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.

 

 

 

Constitutional Functionaries, Constitutional Standards, and the Role of Courts: Lessons from the Miller

(This is a Guest Post by Nivedhitha K.)


On 24th September 2019, the UK Supreme Court delivered the judgment in R (Miller) v. The Prime Minister, declaring the prorogation of the UK Parliament unlawful. Apart from the judgment being lauded as a landmark one for its timely and precise intervention, it also involves some important questions of law. In this post, I will attempt to analyse the decision of Miller, and distinguish it with the Indian jurisprudence on the question of “aid and advice.” I will then explain the inadequacy of the Indian jurisprudence on this issue, and propose for its reformation on the lines of Miller.

Facts of Miller’s Case 

A referendum was held in the UK on 23rd June 2016, where the majority voted for leaving the European Union (hereinafter referred to as “EU”). The government has since then been involved with the task of implementing the decision of the majority. Under Article 50 of the EU treaty, for a Member State to withdraw from the Union, it must notify the EU of its intention, and arrive at an agreement on the future relationship between the member state and the EU. In this context, under the EU (Withdrawal) Act 2018 – passed by the UK Parliament – the withdrawal agreement must be approved by the House of Commons, and a legislation incorporating the provisions of the withdrawal agreement must be passed. However, following an extension to the mandatory two-year period that sets into play after an Article 50 Notification, 31st October was decided to be the cut-off date for the UK to exit the EU. Therefore, irrespective of whether or not the UK Parliament was able to approve of a withdrawal agreement, the UK would have to leave the EU on 31st October.

However, an order was passed by the Queen that the UK Parliament would be prorogued from 12th September 2019 to 14th October 2019. In the UK- akin to India- the Queen (the Head of State) acts on the aid and advice of the Prime Minister. The prorogation was challenged in the High Court of England and Wales, and was dismissed on the ground that the issue was non-justiciable. On appeal, the Supreme Court (a bench of eleven) held that the issue was justiciable, and declared the prorogation unlawful.

The issues that were framed by the Court were fourfold: (paragraph 27)

(1) Is the question of whether the Prime Minister’s advice to the Queen was lawful, justiciable in a court of law?

(2) If it is, by what standard is its lawfulness to be judged?

(3) By that standard, was it lawful?

(4) If it was not, what remedy should the court grant?

The test laid down in Miller on the justiciability of aid and advice

The bench observed that the advice rendered by the Prime Minister was justiciable. The test that was applied to test the lawfulness of the advice was, “a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.” (paragraph 50)

Though facially it seems to test the validity of the prorogation, in actuality it is a test on the extent of justiciability of the advice rendered by the Prime Minister.  The two-prong test formulated to test the extent of justiciability of the advice rendered by the Prime Minister is: 1) whether the advice in effect violates a constitutional principle (violation test)? 2) Whether the violation is reasonably justified (justification test)?

To identify the sub-facets of the test, it is necessary to look at how the test was applied to the given factual circumstance. The bench rejected the improper motive standard. Therefore, the court did not look into whether the Prime Minister was motivated to violate the Constitutional principles, but rather looked into whether the act effected at the violation of Constitutional principles. In this context, the bench observed that when the house was prorogued for a longer duration- unlike a short prorogation- the constitutional principles of parliamentary sovereignty and parliamentary accountability are violated.

On the question of justification, the bench referred to the documents that had formed the basis of the advice, and held that the violation of the constitutional principles was not ‘reasonably justified’. While the violation test was guided by the ‘effects standard’, the justification test was guided by the ‘proportionality standard’ Though the court did not explicitly refer to the proportionality standard, it can be inferred by the arguments put forth below.

Establishing the proportionality standard

Firstly, not mere justification but reasonable justification was the test evolved. Therefore, the court did not regard all justifications to be reasonable justifications. What is then the standard of reasonableness? The following observations guide us on the court’s standard of reasonableness. In paragraph 60, the bench observed that “the proposal was careful to ensure that there would be some Parliamentary time both before and after the European Council meeting on 17th – 18th October. But it does not explain why it was necessary to curtail what time there would otherwise have been for Brexit related business.” The bench was not convinced by the reasoning that there would be some time; it asked: “why not the otherwise available time?” Therefore, the first test that was used by the court under the proportionality standard was whether the materials had shown relevant reason to authorise the act that had the effect of violating Constitutional principles- in this case, parliamentary sovereignty and accountability by denying the parliamentarians the otherwise available time for discussion on the withdrawal agreement.

Another observation by the bench provides further clarity. The court observed that “the Prime Minister’s wish to end one session of the Parliament and to begin another will normally be enough in itself to justify the short period of prorogation which has been normal in modern practice. It could only be in unusual circumstances that any further justification might be necessary” (paragraph 51). The bench here observed that usually- i.e when a short term prorogation was declared- the wish of the Prime Minister was a justifiable reason. However, when a long term prorogation under an extraordinary situation was declared, it would not be justifiable on the wish of the Prime Minister alone; rather, reasoning proportional to the effect would have to be provided. Therefore, the second test was whether the relevant reasoning was proportional to the effect. The court observed that the effects of a long term prorogation in the given extraordinary situation were graver in comparison to the effects of a short term prorogation, and the court required more convincing reasoning for graver effects.

Lastly, the court in paragraph 60 observed that the reasoning did not differentiate between the process of recess and prorogation. Thus, the third test that was formulated was whether the least restrictive means to achieve the objective was used. On perusal of the documents that had formed the basis of the advice, the objective of the prorogation seemed to be the need to introduce new bills. This objective could have been fulfilled by imposing a short term prorogation (a lesser restrictive means) which would not violate Constitutional principles.   It is clear, therefore, that the court looked into the materials to find a reasonable justification, for which it used the proportionality standard.

Summing up, the test for justiciability of aid and advice evolved in Miller is as follows:

  1. Whether the act (which was guided by the advice) violates a constitutional principle- in effect?
  2. Whether the violation can be reasonably justified through the application of the proportionality standard?

The proportionality standard applied requires the following tests to be fulfilled:

(a) Whether the reasoning has relevance to the effect of the use of prerogative power.

(b) Whether the relevant reasoning is proportional to the effect.

(c) Whether the least restrictive, but equally effective means is used to achieve the objective.

I will now juxtapose Miller’s test with the Indian jurisprudence on aid and advice. Before I make a comparison, two primary differences between the legal systems of India and UK will have to be addressed. First, the UK- unlike India- does not have a written Constitution. Therefore, Indian legal jurisprudence is comparatively more ‘formalist’ in nature. Secondly, Article 74(2) of the Indian Constitution restricts the justiciability of the aid and advice of the Council of Ministers (hereinafter referred to as ‘CoM’). Despite these two differences, the Indian courts will not face any obstacle in applying the UK jurisprudence- laid down in Miller- on the subject matter.

The Indian test on aid and advice

In India, the test on the extent of justiciability of the aid and advice of the CoM/ satisfaction of the President was laid down in the case of S.R Bommai. It was observed that the bar in Article 74(2) – on the justiciability of aid and advice rendered – only excludes the questioning of whether there was advice given, and what advice was given. Further, the court engaged in harmonious construction of Articles 74(2) and 142 and held the materials relied upon by the President for the use of his prerogative power shall be placed before it.

The extent of judicial review of the materials relied upon was held to be as follows: ‘…the truth or correctness of the material cannot be questioned by the court nor will it go into the adequacy of the material. It will also not substitute its opinion for that of the President. Even if some of the material on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action. The ground of mala fides takes in inter alia situations where the proclamation is found to be clear case of abuse of power, or what is sometimes called fraud on power- cases where this power is invoked for achieving oblique ends”. Therefore, unlike the UK jurisprudence, in India, it is sufficient if the material- and not reasoning in the material- is relevant to the prerogative act. However, the Court further observed that the ‘legitimacy of the inference drawn from such material’ can be questioned.

The subsidiary question is how the court could question the legitimacy of the inference drawn from such material, without questioning the subjective satisfaction of the President/Governor. The Supreme Court in the case of BP Singhal held that to test the legitimacy drawn from the material, the “reasonable prudent man’s” test will have to be applied. Therefore, the test in India is as follows:

  1. Is there any relevant material to sustainthe action (‘relevancy test’)?
  2. Will a ‘reasonable prudent man’- given the material before him- be able to arrive at the same conclusion on the use of prerogative power as the President/Governor (‘legitimacy test’)?

There are two issues in the Indian jurisprudence on aid and advice. First, the Indian courts- unlike the UK- focus on the form of the prerogative act instead of its effect. Second, the relevance of the material is deemed sufficient, with no standard for the reasonable prudent man to decide on the legitimacy of the inference.

Form and effect of the prerogative act 

Let me argue that the reliance of the Indian courts on the form instead of the effect, in practicality permits the court to analyse the ‘subjective satisfaction’ of the President/ Governor- something that it says it would not do. Let me explain this through a factual situation. In November 2019, due to the inability of the party with the maximum members in the legislative assembly but with no simple majority to form the government in Maharashtra, the governor sent a report to the President that the Government cannot be formed in accordance with the provisions of the Constitution. Therefore, following the report of the Governor and the recommendation by the CoM, Presidential rule was imposed, with the legislative assembly of the State in suspended animation. Immediately, the Shiv Sena filed a petition in the Supreme Court challenging the imposition of President’s Rule in the State. Let us hypothetically assume that the petition by Shiv Sena challenges the aid and advice of the cabinet that led to the imposition of the President’s rule, keeping aside its argument on unequal and insufficient time given to it for the formation of the government.

Let us presume that the relevancy test has been fulfilled as the court regarded the materials placed before the President to be relevant to the declaration of Presidential rule (i.e the form). Let me will now frame the legitimacy test from the perspective of the form and effect of the prerogative act.

  1. Through the relevant materials placed before a ‘reasonable prudent man’, would he regard the reasons justifiableto declare Presidential rule (i.e the form)?
  2. Through the relevant material placed before a ‘reasonable prudent man’, would he regard the reasons proportional to the suspension of parliamentary democracy (i.e the effect)?

 

There are two issues in the manner in which question A is framed. First, the form, instead of the effect (as in question B) is regarded as the end. Second, it does not prescribe a standard for the ‘reasonable prudent man’ to decide on the legitimacy. As a rough analogy one may imagine A being given the task of choosing the better of two dolls. In the first circumstance, A is asked to choose the better doll between the two, but the dolls are not completely made- they still are in clay form. In the second instance, A is asked to decide the better doll between two dolls- the dolls are completed and painted. The decision of A will be better guided in the second instance because while he looks at the final effect of the dolls, he has something concrete to base his decisions upon. Therefore, the subjective analysis of the judges would ease if the judicial attention is on the effect instead of the form.

It will not be logically sound for the courts to follow the nexus/relevance test while the effects standard is put to use. The ‘nexus’ or the ‘relevance’ standard can only be used when the end is an object or a purpose. When the effects standard is used, it would not matter if the reasoning only has some nexus with the effect. Rather, the question is whether the effect is justified – for which the proportionality standard will have to be put to use.

Summing up, the effects test and proportionality test have been inferred from the decision in Miller. The Indian jurisprudence on aid and advice, specifically on the determination of legitimacy from the material placed is explained to be inadequate. The primacy of form of the prerogative act in the Indian jurisprudence, in comparison to the effect test in the UK has been criticised with the help of an analogy. Finally, the insufficiency of relying on the relevance of the reason for the effects standard was explained. The above reasons led to the suggestion of usage of the proportionality standard (along with the three subsets) to decide the ‘reasonable prudent mans’ legitimacy test.

Proportionality standard and the Presidential rule

Before deciding on the constitutionality of the Presidential rule in Maharashtra by   applying the proportionality, it is necessary to answer a preliminary question that arises – whether on the imposition of the Presidents rule due to ‘breakdown of the Constitutional machinery’ in a State, there is no Constitution in existence for the constitutional principle of parliamentary democracy to be suspended?

The argument is that the declaration of the Presidents’ rule in the State does not necessarily mean that Constitutional principles are abrogated. The jurisprudence of basic structure evolved primarily because of the existence of certain Constitutional principles are beyond the clutches of majoritarian forces. During the Presidents’ rule, there might be suspension of the operation of the Constitutional text, but not the underlying Constitutional principles. However, provisions in the Constitution allow for the suspension of certain fundamental rights during emergency. The question that then arises is: when fundamental rights cannot be enforced, how can certain constitutional principles be enforced? For example, reasonableness that guides the golden triangle (i.e Articles 14, 19 and 21) has been held to be a basic feature of the Constitution (which is also a constitutional principle). However, the crucial point is that the operation of Article 356 differentiates between the imposition of Presidential rule for the reason of secessionist insurgency (eg: Punjab 1980’s) and inability of political party to form the government (eg: Maharashtra on November 2019). When the Presidents’ rule is declared on the reason of insurgency, suspension of enforcement of fundamental rights may be made by an executive order. In such cases, the Constitutional principles guiding the fundamental rights chapter may be suspended but other Constitutional principles would remain enforceable. While Presidents’ rule is imposed due to the inability to form the government, all Constitutional principles are enforceable.

Now, let us apply the proportionality standard that was formulated in Miller to the challenge on the Presidential rule imposed in Maharashtra. Prior to the application of the standard, one would first be required to identify the objective of the use of prerogative power, the means used to achieve the objective, and its effect on Constitutional principles. The objective of the imposition of the Presidential rule was to remedy the breakdown of Constitutional machinery, given that Mr. Devendra Fadnavis –the acting Chief Minister- had resigned on November 8. The means that was employed to meet the objective, was the imposition of Presidential rule in the state. The effect of the means used was that parliamentary democracy was frustrated by limiting the time provided to willing political parties to form the government.

On the application of the proportionality standard to the factual situation of Presidential rules’ in Maharashtra, the court would have to answer the following sub-tests of the proportionality standard: first, whether the material relied on has relevant reasoning on denial of time to political parties for forming the government. The reasoning in the material should not have merely focused on the reasons for the declaration of Presidential rule, but must have provided specific reasoning on the denial of time sought by Shiv Sena since it was willing to form the government.

Secondly, whether the relevant reasoning is proportional to the effect. Under this prong, the court should not settle for the same reasoning for acts that lead to different effects. For example, the reasons for the declaration of a Presidential rule when political parties express the ability to form the government, must be different from the reasons when political parties are unable to form the government.

And thirdly, whether the least restrictive, but equally effective means to achieve the objective was used. The court should test if there are other restrictive but equally effective means to achieve the objective of remedying the breakdown of Constitutional machinery. While deciding on this test, the court shall keep in mind the available Constitutional remedies, the resignation of the acting Chief Minister, and the need to prevent horse-trading.

Indian Jurisprudence on aid and advice, and the proportionality Standard

The closest the Indian courts have come to the UK jurisprudence is when the courts held that repromulgation of ordinances amounted to malafide use of power, where the power is used to achieve oblique ends. In Krishna Kumar II, it was observed ‘repromulgation violates parliamentary sovereignty’. In both D. C Wadhwa and Krishna Kumar II, the court found repromulgation to be manifestly arbitrary that they did not look into the aid and advice theory jurisprudence. Though there had been references to the effect on Constitutional principles, the court held repromulgation to be unconstitutional primarily on the ground of the form– the necessity of placing the ordinances before the house.  

However, the Indian courts are not completely unmindful of the proportionality analysis in the realm of Presidential satisfaction. In B.P Singhal, when the doctrine of pleasure of the President was under question, it was observed, “where a prima facie case of arbitrariness or malafides is made out, the Court can require the Union Government to produce records/materials to satisfy itself that the withdrawal of pleasure was for good and compelling reasons. What will constitute good and compelling reasons would depend upon the facts of the case.” This is a very similar analysis to that which was taken in Miller’s decision, provided the court looks at the effect while deciding whether it is a case of malafide use of power. The ‘good and compelling reason’ test is to be determined by the proportionality standard.

Therefore, the Indian jurisprudence on aid and advice would have to be modified on the lines of Miller, to prevent inadvertent prejudicial and subjective satisfaction of the judges while deciding on the satisfaction of the President.

What is a “Review”?

[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 the 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.]


Article 137 of the Constitution of India allows the Supreme Court to “review” any judgment passed by it. According to the jurisprudence of the Court, a review is to be granted in exceedingly rare circumstances. In Union of India v Sandur Manganese and Iron Ores Ltd., for example, the Supreme Court restated the position of law as follows: a review could only be allowed in cases of “discovery of new and important … evidence“, an “error on the face of the record“, or another “sufficient reason” that had to be analogous to the first two.

In this context, today’s order in Kantaru Rajeevaru v Indian Young Lawyers’ Association, concerning the Supreme Court’s 2018 judgment in the Sabarimala Case, is a curious one. The Chief Justice begins his order by observing:

Ordinarily, review petitions ought to proceed on the principle predicated in Order XLVII in Part IV of the Supreme Court Rules, 2013. However, along with review petitions several fresh writ petitions have been filed as a fall out of the judgment under review. All these petitions were heard together in the open Court. (paragraph 1)

This is bewildering. Let us say that there are two sets of petitions before the Court. One set of petition seeks “review” of the impugned judgment, on the grounds set out at the beginning of this post. The other set comprises of fresh writ petitions that assail the correctness of the same judgment. “Hearing them together in open Court” makes no sense, because not only is the scope of arguments entirely different, the forum within which these cases have to be heard is different too! A review is heard by the same judges who delivered the original judgment (apart from those who may have retired). In this case, as the Sabarimala judgment was heard by a bench of five judges, the review would also be heard by five judges (and in this case, four of them – apart from the Chief Justice – were parties to the original judgment). A fresh writ petition, on the other hand, would have to go through an entirely different process: it would first come up before a division bench (two or three judges) of the Supreme Court, where the petitioner would have to make out an initial case for even having the petition admitted, given the existence of binding precedent to the contrary, on the same issue. If that was successful, the petitioner would then have to convince the division bench that there was a prima facie mistake in the earlier judgment, that required to be reconsidered by a larger bench (another substantial hurdle). The division bench would – if convinced – refer the matter to a five-judge bench, where the same process would be repeated;  and then – if the petitioner was successful in each of these stages – would the matter go before a seven-judge bench to reconsider.

These processes are of fundamental importance. They are important because they preserve one of the crucial pillars of the justice system: the sanctity and finality of judgments (especially those of the Supreme Court). One may agree or disagree with a judgment, but in the interests of legal certainty and stability, the judgment (for better or for worse) is law, and remains law, unless there are powerful reasons to depart from it. Of course, no judgment is set in stone: that is why review jurisdiction exists, and that is why referrals exist. And both processes – as we have just seen – cast an onerous burden upon those who would have the Court revisit judgments that have attained finality.

The first problem with today’s order, then, is that it mixes up two things that are fundamentally different in character. Indeed, in no sense is this a “review” at all: the Court does not even attempt to point out “an error on the face of the record” in the original Sabarimala judgment that was ostensibly under review. But if this is actually a judgment about referral, then how did the writ petitioners short-circuit the entire process that exists for these cases, and land up directly before a five-judge bench in proceedings that everyone understood at the time to be proceedings in review?

That said, let us consider the substance of the order itself. In paragraph 3, the Court notes that issues surrounding the entry of women into religious spaces arise in respect of some pending cases before the Court, involving mosques and Parsi fire temples – and that there is also a pending case on the legality of female genital mutilation (FGM). In paragraph 4, the Court then observes: “it is time that this Court should evolve a judicial policy befitting to its plenary powers to do substantial and complete justice and for an authoritative enunciation of the constitutional principles by a larger bench of not less than seven judges … It is essential to adhere to judicial discipline and propriety when more than one petition is pending on the same, similar or overlapping issues in the same court for which all cases must proceed together.”

With respect, this is bizarre. What this appears to be is something wholly new, which we can perhaps define as an “anticipatory referral.” The Supreme Court is due to hear some cases that have overlapping issues. So before it hears those cases, a larger bench should decide those issues! But unless these different cases are all heard simultaneously, by different five-judge panels of the Court – which then throw up contradictory rulings – this has absolutely nothing to do with “judicial discipline and propriety” (in fact, some of the cases the Court mentions have not even been referred to larger benches!). Let us take a tangible example. Sabarimala was decided last year. Let’s say the next case to be heard is the Parsi Fire Temple case. To the extent that legal questions arise in the latter that have already been resolved in the former, the bench hearing the Fire Temple Case will be bound to follow them, unless it decides to refer the matter to a larger bench for resolution. That is how it has always worked. And there has never been a reason to depart from that practice – certainly not by ostensibly citing “judicial discipline and propriety”!

This is made clear by the fact that the Court goes on to note that the issues arising in these pending cases “may be overlapping and covered by the judgment under review.” Yes, exactly – and unless the “judgment under review” is set aside in review for having an error apparent on the face of the record, these pending cases will be bound by it! Which brings us back to what the Court was actually asked to rule on in this case, and which it simply did not do – decide the review!

The judgment then frames some issues that it says “could arise” in these pending cases, pertaining to the interplay between various constitutional articles. It also points to an apparent conflict between Shirur Mutt and Dawoodi Bohra, on the issue of “essential religious practices” (the conflict is more apparent than real, but that is a debate for another day), which needs to be resolved by a larger bench.

Notice, however – so far – that what has been referred to a larger bench are certain suggested constitutional questions that may have an impact on the Sabarimala judgment, but are not about that case. But it is now that we come to yet another bizarre part of this judgment. In the penultimate paragraph, the Court notes that “while deciding the questions delineated above, the larger bench may also consider it appropriate to decide all issues, including the question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the temple in question at all. Whether the aforesaid consideration will require grant of a fresh opportunity to all interested parties may also have to be considered.

But where on earth has this sprung from? It would be appropriate for this “larger bench” to consider this question – that was settled in Sabarimala – only if it was sufficiently proven to another bench – either in Review or in referral proceedings – that a mistake had been made that warranted reconsideration. But – as already indicated above – the Court does not even attempt to show that a mistake has been made, or may have been made. It simply decrees that the larger bench “may” consider it appropriate to decide “all” issues. How and why? It does not say. This is not how a Court is supposed to reason.

The Court then ends by noting that the review petition and writ petitions shall be kept pending until these “questions” are answered. So, once again, we are back to the same point: it is not the judgment in Sabarimala that has been referred for reconsideration, but certain “questions” that are common to Sabarimala and other pending cases – without any judicial finding that Sabarimala got them wrong! What on earth is happening here?*

The incoherence of this judgment is highlighted in the dissenting opinion authored by Nariman J., on behalf of himself and Chandrachud J. In paragraph 2, Nariman J. sets out the exact point that this blog post has been making:

What a future constitution bench or larger bench, if constituted by the learned Chief Justice of India, may or may not do when considering the other issues pending before this Court is, strictly speaking, not before this Court at all. The only thing that is before this Court is the review petitions and the writ petitions that have now been filed in relation to the judgment in Indian Young Lawyers Association and Ors. v. State of Kerala, dated 28 September, 2018. As and when the other matters are heard, the bench hearing those matters may well refer to our judgment in Indian Young Lawyers Association and Ors. v. State of Kerala, dated 28 September, 2018, and may either apply such judgment, distinguish such judgment, or refer an issue/issues which arise from the said judgment for determination by a larger bench. All this is for future Constitution benches or larger benches to do. Consequently, if and when the issues that have been set out in the learned Chief Justice’s judgment arise in future, they can appropriately be dealt with by the bench/benches which hear the petitions concerning Muslims, Parsis and Dawoodi Bohras. What is before us is only the narrow question as to whether grounds for review and grounds for filing of the writ petitions have been made out qua the judgment in Indian Young Lawyers Association and Ors. v. State of Kerala.

 

And indeed, it is difficult to understand how it could be any other way. Nariman J. then actually goes on to write a judgment applying the standards required in a review, and finds that no grounds for review are made out (and that, at the same time, writ petitions directly attacking the judgment are not maintainable). A debate on this could have been had if the majority judgment had actually engaged with any of the points that Nariman J. makes. But of course, as we have seen, they do not. And finally, Nariman J. goes on to point out that arguments around the protests that followed the original Sabarimala judgment cannot possibly constitute a ground for the Court to retrace its steps, in a country governed by the rule of law.

It should therefore be clear that what the majority judgment does in this case is indefensible under any standard. One may agree or disagree with the original judgment in the Sabrimala case. But what a three-judge majority has done here – that is, exhibit a cavalier disregard for a reasoned judgment of a Constitution Bench, and invent a whole new method for people to collaterally  challenge judgments they don’t like – cannot but have profound and dangerous consequences for the rule of law. In a Court of thirty-three judges – as I have pointed out before – these issues become particularly important. The more the gravitational force of precedent is weakened – either by declaring coordinate benches per incuriam, or by judicial pyrotechnics as in this case – the more we head towards a factionalised and divided Court, where judicial interpretation becomes less about principle and more about power-play. Sabarimala will be a small casualty in that conflagration.


 

*Incidentally, a corollary of this is that – for obvious reasons – the majority has not stayed the Sabarimala judgment itself. Until the seven-judge bench is constituted, therefore, the judgment remains good law, and binding and enforceable on all parties, including the State.

Guest Post: Resigning MLAs, Constitutional Silences and a “Fraud on the Constitution”?: A Response to Mihir Naniwadekar

(This is a Guest Post by Goutham Shivashankar.)


This post is a response to Mihir Naniwadekar’s excellent and thought-provoking posts on the Bombay High Court’s decision in Vijay Namdeorao Wadettiwar v State of Maharashtra. Naniwadekar’s posts are available here and here. Naniwadekar argues that the High Court erred in failing to hold the recent induction of Radhakrushna Vikhe Patil (“RVP”) as a Cabinet Minister in Maharashtra’s BJP-led government to be a fraud on the constitution. As I understand it, his analysis is based on certain suspect premises. I hope to set out these shaky premises, and in the process, defend the High Court’s eventual ruling from Naniwadekar’s principal line of attack, i.e., fraud on the constitution.

Naniwadekar’s analysis stands on a misreading of the text of Article 164 of the Constitution: most critically, he fails to properly distinguish between the terms “Legislature of the State” and “Legislative Assembly of the State”, both of which find mention in Article 164. This distinction is crucial, especially in bicameral states like Maharashtra, which have Legislatures consisting of a Legislative Assembly and a Legislative Council and where the Council’s membership is not entirely elected. This primary error leads to a secondary suspect assumption. He assumes, arguably incorrectly, that Article 164(4) mandates that a Minister must necessarily be “elected” as a member of the Legislature of the State. The text of Article 164(4) does not seem to prohibit a “nominated” member. But some discussion in the Constituent Assembly debates and previous decisions of the Supreme Court do lend some support to his assumption that Article 164(4) does require a Minister to be an “elected” member of the State Legislature. Finally, his analysis also proceeds on a potentially incorrect reading of the Representation of People Act, 1951 (the “ROPA, 1951”). Naniwadekar assumes that the Petitioner’s contention in the case is correct, i.e., that the ROPA, 1951 prohibits by-polls being conducted to fill in casual vacancies that arise in the fag-end of an Assembly’s term.The ROPA, 1951 however, contains is no such prohibition. At least, I was unable to find any.

The Facts Restated (with one significant correction)

Naniwadekar’s posts capture the facts of the case with precision, except for one significant error. I do not propose to reinvent the wheel, but simply extract his summary. I also indicate in bold the erroneous factual assumption which he makes, and explain its significance. Naniwadekar summarises the facts as follows:

Mr. Radhakrushna Vikhe Patil (“RVP”) was elected as a Member of the Maharashtra Legislative Assembly in the 2014 state elections, as a candidate of the Indian National Congress. He was Leader of the Opposition in the Assembly.

In early June 2019, he resigned from the Assembly; and ceased being Leader of the Opposition. Disqualification proceedings before the Speaker remain pending, where one of the issues would be whether the provisions of the Anti-Defection law can be avoided by resigning from the Assembly before being declared as a defector. Under the Representation of the People Act, 1951, it was not possible to hold a by-poll for RVP’s assembly seat (or any other by-poll). This was because the term of the Assembly itself was to get over in less than six months.

However, on 16th June 2019, RVP was appointed as a Cabinet Minister by the ruling alliance. There was no possibility that RVP would become a member of the Assembly for the remainder of the term of the Assembly, as there was no question of any by-election being held.

RVP’s appointment as a Minister (along with some other appointments) was challenged before the Bombay High Court in Civil Writ Petition 6996 of 2019 (Vijay Namdeorao Wadettiwar v State of Maharashtra).

Naniwadekar’s summation is correct except in stating that the Representation of the People Act, 1951 (the “ROPA”) precluded the possibility of holding a by-poll for RVP’s “Assembly Seat (or any other by-poll).” This is incorrect on two counts.

Firstly, the ROPA, 1951, on a plain reading, does not contain any bar on holding a by-poll in the last six months/one-year of a Legislative Assembly’s term. Secondly, the ROPA, 1951 also certainly does not enact any such bar on by-polls to casual vacancies that may arise in the State’s Legislative Council.

Subject to this significant correction, the Naniwadekar’s account of the facts is entirely apposite. I will back my correction up in my analysis below. I will also indicate how this correction is crucial to the proper analysis of the case at hand.

Summarizing Naniwadekar’s Argument for Constitutional Fraud

Naniwadekar’s line of argument, broadly, appears to be this:

(i) A person appointed as a Minister in a State Government’s Council of Ministers must become a member of the State’s Legislative Assembly within a period of 6-months. This is a facet of the underlying constitutional value of ministerial responsibility to the legislature contained in Article 164 of the Constitution.

(ii) To appoint a person as Minister, where there exists no possibility at all that she could comply with the requirement in (i) above, would be constitutional fraud, since it would undermine ministerial responsibility.

(iii) There was “no possibility at all” of RVP being elected as a member of Maharashtra’s Legislative Assembly within 6 months of his induction as a Minister. This was because the Legislative Assembly was in the last six-months of its term and the ROPA, 1951 precluded by-polls to casual vacancies at this stage.

(iv) An implicit assumption in (i) – (iii) above, is that Article 164(4) requires that an inducted Minister must be “elected” as a member of the Legislature (if he is not already one at the time of his appointment as a Minister) within the prescribed six-month period. The mode of entry into the Legislature must be election, and not nomination.

A couple of extracts from Naniwadekar’s posts would be appropriate in culling out the above arguments. For instance, when distinguishing the Supreme Court’s judgment in Manoj Narula in his first post, Naniwadekar, presumably alluding to Article 164(4) of the Constitution, asserts that:

The point ultimately is that there is an express provision in the Constitution which provides that a minister must become a member of the Assembly within six months in order to continue. The question is whether one can be appointed as Minister when there is no possibility whatsoever of that condition being complied with… …But in the case of RVP, the Constitution does indicate that there is to be ministerial responsibility to the legislature and there is indeed a requirement that within six months, a minister must become a member of the Assembly. In that scenario, is it or is it not a fraud on the Constitution to appoint someone who has no chance whatsoever of complying with the mandate? That question is, with great respect, not concluded by Manoj Narula.” (emphasis supplied)

In his second post, Naniwadekar states:

In a situation of a vacancy shortly before the expiry of the term of the legislature, when no by-election at all is possible, then that vacancy should be filled up only by an existing member of the assembly: not because the Constitution requires this in express terms, but because not doing so will in every case have the effect of negating an underlying constitutional value. True, the Constitution permits a non-member to be a minister: but that permission is circumscribed by the underlying values which mandate that the person so appointed must necessarily be one who is capable of becoming a minister.(emphasis supplied)

As I understand it, each of these premises are erroneous. But before I set out why, it is necessary for me to extract the relevant legal provisions.

The Relevant Provision of Law

Constitutional Provisions

Article 164 (2) and (4) of the Constitution are relevant. They state as follows:

164. (2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.

(4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.

Additionally, Articles 168 and 171 are important. Article 168 provides that for Maharashtra, the Legislature shall consist of the Governor, and two Houses, i.e., Legislative Assembly and the Legislative Council. Article 171 prescribes the composition of the Legislative Council. Articles 171(3) (a)-(d) envisage that a total 5/6th of the Council’s membership shall be filled through elections by different electorates. Article 171(3)(e) envisages that the remaining 1/6th of the Council’s membership is to be “nominated” by the Governor. Lastly, Article 171(2) provides that: “the Legislative Council of a State shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions of law made by Parliament by law.

Provisions of the ROPA, 1951

Sections 15, 150- 151A of the ROPA, 1951 are relevant. Section 15 states as follows:

Notification for general election to a State Legislative Assembly. —(1) A general election shall be held for the purpose of constituting a new Legislative Assembly on the expiration of the duration of the existing Assembly or on its dissolution.

(2) For the said purpose, the Governor or Administrator, as the case may be shall by one or more notifications published in the Official Gazette of the State on such date or dates as may be recommended by the Election Commission, call upon all Assembly constituencies in the State to elect members in accordance with the provisions of this Act and of the rules and orders made thereunder:

Provided that where a general election is held otherwise than on the dissolution of the existing Legislative Assembly, no such notification shall be issued at any time earlier than six months prior to the date on which the duration of that Assembly would expire under the provisions of clause (1), of article 172 or under the provisions of section 5 of the Government of Union Territories Act, 1963 (20 of 1963), as the case may be.

Section 150 of the ROPA provides for by-polls to casual vacancies in State Legislative Assemblies. Section 151 provides for by-polls to casual vacancies in State Legislative Councils. Section 151A, which allegedly contains the “bar” precluding by-polls in the fag-end of a Legislative Assembly’s term actually states as follows:

“151A. Time limit for filling vacancies referred to in sections 147, 149, 150 and 151.— Notwithstanding anything contained in section 147, section 149, section 150 and section 151, a bye-election for filling any vacancy referred to in any of the said sections shall be held within a period of six months from the date of the occurrence of the vacancy:

Provided that nothing contained in this section shall apply if— (a) the remainder of the term of a member in relation to a vacancy is less than one year; or (b) the Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye-election within the said period.”

 

Section 151A is the only provision of the ROPA, 1951 cited by the Petitioner before the High Court to substantiate his contention regarding a bar.

Four points are crucial to note here.

Firstly, Article 164(2) of the Constitution provides for “collective responsibility” of the Council of Ministers to the “Legislative Assembly”. In contrast, Article 164(4) requires that a Minister shall be a member of the “Legislature” of the State. The two terms are not synonymous. In a bicameral state, the “Legislature” of the State will include the Legislative Council as well.

Secondly, membership of the State Legislature can be achieved in at least 4 ways. One can become: (i) a Governor; (ii) a member of the Legislative Assembly chosen by “direct elections from the territorial constituencies of the State (Art. 170(1)); (iii) an “elected” member of the Legislative Council (Arts 171 (3) (a)-(d)); (iv) a “nominated” Member of the Legislative Council (Arts 171 (3)(e)). Textually, Article 164(4) does not seem to preclude a Minister securing membership of the State Legislature through any of these modes, though membership by becoming a Governor can safely be ruled out on grounds of the absurdity of a person being both Governor and Minister.

Thirdly, a Legislative Assembly has a fixed term subject to dissolution. In contrast, the Legislative Council of a State is a permanent body that is not subject to dissolution, and usually subject to biennial elections. To speak of the last 6-months of the term of the Legislative Council is erroneous.

Fourthly, neither Section 15 nor Section 151A bar the conduct of by-polls to casual vacancies arising in the fag-end of the Legislative Assembly’s term. Section 15(2) proviso merely prohibits the Election Commission from notifying the general elections too early, i.e, even before six month prior to the expiry of the Assembly’s term. The main portion of Section 151A mandates a time limit of six-months to hold by-polls in relation to casual vacancies that may arise either in the Legislative Assembly or the Legislative Council. The proviso to the section only carves out an exception to the six-month time limit in the event that the remainder of the “term of a member” in relation to a vacancy is less than one year. It does not preclude a by-poll at that stage, it merely exempts the Election Commission from adhering to the six-month limit.

The Errors in Naniwadekar’s Analysis

From my analysis of the provisions of law above, the following points emerge in relation to the Naniwadekar’s argument.

Firstly, proposition (i) of his argument as stated above is incorrect. There is no constitutional requirement that a minister must become a “member of the Assembly” within six-months in order to continue as a Minister. Article 164(4) says nothing of the kind. It states that a minister must become a “member of the Legislature”. Naniwadekar fails to distinguish between the terms “Legislature of the State” and “Legislative Assembly of the State”. Both terms appear in Article 164 of the Constitution, the former in Article 164(4) and the latter in Article 164(2). He has not considered that Maharashtra has a Legislative Council that is a part of the State’s Legislature. It is a permanent House, with biennial elections, one-third of whose members retire approximately every two years. There always existed the possibility of by-polls to fill up casual vacancies due to resignation or death of other Council members that may arise in the Legislative Council within 6-months of RVP’s appointment as a Cabinet Minister.

If I am correct, proposition (i) of Naniwadekar’s argument must be corrected to state: “A person appointed as a minister in a State Government’s cabinet must become a member of the State’s Legislature within a period of 6-months. This is a facet of the underlying constitutional value of ministerial responsibility to the legislature contained in Article 164 of the Constitution.”

If proposition (i) is restated as above, proposition (ii) would still be valid. If this restatement is not made, however, proposition (ii) would manifestly become incorrect. Put simply, it would be wrong to assert that appointing a person as Minister amounts to constitutional fraud merely because he is incapable of being elected to the Legislative Assembly within six-months of his appointment. It may, however, be correct to argue that it would amount to constitutional fraud to appoint a person as Minister if he in incapable of becoming a member of the State Legislature.

Proposition (iii) is incorrect because, as explained above, the ROPA contains no bar on conduct of by-polls in the last six-months of a Legislative Assembly’s term.

Proposition (iv) is unsubstantiated by the text of Article 164(4). The plain text does not require “election” to the State Legislature to continue holding the post of a Minister. Even “nomination” to the Legislative Council would suffice as per the plain text. However, the Constituent Assembly’s debates and many decisions of the Supreme Court do seem to proceed on the assumption that a Minister would be an elected member of the Legislature.

The upshot is this. The Bombay High Court was correct in rejecting an argument that RVP’s appointment was a fraud on the constitution. To that limited extent, Naniwadekar’s analysis is suspect. Otherwise, his analysis is brilliant. If you haven’t read his posts, please do so immediately.

 

Judicial Supremacy amid the Breakdown of Constitutional Conventions: What the Karnataka Controversy Tells Us about our Parliamentary Democracy

It has long been observed that the smooth functioning of parliamentary democracy depends upon constitutional conventions. Put simply, a constitutional convention refers to a set of uncodified norms that are sanctified by a long tradition of unbroken practice. Political functionaries tend to adhere to these norms either out of a sense of public duty, or out of fear of paying a political cost by breaking them.

A written Constitution can reduce the extent to which governance relies upon conventions. It cannot, however, eliminate them. The range of human behaviour can never completely be captured in a text. In a written Constitution with judicial review, an extra wrinkle is added to the situation: it creates situations where courts may be asked to rule upon the scope and the content of these conventions, and – in exceptional circumstances – even asked to guarantee their enforcement. This will require the Court to enter the “political thicket” (see this recent article by Mukund Unny), along with all its attendant dangers.

All this is difficult enough. In India today, however, there is an even further layer of complexity. Constitutional conventions and judicial review depend upon one basic premise: that constitutional functionaries tasked with implementing constitutional conventions act in good faith. For example, parliamentary democracy vests substantial power in the office of the Speaker of the House. The Speaker of the House conventionally comes from the ruling party, but once they occupy the Chair, they are expected to shed their partisan affiliation, and impartially administer the rules of the House (including its conventions). The presumption of the Speaker’s impartiality is the underlying basis for another very important constitutional convention: that Courts shall not be called upon to adjudicate disputes relating to what goes on in Parliament. The Parliament has its own adjudicating authority – the Speaker – and the doctrine of the separation of powers requires Courts to defer absolutely to how the Speaker manages the affairs of the House.

However, once it becomes clear – as it arguably has become in India – that Speakers repeatedly and blatantly act according to partisan motives (the conduct of the last Lok Sabha speaker in certifying money bills and refusing to hold votes of confidence is a case in point), a judicialisation of the Speaker’s conduct becomes inevitable. If opposition parties have good reason to believe that the game in the House is rigged, they have little choice but to go to Court. And the Court is then faced with an impossible situation: constitutional conventions require it to stay out of Parliament, but at the same time, staying out would result in another set of conventions being violated with impunity. There is no clean – or good – answer in such a situation.

What is happening in Karnataka represents a classic example of the breakdown of constitutional conventions, and its knock-on effect upon the judiciary. Recall that the ruling Congress-JDS combine in Karnataka has a thin majority. Recently, a number of MLAs of the ruling combine offered their resignations to the Speaker. The result of this would be to deprive the ruling combine of its majority, and offer the chance to the opposition BJP to stake a claim to form the government. The MLAs have argued that they are resigning of their own free will, while the Congress-JDS argues that they have been bribed and threatened by the BJP to do so.

At this point, Article 190 of the Constitution comes into play. Article 190 provides that MLA resignations are to be offered to the Speaker. It also allows the Speaker the discretion to reject the resignations if, in her view, they are not “voluntary or genuine.” Article 190, therefore, presumes that legislators act in good faith when resigning, and makes the Speaker the judge of that. What Article 190 does not do – indeed, what it cannot do – is to guarantee that the Speaker herself will act in good faith (that presumption is a constitutional convention).

Before the Supreme Court, the legislators have argued that the Speaker is deliberately delaying deciding on the resignation letters, and therefore violating his duty to act in good faith. They have asked the Court to direct the Speaker to decide upon the resignations in a “time bound manner” (notice that the idea of a judicial authority “directing” the Speaker of the House to do anything would be unheard of in most parliamentary democracies in the general course of things, and indeed, that is what the Speaker himself effectively said after the Supreme Court passed an interim order). The legislators have also argued that if the Speaker is acting out of partisan motives: basically, he is waiting until the ruling combine issues a three-line whip to its party members, at which point, the anti-defection Tenth Schedule will kick in. The moment the rebel legislators vote against the whip, their resignations will become infructuous, because disqualification will kick in.

As mentioned above, this puts the Court – which will hand down its order in the case tomorrow – in an impossible situation. The existence of partisan Speakers is an indisputable fact (indeed, there is already a pending petition before a Constitution Bench on the issue of Speakers deliberately sitting on disqualification decisions in order to allow ruling parties to maintain their majority). But the existence of horse-trading and defections in order to secure ministerial berths or for other similar reasons, is equally indisputable. But while both these facts are indisputable, for obvious reasons, and to avoid a complete breakdown of governance, neither of these can be acknowledged in the open, and in Court. The Court, thus, has to pretend that constitutional functionaries act in good faith, while – in specific cases – carve out remedies that are meant to operate in a world in which they do not.

What is the Court to do in a case like this? One – tempting – solution that it must avoid is full-scale intervention. That will swiftly drag the Court into the political weeds, and will make accusations of partisanship inevitable. Already, the Court has been placed in a situation where whatever it does will have the direct effect of favouring one set of political parties over the other. That is a very dangerous position for a constitutional court to find itself in.

The contours of a solution, however, might be visible from the Court’s own precedent: in particular, what it did in Karnataka last year, when the controversy was about government formation. In that case, the tables were somewhat reversed: the issue concerned the actions of the Governor in allowing the BJP to form the government despite the Congress-JDS’ claims to having a majority, and then allowing the Chief Minister fourteen days to prove his majority (it was alleged that this inordinately long time was given to enable the BJP to use its superior financial power to buy out opposition MLAs). The Court refused a full-scale intervention (i.e., setting aside the Governor’s decision), but it did reduce the time given to the Chief Minister to 48 hours, by ordering a videographed floor test. The BJP was unable to prove its majority, and ultimately, the Congress-JDS combine came to power.

The Supreme Court thus accomplished two things: first, it simply made it more difficult for the parties involved to act in bad faith, by reducing the time period to 48 hours; and secondly, its solution was not judicial (setting aside or upholding the governor’s action as valid), but parliamentary – a floor test. The blueprint, therefore, seems to be this: the task of the Court in cases like these is to fashion a remedy where the solution to the crisis is found through the existing democratic processes, but where it becomes far more difficult for constitutional functionaries to subvert the process and break conventions by acting in bad faith. In the present controversy, that might be accomplished by the following solution: the Court asks the Speaker to decide upon the resignations within a reasonable time (but enough time for the Speaker to make an enquiry as envisaged by Article 190), but makes it clear that the Speaker’s decision will be subject to judicial review under the Bommai standard (relevance/existence of material and an absence of mala fides). If it is later found that the Speaker acted wrongly, his decision on the resignations will be set aside, and – as happened in the Arunachal Pradesh case – status quo ante as of today will be restored, with the resignations now being treated as valid. In the meantime, the other democratic processes (the trust vote, the operation of the anti-defection law etc.) can go on as per their own logic.

This solution, it is submitted, would respect the constitutional authority given to the Office of the Speaker, while also subjecting him to judicial oversight in case he decides to act in bad faith. At the same time, it would allow the Speaker to form an assessment of whether the rebel legislators are acting in good faith or not, with the knowledge that his decision can – and will – be challenged. And the Court is saved from wading into murky political disputes (for now) in a way that will open it up to accusations of partisan bias.

This is, of course, an imperfect solution; and there may be other potential solutions that may strike the balance better (should the Court insist that the decision on resignations precede the trust vote/three line whip? Would that involve a direction to delay the state budget? Etc.). But I want to make one final point: the very fact that we are here today discussing the range of alternatives open to the Court demonstrates a disturbing development. The repeated bad faith actions and breaches of constitutional conventions by political functionaries have created a gaping, open space that is being filled by judicial supremacy. This has been going on for a while now: Speakers’ partisan decisions on certifying money bills has made court challenges inevitable; Governors’ partisanship and horse-trading has made judicial interventions into government formation inevitable; and so on. The beginning of all this, of course, was the repeated and unprincipled imposition of President’s Rule, which first dragged the Court into such questions.

But dragging the Court into this domain presents a deep threat to judicial independence: a Court whose decisions will regularly have such huge political ramifications presents a ripe and tempting target for capture, to unscrupulous political parties. It is for this reason that, in every case of this sort, the Court must be profoundly careful about what it is doing, and what the consequences of that are – because, ironic as it may sound, judicial supremacy in the political process is the shortest road to a compromised judiciary.

(Postscript: An additional point – and an additional way in which the Supreme Court, in particular, can avoid being tainted by a partisan brush – is the importance of sticking to procedural rules in cases like this. It is unclear how an Article 32 petition is maintainable in the present case – and even more unclear why the Supreme Court did not ask the parties to approach the Karnataka High Court as the jurisdictional forum (recall that a similar case from Tamil Nadu, involving the AIADMK was argued before the Madras High Court). This becomes particularly pertinent because the present Court has indeed sent constitutional cases back to the High Courts recently (the challenge to the Aadhaar ordinance being a good example). Ensuring that such cases come to it through proper channels will help the Supreme Court – as an institution – to avoid one particular Article 32-shaped pitfall. Of course, that issue is now infructuous, in the present case. I am grateful to Suhrith Parthasarathy for having pointed this out to me.)

Guest Post: A Pulpit or a Courtroom – Exclusion of Jurisdiction and the decision in Girish Kumar Suneja

(Previously on this blog, we have covered the serious constitutional issues arising out of the exclusion of the jurisdiction of the High Court in the ongoing “Coal Block” cases – see here and here. Yesterday, a three-judge bench of the Supreme Court upheld this exclusion. In a guest post, Abhinav Sekhri analyses the judgment. Cross-posted from the Proof Of Guilt blog with permission.)

On 13 July 2017, a three-judges bench of the Supreme Court dismissed the petitions clubbed together with Girish Kumar Suneja v. CBI [SLP (Crl.) 9503 of 2016, hereafter Suneja]. The preliminary issue raised in these petitions was a challenge to the Supreme Court’s order dated 25.07.2014, whereby aggrieved persons were confined to only approaching the Supreme Court with a “prayer for stay or impeding the progress in the investigation / trial“, and jurisdiction of High Courts was thus excluded. This Blog, on an earlier occasion, had considered the Petitioners’ case and argued that the impugned order of 25.07.2014 was bad, and readers may refer to that post for a recap. Here, I argue that the decision in Suneja does not offer any convincing justification for why the Court disagreed.

Excluding Jurisdiction: Missing the Forest for the Trees

In Suneja, the Court takes up three key arguments assailing the exclusion of jurisdiction caused by the order of 25.07.2014 and its effects – (1) Curtailment of the High Court’s power to entertain petitions under Sections 397 and 482 Cr.P.C; (2) Exclusion of writ jurisdiction under Articles 226 and 227 of the Constitution; and (3) A violation of Article 14 caused by treating the ‘coal-block allocation scam’ cases under this special procedure. On all three counts, it disagreed with the Petitioners’ claims. On closer examination, one can see how the Court does so not by engaging with the argument, but by avoiding it altogether.

Sections 397 and 482 Cr.P.C.

On the first issue of curtailing statutory powers of entertaining revision petitions [Section 397 Cr.P.C.] and quashing petitions [Section 482 Cr.P.C.], the Court reminds us that these are not rights, such as appeals, but entitlements. A High Court may refuse to entertain these petitions. This characterisation was never in doubt – the issue, was whether it was unconstitutional to deprive the High Court of even this abilityto entertain such petitions. For this, the Court turns to the legislative history of Section 397(2) Cr.P.C. [which prevents revision petitions for challenging interlocutory orders] to elaborate that the scope of revision jurisdiction was restricted to prevent delay. But the Court does not conclude that the present petitions fall within this category, which renders these observations obiter. Perhaps proceeding with that assumption, the Court moves on to consider the scope of inherent jurisdiction under Section 482 Cr.P.C. Again, it talks of a ‘rarest of rare’ level for quashing petitions being entertained, implying that the issue must be very serious to warrant intervention. Still, no answers are offered to explain what warrants an exclusion of this jurisdiction altogether. One may then assume that the Court implies the exclusion was illegal, which is why it considers the tests for considering whether the present cases could have triggered an exercise of jurisdiction under these provisions.

In doing so, the Court makes notable errors in law. For instance, in considering the interplay between revision and quashing the Court notes that “it is quite clear that the prohibition in Section 397 Cr.P.C. [of not proceeding against interlocutory orders] will govern Section 482 Cr.P.C. We endorse this view.” This means that for Court, Section 397 applies to all final and intermediate orders, while Section 482 applies to interlocutory orders. Such a reading ignores the notwithstanding that comes at the start of Section 482, which has led the Supreme Court to conclude on several occasions that the scope of Section 482 remains untrammelled by the terms of Section 397 – most recently clarified by another bench of three judges in Prabhu Chawla [Crl. Appeal No. 844 of 2016, decided on 05.09.2016]. Remember, all this is irrelevant, because the present cases actually involved a question of why recourse to this jurisdiction could be barred. The Court only engages with that issue in its terse refusal to consider the decision in Antulay [(1988) 2 SCC 602]Antulay was a decision by seven judges, but it is distinguished because the facts were different and it involved a trial before the High Court itself, and the impugned provision therein – Section 9 of the Criminal Law Amendment Act 1952 – in turn used the 1898 Cr.P.C. The facts, though different, led the seven judges in Antulay to consider why any court’s jurisdiction could not be ousted, which would nonetheless be relevant here. That the bench in Suneja even raises the second point about the Cr.P.C. is simply shocking, since the allegations in Antulay concerned a period after 1973 and by which time the 1952 Act was being read with the new Cr.P.C. [as required by Section 8 of the General Clauses Act 1897]. 

We are then left without any answers for the actual issue. For some reason the Court continues to miss the forest for the trees, and refuses to tell us why recourse to revision and quashing was made impermissible in the present batch of cases. It painfully continues to develop on the obiter by considering whether the batch of petitions met the standard of seriousness for interference under Section 482 Cr.P.C., and concludes that “challenge to orders of this non-substantive nature that can be agitated in a regular appeal is nothing but an abuse of the process of the Court.” The observation is entirely misplaced. The Petitioners raised issues of law, arguing that certain findings suffer from impropriety – express grounds for interference under Section 397. But if recourse to that provision is barred, then what? Should recourse to Section 482 still remain impermissible? The Court ignores the peculiarity in the present set of facts, which have come about by its own hand.

Article 226 and 227 of the Constitution

The conclusions on Article 226 and 227 also proceed on an assumption that the issues raised in the batch of petitions are ‘trifling’ and therefore would not warrant interference under writ jurisdiction. With due apologies for sounding repetitive, the bench again fails to explain how this jurisdiction can be ousted entirely. In fact, here, the bench expressly says “there can be no doubt that the jurisdiction of a High Court under Articles 226 and 227 cannot be curtailed, yet extraordinary situations may arise where it may be advisable for a High Court to decline to interfere.” This volte-face is completed at the end of this part of the decision, where the bench says that “there is nothing extraordinary if the High Court ought not to interfere and leave it to this Court to take a decision in the matter in larger public interest“. But this is not what has happened in the present case! In unequivocal terms, the High Court was barred from entertaining petitions. The Supreme Court is now attempting to portray the scenario as a willing refusal by High Court’s to entertain cases, when it is actually an exclusion of jurisdiction by the Supreme Court itself. It is fair to say that nobody is fooled.

Article 14 and Judicial Legislation

The argument under Article 14 in Suneja was twofold – the ‘coal block’ cases do not constitute an identifiable class, and even if they do this differentiation must be created through statute. The Court, expectedly, whips up the rhetoric to justify why the cases are an identifiable class in themselves. But the decision does not engage at all with the more pressing issue of how such classes can be created. It says that “the order passed by this Court does not amount to legislation in the classical mould but according special treatment to a class of cases for good and clear reason and in larger public interest as well as in the interest of the accused.” There are obvious legal issues in judicially created classes for perpetrating discrimination. Judicial orders are imprecise, are creations of un-elected persons thus unrepresentative of the democratic process, and finally cannot be subjected to a challenge under Part III leaving no recourse for those aggrieved. The Supreme Court attempts to conveniently sidestep all of this by resorting to verbiage. Since nobody really knows what the ‘classical mould’ of legislation is, this is doublespeak for “the Supreme Court can do whatever it wants” – a highlight of the Court’s White-Knight tendency in this arena of economic offences [previously discussed here].

Public Interest and the Rights of Accused Persons

There are three other heads of argument that are considered in Suneja – (1) violation of Article 21 by the procedure created by the impugned order, which is not established by ‘law’; (2) illegal use of Article 142 of the Constitution to curtail both Statutory and Fundamental Rights of the Petitioners, and; (3) Illegally preventing a stay of proceedings. Rather than consider each of these in turn, it is easier to attack the common thread underlying these strands – the idea that public interest is a satisfactory justification to proscribe rights of accused persons. With great vigour the bench notes that “it is now time for all of us including courts to balance the right of an accused person vis-a-vis the rights and interests of individual victims of a crime and society. Very often, public interest is lost sight of while dealing with an accused person and the rights of accused persons are given far greater importance than societal interests and more often than not greater importance than the rights of individual victims. … It is not as if the appellants have been denuded of their rights. It is only that their rights have been placed in the proper perspective and they have been enabled to exercise their rights before another forum. 

While the Court merely makes a cursory reference to Shahid Balwa [(2014) 2 SCC 687], the same issue reared its head on that occasion. Here, again, it uses the arguments of the Petitioners against them in observing that in pressing for a stay of proceedings it seems that the conclusion of the trial is not an objective for them. These are serious cases of corruption, the Court notes, and so a stay order cannot be given for the asking. Such logic is fit for the pulpit, not for the Supreme Court. At the most basic level, the bench ignores the practical realities that plague the judiciary. The present petitions were filed sometime around winter 2016, and have been decided in July 2017. For whatever it is worth, the Petitioners did allege severe illegalities in the trial, and by refusing to consider the issue of stay at the earliest the Court allowed a potentially illegal trial to continue for six months. Within that time most of the evidence has been completed in two sets of petitions [Y. Harish Chandra Prasad v. CBI (Crl. Appeal No. 1145 of 2017) and P. Trivikrama Prasad v. CBI (Crl. Appeal No. 1153-54 of 2017]. How is that fair, and how is that a correct utilisation of judicial time? At a deeper level, the Court is effectively denouncing a class of persons from seeking an enforcement of their fundamental rights for no better reason in law than because it thinks it is against public interest. It does not realise that such rhetoric ultimately trickles down to trial courts, where an accused is then painted as guilty simply for choosing to remain silent [a fundamental right] and is thus subjected to lengthy pre-trial detention.

Conclusion

On all counts, Suneja is a bad decision. We get no further answers to why is it fair to exclude the High Court as a forum for jurisdiction beyond the bench re-iterating that this is in public interest. For this, it could have merely expressed agreement with the previous decision of Shahid Balwa and saved time. When the bench does try to engage with the legal issues, it fails to grasp what was at stake and flounders. Ultimately, the decision may result only in compounding uncertainty by using previously unheard of tests and expressions to explain what is, essentially, another instance of abusing the vast discretion vested with the unelected judges of our Supreme Court.

 

(Disclaimer: The Author was engaged as a part of the team arguing for the Petitioners in Crl. Appeal No. 1145 of 2017)

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

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

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

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

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

Introduction

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

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

What Parliaments Do 

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

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

What Courts Do 

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

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

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

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

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

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

Thinking Through Issues of Design 

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

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

Points of Disagreement

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

(a) Koushal vs Naz

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

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

(b) Response Time

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

Conclusion

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

Balanced Constitutionalism is available to purchase here.

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