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.

Guest Post: Constitutional Pluralism in the Article 370 Hearings

[This is a guest post by Kushagr Bakshi.]

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Recently, the Indian Supreme Court finished hearing oral arguments on a batch of petitions challenging the constitutional validity of The Constitution (Application to Jammu and Kashmir) Order, 2019 which extended all provisions of the Indian Constitution to Jammu and Kashmir. As has been explained previously, by imposing a state of emergency and substituting the phrase ‘legislative assembly’ in place of ‘constituent assembly’ in Article 370 through a presidential order, the central government bypassed the requirement of having a democratically elected body of the state express their voice with regards to any future constitutional amendments related to the state. Subsequently, through a statutory resolution in the Upper House of the Indian Parliament, the central government abrogated most of Article 370 and thereby the state’s constitutionally mandated autonomous status. Finally, Parliament also passed the Jammu and Kashmir Reorganization Act, 2019 which bifurcated the state into two Union Territories, namely Jammu & Kashmir and Ladakh.

The petitioners’ arguments challenging the constitutional validity of the events of 2019 can broadly be grouped into three heads. First, they argued that the procedure followed to abrogate Article 370 was manifestly arbitrary, contrary to the rule of law and the principles of the Indian constitutional scheme. Second, they also argued that upon the Constituent Assembly of Jammu and Kashmir passing the Jammu and Kashmir Constitution, 1956 and dissolving, Article 370 lost its temporary character and was essentially frozen in time. Finally, the petitioners challenged the validity of the Reorganization Act, specifically contending that the Union is not constitutionally empowered to downgrade a state to a Union Territory.

However, in the midst of these arguments, the Court pondered upon the nature of the relationship between the Constitution of India and the Constitution of Jammu and Kashmir. While the Court is unlikely to hand down an authoritative ruling on this relationship, the exchanges between the judges and lawyers offer us a valuable avenue to explore. By analysing the Jammu and Kashmir Constituent Assembly Debates, this piece examines the nature of the relationship envisaged by the two constitutions. I argue that the constitutional principle that undergirded the previously existing constitutional relationship between India and Jammu and Kashmir is heterarchy. I go on to show that the relationship between the Jammu and Kashmir and India is best understood as heterarchy stretched to a radical interpretation, constitutional pluralism.

On Supremacy and the Constitutional Relationship

Jammu and Kashmir has often been considered exceptional and an exemplar of asymmetrical federalism in India, in large part due it being the only state in India to have its own constitution. The general consensus on the Jammu and Kashmir Constitution is that it was authorized by and therefore subject to the Indian Constitution. In fact, the before the Supreme Court, the Government of India propagated a similar view. They argued that upon the application of the entire Constitution of India, the constitutional scheme did not permit a situation with a second constitution setting forth a governance system for the state. Drawing from this, they argued that the Indian Constitution permitted the President to exercise constituent power vis-a-vis Article 370, especially since the Constituent Assembly of Jammu and Kashmir had been dissolved.   

However, a previous decision of the Indian Supreme Court and the petitioners’ arguments challenge this view. The petitioners instead constructed the relationship between the Constitution of India and the Constitution of J&K as complementary with Article 370 serving as tunnel for the traffic. They went on to argue that refrains to ‘One Nation, One Constitution’ have no grounding in the Indian Constitution which reinforces the notion of creating autonomous states. On this reading the Jammu and Kashmir Constitution does not exist within the Indian Constitution as a subnational constitution. For the most part, the Judges steered clear of this debate. Yet when emphasizing that the integration of Jammu and Kashmir in 1947 was a political fact and complete, Justice Khanna framed the question this piece seeks to answer: which is superior?

On Heterarchy and Constitutional Pluralism

While Article 370 marked the formal recognition of the demand for a constituent assembly for the state, this demand originated as a claim for local democratic governance against the ‘outsider’ Dogra kings. During the negotiations with the central government over the drafting of Article 370, the state government expressed this demand as concerns regarding the prevention of external (in this case, Indian) domination of the state. Responding to their history of monarchical rule, imposed by a dynasty they viewed as outsiders, the state government was keen to protect local democratic governance, through autonomy.

In its final form, Article 370 reflects a resolution of these concerns. Through inserting consultation and concurrence requirements for extending national legislative competency and provisions of the Indian Constitution to the state, the state government created a system of constitutional interaction between the two governments which would prevent the Union from exercising unilateral jurisdiction and therefore, domination. This heterarchy, that is the prevention of domination of one unit of government by another is best reflected in Article 370(3). While the provision allows the President of India to modify or declare the entire article inoperative, they can only act upon receiving a recommendation from the constituent assembly of the state. Instead of structuring the relationship between India and Jammu and Kashmir as one where the central government occupies a dominant position over the state government, Article 370 provided a system of governance premised on consultation and consent which retained the autonomy the people of the state desired.

The final form of this relationship was cemented by the Constituent Assembly of Jammu and Kashmir. But first, the Assembly too was confronted by questions of its powers and limitations. The Assembly debates shows that the members of the Assembly saw it as a sovereign body, enjoying the confidence of the people, unrestrained by previous happenings, free to decide on all questions as an ‘independent man’. Claiming authority as a representative of the people to exercise constituent power, the Assembly debated the future of their constitutional relationship with India (J&K CAD Vol I. pp. 15-19, 75-85). The High Court of Jammu and Kashmir (operating outside the Indian framework then) upheld this view, finding that despite Article 370, the state government retained unfettered internal sovereignty and was capable of exercising legislative and constituent authority.

For the Assembly, the relationship between Jammu and Kashmir and India was based on a commitment to similar transformative constitutional principles, envisioning a permanent federal scheme which allowed the people of the state to safeguard their autonomy while establishing a cooperative relationship between the Union and the State. Its approach was undergirded by the heterarchical principle embodied in Article 370 (J&K CAD Vol I. pp. 105-110). As M.A. Beg explained,

We admit that Article 370 is a temporary one. But in what sense of the term? Let me tell this House that when this Article was being framed the title and heading was never suggested to us and in fact we do not bother for this. We made this clear to the representatives of the Government of India that the temporary character of Article 370 is explained by the fact that the Kashmir Constituent Assembly which has been charged with the task of framing the Constitution and this power is recognized by Article 370, is in the process of framing the same. So long as it is not completed, Article 370 will remain there and when it reaches completion, we shall give to Pal what is Pal’s and to Peter what is Peter’s. That is centre will have the acceded subject and the rest will remain here. Article 370 will have to be accordingly altered. It would not mean that the Kashmir State will cease to have its special position. Amending Article 370 may be necessary at the time when we finalize our Constitution. But even then, legally Constitution, as it cannot in any way rob Kashmir of its special privilege and position, given to it by common agreement. Article 370 is therefore temporary till we complete our Constitution. Therefore its spirit will be incorporated in that Constitution. (J&K CADVol I., at 694)

While Article 370 was envisaged as temporary, its central principles of consultation, concurrence, and primacy of the Jammu and Kashmir Constituent Assembly (and eventually Constitution) were to form the basis of the relationship between India and Jammu and Kashmir. When debating a new constitution for the state, they argued that many provisions of the Constitution of India were too rigid and unsuitable for the state, thereby stating their desire for a new order, which while sharing similar underlying normative commitments with the Indian Constitution would have provisions suited to the contextual concerns and demands of the people of the state (J&K CAD Vol. I 650-700).

This vision of the Assembly was put into action through the ‘Basic Order’ read with the Jammu and Kashmir Constitution. Together, they envisaged a constitutional regime in the state which was marked by crucial departures from the Indian constitutional scheme. For instance, differing from other states, Jammu and Kashmir was to have an elected head of state (J&K CAD Vol I., at 480). Additionally, federal emergency provisions of the Indian Constitution could only be applied to the state with the concurrence of the state government state (J&K CAD Vol I., at 663-4). Most importantly, any future amendments to the Constitution of India were declared inoperative unless applied in accordance with the provisions of Article 370 which mandated consultation and concurrence of the government of the state. Provisions relating to the reorganisation of states while included required the consent of the state legislature for their application to Jammu and Kashmir.

The J&K Constitution also provided for a varied rights regime. While certain fundamental rights were applicable to the state, rights like the right to property, equality of employment et al were excluded to ensure that the state could carry out its economic program of redistribution state (J&K CAD Vol I., at 651-3; 803-4). Further, the power to introduce reasonable restrictions upon the application of other fundamental rights and freedoms in the state was reserved with the state legislature instead of the Parliament. Instead, the Constitution foisted a host of duties upon the state government which provided a roadmap through positive rights to the planned state and society envisioned by the Assembly. Finally, to enforce this new rights regime, the Constitution also carved out autonomy over local legislative and executive power. For instance, differing from the other states, residuary executive and legislative authority was retained with the state (J&K CAD Vol. I, at 565, 648, 662, 696, 849, 858). Additionally, the Constitution secured the scope for exercise of local expertise by preventing the centre from imposing federal finance provisions of the Indian Constitution upon the state. Finally, to cement this relationship, Article 147 also declared certain articles of the state Constitution as beyond the powers of legislative amendment.

Fundamentally, the Jammu and Kashmir Constitution is not an example of subnational constitutionalism as its authority is not derived from the Indian Constitution. Instead, it makes its own autonomous claim to authority and provides for a varied rights regime, local authority to enforce such a rights regime and structures of political representation which protect the exercise of voice by the people of the state. In this sense, it presents as constitutional pluralism where the constitutional order of Jammu and Kashmir and the constitutional order of India exist autonomously and interact with each other. These two orders are held together by shared normative transformative commitments and a constitutional link. This link, Article 370 in the Indian Constitution, is the tunnel between the two constitutional orders.

The Implications of Pluralism

So far, I have argued that the constitutional relationship between Jammu and Kashmir and India is best understood as constitutional pluralism. This relationship presents as a version of systems pluralism that is, multiple (in this case, two) coordinated constitutional orders. As such, the answer to Justice Khanna’s question is quite simply, neither.

As for the preliminary objection of pointing me to Pu Myllai Hlychho, Justice Balakrishnan’s opinion with respect to the untenability of an interpretation of the sixth schedule which would coordinate a Constitution within a Constitution is limited to the interpretation of the role of the Governor in context of the Sixth Schedule Additionally, I’m not attempting to construct the Jammu and Kashmir Constitution as existing within the Indian Constitution. Instead of looking at this as an example of subnational constitutionalism, I have argued that these are two separate and autonomous constitutional orders which while interacting with each other are not legitimized by the other.

The Indian Supreme Court has in the past suffered from not considering the Jammu and Kashmir Constitution or Constituent Assembly Debates in their decisions. But as I have shown, the debates reveal valuable facets of constitution making in the state, which if considered, offer us a radical interpretation of the constitutional relationship between India and Jammu and Kashmir. On this interpretation, the actions of the central government in 2019 are constitutionally invalid. But beyond this case, these debates also offer us a way to re-evaluate the Indian jurisprudence on the state as well as other asymmetrical provisions of the Indian Constitution.

Guest Post: Preventive Detention and the Dangers of Volcanic, Ever-Proximate, Ideologies

[Editorial Note: On 8th February, I hd written this blog post, about the judgment of the Jammu and Kashmir High Court upholding the administrative detention of Mian Abdool Qayoom, the 76-year old President of the Jammu and Kashmir Bar Association. In that post, I had pointed out that the High Court’s quotation of a line spoken by the Greek King Menelaus, in Sophocles’ play Ajax (itself copied without attribution from a prior judgment by Dipak Misra J) was unwittingly revealing: it demonstrated how Qayoom’s detention could not be justified under any framework of legal or constitutional reasoning, but only by an appeal to the brute power of arms (sticking with classical Greece, as the Athenians would say, “the strong do what they can and the weak suffer what they must.”)

At that time, it was difficult to imagine a future judgment of this High Court sinking even lower; but when the bottom is an abyss, it seems there is no limit to just how low you can go. A judgment by a division bench of the J&K High Court – also involving Qayoom’s detention (now approaching its tenth month, without trial) has achieved the spectacular feat of besting even the February judgment’s Greek fantasies in its intemperate language, its partisanship, its ignorance of basic constitutional principles, and its desire to defeat all other comers in achieving a swift and seamless merger of the judiciary with the executive. This is a guest post by Abhinav Sekhri, analysing it (cross-posted from the Proof of Guilt Blog. – G.B.]

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81. As mentioned in para 37 of this judgment, while addressing his arguments on the ideology nourished and nurtured by the detenue, the learned Advocate General submitted that such ideology cannot be confined or limited to time to qualify it to be called stale or fresh or proximate, unless, of course, the person concerned declares and establishes by conduct and expression that he has shunned the ideology (emphasis supplied in original).

82. In light of the above legally rightful and sound argument taken by the learned Advocate General, we leave it to the detenue to decide whether he would wish to take advantage of the stand of the learned Advocate General and make a representation to the concerned authorities to abide by it. … (emphasis mine)

[Extract from Mian Abdool Qayoom v. Union Territory of J&K & Ors., LPA No.28/2020, decided on 28.05.2020]

This exchange is not part of the judgment of the Jammu & Kashmir High Court dismissing Mian Abdool Qayoom’s appeal against a Single Judge order that had rejected his challenge to order condemning him to preventive detention under the Public Safety Act. Instead, it is part of the order dismissing an application seeking Qayoom’s temporary release from Tihar Jail due to Covid-19. The High Court unequivocally supported requiring an oath of loyalty as a condition for releasing a 76-year-old diabetic detenu who is on surviving one kidney during a pandemic which has placed him under high risk.

A preventive detention order against political dissidents is not new for India, and certainly not new for Jammu and Kashmir. It is telling that one of the last judgments of the Federal Court, passed six days before the Constitution came into force, was one which upheld the preventive detention of Machindar Shivaji Mahar, mainly because he was a member of the Communist Party which advocated for armed revolution. Then as now, judges held that actively supporting violent ideologies can make it likely that the person will act in a manner prejudicial to public order.

The cynic would argue, then, that we never left the place which the Jammu & Kashmir High Court shows us in Qayoom’s appeal. The cynic is mistaken, because in between we gave to ourselves a Constitution, which ensured persons like Machindar Shivaji had a fairer process governing preventive detentions than what might have been granted under the erstwhile laws (processes which now apply to the Union Territory of Jammu & Kashmir). On top of this, the Indian Supreme Court has tried to enhance the fairness of these procedures over seventy years.

Even if the record of the Supreme Court on preventive detention is largely regrettable on the whole, there are times when one gets a glimpse of what justice looks like in a system where executive discretion is strongly tested by vigilant courts on the anvil of fundamental rights. It was one such moment in 1979 which saw the Supreme Court quash the detention orders of Mohd. Yousuf [(1979) 4 SCC 370], passed by the then State Government of J&K. A detention order passed against this “Die Hard Naxalite” was methodically taken apart by the bench and shown for what it was: An executive act based on vague and irrelevant grounds that could not deprive any person of her constitutionally reified right to personal liberty.

Mian Abdool Qayoom’s continued detention by virtue of the J&K High Court judgment is, I would argue, antithetical to the kind of justice shown in Mohd. Yousuf, where a court adopted a critical lens to executive determination without substituting its own judgment. Here, illegal grounds in Qayoom’s detention order are justified as being “clumsy”, and then the Court jumps in to fill the gaps despite proclaiming an inability to step into the shoes of the district magistrate authorising detention.

This is nowhere more apparent than the remarkable excursus about the relevance of ideology while considering preventive detention. The High Court goes much beyond a simple argument of allowing the police to consider a prior record to justify need for urgent preventive actions. It also goes beyond Machindar Shivaji and permits reference to activities of one’s political party as a basis to consider risks to public order. Instead, it suggests the authorities have legitimate grounds to detain persons for years without trial, based on their “ideology”.

48. Having considered the matter, we may say that an ideology of the nature reflected in the FIRs and alleged against the detenue herein is like a live volcano. The ideology has always an inclination, a natural tendency to behave in a particular way; It is often associated with an intense, natural inclination and preference of the person to behave in the way his ideology drives him to achieve his latent and expressed objectives and when he happens to head or leading a group, as the allegations contained in the FIRs suggest, his single point agenda remains that his ideology is imbued in all those whom he leads. … Generally, when a criminal act takes place, its impact may be felt within a small circle or its repercussions may be of bigger consequence, but with the passage of time the impact and the consequences generally subside or vanish. When it comes to propensity of an ideology of the nature reflected in the FIRs supported by the intelligence reports we have gone through, we are convinced that it subserves the latent motive to thrive on public disorder. In that context, we feel that most of the judgments of the Apex Court do not fit the facts and the given situation.

Therefore, we are left with no option but to say that an ideology that has the effect and potential of nurturing a tendency of disturbance in public order, such as is reflected in the FIRs registered against the detenue in the instant case, and of which the detaining authority is reasonably satisfied, can be said to be different from a criminal act or acts done sometime in the past and, therefore, would always continue to be proximate in their impact and consequence and, therefore, would not attract the judgments cited at the Bar on the point. … Furthermore, we are also of the view that such an ideology alleged against a person, if mentioned in the earlier grounds of detention, because of its nature of subsistence and propensity, would not lose its proximity and, therefore, can be taken into account and used for detaining such person subsequently if the detaining authority is satisfied that such an ideology of the person has the potential to goad or instigate disturbance in public order, in a susceptible given situation, like the one it was at the relevant point of time. … (emphasis mine)”

 

Let us take a moment to understand the significance of this rhetoric. Preventive detention powers are conferred upon executive officers to prevent certain kinds of danger by detaining a person without trial. While courts cannot review the officers’ subjective satisfaction of the facts requiring detention, there are some judicial checks in place. To ensure that this discretionary power is not beholden to an officer’s arbitrary prejudices and remains justiciable, the law requires that each detention order be backed by reasonable, relevant, and germane grounds which explain why detention was urgently necessary, which must be expressed clearly to enable a detenu to make an effective representation against the orders.

Requiring clear, germane, and proximate reasons meant that executive officers had to cite some instances of illegal / suspicious conduct as overt manifestations of any ideology which they considered prejudicial to public order — i.e., to flesh out an inherently vague notion. What the J&K High Court has done is taken this close connexion between objective real-world anchors for a subjective concept like ideology, and treated it to serious social distancing. Into the resulting gap falls judicial review of preventive detention. Ideology now becomes a blank cheque to be encashed by the executive whenever the circumstances suggest that its “volcano-like” qualities can prove detrimental to the public order; no matter that the most recent overt display of this purported ideology dates back several years. By no longer requiring the executive officer’s subjective satisfaction to have a proximate real-world anchor, judicial review is nearly reduced to its pre-1970s avatar of only checking if procedures are complied with.

The J&K High Court has, seemingly unwittingly, shown us a system that runs on punishing thoughts and beliefs. Only, here, we have no punishment with a trial and courts, but prevention, with the executive serving as judge, jury, and executioner. The only conduct “legally rightful” and sufficiently redemptive to erase the marks of a dissident ideology is an oath of loyalty, and its perpetual performance, subject to the satisfaction of the same authorities.

This time, too, shall pass.

Guest Post: An Executive Court and a Judicial Committee: The Supreme Court’s Decisions on the Internet Restrictions in Kashmir

[This is a guest post by Chintan Chandrachud, on the Supreme Court’s decision in the 4G Internet case. Mihir’s analysis of the judgment on this blog can be found here.]

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On 11 May, the Supreme Court issued its decision in a case challenging the restriction on mobile internet speed in Jammu and Kashmir. The Court neither decided whether the restriction was unconstitutional nor issued a remedy. Instead, it referred the matter to a three member special committee. The Supreme Court’s decision on 11 May was a sequel to its decision of 10 January 2020. At 149 pages collectively, the Court’s decisions are relatively brief by its standards. However, they are far more revealing about the role of the Court than many other decisions of greater length and complexity.

On 4 August 2019, mobile phone networks, internet connectivity and landlines were disabled in large parts of Jammu and Kashmir, in anticipation of the constitutional changes that would follow. (As is well known, these “virtual” restrictions – frequently described as the “communications lockdown” – were also accompanied by restrictions on physical movement, with several political leaders being placed under house arrest.) The communications lockdown was imposed under the Temporary Suspension of Telecom Services Rules (“Suspension Rules”), which enable the central or state government to suspend telecom services when there is a public emergency or a risk to public safety. The Suspension Rules included a mechanism for solitary review (rather than periodic review) of suspension orders. A committee of three bureaucrats would meet once, within five days of the relevant suspension order, to determine if it was appropriate.

In its decision of 10 January, the Court addressed the question of whether the suspension orders that had been passed since 4 August 2019 – which were the pieces of the puzzle constituting the communications lockdown – were unconstitutional. In arriving at its decision, the Court prescribed a series of important principles. Even though the Suspension Rules did not specifically require their publication, the Court held that suspension orders should be published going forward. It replaced the solitary review mechanism with a periodic review mechanism – in which the review committee would be required to meet every seven days to assess the appropriateness of suspension orders. The Court also concluded that blanket suspension orders (either in terms of the duration of time for which they applied or in terms of their geographic application) would not be constitutionally permissible. However, the Supreme Court failed to decide the most important issue – whether the suspension orders were constitutionally invalid and should be set aside. This was nothing short of an abdication of responsibility. It is no coincidence that the right that guarantees direct access to the Supreme Court when fundamental rights are violated refers to “remedies for enforcement of rights”. The Court may have recognised the rights at stake, but failed to enforce them and award a remedy.

Following the Court’s decision, a review committee of three state-level bureaucrats met periodically to consider fresh suspension orders that gradually narrowed the scope of the lockdown. Fixed-line internet connectivity was restored (first for essential services and hospitals, later for software companies, and ultimately more widely). Access to social media websites was gradually reinstated. However, elements of the thirteen suspension orders passed between the Supreme Court’s decisions of January and May seemed vulnerable to constitutional scrutiny. For example, between 14 January and 4 March, the suspension orders imposed a “white-listing” regime, under which only specifically white-listed websites could be accessed through the internet. This resulted in some arbitrary inclusions and exclusions, and an abandonment of the basic principles of net neutrality. In addition, mobile internet has continued to remain restricted to 2G speeds, well below the 4G speeds that would otherwise be available.

The restriction on speed of mobile internet was addressed in the Supreme Court’s judgment of 11 May. It is easy to typecast this as a narrow restriction (slow internet versus fast internet). Examined more closely, however, this is a question of access rather than speed. Imagine using applications designed for 2020 on a mobile internet connection that is in healthy competition with dial-up internet of the 1990s. The constitutional challenge was framed with a focus on the impact of the restriction. It was argued that the restriction hindered doctors and the general public from accessing information on COVID-19, and students from accessing educational material and literature when classes in physical classrooms were not taking place. The government argued that the restriction was in the interests of national security, and was directed towards reducing misuse of the internet by terrorists and militants.

In what was virtually an action replay of its decision in January, the Supreme Court refused to determine the constitutional validity of the restriction. Even if the decision of 10 January were to be justified on the basis that the Court established a new periodic review mechanism which would consider the appropriateness of suspension orders going forward, that rationale was now no longer available. The restriction that was challenged was a product of the new review mechanism, and the Court was tasked with determining if it was unconstitutional. Instead of doing so, the Court set up yet another review committee – this time consisting of a combination of national and state level bureaucrats – to “examine the contentions” of the parties and determine whether the restriction is appropriate. To be sure, the Court did not ask the committee to report back to it with its analysis. The petitions have been disposed of, and it is the committee that will be deciding the propriety of the restriction. To state the obvious, the Court has delegated its sacrosanct obligation of determining the constitutionality of executive action to the executive.

Equally disconcerting as the Supreme Court’s delegation of authority, however, is its assumption of responsibility. The Court opens its judgments of 10 January and 11 May with the surprising observation that it is the Court’s role to strike a “balance” between “liberty and security”. It is easy to understand why any Court would veer towards security over liberty when the question is framed in this way. However, this framing is at odds with the Court’s role as an independent decision-maker. Neither proportionality nor reasonableness review requires the Court to be saddled with the responsibility of “striking a balance” between liberty and security. That is plainly the job of a democratically elected government. The Court’s role is simply to determine, applying the principles articulated in its 10 January decision, whether the balance that has already been struck by the government is constitutionally permissible.

If the Supreme Court is once again called upon to determine the constitutionality of the restrictions on communication, it should not only take back the adjudicative mantle, but also hand over the executive one.

The Supreme Court’s 4G Internet Order: Evasion by Abnegation

[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.]

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Evasion by Abnegation: A new facet of the Doctrine of Judicial Evasion?

This blog has often spoken of judicial evasion. However, the Supreme Court today demonstrated that the discussion thus far had missed out a very important strand of the doctrine of judicial evasion. Whether it be electoral bonds or federalism, judicial evasion till now appeared to be “Not Now” version, i.e. not deciding issues until it was too late for the outcome to matter. The Supreme Court today shows us in its order disposing of FMP v UT of J&K and anr. (“Order”) that an even more potent version is the “Not Us” version: i.e. not simply Evasion by Adjournment, but rather, Evasion by Abnegation. In a writ petition pertaining to the validity of restrictions on 4G in Jammu & Kashmir, the Court held:

A perusal of the submissions made before us and the material placed on record indicate that the submissions of the Petitioners, in normal circumstances, merit consideration. However, the compelling circumstances of cross border terrorism in the Union Territory of Jammu and Kashmir, at present, cannot be ignored…

 We, therefore, find it appropriate to constitute a Special Committee comprising of the following Secretaries at national, as well as State, level to look into the prevailing circumstances and immediately determine the necessity of the continuation of the restrictions…

 The Special Committee is directed to examine the contentions of, and the material placed herein by, the Petitioners as well as the Respondents. The aforesaid Committee must also examine the appropriateness of the alternatives suggested by the Petitioners, regarding limiting the restrictions to those areas where it is necessary and the allowing of faster internet (3G or 4G) on a trial basis over certain geographical areas and advise the Respondent No. 1 regarding the same, in terms of our earlier directions.

In substance, what the Court appears to have held is that the contentions of the Petitioner were to be adjudicated not by the Court, but by the “Special Committee” constituted by the Court, consisting of the Home Secretary and Secretary, Communications (of the Central Government) and the Chief Secretary of the UT of Jammu & Kashmir. With great respect, it is submitted that it is difficult to reconcile the Order of the Supreme Court with the language of Article 32 of the Constitution of India. Article 32 says:

The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed…

 The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

This Article has not at all been adverted to by the Supreme Court. It is respectfully submitted that given the existence of the fundamental right to judicial remedies, the most powerful court in the world is duty-bound to consider exercising its jurisdiction under Article 32. It is not competent for the Court to hold that some other body – especially one consisting of Secretaries of the very Departments whose orders are in question – should consider the contentions of the Petitioner and the “appropriateness of the alternatives”.

It was incumbent on the Court to itself consider the relevant materials; and adjudicate – one way or the other – on the validity of the challenged measures. In doing so, the Court would of course have had to consider how much deference to give to executive assessments in matters of national security and what the standards of judicial review should be. It would then have been possible – whatever the Court ultimately decided – to consider and analyse the reasoning of the Court. However, “deference” cannot amount to “abnegation”; and the tenor of the Court’s order indicates that the Court was not simply “deferring” to an executive assessment of the facts, but was effectively ceding jurisdiction to decide issues of constitutional law. In State of West Bengal v Committee for the Protection of Democratic Rights, a Constitution Bench of the Supreme Court held:

In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the constitutional courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution…

With great respect, the Order does not take into account the significance of this position.

The Zamora and Deference

In the Order, what the Court has essentially held is that due to “compelling circumstances of cross-border terrorism”, the Supreme Court must refuse to exercise jurisdiction under Article 32. In substance, then, the fundamental right under Article 32 (which is not simply a right to have some remedy, but a right to a judicial remedy before the Supreme Court) is a dead letter, in view of “compelling circumstances of cross-border terrorism”. Given that the right under Article 32 cannot be suspended “except as otherwise provided for by this Constitution”, the Order demonstrates that the following statement in a previous post on this blog was entirely appropriate:

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

Before the Supreme Court, the Attorney-General placed reliance on the advice of the Privy Council in The Zamora, where Lord Parker stated:

Those who are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a Court of law or otherwise discussed in public.

This statement was made in the context of deference on factual determinations of the executive. The Court noted:

Their Lordships are of opinion that the judge ought, as a rule, to treat the statement on oath of the proper officer of the Crown to the effect that the vessel or goods which it is desired to requisition are urgently required for use in connection with the defence of the realm, the prosecution of the war, or other matters involving national security, as conclusive of the fact…

In its Order in FMP, what the Supreme Court has done is not simply a deference to a factual determination of the executive. Indeed, it appears that the “factual” materials relied on by the Court (to which, at best, the above paragraph may apply) were in the form of a “Note” submitted by the Respondents after the matter was reserved for orders. This “Note” was – according to the Petitioner’s responsive submission – not supported by any materials on affidavit. But leaving that aside, what the Note indicates is that “militancy has significantly increased in the recent times…” and gives instances of encounters and attacks which took place in the Kashmir valley in April and May 2020. However, as the Petitioner’s responsive submission pointed out, this was much after the impugned restrictions in any case: how do these events – which took place after the restrictions were in place – demonstrate the need for having the restrictions in the first place? The “Note” also purports to rely on a report in The Print, about the Pakistani Army’s “Green Book” which (it is stated) calls for “information warfare”. (The Note only annexed the first print page of the news report, but the full report in The Print is available here.) The statement regarding information warfare appears in an essay by a Peshawar-based journalist in the Green Book. Without needing to go into any factual dispute, even assuming that the Peshawar-based journalist’s suggestions were indeed acted upon by the Pakistani establishment (and indeed, it would be surprising if “information warfare” is not on the table at all in these times), the legal question is: does this factual basis justify the restrictions? The Court makes no attempt whatsoever to engage with this legal question. [Further, another relatively minor point may perhaps be that orders must be defended on the basis of the reasons recorded at the time the orders are passed and not on the basis of subsequent reasoning: orders are not like old wine becoming better as they grow older.]

In any case, The Zamora was a case involving the wartime requisition of copper (the copper admittedly being contraband of war) from a ship headed purportedly to a neutral port, but claimed by the Government to be heading to an enemy port. The issue turned on whether this requisition was urgently required for national security reasons or not. It is noteworthy that in the same case, it was also pointed out:

 If the Court is to decide judicially… it cannot, even in doubtful cases, take its directions from the Crown, which is a party to the proceedings… It must itself determine what the law is according to the best of its ability, and its view, with whatever hesitation it be arrived at, must prevail over any executive order…

And on the facts, in The Zamora, the question was decided against the government because there was no evidence forthcoming about the purpose of the requisition. As the House of Lords clarified in Council of Civil Service Unions about Lord Parker’s statement about national security:

These words were no abdication of the judicial function, but were an indication of the evidence required by the court. In fact the evidence adduced by the Crown was not sufficient, and the court ruled that the Crown had no right to requisition. The Crown’s claim was rejected “because the judge had before him no satisfactory evidence that such a right was exercisable” (p. 108). The Prize Court, therefore, treated the question as one of fact for its determination and indicated the evidence needed to establish the fact. The true significance of Lord Parker’s dictum is simply that the court is in no position to substitute its opinion for the opinion of those responsible for national security.

The Zamora consequently does not at all support the stand that it is open to the Court to effectively refuse to hear a petition alleging violation of fundamental rights on account of the perceived demands of national security. Other than The Zamora (and of course, the decision in Anuradha Bhasin), the Court cites no authority whatsoever for the proposition that “national security” is a complete answer to a claim of violation of fundamental rights. The Court might as well have relied on the majority in Liversidge v Anderson. It might have expressly clarified for once and for all that however deep ADM Jabalpur is buried, Lord Atkin’s dissent (“In this country, amid the clash of arms, the laws are not silent…”) was not applicable in India.

The constitution of the Special Committee; and a (forlorn?) hope

Further, the basis for the direction to constitute a Special Committee of three secretary-level officers is also not entirely clear. The question raised before the Court would require findings on questions such as (a) the appropriate standard of review, and (b) the validity on the restrictions on the fundamental rights in question. The Court itself appears to accept that “the submissions of the Petitioners, in normal circumstances, merit consideration.” These are, very clearly, issues requiring the application of a judicial mind. The Supreme Court has stated in Madras Bar Association v Union of India (per Nariman J., concurring):

… the decision by superior courts of record of questions of law and the binding effect of such decisions are implicit in the constitutional scheme of things. It is obvious that it is emphatically the province of the superior judiciary to answer substantial questions of law not only for the case at hand but also in order to guide subordinate courts and tribunals in future. That this is the core of the judicial function as outlined by the constitutional provisions set out above… All substantial questions of law have under our constitutional scheme to be decided by the superior courts and the superior courts alone…

If the executive had stated that violations of fundamental rights will be dealt with by a committee of three Secretary-level officers, it is unthinkable that such a mechanism would be constitutionally valid. Perhaps the only way to save such a mechanism (although even that is doubtful) would be for the decision of the Committee itself to be open to question and the Supreme Court then undertaking a proper judicial review of such decision. The Supreme Court’s Order grants no such liberty expressly permitting the Petitioner’s to come back to the Supreme Court; and the entire tenor of the Order with its focus of “national security” and “compelling circumstances” appears to suggest that whatever is held by the Committee will be effectively conclusive. One of course hopes that that is not the case; that today’s Order ultimately is seen as ‘only’ Evasion by Adjournment  (for a future Bench to re-consider after the Special Committee decision) and not the cementing of a culture of Evasion by Abnegation.

Conclusion

To conclude, it may be worth noting one further aspect. The Supreme Court’s admission in the Order that the submissions of the Petitioner merited consideration “in normal circumstances”, but its ultimate holding that those submissions cannot be considered by the Supreme Court in view of “compelling circumstances of cross-border terrorism”, is particularly striking. In A v Secretary of State for the Home Department, Lord Hoffman (himself not particularly averse to giving a long leash to the executive in matters of national security) observed:

 The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve…

One is forced to wonder: have we reached a situation where we run the risk that this quote becomes an accurate summary of the present?

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

[This is a Guest Post by Varun Kannan].

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On 31^st 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 10^th/12^th 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 3^rd 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 5^th 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 31^st 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 5^th August statutory resolution, the concept of ‘permanent resident’ as given in the Jammu & Kashmir Constitution has ceased to exist.

This is because following the 5^th 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 31^st 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 19^th 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.

King Menelaus at the Bar of the Indian Judiciary

Mian Abdool Qayoom is the 76-year-old President of the Jammu and Kashmir High Court Bar Association. Since August 5 – the day the constitutional status of Jammu and Kashmir was altered – Qayoom has been undergoing “preventive” detention, under the Jammu and Kashmir Public Safety Act, which authorises detention for upto two years without trial. The ostensible basis of the detention has been that he would “motivate people to agitate against abrogation of Article 370.” Despite ill health (diabetes and a single kidney), Qayoom’s detention was extended last week. And on Friday, the Jammu & Kashmir High Court dismissed a legal challenge to his detention.

Among other things, in its judgment, the High Court took the view that the “subjective satisfaction of the detaining authority to detain a person or not is not open to objective assessment by a court. A court is not a proper forum to scrutinize the merits of administrative decision to detain a person.” This, of course, essentially gives absolute impunity to the State on the issue of detention: if “subjective satisfaction” is the standard, and the Court is not the “proper forum” to challenge detention, then – effectively – the right to personal liberty exists at the absolute discretion and mercy of the government. That, needless to say, makes the right meaningless.

Now what does one say about this? One could say that this line of “reasoning” parrots the executive supremacy logic that was at the basis of the ADM Jabalpur Case – a case that was allegedly buried “ten fathoms deep with no chance of resurrection” by the Supreme Court in 2017, except that ten fathoms is evidently not deep enough for a judiciary that wants to prove itself more loyal than the King (in fact, the High Court judgment quotes a number of cases – both before and after ADM Jabalpur – that foreshadowed and echoed its most notorious lines, including that of preventive detention being a “jurisdiction of suspicion”). After all, when the memo on overruling ADM Jabalpur hasn’t even reached some of the judges of the Supreme Court, how could it be expected to reach the still locked-down Kashmir, where it is anyway too cold for people to exercise their Article 19(1)(d) rights (according to a former Chief Justice of India)? One could say that far from being buried ten fathoms deep, or any fathoms deep, it has by now become abundantly clear that ADM Jabalpur is the dominant logic that that governs judicial action in India today, and that the High Court was at least refreshingly honest in giving that to us straight.

One could say all that, but there probably comes a point at which repetition grows tedious, and is necessary only in order to complete the record, rather than present any new or interesting insight about the workings of the judiciary today. But thankfully, the High Court has also given us something more to think about: it quoted the Greek “thinker” Sophocles, noting that “laws can never be enforced unless fear supports them.”

No quote exists, of course, without context. And a closer look at the context of the Sophocles’ quote that the High Court chose is perhaps more revealing than the actual order. A preliminary point, of course, is that the society that gave us the Melian Dialogue might not be the most reliable contemporary guide to ideas of law, justice, and morality; indeed, one would hope that the concept of law would have progressed somewhat in the 2500 years since the time of the classical Greeks.

More than that, however, is the specific background of the quote. These words – that the High Court paraphrases – are found in Sophocles’ play, Ajax. And Sophocles puts them into the mouth of Menelaus – the (semi-mythical) Greek king other contemporary playwrights denounced for his arrogance and cruelty, and who initiated a destructive and pointless ten-year war because his wife left him for another man. Not, perhaps, the model statesman whom you want expounding on the idea of law. And if the High Court had paid attention to Menelaus’ speech where the quoted words occur, a few lines above it would have found the following words: “‘tis a sign of wickedness, when a subject/ deigns not to obey those placed in power above him.” This is unsurprising: equating law with fear is the hallmark of societies where power flows from hierarchy and is kept by force.

Notably, in both cases, Menelaus s referring to the conduct of (the now dead) Ajax, and is refusing permission for burying his body. Ajax, in turn, had killed himself after going on a killing spree, triggered by his rage at being adjudged only the second-best Greek warrior when it came to massacring soldiers during the just-concluded Trojan War. After a lengthy dispute between Menelaus and another character, Teucer, the body of Ajax is indeed buried.

The literary, dramatic, and artistic merits of Ajax notwithstanding, here – in essence – is what the play is about: it is the aftermath of a destructive and unjustifiable war of aggression, where a soldier from the army of conquest massacres innocent civilians because he feels that he has not been credited enough for his role in the war, then kills himself, leading to higher officials having an argument – not about the massacre – but about whether his body should be given a burial (finally, it is). The higher official is angry – not because innocent civilians have been killed – but because his “subject” has disobeyed someone “placed in power above him.” But is finally persuaded to overlook the indiscretion, and impunity survives untouched. And it is within this context, this society, and this cast of characters, that we find the words the J&K High Court thought fit to apply to preventive detention in a 21st century constitutional democracy: “laws can never be enforced unless fear supports them.”

Perhaps the High Court did, after all, intend to make exactly this point: that we do live in the world of Ajax and Menelaus, and the world of the Melian Dialogue. Perhaps, then, we should applaud – once again – the refreshing honesty, topped off with a dash of literary flourish.

Or, perhaps the High Court would have been better served by remembering that the Greek army camps outside ruined Troy were not the best models for a constitutional democracy, and looked elsewhere in Sophocles’ ouvre; perhaps the legendary play Antigone, where a guard told another King:

“‘Tis sad, truly, that he who judges should misjudge.”

Mian Abdul Qayoom, meanwhile, remains in jail without trial.

The Devil’s in the (future) Detail: The Supreme Court’s Internet shut-down Judgment

Previously on this blog, we have discussed in some detail the litigation challenging the five-month-long internet shut-down in the Kashmir Valley. Today, a three-judge bench of the Supreme Court handed down its judgment in the challenge. While there was no effective relief in the judgment – the Court did not order a restoration of internet services in the valley, as it did not return a finding on the issue (see below) – it nonetheless reiterated certain important constitutional principles. While it is unfortunate, therefore, that the longest internet shut-down in a democratic country continues (at least for the foreseeable future), in this post, I will set out what the judgment actually did do, and how it provides a platform for future challenges to internet shut-downs as well as to the imposition of Section 144 of the Code of Criminal Procedure.

What the State Lost 

To understand the judgment, it is important to understand two bizarre claims advanced by the State at various points of the hearing. The State (i) refused to produce the orders that it had passed under Section 144 CrPC and the 2017 Telecom Suspension Rules, and which were the legal bases of the fundamental rights restrictions in the Valley; (ii) cited terrorism in Kashmir to argue that it was exempted from following the proportionality standard while restricting fundamental rights, and that, in the interests of national security, the Court ought not to intervene.

In essence, therefore, what the State – and its lawyers – were asking for was a complete carte blanche with respect to the operations in Kashmir. If the orders restricting fundamental rights did not need to be produced, there was no effective way to challenge them; and if the Court could not intervene because “terrorism”, then there was no effective forum where to challenge them. In other words, the State – and its lawyers – asked the Court to effectively hold that Kashmir was in a state of permanent Emergency, where fundamental rights stood suspended and at the mercy of the State, even though there had been no declaration of an Emergency at any point. The dangers of such an argument are obvious; as I’ve argued before, what the State wanted was a permanent normalisation of the Emergency regime, where the invocation of “national security” would grant an automatic judicial immunity from justifying the constitutionality of fundamental rights restrictions.

On both counts, however, the State’s arguments were comprehensively rejected. On the first issue, the Court made it clear that the orders providing legal cover to the imposition of Section 144 CrPC and the internet shut-down had to be made public, so that citizens could know – and, if they chose – challenge the bases on which their fundamental rights were being restricted. If the State wanted to withhold any part of such orders because of national security concerns, it would have to justify that, on a case to case basis.

On the second count, the Supreme Court reiterated that, at all times, restrictions upon fundamental rights had to be consistent with the proportionality standard. In particular, as part of the proportionality standard, the State had to select the least intrusive measure to achieve its legitimate goals. As the Court noted in paragraph 70:

However, before settling on the aforesaid measure, the authorities must assess the existence of any alternative mechanism in furtherance of the aforesaid goal. The appropriateness of such a measure depends on its implication upon the fundamental rights and the necessity of such measure. It is undeniable from the aforesaid holding that only the least restrictive measure can be resorted to by the State, taking into consideration the facts and circumstances. Lastly, since the order has serious implications on the fundamental rights of the affected parties, the same should be supported by sufficient material and should be amenable to judicial review.

And as it went on to note in paragraph 71:

The degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation.

 

Applying this standard to the specificity of internet shut-downs, the Court made four further observations. First, that the right to use the internet as a medium for free speech and expression and for trade and commerce, was protected under Article 19(1)(a) of the Constitution; secondly, that Article 19(2) allowed for the restriction of “abrasive statement(s) with imminent threat … if the same impinges upon the sovereignty and integrity of India…”; thirdly, that a perpetual internet shut-down would fail the test of proportionality; and fourthly, that the State’s argument that it couldn’t selectively block websites because of a lack of technology could not be accepted, as “[if] a contention is accepted, then the Government would have.”

Taking these four observations together, it is evident that the ongoing internet shut-down in Kashmir completely fails constitutional standards, as the government did not even attempt to justify it on grounds of proportionality, or that it was only targeting statements carrying an “imminent threat.” The Court went on to note that all of this required that when orders were being passed under the Telecom Suspension Rules to shut dow the internet, those orders would have to explicitly reflect how – in the specific case – the State action was proportionate.

While the reiteration of the proportionality standard in the context of internet shut-downs was a reinforcement of existing law, the Court also applied the same standard to Section 144 orders – which marks an incremental advance in the law. Up until now, the judgments governing the imposition of S. 144 were the old decisions of Babulal Parate and Madhu Limaye, whose language remained vague enough to be taken advantage of by unscrupulous State actors. Today the Supreme Court made it clear, however, that Section 144 orders would also have to abide by the proportionality standard (paragraph 126, and that that would have to be reflected in the text of the orders themselves. The Court also observed that in the normal course of things, S. 144 orders would have to be limited to particular areas or issues – thus casting severe doubt on the constitutionality of wide-ranging long-running 144 orders such as the one recently imposed in all of Bangalore, or the continuing order in Ahmedabad.

What the Petitioners Didn’t Win

Despite these findings, however, the Supreme Court did not rule on the validity of the internet shut-down or the imposition of S. 144 throughout the Valley. Its reason for that was somewhat curious: it held that because all of the internet shut-down orders had not been placed before it, it could not (yet) engage in judicial review. This is curious, because the onus of producing these orders undoubtedly lay on the State – indeed, the Court expressly directed it to do so in the operative part of its judgment. Furthermore, once the Court had held that the right to access information through the internet was protected by Article 19(1)(a), and that restrictions had to be proportionate, surely then the default situation was that the right would have to prevail over the restriction; in other words, until the government actually published the relevant orders with all the reasons (as required by the judgment), the internet ought to have been restored.

Instead, the Court directed that the Review Committee under the Telecom Suspension Rules would have to review the shut-down orders on a weekly basis, and that all the orders so far would have to be reviewed. Presumably, then, once this is done – and once the orders are published – a fresh challenge could be mounted on the basis of the principles laid out in this judgment (which, as I have indicated above, strongly suggest that the Kashmir shut-down is – and had always been – illegal).

Consequently, to the extent that the basis of the Court’s decision to not review the internet shut-down orders was that the State had not produced the orders in question (for five months), the consequence should have been that until the State – and its lawyers – decided to follow the law and the Constitution once again, fundamental rights could not continue to be restricted. That, however, seems like it will be a battle for another day. In the meantime, it is important to recall that in the wake of the CAA/NPR/NRC protests, the indiscriminate use of Section 144 and of internet shut-downs has been back in vogue, and there are now pending challenges in several High Courts. Today’s judgment sets out the principles on the bases of which these can be adjudicated: and the principles are that these orders restricting fundamental rights are subject to strong judicial review, that the State – and its lawyers – cannot get away by singing paeans to national security, that each order must be published, made public, and explicitly set out why the measure is proportionate, and that lastly, the Court shall – and must – examine whether least restrictive measures have been used, keeping in mind the importance of the internet to fundamental rights. These are sound procedural – and substantive bases – to move forward.

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[Disclaimer: the author was one of the lawyers representing the petitioners.]

 

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

[This is a guest post by Suhrith Parthasarathy.]

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

Facts

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

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

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

Issues and legal arguments

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

Access to the Internet

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

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

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

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

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

When can restrictions be made

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

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

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

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

 

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

• The orders imposing the Internet shutdown have no force of law. Presently, orders shutting down the Internet are made under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (“Telecom Rules”). These Telecom Rules were framed through the power prescribed on the Union executive by Section 7 of the Indian Telegraph Act, 1885. The Telecom Rules require the Executive, among other things, to provide a reasoned order when it directs the withdrawal of the Internet. Here, however, the orders imposing the shutdown were not made public. They were only released to the court during the course of the hearings, and, that too, with tremendous reluctance. A perusal of those orders that were released, however, the petitioners have argued showcase a complete non-application of mind. To take just one example, an order containing the subject: “Shut down of broadband services” was issued to extend an order whose subject read “Shut down of Land Line services.” What is more, while it is the Home Secretary (Govt. of India) or the Home Secretary of the state government concerned who is the competent authority to issue orders of suspension of the Internet under the Telecom Rules, in this case, the petitioner contend, the orders were issued by the Inspector General of Police. But, more than anything else, the orders themselves were bald and devoid of any reasons despite the Telecom Rules’ express mandate that orders suspending the Internet be issued for explicitly spelled out reasons.
• The orders issued suspending the Internet are not in furtherance of any legitimate state aim. The government’s case is that it apprehends that the Internet will be misused by “anti-national” elements and will lead to a deterioration of “law and order.” However, neither phrase invoked confirms to the requirements of Article 19(2) of the Constitution. The Supreme Court has repeatedly held (see: Superintendent Central Prison, Fatehgarh v. Dr. Ram Manohar Lohia and In Re Ram Lila Maidan Incident) that the term “law and order” is not subsumed within “public order” which is the ground that Article 19(2) stipulates. In the latter case, the court held that: “the distinction between `public order’ and `law and order’ is a fine one, but nevertheless clear. A restriction imposed with `law and order’ in mind would be least intruding into the guaranteed freedom while `public order’ may qualify for a greater degree of restriction since public order is a matter of even greater social concern. Out of all expressions used in this regard, as discussed in the earlier part of this judgment, `security of the state’ is the paramount and the State can impose restrictions upon the freedom, which may comparatively be more stringent than those imposed in relation to maintenance of `public order’ and `law and order’. However stringent may these restrictions be, they must stand the test of `reasonability’. The State would have to satisfy the Court that the imposition of such restrictions is not only in the interest of the security of the State but is also within the framework of Articles 19(2) and 19(3) of the Constitution.” In this case, the orders imposing the restrictions on the Internet the orders reference “law and order” without showing us how preservation of “public order” legitimately required the restrictions as imposed. What is more, as the petitioners have contended, the term “anti-national” is simply undefinable and does not fall within any of the carefully delineated grounds stipulated in Article 19(2) of the Constitution.

• The orders imposing the shutdown are not rationally connected to the fulfilment of the supposed purpose, that is the prevention of violence. While the state has repeatedly claimed that the Internet will be misused by miscreants and anti-national elements it has provided no actual evidence of such misuse being a real and genuine threat. Indeed, as the petitioners have shown, studies indicate the opposite, that a shutdown of the Internet leads to anxiety and unease and augment the risk of protests and demonstrations turning violent. Therefore, the state has simply failed to demonstrate the existence of a cogent and sensible nexus between the restrictions imposed and the purported aim behind the orders.

• Finally, the orders also do not conform to the test of necessity, that there was a compelling need for these actions and that the purported objective could not have been achieved through less restrictive and less invasive means. When even according to the state’s own arguments it is only a minuscule minority that are likely to commit violence, and when a whopping majority of the populace represent no threat to public order it is difficult to conceive how a complete shutdown of the Internet can constitute a necessary and proper action. Indeed, as the petitioners have shown, the state has often, in the past, isolated persons prone to terrorising from others, based on their registered mobile phone numbers. What is more, the state could quite easily have also resorted to blocking certain websites alone if the intention was to prevent incitement of violence. That a wholesale blockade of the Internet has been in force for more than four months evinces the fact that the State hasn’t so much as made an effort at ensuring that it adopts the least restrictive means possible to ensure that violence isn’t perpetrated in the region.

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

On the role of courts: and why the supreme court is playing the waiting game

On the Supreme Court’s last working day of 2019, it agreed to hear the constitutional challenge to the Citizenship (Amendment) Act 2019 (“CAA”). With this, the court takes into its winter vacation the challenges to the CAA, the amendment of Article 370 and the internet shutdowns in Kashmir. Outside the cloistered halls of the court, the public debate over the legality and desirability of these measures has reached fever pitch. With both the legal and political processes of contestation in full swing, it is an appropriate time to examine how divorced the two truly are.

Our trust in courts as institutions of justice flows from a few key ideas: that courts are isolated from short term political pressures, they decide on the basis of settled legal principles irrespective of how politically sensitive a case is, and they are independent from the elected government of the day and thus serve as a check on government power. This piece critically examines these assumptions about courts. I argue that while courts do decide cases in accordance with legal principles, the actual outcomes of crucial constitutional cases balance the requirements of the law, deference to the government, and deference to public sentiment. Recognising that alongside normative legal principles, public sentiment and the government have a crucial role to play in constitutional adjudication re-emphasises the need for active political contestation and debate over these issues.

Isolation, independence and matters of principle

Courts are understood as being isolated from short term political pressures. Unlike elected legislators, who are accountable to their constituents and respond to their immediate needs, unelected judges with fixed tenures and salaries can deliberate in a ‘neutral’ manner and render decisions that may be politically unpopular but necessary for the long term preservation of human rights and democracy. Judges are not bound by party ideology or the need to garner the popular vote, so they can arrive at substantively ‘better’ decisions. For example, after a terrorist attack, public sentiment may overwhelmingly favour the torture and public execution of a captured terrorist. The government, acting on the demands of the electorate, may decide to torture and execute the terrorist (after all, good government responds to what the people want). The courts however, isolated from public sentiment and understanding the long-term benefits of upholding the rule of law and human rights, can ensure the captured terrorist receives a fair trial.

A second assumption underpinning the public trust in courts is that courts rely on precedent (stare decisis) and settled legal principles to decide cases. Therefore, once courts construe the phrase ‘equality’ or ‘liberty’ as having an expansive meaning, the same expansive interpretation will subsequently be applied irrespective of how politically significant or insignificant the facts of a case. This is often why progressive judgements are celebrated, because we presume that the reasoning of these judgements will bind future benches of the court and lower courts. The last, and perhaps most significant, assumption about courts is that they stand independent from the elected government. Coupled with their isolation from short-term political pressures and their commitment to decide cases on legal principles, this leads to the overarching argument that courts stand as a check against the abuse of government power.

A chequered track record

A close examination of the track record of courts during periods of regularised and flagrant human rights violations casts doubt on the argument that courts are effective checks on majoritarian government power. In India, the most famous example of the court’s failure to resist the use of government power is ADM Jabalpur v S S Shukla. The case, heard at the height of the emergency imposed by former Prime Minister Indira Gandhi after her election was challenged in 1975, centred around whether individuals detained by the government (often political opponents of the Prime Minister) had a right to approach the courts for relief during the emergency. Despite several High Courts holding that detained persons had a right to approach the court even during an emergency, in ADM Jabalpur the Supreme Court held that no such right existed and left the detentions to the sole supervision of the government. The Indian Supreme Court is not alone in turning a blind eye to the exercise of government power against its citizens during times of national or political crisis. After the attack on Pearl Harbour, the U.S. Supreme Court upheld the internment of all persons of Japanese ancestry in Korematsu v United States – citing the overriding needs of national security and avoidance of espionage. In Liversidge v Anderson the House of Lords held that the Home Secretary did not have to objectively justify his detention order with reasons and the such matters were not justiciable in courts. These cases have since been overruled or denounced as ‘black marks’ on an otherwise unblemished record of judicial history, but they serve as powerful reminders that when governments exercised their power against citizens in the most extreme ways, courts have been found to be inadequate protectors.

Sabarimala – the Supreme Court’s problem child

A prime example of how far the Indian Supreme Court’s behaviour can stray from the core assumptions we associate with courts acting as politically insulated institutions dispensing justice according to legal principles is the court’s treatment of the Sabarimala dispute. To recap: in 2018 a five-judge bench of the Supreme Court struck down the prohibition on menstruating women entering the Sabarimala temple as violating the constitutional guarantees of equality and non-discrimination. The judgement led to a public backlash in Kerala (the state where the Sabarimala temple is situated). Those opposing the judgement took the law into their own hands and refused to permit the entry of women into the temple, often attacking women who tried to enter. A review petition was filed against the 2018 judgement, the significant irregularities of which have already been addressed on this blog (here) and do not need to be rehashed. It is sufficient to note that one judge (Khanwilkar J) refused to stand by the judgement he had signed less than a year ago in 2018 and in November 2019 the court decided that the 2018 judgement needed to be ‘reconsidered’ by a larger bench. To understand what happened next, it is important to note that by referring the dispute to a larger bench, the court did not stay the 2018 judgement but merely kept the review petition pending. The pendency of a review petition does not deprive a judgement from having the force of law. This means that at the time of writing this post, the 2018 judgement remains good law and a woman should be able to enter Sabarimala. When the Supreme Court was asked to direct the Kerala Government to uphold and enforce the judgement, the Chief Justice of India acknowledged that there was no stay on the 2018 judgement, but refused to direct the State Government to enforce the judgement – noting the matter was “very emotive” and the court wanted to avoid violence.

The treatment of Sabarimala is a testament to how the Indian Supreme Court consider both legal principles and public sentiment in deciding constitutional cases. The 2018 judgement was based precisely on the legal principles we associate with constitutional courts. However, unlike the court’s decisions decriminalising consensual gay sex or adultery, where the court’s decision faced widespread and organised public resistance, the court did a double take, refusing to enforce its judgement and stating that the judgement itself needed to be ‘reconsidered’. The ‘settled’ legal principles of equality laid down in 2018 (which we expect to bind future courts) succumbed to the changed political landscape of 2019. Changing public sentiment leading to the court ‘flip-flopping’ on outcomes is not new, and not always detrimental to the rights of citizens. For example, in 2013 the Indian Supreme Court refused to decriminalise consensual gay sex but five years later the court did decriminalise it. It is perfectly possible for future benches to disagree with past ones; however, the incremental nature of such change is essential to maintain the public trust that courts are insulated from the politics of the day. The casting in doubt of Sabarimala within a year, in the face of abject and consistent non-compliance with the judgement by the government and citizens, points to just how thin the court’s veneer of being insulated from public sentiment and deciding cases purely on legal principles is.

Plenty has been written on why the CAA is unconstitutional and should be struck down for violating Article 14 and its resultant jurisprudence (including here on this blog). However, the very idea that the court will apply the legal principles it has previously laid down is caveated by the court’s regular deviation from settled principles in the face of troubling ground realities or persistent public sentiment to the contrary.

Judicial independence 

The last assumption is that courts stand independent of the government and form the ultimate protectors of individual rights against state action. Historically, we have seen that this has not always been the case. As a matter of constitutional design, courts control neither the ‘sword nor the purse’. In other words, courts rely on the government to implement and abide by their decisions. The extent to which the government does so is a function of how much public legitimacy and authority the court wields at any given time. In a handful of jurisdictions, court have over centuries entrenched themselves to a point where non-compliance with their judgements is unthinkable and a government refusing to comply with a court judgement would risk being voted out of power by an electorate that deeply values the rule of law. For example, when the British Prime Minister’s advice to the Queen to suspend parliament was found to be unconstitutional by the U.K. Supreme Court, the question was not whether the Prime Minister would comply with the decision, but rather whether he would apologise to the Queen and British public.

In most jurisdictions however, where courts have not had the time or opportunity (or have squandered both) to create a deep sense of institutional credibility and win the public trust, courts are far more vulnerable to government interference.  If a court were to repeatedly strike down government action, the government can register its discontent with the court in several ways. The most common (and visible) tactic is to delay/interfere with the process of judicial appointments. Right from Indira Gandhi’s appointment of A N Ray as Chief Justice (superseding the three senior most judges of the Supreme Court who had ruled against her government) to the current government’s delays in confirming judges, Indian courts have regularly been susceptible to government pressure over judicial appointments. The government may also refuse to provide funding and infrastructure for courts. At the extreme, the government can simply refuse to comply with or implement the judgements of the court. The Indian Home Minister’s recent suggestion that the non-implementation of Supreme Court judgements was an acceptable state of affairs runs dangerously close to an outright refusal to acknowledge the authority of the court. In such situations, courts must not only apply the law, but also balance the needs of the law with deference to the government to ensure the court’s continued survival as an institution.

Indian jurisprudence is replete with such deference. In 1975 when the Allahabad High Court found the then Prime Minister (Indira Gandhi) guilty of corrupt practices and invalidated her electoral victory, the government passed a constitutional amendment designed specifically to nullify the invalidation. In the Supreme Court, the constitutional amendments were struck down, but the Prime Minister’s election victory was upheld, allowing Indira Gandhi to remain in power. In Maneka Gandhi v the Union the petitioner’s passport was impounded, and no reasons provided. She approached the court contending that her right to a fair trial and to put forth her defence had been taken away. In a sweeping judgement, the court significantly expanded the scope and rigour of scrutiny, holding that procedure by which liberties are infringed must be ‘fair, reasonable and just’. However, rather than invalidate the order impounding of the passport or the provisions of the Passport Act, the court took on record the Attorney General’s assurance that the government would ‘consider’ the court’s observations and left the matter to the government. Ironically, the last paragraph of Maneka Gandhi (widely touted as a high watermark of Indian human rights jurisprudence) reads:

“The Attorney General assured us that all the grounds urged before us by the petitioner and the grounds that may be urged before the authority will be properly considered by the authority and appropriate orders passed. In the result, I hold that the petitioner is not entitled to any of the fundamental rights enumerated-in Article 19 of the Constitution and that the Passport Act complies with the requirements of Art. 21 of the Constitution and is in accordance with the procedure established by law.”

The Chief Justice’s recent refusal to pass directions for the entry of women at Sabarimala stems in part from the fact that both the Kerala Government and Central Government have indicated their unwillingness to carry out such directions. An order directing the authorities to enforce the judgement would likely be ignored by both governments, triggering a constitutional crisis.

The present day

Having understood that while not entirely independent, the court is undoubtedly uniquely situated, let us examine the court’s recent decisions where the stakes for the government were particularly high. In its Aadhar judgement, the court upheld the government’s collection and use of bio-metric data as part of the Aadhar scheme. The court in 2018 also held the Aadhar Act was correctly certified by the Speaker as a money bill (meaning it was not subject to scrutiny by the Rajya Sabha). But a year later in Rodger Matthew v South Indian Bank the court held that the Aadhar judgement’s reasoning on the issue of money bill was “arguably liberal [in favour of the government]” and “not convincingly reasoned”. The question of how future courts should construe money bills has been referred to a larger bench but peel away the Supreme Court’s strategic antics and the decision in Rodger Matthews is a damming admission that the Aadhar Act was unconstitutional but still upheld by the court.

The Supreme Court’s treatment of the petitions challenging the internet shutdown and detentions in Kashmir and the amendment of Article 370 has been the clearest example of the court’s deference to the government of the day. On 16 September 2019 the court passed an order (analysed here) which didn’t require the government to disclose the legal source of the internet shutdown and left it to the unrestricted discretion of the government to make “endeavours” to restore “normal life”. On 16 December 2019 the internet shutdown in Kashmir entered its 134^th day, the longest ever recorded in a democracy. At the time of writing this post, the court is yet to adjudicate on the constitutionality of the internet shut down and the hearings challenging the actual amendment of Article 370 have just taken off.

Recall that vulnerable courts are often called upon to balance the meaning of the law with ensuring a working relationship with the government. After 70 years of democratic constitutionalism, our courts are certainly robust enough to avoid obliteration at the hands of the government. They regularly strike down state and central government actions found to be violative of the Constitution. However, with cases such as Aadhar, Sabarimala, the CAA and Kashmir, where the political stakes for the government are exceptionally high, cracks begin to emerge in the court’s multi-faceted balancing act between the law, public sentiment and deference to the government. In ADM Jabalpur the court compromised its fidelity to the integrity of the law and allowed the government a free reign in return for its continued survival (the supersession of Justice Khanna and the regular transfer of ‘non-complaint’ High Court judges by the government is telling in this regard). Today’s court is neither willing to expressly compromise its intellectual fidelity to the law nor its necessary relationship with the government – and so it sits on the fence, hoping that nobody will notice. The court does not trust its institutional legitimacy is strong enough to rule against the government on politically sensitive matters and continue to maintain a working relationship with the government (the government is equally to blame for this lack of trust). While it also refuses to expressly abandon its fidelity to the integrity of the law (as it did in ADM Jabalpur) and provide express judicial acquiescence of the government’s actions, its refusal to act is fast achieving a similar result indirectly.

Conclusion

Recognising that the central assumptions held about courts as counter-majoritarian institutions are flawed is the first step towards understanding the actions of the Supreme Court recently. The court undoubtedly analyses and applies legal principles on a day to day basis. However, in deciding constitutional cases with high political stakes, courts also consider the impact the decision will have on the government (Aadhaar and Kashmir), the prevailing public sentiment of the day, and the impact on the ground (Sabarimala). Absent any enforcement powers, the court’s is as bold as it thinks the government and people will allow it to be.

In deciding the host of thorny issues on its plate in 2020, the Supreme Court is likely to consider the prevailing public sentiment, strive to maintain a working relationship with the government, and lay down some important law. While the court’s legal questions will be answered by a handful of lawyers in Courtroom 1, the question of how strictly the court will apply the law to fulfil its constitutional role as a meaningful check on government power will be answered by every other Indian. This calls for renewed scrutiny of the court’s actions that denude the legitimacy of its decision making process (some examples include the use of sealed covers, the (mis)use of the master of the roster role, a flawed appointment process and the regular overriding of High Courts). Such actions not only violate core legal norms, but also reduce the public trust in the institution, reducing its institutional authority to act as a check on government power. Understanding the limitations of courts also highlights the need to strengthen the accountability and contestation within other wings of government beginning with our electoral and parliamentary processes.