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Book Review: A Question of Design — Chintan Chandrachud’s “Balanced Constitutionalism”

In 1996, a three-judge bench of the Supreme Court was called upon to decide the constitutionality of certain provisions of the Chota Nagpur Tenancy Act of 1908, which effectively excluded women from inheritance in certain areas in Bihar. In Madhu Kishwar vs State of Bihar, a majority of the Court observed that “nonuniformities would not in all events violate Article 14“, and that it was refraining from striking down (this very obviously discriminatory Act) “as this would bring about a chaos in the existing state of law.” Instead, the Court issued “directions” the State of Bihar to “comprehensively examine the question on the premise of our constitutional ethos and the need voiced to amend the law.”

Madhu Kishwar vs State of Bihar is an almost incomprehensible judgment to those who think of judicial review as being about protecting fundamental rights and invalidating legislation that violates those rights. The Court upholds a statute with reasoning that would ensure a failing grade in Constitutional Law 101:

“… an activist court is not fully equipped to cope with the details and intricacies of the legislative subject and can at best advise and focus attention on the State polity on the problem and shake it from its slumber, goading it to awaken, march and reach the goal… however much we may like the law to be so we regret our inability to subscribe to the means in achieving such objective. If this be the route of return on the Court’s entering the thicket, it is for better that the court kept out of it. It is not far to imagine that there would follow a bee-line for similar claims in diverse situations, not stopping at tribal definitions, and a deafening uproar to bring other systems of law in line with the Hindu Succession Act and the Indian Succession Act as models.” 

What has any of this got to do with the Constitution, you might ask. In a new book called Balanced Constitutionalism, Chintan Chandrachud argues that judgments of this kind are a feature, rather than a bug, of constitutional systems ostensibly committed to judicial supremacy (that is, Constitutions that grant the judiciary the last word on the meaning and scope of constitutional rights). It is unrealistic to think – or to hope – that judges will not decide cases with a view to the potential practical consequences (even though their protestations are generally to the contrary, and Madhu Kishwar is a bit of an outlier in that “social chaos” is made an express ground for upholding an Act that otherwise appears to violate the Constitution). And when judges are faced with a stark choice between upholding a law or striking it down, they will hesitate from choosing the latter option when it would lead to great disorder in the legal system. In such situations, Chandrachud argues that judges will “mask” their rights-reasoning (that is, their genuine understanding of whether or not the impugned statute violates rights) in order to achieve a sustainable outcome. The system of judicial review-judicial supremacy, therefore, constrains judges from giving effect to their genuine understanding of what the Constitution requires, and crimps judicial reasoning in important constitutional cases.

Introduction

What is the alternative, you might ask. Surely not Parliamentary supremacy, where rights are reduced to “playthings of the majority“? No: the comparison Chandrachud draws is not with pure Parliamentary models, but with the “hybrid” or “balanced” model, the best example of which is the United Kingdom. In the UK, the Human Rights Act effectively codifies the European Convention of Human Rights into domestic law, and allows the Courts to issue a “declaration of incompatibility” in situations where it is absolutely impossible to reconcile domestic legislation with a Convention right (the structure and mechanics of the Human Rights Act are explained by Chandrachud in the opening chapter). A “declaration of incompatibility” is not tantamount to striking down a law: in fact, it has no legal force at all. In theory, the UK Parliament can entirely ignore a declaration of incompatibility, and presumably, the only potential cost will be the (debatable) political cost of having clearly defied a court’s finding that domestic law violates a binding international convention. However, as Chandrachud points out, practice invariably departs from text. Balanced Constitutionalism, then, is a comparison between the UK and Indian constitutional models as they work in practice. As the first comparative analysis of this kind (between two Parliamentary systems, one of which follows the old judicial review model, and the other the new hybrid model), it marks an important point of departure, and will hopefully provide fertile ground for the continuation of what is an important and long-overdue conversation.

Chandrachud’s comparison between the UK and the Indian models proceeds along two metrics: which model, he asks, allows Parliament more freedom to articulate its “genuine understanding” of rights? And which model allows Courts more freedom to do the same? The model that “wins” on these metrics is the more “balanced one” (the underlying assumption, of course, is that the separation of powers in a parliamentary-constitutional democracy works at its best when both organs – the parliament-executive and the judiciary – are able to articulate their understandings of constitutional rights most freely.

What Parliaments Do 

Chapter One of Balanced Constitutionalism lays out this basic normative argument. Chapter Two discusses the range of political options available to the Indian and UK Parliaments in cases where Parliament wants to respond to the exercise of judicial review. In India, responses include constitutional amendments (after Kesavananda Bharati, constrained by the basic structure), placing laws in the Ninth Schedule to the Constitution, which makes them immune from a fundamental rights challenge (after I.R. Coelho, also constrained by the basic structure, although Chandrachud draws an important distinction between Ninth Schedule basic structure review and fundamental rights amendments basic structure review), passing Ordinances, and of course, filing review and curative petitions in the Supreme Court itself. To Indian readers, this is a familiar story, and Chandrachud’s account is comprehensive. As far as the UK is concerned, Chandrachud argues that, contrary to first impressions, “the space for political responses to declarations of incompatibility is much narrower than that which is assumed” (p. 64). This is not only because of a political climate in which judicial opinion is given great weight and respect, but also because judges themselves are strategic actors par excellence when deciding whether to issue declarations of incompatibility. Chandrachud shows how such declarations are often issued when there are already existing proposals to amend the impugned law, and are sometimes accompanied by “soft suggestions” to Parliament about what route the amendment might take to address the incompatibility. The result is that “responses to declarations of incompatibility have been made either through remedial orders or primary legislation in almost every instance” (p. 83), and State action after a declaration of incompatibility has focused on “how to act“, rather than on “whether to act at all.” This situation is heightened by the existence of the European Court of Human Rights at Strasbourg, which also has the power to find the UK in breach of its obligations under the ECHR. The possibility of a declaration of incompatibility being followed up with the initiation of proceedings before the ECHR provides further incentives to the State to act in response to such declarations.

This suggests, therefore, a convergence between the two models. In India, where judicial supremacy (ostensibly) holds sway, Parliament has developed a range of responses to ensure that it is not merely a passive actor when it comes to interpretation and application of rights. In the UK, where Parliament seemingly has unbounded discretion to respond or not to respond to the Courts’ interpretation of rights, actual practice reveals that the discretion is curtailed due to a range of institutional factors. In Chapter Three, Chandrachud focuses the question further by asking which model of judicial review “engenders a more balanced allocation of powers” (p. 97). After teasing out some of the different ways in which the two Parliaments have actually responded, Chandrachud focuses on what he calls the “Time Factor“: how long does it take for Parliament to respond to, or revise, judicial understanding of rights? Through graphs, Chandrachud demonstrates that – counterintuitively – “the Indian Parliament’s response time is slightly quicker than the Westminster Parliament’s response time.” This undermines the suggestion that the hybrid UK model is “better” than the Indian judicial review model because it allows greater ease of response to Parliament. Chandrachud concludes that on the Parliamentary metric (see above) neither jurisdiction “wins” over the other.

What Courts Do 

In Chapter Four, Chandrachud turns to the Courts. His argument – which I highlighted at the beginning of this review – is that the Indian Supreme Court operates in the “shadow” of its power to strike down law. Perhaps paradoxically, it is the existence of this power – and the inevitability of its usage consequent to the finding of a rights violation – that prompts the Court to “mask” its true understanding of fundamental rights in a manner that does not happen in the UK. To make this point, Chandrachud compares three sets of cases. First, in Namit Sharma vs Union of India, while responding to a constitutional challenge to various provisions of the Right to Information Act on grounds of Article 14, the Court backtracked on its own previous findings of presumptive unconstitutionality – followed by some creative “reading in” of principles into the text of the statute to save it – and ended up upholding most of the Act even while expressing unease about its compatibility with Article 14. In R v Thompson, on the other hand, the UK Supreme Court issued a declaration of incompatibility with respect to a provision of the Sexual Offenders Act that put offenders on notification requirements for life, without possibility of review. Chandrachud argues that the Right to Information Act and the Sexual Offenders Act were similar insofar as they were both of recent vintage, qualified as “social reform laws”, were deemed to be “landmark” laws by Parliament, and – perhaps most importantly – set up complex statutory regimes to deal with a social problem. What this meant was that invalidating a provision of either of the Acts would have a ripple effect upon the system as a whole. Here, the Indian Supreme Court was unwilling to cause legislative disturbance on such a scale, while the UK Supreme Court had no similar compunctions, because a declaration of invalidity would not invalidate the statute.

Chandrachud makes a similar argument when comparing Koushal vs Naz and Bellinger vs Bellinger. He attributes the recriminalisation of homosexuality by the Indian Supreme Court in Koushal to its fear that, by striking down Section 377 of the IPC, there would be a legislative vacuum as far as child sexual offences were concerned; on the other hand, in a case involving the right of a transsexual person to a post-operative marriage with a person (now) of the opposite sex, the UK Supreme Court had no difficulty in holding that the relevant provisions of the Matrimonial Causes Act, which only contemplated marriage between parties respectively “male” and “female”, were incompatible with the Human Rights Act. Chandrachud argues that what united these cases was the consequence that there would be a “series of effects across the legal system” in case the provisions were invalidated. Here again, the impossibility of “invalidation” allowed the UK Supreme Court to interpret rights with full freedom, while the Indian Supreme Court “masked” its reading of rights.

And lastly, Chandrachud compares Kartar Singh vs State of Punjab with the Belmarsh Prison Case. In the former, the Indian Supreme Court upheld an anti-terror statute that allowed for a wide departure from the rights guaranteed to accused persons under the CrPC and the Evidence Act, despite voicing unease with the legislative measures in question. At the same time, Belmarsh was also an anti-terror case, where the UK SC found that certain detention provisions of the Anti-Terrorism, Crime and Security Act, passed in the aftermath of 9/11, were incompatible with the Human Rights Act. Here, the argument is obvious: the possibility of a vacuum in anti-terror laws was a prospect that the Indian Supreme Court could not stomach.

Through these cases, Chandrachud makes the point that the Indian Supreme Court is constrained in its rights-reasoning in a manner that the UK SC is not, because of the consequences that accompany a finding that a particular statute violates constitutional rights. He goes on to argue that the Indian Supreme Court is constrained from fashioning new and effective “remedies” that go beyond the binary of striking down/upholding because of the text of the Constitution (which does not envisage such innovations) as well as institutional constraints (Parliamentary inaction despite judicial advice to amend or modify a statute).

This is an important point, and I would like to briefly extend it: in fact – as Chandrachud notices – the Supreme Court has tried to fashion new remedies, often relying upon Article 142 of the Constitution. These include the now-legendary “continuing mandamus”, and of course, the ubiquitous “guidelines”. In fact, Kartar Singh – and other similar cases – buttress Chandrachud’s argument in an even stronger fashion than is expressly acknowledged in the book: the very fact that the Supreme Court is compelled to pass “guidelines” is evidence of that fact that it has found a constitutional infirmity (whether it admits it or not), and is trying to cure that infirmity by substituting itself for the legislature (or the Executive, as the case may be), instead of having to perform its constitutional function of striking down the law. And of course, there is a very good reason why this simply does not work: the Court is venturing into fields (legislation or administration) that it is fundamentally unsuited to be in. That, however, is an ongoing debate: the point here is that the ubiquity of guidelines is further evidence of the Court’s “masking” its rights reasoning: (legislative) guidelines instead of (judicial) invalidation has come to define the Court’s constitutional responses.

In his last chapter, Chandrachud looks at “collateral institutions” (the JCHR in the UK and the European Court of Human Rights, and the National Human Rights Commission in India), and finds – unsurprisingly – that the robustness of the former is matched by the toothlessness of the latter. He concludes, therefore, by arguing that the UK model is a more “balanced” model of constitutionalism than the Indian, on the singular metric of the extent to which Courts can freely articulate their genuine understanding of constitutional rights.

Thinking Through Issues of Design 

Balanced Constitutionalism is an important book in that it goes beyond an analysis of constitutional doctrine, and places adjudication – and constitutionalism – in its political context. Ever since Ronald Dworkin’s Taking Rights Seriously, there have been complaints that constitutional theory is too focused on appellate Courts, and ignores the role of the other organs of State. Chandrachud avoids that trap: his book is about the relationship between Parliament and the Courts, and gives equal weightage to Parliamentary debate, statutory amendments, and legislative responses and non-responses, as it does to judgments.

This helps us to understand that court judgments ought not to be read in a vacuum, but as part of an existing political ecosystem that conditions and structures the way judges act. Balanced Constitutionalism demonstrates that when we do this, the results may be surprising and counter-intuitive: systems that are formally very distinct can converge at unexpected places, and diverge at still more unexpected places. We think that the UK Parliament is supreme, and the text of the Human Rights Act suggests that, but in practice, we find that it is about as constrained as the Indian Parliament in its response to adverse judgments. And, on the other hand, we may think that a system of judicial supremacy vests great power in courts; but it turns out that the very existence of this power creates a reluctance to use it, and constructs constraints that, in some ways, are even more cloying than in systems where the power doesn’t even exist. Balanced Constitution, therefore, pushes us to think more deeply about crucial issues of constitutional design, how constitutional design is embedded in the political structures of a society, and how that – ultimately – impacts outcomes.

Points of Disagreement

In conclusion, I would like to point to two arguments where I disagree with Chandrachud.

(a) Koushal vs Naz

I believe that Namit Sharma and Kartar Singh illustrate Chandrachud’s point about the Court “masking” its rights-reasoning well. However, Koushal vs Naz does not. Chandrachud suggests that the Supreme Court upheld Section 377 because of its fear of a legislative vacuum that would allow child sexual abuse to go unpunished. This is, indeed, mentioned at one point in the judgment but, in my view, was pure eyewash by the Supreme Court. This is not only because the 2013 amendments to the IPC covered the issue (which Chandrachud points out), but also because the case was never about whether S. 377 should be struck down. The High Court had only “read down” the Section to exclude consenting same-sex intercourse between adults in private; for the rest – including child sexual abuse – 377 continued to exist. Consequently, the core of Chandrachud’s argument – that rights-reasoning is masked because of the consequences of striking down – doesn’t work for Koushal, because the case was never about striking down at all.

Secondly, it is difficult to read Koushal as a case where the Supreme Court believed a statute was unconstitutional, but didn’t strike it down because it was afraid of the consequences. Everything in the judgment suggests the exact opposite: the Court refused to return any finding on Article 21 (the right to privacy) and Article 15(1) (the right against discrimination on grounds of sex), and spent exactly two paragraphs in a 98-page judgment dealing with Article 14. In its Article 14 analysis, it held that S. 377 punished acts and not persons, and therefore there was no issue of inequality. The poverty of this line of reasoning has been discussed extensively by now, and I don’t want to go into it here; the basic point is that the Court very clearly believed that S. 377 did not violate fundamental rights, and this is more than clear by a re-reading of its notorious labels: “the so-called rights” of the minuscule minorities.” Chandrachud does hint towards the end of his discussion that the Court was guided by ideological considerations; however, I think that on a dispassionate reading of Koushal vs Naz, there is no other way to describe it other than an utterly bigoted judgment, where contempt for rights is clear and evident, rather than Chandrachud’s reading of an uneasy Court trying to reconcile its sense that the statute was unconstitutional with the consequences of striking it down. This is not to say that the argument is incorrect; indeed, Madhu Kishwar vs State of Bihar (in my view) is an excellent example of a case in which the Court expresses its unease in clear terms, but upholds a law because of the possibility of “social chaos”.

(b) Response Time

Chandrachud argues that the time taken by Parliaments to respond to adverse judicial decisions is an important indicator in determining how free they are to articulate their understanding of rights. However, I believe that his actual discussion comparing India and UK leaves out a few important variables: for instance, response time is affected by the quality of deliberation, and there is no doubt that, at present, because of various structural and institutional features, the quality of legislative deliberation is much better in the UK than it is in India (Chandrachud himself mentions plenary bottlenecks at various points). Furthermore, response time is surely affected by the anti-defection laws, which spares the ruling party the necessity of having to convince its own back-benchers to vote for a (possibly controversial) law. Consequently, it seems to me that simply comparing response times without taking into account these other factors does not do enough for the argument that Chandrachud is trying to make.

Conclusion

In sum, therefore, Balanced Constitutionalism presents an detailed comparative analysis of the systems of judicial review in the UK and in India. The obvious commonalities between the two Parliamentary democracies make this comparison a topical and important one. Going forward, Balanced Constitutionalism will undoubtedly be a point of departure for discussions about constitutional design, and the relationship between design and how Parliaments and Courts interact over issues of rights adjudication.

Balanced Constitutionalism is available to purchase here.

(Disclaimer: The writer of Balanced Constitutionalism is a friend of the author).

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Money Bills, Speaker’s Discretion, and Judicial Review

(In this guest post, Jeydev c.s. examines the controversial – and ongoing – issue of whether the Speaker’s decision to classify a bill as a money bill is subject to judicial review.)

Money bills seem to be all the rage these days. What is generally relegated to the annals of arcane legislative procedure is now at the forefront of a public debate that has raised accusations of executive arrogance, been defended as efficient law-making, and for our purposes, is begging questions of constitutional propriety. In this post, I look at the specific legal question of whether the role and conduct of the Speaker in classifying bills as ‘money bills’ is open to judicial review; this very issue is presently before the Supreme Court of India in Jairam Ramesh v. Union of India, as it hears a petition by a former cabinet minister who has challenged the passing of the Aadhaar Act, 2016 as a money bill, among other things. The question is important, because under the Constitution, the Rajya Sabha cannot exercise its customary legislative veto upon money bills. Consequently, the Speaker’s decision to classify a bill as a money bill or not has important ramifications.

It is true that in two recent cases, Mohd. Saeed Siddiqui v. State of Uttar Pradesh and Yogendra Kumar Jaiswal v. State of Bihar, the Supreme Court has held that the Speaker’s decision is not subject to judicial review. However, this post seeks to locate these judgments within the broader jurisprudence of the Supreme Court, with which they appear at odds with. The present petition offers the Court a rare opportunity to unambiguously articulate its position with sufficient reasoning, while acknowledging consequential implications, whichever way it rules.

Article 110 of the Constitution defines a money bill, and sets out six specific subjects which a money bill might cover (imposition of taxation, regulation of government borrowing etc.), so as to merit such classification, as well as any matter that is “incidental” to those six subjects. This is an exclusive list. Clause (3) provides that whenever any question arises to the propriety of classification under article 110, the decision of the Speaker of the Lok Sabha shall be final. However, the question remains: does the finality of the Speaker’s decision necessarily oust the jurisdiction of the courts? Article 122 explicitly bars courts from inquiring into the proceedings of Parliament. As the text of clause (1) suggests, this bar applies to any question on the ground of “irregularity of procedure”. The Supreme Court has, on several occasions, opined on the contours of this restriction.

In M.S.M Sharma v. Dr. Shree Krishna Sinha, it was affirmed that legislative business cannot be invalidated even if they are not in strict compliance with the law. As Chief Justice Sinha observed, these issues fall within the realm of what is a ‘special jurisdiction’ of the legislature – to regulate its own business; and the general rule is one of non-intervention. Historically at common law, this was also a privilege extended to Parliament and its officers, such as the Speaker. The powers of expulsion, censure, contempt et cetera are freely exercised by the UK Parliament without the threat of judicial review. However, the guiding principle of Indian law is constitutional supremacy, not parliamentary supremacy. For this reason, Indian jurisprudence has not been as kind to power unchecked by other branches of government. It has been repeatedly clarified in cases such as State of Rajasthan v. Union of India that the Constitution is ‘supreme lex’, which limits the authority of each branch, including that of the legislature. Judicial review offers an invaluable tool in checking Parliamentary belligerence, and this role is integral to the Indian constitutional scheme, as clarified by the Court in Sub-Committee on Judicial Accountability v. Union of India. From these cases, what is clear is this – the affairs of a legislature are generally the domain of that legislature alone, while the judiciary could play a significant role in review if the former strays from its constitutional circumscriptions.

For more guidance on what that potential role could be, we may look to Keshav Singh’s case. It held that while legislative bodies are not subject to judicial control as far as their internal procedures are concerned, there are certain caveats to such a proposition. It was held that a court of law may question legislative procedure if the impugned action rests not on mere irregularity, but from an ‘illegality’ or ‘unconstitutionality’ of procedure. In Ramdas Athavale v. Union of India, the Supreme Court extended that standard to article 122, as it pertains to procedural actions of Parliament. More tellingly, in Raja Ram Pal v. Speaker, Lok Sabha, the Court had applied this standard to article 105 (3), which sought to import those privileges, powers, and immunities enjoyed by the House of Commons into the Indian scheme (as an interim measure, until the Indian Parliament itself legislates on those matters). This case dealt with the expulsion of certain members of Parliament, by the Speaker. A plain reading of this clause and Parliamentary practices in the House of Commons might suggest a finality to procedural decision of the Speaker in confirming the expulsion, in terms that are analogous to article 110. The Court however noted that the Indian Constitution did not provide for expulsion as a means to effect a vacancy in the house, and the procedure was therefore illegal and unconstitutional, rather than merely irregular. The Speaker’s decision was held to be open to judicial scrutiny, and the expelled members were reinstated by the Court.

Given this precedential matrix, the question now turns to whether the decision of the Speaker to classify a bill as a money bill under article 110 amounts to a procedural matter; and even if it does, whether patently erroneous classification would amount only to mere irregularity of procedure. In Siddiqui, the Court considered a controversy with regard to identical provisions of the Constitution pertaining to state legislative assemblies. Here, the Court validated the finality of the decision of the Speaker, with only a passing reference to the rule clarified in the wealth of cases before it, and dismissed them without any substantial scrutiny. It did not offer any reasoning for this conclusion – in fact, it refrained from attempting to make the crucial link between irregularity of procedure and judicial review. The Court merely reiterated the text of article 110 (3), despite the broader avenue of intervention that has existed as far back as Keshav Singh.

More recently in Jaiswal, the Supreme Court reaffirmed the holding in Siddiqui that any decision of the Speaker in this regard, however flawed, could only amount to a “mere irregularity”, and thus outside the ambit of judicial review. Despite seemingly settling the question once and for all, closer scrutiny shows that the only source relied upon to this end is the conclusion in Siddiqui itself. It does not offer any independent assessment of the issue or unique reasoning – to say, ‘because Siddiqui said so’, holds value only if Siddiqui had done so on solid legal grounding in the first place. To that end, the Court missed an opportunity to detail the reasoning that informed its conclusions, particularly in light of the remarkable consequences of its decision. As anecdotal evidence from oral proceedings in the Ramesh case seems to suggest, the Court does not appear to be inclined to let blatant mischaracterisation go unchecked; Khehar CJ is reported to have observed, “If the Speaker says blue is green, we will tell her that blue is blue and not green”.

The Rajya Sabha is the indirectly-elected, upper-house of the bicameral Parliament of India. As such, it was envisaged to be an active participant in the legislative process – among other things, it would be consultative, advisory, and contributory towards law-making, without being subject to the vagaries of electoral politics. These features are supposed to, in theory, improve the quality of laws that are enacted by acting as a check on the untrammelled legislative intentions of the directly-elected, lower house of Parliament. With respect to ordinary legislation (i.e. non-money bills), the Rajya Sabha finds itself on equal footing with the Lok Sabha, as the former’s views cannot be ignored by the latter since the passing of such a bill by both houses of Parliament is the sine qua non of becoming law. On the other hand, once classified as a money bill, the Rajya Sabha’s legislative role is severely inhibited by reducing it to an advisory position – advice that is not binding on the Lok Sabha.

If the Court is to yet again affirm the conclusions of Siddiqui and Jaiswal in the forthcoming Ramesh case, unthinking reliance on those two cases would be another opportunity wasted as it does not truly answer the question of whether an erroneous certification of money-bills, as such, merely amounts to procedural irregularity. The Court must offer clear reasons as to why patently improper decisions by the Speaker does not amount to any of the other substantive flaws laid down in Keshav Singh and Pal. The obligation on the Court is to show why our constitutional scheme envisages the vesting of so grave a power with the Speaker that may be abused or incorrectly applied, yet not meriting judicial review. The very distinction between money bills and ordinary bills, as envisaged by the incorporation of article 110 in the Constitution, harks to the expectations of a participative and involved upper house. What does it mean for our democratic institutions if this process is obviously abused to exclude the participation of the upper house?

The Court may very well hold that the text of article 110 (3) is unencumbered by other constitutional standards and that the Speaker’s conduct is beyond review. But doing so entails a significant overhaul of our expectations and the Court must have the conviction to account for the implications of such a finding. It should acknowledge that such a reiteration of Siddiqui and Jaiswal emasculates the Rajya Sabha’s legislative function, implies that the ordinary-money bill distinction is specious despite the text of the Constitution, and that the Lok Sabha is paramount in the legislative process – the Court must justify why such radical empowerment of one house alone in a bicameral Parliament is appropriate.

In the absence of such an explicit and forceful finding, the guiding principle should remain those broader grounds for review envisaged in Keshav Singh, Pal et cetera, rather than the assertions of Siddiqui and Jaiswal. The Supreme Court may very well follow Siddiqui and Jaiswal, but it should also take care to detail the contours of such a deviation from the collective wisdom of its earlier jurisprudence on judicial review of legislative procedure – and contend that the Rajya Sabha is thus relegated to legislative redundancy. Bereft of such reasoning, the article 122 standard and the consequential extension of judicial review to the Speaker’s decision under article 110 appears more constitutionally sound.

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Cora Chan’s Paper on Proportionality and Standards of Review

I’ve just finished reading a fascinating paper titled ‘Proportionality and Invariable Baseline Intensity of Review’, by Professor Cora Chan. The paper deals with judicial review standards of legislative action under the UK Human Rights Act, and addresses many of the issues that we have touched upon in our discussion of the educational disqualifications case. In particular, borrowing from Joseph Raz, Professor Chan introduces a helpful distinction between “first-order” and “second-order” justifications that the State might adduce in justifying action under challenge. First-order justifications pertain to the merits of the case. In the educational disqualifications case, for instance, first-order justifications involve the government producing evidence to show that uneducated people are unsuited to perform the tasks of governance. The Court can evaluate this evidence alongside contrary evidence offered by the other side, or even on its own terms, and decide if the State’s case is made out. Second-order justifications, on the other hand, involve the State not producing evidence of its claim, but arguing that the Court should refrain from evaluating evidence in the first place, and trust or defer to the State’s unsubstantiated/unproven evaluation. This could be because the State has greater institutional competence or greater legitimacy to balance the competing considerations and arrive at a conclusion. Again, in the educational restrictions case, second-order justifications involve the State arguing that the link between education and governance requires data the State is better placed to evaluate, and that therefore the Court should not substitute its own judgment; or, alternatively, that this is a question of policy that the State can legitimately act upon.

Professor Chan argues that second-order justifications do not have equal force in all cases; they strength of the justifications depend upon the nature of the right, the extent of the restriction, and so on; and indeed, the justifications must themselves be justified by evidence (e.g., the State’s prior record of success or failure). The nub of the paper, in my view, is in the following paragraph:

“The government proves its case solely with first-order reasons of institutional competence when it can adduce reasons and evidence to persuade the court on the merits that it is correct. It relies on second-order reasons of superior intelligence-gathering ability when it claims that there is useful information to support its case but it cannot reveal such information to the court. It relies on second-order claims of superior expertise when it claims that it has general expertise in deciding this kind of issue (eg national security questions) but is unable to persuade the court on the merits of the particular case in question. These second-order claims can only be validly established if the government body can adduce evidence, such as its institutional features, qualifications and past performance, to persuade the court that it indeed possesses the said general expertise or useful intelligence. Likewise, a second-order claim of superior democratic legitimacy in making a certain decision can only be established if the government can produce evidence, such as the degree of public participation in the decision-making process, to show that the decision was indeed democratically made. If a court grants second-order claims without probing their evidential basis, it would be granting mere assertions or presumptions about the government’s superior institutional competence – neither of which can count as cogent second-order reasons.”

In any case, through its extensive review of doctrinal developments in the common law world, the article shows that more and more, jurisdictions are beginning to adopt nuanced and sensitive standards of review of State action where important rights are at stake, and are increasingly abandoning the unsatisfactory, Wednesbury-oriented “rational review” standards. The article deals with questions regarding the burden of proof, the standard of proof, evaluation of evidence, and questions or proportionality, and shows that each question requires searching theoretical discussion.

It is to be hoped that sensitivity to the nuances involved in such cases eventually finds its way into our Article 14 jurisprudence as well.

 

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Filed under Article 14, Constitutional interpretation, Equality

Notes from a Foreign Field: The New Zealand High Court Issues Its First “Declaration of Incompatibility”

(We are starting a new series called ‘Notes from a Foreign Field’, focusing on decisions of other constitutional courts, and constitutional controversies in other jurisdictions, written by specialists from those jurisdictions. In the opening post, Max Harris, a New Zealand lawyer and presently Prize Fellow at All Souls College, Oxford, writes about a recent, important decision of the New Zealand High Court, which broke new ground in the area of judicial review)

On 24 July 2015, Justice Heath of the New Zealand High Court issued a landmark human rights decision, Taylor v Attorney-General [2015] NZHC 1706. The case is worth reviewing for readers outside of New Zealand. it provides an overview of the human rights landscape of a jurisdiction that is often overlooked, presents a further perspective for global debates on prisoner voting, and is an example of robust judicial reasoning in a constitutional context.

The Taylor case arose out of New Zealand’s Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010, which imposed a blanket ban on prisoners voting in New Zealand elections. The position prior to 2010 had been that prisoners serving a prison term longer than three years were banned from voting. Arthur Taylor, a prisoner, challenged the 2010 Act. He argued that it posed an unreasonable limit on his right to vote, under s 12 of the New Zealand Bill of Rights Act 1990.

The New Zealand Bill of Rights Act 1990 is an early example of a statutory bill of rights. The original draft Bill of Rights empowered judges to strike down legislation, but after public opposition to this, the Act reached a compromise solution. It lists a standard set of rights and freedoms, indicates that rights are subject only to “reasonable limits” that can be “prescribed by law” and “demonstrably justified in a free and democratic society” (s 5), but makes clear that legislation cannot be struck down where limits on rights are found to be unreasonable (s 4). The Act allows the Attorney-General to flag up violations of rights at the legislative drafting stage (s 7), and also notes that “[w]herever” legislation “can be given a meaning” consistent with rights, “that meaning shall be preferred to any other meaning” (s 6).

The Act was a model for the UK’s Human Rights Act 1998. However, unlike the Human Rights Act, the New Zealand Bill of Rights Act 1990 does not spell out the remedies available for litigants in the event that a court finds that legislation unreasonably limits rights. In Simpson v Attorney-General [1994] 3 NZLR 667 (Baigent’s case), the New Zealand Court of Appeal found that damages should be available for violations of the New Zealand Bill of Rights Act. What remained in doubt was whether New Zealand courts could issue a declaration of inconsistency or incompatibility (of the kind explicitly allowed by s 4 of the Human Rights Act 1998 in the UK), where an Act imposes an unreasonable limit on rights. That was the key issue in the Taylor case, because Arthur Taylor asked the High Court to issue a declaration of inconsistency with respect to New Zealand’s prisoner disenfranchisement legislation.

Let us consider the judgment. Justice Heath points to the fact that interestingly, the Crown had conceded that there was inconsistency between the legislation and the right to vote, and agrees with the Attorney-General’s preliminary opinion that there was an inconsistency. He adds one further reason why the legislation is an unreasonable limit on the right to vote: it arbitrarily focuses on imprisonment, rather than conviction, thereby allowing a person who is sentenced to home detention to retain a right to vote, though that person may be as equally culpable as another person sentenced to imprisonment.

So far, so uncontroversial. The real question in the case, however, was that given the acknowledged inconsistency, whether the Court has jurisdiction to grant a declaration of inconsistency, in light of the New Zealand Bill of Rights Act 1990 and relevant policy concerns.

The first argument made by Crown lawyers was that a declaration could not be issued in a case where there is no dispute over interpretation of legislation. It was said that the main remedy provided by the New Zealand Bill of Rights Act is an interpretive one: courts can try to interpret away a possible inconsistency with rights, but cannot issue a declaration saying that legislation is inconsistent with rights. Justice Heath considers this argument and rejects it. He accepts that there are some restrictions on when a declaration can be granted. The New Zealand District Court is a creature of statute and cannot grant any declarations (let alone a declaration of inconsistency), and declaratory relief should not be available in a criminal trial, because a declaration represents civil relief that would be inappropriate in a criminal context. (He cites a Court of Appeal decision that notes the inappropriateness of using civil remedies in a criminal context.) But he suggests that these should be the only restrictions placed, in principle, on the issuing of declarations of inconsistency.

Justice Heath points out that earlier courts had said that judges can, and indeed sometimes must, indicate an inconsistency between legislation and the New Zealand Bill of Rights Act. He says further that to allow a declaration of inconsistency would not contradict s 4 of the New Zealand Bill of Rights Act 1990 – the provision preventing judges from striking down legislation on Bill of Rights grounds. Acknowledging the room for “judicial choice”, Heath J reviews earlier case law where remedies (including damages) for Bill of Rights breaches have been developed. He extracts a general principle that “where there has been a breach of the Bill of Rights there is a need for a Court to fashion public law remedies to respond to the wrong inherent in any breach of a fundamental right”. He concludes that Parliament did not intend to exclude the ability of a court to make a declaration of inconsistency.

Justice Heath feels fortified in this conclusion by the fact that a legislative amendment in 2001 allowed declarations of inconsistency in discrimination cases (heard by the Human Rights Review Tribunal in New Zealand). Through this legislative act, Justice Heath says, “Parliament has signaled that it sees no particular objection to that particular remedy being granted”. It would be odd for Parliament to confer this power on a lower tribunal, notes Justice Heath, and to empower higher courts to review use of this power on appeal, but to remove the right of higher courts to issue declarations of inconsistency. Whether a declaration of inconsistency breaches art 9 of the 1688 Bill of Rights (which protects parliamentary privilege and remains part of New Zealand law) or principles of comity between the legislature and the courts are matters that only affect whether a declaration should be issued in a particular case, according to Heath J, not matters that go to the general jurisdiction of a court to issue a declaration.

Addressing whether a declaration of inconsistency is appropriate in the Taylor case, Heath J considers arguments based in the Bill of Rights 1688 and comity. Heath J states that if courts are able to give reasons why legislation imposes unreasonable limits on rights under s 5 of the New Zealand Bill of Rights Act, it is hard to see how a declaration would create any greater intrusion on parliamentary privilege or comity. This is a kind of boot-strapping argument: if s 5 of the New Zealand Bill of Rights Act is constitutionally legitimate (a proposition Heath J assumes), then a declaration of inconsistency must be similarly legitimate.

Courts should not hold back from issuing declarations out of fear that they might be ignored, says Heath J. The New Zealand judicial oath requires decision-making “without fear or favour”. And the Court is, after all, not seeking to persuade – it is merely stating the law (echoing Justice Marshall’s statement from the US Supreme Court decision in Marbury v Madison (1803) 5 US 137). Heath J disagrees with the comments of an earlier judge in an interlocutory decision in the Taylor case that a court might hesitate to issue a declaration where the Attorney-General has already flagged up a Bill of Rights inconsistency in a s 7 report to Parliament. There is no reason why a court “should not reinforce the Attorney’s report”, notes Heath J. He adds that a court should also be able to disagree with an Attorney-General’s report.

Should the absence of a live controversy between parties prevent a declaration? Heath J points out that there is no limit of this kind for ordinary declarations under the Declaratory Judgments Act 1908 (though he doubts whether a declaration of inconsistency could be granted under that Act). Points of “constitutional importance” should be ventilated, says Heath J: “[t]he importance of the right and the nature of the inconsistency are sufficiently fundamental to demand a remedy”.

In this case, Heath J confirms that a declaration of inconsistency will be granted. The case concerns a central aspect of democracy, the right to vote: “if a declaration were not made in this case, it is difficult to conceive of one in which it would”. Heath J notes that “a formal declaration” is more appropriate than “an observation buried in [a court’s] reasons for judgment”. There is no violation of Art 9 of the Bill of Rights 1688 or principles of comity; the comment is on “the consequences of a legislative act”, not the internal workings of Parliament itself. The functions of the Attorney-General’s pre-legislative report and the court are different; the Attorney-General is considering an apparent inconsistency, a court is considering an actual inconsistency. A court’s ruling will also be more accessible. Finally, Heath J says, Parliament’s earlier legislative recognition of declarations in discrimination cases shows a certain amount of approval for the notion of declarations of inconsistency. Heath J notes in passing that there are “powerful arguments” that the earlier limitation on prisoner voting (allowing the vote only for prisoners serving fewer than three years in prison) could be Bill of Rights-compliant. He concludes with the declaration itself, in the following terms:

Section 80(1)(d) of the Electoral Act 1993 (as amended by the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010) is inconsistent with the right to vote affirmed and guaranteed in s 12(a) of the New Zealand Bill of Rights Act 1990, and cannot be justified under s 5 of that Act.

This is the first case in New Zealand in which a judge has issued a declaration of inconsistency. (In an earlier Court of Appeal case, R v Poumako [2000] 2 NZLR 695 (CA), one judge, Thomas J, issued a declaration of inconsistency, and reviewed the arguments for declarations in some detail. But he was the sole dissenting judge in this case.) The declaration has not resulted in any legislative reconsideration of the prisoner voting ban, however. It seems that no law change will be forthcoming. The Crown has not appealed the ruling.

What more general points, then, can be drawn from this detailed review of Heath J’s reasoning in Taylor v Attorney-General?

First, there are parts of the judgment at which criticism might be directed. Given Heath J’s emphasis on how distinct the Attorney-General’s s 7 report is from a court’s later review of legislation, it is surprising that he does not undertake a fresh proportionality assessment of the prisoner voting legislation in this case. Perhaps Heath J felt that in a controversial case like this one, and as the first judge ever to issue a declaration of inconsistency, it would be safer simply to affirm the Attorney-General’s earlier reasoning.   However, it would have been helpful for Heath J to offer further reasoning on this point, especially since prisoner voting bans have been contentious in other jurisdictions, including the United Kingdom, South Africa, and Canada. (An earlier interlocutory decision of Brown J did refer to some of these other cases.) As well, Heath J is a little peremptory in some conclusions. He is quick to accept that declarations of inconsistency should not be issued in criminal trials, when there is no legislative reference to this carve-out. And he is not entirely convincing in his claim that declarations of inconsistency do not undermine Art 9 of the Bill of Rights. Heath J might also have made some broader comments about the proper approach to the separation of powers and dialogue under the New Zealand Bill of Rights Act. Perhaps, however, these are points that might be expected in the judgment of an appellate court. Overall, Heath J’s judgment is admirably careful, considered, and courageous.

Secondly, the effect of the judgment – even if it is not momentous, and only slightly shifts the pre-existing position – is to recalibrate subtly the relationship between the courts and Parliament in New Zealand. New Zealand is a jurisdiction where judges have restricted powers. There is no single codified constitution in New Zealand, just as there is no single codified constitution in the United Kingdom. The generally accepted position is that judges cannot strike down legislation, and parliamentary sovereignty is often invoked. Judges (with some notable exceptions) tend to be deferential towards the executive and the legislature. Against that backdrop, this judgment gives judges slightly greater powers in human rights cases and should cause Parliament to hesitate a little more when passing legislation that might violate human rights. Whether, of course, Parliament actually shows more respect for human rights as a result of this judgment is an empirical question. The early signs are not especially promising: New Zealand Justice Minister Amy Adams, after the judgment was released, said that she was considering the judgment, but there seems to have been no further comment from the Minister since July of this year. Opposition Labour and Green Parties did use the judgment to call for the prisoner voting legislation to be repealed, and this highlights a further benefit of declarations of inconsistency: even if they do not lead to direct political change, they can provide tools for citizens, campaigning groups, and other politicians to criticise legislation.

In the earthquake-prone islands of New Zealand in the South Pacific, this judgment may not have shifted the tectonic plates of constitutional law – but at the very least, Taylor has jolted the constitutional landscape. The case is a significant milestone in the development of the jurisprudence of the New Zealand Bill of Rights Act 1990, and an important reminder of the valuable role that courts can play in clarifying matters of principle – and upholding human rights.

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Carving out an exception to the basic structure?: The Supreme Court’s judgment on Judicial Review and the Armed Forces Tribunal

On March 11, the Supreme Court held in Union of India vs Major General Shri Kant Sharma that Sections 30 and 31 of the Armed Forces Tribunal Act effectively excluded the jurisdiction of the High Courts to hear petitions challenging orders of the Armed Forces Tribunal. This judgment is worth a close scrutiny, because while it seems to carve out an exception to the well-accepted rule that judicial review under Articles 226 and 227 of the Constitution is part of the basic structure, the Supreme Court expressly denied that to be the basis of its decision.

The Armed Forces Tribunal Act is a law dealing with the adjudication of service-related disputes for members of the Armed Forces, as well as court martials, and matters incident thereto. The Act provides for the establishment of an Armed Forces Tribunal to adjudicate service matters with respect to the armed forces. Clearly, its functions are similar to that of the Central Administrative Tribunal (its composition is not, but since that aspect is not addressed by the judgment, we will not discuss it here).

The crucial sections at issue were Sections 30 and 31, which provided for appeals from the orders of the Tribunal. Section 30 states:

“Subject to the provisions of section 31, an appeal shall lie to the Supreme Court against the final decision or order of the Tribunal (other than an order passed under section 19).”

Section 31 likewise states:

“An appeal to the Supreme Court shall lie with the leave of the Tribunal; and such leave shall not be granted unless it is certified by the Tribunal that a point of law of general public importance is involved in the decision, or it appears to the Supreme Court that the point is one which ought to be considered by that Court.”

Sections 30 and 31, therefore, lay down the procedure for appealing an order of the Armed Forces Tribunal to the Supreme Court. Parallel to this, Section 33 excludes the jurisdiction of civil courts, and Section 34 provides the transfer of all pending cases (including cases in the High Courts) to the Tribunal, after the commencement of the Tribunal.

The question before the Court was whether Sections 30 and 31 barred the jurisdiction of the High Courts from hearing petitions (under 226/227) against the orders of the Armed Forces Tribunal. The Court began by pointing out certain specific provisions of the Constitution. Under Article 33 of the Constitution, Parliament may modify the operation of Part III to the armed forces. Article 227(4) of the Constitution, part of the provision dealing with the superintendence of the High Courts, provides that “nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.” Article 136(2), part of the provision dealing with special leave to appeal to the Supreme Court, provides that “nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.”

At this point, the following argument seems to be there to be made: admittedly, judicial review under Articles 226 and 227, and under Article 32, is part of the basic structure of the Constitution. But the Constitution itself, through various provisions, carves out an exception in the cases of the armed forces, where the scope of judicial review is to be regulated by statute (Articles 227(4) and 136(2)). Consequently, Parliament may, by law, bar the jurisdiction of the High Court to hear appeals from orders passed by the Armed Forces Tribunal.

Such an argument is open to objection. It also raises the fascinating question of whether an original constitutional provision can be unconstitutional because it violates the basic structure (if judicial review is part of the basic structure, than how can 227(4) and 136(2) be consistent with that?)). The Court, however, did not make this argument at all. Instead, it first affirmed the proposition that the Armed Forces Tribunal Act cannot take away the jurisdiction of the High Court under Articles 226 and 227 (paragraph 25).

The Court then cited a number of precedents for the proposition that although the jurisdiction of the High Court could not be taken away by any statute, in deciding whether or not to exercise its jurisdiction, the High Court must take into account the legislative intention behind the statute in question. Citing the prior case of Nivedita Sharma vs Cellular Operators Association of India, the Court observed that “when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.” (paragraph 25)

But what was the statutory forum in the present case? Here is where the judgment becomes somewhat murky. Paragraph 33 of the judgment is preceded by a heading called “Statutory remedy“. Here, the Court cited the case Union of India vs Brigadier P.S. Singh Gill, and extracted a lengthy set of paragraph that detailed the appeals procedure under Sections 30 and 31 of the Armed Forces Tribunal Act. But Sections 30 and 31, as we saw, provide for an appeal to the Supreme Court. Surely the provision of an appeal to the Supreme Court cannot be the “alternative statutory forum” to the jurisdiction of the High Courts! That would fly in the fact of the Chandra Kumar judgment, the entire history of the Tribunals Cases and, indeed, the fundamental proposition that Articles 226/227 are part of the basic structure.

But then what is the alternative statutory forum? The only possible answer has to be: the Armed Forces Tribunal itself. This, indeed, is what the Court implied earlier in the judgment. In paragraph 14, it stated that: “it is clear from the scheme of the Act that jurisdiction of the Tribunal constituted under the Armed Forces Tribunal Act is in substitution of the jurisdiction of Civil Court and the High Court.

But there is a serious problem here. And that is the L. Chandra Kumar judgment. In that case, as is well-known, a seven-judge bench of the Supreme Court held that Tribunals, as they were constituted an functioning, could act complementary to the High Courts, but not as substitutes. This was because:

“The constitutional safeguards which ensure the independence of the Judges of the superior judiciary, are not available to the Judges of the subordinate judiciary or to those who man Tribunals created by ordinary legislations. Consequently, Judges of the latter category can never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation. We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Articles 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded.”

This has been a constant position of law. In its recent judgment, striking down the National Tax Tribunals, the Supreme Court based its entire analysis on a detailed demonstration of how the Tribunals lacked the essential qualities of the Courts (judicial independence etc.), that would allow them to serve as effective substitutes.

The Court’s judgment, therefore, is question-begging. It takes the existence of the Armed Forces Tribunal to be evidence of an “alternative statutory forum” that is a “substitute” for the High Courts. On that basis, it holds that while the jurisdiction of the High Courts cannot be ousted, it should not exercise its jurisdiction because of the existence of the alternative forum! As I have endeavoured to show, in my opinion, both steps of the argument are ill-founded, and in conflict with established precedent. Furthermore, why wouldn’t exactly the same reasoning apply to the Central Administrative Tribunal? What was needed in this case, to complete the argument was a detailed analysis showing that the Armed Forces Tribunal, in its composition, structure and powers and functions, was an effective substitute for the High Court. This, however, was not done.

The Court buttressed its judgment by pointing to a possible “anomalous situation” that would be created by permitting the High Courts to exercise their jurisdiction. It observed, in para 37:

“If any person aggrieved by the order of the Tribunal, moves before the High Court under Article 226 and the High Court entertains the petition and passes a judgment or order, the person who may be aggrieved against both the orders passed by the Armed Forces Tribunal and the High Court, cannot challenge both the orders in one joint appeal. The aggrieved person may file leave to appeal under Article 136 of the Constitution against the judgment passed by the High Court but in view of the bar of jurisdiction by clause (2) of Article 136, this Court cannot entertain appeal against the order of the Armed Forces Tribunal. Once, the High Court entertains a petition under Article 226 of the Constitution against the order of Armed Forces Tribunal and decides the matter, the person who thus approached the High Court, will also be precluded from filing an appeal under Section 30 with leave to appeal under Section 31 of the Act against the order of the Armed Forces Tribunal as he cannot challenge the order passed by the High Court under Article 226 of the Constitution under Section 30 read with Section 31 of the Act. Thereby, there is a chance of anomalous situation.”

But surely, if the Armed Forces Tribunal passes an order, which is assailed to the High Court under Article 226, and either party is aggrieved by the High Court’s decision, then the petition to the Supreme Court will be against the High Court’s order, and not the Tribunal’s? Why would there be a need to appeal the order of the Tribunal before the Supreme Court, when the most proximate decision is that of the High Court?

In any event, whatever the merits of the anomalous situations, the other objections to the judgment remain. The Supreme Court has deprived members of the armed forces an important constitutional remedy against the violation of their rights. It’s justification for doing so, I would suggest with respect, is unconvincing.

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Coalgate and Judicial Review of Distribution of Natural Resources

In the previous two posts, Manish has exhaustively analysed the Supreme Court’s verdict in M.L. Sharma vs Principal Secretary [“Coalgate”]. In the broader scheme of things, the judgment makes an important contribution to the Supreme Court’s evolving jurisprudence with respect to the judicial review of distribution of natural resources. Recall that in the First Spectrum Case, the Supreme Court had taken a highly interventionist stance with respect to the 2G Spectrum Scam, not only quashing the allocation of spectrum, but also – in effect – imposing a public auction as the only legitimate method for governmental distribution of natural resources. Recall also that in the Second Spectrum Case (a Presidential reference), the Supreme Court backtracked, limiting the holding of the First Spectrum Case (public auction required) to its specific facts (distribution of spectrum, not all natural resources), and also observing that while an auction was, presumably, the only legitimate method if the objective of distribution was to raise maximal revenue, it was also open to the government to set goals other than revenue maximisation, consistent with the common good. In such cases, clearly, an auction might not be the best method of distribution.

In Coalgate, the Supreme Court affirms the view of the Constitution Bench in the Second Spectrum Case. It accepts the government’s contentions that the requirements of the industry at the time of liberalisation provided strong reasons (in 1993) not to distribute coal blocks via auction. Nonetheless, it holds the allocation itself to be illegal. It does so by examining the minutes of all 36 Screening Committee Meetings (where the allocation decisions were taken), and finds that there were no relevant guidelines to determine inter-se merit and priority between applicant companies, and that whatever guidelines were there, were constantly changed. It also finds that there was no discussion about inter-se merit before allocations were awarded. On these grounds, it finds an Article 14 (arbitrariness) violation in the State action.

I’ve written in detail about the place of Coalgate within the broader framework of the Supreme Court’s natural resources jurisprudence elsewhere (see here and here). In this post, I want to focus on something specific: the standard of review that the Court does not directly expound, but which implicitly emerges out of its analysis.

The primary reason why the Court holds the allocations illegal – as mentioned just above – is because of the absence of guidelines that would help the Screening Committee decide which applicants would succeed. In the first set of meetings, it notes, there are no guidelines at all. When some kind of guidelines are framed, they make no mention of determining inter-se merit. Notice that there are three things that the Supreme Court does not do (or rather, it is spared doing, because of the absence of guidelines): examining the sufficiency of the guidelines for actually determining inter-se merit, examining the government’s factual assessment of inter-se merit within the framework of the guidelines, and examining the outcomes of the allocations.

All this sounds very familiar. Indeed, it is analogous to the Court’s jurisprudence under Article 356 (in the emergency powers chapter) of the Constitution. Article 356 allows for President’s Rule if “on receipt of report from the Governor of the State or otherwise, [the President] satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with he provisions of [the] Constitution.” In S.R. Bommai vs Union of India, the Supreme Court held:

“The President’s satisfaction [under Article 356] has to be based on objective material. That material may be available in the report sent to him by the Governor or otherwise or both from the report and other sources. Further, the objective material so available must indicate that the government of the State cannot be carried on in accordance with the provisions of the Constitution. Thus the existence of the objective material showing that the government of the State cannot be carried on in accordance with the provisions of the Constitution is a condition precedent before the President issues the proclamation. Once such material is shown to exist, the satisfaction of the President based on the material is not open to question. However, if there is no such objective material before the President, or the material before him cannot reasonably suggest that the government of the State cannot be carried on in accordance with the provisions of the Constitution, the proclamation issued is open to challenge.”

As the Law Commission points outS.R. Bommai limits judicial review of an Article 356 proclamation to verifying whether there existed material that was relevant to a consideration that the government of a state cannot be carried on in accordance with the Constitution. What the Court cannot do is substitute its own opinion for whether a state government could or could not be carried on in accordance with the Constitution, and nor can it impugn the process by which the President (i.e., in effect, the Council of Ministers) came to that conclusion.

We can now see the similarities. The Court held the first batch of allocations (pursuant to the first twenty-one meetings) illegal because of the absence of any guidelines for determining how to select applicants on the basis of merit. It held the next batch illegal because even the guidelines that were framed were of no aid in determining the merit. Thus, the first batch related to the existence of objective 356 material, and the second batch related to its relevance – which, together, constitute the limits of judicial review under 356, and beyond which the Court, in Coalgate, did not go.

What will be particularly interesting in the future will be to see how far the Court takes its 356-analogous line of thought. Coalgate was a particularly easy case because of the absence of guidelines, or their prima facie irrelevance. What will happen if, for instance, the government does frame guidelines, which are at least prima facie relevant to determining merit – but its allocations are then challenged on the grounds that it has incorrectly – or unreasonably – applied its guidelines to the actual question of allocation, or misconstrued the objective requirements of the guidelines? Will the Court then adopt the Article 356 framework fully, and defer to the government? Or will it – keeping in mind Article 39(b) – adopt a more interventionist framework when it comes to questions of distributing natural resources to private entities? This is a fascinating question, and M.L. Sharma leaves it open – perhaps to be settled by another Court, adjudicating another scam.

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