Guest Post: The Illegality of the Khargone Demolitions

[This is a guest post by M. Jannani.]

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Recently, it was reported that homes and shops were allegedly demolished in Khargone, Madhya Pradesh following the Ram Navami violence, with neither a reasonable notice nor hearing by the district administration. Soon after, the district collector admitted that the demolitions were carried out within 5 kilometers from where the alleged Ram Navami violence took place “in order to teacher rioters a lesson”. Some news reports that reported on this demolitions have alleged that it has disparately affected Muslims in the particular region.  However, the SDO (Revenue) through an RTI reply mentioned that such action was taken against illegal encroachments under the MP Bhu-Rajasva Sanhita 1959 and section 248 of the amended act, 2018.

In Puttaswamy v. Union of India, the opinion authored by Justice Chandrachud laid down the test of proportionality to be followed in the case a state action invades the right to life or personal liberty. The following is the relevant extract of the judgment:

“An invasion of life or personal liberty must meet the threefold requirement of legality, which postulates the existence of law; need, defined in terms of a legitimate State aim; and proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.“ (emphasis supplied)

In this piece, I aim to argue that the Khargone demolitions violate the above mentioned test of proportionality. In the first part of the essay, I justify the use of the proportionality test in the present case. I will then proceed to explain how, in my limited opinion, the different prongs of the proportionality test are violated by the Khargone demolitions.

An infringement of the right to life

In the previous post on this blog, Rishika Sahgal had explained in detail about the procedural safeguards and requirements of adequate notice, reasonable opportunity to be heard and access to rehabilitation facilities that have been interpreted into article 21 by various High Courts and the Supreme Court. The post explained how the judgment in Olga Tellis specifically affirmed that the right to life under article 21 of the Constitution encompassed the right to housing and livelihood, which included the right to hearing and the provision of a notice in the case of evictions. It is also made a very pertinent observation about how the procedural requirements pertaining to demolitions that were laid down in Sudama Singh – notice, hearing, meaningful engagement and rehabilitation – have been crytallized by the Supreme Court through subsequent decisions. Such requirements, the essay argued, have to be met by authorities across the country if they seek to initiate demolitions.

In the case of Khargone, it was alleged by certain persons affected by the demolition that they were neither provided a proper notice nor a reasonable opportunity of being heard before their property was demolished. Thereby, it flies in the face of the precedents discussed above as the demolitions infringe the right to life guaranteed under article 21 of the Constitution of India by violating procedural safeguards. Hence, it justifies the use of the test laid down in Puttaswamy.

Demolitions and section 248 of the Madhya Pradesh Land Revenue Code, 1956

As mentioned earlier, the authorities have justified the demolitions on the ground that the structures violate section 248 of the MP Land Revenue Code. Even though the provision empowers the tahsildar to “summarily eject” in the case of encroachment, it was held in various decisions that such powers contained in the provision are necessarily subject to a reasonable opportunity of being heard offered to the persons against whom the adverse action will be taken against. In Arun Bharti v. Madhya Pradesh, the Madhya Pradesh High Court looked into unauthorized occupations and section 248 of the Code. The court held that section 248 of the Code is a penal provision which inherently contained the “necessity of compliance of the principle of natural justice of audi alteram partem by affording reasonable opportunity of hearing”.

In Turabali v. State of Madhya Pradesh, the Madhya Pradesh HC looked into writ petitions challenging notices issued under section 248 of the Code. In this case, a time period of 3 days was given by the authorities for the removal of an encroachment. The High Court while stating that the time period provided for removal was “absolutely insufficient” also held that:

“Even if they were encroachers, then, it was for the competent authority to give them proper notice, applying proper law and providing them a reasonable time to file reply and also an opportunity of hearing. From the notices it appears that this was not intended.” (Emphasis mine)

It can therefore be observed that section 248 of code inherently allows for a reasonable opportunity of hearing and notice to be provided to persons against whom the coercive action is taken. However, such an opportunity was alleged to have not been provided to the persons against whom the coercive action was taken in the present case. Thereby, the Khargone demolitions are not backed by legality.

Collective punishment

Various ministers of the state cabinet and the district collector justified the demolitions on the ground that it was done in response to the violence that endured during the Ram Navami procession on 10^th of April. But later, the action was justified on the ground that the demolitions were done against illegal encroachment and hence the state proceeded under section 248 of the code. However, it is to be noted (as had been discussed above) that the demolitions were alleged to have been done without adherence to natural justice principles. The state action in this case also suffers from over-inclusion since certain properties that did not fall within the category of illegal encroachments were also demolished and persons who owned such property were not afforded an opportunity to present their case just because such the properties were located in a particular area.  

In the case of Chandni Chowk Sarv Vyapar Mandal (Regd.) v. Municipal Corporation of Delhi , the Delhi High Court observed that all shopkeepers and allottees of chabutras could not be characterized as trespassers or encroachers. It also observed that when the state undertakes coercive action which have an effect of causing adverse consequences to persons, there exists a duty for the state to apply its mind with respect to the facts of the particular case. On the aspect of mass action against a class of persons the court held that:

“It is not enough to take precipitate action against a class of persons, with the allegation that all of them are guilty, and tainted. Even if mass action is required, principles of fairness demand that the authority apply its mind to the materials regarding individual cases.” (emphasis supplied)

Thereby, when demolitions are initiated against the properties of a class of persons, it can be observed that by merely asserting the allegation that they are guilty or tainted will not justify the “need” for such an action to be taken by the state.

Means employed is in excess of object that is sought to be achieved

In the context of mass action against a class of persons in violation of the principles of fairness, it is important to note that the Delhi High Court in Chandni Chowk Sarv Vyapar Mandal (Regd.) v. Municipal Corporation of Delhi  referred to the Supreme Court decision in UOI v. Rajesh. The Apex Court in Rajesh held that an adverse action which has an effect of unfairly punishing innocent persons and overlooks contextual considerations, would amount to “throwing to the winds the principle of proportionality in going farther than what was strictly and reasonably to meet the situation”. The Supreme Court further mentioned that such action which is excessive and not in keeping with the gravity of the offence could have the consequence of “virtually rendering such a decision to be irrational”.

Thereby, the means employed in the case of the Khargone demolitions i.e., mass action against persons with disregard to procedural safeguards and factual considerations is in excess of the object the authorities sought to achieve.

For the above mentioned reasons, in my opinion, the Khargone demolitions violate the test of proportionality.

Guest Post: The Hijab Case Through the Lens of Proportionality

[This is a guest post by Shreyas Alevoor.]

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Previously on this blog, a case was made for the application of the disparate test to challenge the ban on Hijab. However, the indirect discrimination test ought to be applied with caution, and with awareness of the fact that Indian jurisprudence on indirect discrimination is still nascent. In Part I of this piece, I argue that arguments founded on indirect discrimination test may not be entirely effective. In Part II, I argue that the ban on Hijab, being a violation of Art. 19(1)(a) is better off being challenged on grounds of proportionality.

Let us return to the Karnataka government’s directive. The directive states that “clothes which disturb equality, integrity, and public law and order should not be worn”, and cites the Supreme Court’s judgement in Asha Ranjan vs. State as justification for this. The invocation of Asha Ranjan is problematic for several reasons, one of them being that its factual matrix makes it irrelevant to this controversy. But more on that later.

Indirect Discrimination and its Discontents

In the landmark US case of Griggs vs. Duke Power Company, disparate impact was said to occur when a policy, which is neutral at the face of it:

1. Puts members of a protected group at a disproportionate disadvantage compared with members of a cognate group, and
2. Fails to satisfy a means-end justification test.

The two-factor test for indirect discrimination that the Canadian Supreme Court developed in Fraser vs. Canada, also recognized by the Indian Supreme Court, is as follows:

1. Whether the impugned rule disproportionately affects a particular group;
2. Whether the law has the effect of reinforcing, perpetuating, and exacerbating a disadvantage (social, political, and economic exclusion, psychological and physical harms).  

I submit that, under this test, the government order [“G.O.”] does not have the effect of indirectly discriminating against a particular group. The first prong of both the Griggs and Fraser tests requires that the protected group face a disproportionate impact compared to a comparator/cognate group. The evidentiary standard used in the United Kingdom to determine the disproportionality is that of the deliberately vague ‘particular disadvantage’. This is done to ensure that the parties or the courts do not get caught up in an empirical exercise, but rather employ an intuitive assessment of disparate impacts. The Court in Fraser similarly notes that the “disproportionate impact on the members will be apparent and immediate”, and will “show such strong association with the [group’s] traits.”

The State government’s directive requires the school to act against anyone who violates the dress code of the institution – which applies not only to Hijabs, but also any other articles of clothing with religious connotations. The disadvantage suffered is not ‘particular’, but universal. Indeed, Hindu boys wearing saffron scarves were barred from entering the classroom. Hence, the impacts of the measure does not show an association with the protected group’s traits.

Note that indirect discrimination is said to occur to when a measure that appears to uphold equality in treatment results in an inequality of outcomes, due to the systemic nature of discrimination. One can understand this with the example provided in Jones vs. Chief Adjudication Officer: in a large children’s party, the host announces that presents will be divided equally between all the girls and boys. Later, he announces that only the girls shall be given presents, and the boys will have none. After a while, the host discovers that the presents have been misplaced and thus nobody will receive a present. While there is discrimination in the first case, there is none in the second case as “the disadvantage to girls is not mirrored by any corresponding advantage to boys”. 

An Alternative Argument for Indirect Discrimination

How should the Court determine if a ban on Hijab perpetuates a disadvantage under the second prong of the Fraser test? It might have to investigate whether the Hijab is essential to the Muslim community – at which point it may again be drawn into the minefield of the Essential Religious Practice (ERP) test as it currently stands. Notwithstanding the principled arguments against the test, there are also practical difficulties in proving Hijab as an ERP.

Before I conclude this Part, I must recognize that a claim for indirect discrimination could exist, but not in the way previously discussed on this blog. In Fraser, the Court had noted that indirect discrimination not only results from headwinds against protected groups built into facially neutral laws, but could also arise from an “absence of accommodation for members of protected groups”. The refusal to accommodate Hijab may be construed as an absence of accommodation.

One can find a tiny sliver of the accommodation argument in the Delhi High Court’s judgement in Inspector (Mahila) Ravina vs. Union of India. Here, a female CRPF officer was denied promotion because she was unable to attend a pre-promotion course in 2011 due to her being pregnant at the time, even though she did complete it successfully in 2012. S. Ravindra Bhat, J. (as he was then), held that the State could not make her choose between the pregnancy and a promotion. It was held that such a choice, while made under a “seemingly neutral reason of inability of employee” would be discriminatory. Here, the dispute results not from built-in headwinds, but from not making an accommodation for pregnancies. However, the difficulty with the accommodation argument is that the Supreme Court’s nascent indirect discrimination jurisprudence as developed in Navtej Johar and Lt. Co. Nitisha does not explicitly recognize claims of accommodation as yet.

Proportionality Challenge

In a previous blog post, Hari Kartik makes an excellent argument for clothes as symbolic speech. I further argue that the Karnataka government’s directive and its grounds for the ban (equality, integrity, and public law and order) fail on proportionality grounds in so far as it violates Art. 19(1)(a).  

A proportionality test at its simplest consists of the following four prongs: Legitimate Aim, Rational Nexus, Necessity, and Balancing.

Equality as a Justification

It is difficult to understand how religious expression can undermine equality if the right to such expression is available to people of all religions. In any case, ‘equality’ (as cited in the directive) is not a ground for restricting free speech and expression under Art. 19. Neither is it a “legitimate interest of sufficient importance” in this case, for reasons I will explain shortly.

Tests of indirect discrimination also prescribe proportionality. The measure should “correspond to a real need and the means must be appropriate” to achieve the stated objectives, as stated in Bilka Kaufhaus GmbH vs. Weber von Harz. A reasonable accommodation of religious items of clothing does not result in inequality by abolishing uniforms. In this case, the demand is for a Hijab over the uniform. In Navneethum Pillay, the Court rightly pointed out that religious and cultural displays in public “[are not] a parade of horribles, but a pageant of diversity”.

Integrity and Public Law and Order

Whatever the possible arguments for a short-term prohibition in light of a sensitive situation, it is difficult to justify the ban as a long-term measure as it prohibits potentially every form of religious expression. There exists no rational nexus between such a ban and protecting law and order. The ban is not only limited to the Hijab, but also other articles of clothing of religious significance. In MRF Ltd. vs. Inspector Kerala Government, the Court held in the context of reasonableness that that the restriction imposed by a measure should not be “arbitrary or of an excessive nature so as to go beyond the requirement of the interest of the general public.” There exist better alternatives to an outright ban – that of making accommodations on a case-by-case basis after careful scrutiny.

The final Balancing prong, as Mark Tushnet notes, requires a determination of “whether the government’s goals are important enough and are advanced enough by the statute so as to justify the actual impairment of liberty”. The ‘equality’ objective of the directive fails here as it is not important enough. While ‘integrity and law and order’ is an important objective, a ban does not fulfill it.

The directive by invoking Asha Ranjan also tries to fulfill the Balancing requirement (albeit unintentionally) but doesn’t really succeed at it:

Larger public interest prevails upon the individual interest not by negating individual rights but by upholding larger interests and to ensure relationship between the institution and the students.

Let us compare the following formulations:

Proportionality: Government’s goals and measures taken should be important enough to justify the impairment of liberty.

Directive: Larger public interest (i.e., government goals of law and order) and measures taken (i.e., the ban) are important to ensure relationship between the institution and the students.

This is the first problem: for reasons explained above, the government goals and the measure taken do not justify the impairment of liberty, but only justify a “relationship between the institution and students”. What this relationship is, no one really knows. 

The other problem is that this attempt at a balancing act draws a false dichotomy between a larger State interest (education, and public order) on the one hand, and individual rights (freedom of speech and expression, and freedom of faith and conscience) on the other. It claims that it does not wish to “negate individual rights”, but that is precisely the effect of the ban – a veritable Tacitus’ desert.  In Serif vs. Greece, the European Court of Human Rights held that the role of the State is to “not remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other”. This was relied upon in Sarika Watkins-Singh vs. Aberdare Girls’ High School to hold that schools had a ‘very important obligation’ to ensure that its students are tolerant as to the beliefs of other people, and respect other people’s religious wishes.

For these reasons, the G.O. – and the hijab fan – fail the test of proportionality.

Two New Judgments on Proportionality from the Supreme Court

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

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State of Tamil Nadu v National South Indian River Interlinking Agriculturist Association (November 23), and Akshay N Patel v Reserve Bank of India (December 6) are two recent judgments of the Supreme Court that have applied the doctrine of proportionality to adjudicate constitutional challenges to State action.

Proportionality Within Article 14

State of TN v NSIRIAN involved a challenge to the Tamil Nadu government’s granting a loan waiver to “small and marginal farmers” (i.e., farmers holding five acres of land or less). The scheme was challenged on the basis of arbitrariness and under-inclusiveness, for failing to grant loan waivers to farmers who held more than five acres of land.

Relying upon the previous judgment in Subramaniam Balaji v State of TN, the Supreme Court began by noting that the principle of equal protection could not be applied to instances of State largesse (as opposed to the State imposing a burden upon an individual or group) (paragraph 13). It is submitted that this proposition may require reconsideration. There is no principled distinction between “largesse” and “burden”, when it comes to the equal protection of law: the State singling out an individual or a group for a benefit over the claims of other groups raises equality concerns, much like the State singling out an individual or a group for a penalty does: in fact, given that the former case involves the distribution of scarce resources, there are good reasons why such policies should be subjected to Article 14. Indeed, in paragraph 17, the Court itself noted that one of the justifications offered up by the Tamil Nadu government was the need to provide maximum benefits with minimum funds (and also noted how this, in itself, could not be an answer to an Article 14 challenge).

In any event, the Court did not dwell too long on this point, and went to substantively review the policy. Noting the State’s justifications that the purpose of the policy was the uplift of poorer and more vulnerable farmers, the Court observed that would have to be put “to the test of reason through the submission of cogent material.” (paragraph 21) Here, data provided by the State showed that small and marginal farmers had a significant capital deficit, were resource deficient, and needed access to larger holdings to avail of land, water, and so on (paragraph 22 – 25). For this reason, they were more vulnerable to crises (such as the impact of climate shocks), and were also economically more vulnerable, as a class (paragraph 25). The government scheme, therefore, was best understood as a form of constitutionally justified affirmative action.

It remained, of course, to deal with the argument from under-inclusiveness and over-inclusiveness: that is, the bright line of five acres would not map on precisely to the markers of precarity and vulnerability identified above. In his judgment, Chandrachud J identified the question to be primarily a “means-ends problem”, which could be adequately addressed by deploying the two-pronged test (intelligible differentia and rational nexus). Chandrachud J then went on to note that the degree of deference to under-inclusivity or over-inclusivity in a statute (i.e., how much leeway the Court would accord before striking down a statute for being over or under-inclusive) would depend upon the “relationship prong (‘rational nexus or proportional’) of the test.” (paragraph 31) In this case, the classification in question was not based on either an innate or core trait of an individual, or one of the prohibited non-discrimination grounds under Article 15(1) – and consequently, the correct test to apply was that of rational nexus. This, the Court held, had been adequately satisfied by the State through data.

While the decision is undoubtedly correct, it is respectfully submitted that the Court’s observation that classificatory arbitrariness is subjected to the two-pronged test while non-classificatory arbitrariness is subjected to the proportionality test, may need reconsideration. Indeed, the Court itself stated the correct position later in the judgment, when it held that where under or over-inclusiveness was predicated upon either a core individual trait or upon one of the grounds set out in Article 15 the more rigorous proportionality test would apply. It is submitted that the two-tiered standard of review within Article 14 – that is, rational nexus (lower scrutiny) and proportionality (higher scrutiny) is not dependent on whether the policy is classificatory or non-classificatory, but simply on whether the unequal or arbitrary treatment being complained of can be traced back to a core individual trait (and which, it may be added, has been a site of structural or historical disadvantage – not every core trait, such as eye colour or height, for example, should be subjected to proportionality review). And this – as pointed out above – was ultimately affirmed by the Court, in the operative part of its judgment.

The States of the Proportionality Test

Akshay N Patel v Reserve Ban of India was a slightly more complicated case, that involved a challenge to Clause 2(iii) of the Reserved Guidelines on Merchanting Trade Transactions (MTTs), issued by the Reserve Bank of India. Put simply, the impugned guidelines states that MTTs would be allowed only with respect to those goods that were permitted for export and import under the Foreign Trade Policy of the Government of India. An MTT, for our purposes, is a transaction where an Indian firm acts as an intermediary between two foreign firms, without the goods in question actually being imported into, or exported out of, Indian territory (in other words, the only link with India is that the intermediary firm is Indian).

The challenge arose when, during the Covid-19 pandemic, the Indian government banned the export of PPE products, in order to ensure that the domestic stock was not depleted. Accordingly, MTTs in PPE were also banned, following Clause 2(iii). The appellant firm wanted to engage in an MTT involving an American buyer and a Chinese seller, but found itself stymied. The primary ground of challenge was that under an MTT, there was no actual export of the good from India, and consequently, the question of depleting Indian stock of PPE did not arise.

The Court noted that as the question involved a restriction on the Article 19(1)(g) freedom of trade, following the Modern Dental judgment, the proportionality standard would apply (paragraph 15). The Court then went on to note that the case also involved challenges on grounds of Article 14 and 21. However, since the substance of the challenges was essentially the same, they could be collectively considered (an “integrated” approach) (paragraph 27) (as the Court noted, this would not necessarily be true in all cases, where for example, the nature of the violation might be different, or where the limitations affect the rights in different ways).

Chandrachud J then went on to apply the four-pronged proportionality test. First, he noted that the aim of the ban was to ensure adequate domestic supplies of PPE during a global health pandemic. This was undoubtedly a legitimate State aim (paragraph 29).

Secondly, he noted that under international trade policy, goods under MTTs were formally regarded as “negative and positive imports” from the territory of the intermediary country (paragraph 42), as the intermediary was considered the owner while the goods were in transit (paragraph 43). Consequently, the Court held that “it was suitable for the RBI to link the permissibility of MTT in goods to the permissibility of their import/export under the FTP.” (paragraph 44)

Thirdly, Chandrachud J noted that while MTTs in PPE did not “directly” reduce the available stock of PPE in the country, they nonetheless reduced “the availability of the stock in the international market, which may have been bought by India, if so required (paragraph 47). Furthermore, this also reflected the Union government’s policy stance that such goods were “non-tradeable” during the pandemic (paragraph 47); in other words, “banning MTTs in PPE products was critical in ensuring that Indian foreign exchange reserves are not utilized to facilitate the hoarding of PPE products with wealthier nations.” (paragraph 47) On this basis, the Court held that the necessity prong was satisfied.

Finally, on the balancing prong, the Court – after making a set of observations about the importance of allowing regulatory bodies to set the terms “for operation of private economic actors” – held that the RBI had adequately demonstrated the rational nexus between the ban and the public health of Indian citizens. Consequently, “this Court is constrained to defer to the regulations imposed by RBI and the UOI, in the interests of preserving public health in a pandemic.” (paragraph 57)

Two points of critique arise with respect to this judgment. The first is that the analysis of the suitability and necessity prongs of the proportionality test is clouded by the fact that the Court moves between levels of abstraction. What the Court finds suitable is the link between prohibiting MTT and the overall foreign trade policy of the government (i.e., the actual text of Clause 2(iii)). What the Court finds necessary is the specific ban on MTTs involving PPE that logically flows from Clause 2(iii), but is not equivalent to it. Since the challenge was to Clause 2(iii) itself, it is submitted that it was incumbent upon the Court to examine the appellant’s arguments that the linking of MTT bans to export-import bans itself failed the necessity test, and – indeed – to engage with the appellant’s proposed less restrictive alternatives (which the Court records in an earlier part of its judgment). This the Court did not do; instead, within different steps of the same proportionality test, it ended up answering two different questions: was the linking of MTTs to export-import policy suitable? And was the ban on PPE MTTs necessary?

Furthermore, it is respectfully submitted that the Court’s necessity analysis raises serious questions about causation. The Court argued that even though an MTT transaction did not directly affect the stocks of PPE in India, it affected stocks on the world market that India could have bought, but would now not be able to, because they had been sold. But this is a very attenuated causal link upon which to predicate the restriction of a fundamental right: the argument surely cannot be that because any transaction involving PPE, anywhere in the world, affects India by altering the global stock, therefore – regardless of whether India intended to or had the capacity of, or the need for – said PPE, the transaction itself could be banned as long as India could enforce its ban (in this case because the intermediary was Indian). It is submitted that, without further evidence, the causal link here would fail even a rationality test (presumably, if the Indian company can’t act as an intermediary, the transaction would still go ahead with another intermediary!), let alone the stronger necessity test; in either event, this case highlights the importance having causal standards explicitly set out in proportionality judgments.

The second point of critique is with respect to the fourth prong: effectively, the Court ended up replicating its rationality argument in holding that the RBI had demonstrated a rational link, and its expertise as a regulatory body required deference. However, the balancing prong requires more: it requires that the extent of the rights restriction (in this case, a complete prohibition) is proportional – in a strict sense – to the importance of the goal (in this case, presumably, harmonising export-import and MTT transactions at the higher level of abstraction, and maintaining a global stock of PPE at a lower level of abstraction). Perhaps the Court wold still have held that proportionality stricto sensu was made out; but if so, the analysis would need to be spelt out, and not presumed.

Conclusion

The judgments in NSIRIAN and Akshay N Patel are important, in that they explicitly entrench the proportionality standard as the constitutional standard in adjudicating Articles 14, 19, and 21 claims; NSIRIAN, in particular, is helpful in further clarifying the two-tier standard of review internal to Article 14. As Akshay N Patel shows, however, the application of the four-step test continue to raise certain knotty problems which, it is hoped, future judgments will help clarify.

Guest Post: Private tuitions, Proportionality and Policy: J&K High Court’s judgment in Farooq Ahmed v. UT of J&K

[This is a guest post by Mohammad Zayaan and Muazzam Nasir.]

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Introduction

The Jammu and Kashmir High Court recently upheld the validity of a circular issued by the UT Government which barred Government teachers from engaging in private tuitions. The judgment was delivered in the case of Farooq Ahmed v. Union Territory of J&K, where the petitioners had challenged the validity of the circular. The petitioners had assailed the impugned order on three pertinent grounds:

a) that the Right to Free and Compulsory Education Act, 2009 was invalidly applied considering its limited applicability to elementary school teachers

b) that complete ban on private tuitions was in derogation of previous orders issued by the School Education Department (hereinafter “SED”) 

c) that the complete ban was in violation of a prior judgment of the Jammu and Kashmir High Court. 

The judgment passed by the single judge bench of the High Court observed that:

“There is nothing that prevents the government from taking a policy decision in the matter of teaching faculty of the government that there shall be no sanction/grant for engagement directly or indirectly in private tuition in private coaching/tuition centres during and after the duty hours.” 

However, this post argues that the ban – being a prima facie violation of Article 19(1)(g)- needed to be examined and scrutinised thoroughly within the framework of the doctrine of proportionality. Such a restriction imposed on an important fundamental right would have to be proportional and necessary. Though the Supreme Court of India has applied (and interpreted) the doctrine of proportionality in different ways on different occasions, this post focuses on the four-limb test laid down in Modern Dental College v. State of M.P, which was later affirmed in the Aadhaar Litigation, and reiterated with respect to Article 19(1)(g) in Anuradha Bhasin v. Union of India. The post seeks to apply this test to the policy proposed by the State in the circular, and argue on the disproportionate, and consequently, unconstitutional nature of the policy.

Legitimate Aim Stage

The first limb of the proportionality test is to determine whether the policy at hand has a legitimate aim or a proper purpose (legitimate goal stage). The aim only needs to be legitimate, and not necessarily compelling. This is a manner of objective review, which resembles the traditional reasonableness test under which policy decisions were tested. The bracket of legitimate aim consists of multiple aims which are often vaguely phrased – public safety, prevention of crime, protection of morals and of the rights of others, and national security. In the present case, the aim of the State in bringing such a policy can be derived from three  sources:

1. The prohibition has been ordered under Section 10 of the Jammu & Kashmir Government Employees (Conduct) Rules, 1971 (hereinafter ‘Conduct Rules’). The Conduct Rules can be construed to be a regulatory framework which aims to regulate conduct and behaviour of Government employees. Therefore, the aim of the present order could be taken as to regulate conduct of Government teachers. However, in such a case, Section 10 can itself be called into question on grounds of being unreasonable and disproportionate. 
2. The second source is the Supreme Court judgment in the case of Asha Seva Bhavi Sanstha v. State of Maharashtra.While reviewing the scope of Section 28 of the RTE Act which imposes similar restrictions, the Court observed that the aim of such a measure was “to ensure teachers should contribute in imparting quality education in school itself”. Even though the petitioners in the present case had contended that the petition was not maintainable by virtue of it being ordered under Section 28 of RTE Act, the J&K High Court held that the section would only apply to a certain group of teachers (those imparting elementary level education). However, this observation could be taken to understand what the aim of such a measure is.
3. In the present judgement, the Court has observed that a lot of teachers engage in private tuitions at the cost of their own jobs, and therefore, driven by ‘insatiable greed’, they impart education in private institutions. Though these were all assertions which were not backed by any proper study, report, or complaints, one can get an insight as to what the Court has construed as the aim of the policy. 

Through these three sources, the aim of the measure becomes quite clear- to make Government schools more efficient. While this is a legitimate aim, it becomes important to scrutinise the methods in which the State proposes to reach this aim. What the State has done in the present case is impose a blanket ban on all Government teachers, assuming that it would enhance their performance in schools. This is the main concern – the State uses the most restrictive measure instead of the least restrictive one to reach the aim. In doing so, it gives no data to support the claim of the aim being met due to such intrusive restrictions. 

Rational Nexus Stage

The second limb of the proportionality test requires the policy decision to be a suitable means of achieving the aim (suitability or rational connection stage). Essentially, there should be a rational nexus between the aim and the act done to reach that aim. In the present case, there are no reports, evidence, or studies to suggest that engaging in private tuitions affects the performance of teachers in their schools. The Court has not backed its assertions with any form of complaints or reports. Assuming that such assertions were true, the question to be asked is: how does a blanket ban solve it? Such a restriction does not guarantee better quality education, and neither does it guarantee enhanced performance. If the argument revolves around attendance, there are other measures (as will be discussed further) which can be employed to keep a check on it. If the argument revolves around engagement in other activities which affect work of the teacher, the same argument can be made for other types of charitable and social work which are exceptions to Section 10 of the Employee Code of Conduct Rules. Therefore, unnecessarily restricting individuals with respect to one form of activity and not another is unreasonable, and such a restriction has no rational nexus to achieving better education in Government schools. If a teacher does not engage in private tuitions in his free time, it does not guarantee that he will impart quality education in school.

The Least Restrictive Measure Stage

The teaching fraternity in the UT is governed by the Conduct Rules. Section 10 of the Conduct Rules reads: 

“No government employee, whether on leave or active service, shall except with the previous sanction of the Government engage directly or indirectly in any trade or business or undertake any other employment”. 

The court, in the present case, read the phrase “except with the previous sanction of the Government ” as devolving a wide policy discretion onto the government to decide on the conduct of private tuitions by government teachers. However, such an interpretation is afoul of the third-prong of the proportionality test in Modern Dental College. The relevant articulation under the test is that: the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation. The “least restrictive measure” has to be established on examination of facts. The court has to ascertain the available alternatives in congruence with the intended goal of the state, and, accordingly choose the least restrictive but equally effective measure. The intended aim of the State is to ensure that education in Government schools does not suffer because of parallel private commitments of government teachers. The court underlines this aim at para 14:

As government teachers are engaged in imparting education to children and building future of the nation, it would always be fair and reasonable for the Government to take a policy decision not to allow teaching faculty of the Government at any level to engage in private business of imparting coaching in private tuition centres.

The aim directly supported the ruling of the court that the government may, by policy decision, decide not to give any sanction to all or any class of employees for private tuitions. The court failed to address the available alternatives before ruling to the contrary. The SED in 2005 had issued a circular proposing an alternative: Government teachers could engage in private tuitions two hours before the opening of the school and two hours after the closing of the school.  The SED rescinded the alternative pursuant to the ruling of the J&K High Court in a PIL filed by Vikas Kranti Manch in 2011. Consequently, the State Government challenged the judgment in the apex court. The court affirmed the ruling of the J&K High Court. However, both judgments pertained to the “general permission” for conduct of private tuitions granted to government teachers. In 2015, the SED noted that private tuitions by government teachers during “work hours” had a disparaging impact on the overall interests of school children. Thereafter, in 2017, SED circular issued a ban on private tuitions by government teachers – unless prior sanction was obtained from the competent authority. The court had to sift through the least restrictive alternative according to the intended goal. It could have, for example, gauged the impact of private tuitions by government teachers before and after designated working hours on the purported goal of maintaining teaching quality in government schools. However, it deferred to the governments’ resolve for a blanket ban, and in doing so, failed to meet the proportionality test under Article 19.

Defeating the purpose of balance

The fourth prong of the test is the requirement of “balancing” the competing interests at hand. In the present case, the court ought to have established a balance between Article 19(1)(g) and the purported social limitation to the same. The J&K High Court identified the social importance of the limitation at para 20: Instead of concentrating on their pious job and contribute to nation building, the God has chosen for them, for, they, moved by their insatiable greed, engage in activity of private tuition. The ruling largely echoes the Supreme Court’s line of restricting the nature of education as “charitable”. However, despite the charitable nature, the protection under Article 19(1)(g) still persists. The only limitation could be “a shorter shrift to profit” while weighing the balance under Article 19(6). The court, instead, makes a value judgment and offers zero shrift to profit. It adopts a total deference approach to a complete ban on private coaching and, thus, fails to establish a balance between the competing interests.

Conclusion

The pertinent test to be imbibed in Farooq Ahmad was the proportionality review to ascertain the violation of Article 19(1)(g). The court, instead, showed total deference to the governments’ wisdom. It chose to strictly fixate the contours of its judgment to the policy tentacles of the government. The four-pronged redressal under the proportionality framework points to a gap between the court’s judgment and the constitutional validity of the circular banning private tuitions. 

Coronavirus and the Constitution – XXXI: The Payment of Wages Order

On March 29th 2020, the Home Secretary – acting in his capacity as the Chairperson of the National Executive Committee under the Disaster Management Act – issued an order requiring, inter alia, that “all the employers, be it in the Industry or in the shops and commercial establishments, shall make payment of wages of their workers, at their work places, on the due date, without any deduction, for the period their establishments are under closure during the lockdown.” The context of the Order is important: this direction was one of five directions passed in light of the fact that, after the announcement of the nationwide lockdown on March 24th, there had been large-scale movement of migrant labourers back to their home-towns. Mandatory payment of wages was one measure to forestall this movement, along with other measures such as suspension of rent for a month, a temporary ban on evictions, and so on.

This order was challenged before the Supreme Court in Ludhiana Hand Tools Association v Union of India. After granting a temporary stay on coercive action against businesses that were not complying with the order, the Court heard arguments, and judgment is expected later this week.

The primary argument of the employers turns upon the contention that the Disaster Management Act does not grant the central government the power to compel the payment of wages to the workers. The order itself invoked section 10(2)(l) of the DMA, and the employers argue that this provision only enables guidelines to government authorities, not private entities. Petitioners also contend that Section 65 of the Disaster Management Act, which allows the National Executive Committee to “requisition resources” in order to ensure a prompt response, and is followed by Section 66, which compels the payment of compensation in case of requisition, is the only provision under the DMA which authorises the government to impose obligations on private parties is Section 65. This (or so the argument goes), on its terms, does not allow a direction for the mandatory payment of wages; and that in any event, even if it does, the terms of Section 66 have not been complied with.

Now, as a legal argument, this contention is very clearly flawed. There are two reasons for this. The first is that the series of guidelines and orders issued on and after the 24th of March 2020 have not been issued under Section 65 of the DMA, but under Sections 10 – in particular, 10(1) and 35 of that Act. Previously on this blog, we have critiqued these sections for being over-broad and enabling executive carte blanche; however, as long as these sections remain on the statute books, the power of the government to act remains within the framework of the DMA (Section 35, in particular, authorises the government to take measures that are “expedient” for the purposes of the Act).

More importantly, however, the point is this: the impugned direction in the order of 29th March cannot be severed from all the other directions that have been passed by the NEC under the framework of the DMA. These directions – that constitute the warp and the weft of the lockdown itself – impose obligations upon private parties. These include, for example:

1. The order of closure of shops and establishments, which gave rise to this controversy in the first place.
2. Orders restricting the movement of individuals between state borders.
3. Orders imposing “night curfews.”
4. Orders banning public gatherings.
5. Orders mandating social distancing.

Examples can be multiplied, but the basic point is that if the Court was to hold that the payment of wages direction is unconstitutional because the DMA denies to the government the power to impose obligations upon private, then it would necessarily follow that the lockdown itself – which is nothing more than a web of interlocking obligations imposed upon private parties – is itself unconstitutional, as a whole.

Or, to put it another way: in order to enforce the lockdown, the government imposed a series of obligations and restrictions upon a whole host of private parties and individuals, that have put them to a significant amount of hardship. It would be oddly asymmetrical if those restrictions were upheld, but directions to mitigate their impact upon some of the most vulnerable and marginalised segments of society, were struck down for want of power.

Now it may be argued that the distinction between the orders set out above, and the direction for the payment of wages, is that in the latter case, there is an already existing regime of labour law (set out in the Industrial Disputes Act and other laws) that governs this question. This argument, however, is flawed as well: the DMA has a general non-obstante clause (Section 72) that makes it prevail over inconsistent statutory provisions in other laws; however, the Industrial Disputes Act has a specific exception to its non-obstante clause for provisions that are more beneficial to workmen than what they may get under the ID Act; the impugned direction, it should be clear, falls squarely within the scope of the objection, thus obviating any need for adjudicating between seemingly conflicting laws.

Consequently, the challenge to the competence of the NEC in issuing the directions for the payment of wages cannot succeed. What of the substance of the direction itself? It may be argued that it violates Article 19(1)(g) (freedom of trade and commerce) by compelling employers to pay wages even when their shops themselves have been closed down. In this context, it is important to note the following: the source of the dispute is State action; in particular, the Order of 24th March 2020, mandating the closure of all shops and establishments for the duration of the lockdown. Now, imagine a situation in which the impugned Direction had not been passed. The result of this would be that workers would – effectively – be deprived of their right to livelihood (under Article 21), as a direct consequence of State action.

It is therefore clear that Article 19(1)(g) is not the only right at issue in the present case, but that Article 21 is involved as well. It is further crucial to note that Article 14 is also implicated: the ability and means to work from home is directly related to socio-economic class, and therefore the Guidelines of closure of 24th March disproportionately impacted workers who are already the most vulnerable and marginalised in society.

Now, in its recent judgment on the Right to Information Act, the Supreme Court noted that in case there was a clash of two fundamental rights, the doctrine of proportionality would apply. Proportionality – in such cases – requires a balancing exercise that ensures that neither of the two rights is effaced. It is clear that no Direction at all would deprive the workers entirely of their right to livelihood during the period of the lockdown, and thus effectively efface Article 21 during that time. On the other hand, it is not evident that a temporary order for the payment of wages would efface the right under Article 19(1)(g) (i.e., force permanent closure of business). To the extent that it does impose a burden upon employers – that also flows from State action – there is no doubt that the State ought to pay compensation. For that, however, there should lie a direct claim against the State for its failure to protect rights under Article 19(1)(g) after its own action has led to their deprivation. However, the remedy for that cannot be to throw the other party to the equation – the more vulnerable and marginalised party – to the wolves, by striking down the payment of wages order itself.

It is therefore my submission that under the existing legal framework, the Direction for payment of wages is legal; at the same time, however, there should be an enforceable fundamental rights claim made against the State for its failure to adequately compensate employers as a result of the lockdown that it imposed following the Order and Guidelines of 24th March 2020.

Guest Post: Attachment of Property, Freezing Orders, and PMLA Investigations: The Need for Reasonable Exclusions

[This is a guest post by Abhinav Sekhri, first published on the Proof of Guilt Blog.]

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In almost any prosecution, the property used to commit a crime becomes case property (a murder weapon). In some kinds of prosecutions, this extends to locking down the site of criminal acts (a brothel or a gaming house). There are also other prosecutions, such as those for money laundering, where a major focus is on identifying the property generated from criminal acts (flat bought by public servant from bribe money).

Countries across the world take the view that for effective deterrence of crime, law enforcement must also have powers to take away the proceeds of crime besides prosecuting the criminal act itself. In India, this translates into empowering law enforcement agencies with ability to pass orders for attachment / freezing of assets, to restrain anyone from altering / transferring property that is identified as part of the proceeds of crime. The pre-eminent example of this attachment / freezing order regime in India is the Prevention of Money Laundering Act 2002 [“PMLA”].

Broad Powers 

Currently, Section 5 of the PMLA confers upon investigating officers a power to provisionally (for upto 6 months) attach property which is believed to be “proceeds of crime” [Or property that is “involved in money laundering”, which may or may not be understood to mean a different thing]. To appreciate the breadth of this power, take a look at how Section 2(u) of the PMLA defines the phrase “proceeds of crime”:

“Proceeds of crime” means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad;

Explanation. — For the removal of doubts, it is hereby clarified that “proceeds of crime” include property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence;

 

Keeping aside the fact that the exact scope of this definition is still uncertain even to courts and is almost infinitely broad, there are two key takeaways from the definition: (i) Proceeds of crime can either be the actual property obtained through criminal activity or its value; (ii) The criminal activity itself need only be relatable to a scheduled offence [the list of predicate offences which allow invoking the PMLA].

What we have, then, is a power conferred upon investigating officers to take away almost any asset or property that they can show as having links to the alleged acts of criminality in a case. For example, it means the agency can issue warrants of attachment of a house, as the accused would have invested some money in building / buying the house which will be shown to bear a link to the alleged acts of criminality that are connected to the scheduled offence. And where the property itself is not identifiable, then it would probably trigger an attachment order qua certain amounts lodged in bank accounts.

Safeguards

The breadth of provisional attachment powers under the PMLA necessitates the existence of some legal safeguards to prevent undue hardship at the hands of executive officers. Enter, the three-step logic of the PMLA. The argument, essentially, is that the PMLA contains a multi-level system of safeguards to prevent abuse:

1. First level — Provisional Attachment: Provisional attachment orders are time-barred and can only be issued if there are “reasons to believe” that property is the proceeds of crime / involved in money laundering. These reasons must be in writing. Further, such orders cannot interfere with enjoyment of immovable property;
2. Second level — Confirmation: Within thirty days of issuing a provisional attachment order, a complaint must be sent to the Adjudicating Authority which then decides whether or not to confirm the provisional order. This is an independent tribunal which operates totally separately from the criminal court. At this stage, everyone interested in the property has the chance to make their case to show why it shouldn’t be attached, and a reasoned order must be passed by the Authority to justify its conclusions. This process is, again, time-bound.
3. Third level — Appeal: A right of statutory appeal before an Appellate Tribunal for Money Laundering exists for all persons aggrieved by the orders of the Adjudicating Authority.

In almost any writ petition challenging attachment orders, this is a standard response on behalf of the law enforcement agencies to argue that the matter should remain within the PMLA system and not be taken up by the court.

The Need for Reasonable Exclusions

The three-step logic of the PMLA does offer some safeguards, in theory at least. But even so, this setup has critical design flaws.

The broad attachment powers of the PMLA exist in a system where eventual confiscation of the proceeds of crime requires a prior criminal conviction for money laundering offences. Therefore, almost every attachment order will likely subsist for the several years that it takes for any prosecution to complete. It also means that once a person fails to secure any relief through the three-step PMLA process, she will not be entitled to any enjoyment of her own property.

While this might not be a problem for small, replaceable items, such as a watch or a laptop, it becomes an unimaginable problem where the property is a house. Or, far worse, is the situation where the property attached is money lying in bank accounts. Here, the three-step safeguards come to nought as all access to the property is gone the moment a provisional attachment order is passed. What this means, then, is that a person is rendered penniless, and crippled in her ability to sustain the long legal battle required to prove her case first before the tribunals and then later in the criminal trial.

This is not the only drastic scenario that I can imagine. Consider, for instance, a case where money in bank accounts is attached as the actual proceeds of crime have since been sold. But now, these monies are held in the accounts of a company that has nothing to do with any money laundering allegation and offers gainful employment to hundreds of people.

These routine examples from the world of PMLA prosecutions show just how unfair this legal regime is.  It is also squarely unconstitutional. This complete deprivation of property by passing attachment orders for the entire asset is by no means a reasonable or proportionate manner to secure state interests. If anything, it is a classic case of pursuing state interests by trampling upon the most basic rights of affected persons.

A way to make this regime more palatable would be to start recognising reasonable exclusions from the scope of any attachment orders. For instance, allowing persons to remain in possession upon payment of rent; or allowing certain limited withdrawals to continue running a business and paying salaries; or paying lawyers’ fees. These are not revolutionary ideas and are in fact already part of the law in other countries [See, e.g., Section 303Z5 of the U.K. Proceeds of Crime Act, 2002; Luis v. United States, 136 S. Ct. 1083]. By engrafting a process of recognising reasonable exclusions within the PMLA statutory framework — at the stage of provisional attachment orders for movable property and at the confirmation stage for immovable property — the core fairness and proportionality concerns would be answered to some extent. Moreover, it would also help save judicial time, as currently such reliefs are sought either through writ proceedings in High Courts or through interim orders before the Appellate Tribunal.

Conclusions

The PMLA has not been a statute shy of legislative tinkering. Often, this has been a response to some or the other gaps being pointed out in the scheme of the Act. The absence of any reasonable exclusions from the attachment regime is as big a gap as there can be. It leads to a disproportionate deprivation of the basic rights (and needs) of innocent persons, and also wastes valuable judicial time and effort. Ergo, a happy ending? Remember, it is the hope that kills you.

Guest Post: Proportionality in Application – An Analysis of the “Least Restrictive Measure”

[This is a guest post by Ankush Rai.]

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Introduction 

Proportionality, at the most basic level, is the common sense idea that any state action should choose such means which are well-suited to the ends it is pursuing. As Fritz Fleiner, a German administrative law scholar, once wrote – “the police should not shoot at sparrows with cannons.” The principle of proportionality as a standard of review has been adopted universally by multiple countries in their jurisprudence. However, this ‘universal’ principle of proportionality has distinctly local flavours due to the varying history, culture and institutions of different countries.

In India, the proportionality test has also acquired its own flavour and evolved conceptually through a bunch of cases in its jurisprudential history. The test in its newest form was adopted in a 2016 case named Modern Dental College vs State of Madhya Pradesh (hereinafter Dental College). This reformulated version of the proportionality test, which resembles the German version in its language, has been applied in subsequent cases, and as a result has firmly made its place in Indian jurisprudence. In the Dental College case, the Supreme Court of India, in the context of Article 19 of the Indian Constitution, endorsed a four-pronged test for proportionality. It held that –

“… a limitation of a constitutional right will be constitutionally permissible if: (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfillment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation (‘proportionality stricto sensu’ or ‘balancing’) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.” (paragraph 53)

The adoption of this four-pronged approach by a 5-judge bench of the Supreme Court brought the proportionality test in its true sense to the centre-stage of Article 19 analysis. This test was further amplified when the Supreme Court through a landmark decision in Justice K. Puttaswamy vs Union of India endorsed proportionality as a standard of review for any limitation upon the fundamental right to life and liberty under Article 21. It is submitted that through these two decisions the Supreme Court firmly established proportionality as the new standard of review for any state action that limits fundamental rights.

Against this backdrop, this piece aims to analyse the application of the proportionality principle in its latest form in three recent Supreme Court decisions: Justice K Puttaswamy vs Union of India II (hereinafter Aadhaar case), Anuradha Bhasin vs Union of India (hereinafter Anuradha Bhasin) and Internet Mobile Association of India vs Reserve Bank of India (hereinafter IMAI). In all these three cases, an array of fundamental rights and limitations were reviewed by the Supreme Court using the four-pronged proportionality test. This piece will only focus on the application of the third prong of the proportionality principle (the least intrusive measure) vis-à-vis the above-mentioned cases. This is because firstly, the application of the first two prongs have been largely non-controversial in nature. Secondly, an analysis of the fourth prong vis-à-vis these cases deserves an independent analysis of its own and is beyond the scope of this piece.

The central argument of this piece is that the Supreme Court, through an inconsistent application of the third prong of the proportionality test in these three cases, has made it impossible to determine what the position of the law is on this issue. This inconsistency in application has been created because it has answered the following two questions differently in different cases: firstly, on whom does the burden lie to produce the ‘least restrictive measure’; and secondly, through how much evidence can this burden be satisfied? After it has been established that there is an inconsistent application of the third prong, this piece will put forward an approach which can remove this inconsistency and determine a position for the law in this regard. It will finally conclude on the necessity to have a consistent position of law on this issue and the grave consequences that may arise if it is not done so.

Inconsistency in Application 

The third prong of the proportionality test is a fact-based test as it necessarily entails for the Court to examine various alternative measures that can be adopted to achieve the intended goal of the state. After such examination, the Court should choose the least restrictive but equally effective measure to achieve the intended goal of the state. This piece will now present the answers given by the Court in the above-mentioned judgements for the two questions flagged before. This presentation of the answers of the Court will clearly show the inconsistency with which it has applied the third prong of the test. However, before the analysis is done it is important to note what this analysis will not do. This analysis will not engage in normative scrutiny of ‘what is the correct position of law’ but will limit itself to finding out ‘what is the position of law’. A normative scrutiny would require a very different kind of analysis and is beyond the scope of this piece.

Question 1: On whom does the burden lie?

In the Aadhaar case, a 5-judge bench of the Supreme Court of India held the Aadhar Act to be constitutional through a 4:1 majority. The majority observed in paragraph 280 of the judgement:

The manner in which malpractices have been committed in the past leaves us to hold that apart from the system of unique identity in Aadhaar and authentication of the real beneficiaries, there is no alternative measure with lesser degree of limitation which can achieve the same purpose. In fact, on repeated query by this Court, even the petitioners could not suggest any such method.

 

Hence, on the first question, this observation of the majority makes it clear that it is the petitioner upon whom the burden lies. While this statement of the Court regarding petitioners not providing alternatives is factually incorrect as they had given the alternative of smart cards, this grave factual error is of no concern in this context. All that matter is that the burden was put on the petitioners.

In the case of Anuradha Bhasin, the Supreme Court through a 3-judge bench decision reiterated that fundamental rights could only be restricted in a proportionate manner. Although it did not restore access to the internet in Kashmir, it asked for a review committee to review the suspension orders after seven days.

This judgement, after having a detailed discussion on the proportionality test, summarizes it in paragraph 70. While referring to the third prong of the test it states that “the ‘authorities’ must assess the ‘existence’ of any alternative mechanism in furtherance of the aforesaid goal.” This observation logically entails that if the State has to assess the existence of alternatives it has to necessarily find them out first. Without finding out alternatives it cannot assess their effectiveness. As a result, what the Court essentially means by the extract quoted above is that the burden to produce alternatives is upon the state. This is a reversal from the previous position taken by the Supreme Court in the Aadhaar case in which it placed the burden upon the petitioners. Hence, two contradictory answers to the same question create an inconsistency in the application of the third prong. This inconsistency is only enhanced by the next case of IMAI.

In the IMAI case, a three-judge bench of the Supreme Court lifted the ban on cryptocurrency that had been imposed by the Reserve Bank of India. It did so solely on the ground that ‘alternative measures’ were not considered by the RBI. As a result of not considering alternatives, it had restricted the fundamental right under Article 19(1)(g) of the shareholders of virtual currency trading firms in a disproportionate manner.

In this judgement, in paragraph 6.162 the Court states that “we are obliged to see if there were less intrusive measures available and whether RBI has at least considered these alternatives.” So, the answer to the first question in this case is again given to be – “the State.”

Hence, we have a situation where in the first case, a 5-judge bench of the Supreme Court holds that the burden to come up with alternatives is on the petitioners. In the second case, by defying the rule of precedent, a 3-judge bench holds that the burden is on the state. This would logically entail that the judgement given in the second case by the 3-judge bench is bad in law because it outrightly defies a larger bench’s decision and as a result, the same approach would not be followed in the future. However, in fact, this does not turn out to be true. This is because in the third case the Court again places the burden on the state to come up with alternatives. So, what is the position of the law on this question? Is it the petitioner as per the 5-judge bench decision? Or has the position changed as per two consecutive 3-judge bench’s decision? Which position will the Court adopt in a future case ? The decision of an older 5-judge bench or the decision of two recent three judge benches. There is simply no way to find that answer as things stand now.

Question 2: How much evidence satisfies this burden?

In the Aadhaar case, the answer that the Court gives to the second question is ambiguous. This is because, as has been argued elsewhere on this blog, the manner in which this judgement conceptualizes the third prong is very different from how it applies it.

The manner in which the Court conceptualizes the test is by wholly adopting the model given by Professor David Bilchitz. The model which Bilchitz proposes requires, first, identifying alternatives to the measures adopted by the state; secondly, asking how effective these alternatives are and whether they achieve the state objective in a ‘real and substantial manner’; thirdly, what is the impact of each of these alternative measures on the infringed right; and fourthly, the Court should undertake a balancing exercise. This is how the Court conceptualizes the third prong of the test.

The manner in which the test is applied in the Aadhaar Case, however, is different: the Court does an analysis of the third prong in just one paragraph, where it states that most of the components of the third prong have been dealt with in the first two prongs. Moreover, it holds that the manner in which malpractices have been committed in the past with respect to various public distribution schemes, leaves it with no choice but to hold that there is no alternative scheme with a lesser degree of limitation which can achieve the purpose. Aadhar through its unique identity-based authentication system is the only way to do so.

Hence, we can see a clear disconnect between the conceptualization of the third prong and the manner in which it was applied. It is impossible that the first two prongs of the proportionality test which deal with questions around whether the aim is legitimate and whether there is rational nexus between the legitimate purpose and the way it is being applied, can answer the questions asked while examining the third prong. Moreover, in the application of third prong there is no engagement by the Court on the effectiveness of the alternative measures or the impact of Aadhar and the other alternative measures on the right to privacy.

Therefore, this case answers the second question in an ambiguous manner. It is impossible to determine what standard will the Court follow in a future case. This ambiguous answer is further amplified by how the Court answers the same question in the second and third case.

In the Anuradha Bhasin case, the answer to the second question is found through analysing the so-called ‘relief’ provided by the Court in terms of internet access. The relief as mentioned in paragraph 152 (f) of the judgement states that the existing suspension orders for internet services must be reviewed within seven working days. In this case, since the burden was upon the State to provide for alternatives, it would be correct to assume that the decision of the Court would be based on an examination of the alternatives provided by the state itself. So, what alternatives did the State provide? The answer is none. It simply advocated for a total ban. This is mentioned in the judgement when it records the submissions made by Solicitor General Tushar Mehta appearing for the State. He submits that it is impossible for the state to distinguish between ordinary citizens and troublemakers, and so a total ban has to be imposed. He further submits, with respect to internet services, that it is not possible for the state to ban only certain websites/parts of the internet while allowing access to other parts. Hence, the answer that emerges to the question – through how much evidence is the burden satisfied? – seems to be “whatever the state submits to the Court.” This is because the Court does not lift the internet ban, which is exactly what the State had asked for. The Court simply defers to the evidence given by the state without any engagement or critical analysis of the state’s submissions.

Therefore, while in the Aadhaar case the Court gave an ambiguous answer, in this case it set the standard of deferring to what the state had submitted without any critical engagement or analysis. This standard, however, turns on its head in the IMAI case.

In the IMAI case, the Court establishes a new standard that had not been seen before. The judgement in paragraph 6.172 and 6.173 states that the RBI has to prove with ‘empirical data’ that such harm was caused to the entities it regulates due to cryptocurrency that it had no option but to ban it. This is unlike the previous two cases wherein the alternatives given by the petitioners were completely ignored. In the Aadhaar case, the alternative given was smart cards, and in the Anuradha Bhasin case the alternative given was selective banning of the internet and not a complete shutdown. Both of these were ignored. However, in IMAI, the Court extensively engages with the alternatives given by the petitioners. This can be observed in paragraph 6.162 to 6.164 of the judgement. Additionally, the Court ensures that the RBI responds to these alternatives given by the petitioner, as can be read in paragraph 6.165 of the judgement. Eventually, on the account of the RBI not being able to give demonstrable evidence, the Court strikes down the ban on cryptocurrency. So, the standard set through this case is – the state through ‘empirical data’ must establish why the action it took was the only possible measure and no alternative measure could have been adopted.

Hence, a simple perusal of the answers given by the Court to the same question puts us in a very complicated position. While in the first case, a 5-judge bench sets an ambiguous standard, in the second case, a 3-judge bench sets the standard of deference to the whatever the state submits. Yet in the third case, another 3-judge bench sets an entirely new standard of asking the State to demonstrate with ‘empirical data’ that alternative measures are not equally effective. All this again begs the question – Which standard will the Court follow in a future case? This is because all three judgements set three different standards.

A Consistent Approach to the Law

Now that it has been established that the law with respect to the third prong is undetermined because of the inconsistent application of the third prong of the test, a new approach will be suggested by the author to create consistency in application. What is the new approach? The answer to this question is embedded in citation 13 of the case where it all started – Modern Dental College vs State of Madhya Pradesh. The Supreme Court in this case had adopted the four-prong proportionality test from the book of Aharon Barak (former Chief Justice of the Supreme Court of Israel) titled Proportionality: Constitutional Rights and Their Limitation. There is an extensive discussion in Chapter 16 of this book on the issue of burden of proof in the context of proportionality. Regarding the question on whom does the burden lie, Barak makes a very nuanced argument. He states the burden should lie both on the petitioner as well as the State. However, the nature of the burden on both of them will be different. On the petitioner, the burden is to bring forth alternative measures that are less intrusive but equally effective in nature. This is because the state should not bear the burden of dealing with an infinite set of possibilities through which legislation can be carried out. On the state, the burden is to examine those alternative measures suggested by the petitioners, and then show through evidence that the alternative measures put forward by the petitioners do not achieve the intended goal in an equally effective manner. This is because only the state has the financial and logistical capability to test those alternative measures. This is how the first question – on whom the burden should lie – is answered by Barak.

Regarding the second question: how much evidence is needed to satisfy the burden – he states that this ought to be determined by the Court. He then lays down how the Court should determine this. He states that in situations where the State, due to whatever reason, simply does not provide a full factual framework as to the justification for the limitation on a fundamental right then the Court should use its powers to the demand the production of more evidence by the state. The Court should urge the state to factually demonstrate with evidence that the alternative measures provided by the petitioners which it is rejecting do not achieve the intended goal in an equally effective manner. This is level of evidence that needs to be satisfied. If, even after this, the State does not come up with factual evidence to justify the limitation it has put up on a fundamental right, then the Court should hold the limitation unconstitutional. Hence, at the end of the day if the Court is not satisfied with the justification for the limitation on a constitutional right, then it should declare the limitation unconstitutional. It should be noted here that a similar approach was adopted by the Supreme Court in the IMAI case.

Admittedly, the approach suggested by Barak is a complex approach to understand, and hence warrants an example. Let us take the example by applying the above approach in the Aadhaar case. As the burden is on both parties but of different nature, the petitioners ought to provide alternatives, like they did with smart cards. Now the burden would fall upon the State to examine the alternative of smart cards and then through evidence establish whether smart cards could or could not achieve the intended goal in an equally effective manner as Aadhaar could. Say the state claims that smart cards do not achieve the intended goal in an equally effective manner. In such a scenario, the Court has to step in find out whether the state has provided the full factual framework in conducting its examination of smart cards. Suppose the Court is not satisfied with the factual framework and feels that the State has either negligently or wilfully not provided the same. Then it should demand that the State factually demonstrate how it came to the conclusion that smart cards are not as effective as Aadhaar in achieving the intended goal. If the State still does not provide any such evidence, then the Court should hold the limitation unconstitutional.

Conclusion

In conclusion, the author would like to state the grave consequences of having an inconsistency in application of the third prong of the proportionality test. One of the eight ‘principles of legality’ as per Lon Fuller is that Law should be free from contradictions and have consistency. If this is not the case, then it cannot be called a law. An inconsistent law is no law at all. This basic understanding of law gains a lot more importance when applied in the context of proportionality. Proportionality is now an established standard of review with firm roots in Indian jurisprudence, something that is used to check whether any limitation on fundamental rights is valid or not simply cannot have an inconsistent application – otherwise, a citizen will never know whether his fundamental rights will be protected by the Supreme Court when the wrath of State is unleashed upon him. This also violates the normative role of a constitutional Court in a democracy, which is to act as a check on excessive state power. Therefore, it is submitted that the third prong of the proportionality test should be made consistent and in order to do that the above approach should be established.

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[The author would like to thank Tanvi Apte and Bhavisha Sharma for their inputs on the article.]

Coronavirus and the Constitution – XXI: The Mandatory Imposition of the Aarogya Setu App

The extension of the “nationwide lockdown” by another two weeks has brought with it a slew of further directions under the National Disaster Management Act. Many of these directions exacerbate the problems pointed out in previous posts. For example, unlike previous directions, this one actually does impose a physical curfew (between 7PM and 7AM), and directs local authorities to pass necessary orders implementing it. This particular direction lies at the intersection of rule by executive decree and the undermining of federalism, as discussed previously. In this post, however, I want to briefly consider Guideline 15 of Annexure 1, which mandates the use of the government’s contact tracing app – Aarogya Setu – for all private and public employees, and obligates employers to ensure 100% coverage.

To those who have followed the many twists and turns of the Aadhaar story, this metamorphosis from “voluntary” to “voluntary-mandatory” to “effectively mandatory” will have a familiar ring – the pandemic probably just accelerated the pace of transformation from a few years to a few weeks. The mandatory imposition of Aarogya Setu through executive decree, however, suffers from serious legal problems, discussed below.

The Absence of Anchoring Legislation

As pointed out repeatedly on this blog, the legal framework for the government’s pandemic management strategy has been the National Disaster Management Act, which has an umbrella clause permitting the issuance of guidelines and directions aimed at addressing disasters. Previously on this blog, we have discussed the separation of powers and other democratic problems that come with using vague enabling legislation to anchor a wide-reaching executive response. When it comes to the infringing of rights, however, the problem is even more acute: Part III of the Constitution requires that even before we get to the discussion of whether a rights violation is justified or not, there must exist a law that authorises it. Any such law has to be specific and explicit with respect to the rights that it seeks to infringe, the bases of infringement, the procedural safeguards that it establishes, and so on.

The NDMA cannot be such a law, because it says absolutely nothing about the circumstances, manner, and limitations under which the government is authorised to limit or infringe civil rights (in this case, the right to privacy). The enabling clauses do not help, because – as pointed out above – they are generic enough so as to permit just about any executive decree that (the executive believes) is required to tackle the disaster. If the NDMA was indeed accepted as the basis, then this would effectively subvert the legality requirement entirely and across the board: there could, hypothetically, be one single umbrella legislation that stipulates that “the government may do anything that it believes is reasonable to achieve the public interest” , and do away with any further need for lawmaking in toto. This, however, is the very definition of rule by executive, instead of the rule by and of law.

It should be noted that the proposition I am advancing here is a very basic one. Last week, for example, the High Court of Kerala refused to allow the government to cut salaries without specific legislation authorising it (the Court correctly observed that the existing provisions of the Epidemics Act and the Kerala Covid-19 Ordinance were far too generic to authorise such a step). We shall discuss the judgment of the Kerala High Court in a subsequent post, but for now, suffice it to say that this is not just a basic proposition under Indian law, but a basic proposition everywhere. The Israeli High Court – not exactly known for being a hotbed of bleeding-heart liberal jurisprudence – held a few days ago that the Shin Bet could not engage in surveillance without authorising legislation. A few months ago, the High Court of Kenya held that GPS Coordinates and DNA samples could not be collected under cover of a general law, but – at the very least – would require “anchoring legislation” to do so.

The requirement of specific legislation is not a mere procedural quibble, but a crucial constitutional point. One, of course, is the separation of powers issue, which we have discussed before: if the State is going to mandate an intrusive, data-collecting app upon its citizens, then the least that ought to be done is that it be authorised by the citizens’ elected representatives, in Parliament. Equally importantly, however, a hypothetical “Aarogya Setu law” will necessarily have to demonstrate constitutional compliance with respect to data protection principles. A good example of this – again – is the history of Aadhaar: once it became clear to the government that it actually had to pass an Aadhaar Act, the accompanying infrastructure – including limitations upon the use of Aadhaar – also had to be considered. Writing out these provision in law also enabled an informed challenge in Court, where at least a part of the Act was struck down for being unconstitutional (I need not go over that again here). Blithely mandating Aarogya Setu in one sentence through an executive decree tears the constitutional architecture to shreds.

The Proportionality Test(s)

Given the government’s penchant for Ordinances (the Kerala government has, for example, issued an ordinance to get around the High Court’s salaries judgment), the requirement of legislation is unlikely to present an effective check upon executive abuse. That, however, makes it important to highlight that there exist serious substantive constitutional concerns with the mandatory use of the Aarogya Setu app.

As is well known, the proportionality standard for adjudicating whether a violation of the right to privacy is justified or not has four prongs: legality (requirement of a law, with a legitimate purpose), suitability (the government’s action must be suitable for addressing the problem, i.e., there must be a rational relationship between means and ends), necessity (i.e., it must be the least restrictive alternative), and proportionality stricto sensu (there must be a balance between the extent to which rights are infringed and the State’s legitimate purpose).

There is, by now, extensive literature on the question of the very effectiveness of contact-tracing apps to fight a pandemic such as Covid-19. As this Brookings Paper shows, (a) contact tracing is effective where there exists large-scale testing capacity and less spread (the first condition certainly does not exist in India today); (b) there is a high risk of false positives and false negatives, something that gets worse as the population size increases (recent examples in India bear testimony to this); (c) the absence of complete smartphone penetration can defeat the purpose (particularly true for India) (the authors also point out other risks, such as social stigmatisation). It is, therefore, an open question whether the second limb of the proportionality test – suitability/rationality – is satisfied.

The problem grows more severe when we come to the necessity prong (discussed previously on this blog as well). The data collection practices of the Aarogya Setu app – and how they fall short of constitutional standards – have already been discussed extensively (see here, here, here, and here). Now, it is not the purpose of this post to engage in a detailed technical discussion about whether the Aarogya Setu app complies with the third limb of the proportionality standard or not (much of that work may be accessed in the links above). However, there is a broader legal point that needs to be noted. This is the issue of burden: it is well-established under Indian constitutional jurisprudence – most recently in the Aadhaar judgment – that once a prima facie violation of privacy has been demonstrated, the burden of justification (under the proportionality standard) shifts to the State. In other words, it is for the State to show that the suitability and necessity prong of the proportionality standard are satisfied. A necessary corollary of this is that as far as the suitability prong goes, the State cannot mandate the use of a privacy infringing app before it is first demonstrably established that a means-ends relationship actually exists. Thus, if – as the Brookings analysis shows – there is a non-trivial likelihood that the app in question cannot achieve the very (legitimate) purpose that it is designed for, it cannot be made mandatory.

Secondly, as far as the necessity prong goes, it creates a constitutional obligation upon the State to be transparent about the basis for choosing this app, designed in this way. Were less intrusive alternatives considered (see the IFF working paper linked above)? If so, were they found non-suitable for the goal? If not, why were they rejected? And even if not, why is there not a mandatory sunset clause here? Once again, this is not a radical legal proposition: in the Aadhaar judgment, the mandatory linking of bank accounts with Aadhaar was struck down precisely on the basis that there existed less restrictive alternatives, and that the government had comprehensively failed to provide any reasons why they had not been considered. It is fair to say that if the government cannot even show why it has chosen a more intrusive data collecting app over a less intrusive alternative (that exists), then it is in no sense a constitutionally justified decision.

Conclusion

The government directive mandating Aarogya Setu for all public and private employees suffers from serious legal flaws. In the absence of a specific anchoring legislation, it fails the first limb of the proportionality test. And on more substantive grounds, the government bears the burden of showing that the design of the app satisfies both the suitability and the necessity prongs of the test – a burden that, thus far, remains undischarged (indeed, going by blithe ministerial statements about how the app might continue to be in use for two years, there seems to be very little appetite in the government to even attempt to discharge that burden). There would, therefore, appear to be excellent legal grounds for a challenge to the NDMA Direction; of course, the prospect of any such challenge succeeding at a time when the Court appears to have withdrawn itself from its task of rights adjudication, is another matter.

Guest Post: The UP Hoardings Case and Misplaced Comparativism

[This is a guest post by Shubhangi Agarwal and Harsh Singh.]

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In March, the Uttar Pradesh administration had ordered the putting up of banners in Lucknow with names, photographs and addresses of more than fifty CAA – NRC protesters, asking for compensation from them for allegedly causing damage to private and public property. Observing a clear case of a breach of privacy, the Allahabad High Court took suo moto cognizance and registered a PIL against the government administration. The court rightly ruled that the actions of the state are “an unwarranted interference in privacy of people” (discussed here). However, this decision was appealed before the Supreme Court, and the apex court, after placing reliance on a UK Supreme Court judgment, ordered that the case be referred to a larger bench for consideration. This article seeks to juxtapose the crisp and timely intervention of the Allahabad High Court with the Supreme Court’s referral order and analyzes the apex court’s misplaced reliance on UK case law.

The Allahabad High Court’s swift justice

The Allahabad High Court criticised the UP administration for displaying such banners on the roads. It applied the proportionality test laid down in the Puttaswamy judgment and observed that the authorities failed it on all the three counts. Firstly, there was no law which permitted such actions. Secondly, the aim to deter mischief and recover money from protesters for alleged damage to public property was not a legitimate aim, as they were not fugitives, and there was no need to publicize their personal details. Lastly, there existed no rational nexus between the means employed and the objective sought to be achieved. Lakhs of accused persons in UP were also facing criminal trials but their personal details were never subjected to such publicity. The court even went on to remark that “the placement of personal data of selected persons reflects colorable exercise of powers by the Executive.”

The Supreme Court’s waywardness

The Supreme Court, on the other hand, shied away from its responsibilities when dealing with the same questions. It relied on a UK Supreme Court case – In the matter of an application by JR38 for Judicial Review (Northern Ireland), and referred the appeal to a larger bench. It is pertinent here to explain the facts of the foreign case to distinguish it from our case. In the UKSC case, the appellant, aged fourteen years, was engaged in rioting and his CCTV footage (taken during the course of rioting) was published in two newspapers by the police authorities. The publication was done to ‘identify’ him and to deter future disturbances. The question was whether there was a breach of privacy under Art. 8 of ECHR.

The UK Supreme Court judgment on this can be divided into two parts – the majority opinion and the minority opinion. The majority (Lord Toulson, Lord Clarke and Lord Hodge) opined that there could have been no reasonable expectation of privacy in the facts of the case, because of the nature of the criminal activity the appellant was involved in. Therefore, the appellant could not have expected non-publication of his photograph by the police for his identification. However, their conclusion that the appellant did not have any reasonable expectation of privacy was greatly dependent upon the ‘identification’ purpose of the police.

Lord Clarke, with whom Lord Hodge concurred, held that (paragraph 112):

I agree with Lord Toulson that on the facts here the criminal nature of what the appellant was doing was not an aspect of his private life that he was entitled to keep private. He could not have had an objectively reasonable expectation that such photographs, taken for the limited purpose of identifying who he was, would not be published. I would not however hold that the mere fact that a person is photographed in the course of a criminal activity deprives him or her from the right to prevent the police from publishing the photographs. Thus, if the photographs had been published for some reason other than identification, the position would have been different and might well have engaged his rights to respect for his private life within article 8.1. I would not therefore put the point quite as broadly as Lord Hope does in para 21 of Kinloch quoted above.

The minority opinion (by Lord Kerr and Lord Wilson) held that that the appellant retained a reasonable expectation of privacy primarily because he was a child at the time the photograph was taken, and factors like age, consent, and risk of stigma also play a role when determining the question of privacy. However, after applying the proportionality test, the judges came to the conclusion that the interference with the appellant’s right to privacy under Art. 8 of ECHR was justified for the same reasons as that of the majority opinion.

Lord Kerr J. with whom Lord Wilson concurred, stated (paragraphs 41 and 76):

Prima facie, therefore, the taking and use of a photograph of an individual will lie within the ambit of article 8. The essential question is whether it is removed from that ambit because of the activity in which the person is engaged at the time the photograph was taken and because the person could not have a reasonable expectation that his or her right to respect for a private life arose in those particular circumstances. The fact that the activity in which the person is engaged is suspected to be criminal will not, by reason of that fact alone, be sufficient to remove it from the possible application of article 8.

The painstaking approach taken by the police service to the objective of identifying young offenders such as the appellant has been explained by Chief Inspector Yates and Superintendent Robinson. Internal police inquiries were made; community leaders and social services were asked whether they could identify those involved; and it is ironical that the appellant and his father were shown the photograph that was later published. Had they identified the appellant, no publication would have occurred.”

 

As is clearly evident from the above paragraphs, the photograph was published with the clear purpose to identify the wrongdoer; in the present case, however,, banners with personal details were put up to seek compensation from protesters for damage to public property, and to ‘name and shame’ them. There is a stark contradiction in both the objectives. These protesters were not fugitives and were not trying to bypass their interrogation and trial.

Conclusion

Only a few days before this referral order, the Supreme Court in Shah Faesal v Union of India, had remarked on judicial references. It had noted that “when substantial judicial time and resources are spent on references, the same should not be made in a casual or cavalier manner.” Regrettably, it failed to follow its own laid down principle. Moreover, the recovery notices which were issued to the protestors were challenged by them and the matter was already pending before the court. In such circumstances, the reference order was evidently unjustified. The result of this was that the swift justice delivered by the Allahabad High Court was derailed in the Supreme Court, in no small part because of erroneous reliance upon UKSC case law, as well as a failure to correctly apply the Puttaswamy judgment.

Coronavirus and the Constitution – XV: The Odisha High Court on the Ban on Vehicles [Guest Post]

[This is a guest post by Amlan Mishra.]

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In an order delivered two days ago, the Odisha High Court has partially lifted the de-facto ban on movement of vehicles without prior permission of the police. The court held that access to essential commodities stood hindered for people because of this ban, unless the state could put a mechanism in place to make these commodities available near the consumers. It is interesting to note that there has been no official notification, communication or publicized s. 144 order regarding such a ban. The authorities had decided that this was an effective way to implement the social distancing protocol. Accordingly vehicles were being ‘confiscated’ by the police if they were found to be moving without proper passes. The police seemed to argue that walking to the nearby marketplace was the best option for the people. I will show that in lifting the complete ban, the court understood the true meaning of proportionality, and recognized the disproportionate impact it would have on certain groups of people.

Proportionality of movement restrictions

Previously, it has been argued on this blog that a complete curfew like ban on ‘individual movement’ has not been contemplated under the NDMA Act or the Epidemic Diseases Act. The EDA, however, gives broad powers to the state government to control movement of individuals. Gautam Bhatia has rightly pointed out that the ban on individual movement is proportionate only if it allows for exceptions like movement for purchase of essential commodities. Relying on a much more pointed UK regulation, Bhatia has argued that proportionality mandates the following restrictions: “if you are (a) an individual, or a group of two people, (b) are stepping outdoors for a listed activity, or (c) have another reasonable ground for making essential travel, then that is permitted.” Inherent here is the idea that the pandemic spreads by human contact, not by the mere act of stepping out, thus a complete ban on movement cannot pass the test of proportionality.

Accordingly, the Odisha High Court has held that a complete ban on the use of vehicles for buying essential commodities will not pass the threshold of proportionality. The ban is therefore subject to ‘satisfactory explanation by riders’. It performs the balancing exercise thus:

“Until any particular guideline and proper arrangement are brought in the matter of above, there should not be complete ban of movement of two wheelers and relaxation may be made subject to satisfactory explanation by such riders. This may not be construed to be a complete lifting of Ban. As it is for the complete lockdown situation, people of the State are also in serious misery and complete ban of movement of two wheelers in absence of system making availability of essential commodities at the walk-able distance will add further to the miseries of the people.”

Interestingly, the state government had been constantly telling people that proper arrangements have been made to provide them essential goods at close quarters. Arrangements for a few delivery vans etc were being made, according to the police. But the court did not seem satisfied by these assurances. Inherent here was the idea that lived realities of the people did not endorse the assumption that proper arrangements had been made by the government. This approach of the court needs to be juxtaposed with the ‘trust’ that constitutional courts increasingly repose in the executive when it comes to emergencies, even when the question involves fundamental rights. This order provides a welcome departure from the trend of courts camouflaging these questions as matters of policy, or appealing to the best judgement of the executive.

Disproportionate impact on some groups

The order also notes that while asking people to ‘walk’ may seem innocuous it has disproportionate impact on some groups over the other:

Keeping in view the precarious condition prevailing in the State having no particular mechanism in the matter of availability of vegetables, medicines and other such usable items within walkable distance for all, collection of same involves different category of people including Senior Citizens, women and persons unable to ride cycle may be forcing many people to move to particular areas for such collection.

 

This is also a welcome acknowledgement by the court that walking long distances to get essentials may have disproportionate impact on some groups over the other. As has been argued elsewhere in this blog: for the purposes of constitutional adjudication the ‘effect’ of the restrictions on rights matter, not the intention of the government. The effect test is also an established precept of anti-discrimination law, whereby disproportionate impact of a measure on a particular group because of any immutable feature/choice (gender etc) falls foul of the constitution. This action must be appreciated in the background of the Supreme Court’s distasteful remarks questioning the need to ensure payment of wages available to workers (a group disproportionately affected by the lockdown).

Seizure of vehicles and levy of fine

Interestingly, the court also lays down that seized vehicles should be immediately released, upon taking an undertaking from the driver, and such vehicles should be allowed to pass at least ‘thrice’ thereafter, without any levy of fine or punishment. This assumes special importance in light of State Amendments that have recently increased fines and the duration of imprisonment under the EDA. The court appears cognizant of the fact the ultimate determination of whether a particular movement is for ‘essential goods’ or not would fall on the policemen on the ground. A three time leeway to previous offenders was accordingly given to shrink the room for arbitrariness.

Notably, once the government assured the court that vending stalls have been set up in all residential areas of the twin-cities of Bhubaneshwar and Cuttack, this order was modified to allow this leeway only to ‘disabled persons’ and ‘senior citizens’. The modification of the order shows that the court’s role through crucial is limited to plugging access to fundamental rights and limiting arbitrariness.

Overall, the order ticks many boxed of what constitutional courts are expected to do in these times: question ‘adequacy’ of measures taken by the executive; balance rights with the emergency of the situation; lastly acknowledge and mitigate disproportionate impact of measures on vulnerable groups.