the governors of different states such as Kerala, Tamil Nadu, and Chhattisgarh have withheld their assent to their state’s bills. This was also followed by the Chhattisgarh HC seeking the Governor’s reply over the delay in passing a Bill. This was later stayed by the Court itself. The Telangana government has also moved the Supreme Court over the delay in the governor’s assent to Bills. These recent events indicate the high stakes involved in the Governor’s withholding of assent.

Various Commissions like the National Commission to Review the Working of the Constitution and the Puncchi Commission have called for constitutional amendments to prescribe a time limit by which the Governor has to give his assent. However, no action has been taken in furtherance of these recommendations. The failure of legislative intervention necessitates judicial intervention by laying down standards to ensure that the Governor assents to the Bill.

This essay argues for the need to lay down judicially manageable standards of review for the Governor’s power to withhold assent. It suggests the possible standard for review that can be used by the judiciary. It also tackles the presence of Article 361 (personal immunity of the Governor) as a barrier to judicial review.

Article 200: Power to Withhold Assent and the Need for Judicial Review

Article 200 of the Constitution envisages four different options available to the Governor when presented with a Bill for his assent. The governor could assent to the Bill, withhold assent to the Bill, reserve the Bill for the consideration of the President, or return the Bill to the State Legislature for reconsideration. The provision does not indicate any time restraint within which the governor should choose either one of the options. The only guidance provided to the governor is to return the Bill to the State Legislature for reconsideration “as soon as possible”. The Court in Purshothaman v State of Kerala expressed the view that the phrase “as soon as possible” is limited to returning the Bill and cannot be interpreted as applying to the other three options (including withholding assent). Therefore, there is absolutely no limitation to the power of the Governor to withhold assent.

Additionally, the power to withhold assent has been classified as the governor’s discretionary power in Nabam Rebia v Deputy Speaker. This implies that the governor is not bound by the aid and advice of the council of ministers under Article 163 of the Constitution. In a previous blog post, the ambiguity in this proposition is brought to light where various high court decisions have conflated the powers of the president and the governor to hold that governor’s discretionary powers are limited in the same manner as the President’s. However, it is respectfully argued here that there remains no ambiguity with respect to the power to withhold assent due to the decision of the Supreme Court in Nabam Rebia. The Court, here, relied on the Puncchi Commission Report and held that:

….The Governor’s discretionary powers are the following: to give assent or withhold or refer a Bill for Presidential assent under Article 200;…… We are of the considered view, that the inferences drawn in the Justice M.M. Punchhi Commission report extracted hereinabove, are in consonance with the scheme of the functions and powers assigned to the Governor, with reference to the executive and legislative functioning of the State, and more particularly with reference to the interpretation of Article 163. We endorse and adopt the same, as a correct expression of the constitutional interpretation, with reference to the issue under consideration. (Emphasis mine)

Thus, the power to withhold assent falls under the discretionary powers of the governor.

Therefore, the above indicates that the governor (a non-democratic authority) has unbridled power to withhold assent and can stifle crucial state legislations. This offends the principles of parliamentary democracy and responsible government which have been held as the guiding lodestars while interpreting the provisions of the Constitution by various judicial pronouncements such as Samsher Singh v State of Punjab and UNR Rao v Indira Gandhi respectively. This is also a part of the larger paradigm of legislative-executive tussle (state legislature vs governor) and executive aggrandizement (increasing power with the executive branch of the government).

Accordingly, there is a pressing need for judicial review of the governor’s power of withholding assent. Judicial review would help in alleviating the problems identified above by restricting the unbridled powers of the governor.

Possible Barriers to Judicial Review

There are two possible barriers to the possibility of judicial review of the governor’s power to withhold assent. One is the personal immunity of the governor under Article 361 and the second is the absence of any “judicially discoverable and manageable standards”.

Article 361: Personal Immunity of the Governor

Article 361 of the Constitution provides personal immunity to the governor from being answerable to any court for the exercise of his powers and duties. The Court in Rameshwar Prasad v Union of India has unequivocally held that A.361 provides absolute personal immunity to the governor. The Court emphasised that even a notice cannot be issued to the governor to act in a particular way. In fact, the Chhattisgarh HC recently stayed its order seeking a reply from the governor over the delay in assent due to the presence of Article 361.

However, this immunity to the governor should not act as a bar to judicial review of the governor’s power to withhold assent. The Court in Rameshwar Prasad brought in an important distinction between judicial review of the “actions” of the governor as opposed to holding the governor himself liable. The Court held that:

The personal immunity from answerability provided in Article 361 does not bar the challenge that may be made to their actions. Under law, such actions including those actions where the challenge may be based on the allegations of malafides are required to be defended by Union of India or the State, as the case may be. (Emphasis mine)

The withholding of assent can be construed as an “action” by the governor or “actions” can be extended to include “inaction” of the governor. Either way will allow the court to judicially review the power to withhold assent. This may materialize in the form of a deemed assent since the court cannot direct the governor to act in a particular manner.

Absence of Judicially Manageable Standards

There has been little attempt to define the term “judicially manageable standards”. However, essentially, they are understood as those standards that the courts can legitimately employ to achieve a particular legal outcome that is closely related to the constitutional norm itself. The absence of judicially manageable standards is used to term the issue as a “political question” and hence outside the scope of judicial review. RH Fallon observes that judicial manageability is largely dependent on whether the future courts can consistently and predictably apply the particular standard. As will be seen later in the piece, the standard proposed for judicial review would fulfil this requirement for being termed as a “judicially manageable standard”.

Additionally, the Court in RC Poudyal v Union of India held that the mere fact that a particular provision of the Constitution may not allow for judicially manageable standards is not sufficient to bar judicial review. Recently, in Shivraj Singh Chouhan v. M.P. Legislative Assembly, the Court rejected the argument that the Court “should be wary of entering the ‘realm of politics’ where no ‘judicially manageable standards’ can be maintained”. Therefore, even if the proposed standard for judicial review is not judicially manageable, it would not act as a bar to judicial review.

The conclusion that there is no bar to judicial review of the governor’s power to withhold assent also flows directly from other judicial pronouncements as well. The Court in Samsher Singh v State of Punjab held that the refusal of assent by the President and the Governor would be unconstitutional. It observed:

We have no doubt that de Smith’s statement (1) regarding royal assent holds good for the President and Governor in India: “Refusal of the royal assent on the ground that the monarch strongly disapproved of a bill or that it was intensely controversial would nevertheless be unconstitutional… “. (Emphasis mine)

In Nabam Rebia, the Court held that the discretionary powers of the governor are amenable to judicial review. It also observed that the power to withhold assent is a discretionary power of the governor. This implies that the power to withhold assent is subject to judicial review. Therefore, by necessary implication, this implies that it is possible to lay down a judicially manageable standard for judicial review regarding the same.

Standard of Judicial Review

After having established that it is possible to lay down a standard for judicial review, this section would lay down the standard of review that should be adopted by the Court.

In a recent Madras High Court case of S. Ramakrishnan v State of Tamil Nadu, the Court tried to hold the governor accountable for withholding his assent to a medical admissions Bill. The Court laid down a ‘public interest test’ to hold that the governor may be compelled to provide his assent in certain situations. The Court completely side-lines the issue of gubernatorial immunity under A.361 and holds that:

When situation changes and present kind of situation arises, a different approach has to be taken by the Courts in the interest of the Public. It is well settled law that “Extraordinary situation requires extraordinary remedies”. When public interest requires, this Court has to do its constitutional duties and to address the situation.

Even though the Court ultimately holds that such a situation did not arise in the present case, it has set up a dangerous precedent which might open up a pandora’s box of judicial problems. The Court’s intent to judicially review the governor’s power to withhold assent was laudable. However, the judgment suffers from two major defects. First, it does not provide any reasoning to deal with Article 361. It merely holds that “extraordinary situations require extraordinary remedies.” Second, the standard laid down by the Court, that is the ‘public interest test’ is not judicially sound. This standard is very vague in its conception and might fail the test of “judicial manageability”. The standard is also quite narrow in its conception. This is understood from the application of the test in the Ramakrishnan case where the future admissions of 400 to 500 students were not considered in ‘public interest’.

A better and far more superior and judicially sound standard would be the ‘arbitrary and the mala fides’ test. The standard prohibits the use of constitutional power in an ‘arbitrary’ or ‘mala fides’ manner. The use of the power should not be based on ‘irrelevant or extraneous considerations’ and should be guided by ‘good reason’. This is the dominant standard used while judicially reviewing the powers of the executive functionaries under the Constitution. This is the standard used for limiting the president’s power to dismiss the governor under Article 156(1) (See BP Singhal v Union of India) and the power to grant pardons under Article 72 and Article 161 of the Constitution (See Maru Ram v Union of India). This standard has also been used to enquire into the validity of a proclamation under Article 356 of the Constitution (See SR Bommai v Union of India).

This standard of judicial review also flows from the judgment in Nabam Rebia. The Court, here, affirmed Puncchi Commission’s remarks on the governor’s discretionary powers. The Commission noted that: –

…. [T]he area for the exercise of discretion is limited and even in this limited area, his choice of action should not be nor appear to be arbitrary or fanciful. It must be a choice dictated by reason, activated by good faith and tempered by caution. (Emphasis mine)

These remarks, in essence, represent the ‘arbitrary and the mala fides’ test. Therefore, the Court in Nabam Rebia accepted the proposed standard to be used while exercising judicial review over the governor’s discretionary power (including the power to withhold assent). The use of this standard would help in limiting the delay in assent to bills since most governors’ decision to withhold assent is based on arbitrary reasons. This is precisely the claim made in the petitions challenging the governor’s delay in assent to bills. To determine when the delay turns into an ‘arbitrary or malafide’ delay, the Court would have to look at the particular facts and circumstances of each case. The relevant factors to be assessed should be guided by the principle that there should be minimum delay in the assent to bills. The Court could look at a range of circumstances such as the workload of the governor, the amount of time since the bill is pending before the governor, and the reasons given by the governor for not assenting to the bill.

Conclusion

This essay has proposed a sound standard of judicial review for the governor’s power to withhold assent. It identifies the need for judicial review and addresses the possible barriers to the exercise of judicial review of this power. The judicial review of the governor’s powers would help in alleviating executive aggrandizement and legislative-executive tussle. It is important to note that the institution of the governor, which was once understood as an institution of a high constitutional functionary, has been penetrated with politics. This is also evident from the recent appointments of governors where most of them have close connections with the ruling party. This compels one to reconsider the width of the power conferred upon the governor and how much trust can one repose in this functionary.

Guest Post: The Re-Appropriation of MP-LAD Funds – a Case of Bypassing Constitutional Procedure

[This is a guest post by Samyak Gangwal and Krishnesh Bapat.]

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In 1993, the then Prime Minister, P.V Narasimha Rao announced the Member of Parliament Local Area Development Scheme (“MPLADS”). The objective of the scheme was to enable Members of Parliament to recommend works of developmental nature in their constituencies with an emphasis on creation of durable community assets based on locally felt needs. Since 2011-12, the legislature has been allocating Rs. 5 Crore per annum to every Member of Parliament under MPLADS. In the last five years Rs. 2.59 Lakh Crore have been allocated under MPLADS and only 10.8% of that amount has remained unspent (understandable given that MPLADS Fund is non-lapsable), indicating many Indians have benefited from the Scheme. On 16^th March 2020, the Parliament enacted Appropriation Act, 2020 which earmarked a sum of Rs. 3960 Crore for MPLADS for financial year 2020-21.

It seems that the Government had initially supported the idea of permitting MPs to use MPLADS funds to tackle Covid-19 related problems. On 24.03.2020, the Ministry of Statistics and Programme Implementation issued Circular No. E-4/2020-MPLADS (Pt) allowing MPs and District Authorities to utilize MPLADS fund for medical testing, screening and other facilities required to detect and contain Covid-19. Later on 28.03.2020 in continuation of the Circular dated 24.03.2020, Circular No. E-4/2020-MPLADS (Pt-II) dated 28.03.2020 was issued allowing MP’s to recommend release of funds from MPLADS to such Fund/Government Pool or Head of Account as may be decided by the Central Government for managing Covid-19 in the Country. However, on 8^th April 2020, in stark contrast to the earlier Circulars, the Ministry of Statistics and Programme Implementation, issued Circular No. E-4/2020-MPLADS(Pt II) (“April Circular”) stating that the Government had decided not to operate MPLADS for two years and had placed Rs. 3960 Crore (earmarked for MPLADS) to Ministry of Finance for strengthening its efforts in managing challenges of Covid-19 and its adverse impacts on society.

In this essay, we argue that the re-appropriation of funds earmarked for MPLADS to Ministry of Finance does not comply with the procedure prescribed in the Constitution and that the executive has not complied with the will of the Parliament. To put it simply, as per the Constitution, if the Parliament has sanctioned money for a particular purpose (say healthcare), the executive must use that money for that purpose only and not for anything else (say defence). Therefore, any appropriation of funds. contrary to the direction of the Parliament, is unconstitutional.

In the first part of this essay, which follows this introduction, we set out the Constitutional provisions which justify the aforementioned stance and argue that the April Circular was unconstitutional and without the authority of law. In the second part of the essay, we discuss Constitutional provisions which permit the executive to seek funds from the Constitution in times of emergency and which could have been utilised during the Covid-19 pandemic.

I

Article 112 to Article 117 of the Constitution prescribes the ‘Procedure in Financial Matters’. Article 112 of the Constitution prescribes that the President shall in respect of every financial year cause to be laid before the Houses of Parliament a statement of the estimated receipts and expenditure of the Government of India for that year. This is referred to as “annual financial statement” in the Constitution and colloquially referred to as Annual Budget. The estimates of expenditure embodied in the annual financial statement comprise:

1. The sums required to meet expenditure charged upon the Consolidated Fund of India (herein after referred to as ‘charged expenditure’). Charged expenditure does not require a vote in the Parliament for withdrawal from the Consolidated Fund of India and includes salary, allowances and pension for the President as well as Governors of States, Speaker and Deputy Speaker of the House of People, the Comptroller General of India and Judges of the Supreme and High Court; and,
2. The sums required to meet other expenditure proposed to be made from Consolidated Fund of India (herein after referred to as ‘voted expenditure’). This year’s financial statement was presented on 1^st February 2020.

Article 113 of the Constitution prescribes that voted expenditure has to be submitted in the form of demands for grants to the House of People. The House of People has the power to assent or refuse to assent to any demand. For financial year 2020-21, Ministry of Statistics and Programme Implementation submitted a demand to the House of People for a grant of Rs. 5444 Crore. In the said demand, Rs. 3960 Crore was earmarked for the MPLADS Fund. On 16^th March 2020, in accordance with Article 113, the House of People assented to the demand raised by Ministry of Statistics and sanctioned Rs. 3960 Crore for the MPLADS Fund.

Once the House of People has assented to granting money to the Government as per Article 113, Article 114 requires an appropriation bill to be introduced in the House of People to enable the withdrawal funds from the Consolidated Fund of India. On 16^th March 2020 an appropriation bill was introduced in the Parliament and on 25^th March 2020 the Parliament enacted the Appropriation Act, 2020. Entry 95 of the Appropriation Act, 2020 sanctioned an amount of Rs. 5444 Crore to Ministry of Statistics and Programme Implementation, which included a sum of Rs. 3960 Crore for MPLADS.

It is evident from above, that the legislature had granted a sum of Rs. 3960 specifically for MPLADS. It is our submission that the law mandates this money be used only  for MPLADS and not any other purpose. This is for three reasons – firstly, Article 114(3) mandates that no money can be withdrawn from Consolidated Fund of India except according to an appropriation made by law in accordance with Article 114. Article 266(3) also, by and large, restates the same principle. If any money is withdrawn without prior approval of the Parliament through an appropriation act, that withdrawal will be without authority of law. Through the April Circular, the Government of India has sought to do indirectly, what it could not do directly. The Government could not have directly withdrawn money directly from the Consolidated Fund of India for strengthening its efforts in managing Covid-19 as there was no such demand raised before the Parliament and there was no entry in the Appropriation Act, 2020 which would have permitted such withdrawal. The April Circular which re-appropriates money assigned for MPLADS to Ministry of Finance is essentially a withdrawal from Consolidated Fund of India without prior permission of the Parliament.

Secondly, if the Government is permitted to re-appropriate money allocated by Parliament for a specific purpose, then the entire exercise of ‘Annual Financial Budget’ in the Parliament, which is presented with much fanfare, is futile. Such a reading of the Constitution would permit the Government to seek money from the representatives of the people for purpose X and utilise that money for purpose Y. This would enable a conniving government to seek money for a palatable purpose and simply use that money later for another purpose. Such a reading would also be against the first principle of parliamentary democracy that the Government must function, both, in respect of determination of its policies and the administering of these policies, strictly under the control of the representatives of the people. If the house of representatives cannot even guide the government on how taxpayers money ought to be utilised, they will not exercise any real control on the government.

Thirdly, Section 3 read with Section 2 of the Appropriation Act, 2020 itself mandates that the funds applied out of Consolidated Fund of India should be appropriated for services and purposes expressed in the Schedule in relation to the said year. As stated above Entry 95 of the Schedule mandated that Rs. 5440 Crore, which includes a sum of Rs. 3960 Crore for MPLADS, had to be used by Ministry of Statistics and Programme Implementation for the purpose for which the money was sought. Section 2 and Section 3 of the Appropriation Act, 2020 have been reproduced below:-

2. From and out of the Consolidated Fund of India there may be paid and applied sums not exceeding those specified in column 3 of the Schedule amounting in the aggregate to the sum of one hundred ten lakh thirty-nine thousand eight hundred twenty-two crore and thirteen lakh rupees towards defraying the several charges which will come in course of payment during the financial year 2020-21 in respect of the services specified in column 2 of the Schedule.

3. The sums authorised to be paid and applied from and out of the Consolidated Fund of India by this Act shall be appropriated for the services and purposes expressed in the Schedule in relation to the said year.

In view of the above, money can only be withdrawn from Consolidated Fund of India in accordance with the Appropriation made by the Parliament and it is our case that the April Circular was without the Authority of Law.

II

The question that may arise is what is the recourse a government has when the amount provided through an appropriation act under Article 114 is insufficient for a particular service for the current FY or if the need has arisen for additional expenditure for a new service which is not contemplated in the annual financial statement (like Covid-19 Pandemic). The drafters of the Constitution contemplated that such situations may arise and did not expect the Government to be bound for a year to a demand they had raised at the beginning of a financial year. For that purpose, the Constitution provides for Article 115 and Article 116.

Article 115 provides for supplementary, additional or excess grants which can be made by the Parliament in order to permit excess withdrawal of money in exigent situation which may occur in the middle of a financial year. Article 116 gives the power to the House of People to make a grant for meeting an unexpected demand upon the resources of India when on account of the magnitude or the indefinite character of the service the demand cannot be stated with the details ordinarily given in an annual financial statement. The Government of India has chosen to not follow the mechanism provided by Article 115 & Article 116 and has instead indirectly withdrawn from Consolidated Fund of India without the prior approval of the Parliament.

If the Government of India needed money immediately, they could have also taken recourse to Article 267 which provides for the Contingency Fund of India. The money in the Contingency Fund is entirely at the disposal of the President and does not require prior authorization. If any money from the Contingency Fund would have been withdrawn, it would have only required a subsequent authorization from the Parliament.

Therefore, even though the Government had two legally maintainable routes to withdraw money for its efforts against Covid-19, the Government has chosen to act without authority of law and has not complied with a Constitutionally mandated procedure which is necessary for a healthy parliamentary democracy.

Notes from a Foreign Field: Executive Law-Making in Romania [Guest Post]

[Editor’s Note: This is a guest post by Dragoș-Alin Călin and Irina Alexe. Dragoș-Alin Călin is a judge of the Court of Appeal in Bucharest and Co-president of the Romanian Judges’ Forum Association. Irina Alexe is an associate scientific researcher within the Institute for Legal Research ‘Andrei Rădulescu’, Romanian Academy. Readers of the blog will find this essay of interest, as it deals with the phenomenon of legislation by ordinance, in Romania.]

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Introduction

The starting point of this article rests on a law recently adopted by the Parliament of Romania which rejected an emergency ordinance issued by the Romanian Government, more than 13 years before. The said emergency ordinance was issued in the matter of judicial organization (GEO no.131/2006 for the amendment and supplement of Law no. 508/2004 on the establishment, organization and functioning within the Public Ministry of the Directorate for Investigation of Organized Crime and Terrorism).

It is certain that by quasi-generalising the method of legislating by simple or emergency ordinances, in the last ten years, a shift in the constitutional role of the Parliament as sole law-making authority to the Government took place. Actually, the Government has become a real legislator in almost all fields, since Parliament has changed into a sort of notary public, which many times ratifies, with or without any amendments or supplements, and sometimes rejects, after some significant periods of time, the normative acts issued by the Government, in the absence of any deadlines provided for in the Romanian Constitution for completing the Parliamentary procedure.

In its Opinion no. 950/2019, the Venice Commission acknowledged that “legislation by the GEOs became a routine. Fundamental rules of the functioning of key State institutions are changed too quickly and too often, without preparation and consultations, which raises legitimate questions about the soundness of the outcomes and of the real motives behind some of those changes. The resulting legal texts are not clear. This practice weakens external checks on the Government, it is contrary to the principle of separation of powers and disturbs legal certainty”.

Certain issues related to the legislative delegation in Romania. Statistical data relating to delegated or emergency enactment during the period 2010-2019.

The legislative delegation is regulated by Article 115 of the Constitution of Romania, republished. The competence of the Parliament to legislate may be exercised by a body of the executive power, namely by the Government, when one of the two possible types of situations indicated in the text occurs: (I) the Government’s authorization by the Parliament, under a special law, to issue, within a limited period of time, any ordinances in certain fields which cannot be subject to the organic laws, respectively, (II) the exceptional, permanent constitutional empowerment of the Government, which may be materialized by issue of an emergency ordinance, not involving an express empowerment on the part of the Parliament, to legislate in certain fields, which could be also covered by organic laws, when the conditions provided for in Article 115(4) are fulfilled and none of the prohibitions indicated under Article 115(6) occurs.

Nevertheless, the examined statistical data lead to the conclusion that the opportunity of legislation by exceptional means, by the Government, has become a rule in Romania and has not been used as an exception for a long time, as there are also years in which the Government seems to have coped with an extraordinary situation described by the constitutional text once every two or three days, which, obviously, does not reflect reality.

During the reference timeframe, 60.46% of the primary law adopted in Romania was represented by emergency ordinances and simple ordinances issued by the Government, as well as by any laws relating to their approval or rejection (a number of 2559 out of 4232).

As such, the Parliament does not operate anymore as a main legislative authority, contrary to its constitutional role, and the Government becomes the main and actual legislator. The Parliament seems to play only a secondary part; however, this is exercised late, the negative record being of 15 years and 2 months, a period needed for the rejection of the GEO no.16/1999 by Law no.66/2014. The timeframe of 13 years and one month follows in the hierarchy for the rejection of the GEO no.131/2006 for the amendment and supplement of Law no. 508/2004, by Law no. 16/2020.

For more than 60 ordinances or emergency ordinances, the Parliament needed more than three years for examination, in the case of each ordinance, including normative acts entailing an immediate approval (4 years and 6 months for the adoption of Law no.9/2020 for the rejection of the Government Ordinance no.13/2015 regarding the use of certain data recorded in the registers with the passengers’ names in the cross-border cooperation for preventing and fighting against terrorist acts; 3 years and 6 months for the adoption of Law no.238/2011 for the approval of the GEO no.53/2008 on the amendment and supplement of Law no.656/2002 on the prevention and sanctioning of money laundering, as well as for establishing some actions for preventing and fighting against financing terrorist acts; 3 years and one month for the adoption of Law no.38/2013 for the approval of the GEO no.2/2010 regarding certain measures for the organization and functioning of the working apparatus of the Government and for the amendment of certain normative acts).

Also during the reference period, only 6.29% of the issued laws contain solutions of rejection of certain simple ordinances or emergency ordinances (71 of 1128), the latter containing provisions establishing permanent legal rules, and not exclusively temporary or transitory solutions, as in the case of the GEO no.131/2006, previously mentioned.

During the period 2017-2018, three amendments were adopted to the generally referred to as laws “of judiciary”. A significant part of these amendments was harshly criticized by the Venice Commission orGRECO, being extremely detrimental to judiciary. As regards these amendments to the “laws of judiciary”, given mainly the insufficiency in the regulation, the gaps, the contradictory provisions, inadequate to the needs of the judicial system, the Romanian Government issued five emergency ordinances (GEO no.77/2018; GEO no.90/2018; GEO no.92/2018; GEO no.7/2019; GEO no.12/2019).

For example,GEO no.77/2018 was adopted with intuitu personae effects, to ensure the continuity of the positions of chief inspector of Judicial Inspection. From the publication date (5 September 2018) and until the date hereof, the GEO no.77/2018 was not approved by the Parliament and nor did the Constitutional Court of Romania rule on those three pleas of unconstitutionality raised on the dockets of courts (the oldest having been raised by a court order delivered on 19 December 2018).

Conclusions

Since the year 2012, the Venice Commission warned about such a constitutional situation, in Opinion no.685/17 December 2012. Almost eight years later, things seem to be identical or even more complicated, the law making in waves carried out by the Government has affected the quality of legislation and has overlooked the principle of balance of powers, and the executive power has carried out an essential and continuous role in legislating.

By the Decision no.28 dated 29 January 2020, the Constitutional Court of Romania itself notices such imbalance, considering that “the Government decision to undertake responsibility does not reflect any emergency to regulate in a given field, does not represent a measure taken in extremis, but rather taking an option opportunistic in nature, to extend over time certain temporary measures ordered under the Government Emergency Ordinance no.7/2019 and to remove from enforcement of the provisions of Law no.242/2018. At the same time, it appears that it was not necessary to adopt such a measure with maximum celerity, and possibly it could have been adopted only under the conditions in which “the major challenges” generated by Law no.242/2018 could not be overcome. 88. As regards the importance of the regulated field, it is found that, in principle, the field of justice is one in which the Government may undertake responsibility [see, for example, Decision no.375/2005]. (…) 90. Given the above, the Court acknowledges that the criticized laws breaches Article 114 of the Constitution and, implicitly, Article 61 paragraph (1) of the Constitution, by excessive limitation of the role played by the Parliament. Hence, it also appears a breach of the constitutional principle of balance of powers [Article 1 para. (4) of the Constitution] since one of the State powers, namely the executive power, assumed a preeminent role in the enactment activity, excessively using an enactment procedure which, by its nature, is exceptional.”

The significant timeframes within which the Parliament approves or rejects normative acts issued by the Government, in the absence of clear time limits provided for in the Constitution of Romania, are liable to lead to subordination, which is contrary to the principle of balance of powers.

In such a context, until an expected constitutional revision, a possible solution would be found in the principle of loyal cooperation and of mutual respect between the state authorities/institutions.

The Supreme Court’s Madhya Pradesh Government Formation Judgment – VI: Some Concluding Remarks

[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 (e.g., the introduction of structural mechanisms to ensure accountability)].

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Late last month, this blog hosted an extensive debate on the Supreme Court’s judgment in the Madhya Pradesh government formation case (see Rishav Ambastha’s initial post on jurisdiction; Anmol Jain’s post questioning the correctness of the judgment; Amlan Mishra and Nivedhitha K.’s posts responding to Amlan; and Amlan’s rejoinder). The judgment is a particularly important one, because it is the first reasoned verdict by the Supreme Court, after many years of interim orders that were passed every time a government formation crisis arose.

In this post, I want to offer a few brief concluding remarks, drawing from the debate. Recall once again that the key question before the Supreme Court was whether the Governor of a state had the power to direct a convening of the legislative assembly, for the purposes of holding a floor test. The Supreme Court held that the Governor did indeed have that power. The key constitutional question was whether this power fell under the “discretion” of the Governor – i.e., whether it was an exception to the general principle that the Governor could only act upon the “aid and advice” of the Council of Ministers. The Supreme Court held that it did.

As the debate between Anmol, Amlan, and Niveditha on this blog demonstrates, a close reading of the Constituent Assembly Debates does not yield a definitive answer to this question. This is why the answer lies in a structural and purposive reading of the Constitution: which interpretation better fits with the Constitution’s overall structure and guiding principles? According to the Court, the argument goes something like this: in the ordinary course of things, when you have an existing government and a functioning house, the accepted way of challenging that government’s legitimacy is through a no-confidence motion, which then culminates in a floor test ordered by the Speaker. However, there may arise situations where a government that has lost the confidence of the legislature impedes or prevents the holding of a floor test, and continues in office de facto. This would be a violation of the principle of collective responsibility, and undermine executive/legislature relationship within a parliamentary structure. It is therefore justified for the Governor to step in, and direct a floor test, for the limited purpose of determining whether or not the government continues to enjoy the confidence of the house. The power of the Governor is thus derived from a structural reading of the Constitution, and the principles of parliamentary democracy.

The problem with the argument, however, is this: the protection of one principle of parliamentary democracy (executive accountability to the legislature) comes at the cost of another: the sovereignty of the legislature to determine the proceedings within the house, and the supremacy of the Speaker. This, indeed, is the key distinction between a government formation dispute after elections but before the formation of the government (which is what happened, for example in the first Karnataka case in 2018), and a government formation dispute when the composition of a functioning house is altered because of the resignation of sitting MLAs. This distinction was drawn by Dr. Singhvi during oral arguments, but was rejected by the Court. The distinction, however, is crucial, for the reasons pointed out above.

Now, the argument made by the Court – and in Amlan’s piece – is that vesting the discretion with the Governor is required because the standard method of bringing down a government that has lost the confidence of the house – i.e., a no-confidence motion – can be circumvented either by an adjournment of legislative proceedings, or by the Speaker simply sitting on the no-confidence motion (indeed, readers will recall that during the previous NDA government at the centre, the Speaker – quite literally – did not allow a no-confidence motion tabled by the Opposition to be voted upon). However – and this came out in Anmol’s rejoinder piece – both these attempts have a straightforward solution: judicial review. The UK Supreme Court has recently taught us exactly how and when a Court may declare a prorogation unlawful: when it is clear that the effect of that prorogation is to defeat the constitutional principle of executive accountability to the legislature. And our own Supreme Court, last November, while considering the issue of money bill, provided strong and persuasive reasons when the discretion of the Speaker can be challenged in Court. If mala fide certification of bills as money bills attracts judicial review, there is no reason why mala fide refusal to hold a no-confidence vote cannot.

The question, therefore, boils down to this: structurally, which is the better option to ensure executive accountability: the Governor or the Court? It is, to my mind, obvious that it is the latter, for the very straightforward reason that the Governor is a central government appointee, and judges are not. Given a choice, further accretion to the powers of the Governor infringes the federal structure in a way expanded judicial power does not.

I think this issue is particularly important, because in deciding these cases, the Court must necessarily navigate through three sets of facts that it cannot turn a blind eye to (and indeed, all three are flagged in the judgment). First: Governors should be neutral, but they are not. They act effectively act as agents of the central government. Second: Speakers should be neutral, but they are not. They effectively act as agents of their parties. And third: horse-trading happens. Legislators are paid staggering amounts of money to switch sides and bring down the government, and the technique of resignations is used to circumvent the rigours of the anti-defection law. A judgment that proceeds on the assumption that any one of these three things does not exist essentially operates in a parallel reality, where constitutional principles have come entirely unmoored from the factual situation that they are meant to apply to.

Now given these facts, how should the Court decide? In a previous post, I argued that the judicial doctrine should evolve in a manner such that the Court does not determine substantive outcomes (such as installing or replacing a government); but also, that the Court needs to ensure that the impact of the three issues highlighted above, upon the democratic process, is minimised. So, for example, in cases involving government formation immediately after a closely-run election: the Court cannot stop horse-trading from happening, but it can – by ordering an immediate floor test – minimise the time open to parties to engage in horse-trading, and curtail gubernatorial abuse (as happened in the Karnataka case). Once again, if in the case of a sitting government, a host of MLAs resign in a coordinated fashion to alter the composition of the house, this is not something the Court can stop; what it can do, however, is prevent the emergence of collusive situations involving the governor and the political party that appointed the governor, by eliminating him from the power equations at play. In addition, the Court’s approach should be informed by the fact that coordinated resignations suggest that horse-trading is going on. Thus, just as there is an overriding need in post-election government formation cases to prevent horse-trading through an immediate floor test, when the horse-trading has already happened (through resignations), an immediate floor test that does not allow the Speaker at least a reasonable amount of time to decide upon the resignations (the extent of the Speaker’s discretion here is a debate for another day) will have the effect of entrenching horse trading.

Some of these factors, I suggest, were bracketed by the Court, as it did not believe it could go into such issues. That, however, is a mistake: the Court is already making (correct) assumptions about the lack of neutrality of the Speaker, when it gives to the Governor the power to direct a floor test. What is sauce for the goose is sauce for the gander: in an ideal world, Speakers and Governors are neutral, and horse-trading does not happen. But we cannot recognise one departure from the ideal – the politicisation of the office of the Speaker – without recognising the other – i.e., bringing down governments through horse-trading. A holistic recognition of the structural problems involved, I would submit, would lead one to Anmol’s answer as the preferable one: the no-confidence motion remains the sole means of testing the continued legitimacy of an elected and functioning government, with the possibility of judicial review in case of an impediment is thrown up.

A final, somewhat unrelated point: as I have noted above, the Court acknowledges, towards the end of its judgment, that horse-trading is a feature of the polity. But here’s the thing: horse-trading is enabled and facilitated by vast amounts of money sloshing through politics, and for the last two years, the sloshing of unimaginable sums has been enabled by the mechanism of electoral bonds, which allow opaque and limitless corporate donations to political parties.  Constitutional challenges to the electoral bond schemes have been pending in the Supreme Court for more than two years, and successive Chief Justices have dodged, ducked, and evaded hearing the case. For this reason, one can only read judicial lamentations about horse-trading with a wry smile: the institution that actually has the power to do something about it (even if is a little bit) is the institution that is refusing to act. Of course, the decision to hear the case lies with the Chief Justice; therefore, it is not that the two judges who authored this judgment are responsible for the delay. But that, unfortunately, is becoming an enduring issue with the poly-vocal character of the Supreme Court: the same institution, speaking through different judges, criticises horse-trading, while refraining from hearing a case that would have a non-trivial impact upon that same horse-trading. If the Supreme Court is to retain its character as a constitutional Court, this problem desperately requires a solution.

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 gatherings 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.

Notes from a Foreign Field: The EU Withdrawal Act 2018, Henry VIII Powers & The threat to Representative Democracy in England (Guest Post)

(This is a guest post by Preetika Mathur.)

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Whilst the judgment of the Supreme Court in NCT Delhi v Union of India is undoubtedly a step forwards for representative parliamentary democracy and the separation of powers in India, England is facing grave threats to both. It seems that the internationally celebrated judgment of the UK Supreme Court in R (Miller) v Secretary of State for Exiting the European Union will not be enough to protect the UK Parliament’s status as the primary law making body vis a vis the executive Government. The EU Withdrawal Act 2018 (the primary piece of legislation designed to implement Brexit) effects a significant transfer of legislative powers from the British Parliament to the executive in a manner that disturbs the established constitutional relationship between the legislature and executive. This is through the use of Henry VIII powers. The Act relies heavily on Henry VIII powers to preserve legal continuity and legal certainty after Brexit.

The Issue:

Article 50 of the Lisbon Treaty governs withdrawal from the European Union. Article 50 provides that the EU Treaties which are the source of all EU laws and institutions shall cease to apply to the exiting State two years after it notifies the European Council of its intention to leave the EU. On the expiry of the two year period, EU laws simply cease to apply to the UK and the UK is no longer subject to the jurisdiction of the European Court of Justice. Article 50 was triggered on 29^th March 2019, after Parliamentary approval. This means that the UK has until 29^th March 2019 to agree the terms of its departure from the EU. On 29^th March 2019, all existing EU laws will simply cease to apply to the UK and it will also no longer be subject to the jurisdiction of the European Court of Justice.

EU law radiates into almost every UK legislative and governmental sphere. To further complicate matters, the extent of its influence also varies from sphere to sphere. For example, in certain areas such as agriculture, fisheries, external trade and environmental regulation it is the dominant or determinative body of law. In other areas such as crime, social security and health it has a marginal impact. In addition, there are a variety of legal mechanisms which are deployed to make EU law have national effect – from Regulations which are immediately enforceable in domestic law to Directives which require national legislation to implement as well as soft law measures.

As a result of these factors, the relationship between EU law and national law is so complicated, interwoven and entangled that in almost every instance it is impossible to determine end of the national and the start of the European. It follows that the consequences of EU law simply ceasing to apply to the UK are likely to lead to a level of chaos and uncertaintanty that poses a serious threat to the Rule of Law. To deal with this problem, the Government has proposed that EU law that is in force before “exit day” should simply continue to remain in force after “exit day”. Indeed, it is difficult to think of any more obvious solution to the lacuna created when the two year period expires. However, the solution of retaining EU law as it existed before “exit day” is far from simple. This is because much of the retained legislation will be unworkable or simply nonsensical after the UK leaves the EU. For example if the law makes reference to EU procedures, EU guidelines, EU decision makers or EU institutions by which the UK is no longer bound and to which the UK no longer has access after “exit day”.

The Government’s Solution:

To deal with the problem of making retained EU law workable, the Government has proposed the widespread use of Henry VIII powers.

Henry VIII powers are powers of delegated legislation. These are conferred on the executive government through primary legislation. Henry VIII powers empower the executive government to amend or repeal existing primary legislation. Delegated legislation is not scrutinised by Parliament in the same way as primary legislation. The Government’s justification for reliance on Henry VIII powers is practical necessity. They take the position that given the tight timetables for departure from the EU and thousands of instances of potential unworkability that are likely to arise in retained EU law, it will simply be infeasible for Parliament to deal with every one itself.

Nevertheless, in spite of the logic of these practical arguments it is clear that the Act elevates powers intended to be exceptional into the norm. It is not the case that the Act merely allows formalities and technical matters to be resolved through the use of Henry VIII powers. Instead, the scope of the powers conferred is such as to enable sweeping substantive changes to policy and to the constitution without proper democratic scrutiny. This is clear from Clauses 8, 9 and 23 in the Act and the lack of corresponding safeguards.

Problems:

Once triggered clause 8 provides Ministers with the same legislative power as Parliament. Clause 8 (5) empowers Ministers to ‘make any provision that could be made by an Act of Parliament’. Since the reach of the powers is so broad, the circumstances in which such powers may be triggered ought to be strictly curtailed but this is not the case. Clause 8 provides for an exceptionally wide set of circumstances in which executive power to amend or repeal primary legislation may be triggered.

Clause 8 sets the following threshold for the triggering of Henry VIII powers:

“A Minister may by regulations make such provisions as the Minister considers appropriate to prevent, remedy or mitigate – (a) any failure of retained EU law to operate effectively, or (b) any other deficiency in retained EU law”.

Clause 8 makes the decision of when to exercise Henry VIII powers the subjective decision of the Minister. The level of subjective satisfaction required before the Minister can decide to use these powers is low. This is because a Minister is only required to consider it “appropriate” to use Henry VIII powers as opposed to “necessary”. The House of Lords Constitution Committee had previously recommended setting the threshold at “necessary” as opposed to “appropriate” in order to establish stricter internal constraints on the decision making of the executive. By setting the trigger at “appropriate” as opposed to “necessary”, resort to Henry VIII powers is not made a matter of last resort and there is nothing indicating that these powers should be used with extreme reserve or indeed even cautiously. This also enables the executive to decide to use these powers based on subjective policy preferences alone.

The drafting of Clause 8 to favour “appropriate” as opposed to “necessary” also has important consequences when it comes to judicial review of the exercise of a Henry VIII power by a Minister. The exercise of Henry VIII powers is judicially reviewable on the basis that the exercise of the power is ultra vires the parent act and outside of the scope of the power that was conferred by the parent act. Therefore, setting the threshold at “necessary” as opposed to “appropriate” would also have given the judiciary greater opportunity for stricter scrutiny of these powers through judicial review.

The executive discretion with respect to when Henry VIII powers may be used is also widened by the definition of ‘deficiency in EU law’ for the purposes of interpreting clause 8. Clause 8 (2) provides that the existence of a deficiency in EU law is also a matter for the subjective determination of the relevant Minister as opposed to being an objective standard.

Further Clause 8 (2) contains a list of situations that amount to a deficiency in EU law that are drafted so broadly that virtually any situation could be said to fall within this list. The first of the specified situations, Clause 8 (2) (a) illustrates this breadth. Clause 8 (2) (a) provides that:

“Deficiencies in retained EU law are where the Minister considers that retained EU law – contains anything which has no practical application in relation to the United Kingdom or any part of it or is otherwise redundant or substantially redundant…”.

It follows from this that if a minister considers it appropriate to amend or repeal primary legislation on the basis that in their opinion the legislation is no longer of practical application they can do so. There is no further definition of “practical application” and this easily lets in the subjective policy preferences of the individual minister. For example, this would enable a minister who considers that work place safety or anti discrimination regulations no longer have practical application on the basis of their political ideology to amend or repeal such laws on the basis that they consider it appropriate to do so.

Further, the situations specified in Clause 8 (2) are not exhaustive because of Clause 8 (3). Clause 8 (3) further widens the net by providing that anything of a similar kind to that contained in clause 8 (2) but not actually listed in clause 8 (2) would also count as “a deficiency in retained EU law”. “Of a similar kind” is also not further defined and given the wide range of disparate situations included in Clause 8 (2) – the combined effects of Clause 8 (2) and Clause 8 (3) is to ensure that the amending or repealing of primary legislation is justifiable in almost every situation on the basis of ‘a deficiency in retained EU law’.

Clause 8 includes some restrictions on the delegated powers, such as the stipulations in Clause 8 (7) that the Henry VIII powers cannot be used to impose or increase taxation or fees; make retrospective provisions; create certain types of criminal offence; establish a public authority; amend, repeal or revoke the Human Rights Act 1998 or subordinate legislation made under it; or amend or repeal the Scotland Act 1998, the Government of Wales Act 2006, the Northern Ireland Act 1998.

Nevertheless, these restrictions do not protect the wide range of rights contained in domestic law which originate from EU law as opposed to from The European Convention of Human Rights through The Human Rights Act. For example, the majority of labour, anti discrimination, environmental, health and safety, social security and data privacy protections arise from EU law. This creates the potential for the removal of hard-won EU fundamental rights protections by the executive through the backdoor.

In the Third Report of the Delegated Powers and Regulatory Reform Committee of the House of Lords from its 2017 – 2019 session, the Committee has given numerous examples of instances where Henry VIII powers could be used to undermine EU fundamental rights protections through the backdoor. The Committee gives the example of the EU Data Protection Regulation which will become retained EU law. Referring to Clause 7 of the Bill, now Clause 8 of the final Act, it states:

“Clause 7 allows Ministers to amend it if they think it “appropriate” to remedy any failure of the law to operate effectively arising from the UK’s withdrawal from the EU. Under the Regulation, individuals have rights of access to personal data subject to exceptions such as national security, defence and public security. Ministers might take the view that, once we no longer have to recognise the supremacy of EU law when we have left the EU, the exceptions to data access rights do not operate effectively as regards EU citizens resident in this country and should be widened under clause 7 to prevent them, say, from having a right of access to immigration information held about them by the Home Office”.

Clause 9 of the Act is also similarly broad both with respect to the circumstances in which the powers to amend, modify or repeal primary legislation may be triggered and the scope of the powers once triggered. Clause 9 allows the executive to amend, repeal or modify primary legislation if the Minister considers it to be appropriate to implement the withdrawal agreement. Further, the Act also confers a range of other Henry VIII powers on ministers i.e. through Clause 23 which empowers Ministers to use Henry VIII powers to make “such provisions as the minister considers appropriate in consequence of the Act”. Clause 9 also contains similar restrictions to Clause 8 on the circumstances when the Henry VIII powers may not be exercised – and are subject to the same fundamental rights concerns.

Lack of Safeguards:

Given the sweeping nature of the transfer of legislative powers to the executive it is necessary that the Act should contain important safeguards to mitigate for the breadth of the powers that are conferred. Sadly, this is not the case either.

The Act includes sunset clauses that provide a time limit on the use of the Henry VIII powers. Clause 8 (8) sets a two year time limit after “exit day” on the Henry VIII powers to deal with deficiencies in retained EU law. Clause 9 (4) also provides that Henry VIII powers cannot be used to implement the withdrawal agreement after exit day. Nevertheless, the time period in which the powers may be exercised is still sufficient for widespread use of the powers that are conferred. The government has indicated that it envisages reliance on these powers thousands of times in the run up to and immediately following “exit day”.

Leading NGOs in the UK such as LIBERTY had previously proposed that the Act should contain a “non-retrogression clause” that would state that Henry VIII powers could not be used to worsen human rights protections. This was not included in the final Act. Similarly, Tarunabh Khaitan had previously proposed that the Act should contain a clause expressly stating that amendments to the constitutional scheme could not be carried out through the use of Henry VIII powers. This was also not included in the final Act.

The need for a “non retrogression” or a “no constitutional amendment” clause is all the more pressing in the context of English Constitutional law because of the paucity of implied limitations on the use of such powers. On the contrary, given the supremacy of Parliament in English constitutional law which entails that Parliament can make or unmake any law – the conferral on Ministers of the same power as Parliament can be said to expressly indicate the lack of limitations on these powers. Clause 8 (5) says that regulations made through use of Henry VIII powers may make any provision that may be made by an Act of Parliament.

Tarunabh Khaitan has previously suggested that the exercise of these powers may be subject to the implied limitation of the principle of legality. As Lord Pannick argued in his submissions before the UK Supreme Court in Miller, the common law principle of legality requires Parliament to expressly provide for any abrogation of rights considered fundamental at common law. However, for our purposes there are at least four problems with this argument. Firstly, it can be argued that EU law derived rights are no longer fundamental at common law after Parliament has expressly approved Brexit and after the repeal of The European Communities Act 1972. It was The European Communities Act 1972 that made EU fundamental rights part of domestic law. Secondly, it can in any case be argued that since Parliament has expressly conferred such broad Henry VIII powers on ministers through primary legislation that it envisages these powers could be used to amend or repeal rights protections. Thirdly, the use of the common law principle of legality as a sword remains contentious. There is insufficient precedent to suggest that the Courts would take such an approach when reviewing the exercise of Henry VIII powers. On the contrary, in the case of R (Public Law Project) v Sectrary of State for Justice, the Supreme Court explained that when it comes to review of Henry VIII powers it would consider the narrower question of whether the exercise of a Henry VII power exceeds the statutory purpose for that power that was set out in the parent act that confers the power. Fourthly, when it comes to guiding the actions of ministers who are using such powers – an explicit non retrogression clause or an explicit no constitutional amendment clause contained within the statute itself would have had greater action guiding force than the common law principle of legality. For all these reasons the principle of legality is of itself not sufficient to do the work of an explicit “non retrogression clause” or a “no constitutional amendments” clause.

The Government has also failed to propose any bespoke and adequate system of scrutiny over the powers conferred. It proposes mainly to rely on pre-existing processes, which include ‘Affirmative Resolution’ and ‘Negative Resolution’ processes. The former requires Parliamentary approval of Government draft changes; in the latter the onus is on Parliament to veto Government drafts. Nevertheless, even in the former, the proposals are not subject to the same kinds of debate and discussion as primary legislation. There is a risk of these procedures being merely rubber stamps.

Constitutional Impact:

It is clear that delegated legislation powers sit uncomfortably with principles of settled common law.

From as early as 1610, the English judiciary has sought to curtail the use of Henry VIII powers. In The Case of Proclamations, Sir Edward Coke CJ held that:

“No man not even a king, should have such power to make, amend or repeal primary legislation without Parliament”.

In the 1920s Lord Chief Justice Hewart published a book titled ‘The New Despotism’, in which Henry VIII powers were described as arbitrary bureaucratic powers.

The Donoughmore Committee had expressed serious concerns about the increasing resort to Henry VIII powers in its 1932 report, The Report of the Committee on Ministers’ Powers. The Committee stated that in spite of the quantatively insignificant number of times these were relied upon over the period studied by the Committee these powers were a cause for concern. The frequency of reliance on Henry VIII powers envisaged by The EU Withdrawal Act is clearly far greater than anything that could be considered legitimate by The Donoughmore Committee report.

In McKiernon v Secretary of State for Social Security, Lord Donaldson emphasised that Henry VIII powers should be a highly restricted exceptional measure and not the norm. He stated:

“Whether subject to the negative or affirmative resolution procedure, [subordinate legislation] is subject to much briefer, if any, examination by Parliament and cannot be amended. The duty of the courts being to give effect to the will of Parliament, it is, in my judgment, legitimate to take account of the fact that a delegation to the Executive of power to modify primary legislation must be an exceptional course and that, if there is any doubt about the scope of the power conferred upon the Executive or upon whether it has been exercised, it should be resolved by a restrictive approach.’

The House of Lords Constitution Committee in its 6^th report of Session 2010 – 11 on ‘Public Bodies Bill [HL]’, has expressed strong criticism on widespread use of Henry VIII powers. At paragraph 4 it has stated that Henry VIII powers “remain a constitutional oddity” and that “they are pushing at the boundaries of constitutional principle that only Parliament may amend or repeal primary legislation”. At paragraph 6, the Committee goes on to say that: “The use of Henry VIII powers whilst accepted in certain limited circumstances remains a departure from constitutional principle. Departures from constitutional principle should be contemplated only where a full and clear explanation and justification is provided’. ‘a constitutional oddity’ and ‘pushing at the boundaries of the Constitutional principle that only Parliament may amend or repeal primary legislation’.

The practical benefits of the delegated legislation powers conferred come at immense cost to the constitutional settlement. Representative parliamentary democracy became entrenched in the English Constitution through The 1688 Bill of Rights and has been sacrosanct ever since. By making exceptional powers the norm the soon to be EU (Withdrawal) Act undermines representative parliamentary democracy itself. The erosion of Parliamentary power is all the more problematic given that it is driven by a Government which failed to win a majority in the Commons in support of its legislative agenda for Brexit. Even more so because of the undemocratic nature of the referendum which led to Brexit in the first place. The referendum failed to take into account that the British constitutional settlement is founded on representative Parliamentary democracy. The EU Withdawal Act 2018 has same fundamental misassumptions at its core.