Indian Constitutional Law and Philosophy

12/31/2019 Indian Constitutional Law and Philosophy | Page 9
Indian Constitutional Law and Philosophy
Guest Post: Electoral Bonds and the Political Party

as a Vehicle of Representation
18 Thursday Apr 2019
P G B E V R
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elections, electoral bonds
(This is a Guest Post by Udit Bhatia, in the context of the ongoing electoral bonds case before the
Supreme Court).
The case against secret election funding would appear obvious enough that it barely needs drawing out.
However, given recent events in the Supreme Court in India, it seems that we can no longer rely on this
assumption. This case rests on three premises: (1) The power of the political party in the legislative
process (2) The potential impact of private funding on the legislative process and (3) The benefits of
transparency in funding.
Political parties elsewhere serve as intermediaries between voters on the grounds and their
representatives in parliament. However, representatives retain their autonomy from their party leaders
in various ways. They are allowed to break from the party line during legislative votes. In some
jurisdictions, party elites have li le influence over the re-selection of candidates for elections. This allows
legislators to cultivate a strong following among local party members, enabling them to secure
nomination to stand for office again through the same party ticket. In doing so, they can cultivate a
personal vote that undercuts the power of organised interests acting upon the party machinery. In both
respects, the Indian party system allows li le autonomy to the legislator vis-a-vis her party. Her ability
to cast a dissenting vote is circumscribed through the anti-defection vote. Moreover, party leaders
possess a monopoly over the candidate nomination process, and can threaten to de-select any legislator
who might question the party line. The party in this context does not act so much as an intermediary
between voters and representative. Rather, the party is more adequately characterised as the vehicle of
representation.
Having established parties’ pivotal role in the legislative process, let me now turn to where funding fits
into the picture. Funding can affect the legislative process in at least two ways. First, it can lead to
straightforward quid pro quo. As several commentators have argued, it can lead a party to formulate
policies conducive to the interests of its funders. Second, it can also bias policy-makers to the interests of
funders even when there exists no straightforward quid pro quo. Policy-making is governed by the tacit
social and economic worldview of decision-makers. Even when policy-makers act in their considered
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view of the public interest, their perspectives can be skewed by latent biases—biases that are a product
of the people that have greatest access to, to organisations that they interact most with, to individuals
who are best placed to affect their political prospects. Much of the debate over campaign finance in India
has focused on straightforward corruption. But we must not lose track of how non-transparent funding
affects political actors even if we a ribute less morally dubious intentions to both, funders, and those
who benefit from secret funding. The latent biases, in turn, can affect the content of policies in various
ways. First, it can skew the agenda: decision-makers can become inclined to keep things off the political
agenda if they believe this might put off their funders. Second, it can affect how issues on the political
agenda are decided. Wealth has implications for political ideology—research elsewhere has shown that
large donors are associated with more extreme views than ordinary citizens; they are also more prone to
conservative views on distributive justice than the regular voter.
The arguments outlined here give us a strong case for caps on money that parties can receive from
private sources. Perhaps their implications are even stronger in that they give us a strong case for
eliminating private money from the political process altogether, and turning instead to a model of public
financing of parties. However, as long as unlimited private money is there to stay, transparency offers a
next-best solution. Transparency can mitigate the problematic impact of secret funding in at least two
ways. First, it can make beneficiaries of such funds more reflexive about their actions in anticipation of
the public’s reactions. Both, straightforward this-for-that as well as more tacit biases, can be be er
checked merely by virtue of decision-makers’ knowledge that the public is aware of who funds them
and how this influences their favoured policies. Second, where decision-makers fail to refrain from quid
pro quo or check their funder-friendly biases, transparency allows voters to punish them through the
ballot.
Recent events in the Indian Supreme Court have demonstrated an impoverished understanding of the
link between voters, party and the legislature on the one hand, and between donors and political parties
on the other. Perhaps now the response to campaign finance reform must be a political one rather than a
judicial one. And here lies a further irony—any political a empt to overturn this dubious framework
will itself be affected significantly by large donors who have vested interests in retaining this framework.
Making the Path by Walking: The Supreme Court’s

Film Censorship Judgment
14 Sunday Apr 2019
P G B C ,F C ,F S ,H S ,P
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film censorship, free speech, public order
In an interesting judgment handed down this Thursday, a two-judge bench of the Supreme Court held
that the government of West Bengal was required to compensate a film-maker for trying to “shadow-
ban” his film. The facts of Indibility Creative v Govt of West Bengal were straightforward: a film
called Bhobishyoter Bhoot had been cleared by the Film Certification authorities, and had started to run in
cinemas. However four days before its scheduled release, one of the directors received a call and a le er
from the state’s intelligence unit, asking for a special screening, on the ground that the film might hurt
public sentiments and threaten public order. The director refused. However, very soon after the release
of the film, it was inexplicably withdrawn from most cinemas, and tickets were refunded. When the
directors made enquiries, they were told that this was being done on the instructions of “higher
authorities.”
After the Supreme Court intervened with some strongly-worded interim orders, a modicum of normalcy
was restored. The Court nonetheless reserved orders, and delivered a judgment on merits shortly
thereafter.
Chandrachud J.’s judgment involves a reiteration and endorsement of se led legal principles that are,
regre ably, too often honoured only in the breach: that there cannot be a two-track certification process,
where the State’ authorities are running parallel censorship proceedings alongside the Certification
Board(s); that in cases where there is an apprehension of public disorder, it is incumbent upon the State
to provide the necessary police protection, rather than upon the speaker/artist/writer to withdraw (and
thereby facilitating the heckler’s veto); and that the restrictions upon free speech cannot traverse beyond
the strict confines of Article 19(2). In addition, however, the judgment contains a few elements worthy of
remark.
The first is that it takes seriously the ways in which State authorities can informally exert pressure and
effectively choke off the meaningful exercise of fundamental rights. In this case, for example, the State
government insisted that it had not taken recourse to any statutory provision that formally banned the
film. If that was true, however, then, as the Court observed:
“… there has to be some explanation forthcoming before the Court why the film was simultaneously
removed from the theatres, at one stroke, shortly after release. The apprehension of the petitioners
that this was an action which followed on the le er dated 11 February 2019 of the Joint
Commissioner of Police is not unfounded. The le er addressed by INOX to the producer specifically
mentions that they were directed by the authorities to discontinue the screening in the ‘interest of the
guests’. We have no manner of doubt that this was a clear abuse of public power. (paragraph 17)”
Effectively, therefore, the Court drew an adverse inference against the State, based upon a set of fairly
unambiguous factual circumstances. Following upon the Madras High Court’s recent judgment
involving the “informal” se lement that Perumal Murugan was forced into, this signals a clear judicial
intent to take seriously State action that would otherwise pass under the radar due to its non-legal/extra-
constitutional/behind-the-scenes character.
This is closely linked to a second important point – the Court’s clear articulation of the positive
component of Article 19(1)(a). As Chandrachud J. noted:
“But, apart from imposing ‘negative’ restraints on the state these freedoms impose a positive
mandate as well. In its capacity as a public authority enforcing the rule of law, the state must ensure
that conditions in which these freedoms flourish are maintained. (paragraph 18)”
This is, of course, nothing more than applying a coherent constitutional framework to the basic insight –
expressed first in S. Rangarajan and then beyond – that if the threats to free speech come from private
parties, then it is the obligation of the State to ensure that conditions of law and order are maintained so
that the expressive activity in question can go ahead. Rangarajan’s insight, of course, arose out of
concrete circumstances where the State threw up its hands before the Court and argued it was not in a
position to guarantee the maintenance of law and order if a particular film was screened – an argument
that was given short shrift by the Court. Indibility Creative – the present judgment – has now taken that
insight further, and generalised it into a principle.
The third element that rounds things off is the relief: the Court held that:
“As a consequence of the pulling off of the film from the theatres where it was screened on 16
February 2019, the petitioners have suffered a violation of their fundamental right to free speech and
expression and of their right to pursue a lawful business. This has been occasioned by the acts of
commission and, in any event, of omission on the part of the state in failing to affirm, fulfill and
respect the fundamental freedoms of the petitioners. We are clearly of the view that a remedy in
public law for the grant of remedial compensation is required in the present case. We order and
direct the respondents to pay to the petitioners compensation which we quantify at Rs 20 lakhs
within a period of one month from the date of the present judgment. (paragraph 20)”
This is particularly important, because in far too many cases, after finding a breach of fundamental
rights, the Court has left ma ers as they are. The loss, however – especially in cases of this kind – is clear
and quantifiable, and a refusal to restore status quo only ensures that, despite the finding of a violation by
the court, the chilling effect of arbitrary State action continues. On the other hand, a clear judgment on
compensation sets the tone for an effective enforcement of fundamental rights; and it is only within a
climate in which enforcement is guaranteed, can those rights truly flourish.
Thus, a combination of these three features – judicial cognisance of informal, “shadow-banning”, an

articulation of the positive obligations upon the State to ensure that free expression is guaranteed
notwithstanding threats from private parties, and remedial compensation should the State fail to
discharge its obligations – ensure that this judgment can become the basis of a strong, rights-protective
jurisprudence. Whether that happens, of course, depends on how future courts – especially the lower
courts – implement it.
A final point of interest. In a paragraph dealing with the importance of satire to any system of free
expression, Chandrachud J. observed that:
“Satire is a literary genre where “topical issues” are “held up to scorn by means of ridicule or
irony.”It is one of the most effective art forms revealing the absurdities, hypocrisies and
contradictions in so much of life. It has the unique ability to quickly and clearly make a point and
facilitate understanding in ways that other forms of communication and expression often do not.
However, we cannot ignore that like all forms of speech and expression, satirical expression maybe
restricted in accordance with the restrictions envisaged under Article 19(2) of the Constitution. For
example, when satire targets society’s marginalized, it can have the power to confirm and strengthen
people’s prejudices against the group in question, which only marginalizes and disenfranchises them
more. (paragraph 13)”
The last lines are particularly important, because they point towards the Canadian/South African
constitutional model of understanding hate speech: recall that in Canada and South Africa, “hate
speech” is asymmetrical, and is understood as expression that stigmatises or dehumanises a vulnerable
class of people, in a manner that feeds into a wider climate of marginalisation and discrimination (for
example, holocaust denial as a form of anti-semitic speech, or – closer home – caste slurs such as
“chamar”). The regulation of hate speech, thus, is inextricably bound up with the constitutional value of
equality (expressed in that old injunction to satirists and critics, “punch up, not down“).
In India, that model is yet to catch hold; while the Court hinted at that in 2014, for the most part, the
dominant understanding remains that of hurt sentiments and wounded feelings – an approach that, for
obvious reasons, is constitutionally unsustainable. And so, while the observations in today’s judgment
are fleeting, they do constitute an invitation to a future bench, dealing with an appropriate case, to make
them a part of the law.
We can hope that some day, that invitation will be taken up.
The Afterlife of the Aadhaar Dissent: The Jamaican

Supreme Court Strikes Down a National Biometric
Identification System
13 Saturday Apr 2019
P G B ,C C L ,J ,P
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aadhaar, comparative constitutional law, Jamaica, privacy
Justice Charles Evan Hughes’ famous aphorism, that a dissent is an “appeal to the brooding spirit of the
law, to the intelligence of a future day”, has passed into legend. It was famously invoked by Justice H.R.
Khanna, while concluding his dissent in the Habeas Corpus case. But sometimes, a dissent is not limited
to a footnote in the judicial lore of a nation, waiting for the years to pass by until the “intelligence of a
future day” dawns. Sometimes, like the swallow flying south, a dissent becomes part of the global
migration of ideas. It finds fertile soil far from home, there to bloom into the full richness that it has been
denied in its own native environment.
Earlier this week, the Supreme Court of Jamaica struck down the Jamaican National Identification and
Registration Act [“NIRA“]. The NIRA was a law that mandated the collection of biometric information
from all Jamaican residents, and its storage in a centralised database. The similarities with Aadhaar are
immediate and clear, and indeed, a substantial part of the judgment(s) were focused on comparisons
between NIRA and the Aadhaar Act, and the Indian Supreme Court’s judgment in Pu aswamy. And
what is striking about the judgments of Chief Justice Sykes and Justice Ba s is that, after a detailed and
painstaking engagement with Pu aswamy, both judges held that, on multiple counts – on the application
of the proportionality standard, on the articulation of freedom and privacy, on the dangers of centralised
databases, and on the shape and design of data protection frameworks, it was Chandrachud J.’s
dissenting opinion that was persuasive, and deserved to be followed. The NIRA, accordingly, was struck
down as unconstitutional.
NIRA: Similarities and Differences with Aadhaar
As the sketchy description outlined above indicates, NIRA and Aadhaar bear substantial similarities.
Indeed, these similarities went beyond the collection and storage of biometric information, and extended
to the design of the enactments: like Aadhaar, NIRA established a centralised database [“NCID“],
a centralised authority to deal with collection and storage, contained provisions for private party access,
had provisions for when data could be accessed, and so on. Furthermore, the justifications offered by the
State were remarkably similar: preventing and eliminating crime, preventing corruption (FATCA was
cited as well!), streamlining delivery of benefits, facilitating ease of identification, and so on.
At the same time, however, there were some substantial formal differences between NIRA and Aadhaar
(why I use the word “formal” will become evident immediately hereafter, to anyone familiar with how
Aadhaar actually works in practice). First, enrolment under the NIRA was legally mandatory, on pain of
criminal sanctions; secondly, information collected under NIRA was substantially more than that
collected under Aadhaar (it included blood samples, for example); and thirdly, third parties had formal
access to the database under NIRA.
The judgment(s) of the Jamaican Supreme Court made much of these differences between NIRA and
Aadhaar to argue that criminalising non-compliance was disproportionate, that the information taken
did not comply with the principle of data minimalism, and that the access of third parties raised
constitutional concerns of the privacy and security of the data. What is remarkable, however, is
that despite finding these substantial formal differences, and despite finding that the Indian Supreme
Court had read down the Aadhaar Act in significant ways (for example, by holding that in case of an
authentication failure, an individual was entitled to present an alternative identification), the Jamaican
judges still went on to follow, in granular detail, the judgment and reasoning of Chandrachud J.
Justice Ba s and the Primacy of Choice
I begin with Ba s J.’s judgment, because of its focus on one straightforward and clear principle, which
was also at the heart of Chandrachud J.’s dissent: the primacy of individual choice in a constitutional
democracy, and how meaningful choice is at the heart of any understanding of human freedom. The
“choice”, in this case of course, involves the right of the individual to choose how to identify herself to
the State, from among a range of reasonable alternatives.
After summarising the holding of the Aadhaar Majority, Ba s J. cited some of the opening words of
Chandrachud J.’s dissent, about how technology was reshaping the relationship between citizens of the
State. He then went on to cite the core of Chandrachud J.’s reasoning in great detail, because: “his decision
is sufficiently important, and so reflective of my own views, that I will outline the details.” (para 337) In
particular, Ba s J. cited Chandrachud J.’s views on private party usage, the failure of the State to
demonstrate that less intrusive means would not work, the merging of data silos, the doctrine of
unconstitutional conditions (paragraph 339), and the general presumption of criminality that entailed
nationwide biometric collection (paragraph 340). In closing, he noted that:
“In words, which I respectfully wish to adopt as my own, the learned Judge [i.e., Chandrachud J.]
summarised the overall constitutional failings of the Aadhaar scheme thus … ‘the technology deployed
in the Aadhaar scheme reduces different constitutional identities into a single identity of a 12-digit number and
infringes the right of an individual to identify herself or himself through a chosen means. Aadhaar is about
identification and is an instrument which facilitates a proof of identity. It must not be allowed to obliterate
constitutional identity.'” (paragraph 341)”
On this basis, Ba s J. therefore held that:
“The [NIRA] Act proposes to compel persons to divulge information personal to them. It is the right
to choose, whether or not to share personal information, which individual liberty in a free and
democratic state jealously guards. The mandatory nature of the requirement as well as the breadth of
its scope, and the absence of a right to opt out, are not justified or justifiable in a free and democratic
society. If it is intended to prevent corruption or fraud, then it is premised on the assumption that all
Jamaicans are involved with corruption and fraud. The danger of abuse by the state or its agencies,
and the removal of personal choice, outweigh any conceivable benefit to be had by the community or
state. (paragraph 349)”
This, it will be noted, is squarely applicable to Aadhaar, which has long been mandatory for all practical
effects and purposes.
The Chief Justice, Proportionality, and the Surveillance State
The judgment of the Chief Justice was substantially longer (around 250 pages to Ba s J.’s 50), and
covered more ground. The Chief Justice began with a detailed analysis of the standard of constitutional
review under the Jamaican Charter. His discussion is fascinating in its own right, but for our purposes
here, the Chief Justice accepted that the relevant standard was that of proportionality, as articulated by
the Canadian Supreme Court in Oakes, and of course, the Indian Supreme Court in Pu aswamy.
Crucially, however, the Learned Chief Justice noted that:
“I am of the view that this approach provides a proper conceptual framework within which to
examine NIRA in order to see whether the provisions in that statute meet the standards indicated by
the majority in Pu aswamy (September 26, 2018). I must also say that in the application of the
standard I prefer the reasoning of Dr Chandrachud J to that of the majority. (paragraph 151)”
(For the multiple errors that the Majority made in applying the proportionality standard, see here).
This, the Chief Justice held, was because:
“… I am of the view that the strict application of Oakes is the best way to preserve fundamental
rights and freedoms. The majority [i.e., in Pu aswamy] appeared to have taken a more relaxed view.
The strict Oakes test makes a more granular scrutiny possible by saying that the court must take
account of any deleterious effect of the measure being relied on to meet the objective. Thus the
greater the severity of the effect the more important the objective must be, furthermore the measure
chosen needs to be shown to be the least harmful means of achieving the objective. (paragraph 177)”
With these words, the Chief Justice got to the heart of the deficient legal analysis in the Aadhaar
Majority. As I have noted previously, the Aadhaar Majority treated the “least restrictive alternative”
element of the proportionality standard in an u erly cavalier fashion, refusing to consider relevant facts,
and presenting no analysis of the legal burdens involved. For the Chief Justice, on the other hand (and
also for Chandrachud J.), it was a critical element of the test, with the burden lying upon the State
(especially because relevant information lay with the State). And, in particular:
“In the event that the court is of the view that there is a tie then the claimant must prevail for the
reason that in constitutional litigation the a itude of the court must be that the right or freedom
prevails unless the violation is clearly justified. This approach ensures that the guarantee given by the
Charter is maintained. (paragraph 203)”
In this context, the Chief Justice went on to find that the State had provided no evidence that mandatory
enrolment with criminal sanctions was the least intrusive way of achieving its goal (the Chief Justice
distinguished this from Indian Supreme Court proceedings, where the evidence was litigated in some
detail). Noting that there was no real evidence about the scale of the existing problems that necessitated
this measure, the Chief Justice therefore held that it failed the test of proportionality. (paragraph 228)
After this, the Chief Justice turned to the nature of biometric systems. Here, he began his analysis with
the following observation:
“For that [i.e., the analysis of biometric systems] I rely on the judgment of Dr Dhananajaya
Chandrachud J in Pu aswamy (delivered September 26, 2018). From reading the judgments in this
case Dr Chandrachud J, in my respectful view, demonstrated a greater sensitivity to the issues of
privacy and freedom that is not as evident in the judgments of the majority or the other judges who
delivered concurring judgments. His Lordship had a clear-eyed view of the dangers of a state or
anyone having control over one’s personal information and generally I preferred his approach to the
issue over that of the other judges. (paragraph 230)”
This, of course, is a very polite and respectful way of saying to the Aadhaar Majority, “you just didn’t get
it, did you?” And what was it that the Aadhaar Majority didn’t get? Citing paragraphs 120 to 126 of
Chandrachud J.’s dissent, the Chief Justice then observed that:
“… his Lordship’s major point was that it is one thing to collect biometric data in the context of a
criminal investigation and prosecution but quite another to have extensive biometric data collection
outside of that context. The reason is that generally there is extensive and detailed provision
regarding the collection and use of biometric information in the criminal law context. So far, in the
context of general collection of biometric data outside of the criminal law context, it is likely to result
in violations of fundamental rights unless there are very strict and rigorous safeguards because once
there is a breach of the database the information taken is unlikely to be recovered in full. (paragraph
234)”
Even more importantly, the Chief Justice then cited paragraphs 128 to 131 of Chandrachud J.’s judgment,
dealing with identification systems, to observe that:
“This passage is highlighting the risk of the combined effect of technology with control over data.
Unlike the majority in Pu aswamy (September 26, 2018) who seemed to have taken a rather benign
view of this aspect of the ma er Dr Chandrachud J destroyed the notion that merely because similar
or identical information is already in the possession of the state that in and of itself makes taking of
such information again legitimate. His Lordship clearly understood the implication of collecting
biographical information, combining it with biometric then automating the process with supporting
algorithms. Add to that the possibility of profiling. This scenario translates into great power over the
lives of persons especially when that data and technology are in the hands of the state and powerful
private actors as in Google, Amazon and the like. Of course, with the la er, the engagement is
consensual or at the very least the person can opt out after sometime. What NIRA is proposing is
control over vast amounts of data, no opt out and linking the data held in different silos by a unique
identification number, thereby reducing anonymity even further and increasing the possibility of
profiling and generating new information about the data subject. (paragraph 237)”
What the Chief Justice understood – and what Chandrachud J. had understood in his dissent – was, of
course, the existential peril posed to freedom and privacy that stemmed from merging silos of
information, and the ways in which that could be used to generate entirely new sets of information, as
well as facilitate profiling. As the Chief Justice observed, devastatingly, “respectfully, the majority in
Pu aswamy (September 26, 2018) did not seem to have a full understanding of this and its implications
in the say that has been demonstrated by Dr Chandrachud J.” (paragraph 238) On the basis of this
bedrock of analysis, then, the Chief Justice went on to hold that NIRA unjustifiably and
disproportionately impacted privacy. And in the course of his analysis, he also echoed Ba s J., noting –
crucially for our purposes – that “the most remarkable thing is that no submission was made to indicate how, for
example, a voluntary scheme would prevent the state from providing reliable, safe and secure identification to its
citizens or ordinary residents who wish to be part of the scheme.”
Lastly, the Chief Justice also found that Chandrachud J.’s dissenting opinion be er articulated the shape
and design of a data protection authority that could pass constitutional muster:
“I adopt the following paragraph from his Lordship’s judgment at paragraph 236 and apply with
such modifications are necessary for application to NIRA. His Lordship stated: An independent and
autonomous authority is needed to monitor the compliance of the provisions of any statute, which infringes the
privacy of an individual. (paragraph 247(88)).”
The absence of any such authority was, therefore, another reason to hold the statute unconstitutional.
Conclusion
The Chief Justice set out his conclusions from paragraphs 245 to 254, striking down substantial portions
of the Act, and then holding that they could not be severed – and therefore, the statute as a whole had to
fail. Like the judgment of Ba s J., the Chief Justice’s judgment is a fascinating study in its own right – in
particular, in its assessment of the specific details of the NIRA system, in how it deals with the
probabilistic character of biometric identification, the articulations of standards and burdens, the
discussion of proportionality and the rebu al of the State’s arguments that the Court must stay out of
policy domains, and – very interestingly – in its disagreement with Bhushan J.’s concurring opinion on
Aadhaar, on whether “national security” could be a ground to divulge personal information.
Refreshingly, the Chief Justice held that the use of such terms was nothing more than a “Trojan Horse”,
which would make the entire point of protecting fundamental rights illusory.
As the above discussion illustrates, however, for us, the most fascinating aspect of this judgment is the
in-depth dialogue it undertakes with both the Majority and the Dissent in Aadhaar, on their own terms –
and the rigorous and detailed reasons it gives for choosing to follow the Dissent over the Majority.
To end with Hughes again. His full quote reads:
“A dissent in a court of last resort is an appeal to the brooding spirit of law, to the intelligence of a
future day when a later decision may possibly correct the error into which the dissenting justice
believes the court to have been betrayed.”
But there are some occasions in history when the betrayal into error is recognised not within, but
without. Sometimes, we need friends and colleagues in other parts of the world to hold up the mirror
that we are unwilling or unable to look into. Perhaps it is the fate of the Aadhaar Dissent to travel
around the world, a light in dark places, long before it is recognised by the brooding spirit of law in its
homeland, and the error is corrected at last.
One can but hope.
(Disclaimer: The author was involved on the side of the Petitioners in the Aadhaar challenge.)
Judicial Evasion and the Electoral Bonds Case
13 Saturday Apr 2019
P G B F S ,J E ,J P ,R I ,
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Tags
Judicial Evasion, Right to Information, voting, voting rights
On this blog, we have discussed on many occasions a phenomenon that I have labeled “judicial evasion”:
by keeping a case pending, and delaying adjudication, the Court effectively decides it in favour of one of
the parties (most often, the party in a stronger position, i.e., the government), simply by allowing status
quo to continue. A form of judicial evasion has been visible in, for example, the six-year delay in hearing
the Aadhaar case (discussed here), the continuing non-decisions in the Delhi v Union of India case
(partially discussed here), and the refusal by the Supreme Court to adjudicate the legality of the Bombay
High Court censoring a film (discussed here).
However, the Supreme Court’s interim order yesterday in the electoral bonds case presents a textbook
example of the subject under discussion. Recall that the electoral bonds case involves a constitutional
challenge to the government’s electoral bonds scheme, a method of political funding that is marked by
donor anonymity and the elimination of caps on corporate funding (for an extended discussion, see
here). After hearing parties for three days, yesterday, the Supreme Court passed an interim order where
it refused to stay the scheme, and directed that the details of funding through electoral bonds be made
available by political parties to the Election Commission, in a sealed cover, by May 30 (after the end of
the general election).
There is a lot to be said for the continuing use of “sealed covers” (especially in a case about the voter’s
right to know the sources of public funding), but here, I want to focus on paragraph 11 of the Order,
where the Court notes that:
“All that we would like to state for the present is that the rival contentions give rise to weighty issues
which have a tremendous bearing on the sanctity of the electoral process in the country. Such
weighty issues would require an indepth hearing which cannot be concluded and the issues
answered within the limited time that is available before the process of funding through the Electoral
Bonds comes to a closure, as per the schedule noted earlier.”
This may sound reasonable. It is, however, deeply disingenuous. What the Court does not mention here
is that the constitutional challenge was filed in early 2018, more than a year ago. It is not as if the
petitioners sat on their hands, and waited for the general elections to begin, before rushing to the Court.
The scheme was challenged almost immediately after it was enacted into law, notice was issued, and
then … nothing happened. In the meantime, electoral bonds were issued on multiple occasions by the
SBI, and a significant amount of political funding (more than a hundred crores) was secured through
that mechanism, the overwhelming bulk of it going to the ruling party (recall that one of the grounds of
challenge is that because of asymmetric anonymity, the scheme unduly favours whichever political
party is in power).
The issues at stake were as “weighty” in early 2018, as they are now. Surely, the Court knew this.
Furthermore, At the time, there were strong protests against the scheme, and later in the year, a former
Chief Election Commissioner publicly criticised them. Everyone knew that general elections would be
held in spring 2019. And surely, the Court also knew that an “in-depth hearing” would be required to
adjudicate upon the issue. So, to turn around now and act as if these are all fresh developments, that
have ambushed the Court unawares, will simply not do: the responsibility for why this hearing only
ended up taking place in the middle of the elections, when the Schedule for issuing the Electoral Bonds
is more or less over rests solely upon the Court, and it is therefore not open to the Court to now shrug it
off by kicking the can off the road.
In paragraph 12, the Court then notes that:
“The Court, therefore, has to ensure that any interim arrangement that may be made would not tilt
the balance in favour of either of the parties but that the same ensures adequate safeguards against
the competing claims of the parties which are yet to be adjudicated.”
But the Court’s method of ensuring a “balance” is a strange one, because it is effectively to simply let the
scheme continue. Ordering that the details of the donations be made available to the Election
Commission in a “sealed cover” accomplishes the square root of zero: it would make sense if there was
suspicion of illegality. However, the entire constitutional challenge is based on the argument that the
Electoral Bond Scheme legalises wholesale political corruption by allowing for limitless, secret corporate
donations to political parties. How exactly, then, has the Court “balanced” the interests of the
parties, especially given that a massive chunk of funding through electoral bonds has already taken place
over the previous year, because of the Court’s own failure to hear the case?
It is also unclear why three full days of hearing were not enough for the Court to come to a firm
conclusion about the prima facie unconstitutionality (or not) of the Scheme, and allow or disallow a stay
accordingly. Recall that this is a Court that regularly grants stays on notice day itself, including on issues
that are highly complex (the present Chief Justice himself, for example, stayed this very complex Delhi
High Court judgment on genetic discrimination on the very first day of hearing). The same Chief Justice
has wrapped up two Constitution Bench cases (involving complex issues on separation of powers and
on the RTI) within three to four days of hearing, each. How, then, is it suddenly the case that three days
of argument are insufficient for grasping the constitutional issues involved in the electoral bonds case?
Ultimately, this has proved to be yet another example of the Court talking a good talk, but failing to act
on it when it comes to the crunch. For the last fifteen years, we have multiple judgments of the Court
extolling the voter’s “right to know” as an element of Article 19(1)(a), as integral to free and fair
elections, as a cornerstone of democracy, and so on. But when it comes to testing these propositions in an
actual case – in a constitutional challenge to State action – all these principles suddenly seem to be writ
in water.
At the end of the day, however, what stands out in this case is the element of judicial evasion: an issue
crucial to democratic functioning, one that concerned the sanctity of the democratic process itself – the
very area that Courts are supposed to stand the most vigilant guard over – was allowed to linger until it
became more or less academic (as far as the ongoing elections are concerned). One can only hope that
this interim order does not now meet the fate of the Aadhaar case, and remain “interim” for the next
half-decade.
The Supreme Court’s Judgment on the

Maintainability of the Rafale Review: Some
Salient Features
10 Wednesday Apr 2019
P G B C L C ,F S ,O S A ,
≈₁C
Tags
evidence, Official Secrets Act, Right to Information
In a judgment handed down today, the Supreme Court rejected the Government’s objections against the
maintainability of the review petitions in the Rafale Case. More specifically, during the hearing, the
A orney-General had objected to the production of three newspaper articles published in The Hindu.
The AG had argued that as these documents had been unauthorisedly obtained from the Defence
Ministry, and as they pertained to issues concerning national security, they should not be admi ed as
evidence. It was this contention that the Court rejected today, paving the way for a full merits hearing of
the review petition.
The concurring opinions of the Chief Justice and of Joseph J., for the most part, articulate se led legal
principles. Both judgments hold that the manner in which a document has been obtained does not
ordinarily affect the question of its admissibility in court. Under the Indian Evidence Act, the standard is
that of relevance: as long as a piece of evidence is relevant, even if it has been illegally obtained, that will
not prevent a court from admi ing and considering it. Both judgments then also note (although for
different reasons) that the AG’s reliance on Section 123 of the Evidence Act – which prohibits evidence
from being taken on “unpublished official records relating to any affairs of State” – is misplaced and
incorrect, as is his reliance on the Official Secrets Act. With the AG’s affirmative defences having failed,
and on the relevance standard of the admissibility of evidence, both judgments then conclude that the
review petition is maintainable.
The Opinion of the Chief Justice
So far, so good. Both judgments, however, have other interesting aspects that merit some study. The
Chief Justice, for example, embarks on a brief consideration of the law relating to the freedom of the
press, and while analysing The Pentagon Papers case from the United States, has this to say:
“By a majority of 6:3 the U.S. Supreme Court declined to pass prohibitory orders on publication
of the “Pentagon Papers” on the ground that the Congress itself not
having vested any such power in the executive, which it could have
so done, the courts cannot carve out such a jurisdiction as the
same may amount to unauthorized judicial law making thereby
violating the sacred doctrine of separation of powers. We do not see
how and why the above principle of law will not apply to the facts of
the present case. There is no provision in the Official Secrets Act
and no such provision in any other statute has been brought to our
notice by which Parliament has vested any power in the executive
arm of the government either to restrain publication of documents
marked as secret or from placing such documents before a Court of
Law which may have been called upon to adjudicate a legal issue concerning the parties. (paragraph
6)”
I want to focus on the underlined lines, because they express a position of law that the Supreme Court
has emphatically not been adhering to in recent times. In PILs to ban books and censor films – filed both
before the High Courts and the Supreme Court – where the statutory framework for regulation is very
clear, it is the Supreme Court that has “carved out … a jurisdiction” for itself, where it considers such
pleas for bans, and returns findings on merits. The apotheosis of this was ex-CJI Dipak Misra’s judgment
in Meesha (discussed here), which shredded the scheme of the CrPC by granting direct jurisdiction to ban
books to the higher judiciary, as opposed to its more limited actual remit, which was to judicially
review executive-ordered book bans. Paragraph 6 of the Chief Justice’s opinion in today’s judgment is a
salutary reminder that separation of powers concerns preclude the Supreme Court and the High Courts
from entertaining PILs asking for book bans or film bans, and hopefully, it is a reminder that will be
heeded in the future.
The second interesting aspect of the Chief Justice’s judgment speaks to an argument that was
vehemently advanced by the AG during the hearing. When confronted with the incontestable legal
proposition that the source or manner in which a document has been obtained has no bearing on its
admissibility as evidence, the AG then turned tack and argued for carving out an exception to that rule
for cases involving national security. In other words, he asked for a blanket exemption, from judicial
review, of any material that (in the opinion of the State) had implications for national security. As many
people noted at the time, this is a profoundly dangerous argument that would, among other things, end
up gu ing the Right to Information Act. From that perspective, the Chief Justice’s emphatic rejection of
the argument (paragraph 11) can allow all of us to breathe a sigh of relief. Even under existing legal
doctrine, the judiciary invariably accords to the State a very high level of deference on issues of national
security; a blanket exemption from consideration altogether would, however, go against entire idea of
constitutional supremacy in a democratic republic.
The Opinion of Joseph J.
Justice Joseph’s opinion, as well, has some thought-provoking arguments. While the Chief Justice
dismisses the AG’s arguments on privileged documents on the ground that they were no longer
“unpublished”, and the RTI/Official Secrets Argument on the ground that these were simply
inapplicable to the case, Justice Joseph embarks upon a more elaborate examination of both. In
particular, following the Chief Justice’s analysis on the issue of blanket exemptions to admissibility,
Justice Joseph holds that Section 123 of the Evidence Act is now subject to the RTI (paragraph 24) more
importantly, he holds that with the onset of the RTI regime, the State can no longer claim privilege for an
“entire class of documents” (by, for example, invoking “national security), and immunise them from
public scrutiny. (paragraph 20) Rather, the RTI regime now requires any such claim by the State to be
assessed on a case-to-case basis, with considerations of public interest central to the enquiry. This, again,
is important in a world where the State regularly invokes “national security” as a shibboleth to prevent
any further discussion.
It is on the question of relevance and illegally obtained evidence, however, that I have my only point of
criticism to make. Towards the end of his judgment, Joseph J. observes that:
“I would observe that in regard to documents which are improperly obtained and which are subject
to a claim for privilege, undoubtedly the ordinary rule of relevancy alone may not suffice as larger
public interest may warrant in a given case refusing to legitimise what is forbidden on grounds of
overriding public interest. (paragraph 31).”
He then goes on to hold, however, that since the present case pertain to allegations of corruption in high
places, the public interest justifies admi ing the documents. This, in my view, is a completely
unnecessary muddying of the waters. The Chief Justice’s opinion is crystal clear on how courts should
not be creating new sets of jurisdictions that limit or censor expression. The rule of relevance is a
straightforward one, and it is difficult to see why a further “public interest” requirement needs to be
introduced here.
Conclusion
The Supreme Court’s judgment(s) today provide a welcome restatement of long-se led legal principles.
They further affirm the regime of transparency that already existed under common law, an was then
significantly strengthened by the RTI – as opposed to the regime of secrecy represented by the Official
Secrets Act and shibboleths of “national security.”
That said, however, to me, it remains a ma er of some concern that these arguments were made in the
first place, and needed two detailed judgments to rebut. Like the broader public discourse, judicial
discourse also has an Overton window; and it is difficult to see the AG’s arguments as anything other
than an a empt to shift that window, and to make a set of fringe – almost laughably off-piste –
arguments respectable. It may perhaps, therefore, have been even be er if the Supreme Court had
rejected them out of hand, rather then giving them a veneer of respectability by hearing them out,
reserving orders, and then delivering a judgment on merits.
Once that was done, however, there is li le doubt that today’s judgment(s) unambiguously reject the
State’s a empts to overturn the gains of the RTI and re-establish colonial-style secrecy; and for that, they
ought to be welcomed.
The Importance of Fourth Branch Institutions to

Constitutional Democracy [Guest Post]
07 Sunday Apr 2019
P G B F B I
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Tags
Fourth Branch Institutions
[This is a guest post by Tarunabh Khaitan.]
Democratic backsliding (generally speaking)
There is growing acknowledgement that the onward march of democracy in the late twentieth century
has been arrested, at least on certain key parameters. As is argued at greater length in this paper, there
are some key common characteristics to creeping authoritarianism of the twenty-first century (key points
of this paper are discussed in this podcast interview). In sum, what we are witnessing is a crisis of
executive accountability (i.e, that of the political executive branch). There is a gradual erosion of all three
forms of accountability-seeking mechanisms that are integral to democratic government: (i) electoral or
vertical accountability to the people, (ii) horizontal or institutional accountability to the political
opposition, judiciary and fourth branch institutions, and (iii) diagonal or discursive accountability to the
academy, media and civil society. The paper further identifies the precise mechanisms through which
executive aggrandizement is taking place. It argues that this aggrandizement is incremental and
systemic, uses democratic rhetoric, and is effected by the fusion of the ruling party and the state. Finally,
the paper emphasises the limitations of the judiciary in defending democracy on its own, and calls for
greater a ention to the role of political parties, fourth branch institutions, electoral systems and global
institutions.
Is Indian democracy also backsliding?
Unfortunately, the list of key democracies that appear to be backsliding includes India. Admi edly,
unlike Poland, Turkey or Hungary, India is not a paradigmatic case of democratic decay of our times.
With Israel, United States, and South Africa, it is perhaps a borderline case—the trends are unmistakably
there, but perhaps reversible. A new, work-in-progress, paper documents and examines the evidence for
this claim about the state of Indian democracy. This paper finds that the NDA government in office
between 2014 and 2019 has indeed sought to undermine each of the three key strands of executive
accountability. Unlike the assault on democratic norms during Indira Gandhi’s Emergency in the 1970s,
there is no evidence of a direct or full-frontal a ack today. The BJP government’s mode of operation has
been subtle and incremental, but systemic. Hence, the paper characterises the phenomenon as ‘killing a
constitution by a thousand cuts’. The incremental assaults on democratic governance have typically been
justified by a combination of a managerial rhetoric of efficiency and good governance (made plausible by
the undeniable imperfection of our institutions) and a divisive rhetoric of hyper-nationalism (which
brands political opponents of the party as traitors to the state).
What can be done about it?
At least in the Indian context, it is clear that the judiciary alone cannot protect democracy. This is not to
say that we should give up on the judiciary. It has an important role to play, and the Supreme Court
needs to urgently recalibrate its dual role as a constitutional court and an appellate court, to ensure that
the la er function does not continue to cannibalise the former. But democracy needs to hedge its bets,
rather than counting on a single institution for its protection. This is where the role of the ‘fourth branch’
becomes crucial.
Characterised as the fourth branch of the state — because of their distinctiveness from the executive,
legislature and judiciary — these institutions are tasked with the protection of key constitutional values
such as democracy, legality, impartiality, probity, human rights and price stability (for eccentric
American reasons, they are called the ‘fifth branch’ in the United States). While Chapter Nine of the
South African Constitution explicitly guarantees independence to the fourth branch of the state, the
Indian Constitution does so implicitly by expecting Parliament to enact a law prescribing detailed
mechanisms for appointments to and functioning of such institutions — for example, through Articles
280(2) (Finance Commission) and 324(2) (Election Commission). However, an Independent Institutions
Bill remains a long-unrealised constitutional aspiration. In the Indian context, institutions of the fourth
branch include the Election Commission, Lokpal, Central Bureau of Investigation, Reserve Bank,
National Statistics Commission, National Human Rights Commission, Information Commission,
commissions for various marginalised groups, Central Vigilance Commission, Comptroller & Auditor
General, A orney General, Public Service Commission, University Grants Commission, Finance
Commission, Niti Aayog, media regulators and many others. Some of these institutions are
constitutional; others have quasi-constitutional status.
One way to accomplish the independence of Fourth Branch institutions is through enacting an
Independent Institutions Bill, whose contours are outlined here. Three key demands are stressed: one,
multi-partisan appointments, two, operational independence and impartiality, and three, accountability
to the legislature rather than the executive.
Manifesto Pledges to ‘Save the Constitution’
In its manifesto, the Congress Party claims that “Never before have the institutions that underpin a
parliamentary democracy been so brazenly undermined, denigrated and captured as in the last 5 years.
Examples of this include the Reserve Bank of India, Central Vigilance Commission, Election Commission
of India, Central Bureau of Investigation, Enforcement Directorate, Central Information Commission,
National Statistics Commission and National Human Rights Commission.” Well, yes, never before,
except during the Emergency in the 1970s.
Pu ing that exception to one side, this recognition is followed by a key promise:
““Congress promises to restore the dignity, authority and autonomy of these institutions while
making them accountable to Parliament. Congress promises that selection and appointment to these
bodies will be transparent and will be with due regard to the importance of institutional integrity.”
[para 24.01]”
The CPM manifesto also contains a similar diagnosis of the state of Indian democracy. It claims that the
BJP government “has mounted a brazen and continuing assault on all Constitutional authorities and
institutions during these last five years. The BJP continuing to head the central government will further
undermine the fundamental pillars of our Constitution.” Yet again, a similar record of the CPM
government in West Bengal is glossed over. The Manifesto further pledges to “Protect the independence
of Statutory, Constitutional and Regulatory Bodies by ensuring transparency in appointments to
oversight, regulatory and adjudicatory bodies, like the CVC, CBI, ECI, National/State Human Rights
Commissions, Lokpal, Lokayuktas, Womens’ Commissions, SC/ST Commissions etc”. It also seeks to
safeguard the autonomy of particular institutions, such as the RBI and the Election Commission.
The Emergency and the party-state fusion under the Left rule in West Bengal significantly damaged
Indian democracy. Of course, we cannot expect their 2019 manifestos to own up to these evils of their
own past. But if these parties do win power, we need to be assured that their recognition that democracy
needs a protected space for the political opposition and for independent and autonomous institutions is
sincere. They cannot be allowed to get away with loving democracy only when in Opposition. We must
not let them forget these manifesto promises if and when they come to power.
* The author is an associate professor of law at Oxford and Melbourne. He is also the General Editor of
the Indian Law Review. All views expressed here are personal and may not be a ributed to these
institutions.
Notes from a Foreign Field: Bulk Interception and

Mass Surveillance violates Human Rights: Lessons
from European Court [Guest Post]
05 Friday Apr 2019
P G B C C L ,E C H R ,
P ,S
≈L
[This is a Guest Post by P. Arun.]
On 13 September 2018, the European Court of Human Rights (ECtHR) in Big Brother Watch and Others v.
United Kingdom (App nos. 58170/13, 62322/14 and 24960/15) held that bulk interception and mass
surveillance by the United Kingdom government violated human rights law in Europe. It was primarily
a consolidated challenge by numerous civil and human rights organisations (Big Brother Watch,
Amnesty, Privacy International, ACLU etc.), where three cases got clubbed together. This challenge was
an outcome of major revelations by Edward Snowden in 2013.
Conceptually, communications data is a subset of personal data, which may fall in between personal and
sensitive, and sometimes even non-personal and non-sensitive (such as – call data record, traffic data in
social networking, browsing data etc.). It may be regarded as non-sensitive in nature, but if we
triangulate it with other sorts of metadata, it can speak volumes while portraying a meticulous and
intrusive profile of an individual which may comprise intimate elements of private life. It comprises both
metadata and payload data, where the former involves granular pieces of information, whereas the la er
is the actual content and information which is being communicated. These definitions are not
exhaustive, and there are significant disagreements too, but still, there are no disagreements with regard
to the gravity of its importance, which ought to remain private and certainly be safeguarded. However,
under the prevailing bulk interception where internet traffic data transiting via fibre optic cables were
intercepted, extracted, filtered, stored, analysed and even shared to other agencies across the borders
undoubtedly has chilling-effect when it is more secretive and ubiquitous (Kim, “How Bulk Interception
Works” 2016).
UK’s Surveillance Regime under RIPA

Before 9/11, the UK government had enacted Regulation of Investigatory Powers Act 2000 (RIPA) to
address the technological change and to empower intelligence agencies and public bodies to carry out
surveillance over electronic data and particularly on communications data for law enforcement and
security purpose. However, within a decade these powers caused serious issues concerning privacy, as
these were deficient to protect from unlawful surveillance (Big Brother Watch, “The Grim RIPA” 2010).
Moreover, there was also widespread concern about surveillance over journalists in order to identify
their sources, and this seriously impinges freedom of press (Bradshaw, 2016).
After exhausting the existing domestic remedies by raising complaints before Investigatory Powers
Tribunal (established by RIPA to address wrongful interference over communications), the human rights
organisations along with journalists finally approached ECtHR due to widespread suspicion and
concern over clandestine nature of surveillance. In this case, ECtHR was particularly looking into three
issues: a) the bulk interception of communications on the basis of RIPA 2000; b) the acquisition of
communications data from service providers under RIPA; and c) the intelligence-sharing between US
and UK. It held that the first two violate right to privacy and freedom of expression protected under
European Convention on Human Rights (ECHR) and ruled the last one did not violate either of them
(see Table 1). Contrary to majority judgement, Judge Pauliine Koskelo and Judge Ksenija Turković,
wrote dissents on the intelligence sharing regime and held that it violated Article 8 due to lack of
adequate safeguards.
Table 1: Classification ECtHR ruling on violation of ECHR in Big Brother Watch case.
Bulk Acquisition of Intelligence

Interception Communications Data from sharing
[s.8(4) Communication service
RIPA] providers (CSPs) [Chapter II
RIPA]
Article 8 Yes Yes No
Privacy
Article 10 Yes Yes No
Freedom of
Expression
Article 6 No No No
Fair Trial
Article 14 No No No
Prohibition of
discrimination
Bulk Interception and Acquisition of communications Data violates Right to Privacy
The court found that bulk interception and acquisition of communications data carried out by the UK
government under s.8(4) of RIPA violates the right to privacy protected under Article 8 of the ECHR. It
found that the bulk interception was incompatible due to the nature of limitations and safeguards. The
applicants mainly alleged that the particular section lacked the “quality of law” as the rules were
unclear, complex, vague and disproportionate. For instance, there are interception targets which were
called “external” communications. However, there is no clarity over “internal” and “external”
communications: suppose a person from the UK is browsing a website or posting in social media or even
using cloud storage, in all these cases the servers are located overseas. It is unclear whether it would be
regarded as external communications or not.
It also held that the regime lacked sufficient safeguards and guarantees against potential abuse of these
issues: absence of appropriate procedure for filtering, storing and analysing intercepted material;
indefinite duration of surveillance, as it could be renewed after every six months; retention of
intercepted data for disproportionate amount of period without any appropriate procedure of erasure;
and finally, that it was disproportionately collecting and retaining not merely metadata but also payload
data (real content) on a massive scale.
The court did not outrightly call the existence of bulk interception as contravening Article 8 of the
Convention, as it said:
“[I]n view of the current threats facing many Contracting States (including the scourge of global
terrorism and other serious crime, such as drug trafficking, human trafficking, the sexual exploitation
of children and cybercrime), advancements in technology which have made it easier for terrorists and
criminals to evade detection on the Internet, and the unpredictability of the routes via which
electronic communications are transmi ed, the Court considers that the decision to operate a bulk
interception regime in order to identify hitherto unknown threats to national security is one which
continues to fall within States’ margin of appreciation. (para 314)”
However, the court argued that it violated the European Convention because it failed to satisfy two
elements: the “quality of law” requirement and limiting the interference as what is “necessary in a
democratic society” (para 388). During the examination of the power under s.8(4) of RIPA, it found
shortcomings in two areas: “first, the lack of oversight of the entire selection process, including the
selection of bearers for interception, the selectors and search criteria for filtering intercepted
communications, and the selection of material for examination by an analyst; and secondly, the absence
of any real safeguards applicable to the selection of related communications data for examination” (para
387). Here the court found violation of human rights because bulk interception lacked oversight
mechanisms and robust safeguards to protect individuals’ right to privacy. In addition to that,
acquisition of communication data from CSPs (Chapter II RIPA) also lacked “prior review by a court or
independent administrative body.” Therefore, it was held as not being “in accordance with the law”
under Article 8 of ECHR.
Violation of Freedom of Expression and Freedom of Press under RIPA’s Surveillance Regime
In addition to privacy violation, the court also found that such a surveillance regime violates the right to
freedom of expression (Article 10). The applicants who challenged state surveillance were NGOs
working in public interest, and also journalists who work as public watchdogs due to which they expect
confidentiality over journalistic sources and their material. The court found that there was a “potential
chilling effect” of bulk interception (s.8(4)) on the freedom of press due to absence of procedures, and
therefore “limit[ed] the intelligence services’ ability to search and examine such [journalistic] material
other than where it is justified by an overriding requirement in the public interest” (para 495).
Additionally it also looked into effects of the “collateral intrusion” over journalist because of the nature
of surveillance (Chapter II RIPA) where the government acquires the huge amount of communications
data from CSPs. The court found that it lacked special provisions to access journalistic communications
data, which is confidential in nature.
While highlighting the significance of freedom of expression, the court stressed the importance of
freedom of press for journalists in a democracy as it said:
“The protection of journalistic sources is one of the cornerstones of freedom of the press. Without
such protection, sources may be deterred from assisting the press in informing the public about
ma ers of public interest. As a result the vital public-watchdog role of the press may be undermined,
and the ability of the press to provide accurate and reliable information may be adversely
affected. (para 487)”
Relevance for India’s Surveillance Regime
In this context, it is important to note that the existing mass surveillance techniques employed by the
Indian government are not merely in violation of the limitation principles outlined by the Supreme
Court of India in Pu aswamy judgement but also lacks substantial safeguards to prevent executive abuse.
For instance, Central Monitoring System (CMS), Network Traffic Analysis (NETRA), National
Intelligence Grid (NATGRID) developed in the aftermath of 26/11 to empower the state with metadata
surveillance, and it is totally enshrouded in the web of secrecy and empowers the executive itself to
review the warrants (SFLC 2014). Recently the B.N Srikrishna Report also highlighted the nature of
oversight mechanisms in India as it said: “there is li le meaningful oversight that is outside the
executive, and there is a vacuum in checks and balances to prevent the untrammeled rise of a
surveillance society.” Hence it recommended the measures, i.e. to have both parliamentary and judicial
oversight and it reasoned that “checks and balances is the need for ex ante access control as well as ex post
accountability” (Srikrishna Commi ee Report 2018: 124-128). Interestingly the dissenting judges
Koskelo and Turkovic in Big Brother Watch judgement also articulated similar views as they said: “it is
quite essential to have in place an adequate system of safeguards, including controls exercised by
independent bodies, both ex ante and ex post.” They also stressed on the risk of abuse if we rely on the
executive oversight on secret surveillance. Hence, they stressed on the need for oversight and control by
the independent judiciary (para 23-29).
In April 2015, IT Minister Ravi Shankar Prasad while responding to questions related to CMS in
parliament held that one of its salient features is “analysis of Call Data Records (CDR) to help in
establishing linkage between anti-social/anti-national elements” (Rajya Sabha Debates 2015). This poses
numerous questions with regard to legality as under which law such “elements” were defined and
permits the government to conduct surveillance. This surveillance mechanism draws the source of
legality from s.(5)2 of Telegraph Act 1885 and it which allows only for public emergency and public safety
and nothing else. The words such as “anti-social” and “anti-national” are vague and loose terms, by
comparison.
Last year, there had been silent musings by the government to monitor communications in social media
and carry out “predictive and sentiment analysis” of users on different platforms. It has drawn serious
flak from the people and later it was withdrawn when the apex court responded to a petition on this
surveillance tool and called it as establishing a ‘surveillance state’ (The Wire 2018). In addition to this,
two major events occurred in end of December 2018, on the one hand MHA issued an ‘Order’
authorising 10 Central Agencies to intercept, monitor, and decrypt (Section 69 of IT Act) “any
information generated, transmi ed, received or stored in any computer” (The Hindu 2018). On the other
hand, MeitY released controversial draft rules to amend Intermediary Rules, 2011 which mentioned
about introducing the requirement of traceability and longer data retention. More recently, in the
ongoing litigation challenging the surveillance regime (PUCL v Union of India), the government has set
out some of the details pertaining to the architecture of the surveillance regime, which – in the manner
outlined above – lack the requisite elements of oversight and necessary safeguards.
Moreover, the series of arrests of numerous activists in different states (Kannabiran 2018) makes one to
ponder about the nature of right to privacy, freedom of expression and freedom of press in India.
Undoubtedly, the lawmakers, activists along with citizens of India need to seriously engage and keep an
eye on nature of state surveillance especially when new sorts of personal data are constantly evolving.
Guest Post: A Comment on the Supreme Court’s

verdict in Union of India v. Mohit Minerals – II
05 Friday Apr 2019
P G B T C
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Tags
gst, tax
[This is a guest post by Karan Trehan].
This article continues the previous post analyzing Supreme Court’s [‘SC’] verdict in Union of India v.
Mohit Minerals. To give a brief overview, Section 18 of the Constitution (One Hundred and First
Amendment) Act, 2016 [‘GST Amendment Act’] enables Parliament to enact a ‘law’ compensating
States for loss in revenue due to the implementation of Goods and Services Tax [‘GST’]. In order to
effectuate this goal, GST (Compensation to States) Act, 2017 [‘CSA’] was passed by the Parliament,
levying a cess on intra-State and inter-State supply of goods or services. (Section 8 of the Act levies the
cess)
The SC in Mohit Minerals upheld the legislative competence of the CSA Act sourcing its validity through
Article 270. The court pointed out that Article 270, post the GST Amendment Act specifically empowers
Parliament to levy any cess by law. Although the SC emphasized that Section 18 of the Amendment Act
also grants power to Parliament for compensating States, this factor did not form the basis of court’s
decision.
In previous post, it was contended firstly, that Section 18 forms a part of the Constitution despite not
being reflected in its bare text; and secondly, that the SC could have sourced the validity of GST
st
(Compensation to States) Act, 2017 through Section 18 of 101 Amendment Act without going into
Article 270 insofar as the ‘law’ framed is for compensating the States.
It has been argued here that Article 270 does not grant any power to levy ‘cess’ and merely provides a
distribution mechanism for taxes levied and collected by the Union. Thus, the reliance by the SC on
Article 270 for validating CSA Act is erroneous. Furthermore, the proposition whether a ‘law’ framed
under Section 18 can contemplate levy of cess has also been explored.
Article 270 does not grant any power to levy ‘cess’
Article 270 is titled ‘Taxes levied and collected by the Union and distributed between the Union and the States’.
Clause 1 of the Article provides that:
“(1) All taxes and duties referred to in the Union list, except the duties and taxes referred to in articles
268, 269 and article 269A, respectively (Read as “Articles 268, 268A and 269″ prior to the GST
Amendment Act), surcharge on taxes and duties referred to in article 271 and any ‘cess’ levied for
specific purposes under any law made by Parliament shall be levied and collected by the
Government of India and shall be distributed between the Union and the States in the manner
provided in clause (2).”
On a plain reading, the article describes a framework for distribution of net proceeds between the Union
and the States through a law framed in accordance with the procedure laid down in clause (2). It is in
clause (2) of Article 270 that we find a reference to percentage of distribution. The manner of such
percentage has to be prescribed by the Finance Commission; until a Finance Commission has been
constituted, it can be prescribed by the President by Order and after the Finance Commission has been
constituted, it shall be prescribed by the President by Order after considering the recommendations of
the Finance Commission.
The GST Amendment Act has added Clause 1A and 1B after clause (1) of Article 270 which now reads
as:
“(1A) The tax collected by the Union under clause (1) of article 246A shall also be distributed between
the Union and the States in the manner provided in clause (2).
(1B) The tax levied and collected by the Union under clause (2) of article 246A and article 269A,
which has been used for payment of the tax levied by the Union under clause (1) of article 246A, and
the amount apportioned to the Union under clause (1) of article 269A, shall also be distributed
between the Union and the States in the manner provided in clause (2).’’”
Thus, after the GST Amendment, the manner in which taxes collected under Article 246A are distributed
has also to confirm the procedure prescribed under Article 270.
(Separate Note: It is the GST Council constituted as per Article 279A which recommends the percentage
of taxes to be distributed between Union and States under 246A. Now clause IA and IB says that GST
taxes has to be distributed as per clause (2) that in turn makes reference to the procedure ‘prescribed’
under clause (3). Considering this, Clause (4) which defines the term ‘prescribed’ should have been
amendment to include recommendation by the GST Council which has (interestingly) not been done
with the ambit being still limited to recommendations by Finance Commission.)
Coming back to the core issue, it has to be considered that the Indian Constitution does not define ‘cess’
and it is only in Article 270 that a reference to this terminology can be traced. Article 270 uses the
expression “any ‘cess’ levied for specific purposes under ‘any law’ made by Parliament”.
The relevant question which now arises is:
Whether ‘any law’ referred to under this Article means a law enacted under Article 270 itself or a law enacted in
the exercise of plenary taxing powers granted to the Parliament under Article 245 and 246 r/w List I of Schedule
VII?
Cess Tax in India
Before delving any further, it become important to understand the concept behind cess. The term ‘cess’
means a tax and is ordinarily employed when the levy is for some special administrative expense or
purpose (Similar to what has been stated under Article 270). Though the term ‘cess’ has been used
traditionally to mean a tax, it may also take the form of a ‘fee’, and the term ‘cess tax’ only refers to a cess
with the nature of a tax.
Generally, taxes raise revenue which can be utilized for any purpose. For example, the revenue received
from Income Tax can be put to any use by the Union Government viz. infrastructure building, payment
of outstanding debts etc. However, cess tax differs from a tax in the sense that the former is earmarked
for a specific purpose whereas the la er does not necessitate any earmarking. Examples can be education
cess which is solely utilized for educational purposes or Krishi Kalyan Cess only meant for welfare of
farmers.
Despite the peculiarities, the nature of cess tax and tax is essentially identical and a cess tax can, at best
be described as a special form of tax with only difference being in terms of purpose and distribution.
Since both the terms mean one and the same thing, it further follows that authority to levy cess tax
would also flow from the legislative power to impose a tax.
Article 265 of the Constitution lays down that: ‘No tax shall be levied or collected except by authority of law.’
Thus, not only ‘levy’ but also ‘collection’ of taxes must be under authority of some law and any act by
the State purporting to impose a tax without any legislative authority will be void. This power to impose
taxes can be traced to Article 245, 246 and 248 read with specific Entries in the Lists under Seventh
Schedule. In addition, Article 246A also empowers the legislature to levy GST independently of
Schedule VII.
Thus, Article 270 only deals with the ‘collection’ part and the law-making power assigned under this
article is limited to the extent it empowers Parliament to enact a legislation laying down the manner of
distributing revenue collected from taxes. This implies that the usage of expression ‘Taxes levied and
collected by the Union’ under various sub-clauses is ‘merely’ a reference to respective taxing entries under
the Constitution.
Legislative History
This argument can further be corroborated by analyzing the legislative history of this provision. Article
270 is, in major part, derived from the Government of India Act, 1935 [‘GOI Act’] and it is this legislation
one needs to turn in order to discern the true nature of the article. Section 137 – 141 of Part VII in the GOI
Act dealt with the financial framework for levy and collection of different taxes viz. succession duties,
terminal taxes, Income tax other than agriculture, corporation tax etc. by Federation and its distribution
between Federation and provinces. The power to levy and collect agriculture and certain other taxes
were however vested with the provinces.
These provisions (similar to Article 270) also incorporate the expression “Taxes …… ‘shall’ be ‘levied’ and
collected by the Federation”. The above expression, when read in isolation gives the impression that these
sections grant taxation powers to the Federation. However, it was Section 100 of GOI Act (similar to
Articles 245 and 246) which in actuality conferred taxing (also law making) powers and demarcated
fields of legislation between Federation and Provinces into three lists, with local subjects in List II and III
and pan-India subjects in List I.
Article 270, as we see now, is a consolidation of these provisions (primarily, Section 138 which dealt with
Income other than agriculture income) with modifications introduced through amendments post
enactment of the Constitution.
It is also important to note that the GOI Act had no reference to the term cess. In fact, cess does not even
appear in the original Article 270 and it was only through the Constitution (Eightieth) Amendment Act,
1999 the term ‘cess’ was introduced with the sole aim of “providing an alternative scheme of sharing the
proceeds from certain Union taxes and duties between the Union and the States leaving sufficient flexibility for
meeting Centre’s exclusive needs by keeping Cesses and Surcharges outside the pooling arrangement”. Hence it
can be inferred that the intention behind including cess under Article 270 was to protect proceeds from
certain taxes (or fees) levied for specific purpose in hands of the Union and prevent their mandatory
distribution amongst various States. This means that power to levy taxes is still available under relevant
legislative entries and ‘any law’ under clause (1) appearing in the context of cess refers only to taxing
entries under Schedule VII. Hence, there is no way reliance could have been placed on clause 1 of Article
270 for validating cess under GST owing to its limited application only to direct taxes (and law-making
power under Schedule VII).
Cess can be levied through a law framed under Section 18
Section 18 of GST Amendment act reads:
“Parliament shall, by law, on the recommendation of the Goods and Services Tax Council, provide
for compensation to the States for loss of revenue arising on account of implementation of the goods
and services tax for a period of five years.””
It has been earlier established (here) that Section 18, though not reflected in the text of Constitution, can
be relied to frame a law for compensating the States. What remains to be analyzed now is “whether such
law framed under this provision can be used to levy cess?”
Since power to levy a cess (whether ‘tax’ or ‘fee’) comes from specific entry and for a cess tax, reliance
has to be placed on specific tax entry. Article 246A is the stand-alone charging provision in context of
Goods and Services Tax and operates independently of lists under Schedule VII. This means that any
cess tax levied under GST regime will have to be necessarily sourced from Article 246A. Thus, the law-
making powers granted under Section 18 can levy cess and have to be read along with Article 246A for
such imposition.
Section 18 as an exception to Article 270 1(A) and 1(B)
As discussed earlier, Article 270 (1) provides for the manner in which direct taxes and other levies under
Union list have to be distributed between Union and States with some exceptions being explicitly carved
out for certain duties including cess imposed for specific purpose in the provision itself. This means that
these levies specifically exempted do not have to follow similar disbursement method as others (not
falling under exception) collected under 270(1).
Article 270 1(A) and 1(B) lay down the standard distribution mechanism for indirect taxes (GST)
collected under Article 246A. On comparing clause (1) with clause (1A) and (1B) it can be observed that
the distribution role which former plays with respect to direct taxes (and other levies under Union list),
is being carried out by Article 270 1(A) and 1(B) for GST. It has to be noted that the la er however does
not lay down any exception to this compulsory distribution rule.
Now Section 18 which enables imposition of Compensation to States cess also forms a part of entire GST
regime. Under Compensation to States Act, 2017 an elaborate procedure has been laid down how cess
collected under Section 18 has to be distributed. Thus, ‘cess’ levied under this provision does not have to
follow the mandatory mechanism prescribed under Article 270 (1A) and (1B) due to the separate
distribution procedure being laid down under Compensation to States Act, 2017 itself.
To put it simply, though any tax collected under GST regime has to be distributed according to the
manner provided under Article 270 (1A) and (1B), only when it comes to cess levied for compensating
the States, mechanism as per CSA Act, 2017 framed under Section 18 has to be followed.
Hence, Section 18 can be seen exception to the compulsory distribution rule for GST prescribed under
Clause (1A) and (1B). It operates in the same capacity as cess (and other) exception in Article 270(1) for
direct taxes levied under Union List with special purpose of cess limited to compensate the States.
(Clause (1) of 270 has no mention of any specific purpose and leaves such determination entirely upon
discretion of appropriate legislature.)
Guest Post: On Money Bills
01 Monday Apr 2019
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money bill
(This is a guest post by Suhrith Parthasarathy, on the eve of the final day of hearing in the Tribunals
Case).
Over the course of the last five years, several laws of substantial and wide-reaching importance have
been enacted without securing the Rajya Sabha’s assent. These have included, among others, legislation
such as the Aadhaar Act, the Specified Bank Notes (Cessation of Liabilities) Act, 2017, which provided
imprimatur to the government’s demonetisation programme, and the Finance Act of 2017, through
which a raft of statutes was amended, and various different judicial tribunals were either newly created
or merged and integrated together. The government achieved this circumvention of the Rajya Sabha’s
checks by having the Lok Sabha’s speaker certify the draft of these legislation as money bills.
As I pointed out previously here, generally under India’s constitutional structure, for a bill to be enacted
as law, it requires approval by both Houses of Parliament. The exception to this rule is contained in
Article 110(1), which defines a “money bill” in the following terms:
“(1) For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it contains only
provisions dealing with all or any of the following ma ers, namely
(a) the imposition, abolition, remission, alteration or regulation of any tax;
(b) the regulation of the borrowing of money or the giving of any guarantee by the Government of
India, or the amendment of the law with respect to any financial obligations undertaken or to be
undertaken by the Government of India;
(c) the custody of the consolidated Fund or the Contingency Fund of India, the payment of moneys
into or the withdrawal of moneys from any such Fund;
(d) the appropriation of moneys out of the consolidated Fund of India;
(e) the declaring of any expenditure to be expenditure charged on the Consolidated Fund of India or
the increasing of the amount of any such expenditure;
(f) the receipt of money on account of the Consolidated Fund of India or the public account of India
or the custody or issue of such money or the audit of the accounts of the Union or of a State; or
(g) any ma er incidental to any of the ma ers specified in sub clause (a) to (f).”
Article 110(3) further states that in cases where a dispute arises over whether a bill is a money bill or not,
the Lok Sabha Speaker’s decision on the issue shall be considered final. But, in its judgment in the
Aadhaar case, despite clause 3, the Supreme Court did, in fact, review whether the Speaker was correct
in branding the Aadhaar Bill as a money bill, albeit concluding that the certification in the case was
correct. Now, however, arguments are once again afoot on whether such decisions by the Speaker can at
all be subject to judicial scrutiny.
Last week, in challenging the provisions of the Finance Act of 2017, insofar as they affected the
functioning of tribunals, Mr. Arvind Datar, for the petitioners, contended that the Speaker’s certification,
in this case, amounted to a fraud on the Constitution. The provisions of the law, through which tribunals
were either merged together or newly created, he argued, related to ma ers entirely beyond the scope of
the enlisted items in Article 110(1).
In response, the Union government, represented by the A orney General, argued that the speaker’s
decision in certifying the Finance Bill of 2017 as a money bill was final and binding. In the government’s
belief, the majority’s judgment in the Aadhaar case does not represent an authority for the proposition
that the speaker’s endorsement is amenable to judicial review.
Admi edly, as I pointed out in my previous post, the leading opinion in the Aadhaar case, authored by
Justice AK Sikri, is riddled with inconsistencies on this question. Had the court approached its decision-
making process logically, it would have first rendered a conclusive opinion on whether the Speaker’s
decision was capable of being judicially examined, before proceeding to consider the question of
whether her decision was, in fact, correct on a consideration of the Aadhaar Bill. But not only did the
court fail to do this, it adopted an altogether bizarre approach by first reflecting on whether the Aadhaar
Act infringed any fundamental right or not. In doing so, it concluded that section 57 of the Act alone was
unconstitutional. As a result, when considering arguments on the bill’s certification under Article 110,
the majority considered a version of the law that was deemed to exclude section 57. This is inexplicable
because the Speaker, when a esting the draft legislation, one would have thought, would have
considered its provisions as a collective whole.
But the contradictions do not end here. In analysing the Aadhaar Bill—an imagined version of the law
sans section 57—and whether it could have been classified as a money bill under Article 110, the
majority’s judgment is decidedly vague. Consider paragraphs 396 and 397, where the court recorded the
petitioners’ submissions on the point:
“396) It was further submi ed that though clause (3) of Article 110 stipulates that decision of the
Speaker on whether a Bill is a Money Bill or not is final, that did not mean that it was not subject to
the judicial scrutiny and, therefore, in a given case, the Court was empowered to decide as to
whether decision of the Speaker was constitutionally correct. In respect of Bill in question, it was
argued that though Section 7 states that subsidies, benefits and services shall be provided from
Consolidated Fund of India which was an a empt to give it a colour of Money Bill, some of the other
provisions, namely, clauses 23(2)(h), 54(2)(m) and 57 of the Bill (which corresponds to Sections 23(2)
(h), 54(2)(m) and 57 of the Aadhaar Act) do not fall under any of the clauses of Article 110 of the
Constitution. Therefore, some provisions which were other than those covered by Money Bill and,
therefore, introduction of the Bill as Money Bill was clearly inappropriate. It was also argued that, in
this scenario, entire Act was bound to fail as there is no provision for severing clauses in Indian
Constitution, unlike Section 55 of the Australian Constitution. Insofar as justiciability of the Speaker’s
decision is concerned, following judgments were referred to:
(i) Sub-Commi ee on Judicial Accountability v. Union of India & Ors.
(ii) S.R. Bommai & Ors. v. Union of India & Ors.
(iii) Raja Ram Pal v. Hon’ble Speaker, Lok Sabha & Ors.
(iv) Ramdas Athawale v. Union of India & Ors.
(v) Kihoto Hollohan v. Zachillhu & Ors.
397) It was emphasised that the creation and composition of the Rajya Sabha (Upper House) is an
indicator of, and is essential to, constitutional federalism. It is a part of basic structure of the
Constitution as held in Kuldip Nayar & Ors. v. Union of India & Ors.147. Therefore, Rajya Sabha
could not have been by-passed while passing the legislation in question and doing away with this
process and also right of the President to return the Bill has rendered the statute unconstitutional.”
Having documented this, the court proceeded to cite the A orney General’s arguments, including the
government’s reliance on the judgment of a 3-judge bench in Mohd. Saeed Siddiqui v. State of UP (2014),
where the Supreme Court had held that the Speaker’s decision under Article 110 is altogether beyond
judicial review. The court then cited the government’s reliance on Article 122, which states that “The
validity of any proceedings in Parliament shall not be called in question on the ground of any alleged
irregularity of procedure.”
Having done so, the court held thus, in paragraphs 404 and 405:
“404) The Rajya Sabha, therefore, becomes an important institution signifying constitutional
fedaralism. It is precisely for this reason that to enact any statute, the Bill has to be passed by both the
Houses, namely, Lok Sabha as well as Rajya Sabha. It is the constitutional mandate. The only
exception to the aforesaid Parliamentary norm is Article 110 of the Constitution of India. Having
regard to this overall scheme of bicameralism enshrined in our Constitution, strict interpretation has
to be accorded to Article 110. Keeping in view these principles, we have considered the arguments
advanced by both the sides.
405) We would also like to observe at this stage that insofar as submission of the respondents
about the justiciability of the decision of the Speaker of the Lok Sabha is concerned, we are
unable to subscribe to such a contention. Judicial review would be admissible under certain
circumstances having regard to the law laid down by this Court in various judgments which have
been cited by Mr. P. Chidambaram, learned senior counsel appearing for the petitioners, and
taken note of in paragraph 396.”
Although the court didn’t expressly hold Siddiqui to be wrongly decided, it would be reasonable for us
to assume, especially from paragraph 405, that the majority in the Aadhaar case rejected the
government’s argument that the Speaker’s decision under Article 110 is beyond judicial review. Indeed,
the court having agreed with Mr. Chidambaram proceeded to then examine whether the Aadhaar Bill
(sans section 57) could be classified properly as a money bill. On this, the court concluded that the
Speaker’s certification was correct, and the law was, in fact, validly enacted.
But, curiously, in paragraph 412, Justice Sikri observed as follows:
“For all the aforesaid reasons, we are of the opinion that Bill was rightly introduced as Money Bill.
Accordingly, it is not necessary for us to deal with other contentions of the petitioners, namely,
whether certification by the Speaker about the Bill being Money Bill is subject to judicial review
or not, whether a provision which does not relate to Money Bill is severable or not. We reiterate
that main provision is a part of Money Bill and other are only incidental and, therefore, covered by
clause (g) of Article 110 of the Constitution.”
Now, had the court thought the speaker’s certification final and incapable of being scrutinised, it’s
unfathomable why it would even consider whether the Aadhaar Bill’s introduction as a money bill was
correct in law or not. Yet, paragraph 412 has left open an avenue for the government to continue to insist
that the Speaker’s endorsement under Article 110 is beyond judicial review. But as I have argued
previously, Article 110, if abused, is capable of producing great public mischief. What is more, as Justice
DY Chandrachud’s opinion in the Aadhaar case shows us (here Justice Bhushan too concurs), the
decision in Siddiqui proceeded on a grossly mistaken belief that a certificate issued under Article 110 is
merely a ma er of procedure. The ongoing case over the validity of the Finance Act, 2017, insofar as it
relates to tribunals, represents a great opportunity for the court to irrefutably se le the issue. It’s time
the court explicitly overruled Siddiqui, for to hold otherwise is to undermine the fundamental democratic
role that the Rajya Sabha performs.
The Delhi High Court on Forced Evictions,

Adequate Housing, and a “Right to the City”
21 Thursday Mar 2019
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meaningful engagement, Right to Housing, slum rehabiliation, south africa
In an interesting judgment handed down earlier this week, the Delhi High Court laid down some
important principles concerning the rights of slum-dwellers to adequate housing, and protection from
forced evictions. The case itself had been filed in 2015, in response to demolitions and forced evictions
(that had allegedly caused, among other things, the death of a six-year-old child) at Shakur Basti, a
jhuggi cluster built on Railways land. In its interim orders (discussed from paragraphs 3 to 48), the High
Court found that the Railways had failed to carry out its obligations to conduct a survey determining the
eligibility of the residents for rehabilitation under law (set out in paragraph 28), before it commenced
eviction. Accordingly, it passed orders on various relief measures, and directed the statutory agencies
involved to act in a coordinated manner to deliver them to the displaced citizens. The case proceeded in
the form of a continuing mandamus, with the Court monitoring the developments (including the
preparation of a Draft Protocol that would coordinate the actions of the agencies) until December 2018,
when judgment was reserved on the legal issues.
The High Court was then required to consider the interaction between a complex maze of legal
instruments relating to the rights of slum dwellers in the context of forced evictions and rehabilitation:
international law (that Muralidhar J. read into the domestic legal landscape via the Protection of Human
Rights Act, 1993) (paragraphs 56 to 68), the Indian Constitution (paragraphs 84 to 86), various statutes
such as the SAIC Act and the DUSIB Act (paragraphs 93 to 111) and a endant policies (paragraphs 119
to 136), and the Court’s own previous judgments, from the iconic Olga Tellis (paragraphs 87 to 92) to the
more recent and specific Sudama Singh (paragraphs 112 – 118). Muralidhar J. also informed his reasoning
through an extensive analysis of South African constitutional jurisprudence which – of course – is based
upon a categorical right to housing provided by the constitutional text, which we lack (paragraphs 69 to
79).
The Court found that its previous judgment in Sudama Singh, which had interpreted constitutional
principles in more concrete terms, providing for a right to rehabilitation and a right to a meaningful
engagement before an eviction, had now been codified by the 2015 Policy, and by the Protocol that had
been worked out by the parties during the hearing, and which had received their imprimatur.
Consequently, the Court held that, in accordance with law:
Before any eviction can be commenced, there must be a survey in order to determine whether the
residents are eligible for rehabilitation in accordance with the existing law and policy.
In case the answer to the above is “yes”, the eviction cannot be commenced until provisions are
made either for in situ rehabilitation, or for alternative accommodation.
Any eviction must be preceded by meaningful engagement with the residents on all issues,
including the terms and conditions of rehabilitation. (paragraphs 142 – 144)
Muralidhar J.’s judgment is important for a few reasons. At the constitutional level, it clarifies (once
again) what, precisely, a “right to housing” might mean in the Indian context. In the absence of an
enforceable, textual right to housing, any Court that wants to retain fidelity to the Constitution is
constrained in what it can achieve: it cannot, for example, declare that every individual must be
provided a house (indeed, the South African Constitution which does have the right has also balked at
going so far). However, the guaranteed rights to freedom of movement and residence, as well as the
right to life, provides a basis for a more modest – but more rigorously grounded – formulation: that the
Government may not impede access to housing – by evicting people in occupation of certain land –
without complying with a substantive due process standard. This standard requires, first, “meaningful
engagement” with the residents before any action is taken (this is a more fleshed out and rigorous
articulation of the right to a hearing, and is drawn from South African jurisprudence), and secondly,
rehabilitation, where a right to rehabilitation has been established by law or policy. For readers familiar
with the Forest Rights Act, it is a bit similar to the principle that no coercive action can be taken against a
resident before the se lement of her rights is completed. Note that neither of the two
requirements guarantee an individual a house in a tangible or material sense. What they do, however, is
place thick procedural obligations upon the government if it wants to deprive someone of shelter: it is
not enough for the government to invoke property rights, label them as “encroachers”, and drive them
off.
The Delhi High Court bu ressed its articulation of constitutional values by invoking two further
principles. The first was the exhortation that the government is not entitled to treat slum dwellers on
public land as right-less beings, with all the demeaning connotations that labels such as “encroachers” or
“trespassers” bring. Rather, residents were at all times to be treated as rights-bearers, and the
government was not entitled to derogate from its constitutional obligations while engaging with them.
At the heart of this articulation is the understanding that urban poverty is a structural issue, and simply
targeting occupiers of public land as “encroachers” not only mischaracterises the problems, but also
violates basic constitutional values. The Indian judiciary has not always been consistent in this
understanding, and therefore, its clear articulation by Muralidhar J. is very welcome.
The second was the invocation of a “right to the city” (paragraphs 80 to 83). Drawing upon the work of
famous urban space scholars such as Henri Lefebvre and David Harvey, as well as contemporary
international law, Muralidhar J. noted that “the right to the city” envisaged “stronger democratic control
and wide participation in struggles to reshape the city.” In essence, therefore, the idea is democratisation:
the inhabitants of a city ought to have a voice, a stake, and participation in questions such as “how is the
city to be designed?”, “who is the city for?”, “how and on what terms are spaces in the city to be
accessed?”, and so on. To anyone who lives in Delhi – with its gated colonies, the walled gardens of
what is popularly known as the “Lutyens Zone”, and the heavily guarded entrances to gigantic malls –
this will be immediately understandable. The point is this: how we access the city, which spaces are
open to us and which aren’t, and how we navigate those spaces, are all questions that are presently
dependent upon socio-economic class and status, but ought to be subjected to democratic control.
Now you may say that this is all well and good, and ought to be the subject of political struggle and
agitation, but what does it have to do with constitutional adjudication? A Court can hardly “enforce” a
right to the city by redesigning urban spaces to (for example) reverse the “privatisation of space” that
gated colonies have so effectively conducted, and so on: that is a task for urban planners. In this case,
however, the idea of the right to the city was what informed the Court’s articulation of meaningful
engagement before evictions as a constitutional principle. Furthermore, its applications in other cases
can be grasped: readers will recall, for instance, a recent controversy with respect to the Delhi
Gymkhana Club, when “guests who look like maids” were denied entry. Now, the debate is rather
constrained as long as it is limited to a putative clash between the Club’s “right” to impose a dress code,
and the human right to non-discrimination and dignity. However, we can think about this another way:
the Club occupies a vast amount of (what would otherwise have been) public space at the heart of Delhi.
“A right to the city” raises difficult – but important – questions about the nature of control over such
spaces, their possible democratisation, and whether and to what extent socio-economic class (of which
dress is a marker) can be made the basis for exclusion. That, of course, will depend upon how future
courts develop the concept.
“With reference to this case, in particular, the flow of Muralidhar J.’s reasoning may be understood
by referring to the following scheme, arranged around descending levels of abstraction:
Level One: Citizens as rights-bearers and not as “subjects”, “encroachers”, and “trespassers”/ “a
right to the City” —->
Level Two: The right to adequate housing/right against forced evictions/right to meaningful
engagement/right to enforce rehabilitation schemes —->
Level Three: Statutory instruments and policy documents that actualise the above —–>
Level Four: No eviction without compliance wit the above.”
But at the end of the day, while this judgment demonstrates the promise of socio-economic rights
adjudication, when done rigorously and emphatically, with a view to the principles of participation and
engagement, it also reveals the limitations of the judicial role, and the importance of other democratic
actors. Here, the Court was only able to do what it did because of the existence of detailed statutory
instruments and policy documents that actualised the constitutional principles (to whatever limited
extent) – many of which, admi edly, had only come into existence because of judicial pressure. As the
Court was careful to note, for example, the rights at issue would kick in if the residents had a prior right
to rehabilitation in accordance with extant law and policy (here, for example, the 2015 Policy had a cut-off
date of 2015). Now, what if existing law did not provide for that right? To what extent would the Court
be able to stipulate or decree it, given that (as everyone agrees) there is no substantive right to housing
under the Indian Constitution? The fate of judgments such as Olga Tellis – for example – where much
was said, but ultimately, the eviction was upheld – perhaps suggests that this is not an area where the
Court can go it alone. The same is true for a “right to the city”: ultimately, any substantive articulation of
a “right to the city” will bu heads against the much more entrenched legal principle of private
property. The Court’s articulation of a “right to the city” informs us that our present legal landscape is
not the only way in which we might imagine the relationship between people and land; but to change that
relationship is the onerous task of democracy.

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12/31/2019 Indian Constitutional Law and Philosophy | Page 9

Guest Post: Electoral Bonds and the Political Party

18 Thursday Apr 2019

Making the Path by Walking: The Supreme Court’s

14 Sunday Apr 2019

Thus, a combination of these three features – judicial cognisance of informal, “shadow-banning”, an

The Afterlife of the Aadhaar Dissent: The Jamaican

13 Saturday Apr 2019

NIRA: Similarities and Diﬀerences with Aadhaar

Justice Ba s and the Primacy of Choice

On this basis, Ba s J. therefore held that:

The Chief Justice, Proportionality, and the Surveillance State

This, the Chief Justice held, was because:

To end with Hughes again. His full quote reads:

One can but hope.

Judicial Evasion and the Electoral Bonds Case

13 Saturday Apr 2019

In paragraph 12, the Court then notes that:

The Supreme Court’s Judgment on the

10 Wednesday Apr 2019

The Opinion of the Chief Justice

The Opinion of Joseph J.

The Importance of Fourth Branch Institutions to

07 Sunday Apr 2019

[This is a guest post by Tarunabh Khaitan.]

Democratic backsliding (generally speaking)

Is Indian democracy also backsliding?

What can be done about it?

to the legislature rather than the executive.

Manifesto Pledges to ‘Save the Constitution’

Notes from a Foreign Field: Bulk Interception and

05 Friday Apr 2019

[This is a Guest Post by P. Arun.]

UK’s Surveillance Regime under RIPA

Bulk Acquisition of Intelligence

Article 10 Yes Yes No

Bulk Interception and Acquisition of communications Data violates Right to Privacy

Relevance for India’s Surveillance Regime

Guest Post: A Comment on the Supreme Court’s

05 Friday Apr 2019

[This is a guest post by Karan Trehan].

Article 270 does not grant any power to levy ‘cess’

The relevant question which now arises is:

Cess Tax in India

Cess can be levied through a law framed under Section 18

Section 18 of GST Amendment act reads:

Section 18 as an exception to Article 270 1(A) and 1(B)

Guest Post: On Money Bills

01 Monday Apr 2019

(a) the imposition, abolition, remission, alteration or regulation of any tax;

(d) the appropriation of moneys out of the consolidated Fund of India;

(i) Sub-Commi ee on Judicial Accountability v. Union of India & Ors.

(ii) S.R. Bommai & Ors. v. Union of India & Ors.

(iv) Ramdas Athawale v. Union of India & Ors.

(v) Kihoto Hollohan v. Zachillhu & Ors.

But, curiously, in paragraph 412, Justice Sikri observed as follows:

The Delhi High Court on Forced Evictions,

21 Thursday Mar 2019

Level Four: No eviction without compliance wit the above.”

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