Guest Post: Judicial Review of the Suspension of MLAs by the House: Another Step Towards the Political Process Doctrine

Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)]


[This is a guest post by Anmol Jain.]


In one of my previous posts on this blog, I had argued for the adoption of the ‘Political Process Theory’ by the Indian judiciary while adjudicating matters concerning challenges to legislative action. This theory argues for the exercise of the power of judicial review when courts conclude that the impugned legislative action (or any other action that has been conferred finality and kept beyond judicial review by a constitutional document) results in a “political process failure.” This mechanism would ensure that any action violating the principles of representative constitutional democracy does not stand with impunity. Courts could decide on the legality of any action without entering the discretionary domain of labelling the impugned action as a procedural irregularity or a substantive illegality. The Supreme Court’s decision in Ashish Shelar v. The Maharashtra Legislative Assembly seems to have forwarded the political process theory and if taken to its logical conclusion, this decision can guide the future development and exploration of the wide potential of this theory.

The case involved a challenge to the resolution of the Maharashtra Legislative Assembly suspending the membership of 12 MLAs for one year citing their unruly behaviour. The Supreme Court, deciding in favour of the 12 suspended MLAs, held the resolution to be ‘unconstitutional, substantively illegal and irrational’. The court forwarded three arguments in this regard.

First, the power to order the withdrawal of any member is vested with the Speaker under Rule 53 of the Maharashtra Legislative Assembly Rules. The Speaker can direct the withdrawal of a member from the Assembly for the remainder of the day’s meeting on account of gross disorderly conduct. In case the member is ordered to withdraw for a second time in the same session, the member may be asked to withdraw from the meetings of the Assembly ‘for any period not longer than the remainder of the Session’. The Court noted these Legislative Rules must be considered as ‘law’ with the meaning of Article 13 and thus, such Rules are ‘the procedure established by law for the purpose of Article 21 of the Constitution’. While, by virtue of the Rules, only the Speaker should ordinarily decide on the suspension of members, the House may also pass a resolution in this regard in the exercise of its inherent power to discipline its members. However, the court ruled, that while exercising such power, the House:

…is expected to adhere to the ‘express substantive stipulation’ (which is not mere procedure) in the rules framed under Article 208 of the Constitution and the principle underlying therein, being procedure established by law.

As a graded objective mechanism has been prescribed for seeking withdrawal of a member under the Legislative Rules, with the highest punishment being the withdrawal of the member for the remainder of the Session, the House is also bound by the same. The court ruled:

If the House takes upon itself to discipline its members, it is expected to adopt the same graded (rational and objective standard) approach on the lines predicated in Rule 53. That would be a case of rational action taken by the House as per the procedure established by law. … if the resolution passed by the House was to provide for suspension beyond the period prescribed under the stated Rule, it would be substantively illegal, irrational and unconstitutional.

The court went on to label suspension for such a long period of one year as ‘grossly irrational’, ‘bordering on perversity’, ‘manifestly arbitrary’ and ‘violative of Articles 14 and 21 of the Constitution’.

The second reason forwarded by the Court was that even in the absence of Rule 53, the House cannot suspend a member for a period longer than necessary as such long suspensions would be beyond the inherent powers of the House altogether. The court noted that,

The inherent power of the Legislature is not absolute, but limited to remedial power to punish for contempt and to take such measures as are necessary for orderly functioning of the proceedings of the House. … the exercise of power can only be implied or inherent and limited to the logic of general necessity by way of self-protective or self-defensive action reasonably necessary for proper exercise of the functions of the House during the ongoing session.

The court observed that longer suspensions, and particularly those extending to the period of one year, go beyond being self-protective mechanisms. They are even harsher than expulsions as expelled members do have the opportunity to seek re-election within the next six months. Such suspensions also negatively impact the constituencies of the elected members. Therefore, the Court concluded, that any suspension beyond the ongoing session of the Assembly is ‘a drastic measure trenching upon imposing penalty more than disciplinary or corrective measure, beyond the limited inherent powers of the House.’  

The third reason, which also reflects the court’s adoption of the political process theory, was that the suspension of the 12 MLAs for one year is undemocratic and can severely impact the parliamentary model of democracy as envisaged in the Constitution of India. The court noted, in paragraph 48, that if the power of the House to direct suspension of the member for one year is upheld, it may result in the possibility of the ruling party seeking withdrawal of the opposition members by using their numerical majority in the House. It may neutralise the culture of debate and discussion in the House as opposition members may ever be in a fear of suspension if they make any statement that could compromise the position of the ruling party. During such suspension, not only the checking mechanism against the actions of the ruling party would be absent, but there would also be a void for the constituencies that elected the suspended members. The opposition parties would also be devoid of a platform to present their alternative ideas on core government policies thus, denying them an equal chance of winning the next election. The representative form of democracy, as we know it and elaborated in the Indian Constitution, could be easily manipulated. As the Court observed, long suspensions

… would also impact the democratic setup as a whole by permitting the thin majority government (coalition government) of the day to manipulate the numbers of the Opposition Party in the House in an undemocratic manner. Not only that, the Opposition will not be able to effectively participate in the discussion/debate in the House owing to the constant fear of its members being suspended for longer period. There would be no purposeful or meaningful debates but one in terrorem and as per the whims of the majority. That would not be healthy for the democracy as a whole.

This approach of the Supreme Court has great potential. It emphasizes that any legislative action that results in undemocratic processes, impacts the due procedure of functioning of the legislature and creates impediment in the parliamentary form of governance could be subjected to judicial challenge and held as unconstitutional. It requires necessary compliance with parliamentary procedures, if their non-observance leads to undemocratic results.

If extended to its logical conclusion, this approach could justify courts in even questioning the validity of any substantive legislative action undertaken without observing due adherence to parliamentary procedures. For instance, while deciding on the legality or constitutionality of any impugned legislation, courts ascribe a presumption in favour of its constitutionality and grant an interim stay of operation only if the substantive provisions of the impugned law are ‘manifestly unjust or glaringly unconstitutional’ or are ‘ex facie unconstitutional and the factors like, balance of convenience, irreparable injury and public interest are in favor of passing an interim order’. Courts do not include as a ground for the grant of interim stay or withdrawal of presumption of constitutionality the fact that the legislature disobeyed certain parliamentary procedures or conducted itself in an undemocratic manner by denying due process to members of the opposition parties. The decision of the Supreme Court in Ashish Shelar, particularly its emphasis on judicially disallowing any legislative action that results in undemocratic parliamentary procedures, could lay down the necessary framework for extending equal protection to procedural aspects of law-making as presently conferred upon substantive content of the laws. Presumption of constitutionality may be withdrawn when the petitioner, for instance, provides evidence of the ruling party disallowing or hindering fruitful debate and deliberation in the House and fast-pacing the law-making procedure as envisaged in the Constitution and respective parliamentary rules.

In scenarios where courts observe a blatant violation of parliamentary procedures, this decision may even justify quashing the impugned law without scrutinizing the substantive provisions against the constitutional mandates. The court could also use this approach to restrict the extent of the anti-defection law. It could prove to be highly significant in entrenching the procedural obligations upon the ruling party in the law-making and other parliamentary processes. 

While such possibilities emerge from this judgment of the Supreme Court and future courts may choose to develop the Indian jurisprudence in this manner, the above discussion may still be taken with a note of caution. It remains unclear if the Court would have quashed the suspension of the 12 MLAs by merely relying on the third reason – the political process failure approach, and without resorting to the other two factors. Only once more concrete evidence of the same is visible that we can claim that the Court has adopted the political process theory.

Before concluding, I would like to briefly highlight the court’s ruling that Legislative Rules are ‘law’ for the purposes of Article 13 and any violation of their substance would constitute substantive illegality and not a mere procedural irregularity. In past, we have witnessed several instances of laws being passed in violation of Parliamentary Rules. For instance, the division of votes was declined by the Deputy Chairman of Rajya Sabha when the three farm laws were passed in Parliament. The decisions of the Court in Aadhaar and Rojer Mathew had stated that ‘a violation of constitutional mandate’ would constitute substantive illegality. It was unclear if the violation of parliamentary rules could also be considered as a ground to challenge the validity of the laws. Until the political process theory is fully ingrained in the court’s jurisprudence, such questions and debate around whether a particular violation is a procedural irregularity or substantive illegality would have lingered. The Court’s ruling to hold House Rules as ‘law’ for the purposes of Article 13 has provided necessary clarification in this regard. Any violation of parliamentary or state legislative rules can now constitute effective grounds for challenging the validity of laws.

Guest Post: Transfer Petitions in Administrative Tribunals – A Critique of the Supreme Court’s Alapan Bandyopadhyay Judgment

[This is a guest post by Shubhansh Thakur.]


The Hon’ble Supreme Court (“SC”) passed a judgement in the case of Union of India v. Alapan Bandyopadhyay on 6 January, 2022, through which it set aside the judgement rendered by a division bench of the Calcutta High Court (“impugned judgement”) in a petition filed under Article 226. Further, the SC directed the Petitioner to approach the High Court (“HC”) having the jurisdiction over the matter. The judgement of the SC has two aspects. One pertains to certain remarks made by the HC, which were expunged from the record by the SC. The other pertains to the legal question, which formed the basis for setting aside the judgement of the HC. In this post, I will deal solely with the latter aspect.

Factual Matrix

An IAS officer (“Petitioner”) was working as a Chief Secretary with the West Bengal government and was required to do so, till he attained superannuation, which was due on 31st May 2021. The State government requested the Union to extend his service by three months till August, which was allowed and his tenure stood extended by an official notification.

Due to certain developments in relation to a meeting between the Prime Minister and Chief Minister, who was accompanied by the Petitioner, on 28 May 2021, a communication was received, informing the State government that the Petitioner’s appointment had been approved with the Union government and he may be released by 31 May 2021 to join at New Delhi. However, the State government refused to do so and cancelled the earlier notification extending the service of the Petitioner beyond 31 May 2021. Thus, the Petitioner stood superannuated on 31 May, 2021.

On the day of his superannuation, Petitioner received a show cause notice by the Union government under the National Disaster Management Act, 2005. Thereafter, a major penalty charge sheet was also issued to the Petitioner in relation to the meeting held on 28 May 2021. The officer replied to the aforementioned notice and charges. In the said reply, he raised several issues regarding the maintainability and jurisdiction with respect to the actions being taken against him by the Union. Thereafter, an enquiry authority was appointed fixing a preliminary date for hearing in October, 2021.

Petitions in the Administrative Tribunals

The Petitioner then filed an application under Section 19 of the Administrative Tribunals Act, 1985 (“Act”) before the Kolkata Bench of the Central Administrative Tribunal (“CAT”) on 7 October 2021. The CAT at Kolkata fixed the matter for 22 October 2021.

Meanwhile, the Union government filed a transfer petition before the chairman at the principal bench of the CAT in New Delhi, for getting the matter transferred there, under Section 25 of the Act. A copy of this transfer petition was received by the Petitioner’s advocate on 20 October at around 5 p.m. (one of the submissions made before the Calcutta High Court). The transfer petition was taken up for hearing on 22 October, 2021. The Petitioner raised objections on the maintainability of the transfer Petition and prayed for time to file comprehensive objections against the same (even recorded by the principal bench). The principal bench did not grant the permission to file objections. Instead, it allowed the transfer petition on two grounds i.e., firstly, that the matter required expeditious hearing and vacations were going on in Kolkata bench; and secondly, that the disciplinary actions were initiated and would be continued in Delhi, and the Petitioner would certainly come to appear in Delhi. Thus, the case stood transferred to the principal bench and was listed for admission on 27 October, 2021.

Writ Petition before the High Court

The petitioner assailed the validity of the order passed in the transfer petition and the manner in which it was passed, which infracted his legal right to contest the case before the Kolkata bench. The case of the Petitioner can be understood by the following observation of the HC:

“Hence, the bone of contention in this writ petition is the petitioner’s exclusive legal right to file O.A. 1619 of 2021 before the Kolkata Bench of the CAT, which has allegedly been transgressed by the Principal Bench by arbitrarily transferring the matter to itself”

Thus, the HC was aware that the order was passed by the principal bench at Delhi. However, the petitioner did not merely assail the legality of the order but also the manner in which it was passed flagrantly, without taking into account his rights relating to principles of natural justice. In other words, the Petitioner through the writ petition either wanted to get the case continued at the Kolkata bench, or to ensure that he should have been afforded with a reasonable opportunity to contest the transfer petition, since the legal provisions for filing the case before Kolkata bench stood in his favour.

The HC allowed the petition on two grounds. Firstly, the HC was of the opinion that the petition was not only concerned with the legality of the order passed in the transfer petition but also with the fundamental and legal rights of the petitioner to litigate before the Kolkata bench, where he worked and was residing at the time when the petition came to be filed. Secondly, it was held that the incidence under enquiry through the disciplinary proceeding took place in Kolkata. Thus, the majority of the bundle of facts comprising the cause of action took place in West Bengal, conferring the jurisdiction upon the HC.

Appeal in the Supreme Court

Being aggrieved by the judgement of the HC, Union government preferred a Special Leave Petition under Article 136. The SC granted the leave and subsequently framed the following question of law in appeal:

“Whether the bundle of facts that constitute the cause of action for filing an Original Application under Section 19 of the Administrative Tribunals Act, 1985 (for short ‘the Act’) and determinative of the place of its filing would remain as the decisive factor in case such an application is subsequently transferred from the Bench where it was filed to another Bench of the Tribunal falling under the territorial jurisdiction of another High Court, to ascertain the jurisdictional High Court to exercise the power of judicial review qua the order of transfer passed by the Chairman of the Central Administrative Tribunal at New Delhi in exercise of power under Section 25 of the Act’.”

Thus, the SC limited the ambit of the entire proceeding to the question of whether the place where the original application was filed (Kolkata, here) will play a decisive role in deciding the jurisdiction of the HC capable of entertaining a Writ Petition, especially when the application subsequently stood transferred to another bench by a tribunal falling within the jurisdiction of another HC.

The SC answered this question in the negative by relying upon the following observation of seven-judge bench in L. Chandra Kumar v. Union of India:

All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls.”

The SC opined that the “decisions of these Tribunals” will cover the tribunals passing orders in transfer petitions and the HC within whose jurisdiction such tribunals will fall, will be solely capable of entertaining the Writ Petition for judicially reviewing the order.

It was held by the SC that once the HC found the order impugned to be passed by the principal bench at Delhi, the interference of Calcutta HC was unwarranted (¶15). It is essential to highlight that the SC held that it was bound by the observation of the seven-judge bench in L. Chandra Kumar. It further went to hold that the SC bench of lesser strength and the HCs have no authority to ascertain whether the bundle of facts would confer territorial jurisdiction them under Article 226(2) of the Constitution since it would involve revisiting the law laid down by a Constitution bench (¶16). The SC also observed:

“ We are of the considered view that taking another view would undoubtedly result in indefiniteness and multiplicity in the matter of jurisdiction in situations when a decision passed under Section 25 of the Act is to be called in question especially in cases involving multiple parties residing within the jurisdiction of different High Courts albeit aggrieved by one common order passed by the Chairman at the Principal Bench at New Delhi.”

Thus, the SC opined that a contrary interpretation would cause great difficulties in cases where several parties are aggrieved by a transfer order passed by the Principal Bench. Such parties will file cases in different HCs assailing the validity of the transfer order, giving rise to multiple proceedings in relation to the same order. Before moving onto analysis, it is of seminal importance to note that no such scenario had arisen in the instant case since there was a single petitioner assailing the validity of the order.

At the outset, it is submitted that such extraneous consideration should not have weighed the mind of the SC in deciding the appeal as the it was totally unrelated to the case and could have been dealt by the appropriate bench at an appropriate time. Assuming for the purposes of argument that such multiple petitions do arise in any other case, the Constitution has sufficient mechanism to deal with such situations (See Article 139A) and in my submission, such consideration was totally uncalled for.

Analysis

Legal Rights of the Petitioner

Before moving towards the provisions of the Constitution, it is essential to take a look at the legal rights conferred by the provisions of the Act and rules framed thereunder, on the Petitioner. Section 25 of the Act authorizes the chairman to transfer the matter before one bench to another bench, after giving notice to the parties and hearing them or on his own motion without such notice. In this regard, it is also essential to take note of Rule 6(2) of the The Central Administrative Tribunal (Procedure) Rules, 1987, which provides that the person who has ceased to be in service by reason of retirement, dismissal or termination can file an application before the bench within whose jurisdiction such person is residing at the time of making application.

In the present case, there is no dispute with the fact that petitioner had ceased to be in service by reason of his retirement and was residing at Kolkata. Thus, there was no infirmity with the Petitioner approaching the Kolkata bench. It is precisely this legal right of the Petitioner that was sought to be protected by filing the petition before the Kolkata Bench. In view of the provisions mentioned hereinbefore, it is submitted that the judgement of the HC could not be doubted and the interference with it was unwarranted.

Scope of Article 226(2)

Further. it is essential to understand the scope of Article 226(2) of the Constitution. This article states that:

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.”

From a bare perusal of the provision, it becomes abundantly clear that the HCs are at liberty to exercise their jurisdiction in cases where the ‘cause of action partly or wholly’ has arisen in their territorial jurisdiction irrespective of the seat of the authority whose order is under challenge. At this juncture, it is essential to understand the meaning of cause of action as understood by the SC in the case of State of Rajasthan v. Swastika Properties:

“In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant.”

In the present case, it is submitted that the bundle of facts would never be complete unless the proceedings at the Kolkata bench are taken into account. The legal right of the Petitioner to continue the proceedings before the Kolkata bench was always one of the questions to be considered. Apart from this, a part of the cause of action will always arise in Kolkata due to several other factors occurring in relation to the Petitioner there including his residence, his place of service, and the place of being aggrieved by the order of Union along with his legal right to file the application. Thus, it is submitted that the Calcutta HC had territorial jurisdiction under Article 226(2).

The judgement of the SC means that the transfer order solely constituted the bundle of facts for giving rise to cause of action. It is submitted that unless the transfer order passed at Delhi is seen vis-à-vis the case pending before the Kolkata bench, the bundle of facts will neither be complete nor will entitle the Petitioner to seek the relief that he intends to seek i.e., to get the proceedings continued before the Kolkata Bench. In my submission, it is true to say that a part of cause of action arose in Delhi but it will not be wrong to contend that part of it also arose in Kolkata. Thus, there seems to be nothing gravely illegal or erroneous in the judgement of the HC, warranting the interference by the SC.

The present Article 226(2) was introduced for the first time through the Fifteenth Constitutional amendment as subclause (1-A) to Article 226, which thereafter attained its present form as sub-clause (2) through the forty-second Constitutional amendment. Thus, it is essential to take note of the statement of objects and reasons for the introduction of the clause:

“Under the existing article 226 of the Constitution, the only High Court which has jurisdiction with respect to the Central Government is the Punjab High Court. This involves considerable hardship to litigants from distant places. It is, therefore, proposed to amend article 226 so that when any relief is sought against any Government, authority or person for any action taken, the High Court within whose jurisdiction the cause of action arise may also have jurisdiction to issue appropriate directions, orders or writs.”

Thus, Article 226(2), as it stands now, incorporated the words cause of action to specifically reduce the hardships caused to the litigants in cases where the seat of the authority is not within the territorial jurisdiction of the HC. In the present case, the case of the Petitioner solely rested upon the hardship that he would have faced, if the proceedings were continued at Delhi. Thus, the interference of the Calcutta HC seems to be consistent with the literal and purposive interpretation of Article 226(2).

The (mis)placed burden of L. Chandra Kumar

Coming to the case of L. Chandra Kumar, it is submitted that the observation relied upon by the Court could not be considered to be ratio decendi of the case. L. Chandra Kumar was a case where the SC was required to adjudge the constitutional validity of Articles 323-A(2)(d) and 323-B(3)(d). The precise question was whether the existence of these clauses would exclude the jurisdiction of the HC under Article 226 and 227 of the Constitution, and nothing more. Before dissecting it further, it is essential to take note of the observation of the SC in Union of India v. Dhanwati Devi, where it was observed:

10. Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents.”

It is submitted that the interpretation of Article 226(2) never really felt for consideration before the SC. Thus, the interpretation with regard to Article 226(2) can only be seen at the most as obiter dicta.

The observation of the SC, even if taken to be ratio decendi, cannot be considered to be an exhaustive proposition of law on the jurisdiction of the HC. This means that while it can be relied upon to contend that the Delhi HC also has the jurisdiction to entertain a writ petition assailing the validity of the transfer order, it cannot mean that it has sole jurisdiction to do so.

Indeed, if the interpretation proferred by the SC is relied upon, it would render Article 226(2) otiose, wherein the concept of ‘ cause of action’ has been introduced specifically to reduce hardships faced by the litigants. Thus, to harmoniously construe the two, the observation of the SC cannot be considered to be an exhaustive proposition of law as suggested earlier in the post.

The SC in Alapan Bandyopadhyay’s Case then even went on to suggest that the HCs and benches of lesser strength have no authority to ascertain whether the cause of action will confer jurisdiction upon them. This, ex-facie, goes contrary to the text of the Constitution. It is submitted that such an approach could not have been envisaged by the bench of L.Chandra Kumar; when the Constitution confers the authority on the HCs to decide their jurisdiction as per the cause of action, such a discretion could not have been rendered meaningless.

Conclusion

To conclude, it is my submission that when there are two alternative interpretations possible, an interpretation that preserves the powers of the HC must be preferred, as the HCs too are constitutional courts, with a status equal to that of the SC. This has not been done in the present case, and one can only hope that in time, the SC will revise its approach to the issue.

Land, Citizens, and Farmers: Recognising Political Constitutionalism

Indian political and legislative processes are far from perfect. Recently, this has led to arguments (on this blog, and elsewhere) exploring the possibility of increased judicial intervention in the legislative process – where the judiciary ‘examines the validity of procedures leading to enactment’. In this post, I suggest that judicial scrutiny of legislative activity should not underestimate the power of democratic processes to produce respect for the rule of law and rights. However, this approach requires us to locate the ‘constitutionality’ of legislative action in the legitimate decision-making processes of the political system (as opposed to the legal system). Through an examination of the events surrounding the Land Acquisition Bill (2015), the Citizenship Amendment Act (2019), and the three agricultural laws (2020), I highlight how actors beyond courts may impact the constitutionality of legislation.

I briefly outline the two approaches to ‘constitutionality’ under the rubrics of legal and political constitutionalism and then analyse the three legislative events from the lens of political constitutionalism. I do not suggest a wholesale bar on judicial interventions in the legislative process (nor do authors who advocate judicial interventions suggest abandoning other means to improve the legislative process). I also do not delve into how political or legislative reforms may be achieved. The purpose of this post is merely to highlight how democratic processes can also be an avenue to achieve constitutional goods.

Legal and Political Constitutionalism

Legal constitutionalism suggests that because citizens and legislators may not always embrace the values necessary for constitutional democracy, the respect for these values needs to be protected by judges. Therefore, judges serve as a key restraint on legislative power – evaluating whether legislation satisfies constitutional values. (E.g., the Supreme Court invalidating legislation that violates the freedom of speech.) Stepping outside the grammar of rights, such exercises of legislative power typically involve substantive and fundamental competing interests (e.g., public order v free speech), and legal constitutionalism suggests that judges are best situated to settle these crucial issues. However, dissenting opinions and overruled judgements indicate that judges themselves disagree over which outcomes uphold constitutional values. Therefore, the ‘correctness’ of these outcomes largely stems from legal structures that confer jurisdiction on courts to settle these disputes and confer finality on judicial determinations on competing societal interests.

Political constitutionalism argues that ‘the democratic process is equally, if not more legitimate and capable than courts at resolving these substantive and fundamental disagreements.’ Rather that suggesting judicial oversight, it focuses inter alia on: (i) improving the democratic process through improving electoral and parliamentary systems (e.g., proportional representation and parliamentary scrutiny); (ii) creating multiple inflection points where power is balanced (federalism, off-set election cycles, and independent bodies); and (iii) political parties competing for the support of diverse interest groups who themselves have cross-cutting interests, compelling political parties to listen varied viewpoints and often compromise. Crucially, it ‘locates the ‘constitutionality’ of legislation within the political and not the legal system’ by focusing on how decision making procedures can be made legitimate through balancing institutions and ensuring transparent participation. Where legal constitutionalism may emphasise judicially policed rights as central to constitutional culture, political constitutionalism sees democratic participation as causing citizens to identify with a constitutional system.

This may sound idyllic, and caveats must be made in the Indian context. India’s political and legislative structures contain several democratic weaknesses (role of the governor, ordinance powers, anti-defection, partisan speakers, lack of intra-party democracy, imbalanced federalism). As a result, the efficacy and visibility of constraints on power envisioned by political constitutionalism may vary or be entirely absent. In all the three legislative instances discussed below, there was immense public pressure in the form of demonstrations, speeches, strikes, and vigils despite fragile protections for civil liberties. The need for such resistance to hold power accountable does not undermine the argument for political constitutionalism (such actions are firmly within the democratic process envisioned by political constitutionalism) but rather points to the urgent need to reform our political structures to allow for public opinion, contestation, and compromise through elected officials without blood having to be shed.

Readers will forgive my painfully brief explanation of three complex legal issues. The goal here is merely to identify when the structures of political constitutionalism are at play (I tag them in italics for brevity).

Land Acquisition Bill

On 24 February 2015, the Government introduced a bill (Land Acquisition Bill) to replace an ordinance which amended the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The Land Acquisition Bill identified certain situations when the government did not need to obtain landowners’ consent or conduct a social impact assessment before acquiring land. The Land Acquisition Bill passed the Lok Sabha on 10 March but the government did not advance the Bill in the Rajya Sabha because it lacked a majority in the upper house (bi-cameralism and federalism). The existing ordinance was due to expire on April 5, but the Rajya Sabha session continued till 8 May. As ordinances cannot be passed when Parliament is in session, the ordinance looked certain to expire until, on 28 March, the President prorogued (terminated the session of) the Rajya Sabha, allowing the government to re-issue the ordinance on April 3, effectively circumventing Parliamentary approval. These actions were challenged in the Supreme Court as an ‘abuse of the President’s ordinance powers’.  

The Land Acquisition Bill was referred to a Joint Parliamentary Committee. In the BJP chaired committee, it was reported that all eleven BJP MPs moved amendments reinstating the need to acquire landowners consent and conduct social impact assessments (parliamentary scrutiny and intra-party contestation). However, the Land Acquisition Bill never passed the Rajya Sabha, and in August 2015 the ordinance was allowed to lapse two months before the 2015 Bihar elections (staggered electoral cycles). The Supreme Court would eventually dismiss the court challenge as infructuous.

Citizenship Amendment Act

The Citizenship Amendment Act, 2019 (CAA) allows illegal migrant to apply for citizenship if: (i) they entered India before 31 December 2014; (ii) they receive exemptions under the Passports and Foreigners Acts; (iii) they are from Afghanistan, Bangladesh, or Pakistan; and (iv) they are Hindu, Sikh, Christian, Parsi, Jain, or Buddhist. The Government claimed the intention of the law was to protect religious minorities in Afghanistan, Bangladesh, and Pakistan from persecution, and the exclusion of Muslim migrants was a ‘reasonable classification’ within the legislature’s discretion given that Muslims constituted a majority in these three countries.

However, critics of the CAA argued that for the Act to be constitutional, the classification must be connected to the purpose of the legislation. If the goal of the CAA was to protect individuals from religious persecution, then the test under the Act must be – is the individual being persecuted? In other words, the law cannot (without basis) presume that Muslims are not persecuted in Afghanistan, Pakistan, and Bangladesh. The exclusion of Muslims was thus disconnected from the goal of protecting individuals from persecution, and hence violated Article 14 (equality before law). It was also pointed out that the exclusion of Rohingya Muslims from Myanmar suggested an unprincipled (and potentially discriminatory) use of legislative power.

The adoption of the CAA led to sustained nationwide protests. The CAA was also opposed by several states and the Union Government received resolutions the legislatures of Meghalaya, West Bengal, Tamil Nadu, Kerala, and Punjab denouncing the CAA (federalism). Kerala and Rajasthan would go on to sue the Union Government under Article 131 of the Constitution over the CAA. The Government has not repealed the CAA. However, despite Parliamentary manuals requiring that subordinate legislation (rules) for the legislation be adopted within six months of a law passing, two years later, the Union Government is yet to adopt any rules for the CAA (as of writing, the Home Ministry has requested time till January 2022). In the two years since the passage of CAA, 140 petitions have been instituted challenging the constitutionality of the legislation, but the Supreme Court has yet to render a verdict.

Agricultural Laws

In 2020, the Government introduced three laws aimed at reforming the agricultural sector (Farm Laws), discussed in detail here. The laws were passed in the Rajya Sabha using a voice vote instead of a division vote. A voice vote is where the chairperson places the issue before the house and decides the vote based on whether the yes’s or no’s are louder. This may be fine to quickly dispose of issues on which there is significant consensus. However, for more closely contested votes, the process of a division vote exists (where MPs vote electronically). It stands to reason that any vote that is won during a voice vote should also be able to pass in a division vote (otherwise the vote is wholly illegitimate as the chairperson has usurped the collective decision-making of the house and replaced it with their own singular discretion). To guard against this risk, the Rajya Sabha Rules expressly provide that if the outcome of a voice vote is challenged, there must be a division vote (r. 253).

The Farm Laws were passed amongst pandemonium in the Rajya Sabha, and the Chairperson contended that opposition MPs were not in their seats when they challenged the voice vote (a claim contradicted by video footage of the day but an issue also not helped by the fact that the audio feed from the Rajya Sabha was cut for half an hour). After the Farm Laws were passed, the leader of the opposition met the President who protested the breaches of parliamentary procedure and requested the President to refuse assent (another structural inflection point). Soon after, the NDA Government lost its oldest coalition partner (the SAD) (coalitions as a restraint on power). The yearlong protests by farmers and the incident at Lakhimpur Kheri have sufficiently entered the popular consciousness that they need not be repeated here. Towards the end of this stalemate, an MP from the ruling party introduced a private members bill to secure some of the protections sought by protesting farmers (intra-party contestation). Eventually, in December 2021 the Farm Laws were repealed in the lead-up to state elections in Uttar Pradesh and Punjab (staggered electoral cycles).

Conclusion

This piece began by noting that the shortfalls in our political and legislative system to meet our needs for legitimate government can be addressed both through judicial interventions and through political structures. The goal of the above examples is to highlight how political structures such as bi-cameralism, federalism, staggered elections, coalition politics, intra-party democracy, and public protests can restrain power, arrive at decisions about contentious issues in legitimate ways, and respond to breaches of the rule of law. These structures are by no stretch perfect. However, reform of political structures must begin from an understanding that they are worth reforming. At a bare minimum, this requires a discourse which situates the constitution in the political system beyond courts. It also requires us to be able to look past political double-speak and understand when political structures are at play.

There is also reason to be cautious of increased judicial intervention. It is notable than in all three of the above examples, constitutional courts have been conspicuous in their inability or unwillingness to intervene. It is always possible to examine individual situations and argue that a court acting as it is supposed to, could have done better. But this ignores the reality that just as political actors do not always act in conformity with their roles, courts are also not perfect functionaries. Arguments for increased judicial intervention must address the reality that constitutional courts in India have their own structural and behavioural weakness. Lastly, where judicial interventions may vest more power in judges, a focus on reforming electoral systems and structuring institutions so that governmental power is constantly subject to meaningful competition and accountable to cross-cutting interests creates space for a broader set of actors to engage in constitutional authorship.

Guest Post: Judicial Review of Legislative Process – Analyzing Calcutta High Court’s Decision in Ambika Roy

[This is a guest post by Anmol Jain.]


On 28 September 2021, the Calcutta High Court delivered a significant order in a plea filed by Ambika Roy, a sitting MLA of the West Bengal Legislative Assembly elected on BJP’s ticket, against the appointment of Mukul Roy as the chairperson of the Public Accounts Committee (PAC). The primary ground of challenge was that once Mukul Roy defected from BJP to TMC, the Speaker could not have chosen him to chair PAC given the long tradition of choosing a legislator from the opposition parties for the position. While the Court did not finally rule on the validity of Roy’s selection as the chairperson as his disqualification petition for defection is still pending before the Speaker, it made certain observations on the ambit of judicial review of legislative actions, which form the basis for this short opinion piece.

Judicial Review of Legislative Process

Articles 122 and 212 of the Constitution define the ambit of judicial review of legislative processes in India. Article 122(1) states that ‘the validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.’ A similar prohibition is set for judicial review of proceedings of state legislative assemblies under Article 212 of the Constitution. The Supreme Court has interpreted these provisions as limiting judicial review only in cases of procedural irregularity and not when substantive illegality is found. For instance, in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha and Ors, a Constitution Bench of the Court noted that

“On a plain reading. Article 122(1) prohibits the validity of any proceedings in Parliament from being called in question in a court merely on the ground of irregularity of procedure. In other words, the procedural irregularities cannot be used by the court to undo or vitiate what happens within the four walls of the legislature But then, ‘procedural irregularity’ stands in stark contrast to ‘substantive illegality’ which cannot be found included in the former. … The proceedings which may be tainted on account of substantive illegality or unconstitutionality, as opposed to those suffering from merely irregularity thus cannot be held protected from judicial scrutiny by Article 122(1) inasmuch as the broad principle laid down in Bardlaugh acknowledging exclusive cognizance of the legislature in England has no application to the system of governance provided by our Constitution wherein no organ is sovereign and each organ is amenable to constitutional checks and controls, in which scheme of things, this Court is entrusted with the duty to be watchdog of and guarantor of the Constitution.”

While the Supreme Court delineated substantive illegality from procedural irregularity, the understanding of ‘substantive illegality’ remained unclear. In later decisions, the Court tried to define the phrase by connecting it to the violation of any constitutional mandate. For instance, in his dissenting opinion in the K.S. Puttaswamy (II) judgment, Justice Chandrachud observed that a legislative process would be amenable to judicial review ‘if it suffers from illegality or from a violation of constitutional provisions’. The Constitution Bench in Roger Mathew followed the same definition and noted that Article 122 does not prohibit judicial review when a challenge is made on the ground of illegality or unconstitutionality under the constitutional scheme.

The Calcutta High Court adopted and extended the this approach in Ambika Roy v. Hon’ble Speaker, West Bengal Legislative Assembly and Ors. to conclude that judicial review under Article 212/122 would even include violation of constitutional conventions. The Court noted, particularly by referring to the comments made by the Speaker on the floor of the House, that a rich tradition and convention is being followed for at least the last 54 years to appoint a legislator form the opposition party as the chairperson of PAC. Further, as the Speaker found himself bound by such a tradition, it elevated the tradition to the status of a constitutional convention, the violation of which would be amenable to judicial review under Article 212.

While such a formulation of Article 122/212 expands the scope of judicial review of legislative processes, it still keeps ‘substantive illegality’ linked to the violation of a constitutional norm. There is no clarity on whether the courts would also include a violation of parliamentary rules as a ground for allowing judicial review, a scenario which has occurred on multiple instances in the near past, for instance, when the Deputy Chairperson of Rajya Sabha did not allow division of votes in clear violation of the ‘Rules of Procedure and Conduct of Business in the Council of States’.

In this backdrop. I argue that the Indian judiciary ought to adopt the comparative political process theory as advocated by Prof. Stephen Gardbaum and allow judicial review in all those scenarios that constitute as ‘political process failure’. In his paper titled ‘Comparative Political Process Theory’, Gardbaum refines and builds on the work of John Hart Ely on judicial review as a tool for the protection of representative democracy by broadening the types of political process malfunctions that a representative constitutional democracy might face on account of autocratic governance. As against Ely’s two-pronged understanding of political process failures – (1) where the incumbent government attempts to entrench itself to avoid political change in power; and (2) where the majority suppresses and systematically disadvantages the minority, Gardbaum includes ‘all the processes by and through which public power is allocated, exercised and held to account’ as part of his comparative political process theory. Based on this understanding, he develops a normative theory of judicial review and the specific manner in which the courts could secure the structures and processes of representative democracy which gives central importance to the deliberative model of law-making.

One of the political process failures that Gardbaum discusses is the failure of the legislature to hold executive accountable (a fundamental constitutional principle, an offshoot of the separation of powers). Applying this theory to the scenario in Ambika Roy, it could be argued that appointment of a legislator who holds allegiance to the majority party as the chairperson of the PAC could impact legislative ability to hold the executive accountable, and thus warranting judicial review. It would then make irrelevant the inquiry of whether the tradition has taken the shape of a constitutional convention. The mere fact of it being an important parliamentary rule or tradition integral to the legislature’s ability to hold executive accountable would support judicial review in case of its violation.

There are two benefits of adopting the comparative political process theory. First, adopting this approach would delink ‘substantive illegality’ from the violation of a constitutional norm and allow courts to quash any legislative action, including the passing of a law, in cases of violation of core parliamentary rules and tradition designed to achieve this manner of accountability. For instance, it would make it possible to quash any law only on the ground that the political majority did not extend legislative due process to the opposition parties and fast-paced the bill without any meaningful deliberation.

Second, adopting this approach would also equip judges with a definite tool to determine whether a particular violation calls for judicial review or not. Under the present framework, and as evident from the chain of cases pertaining to the possibility of judicial review of Speaker’s certification of a bill as a Money Bill, the determination that a particular violation is an irregularity or an instance of substantive illegality is a highly discretionary process. The comparative political process theory could guide the exercise of such discretion and may bring certainty in decision-making.

Concluding Remarks

Judicial review of legislative process aside, this case again brings to light the unregulated powers of the Speaker/Chair of the House. Despite Supreme Court decision in Keisham Meghachandra Singh mandating the Speaker to decide disqualification petitions under the Tenth Schedule to the Indian Schedule within a period of three months, Biman Banerjee did not take a decision on Mukul Roy’s defection and his consequent disqualification within the stipulated period. Such abuse of power by the Chair is pervasive. To quote a few instances from the recent past, the Speaker in Shivraj Singh Chouhan adjourned the house to avoid floor test; the Speaker of the Lok Sabha has virtually stopped referring bills to departmentally-related standing committees and wrongly certified many bills as Money Bills; and the Deputy Chairperson of Rajya Sabha denied division of votes despite legislators specific demand. Instead of being a neutral player envisaged to ensure legislative due process to all political parties, the Chair thus is being reduced to just another partisan office. While expecting any reforms from the legislature might not be reasonable in the present political scenario, the judiciary could definitely play important role in regulating the wide powers of the Chair. It is, therefore, important that courts approach such cases of abuse not as independent inquiries, but as a part of the larger scheme towards ensuring independence of the Chair.

Guest Post: The Case for Judicial Review of Legislative Process

[This is a guest post by Dhananjay Dhonchak.]


Introduction

Recent writings surrounding the functioning of the Parliament and the passing of contentious legislation have, to an extent, focused their attention towards the government’s blatant misuse of parliamentary provisions. However, critique has often centered around either the government’s propensity to rule in an authoritarian manner and the complicity of the Presiding Officer, or around the unconstitutional outcomes such legislation brings. As a result, solutions have only emphasized either reforming the post of the Presiding Officer or asking the Court to strike down the legislation on grounds of unconstitutionality. In this article, I argue that legislation can bring about unconstitutional results not only because of its content but also because of the manner in which it is passed. In doing so, I identify adherence to the law-making process and the legislative procedures associated with it as a democratic and constitutional value to be protected in and of itself, independent of whatever outcome it brings. I argue that the power of judicial review must be exercised by constitutional courts to protect this democratic value.  

Judicial review in the traditional sense is understood as protecting constitutional rights from legislative action. In this sense, it is primarily substantive and does not look into the process of law-making. However, judicial review of the legislative process examines the validity of a statute on the basis of whether the legislative procedures were followed or not. Thus, a law may be constitutionally valid in the traditional sense and may not infringe on any Fundamental Rights illegally, but still be invalidated. A statute invalidated on such a basis may still be enacted again provided it is done in a proper manner. .

The need for a judicial review of the legislative process

Such robust use of judicial review can be an effective strategy to keep political leaders in check. India has a particularly troubled history when it comes to political leaders complying with the legislative procedure. For example, one of the first acts of the Indian Parliament- The First Amendment- was marred by questions of procedural impropriety. Critics had pointed out that a Provisional Parliament which was indirectly elected by the people should not have the authority to amend the Constitution especially when it concerns Fundamental Rights. Tripurdaman Singh, in his book ‘Sixteen Stormy Days has described the amendment as a ‘constitutional travesty’ that has left the constitution as an embarrassing monument that represents ‘an ideal of legality and procedural conduct regularly ignored by state and society alike.’ More contemporary examples of procedural infirmities plaguing the passing of legislations include the effective abrogation of Article 370 and the Farm Bills.

Both of these laws were passed by blatantly violating procedural rules, or important ‘secondary rules’. Borrowing from Hart, secondary rules are those rules which govern the method of how primary rules- which grant rights or impose obligations on citizens- are to be made, changed or extinguished. With Hart’s model in mind, I argue that the parliamentary procedures are an embodiment of certain secondary rules which provide validity to any statute. These procedures distinguish the rules made by the Indian Parliament from mere ‘orders’ of a man with a loaded gun. Thus, when a Bill is passed using a voice vote when there is clear dissension in the parliament, the normative value that this Bill carries is significantly reduced. This has drastic consequences for the democratic culture of our country and undermines the institutional integrity of the Indian Parliament.

Parliamentary procedures are inextricably linked to producing a democratic result. For example, bicameral passage of a Bill ensures that elected representatives on behalf of the citizens properly discuss a law before enacting it. Similarly, Direction 20B of the Rules of Procedure, which was violated when the Jammu and Kashmir Reorganisation Act, 2019 was passed, ensures that members get at least two days to familiarise themselves with a proposed Bill before voting on it. Thus, the democratic principle of deliberation is safeguarded to some extent through such procedures. It would be a fair objection to make that imputing a requirement of deliberation on the Indian Parliament is futile because more often than not this requirement is flouted due to the incompetence of the legislators to carry out any meaningful debate. It is also practically impossible to provide a quantitative cap on the number of hours a Bill must be discussed to realise this principle of deliberation. However, the principle of deliberation, regardless of whether it has been meaningfully realised or not, continues to remain an ideal to be followed and finds expression in the parliamentary procedures. Thus, when the procedure is violated by executive scheming, the Parliament not only falls short of the ideal but attacks the very basis of the ideal itself. This strikes at the very root of Indian democracy.

Locating judicial review of the legislative process in Indian Constitutional Law

A reading of Article 122(1) of the Constitution would make us believe that since legislative actions are immune from review by the Courts on account of procedural irregularity, there is no scope for the kind of judicial review proposed in this article. However, as highlighted here, adjudication by Indian Courts indicates a strong propensity to intervene in legislative actions when the said action or irregularity impugns on a constitutional requirement.

For example, in Puttaswamy-II, the Supreme Court was faced with a question of whether the designation of a particular Bill as Money Bill by the Speaker is open to review by the Courts. The Court held that a mere “irregularity of procedure” is different from a “substantive illegality” which occurs when there is a violation of an ‘essential constitutional condition’. The Court held that the ‘decision of the Speaker certifying the Bill as Money Bill is not only a matter of procedure, and subject to judicial review.’ Thus, for the Court an ‘essential constitutional condition’ was one which was expressed in a provision of the Constitution i.e Article 110(1) which lists out what constitutes a Money Bill. However, there may be certain features of the Constitution which do not find a place in any express provision and yet their violation is seen as a violation of the Constitution. Surely then, these basic features would be understood as ‘essential constitutional conditions’.

The Court in Kesavananda Bharati held the principle of ‘Rule of Law’ and ‘Democracy’ to be a part of the basic structure of the Constitution. As explained above, violations of procedure undermine the democratic character of the Indian state. Further, the principle of Rule of Law as understood in its most basic sense is governance through a set of rules and procedures which bind even the powerful executive as different from governance based on the whims and fancies of the sovereign. Thus, I can safely argue that the passage of a statute which arbitrarily violates established parliamentary procedure also violates the principle of Rule of Law. By placing procedural violations in the context of the principles of ‘Rule of Law’ and ‘Democracy’, constitutional courts in India can invalidate the ‘results’ of such infirmities i.e the Acts which they produce, on the grounds of violating the basic structure of the Constitution. Here, the Court is not invoking a specific constitutional provision as was done in Puttaswamy-II to evaluate a procedural infirmity. The Court is categorising the basic features of the Constitution as ‘essential constitutional conditions’ that may be violated if certain parliamentary procedures are violated.

This is not to say that all procedural requirements of the Parliament automatically become part of the basic structure. The Court will have to carry out a case specific analysis, keeping in mind the procedure violated and the content of the enacted statute to come to the conclusion that the basic structure has been violated.

Elsewhere, Sindhu and Narayan, while arguing for the proportionality test to be the default standard of judicial review, have explained how the Indian Constituent Assembly wanted to build a constitutional system similar to Mureinik’s ‘culture of justification’- one where legality of governmental action is derived from the reasoning behind the exercise of that power. According to them, judicial review guided by the proportionality standard serves to sustain this culture of justification where ‘rights are considered foundational’ and any ‘abuse of power by elected officials is checked by the Courts’.

To add to this, an understanding of ‘abuse of power by elected officials’ is complete only if both rights violations as well as violations of procedural norms fall within its ambit. The logic or rationale behind a statute is undermined at the very basic level if a fundamental procedural norm is violated to enact it. This is because the first level of inquiry or ‘justification’ regarding a statute and its impact on Fundamental Rights is only made possible with the premise that the statute was validly enacted. As explained earlier, this premise may not hold true in every case which makes it crucial for the Courts to examine the process of law making.  Violations of procedural norms would be inconsistent within a ‘culture of justification’. The model of judicial review proposed in my article does not undermine the argument and model proposed by Sindhu and Narayana but supplements and adds to it. Moreover, any advocate of judicial review and its ability to invalidate unfair infringement of Fundamental Rights must necessarily concern themselves with the process of law making.  As argued before, violations of procedure strike at the very core of the principle of Rule of Law which itself is rooted in Article 14 of the Constitution i.e., a Fundamental Right.

Thus, it is possible to locate judicial review of the legislative process within the Indian Constitution through recent adjudication by the Courts and the basic structure doctrine; and also, from a more theoretical lens which underpins the purpose that judicial review is supposed to serve in Indian Democracy, i.e., sustain a culture of justification.

Conclusion

As Prof. Khaitan has highlighted, constitutionalism may be undermined by a series of incremental and systemic assaults. In the face of such attacks, an expansive judicial review as suggested here, may in practice mean very little to safeguard democratic governance and may actually become a way of validating the procedural infirmities of India’s Parliament. For example, in Puttaswamy-II, even though the Court proceeded to review the constitutional propriety of designating the Aadhar Act as a Money Bill, it ultimately decided in favour of the government. Such a validation by a court of law would seriously undermine the efforts from civil society to highlight the decay that the India Parliament has undergone since independence. Therefore, the purpose of this article is not to suggest an all-expansive solution to protect democracy in India. It is limited to identifying the power and competence of the judiciary to review infirmities in legislative process.

Money Bills and Judicial Review: Lessons from a Constitutional Crisis in 1911 [Guest Post]

[This is a guest post by Rahul Narayan.]


A little over a century ago, Britain was headed for a Constitutional crisis due to severe differences between the Conservative party dominated, more-or less hereditary House of Lords and the elected Liberal Party dominated House of Commons. Matters came to a head in 1909 when the Lords rejected the Finance Act passed by the Commons leading to a resignation of the government, and political turmoil and elections. By 1911 a newly minted Liberal party majority in the Commons wished to remove the power of the Lords to reject Money Bills and derail other reform legislation. Thus began discussions on what became the Parliament Act 1911.

In many ways this was a continuation of a historical process. The right to originate bills of “aid and supply” had traditionally rested with the Commons since the Magna Charta. In 1671 and 1678 the Commons had passed resolutions denying the Lords the right to amend finance bills. This was accepted by the Lords, who only insisted that no unrelated matter be “tacked” on to the bills of supply to avoid scrutiny of the Lords on such unrelated questions because such tacking would be “unparliamentary” and would tend to “the destruction of Constitutional Government”. This sentiment was accepted by Commons in 1702. Bills of aid and supply were passed as consolidated Finance Acts after the 1860s to discourage the Lords from rejecting individual components of finance bills as it was believed the Lords would hesitate in striking the entire Finance Act. The skirmishes between the Lords and Commons from 1906 to 1909 which culminated in the rejection of the Finance Act 1909 only precipitated the end of the last remaining power of the Lords re money bills- the right to reject them.

In 1910, the Lords, stuck between the Scylla of money bill reform and the Charybdis of wholescale restructuring of the Lords to remove their hereditary privileges bowed to the inevitable and agreed not to press their Constitutional privilege to reject money bills asking in return only that the ancient malpractice of “tacking” be dealt with appropriately.

The quickly agreed contours of the discussion as regards money bills were: (a) The Commons had the sole privilege to pass or reject money bills; (b) No extraneous matter would be tacked on to a money bill to avoid scrutiny of the Lords.

In England, each House is the judge of its own privileges. Thus the Commons majority rejected the suggestions made by the Conservative opposition and by the Lords that either the courts or a Joint Committee decide when a bill was a money bill. The decision was that of the Speaker alone. Eventually it was decided that the Speaker would certify the bill as a money bill if practicable after consultation with 2 members of the House of Commons, one from each side of the House.

Extensive and learned debate was carried out in the Commons between PM Asquith, Samuel and Churchill (then a liberal) on the Government side and Balfour, Anson and others for the Conservative opposition on whether the actual definition of a Money Bill conformed to the contours everyone agreed upon. Speaker after speaker expressed the fear that the broad based definition of money bills could result in extraneous matters being tagged by the Speaker as a money bill to remove scrutiny of the House of Lords on important questions. The government tried to dispel these fears in two ways. Firstly, they argued that section 1 of the Bill only formalised the existing legal position on Money Bills alone. Secondly, they said that the word “only” in draft signified that nothing extraneous could be tacked on to a money bill. On 11th April 1911 PM Asquith stated that a law appointing 2 new high court judges would not be a money bill despite the fact that it would involve expenditure from the consolidated fund because “No human being could say that was a Bill which contained only provisions dealing with charges on the Consolidated Fund. It was for the appointment of two judges, and incidentally their salaries were a charge on the Consolidated Fund. That is a good illustration of the way in which these words will have to be construed.”  

Following serious debate, the Parliament Act, 1911 was passed in August 1911 and the incipient Constitutional crisis was averted. The Parliament Act 1911 was amended in 1949. Its use by the Labour Government to pass the Hunting Act 2004 over the protest of the Lords led to a huge brouhaha and a landmark case in the House of Lords, though not on the aspect of money bills. In the House of Commons with its strong tradition of an impartial Speaker (recently demonstrated during the Brexit debates by Speaker Bercow), there has never been a partisan food fight on the certification of a Money Bill and no accusation of “tacking”.

Money Bills were adopted into the Constitution of Ireland, 1937 with a little modification- as per Article 22 thereof, the certificate of the Speaker could be disputed by the upper house and the President could set up a committee headed by a High Court judge to determine the issue.

In our Constituent Assembly, the Framers used the Constitution of Eire as a basis for the money bill clause but removed the idea of a joint committee instead giving finality to the decision of the Speaker. An amendment to remove the word “only” was negatived on 8th June 1949 when the draft Article was approved.

What lessons can our Courts draw from the resolution of the crisis of 1911 when they examine the provisions relating to Money Bills under our Constitution in Article 110? On the issue of judicial review of the certification by the Speaker, the Courts must be conscious of the difference between the English position and ours while on the interpretation of the word “only” in Article 110(1), they must be conscious of the similarity.

Under our Constitution, judicial review of the certification of a Money Bill by the Courts ought to be permissible because:

  1. In Indian law, judicial review has to be specifically excluded and mere finality is not enough. Judicial review is specifically excluded in the Parliament Act, 1911, unlike in Article 110.  
  2. In India, the privileges of each house are subject to the provisions of Constitution as interpreted by the Courts, unlike in England.
  3. There is no absolute or unfettered power under the Indian Constitution.
  4. Certification by the Speaker is not “procedural” but is a substantive determination and a mistake is not irregularity of procedure but an illegality, and there is no bar on judicial review of an illegality.

Like in Britain, under our Constitution, the definition of a Money Bill is to be strictly construed because:

  1. The word “only” indicates that bills have to deal only with the provided heads and extraneous matter cannot be tacked on.
  2. Money Bills are the exception to the rule of bicameral legislative action and ought not to be allowed to subsume the main rule. The Rajya Sabha is emphatically not a hereditary chamber like the Lords in 1911 and the Rajya Sabha has a vital role to play. 
  3. Traditionally our Constitutional courts have not looked upon kindly at disguising the form of legislation to hide the substance- what is sometimes referred to as a “fraud on the Constitution”. 

The Aadhaar Act, inter-alia deals with eligibility for subsidies which are expenditures from the Consolidated Fund but neither creates subsidies nor directs such expenditures. Even otherwise no one would say this is a law only for this purpose. The majority judgment in the Aadhaar case, upheld the passing of the law as a money bill on the basis that the dominant purpose was subsidies, a characterisation disputed persuasively in fact and in law by Justice Chandrachud’s dissent. In Rojer Mathews case, when the Court was dealing with the amendment to the composition and rules governing Tribunal made vide the Finance Act, 2017, doubted the Aadhar judgment as regards money bills referred the issue to a larger bench both on the interpretation of the word “only” and on judicial review.

Based on his speech on April 11, 1911, PM Asquith would not think the Aadhaar Act is a Money Bill and would think that the merging of tribunals was tacked on to the Finance Act 2017 in a way that the Lords could describe as unparliamentary and what John Hatsell writing in 1785 would call “dangerous” and “unconstitutional”. As and when the Supreme Court considers the Aadhaar Review Petitions and the reference in Rojer Mathews, they should hold the same.    

Coronavirus and the Constitution – XXXIV: The Bombay High Court [Guest Post]

[This is a guest post by Adv. Manoj Harit.]


In the life of a noisy democracy like India, issues fanning large-scale outrage are commonplace. Easy and widespread access to social media accentuates the outrage. Frenetic, sarcastic, or fervent calls to the Hon’ble Supreme Court of India follow as matter of course. As a consequence, public-spirited persons rush to the highest Court, invoking Article 32 of the Constitution.

But while Article 32 grants the right to move the Supreme Court by appropriate proceedings for the enforcement of rights conferred by Part III of the Constitution, Article 226 goes a step further, insofar as it empowers the High Courts to issue writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. [Emphasis mine]

Thus, it is manifest that the power conferred by virtue of Article 226 is to enforce the rule of law and to ensure that the State and other statutory authorities act in accordance with law. The words ‘for any other purpose’ are for a specific reason. It is an attempt by the framers to anticipate unforeseen obstacles, if any, that may hinder or curtail the power of High Courts to do justice, review executive actions / decisions, and safeguard the primacy of Rule of Law.

The raison d’être of Article 226 has been particularly evident during the pandemic, at High Courts across the country. Article 226 and judicious exercise of the power conferred by it upon the High Courts has played a vital role in alleviating the sufferings of the citizens, especially the poor and marginalized. The High Court of Bombay has been an important actor, and has handed down a series of orders that are both legally well-founded, and within the spirit of the Constitution.

During the pandemic and the unending lockdowns, the High Court of Bombay was petitioned to intervene when adivasis were denied food rations, when non-Covid patients were facing neglect and apathy, against onerous conditions that were put upon the migrant workers for return travel to their home States, when there was denial of rations to people who did not hold ration cards, against unlawful and wavering directives of the Municipal Corporation with respect to burials of cadavers of suspected / confirmed Covid-19 infected individuals, against non-implementation of RBI guidelines on interest / repayment moratoriums by the Banks, against Air India not keeping the middle seat vacant and thereby risking lives of flyers, on multiple issues on spread of Covid-19 amongst the various correctional homes (admirably, the CJ Bench did not use the words jails or prisons), against imposition of Orders u/s 144 of CrPC by the police authorities, on welfare measures for pet animals, on Covid-19 testing protocols for frontline health workers, on non-availability of crop loans to the farmers & germination problems in soya bean seeds – to mention a few examples.

More than 150 orders have been passed by the High Court of Bombay, exercising powers under Article 226 of the Constitution during the pandemic. A closer look at the orders reveal the working of a Constitutional Court, compassionate and public spirited advocacy, and importantly, a fair and reasoned response from the Attorney-General, representing the State of Maharashtra. The Ld. Attorney General and Senior Advocates representing the Municipal Corporation of Greater Mumbai did not treat the petitions as ‘adversarial’ litigations, and proffered due deference to the suggestions made by the Petitioners (probably due to the disposition of the Bench). Some examples follow:

Ration and Food Supplies

In PIL-LD-VC-14 of 2020, when apprised of lack of ration and food supplies to tribal & adivasi people residing in Thane, Palghar & Nashik Districts of Maharashtra – where the people in remote areas were denied benefits under the Antyodaya scheme for not possessing ration cards, and, the applications for getting ration cards were not being processed due to lockdown – the High Court issued directions to District Supply Officers of Thane & Palghar Districts (both the Districts have a significant population of the Adivasis & the marginalized) to commence work on processing the ration card applications immediately, and further, directed the State to ensure that lack of ration cards did not deprive the citizens of food rations. The petition was kept pending with further directions to the State to submit, on Affidavit, the progress made, thereby keeping the State on its toes. It is the power of High Court under Article 226 that keeps a leash on the executive. And by keeping the petitions pending, the Executive is compelled to take appropriate actions in order to face the Court on the scheduled date. This acts as a catalyst in resolving the issues faced by the citizens. The files move with seemingly miraculous speed in the bureaucracy when the Court date is dangling like the “Sword of Damocles”.

Migrants

In PIL-CJ-LD-VC-11-2020, an important issue was raised: that “the migrant workers who have submitted applications for leaving the State availing Shramik Special trains and buses during the continuance of the Lockdown, have been left in the dark about the status of their applications and that till such time they can board the trains/buses to leave for their native places, they have been made to live in cramped and unhygienic shelters, without being provided with food and other essentials.”

The Additional Solicitor General representing the Union of India informed the Hon’ble Court that the Apex Court was seized of the matter and had already passed an order dated May 28, 2020 on the issue of migrant laborers. The High Court of Bombay, with due deference to the fact that the issue was actually being dealt by the Apex Court recorded that “at this stage, neither are we empowered nor do we wish to make any order contrary to the spirit of the order of the Supreme Court.” But the power of Article 226 and the spirit of Constitution compelled the High Court to further direct the State Government:

… however, having regard to the peculiar local conditions, we consider it fit and proper to call upon the State to file a report indicating therein how the plight of the migrant workers, who have been assembling at the railway stations/bus stands in Mumbai and places around it, are being addressed. In fact, we have come across photographs in newspapers showing congregation of migrant workers not only on railway platforms but also on the streets adjoining the railway stations. Such congregation, if allowed, would run counter to the object, for which the Lockdown has been imposed. The report shall, inter alia, indicate the whole procedure that a migrant worker is required to follow in order to be eligible for leaving this State, the likely time within which he could board a train/bus, the nature of shelter he is provided with during the waiting period as well as provisions made available to him for his sustenance.

Burials

The issue of the burials of cadaver of Covid-19 infected individuals brought out the pragmatic approach of the High Court. [LD-VC-46 OF 2020] In a multi-pronged and multifaceted litigation, the High Court was called upon to review executive action/s, balance the fundamental right to life of people with radically differing contentions; and, also with the right to dignity in death.

The facts:

The Municipal Commissioner, Mumbai had come out with a Circular dated March 30, 2020 under Regulation 10 of the Maharashtra COVID-19 Regulations 2020, issued under Sections 2, 3 & 4 of the Epidemic Diseases Act, 1897. It mandated cremation of the cadaver, irrespective of religion. For those wanting a burial, an option of taking the cadaver out of the city limits of Mumbai was provided. It created instant furor & outrage. By evening, an amended Circular was issued, permitting burials in Mumbai, provided that the ‘burial grounds are large enough so as not to create possibility of spread of virus in the neighbouring area’. Both the Circulars were challenged by rival petitioners – those opposing burial permission in city burial grounds and those supporting it.

On April 9, 2020 another Circular was issued in continuation of the aforesaid Circulars. Through this Circular, names and mobile numbers of the persons to contact in case of requirement of burial of a cadaver of a Muslim, and also, the list of the burial grounds were provided.

The aforesaid Circular dated April 9, 2020 was also challenged by some Petitioners claiming that the list of kabrasthans appended to the circular dated April 9, 2020 included 3 (three) kabrasthans, which are close to the Petitioners’ residences. It was contended that burial of the cadaver of a COVID-19 infected individual in a kabrasthan in the vicinity of their residences is likely to endanger their lives as well as others residing nearby and accordingly, they prayed that the Respondents (State of Maharashtra and the Corporation) might be restrained from allowing burial of the cadaver of any COVID-19 infected individual in the relevant burial grounds.

Many intervention applications were also filed. The Court allowed those applications and heard the interveners too.

The Issues Before the Court

Did the Municipal Commissioner, MCGM have an authority to issue the amended circular and its legality and propriety?;

Which of the 3 Circulars issued by the Municipal Commissioner, MCGM conformed with the guidelines issued on the subject by WHO and Government of India, and, hence, sustainable?;

Was the right to life of the Petitioners as guaranteed under Article 21 was adversely affected due to the burial of cadavers of COVID-19 infected persons in the burial grounds surrounded by dense population, including the residences of the Petitioners?;

The Court’s Analysis:

On Issue (a) & (b) : As the Petitioners, Interveners and the State were making differing contentions on the issue, the Court ‘analyzed’ the WHO and Government of India Guidelines on the question of management of cadavers of suspected/confirmed COVID-19 infected individuals. After a detailed analysis, the Court concluded (paragraph 24):

Analysing the said recommendations, it becomes clear that even according to the WHO, there is no evidence of persons having developed infection of COVID-19 from exposure to the cadaver of a suspected/confirmed COVID-19 individual. That apart, the recommendations of the WHO are further clear on the point that people who have died because of COVID-19 infection can either be buried or cremated. Such recommendations also throw light on the procedure to be observed at the time of burial of the deceased. Those who handle the cadaver have to adopt precautionary measures. Those are intended to protect them from being infected. A detailed procedure to be observed at the time of burial is also laid down. Observance of such detailed procedure at the time of burial is, in our view, sufficient safeguard from exposing the near and dear ones of the deceased who would choose to assemble at the kabrasthan/cemetry for having a last look at the deceased and to bid him a final good-bye”.

In paragraph 25: the Court asked itself a question:

“If indeed risk from a dead body would endanger the lives of human beings, the risk involved in treating COVID-19 infected patients by the medical and the para-medical staff, who are the frontline workers to combat the virus, would be much greater. Are such staff shying away from treating COVID-19 patients? The answer must be an emphatic ‘no’.

In paragraph 26, the Court made up its mind based upon the material before it:

… the order of the Municipal Commissioner rather than being founded on scientific data or material appears to have been dictated by considerations which are extraneous. The order refers to a community leader and to what was brought by him to the notice of the incumbent Municipal Commissioner. We have no hesitation in our mind that such incumbent, instead of referring to what the community leader had brought to his notice, would have been well advised to proceed for a scientific management of disposal of cadavers of suspected/confirmed COVID-19 infected individuals in accordance with the recommendations of the WHO and the GoI guidelines.

Thereafter, in Paragraph 27 & 28 the Court declared the earlier Circular dated March 30, 2020 directing that burial should not be allowed for containing spread of COVID-19 and that the dead bodies of COVID-19 patients should be cremated at the nearest crematorium irrespective of their religion, to be unsustainable. The Court further held that though the exercise of powers under Regulation 10  of the Maharashtra COVID-19 Regulations 2020 did not appear to be legal, the Municipal Commissioner could have resorted to it, provided such a measure had the sanction of the existing protocols for management of COVID-19, or was such a pivotal measure, otherwise widely acknowledged, which was not included in the GoI guidelines.

In view of the aforesaid, in paragraph 27, the Court observed that “we, thus, hold the action of the Municipal Commissioner in preventing burials to be illegal and unauthorized and hence, the amended circular cannot be operated to the detriment of the members of the community for whom burial of the dead is part of the religion they profess, practice or propagate.” Noticeably, in the very next paragraph, the Court demonstrated that it is alive to the precedence of ‘deference to the executive action in matters of policy’. The Court observed that “the Municipal Commissioner, being a creature of the 1888 Act, is bound by its terms and a decision has since been taken which conforms to such provisions read with the GoI guidelines. It is indeed a matter of policy whether to close down a place for disposal of the dead. Unless any decision shocks the conscience of the judicial review Court, it ought to stay at a distance.”

However, in this case, intervention was justified, because:

The amended circular was drastic in its operation but without any scientific basis for it to rest on and since it did not have statutory sanction, the circular dated April 9, 2020 notifying 20 (twenty) out of several kabrasthans/ cemeteries for burials was a timely move to restore sanity. To err is human but taking lessons from mistakes and rectifying the situation was the call of the moment. Proper management of disposal of dead bodies ought to have been worked out consistent with the recommendations of the WHO and the GoI guidelines as well as the sentiments of the members of the communities for whom burial of a dead member of such community is an integral part of their religious belief and faith. Though such management was initially lacking, but ultimately better sense must have prevailed upon the incumbent Municipal Commissioner who left no stone unturned to remedy the situation.

As regards to the legality of the amended Circular dated April 9, 2020, the Court held it to be in continuation of the earlier Circular, and, not a review thereof. Therefore, it did not suffer from any legal infirmity.

On issue ( c ) : the Court rejected the contention of the Petitioners that their right to life under Article 21 was under threat due to the burial of cadavers of COVID-19 infected persons in the Kabristans in the vicinity of their residences, for being misconceived and misdirected and without a scientific base or foundation.

It is thereafter that the Court invoked preambular promise of fraternity by observing that:

“We have found the petitioners to be rather insensitive to others’ feelings. The founding fathers of the Constitution felt that the people of India would strive to secure to all its citizens FRATERNITY, assuring the dignity of an individual. That is the preambular promise. In Parmanand Katara (Pt) vs. Union of India & Ors., reported in (1995) 3 SCC 248, it has been held that right to dignity and fair treatment under Article 21 of the Constitution is not only available to a living man but also to his body after his death. Right to a decent burial, commensurate with the dignity of the individual, is recognized as a facet of the right to life guaranteed by Article 21 of the Constitution. There is, thus, no reason as to why an individual who dies during this period of crisis because of suspected/confirmed COVID-19 infection would not be entitled to the facilities he/she would have otherwise been entitled to but for the crisis. Should the extant guidelines for disposal of the cadaver of an individual infected by COVID-19 be adhered to and the cadaver properly handled and placed in special covers to contain any kind of spread, we find little reason to deprive the dead of the last right, i.e., a decent burial according to his/her religious rites”. [Emphasis mine]

 

It is, even if not framed so, a balancing of the Part III rights of the living, with that of the dead, although, the dead were unidentified, and not before the Court. That for me, is Article 226 in all its importance.

Coronavirus and the Constitution – XXXIII: N-95 Masks and the Bombay High Court’s Dialogic Judicial Review [Guest Post]

[This is a guest post by Aakanksha Saxena.]


This blog has previously dealt with orders of the Gujarat and Karnataka High Court as recent exemplary instances of constitutional courts practising dialogic judicial review during the ongoing COVID-19 pandemic and lockdown crisis. Subsequently, the Bombay High Court was faced with the question of whether, in view of the scarcity of certain components of personal protective equipment (“PPE”) such as surgical masks, N-95 masks, hand sanitisers and gloves, the prices of such components were required to be capped – specifically that of N-95 masks. In the course of proceedings culminating in its 9th June 2020 Order, the High Court continued the welcome trend, by (1) throughout the course of hearings, identifying where the respective governments were lacking in their response to the issues raised, and (2) posing pertinent questions with the aim to elicit a positive approach in respect of the policy expected to be framed, all while refraining from judicial overreach and ensuring executive accountability. The Order and the approach leading up to it are a far cry from the decisions seen at the beginning of the national lockdown, which reflected a degree of judicial deference to the executive that has come under great and justifiable critique.   

 Background and Scope of the PIL

The PIL had been filed seeking a host of directions, including a ceiling on the prices of certain goods declared as “essential commodities”, stemming from concerns of hoarding and rampant black marketing of PPE (“PIL”). On a reading of the PIL petition,  it is clear that the primary reliefs prayed for were against the Maharashtra State Government. During previous hearings of the matter, submissions were in fact made by the Union of India, to the extent that the Centre had already placed a ceiling on the price of certain components of PPE, but as far as the N-95 masks were concerned, the issue of a price ceiling had been raised with the Centre by the State Government, and no response had been received. As a result, the Court by an Order granted the Centre time to take instructions specifically on this question, and file an affidavit containing its reply. Thus, while accepting the policy framed by the Centre in respect of price caps for certain PPE goods, the Court remained attuned to the concerns raised in the PIL qua the N-95 masks, which had not been included by the Centre in its formulation, despite having been declared an essential commodity by the Ministry of Consumer Affairs, Food & Public Distribution, with the very object of prevention of hoarding, black marketing and profiteering.

Final Reliefs

Eventually when the matter came up for hearing, the Petitioners apprised the Court of an order dated 11.2.2020 issued by the Central Government, which included medical devices intended for human use within the meaning of drugs under the Drugs and Cosmetics Act, 1940, which would then mean that goods such as N-95 masks fall within the purview of the Drugs (Price Control) Order, 2013 (“Control Order”). Order 20 of the Control Order places an express duty on the executive to “ensure that no manufacturer increases the maximum retail price of a drug more than 10% of the maximum retail price during preceding 12 months; and where increase is beyond 10% of maximum retail price, it shall reduce the same to the level of 10% of maximum retail price in the next 12 months”. Order 19 of the Control Order vests discretion in the Government to fix thr ceiling price or retail price of any drug for such period, as it may deem fit. 

It was established by the Petitioners that the 11.2.2020 Order and consequently the Control Order were not taken into consideration in decisions of the NPPA dated 15.5.2020 and of the Ministry of Chemicals and Fertilizers dated 21.5.2020. Vide its Order dated 15.5.2020, a direction had been passed by the NPPA directing manufacturers /importers /suppliers of the N-95 Masks to maintain parity in prices for non-government procurements and to make available the same at “reasonable” prices, without taking into account that the Control Order itself indicated what price determination was to be followed. It was opined that a price cap was not needed at the time, since the government was directly procuring the said masks from the major manufacturers. “Reasonable prices” therefore, was evidently a vague term deployed by the NPPA, which would have created unwanted discretion in the hands of the manufacturers /importers /suppliers. Where the decision had already been taken placing N-95 masks in the same category as hand sanitisers, gloves, and surgical masks, the distinction in imposing a price ceiling was arbitrary and unjustified.

The Centre sought to support the NPPA decision by way of its affidavit, and further pointed out that the price of masks had since been further reduced by 47%. Given the circumstances, the admitted position on record of reduction in price might have arguably justified judicial deference to executive policy-making, and given a quietus to the matter.

However, the High Court, on a close reading of the affidavit noticed that notwithstanding the reduction in prices, the Government was itself considering imposing a ceiling on the price of PPE. In this background, the High Court correctly directed that instructions be taken on whether the Central Government would revisit and reconsider the question of imposing a cap on the price of N-95 masks. When an affirmative statement was made in this regard, the High Court appropriately finally directed that the Central Government was required to take a fresh decision, by including consideration of the Control Order and the relevant provisions of the EC Act, and other relevant aspects, within a period of 10 days to 2 weeks.

Summing Up

The progress of the price-capping PIL before the High Court is another clear example of how constitutional courts ought to engage in judicial review by setting up an effective dialogue with the executive. Without passing directions in the nature of policy decisions (which were sought by the PIL), the High Court at every stage raised pertinent questions after analysing the stand and submissions on behalf of the government. 

The ongoing lockdown has considerably and unpredictably impacted the right of access to justice on the one hand, and given rise to several instances of grave infractions of constitutional, civil, and socio-economic rights. The rapidly changing developments have led to excessive delegated legislation by way of orders and notifications issued by the Central and State Governments, and a simultaneous deluge of PILs being filed, highlighting concerns where policy is not forthcoming. The need of the hour has therefore been that courts engage with the executive, to ensure that policy is adequately framed, and where framed that it is lawfully justified.

The High Court, in its decision, not only completely complied with precedent on price fixation laid down in Pallavi Refractories v. Singareni Collieries Co. Ltd., (2005) 2 SCC 227, but also by the formulation of relief in the Order placed accountability on the government to ensure that a timely decision is taken (failing which the problem would likely exacerbate) and communicated to the petitioners. The objective, viz. of ensuring that PPE components remain available and affordable was emphasised so as to be kept in mind by the government while reviewing its policy, without any overreaching directions being passed.

Postscript

In the aftermath of the Bombay High Court’s order, a decision by the central and state governments remains to be taken on the issue of the N95 mask price ceiling, pending which no further hearings have taken place in the PIL. The time directed for this decision to be made having lapsed, it remains to be seen whether the High Court will now hold the Centre to a higher degree of accountability, or, in the event of an absence of policy decision making, decide the question itself.

Coronavirus and the Constitution – XXVIII: Dialogic Judicial Review in the Gujarat and Karnataka High Courts

Previously on this blog, we have discussed models of executive accountability in the context of the Covid-19 pandemic, and the role of judicial review during the crisis. As I have argued before, the debate has stemmed from the fact that in most of the cases to come before it, the Supreme Court has framed the issue in terms of a misleading binary: the Court (according to this binary) has one of two options: “take over” the management of the pandemic from the executive, or adopt an entirely quiescent posture towards the executive. Framed this way, this binary admits of only one answer: the executive is obviously better-positioned to deal with the pandemic, and therefore, the second option (quiescence) must be taken.

But, as others have pointed out on this blog, this is a false choice, and indeed, ignores the Supreme Court’s own prior jurisprudence on the question of socio-economic rights. There are a range of alternatives between usurpation and quiescence, that involve holding the executive to account in the judicial forum, without the judiciary necessarily taking over the executive role. Around the world, for example, scholars have articulated the concept of “dialogic judicial review“, where – in certain cases – the judicial forum is a site of dialogue between courts, citizens, and the government; often, the very process of the government being called upon to explain its decisions before the courts reveals important shortcomings in the decision-making process (as well as in the substantive nature of the decision itself), which can then be corrected.

In this context, two recent sets of orders by the Gujarat and Karnataka High Courts present us with examples par excellence of dialogic judicial review, and how it can make a difference to constitutional rights in the times of Covid-19. On 22nd May, the High Court of Gujarat passed a detailed order that dealt with the subject of medical care in the state, the transportation of migrant workers, questions of food and shelter, and so on. The order, authored by Pardiwala and Vora JJ, makes for fascinating reading. Its genesis was a previous order of 14th May, where the Court had put a set of questions to the state government of Gujarat, on the lines set out above. In response, the government filed a detailed affidavit before the Court, answering these questions. The affidavit covers the first twenty pages of the High Court’s order, and includes, inter alia, figures on the total number of migrants in the state (including the methodology used by the government to arrive at those figures), figures on the number of trains that had already left the state to carry migrant workers back home, payments made to various classes of constructions workers, specific work-related issues in Surat and Kutch, Memorandums of Understanding entered into between the state government and various private hospitals, and testing guidelines and discharge policies. In addition, the state government filed affidavits signed by medical officers, and progress reports on medical facilities.

On a study of the data, the Court found that (a) public healthcare facilities were overwhelmed and unequipped to deal with the pandemic; (b) for this reason, the state government had entered into MoUs with private hospitals, (c) but that nonetheless, in certain cases, private hospitals had levied exorbitant charges for treatment (see paragraph 45). On this basis, the Court first issued a direction that, in view of the public health crisis, it would not be open to private hospitals to refuse entering into the MoU with the government. Furthermore, while the state government had issued a notification on 16th May fixing prices and bringing a certain number of private hospitals within its ambit, that notification was ambiguous in what it covered. Additionally, the Court noted that certain specific private hospitals had been left out of the Notification, without any explanation. Consequently, the Court observed:

We would like to know from the respondents as to why the above named hospitals are not in the list. We would also like to know whether any talks were initiated in this regard with the management of the above referred hospitals. The hospitals we have referred to above are reputed hospitals and are capable of admitting thousands of patients in all … we direct the State Government to initiate talks with all the eight hospitals named above and enter into a Memorandum of Understanding in this regard. All the eight hospitals referred to above shall extend their helping hand in this hour of crisis. We are saying so because as days are passing by more and more cases of COVID19 positive are being reported. It is practically impossible now for the Civil Hospital, Ahmedabad and the SVP Hospital, Ahmedabad to admit all these COVID19 patients.

I cite this as one of the (many) examples of dialogic judicial review from the order, as it demonstrates the point with particular clarity: instead of framing policy, the Court examined existing government policy, and found that there was no discernible reason for its limited application, in the context of the pandemic and the accompanying right to health. The absence of a rationale for the decision-making process allowed the Court to then extend the scope of that policy further. In addition – and in stark contrast, for example, to the Supreme Court’s attitude in the free testing case – the Court specifically asked the government to explain (on the next date of hearing) the basis on which the government had worked out the rates of remuneration with private hospitals, and what facilities had been excluded and included. Notably, the Court did not set a particular rate or charge itself, but asked for an explanation of the decision-making process – and it will be interesting to see how that plays out when the matter is heard next, at the end of the month.

In the subsequent parts of its judgment, the Court focused on conditions at civil hospitals – and passed directions on their improvement – appointed a commission to examine the claims raised by reports about abuses in these hospitals, and passed another set of directions on immediate measures to be taken. Further lacunae were also pointed out in the testing process, but here the Court did not pass directions, but rather, advisory observations to the state government on questions of publicity and awareness. On the transportation of migrant workers – based on the government’s own admission that buses were unsuitable for such transport – the Court directed either the Railways or the state government to bear the cost of a one-way train ticket for those migrants who wished to return home. And finally, the Court extended temporary bail orders for another forty-five days.

The order of Pardiwala and Vora JJ exhibits some of the important features of dialogic judicial review: on an initial date, the Court put a series of questions to the government on its handling of the pandemic. The government responded with a detailed report. On the basis of a close study of the facts in the report, the Court (a) on some issues, passed directions tweaking the government’s policy, where it was under-inclusive in its protection of constitutional rights, without any rational basis underlying the decision-making process; (b) on other issues, put further questions to the government, which would be discussed on the next date of hearing; and (c) on a final set of issues, accepted the government’s stance (such as, for example on the legal prohibition upon using RERA money to pay construction workers). In addition, on issues involving core, immediately enforceable constitutional rights – such as temporary bail, and the freedom of movement (that had become a necessity as a result of the government’s own choice of lock-down) – the Court passed direct orders.

Something similar is visible in a set of orders passed by the Karnataka High Court, involving migrant workers. A bench of Chief Justice Oka and Nagarathna J. were seized of the matter. On 5th May, the bench passed an order on the issue of the transport of these migrant workers. The state of government of Karnataka filed written submissions in response. These were considered by the Court in a detailed order dated 12th May, 2020. The state government cited MHA orders, and a protocol for the inter-state movement of migrant workers, as covering the field. On this basis, the Court found that there was now a policy decision taken by the state government that migrant workers from other states could return home through special trains. Having noted this, the Court then observed that it was the burden of the state government to communicate this policy decision to the migrant workers in question.

This brought the Court to the question of train fares. Importantly, the Court framed this as a question of constitutional rights. It noted that the reason why migrant workers needed to travel back home – and, correspondingly, their desperate situation – was a loss of livelihood (paragraph 10). This loss of livelihood – as we have discussed above – was itself caused by the decision of the central and state governments to impose a nationwide lockdown to deal with the Covid-19 pandemic. Thus, with the link between State action and deprivation of constitutional rights clear, the Court noted that “prima facieit appears that considering the constitutional rights of the migrant workers, no one should be deprived of an opportunity to go back to his own State only for the reason that he has no capacity to pay for his transport.” The Court did not, however, pass an immediate order on the issue; rather, it asked the state government to take an “immediate decision” on the question of paying the railways fares of those migrants who were unable to pay, and to work out a schedule for the same. Importantly, it asked the government to place its response on these issues before it, within a week from the order.

It is important to note the aftermath of this: that the state government of Karnataka did formally agree to pay the rail fares of migrant workers. However, this was apparently partial, and applied only to migrant workers originally from Karnataka, who wanted to come back, and not the other way round. This policy was then questioned by the Court in a subsequent order, where it was reiterated that constitutional rights were at stake. In its most recent order – dated 22nd May – the High Court asked the state whether money from the National Disaster Response Fund could be used to pay for the fares*; the next date of hearing is 26th May (Tuesday). This, then, is a classic example of dialogic review in action: the High Court of Karnataka’s initial probing compelled a change in executive policy; nonetheless, the change was found to be insufficiently protective of fundamental rights, and at the time of writing, the executive is being called upon to justify itself in the judicial forum, with the Court itself playing a role in engaging with other possible solutions that could be found.

The set of orders passed by the Gujarat and Karnataka High Courts are granular and specific in nature. They deal with issues arising within state borders, and do not purport to offer grand solutions to the problems caused by the pandemic and the lockdown. However, this is precisely where their importance lies, within the framework of dialogic judicial review: they demonstrate clearly that the binary postulated by the Supreme Court’s orders on the subject is a false one. The task of the Court is not to frame policy, but nor is it to leave the field, especially in times like Covid-19, where individual rights are particularly vulnerable to exploitation. Here, the task of the Court becomes one of oversight and scrutiny, through the method of dialogue in the judicial forum. This dialogue, as we have seen, is a continuing one, and its continued articulation in following hearings will be important to follow.


*Readers will recall the Chief Justice of India’s extraordinary observation, soon after the lockdown was announced, about why workers needed wages if they were getting two square meals a day. Interestingly, an observation by the Karnataka High Court in this order lays bare the hollowness of that statement. As the Court noted:

We must record here that it is not merely an issue of survival of the migrant workers who are unable to go back to their respective States because they do not have money, there are other needs of the migrant workers, such as their health, their families. The migrant workers who are staying in the State by leaving their families in the States of their origin are in precarious position because they are unable to send money for the maintenance of their respective families. These are all human issues which need to be addressed by the State Government as well as the Central Government, considering the concept of Welfare State.

 

The Supreme Court, Convenient Emotions, and the Heckler’s Veto

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against 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.]


Last month, I had written that the Supreme Court’s “review” order in the Sabarimala Case was a strange one. The Court passed an order in flagrant disregard of the parametres of review jurisdiction (errors apparent on the face of the record, or an equivalent injustice), and referred some “questions” to a future seven-judge bench on the basis that they “may” arise in some other cases involving civil rights and religion, presently pending before the Court. I ended by noting that the order neither referred the correctness of the Sabarimala judgment itself, and nor did it stay the judgment. In law, therefore, the judgment continued to hold the field undisturbed.

In the aftermath of this “review” order, certain women attempted to pray at the Sabarimala shrine, but were advised by the police to turn back from the base of the hill, as no protection would be provided to them. This came on the heels of an opinion by the Advocate-General of Kerala, who cited the “review” order to argue that there was no obligation upon the State to enforce the judgment. In response, the women in question filed a petition before the Supreme Court for enforcement of its own judgment.

Now, the law on this should be clear. There exists a judgment of the Supreme Court. That judgment has not been stayed. The “review” order found no error in the judgment, and indeed, did not even refer the correctness of the judgment to a larger bench. There can be little doubt, then, that the judgment holds the field, and must be enforced by all parties.

An account of yesterday’s hearing before the Chief Justice’s bench reveals, however, that – not for the first time – the basic law we thought we learnt in the first year of Law School was a fiction. The Chief Justice refused to pass any order on the petition, and provided the following reasons for (not) doing so: first, that “this is an age old practice going on for thousands of years. Balance of conveniences requires that order should not be passed in your favour now. The matter is under reference and if it is ultimately decided in your favour, we will protect you“; secondly, that “it’s an emotive issue. Please be patient. We are not saying don’t allow her to go in, but we are not looking to pass any order right now”; and thirdly, “we know that the law is in your favour … however we’re using our discretion and will not be passing any order.”

Let us take each of these three justifications in turn. The first is utterly bewildering, as the Chief Justice appears to have conflated the beginning of the legal process (application for injunction) with its end (application for enforcement). The question of “balance of convenience” arises when a suit has been filed, and the plaintiff asks for interim relief pending a final decision. At that point, the Court asks which way the “balance of convenience” would lie – and on that basis, passes an order that holds the field until it finally decides the case. “Balance of convenience”, however, has nothing – nothing – to do with a case when it has already been decided after a detailed hearing, and the petitioner is only asking for its enforcement! At that point, the question of “convenience” doesn’t even arise, as the rights of the parties have already been settled according to law.

Of course, the Court’s reasoning on “balance of convenience” is equally troubling – not only does it appear to have arrived at this “balance” without a proper hearing on the subject, but also seems to have given no weight to the contrary rights at issue (apart from saying “be patient.”) The situation is starkly reminiscent of an incident recounted by Anupama Rao, in her book, Caste Question. In a 1927 case involving access to a village water-tank (which was placed off limits to Dalits), an injunction was granted to the upper castes on the basis that “if the injunction had not been granted and the suit decided in favour of the ‘touchables’ they will be put to considerable expense and inconvenience for ‘purifying’ the tank; while in the existing circumstances, if the untouchables win the suit the only effect will be to prolong by a year or so the oppression that has lasted centuries.” Readers will notice that even this atrocious order passed by a colonial judge seems to have more reasoning than the oral observations of the Bench in yesterday’s proceeding – not to mention that this was actually a case for an injunction where “balance of convenience” actually had some application, instead of a case for an enforcement. It is an open question whether we have progressed from 1927 – or indeed, whether we have regressed.

And lastly, what is even more problematic about this observation is that the question of whether the practice of excluding women from the Sabarimala temple did have the sanction of antiquity is itself a contested question; there was evidence both for and against the provenance of the practice, and the original judgment(s) in Sabarimala acknowledge this divergence of views. For the Chief Justice, therefore, to blithely state that the practice has been going on for “thousands of years” comes dangerous close to pre-judging the merits of that case, if indeed the case is going to be re-opened.

The second justification offered by the Chief Justice is, of course, both bewildering and alarming. What does the “emotiveness” of the issue have to do with anything at all? Since when do emotions operate as injunctions upon decided judgments? And more importantly, whose emotions count? Just a few months ago, when there were protests against the Supreme Court’s decision on the demolition of the Ravidasa Temple in Delhi, the Court responded thus: “Everything cannot be political. Our orders can’t be given a political colour by anybody on earth” and “don’t speak a word and don’t aggravate the issue. You are in for contempt. We will haul up your entire management. We will see what has to be done.” Where was the Court’s touching solicitude for emotions back then? And how many times has the Court otherwise told aggrieved parties that, like it or not, they need to lump it when it comes to obeying judgments? Is it the case that emotions acquire a particular force when they are backed up by organised and systematic violence? The Chief Justice’s reference to avoiding violence during the hearing suggests that; but if that was the case, then it is nothing more than the heckler’s veto replacing the rule of law: your emotions will be given sanctity by the Court if you are strong enough to express them violently. But if you’re too weak to be violent, or just law-abiding, then, well, you do indeed have to lump it. This is a strange stance to take for the “most powerful Court in the world” and the “last refuge of the oppressed and the bewildered.”

And it is the third justification that really puts a seal on things: because the Chief Justice admits – he actually admits – that the law is indeed in the applicant’s favour (there is a judgment, and no stay). Despite that, he says that the Court will use its “discretion”, and pass no orders. But what sort of discretion is this, exactly? The discretion to refuse to one’s own judgments? The discretion to say that the judgments of  the Supreme Court are binding on all courts in the territory of India under Article 141 of the Constitution – but that Supreme Court benches themselves need not be bound to enforce them? It is very clear that there is no legal or judicial basis for this peculiar exercise of discretion: the only justifications that there are go back to the first two points discussed above.

Consequently, yesterday’s proceedings and order heap yet another irregularity upon the original sin that was the “review” order. To an external observer, it seems rather obvious that the Supreme Court now regards the original Sabarimala judgment as a millstone around its neck, and would evidently be rid of it. But to get there, it is undermining its own authority as well as the rule of law to a remarkable – and alarming – degree: reopening judgments in review jurisdiction without finding any “error” and then invoking “discretion” to decline to enforce judgments that hold the field. The question is no longer really about whether the original judgment was right or wrong, or whether the Court will now find a way to reverse it (it appears apparent that it will); the question is whether the damage that has been caused along the way will have been worth it – and whether this is now a Court that can regularly be held hostage to the heckler’s veto.