Guest Post: The Andhra Pradesh Ordinances Case – Towards Substantive Judicial Review

[This is a guest post by Amlan Mishra.]


The Andhra Pradesh High Court, in a 332 page judgement delivered two weeks ago, struck down an ordinance, which had reduced the term of office of the State Election Commissioner (SEC) from 5 to 3 years and varied the criteria for selection (effectively removing the incumbent SEC). The constitutionality of this variation in terms of office and the SEC’s consequent removal has been commented upon in this blog. The court’s decision echoes much of what was said in this blog about this issue. However, in this post, I will explore how the court dealt with the constitutionality of the ordinance and the standard of review it must be subjected to. I will argue that the court puts forth a substantive standard of review which if pursued by constitutional courts will be crucial to save democracy from executive aggrandisement. I will borrow from the Miller II case and argue that the AP case also provides an opening for transplanting Miller II’s standard of review in India.

Law on constitutionality of ordinances: a formal limited review

In Krishna Kumar v. Union of India (Krishna Kumar II), a 7-judge bench of the Supreme Court provided doctrinal clarity on constitutional review of ordinances. To summarise, the court rejected the simplistic textual reading of Article 123 and 213 which provides that ordinances will have the same ‘force and effect’ as an Act of the Parliament. The court noted that the ordinance power was not a prerogative power of the Governor/ President, but is subject to a condition precedent (the governor should be satisfied that ‘immediate action’ has to be taken) and condition subsequent (the ordinance should be laid on the floor of the house). An ordinance, it concluded, does not merit the same deference as an act of a parliament, and can be challenged for violating either condition. About the condition subsequent, the court noted that this is a mandatory condition, which was a deliberate break from the colonial past. In the past the Governor General had the power to promulgate some ordinances without laying them in the legislature. About the condition precedent, the court held that the Bommai standard of review would apply to the presidential/gubernatorial satisfaction of the ‘necessity’ to take immediate action:

The truth or correctness of the material cannot be questioned by the court nor will it go into the adequacy of the material. It will also not substitute its opinion for that of the President. Even if some of the material on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action. The ground of mala fides takes in inter alia situations where the Proclamation is found to be a clear case of abuse of power, or what is sometimes called fraud on power — cases where this power is invoked for achieving oblique ends.

Thus, the court will not probe the adequacy of the material to see if immediate action is warranted. If some irrelevant considerations are mingled with relevant considerations, then the relevant considerations alone will suffice to support the ordinance. In words of J. Chandrachud in Krishna Kumar II, it is only when the “court finds that the exercise of power is based on extraneous grounds and amounts to no satisfaction at all that the interference of the court may be warranted in a rare case.

Notice that in deciding relevancy of the material, the court’s approach in Bommai and in Krishna Kumar was a formal or procedural review. Moreover, some relevant criteria (accompanied with other irrelevant considerations) may be enough to declare the satisfaction of the governor or the president constitutional. Scholars have expressed concerns that procedural review may allow any vaguely relevant material to be supplied by the government in order to pass the ‘relevancy’ test. Prof. Shubhankar Dam in his book Presidential legislation in India (2013), suggests that a substantive review may better probe the real inspiration of an ordinance to correctly understand if ‘immediate action’ is warranted

A more searching review: Prof Sbubhankar Dam’s proposal for substantive review

To illustrate how a more searching substantive review is important, Prof Dam takes the example of a hypothetical Bank Nationalisation ordinance. The putative goal of the ordinance is to remedy financial collapse and unemployment. However, some ministers are said to benefit from it. Prof Dam argues that to understand if the ordinance is ‘necessary’ to take immediate action, wading into pre-legislative controversies is crucial. A more searching review of motives by leading evidence may become crucial.

Prof. Dam contrasts the procedural review in the Bommai case (followed in both Krishna Kumar I and Krishna Kumar II) with another older case of the Karnataka HC: Hasnabha v. State of Karnataka. In Hasnabha, elected members of agricultural committee were removed vide an ordinance by making the membership of the committee a nominated position. The putative goal of the government was to include ‘experts’ in these committees and nominate ‘weaker sections’. What would happen here if the Bommai standard of procedural review (which checks if relevant material is present for the satisfaction), was applied in this case? The government’s putative goal offers some ‘relevant’ material, possibly enough to justify the constitutionality of the Act. The court in Hasnabha however applied a more searching review along two lines by appreciating evidence advanced by both sides in depth.

First it examined the content of ordinance and the argument for relevancy put forth by the government. It noted that elections did not foreclose the prospect of having ‘expert members’ as the voting was from amongst expert traders and agriculturalists. It also noted that representing weaker sections and having experts (the two putative reasons the government provides) were inherently contradictory. It concluded that weaker sections were already well represented by reservations as per the old Act. Second, the timing and background of the decision became crucial for the court. The ordinance was brought immediately after the election results were published. Why was the ordinance not brought before the elections? The court brought on record statements made by the Chief Minister on the Assembly floor that these ordinances were crucial for furthering ruling party interest.

Marshalling all this information and leading detailed evidence, the court concluded that the exercise of power was malafide and not inspired by the need to take immediate action.

In summary, contrasting Hasnabhai with the two Krishna Kumar cases illustrates how sifting though pre-legislative controversies is crucial to see if the situation warranted ‘immediate action’. Here a searching review becomes crucial, to stop the subversion of democratic institutions by tokenistic justifications. Examining the broader context of the decision is crucial to see if the ordinance is a tool for circumventing legislative scrutiny and achieving mala fide goals.

The Andhra Pradesh Ordinance case: a prototype for substantive review

To begin with, the Andhra Pradesh High Court does something extraordinary. It summons on record all the files which form the basis of the governor’s satisfaction. Notably, these files were being used by the government to defend its case and were upon request of the petitioner taken on record. As we shall see, the court however does a deep analysis of these files to hold against the government. This in my view is extraordinary even by Hasnabha standards where the court in making its determination had merely relied upon submissions made by government advocates and the ordinance itself to know about the basis of the Governor’s satisfaction.

The court notes that while the ‘purported goal’ of electoral reform appears in these files, the underlying animosity between the ruling party and the SEC is also very evident. Here, a deferential court using a ‘formal Bommai Standard of review’ may have taken this one ‘relevant’ purpose of ‘electoral reforms’ to adjudge this ordinance sufficiently ‘necessary’. But the court holds otherwise, after an in-depth perusal of the four files, which reveal an undercurrent of animosity.

To further establish this ‘oblique motive’ the court relies on evidence led by the petitioners. The SEC, it notes had become unpopular with the ruling party members for calling out election malpractices in local elections. The history of prior litigation with the government, arising out of the decisions taken by the SEC is marshalled to set the factual background of the ordinance. Also is cited the letter the SEC had written to the Union Home Ministry ringing bells about election violence and verbal attacks on him. The statements of Chief Ministers and influential ruling party members criticising the SEC for partisanship also enter the court’s considerations. Much like Hasnabha, the court asks why the idea of ‘electoral reforms’ through this ordinance was brought only after the SEC had deferred local body elections (much to the chagrin of the ruling party). The effect of the ordinance given this background and timing, the court argues, was to do away with an unfavourable SEC and his decision of deferral of elections.

The court concludes:

The aforesaid circumstances clearly reveal that upto 07.03.2020 and 09.03.2020, at the time of declaration of the Election Notification, there was no point regarding electoral reforms. The issue arose only on issuance of notification on 15.03.2020, suspending the election notification and postponing the elections, and when the State Government remained unsuccessful before Hon’ble the Supreme Court in challenging the said notification. The SEC projected the unprecedented events and acts of the ruling party to the Central Government, which is controverted by other side. The statements of the Council of Ministers to sack Mr.A are on record. Thereafter, on the basis of two or three complaints, the entire action has been taken in the name of electoral reforms and promulgated the impugned Ordinance, making amendment to Section 200 of the APPR Act.

Looking to the aforesaid events, in our considered opinion, there is no public interest or constitutional necessity exists to take immediate action by the Governor for promulgation of Ordinance. In the manner the events took place, it indicates the desirability of the State Government to bring the Ordinance in the name of electoral reforms to remove the incumbent SEC, Mr.A and the power so exercised by the Governor under Article 213 of the Constitution cannot be said to be based on the satisfaction of the circumstances exist which may render it necessary for him to take immediate action…….. In fact, the action has been taken merely on the desirability of the State Government, without there being any public interest or constitutional necessity warranting exercise of the power for promulgation of the impugned Ordinance.

Notice that the court does an extensive substantive review here by correctly laying down the circumstances of the decision and weighs the purported goal of ‘electoral reforms’ against much of what was said and done by the ruling party against the incumbent SEC. It correctly highlights the pre-legislative controversies, without the appreciation of which adjudging ‘necessity’ of the decision would have been difficult.

Sadly, the court does not attempt to reconcile its substantive review with the aforementioned Bommai formulation on procedural review. In practice however it breaks with the Bommai standard of limited review and weighs the impact of the ordinance by taking on record evidence about the controversial background of the ordinance. It concludes that the satisfaction is not well founded.

Substantive review: transplanting Miller’s effect test into India

Under this head, I propose to examine how insidious democratic backsliding can be countered if substantive review is deployed by courts to judge the effect of government action on democratic institutions. As a case in point, in the recent Miller II case in the UK, the decision to prorogue the parliament (which had the effect of shortening parliamentary discussion on the impending Brexit) was in question. The court had this to say about adjudging the constitutionality of the prorogation

For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing (b), without reasonable justification (a), the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course (at para. 50)

Scholars have highlighted that this kind of review, which looks at the ‘effect of the decision’, breaks with the old ‘Wednesbury’ principle (of the reasonable person) and proposes a more searching substantive review. If the act has the effect to frustrate democratic principles, the burden of providing reasonable justification lies on the executive. Unlike Bommai where mere some formal relevancy would suffice, this test probes the question of relevancy in detail. The Bommai case on the other hand is based on a similar Wednesbury ‘reasonable person’s judgement’ of whether the material supplied is relevant to necessitate promulgation on ordinance.

Prof. Khaitan here has rightly pointed out (in the context of Miller prorogation case) that democracy is being threatened and executive aggrandisement happens in very insidious ways. Borrowing from discrimination law, he proposes the effects test to check if the state action has the effect of frustrating a democracy. Notice how the Miller test (quoted above), which we grouped into (a) and (b) is echoed in Prof. Khaitan’s formulation:

“(a) for an improper purpose

(b) when the probable effect of such dissolution would be to frustrate state parliamentary action in a matter where the passage of intervening time would present it with a fait accompli…”

 

Prof. Khaitan retains the ‘purpose’ test (a), which is much like the Bommai test to check ‘relevancy’ of material which forms the basis of presidential satisfaction. However, his test goes one step forward and evaluates if the act has the effect to frustrate a democratic body’s functioning (b). Contrary to the Bommai formulation wherein oblique purpose has to be attributed to the executive, sometimes without much analysis, a substantive review presents a better way to adjudge the effect of government action, in cases of sly democratic subversions.

Allowing the court to take into account the full range of evidence and circumstances rather than limiting it to a limited review of relevant materials placed before it, becomes crucial here. Even in the Miller case, the court undertook substantive review to appreciate the context and timing of the decision: that “a fundamental change (Brexit) was due to take place in the Constitution of the United Kingdom on 31st October 2019”. A longer prorogation precisely in this background, could not be reasonably justified by the government. Thus the prorogation had the effect of frustrating parliamentary accountability without justification.

In India given the present Bommai standard of review, transplanting this Miller-effect test does not appear feasible. I argue that a tradition of cases starting from Hasnabhai in Karnataka and the present AP Ordinance case provide an opening, to graft the effect test in India. These cases pay lip-service to the Bommai standard and do not explicitly break from it to articulate any new kind of review. In practice however, they provide a much stronger standard of review. They examine the timing and impact of anti-democratic government action (of overturning elections and overruling an election officer) (b), and attempt to weigh this against the material/evidence supplied by the government justifying its actions (a). This accurately mimics the Miller’s effect test (b) and examination of whether the effect has a ‘reasonable justification’ (a).

The immediate need of this transplant is in the Kashmir case. Here, as Gaurav Mukherjee has pointed out the Bommai standard of adjudging ‘relevancy’ of material does little to arrest the permanent subversion of ‘consent’ of federal units effectuated through the President’s rule and presidential order. There is pressing need that India move towards a substantive judicial review involving attention to these background and a detailed examination of evidence to understand the effect of actions of higher constitutional functionaries on democratic principles.

Guest Post: Jammu and Kashmir’s New Domicile Reservation Policy – Some Constitutional Concerns

[This is a Guest Post by Varun Kannan].


On 31st March, the Ministry of Home Affairs notified the Jammu and Kashmir Reorganization (Adaptation of State Laws) Order, 2020 (‘the Adaptation Order’). This executive order has, inter alia, created a new domicile reservation policy for government jobs in the Union Territories of Jammu and Kashmir and Ladakh.

After explaining the procedure adopted for enacting this new domicile reservation policy, I shall raise certain constitutional concerns with respect to this procedure. Specifically with respect to the newly constituted Union Territory of Jammu and Kashmir, I shall argue that the conversion of the erstwhile State into a Union Territory, coupled with the continued imposition of President’s Rule has given the Centre Government a carte blache to enact such policies without any pre-legislative consultation.

The Adaptation Order and the new domicile policy

Through the Adaptation Order notified by the Union Home Ministry, a total of 127 State laws applicable to the Union Territories of Jammu and Kashmir and Ladakh have been amended or repealed. The State legislation which has been amended to give effect to the new domicile policy is the Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010. The Adaptation Order has inserted Section 3A to this Act, which prescribes new eligibility criteria to be deemed as a ‘domicile resident’ of Jammu & Kashmir. The new eligibility criteria inter alia includes requirements such as (i) the person should have resided in Jammu & Kashmir or Ladakh for a mimumum period of 15 years; or ii) the person should have studied for a period of seven years and appeared for Class 10th/12th Board Examinations through an educational institution located in the Union Territory.

After the notification of the Adaptation Order, there was an uproar over the ‘inadequacy’ of the new domicile reservation policy, as it was applicable only to a limited category of government jobs. The Union Home Ministry then notified a Second Adaptation Order on 3rd April, which took into account this stringent criticism and extended the applicability of the new domicile reservation policy to all government posts.

In the Adaptation Order, it is stated that this Order derives legal force by virtue of Section 96 of the Jammu and Kashmir Reorganization Act, 2019 (‘the Reorganization Act’). To recall, the Reorganization Act has bifurcated the erstwhile State of Jammu and Kashmir into two separate Union Territories of Jammu & Kashmir and Ladakh respectively. This statute was introduced simultaneously with the Presidential Order and the Statutory Resolution which amended Article 370 of the Indian Constitution, on 5th August 2019. To understand the nature and purpose of the Adaptation Order, it is instructive to refer to Section 96 of the Reorganization Act. Section 96 falls under Part XIV of the Reorganization Act, which consists of “Legal and miscellaneous provisions”. It states as follows:

For the purpose of facilitating the application in relation to the successor Union Territories, of any law made before the appointed day, as detailed in Fifth Schedule, the Central Government may, before the expiration of one year from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority. (emphasis supplied).

 

The Fifth Schedule referred to above consists of the Central and State Laws that are applicable in the newly formed Union Territories of Jammu and Kashmir and Ladakh. One striking aspect of Section 96 is that it confers the Central Government the power to amend or repeal any Central or State law applicable in the Union Territories, if it considers it to be ‘necessary and expedient’. This power is available for a period of one year from the appointed date i.e. the date on which the Reorganization Act came into force, which was fixed as 31st October 2019. Now, such a provision enabling the adaptation and modification of existing laws by the Executive is not unique to this Reorganization Act. A similar provision is also present in the Section 101 of the Andhra Pradesh Reorganization Act, 2014, which confers the appropriate government with similar powers of adaptation and modification.

Now an important question arises with respect to the scope and ambit of the power of ‘adaptation and modification’ conferred by Section 96. The question that arises here is whether the power conferred by Section 96 is limited to making adaptations and modifications solely for purposes of procedural and administrative efficiency, and whether it extends to making policy alterations, such as the new domicile policy.

The scope and ambit of the power of ‘adaptation and modification’.

From a plain reading of Section 96, it is evident that the purpose of this provision is to adapt or modify any law for the purpose of facilitating its application to the successor Union Territories, if the Central Government feels that it is necessary and expedient to do so. This is further qualified by a one-year time limit, which means that adaptations and modifications can be made for a period of one year from the date on which the Reorganization Act has come into force.

The presence of a one-year time limit and the words “for the purpose of facilitating the application in relation to the successor Union Territories, of any law” indicates that such adaptations and modifications made through executive orders can be undertaken only for procedural and administrative matters connected with the bifurcation and the conversion of the erstwhile State into a Union Territory. This also implies that policy changes made through executive orders which are unconnected to this process of facilitating the application of existing laws shall be beyond the ambit of Section 96. This interpretation is also in line with the Supreme Court’s decision in the landmark In Re: The Delhi Laws Act case, where it was held that the Legislature cannot delegate matters of legislative policy to the Executive.

Keeping in mind the wording of Section 96 and the In Re: Delhi Laws Act decision, it can be argued that Section 96 cannot be used to make any substantive policy changes by amending existing laws; and it is restricted to matters of procedure and administration that are necessary for facilitating the smooth application of existing laws to the newly constituted Union Territories. Hence, the question that arises here is whether the Adaptation Order, insofar as it amends an existing law to create a new domicile policy, is ultra vires Section 96, and whether it goes beyond the ambit of the parent statute. At first glance, the answer may appear to be in the affirmative. However, there are other provisions in the Reorganization Act and the Indian Constitution, which may be invoked as possible justifications.

A possible constitutional justification?

To address this issue, it is significant to note that as per the Reorganization Act, the Union Territory of Ladakh does not have a Legislature, and is to be administered by a Lieutenant Governor, acting on behalf of the President. On the other hand, the Union Territory of Jammu and Kashmir follows a model similar to Pondicherry and Delhi, and is envisaged to have a Legislature and a Council of Ministers headed by the Chief Minister. As the Union Territory of Ladakh does not have a Legislature and is to be administered solely through the Lieutenant Governor, the Adaption Order may be justified by referring to Section 58 of the Reorganization Act, and by invoking Article 240 of the Indian Constitution.

Section 58 makes Article 239 and Article 240 applicable to the Union Territory of Ladakh. Article 240 accordingly states that for Union Territories that fall within the ambit of Article 239 (such as Pondicherry and now Ladakh), any Regulation made by the President which amends or repeals any applicable law shall have the same force as an Act of Parliament. Hence, with respect to the Union Territory of Ladakh, the Adaption Order can be considered as a Regulation made by the President under Article 240, and can be justified on these grounds. However, with respect to the Union Territory of Jammu and Kashmir, the position is significantly different.

Unlike Ladakh, Article 240 is inapplicable to the Union Territory of Jammu and Kashmir. This is by virtue of Section 13 of the Reorganization Act and the proviso to clause (1) of Article 240. Section 13 states that the provisions contained in Article 239A of the Constitution as applicable to Pondicherry shall also be applicable to the Union Territory of Jammu & Kashmir. Furthermore, the proviso to Article 240(1) states that if a body is created under Article 239A to function as the Legislature for the Union Territories enlisted under Article 239A (which now includes Pondicherry and Jammu and Kashmir), then until the first meeting of the legislature, the President may make Regulations for that Union Territory.

This may be used as a justification by the Central Government in a possible constitutional challenge, as the Union Territory of Jammu and Kashmir is currently under President’s rule, and no Legislative Assembly has been created after the passage of the Reorganization Act. It may contend that even if the Adaptation Order is ultra vires the ambit of Section 96 of the Reorganization Act, it is saved by Article 239A and the proviso to Article 240(1). Another justification that the Central Government may give is that following the 5th August statutory resolution, the concept of ‘permanent resident’ as given in the Jammu & Kashmir Constitution has ceased to exist.

This is because following the 5th August statutory resolution, the Jammu & Kashmir Constitution (which defined a permanent resident under Article 6) has been done away with. Along with this, even Article 35A of the Indian Constitution, which empowered the State Legislature to define the “permanent residents” of the erstwhile State, was abrogated. This abrogation of the concept of “permanent resident”, it can be argued, has led to a vacuum in the domicile eligibility criteria applicable in the newly constituted Union Territories.

Imposition of President’s rule and conversion into Union Territories: A larger constitutional question

Keeping this possible justification aside, there is a larger constitutional question that we must address here. As the Union Territory of Jammu and Kashmir is envisaged to have a Legislative Assembly, Article 239A read with the proviso to Article 240(1) permits the issuance or executive orders by the President (i.e. the Central Government) only until the first meeting of the Legislative Assembly, after fresh elections are held. It is pertinent to note here that Jammu & Kashmir was under President’s rule prior to its conversion to a Union Territory, and has continued to remain in President’s rule even after 31st October 2019 (when the Reorganization Act came into force). Article 356 of the Indian Constitution has continued to hold fort in Jammu and Kashmir since 19th December 2018, and there is no information on any proposal to have fresh elections in the near future. The continued imposition of President’s rule and the conversion of the State into two separate Union Territories has given the Central Government a carte blanche to indiscriminately take advantage of the statutory and constitutional provisions referred to above, and rule by executive decree.

The rationale behind the Central Government wanting this unbridled power can be highlighted by referring to the Supreme Court’s decision in NCT of Delhi v. Union of India. In its decision, the Supreme Court held that although Delhi is a Union Territory and akin to a quasi-State, the actions of an elected government and an elected Legislature shall bind the Lieutenant Governor – for all matters that are within its legislative domain. Although this decision was based on an interpretation of Article 239AA of the Constitution, it applies squarely to Jammu & Kashmir – as akin to Delhi, Jammu and Kashmir is envisaged to have a Legislature despite being a Union Territory. This implies that for all matters within its legislative domain, the Legislature of the Union territory of Jammu and Kashmir shall stand supreme, and bind the Lieutenant Governor and Central Government. Hence, if fresh elections had been held and a Legislative Assembly had been constituted, the Home Ministry could not have indiscriminately taken the benefit of 239A, the proviso to Article 240(1), and Section 96 of the Reorganization Act, to bring about radical changes such as the new domicile policy.

As pointed out above, the new domicile policy had been criticized by leaders across political parties, who claim that it is inadequate, and only granted domicile reservation for a limited category of government jobs. Fearing major backlash, the Home Ministry notified another Adaptation Order and amended the law once again, to bring within its ambit all government posts. This is exactly what exacerbates the problem further. If there was an elected Legislature in the first place, such a domicile policy could only have been passed through legislation, after a debate and discussions involving members from across party lines. The conversion to Union Territories coupled with the imposition of President’s rule has prevented any such discussion from taking place, and has granted the Central Government a carte blanche to make policy prescriptions without any pre-legislative consultation process.

While the Home Ministry is free to contend that once there is an elected legislature, the Legislature may further amend or repeal the changes after discussion, this shall only buttress my primary point – that as the presence of a Legislature is envisaged, such legislative policy prescriptions should be left solely within its domain. This only culminates in one common end – which is the need for a greater legal and judicial conversation on whether it is within the spirit of the constitutional framework to indefinitely impose and repeatedly extend President’s rule under Article 356, and rule virtually by executive decree. Until this status quo remains, there shall only be rule by law in Jammu & Kashmir, and not rule of law.

The Citizenship (Amendment) Act Challenge: Three Ideas

Thus far, the constitutional debate around the Citizenship (Amendment) Act has been framed around the following arguments: (a) does the grant of immunity and citizenship to a select group of migrants violate the principle of “reasonable classification” under Article 14, by virtue of the individuals and groups it excludes?; (b) does the selection of groups lack any “determining principle”, and is therefore unconstitutionally arbitrary?; and (c) by privileging religious persecution over other forms of persecution in claims to citizenship, does the CAA violate the basic feature of “secularism”?

In this post, I attempt to move beyond these basic arguments which have – by now – run their course in the public sphere. Beyond reasonable classification, arbitrariness, and secularism, I will suggest that there are deeper reasons to hold the CAA unconstitutional. As it will become clear, a closer engagement with these reasons will require us to rethink some of our long-held assumptions about Indian constitutional law. As I shall argue, however, these are not radical or off the wall arguments, but rather, implicit within constitutional practice. I shall argue, first, that the principle of equality under the Indian Constitution has moved beyond the classification and arbitrariness tests (as I have argued before); secondly, that – contrary to a widespread assumption in our legal culture – citizenship laws deserve greater judicial scrutiny instead of judicial deference; and thirdly, that notwithstanding the language of Article 11 of the Constitution, there exist implied limitations upon Parliament’s power to confer or withdraw citizenship – limitations that flow from the existence of equally important and fundamental constitutional principles. 

The Evolving Idea of Equality

In the 1950s, heavily influenced by American jurisprudence, the Indian Supreme Court adopted the “classification test” for determining violations of the guarantee of equal treatment under Article 14. The “classification test”, as everyone knows, required that in order for a law to pass Article 14 scrutiny, there must exist (a) an intelligible differentia between the individuals or groups that are subjected to differential treatment, and (b) a rational nexus between that differentia and the State’s purpose in framing the law. Right from the beginning, however, there was a dissenting tradition at the Supreme Court that recognised this approach to be excessively formalistic and constrained. In Anwar Ali Sarkar, for example, Vivian Bose J. asked what “substantially equal treatment” might mean in “the democracy of the kind we have proclaimed ourselves to be.” As Bose J. understood at the time, equality could not be divorced from more fundamental ideas about democracy and republicanism.

In the coming years, the Supreme Court made various attempts to break out of the shackles of the classification framework. For example, it evolved the “arbitrariness” standard – which is, only now, being given flesh and bones, in some of the recent judgments of Nariman J. It also held that the State “purpose” would have to be “legitimate” – i.e., it added a third, more substantive, prong to the classification test. The real breakthrough came, however, with the 2018 judgments in Navtej Johar and Joseph Shine. In reading down Section 377 and 499 of the Indian Penal Code, Constitution Benches of the Supreme Court advanced a richer and more substantive vision of equality, that was also in line with global best practices. In short, the Supreme Court shifted the focus from “reasonable classification” to the idea of disadvantage. True equality – as we can intuitively sense – is about identifying disadvantage, about identifying the axes of diadvantage, and then working to remedy them. 

To recognise and identify disadvantage, however, the law requires proxies. It is here that the observations of Indu Malhotra J., for example – as highlighted in a previous post – become important. As a shorthand for identifying disadvantage, constitutional courts all over the world have asked whether legislation picks out people on the bases of “personal characteristics” that they (a) have no control over, (b) are powerless to change, or can only change at great personal cost. Take, for example, the idea of “race”: a person does not choose the race into which they are born, and cannot – obviously – change their race in any meaningful way. Laws that pick out people on the bases of race for differential treatment, therefore, presumptively violate the principle of equality (unless, of course, they are designed to remedy racial disadvantage, through affirmative action programmes, for example). 

It is this richer and more substantive vision of equality and equal treatment that demonstrates the unconstitutionality of the CAA in starkest terms. Each of the three “conditions” under the CAA – country of origin, religion, and date of entry into India – are effectively beyond the control of the individuals the law is targeted at. A person cannot choose which country they were born in, which religious community they were born into, and when persecution forced them to flee into India. But the CAA takes the category of migrants living in India and divides them precisely on these three bases. This is why it goes against the basic tenets of equality. 

Citizenship Laws and Standards of Review 

Another common argument that is invoked by the defenders of the CAA is that issues of citizenship and migration are firmly within the domain of sovereign State powers, and the scope of judicial intervention is highly limited. Courts must – or so the argument goes – defer to the State’s decision regarding who will be granted citizenship, and how. This argument has been repeated so often over the years, and so frequently, that it has by now acquired the immovable weight of a mountain. But the most cursory examination will reveal, however, that this mountain is made of straw. 

Let’s go back to the basics. What was the original justification of judicial review in a democratic society? What justified an unelected Court striking down laws passed by democratically-elected legislatures? The answer, of course, was that the primary role of the Court was that of a counter-majoritarian institution. It existed to check the excesses of majoritarianism, on the understanding that true democracy meant something more than brute majority rule. For this reason, in its famous Carolene Products footnote, the US Supreme Court noted that the role of the Court was particularly important in cases involving “discrete and insular minorities.” Why? Because it were these minorities that faced the greatest difficulties in articulating their interests through the normal channels of (majoritarian) democratic governance. The task of the Court, essentially, was to come to the rescue of those whom the political process – formally or effectively – excluded from equal participation. Thus, for instance, if there is a country where same-sex relations are viewed with opprobrium by a large segment of the population – to the extent that the LGBTQ+ community is permanently excluded from access to political power, as nobody else will ally with them – the Court is justified in subjecting laws targeting that community to stringent scrutiny. 

It should be obvious that migrants – or refugees, as the case may be – fall squarely within this category. As they cannot vote, they are formally excluded from participation in the political process. More than any other vulnerable or marginalised group in the country, they have no say in the laws and policies that will impact them. For this reason, laws that affect citizenship status in the manner that the CAA does, must be subjected to the highest threshold of judicial scrutiny, rather than the lowest. 

Harmonising Constitutional Principles: Sovereign Powers and Conditions of Entry

In a constitutional democracy, no power is absolute. Constitutional authorities are established by – and owe their existence to – the Constitution, and the powers they exercise flow from that same Constitution. In some cases, these powers are limited in express terms. For example, Article 13 of the Constitution expressly limits Parliament’s power of law-making by making it subject to the fundamental rights chapter. 

Article 11 of the Constitution – that deals with citizenship – contains no such express limitation. It gives to Parliament the right to “regulate citizenship by law”, and allows Parliament to make “any” provision with respect to acquisition and termination of citizenship, and “all other matters” relating to citizenship. Commentators have pointed to the width of these words to argue that in matters of citizenship, Parliament has virtually unlimited power (apart from the usual touchstone of the fundamental rights chapter).

What this argument ignores, however, is that express limitations are not the only manner in which constitutional authorities are constrained. As noted in Kesavananda Bharati, there also exist implied limitations that flow from the structure of the Constitution. When – and how – do we discern implied limitations? For the purposes of this post, a short answer will suffice: power under the Constitution to do “x” is limited at the point at which doing “x” will frustrate or destroy another, equally important constitutional principle. This principle was most recently reiterated by the UK Supreme Court in Miller v The Prime Minister, where the British Prime Minister’s power to “prorogue” Parliament was held to be limited by the constitutional principle of representative democracy, according to which it was Parliament’s function to scrutinise and debate important legislation. It was found that the Prime Minister’s prorogation – just before the deadline for Brexit – had the effect of denying Parliament an adequate opportunity to debate the proposed EU Withdrawal Bill, and was therefore unconstitutional. 

What is the implied limitation in the present case? The answer is the constitutional principle of secularism. Secularism – as Kesavananda Bharati held – is a basic feature of the Indian Constitution (independent of its subsequent insertion into the Preamble during Indira Gandhi’s Emergency). The Indian Constitution commits us to being a secular polity. The key issue, then, is that can the conditions of entry into the polity (determined by citizenship law) be such that they frustrate the character of the polity itself. The answer, obviously, is no. In other words, therefore, there is an implied limitation upon the power under Article 11 to grant or withdraw citizenship, that does not permit Parliament to pass any such law that would negate the secular character of the polity – in this case, through the backdoor, by creating conditions of entry where religious claims become determinants of citizenship. To put it in a single sentence: the principle of secularism acts as an implied limitation upon Parliament’s power to legislate on citizenship. Parliament, therefore, has all powers to prescribe conditions of citizenship except and insofar as such conditions frustrate the Constitutional commitment towards preserving a secular polity. 

Conclusion 

Sterile debates over “reasonable classification”, “rational nexus”, and “sovereign powers” can only take us so far. More than that, they serve as conceptual prisons that stop us from thinking more deeply about the idea of equality, the link between equality and democracy, and what the Constitution really asks of us. In recent years, Indian constitutional jurisprudence has begun to liberate itself from that conceptual prison, and has articulated a richer vision of equality and democracy. The CAA challenge now gives the Supreme Court an opportunity to further develop – and evolve – that jurisprudence.


[Disclaimer: the author is involved in two of the petitions challenging the constitutionality of the CAA.]