An Injudicious Judicial Opinion

In a constitutional democracy, there is a certain baseline expectation that citizens have from their courts. This expectation is that a judge hearing a challenge to the actions of a State organ shall confine themselves to analysing the substance of the claim, and provide transparent and public reasoning to back up their decision, or any other observations that they have to make about the case.

Paragraph 5 of Justice Dipankar Datta’s concurring opinion in the Supreme Court’s 26th April judgment on the question of electronic voting machines [EVMs] and VVPAT verification (Association for Democratic Reforms vs Election Commission of India) proceeds as follows:

It is of immediate relevance to note that in recent years, a trend has been fast developing of certain vested interest groups endeavouring to undermine the achievements and accomplishments of the nation, earned through the hard work and dedication of its sincere workforce. There seems to be a concerted effort to discredit, diminish, and weaken the progress of this great nation on every possible frontier. Any such effort, or rather attempt, has to be nipped in the bud. No Constitutional court, far less this Court, would allow such attempt to succeed as long as it (the court) has a say in the matter. I have serious doubt as regards the bona fides of the petitioning association when it seeks a reversion to the old order.

There are two things to note about this paragraph.

First, the judge levels a range of allegations in the first two sentences, but provides no evidence or particulars. He does not identify who these “vested interest groups” are. He does not specify what “the achievements and accomplishments of the nation” are, which are being “undermined” by these unnamed “vested interest groups.” He does not clarify what the “concerted effort” is that is being made by (presumably) the same unnamed “vested interest groups.” He does not explain what “progress of this great nation” is being weakened, and how, and by whom.

There is a term for such language, and it is called a “dog-whistle.” We are all familiar with dog-whistles: especially dog-whistles that allege that a nation’s progress is being held back by unnamed fifth-columnists. We are familiar with dog-whistles that set these unnamed fifth-columnists against the “true and pure” citizenry, the honest labourers and the “sincere work-force.” We are also familiar with what such dog-whistles lead to. Throughout history, these dog-whistles have been the preserve of demagogues and soap-box orators, seeking to whip up public resentment against the chosen targets of their outrage.

The demagogue does not need to spell out whom he is criticising, what he is criticising, or to provide reasons for his criticism. In fact, were he to do so, his demagoguery would lose its force, because his appeal is not to his audience’s reasoning faculties, but to the worst of their prejudices. His success is measured on no metric other than how much passion he can whip up, and what destructive effects he can direct it towards.

But there is a problem when a court engages in judicial demagoguery. The entire purpose of a constitutional court is to resolve disputes through the exercise of public reason, which is open and honest about its priors, and transparent about its assumptions. When a court begins to engage in these nudge-nudge-wink-wink games before a national audience, it abandons its role and functions as a court.

This is not to say that judicial demagoguery has no precedent in history. Perhaps its most famous exponent was Andrey Vyshinsky, the Soviet prosecutor-judge who presided over Stalin’s show-trials, and publicly berated the accused for being fifth-columnists who were intent on undermining the historical progress being made by the great Soviet nation. Is this an example the Supreme Court thinks worthy of emulation? One hopes not.

The second issue in this paragraph is the judge’s gratuitous personal attack upon the petitioner, the Association for Democratic Reforms. I will not here write a screed defending the ADR: their two-and-a-half-decades’ worth of work is in the public domain, it speaks for itself, and they do not need anyone to speak on their behalf. Notice, however, how – much like the first part of the paragraph – the judge provides no evidence for doubting ADR’s bona fides; in fact, the only reason for that, that comes out of the judgment, seems to be the judge’s outrage at the suggestion of replacing EVMs with paper ballots. But it is the opposite of judicial temperament to let one’s distaste for an argument spill over into a distaste for the petitioner.

Moreover, there is something particularly problematic about a personal attack by a judge upon a petitioner that appears in a judicial opinion, especially when these allegations are not put to the petitioner, and the petitioner is given no chance of defending themselves. This is, of course, not the first time that this has happened in recent years; for other examples of what I have referred to as the Court’s “Idi Amin jurisprudence,” see here. If a judge is intent upon castigating petitioners for the temerity of bringing a case to Court, and the basic principles of fairness demand that personal allegations be put to them, and their response to those allegations be recorded in the judgment. Without doing that, such attacks on petitioners are essentially the judicial versions of “shoot-and-scoot.”

There is a deeper irony here. The law of contempt exists – and rightly so – to protect judges from personal accusations (of bias, or dishonesty, or deciding cases for extraneous reasons). This is why losing parties to a case, or those who disagree with the outcome of a case, are not supposed to attribute the outcome to judicial malice. If judicial criticism became a free-for-all, judging would become a much more difficult and forbidding enterprise than it already is. But the law of contempt – which demands a certain temperance from the critics of the court – is not a one-way street. If judges treat petitioners as fair game for personal attacks, then the only effect of this will be to fray the threads that hold together the existing bargain. One wishes, of course, that this never comes to pass.

The Supreme Court’s EVM-VVPAT judgment will have its critics and its supporters. That is not the point here. Regardless of the Court’s findings, it is respectfully submitted that paragraph 5 of the concurring opinion delivered by Justice Dipankar Datta is both gratuitous and unnecessary. A healthy constitutional culture depends on individuals being able to challenge State action without fear of reprisal. If the Supreme Court itself becomes an organ of reprisal, then soon we will have no constitutional culture, but – to invoke another memorable judicial turn of phrase – “the unanimity of the graveyard.”

Guest Post: Hemant Soren and the Supreme Court’s “Go to the HC” Jurisprudence

[This is a guest post by Rushil Batra.]

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Of late, the Supreme Court has been asking Petitioners to approach the High Court under Article 226 before they approach the Supreme Court directly under Article 32 for violation of fundamental rights. The latest victim of this ‘Go to the HC’ jurisprudence has been Hemant Soren – a sitting chief minister, who was arrested by the Enforcement Directorate [“ED”] and denied urgent relief by the Court. I refer to such cases collectively as ‘jurisprudence’ in itself because previous Chief Justices have highlighted how the Court is actively trying to ‘discourage’ such cases.

Practically the Court may have valid logistical and pragmatic concerns of petitioners bypassing the High Courts. However, the problem with that approach is that the text of the Constitution simply does not give any discretion to the Court to deny considering the case under Article 32. The Court, which otherwise seems to highlight the importance of separation of powers, cannot dilute a right ‘guaranteed’ to citizens based on pragmatic considerations

Thus, this post first analyses the bare text of the Constitution and argues that the Court cannot deny relief to petitioners even if they approach the SC directly. Second, it highlights the inconsistent approach of the Court in selectively sending some cases back to the HC while hearing others that happen to have political undertones. Lastly, it argues that the Court’s solution of ‘discouraging’ Article 32 cases may not align with the problem of backlog that it aims to solve.  

Back to the Basics: A Textual Reading of Article 32

Article 32 [(1) and (4)] reads as follows:

 “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed…The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution” (emphasis mine)

A plain reading of the text highlights how enforcement of fundamental rights under Article 32 is ‘guaranteed’ and cannot be suspended except as provided by the Constitution itself. Interestingly, such words as rights being ‘guaranteed’ are missing from 226. On a more philosophical level, Article 32 implicitly highlights what Henry Shue has argued, and what needs to be remembered now more than ever: that rights are worthless if they are not ‘socially guaranteed’ and lack enforcement.

The general response of the Court has been – as was in Soren’s case – that this would lead to opening up the floodgates where petitioners would bypass the High Courts and the SC would have to deal with more cases even as they deal with an already exploding docket. The idea is that High Courts are also ‘Constitutional Courts’ and have the power to deal with issues concerning fundamental rights, and thus the petitioners must exhaust all ‘alternative’ remedies before reaching the Court of last resort. In other words, the argument is one of public policy. The question is whether public policy considerations like these can be brought in when the text of the Constitution is manifestly clear on it.

Upendra Baxi has argued that the Supreme Court has no discretion in providing citizens with relief if a valid case is made out. Baxi argues that even if one assumes that the Court is right on public policy considerations, the question is whether the text of the Constitution allows it to import such considerations. The answer is a resounding no. Thus, the Court does not merely have the power to allow people to ‘move’ the Court – it also has a constitutional duty (i.e., a power coupled with a duty) to decide on such claims. Even if one argues that the writ is a discretionary remedy, the Court may have discretion in granting relief or not, but it must decide on merits to make that choice.

The concern that the State (inevitably) raises is that common citizens do not get the same treatment as political litigants do. There is a simple response to this. Political litigants – or more broadly persons in public service or limelight – do stand on a different footing than ordinary citizens in some contexts simply because of the skewed incentives when it comes to State prosecution. Khaitan has argued how democracy is a ‘self-defeating system,’ where whichever party is in power is likely to do everything to remain there. The most logical step then is to reduce opposition campaigning – especially when elections are around the corner. Once again, this is not something unique to one government, but is bound to be the case with all of them in the absence of an entrenched constitutional culture, which is all the more reason for the Court to consider such cases.

The argument here is not that the Court needs to decide only in a given way. Notwithstanding the recent concerns raised regarding the bench composition of certain cases, the question in this post is not even about who presides on the bench or what their inclinations are. The Court may very well deny the application on merits after going through the arguments advanced. The question here is a much basic one i.e., of judicial evasion. The Court must decide in one way or the other. Having of late emphasized the separation of powers, the Court should remember that the text of the Constitution does not permit it to deny entertaining claims regarding fundamental rights merely because the HC has concurrent jurisdiction to entertain such claims. At best, the Constitution must be amended to deal with such policy concerns, but until that is done, the Court cannot principally justify not hearing such cases on merits.

Are the High Court’s truly ‘Constitutional Courts’?

In sending Petitioners back to the High Courts, there is an interesting (and controversial) logic that underlines the Courts reasoning more broadly for Article 32 jurisprudence. The Court seems to suggest that High Courts being ‘Constitutional Courts’ have all powers that the Supreme Court has as far as interpreting the Constitution is concerned, including striking/reading down Central Acts – which is why Petitioners should approach it before coming to the Supreme Court. While the idea seems appealing – and even correct – once again the Supreme Court has been extremely inconsistent in actually applying this idea.

The Court generally is seen to have no problem when it comes to taking up politically sensitive matters – that also incidentally enure to the benefit of the political executive – under Article 32. A recent example where the Court had no hesitation in entertaining the case was of Vishal Tiwari v. Union of India, where the Court set up an expert committee to look at allegations of short-selling in the Adani-Hindenburg Case. Another example of using Article 32 is the Pegasus Case, where the Supreme Court took it upon itself to ensure that an SIT was formed only to keep their recommendations hidden in a ‘sealed cover’.

On the other hand, in the case of Popular Front of India v. Union of India, the Court declined to exercise its jurisdiction given the Petitioners had not approached the HC. Similarly, in the Manipur Internet Shutdown Case, the Court once again refused to exercise its powers under Article 32. This instance was more shocking as the Petitioner had actually approached the HC, but given the inaction by the HC, had to approach the SC under Article 32 – but this too seemed to be inadequate for the Court to consider the case. Thus, the ‘Go Back to HC jurisprudence’ goes much beyond bail or habeas corpus matters. The current trend seems to indicate that the Court selectively takes up some politically sensitive matters while refusing to do so in other cases.The quest for reasoning, let alone principled reasoning, seems elusive in this jurisprudence.

The SC also continues to undermine its own logic of HCs having as much power (and legitimacy) as the Supreme Court. This is most apparent when the SC selectively – and arbitrarily – in numerous instances, transfers petitions pending before High Courts to itself. A recent example of this could be seen in the Marriage Equality Case, where the Court transferred all petitions before HCs to itself (from the Delhi, Punjab, and Kerala HC). It remains unclear why the High Courts were not allowed to decide on the issue. One instant response could be the need to maintain uniformity in the law i.e., the unclear consequences of what happens when one HC strikes down a provision of a Central Act. While there is no ratio on this point, in the case of Kusum Ingots v. Union of India, in an obiter the Court had held:

“An order passed on writ petition questioning the constitutionality of a Parliamentary Act whether interim or final keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act” (emphasis mine)

This obiter has actually been adopted by several HCs. For instance, in Shiv Kumar v. Union of India, the Karnataka HC (with Nagarathna J – as she then was – speaking for the Court) found itself to be bound by a decision of the Kerala HC on reading down of Section 10 of the Divorce Act. In applying the read down version of the provision, it held:

“What follows is that Section 10A(1) of the Act has been held to be unconstitutional being violative of Articles 14 and 21 of the Constitution. However, to save it from the vice of unconstitutionality, the expression of ‘two years’ has been read down to ‘one year’ in sub-section (1) of Section 10A of the Act. The Kerala High Court’s pronouncement on the constitutionality of a provision of a Central Act would be applicable throughout India.”

If the position of law today is that the striking down, or reading down, of a provision by the HC shall have effect pan-India, it remains highly unclear as to why the Supreme Court would ever find itself in a position to transfer cases, like it did in the Marriage Equality Case. The conclusion is simple: while High Courts are Constitutional Courts in some cases, they cease to be as important in others.

Debunking the Ostensible Basis for Denying Relief under Article 32

The concerns regarding approaching the HC first are not new. Going back to 1950, in Romesh Thapar v. State of Madras, a similar objection was made by the then Advocate General that the Petitioner must approach the HC first before coming under Article 32 before the SC. A five-judge bench of the Court responded in the following words:

That article does not merely confer power on this Court, as article 226 does on the High Courts, to issue certain writs for the enforcement of the rights conferred by Part III or for any other purpose, as part of its general jurisdiction. In that case it would have been more appropriately placed among articles 131 to 139 which define that jurisdiction. Article 32 provides a “guaranteed” remedy for the enforcement of those rights, and this remedial right is itself made a fundamental right by being included in Part 1II. This Court…cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights”

This logic was followed in numerous cases in the 1950s, including other constitutional benches. However, over time, the Court’s approach has clearly changed. This can be visible from Union of India vs Paul Manickam in 2003 wherein the Court held “it has to be shown by the petitioner as to why the High Court has not been approached, could not be approached or it is futile to approach the High Court” and in case of failure to satisfy this test, the Court must ‘discourage’ such petitioners. Prassana S highlights how Paul Manickam ignores Thapar, and its observations at best constitute obiter, and at worse ars per incuriam. Another problem that emerges from an unclear position of law – on something as basic as Article 32 – is that a polyvocal Court is bound to have differing views on it.

The only possible reason for a change in judicial approach to my mind can be the increasing backlog of cases. Once again, this may be a valid concern at first blush, but a closer analysis would highlight that it does little to solve the problem. We now have empirically backed claims that highlight that the court’s docket explosion is rarely due to fundamental rights claims. Aparna Chandra, Sital Kalantry, and William Hubbard, in their latest book Court on Trial, highlight how the bulk of the cases arise from SLPs. Their data-set highlights that as of March 2018, appeals, the bulk of them SLPs, comprised approximately 98.7% of the Court’s docket of pending cases (including cases pending admission). Simply put, even if the Court’s concern is of backlog, by disallowing Article 32 claims, they throw the baby out with the bathwater.

Conclusion

Thus, the Supreme Court’s ‘Go to the HC’ jurisprudence lacks both legal and principled basis. It remains unclear as to how the Supreme Court gets powers to go against Constitution bench decisions without first overruling them. This also means that being a polyvocal court, some benches allow claims of fundamental rights directly before the SC while some don’t. There is also a highly inconsistent approach where the Court selectively allows Article 32 cases in some instances, but not in others. Even if the Court in the future decides to reconsider Romesh Thapar, the Court cannot on a principled basis justify restricting Article 32 claims. If at all the problem of backlog needs to be dealt with, it must be based on empirical data where the solution matches the problem.

Guest Post: A Critique of the Supreme Court’s Farm Act Order – II

[This is a guest post by Aakanksha Saxena.]

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The Supreme Court recently passed an order in discrete batches of petitions arising out of (1) the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020; (2) the Essential Commodities (Amendment) Act, 2020; and (3) the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, (‘farm laws’), and, the protest by farmers against these laws. Challenges have been filed to the constitutional validity of the laws. An initial petition filed was a PIL by a law student seeking removal of the protesting farmers from the Delhi borders. Another batch of these petitions deserves mention is that it reportedly “supports the validity” of the farm laws – something which is a fundamental presumption in the domain of judicial review.

The Order in question presents myriad concerns. While appreciating that the farmer’s protests have been peaceful, it is insinuated in the same vein that they may be a site of fomenting units which are banned for their secessionist tendencies – on the basis of a mere averment in an intervention application, which was nonetheless pressed by the Attorney General (although, in the final order, directions have been passed to file an affidavit). Further, while noting specifically the absence of counsel representing the farmers, the Bench has proceeded to pass orders indubitably affecting their rights. It appears that the Court has recognised the need for stakeholder participation and consultation as an essential step in policy making, by appointing the expert Committee which is to receive views from all the stakeholders involved; however, what failed to be appreciated is that such a process was integral and ought to have been implemented much prior in time than this hearing, and in any event prior to the enactment of the farm laws. Given the large-scale protests and evident grievances raised by the farmers, the decision-making process leading up to the farm laws could have benefited from stakeholder participation and could also perhaps have avoided agitation and litigation of this nature. The failure to conduct stakeholder participation has clearly led to a situation enabling intervention by the judiciary in the realm ordinarily required to be occupied by the legislature and / or policy makers. Much has been written and said about the impact of the Court’s Order on the farmers’ protests and the natural political posturing and consequences, but this post shall deal with one terse paragraph of the Order which touches on the aspect of judicial review, i.e., whether the Hon’ble Court could pass an interim stay of the impugned Farm Laws.

A reading of the Order discloses that the reasons which weighed with the Bench for staying the operation of the farm laws could be – that negotiations between the farmers’ groups and the Government had been fruitless, and an expert committee to act as a negotiator between the sides would “create a congenial atmosphere”, that some of the farmers bodies’ agreed to go before a Committee, and that senior citizens, women, and children would then be discouraged from protesting which was posing grave risk to these groups. There is not a single statement or suggestion in the Order that the farm laws may, prima facie, be unconstitutional.

Juxtaposed against the Court’s reasoning for the stay, this post seeks to examine the constitutional standards laid down in our jurisprudence for the stay of legislation, particularly economic policy legislation (the standard being somewhat less stringent than laws touching on fundamental and civil rights). It needs to be emphasised that this case was apparently made out by the Attorney General, and this post shall deal with some of those very same precedents that were cited at the Bar, being the inescapable law laid down by the apex court.

In its decision in Siliguri Municipality v. Amalendu Das, the Court was at pains to point out to the concerned High Court the need for self-discipline when it came to interim orders of stay, when the question arose in relation to tax recovery under narrowly applicable state legislation. The Court stressed on the need for a bench to consider the exigencies of the situations and strike the delicate balance. Subsequently, the Court while considering a challenge to Section 9 of the Reserve Bank of India Act, in Bhavesh D. Parish v. Union of India, then went on to consolidate the standard of judicial review by completely deferring to the legislature on economic policy and specifying that any interdiction by courts therein could lead to ramifications which could even retard progress by years. It was expounded that the Court ought only interfere where it was satisfied that a view in the legislation was such that it was “not possible to be taken at all”. This has been reiterated in the case of both legislation and executive policy, when the Court in Bajaj Hindustan Ltd. v. Sir Shadi Lal Enterprises Ltd. clearly held that the court must leave the authority to decide its full range of choice within the executive or legislative power, and in matters of economic policy, the court gives a “large leeway” to the executive and the legislature. In Swiss Ribbons v. Union of India, the Supreme Court while considering a constitutional challenge to provisions of the Insolvency and Bankruptcy Code, expounded this principle as a “Judicial Hands off qua economic legislation”, which flows from SCOTUS Justice Holmes’ celebrated dissent in Lochner. It became the established position that legislatures may do as they feel fit unless restrained by constitutional prohibition, which prohibitions courts cannot extend merely by reading into them conceptions of public policy.

In Health for Millions, the concerned High Court had stayed the operation of Rules in Article 226 writ petitions, by issuing a single-paragraph order stating that ad-interim relief was granted since the Union of India had failed to appear and/or file reply. The Supreme Court strongly reiterated that passing such stay orders was at odds with the need for a court to refrain from staying the operation of legislation, unless the court is convinced that the legislation is patently unconstitutional and factors such as balance of convenience, irreparable injury, and public interest, favour interim stay. It therefore became necessary to set aside the interim impugned order given that the High Court did not consider any of these requirements.

The judgement in Dr. Jaishri Laxmanrao Patil v. The Chief Minister & Anr. referred to in the Order also needs distinguishing for several reasons – it was in a civil appeal, from an order of the Bombay High Court i.e. a constitutional court which had adjudicated upon the validity of the legislation in question, arguments were extensively heard both in support of and against the order under challenge, merit was found in the argument to refer the question of law to the constitution Bench, and it was in that context that the Court found it was not restrained in passing orders to cover the interregnum before the larger Bench presided. At the very least the Bench in Jaishri Laxmanrao Patil engaged with arguments made for and against the stay of the operation of the law, examined the law and the exigencies, and reached a prima facie view on its validity before staying its operation. However, the same cannot be said of the Farmers’ Laws Order, where ostensibly, the hearing was being held in order to ameliorate the heightening tensions and pressure on the government arising out of what were admittedly peaceful, non-violent protests. Of highest concern should be the manner in which the stay was granted in the face of overwhelming binding precedent requiring a constitutional court to expressly reach a prima facie view of unconstitutionality of legislative measures before staying their operation and/or passing any interim measures. In view of the case made out for urgent hearing, the Supreme Court instead of hearing the challenge, chose to appoint a negotiator, and a committee of experts as a negotiator at that. It does not fall to the Supreme Court to direct such committee appointments and stakeholder participation at the stage of a constitutional challenge. It cannot fall from the Supreme Court to stay the operation of a law, de hors a prima facie view of its unconstitutionality, and merely in order to facilitate a political negotiation. The potential effect on future courts is unimaginably dangerous.

Contempt of Court and Freedom of Speech: An Analysis of the Prashant Bhushan Judgment

Editor’s Note 1: Posts about the contemporary Supreme Court may be read in the context of the caveats set out in this post (link).

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Editor’s Note 2: 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 (link) against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].

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I began reading the 108-page long judgment (link) of the Supreme Court, which found Prashant Bhushan guilty of serious “contempt”, with a view to analysing its legal reasoning. On finishing the judgment, however, I found myself in a conundrum: there is no legal reasoning, and therefore nothing to analyse. In particular, Mr. Bhushan had filed an extensive reply (link) to the contempt proceedings against him, contextualising and defending the two tweets for which these proceedings were initiated; among other things, this Reply set out the basis for Mr. Bhushan’s opinion about the role of the last four Chief Justices in the decline of Indian democracy.

In the 108-page long judgment (the substantive part of which begins at page 93), the Supreme Court refuses entirely to engage with Mr. Bhushan’s reply. There are some colourful – and somewhat confusing – references to the Supreme Court being the “epitome” (?) of the judiciary, the need to maintain “the comity of nations” (?!), and an “iron hand” (!). There is, however, no legal reasoning, and no examination of the Reply.

It stands to reason that if an individual has been accused of contempt of court because they expressed an opinion about the role of four Chief Justices in undermining democracy, and that individual has filed a Reply setting out the facts upon the basis of which they arrived at that opinion, a “judgment” holding that individual guilty of contempt cannot pretend that the Reply does not exist. It reminds me of the times I used to take a football from the halfway line, dribble it across the pitch, and kick it into the goal – without any opposition players on the field.

But if the Court chooses not to explain itself, then there is little purpose to be served in excavating an explanation that it ought to have made, and then engaging with that imaginary explanation on legal grounds.

Consequently, I end this post here. Interested readers may consult the Reply, the “Judgment”, and draw their own conclusions.

The Afterlife of the Sabarimala Review: On the “Preliminary Question” before the Nine-Judge Bench

On this blog, I have previously discussed – and criticised – the “review” judgment in the Sabarimala case, as well as the Supreme Court’s subsequent actions in constituting a nine-judge bench to address some of the questions that arose out of that judgment. Earlier this week, during the course of oral argument, senior counsel brought up some of these issues – pointing out, in particular, that the five-judge bench could not, in the course of a review order, have “referred” legal questions to a larger bench. As a result, the nine-judge bench framed a “preliminary question”, which will be heard tomorrow: “whether this Court can refer questions of law to a larger bench in a review petition?”

Facts and Norms

This week’s hearing itself revealed two issues with the original “review” judgment, that we can take in turn. The first is the speculative character of the questions themselves, which go against the grain of how constitutional adjudication should normally happen. Doctrines of law evolve out of specific factual situations before the Court, and not out of abstract abstract philosophical enquiry. This is because, ultimately, doctrine has to be responsive to the wide range of factual disputes that could – and do – come up before the Court. In such a situation, a Court that deals in abstraction will inevitably create one of two undesirable situations: either it would have framed doctrine in such abstract terms, that it will be of no use in hearing and deciding the case before it; or it would have framed it in such concrete terms, that it would tie the hands of future benches in adapting doctrine to fit the peculiar facts that are before it in any given case.

To take the example of this case, the “referred” questions – that are about the intersection between religious freedom and gender equality – exist in a domain where there are a bewildering variety of social and religious practices. Take, for example, the religious practice of madesnana, that Suhrith and I discussed here (it is not about gender equality, but raises substantively similar questions); it should be obvious that practices of this kind are so particular and specific in character, that constitutional doctrine can only make sense if it flows from a careful consideration of the legal issues that they present, rather than first laying down abstract law, and seeing which side madesnana falls. In fact, in Sabarimala itself – as I have previously discussed – there wasn’t a whole lot of difference between the majority opinions and Malhotra J.’s dissent on the correct legal test – both sets of judgments agreed that religious practices that were oppressive or harmful to human dignity would fail the test of constitutionality. The only disagreement was whether in the specific facts of the Sabarimala case, the disputed practice fell within that definition or not. And that is exactly how adjudication should normally proceed.

In this context, the Chief Justice’s comment in Court – that the reason for this nine-judge bench hearing was that “these issues will arise again and again, resulting in a reference” – is an important one. Because that is precisely why, in fact, this nine-judge bench should not be hearing this case. The very fact that “these issues” (i.e., the interplay between women’s right to equality and religious freedom) will arise again and again is the reason that they should be decided as they arise, because the issues that they present to the Court will be layered, nuanced, and will require sensitive adjudication that is cognisant of those nuances. And as they arise, the judges who deal with them will – in the normal course of things – engage with existing precedent; they may agree with that precedent, they may disagree with it but nonetheless – exercising judicial discipline – follow it, or – if they think it is too wrong to follow – refer the issue for reconsideration. Once again, it is important to emphasise that this is how constitutional adjudication happens in the normal course of things, and that is entirely fit and appropriate: the law develops incrementally, responsive to facts, and gives judges the flexibility and the scope to modify, adapt, or alter doctrine as time goes by. It is that crucial flexibility – the hallmark of constitutional adjudication – that will be threatened if a practice of settling abstract questions in advance of concrete cases takes root in the Court.

Jurisdiction

While the first issue is one of desirability – i.e., that the Court should not decide these questions sitting as a nine-judge bench – there was, of course, a deeper issue raised by counsel in this week’s hearing: that the review judgment could not have “referred” legal questions to a larger bench. As discussed previously on this blog, that issue stems from the limited character of review jurisdiction, which is confined to checking if the original judgment suffered from an “error on the face of the record.”

It was contended by the Solicitor-General, in response, that Order VI(2) of the Supreme Court Rules, 2013, states that: “Where in the course of the hearing of any cause, appeal or other proceeding, the Bench considers that the matter should be dealt with by a larger Bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a Bench for the hearing of it.” The argument, thus, is that the phrase “any cause, appeal or other proceeding” includes proceedings in review.

To understand why this argument is flawed, we need to go back to the basics. How – and why – does a referral happen in the normal course of things? It happens when, while hearing a case, it is brought to the judges’ attention that there is a legal issue – most often, a conflict – that has a bearing upon the case, which they cannot resolve, and which only a larger bench can resolve (because – presumably – the bench hearing the case is of too small a size). The issue of referral, therefore, is bound up with the process of deciding a case.

A review, on the other hand, takes place after the case has been decided. And at that point, the bench is no longer considering what the legal answer to the case before it is. What it is considering is whether the reasoning that led to the decision was so fundamentally flawed, in some manner that is present “on the face of the record” (and therefore, by implication, requires no “interpretation”), that it simply cannot stand.

The distinction is crucial, because it demonstrates how the reasoning process that (potentially) leads to a referral, and the reasoning process that leads to a review, are fundamentally different – and that, by definition, the latter excludes the former. Because it is critically important to recall that a Review is not a “re-hearing” of the original case. If it was, then of course, all arguments in a hearing would be open to be re-litigated in Review. A Review is limited to a situation where the error is on the face of the record, i.e., so obvious that there can be no two ways about it. But an argument for referral always – and by definition – has two ways about it: the existing doctrine – which binds the bench hearing the case – and the interpretation that the bench may be persuaded to accept, but cannot, and is therefore referring the issue to a larger bench to decide.

Consequently, even if the Review bench believes that the original judgment answered the legal question before it incorrectly, that is not a ground for it to reopen the question; the only ground is a finding that there is an “error on the face of the record” in the original judgment (which, as we have seen, the Sabarimala Review order did not even attempt to demonstrate).

While this distinction may appear pedantic, it is of vital importance in a judicial system bound to the rule of law and the doctrine of precedent. A fundamental building block of this system is the importance of consistency in precedent. So, while the Court can always revisit – and overrule – its previous judgments, there exists a set procedure for doing so, which acts to ensure that such decisions are not taken lightly. So, in the normal course of things, if there is a five-judge bench decision holding “X”, then for it to be overruled, petitioners would have to (a) convince a two-judge bench to admit a case arguing for interpretation “Y”; (b) in a referral hearing – which can be opposed by the other side – convince the two-judge bench to refer it to a three-judge bench; (c) convince the three-judge bench to refer it to a five-judge bench; (d) convince the five-judge bench to refer it to a seven-judge bench; (e) convince the seven-judge bench to overrule the original decision. These hoops exist for the simple reason that without them, the law would be in a perpetual state of unsettled chaos, where individual judges would be perpetually at odds with one another, tugging at the law in different directions.

What the Sabarimala Review order did, on the other hand, was to short-circuit this entire process, and effectively sanction a “Sabarimala Round 2” without going through the inbuilt checks and balances that the legal system provides. This is presumably what Mr. Fali Nariman meant in Court when he said that it would set a “bad precedent”, and this is also why Order VI(2) of the Supreme Court Rules ought not to extend to hearings in Review: what it would then sanction, going forward, would indeed be a situation where Review hearings would become a “Round 2” – where speculative legal questions could be raised even after the original case had been decided – and thus seriously undermine the sanctity of precedent.

Conclusion

As discussed previously, the issues at present are no longer about the merits of the original Sabarimala judgment. They are about something deeper, and more institutional: in a poly-vocal Court of thirty-five judges, where the Office of the Chief Justice wields tremendous administrative power in selections of cases and benches, how do we ensure that the Court remains a coherent institution, and does not break down into competing factions? The present institutional structure of the Court – with its number of judges and small panels – makes judicial discipline and adherence to conventions around precedent even more crucial than in a more traditional Court (such as the US or South African apex Courts) that sits en banc, and speaks as one. From that perspective, the nine-judge bench has an onerous responsibility to discharge when it hears the preliminary question tomorrow.

 

The Curious Continuing Afterlife of the Sabarimala “Review”

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

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Previously on this blog, I had noted how the “review” order in the Sabarimala judgment flouted all known principles governing the Supreme Court’s review jurisdiction. In the wake of that order, things have moved fast. Two women approached the Supreme Court, pointing out that as there was no stay on the original Sabarimala judgment, their right to access the temple continued to stand, and that the state of Kerala was bound to implement the original judgment. During that hearing, as I noted, the Court refused to pass any orders, only making a series of remarks that appeared to have little to do with the actual issues in the case. Subsequently, however, the Chief Justice established a nine-judge bench to hear the issue, which sat for the first time yesterday.

We will get to the proceedings of the nine-judge bench in a moment, but to begin with, I want to note that the leap from the five-judge bench that wrote the Sabarimala review order straight to a nine-judge bench, is an odd one. In the review order of the five-judge bench, it was observed that there might be a possible conflict between the seven-judge bench decision in Shirur Mutt and the five-judge bench decision in Durgah Committee, on the question of the role of the Court in determining the “essential practices” of a religion. Notice, however, that the Sabarimala bench did not deliver any finding on the issue (as indeed it couldn’t, as the question was not before it). Consequently, if a five-judge bench had noted a possible discrepancy between previous seven-judge and five-judge benches, then the correct course of action would have been for the Chief Justice to convene a seven-judge bench, that would have (a) heard arguments on the issue of whether there was indeed a conflict, (b) if it found there was, heard arguments on whether Shirur Mutt was correct (and that therefore, by extension, Durgah Committee had incorrectly gone against a binding judgment), or (c) if it doubted the correctness of Shirur Mutt, to then refer the question to a nine-judge bench to decide. Instead of this judicial consideration of the issues, what we got was an administrative decision of the Chief Justice to constitute a bench of nine judges off the bat, which could now directly overrule Shirur Mutt if it so decided.

This is not pedantic hair-splitting. On the contrary, it is deeply important, because respect for precedent is at the bedrock of our judicial system, and of the rule of law. Ordinarily, prior judgments of the Supreme Court are binding, and meant to be followed: this is what provides the system the stability and continuity that differentiates the rule of law from the rule of judges. Now if a later bench of the Court wants to go against binding precedent, a series of ground-rules exist to ensure that this can only happen after careful consideration and reflection, and in judicial proceedings where both sides can put their case. These ground rules stipulate, for example, that if a smaller bench feels that the binding decision of a previous, larger bench is incorrect, it “refers” the case to a larger bench to consider; and in general, this referral takes place incrementally (for example, from two judges to three, three to five etc. – although there have, of course, been exceptions). The reason for this – to reiterate – is that respect for precedent requires, logically, that settled law be disturbed only when there are weighty reasons for doing so.

However, let us now come to the proceedings of the nine-judge bench itself. When the case was first listed on the Supreme Court’s website, there was a note below it that specified that the nine-judge bench would only be considering the reference questions that the Sabarimala review order had listed, and would not be entertaining arguments on the merits of the Sabarimala petitions themselves. This, as things went, was entirely appropriate: as I pointed out in my original piece, the Review Order had not even doubted the correctness of the Sabarimala judgment, let alone refer it to a larger bench; it had, rather, referred certain “questions” that it felt might be relevant for certain other cases (involving female genital mutilation, entry of Parsi women to fire temples, and entry of women to mosques). Thus, whatever the irregularities of the Review order, a limited consideration of those referred questions was the only issue that was actually before the larger bench.

When the matter was heard yesterday, however, events took a decidedly different turn. During the course of arguments, the Chief Justice indicated that the bench intended to hear not just the referral questions, but all the cases that the referral order believed might be impacted by those questions: female genital mutilation, entry of Parsi women to fire temples, and entry of women to mosques. The hearing closed with the bench directing counsel for all parties to meet and – if necessary – reframe and fine-tune the questions for decision.

While this in itself is unexceptionable (the original questions, as anyone can see, were much too broad and academic), the devil – as always – is in the details. In this case, it lies in the last line of the nine-judge bench’s order, which states:

List these matters along with Writ Petition (C) No.472 of 2019, SLP(C) No.18889/2012 and Writ Petition (C) No.286 of 2017, on 03.02.2020.

 

What are these petitions? These are the three petitions involving – as indicated above – female genital mutilation, entry of Parsi women to fire temples, and entry of women to mosques. In other words, therefore, it appears that – despite originally stating (rightly) that it would only hear the reference questions, the Court now appears to have placed the pending petitions before itself. But this is absolutely unprecedented – these cases were pending before their respective (smaller) benches, and there is no order of reference asking them to be placed before this nine-judge bench.

However, there is something more concerning here. If the nine-judge bench is no longer restricting itself to the reference questions – but intends to hear these petitions as well – then it at least potentially follows that the Sabarimala petitions – out of which the review order arose – will also now be the subject matter of the hearing. This would be truly extraordinary: a final judgment of the Court (five judges) would be effectively re-heard by a nine-judge bench, against all existing norms and conventions. Recall that no judgment has yet doubted the correctness of the original Sabarimala decision, or made a reference to have it reconsidered. In other words, this “second round” with a larger bench is taking place purely by virtue of the Chief Justice exercising his administrative fiat.

It should be obvious by now that this is no longer about whether the original judgment in Sabarimala was right or wrong. People can – and do – have different views about that, and it would be entirely open to later benches to reconsider it, following proper procedures. But what is at stake here is something deeper: it is whether precedent continues to have any meaning at the Supreme Court, or whether what we are witnessing is a gradual metamorphosis of the Supreme Court of India into the Supreme Chief Justice of India (a point I have written about before). Because what has happened here is that a number crucial issues that required judicial consideration in a proper way (whether there is a conflict between Shirur Mutt and Durgah, requiring resolution; whether the referred questions actually affect the pending cases; and whether Sabarimala ought to be reconsidered) have been implicitly decided through the constitution of a nine-judge bench, by administrative fiat.

Admittedly, a lot of these problems arise out of the bizarre character of the original Sabarimala “review” order, which I have discussed before. However, in subsequent proceedings, these problems appear only to have been compounded. On the next date of hearing, therefore, it remains to be seen whether the Court will, in the end, confine itself to answering the reference questions posed in Sabarimala (which, it may be recalled, it need not even do so) – or to take upon itself a broader role that will severely compromise the already-damaged idea of precedent at the Supreme Court.

Guest Post: The Supreme Court’s Fact-Finding Priorities

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

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This post, by Abhinav Sekhri and Mansi Binjrajka, first appeared on the Proof of Guilt Blog, and has been cross-posted with permission.

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Chief Justice of India, Hon’ble Mr. Justice Sharad Aravind Bobde, just yesterday, took suo moto cognizance of the working of the criminal justice system in relation to sexual offences. Highlighting how the amendments brought to criminal law after the Nirbhaya incident have not achieved the objective of speedy investigation and trial, the order passed by the Bench observes that:

“The delay in such matters has, in recent times, created agitation, anxiety and unrest in the minds of the people.” (emphasis supplied)

And therefore,

“We are, therefore, of the view that it is necessary to take stock of the implementation of provisions of criminal law, including the said amendments, relating to rape cases and other sexual offences. It is necessary to call for information with regard to status of affairs at ground level from various dutyholders like investigation agencies, prosecution, medico-forensic agencies, rehabilitation, legal aid agencies and also Courts to get a holistic view to make criminal justice system responsive in the cases of this nature.” (emphasis supplied)

Thereafter, the Court “considered it appropriate” to seek not one, but TWELVE separate status reports on a variety of issues pertaining to all police stations in the country. I request the readers to peruse the order (hyperlinked above) and form their own opinion on the Apex Court’s priorities. Please note the breadth of information sought for by the Supreme Court when only a few days ago, the same Bench had declared that they do not have time to waste on fact finding in relation to police brutality against student protestors in Delhi and elsewhere. Please also note that a Senior Advocate was promptly appointed as Amicus Curiae and, in addition, the Secretary General of the Supreme Court, as well as the Solicitor General, were requested to extend their co-operation.

To have a further idea on the kind of cases where the Supreme Court thinks it does have time for fact-finding, please see the table below. It contains details of cases that were registered as suo moto writs (‘SMW’) in the last 5 years at the direction of the Court itself.

S/N	CASE NO.	PARTICULARS
1.	SMW (C) 1 / 2019	In Re Matter of Great Public Importance Touching Upon the Independence of the Judiciary – mentioned by Sh. Tushar Mehta
2.	SMW (C) 2 / 2019	In Re Felling of Trees in Aarey Forest (Maharashtra)
3.	SMW (C) 3 / 2019	In Re Alarming Rise in Air Pollution in Delhi and Adjoining Areas
4.	SMW (C) 4 / 2019	In Re Severe Problem Being Faced by the Citizens in Delhi and Adjoining Areas Due to Acute Air Pollution
5.	SMW (Crl.) 1 / 2019	In Re Alarming Rise in the Number of Reported Child Rape Incidents Amicus curiae – Mr. V Giri, Sr. Adv.
6.	SMW (Crl.) 2 / 2019	In Re Missing of an LLM Student at Swami Shukdevanand Law College (SS Law College) from Shahjahanpur UP
7.	SMW (Crl.) 3 / 2019	Ghanendra Pal Singh Letter addressed to Secretary General of Supreme Court.
8.	SMW (C) 1 / 2018	RK Sareen v. RK Kulshreshtha SMW against order of Disciplinary Authority in relation to a bribe – due to prolonged period of litigation
9.	SMW (C) 2 / 2018	In Re Filling Up of Vacancies
10.	SMW (Crl.) 1 / 2018	In Re Kathua Jammu and Kashmir
11.	SMC (Crl.) 2/2018	In Re The Indian Express and The Tribune Dated 2nd May 2018 Regarding Kasauli Incident (regarding unauthorised hotels and guest houses in Kasauli) Orders seek status reports from Govt. on names of officers posted at the time of illegal constructions, guidelines to prevent such constructions, specific steps on how the problem is to be tackled, steps taken for demolition. Amicus curiae was also appointed.
12.	SMW (C) 1 / 2017	In Re Central Selection Mechanism for Subordinate Judiciary
13.	SMW (Crl.) 1 / 2017	In Re To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials Amicus curiae – Sidharth Luthra, Sr. Adv., Basant R., K Parmeshwar Reports sought from all States and UTs on their suggestions
14.	SMW (C) 1 / 2015	In Re Outrage as Parents End Life After Child’s Dengue Death Amicus curiae – Colin Gonsalves, Sr. Adv.
15.	SMW (C) 2 / 2015	In Re Muslim Women’s Quest for Equality
16.	SMW (Crl.) 3 / 2015	In Re Prajwala Letter Dated 18.02.2015 Videos of Sexual Violence and Recommendations (regarding blocking child pornography, gang rape imagery, videos and sites on content hosting sites)
17.	SMW (Crl.) 1 / 2014	In Re Harassment and Physical Abuse of Ms. ‘M’ v. State of Chattisgarh
18.	WP (C) 406 / 2013	Re Inhuman Conditions in 1382 Prisons Order dt. 08.05.2018 – directs all HCs to take up matters relating to prison conditions as suo moto writs.
19.	WP (C) 95 / 2012	Devika Biswas v. Union of India (regarding sterilisation procedures for women) Detailed directions passed in an Art. 32 writ. Order dt. 14.09.2016 requests certain HCs to take up the matter as suo moto writs – states which had given inadequate responses to SC.

Apart from seeking information directly from Union / State Government(s) by way of status reports, it is very common for the Supreme Court to appoint Special Investigation Teams (‘SITs’) for fact finding purposes. In Ram Jethmalani v. Union of India, the Petitioner’s prayer for appointment of an SIT to investigate unaccounted monies allegedly stashed abroad was allowed and the Court observed:

“45. The resources of this court are scarce, and it is over-burdened with the task of rendering justice in well over a lakh of cases every year. Nevertheless, this Court is bound to uphold the Constitution, and its own burdens, excessive as they already are, cannot become an excuse for it to not perform that task. In a country where most of its people are uneducated and illiterate, suffering from hunger and squalor, the retraction of the monitoring of these matters by this Court would be unconscionable.”

47. The merits of vigour of investigations, and attempts at law enforcement, cannot be measured merely on the scale of what we accomplish with respect to what has happened in the past. It would necessarily also have to be appreciated from the benefits that are likely to accrue to the country in preventing such activities in the future. Our people may be poor, and may be suffering from all manner of deprivation. However, the same poor and suffering masses are rich, morally and from a humanistic point of view. Their forbearance of the many foibles and failures of those who wield power, no less in their name and behalf than of the rich and the empowered, is itselfindicative of their great qualities, of humanity, trust and tolerance. That greatness can only be matched by exercise of every sinew, and every resource, in the broad goal of our constitutional project of bringing to their lives dignity. The efforts that this Court makes in this regard, and will make in this respect and these matters, can only be conceived as a small and minor, though nevertheless necessary, part. Ultimately the protection of the Constitution and striving to promote its vision and values is an elemental mode of service to our people

48. We note that in many instances, in the past, when issues referred to the Court have been very complex in nature, and yet required the intervention of the Court, Special Investigation Teams have been ordered and constituted in order to enable the Court, and the Union of India and/or other organs of the State, to fulfill their constitutional obligations. The following instances may be noted: Vineet Narain v Union of India, NHRC v State of Gujarat, Sanjiv Kumar v State of Haryana, and Centre for PIL v Union of India.”

It is possible to create a similar table as the one above for situations where the Supreme Court has actively sought information to be placed before it. It is also possible to list out innumerable instances where the Supreme Court has exercised its jurisdiction even where the petitioner did not first move the High Court. But the point of this post is not to create an exhaustive glossary of such instances, but to highlight that the Court’s observations on their inability to undertake fact-finding exercises borders on disingenuous.

Whether or not one agrees with these policy choices of the judiciary is besides the point, for today we are at a place where fact-finding by Courts is practically a norm, and as the Supreme Court’s orders confirm, it is still true today. Unfortunately, despite the normalising of this practice, there has been no formalising of the process that governs how the Supreme Court chooses to exercise its discretion, rendering it subject to the vagaries of an individual judge’s idea of justice.

There was a time when the Supreme Court was lauded for its activism when the other branches of government failed. The historic move by sitting Justices to physically proceed to inspect prison conditions in Delhi, or to go and inspect the working conditions of bonded labourers, were the foundations upon which a people based their faith in the Court and relied on it to do justice rather than merely apply the law. At a time where people’s faith in the judiciary is at a trough, and there has been vocal support for executive killings of suspects owing to frustration with judicial delays, the judges would do well to bear in mind that all their choices convey a message. Judicial intervention cannot come to resemble the executive arbitrariness it was designed to protect against.

The 16th September Order and the Supreme Court of Convenience (or why separation of powers is like love)

Until the 16th of September, 2019, we believed that there were some fundamental principles that underlay our constitutional system. These principles were as fundamental as breath, and as natural. We took them for granted. For example:

1. Fundamental rights cannot be infringed in the absence of a law (Kharak Singh v State of UP).
2. If there exists a law, that law must be promulgated publicly, so that citizens may know what it says, and know the basis on which fundamental rights are being restricted. Secret laws are an anathema to the very concept of the rule of law (Harla v State of Rajasthan*).
3. If that law is challenged in a court of law, then it is that court’s constitutional duty to decide whether (a) fundamental rights have been infringed, and (b) whether that infringement is justifiable under the Constitution (do I really need to give you a citation here?).
4. After the petitioner has discharged her initial burden of showing a prima facie infringement of her rights, the burden shifts to the State to justify that infringement (see point 3).
5. When assessing the infringement of rights under Articles 19 and 21, the court is not expected to vacate the field and enable executive supremacy, as the Emergency-era judgement in ADM Jabalpur v Shivakant Shukla has been buried “ten fathom deep with no chance of resurrection.” (Puttaswamy (I) v Union of India).
6. Instead, when examining the infringement of rights under Article 19 (freedom of speech, association etc.) or 21 (life and personal liberty), the court will apply the proportionality standards. The proportionality standard requires a showing that the infringing measures were necessary (i.e., there were no reasonable available alternatives) (Puttaswamy (II) v Union of India).
7. The right to freedom of expression under Article 19(1)(a) can be restricted only on the eight sub-grounds mentioned under Article 19(2). The Court cannot add additional grounds through judicial fiat (Sakal Papers v Union of India).
8. The Court must give reasons for its judgement (see point 3).

In its order dated 16.9.2019, in Anuradha Bhasin’s Case, the three-judge bench of the Supreme Court, led by the Chief Justice, has taken each of these principles to the shredder. In doing so, it has fashioned new constitutional “law” that resembles a directive from the Home Ministry more than it does a reasoned judgement from a constitutional court. The petition involved a challenge to the communications lockdown that has been imposed in the State of Jammu and Kashmir since August 5 (the extent of the lockdown is disputed). According to the eight principles stated above, the task of the Court was simple: it had to (a) examine the order under which the lockdown was imposed (did it flow from Section 144 of the CrPC, for example, or from the Telecommunication Suspension Rules of 2018)?); (b) examine the grounds of the lockdown, and assess whether a state-wide suspension of communications infrastructure met the test of proportionality, and (c) provide a reasoned judgement.

In other words, the Court had to hear the case and decide it.

What did the Court do? After footballing the hearing from one date to another – thus enabling a continuing violation of fundamental rights without a decision on its legality – on the 16th of September, it passed a two-paragraph order. After stating that the matter will next be listed on September 30, the relevant portion of the order reads:

The State of Jammu & Kashmir, keeping in mind the national interest and internal security, shall make all endeavours to ensure that normal life is restored in Kashmir; people have access to healthcare facilities and schools, colleges and other educational institutions and public transport functions and operates normally. All forms of communication, subject to overriding consideration of national security, shall be normalized, if required on a selective basis, particularly for healthcare facilities.

Let us examine this paragraph. The first thing to note is that the order authorising the communications shutdown has still not been made public, after more than forty days. It stands to reason that if the government (either the central government or the state government) has passed this order without publicly promulgating it, then the responsibility lies upon the government to produce it before the court, so that adjudication may take place. In exempting the government from this most basic principles of the rule of law and natural justice, the court’s order violates principles (1) and (2) mentioned above.

Next, the Court has returned no finding on the constitutional validity of the communications shutdown. It has therefore violated principle (3). It has not recorded any justification from the government in the order, or examined its validity. It has therefore violated principle (4). And by choosing to include an exhortation to the government to restore normalcy by making “all endeavours” keeping in mind the “national interest and internal security”, an exhortation without any binding force, and subject to what the government believes are the requirements of “national interest” and “internal security”, the Court has taken us straight back to 1976 and ADM Jabalpur, violating principle (5). Ten fathoms deep, apparently, is not deep enough, because nothing of ADM Jabalpur doth fade; it only suffers a sea change, into something rich and strange (ding dong bell!).

Further, the Court has engaged in no proportionality analysis. It has not examined whether a communications lockdown of an entire state is a proportionate response to what the External Affairs Minister referred to as the goal of stopping terrorists from communicating with each other. It has not even asked the State to show that other alternatives were contemplated and found wanting (if the Court was concerned about national security implications, it could even have asked for the evidence in its favourite manner, i.e., in a sealed cover). So perhaps the judgements that have actually been buried ten fathom deep – to resurrect whenever convenient – are Puttaswamy I and II.

“National interest” and “internal security” are not grounds under Article 19(2). By inventing new grounds to justify the restriction of the fundamental right to freedom of speech and expression, the Court has violated principle (6). Words matter, especially when they are being used to justify a clampdown on rights.

And lastly, no reasons have been provided in this order. This is why I observed, at the beginning of this post, that this “order” resembles more a directive from the Home Ministry, rather than a reasoned opinion from a constitutional court: not only does it provide no reasons, but it is so vague and so broadly worded, that is has practically no impact. What does “all endeavours” means? The government will decide. What does “national interest” require? The government will decide. To what extent does “internal security” require clampdown on rights? The government will decide. In the ADM Jabalpur, the Supreme Court had the minimum courtesy of telling citizens that during the Emergency, fundamental rights stood suspended – and it provided some reasons for that conclusion. Here, by framing an order for “restoring normalcy subject to whatever the government thinks is fit”, the Court has effectively done exactly the same thing, without extending that courtesy.

The order of 16.9.2019, therefore, is not recognisable under any theory of constitutional adjudication, and the bench delivering is not recognisable as what we commonly understand as a “constitutional court.” What it resembles more is a branch of the executive, enabling and facilitating the executive, instead of checking and balancing it, and reviewing its actions for compliance with fundamental rights.

And this has been a long time coming. Throughout the 1980s and the 1990s, in PIL litigation, the Court emphasised that it was not adversarial litigation, that normal standards of evidence and fact-finding were dispensable, and that it was effectively acting in partnership with the government to achieve national goals. It may have been possible to predict that if the court began to fashion itself as a partner of the government, its role as an oversight body would be severely compromised. But legal academics of the time did not mind; indeed, the foremost academic of these times, Professor Upendra Baxi, referred to concepts such as the separation of powers as “Anglo-Saxon” and outmoded, and indicated that they ought to be jettisoned as the Court became the “last refuge of the oppressed and the bewildered.”

But perhaps, all along, Anglo-Saxon or not, separation of powers has been like love: you only realise what you had when it is lost.

Beyond any chance of “resurrection.”

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*I thank Malavika Prasad for bringing this case to my attention.

An Analysis of the Supreme Court’s Order in “In Re: Matter of Great Public Importance Touching Upon the Independence of the Judiciary”

Almost exactly one year ago, in the Judge Loya Case, the Supreme Court laid down the legal principles to determine when requests for court-sanctioned investigations into serious wrong-doing would or would not be granted. Recall that in that case, the Supreme Court took an interventionist approach: it did not merely assess whether the evidence had met a prima facie threshold of credibility, but rather, it went deeper, assessing the quality of the evidence, and subjecting it to detailed scrutiny on the touchstones of both internal consistency, and external plausibility. It was an approach that I strongly disagreed with the time (for reasons detailed in the linked post), but whether right or wrong, that was the position the Court took.

It is in this context that we must analyse today’s order mandating an investigation into “bench fixing” at the Supreme Court, to be probed by Retd. Justice A.K. Patnaik, with the assistance of the CBI, the Intelligence Bureau, and the Police (recall that these proceedings arose out of sexual harassment allegations levelled against the Chief Justice). Has the three-judge bench of the Court followed the approach in the Loya Case? As the order comes on the back of three affidavits filed by Advocate Utsav Bains, it is the contents of these affidavits that must be studied in some detail.

Analysis

[Regrettably, no analysis can be conducted of the order in In Re: Matter of Great Public Importance Touching Upon the Independence of the Judiciary, as all the affidavits have been placed before the Supreme Court in sealed covers.]

Conclusion

[Regrettably, no conclusion can be drawn about the Court’s order in In Re: Matter of Great Public Importance Touching Upon the Independence of the Judiciary, as no reasons are available from which to draw conclusions.]

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[This post will be updated if and when the sealed covers are unsealed, and sunlight allowed into the corridors of the Supreme Court again. However, as Justice Patnaik has been asked to submit his report in a sealed cover, the prognosis is not optimistic.]

Guest Post: Hacking the Supreme Court in the Age of AI

(This is a guest post by Anand Venkatanarayanan).

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Introduction

How do you bring down a democracy? In their seminal paper, Bruce Schneier and Henry Farrell argue that democracy is a political information system, which has the following characteristics.

• Common knowledge – the consensus beliefs that hold systems together.
• Contested knowledge – the knowledge that is contestable, where people may disagree.

They argue quite convincingly through the example of Russian election meddling in the US elections, that democratic systems have an inherent vulnerability that can be exploited to bring it down: this vulnerability comes into play when common knowledge becomes contested knowledge. For example, the disinformation campaign launched by the Russians included undermining knowledge assumptions about how voting works, spreading distrust about the candidates and also the political system in general, through a variety of other means.

This post builds on the above paper and further argues that dispensation of justice is also an information system in a democracy, and has the same characteristics. For instance, “settled law” can be viewed as common knowledge, while different interpretations of law by different benches of the Supreme Court of India (due to its polyvocal nature) can be regarded as contested knowledge.

When viewed through this lens, one way in which the Supreme Court could be brought down is by turning common knowledge into contested knowledge. For instance, a party that has lost a case in the court can ascribe extraneous motives to the judge who gave the judgement, and attempt to turn common knowledge (Court orders are binding) into contested knowledge (they are not binding and can be flouted because they are based on extra-legal factors).

While Courts have evolved contempt jurisdiction to handle external attempts to change common knowledge into contested knowledge, this post argues that the Supreme Court has become institutionally blind to how i’s recent judgements, in attempting to deliver substantive justice by disregarding procedure, are turning common knowledge (settled law) into contested knowledge, and thereby undermining public trust on it.

Procedure, Proof and Innovation

It is often said by Karl Popper that Science never proves, but only disproves. At the heart of his assertions is the simple observation that “criterion of the scientific status of a theory is its falsifiability, or refutability, or testability”. The difference between science and pseudo-science is that pseudo-science does not offer any testable experiments (natural or otherwise) that can disprove the hypothesis.

Testability by others, and not just by the claimants, hence is at the heart of scientific inquiry. For instance, while someone can make a claim that peacocks reproduce by crying, by virtue of their position and title (as a judge), it is deemed to be absurd because contrary evidence has been recorded by eyewitnesses and others for a very long time.

How does testability itself works in the scientific world? It is defined as a process that must be followed to ascertain the validity of the claims. This includes formal proofs, experimental observations, peer review through publishing in journals, feedback, revision and finally acceptance or rejection.

Thus process, procedure and innovation are deeply interconnected in furthering scientific knowledge. There are well known cases such as fraudulent stem cell research where all of this failed, but that was not because of lack of application of the due process – it was in spite of it. Thus, failures in applying due process are very rare and practically non-existent – and the necessity of due process itself gets strengthened through exceptions such as the fraudulent stem cell research case.

Scientific due process is hence an information system, which everyone agrees is essential (Common knowledge) to mediate substantive disputes (contested knowledge). Hence innovation (change) in due process, while permissible and welcome, is not arbitrary and accepted only when it aids on mediating disputes and in furthering scientific knowledge.

Evidence Act and other norms

In the legal system, the Evidence Act of 1872 can be viewed as the equivalent of scientific due process, since it provides a legally sanctioned framework, which covers in detail how to establish facts within the context of a legal dispute, and also issues of proof generation, and scrutinizing those proofs via cross-examination.

The Indian Evidence Act embodies the adversarial system of justice, where parties represent their case before judges, who attempt to determine the truth and pass judgment accordingly. In this system, the Courts are expected to follow due process (as set out in laws such as the Evidence Act) and other norms to decide the ratio decidendi of a particular case. This, in turn, implies that (subject to their own interpretation, of course) the rules set out under the Evidence Act and other norms can be thought of as “Common Knowledge”, which used to mediate substantive disputes (Contested knowledge). Innovation in common knowledge (i.e., modifying or bypassing due process) must be accepted only when it aids in delivering justice.

However, if common knowledge (due process and norms) can be converted into contested knowledge (due process and norms are not important and hence can be discretionary), it introduces an “attack surface” on the justice system itself, which is not patchable (in software terms, not patchable means that it can’t be fixed). What would be the implication if this attack succeeds?

The Salem witch trials offers us an example of this played out in medieval times: in these trials, “tribunals” admitted spectral evidence based on dreams and visions. Leaving aside the problematic outcomes of the witch trials, they resulted in results void of any reason and reflected the bias and prejudices of the population as well as the judge.

Modern-day effects are very similar, and a critical analysis of CJI Dipak Misra’s judgements pointed out how outcomes void of reason have become the norm. Sealed covers and power point “evidence” are the modern day variants of medieval spectral evidence. And whether it the non-existent CAG report in the Rafale judgement or the dodging of facts and inverting reality and claiming that something that was argued in open Court was never actually argued in the Aadhaar judgment, jettisoning reason has serious consequences and makes judgements unintelligible.

If reason and norms are abandoned, what replaces them? Both the Rafale judgement and the Aadhaar judgement show that it is replaced by excessive faith in the government of the day, and statements by government functionaries have higher evidentiary value, even when they are unsigned, not placed on affidavit and demonstrably false, when put under scrutiny.

Attack surfaces on the Supreme Court

The structural faults elaborated above exposes the Supreme Court to new attack vectors, which can be pulled off by actors in the age of Big data and Artificial intelligence (AI). State governments are turning towards AI systems for crime detection and even the court seems to believe that it can be used for medical education reform. Note that faith in technological regimes is not new, but even the creators of AI are not sure what they have built and how they work – in contrast to their employers, who believe that we can have, not just accurate AI but trusted AI as well. But if they manage to convince the executive and the government of the day to publicly pronounce their faith in new technological regimes, success is guaranteed against any litigation, since the court places excessive faith in the statements of the government and it’s functionaries. For example, as the creator of Aadhaar had so convincingly demonstrated, all that was required was to convince three judges that mattered, and Court’s belief in the government’s statements overrode reason, logic and other norms, including open contempt towards it’s interim orders.

This post predicts that this “trust us at the cost of established due process norms to establish contested knowledge” would be the new normal in how technology projects would be rolled out in the future, and litigation by citizens against those projects will always fail, unless the court reverses course.

Conclusion

This post made three claims based on the paper by Bruce Schneier and Henry Farrell

1. Justice is an information system in a democracy and hence has the same vulnerabilities: common knowledge attacks are deadly to its legitimacy.
2. The Supreme Court of India, in its quest to deliver substantive justice, has often ignored laws and norms which constitute common knowledge, and has hence unknowingly participated in an insider attack (in information security parlance) that has the potential to erode the court’s legitimacy in the public eye.
3. The vulnerability caused by this blindness will be ruthlessly exploited by marketers of technology projects which will use Big data and AI.

It is entirely possible for others to disagree with the above claims, but the claims are at least testable in the Popperian sense; and thinking about justice as an information system that has unique vulnerabilities might bring to the fore new perspectives about its relationship to security.