“Freebies” at the Supreme Court

In Ashwini Kumar Upadhyay v the Union, the Supreme Court is currently hearing a petition challenging the practice of political parties to promise “irrational freebies” if elected to power. This post examines past instances where courts have been asked to curb identical practices, most notably the distribution of colour TVs and laptops by state governments in Tamil Nadu. However, unlike those cases where the Court was faced with concrete schemes (identifying the exact schemes alleged to be a “freebie”); the petition in Ashwini Kumar Upadhyay is a plea to restrict the practice in the abstract. Indeed, a perusal of the courtroom exchanges suggests substantial disagreement over what constitutes a “freebie”, highlighting the problem with engaging with such issues in the form of public interest litigation. The crux of the issue can be summed up by two observations by the Chief Justice. First, that ‘India is a welfare state and individuals want public distribution schemes, but money should also be spent on building infrastructure’, and second, there is an element of fiscal irresponsibility with such schemes.

The disagreement over what constitutes a “freebie” and the Chief Justices concerns raise two principled issues: (i) how to decide what is ‘good’ and ‘warranted’ public expenditure (e.g., should the government build roads to increase real income by facilitating economic activity, or should it directly give cash to people), and (ii) who should choose amongst competing approaches to ‘good/warranted’ public expenditure. Examining past decisions of the Court it is apparent that what constitutes ‘good’ public expenditure has turned on interpreting the phrase ‘for a public purpose’ in Article 282 of the Constitution (more on that later). On the second question, while it is traditionally the elected government that decides what approach to pursue, the petition in Ashwini Kumar Upadhyay seeks judicial regulation of what kinds of approaches an elected government should be allowed to promise voters, shifting the balance away from elected governments to the judiciary and technocrats. This is demonstrated by the Court’s 3 August order constituting an ‘Expert Committee’ to decide whether parties should be allowed to offer “irrational freebies”.

This post begins by examining how the Court, when confronted with the promises by Tamil Nadu governments of TVs and laptops, effectively refused to engage in this area. Relying on Amartya Sen’s ‘capabilities’ framework, it then argues that deciding what constitutes ‘good’ public expenditure is not a technical problem, but rather a value judgement by each citizen on whether a governmental measure will help them achieve the goals they themselves desire in the circumstances they face. Given this, the answer to the second question of ‘who decides’ must be – the citizens. The post concludes by suggesting approaches the Court could adopt that are consistent with its constitutional role and past decisions.

Colour TVs in Tamil Nadu

As recently as 2013, the Supreme Court in Subramaniam Balaji v Tamil Nadu heard a challenge to the practice of both DMK and AIDMK governments promising to distribute (at government expense) inter alia colour TVs, grinders, and laptops to citizens if elected to power. Among several issues, the Court had to determine: (i) whether such promises were “corrupt practices” (namely bribery) under Section 123 of the Representation of the People Act, 1951 (“RPA”); and (ii) whether these schemes were for a “public purpose” under Article 282. This was because Article 282 provides that the Union or States can make a grant (i.e., expenditure) on any subject, even if not empowered to pass laws on the subject, if the expenditure is for a “public purpose”. Prior to Subramaniam Balaji, a Constitution Bench in Bhim Singh had interpreted the term “public purpose” broadly, as anything that furthered the Directive Principles of State Policy or the goals of political, social, and economic justice found in the Constitution’s Preamble. However, the petitioners in Subramaniam Balaji argued that the distribution of household appliances did not further these objectives and thus expenditure on these items fell foul of Article 282.

On the question of bribery under Section 123 of the RPA, the Court in Subramaniam Balaji ruled that the promise to distribute goods if elected did not constitute bribery. The Court noted that almost every promise in an election manifesto (even if not promising “freebies”) was a promise of some benefit to induce an elector to vote in a particular way (¶53). For example, the Court noted that even a promise to develop a particular locality was effectively a promise to induce a voter. Noting that Section 123 was a penal provision that to be interpreted strictly, the court ruled that manifesto promises were not hit by Section 123 of the RPA. This highlights the definitional problem of what constitutes a “freebie”. Almost every promise by a political party, from loan waivers, to grain distribution, to distributing TVs, results in a benefit to someone, and the Court was unwilling to effectively criminalise the promise of a better, future government.

However, this raises the issue of whether there is a material difference between building roads or simply handing over TVs, which was dealt with under the framework of Article 282’s “public purpose”. Is building roads expenditure for a “public purpose” while handing over TVs not for a “public purpose”. The Court ruled that an elected government was within its rights to choose amongst competing ways to improve individuals’ livelihoods. Justice Sathasivam for the Court,

“The concept of State largesse is essentially linked to Directive Principles of State Policy. Whether the State should frame a scheme, which directly gives benefits to improve the living standards or indirectly by increasing the means of livelihood, is for the State to decide […] The concept of livelihood and standard of living are bound to change in their content from time to time. It is factual that what was once considered to be a luxury has become a necessity in the present day. (¶¶ 57, 61) (emphasis added)”

To recap, on the question of what constitutes ‘good’ or ‘warranted’ public expenditure, the Court in Subramaniam Balaji tied “public purpose” in Article 282 to the broad concept of improving livelihoods but held that the provision did not discriminate between competing approaches to improving livelihoods.

 On the question of who decides, the Court was perhaps even more emphatic – not it.

“Judicial interference is permissible when the action of the Government is unconstitutional and not when such action is not wise or that extent of expenditure is not for the good of the State. We are of the view that all such questions must be debated and decided in the legislature and not in the court (¶62).”

Capabilities

The Court’s approach to the two questions of what constitutes ‘good’ expenditure and who decides finds strong support in Amartya Sen’s, Development as Freedom. Sen notes that different philosophical theories offer competing answers to maximising public welfare. For example, utilitarianism may argue that public expenditure should maximise the ‘utility’ or ‘well-being’ of citizens (often translated into real income). However, Sen notes that such singular metrics fail to capture the diversity of individuals and the circumstances they face. The classic example provided is that of a bicycle: if the government were to distribute bicycles to all citizens, the value (or ‘utility’) derived from the bicycle would be radically different for an abled bodied and a disabled person. However, diversity is not limited to personal characteristics, but the physical and social environments individuals face (e.g., a rural and urban dweller), the relational diversity amongst citizens (e.g., as hinted by Justice Sathasivam, a laptop may be a necessity for some and not for others), and the diversity in family structure (e.g., improved roads may not result in added utility to a woman if her husband does not let her drive).

Faced with this diversity, Sen argues that public welfare must be evaluated by the extent a measure enhances the freedom of individuals to pursue outcomes the individuals’ themselves value in the circumstances they face (i.e., an individual’s capabilities). From this lens, the answer to whether public expenditure is ‘good’ or ‘warranted’ is not a static conception of “public purpose” or maximising utility, or long-term economic growth, but whether the expenditure enhances the ability of individuals to pursue outcomes they value. This may be different for a disabled person, an urban dweller, and a woman. This inescapably has a bearing on the second question of who decides what types of public expenditure should be undertaken.

Because the touchstone for public expenditure is whether it enhances an individual’s ability to pursue goals they themselves value, Sen argues that deciding amongst competing governmental measures is not a mathematical or technical question, but rather question of “valuation and judgement”. He thus rejects placing such decisions in the hands of technocrats (like the Supreme Court’s Expert Body). Further, because this judgement has a social element, the “acceptability to others” of any decision arrived at is crucial. As individuals are best placed to decide if roads or cash will help them pursue the goals they desire, the process of deciding must be one where all individuals have their say. Democratic process ensure that this decision making is divided equally across the electorate and thus the outcome sufficiently legitimate that individuals are willing to accept the result even if it isn’t exactly what they wanted. As Subramaniam Balaji notes, this discussion is best had in legislatures, and in the case of poll promises, amongst and by the electorate.

Conclusion

Perhaps most troubling of all is that we have been here before. In the aftermath to Subramaniam Balaji, while dismissing the petition the Court requested the Election Commission of India to frame certain guidelines on the types of promises that could be included in election manifestos. These guidelines, now an annexure to the Model Code of Conduct state that: (i) manifestos cannot contain anything repugnant to the ideas and principles of the Constitution; (ii) while no objection may be taken to the promise of welfare schemes, promises which contravene the ‘purity of the election process’ should be avoided; and (iii) manifestos should reflect the rationale of welfare promises and indicate the manner in which they will be finances.

It is submitted that these guidelines offer a direction the present hearings in the Supreme Court should take. Promoting scrutiny and enhancing public reasoning of public expenditure is a valuable goal the Court is equipped to undertake. This would also combat the risk of fiscal irresponsibility highlighted by the Chief Justice. The Supreme Court (minus the farce that is now Electoral Bonds) has a long history of empowering the Election Commission to compel disclosure and aid informed decision making by voters. Rather than enter the quagmire of whether “freebies” are a waste of public expenditure, the Court could focus on enforcing the Election Commission’s guidelines on explaining the financing for welfare schemes. For example, the Congressional Budget Office in the United States provides independent analyses of budgetary and economic proposals. The Office is set up by statute, has strict rules on independence, and does not make policy recommendations because (in words Sen would approve off) ‘public policy inevitably involves value judgements that the agency does not and should not make.’ This represents an elegant balance between enhancing public scrutiny of government expenditure while letting citizens choose amongst competing approaches to their own welfare.   

Coronavirus and the Constitution – XXX: PM-CARES Fund and the Right to Information Act [Guest Post]

[This is a guest post by Shloka Shah.]

---

On March 28, a public charitable trust in the name of the Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (“PM CARES”) was announced to combat the effects of the COVID-19 pandemic. On May 29, in response to an application filed under Section 6 of the Right to Information Act, 2005 (“RTI/Act”), the PM’s Office refused to divulge information about the Fund, stating that it did not fall under the ambit of ‘public authority’ under Section 2(h) of the Act. Through the Supreme Court’s (“SC”) analysis of the relevant provisions of the Act, I intend to counter this response, and analyze the exemptions available to a public authority from disclosing information.

Meaning of ‘Public Authority’

Access to information under the control of public authorities is a fundamental right guaranteed under Article 19(1)(a) of the Constitution. It is therefore imperative to understand its scope. Under the RTI Act, Section 2 states:

(h) “Public authority” means any authority or body or institution of self-government established or constituted—

a. by or under the Constitution;

b. by any other law made by Parliament;

c. by any other law made by State Legislature;

d. by notification issued or order made by the appropriate Government,

and includes any—

(i) body owned, controlled or substantially financed;

(ii) non-Government organisation substantially financed,

directly or indirectly by funds provided by the appropriate Government.

PM CARES is not a product of the first three clauses. Given that the legal origin of the Fund is shrouded in secrecy, as the trust deed has not been made public, application of the fourth clause is debatable. This line of reasoning has been argued before Court in the past on Prime Minister’s National Relief Fund (“PMNRF”) (more on this ahead).

What brings PM CARES under the ambit of this section is sub-clause (i). In D.A.V. College Trust & Management Society v. Director of Public Instructions the SC bench comprising of JJ. Deepak Gupta and Aniruddha Bose were faced with applicability of the RTI Act to a body not constituted under an act or notification made by the Government. Holding the section to be “inartistically worded”, the Court noted “a big gap” between the four clauses (a) to (d) (“first part”) and following two sub-clauses (i) and (ii) (“second part”). Applying the principle of purposive construction, the Court interpreted as follows, in paragraph 17:

We have no doubt in our mind that the bodies and NGOs mentioned in sub-clauses (i) and (ii) in the second part of the definition are in addition to the four categories mentioned in clauses (a) to (d). Clauses (a) to (d) cover only those bodies, etc., which have been established or constituted in the four manners prescribed therein. By adding an inclusive clause in the definition, Parliament intended to add two more categories, the first being in sub-clause (i), which relates to bodies which are owned, controlled or substantially financed by the appropriate Government. These can be bodies which may not have been constituted by or under the Constitution, by an Act of Parliament or State Legislature or by a notification. Any body which is owned, controlled or substantially financed by the Government, would be a public authority.

The scope of a ‘body owned or controlled’ by the Government was discussed by the SC bench comprising of JJ. K.S.P. Radhakrishnan and A.K. Sikri in Thalappam Service Co-op Bank Ltd. v State of Kerala:

A body owned by the appropriate Government clearly falls under Section 2(h)(d)(i) of the Act. A body owned, means to have a good legal title to it having the ultimate control over the affairs of that body, ownership takes in its fold control, finance, etc. (paragraph 35)

Elucidating further, the Court determined how to test such ownership or control:

We are of the opinion that when we test the meaning of expression “controlled” which figures in between the words “body owned” and “substantially financed”, the control by the appropriate Government must be a control of a substantial nature. The mere “supervision” or “regulation” as such by a statute or otherwise of a body would not make that body a “public authority” within the meaning of Section 2(h)(d)(i) of the RTI Act. In other words just like a body owned or body substantially financed by the appropriate Government, the control of the body by the appropriate Government would also be substantial and not merely supervisory or regulatory.

We are, therefore, of the view that the word “controlled” used in Section 2(h)(d)(i) of the Act has to be understood in the context in which it has been used vis-à-vis a body owned or substantially financed by the appropriate Government, that is, the control of the body is of such a degree which amounts to substantial control over the management and affairs of the body. (paragraph 44, 45)

That the PM CARES Fund is substantially controlled by the Government is evident from its management. The Board of trustees comprises of the Prime Minister as the ex-officio Chairman, and the Ministers of Defence, Home Affairs and Finance as ex-officio trustees. The trustees alone determine how the funds accumulated will be disbursed, as was made evident by the announcement of utilizing INR 3,100 crores on May 13.

It is even recognized as a ‘fund set up by the Central Government for socio-economic development and relief’ by the Ministry of Corporate Affairs (“MCA”) in a statement accepting contributions to the Fund as CSR under Section 135 of the Companies Act, 2013. Interestingly, the MCA categorizes such contributions under the ambiguous entry (viii) of Schedule VII, which relates to ‘social projects’, and not entry (ix), which relates to ‘contribution to the PMNRF or any other fund set up by the Central Government or the State Governments for socio-economic development and relief’, in spite of using those very words. One can only interpret this as a pre-emptive measure to bring the Fund outside the purview of Section 2(h), should it ever be (successfully) challenged in Court.

Since its genesis, the PM CARES Fund has attracted widespread comparisons with the PMNRF. They are analogous in their manner of creation (PMNRF was established subsequent to an appeal made by Pandit Jawaharlal Nehru to combat the effects of Partition), constituent members (PMNRF is also managed by the PMO), and recognized as public trusts liable for 100% tax exemption under Section 80G of the Income Tax Act, 1961. They are also not audited by the Comptroller and Auditor General of India (“CAG”).

In light of this, it becomes relevant to examine the Delhi High Court’s judgment in Prime Minister’s National Relief Fund v Aseem Takyar. The question of whether PMNRF could be interpreted as a public authority under Section 2(h) of the Act was placed before JJ Ravindra Bhat and Sunil Gaur, with the bench rendering a split decision. The matter is presently referred to a third judge.

Justice Bhat, recognizing that Government Servants holding positions in their ex-officio capacity, ipso facto does not amount to the Government exercising control, nonetheless differentiated this principle from PMNRF as follows:

[…] However, PMNRF is not managed by mere officers or government employees. It is PMNRF is headed by Constitutional Authority, i.e. the Prime Minister of India and administered by the Joint Secretary to the Prime Minister-as Secretary of the fund. In addition, who is assisted by the officer of the rank of a director. Furthermore, all disbursements from PMNRF are made solely on the discretion of the Prime Minister. He or she is a public authority and decisions taken by him or her with respect to operation of PMNRF cannot be said to be made in a personal capacity. The decisions of the Prime Minister in this regard must be taken to be official decisions. To say that the use of funds is a personal decision, is a half truth. No doubt, the decision of where to use the funds or make disbursements, is subjective and discretion dependent. However, the use of those funds are not for a personal purpose; rather it is always for some public purpose.

Additionally, recognizing that the three conditions laid down in Section 2(h)(d)(i) are distinct from each other, Justice Bhat brought PMNRF under the ambit of ‘public authority’. Therefore, the summary dismissal of the RTI application by the PMO’s Central Public Information Officer (“CPIO”) was not good in law.

Available Exemptions

The right to information is not absolute. It is fettered in part by Section 8 of the Act, which lays down ten exemptions from disclosure of information. The ones relevant here are Sections 8(1)(e), which protects information emanating from a public authority’s fiduciary relationship with another, and Section 8(1)(j), protecting personal information, the disclosure of which is irrelevant for public interest. Neither of these are applicable to PM CARES Fund.

In Central Board of Secondary Education v Aditya Bandopadhyay, the question for consideration was whether an examinee could review his corrected answer booklet from CBSE, which had rejected such request citing breach of ‘fiduciary relationship’ under Section 8(1)(e) of the Act. The bench comprising of JJ. R.V. Raveendran and A.K. Patnaik discussed as follows:

The term “fiduciary” refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term “fiduciary relationship” is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction(s). The term also refers to a person who holds a thing in trust for another (beneficiary).

While the Court ultimately held that no fiduciary relationship existed between the two, even if one were to assume its existence, the scope of Section 8(1)(e) only extended to prevent information from being disseminated to a third party:

There is no question of the fiduciary withholding information relating to the beneficiary, from the beneficiary himself. (para 44)

 

As a public charitable trust, the beneficiary of the PM CARES Fund is the public at large. Therefore, while the Fund may reserve furnishing information about specific third parties, general questions such as corpus of funds accumulated should not be rejected.

The test to determine the existence of a fiduciary relationship was discussed in Reserve Bank of India v Jayantilal Mistry. The SC bench comprising of JJ. Eqbal and Nagappan laid down a four-pronged test, consisting of (1) No conflict rule; (2) No profit rule; (3) Undivided loyalty rule; and (iv) Duty of confidentiality, the existence of all conditions being necessary pre-requisites. Noting that PIOs often misused Section 8 to defeat the purpose of the Act, the Court held:

[…]Since the RTI Act is enacted to empower the common people, the test to determine limits of Section 8 of the RTI Act is whether giving information to the general public would be detrimental to the economic interests of the country? To what extent the public should be allowed to get information? (para 65)

In relation to PM CARES, this question is best answered by Justice Ravindra Bhat in PMNRF (supra) itself:

In the present matter, the Fund does not offer any service to the donors or the beneficiaries. Furthermore, the relationship between PMNRF and the donors/beneficiaries does not take colour of a ‘fiduciary relationship’ as described above. The donors do not repose trust in PMNRF in conducting their business and the same holds true for the beneficiaries. On the contrary, the act of donation is an act of charity which is not sufficient to establish a fiduciary relationship. Therefore, the question of there existing a fiduciary relationship does not arise. Consequently, the defence of exemption sought by the Appellant under Section 8(1)(e) of the RTI Act is not sustainable.

As for Section 8(1)(j), a constitution bench of the SC comprising of JJ Gogoi, Ramana, Chandrachud, Gupta and Kaul in Supreme Court of India v Subhash Chandra Agarwal stressed on the need to strike a balance between right to information under Article 19(1)(a) and right to privacy under Article 21, with right to ‘informational privacy’ being recognized in K.S. Puttaswamy & Anr. v Union of India. Any invasion of an individual’s personal information, which does not warrant public interest (i.e., something to know in interest of public welfare, not merely something which is of interest to the public) can thus be protected. But even this is conditional – if on weighing the risks, the CPIO if of the opinion that dissemination of such information is vital, then he may proceed to make such information available. Thus ‘public interest’ is supreme.

It is important to note that in both reported RTI applications rejected by the PMO, no such information was sought. Additionally, the CPIO always has the option to ‘sever’ personal information under Section 10 of the Act. Public interest is clearly at stake, just as it was for PMNRF, as noted by Justice Bhat in his judgment (supra):

A disclosure of such information will ensure that the voluntary donations made by the citizen body is not appropriated by any government official. In this regard, the disclosure of the information sought by the petitioner indeed serves a public purpose. (para 35)

Conclusion

While the PMO’S CPIO continues to deflect important questions on the PM CARES Fund, and the SC continues to dismiss PILs questioning the legality of the Fund as frivolous and ‘having political colour’, giving petitioners the option to either withdraw or pay fines, some progress in the search for clarity comes from the Nagpur Bench of the Bombay High Court. On June 2, a division bench of JJ. S.B. Shukre and A.S. Kilor issued notice to the Fund’s trustees to file an affidavit stating their stand within two weeks, despite the Additional Solicitor General Anil Singh’s contentions that a similar petition was earlier dismissed by SC. The High Court differentiated based on reliefs sought, which included a periodical update on the quantum of funds accumulated, appointment of remaining trustees from opposing political parties and brining the Fund under the review of the CAG. With some glimmer of hope, it remains to be seen how the matter will unfold.

The RTI Judgment: On Proportionality

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

---

Elsewhere, I have analysed the recent judgment of the Supreme Court, holding that the Right to Information Act applies to information held by the Office of the Chief Justice of India. In this post, I want to briefly flag an issue that cropped up in each of the three opinions in the case: applying the doctrine of proportionality to a case of balancing rights.

Recall that the Majority Opinion holds that under Sections 8 and 11, the right to privacy must be “balanced” against the “public interest” in disclosure. In paragraph 88, the Court observes that this balance is achieved through an application of the proportionality standard, drawn from Puttaswamy. The Majority Opinion applies the proportionality standard to highlight – for example – the “nature and type” of information as relevant indicative factors for the Public Information Officer to consider when deciding whether or not to provide the information. In his Concurring Opinion, Ramana J does something similar, noting that “the contextual balancing involves ‘proportionality test’. [See K S Puttaswamy v. Union of India, (2017) 10 SCC 1]. The test is to see whether the release of information would be necessary, depends on the information seeker showing the ‘pressing social need’ or ‘compelling requirement for upholding the democratic values’.” (paragraph 41)

There is, however, a slight problem with this form of analysis. The proportionality standard in the context of privacy violations, as developed in Puttaswamy, is applicable against the State. It consists of a four-pronged test that is applies to decide whether rights-infringing State action is constitutionally valid or not. The “balancing” in this case, however, is not between State goals and the right to privacy. Rather, it is between two rights: the right to privacy and the right to information (which, in social terms, becomes the “public interest” in disclosure of information).

The proportionality standard sits uneasily with the second situation. To see why, consider for example the “necessity” prong of the test. Necessity requires that the infringing law be the “least restrictive” alternative; in other words, the infringement of rights must be to the least degree that is consistent with achieving the State’s goals. That makes perfect sense when you are considering State action; however, how do you apply that when you have to balance two rights against each other? Both the parties in this case have normative claims against each other, founded in rights. So you cannot simply ask, for example, is this claim to information the “least” amount that can be asked for in order to satisfy the claimant’s purpose? Consequently, without a clearer anchor, the invocation of the proportionality standard in the Majority Opinion and in Ramana J.’s concurrence, can end up becoming a shield for arbitrary and ad hoc “balancing of interests” by Public Information Officers.

The issue is addressed to an extent in the concurring opinion of Chandrachud J. In paragraph 89, he observes that:

It is also crucial for the standard of proportionality to be applied to ensure that neither right is restricted to a greater extent than necessary to fulfil the legitimate interest of the countervailing interest in question.

Chandrachud J. provides greater clarity in paragraph 111, where he quotes the opinion of Baroness Hale in Campbell v MGN Ltd. In that case, Baroness Hale noted that:

The application of the proportionality test is more straightforward when only one Convention right is in play: the question then is whether the private right claimed offers sufficient justification for the degree of interference with the fundamental right. It is much less straightforward when two Convention rights are in play, and the proportionality of interfering with one has to be balanced against the proportionality of restricting the other. As each is a fundamental right, there is evidently a ―pressing social need to protect it … this involves looking first at the comparative importance of the actual rights being claimed in the individual case; then at the justifications for interfering with or restricting each of those rights; and applying the proportionality test to each.

Chandrachud J. interprets this to mean:

As observed by Baroness Hale, both the right to privacy and the right to information are legitimate aims. In applying the principle of proportionality, the Information Officer must ensure that the abridgement of a right is not disproportionate to the legitimate aim sought to be achieved by enforcing the countervailing right. (paragraph 112)

In practice, therefore, this would appear to be a two-step test. First, you apply a proportionality analysis to the question of the infringement of privacy occasioned by the demand for information. You identify the policy underlying the latter, treat that as the “legitimate aim” under the proportionality framework, and then apply the four-pronged test (including the necessity/least restrictive alternative prong). Then, you flip it around, and repeat the same process – but this time, the right is the right to information/freedom of expression, and the “legitimate aim” is the policy underlying the protection of privacy.

It may be conceptually possible that the PIO might find that the “right” to privacy is being disproportionately infringed by the claim to information, but also that the freedom of expression is disproportionately infringed if the information isn’t disclosed. Such a clash is unlikely to happen in practice, though; it might, however, demonstrate a need for the actual analysis to be done in one step (in the “balancing” form outlined above – or a more refined variant of how earlier Indian cases have done it: simply by asking which of the two rights in this case would serve “greater” public interest, if implemented), while for conceptual reasons, the two need to be kept separate.

The devil, of course, will be in the details; and as the proportionality standard continues to take root and grow in Indian constitutional jurisprudence, such difficult issues about its meaning and application will continue to come up before courts.

 

The Tribunals Judgment – II: On Independence

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

---

In yesterday’s post, I discussed the significance of the Tribunals Judgment on the vexed issue of money bills. Today’s post discusses the judgment’s engagement with the principal legal provision under challenge – Section 184 of the Finance Act. While the majority upheld the constitutionality of the Finance Act – but struck down the Rules framed under it – Chandrachud and Gupta JJ, writing separate dissenting opinions, struck down the primary legislation as well.

Recall that Section 184 of the Act authorised the Government to “by notification, make rules to provide for qualifications, appointment, term of office, salaries and allowances, resignation, removal and the other terms and conditions of service” of Tribunal Members. It set upper age limits, and prohibited the variance of the terms and conditions to the detriment of members, after their appointment. The Petitioners argued this amounted to excessive delegation, and would make “the Tribunals amenable to the whims and fancies of the largest litigant, the State.” On the other hand, the Section was defended by the Union of India on the ground that the existence of multiple Tribunals in the country required harmonisation.

The Majority Opinion 

The Act

The Majority Opinion restated the law on excessive delegation, noting that what is prohibited is the “abdication or effacement by conferring the power of legislation to the subordinate authority” (in this case, to the government) – that is, “essential legislative functions” could not be delegated. Or, to put it another way, legislation would have to stipulate the policy with sufficient clarity, while leaving the implementation of it to the executive branch.

Applying this test, the Majority held that Section 184 did not suffer from excessive delegation. However, the Majority’s rationale for that was somewhat curious. In paragraph 143, it noted:

The objects of the parent enactments as well as the law laid down by this Court in R.K. Jain (supra), L Chandra Kumar (supra), R. Gandhi (supra), Madras Bar Association (supra) and Gujarat Urja Vikas (supra) undoubtedly bind the delegate and mandatorily requires the delegate under Section 184 to act strictly in conformity with these decisions and the objects of delegated legislation stipulated in the statutes. It must also be emphasised that the Finance Act, 2017 nowhere indicates that the legislature had intended to differ from, let alone make amendments, to remove the edifice and foundation of such decisions by enacting the Finance Act. Indeed, the learned Attorney General was clear in suggesting that Part XIV was inserted with a view to incorporate the changes recommended by this Court in earlier decisions.

In other words, the Majority held that the “policy” came not from the Finance Act, but from previous judgments of the Court that had set out the framework within which Tribunals would necessarily have to function; and it then deemed that the Finance Act had adopted this framework, as it had given no indication to the contrary. This framework, the Majority went on to hold, was constituted by principles such as independence (both individual, and institutional) of the Tribunal. Independence required “a sufficient degree of separation” between Tribunals and the Government:

Functional independence would include method of selection and qualifications prescribed, as independence begins with appointment of persons of calibre, ability and integrity. Protection from interference and independence from the executive pressure, fearlessness from other power centres – economic and political, and freedom from prejudices acquired and nurtured by the class to which the adjudicator belongs, are important attributes of institutional independence. (paragraph 144)

It must be said that this is a somewhat innovative development in the law of excessive delegation. Interestingly, the Court was unable to provide precedent to support its view that “legislative policy” – the existence of which was an essential precondition for delegation to be valid – could itself be – er – delegated to the Courts instead. That said, however, this was a highly specific case: the history of Tribunalisation in India has been a history of dialogue between the Court and the Legislature; in a sense, the constitutional framework within which Tribunals function has evolved out of this dialogue. To the extent that the Majority Opinion is justifiable, then, it is a justification that – at best – is limited to the facts of this case.

The Rules

Having laid out the principle of independence – and what it required – the Majority went on to examine the Rules that the government had passed under Section 184. Appointment to the Tribunals were to be made upon the recommendation of a “Search-cum-Selection Committee.” These Committees were dominated by government nominees and bureaucrats. On this basis, the Majority Opinion held that “the lack of judicial dominance in the Search-cum-Selection Committee is in direct contravention of the doctrine of separation of powers and is an encroachment on the judicial domain.” (paragraph 153) This was specially important because “the Executive is a litigating party in most of the litigation and hence cannot be allowed to be a dominant participant in judicial appointments.” (paragraph 157)

Next, the Majority found that the qualification of the members was lacking. Technical members without any adjudicatory experience could be appointed, and Presiding Officers need not have any judicial experience. This was particularly important, as these Tribunals had been formed after divesting the Courts from adjudicating in these domains; consequently, it was necessary that “the qualification and acumen of the members in such Tribunal must be commensurate with that of the Court from which the adjudicatory function is transferred.” (paragraph 163) And even the qualifications of judicial members had been weakened, with a substantial amount of discretion being placed in the hands of the government, to appoint individuals it considered suitable. This, the Majority held, was unconstitutionally vague.

Thirdly, the Majority found that the removal process vested too much power in the hands of the government as well; the government could constitute a committee, which could recommend removal. The Court noted that “it is well understood across the world and also under our Constitutional framework that allowing judges to be removed by the Executive is palpably unconstitutional and would make them amenable to the whims of the Executive, hampering discharge of judicial functions.” (paragraph 169)

Fourthly, the Majority found that there were inconsistencies in retirement ages, and the tenures themselves were short – they were of three years. The Court held that “a short tenure, coupled with provision of routine suspensions pending enquiry and lack of immunity thereof increases the influence and control of the Executive over Members of Tribunals, thus adversely affecting the impartiality of the Tribunals.” (paragraph 175)

On the bases of these findings (summed up in paragraph 179), the Majority Opinion found the Rules to be unconstitutional, and struck them down.

These observations and findings are undoubtedly correct. The Majority Opinion drew a clear link between institutional independence (the “policy” underlying tribunalisation, as reflected in the Finance Act), and the government control over (a) appointments, (b) qualifications, (c) removal, and (d) tenure. It also went on to note – while considering the issue of a “nodal agency” to oversee the functioning of tribunals – the importance of (e) financial independence.

And lastly, the Majority Opinion found that direct appeals from the Tribunals to the Supreme Court were constitutionally problematic, and directed the government to reconsider the appeals process within six months. Perhaps unfortunately, however, the Majority Opinion framed this as a question more about judicial efficiency, and less about a valuable procedural right to access the High Courts under Article 226.

The Concurring/Dissenting Opinions

A large part of Justice Chandrachud’s substantive analysis of the Act was integrated with his analysis of the Money Bill issue (discussed in the previous post). Chandrachud J. did note, however, that:

By leaving the rule making power to the uncharted wisdom of the executive, there has been a self-effacement by Parliament. The conferment of the power to frame rules on the executive has a direct impact on the independence of the tribunals. Allowing the executive a controlling authority over diverse facets of the tribunals would be destructive of judicial independence which constitutes a basic feature of the Constitution. (paragraph 88)

While this was not framed as a response to the Majority Opinion on the issue of excessive delegation, in effect, that is what it is. According to Chandrachud J., Parliament could not validly delegate “controlling authority” over Tribunals to the Executive, given the overarching framework of judicial independence. On the analysis of the Rules, Chandrachud J.’s analysis mirrored that of the Majority.

Lastly, on the issue of excessive delegation, Gupta J. filed a brief opinion agreeing with Chandrachud J. As he observed:

We are in the present case dealing with the appointment of Chairpersons/Members to various Tribunals. They are enjoined upon to discharge a constitutional function of delivering justice to the people. What should be the essential qualifications and attributes of persons selected to man such high posts is, in my view, an essential part of legislative functions. (paragraph 27)

Gupta J. went on to make the important point that the Constitution itself could not have “delegated” the appointment process for judges to the executive (although recall that the NJAC did delegate it to the legislature!). And if Tribunals were meant to substitute for Courts, then – logically – the same considerations had to apply. Gupta J. specifically took issue with the Majority Opinion that the legislative policy was provided by the judgments of the Court; he noted – and in my view correctly – that it could not always be assumed that the other branches were prompt and accurate in following Court judgments.

Addendum: Impact upon the RTI Amendments 

Previously on this blog, we have discussed the amendments that were made to the RTI Act earlier this year. In a similar fashion, the RTI Amendments had delegated to the Government authority over the constitution and running of the Information Commission, through secondary legislation. Now, it is true that the Information Commission is not identical to the Tribunals that were dealt with under the Finance Act. That said, however, in my view, this judgment has an important impact upon the RTI Amendments – and the Rules that were subsequently framed.

First, let us see the extent to which there is similarity between the two situations. In my view, the similarity exists in two important respects. First, in view of the fundamental right to information, and the role played by the Information Commission (as I argued in that earlier post), the requirement of individual and institutional independence is at least as pressing for the Information Commission as it is for the Tribunals. Secondly, the presence of the government as the largest litigator was an important factor in this case; in the RTI context, however, the Government is an even bigger litigator, as information requests are made to Public Information Officers. Institutional independence, then, becomes even more important.

With that having been established, this judgment makes clear that (a) appointment, (b) qualifications, (c) removal, (d) tenure, and (e) financial independence are all integral facets of institutional independence. While the Court’s specific findings with respect to the adjudicatory character of the Tribunals may not be directly applicable (although the point is arguable), the link between the above five factors and government control applies across the board. The RTI Rules, therefore, can be directly examined under this framework.

And lastly, as I have argued above, the Majority Opinion’s finding that Section 184 did not suffer from excessive delegation was based upon the very specific history of the tribunalisation. In the absence of that history, I believe that it is more than arguable that the RTI Amendments suffer from the vice of excessive delegation (again, in the context of the fact that the right to information is a fundamental right); indeed, Chandrachud and Gupta JJ.’s dissents on the point show us exactly how.

It remains to be seen, however, how the Courts will deal with these issues if a challenge is brought before them.

 

The RTI Amendments: Constitutional Statutes in Precedent and Practice

In the previous two posts, Malavika Prasad and I have developed the concept of a “constitutional statute”, in the context of the recent amendments to the Right to Information Act. In the first post, I argued that a constitutional statute provides a statutory framework towards implementing a fundamental right, thereby fulfilling the State’s positive obligation to do so. This is what justifies the status of the Information Commissioners under the RTI, and the requirement of independence – akin to election commissioners and judges – flowing therefrom. In the second post, Malavika further refined the idea, arguing that not every statute implementing a fundamental right has the status of a constitutional statute. There must either be a delegation to Parliament expressly envisaged in the Constitution itself (such as the case of elections), or the statute must – in some way – regulate the relationship between the individual and the State; and it is the manner in which that relationship is structured that gives rise to the specific constitutional implications at issue (such as, in the case of the RTI, the requirement of that Information Commissioners be independent).

In this concluding essay in the series, I will address one important objection to this argument: that because, unlike Election Commissioners and Judges, Information Commissioners do not have formal constitutional status, it follows that the constitutional safeguards applicable to the former (especially the safeguarding of independence and autonomy) cannot apply to the latter. The theoretical justification was provided in the first post, where I discussed Tarun Khaitan’s idea of “fourth branch institutions”, which may or may not find specific place in the Constitution, but which nonetheless perform functions (such as regulating the individual/State relationship in the manner described above) that justify bringing them together under one head when it comes to issues such as independence and autonomy. And in this post, I will conclude the argument by discussing how this proposition has already been affirmed by the Supreme Court, in the context of cases involving the Central Vigilance Commission (CVC) and the Central Bureau of Investigation (CBI).

Recall that, upto a point, neither the CVC nor the CBI had any statutory foundation. That changed in Vineet Narain v Union of India. Recall that the case arose out of an allegation that the CBI was not doing its job under political pressure. After passing a series of interim orders effectively placing various investigations under its direct supervision, in its final judgment, the Supreme Court made the following observations:

In view of the common perception shared by everyone including the Government of India and the Independent review Committee (IRC) of the need for insulation of the need for insulation of the CBI from extraneous influence of any kind, it is imperative that some action is urgently taken to prevent the continuance of this situation with a view in ensure proper implementation of the rule of law. This is the need of equality guaranteed in the Constitution. The right to equality in a situation like this is that of the Indian polity and not merely of a few individuals. The powers conferred on this Court by the Constitution are ample to remedy this defect and to ensure enforcement of the concept of equality.

In other words, therefore, the independence of the CBI – as a body tasked with investigating offences that often involved powerful and politically influential people – flowed from the constitutional principles of equality and the rule of law. Having noted this, the Court then passed legislative guidelines under Article 142 (the Vishaka technique), which would hold the field until a suitable statutory framework was established. The Court once again repeated that these guidelines were being passed in order to implement equality and the rule of law.

And what of the Guidelines themselves? Apart from insisting that the CVC be given a statutory basis, the Court also laid down a number of guidelines to ensure independence: these included setting out the appointments process, specifying that the tenure of the CVC Director would be two years (recall that a fixed tenure is exactly what the RTI amendments have now done away with), putting brakes on transferring the CBI Director (another thing the RTI amendments now enable), and so on.

In other words, therefore, Vineet Narain stands for two propositions that are relevant to us. First, the Court found that the purpose of the CVC and the CBI was to – inter alia – guarantee the constitutional principles of equality and the rule of law, by ensuring that the highest and most influential of people would be brought to book if they broke the law. Flowing from this, the Court laid down a set of guidelines to ensure the independence of the officers in these posts. And secondly, the Court’s opinion was that fixed tenure and constraints upon transfers were crucial aspects of guaranteeing such independence.

Let us now fast-forward twenty-one years, to the notorious Alok Verma case of late 2018. Recall that the core issue in that case involved the transfer of the CBI Director. Of course, in 2018, there was a statutory framework. The CVC Act had been brought into force, and the DSPE Act had been amended to include the CBI Director. The Supreme Court’s guidelines – including those on independence – had been legislatively enacted. The question in Alok Verma involved the interpretation of that statutory framework.

After going through the history of the CVC and the CBI, in paragraph 24, the Court noted the submission of Alok Verma’s counsel:

Shri F.S. Nariman and Shri Dushyant Dave, learned Senior Counsels, who have argued the case for Shri Alok Kumar Verma, Director, CBI and Common Cause have contended that the history of the institutional framework surrounding the CBI leading to the statutory enactments in question and the views expressed in the judgment of this Court in Vineet Narain (supra), including the operative directions under Article 142 of the Constitution, can leave no doubt that the judicial endeavour should/must always be to preserve, maintain and further the integrity, independence and majesty of the institution i.e. CBI. This is the core intent behind the statutory enactments and the amendments thereto, details of which have been noticed. The Director of the CBI is the centre of power in an abundantly powerful organization having jurisdiction to investigate and to prosecute key offences and offenders having great ramifications and consequences on public life. There can be no manner of doubt that the Director who has been given a minimum assured tenure of “not less than two years” must be insulated from all external interference if the CBI has to live up to the role and expectations of the legislature and enjoy public confidence to the fullest measure. This is how the provisions of the cognate legislations i.e. the CVC Act, 2003 and DPSE Act, 1946 (as amended), must be interpreted, according to the learned counsels. It is specifically urged that the embargo under Section 4B(2) of the DSPE Act which mentions that the Director shall not be transferred except with the previous consent of the Committee must be construed in the broadest perspective to include any attempt to divest the Director, CBI of his powers, functions, duties, etc. in any manner whatsoever and not necessarily relatable to the transfer of the incumbent as is understood in ordinary parlance. According to the learned counsels, unless such a meaning is attributed to the provisions of Section 4B(2) of the DSPE Act, the legislative intent would be rendered futile and so would be the entire judicial exercise culminating in the operative directions of this Court in Vineet Narain (supra).

I have extracted the entire paragraph because, in essence, what Fali Nariman and Dushyant Dave argued in Alok Verma’s case is precisely the argument we are making here for constitutional statutes. The analysis starts with the functions being performed by the body. If these functions include implementing a constitutional right and standing between the individual and the State, then certain further requirements flow from that. One specific requirement is that of independence and autonomy (a characteristic feature of constitutional functionaries) – in turn, guaranteed by a fixed tenure, constraint upon transfers, and so on. And most notably, these requirements exist independent of the fact that the officials in question are not formally constitutional functionaries, and also, independent of the specifics of the statutory framework in place; rather, they flow from constitutional imperative, with the task of the statutory framework being to supplement and give effect to them (which is exactly why, in the absence of a statute, the Supreme Court passed legislative guidelines in Vineet Narain; without the above analysis, it should be clear, the Court could not have done what it did in Vineet Narain).

Notably, in Alok Verma’s Case, the Supreme Court agreed with this argument. In paragraph 32, it noted that the statutory framework of the CVC Act and the DSPE Act was a “sequel” to the directions in Vineet Narain (which, in turn, it is important to reiterate, flowed from the constitutional function being performed by the CBI). The Court then noted in paragraph 33 that – specifically – Vineet Narain’s observations on independence and insulation – grounded in the right to equality and the rule of law – “hold a special field.” The Court then applied these principles to interpret the DSPE Act and find that Alok Verma’s transfer was not in accordance with law.

Reading together the judgments in Vineet Narain and Alok Verma, what clearly emerges is the fact that even though the CBI was not – and never had been – provided for in the Constitution, its role and functions (implementing fundamental rights and standing between individuals and the State) required a guarantee of independence in a manner broadly similar (although, of course, different in the particulars) to constitutional functionaries. In particular, security of tenure and constraint upon transfers were treated as vital to securing that independence.

There is precedent, therefore, for the argument to treat the Information Commission as a “fourth branch” institution similar to the CBI. Although, of course, the two bodies perform very different functions, what unites them is that they implement fundamental rights, and – in different ways – stand between individual and State, with a view to making the latter accountable to the former. This is what gives the statutory framework regulating these bodies the status of constitutional statutes, and this (especially the latter) is what requires guarantees of independence with which the statutory framework itself must comply. And the focus on tenure and transfers shows that a dilution in those areas does undermine independence, and that therefore, a strong case can be made for holding it to be unconstitutional.

Guest Post: RTI and the Idea of a Constitutional Statute

(This is a guest post by Malavika Prasad.)

---

The RTI Amendment Act 2019 has been critiqued for compromising the independence of the RTI’s “nerve-centre” – the Information Commissioners [“ICs”] and the Chief Information Commissioner [“CIC”]. It is argued that “the RTI Act was designed to redress the imbalance of power between citizens and the State…” In that context, the CIC and ICs, being tasked with “adjudicating between the two…”, need to be independent of the State. The Amendment – it is argued – eviscerates the ability of the CIC and ICs to be independent, because government gets to “control the terms of appointment as well as the salaries of the information commissioners.”

An alternate view has been that the mere conferral of rule-making power on government to decide tenure, salary and conditions of service, is not sufficient to conclude that independence of ICs and the CIC is at stake. Moreover, the amendment specifies two protections: “salaries, allowances and other conditions of service of” CICs or ICs “shall not be varied to their disadvantage after their appointment”, and the CIC and ICs appointed prior to the Amendment shall continue to be governed by the provisions of this Act and rules that were applicable then. These would prevent government from willy-nilly targeting inconvenient officers through its rule-making power, particularly since the provision on removing ICs and the CIC remains untouched by the Amendment. Any further comment on the loss of independence from government, for ICs and the CIC will only be possible once the new rules are enacted, the argument goes.

In this post, I attempt to develop a normative account of “constitutional statutes”, which Gautam Bhatia asserts the RTI is a classic example of. I then propose that for “constitutional statutes” of the type at issue here, the Constitution structurally requires independence between the government and the institutions at issue. On that account, I will attempt to answer the question whether the mere conferral of rule-making power by government to decide salaries and conditions of service, without more, is unconstitutional.

What might a constitutional statute be?

Bhatia argues that “constitutional statutes” are those statutes “enacted in pursuance of the State’s positive obligation to fulfil a constitutional right.” Other jurisdictions such as the UK have used this formulation as well. Lord Justice Laws, in Thoburn v Sunderland City Council [2002] 3 WLR 247, held that a constitutional statute “enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.” What exactly is the State’s obligation towards “fulfilling a constitutional right”? Constitutional rights are merely the floor. While governments have a positive obligation to ensure no individual is subject to treatment below the floor, there is no constitutional prescription on the extent to which government ought to positively fulfil the right above the floor. Any step taken by government to fulfil a right, to any extent above the floor stipulated in Part III, is a step towards discharging its positive obligation. On this reasoning, arguably, all laws are enacted in pursuance of the State’s positive obligation to fulfil constitutional rights.

But is this sufficient to make all such laws “constitutional statutes”? I think not. Something more is required.

For clues on what might qualify as “constitutional statutes”, I propose to rely on the structure of government as gleaned from constitutional text. In drawing inferences about constitutional principles from the structure of the government and its relationship with other institutions and citizens, I make what theorists like Phillip Bobbitt and Charles Black call a “structural argument.”

Some constitutional provisions state that the domain of that provision will be open for Parliament to legislate on, so long as the legislation is in line with the Constitution. Article 327 is one such provision:

327. Power of Parliament to make provision with respect to elections to Legislatures: Subject to the provisions of this constitution, Parliament may from time to time by law made provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.

The power allowed to Parliament in Article 327 extends to “all matters relating to, or in connection with, elections to either House…”. The only caveat is that the parliamentary power shall be “subject to the provisions of this Constitution.”  Should Parliament choose to exercise this power allowed to it, in line with the constitutional provisions in the domain of elections, Parliament will be enacting a “constitutional statute” by fleshing out rules in line with the constitutional logic for that domain. Thus, the Representation of the People Acts (RPA) of 1950 and 1951 are “constitutional statutes”. This understanding is somewhat in line with Lord Justice Laws’ second formulation in Thoburn: that a constitutional statute “conditions the legal relationship between citizen and State in some general, overarching manner.”

Is the RTI Act a constitutional statute?

If Parliament enacts laws in the election domain under Article 327, it ought to obey the following provisions:

1. On “conditions of service and tenure of office” in the proviso to Article 324(5): The conditions of service of the Chief Election Commissioner (CEC) cannot be varied to his or her disadvantage after appointment.
2. On removal from office in Proviso to Article 324(5):
   1. The CEC cannot be removed from office except by following such procedure and on such grounds that Judges of the Supreme Court may be removed.
   2. Election commissioners and regional commissioners cannot be removed from office except by recommendation of the CEC.

The requirement of parity between Judges of the Supreme Court and the CEC on the question of removal from office is telling. Judges can be removed from office only by an order of the President, supported by a majority of the members of both Houses of Parliament and two-thirds present and voting, on grounds of “proven misbehaviour or incapacity” (Article 124(4)). The purpose of such a stringent removal provision is to guard the independence of the Supreme Court from government’s executive power – which can otherwise be used to willy-nilly target judges tasked with adjudicating cases in which government is a litigant. It is this same kind of structural independence that Article 324 intends to preserve between the Election Commission and government, in the removal clause, to enable it to be a neutral arbiter between government, voters, and candidates and parties contesting elections. By extension, all the requirements of Article 324 can be understood in terms of the need to preserve the Election Commission’s institutional independence from government. Thus, the RPAs and other laws enacted Parliament under Article 327 will thus have to be in line with this constitutional mandate.

Crucially, therefore, it follows from the structure of the Election Commission/Supreme Court and their relationships with government, that the Constitution is committed to ensuring the independence of all institutions tasked with being an arbiter between government and citizens. The RTI Act – which seeks to enable ICs and the CIC to be arbiters on the question whether government-information is disclosable or privileged – would thus also be covered by this principle. If the RPA, 1950 and RPA 1951 are constitutional statutes, then the RTI Act, by necessary inference, would also be a constitutional statute. In fact, the unamended RTI Act mandated that salaries and conditions of service of ICs and the CIC be the “same as that of” Election Commissioners and the CEC.  This shows that even the enacting Parliament understood the RTI Act to be structurally similar to the RPAs and the election law regime.

What turns on the RTI Act being a “constitutional statute”?

That the RTI Act is a “constitutional statute” does not automatically make the 2019 amendment unconstitutional. The devil, as they say, is in the details.

Returning to the structural analysis of the Election Commission, we find that the Constitution contemplates its institutional independence on two fronts: varying the conditions of service of the CEC, and procedure for removal from office of the CEC and election commissioners/regional commissioners. The rules on these two aspects, encoded in Article 324(4) are the express textual constraints on Parliament’s power to enact the “constitutional statute” on elections under Article 327. So long as a parliamentary law does not violate the rules on the two fronts read purposively, and other provisions of the Constitution generally, Parliament’s power to enact the “constitutional statute” is plenary. This is evident from the text of Article 327 which allows Parliament the power to legislate on “all matters relating to, or in connection with, elections to either House…” – the significance of which becomes clear when compared with the more limited power to legislate on merely the time, place and manner of elections that is allowed to state legislatures and the Congress in Article 1, Section 4 of the American Constitution. If Parliament enjoys a plenary power to enact laws on elections subject to the express constraints in Article 324(5) and other provisions of the Constitution, then Parliament’s power to enact other structurally similar constitutional statutes such as the RTI Act must be bound by structurally similar constraints.

The RTI 2019 amendment does not permit varying conditions of service of the CIC and ICs to their disadvantage after appointment. Likewise, it does not change the rules on removal of the CIC and ICs, which, under Section 14 of the Act, can be done only on “ground of proved misbehaviour or incapacity” after a Supreme Court inquiry on a reference of the President. Thus, as a constitutional statute, the RTI 2019 amendment obeys the requirements laid out in the Constitution for institutions such as the Election Commission, which are structurally and relationally similar to ICs and the CIC.

The tenure of ICs and the CIC, which was statutorily fixed at five years, is now, along with salaries and other conditions of service open to government to prescribe by way of rules, per the 2019 amendment. Can the mere conferral of rule-making power on government on these aspects be constitutionally suspect? Article 324(5) leaves the tenure and conditions of service of election commissioners and regional commissioners to the power of Parliament under Article 327. Parliament ought to enact laws in this regard, towards fulfilling the purpose of ensuring the Election Commission’s independence from government, and in line with the Constitution’s provisions generally. The Parliament may choose to do this by delegating rule-making power in this regard to government, since the mere act of delegation of legislative power does not compromise institutional independence or violate other provisions of the Constitution. Applying the same reasoning to the RTI context, the RTI is a constitutional statute which must ensure independence of ICs and the CIC from government. Consequently, any delegated legislation enacted by government empowered to do so by the RTI 2019 amendment will need to preserve the independence of ICs and the CIC and be otherwise constitutional.  This inquiry, however, can only be done once rules are enacted by government.

The Amendments to the Right to Information Act are Unconstitutional

Yesterday, the Rajya Sabha passed a set of amendments to the Right to Information [“RTI”] Act of 2005, clearing the way for their enactment into law (after Presidential assent). These amendments – as I have summarised here – effectively undermine the independence of the Information Commissioners, by bringing their salaries and terms of appointment under the control of the central government.

In this essay, I will argue that these amendments are unconstitutional. The argument is a complex one, and so, I will set out the fundamental premises at the beginning, before developing each in turn. These are:

A. The right to information is a fundamental right. It is an aspect of Article 19(1)(a) of the Constitution (the freedom of speech and expression).

B. The Constitution’s guarantee of fundamental rights includes a guarantee of those incidental and ancillary aspects that are necessary to ensure that the right is effective, and not merely illusory.

C. Fundamental rights under the Indian Constitution have a negative and positive dimension. In their negative dimension, they protect the individual against State interference. In their positive dimension, the State is required to take affirmative action to respect, protect, promote, and fulfil these rights.

D. The Court cannot direct the Parliament to legislate in order to discharge its positive obligations under Part III of the Constitution. However, what the Court can do – and has done – is (1) in case of a legislative vacuum, to pass guidelines that have statutory force until a law is enacted, and (2) if a law exists, to test whether it fulfils the State’s positive obligations under Part III.

E. In case of (2), if the Court finds that the legislation comes up short, it can – and has – interpreted or struck down parts of the statute with a view to bringing it in compliance with constitutional requirements.

F. It follows logically from (E) that if an existing statute that meets the positive obligations of the State under Part III is downgraded (via amendment) to a level where it no longer does so, the Court can – and should – strike down the amendments and restore status quo.

Conclusion: On a combination of (D2) and (F), the RTI Amendments are unconstitutional. The RTI is a classic example of a “constitutional statute” – i.e., a statute enacted in pursuance of the State’s positive obligation to fulfil a constitutional right. Judicial review extends to testing whether it does so, and to fashioning an appropriate remedy if – and depending on the manner in which – it fails to do so. In this case, that remedy is striking down the amendments and restoring the pre-amended RTI. This remedy does not amount to directing the State to legislate, and does not amount to judicial overreach.

A. The Right to Information is a Fundamental Right under Article 19(1)(a) of the Constitution

As recently as 2013, the Supreme Court held – in a judgment dealing with the Right to Information Act – that “the right to information is a facet of freedom of speech and expression contained in Article 19(1)(a) of the Constitution of India… [the] right to information thus indisputably is a fundamental right, so held in several judgments of this Court.” This Supreme Court has consistently maintained this position – over decades – and there is little need to set out the plethora of judgments affirming this proposition.

Apart from being firmly entrenched in judicial precedent, the reading in of the right to information into the freedom of speech and expression makes eminent sense as a matter of first principles. For more than a century now, one of the three core underlying justifications of the freedom of speech and expression has been its importance to democracy. Only through the free flow of ideas and information – it is rightly argued – are citizens in a position to effectively exercise their democratic right of choosing their representatives. It is trite to point out that if information held by State authorities is choked off from the public domain, then the bridge between the freedom of speech and democracy crumbles entirely. The right to information, therefore, is – by necessary implication – entailed within a substantive account of the freedom of speech and expression, without which the latter would be illusory (much like how the right to privacy underlies numerous other civil rights – such as speech, association, movement etc. – and is necessary to make them effective).

B. The Constitution’s guarantee of fundamental rights includes a guarantee of those incidental and ancillary aspects that are necessary to ensure that the right is effective, and not merely illusory.

This, again, is a venerable and incontestable proposition. It has been upheld in a number of cases. One classic example is PUCL v Union of India, where the Supreme Court directed the Election Commission to provide a “None of the Above” [NOTA] option to voters using Electronic Voting Machines. This direction was justified on the basis that NOTA was essential to maintain the secrecy of the ballot as well as the fairness of elections – both of which, in turn, were linked to the freedom to vote under Article 19(1)(a). Note that the Court specifically held that by failing to provide the NOTA option, the Conduct of Election Rules were not only ultra vires the parent statute, but also violated Article 19(1)(a) of the Constitution.

Again, it is unnecessary to multiple examples for the proposition. Its application to the present case should be evident as well: insofar as the independence of the Information Commissioners – who stand between the individual and the State, and are tasked with the implementation of the RTI – is integral to the right to information remaining an effective right, undermining of the same is ipso facto a violation of that right.

C. Fundamental rights under the Indian Constitution have a negative and positive dimension. In their negative dimension, they protect the individual against State interference. In their positive dimension, the State is required to take affirmative action to respect, protect, promote, and fulfil these rights.

This proposition has been affirmed by different judgments in different contexts. For example, in Prithipal Singh v State of Punjab – a case about police atrocities – the Supreme Court held that Article 21 “includes both so-called negative and positive obligations for the State. The negative obligation means the overall prohibition on arbitrary deprivation of life … [while] positive obligation requires that State has an overriding obligation to protect the right to life of every person within its territorial jurisdiction. The obligation requires the State to take administrative and all other measures in order to protect life and investigate all suspicious deaths.” In Amita v Union of India – a discrimination case – the Supreme Court held that “Article 14 of the Constitution of India is both [a] negative and positive right. Negative in the sense that no one can be discriminated against anybody and everyone should be treated as equals. The latter is the core and essence of right to equality and [the] state has obligation to take necessary steps so that every individual is given equal respect and concern which he is entitled as a human being.” The Supreme Court’s much-discussed highway liquor ban judgment, in fact, was based on the argument that the State had failed to discharge its positive obligation to protect life under Article 21, by failing to ban liquor vends next to highways in order to prevent accidents. Examples may be multiplied.

Of course, the most recent – and famous example – of this proposition is the Right to Privacy judgment (and, as we shall shortly see, both the privacy judgment and the subsequent Aadhaar judgment are crucial to this argument). In Puttaswamy (Privacy), Chandrachud J. – writing for the plurality – correctly observed that “the Constitutional right is placed at a pedestal which embodies both a negative and a positive freedom. The negative freedom protects the individual from unwanted intrusion. As a positive freedom, it obliges the State to adopt suitable measures for protecting individual privacy.” As is obvious from the rest of his judgment – noting, in particular, the work of the Srikrishna Committee – suitable measures includes suitable legislative measures.

Let us briefly take stock. It has been established so far that the right to information is a fundamental right, under Article 19(1)(a) of the Constitution. The right to information includes incidental and ancillary aspects that ensure it is an effective – and not illusory – right, one of which is the independence of the individuals charged with implementing the right (particularly against the State). And the right to information requires the State to “adopt suitable measures” guaranteeing its adequate fulfilment. It follows – necessarily – that these “suitable measures” provide for the effective independence of the aforementioned individuals (because, naturally, measures providing for an illusory right to information are hardly “suitable” under any meaning of the word, and hardly effectuate the positive content of the right.

D. The Court cannot direct the Parliament to legislate in order to discharge its positive obligations under Part III of the Constitution. However, what the Court can do – and has done – is (1) in case of a legislative vacuum, to pass guidelines that have statutory force until a law is enacted, and (2) if a law exists, to test whether it fulfils the State’s positive obligations under Part III.

Let me begin this section by quickly getting a red herring out of the way. It is nobody’s case that what follows from (A), (B), and (C) is that the Court can issue a mandamus directing Parliament to legislate a Right to Information Act providing for suitable independence of the Information Commissioners. Such a move would be a blatant violation of the separation of powers, and the Court has not – and should not – resort to it.

At the same time, however, the Supreme Court has devised a set of more conservative remedies to deal with situations where the State refuses to discharge its positive obligations, or discharges them in an illusory fashion. A legendary example of the first kind of case, of course, is the Vishaka Judgment. It is important to note that the Vishaka judgment consisted of two parts. In the first part, the Court returned an affirmative finding that sexual harassment at the workplace was hit by Articles 14 and 15 of the Constitution. In the second part, it found that the State had failed to discharge its obligations by … doing nothing at all. Obviously, the obligation that the Court was referring to was the positive obligation to enact an appropriate law (this much was mentioned, although the Court – admittedly – did not use the word “positive”).

Now, what did the Court do? The Court stated that it would discharge its duty of enforcing fundamental rights under Article 32 of the Constitution by laying down guidelines, and these guidelines would be treated as law under Article 141 until replaced by a statute (something that happened many years later, in 2013). Thus, the Court responded to the State’s failure to discharge its positive obligations by temporarily standing in for it, until Parliament got its act together and legislated to do so.

I want to make one basic point here. If Vishaka is still good law – and nobody argues that it is not – then the argument I make in this essay falls well within the scope of existing judicial precedent. Because if the Court is entitled to make law to discharge positive obligations under Part III where the State has failed to act (1), then surely it is entitled to strike down law that changes an existing legislative framework, bringing it into non-compliance with Part III (2). From the scope of the separation of powers and judicial overreach, the latter is far, far more restrained than the former (although I submit, of course, that it is defensible on its own terms).

E. In case of (2), if the Court finds that the legislation comes up short, it can – and has – interpreted or struck down parts of the statute with a view to bringing it in compliance with constitutional requirements.

But we don’t even need to rely upon Vishaka and reason through analogies. There is an excellent recent example of a case where the Supreme Court found an existing statute to fall below the standards required by positive obligations under Part III, and amended and struck down parts of it in order to bring it into compliance. This is, of course, the Aadhaar Judgment (Puttaswamy II). Recall that in Aadhaar, the Supreme Court found that several aspects of the Aadhaar Act were insufficiently protective of individual data. For our purposes here, these included (a) a five-year storage period for metadata, and (b) authorisation to a Joint Secretary-level officer to disclose Aadhaar data.

What did the Court do? It did three different things. On the first, it held that any period beyond six months was excessive, and consequently, the relevant regulations had to be amended to limit collection to six months (the Court also read down the meaning of “metadata”). On the second – which is most important for us – the Court held that “there has to be a higher ranking officer along with, preferably, a Judicial Officer. The provisions contained in Section 33(2) of the Act to the extent it gives power to Joint Secretary is, therefore, struck down giving liberty to the respondents to suitably enact a provision on the aforesaid lines, which would adequately protect the interest of individuals.”

In both cases, therefore, the Supreme Court required the protection level to be scaled up, because on its terms, the legislative framework of the Aadhaar Act fell short of adequately protecting privacy and the right to personal data. In the first case – after finding that the constitutional limit on data retention was six months – it was directed that subordinate legislation be amended to comply; and in the second, the inadequately protective provision was struck down, it was spelt out what adequate protection entailed, and it was left up to the State to “suitably” legislate. Note that it is irrelevant in the first case that subordinate legislation was directed to be amended, because it is not being argued here that the Court can direct Parliament to amend the RTI (or indeed, to legislate the RTI, were it to be repealed). What is relevant here is the Court’s finding that the level of protection afforded by an existing legislative framework was insufficient, its declaration of what was the adequate level (six months and higher-level officer along with a judicial officer), and its fashioning of a remedy (amending subordinate legislation, striking down law to prevent disclosure altogether until suitable protection was offered). And that, it will be noted, is exactly the form of the argument being made here.

F. It follows logically from (E) that if an existing statute that meets the positive obligations of the State under Part III is downgraded (via amendment) to a level where it no longer does so, the Court can – and should – strike down the amendments and restore status quo.

We are now in a position to understand the corollary that flows from the above arguments. There are numerous ways in which the State can fail to fulfil its positive obligations under Part III. It can refuse to enact any legislation. Or it can enact legislation that clearly and self-evidently fails to discharge the obligations in question. In both sets of cases, the Court has fashioned remedies that stop short of a mandamus directing the State to legislate. In the first set of cases, the Court has passed guidelines that hold the field until Parliament steps in. In the second set of cases, it has spelt out how the legislative framework falls short, what manner of framework is minimally necessary for the burden to be discharged, and then – accordingly – fashioned a remedy of changing subordinate legislation or striking down primary law in a way that the pre-existing position (that was more rights-protective) is restored.

But if all this is par for the course, then the argument in the RTI case is positively conservative by comparison. Here, there was no vacuum, and therefore, no requirement for the Court to (effectively) legislate. Nor was there a finding that an originally enacted statutory framework fell short of effectively discharging positive obligations. What was there was an existing framework that did discharge the positive obligation, which was then consciously downgraded to a level that was below effective – or, to put it more bluntly, to a level that made the positive aspect of the right illusory. Now, if the Court – and if you, the reader – agree with the substantive argument that the RTI Amendments undermine the independence of the Commissioners and, by bringing them under governmental control, do make the right illusory – then there can be no doubt that the Court does have the power to strike down the amendments and restore status quo ante. In other words, while there may be a disagreement on the merits of the amendments, if the merits argument is conceded, then there can be no disagreement – based on separation of powers or any other procedural grounds – with the fact that the Court must strike down the amendments as unconstitutional.

Conclusion: On a combination of (D2) and (F), the RTI Amendments are unconstitutional. The RTI is a classic example of a “constitutional statute” – i.e., a statute enacted in pursuance of the State’s positive obligation to fulfil a constitutional right. Judicial review extends to testing whether it does so, and to fashioning an appropriate remedy if – and depending on the manner in which – it fails to do so. In this case, that remedy is striking down the amendments and restoring the pre-amended RTI. This remedy does not amount to directing the State to legislate, and does not amount to judicial overreach.

It remains to clear up a few brief points. One of the government’s justifications for the amendment was that under the old Act, information commissioners had been placed on par with Supreme Court judges and Election Commissioners, which was impermissible, as the latter are constitutional posts. Now, first of all, note that this argument is entirely irrelevant to the core point at issue – which is whether governmental control compromises independence in a manner that makes the right illusory (and indeed, the Supreme Court’s own NJAC judgment has eloquent passages on why the answer to that is a clear “yes”).

There is, however, a more important point to be made here. Yes, formally, Information Commissioners are statutory officers, and they do not occupy constitutional posts. But the matter is not one of pure form: in the beginning of this essay, I had referred to the RTI as a “constitutional statute”, in the sense that it implemented a core fundamental right under the Constitution. Note that this terminology is not new: in the United States, for example, there is the concept of “super-statutes“, which have achieved a “quasi-constitutional significance” beyond ordinary statutes. The phrase “constitutional statutes” itself was used by the famous scholar Charles Beard, who noted that “If we regard as constitutional all that body of law relative to the fundamental organization of the three branches of the federal government–legislative, executive and judicial—then by far the greater part of our constitutional law is to be found in the statutes.” The term has also been used in recent British scholarship.

What I am trying to argue, therefore, is this: we miss the wood for the trees if we draw a facile distinction between the fact that Information Commissioners owe their position to a statute, while judges and Election Commissioners occupy constitutional posts. The whole point of drawing a statutory equivalence between the former and the latter was precisely because the RTI is a constitutional statute, implementing a fundamental right. In substance therefore (although not in form), the Information Commission” is what Tarunabh Khaitan has called a “fourth branch institution“, performing a function that is as valuable (although not formally equivalent) as that performed by the Election Commission or the judiciary. And it follows from this that an attack upon the independence of Information Commissioners needs to be taken as seriously as an attack upon the independence of other, formally constitutional posts.

One final point: subjecting the RTI amendments to a rigorous standard of review is not only well within the judicial domain, but actually, would be part of the classic function of the court acting as a counter-majoritarian institution. By its very nature, the RTI is something that government is instinctively hostile to, as it compels transparency in governance. With the vanishing difference now in India between the executive and the Parliament, the role of the Court in preserving and protecting legislation such as the RTI has only grown in importance.

Consequently, and in sum: the RTI amendments compromise the independence of the Information Commissioners by bringing them under substantive governmental control. The Information Commissioners are tasked with implementing the RTI, and stand between the individual and the State, when the former makes fundamental rights claims upon the latter. Under the existing statutory framework*, therefore, the right to information is illusory without the independence of the Information Commissioners. Consequently, the amendments violate Article 19(1)(a) of the Constitution, and deserve to be struck down, with status quo ante being restored.

---

*To repeat a point made earlier: the existing statutory framework is crucial to the argument, because that is what the amendments depart from, and that is what will be restored if they were to be struck down. To the question of “what would the Court do if the Parliament repealed RTI altogether?”, the answer is “that brings us into Vishaka territory” – but the fact that Parliament could repeal the RTI has no bearing on what the Court should do when the challenge is to an amendment to the existing framework (and which must therefore be measured against that framework) – and not to a legislative vacuum.

Judicial Evasion and the Electoral Bonds Case

On this blog, we have discussed on many occasions a phenomenon that I have labeled “judicial evasion”: by keeping a case pending, and delaying adjudication, the Court effectively decides it in favour of one of the parties (most often, the party in a stronger position, i.e., the government), simply by allowing status quo to continue. A form of judicial evasion has been visible in, for example, the six-year delay in hearing the Aadhaar case (discussed here), the continuing non-decisions in the Delhi v Union of India case (partially discussed here), and the refusal by the Supreme Court to adjudicate the legality of the Bombay High Court censoring a film (discussed here).

However, the Supreme Court’s interim order yesterday in the electoral bonds case presents a textbook example of the subject under discussion. Recall that the electoral bonds case involves a constitutional challenge to the government’s electoral bonds scheme, a method of political funding that is marked by donor anonymity and the elimination of caps on corporate funding (for an extended discussion, see here). After hearing parties for three days, yesterday, the Supreme Court passed an interim order where it refused to stay the scheme, and directed that the details of funding through electoral bonds be made available by political parties to the Election Commission, in a sealed cover, by May 30 (after the end of the general election).

There is a lot to be said for the continuing use of “sealed covers” (especially in a case about the voter’s right to know the sources of public funding), but here, I want to focus on paragraph 11 of the Order, where the Court notes that:

All that we would like to state for the present is that the rival contentions give rise to weighty issues which have a tremendous bearing on the sanctity of the electoral process in the country. Such weighty issues would require an indepth hearing which cannot be concluded and the issues answered within the limited time that is available before the process of funding through the Electoral Bonds comes to a closure, as per the schedule noted earlier.

This may sound reasonable. It is, however, deeply disingenuous. What the Court does not mention here is that the constitutional challenge was filed in early 2018, more than a year ago. It is not as if the petitioners sat on their hands, and waited for the general elections to begin, before rushing to the Court. The scheme was challenged almost immediately after it was enacted into law, notice was issued, and then … nothing happened. In the meantime, electoral bonds were issued on multiple occasions by the SBI, and a significant amount of political funding (more than a hundred crores) was secured through that mechanism, the overwhelming bulk of it going to the ruling party (recall that one of the grounds of challenge is that because of asymmetric anonymity, the scheme unduly favours whichever political party is in power).

The issues at stake were as “weighty” in early 2018, as they are now. Surely, the Court knew this. Furthermore, At the time, there were strong protests against the scheme, and later in the year, a former Chief Election Commissioner publicly criticised them. Everyone knew that general elections would be held in spring 2019. And surely, the Court also knew that an “in-depth hearing” would be required to adjudicate upon the issue. So, to turn around now and act as if these are all fresh developments, that have ambushed the Court unawares, will simply not do: the responsibility for why this hearing only ended up taking place in the middle of the elections, when the Schedule for issuing the Electoral Bonds is more or less over rests solely upon the Court, and it is therefore not open to the Court to now shrug it off by kicking the can off the road.

In paragraph 12, the Court then notes that:

The Court, therefore, has to ensure that any interim arrangement that may be made would not tilt the balance in favour of either of the parties but that the same ensures adequate safeguards against the competing claims of the parties which are yet to be adjudicated.

 

But the Court’s method of ensuring a “balance” is a strange one, because it is effectively to simply let the scheme continue. Ordering that the details of the donations be made available to the Election Commission in a “sealed cover” accomplishes the square root of zero: it would make sense if there was suspicion of illegality. However, the entire constitutional challenge is based on the argument that the Electoral Bond Scheme legalises  wholesale political corruption by allowing for limitless, secret corporate donations to political parties. How exactly, then, has the Court “balanced” the interests of the parties, especially given that a massive chunk of funding through electoral bonds has already taken place over the previous year, because of the Court’s own failure to hear the case?

It is also unclear why three full days of hearing were not enough for the Court to come to a firm conclusion about the prima facie unconstitutionality (or not) of the Scheme, and allow or disallow a stay accordingly. Recall that this is a Court that regularly grants stays on notice day itself, including on issues that are highly complex (the present Chief Justice himself, for example, stayed this very complex Delhi High Court judgment on genetic discrimination on the very first day of hearing). The same Chief Justice has wrapped up two Constitution Bench cases (involving complex issues on separation of powers and on the RTI) within three to four days of hearing, each. How, then, is it suddenly the case that three days of argument are insufficient for grasping the constitutional issues involved in the electoral bonds case?

Ultimately, this has proved to be yet another example of the Court talking a good talk, but failing to act on it when it comes to the crunch. For the last fifteen years, we have multiple judgments of the Court extolling the voter’s “right to know” as an element of Article 19(1)(a), as integral to free and fair elections, as a cornerstone of democracy, and so on. But when it comes to testing these propositions in an actual case – in a constitutional challenge to State action – all these principles suddenly seem to be writ in water.

At the end of the day, however, what stands out in this case is the element of judicial evasion: an issue crucial to democratic functioning, one that concerned the sanctity of the democratic process itself – the very area that Courts are supposed to stand the most vigilant guard over – was allowed to linger until it became more or less academic (as far as the ongoing elections are concerned). One can only hope that this interim order does not now meet the fate of the Aadhaar case, and remain “interim” for the next half-decade.

The Supreme Court’s Judgment on the Maintainability of the Rafale Review: Some Salient Features

In a judgment handed down today, the Supreme Court rejected the Government’s objections against the maintainability of the review petitions in the Rafale Case. More specifically, during the hearing, the Attorney-General had objected to the production of three newspaper articles published in The Hindu. The AG had argued that as these documents had been unauthorisedly obtained from the Defence Ministry, and as they pertained to issues concerning national security, they should not be admitted as evidence. It was this contention that the Court rejected today, paving the way for a full merits hearing of the review petition.

The concurring opinions of the Chief Justice and of Joseph J., for the most part, articulate settled legal principles. Both judgments hold that the manner in which a document has been obtained does not ordinarily affect the question of its admissibility in court. Under the Indian Evidence Act, the standard is that of relevance: as long as a piece of evidence is relevant, even if it has been illegally obtained, that will not prevent a court from admitting and considering it. Both judgments then also note (although for different reasons) that the AG’s reliance on Section 123 of the Evidence Act – which prohibits evidence from being taken on “unpublished official records relating to any affairs of State” – is misplaced and incorrect, as is his reliance on the Official Secrets Act. With the AG’s affirmative defences having failed, and on the relevance standard of the admissibility of evidence, both judgments then conclude that the review petition is maintainable.

The Opinion of the Chief Justice 

So far, so good. Both judgments, however, have other interesting aspects that merit some study. The Chief Justice, for example, embarks on a brief consideration of the law relating to the freedom of the press, and while analysing The Pentagon Papers case from the United States, has this to say:

By a majority of 6:3 the U.S.  Supreme Court declined to pass prohibitory orders on publication of the “Pentagon Papers” on the ground that the Congress itself not having vested any such power in the executive, which it could have so done, the courts cannot carve out such a jurisdiction as the same may amount to unauthorized judicial law making thereby violating the sacred doctrine of separation of powers.  We do not see how and why the above principle of law will not apply to the facts of the present case.  There is no provision in the Official Secrets Act and no such provision in any other statute has been brought to our notice by which Parliament has vested any power in the executive arm of the government either to restrain publication of documents marked as secret or from placing such documents before a Court of Law which may have been called upon to adjudicate a legal issue concerning the parties. (paragraph 6)

I want to focus on the underlined lines, because they express a position of law that the Supreme Court has emphatically not been adhering to in recent times. In PILs to ban books and censor films – filed both before the High Courts and the Supreme Court – where the statutory framework for regulation is very clear, it is the Supreme Court that has “carved out … a jurisdiction” for itself, where it considers such pleas for bans, and returns findings on merits. The apotheosis of this was ex-CJI Dipak Misra’s judgment in Meesha (discussed here), which shredded the scheme of the CrPC by granting direct jurisdiction to ban books to the higher judiciary, as opposed to its more limited actual remit, which was to judicially review executive-ordered book bans. Paragraph 6 of the Chief Justice’s opinion in today’s judgment is a salutary reminder that separation of powers concerns preclude the Supreme Court and the High Courts from entertaining PILs asking for book bans or film bans, and hopefully, it is a reminder that will be heeded in the future.

The second interesting aspect of the Chief Justice’s judgment speaks to an argument that was vehemently advanced by the AG during the hearing. When confronted with the incontestable legal proposition that the source or manner in which a document has been obtained has no bearing on its admissibility as evidence, the AG then turned tack and argued for carving out an exception to that rule for cases involving national security. In other words, he asked for a blanket exemption, from judicial review, of any material that (in the opinion of the State) had implications for national security. As many people noted at the time, this is a profoundly dangerous argument that would, among other things, end up gutting the Right to Information Act. From that perspective, the Chief Justice’s emphatic rejection of the argument (paragraph 11) can allow all of us to breathe a sigh of relief. Even under existing legal doctrine, the judiciary invariably accords to the State a very high level of deference on issues of national security; a blanket exemption from consideration altogether would, however, go against entire idea of constitutional supremacy in a democratic republic.

The Opinion of Joseph J.

Justice Joseph’s opinion, as well, has some thought-provoking arguments. While the Chief Justice dismisses the AG’s arguments on privileged documents on the ground that they were no longer “unpublished”, and the RTI/Official Secrets Argument on the ground that these were simply inapplicable to the case, Justice Joseph embarks upon a more elaborate examination of both. In particular, following the Chief Justice’s analysis on the issue of blanket exemptions to admissibility, Justice Joseph holds that Section 123 of the Evidence Act is now subject to the RTI (paragraph 24) more importantly, he holds that with the onset of the RTI regime, the State can no longer claim privilege for an “entire class of documents” (by, for example, invoking “national security), and immunise them from public scrutiny. (paragraph 20) Rather, the RTI regime now requires any such claim by the State to be assessed on a case-to-case basis, with considerations of public interest central to the enquiry. This, again, is important in a world where the State regularly invokes “national security” as a shibboleth to prevent any further discussion.

It is on the question of relevance and illegally obtained evidence, however, that I have my only point of criticism to make. Towards the end of his judgment, Joseph J. observes that:

I would observe that in regard to documents which are improperly obtained and which are subject to a claim for privilege, undoubtedly the ordinary rule of relevancy alone may not suffice as larger public interest may warrant in a given case refusing to legitimise what is forbidden on grounds of overriding public interest. (paragraph 31).

He then goes on to hold, however, that since the present case pertain to allegations of corruption in high places, the public interest justifies admitting the documents. This, in my view, is a completely unnecessary muddying of the waters. The Chief Justice’s opinion is crystal clear on how courts should not be creating new sets of jurisdictions that limit or censor expression. The rule of relevance is a straightforward one, and it is difficult to see why a further “public interest” requirement needs to be introduced here.

Conclusion

The Supreme Court’s judgment(s) today provide a welcome restatement of long-settled legal principles. They further affirm the regime of transparency that already existed under common law, an was then significantly strengthened by the RTI – as opposed to the regime of secrecy represented by the Official Secrets Act and shibboleths of “national security.”

That said, however, to me, it remains a matter of some concern that these arguments were made in the first place, and needed two detailed judgments to rebut. Like the broader public discourse, judicial discourse also has an Overton window; and it is difficult to see the AG’s arguments as anything other than an attempt to shift that window, and to make a set of fringe – almost laughably off-piste – arguments respectable. It may perhaps, therefore, have been even better if the Supreme Court had rejected them out of hand, rather then giving them a veneer of respectability by hearing them out, reserving orders, and then delivering a judgment on merits.

Once that was done, however, there is little doubt that today’s judgment(s) unambiguously reject the State’s attempts to overturn the gains of the RTI and re-establish colonial-style secrecy; and for that, they ought to be welcomed.

 

The Supreme Court’s Right to Privacy Judgment – VIII: Privacy and the Right to Information

In the aftermath of the Puttaswamy judgment, it was reported that a committee of MPs had written to the election commission, asking that the disclosure of the assets of candidates’ spouses should not be required. They made their request on the basis of Puttaswamy. This has led to (legitimate) worries that privacy can now be invoked to stifle or hobble the right to information.

For the reasons I advanced in the previous essay (dealing with the right to privacy and free speech), I believe that this concern is mistaken. To briefly recap the previous essay: the judgment(s) in Puttaswamy are concerned only with privacy as a fundamental right, that is, as a shield for individuals against intrusive State action. They do not deal with when and how privacy may be used as a sword to limit the amplitude of other rights, such as the right to freedom of expression, and its cognate right, the right to information. In a number of judgments at both the High Court and the Supreme Court level, Courts were engaged in balancing privacy against freedom of speech and the right to information even before Puttaswamy. The question then is whether Puttaswamy added anything to that debate – i.e., whether it granted privacy an even higher pedestal than it occupied before. As I argued in the last essay, it did not: Puttaswamy only stated that privacy is a fundamental right, clarified its contours, and indicated when the State might be justified in limiting it. Nothing more.

The Right to Information Act 

In the case of the right to information, the issue is even more straightforward, because the Right to Information Act already protects privacy. Section 8(j) of that Act exempts from disclosure:

“… information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information.”

Section 8(j) lays down the uncontroversial proposition that as far as “personal information” goes (and the Section specifically makes this clear through the succeeding phrase – “which has no relationship to any public activity or interest“) – the presumption is against disclosure, unless a larger public interest exists. Section 8(j) requires information officers and Courts to interpret the scope of terms such as “personal information”, “public activity or interest”, “unwarranted invasion”, and to also create a jurisprudence balancing the right of individuals to protect their personal information against the larger public interest.

Does the judgment in Puttaswamy affect any of this? The only aspect that it might possibly impact is the meaning of the phrase “personal information.” But even here, a close reading of the judgment dispels that impression. The phrase “personal information” occurred and recurred multiple times through the separate opinion, but it was only Justice Bobde’s opinion that defined it in any meaningful way, and that too in the context of State surveillance (“…the non-consensual revelation of personal information such as the state of one’s health, finances, place of residence, location, daily routines and so on efface one’s sense of personal and financial security.”) Justice Kaul, who had a full section dealing with the concept of “personal information” (in the context of data collection) refrained from defining it either.

In fact, more importantly, the separate opinions in Puttaswamy specifically acknowledged the Right to Information Act as an example of how the legislature had balanced the two constitutional values of access to information, and the right to privacy. For example, Justice Chandrachud observed that “legislative protection is in many cases, an acknowledgment and recognition of a constitutional right which needs to be effectuated and enforced through protective laws… for instance, the provisions of Section 8(1)(j) of the Right to Information Act, 2005 which contain an exemption from the disclosure of information refer to such information which would cause an unwarranted invasion of the privacy of the individual.” (para 153) Justice Nariman cited Section 8(j) for the proposition that, in the Right to Information Act, the legislature had recognised the right to privacy (para 89). Both Justice Chandrachud and Justice Nariman cited the prior judgment of the Supreme Court in Bihar Public Service Commission vs Saiyed Hussain Abbas Rizwi, where Justice Swatenter Kumar had specifically held that “thus, the public interest has to be construed while keeping in mind the balance factor between right to privacy and right to information with the purpose sought to be achieved and the purpose that would be served in the larger public interest, particularly when both these rights emerge from the constitutional values under the Constitution of India.”

The point, therefore, is this: the judgments in Puttaswamy acknowledge the fact that, in the Right to Information Act, the legislature has already struck a balance between two competing constitutional values: the right to privacy, and the right to information. This balance has been struck in the following manner: (1) define “personal information” in terms of that which has no relationship to any public interest or public activity; (2) presumptively protect personal information in cases where disclosure would amount to an “unwarranted interference in privacy”, and (3) override this presumption where the larger public interest requires it. To come back for a moment to the candidates’ spouses assets question: this disclosure does not fall within Section 8(j) because, given the social realities in India, spouses’ assets are often inseparable, and often deliberately so. In disclosing a spouse’s assets, there is, therefore, a definite relationship with a “public activity” (that is, candidature for public office), and even if not, a larger public interest exists.

Conclusion

The Right to Information Act contains a detailed and fine-grained legislative balancing act between the right to privacy and the right to information. Puttaswamy does not in any way override this balance, because the judgments in Puttaswamy expressly affirm and endorse it. Nor does Puttaswamy modify or change the balance, tilting it towards privacy: as we have seen, the issue of balancing privacy against public interest in the context of disclosure of information is not addressed in the judgment at all, and the definition of “personal information” is considered in only one opinion.

This is not to suggest, of course, that the existing jurisprudence under Section 8(j) is satisfactory. On the contrary, it has been seriously – and legitimately – criticised as providing far too much sanctuary to privacy, at the cost of the right to information. The purpose of this post, however, has been to show that that jurisprudence is entirely independent of the judgments in Puttaswamy. All that Puttaswamy does is recognise privacy as a fundamental right – or, in other words, all it does is affirm the fact, as already held before, that the Right to Information Act balances two constitutional values through Section 8(j). How that balance is to be achieved in concrete terms is the task of future benches.