The Tribunals Judgment – II: On Independence

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Right to Information, tribunals

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

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

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

The Majority Opinion 

The Act

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

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

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

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

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

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

The Rules

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

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

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

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

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

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

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

The Concurring/Dissenting Opinions

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

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

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

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

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

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

Addendum: Impact upon the RTI Amendments 

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

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

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

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

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

 

Carving out an exception to the basic structure?: The Supreme Court’s judgment on Judicial Review and the Armed Forces Tribunal

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basic structure, judicial review, tribunals

On March 11, the Supreme Court held in Union of India vs Major General Shri Kant Sharma that Sections 30 and 31 of the Armed Forces Tribunal Act effectively excluded the jurisdiction of the High Courts to hear petitions challenging orders of the Armed Forces Tribunal. This judgment is worth a close scrutiny, because while it seems to carve out an exception to the well-accepted rule that judicial review under Articles 226 and 227 of the Constitution is part of the basic structure, the Supreme Court expressly denied that to be the basis of its decision.

The Armed Forces Tribunal Act is a law dealing with the adjudication of service-related disputes for members of the Armed Forces, as well as court martials, and matters incident thereto. The Act provides for the establishment of an Armed Forces Tribunal to adjudicate service matters with respect to the armed forces. Clearly, its functions are similar to that of the Central Administrative Tribunal (its composition is not, but since that aspect is not addressed by the judgment, we will not discuss it here).

The crucial sections at issue were Sections 30 and 31, which provided for appeals from the orders of the Tribunal. Section 30 states:

“Subject to the provisions of section 31, an appeal shall lie to the Supreme Court against the final decision or order of the Tribunal (other than an order passed under section 19).”

Section 31 likewise states:

“An appeal to the Supreme Court shall lie with the leave of the Tribunal; and such leave shall not be granted unless it is certified by the Tribunal that a point of law of general public importance is involved in the decision, or it appears to the Supreme Court that the point is one which ought to be considered by that Court.”

Sections 30 and 31, therefore, lay down the procedure for appealing an order of the Armed Forces Tribunal to the Supreme Court. Parallel to this, Section 33 excludes the jurisdiction of civil courts, and Section 34 provides the transfer of all pending cases (including cases in the High Courts) to the Tribunal, after the commencement of the Tribunal.

The question before the Court was whether Sections 30 and 31 barred the jurisdiction of the High Courts from hearing petitions (under 226/227) against the orders of the Armed Forces Tribunal. The Court began by pointing out certain specific provisions of the Constitution. Under Article 33 of the Constitution, Parliament may modify the operation of Part III to the armed forces. Article 227(4) of the Constitution, part of the provision dealing with the superintendence of the High Courts, provides that “nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.” Article 136(2), part of the provision dealing with special leave to appeal to the Supreme Court, provides that “nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.”

At this point, the following argument seems to be there to be made: admittedly, judicial review under Articles 226 and 227, and under Article 32, is part of the basic structure of the Constitution. But the Constitution itself, through various provisions, carves out an exception in the cases of the armed forces, where the scope of judicial review is to be regulated by statute (Articles 227(4) and 136(2)). Consequently, Parliament may, by law, bar the jurisdiction of the High Court to hear appeals from orders passed by the Armed Forces Tribunal.

Such an argument is open to objection. It also raises the fascinating question of whether an original constitutional provision can be unconstitutional because it violates the basic structure (if judicial review is part of the basic structure, than how can 227(4) and 136(2) be consistent with that?)). The Court, however, did not make this argument at all. Instead, it first affirmed the proposition that the Armed Forces Tribunal Act cannot take away the jurisdiction of the High Court under Articles 226 and 227 (paragraph 25).

The Court then cited a number of precedents for the proposition that although the jurisdiction of the High Court could not be taken away by any statute, in deciding whether or not to exercise its jurisdiction, the High Court must take into account the legislative intention behind the statute in question. Citing the prior case of Nivedita Sharma vs Cellular Operators Association of India, the Court observed that “when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.” (paragraph 25)

But what was the statutory forum in the present case? Here is where the judgment becomes somewhat murky. Paragraph 33 of the judgment is preceded by a heading called “Statutory remedy“. Here, the Court cited the case Union of India vs Brigadier P.S. Singh Gill, and extracted a lengthy set of paragraph that detailed the appeals procedure under Sections 30 and 31 of the Armed Forces Tribunal Act. But Sections 30 and 31, as we saw, provide for an appeal to the Supreme Court. Surely the provision of an appeal to the Supreme Court cannot be the “alternative statutory forum” to the jurisdiction of the High Courts! That would fly in the fact of the Chandra Kumar judgment, the entire history of the Tribunals Cases and, indeed, the fundamental proposition that Articles 226/227 are part of the basic structure.

But then what is the alternative statutory forum? The only possible answer has to be: the Armed Forces Tribunal itself. This, indeed, is what the Court implied earlier in the judgment. In paragraph 14, it stated that: “it is clear from the scheme of the Act that jurisdiction of the Tribunal constituted under the Armed Forces Tribunal Act is in substitution of the jurisdiction of Civil Court and the High Court.“

But there is a serious problem here. And that is the L. Chandra Kumar judgment. In that case, as is well-known, a seven-judge bench of the Supreme Court held that Tribunals, as they were constituted an functioning, could act complementary to the High Courts, but not as substitutes. This was because:

“The constitutional safeguards which ensure the independence of the Judges of the superior judiciary, are not available to the Judges of the subordinate judiciary or to those who man Tribunals created by ordinary legislations. Consequently, Judges of the latter category can never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation. We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Articles 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded.”

This has been a constant position of law. In its recent judgment, striking down the National Tax Tribunals, the Supreme Court based its entire analysis on a detailed demonstration of how the Tribunals lacked the essential qualities of the Courts (judicial independence etc.), that would allow them to serve as effective substitutes.

The Court’s judgment, therefore, is question-begging. It takes the existence of the Armed Forces Tribunal to be evidence of an “alternative statutory forum” that is a “substitute” for the High Courts. On that basis, it holds that while the jurisdiction of the High Courts cannot be ousted, it should not exercise its jurisdiction because of the existence of the alternative forum! As I have endeavoured to show, in my opinion, both steps of the argument are ill-founded, and in conflict with established precedent. Furthermore, why wouldn’t exactly the same reasoning apply to the Central Administrative Tribunal? What was needed in this case, to complete the argument was a detailed analysis showing that the Armed Forces Tribunal, in its composition, structure and powers and functions, was an effective substitute for the High Court. This, however, was not done.

The Court buttressed its judgment by pointing to a possible “anomalous situation” that would be created by permitting the High Courts to exercise their jurisdiction. It observed, in para 37:

“If any person aggrieved by the order of the Tribunal, moves before the High Court under Article 226 and the High Court entertains the petition and passes a judgment or order, the person who may be aggrieved against both the orders passed by the Armed Forces Tribunal and the High Court, cannot challenge both the orders in one joint appeal. The aggrieved person may file leave to appeal under Article 136 of the Constitution against the judgment passed by the High Court but in view of the bar of jurisdiction by clause (2) of Article 136, this Court cannot entertain appeal against the order of the Armed Forces Tribunal. Once, the High Court entertains a petition under Article 226 of the Constitution against the order of Armed Forces Tribunal and decides the matter, the person who thus approached the High Court, will also be precluded from filing an appeal under Section 30 with leave to appeal under Section 31 of the Act against the order of the Armed Forces Tribunal as he cannot challenge the order passed by the High Court under Article 226 of the Constitution under Section 30 read with Section 31 of the Act. Thereby, there is a chance of anomalous situation.”

But surely, if the Armed Forces Tribunal passes an order, which is assailed to the High Court under Article 226, and either party is aggrieved by the High Court’s decision, then the petition to the Supreme Court will be against the High Court’s order, and not the Tribunal’s? Why would there be a need to appeal the order of the Tribunal before the Supreme Court, when the most proximate decision is that of the High Court?

In any event, whatever the merits of the anomalous situations, the other objections to the judgment remain. The Supreme Court has deprived members of the armed forces an important constitutional remedy against the violation of their rights. It’s justification for doing so, I would suggest with respect, is unconvincing.

The National Tax Tribunals Judgment: Two Interesting Constitutional Issues

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structural analysis, transformative, tribunals

Last week, in a judgment that caused quite a stir, the Supreme Court held the National Tax Tribunal Act (and, consequently, the National Tax Tribunal, a centralised adjudicatory for the purpose of deciding and harmonising substantive questions of tax law) to be unconstitutional. I have written a detailed analysis of the judgment elsewhere; in brief, the Court held that the NTT Act transferred the jurisdiction of the High Courts to the Tax Tribunal without ensuring that the Tribunal had sufficient trappings of a Court (e.g., independence and qualifications of its judges etc.) Consequently, it fell foul of the L. Chandra Kumar judgment, and the principle of separation of powers (which the Court rather mysteriously treated as a “constitutional convention”). In a pithy concurring opinion, which is well worth a read, Nariman J. held that it was impermissible to remove the judicial power of deciding substantial questions of law from the High Court.

In this post, I want to focus on two issues thrown up by the judgment, which have been discussed before on this blog, albeit mainly from a theoretical perspective. In its judgment, the Supreme Court relied extensively on the 1975 Privy Council case of Hinds vs The Queen. Hinds was an appeal from the Court of Appeals of Jamaica. The Jamaican Parliament had passed the “Gun Court Act”, which set up a parallel court system to try certain firearm-related offences. One of the courts it set up was vested with the jurisdiction and powers otherwise enjoyed by the higher judiciary, but its officials possessed neither the independence, and nor the qualifications, that were also enjoyed by the higher judiciary under the Jamaican Constitution. The Privy Council found the act to be unconstitutional, since it violated the principle of the separation of powers between executive and judiciary, which – it held – was a “necessary implication” flowing from the structure of post-colonial, commonwealth “Westminster Constitutions”; it had done so, specifically, by transferring the jurisdiction of the senior judiciary to a parallel court, without guaranteeing the judicial independence of the officers of that court through the rules of tenure, appointment and retirement that applied to regular, senior judges.

In its NTT judgment, the Supreme Court quoted extensively from Hinds. In particular, consider this quotation, which comes after the Privy Council referred to Canadian, Australian and other commonwealth Constitutions (notably, not the Indian):

“All of them [Constitutions] were negotiated as well as drafted by persons nurtured in the tradition of that branch of the common law of England that is concerned with public law and familiar in particular with the basic concept of separation of legislative, executive, and judicial power as it had been developed in the unwritten Constitution of the United Kingdom. As to their subject matter, the peoples for whom these new Constitutions were being provided were already living under a system of public law in which the local institutions through which government was carried on, the legislature, the executive and the courts, reflected the same basic concept. The new Constitutions, particularly in the case of unitary states, were evolutionary, not revolutionary. They provided for the continuity of government through successor institutions, legislative, executive and judicial, of which members were to be selected in a different way, but each institution was to exercise powers which, although enlarged, remained of a similar character to those that had been exercised by the corresponding institution that it had replaced.”

Previously on this blog, I’d drawn a distinction between two types of constitutional provisions: conservative and transformative. Most Constitutions are framed at a point of a decisive break with the past, with its institutions and its values, and certain aspects of a Constitution reflect the “transformation” from one set of values and institutions to another; but the past is never a wholly foreign country, and many institutions and structures not only survive revolutionary moments, but are actually entrenched and strengthened in a Constitution, through its “conservative” provisions. A good – albeit schematic – example is that of the American Constitution: its Bill of Rights was (largely) conservative, seeking to guarantee to the American citizens the ancient and deeply-rooted common law rights (e.g., to a jury trial, against unreasonable searches and seizures etc.) enjoyed by British subjects. On the other hand, the Constitution proper was transformative, replacing British monarchy with a system of representative, republican government, exercised through three separate wings of State.

Whether a particular constitutional provision is conservative or transformative, and to what extent it is transformative can have profound implications for constitutional interpretation. For instance, it is sometimes argued that the American Nineteenth Amendment, which guaranteed women the right to vote, transformed not only their voting status, but the entire legal and political framework, based upon the inferior political and legal status of women, that underlay and justified the denial of their right to vote until that moment. Consequently, the Nineteenth Amendment is used by scholars to ground a jurisprudence of sex-equality and non-discrimination within the American Constitution.

Earlier, in the context of India, I’d tried to argue that the transformative nature of Article 15 justified Naz Foundation (Delhi HC’s) reading of “sexual orientation” into “sex”: in providing a universal guarantee of non-discrimination on a set of grounds that were traditionally the sites of social oppression, the Constitution was signaling a shift from a society in which moral membership in society was contingent upon certain unchangeable aspects of one’s personality (race, caste, sex, place of birth, religion) to one in which ever individual was guaranteed equal moral membership, regardless of those unchangeable aspects (and sexual orientation was one such).

In Madras Bar Association, the Supreme Court applies this interpretive technique, by holding that the Constitution’s structural provisions, which set up the institutions and modes of government, are conservative: they entrench the “Westminster model” that was in practice in colonial India, one of whose features was the separation of powers and concomitant independence of the judiciary, guaranteed through appointment processes and security of tenure. Notice that this interpretive technique is based, ultimately, on a historical claim: whether this “Westminster model” was actually made part of our Constitution and, if so, to what extent, needs to be deciphered not merely from the constitutional text, but from a detailed investigation into its history. Unfortunately, the Supreme Court does nothing of the sort: it glibly assumes that the Westminster Model is the model of our Constitution, and decides the case accordingly. This is problematic because the Constitution was, after all, framed in a post-colonial moment, and it requires much argument to demonstrate what set of structures and institutions the framers simply wished to see carry on unchanged into the new republic; however, the use of the analysis itself is promising, and bodes well for the future.

The other paragraph from Hinds that the Court quoted was:

“Because of all this a great deal can be, and in drafting practice often is, left to necessary implication from the adoption in a new constitution of a governmental structure which makes provisions for a Legislature, an Executive and a Judicature. It is taken for granted that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government… [and] what is implicit in the very structure of a Constitution on the Westminster Model is that judicial power, however it be distributed from time to time between various courts, is to continue to be vested in persons appointed to hold judicial office in the manner and on the terms laid down in the chapter dealing with the Judicature, even though this is not expressly stated in the Constitution.“

Previously on this blog – also in the context of Naz Foundation – we had discussed constitutional structure as one of the bases for interpretation. A structural analysis derives constitutional obligations or principles not from a textual reading of individual or aggregated provisions, but – as the American jurist Charles Black explained – from the “structure and relations… created by the text… and the inferences drawn from them.” Or, to put it in more linguistic terms, there are things that a Constitution says, and there are things that it does not say, but which, when it is taken as a whole, it necessarily implies.

In the Hinds case, much of the argument was historical: separation of powers and independence of the judiciary simply was a basic feature of Westminster governance. But, as we saw in the excerpts, the Privy Council speaks of the “structure” of the Constitution on the Westminster model, and uses the term “necessary implications”. The structural argument is quite straightforward: Constitutions are the fundamental documents creating and detailing the division of powers among the governing institutions in society. A deliberate and intentional division into three separate wings, with specific duties attached to each wing, presupposes that (in the absence of clear contrary evidence), the Constitution requires that the domains that it has marked out for each of the wings be protected from encroachment by the others. Thus, separation of powers and the independence of the judiciary simply come out as structural corollaries of the Westminster-type Constitution.

Something along these lines was the reasoning of the Privy Council in Hinds. Unfortunately, the Supreme Court walked down a very different path: it held that separation and independence were constitutional “conventions”, and accordingly, had to be upheld. This is unfortunate, because of course the meaning of convention is, precisely, that which is not legally enforceable. Thus, the Court’s decision is deeply problematic on this point.

Notwithstanding that, however, these two issues remain fascinating for the debate over constitutional interpretation. The conservative/transformative model is perhaps truest to Indian history, and can serve as an interpretive guide to a number of provisions; and, constitutional provisions flowing necessarily from the structure of the Constitution can have as much legal force as the text itself. The judgment in Madras Bar Association opens the gates for a further decision to engage with and clarify these interpretive points; whether future courts will accept the invitation is something that remains to be seen.