Guest Post: The (Un)Constitutionality of the Uttar Pradesh Education Tribunal Bill, 2019

[This is a guest post by Tanishk Goyal and Rishabh Narain Singh.]


On 18th June, 2019, the Uttar Pradesh State Legislature passed the Uttar Pradesh Education Service Tribunal Bill, 2019 (‘The Bill’) which proposed to establish an Education Tribunal, to hear and adjudicate upon service disputes related to higher education. The bill soon became the subject of controversy due to a multitude of reasons which, inter-alia, also included the proposed establishment of the Tribunal at Lucknow which was not agreeable to the lawyers practicing at Allahabad as well as Oudh.  The lawyers of the Allahabad High Court Bar Association (AHCBA’) and the Oudh Bar Association (‘OBA’) essentially assailed the bill due to their opposition to the seat of the Tribunal. On August 16, 2019, a Division bench of Allahabad High Court took suo motto cognizance of the matter in  In Re: Dispute Relating to Place of Establishment of Adjudicatory Forum Like Specialized Tribunal etc. and passed an order asking the State to explain why the specialized education tribunal was proposed to be set up only at one place, Lucknow, ignoring the place of the “Jurisdictional High Court”. This order was challenged by the OBA before the Supreme Court which ultimately quashed the cognizance taken by the Division Bench of the Allahabad High Court.

While the Bill still awaits Presidential Assent required under Article 200 of the Constitution of India, it is pertinent to note that, notwithstanding the debate on the seat of the Tribunal, there still exist certain inherent unarticulated concerns regarding the Constitutional validity of the Bill. These concerns essentially include the lack of legislative competence of the State legislature to pass the bill, the bypassing of judicial review and power of superintendence under Articles 226 and 227 of the Constitution and the violation of the principles of independence of the Judiciary.

I. Legislative Competence

The State Legislature lacks competence under both Article 323-B and Entry 25 of List III to setup a Tribunal that bypasses or dilutes the writ jurisdiction of the High Court under Articles 226/227 of the Constitution. This has been illustrated forthwith.

Tribunals have a long-standing history in India. The 42nd Constitutional Amendment Act inserted Articles 323A and 323B which provide for establishment of Tribunals. The chief purpose of bringing in Tribunals, was to lessen the burden of the High Courts and to provide justice to the litigants in an expeditious and efficient manner. While Article 323-A is exclusively reserved for the Parliament which has the power to set up “Administrative Tribunals”, Article 323-B uses the word “appropriate legislature”, thus empowering both the Parliament and the State Legislature to set up tribunals on the matters mentioned in sub clause(2).

It is also acknowledged here that these Articles are only enabling provisions, and the Parliament or the State Legislature can also establish tribunals beyond them, for the administration of justice as long as they possess the legislative competence under the appropriate Entry in the Seventh Schedule. This has been reiterated by the Supreme Court, in multiple decisions. Illustratively, the Court, in the case of Union of India v. R Gandhi held that:

“80. The legislative competence of Parliament to provide for creation of courts and tribunals can be traced to Entries 77, 78, 79 and Entries 43, 44 read with Entry 95 of List I, Entry 11-A read with Entry 46 of List III of the Seventh Schedule. Referring to these articles, this Court in two cases, namely, Union of India v. Delhi High Court Bar Assn. [(2002) 4 SCC 275] and State of Karnataka v. Vishwabharathi House Building Coop. Society [(2003) 2 SCC 412] held that Articles 323-A and 323-B are enabling provisions which enable the setting up of tribunals contemplated therein; and that the said articles, however, cannot be interpreted to mean that they prohibited the legislature from establishing tribunals not covered by those articles, as long as there is legislative competence under the appropriate entry in the Seventh Schedule.” (emphasis supplied)

Moreover, the contention that Tribunals can be only be constituted with respect to matters mentioned in Articles 323-A and 323-B of the Constitution, was explicitly rejected by the Court in the same case, where it said that:

“83. […] It is [the petitioner’s] contention that the very fact that Articles 323-A and 323-B have been specifically enacted empowering the legislature concerned to make a law constituting tribunals in regard to the matters enumerated therein, demonstrated that tribunals cannot be constituted in respect of matters other than those mentioned in the said Articles 323-A and 323-B. The contention is not sound.

In light of this, while the words “education” and “service” find no mention in sub clause (2) of Article 323-B and there is no other matter mentioned therein which is analogous to education and service, the State may still be in a position to argue that it has exercised its powers under Item 25 of List III of the Constitution of India, which enumerates the following matters on which the State can make laws:-

“25. Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.”

However, an eleven-judge bench of the Supreme Court in T.M.A Pai Foundation v. State Of Karnataka (‘T.M.A Pai’) limited the power of the State Legislature to set up educational tribunals for the adjudication on disputes relating to private educational institutions only. The observation of the Supreme Court is instructive, and deserves to be quoted in full:-

64. In the case of educational institutions, however, we are of the opinion that requiring a teacher or a member of the staff to go to a civil court for the purpose of seeking redress is not in the interest of general education. Disputes between the management and the staff of educational institutions must be decided speedily, and without the excessive incurring of costs. It would, therefore, be appropriate that an educational Tribunal be set up in each district in a State, to enable the aggrieved teacher to file an appeal, unless there already exists such an educational tribunal in a State — the object being that the teacher should not suffer through the substantial costs that arise because of the location of the tribunal; if the tribunals are limited in number, they can hold circuit/camp sittings in different districts to achieve this objective. ” (emphasis supplied).

The above ruling of the Court was against the backdrop of the law settled by a seven-judge bench in the case of L Chandra Kumar v. Union of India which held that judicial review under Articles 226/227 and Article 32 forms a part of the basic structure of the Constitution. More specifically, it was held that the jurisdictional powers of the tribunal constituted under Articles 323A and 323B are subject to the powers of the High Court adumbrated in Articles 226/227 of the Constitution. The Supreme Court struck down clause 2(d) of Article 323A and clause 3(d) of Article 323B on the grounds that they excluded the jurisdiction of the High Courts and the Supreme Court under Article 226/227 and 32 respectively.

This essentially means, that under no circumstances,can the State Legislature exclude the writ jurisdiction of the High Court by the establishment of a Tribunal. Since private educational institutions do not qualify as “State” within the meaning of Article 12, they are not amenable to the writ jurisdiction of the High Court. Therefore, the establishment of an education tribunal for the adjudication of disputes of private educational institutions, does not exclude the writ jurisdiction of the High Courts under Articles 226/227 of the Constitution.

Unlike the case in T.M.A Pai, the Uttar Pradesh Bill does not contain the words “private schools and institutions” which essentially means that it is only meant for the Government Educational Institutions which qualify as ‘State’ within the meaning of Article 12, thereby making them amenable to the writ jurisdiction of the High Courts under 226/227 of the Constitution. Section 8 of the Bill nefariously attempts to bypass this writ jurisdiction of the High Court. To this effect, it reads as:-

“8.On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by the Tribunal in relation to service matters of teachers and non teaching employees working in an educational institution, no court except the Supreme Court shall have or be entitled to exercise any jurisdiction, power or authority in relation to such service matters” (emphasis supplied).

This runs counter to the dictum of the apex Court in the case of L Chandra Kumar v. Union of India as mentioned above. It is pertinent to note here that the ruling in L Chandra Kumar also held Article 227 to be a part of the basic structure of the Constitution of India. This essentially means that the ruling is not limited only to the tribunals enacted under Article 323A and 323B but also extends to the tribunals which have been formed under Lists II and III and which come under the High Court’s power of superintendence by virtue of Article 227 of the Constitution, thus covering the U.P Education Tribunal in the present case.

More specifically, Section 8 of the U.P Bill bypasses judicial review of the decision of a statutory/quasi-judicial authority. In a recent judgement of the Supreme Court in M/S Embassy Property Developments Pvt Ltd v. State of Karnataka, a three-judge bench of the Supreme Court categorically held that the High Court can entertain a writ petition under Article 226 against an order of NCLT (a statutory/quasi-judicial authority) under an IBC proceeding. The court clarified that the decisions of statutory or quasi-judicial authorities can be only be corrected by way of judicial review of the administrative action.

Even under ‘special circumstances’, Section 10 of the Bill only allows an aggrieved party to invoke the ‘revision’ powers of the High Court on the ground that the matter involves a ‘question of law’. To this effect, Section 10(1) reads as:

“10. Any person  or authority aggrieved. by an order made. by the Tribunal, may, within 90 days from the date of order, apply to the High Court for revision of such order on the ground that the case involves any question of law.”

This provision essentially restricts the writ jurisdiction of the High Court under Articles 226/227 of the Constitution to a mere revisional jurisdiction which can only be invoked under special circumstances. A combined reading of Sections 8 and 10 therefore, amply illustrate the State’s attempts to clip the wings of the High Courts and willingly flout the basic structure of the Constitution.

While the bill needs to be scrutinised for what it says as mentioned above, it  needs a closer scrutiny for what it does not say. For instance, the bill is completely silent on the issue of having any statutory appeal against the decision of the Education Tribunal. This essentially translates to a situation where a litigant may only have a recourse to the ‘revisional’ jurisdiction of the High Court against an order of the Education Tribunal and that too, under special circumstances. This silence of the Bill is especially concerning, inasmuch as even the legislations establishing Education Tribunals for private educational institutions provide for a statutory appeal against any order/direction/judgement of the Tribunal before the High Court. (For example, See, The Jharkhand Education Tribunal Act, 2005, §16).

It was perhaps due to the foregoing reasons that the Governor of Uttar Pradesh in exercise of his powers under Article 200 referred the bill to the President, as it aims to curtail the power of the High Court. Article 200 essentially puts the Governor under an obligation to protect the wide powers of the High Courts from being divested by the legislature. To this effect, the proviso of Article 200 reads as:-

“Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.”(emphasis supplied).

Having apprised the reader of the legislative incompetence of the State to enact the said Bill, we now move on to argue how the Bill grossly violates the principles of Independence of the Judiciary.

II. Judicial Independence

Another glaring flaw with this bill is regarding the composition of the education tribunal, as technical members exceeded the number of judicial members. Illustratively, Section 3(2) of the Bill provides for:

[A] Chairperson, a Vice Chairperson (Judicial), a Vice Chairperson (Administrative) and such other Judicial and Administrative members not less than three in each category as may be determined by the State Government” (emphasis supplied)

Additionally, Section 3(3)(a) of the Bill lists out the qualifications required for the appointment as a chairperson. Essentially, it requires the appointee to either:

“(i) [have] been a Judge of a High Court; or

(ii) [have] for at least two years held the post of Vice Chairperson (Judicial); [or]

(iii) [have] been a member of the Indian Administrative Service and held the post of a Secretary to the Government of India  or any other post under the Central or State Government equivalent thereto, and [have] adequate experience in dispensation of justice.”

This provision may essentially create a situation where the Tribunal comprises three Judicial Members and four administrative members with the chairperson being an administrative member. Such a composition is not permissible under our constitutional scheme as it has the potential to put the judicial member(s) in minority, thus giving primacy to the executive.

Bearing in mind the principles of Judicial Independence, a five-judge bench of the Supreme Court in Rojer Mathew v. South Indian Bank Ltd, while reiterating the need to secure the independence of judiciary, struck down the rules framed under the Finance Act, 2017 as they did not comply with directions issued in Union Of India v. R Gandhi. Borrowing from R Gandhi, a five judge bench, which reviewed the Constitutional validity of Parts I-B and I-C of The Companies Act, 1956 inserted by the Companies (2nd Amendment) Act, 2002, held that:-

“48. if Tribunals are established in substitution of Courts, they must also possess independence, security and capacity. Additionally, with transfer of jurisdiction from a traditional Court to a Tribunal, it would be imperative to include members of the judiciary as presiding officers/members of the Tribunal. Technical members could only be in addition to judicial members and that also only when specialised knowledge or know-how is required. Any inclusion of technical members in the absence of any discernible requirement of specialisation would amount to dilution and encroachment upon the independence of the judiciary.” (emphasis supplied)

It is pertinent to note here that, in Union of India v. R Gandhi, the court found out that certain provisions of Company (Second Amendment) Act, 2002 suffered from unconstitutional “defects.” In an attempt to cure such defects, the Court suggested certain corrections which, inter-alia, included the following suggestion:- “xiii. Two-member Benches of the Tribunal should always have a judicial member. Whenever any larger or special Benches are constituted, the number of technical members shall not exceed the judicial members.” (emphasis supplied).

The composition of the GST Appellate Tribunal was also declared unconstitutional by the Madras High Court in the case of Revenue Bar Association v. Union Of India on similar grounds. In this case, the High Court dealt with the constitutional validity of Sections 109 and 110 of Chapter XVIII of the Central Goods and Service Tax (CGST) Act, which said that the Tribunal should have one judicial member and two technical members, each from the Centre and State, a composition which was held to be impermissible under our constitutional scheme.

Thus, from a perusal of the above cases, it is sufficiently clear that Technical/Administrative members cannot override the number of Judicial Members in a Tribunal. It is also clear that the Chairperson of the Tribunal should necessarily be a judicial member in order to safeguard the judiciary from excessive executive interference.

Tribunals create a unique situation where the State, being the biggest litigant or stakeholder in our judicial system, itself becomes a part of the adjudicating body. This strikes at the very root of judicial independence which becomes prone to being caught in the crosshairs of the legislative sniper. While we cannot disregard the aid and assistance of technical/administrative members, who with the help of their expertise and specialised knowledge facilitate the justice delivery process, we have to be cautious that their presence is not translated to their dominance in the Justice delivery system.

Conclusion

In light of the growing need to unload the burden of the superior courts, tribunalisation has been increasing at a breakneck pace. These Tribunals unarguably are an essential part of the justice delivery system and they require complete autonomy and independence while effectively discharging their onerous duties of dispensing justice. However, it is trite to mention that Tribunals have not yet achieved full independence and  despite the Court’s exhaustive directions issued in R. Gandhi, they increasingly continue to  undermine the Constitution.

As far as the U.P Bill is concerned, the following corrections may be required to make the Bill constitutionally permissible

  • Section 3(2) should be amended to conclusively ensure that the number of administrative members do not exceed the number of judicial members.
  • Section 3(3)(a) should be amended to ensure that the Chairperson is a judicial member only.
  • Section 8 of the Bill should be amended to ensure that the writ jurisdiction of the Allahabad High Court under Articles 226/227 is not excluded.
  • Section 10 of the bill should provide a statutory appeal to the Allahabad High Court against any order/direction/judgement of the Tribunal.

However, until the time the directions of the Court in R Gandhi are not complied with; or a Single Nodal Agency under the aegis of the Ministry of Law and Justice to monitor the working of Tribunals as suggested by the Law Commission of India in its 272nd Report is not established, this responsibility to ‘cure’ the unconstitutional defects in Tribunals would have to remain with the Superior Courts of the country.

Guest Post: On the (Un)Constitutionlity of the Competition Commission – A Response

[This is a guest post by Rajat Maloo.]


It has been previously argued on this forum (here and here) that the Competition Commission of India (CCI), in its current form is unconstitutional. The argument hinged on the contention that the CCI is a body with majorly judicial characteristics and functions apart from a few advisory and administrative functions. Thus, the composition and selection of members of the CCI, which is executive-dominant is unconstitutional as it violates the principle of separation of powers. Based on this, the previous posts criticise the Delhi HC’s judgement by arguing that CCI is a judicial body and it should not be characterised as an administrative body. In this piece, I argue that the CCI is in fact a regulatory body possessing a wide range of powers to facilitate its functioning, including inquisitorial, investigatory, administrative, advisory and judicial powers. I contend that first, the CCI is not a judicial body as it does not adjudicate disputes between parties; and second, judicial powers, if any, of the CCI are limited. While making my own case, I wish to respond to some of the arguments made in the previous posts, albeit, I do not analyse/support the Delhi HC’s judgement in detail.

The CCI is not a Judicial Body

The question of independence of judiciary and separation of powers in judicial tribunals is not a new one. The Supreme Court of India (SC) through numerous decisions over the years, including the recent decision in Rojer Mathew, has established that any tribunal performing judicial functions by replacing a court of law must be judicially dominant. This means that majority of members as well as majority of the selection committee of such members must be from the judiciary to ensure independence of judiciary and separation of powers. However, regulatory agencies, not just in India but also in other jurisdictions such as the US, are placed on a different footing as compared with tribunals performing judicial functions. This is because the powers and functions possessed by regulatory agencies are quite different from a judicial or quasi-judicial tribunal. In this part, I will respond to the argument that CCI is judicial in nature.

In brief, the CCI performs four major functions under the Competition Act, 2002–

  1. Ex-post regulation of anti-competitive agreements – Section 3
  2. Ex-post regulation of abuse of dominant position – Section 4
  3. Ex-ante regulation of combinations – Sections 5 and 6
  4. Competition advocacy and advisory functions – Section 49

Now, it is clear that powers under Section 49 are not judicial in nature. Hence, I shall focus on the CCI’s functions under Sections 3, 4, 5 and 6 of the Act.

Relying on the Cooper v. Wilson test, a judicial decision, in the very first place, presupposes a dispute between parties. However, the CCI’s functions do not include resolving or adjudicating disputes between parties. Under Sections 3 and 4, the CCI’s function is majorly investigatory and then punitive if there is a finding of contravention (Sections 27). Further, the ‘informant’ under Section 19 of the Act is not a party to the dispute before the CCI. The informant is merely a source of information for the CCI, upon which it may or may not conduct or order an enquiry. In fact, under Section 19 of the Act, the CCI can suo motu take up an enquiry or may initiate an enquiry on information provided by the Central or the State Governments. Any person or Government, merely by informing the CCI does not become a party to the dispute. This is also evident from the fact that any decision of the CCI is not in favour of or against any party as such. The CCI may go much beyond the information provided by the informant while inquiring into a matter and possesses wide inquisitorial powers. Thus, the very first rung of the test is not met as there is no adjudication of disputes between parties.

Moreover, any disputing party has a right to approach a Court of law or tribunal for adjudication of the dispute – be it of civil or criminal nature. The Court or tribunal is then expected to listen to both the parties, frame issues, assess evidence and pronounce a decision. A Court cannot in the very first hearing simply refuse to adjudicate upon a dispute merely on the basis that the petitioner is not able to make a prima facie case. However, the CCI has the power to not enquire into an information brought to it by an informant.

In fact, the legislature has very consciously not provided the CCI the power to adjudicate disputes – one such instance is awarding compensation to any informant. Such a matter entails or presupposes a dispute between two parties which is very well left for the Appellate Tribunal (judicially-dominant) to determine under Section 53N of the Act. Thus, the CCI does not adjudicate disputes between parties and the legislature has not required the CCI to do so.

In the alternative, even on the assumption that the CCI adjudicates disputes, the Cooper Test also requires that the parties to a dispute must be given a chance to put forth their case. However, according to the SC, an ‘informant’ is not even entitled to a hearing in case the CCI chooses not to go ahead with the enquiry (CCI v SAIL). This means that the CCI can reject the information provided by the informant for enquiry, without even giving the informant an opportunity of being heard. Thus, the legislature as well as the judiciary has not envisaged the CCI as a body to resolve or adjudicate disputes between parties.

Admittedly, the CCI has been given the powers under Section 27 of the Act to impose penalties on persons or enterprises found to be in violation of Sections 3 and 4. However, mere imposition of monetary penalties, based on an enquiry, does not suffice to characterise the body as a judicial body. Purely executive and other regulatory bodies such as the SEBI etc., have the power to impose penalties, which do not make them a judicial body. Moreover, any penalty imposed by the CCI is appealable to the Appellate Tribunal under Section 53A of the Act. Thus, mere power to impose penalties does not give the CCI a completely judicial characteristic.

Now, with regard to ex-ante combination review functions performed by the CCI – once again, it does not entail adjudication of a dispute. At least some form of adjudication of dispute is the very essential requirement for a body to be characterised as a judicial body. However, under Sections 5 and 6, the CCI only preforms regulatory functions to approve or reject potential combinations. In regulating combinations, there is no dispute as such which the CCI has to determine or no parties which come before the CCI for adjudication of a dispute. Merely by giving parties a notice or providing the combining parties an opportunity of hearing does not mean that the CCI is adjudicating a dispute.

Thus, the CCI does not adjudicate disputes and if at all, performs limited number of judicial functions which cannot suffice to characterise it as a completely judicial body.

Limited Judicial Nature

I will now argue that just because the CCI has the power to grant interim orders or other such orders provide it with only certain limited judicial powers and yet again, it does not mean that the CCI is majorly performing judicial functions. Essentially, the judicial powers of the CCI are quite limited and are not enough to give it the authority to function like a full-fledged judicial or quasi-judicial tribunal. For this, the whole functioning of the CCI will have to be examined. The previous post effectively summarises the procedure of enquiry conducted by the CCI regarding the Sections 3 and 4 matters:-

“…the procedure adopted by the CCI in conducting the inquiry under Section 19 is to be examined. The procedure is provided for under Section 26 of the Act. According to the said provision, upon receipt of information or reference, the CCI is required to form an opinion as to the existence of a prima facie case of contravention of the provisions of the Act. If it finds a prima facie case of contravention of the Act, it is required to direct the Director General to investigate the matter. If it finds no prima facie case of contravention of the provisions of the Act from the information provided, it is required to pass an order to that effect and close the matter. It is also required to send a copy of the order to the parties concerned.”

 

This initial procedure, not just the form but also the substance, is ma inquisitorial rather than judicial. As soon as the CCI receives information, it may order the Director General (DG) to enquire. On the basis of the findings of the enquiry, the CCI gives the Opposite Parties as well as the informant a chance to submit their arguments. However, it is to be noted that the case against an Opposite Party is not made by the informant (as should happen in any adversarial judicial proceeding which entails determination of a dispute) but through the enquiry conducted by the DG. This takes away the judicial nature of a court or a tribunal and indicates that the CCI is more of an inquisitorial body.

The CCI is also provided with a set of factors, on the analysis of which, it is required to come to its decision. Sections 19 and 20 use the word ‘shall’ before laying down the limited factors to determine violations under Section 3 or 4 or factors to regulate combinations. This indicates that the CCI is mandated to give due regard to these factors and must function within them. Such limitation on the scope of the CCI clearly show that it is expected to act as a regulatory body with only a few judicial powers.

In this regard, it is also notable that the CCI is established as a body corporate as per Section 7(2) of the Act. Unlike any Court of law or any judicial tribunal (such as the NCLT, for example), the CCI can be made a party to an appeal. The CCI will also have to defend its own decision on appeal before the Appellate Tribunal, any High Court or the SC. This position of law has also been crystallised by SC in CCI v SAIL wherein it was held that the CCI must be a necessary or proper party in appeals. This is vastly different from any Court of law, such as a Civil Court of first instance or a Criminal Court, or any tribunal. Although, judicial bodies may get their authority from statutes, they cannot be made a party or be required to defend their own decisions upon appeal. This shows that the legislature while establishing the CCI through the Act, has been very clear about the limited extent of judicial powers which the CCI can exercise. Having such limited powers, it cannot be said that the CCI is replacing a traditional court in any manner.

Hence, although it was argued by Dev that the CCI under Sections 27, 28 and 31 possesses enforcement powers, the overall functioning of the CCI is largely different from any judicial or quasi-judicial body.

Now, it may be argued that Section 61 of the Act excludes jurisdictions of civil courts and hence, the CCI replaces a Civil Court – which requires the dominance of judiciary in the selection process. However, I submit that this does not necessitate the CCI to be judicially-dominant body because although Section 61 requires that matters relating to antitrust and competition must be submitted before the CCI, but as argued above, the CCI does not replicate a Civil Court in terms of its powers and functions.

Hence, I submit that the CCI does not adjudicate disputes and has very limited judicial powers which are vastly different from a traditional Civil Court or any judicial or quasi-judicial tribunal for that matter. In such a case, the CCI in its current form is not unconstitutional even if its selection committee is not judiciary-dominant as it is not replacing any Civil Court as such. In any case, the CCI’s decisions which affect any person or enterprise adversely are appealable to a judicial body – the Appellate Tribunal.

Guest Post: On the (Un)Constitutionality of Competition Commission – II

[This is a two-part series by Rahul Dev.]


I submit that the characterization of the CCI as an administrative body is incorrect. It is to be considered a judicial body which performs the function akin to those performed by courts. Once it is considered a judicial body, it can be said that it requires the same independence from the executive as enjoyed by courts of law.

The primary objective of the CCI is to ensure competition in markets, by enforcing the provisions of the Act. To that end, its objective is to ensure that the provisions of the Act are not contravened. The only powers provided to the CCI to enforce the provisions of the Act are provided under Sections 27, 28 and 31 of the Act. These sections empower the Commission to pass orders and issue directions to entities found to be engaging in anti-competitive behaviour. The CCI is also empowered to issue interim orders during an inquiry under Section 33 of the Act.

The CCI does not have any legislative or executive powers to ensure compliance with provisions of the Act and prevent anti-competitive behaviour. It cannot pass orders or issue directions in rem which are binding on the public at large or have any statutory force. It does perform an advisory function under Section 49 of the Act. However in its performance of the advisory function it does not have the power to enforce provisions of the Act. This is clarified by the provision itself which states that the advice of the CCI shall not be binding on the Government in formulating a policy.

An examination of the nature of functions performed by the CCI under Sections 27, 28 and 31 is to be made in order to determine the nature of the function performed in enforcing the provisions of the Act. For without the powers provided under these sections, the CCI would be devoid of any power to enforce the provisions of the Act. Therefore the nature of these powers would determine the nature of the primary functions performed by the CCI.

On the face of it, the powers provided to the CCI by the aforesaid provisions are judicial. They relate to the power to pass orders and issue directions against parties. A test to determine whether a decision is a judicial decision or a quasi-judicial decision was laid down by the King’s Bench of the High Court in England in Cooper v. Wilson, (1937)2 K.B. 307. The test has been followed by the Supreme Court of India in a number of decisions, some of which were in fact cited before the Delhi High Court. The Test states:

A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites :- (1) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal argument by the parties, and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law. A quasi-judicial decision equally presupposes an existing dispute between two or more parties and involves (1) and (2), but does not necessarily involve (3) and never involves (4). The place of (4) is in fact taken by administrative action, the character of which is determined by the Minister’s free choice.

 

Examination of Nature of Decision under Section 27

In order to apply this test to the function of the CCI under Section 27, the procedure adopted by the CCI in conducting the inquiry under Section 19 is to be examined. The procedure is provided for under Section 26 of the Act. According to the said provision, upon receipt of information or reference, the CCI is required to form an opinion as to the existence of a prima facie case of contravention of the provisions of the Act. If it finds a prima facie case of contravention of the Act, it is required to direct the Director General to investigate the matter. If it finds no prima facie case of contravention of the provisions of the Act from the information provided, it is required to pass an order to that effect and close the matter. It is also required to send a copy of the order to the parties concerned.

A reading of the regulations governing the contents of information to be filed before the CCI (Regulation 10 of the CCI (General) Regulations 2009), reveals that the information is to contain detailed facts, allegations of contraventions of provisions of the Act along with supporting evidence which may be available, arguments in support of its contentions and reliefs which are claimed. The submission of such a document to the CCI satisfies the first requisite of the test that there must be a presentation of their case by parties to the dispute.

It is inconsequential that, in the event the CCI finds no prima facie case of contravention and passes an order to that effect, a presentation of the case is not made by the party against whom the dispute had been raised (Opposite Party) as required by the aforementioned test. This is because the Regulations require that a copy of the information be sent to the Opposite Party. Further, Section 26 of the Act mandates that the order of the CCI is required to be sent to both the informant and the opposite party. These requirements suppose the existence of a dispute between the informant and the opposite party.

Although the aforementioned test requires that the case of both parties to the dispute be presented, the presentation of its case by the Opposite Party may not be required in circumstances where the information lacks sufficient merit for the CCI to make out a prima facie case. The desperate lack of merit in the case of one party such that it obviates the necessity of a response from the other party cannot change the character of the proceeding. The authority to which the case is presented may itself identify the lack of merit and dismiss the matter at the threshold.

The High Courts exercise a similar power at the stage of Preliminary Hearing of a Writ Petition. The only difference is that the Petitioner there is given an opportunity to orally present her case. If the High Court finds that the petition lacks merit, it may dismiss the matter at the threshold without issuing notice to be issued to the Respondent. However, the lack of response from the respondent in a writ petition which lacks merit does not change the nature of the proceeding or the decision made thereon.

Having established that in such cases the act of filing of information meets the first criteria of the test, I shall proceed to examine whether an order made in such cases meets other criteria laid down by the test. The second criteria is that if the dispute is between the parties is a question of fact, the authority must ascertain facts by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence.

In forming a prima facie opinion which is the basis of the order, The CCI would be required to establish the veracity of facts stated in the information. The ascertainment of the veracity of facts is to be done by evaluating evidence produced along with the information. Since no investigation can take place at this stage, the CCI would necessarily be required to rely on evidence produced by the informant in verifying facts. Therefore an order passed under Section 26(1) of the Act would satisfy the second criteria.

So far as the third criteria is concerned, the CCI would ordinarily not consider a question of law while forming a prima facie opinion as to a possible contravention of the Act. It is to be noted that this criteria need not be met if no question of law is raised. Therefore the question of considering a legal argument at this stage does not arise.

An order finding no prima facie case of contravention of the provisions of the Act meets the fourth criteria. This is because it does dispose of the whole of the matter upon a finding upon facts and applying the facts found to the law. As noted earlier, at this stage the CCI is required to examine the veracity of facts by evaluating evidence adduced. This process leads the CCI to come to a finding upon the facts alleged in the information. Once it has made a finding upon the facts, it must determine whether the facts found would on the face of it contravene the provisions of the Act. To that end, it is required to consider arguments made by the informant as to why the facts alleged constitute a contravention of the provisions of the Act.

Thereafter, it must apply the facts found to the law. That is to say, the facts found must be tested against the provisions of the Act so as to determine whether they might on the face of it constitute a contravention of the provisions. It is required to apply its mind while making this determination. It is also required to provide reasons in its order as to why, the findings of fact were so made and as to why it found no contravention on the face of the facts found upon their application to the law.

Now, if an order passed under Section 26(1) of the Act is considered a judicial decision, an order passed by the CCI under Section 27 after consideration of objections by the Opposite Party and questions of law and arguments thereon, is also to be considered a judicial decision.

Examination of Nature of Decision under Section 28

Section 28 of the Act empowers the CCI to pass an order in writing directing the division of a dominant enterprise to ensure that such enterprise does not abuse its dominance. The Act in its current form does not specify a procedure to be followed in passing such orders. Prior to the amendment carried out in 2007, an order under Section 28 was to be passed by the Central Government on a recommendation by the CCI. However such a recommendation could be made only if the CCI had found the enterprise in question to have abused its dominant position in the market under Section 27 of the Act. Therefore prior to the amendment, a condition precedent to an order under Section 28 was an order passed under Section 27.

I would submit that this position has not changed after the amendment. This is because, the prohibition under the Act relates to the actual abuse of dominance rather than a possible abuse of dominance. The objective of the Act is not the prevention of dominance in the markets but the prevention of anti-competitive behaviour which arises out of dominance. A reading of the provision would show that there is no guidance with regard to the circumstances under which the CCI may direct the division of an enterprise. There is no guidance as to the factors which may be considered by the CCI before concluding that an enterprise is likely to abuse its dominant position.

Therefore an order under Section 28 cannot be passed without following the procedure under Section 26. As has been examined, the procedure contemplated under Section 26 leads to a decision that is judicial in nature. Therefore an order passed under Section 28 of the would be a judicial decision.

Examination of Nature of Decision under Section 31

Having established that the CCI exercises judicial powers in passing orders with regard to anti-competitive activities under Section 3 and 4 of the Act, we must examine the nature of the function performed by it in regulating combinations through orders passed under Section 31 of the Act. This function cannot be categorised as one that is purely judicial in nature, since it is not an order arising out of an adversarial proceeding. (However it does attain the character of an adversarial proceeding when objections are filed to the proposed combination by a person who would be affected by it.) The passing of an order under Section 31 of the Act involves the examination of facts pertaining to the combination. The CCI thereafter is required to apply such facts and determine whether the combination is likely to have an appreciable adverse effect on competition in the relevant market. This involves consideration of several factors including whether the combination would enjoy a dominant position in the relevant market after such combination is given effect. A list of factors to be considered by the CCI in deciding the question as to whether a combination is likely to have an appreciable adverse effect on competition in India, is provided under Section 20(4) of the Act. Therefore the CCI is required to apply the facts to the policy laid down by the law and determine the question.

There are several judicial elements to the function performed by the CCI in regulating combinations through orders. The function is not very different from the function performed by a company court in mergers and amalgamations of companies. These functions are more akin to judicial functions than to executive or legislative functions.

From the above analysis it is clear that the primary functions of the CCI performed are judicial in nature. Although it does perform secondary functions which are advisory in nature, they cannot be taken to be a basis of classification of the nature of the body. If the function of the CCI is considered to be the prevention of anti-competitive behaviour through the enforcement of the provisions of the Act, the only powers which enable it to do so are judicial in nature. Without these powers, the CCI would be a toothless body, incapable of enforcing the provisions of the Act. Therefore, I submit that the CCI is to be considered a judicial tribunal.

If the status of the CCI is that of a judicial tribunal, its composition and manner of appointment of members would need to be in line with the guidelines laid down by the Supreme Court in paragraph 120 of its judgment in Union of India v. R. Gandhi which were reiterated in Madras Bar Association v. Union of India. This is because once it is characterized as a judicial tribunal, the CCI becomes a judicial body performing the role of a court.

Therefore the constitution of the CCI, which has a preponderance of non-judicial members, coupled with the fact that they are selected by a committee whose majority of members are appointed by the Central Government are clearly violative of the guidelines laid down by the Supreme Court. For these reasons, I submit that the CCI in its current form is unconstitutional.

Guest Post: On the (Un)Constitutionality of Competition Commission – I

[This is a two-part series by Rahul Dev.]


In April 2019, the Delhi High Court upheld the constitutional validity of the Competition Commission of India (CCI). The challenge to its validity was based on the ground that the structure of the CCI disregarded the constitutional doctrine of the separation of powers. The Petition alleged that the CCI, which was a judicial body performing judicial functions, was not sufficiently independent of the Executive. In this two-part series, I will argue that the CCI is in fact unconstitutional.

Before examining the constitutional validity of the CCI, I believe that a summary of the context in which it was established and its evolution would be useful. A brief overview of the context is as follows: A committee (Raghavan Committee) was appointed by the Government of India in 1999 to advise on a new Competition Law in India. The committee submitted its report in 2000 and recommended the enactment of a new competition law in line with international developments. On the basis of this report the Competition Act 2002 (the Act) was enacted.

Soon after the CCI was established under the Act, A Writ Petition (Brahm Dutt v. Union of India) was filed before the Supreme Court, challenging the Rules prescribed by the Central Government under the Act for the selection of the Chairperson and other Members of the Commission. It was alleged that Rule 3 was unconstitutional on the ground that though the CCI was largely a judicial body, the power to select and appoint its members was conferred on the Central Government. It was contended that the rule in question was contrary to the doctrine of separation of powers and was liable to be struck down.

The Government filed a counter-affidavit refuting the Petitioner’s contentions. However, it thereafter filed two additional counter-affidavits stating that certain amendments were proposed to be carried out in the Act as well as the Rules. It said that the proposed amendments were to be carried out to enable the Chairman and the Members to be selected by a Committee presided over by the Chief Justice of India or his nominee. It was further stated that the alleged usurpation of judicial power would be remedied by the establishment of an appellate authority which would be a judicial body conforming to the doctrine of separation of powers.

The Supreme Court, being of the view that the proposed amendments would have a direct bearing on the outcome of the Writ Petition, did not pronounce a judgment on the issue at that time. It decided to leave all questions open to be decided after the proposed amendments were made, and disposed of the matter. The amendments that were spoken of by the Central Government were carried out in 2007. It was through this amendment that the CCI, which was established in 2003, attained its current structure.

Examination of CCI’s Constitutional Validity by the Delhi High Court

Several car manufacturers who were aggrieved by an order passed by the CCI filed Writ Petitions before the Delhi High Court challenging several provisions of the Act. Through these petitions they, inter alia, challenged the constitutional validity of the CCI. These petitions were heard together and disposed of by a common judgment on 10th April 2019 (Mahindra Electric Mobility Limited and Anr. vs. Competition Commission of India and Anr.).

Section 8 of the Act provides for the composition of the CCI and the qualifications of its members. The violation of the doctrine of separation of powers by Section 8 may have been raised since it does not mandate that a majority of the members ought to be qualified to be appointed to a judicial office. Section 9 of the Act provides for the manner of appointment of the members of the commission. It provides that the members of the CCI are to be appointed by the Central Government from names recommended by a Selection Committee. The Selection Committee is to consist of the Chief Justice of India or his nominee and four other members to be appointed by the Central Government. The conceivable basis of challenge under this provision is that appointments to a judicial body are controlled by the Central Government.

The Delhi High Court heard the matter and held that the CCI does not violate the doctrine of separation of powers. I submit that the decision of the Court is incorrect.

A violation of the doctrine of separation of powers entails an encroachment by one organ of the State into the powers of another. In this case it entails the encroachment by the Executive into the powers of the Judiciary. Therefore the first question that requires consideration is:

Whether the CCI is a part of the judiciary? In other words, can the CCI be considered a judicial body?

The Delhi High Court examined the nature of the functions performed by the CCI as well as its status so that it may decide whether the CCI is a judicial body or not . However, the question for consideration was framed in a way which could not aid the court in deciding whether the CCI is a judicial body. The question framed was:

Is the CCI a tribunal exercising judicial functions, or is it performing administrative and investigative functions and also adjudicating issues before it?

The question has two parts. The first part: “Is the CCI a tribunal exercising judicial functions?” the second part: “or, is it performing administrative and investigative functions and also adjudicating issues before it?” Therefore, the question gives rise to two possibilities.

First possibility: The CCI is a judicial body performing judicial functions.

Second Possibility: The CCI performs judicial functions as well as administrative and investigative functions.

The two possibilities may not be mutually exclusive. That is to say, the two possibilities could occur simultaneously. The CCI could be a judicial body which also performs other administrative and investigative functions (perhaps in the course of performing its judicial functions).

The question however divides the two possibilities by the word ‘or’. By doing so it is assumed that it is not possible for a body to be a judicial body and perform investigative functions and minor administrative functions.

In my submission, a situation where a judicial body may in fact perform minor investigative and administrative functions. The CCI itself is such a body. The civil courts are also such bodies. One may refer to the powers of a civil court under Order XXVI Rule 9 of the Code of Civil Procedure 1908, to issue a commission to a person to conduct local investigations to elucidate on a matter in dispute and file a report regarding such investigations. A report filed by the commissioner along with the evidence collected would be evidence in the suit. The investigation carried out by the commissioner on the orders of the court is nothing but a fact finding exercise. It is an exercise of collection of evidence by the Court. The nature of this function may not be termed as an adjudicatory but an investigative one. However, this function is performed to aid the court in deciding certain issues in a suit. It is a means to perform the end function of the court which is judicial in its nature. Merely because it also performs this investigative function in aid of its judicial functions, it cannot be said that the civil court is not a judicial body. The function of investigation performed by the Director General on the orders of the CCI are to be seen in the same light.

Now, the question as to whether the CCI is a judicial body requires to be answered. In the discussion on the nature of the functions performed by CCI the Delhi High Court relied heavily upon the decision of the Supreme Court in Competition Commission of India vs. Steel Authority of India and Anr. I submit that the reliance on this decision by the High Court was misplaced. The High Court quoted a passage from the decision of the Supreme Court which states (without discussion on the point) that the functions of the CCI are wide and held that it was bound by this enunciation of law. The passage quoted was:

“75. … Under the scheme of the Act, this Commission is vested with inquisitorial, investigative, regulatory, adjudicatory and to a limited extent even advisory jurisdiction. Vast powers have been given to the Commission to deal with the complaints or information leading to invocation of the provisions of Sections 3 and 4 read with Section 19 of the Act”.”

This statement was made by the Supreme Court as a part of an overview of Competition Law in India. The overview did not pertain to any particular issue but was generally made before the issues in that case were taken up for discussion. It may safely be said that the statement forms a part of the obiter-dicta of the judgment. It was wholly irrelevant to that case, in which the questions revolved around the scope of powers of the CCI in forming a prima facie opinion under Section 26(1) of the Act. The statement being a part of the obiter-dicta of the judgment was not binding on the Delhi High Court.

The reliance placed by the High Court upon the decision of the Supreme Court in Steel Authority of India Limited (supra) was misplaced for another reason. The question that arose for the consideration of the Supreme Court in Steel Authority of India Limited (supra) was with regard to the scope of power of the CCI while forming a prima facie opinion under Section 26(1) of the Act. In order to answer that question it considered the nature of the function performed by the CCI specifically under Section 26(1) of the Act. In coming to the conclusion that the function under Section 26(1) of the Act was inquisitorial, it did not characterize any other function of the CCI to be inquisitorial. It was only the function of forming a prima facie opinion which was considered to be inquisitorial.

The Delhi High Court however applied this finding to characterize the entire proceeding before the CCI. This is apparent from its statements in paragraphs 76 and 77 of its decision. The statements read as under:

76. Characterizing the proceeding before CCI as one akin to the preliminary stages of a departmental proceeding, the court, in SAIL (supra), held that prima facie opinion formation was merely an administrative function and that inquiry into the information or complaint (received by CCI) commences after such opinion was formed…”

77. It is therefore clear that though information or complaint which may trigger an inquiry, (but not necessarily so, in all cases) is received by the CCI, the initial steps it takes are not always towards, or in aid of adjudication. They are to ascertain fuller details and inquire into the veracity (or perhaps) seriousness of the contents of the information, to discern whether such investigation and further steps towards adjudication are necessary.

 

This mischaracterization of the entire proceeding before the CCI may have been overlooked if the Court thereafter analysed the other functions of the CCI independently and came to its conclusions as to their nature. However, the decision lacks such an analysis.

(I would submit that the finding made by the Supreme Court in Steel Authority of India Ltd. (supra) that the CCI performs only an administrative function in forming a prima facie opinion under Section 26(1) of the Act is incorrect. This is because the formation of a prima facie opinion requires the application of facts to the law. Thereafter it involves the application of a judicial mind to determine whether from the set of given facts a possibility of contravention of the law exists. The function under Section 26(1) of the Act does not end at ascertaining the veracity or seriousness of the contents of information. It is one of the functions to verify the contents of the information, but not the only one. The important function under Section 26(1) of the Act is the formation of a prima facie opinion. A detailed analysis has been made later in this article. For now, we may assume that the Delhi High Court was bound to hold the function under Section 26(1) as inquisitorial.)

Instead of analysing the other functions of the CCI, the High Court summarised them and ambiguously stated that the functions were administrative in nature. The relevant portion of the judgment has been extracted below:

78. At the next stage, after CCI directs investigation, the Director General (DG), after investigation, has to report to it [Section 26 (2)]. If the recommendation of the DG is that no case exists, the CCI is nevertheless obliged to forward a report to the informant/complainant, receive its or his comments and afford a hearing [Section 26 (5)]. After the hearing, it may dismiss the complaint [Section 26 (6)]; or direct further inquiry [Section 26 (7)]. If, on the other hand, the DG‟s report recommends that there exists some contravention of provisions of the Act, the CCI has to proceed further, and inquire into that [Section 26 (3) read with Section 26 (8)]. The CCI has limited powers of the civil court [Section 36 (2)] in matters such as (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavit; (d) issuing commissions for the examination of witnesses or documents; (e) requisitioning, subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), any public record or document or copy of such record or document from any office. The CCI can also require the opinion of experts [Section 36 (3)]. Significantly, CCI has no power to review its orders: previously, Section 37 permitted review; however, the 2007 amendment repealed that provision; it has limited rectification power, under Section 38. In case of imposition of penalty, one mode of recovery is through reference to the concerned income tax authority [Section 39 (2)]; such officer or income tax authority can then recover the penalty as if the party concerned were an ―assessee in default‖ under provisions of the Income tax Act [Section 39 (3)]. These investigative powers are also conferred concurrently upon the DG [Section 41 (2)].

A reading of the above paragraph reveals that there is no analysis whatsoever into the nature of the functions mentioned. The functions mentioned are clearly different from that discussed by the Supreme Court in its decision in Steel Authority of India Limited (supra). For instance, in the summary of functions made by the Court, it is mentioned that the CCI may dismiss the complaint based on the recommendation of the Director General that no case contravention of the Act exists. However, it may do so after hearing the parties concerned. This function of dismissal of the complaint is, on the face of it, adjudicatory. However no discussion into its nature has been made by the High Court.

There is another problem with examining independent functions such as investigation directed by the CCI in an inquiry under Section 19 of the Act, or the dispatch of notice upon the receipt of information from an informant. These functions are performed as a part of the entire function of conducting the inquiry and passing orders. They are never performed on their own or in isolation. For instance, an order directing the Director General to conduct an investigation can never be passed without an inquiry being initiated under Section 19 of the Act. If they were performed in isolation, their performance would lead to no logical end. Therefore the nature of these functions cannot be taken to characterize the CCI. The nature of the larger function is to be examined in order to determine the nature of functions performed by the CCI.

Thereafter, the High Court erroneously relied on the decision of the Supreme Court in Excel Crop Care India v. Competition Commission of India, to delineate the role of the CCI. In that case a contention was taken up by the Appellant that the Director General has no jurisdiction to investigate certain anti-competitive activities which took place after information had been filed with the CCI under Section 19 of the Act. Therefore the question in that case was whether the jurisdiction of the Director General in conducting investigations under the Act extended to actions which took place after the information had been filed. It did not pertain to the role of the CCI or the nature of functions performed by it. There was no discussion by the Court on this aspect.

The Delhi High Court quoted a passage from the said decision of the Supreme Court which did not discuss the role of the CCI in any manner and held that the said decision underlined the role of the CCI through investigation. In my submission, the decision of the Supreme Court does not aid the identification of the nature of functions of the CCI.

It was thereafter held that the CCI does not solely perform adjudication so that it may be characterized as a tribunal discharging solely judicial powers of the state. It was rather considered to be an administrative body which also performs quasi judicial functions.

The second issue framed by the High Court was whether the CCI violates the doctrine of separation of powers and is therefore unconstitutional. A vague continuation of the discussion as to the character of the CCI was made. The structure of the CCI was compared to regulatory bodies such as SEBI, TRAI, AERA, AAI and State Commissions and the Central Commission under the Electricity Act and it was stated that statutes governing these bodies do not require that its officers performing adjudicatory functions need not possess judicial experience. Such comparisons could not assist the Court in determining the character of CCI since the functions performed by these bodies differ widely. The CCI is fundamentally different since it does not have any legislative or executive powers, barring limited powers to regulate its own procedure.

The Court thereafter recognised that the CCI does perform certain adjudicatory functions in passing orders. However, it held that the adjudicatory functions were not to be given such primacy as to hold the CCI to be a judicial tribunal. Therefore, the challenge to the constitutional validity of the CCI on the ground that it was a violation of the doctrine of separation of powers was rejected.

In my opinion the finding that adjudicatory functions of the CCI cannot be given primacy is incorrect. It is a finding that is crucial to the point in discussion since the nature of an independent function would change the nature of the body depending on the weight attached to the function in question. That discussion will be taken up in the next post.

The Supreme Court’s Madhya Pradesh Government Formation Judgment – V: A Rejoinder [Guest Post]

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


[This is the fifth post in the series examining the Supreme Court’s judgment in Shivraj Singh Chouhan v Speaker, Legislative Assembly of Madhya Pradesh and Ors. This is a guest post by Anmol Jain.]


We must be careful to remember that the desirability of a particular rule of law, should not in any event by confused with the question of existence of the same, and constitutional morality should never be replaced by political morality, in deciding what the Constitution mandates.

-Shrimanth Balasaheb Patil v. Hon’ble Speaker, Karnataka Legislative Assembly

 

On the Constituent Assembly Debates

In my previous post, I had argued that the action of the Governor in the Madhya Pradesh government formation case, directing the Chief Minister to hold a trust vote in the Assembly, was unjustified. Based on the two responses on my article (here and here), I stand corrected that Article 163 is not the source of the power of the Governor, but that it merely guides the exercise of power vested, for the present matter, under Articles 174 r/w 175(2) of the Constitution. However, while maintaining my argument, I shall attempt to further substantiate it in this post.

Let’s start with the interpretation of the contentious part of Article 163. It states that:

There shall be a council of Ministers with the chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion.

Relying on the Constituent Assembly debates, I had argued that the Governor can act in his discretion only in those scenarios where the Constitution specifically empowers her. In the general opinion of the Assembly – also shared by Dr. Ambedkar and T.T. Krishnamachari – these were set out by Articles 175 and 188 of the Draft Constitution. And Dr. Ambedkar had indeed stated on 1st June 1949 that:

I personally myself would be quite willing to amend the last portion of clause (1) of Article 143 if I knew at this stage what are the provisions that this Constituent Assembly proposes to make with regard to the vesting of the Governor with discretionary power. My difficulty is that we have not yet come either to Article 175 or 188 nor have we exhausted all the possibilities of other provisions being made, vesting the Governor with discretionary power. If I knew, I would very readily agree to amend Article 143 and to mention the specific Article, but cannot be done now.

Nivedhitha points out the fact that these two provisions were subsequently amended by the Constituent Assembly to remove the discretionary power of the Governor, and despite Mr. Kamath’s comment on the 3rd of August recalling the Assembly that it must now delete the clause granting discretionary powers upon the Governor, the clause sustained in the Constitution. And thus, she argues:

Therefore, the final text of the Constitution provided for complete ministerial responsibility. It is thus clear that the debates and the final text of Article 163 have no nexus between them.

I argue that there is a nexus between the debates and the final draft. The central argument that was mooted and widely accepted in the Assembly was that being a nominated member, the Governor must not be given discretionary powers that can override the decisions of an elected government. And thus, the discretionary powers of the Governor must be limited. But is such discretion limited to only those provisions that explicitly state that the Governor must act ‘in her discretion’ or it also extends to those scenarios where the Governor does not have the access to the aid and advice of the Council of Ministers and thus, is circumstantially required to act in her discretion? The comments by Dr Ambedkar or Krishnamachari would indicate that the former situation is correct. However, I argue these comments were made based on the narrow study of the provision. It is important here to refer to what Pandit Thakur Das Bhargava had to say about Mr. Kamath’s proposal to delete the clause granting discretionary powers to the Governor:

Sir, I beg to oppose the Amendment of Mr. Kamath. Under Article 143 the Governor shall be aided in the exercise of his functions by a Council of Ministers. It is clear so far. … My submission is that it is wrong to say that the Governor shall be a dummy or an automation. As a matter of fact according to me the Governor shall exercise very wide powers and very significant powers too. If we look at Article 144 it says: “The Governor’s ministers shall be appointed by him and shall hold office during his pleasure.”

So her has the power to appoint his ministers. But when the ministers are not in existence who shall advise him in the discharge of his functions? When he dismisses his ministry then also he will exercise his functions under his own discretion.

Then again, when the Governor calls upon the leader of a party for the choice of ministers, after a previous ministry has been dissolved, in that case there will be no ministry in existence; and who will be there to advise him? Therefore he will be exercising his functions in his discretion. It is wrong to assume that the Governor will not be charged with any functions which he will exercise in his discretion. Article 175 and 188 are the other Articles which given him certain functions which he has to exercise in his discretion.” (Emphasis mine)

And perhaps on a later realization about such situations and the requirement of the Governor to act in his discretion, no amendment was proposed even when Mr. Kamath reminded Dr Ambedkar of his previous speech. Therefore, the debates are very much necessary for us to appreciate the fact that Article 163 vests discretionary powers to the Governor to the extent that there are explicit provisions in the Constitution that requires her to act in her discretion. Such provisions might either clearly state that the Governor must act ‘in her discretion’ or omit so because it is only logical that in the absence of Ministers’ aid and advice, the Governor has to act in her discretion.

Moreover, this understanding not only makes the debates relevant, but also allows us to interpret the Constitution in a workable fashion. Lastly, if Article 163 (or 143 in the draft Constitution) would have been amended only because Articles 175 and 188 were subsequently amended to divest the Governor of her discretionary powers, this would mean that the phrase ‘under the Constitution’, appearing in Article 163, had no purpose to serve.

Before to I move on the specifics of the judgment in the Madhya Pradesh government formation case, it is important to briefly note the developments on the discretionary powers of the Governor. Post 1950, the discretionary powers of the Governor were expanded through certain amendments. Even judicially, the courts have upheld the exercise of discretionary powers of the Governor in exceptional cases in order to avoid ‘complete breakdown of constitutional machinery’. In this regard, Justice Lokur noted in Nabam Rebia that:

As the years have gone by, more and more unusual if not extraordinary situations have arisen. These situations have led, in theory, to greater discretionary powers being conferred on the Governor through decisions rendered by this Court and the High Court. In my view, this is really a step backward and contrary to the idea of responsible government advocated in the Constituent Assembly.

It is in this light that we must approach the decision of the Supreme Court in the Madhya Pradesh government formation case.

On the decision of the Supreme Court

In the introduction to his post, Amlan notes my argument that ‘while directing a government to face a no-confidence motion, initiated inside the house, is within the scope of the Governor’s ‘discretionary directions’ [Part A], independently directing a trust vote when no such motion exists is beyond his discretion. [Part B].’ I shall respond to both these parts in seriatim.

With respect to Part A, the decision of the Supreme Court in Nabam Rebia provides us the necessary guidance. The Court, at ¶152, explicitly notes that in case there is a no-confidence motion against the government, and the Chief Minister and his Council of Ministers advise the Governor to prorogue the Assembly to deny a vote on the motion, then ‘the Governor need not accept such advice.’ The reasoning for this is quite straightforward: the executive must always be accountable to the Legislature and hold its confidence. If the executive recommends any action that denies the Legislature an opportunity to exercise checks on the executive, then the Governor, upholding the larger principle of executive accountability, must act against the advice of the Council of Ministers. This norm attempts to uphold the principle of executive accountability beyond the bare text of the Constitution and I shall come back to this later in this post.

Now coming to Part B, I must initiate our discussion with the Sarkaria Commission and the Punchhi Commission reports regarding the discretionary powers of the Governor with respect to summoning of the Legislative Assembly. At ¶4.11.19 of its report, Sarkaria Commission noted that:

“Normally, the State Legislature is summoned by the Governor on the advice of the Chief Minister. … However, the exigencies of certain situations may require a departure from this convention. The Governor, then, exercises his own discretion to summon the Assembly. He exercises this discretion only to ensure that the system of responsible government in the State works in accordance with the norms envisaged in the Constitution.” (Emphasis mine)

After noting certain situations like ‘where the Chief Minister designedly fails to advise the summoning of the Assembly within six months of its last sitting’, the Commission notes that:

“The exigencies of the situations described above are such that the Governor must necessarily over-rule the advice of his Ministry if he is to ensure that the relevant constitutional requirements are observed both in letter and spirit. … [T]he Governor would, in the special circumstances, be within his constitutional right in summoning the Assembly in the exercise of his discretion. … We, therefore, recommend that, if the Chief Minister neglects or refuses to summon the Assembly for holding a “Floor Test”, the Governor should summon the Assembly for the purpose.” (Emphasis mine)

Similarly, the Punchhi Commission noted that:

4.5.03 … He [The Governor] should advise the Chief Minister to summon the Assembly as early as possible. If the Chief Minister does not accept the Governor’s advice, the Governor may, summon the Assembly for the specific purpose of testing the majority of the Ministry. (Emphasis mine)

These excepts make it amply clear that the Governor must exercise her discretionary powers to summon the Legislative Assembly only in those scenarios where the Assembly is not in session and the Government is not advising the Governor to summon the Assembly as it fears losing the motion of confidence. However, the Madhya Pradesh scenario was different.

Let’s unfold the sequence of events so that I can put forth my argument more clearly. Here is a news report dated February 13, 2020 which notes that ‘[t]he Budget Session of the Madhya Pradesh Assembly shall begin here from March 16.’ Therefore, the Governor had, with the aid and advice of the Council of Ministers, duly summoned the MP Legislative Assembly to meet on March 16th. On account of certain developments – like the submission of resignations by the MLAs – on March 14th, two days prior to the scheduled meeting of the Assembly, the Governor addressed a letter to the Chief Minister directing him to face a trust vote in the Assembly. When the Assembly met on the 16th, the opposition did not move any motion of no-confidence. If the Assembly had lost the confidence in the Government, such a motion should have been moved. After the day’s proceedings, the Assembly was adjourned.

Two important events must be noted. First, the Council of Minister had duly advised the Governor to summon the Assembly. Second, despite certain political events, they stood by their advice and the Assembly met on the 16th. This scenario is completely different from the one noted by the Sarkaria Commission and the Punchhi Commission or even the one noted by the Supreme Court in Nabam Rebia. Therefore, I argue that in the peculiar setting of events in the Madhya Pradesh case, the Governor had no discretion to direct the Government to face a trust vote.

At this stage, we must confront the question regarding adjournment of the Assembly. Amlan argues that the adjournment circumvented the scope of having a ‘political process’ to roll out inside the Assembly and as the Government indulged in ‘delay tactics’, the exercise of discretion by the Governor was justified. Though I agree with him on the first part, I contest that the exercise of discretionary powers was the right answer to this ‘constitutional impasse’.

I argue that when the Assembly was adjourned by the Speaker, and thus effectively denying the Legislature an opportunity test whether the executive government holds the confidence of the Assembly, the opposition must have challenged the adjournment based on the principle of executive accountability. And thereby, a ruling must have come from the Supreme Court, perhaps on the lines of the UK Supreme Court’s prorogation judgment, that the action of adjournment by the Speaker denied an opportunity to the elected legislative body to exercise its constitutional powers as well as the statutory power to move a no-confidence motion in order to check whether the executive holds the confidence of the Assembly.

Concluding Remarks

For a consequentialist, the above arguments might not matter because ultimately – be it through a no-confidence motion or through the exercise of Governor’s discretion – the government would have had to face a trust vote. But when seen from a larger perspective, these are nothing but incremental steps that hinder the development of constitutional conventions. An impasse in the Assembly must be resolved within the Assembly. A ruling must have come on the checks on the power of the Speaker to adjourn the Assembly when the ruling party stands in a weak position. The creation of another situs of power would not resolve the situation. The ideal position must be to create checks on the existing power. When the Sarkaria Commission recommended the exercise of discretion by the Governor in summoning the Assembly, the recommendation was towards checking the unfettered nature of ‘aid and advice’ clause that effectively dilutes the rule of executive accountability to the Assembly. Similarly, in the present matter, a desirable position was imposing checks on the power of the Speaker and not to make that Office nugatory. If the Governor can direct the Government to face a trust vote even in those cases where the Assembly is duly summoned, then the entire purpose of having the process of no-confidence motion stops making sense. The opposition, then, will always rush to the Governor and seek a direction for holding a trust vote. So, instead of having executive accountability to the Legislature, it creates a regime of executive accountability to the Legislature through a nominated Office.

I started this post with an observation made by the Supreme Court in Shrimanth Balasaheb Patil v. Hon’ble Speaker, Karnataka Legislative Assembly and wish to conclude by quoting another observation from the same decision:

The scrupulous discharge of duties by all guardians of the Constitution include the duty not to transgress the limitations of their own constitutionally circumscribed powers by trespassing into what is properly the domain of other constitutional organs.

The Supreme Court’s Madhya Pradesh Government Formation Judgment – IV: A Response to Anmol Jain (2) [Guest Post]

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


[This is the fourth post in the series examining the Supreme Court’s judgment in Shivraj Singh Chouhan v Speaker, Legislative Assembly of Madhya Pradesh and Ors. This is a guest post by Nivedhitha K.]


In this essay, I respond to Anmol Jain’s post on the recently delivered judgment in Shivraj Singh Chouhan & Ors. v. Speaker, Madhya Pradesh Legislative Assembly & Ors. The facts of the case were summarised in the previous post. The crux of the case was: whether the 14th March 2020 communication of the Governor directing a floor test on 16th March was constitutional. Thus, the question that needed to be answered was whether the Governor had the power under the Constitution to direct a floor test to be conducted.

I will divide the post into two sections. In the first section, I will rebut the argument that the discretionary power of the Governor under Article 163 can only be exercised concerning those functions that are expressly within his discretion, under the Constitution. I will argue, invoking the doctrine of necessary implications, that the Governor can exercise his discretionary powers even when such powers have not been expressly conferred under the Constitution. In the second section, I will argue that the submission of the author that the bench’s reliance on Bommai and Rebia is misplaced is erroneous. I will argue that Bommai is a precedent for the exercise of guided discretion by the Governor, when he is met with a situation of political uncertainty such as in this case. I will then argue that in the subsequent reliance on Rebia, the author in contravention to his earlier stand, admits an exception for the exercise of discretionary power when the situation is unworkable. I will conclude by referring to the observation in Shivraj on the importance of the due process of no-confidence motion, as opposed to conducting a floor test through the direction of the Court/Governor.

Power to Direct a Floor Test under Article 174 r/w 175(2)

Anmol’s preliminary point of argument is that the Court holds that the power to direct a floor test falls under Article 163 of the Indian Constitution. I rebut this point. The Governor’s power to direct a floor test is inherent under Article 174 r/w 175(2) and not Article 163.

An excerpt from the communication of the Governor to the Chief Minister is below:

“………, it is necessary for you to gain the trust vote in Vidhan Sabha immediately after my speech on 16.03.2020. In this regard, I by exercising the powers conferred by Article 174 r/w 175(2) of the Constitution and other Constitutional powers vested in me…..”

When the Court held that the communication of the Governor was not ultra vires the Constitution, it accepted the plea that Article 174 r/w 175(2) is the repository of power to direct a floor test.

Article 174 gives the Governor the power to summon, prorogue, or dissolve the Assembly. He used this power to direct that the ‘Session of Madhya Pradesh Vidhan Sabha will begin on 16th March 2020 w.e.f. 11 a.m. in the morning.’ Article 175(2) states that the Governor may send messages to the Assembly with ‘respect to a Bill then pending in the Legislature or otherwise and the house shall with all convenient dispatch consider any matter required by the message to be taken into consideration.’ The Governor relied on this provision to direct that ‘after my speech, only one work will be done i.e. trust vote.’

My argument is that the Governor has the power to direct a floor test under Article 174 r/w 175(2) and that Article 163 does not provide the power to the Governor but merely guides the exercise of power. Article 163(1) states that “There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.” A plain reading of Article 163 is sufficient to conclude that the Governor must exercise his power usually at the aid and advice of the Council of Ministers unless ‘he is by or under this Constitution required to exercise his functions ….in his discretion’. Therefore, aid and advice is the rule and discretionary exercise of power is the exception. To identify the ambit of discretionary exercise of power, it is necessary to interpret the words ‘except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.’

The Drafting History of Article 163

Anmol refers to the Constituent Assembly debates where the members observed that the Governor shall exercise discretion only when specific functions are expressly stated to be exercised through discretion. Indeed, an amendment was introduced by Mr. Kamath to remove ‘except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion’ from Article 163 (Article 143 in the draft Constitution). Mr. Krishnamachari, Mr. Alladi Krishnaswamy Iyer, and Dr. Ambedkar argued that it was only a question of drafting and that Article 163 was a general provision for the exercise of discretionary powers by the Governor which have been specifically provided under other provisions of the Constitution. Alladi Krishnaswamy Iyer observed:

Sir, there is really no difference between those who oppose and those who approve the Amendment. In the first place, the general principle is laid down in Article 143 namely, the principle of ministerial responsibility that the Governor in the various spheres of executive activity should act on the advice of his ministers. Then the Article goes on to provide: except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.’ So long as there are Articles in the Constitution which enable the Governor to act in his discretion and in certain circumstances, it may be, to over-ride the cabinet or to refer to the President, this Article as it is framed is perfectly in order.

In this context, there was repeated reference to Articles 175 and 188 of the draft Constitution. Dr. Ambedkar stated that if the House decided to divest the Governor of his discretionary power when provisions that specifically provided discretionary power to the Governor with regard to certain functions such as Articles 175 and 188 were taken up for debate, the general discretionary clause under Article 143 (now Article 163) could be deleted:

I personally myself would be quite willing to amend the last portion of clause (1) of Article 143 if I knew at this stage what are the provisions that this Constituent Assembly proposes to make with regard to the vesting of the Governor with discretionary power. My difficulty is that we have not yet come either to Article 175 or 188 nor have we exhausted all the possibilities of other provisions being made, vesting the Governor with discretionary power. If I knew, I would very readily agree to amend Article 143 and to mention the specific Article, but cannot be done now.

The proviso to Article 175 of the draft Constitution (now Article 200) stated that the ‘Governor may, in his discretion, return the Bill together with a message requesting that the House will reconsider the Bill or any specified provisions thereof … and that if the Bill is passed again with or without the amendment, the bill will have to be assented to by the Governor.’ Dr. Ambedkar introduced an amendment to remove the phrase ‘discretion’ from the provision. Commenting on the introduction of the amendment, he stated that ‘in a responsible government there can be no room for the Governor acting on discretion’. The amendment was accepted, and it led to the present form of Article 200 without the phrase ‘discretion’. Similarly, Article 188 specifically provided the Governor with the discretionary power to exercise his functions without the aid and advice of the Council of Ministers for two weeks if a grave emergency that threatened the peace and tranquillity of the State had arisen. Then, the President might – if he was satisfied – assume to himself the functions of the State. Dr. Ambedkar moved an amendment to delete Article 188 of the draft Constitution. He was of the view that the discretionary power for a short period was ‘futile’ if the President was going to take over after two weeks. This amendment was also accepted. The Governor was also – earlier – expressly provided discretion in the appointment and dismissal of his ministers (Art 144(6)), summoning and dissolution of the legislature (Art 153), the appointment of the Provincial Auditor –in- chief (Art 210) and members of the Public Service Commission (Art 285). Discretionary clauses in all these provisions were deleted.

Mr. Kamath brought to the notice of the House the reassurances of Dr. Ambedkar that Article 163 would be appropriately amended if the specific discretionary powers in the subsequent provisions were removed. However, Article 163 was intact in its entirety in the final text of the Constitution. The only matter in which the Governor was expressly required to act in his discretion was with regard to the administration of tribal areas in Assam for a transitional period. Therefore, the final text of the Constitution provided for complete ministerial responsibility. It is thus clear that the debates and the final text of Article 163 have no nexus between them.

The interpretation of the phrase ‘by or under the Constitution’ solely relying on the Constituent Assembly debates is erroneous for the following reasons. Firstly, though through a period, the Constituent Assembly debates have been accepted as an aid for interpretation, it cannot override the text of the Constitution. In this case, the debates on Article 163 and the final text of the provision share no nexus. And secondly, an interpretation that makes the Constitution workable will have to be used. If Anmol’s interpretation is accepted, it would render the clause providing general discretionary power in Article 163 redundant since the unamended Constitution did not specifically provide for discretionary exercise of power concerning any of the Governor’s functions.

Reports of Sarkaria Commission and Punchhi Commission

The Sarkaria Commission had interpreted the discretion exercisable by the Governor by the Constitution to include two classifications: (1) through express provisions; (2) through necessary implication. According to the Commission, the phrase under the Constitution means the discretion exercisable by virtue of the rules made under the Constitution. By the amended Constitution, the Governors have been required to expressly act in their discretion with respect to the administration of Arunachal Pradesh, Assam, Meghalaya, Mizoram, Nagaland and Sikkim. The Commission, echoing the words of Pandit Das Bhargava in the Constituent Assembly, observed that there might be situations in which it would not be possible or practicable for the Governor to receive the advice of the Council of Ministers. In such cases, the Governor’s discretionary power can be interpreted through necessary implication. A few of the examples mentioned in the Commission’s report are the appointment of the Chief Minister after an election under Article 164(1), submission of report under Article 356 on the breakdown of the constitutional machinery in the State, and recommendation of a bill for the consideration of the President under Article 200. These views have been accepted by the Punchhi Commission as well.

Power to Exercise Discretion through Necessary Implication

Let us now look at the text of the Constitution independent of the Commission’s report to ascertain as to whether the discretionary power exercisable by the Governor can be read through necessary implications. Article 163(2) states that ‘if any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.’ If the discretion was only purported to be restricted to express discretionary provisions, the question of the ambiguity of exercisable discretion itself would not arise.

Let us examine two factual situations to identify if excluding the reading of the discretionary power of the Governor through necessary implication would lead to an unworkable Constitution. For the first situation, let us take the example of the latest political crisis in Maharashtra in December 2019. None of the parties had the majority to form the Government, and the coalition among the parties was in the nascent stage in the first week after the election. In that case, there was no council of ministers to aid and advise the Governor on whether there was a breakdown of the Constitutional machinery for him to send a report to the President under Article 356 of the Indian Constitution. For the second situation, let us take the example of the political crisis in Madhya Pradesh in March, 2020. It seemed that the Government no more exercised a majority after twenty-two MLAs submitted their resignations, of which only six were accepted. The numbers were enough for the Governor to form a prima facie objective opinion that the Government might not be enjoying a majority. Let us assume that the Assembly was not in session for another month – unlike the instant case where the Assembly was already summoned for 16 March 2020. In that case, if interpreted to mean only expressly provided discretionary power, the Governor would not hold the power to summon the House unless he was advised by the Council of Ministers – which might be too far-fetched to expect, since it was their majority that would have to be tested in the house. Pandit Das Bhargava brought these contingent situations to the knowledge of the House when he observed: ‘It is quite right that so far as our conception of a constitutional Governor goes he will have to accept the advice of his ministers in many matters but there are many other matters in which the advice will neither be available nor will he be bound to accept that advice.’

The majority in Rebia recognised the fallacy of restricting the discretionary power of the Governor to express provisions and observed that there might arise a situation when the Chief Minister no more enjoyed the majority in the House. If the Governor could arrive at an objective opinion that a doubt was cast on the numbers of the ruling party, the Council of Ministers would lose their legitimacy to advice the Governor. In this context, it was observed:

The above position (of aid and advice) would stand altered if the Government in power has lost the confidence of the House. …….. However, where there is reason to believe, that the Government in power no longer enjoys majority support, it is open to the Governor, to take steps to determine the issue of majority by a floor test……….. We find no justification in taking a different view, than the one expressed by the Justice Sarkaria Commission report, conclusions whereof were reiterated by the Justice M.M. Punchhi Commission report. We endorse and adopt the same, as a correct expression of the constitutional interpretation, insofar as the present issue is concerned.

Reliance on Bommai and Rebia

Anmol argues that reliance on Bommai and Rebia by the Court was misplaced. With regard to Bommai, he argues that it is not a precedent for the direction of the floor test by the Governor. He argues that the decision leaves open the question of the process through which the Chief Minister is to prove his majority. Even if assuming for the sake of argument that Bommai did not support a Governor-directed floor test as the only means of testing if the Chief Minister enjoyed the confidence of the House, Bommai would not be immaterial for the adjudication of a factual situation such as Shivraj. According to Bommai, the Governor through his discretionary power could send a report to the President under Article 356 only after he fulfilled his duty of summoning the House and calling the Chief Minister to prove his majority- except when he was faced with a violent situation in the House. Therefore, in Bommai it was observed that the Governor could summon the house even without the aid and advice of the Council of Ministers. If anything, Bommai is a validation of interpreting the discretionary power of the Governor through necessary implications.

No-confidence Motion and Floor Test

Anmol argues – based on Rebia – that even when the Assembly is not in session, ‘no-confidence motion remains significant for initiating the process, and based on this motion, the Governor is empowered to act even against the aid and advice of the Council of Ministers.’ His argument here is two-fold: one, the initiation of the process to prove the confidence of the House must only be through the no-confidence motion, both when the Assembly is in session and is not in session. Second, when the Assembly is not in session, the initiation of the process should be through a no-confidence motion, but the Governor can act against the aid and advice of the Council of Ministers, if through the advice, the Council of Ministers attempts to by-pass proving the majority. In this argument, the author concedes that there may arise situations in which the advice of the Council of Ministers cannot be accepted. Accepting the advice in these situations would abrogate the principle of ministerial responsibility. Therefore, the author has himself carved out an exception for exercise of discretionary power if the situation is unworkable. This is the basis of deducing discretionary power through necessary implications.

His argument that even if the Assembly is not in session, the process of proving the majority has to be initiated through a no-confidence motion is erroneous. According to Rule 143 of the MP Assembly Rules, to introduce a no-confidence motion a member shall seek leave from the Speaker to introduce the motion and on the very same day give a written notice to the Secretary General. For grant of leave for motion, atleast 1/10th of the total number of members must vote in favour of the motion. On grant of leave, the Speaker shall allot a date within 10 days from the date on which the leave is sought. Therefore, it is evident that the no-confidence motion can be initiated only when the Assembly is in session. Thus, if there is a surge of political uncertainty when the Assembly is not in session, the first step is not to initiate a no-confidence motion but rather to summon the Assembly. If the interpretation of the author on the express discretionary power of the Governor is accepted, then neither can a no-confidence motion be initiated by the member nor can a floor test be directed by the Governor.

The bench in Shivraj seemed to be wary of the possible misuse of the discretionary power of the Governor to direct a floor test. It stated that the usual mode of proving the majority is only through a no-confidence motion:

In exercising the constitutional authority to demand a trust vote, the Governor must do so with circumspection in a manner that ensures that the authority of the House to determine the existence or loss of confidence in the government is not undermined. Absent exigent and compelling circumstances, there is no reason for the Governor to prevent the ordinary legislative process of a no confidence motion from running its due course. (paragraph 45)

 

However, the bench did not expound the meaning of the phrase ‘exigent and compelling circumstance’. It was ultimately held that the communication of the Governor was intra vires the Constitution. Therefore, it can be presumed that the Court regarded the instant factual situation to fall within the ambit of ‘exigent and compelling circumstance’. If the Governor had not directed for a floor test, then by virtue of the procedure under the MP Assembly Rules, even if leave was granted for no-confidence motion (since the session was in anyway to begin on 16th March), a 10 day cap for the no-confidence motion would be too long a period for the Assembly to function during the COVID-19 pandemic. In the instant case, the Assembly was also adjourned on 16th May, preventing the possibility of granting a leave for no confidence motion. Though there is no such reasoning in the judgment that the ‘exigent circumstance’ in the instant case was the surge of the COVID-19 pandemic, one can merely presume that these were the factors that guided the court.


[Disclaimer: The author is an intern in the office of Dr. DY Chandrachud J. Views are personal, and she did not substantially assist in the case.]

The Supreme Court’s Madhya Pradesh Government Formation Judgment – III: A Response to Anmol Jain [Guest Post]

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


[This is the third post in the series examining the Supreme Court’s judgment in Shivraj Singh Chouhan v Speaker, Legislative Assembly of Madhya Pradesh and Ors. This is a guest post by Amlan Mishra.]


The judgement of the Supreme Court on the Madhya Pradesh political crisis, which occurred in March, has been discussed on this blog. This piece by Anmol Jain seeks to critique the judgement for bringing the question of ‘whether confidence is lost or not’ under the purview of the Governor’s discretion. He argues that Art. 174 and 175 r/w Art. 163 (sending messages/directions and summoning the Legislature using the Governor’s discretion) provide for exercise of discretion only in those situations explicitly provided by the Constitution. Anmol stresses that while directing a government to face a no-confidence motion, initiated inside the house, is within the scope of the Governor’s ‘discretionary directions’, independently directing a trust vote when no such motion exists is beyond his discretion. In this post, I seek to argue that Anmol’s strict reading is not well founded. For there could be scenarios (like in this case) where the government may adopt delay tactics in order to deter any political process (like a no-confidence motion) aimed at holding it accountable from taking place. Lastly, I would also assess how the court navigated the political thicket in this case.

On Discretion

It is well-recognised that the Governor’s role is to form a government which enjoys support in the legislature. It has been held in Rameshwar Prasad v. Union of India, that the mere individual opinion of the Governor cannot be a ground for imposing President’s rule (under A. 356), but an attempt should first be made to test the government on the floor of the house. This means that the Governor has the duty to determine support on the floor of the house, before recommending invocation of A. 356. Here, the court also held that in a ‘parliamentary democracy of a state’, there should be at all times, either a democratic ‘popular’ government or the state should be under President’s rule. It stressed that no legislative assembly can be ‘live’ in the absence of an executive government. Thus the Governor should have means to resolve a situation when the ‘majority’ of a government is in question so that he can either invoke Art 356 or explore other means of forming a democratic government. This is a discretionary power inherent in A. 356 and in the collective responsibility of the Council of Ministers (A. 75). This discretionary power has been recognised more explicitly in Nabam Rebia v. Deputy Speaker. That is, of course, not to say that the power to make such a determination should be exercised at his whims or fancy.

This begs the question: should a Governor ‘interfere’ to resolve the question of majority or should he let political processes inside the legislative assembly resolve itself? Notice, if the process inside the legislature is likely to present an answer (eg. a no-confidence motion has been accepted by the Speaker and is to be scheduled soon), he need not interfere in the legislature. But where the political processes, for whatever reason, are unlikely to present an answer, he may issue directions ordering a floor test. He must do so, because political processes may not present an answer (i.e., establishing a majority), making it impossible for him to secure the continuance of a ‘popular government’. The above test of: ‘Are the political processes likely to present an answer?’ should then serve well in determining the boundaries of Governor’s exercise of discretion in cases where majority is suspect.

In this light, let us appreciate this extract from Nabam Rebia, which Anmol cites to buttress the central role of a ‘no-confidence motion’ before the Governor can ‘interfere’ by exercising his discretion:

The Chief Minister and his Council of Ministers lose their right to aid and advise the Governor, to summon or prorogue or dissolve the House, when the issue of the Government’s support by a majority of the Members of the House, has been rendered debatable. … And in such a situation, if there is a non-confidence motion against the Chief Minister, who instead of facing the Assembly, advises the Governor to prorogue or dissolve the Assembly, the Governor need not accept such advice.

Anmol highlights ‘the non-confidence motion’ to draw attention to the fact that Governor’s discretion kicks in only when a non-confidence motion is pending in the house. This I argue is a simplistic reading of this paragraph. Of course, the situation envisioned in the paragraph is one scenario where the Governor may refuse to dissolve/prorogue the house. But a purposive reading also means that he may use his discretion in directing a floor test, if the government uses delay tactics to not let the no-confidence motion be introduced. In other words, if political processes inside are proving inadequate or are being circumvented, he may use discretion in directing a floor test. Notice this follows logically from the paragraph. Putting a strict reading on it misses the purpose of the paragraph, which is to stop delay tactics by the government (like prorogation, adjournment etc) to avoid a test of its confidence. What if instead of prorogation (explicitly mentioned in this extract), the government resorts to adjournment to avoid testing its confidence, such that processes inside the legislature cannot present an answer? I argue that this being the situation in this case, the Governor’s discretionary directions were rightly upheld by the court.

Adjournment as a Delay Tactic: The Case of MP

Here, I show that in the MP Scenario, the government used adjournment to avoid the test, thereby creating a situation where political process could not throw up any answer to the question of majority. This legitimised THE Governor’s interference to settle the question. Notice this paragraph, in J. Chandrachud’s judgement, where he traces how adjournment made determination of ‘majority’ difficult:

The Chief Minister, adverting to the turmoil in the state, addressed a communication to the Governor on 13 March 2020 stating that the convening of the floor test would be a sure basis for resolving the conundrum. This is a strong indication that the Chief Minister himself was of the opinion that the situation in the state had cast his government‘s majority in doubt. However, upon the convening of the Legislative Assembly, no floor test was conducted, and the House was adjourned till 26 March 2020. These facts form the basis on which the Governor advised that a floor test be conducted. Based on the resignation of six ministers of the incumbent government (accepted by the Speaker), the purported resignation of sixteen more Members belonging to the INC, and the refusal of the Chief Minister to conduct a floor test despite the House having been convened on 16 March 2020, the exercise of power by the Governor to convene a floor test cannot be regarded as constitutionally improper.

 

This means that had the government not adjourned the house, and kept open the prospect of a no-confidence motion on the floor, the exercise of Governor’s discretion in this case would have been unwarranted. Since that did not happen, and instead, delay tactics were used, the Governor’s ‘interference’ in the legislature to check the political accountability of the government was justified.

Now, one can still argue that the Governor had sent directions on March 14th even before the house could hold its first session (on 16th March), and before any political process inside the legislature could begin. Thus, the argument may conclude that the Governor’s directions were untimely, as no delay tactics had been employed till them. However, the Governor kept reiterating his directions even after the adjournment of the house (made on 16th March till 26th March). This lent legitimacy to his directions, once the government started adopting delay tactics.

Avoiding the Political Thicket

Now, I wish to analyse how the court navigated the political thicket in this case. Courts traditionally have been wary of taking decisions which sway the balance in favour of a particular political party, and rightly so. Likewise in this case, the Congress Party and the Speaker argued that ordering an immediate floor test would ‘short-circuit’ the power of the Speaker in deciding the question of resignations of MLAs. This is important because unless the Speaker makes a decision about resignation before the floor test, all decisions about the disqualification/ resignation of MLAs may become irrelevant. Once the Government falls (as it did), the Speaker has very little time (before he is replaced) to decide on disqualification and resignation of MLAs. This chain of events may allow rebel MLAs to vote against their party whip, and still survive their disqualification, once the government changes (and there is a favourable Speaker).

It must be recognised (as has been argued in the blog here and here) that a remedy should have been fashioned which allowed the Speaker adequate time to decide these questions properly without ‘short-circuiting’ his decision. However, the court in this case failed to fashion such a remedy and merely noted that there is no explicit bar on the Speaker’s decision, and the floor test and these decision could run parallalely. Such a balance as Bhatia notes elsewhere is ‘not any balance at all’.

However, the court did try to equalise the setting by ordering a floor test the next day. The court noted that this would decrease the prospect of rebel MLAs sealing deals with the new government and thereby lessen the chances of them violating the Tenth Schedule (on defections). Readily ordered floor-tests are increasingly becoming a great, though unequal tool, to lessen subversion of democratic commitments and stop horse-trading. This also lessens unhelpful accusations of mala-fide in the functioning of the Governor (in sending directions to the Assembly) or the Speaker (in adjourning the assembly). Inherent in ordering an immediate floor test is the idea that despite bad faith by constitutional functionaries, the floor of the house if the place for determination of these questions and not the court-room.

Another attempt by the court was to allow interactions between the Speaker and the rebel MLAs through video-conferencing at a ‘neutral setting’ so that Speaker could take a decision on the resignations. This suggestion was declined by Sr. Adv. Singhvi because he did not have ‘instructions’ from his clients. However, this presents innovative ways of resolving political crisis, while allowing political processes to continue inside the legislature.

Overall, in my view, the Court did a decent job of delineating the discretionary powers of the Governor and tows a sensible line in navigating the political thicket.

Coronavirus and the Constitution – XVIII: Models of Accountability

With the nationwide lock-down extended until May 3, with another set of directions issued under the National Disaster Management Act, and a number – and range – of petitions of various kinds before the Supreme Court, it is perhaps worth taking a quick step back and returning to some first principles: in particular, to discuss afresh the role of the judiciary in the context of an executive-led response to a public health crisis.

I want to frame this essay around the issue of accountability, and what that means in this concrete context. According to a narrow version of accountability – let us call this “electoral accountability” – legitimacy is conferred upon government through the mechanism of periodic elections. The accountability of the government is tested – and renewed – through the electoral process. It follows from this that in the intervening five-year period, the government is taken to act upon the basis of a continuing mandate, and is not subject to any other form of accountability. If the government makes mistakes – for example, in its handling of the pandemic – it will be punished at the ballot box at the next elections.

This idea of accountability has been articulated, in particular, to criticise some of the Court’s interventions (such as its initial order on free Covid-19 testing, which now, of course, it has walked back on), and to praise its otherwise deferential attitude towards the government during this time (on the issue, for example, of migrant labour). The Court has not been elected to “manage the pandemic”, this argument goes, and it is not “accountable” to the people for the consequences of its decisions (such as free testing). Consequently, it should stay out of the way and let the government do what it is doing.

This articulation of accountability, however, does not correspond with the complexity of a republican democracy, where the Constitution consciously splits power between three branches of State (I ignore for the purposes of this essay the conundrums posed by Fourth Branch institutions such as the CAG, and the press). The government – and by government, I now specifically mean the executive – is accountable to the two other branches when it comes to the question of day-to-day administration. The first is Parliament (or the state legislatures, as the case may be) – the actual representative bodies – that have the power of oversight and scrutiny, and to ensure that the executive is operating in accordance with the lawful power that has been vested in it. The second is the judiciary, which is tasked with ensuring that the government’s actions respect constitutionally guaranteed rights, and are non-arbitrary (in the administrative law sense).

Now the first thing to notice about how the Covid-19 crisis has been handled in India is that the one of these three branches – Parliament – has been entirely bypassed. As I have written in some detail elsewhere, the two laws invoked to deal with the pandemic – the NDMA at the federal level and the EDA at the state level – have wide umbrella clauses that are of the “whatever it takes” variety: they essentially allow the executive to take any steps that it deems necessary in order to contain the “disaster” or the “epidemic”, as the case may be. Consider for a moment just what that means: even an Emergency declaration under the Constitution requires subsequent ratification by the Parliament. If, therefore, the government wanted to formally use the Constitution’s Emergency powers to deal with Covid-19, it would be subjected to a degree of Parliamentary scrutiny that is greater than the scrutiny it is subjected to through invoking the NDMA (that is, none)! Furthermore, ratification is not the only job Parliament plays: although its role in lawmaking has been vastly diminished in recent years, especially with the anti-defection law in place, Parliament remains the forum where the country’s elected lawmakers can debate what the government is doing; Parliamentary Questions are effective ways of extracting information from otherwise recalcitrant government Ministers; and Parliamentary Committees are vital tools of legislative oversight. All of this, it is important to note, has been bypassed through the invocation of the NDMA and EDA, leaving opposition leaders to hold press conferences and – as the Solicitor General would say – “prepare tweets” on the issue as their only ways of getting their points across. In fact, forget Parliamentary accountability – as all the Orders under the NDMA are signed by the Home Secretary, it is unclear the extent to which even the collective responsibility of the Cabinet is at play.

This is important for two reasons. The first is that accountability is a two-way street. The government – at both the federal and the state levels – has insulated itself from legislative accountability, which is an essential feature of the checks and balances envisioned under our democracy. Its case, then, for being given a free hand on the basis of “electoral accountability” is thereby weakened. And the second is that the effective eclipse of Parliament essentially leaves the judiciary as the only formal State organ that is positioned to act as a check on, and review, government action. And it is crucial to note – again – that what we are talking of is not judicial review of legislation (where there is a strong presumption of constitutionality, and a direct link with the issue of representation), but of executive action purportedly under the cover of an enabling legislation (the presumption in favour of which, accordingly,  is diluted).

Now, once again – and to get a very obvious bad faith objection out of the way – this is not to say that the judiciary should take over management of the pandemic. Nobody is saying that, and nobody has said that. What it does mean, however, is that the judiciary bears a heavy constitutional responsibility in ensuring that there continues to exist a forum where the government is called to account for its actions, and is required to justify them – under existing legal standards (what, on this blog, we have referred to as the “culture of justification”). To understand what this means, let us take, for instance, the now-farcical performance of the bench of Bhushan and Bhat JJ in the case involving free Covid-19 testing. On this blog, there had been an extensive debate around the bench’s first order mandating free Covid-19 testing (under ICMR Guidelines). There had been a general agreement that the Order lacked clarity on the question of reimbursement, and that private labs could not be expected to carry out testing without clarity on that point. Within a few days, the same bench performed a complete – and unreasoned – U-turn, and passed an even vaguer Order – at the behest of the Solicitor-General – allowing private labs to charge from those who have the means of paying (this effectively means that everyone whom the government formally exempts from paying will have to pay). Now, in the Court, it was argued that the cap-price of Rs. 4,500 per test had been arrived at after consultation with a task-force of experts; however, as journalistic reports showed, there had been no such consultation – and indeed, the price cap of Rs. 4,500 had been fixed in consultation with a set of individuals that indicated a conflict of interest.

Now, leaving aside the issue of free testing for a moment – as we have discussed this extensively on the blog – is the Supreme Court expected to get into the nitty-gritties of price fixation? Certainly not. However, is the fact that the government has – allegedly – not consulted its own committee of experts in fixing the price a relevant fact? Yes – and this is not even a constitutional issue, it is an administrative law issue – it shows non-application of mind and arbitrariness. Is the fact that the individuals who were consulted about the price allegedly had a conflict of interest in the issue, a relevant fact? Yes – and once again, this is in the domain of administrative law and arbitrary State action. Moving into the domain of constitutional law, if the government was of the view that free testing (even under strict ICMR Guidelines) would hamper its availability to conduct enough tests because of budgetary concerns, surely that opinion was founded upon some economic basis? While the Court would not “substitute” its economic wisdom for that of the government, given that constitutional rights are involved, surely the government could be asked simply to account for this claim drawing a causal link between free testing and a drop in its ability to conduct tests? None of this is asking for anything that is beyond the government’s ability or will to provide – it is, very simply – basic public accountability, in a public forum.

However, as we have seen, the Bench did none of that. What it did do was pass two extremely cryptic orders – one of which made testing free (without any details), and the second of which walked back on that and effectively granted a carte blanche to both private labs and the government (barring one category of individuals already covered by government insurance). This, unfortunately, has nothing to do with appropriate judicial deference to elected bodies on the questions of policy; it has everything to do with the Court abandoning its role as the only remaining formal forum where the government can be called to account for its actions – even on the most basic standard of administrative rationality.

Similar abdication has been seen across the board in the weeks of the lockdown: as everyone knows by now, when the migrants’ issue first came up before the Supreme Court, the Court simply accepted the Solicitor-General’s statement that all migrants were – by that time – in quarantine or in shelters, and appropriately looked after. Multiple reports after that have demonstrated that that simply wasn’t true. What we have, therefore, is not so much the Court refraining from interfering with policy, but the Court failing to ask questions of the government about whether it is adhering to its own legal standards in implementing its policies. For example, detailed reports, choc full of facts and figures, show that state governments already have with them many thousand crores of rupees in the form of worker welfare cess that is not being used to alleviate the distress of of migrant workers; in other words, far from there not being money, there is money that has been collected specifically for purposes like this, which is not being used; surely it is the obligation of the Court to ask the State about this, especially if its primary justification is a lack of money?

Rather, what we have seen is repeated statements from judges praising the government(s) for their efforts, expressing “satisfaction”, and insisting on how good a job is being done. Now, that may be appropriate for a country where the judiciary is expected to act as a subordinate wing of government, but it is decidedly not appropriate for a country where the judiciary is one of the three “checks and balances” in the scheme of the separation of powers. Because you’re not “checking” or “balancing” anything if every statement made by the government is taken at face value, when even some basic questioning would reveal (as in the free testing case) internal inconsistencies.

To sum up: accountability under a republican democracy, committed to a system of checks and balances, is distributed accountability. Unlike a form of Caesarism, where accountability is limited to a form of periodic acclamation, republican democracy views accountability to be a continuing concept; in particular, the government is accountable to both Parliament and to an independent judiciary, under established legal standards. The handling of the Covid-19 crisis has taken Parliament out of the equation altogether, leaving only two bodies: the government and the judiciary. In such a situation, one would expect an independent judiciary to play its role of holding the government to account: in particular, not to take over administration or make policy choices (such as, for example, deciding upon a lockdown, or the length of it), but to ensure that (a) rights are respected, and (b) far-reaching actions are backed up by at least some legitimate form of reasoning (in its administrative law sense). The Supreme Court’s actions on both points so far, however, have been disappointing.

Coronavirus and the Constitution – XIV: The Supreme Court’s Free Testing Order – A Rejoinder (1) [Guest Post]

[This is a Guest Post by Karan Gupta.]


In this post, I respond to Bastian Steuwer and Thulasi K. Raj who wrote a counter to Gautam Bhatia’s post, arguing that there is no justification for the order of the Supreme Court’s free testing order.

They begin by stating that there is an equivalence between accessing tests for COVID-19 and accessing healthcare generally. They are right to point out that the choice against nationalized health care has resulted in a market dominated by private players who impose exorbitant prices and perpetuate inequality. They ask: if the argument for mandating free tests for COVID-19 is based on the effect on those from lower income groups, why is the government “not also required to make cancer treatment free?” To me, this ignores the three core distinguishing features of the COVID-19 outbreak – extremely limited infrastructure, its highly contagious nature (time is of the essence) and the high mortality rate.

It is true that private healthcare for medical conditions such as cancer, organ transplants and dialysis is unaffordable for the poor. At the same time however, incremental steps have been taken to ensure access at government hospitals. The central and state governments have progressively anchored in place numerous schemes such as the CGHS, Rajiv Aarogyasri Community Health Insurance Scheme and the Rashtriya Bal Swasthya Karyakram to increase access to healthcare for those who cannot afford it. Implementation aside, these schemes are enacted after considered deliberation of the trade-offs in increasing public spending, which is consistent with power of the government decide questions of policy. What makes COVID-19 different, is the extremely limited infrastructure available in the government sector to test it. Here, it is not a question of wait time, but of the total lack of infrastructure. Private players in the testing market, albeit limited and subject to government approval, are growing rapidly as well as devising new testing methods. This leads to a situation where, as Bhatia points out – the wealth and economic class determines who can get tested and who can’t. What is the effect of this? The answer is interconnected with other two distinguishing factors of COVID-19 – as WHO terms it –high transmission (extremely contagious) and substantial fatal outcomes (highly deadly).

The contagiousness of every disease is measured by a reproduction number (RO). The RO of COVID-19 is far greater than MERS and arguably SARS. Even with the lowest estimate (2.2 RO as compared to 5.7 RO), 55% of the population needs to be immune from COVID-19 to control its further spread. For comparison, though measles has a RO of 12-18, there exists a vaccine to ensure its prevention and the development of herd immunity. Government programs like Indradhanush 2.0 aim at ensuring the eradication of measles. This is not the case with COVID-19. The best estimates project a time period of twelve more months before a vaccine is developed and is safe for human use. Added to this, the incubation period for COVID-19 is between four to fourteen days, which means that a person may be an unaware carrier and infect numerous people before they either show symptoms or are detected as positive and sent into isolation.

The above has led the WHO to conclude that testing is indispensable to control of the virus. Why are these three distinguishing features important? Considered in this light, two immediate impacts may be noted which help justify the order of the court:

First, for someone who may not be able to afford the 4,500 Rs test from a private lab, not only is their own life at risk, they endanger everyone around them. Keep in mind that as compared to other health issues, movement around the country is currently severely restricted, this inevitably means that there are also more hurdles in accessing public facilities for testing. This ensures that the impact is higher on those from low-income groups. Where those who are economically well-off can access testing, implement isolation measures and slow the spread of the virus, for people from low-income groups, the virus is more dangerous and spreads faster. Inequality here is self-perpetuating and creates what Bhatia rightly calls, clusters of people. COVID-19 only ensures that the creation of these clusters and the perpetuating effect of inequality is more certain, more fast and more deadly. That equality as political concept transcends the narrow legal understanding in Art 14 only helps us push the boundaries of understanding that equality is necessarily context specific and a rights-based argument can validly be made here.

Second, as compared to other health issues, the active containment of COVID-19 is premised on a staggering number of people either developing herd immunity, or every person having recovered. This is significant to prevent its spread in a deeply populous country such as India. Where there is a higher number of people who run the risk of being untested, there a higher chance that the curve is not flattened and the spread and effect of the virus is prolonged over a larger period of time, killing thousands. To agree here with the premise of the authors that it is up to the government to decide when and to what extent testing is made freely available is not hampering healthcare or allowing the government to improve it in a staggered manner, but destroying it completely for everyone. Here, the Court is justified in stepping in to address government inaction.

This brings me to the second point put forth by the authors – that given the unlikely implementation of the order, there is little to no utility to it. There are two points here that need to be addressed: (i) increased government expenditure may require budgetary cuts in other sectors like education or policing; and (ii) the government may, in response, decide to slow down testing further.

Let us assume that the order can be reasonably read as mandating the government to reimburse private labs for their expenses. To argue that mandating increased testing (and consequently increased government expenditure) would lead to cuts in other sectors ignores the temporary nature of the pandemic. The COVID-19 outbreak is different from other health conditions such as requiring an organ transplant or cancer in that the latter will continue to occur. Mandating free treatment for those health issues would have a sustained and debilitating impact on government expenditure and potentially destabilize it. This, I agree, would amount to courts deciding questions of social priority reserved for elected legislatures, which is impermissible. As I have previously pointed out however, this is not the case with COVID-19. A sustained, streamlined and time-bound effect will help stop altogether the virus. Any economic consequence then is temporary and justified in light of the outbreak.

The authors then contend that the government could, to reduce expenditure, shut down or reduce the number of tests being conducted. They suggest that the court may, in response, mandate a specific number of tests to be conducted. Assume this to be true. This, they say, encroaches in the realm of health policy making that requires difficult decision on trade-offs which only elected legislature command the legitimacy to make. This is buttressed on the claim that there are “various approaches towards how to protect a country from a pandemic”. While questions of policy are undoubtedly within the domain of government decision, this requires us to ask why the WHO prescribes – ‘Test, test, test’ and there is growing consensus that this specific methodology is indispensable to controlling COVID-19 specifically.

Where high transmission characterizes the virus, taking adequate remedial measures is premised on a timely detection of the virus to prevent contact tracing or community transmission. To claim that increased costs may impact economic relief packages undermines the vast resources available with the government to overcome a temporary emergency. What the Court may have done is cornered the government into having a hard look at what more it can do, in accordance with WHO guidelines, to prevent the spread of the virus. In any case, if India is to implement the idea to seal only hotspots and open the restricted functioning of other pockets to ‘save the economy’, this is premised on identifying which spots are hotspots in the first place. This cannot be done without a higher rate of testing. While testing is identified and understood as the first step to addressing the pandemic, India currently ranks as one of the lowest in the world in testing.

Even if the court mandates a specific number of tests to be conducted, this does alter the fact that several types of tests may be used. Though the government is constrained to ensure the free provision of a test, it retains the discretion to decide which test it uses, how it is distributed across the nation and how measures complement the efforts of the state governments in increasing testing. It is common knowledge that a large number of people are being turned away from both private and public hospitals. Mandating free testing and possibly a higher number will be consistent with both the growing consensus on how the virus can be prevented in the first place and the discretion that the government possesses in determining questions of policy.

The outbreak of the pandemic and the quick, effective, and certain disproportionate impact on those from the lower income groups briefly reminds me of the disagreement between Rawls and Amartya Sen between a theory of justice and an idea of justice. Our comfort in justifying a hands-off approach by thriving in theory allows us to have an overly sanguine attitude towards the government, its efficiency and concern. This, we say, ensures a continued commitment to the separation of powers. At the same time however, faced with government inaction, immediate and decided measures are indispensable to control the spread of the virus.

This is not to say that our legal commitment to the separation of powers must be thrown out of the window. In what I have shown above, justifying the order of the Supreme Court in the above context is not the same as advocating for its intervention in every situation of public health as the context is informed by the peculiarities of the COVID-19 outbreak. While judges are not experts in governance, they are nevertheless duty bound to address government inaction in the time of a pandemic that affects fundamental rights and threatens seriously the life of every individual. I would agree with Bhatia, that the order is morally, ethically, and constitutionally justified.

Guest Post: Vijay Wadettiwar v State of Maharashtra: Resigning MLAs, Constitutional Silences and a “Fraud on the Constitution”? – II

(This is the second post in a two-part series by Mihir Naniwadekar.)


In an earlier post, we had looked at the decision and reasoning of the Bombay High Court in Civil Writ Petition 6996 of 2019 (Vijay Namdeorao Wadettiwar v State of Maharashtra). The Court held that appointing RVP as a cabinet minister (in circumstances when there was no possibility of his becoming a member of the legislative assembly during the remainder of the term of the assembly) was not liable to be quashed by the Court as being a fraud on the Constitution, and the remedy (if any) was with the electorate. The earlier post argued that the constitutional history relied on by the High Court did not entirely support the Court’s conclusion in that regard. This post considers how one can look at the concept of “fraud on the Constitution” and how such a concept may be tested in similar facts.

Evolving a framework for judicial interference in ‘political’ decisions

In order to consider what test should be applied in situations such as these – where the Court is called on to interfere in something generally considered a ‘political’ decision – it may be helpful to consider a recent example from the United Kingdom – R (on the application of Miller v The Prime Minister [Miller (No.2)]. The case concerned a challenge to the Prime Minister’s advice to the Queen for proroguing Parliament. The power to prorogue is a prerogative power of the Crown.

The Supreme Court of the United Kingdom explained [Para 35] that two distinct issues must be separated in considering prerogative powers:

The first is whether a prerogative power exists, and if it does exist, its extent. The second is whether, granted that a prerogative power exists, and that it has been exercised within its limits, the exercise of the power is open to legal challenge on some other basis. The first of these issues undoubtedly lies within the jurisdiction of the courts and is justiciable, as all the parties to these proceedings accept… The second of these issues, on the other hand, may raise questions of justiciability. The question then is not whether the power exists, or whether a purported exercise of the power was beyond its legal limits, but whether its exercise within its legal limits is challengeable in the courts on the basis of one or more of the recognised grounds of judicial review…

Having so held, the Court considered the standards by which the lawful limits are to be identified, to determine whether the power has indeed been exercised within those limits. After further analysis of the relevant principles, the Court considered that the fundamental principles of parliamentary sovereignty and accountability to the Parliament were part of the limits on the very existence of the power to prorogue. And the limit was then expressed using the following test [Para 50]:

… the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course…

In other words, an effects-based test was adopted: is the exercise of the power such that it has the effect of frustrating (without reasonable justification) a certain fundamental principle? Merely saying that a power is a “prerogative” power is unhelpful: no power, not even a prerogative power, can be exercised in a manner which has the effect of frustrating a fundamental constitutional value. In other words, for any and every power, there is an inherent limit in a constitutional setup that the power cannot be exercised to violate certain fundamental principles. The doctrine of “fraud on the Constitution” can perhaps be understood in such sense in the constitutional context.  

That may help us understand why appointing criminals to be ministers is not a “fraud on the Constitution” (because it is no part of the basic structure to prevent criminals taking part in politics, however much one may ethically detest it) while re-promulgating ordinances is (because it is a basic feature of the Constitution that laws must be made by an elected legislature exercising its legislative powers). Hence, re-promulgating ordinances is a “fraud on the Constitution”, because the power to issue ordinances is limited to doing so only in the situation of absolute necessity and ensuring legislative oversight as soon as practicable. To re-promulgate those ordinances would mean that this legislative oversight is lost: and the basic feature is therefore negated. As Justice Chandrachud observed in Krishna Kumar Singh:

… the court must adopt an interpretation which furthers the basic constitutional premise of legislative control over ordinances. The preservation of this constitutional value is necessary for parliamentary democracy to survive on the sure foundation of the rule of law and collective responsibility of the executive to the legislature. The silences of the Constitution must be imbued with substantive content by infusing them with a meaning which enhances the rule of law. To attribute to the executive as an incident of the power to frame ordinances, an unrestricted ability to create binding effects for posterity would set a dangerous precedent in a parliamentary democracy…

To come to the example given by the Bombay High Court of a person who is not a member of the Assembly being re-appointed over and over again by the simple expedient of him resigning before the six-month period is over: that is again a “fraud on the Constitution”. But why? The answer is perhaps because the relevant basic feature engaged is of legislative oversight over Minsters and the executive; and appointing the same person over and over again has the effect of frustrating that basic feature without any reasonable justification at all.

Justice Krishna Iyer’s statement in Shamsher Singh is well known, that “Not the Potomac, but the Thames fertilises the flow of the Yamuna…” The 4th edition of Halsbury’s Laws of England noted that since ministers must always be responsible to the Parliament, and the responsibility is both personal as well as collective. The rationale for the British convention that ministers must always be members of Parliament is that this ensures that ministers cannot avoid criticism of their ministry and are always accountable to Parliament for the conduct of their ministry. If it were open to become a minister without any requirement whatsoever to become a member, then this essential element of accountability to the Parliament is lost. The High Court of Australia held in Australian Capital TV & New South Wales v Commonwealth of Australia:

The very concept of representative government and representative democracy signifies government by the people through their representatives. Translated into constitutional terms, it denotes that the sovereign power which resides in the people is exercised on their behalf by their representatives. The point is that the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act…

In SR Chaudhari’s case, following this line of reasoning and expressly referring to these authorities, the Supreme Court held the second appointment of the same person as Minister (without being elected) as being invalid. In reaching this conclusion, the Court also approved of scholarly commentary that “It is basic to the system of responsible government that the Prime Minister and all the other ministers be members of parliament…” and further held:

Parliamentary democracy generally envisages (i) representation of the people, (ii) responsible government and (iii) accountability of the Council of Ministers to the Legislature. The essence of this is to draw a direct line of authority from the people through the Legislature to the Executive… The very concept of responsible Government and representative democracy signifies Government by the People. In constitutional terms, it denotes that the sovereign power which resides in the people is exercised on their behalf by their chosen representatives and for exercise of those powers, the representatives are necessarily accountable to the people for what they do. The Members of the Legislature, thus, must owe their power directly or indirectly to the people….

SR Chaudhari is clear authority for the proposition that ministerial responsibility is indeed a fundamental feature of the Constitution.

The above analysis has suggested one tentative conception of approaching the question of “fraud on the Constitution”; and it is argued that this conception appears to be in line with the approach of a 7-Judge Bench of the Supreme Court (per Chandrachud J.) in Krishna Kumar Singh. What needs to be examined is if the impugned action (the appointment of RVP) is such that it has the effect of frustrating a fundamental constitutional value (ministerial responsibility).

Conclusion: “Fraud on the Constitution” and Ministerial Responsibility

Adopting this approach, it could be contended that the effect on the underlying value of responsible government and legislative oversight is such that if a person is in a position of being unable to face by-election, then in every case that person is ineligible to be Minister. Readers will recollect that in the Constituent Assembly, one of the reasons given by Dr. Ambedkar for rejecting the proposed amendment of Mohd. Tahir was that it was desirable to leave open the flexibility to the government to appoint the best person as minister “on the assumption that he shall be able to get himself elected…” In a situation of a vacancy shortly before the expiry of the term of the legislature, when no by-election at all is possible, then that vacancy should be filled up only by an existing member of the assembly: not because the Constitution requires this in express terms, but because not doing so will in every case have the effect of negating an underlying constitutional value. True, the Constitution permits a non-member to be a minister: but that permission is circumscribed by the underlying values which mandate that the person so appointed must necessarily be one who is capable of becoming a minister. The question which was left open in SR Chaudhari (“we have declined an invitation of learned counsel for the appellant to express our opinion on the question whether a non-legislator can be appointed as a Minster, if on the date of such appointment, he suffers from a constitutional or statutory disqualification to contest the election within the next six consecutive months”) can perhaps be answered in this manner and contrary to what emerges from the Bombay High Court decision. This fits in well with the decision of the Supreme Court not just in SR Chaudhari but also in BR Kapur; and also does not detract from the general rule that a non-member who is capable of being elected in six months can be so appointed.

Even if one were to take a different view, the analysis required to uphold the appointment would be of a somewhat different nature; and would have to focus on the effect of the appointment on the underlying constitutional value. It would have to be argued, perhaps, that the principle of collective responsibility is in itself sufficient to ensure that there is no adverse effect on the underlying constitutional value of ministerial responsibility. Indeed, while one of Dr. Ambedkar’s reasons (which we have already noted in the earlier post) for rejecting Mohd. Tahir’s amendment was that there was an underlying assumption that the minister would get elected as member, Dr. Ambedkar also offered another reason for rejecting the amendment:

…My second submission is this, that the fact that a nominated Minister is a member of the Cabinet, does not either violate the principle of collective responsibility nor does it violate the principle of confidence, because if he is a member of the Cabinet, if he is prepared to accept the policy of the Cabinet, stands part of the Cabinet and resigns with the Cabinet, when he ceases to have the confidence of the House, his membership of the Cabinet does not in any way cause any inconvenience or breach of the fundamental principles on which Parliamentary government is based…

The argument would then be that the framers regarded collective responsibility in itself as being sufficient to protect the underlying constitutional value; and hence, the fact that a particular minister may not even be capable of becoming a member of the assembly is irrelevant. That is certainly a proposition which would require careful consideration: however, it is suggested that this reasoning – that collective responsibility is in itself sufficient to ensure that the fundamental value of ministerial responsibility is not lost – does not sit comfortably with the reasoning of the Supreme Court in Kapur and Chaudhari.

Perhaps, the decision of the Bombay High Court – if carried in appeal to the Supreme Court – may give the Supreme Court a chance to further consider how the doctrine of “fraud on the Constitution” is to be applied and also to elucidate how exactly the fundamental constitutional value of ministerial responsibility is to be protected in the constitutional scheme.

[The author is grateful to Gautam Bhatia for his comments on a draft version of this essay.]