Indian Constitutional Law and Philosophy

12/31/2019 Indian Constitutional Law and Philosophy | Page 2
Indian Constitutional Law and Philosophy
Constitutional Functionaries, Constitutional

Standards, and the Role of Courts: Lessons from
the Miller
23 Saturday Nov 2019
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Constitutional Conventions, governor, judicial review
(This is a Guest Post by Nivedhitha K.)
On 24th September 2019, the UK Supreme Court delivered the judgment in R (Miller) v. The Prime
Minister, declaring the prorogation of the UK Parliament unlawful. Apart from the judgment being
lauded as a landmark one for its timely and precise intervention, it also involves some important
questions of law. In this post, I will a empt to analyse the decision of Miller, and distinguish it with the
Indian jurisprudence on the question of “aid and advice.” I will then explain the inadequacy of the
Indian jurisprudence on this issue, and propose for its reformation on the lines of Miller.
Facts of Miller’s Case
A referendum was held in the UK on 23rd June 2016, where the majority voted for leaving the European
Union (hereinafter referred to as “EU”). The government has since then been involved with the task of
implementing the decision of the majority. Under Article 50 of the EU treaty, for a Member State to
withdraw from the Union, it must notify the EU of its intention, and arrive at an agreement on the future
relationship between the member state and the EU. In this context, under the EU (Withdrawal) Act 2018
– passed by the UK Parliament – the withdrawal agreement must be approved by the House of
Commons, and a legislation incorporating the provisions of the withdrawal agreement must be passed.
However, following an extension to the mandatory two-year period that sets into play after an Article 50
Notification, 31st October was decided to be the cut-off date for the UK to exit the EU. Therefore,
irrespective of whether or not the UK Parliament was able to approve of a withdrawal agreement, the
UK would have to leave the EU on 31st October.
However, an order was passed by the Queen that the UK Parliament would be prorogued from 12th
September 2019 to 14th October 2019. In the UK- akin to India- the Queen (the Head of State) acts on the
aid and advice of the Prime Minister. The prorogation was challenged in the High Court of England and
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Wales, and was dismissed on the ground that the issue was non-justiciable. On appeal, the Supreme
Court (a bench of eleven) held that the issue was justiciable, and declared the prorogation unlawful.
The issues that were framed by the Court were fourfold: (paragraph 27)
“(1) Is the question of whether the Prime Minister’s advice to the Queen was lawful, justiciable in a
court of law?
(2) If it is, by what standard is its lawfulness to be judged?
(3) By that standard, was it lawful?
(4) If it was not, what remedy should the court grant?”
The test laid down in Miller on the justiciability of aid and advice
The bench observed that the advice rendered by the Prime Minister was justiciable. The test that was
applied to test the lawfulness of the advice was, “a decision to prorogue Parliament (or to advise the monarch
to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing,
without reasonable justification, the ability of Parliament to carry out its constitutional functions as a
legislature and as the body responsible for the supervision of the executive. In such a situation, the court
will intervene if the effect is sufficiently serious to justify such an exceptional course.” (paragraph 50)
Though facially it seems to test the validity of the prorogation, in actuality it is a test on the extent of
justiciability of the advice rendered by the Prime Minister. The two-prong test formulated to test the extent of
justiciability of the advice rendered by the Prime Minister is: 1) whether the advice in effect violates a
constitutional principle (violation test)? 2) Whether the violation is reasonably justified (justification test)?
To identify the sub-facets of the test, it is necessary to look at how the test was applied to the given
factual circumstance. The bench rejected the improper motive standard. Therefore, the court did not look
into whether the Prime Minister was motivated to violate the Constitutional principles, but rather looked
into whether the act effected at the violation of Constitutional principles. In this context, the bench observed
that when the house was prorogued for a longer duration- unlike a short prorogation- the constitutional
principles of parliamentary sovereignty and parliamentary accountability are violated.
On the question of justification, the bench referred to the documents that had formed the basis of the
advice, and held that the violation of the constitutional principles was not ‘reasonably justified’. While the
violation test was guided by the ‘effects standard’, the justification test was guided by the
‘proportionality standard’. Though the court did not explicitly refer to the proportionality standard, it
can be inferred by the arguments put forth below.
Establishing the proportionality standard
Firstly, not mere justification but reasonable justification was the test evolved. Therefore, the court did not
regard all justifications to be reasonable justifications. What is then the standard of reasonableness? The
following observations guide us on the court’s standard of reasonableness. In paragraph 60, the bench
observed that “the proposal was careful to ensure that there would be some Parliamentary time both before
and after the European Council meeting on 17th – 18th October. But it does not explain why it was necessary
to curtail what time there would otherwise have been for Brexit related business.” The bench was not
convinced by the reasoning that there would be some time; it asked: “why not the otherwise available time?”
Therefore, the first test that was used by the court under the proportionality standard was whether the
materials had shown relevant reason to authorise the act that had the effect of violating Constitutional
principles- in this case, parliamentary sovereignty and accountability by denying the parliamentarians
the otherwise available time for discussion on the withdrawal agreement.
Another observation by the bench provides further clarity. The court observed that “the Prime Minister’s
wish to end one session of the Parliament and to begin another will normally be enough in itself to justify the
short period of prorogation which has been normal in modern practice. It could only be in unusual
circumstances that any further justification might be necessary” (paragraph 51). The bench here
observed that usually- i.e when a short term prorogation was declared- the wish of the Prime Minister
was a justifiable reason. However, when a long term prorogation under an extraordinary situation was
declared, it would not be justifiable on the wish of the Prime Minister alone; rather,
reasoning proportional to the effect would have to be provided. Therefore, the second test was whether the
relevant reasoning was proportional to the effect. The court observed that the effects of a long term
prorogation in the given extraordinary situation were graver in comparison to the effects of a short term
prorogation, and the court required more convincing reasoning for graver effects.
Lastly, the court in paragraph 60 observed that the reasoning did not differentiate between the process
of recess and prorogation. Thus, the third test that was formulated was whether the least restrictive means
to achieve the objective was used. On perusal of the documents that had formed the basis of the advice, the
objective of the prorogation seemed to be the need to introduce new bills. This objective could have been
fulfilled by imposing a short term prorogation (a lesser restrictive means) which would not violate
Constitutional principles. It is clear, therefore, that the court looked into the materials to find a
reasonable justification, for which it used the proportionality standard.
Summing up, the test for justiciability of aid and advice evolved in Miller is as follows:
1. Whether the act (which was guided by the advice) violates a constitutional principle- in effect?
2. Whether the violation can be reasonably justified through the application of the proportionality
standard?
The proportionality standard applied requires the following tests to be fulfilled:
“(a) Whether the reasoning has relevance to the effect of the use of prerogative power.
(b) Whether the relevant reasoning is proportional to the effect.
(c) Whether the least restrictive, but equally effective means is used to achieve the objective.”
I will now juxtapose Miller’s test with the Indian jurisprudence on aid and advice. Before I make a
comparison, two primary differences between the legal systems of India and UK will have to be
addressed. First, the UK- unlike India- does not have a wri en Constitution. Therefore, Indian legal
jurisprudence is comparatively more ‘formalist’ in nature. Secondly, Article 74(2) of the Indian
Constitution restricts the justiciability of the aid and advice of the Council of Ministers (hereinafter
referred to as ‘CoM’). Despite these two differences, the Indian courts will not face any obstacle in
applying the UK jurisprudence- laid down in Miller- on the subject ma er.
The Indian test on aid and advice
In India, the test on the extent of justiciability of the aid and advice of the CoM/ satisfaction of the
President was laid down in the case of S.R Bommai. It was observed that the bar in Article 74(2) – on the
justiciability of aid and advice rendered – only excludes the questioning of whether there was advice
given, and what advice was given. Further, the court engaged in harmonious construction of Articles
74(2) and 142 and held the materials relied upon by the President for the use of his prerogative power
shall be placed before it.
The extent of judicial review of the materials relied upon was held to be as follows: ‘…the truth or
correctness of the material cannot be questioned by the court nor will it go into the adequacy of the material. It will
also not substitute its opinion for that of the President. Even if some of the material on which the action is
taken is found to be irrelevant, the court would still not interfere so long as there is
some relevant material sustaining the action. The ground of mala fides takes in inter alia situations where the
proclamation is found to be clear case of abuse of power, or what is sometimes called fraud on power- cases where
this power is invoked for achieving oblique ends”. Therefore, unlike the UK jurisprudence, in India, it is
sufficient if the material- and not reasoning in the material- is relevant to the prerogative act. However, the
Court further observed that the ‘legitimacy of the inference drawn from such material’ can be
questioned.
The subsidiary question is how the court could question the legitimacy of the inference drawn from such
material, without questioning the subjective satisfaction of the President/Governor. The Supreme Court
in the case of BP Singhal held that to test the legitimacy drawn from the material, the “reasonable
prudent man’s” test will have to be applied. Therefore, the test in India is as follows:
1. Is there any relevant material to sustainthe action (‘relevancy test’)?

2. Will a ‘reasonable prudent man’- given the material before him- be able to arrive at the same
conclusion on the use of prerogative power as the President/Governor (‘legitimacy test’)?
There are two issues in the Indian jurisprudence on aid and advice. First, the Indian courts- unlike the
UK- focus on the form of the prerogative act instead of its effect. Second, the relevance of the material is
deemed sufficient, with no standard for the reasonable prudent man to decide on the legitimacy of the
inference.
Form and effect of the prerogative act
Let me argue that the reliance of the Indian courts on the form instead of the effect, in practicality permits
the court to analyse the ‘subjective satisfaction’ of the President/ Governor- something that it says it
would not do. Let me explain this through a factual situation. In November 2019, due to the inability of
the party with the maximum members in the legislative assembly but with no simple majority to form
the government in Maharashtra, the governor sent a report to the President that the Government cannot
be formed in accordance with the provisions of the Constitution. Therefore, following the report of the
Governor and the recommendation by the CoM, Presidential rule was imposed, with the legislative
assembly of the State in suspended animation. Immediately, the Shiv Sena filed a petition in the
Supreme Court challenging the imposition of President’s Rule in the State. Let us hypothetically assume
that the petition by Shiv Sena challenges the aid and advice of the cabinet that led to the imposition of
the President’s rule, keeping aside its argument on unequal and insufficient time given to it for the
formation of the government.
Let us presume that the relevancy test has been fulfilled as the court regarded the materials placed
before the President to be relevant to the declaration of Presidential rule (i.e the form). Let me will now
frame the legitimacy test from the perspective of the form and effect of the prerogative act.
1. Through the relevant materials placed before a ‘reasonable prudent man’, would he regard the
reasons justifiableto declare Presidential rule (i.e the form)?
2. Through the relevant material placed before a ‘reasonable prudent man’, would he regard the
reasons proportional to the suspension of parliamentary democracy (i.e the effect)?
There are two issues in the manner in which question A is framed. First, the form, instead of the effect (as
in question B) is regarded as the end. Second, it does not prescribe a standard for the ‘reasonable prudent
man’ to decide on the legitimacy. As a rough analogy one may imagine A being given the task of
choosing the be er of two dolls. In the first circumstance, A is asked to choose the be er doll between
the two, but the dolls are not completely made- they still are in clay form. In the second instance, A is
asked to decide the be er doll between two dolls- the dolls are completed and painted. The decision of A
will be be er guided in the second instance because while he looks at the final effect of the dolls, he has
something concrete to base his decisions upon. Therefore, the subjective analysis of the judges would ease
if the judicial a ention is on the effect instead of the form.
It will not be logically sound for the courts to follow the nexus/relevance test while the effects standard is
put to use. The ‘nexus’ or the ‘relevance’ standard can only be used when the end is an object or a
purpose. When the effects standard is used, it would not ma er if the reasoning only has some nexus
with the effect. Rather, the question is whether the effect is justified – for which the proportionality
standard will have to be put to use.
Summing up, the effects test and proportionality test have been inferred from the decision in Miller. The
Indian jurisprudence on aid and advice, specifically on the determination of legitimacy from the material
placed is explained to be inadequate. The primacy of form of the prerogative act in the Indian
jurisprudence, in comparison to the effect test in the UK has been criticised with the help of an analogy.
Finally, the insufficiency of relying on the relevance of the reason for the effects standard was explained.
The above reasons led to the suggestion of usage of the proportionality standard (along with the three
subsets) to decide the ‘reasonable prudent mans’ legitimacy test.
Proportionality standard and the Presidential rule
Before deciding on the constitutionality of the Presidential rule in Maharashtra by applying the
proportionality, it is necessary to answer a preliminary question that arises – whether on the imposition
of the Presidents rule due to ‘breakdown of the Constitutional machinery’ in a State, there is no
Constitution in existence for the constitutional principle of parliamentary democracy to be suspended?
The argument is that the declaration of the Presidents’ rule in the State does not necessarily mean that
Constitutional principles are abrogated. The jurisprudence of basic structure evolved primarily because
of the existence of certain Constitutional principles are beyond the clutches of majoritarian forces. During
the Presidents’ rule, there might be suspension of the operation of the Constitutional text, but not the
underlying Constitutional principles. However, provisions in the Constitution allow for the suspension
of certain fundamental rights during emergency. The question that then arises is: when fundamental
rights cannot be enforced, how can certain constitutional principles be enforced? For example,
reasonableness that guides the golden triangle (i.e Articles 14, 19 and 21) has been held to be a basic
feature of the Constitution (which is also a constitutional principle). However, the crucial point is that
the operation of Article 356 differentiates between the imposition of Presidential rule for the reason of
secessionist insurgency (eg: Punjab 1980’s) and inability of political party to form the government (eg:
Maharashtra on November 2019). When the Presidents’ rule is declared on the reason of insurgency,
suspension of enforcement of fundamental rights may be made by an executive order. In such cases, the
Constitutional principles guiding the fundamental rights chapter may be suspended but other
Constitutional principles would remain enforceable. While Presidents’ rule is imposed due to the
inability to form the government, all Constitutional principles are enforceable.
Now, let us apply the proportionality standard that was formulated in Miller to the challenge on the
Presidential rule imposed in Maharashtra. Prior to the application of the standard, one would first be
required to identify the objective of the use of prerogative power, the means used to achieve the
objective, and its effect on Constitutional principles. The objective of the imposition of the Presidential
rule was to remedy the breakdown of Constitutional machinery, given that Mr. Devendra Fadnavis –the
acting Chief Minister- had resigned on November 8. The means that was employed to meet the objective,
was the imposition of Presidential rule in the state. The effect of the means used was that parliamentary
democracy was frustrated by limiting the time provided to willing political parties to form the government.
On the application of the proportionality standard to the factual situation of Presidential rules’ in
Maharashtra, the court would have to answer the following sub-tests of the proportionality standard:
first, whether the material relied on has relevant reasoning on denial of time to political parties for forming
the government. The reasoning in the material should not have merely focused on the reasons for the
declaration of Presidential rule, but must have provided specific reasoning on the denial of time sought by
Shiv Sena since it was willing to form the government.
Secondly, whether the relevant reasoning is proportional to the effect. Under this prong, the court should
not se le for the same reasoning for acts that lead to different effects. For example, the reasons for the
declaration of a Presidential rule when political parties express the ability to form the government, must
be different from the reasons when political parties are unable to form the government.
And thirdly, whether the least restrictive, but equally effective means to achieve the objective was used. The
court should test if there are other restrictive but equally effective means to achieve the objective of
remedying the breakdown of Constitutional machinery. While deciding on this test, the court shall keep
in mind the available Constitutional remedies, the resignation of the acting Chief Minister, and the need
to prevent horse-trading.
Indian Jurisprudence on aid and advice, and the proportionality Standard
The closest the Indian courts have come to the UK jurisprudence is when the courts held that
repromulgation of ordinances amounted to malafide use of power, where the power is used to achieve
oblique ends. In Krishna Kumar II, it was observed ‘repromulgation violates parliamentary sovereignty’. In
both D. C Wadhwa and Krishna Kumar II, the court found repromulgation to be manifestly arbitrary that
they did not look into the aid and advice theory jurisprudence. Though there had been references to
the effect on Constitutional principles, the court held repromulgation to be unconstitutional primarily on
the ground of the form– the necessity of placing the ordinances before the house.
However, the Indian courts are not completely unmindful of the proportionality analysis in the realm of
Presidential satisfaction. In B.P Singhal, when the doctrine of pleasure of the President was under
question, it was observed, “where a prima facie case of arbitrariness or malafides is made out, the Court can
require the Union Government to produce records/materials to satisfy itself that the withdrawal of pleasure
was for good and compelling reasons. What will constitute good and compelling reasons would depend
upon the facts of the case.” This is a very similar analysis to that which was taken
in Miller’s decision, provided the court looks at the effect while deciding whether it is a case of malafide
use of power. The ‘good and compelling reason’ test is to be determined by the proportionality standard.
Therefore, the Indian jurisprudence on aid and advice would have to be modified on the lines of Miller,
to prevent inadvertent prejudicial and subjective satisfaction of the judges while deciding on the
satisfaction of the President.
Guest Post: Engineering a Constitutional Crisis

in Maharashtra
22 Friday Nov 2019
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governor, Governors, legislature, sarkaria commission
[This is a guest post by Ziauddin Sherkar (ziawain@yahoo.co.in)]
To avoid the large-scale political arrests of the time, the late Bal Thackeray supported the Emergency
declared by Mrs. Indira Gandhi in 1975. He even refrained from fielding any candidates against Mrs.
Gandhi in her bid to regain supremacy over the Janata Party in the General Elections of 1980. Li le did
he know then that the legislative travails of a well-respected Janata leader Somappa Rayappa Bommai
would come to his party’s aid in their bid to assume power in Maharashtra after 39 years.
Somappa Rayappa Bommai (1924-2007) belonged to that rare crop of Janata politicians who were known
for their idealist convictions in political life. He was instrumental in forming the first non-Congress
government in Karnataka in 1983 with Ramakrishna Hegde as the Chief Minister. The second Hegde
government that returned in 1985 was accused of tapping the phones of opposition leaders that
eventually resulted in the landmark Supreme Court decision of Dr. Subramanian Swamy v. Ramakrishna
Hegde [1990 AIR 113]. Ramkrishna Hegde resigned over the uproar that followed, paving the way for
S.R. Bommai to assume the Chief Ministership of Karnataka on 13 August 1988. Owing to internal
numerical turmoil à la every Janata government ever, the then Governor P. Venkatasubbaiah sent a
report to the President on 20 April 1989 that Bommai had lost confidence of the majority in the house.
He advised the President to exercise his powers under Article 356(1) and issue a proclamation to impose
President’s rule in the state; a request President R. Venkataraman acceded to on that very day. The
Parliament subsequently approved the President’s proclamation under Article 356(3) and Bommai’s
government was dismissed. A 3-judge bench of the Karnataka High Court dismissed Bommai’s writ
petition filed against his government’s dismissal. Along with similar cases from Meghalaya, Rajasthan
Nagaland, Himachal Pradesh and Madhya Pradesh, Bommai’s case travelled right up to the Supreme
Court in the winter of 1993 and on 11 March 1994, the Supreme Court laid down its chef d’oeuvre, the
judgment of S.R. Bommai v. Union of India [(1994) 3 SCC 1] (“Bommai”).
There is no clear scheme in the Constitution that lays down the procedure a Governor may follow in the
post-election process. This is where two judgments Jagdambika Pal v. Union of India [(1999) 9 SCC 95]
(“Jagdambika Pal”) and Rameshwar Prasad (6) v. Union of India [(2006) 2 SCC 1] (“Rameshwar Prasad”)
become important. In Jagdambika Pal’s case, where there were two rival claimant’s to the Chief
Minister’s post, the court ordered the assembly to be convened for one day while expressly directing,
“The only Agenda in the Assembly would be to have a composite floor-test between the contending parties in order
to see which out of the two contesting claimants of Chief Ministership has a majority in the House.” As of 12
November 2019, there are 4 probable contenders vying to form the government in Maharashtra out of
which 1 i.e. Shiv Sena has clearly stated in a petition filed before the SC that it has the in-principle
support of 2 others, the Nationalist Congress Party (“NCP”) and the Indian National Congress (“INC”).
Previously, Governor Bhagat Singh Koshyari gave the Bhartiya Janata Party (“BJP”) 48 hours beginning
from 9 November 2019 to demonstrate its majority. If the SC could issue extraordinary directions to
convene the house for a single day in order to give a chance to rival claimants to prove their majority,
surely the Governor could have followed the same route. Additionally, Articles 163 and 164 read with
Jagdambika Pal’s case would have provided the Governor necessary legal cover to convene the
assembly.
A case more on point is Rameshwar Prasad’s where the President had dissolved the Bihar State
Assembly on the Governor’s recommendation even before the first session of the Assembly could have
been convened. Although the Ministry of Home Affairs Notification dated 12 November, 2019 doesn’t
dissolve the Assembly itself, the Governor of Maharashtra has clearly refused to allow any claimant
prove their majority on the floor of the house. In Rameshwar Prasad’s case, the court struck down the
notification dissolving the state assembly. However, Y.K. Sabharwal J. in the majority judgment held
against the petitioner that the assembly can indeed be dissolved before it is convened for the first time.
The Governor Koshiyari seems to have found common ground with this observation. Owing to the BJP’s
electoral superiority in both the houses of Parliament, confirmation of the President’s proclamation
under Article 356(3) is a mere formality; a formality compulsory for the subsequent dissolution of the
state assembly.
According to the Sarkaria Commission’s recommendations, a Governor must follow the following order
of precedence in invitations to break a logjam in government formation:
1. An alliance of parties that was formed prior to the Elections.

2. The largest single party staking a claim to form the government with the support of others, including
“independents.”
3. A post-electoral coalition of parties, with all the partners in the coalition joining the Government.
4. A post-electoral alliance of parties, with some of the parties in the alliance forming a Government
and the remaining parties, including “independents” supporting the Government from outside.
Of the 4 press releases issued by the Governor since 9 November 2019, none specify if the pre-poll
alliance of BJP and Shiv Sena were jointly invited in order to satisfy the First stage. The individual
invitations to the BJP, Shiv Sena and the NCP would constitute adequate fulfilment of the Second stage,
albeit that yielded no result. Since there is no definite existence of any formal ‘post-electoral coalition’,
the Third stage is automatically ruled out. The Fourth stage is where the smokescreen thickens. It seems
that Governor Koshiyari has chosen to not resort to the last option available to him and has requested
the President to declare that “…a situation has arisen in which the Government of that State cannot be carried
on in accordance with the provisions of the Constitution of India.” The Sarkaria Commission report has a clear
view on this. It states that a political crisis may arise when:
““… after a General Election no party or coalition of parties or groups is able to secure an absolute
majority in the Legislative Assembly, and, despite exploration of all possible alternatives by the
Governor, a situation emerges in which there is complete demonstrated inability to form a
government commanding confidence of the Legislative Assembly.””
‘Complete, demonstrated inability’, being the key-phrase does not pass muster when tested against the
widely available reports of not just the INC and NCP, but also certain Independent MLAs extending
support to the current claimant. The ‘inability’, if at all has not fully been ‘demonstrated’ and is certainly
not ‘complete’. The majority in Rameshwar Prasad’s case did not rule against the Governor because of his
taking into account media reports and private intelligence inputs on horse-trading. It ruled against the
Governor despite his taking into account such inputs. It was irrelevant what the inputs indicated if a
dispensation was willing to demonstrate majority. Even if the Governor of Maharashtra seems intent on
heading in the direction of Arijit Pasayat J.’s dissenting opinion that such inputs could very well dictate
his decisions under Article 356, in the present case the available inputs themselves point towards a
highly probable ‘post-electoral coalition’.
Apart from reiterating the paramount importance of the Sarkaria Commission report Bommai’s case is
unequivocally clear on certain propositions. These propositions have found favourable ground in all
subsequent, related cases.
““…the proper course for testing the strength of the Ministry is holding the test on the floor of the
House. That alone is the constitutionally ordained forum for seeking openly and objectively the
claims and counterclaims in that behalf. The assessment of the strength of the Ministry is not a ma er
of private opinion of any individual, be he the Governor or the President. It is capable of being
demonstrated and ascertained publicly in the House. Hence when such demonstration is possible, it
is not open to bypass it and instead depend upon the subjective satisfaction of the Governor or the
President. Such private assessment is an anathema to the democratic principle, apart from being open
to serious objections of personal mala fides.””
Unfortunately, the physical manifestation of Shiv Sena’s claim was never allowed to materialize on the
floor of the house.
The most obvious critique of the above criticisms of the Governor is that he is under no obligation to
provide the exact time as requested by a claimant. The Shiv Sena requested for three more days i.e. 72
hours on 11 November 2019 in order to prove majority. This request was declined by the Governor.
Time-bound and time-tested constitutional conventions are the hallmark of any Westminster-style
democracy. Are they followed in our country in a manner that the actors involved consider such
conventions to be binding on themselves? This question is simply answered by the fact that the entire
elaborate procedure followed by the Governor in inviting a political party to form a government is not
supported by the set le er of the law but by time-honoured conventions. If such constitutional
conventions were held to be non-existent, formation of most coalition-era state and national
governments after the 1980s would be questionable. Even the SC in S.P. Gupta v. President of India [AIR
1982 SC 149] spoke extensively about such conventions. A single precedent with a good reason may be
enough to establish a convention. In the present case, the Governor himself set the precedent by giving
the BJP 48 hours to prove majority. If not 72 hours as demanded, the Governor could have extended the
same magnanimity towards the current claimants as he did towards the BJP. Nonetheless, if time-limits
of 24 hours for proving majority become precedent, the era of post-poll alliance making in India would
come to a thankful end.
Notes from a Foreign Field: The Hong Kong High

Court’s Judgment on the Right to Protest (with
Face Masks)
18 Monday Nov 2019
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freedom of association, freedom of speech, Hong Kong, proportionality
Earlier this morning, the High Court of Hong Kong handed down an important judgment on the
“balance” between personal liberty and national security. Readers will be aware that for the last few
months, there have been mass public protests in Hong Kong. In response, the Hong Kong government
passed the Prohibition on Face Covering Regulation [“PFCR”] which, as the name suggests, prohibited
protesters in public spaces from wearing face masks to hide their identities. The PFCR was passed under
the authority of the Emergency Regulations Ordinance (ERO), a colonial-era law that allowed sweeping
powers to the Executive in an “Emergency” or during times of “public danger.”
The PFCR was passed on 4th October. It was promptly challenged (along with the ERO). The High Court
heard arguments at the end of October, and handed down its judgment today. The Court struck down
the ERO to the extent of its application during times of “public danger”, while leaving open the question
of whether it was valid for “Emergencies.” The Court went on to hold that the PFCR was an
unconstitutional and disproportionate violation of the freedom of expression of the citizens of Hong
Kong.
In this post, I will discuss both holdings. The striking thing about this judgment is that despite conceding
a high margin of discretion to the Executive, and despite accepting the Executive justification of
maintaining law and order, the Court still found that the indiscriminate and non-targeted nature of the
measure, which failed to distinguish between violent protesters and ordinary citizens, was
disproportionate. As we shall see, this is by no means the judgment of an activist Court, which placed
the claims of personal liberty beyond all question. On the contrary, this was a judgment by a cautious
and deferential Court, which still found the ERO and the PFCR to violate Hong Kong’s Basic Law (the
Constitution). And at the heart of its judgment, as I shall show, was a very simple logic: Constitutions
allow the government to declare states of Emergency, and suspend certain civil rights. If, however, the
government has elected not to declare an Emergency, it is not for the Court to presume their exists one. In
terms of law and constitutionalism, there is no halfway house between Emergency and normalcy, where
– in the absence of an Emergency proclamation – the Court nonetheless adopts a hands-off approach
towards civil rights violations. Rather, if there is no Emergency, then the judicial approach towards civil
rights violations must be one that applies constitutional principles with their full rigour.
The ERO
The ERO was a 1922 law, passed by the colonial British regime. Effectively, it authorised the Chief
Executive in Council [“CEIC”, or “Executive”] to make “regulations” in times of Emergencies or public
danger. These regulations were extremely wide in scope, including powers of censorship, seizure of
property, amendment of laws, trial and punishment, and so on.
The High Court struck down the ERO on seven substantive grounds. Under Hong Kong’s basic law, it
found that the Legislative Council [“LegCo”] was the primary legislative organ. The CEIC’s powers were
limited to accepting or vetoing bills, and passing subordinate legislation. This is, of course, a familiar
arrangement in parliamentary democracies. The Court then made the familiar point that “this
constitutional scheme does not permit the LegCo to grant and the CEIC (or, for that ma er, any other body) to
receive and be vested with what is essentially the LegCo’s own constitutional power and function as the legislature
of the Hong Kong SAR to enact, amend or repeal laws, except for an authorisation of subordinate
legislation.” (paragraph 52)
This, of course, is the “excessive delegation” test known to students of constitutional and administrative
law everywhere. Applying this test, the Court found that the “ERO confers general legislative powers on the
CEIC.” (paragraph 55) This was because:
“… the ERO is not a statute that legislates on a subject ma er in principle leaving another body to
devise the detailed legal norms that elaborate or put flesh on the broad ma ers laid down in the
primary legislation. The long title of the ERO specifies that its object is to confer on the CEIC power
to make regulations on occasions of emergency or public danger. But it gives no shape or direction of
what the regulations that may be made are to be about. For example, the PFCR was enacted under
the ERO not to work out and fill in the details for certain broad norms established by primary
legislation, but as the very first piece of legislation in Hong Kong that has anything to do about face
covering. This is fundamentally different from one’s ordinary conception of subordinate legislation.
(paragraph 56)”
Next, the Court found that the scope of the power delegated to the CEIC was extremely broad – to make
“any regulations whatsoever” that it considered to be in the public interest. Thirdly, the powers could be
invoked “on any occasion” when the CEIC was satisfied that there existed an emergency or public
danger – neither of which were defined in the statute. In other words, such wide power was accorded to
the Executive, that it was virtually unconfined – effectively (as the Court noted) it could never be argued
that the Executive was going beyond the authority conferred by the Legislature, as the authority itself
had no boundaries. Not only that, but the ERO actually authorised the CEIC to amend existing legislation
– i.e., it conferred – in so many terms – legislative power upon the executive (the Court’s fourth point).
Furthermore, the powers of punishment conferred upon the Executive went beyond what was
authorised in primary legislation (fifth); and there was no time limit upon the “validity and force of the
regulations made under the ERO, nor any mechanism for constant review” (paragraph 68) (sixth).The power of
“negative ve ing” was held not to be a substantial check on the executive (seventh).
Drawing upon insights from comparative law, the High Court therefore concluded that:
““…the ERO, once invoked, seems to us to create in Hong Kong a separate source of laws that are
primary legislation in all but name, but which are not made by the legislature in accordance with
legal procedures (Art 73(1)) or reported to NPCSC (Art 17), and are not subjected to the scrutiny
concomitant with the normal legislative process. Whenever the CEIC considers an occasion falling
within the ERO has arisen, the CEIC becomes a legislature.” (paragraph 80)”
This was evidently unconstitutional. And in response to the government’s argument that there were
times that necessitated “swift and decisive action”, the High Court made the crucial observation that “the
need for an urgent response is no justification for departing from or impugning the constitutional
scheme.” (paragraph 95)
The PFCR
Let us now come to the prohibition of face coverings in public spaces. The PFCR prohibited the use of
“facial covering that is likely to prevent identification” while a person was at an unlawful assembly, an
unauthorised assembly, or even an authorised or lawful assembly (see paragraphs 25 – 29 for an
explanation of these terms in Hong Kong law). It was common cause between the parties that the PFCR
restricted the freedom of speech, assembly, and privacy. It was also common cause that the
constitutional validity of the restrictions was to be determined according to the proportionality standard:
““…(1) does the measure pursue a legitimate aim; (2) if so, is it rationally connected with advancing
that aim; (3) whether the measure is no more than reasonably necessary for that purpose; and
(4) whether a reasonable balance has been struck between the societal benefits promoted and the
inroads made into the protected rights, asking in particular whether pursuit of the societal interest
results in an unacceptably harsh burden on the individual.””
The government argued that the goal of the prohibition was “(i) deterrence and elimination of the
emboldening effect for those who may otherwise, with the advantage of facial covering, break the law, and
(ii) facilitation of law enforcement, investigation and prosecution.” (paragraph 130) The question then arose:
why was the measure blanket in nature, targeting both potential law-breakers as well as legitimate
public protesters? To this, the government argued – on the first count (deterrence) – that “those protesters
who are not prepared to break the law may comply with the PFCR and this would generally result in lessening the
support for the more radical and violent protesters”; that “masked protesters mix themselves into larger groups
and instigate violence and vandalism“; that “non-radical protesters will be less likely to be influenced by or emulate
their violent peers and will think twice before emulating them when they know their identity is not concealed“; that
“the PFCR can act as an effective deterrent against at least some students from wearing masks when joining a
protest (lawful or unlawful), which thereby substantially reduces the chance that they will be induced to break the
law.” (paragraph 133) On the second count (law enforcement), the government argued that protesters
were using “black bloc” tactics (i.e., appearing in indistinguishable groups and wearing similar
clothing), which made specific and targeted identification difficult. A prohibition on face covering would
facilitate the police in being able to identify which of the protesters were acting unlawfully.
The government’s arguments will sound eerily familiar to those following the litigation around the
communications lockdown in Kashmir. In both cases, the State’s primary justifications for blanket
restrictions is (i) targeting is impossible, and (ii) the bad guys will mingle with and influence the
innocent guys, and so we have to restrict everyone’s freedom. The only difference is that the Hong Kong
government’s arguments before the Court at least sounded more sophisticated and plausible than the
Indian government’s ham-fisted “terrorists use mobile phones” justification.
How did the Court engage with this argument? The first thing to note is that it did not deny that there
existed an ongoing law and order situation in Hong Kong. In paragraph 132, it observed that:
““… there is evidence before us of the enormity of the damage and danger created by some of the
protesters. In the few months leading to 4 October 2019, Hong Kong has witnessed numerous
instances where certain protesters charged police cordon lines with weapons, blocked public roads
and tunnels with a variety of large and heavy objects, a acked drivers who voiced complaints at such
blockades, vandalised public facilities and buildings, burned public property, hurled inflammable
liquid bombs at the police and at and inside Mass Transit Railway stations, damaged shopping malls,
shops, banks and restaurants (with reports of looting and theft in some of the damaged shops),
damaged residential quarters of the disciplined forces, crippled the operations of transport
infrastructure, and harassed and a acked ordinary citizens holding different political views. These
acts of violence and vandalism had increased in intensity and frequency, with the incidents on
1 October 2019 being especially serious. The more violent protesters were often all suited up and
masked by facial covering such as surgical masks, balaclavas and gas masks which concealed their
identity.””
Along with these facts, the Court also conceded that the government had to be given a “wide margin of
discretion”, and that the necessity prong within the proportionality standard required only that the
government’s action was “reasonably necessary.” Now within this framework, how did the Court apply
the proportionality standard? It began by noting that “some participants in demonstrations may wish to wear
facial covering for legitimate reasons, such as to avoid retribution.” (paragraph 148) Consequently, the
restriction on freedom was not minor or trivial, but a serious one. By contrast:
“… the effect of s 3(1)(b), (c) or (d) is to impose a near-blanket prohibition against the wearing of
facial covering by the participants, without any mechanism for a case-by-case evaluation or
assessment of the risk of any specific gathering developing or turning into a violent one such as
would make it desirable or necessary to impose the prohibition in relation to that gathering only.
(paragraph 155)”
Furthermore:
“It is not clearly stated whether, to be caught by the prohibition, the person must be a participant in
the relevant gathering, or whether it suffices for that person to be merely present at the gathering, eg
a person who goes to the scene for the purpose of taking photographs, or giving first-aid to persons
in need of help, or even a mere passer-by who has stopped to observe the gathering. (paragraph
156)”
This was, thus, prima facie evidence of over-breadth and disproportionality. What of the government’s
argument that it was the only way to prevent violence? The Court noted in response that “the evidence
before us is far from clear that the PFCR has achieved to any substantial degree the intended aims of deterrence and
elimination of the emboldening effect for those who may otherwise, with the advantage of facial covering, break the
law, or facilitation of law enforcement, investigation and prosecution.” (paragraph 164) In other words, under
the proportionality standard, the burden was upon the government to justify its rights-infringing
measures on the touchstone of necessity and proportionality, with evidence (and not in a sealed cover).
And the Court was unimpressed by the government’s exhortations of public danger, noting that “even in
these challenging times, and particularly in these challenging times, the court must continue to adhere to and
decide cases strictly in accordance with established legal principles.” (paragraph 165) Thus:
“… having regard to the reach of the impugned restrictions to perfectly lawful and peaceful public
gatherings, the width of the restrictions affecting public gatherings for whatever causes, the lack of
clarity as regards the application of the restrictions to persons present at the public gathering other
than as participants, the breadth of the prohibition against the use of facial covering of any type and
worn for whatever reasons, the absence of any mechanism for a case-by-case evaluation or
assessment of the risk of violence or crimes such as would justify the application of the restrictions,
the lack of robust evidence on the effectiveness of the measure, and lastly the importance that the law
a aches to the freedom of expression, freedom of assembly, procession and demonstration, and the
right to privacy, we do not consider the restrictions of rights imposed by s 3(1)(b), (c) and (d) to be
proportionate to the legitimate aims sought to be achieved by the imposition of those restrictions.
(paragraph 166)”
Thus, except insofar as it applied to unlawful gatherings, the prohibition was struck down. The Court
used similar analysis to strike down Section 5, which empowered “a police officer to stop any person in any
public place who is using a facial covering and to require that person to remove it so that his or her identity may be
verified, if the officer reasonably believes the facial covering is likely to prevent identification.” The Court held
that its indiscriminate character (“no limitations as to circumstances or period”) violated the
proportionality standard.
Conclusion
The Hong Kong High Court’s judgment is a shot in the arm for civil rights. It demonstrates that even in
the time of the proverbial “clash of arms”, courts can ensure that the laws are not silent. A few salient
features of the analysis stand out. First, the High Court took seriously the indiscriminate and blanket
nature of the prohibition, which failed to distinguish between criminals, and those who were lawfully
exercising their constitutional rights to demonstrate and protest. This was perhaps the most damning
feature of the government’s measure. Secondly, the government’s efforts to justify this fell flat. In
particular, given that the restriction was blanket and indiscriminate, the onus was on the government to
show that there was no other way to achieve the goals of law and order – and to show this with
evidence. Unsurprisingly, the government failed, because there was no evidence. And lastly, the Court
thoroughly rebuffed the government’s efforts to immunise its actions by making claims about the law
and order situation. The Court’s approach to this issue can be summed up in paragraph 108:
In times of a public emergency officially proclaimed and in accordance with the other
requirements of s 5 of the HKBORO, measures may be adopted under the ERO which derogate
from the Bill of Rights (even so, excepting the specified non-derogable provisions and
discrimination on the prohibited grounds). Subject to the conditions of s 5 (including that the
derogations are limited to those strictly required by the exigencies of the situation), this may have
the effect of temporarily suspending the relevant human rights norms.
In other situations, measures adopted under the ERO may not derogate from the Bill of Rights,
which means that if any such measure has the effect of restricting fundamental rights, then like
any other restriction in normal times, it has to satisfy the twin requirements that the restriction is
prescribed by law and meets the proportionality test.
The important of this observation cannot be understated. What the Hong Kong government was trying
to do in this case – and indeed, what the Indian government is trying to do in the Kashmir litigation – is
to create a third, midway category of (what is effectively) a “permanent, undeclared Emergency.” For
political reasons, the government is wary of formally declaring an Emergency and suspending civil
rights. But by repeated invocations of “law and order” and “security”, it is a empting to persuade the
Court to act as if the situation is one of Emergency, and thereby, adopt the “judicial hands-off” approach”
that it would be compelled to do if there was an Emergency. Paragraph 108 of the Hong Kong High
Court’s judgment refutes this disingenuous and dangerous argument: it makes it clear that if there is no
Emergency, then the restriction on civil rights must be judicially examined as “in normal times”, and the
usual doctrines of reasonableness and proportionality applied. And as we have seen, proportionality
takes a particularly dim view of blanket and indiscriminate restrictions (which are in effect, if not in
form, Emergency-style suspension of rights – if everyone is prohibited from exercising a certain right,
then it is hardly deniable that that right has been suspended for the relevant territory altogether). Such
measures, therefore, must almost always be struck down as disproportionate.
It remains to be seen whether the excellent judgment of the Hong Kong High Court will be followed
elsewhere, where governments make similar arguments to deny civil rights to their citizens.
“A little brief authority”: Chief Justice Ranjan Gogoi

and the Rise of the Executive Court
17 Sunday Nov 2019
P G B T J
≈ ₃₀ C
Tags
ranjan gogoi
Ranjan Gogoi is no longer the Chief Justice of India.
There is much to write about today. But this post will follow precedent (unlike some of the major
judgments delivered during the ex-Chief Justice’s tenure) and – like last year – focus on the law. I will
not, therefore, discuss the sexual harassment allegations of April/May 2019, although they constitute an
important part of the ex-Chief Justice’s legacy (discussed here, here, here, here, and here). I will not
discuss the opacity of the Collegium or what was done to Justice Akil Kureshi, where a judge seemingly
not considered “fit” to be Chief Justice of the Madhya Pradesh High Court was re-assigned to the
Tripura High Court (see here). I will not discuss the time that the ex-Chief Justice told the lawyers of a
man who had been jailed for satirical speech that “jail is the safest place for you“; or the time that he told
the lawyers of a woman asking for her Article 19(1)(d) rights that “Srinagar is a cold place, why do you want
to move around?” What these remarks say about the ex-Chief Justice’s a itude towards constitutional
rights can be left to individual judgment. I will not discuss the prioritisation of cases – how, ostensibly, a
“land dispute” was somehow heard by a Constitution Bench of five judges and fast-tracked, while civil
rights claims connected to the lock-down in Kashmir went unheard because a Court of thirty-three
judges – according to the ex-Chief Justice – “had no time.” And I will not discuss the problematic
manner in which the ex-Chief Justice, while still the Chief Justice, defended his NRC orders in a public
event, in the interests of “development.”
Interested readers can consult this piece, which discusses some of these issues in detail, and what they
mean both for the ex-Chief Justice’s legacy and for the institutional credibility of the Supreme Court.
Here, I will consider some of the important judgments and orders delivered by the ex-Chief Justice,
during his tenure. My assessment will be simple: ex-Chief Justice Gogoi oversaw a drift from a Rights
Court to an Executive Court. That is, under his tenure, the Supreme Court has gone from an institution
that – for all its patchy history – was at least formally commi ed to the protection of individual rights as
its primary task, to an institution that speaks the language of the executive, and has become
indistinguishable from the executive. The “Executive Court” is visible in the ex-Chief Justice’s
substantive adjudication [e.g., the NRC case and the Voice Samples case], in his penchant for procedural
opacity [e.g., sealed covers], in his contempt for the Evidence Act [e.g., Rafale], in his treatment of
fundamental rights as charity rather than entitlements [habeas corpus petitions], and in his judicial
rhetoric.
The NRC Case
The starting point of any discussion about the ex-Chief Justice has to be the urgent – almost messianic –
manner in which he drove the NRC process (even from before the time he became Chief Justice). Recall
that the National Register of Citizens is a state-wide administrative process in Assam, aimed at creating
a list of Indian citizens. The creation of the National Register of Citizens flows from – and is linked to –
the Assam Accord, and subsequent amendments to the Citizenship Act. As indicated above, the NRC
was always meant to be an administrative process – implemented by the government and executed by the
bureaucracy. In 2014, however, acting under expansive PIL powers, the ex-Chief Justice – si ing with
Nariman J. – effectively took over the entire process. Formally, it was Supreme Court “oversight” over
the preparation of the NRC; effectively – as soon became evident – there was li le difference between
“oversight” and “control”.
Why was this a problem? I have discussed some of the issues in detail (see here, here, here, and here),
and here I will summarise them. The NRC process wasn’t just any ordinary administrative process. It
affected citizenship – the underlying basis of all other rights, the right to have rights. While the NRC
itself would not deprive an individual of citizenship, exclusion from that list would severely prejudice
people’s cases before the Foreigners Tribunals, which they would subsequently be hauled up before.
Now with consequences as serious as this, one would expect the full panoply of constitutional
safeguards to apply, with heightened rigour. And under our constitutional scheme, one of the most
crucial safeguards is the separation of powers and judicial review. The executive implements policy, and
if – in the process – it violates individual rights, the courts exist to test executive action on the touchstone
of the Constitution.
The Supreme Court’s takeover of the NRC process effectively amounted to taking a knife and slashing
right through this constitutional fabric. In consultation with the State Coordinator, it was the Court that
was determining how the process was to be conducted, what the deadlines were, what documents were
admissible, and so on. And because the Court had taken over the Executive’s task, there was no place
where aggrieved people could go, if they felt that their rights were being violated; after all, whom do
you appeal to from an order of the Court, apart from the Court itself?
This is not an abstract, theoretical concern. To take just one example: the use of the “family tree” method
to determine citizenship was found to disproportionately disadvantage rural women, who had greater
difficulty in accessing – and producing – the documents that it required. In an ordinary situation – that
is, if this had been pure executive action – this could have been challenged before the courts on grounds
of Articles 14 and 15, and struck down. But because the modalities of the NRC themselves arose from
(often closed-doors) consultations between the Supreme Court and the NRC Coordinator, that entire set
of remedies was blocked off. Examples of this kind abound; the situation, in effect, was like the poem
from Alice in Wonderland: “I’ll be judge, I’ll be jury”/ said cunning old Fury:/ “I’ll try the whole cause,/and
sentence you to death.“
“Death” is not a euphemism here. People died because of the NRC. People died when the Court insisted
on unachievable deadlines for publishing draft NRCs (to the extent that even the State – the actual
Executive – asked for more time, and was denied). People died at the time of the publication of the final
list, another accelerated process in which the government’s requests for an extension were shot down.
Things came to stage where Genocide Watch issued a warning around the time of the final List – a rare
time in history where judicial actions in a functioning democracy have led to a genocide warning. In
another world, this would be a moment where a constitutional Court would be asked to step in and
protect rights; but a world where the Court had become the perpetrator was a world long turned upside-
down.
The problems were not limited to the ex-Chief Justice’s substantive role in the NRC process. The
problems extended to process; they featured opaque proceedings where affected parties were not heard,
and decisions were taken on the basis of “power point presentations” made by the State Coordinator to
the Court. And they were taken on the basis of evidence in sealed covers – a point that brings us to our
next issue.
Sealed Covers
Right from the beginning, the ex-Chief Justice’s tenure was marked by secrecy, opacity, and the
ubiquitous use of “sealed covers” (see here, here, and here). The NRC case was marked by sealed covers.
The Rafale dispute was marked by sealed covers. The Alok Verma litigation was marked by sealed
covers. Sealed covers popped up in the one hearing that happened on the issue of electoral bonds, and
they popped up – bizarrely – in the litigation around the Prime Minister’s biopic before the election.
I will, again, sum up an argument that I have made in detail in the posts above. Sealed covers are the
absolute antithesis of open justice, one of the fundamental principles underlying the judicial system. The
reason for this is simple: Courts have to give reasons for their judgments. Citizens are entitled to assess
the strength of these reasons, as part of the framework of democratic accountability over courts. If,
however, the evidence on the basis of which judgments are delivered is kept hidden, then any kind of
scrutiny is nothing more than whistling in the dark. If I do not know why the Court has come to the
conclusion it has, I simply cannot make up my own mind about the merits of what it has done. In such a
situation, the Courts become li le more than pe y autocrats: their judgments are upheld only by virtue
of their institutional power, and not on the strength of their reasoning. That is not how democracy
works.
The ex-Chief Justice’s penchant for sealed covers suggests another way in which the Supreme Court has
transitioned to the Executive Court. Secrecy is the hallmark of the executive: we all acknowledge that
there are certain kinds of executive action that cannot be disclosed, as that would defeat the entire
purpose: war plans, for example, or complex trade negotiations. The crucial distinction, however, is that
whereas executive legitimacy for these actions comes from popular elections, judicial legitimacy comes
from open and public reason-giving. Apart from certain exceptional situations, therefore (such as two
corporations litigating over commercially sensitive information, or where other rights are at stake, such
as the privacy of sexual assault survivors), the Court simply cannot justify withholding information in
sealed covers – and certainly not in public law cases involving fundamental rights – as that defeats the
very purpose of having an independent judiciary in a democratic system. As I have argued earlier, if the
Court feels that certain information is sensitive because it pertains to national security, then the answer
is for it to decline to hear the case at all (insofar as it pertains to that information), on the basis that it is
not institutionally legitimate to intervene. But the Court cannot have it both ways (as it did in Rafale): it
cannot both hear the case, but also hear it on the basis of secret material, and then pass judgment based
on that secret material, so that nobody is in a position to understand or examine what it has done. That
behaviour is more reminiscent of the Star Chamber.
And it is important to note that what the Supreme Court does has ripple effects throughout the entire
legal system. On more than one occasion in the last few months, for example, the Delhi High Court has
upheld bans on organisations on the basis of evidence in sealed covers, which even the
organisation’s lawyers were not allowed to see. In other words, people have been deprived of their
fundamental rights to assembly and association on the basis of evidence that they could not see and
could not contest. It is difficult to see how this kind of kangaroo-Court behaviour could have gone on,
had not the sealed cover practice received the direct behaviour of the ex-Chief Justice.
Contempt for the Evidence Act
If “sealed covers” represented one significant departure from the judicial process and towards executive
process, the ex-Chief Justice’s bizarre approach to evidence in the Rafale case represented another (see
here). During the hearing of the PIL petitions challenging the Rafale deal, the ex-Chief Justice
“summoned” Air Force officials to Court to “interact” with them. It was then reported that the bench
had an “oral” interaction with the Air Force officials, questioning them and hearing their answers.
But this doesn’t just take a knife to the Evidence Act, it takes a lighter and sets fire to it. One of the
cornerstones of our legal system is the adversarial process: truth emerges out of a contest between rival
views and competing evidence, and the foundation of that contest lies in procedures such as cross-
examination. Ordinarily, it is only after the other side has had a chance to put testimony to the test,
through cross-examination, that it can be given the status of “evidence”, and can be relied upon by the
courts. And the procedure through which this happens is set out in detail in the Evidence Act.
Once again, therefore, the ex-Chief Justice acted as if the obligations that apply to legal proceedings – to
clearly follow the law, and to provide legal explanations if one is departing from ordinary process –
simply didn’t exist for him. Laws and processes were for lesser mortals – and lesser judges, presumably;
the ex-Chief Justice, however, could simply call people to his Court, “interact” with them,
and that would become “evidence.” We may call this “Humpty Dumpty jurisprudence”:
““When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose
it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words
mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—
that’s all.””
Which, of course, is reminiscent of an imperial Executive, and not a constitutional Court bound by the
rule of law.
Habeas Corpus
After the events of the 5th of August in the State of Jammu and Kashmir (that have been discussed
extensively on this blog), a clutch of petitions were filed in the Supreme Court. One set of petitions
involved claims to habeas corpus: relatives and friends of individuals in Kashmir claimed that they had
been unlawfully detained, and requested the Court to intervene.
Habeas corpus is a simple thing. No really, it is. It literally means “produce the body.” All the Court has to
do is to ask the government to bring the detained person, and legally justify the detention. And habeas
corpus – as just about everyone agrees – is one of the most foundational rights that individuals have
against arbitrary State power.
What did the ex-Chief Justice do when these habeas corpus petitions came before him? Let us take the case
of J&K MLA Yusuf Tarigami. His party chief, Sitaram Yechury, filed a habeas corpus for Tarigami to be
produced, and his detention explained. After hearing the petition, the ex-Chief Justice “allowed”
Yechury to “travel” to J&K to “meet” Tarigami, and then “report back” to the Court – on the condition
that he could only travel for this purpose, and could not engage in any “political activities” while there.
Where does one even begin with the extraordinary perversity of all of this? Article 19(1)(d) guarantees to
all citizens the freedom of movement within the territory of India. J&K is a part of India (is it not?).
Yechury is an Indian citizen (is he not?). There was no Emergency declared in J&K, so Article 19(1)(d)
had not been suspended (in fact, the government to this day insists that everything is “normal”). If at all
Yechury’s movements could be restricted, it could only be on the basis of a “law” that met the test of
reasonableness under Article 19(4). So where on earth did the Supreme Court get the idea that it had any
power or authority to “allow” Yechury to travel to J&K, and place “conditions” on what he could or
could not do when he was there? Where in the Constitution were these “conditions” sourced from? Was
the ex-Chief Justice the head of the Supreme Court or the head of the Supreme Internal Visa Issuing
Authority of India? And what happened to the right to habeas corpus? Had it been erased from Article 21
by this newly-minted Supreme Internal Visa Issuing Authority of India? As A.G. Noorani would point
out a few weeks later, “the Gogoi court has, at reckless speed, run a coach and four through the centuries-old
established law on habeas corpus.”
Needless to say, the ex-Chief Justice refused to provide any reasons for any of this. No reasons for what
was done to habeas corpus, no reason for the extraordinary order that made fundamental rights
subservient to the whims and fancies of the Court without even an effort to locate them in the
Constitution, no reason for anything. This was a Court – and a Chief Justice – that had liberated itself
from that annoying li le thing called the Constitution. Aut Caesar, aut nihil.
Judicial Evasion and Electoral Democracy
For a Chief Justice that was willing to sit five days a week and after court hours to ensure that the
Ayodhya case was decided, the ex-Chief Justice showed a surprising degree of reticence when it came to
cases that go to the heart of our electoral democracy. At the head of the queue was the electoral bonds
challenge. Recall that the electoral bonds law allows for limitless, anonymous corporate donations to political
parties (see here). A challenge to the law has been pending from before the ex-Chief Justice became the
Chief Justice, and has remained pending for the entire thirteen months of his tenure; during this time,
multiple elections have taken place, and multiple cycles of electoral bond-buying has happened (for the
staggering figures – all anonymous – see here: 6128 crores, out of which a majority has gone to the ruling
party, because of the structural asymmetry within the scheme that benefits the ruling incumbent –
whoever that might be).
When the case came up for hearing before the Lok Sabha elections, the Chief Justice after hearing it for a
while, noted that the “weighty issues … would require an in-depth 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.” He then ordered that the details of the funding be given to the Election Commission
in a sealed cover (again!), and by 30th May.
There is only one way to describe this order: judicial trolling. At this point, the case had been pending for
over a year. To say that there was “limited time” to hear and decide it somehow implied that the
petitioners had been sleeping all this while, and had only run to the Court on the eve of the Lok Sabha
elections. And besides, as the Brexit hearing recently showed us, if a Constitutional Court really needs to
hear and decide a crucial case within a limited period of time, it is perfectly capable of doing so –
and writing a reasoned judgment to boot.
What, then, was the aftermath? 30th May came and went. Presumably, details were filed in a sealed
cover. And the case has sunk without a trace. Another set of state elections have come and gone, in
which electoral bonds were used – and the Court is yet to hear it. This is, as I have pointed out before,
classic “judicial evasion”: the Court effectively decides a case by not deciding it, because the status quo so
obviously favours one party (most times, the government) (see here and here).
Slouching towards the Executive: The Voice Samples Case
This post would be incomplete before highlighting one final – extraordinary – judgment of the ex-Chief
Justice (no, not Ayodhya). In August, the ex-Chief Justice headed a bench that found that the mandatory
taking of voice samples during interrogation of accused persons was not covered by any statute. Now,
this should have been the end of the ma er: if there’s no statutory authority for taking voice samples – a
process that undeniably infringes the right to privacy at the threshold (whether it is a justified
infringement is another ma er) – then voice samples can’t be taken. Simple. The legislature has to
amend the CrPC to allow it, and the amendment can be tested before the courts on constitutional
grounds.
The ex-Chief Justice, however, invoked Article 142 of the Constitution to judicially authorise the
mandatory taking of voice samples. As I pointed out at the time, this was u erly flawed and profoundly
dangerous (see here). Because once again, the Court was running roughshod over the most basic
structural principles of the Constitution: instead of the normal route where laws are passed that prima
facie infringe rights, and then are tested before the Courts, the Court was itself legitimising a rights-
infringing procedure before even it had been legislated, or even argued on merits before it! And this indeed was
the apotheosis of the Executive Court: judging a case, making law, and implementing it, all at once, in
service of an amorphous public interest that remains forever undefined.
Conclusion: At the Crossroads
I have not, in this post, examined the Constitution Bench cases that have been delivered this week
(although I have analysed them in separate blog posts). The RTI and the Tribunals judgments are regular
judgments, analysed under regular legal frameworks. If this was all that the ex-Chief Justice’s tenure
consisted of, then there would have been no need to write this post today.
Nor have I analysed the odd “review” judgment in the Sabarimala Case, judicial evasion and the strange
final order in the Alok Verma case (see here), or the “balanced” order that never was in the Karnataka
MLAs’ defection case (see here). These are issues that will probably occupy political scientists in the
years to come. This post, on the other hand, has a empted to show that the dominant tone of the ex-
Chief Justice’s tenure has been marked by a series of extraordinary judgments that fall within a coherent
pa ern: the rise and rise of the Executive Court.
I should be clear that this is not an issue pertaining solely to the ex-Chief Justice. It is not just Court No. 1
on Bhagwan Das Road that does this; the issue is a structural one, affecting courts across the board (see
here). This has been accompanied by the Courts resiling from core functions such as policing the bounds
of electoral democracy. Electoral bonds is the most glaring example, but the rejection of totaliser
machines (that guarantee voter anonymity and protect the secret ballot) and the VVPAT issue are others
(see here).
But it is important to focus on the ex-Chief Justice and his Court, for two reasons. First, as I have
indicated, there is a ripple effect that flows from what the Supreme Court does – especially in high-
profile cases that invariably end up in Court No. 1 – to other courts. And secondly, as the above analysis
should demonstrate, in the ex-Chief Justice’s tenure, the Executive Court has come to the fore in a
particularly concentrated form: taking over large-scale administrative exercises, sealed covers,
undermining of evidentiary rules, disregard of constitutional rights, the abuse of Article 142 – all of this,
and more, has defined the last thirteen months.
This leads to two conclusions. The first concerns those who study, write, and speak about the Supreme
Court. For many years, there has been an established model to study constitutional courts in democratic
republics (especially courts vested with the power of judicial review): as counter-majoritarian
institutions (that may sometimes succeed but often fail to check majoritarian impulses), as (imperfect but
important) protectors of rights, and as institutions that, at the end of the day, are built on a process of
open and public reasoning and deliberations. Under the ex-Chief Justice, though, I would suggest that
the Court has departed so far from these fundamental principles, that it is unrecognisable as a “Court”
under the classical model. To continue to act as if it was, then, would be to make a category mistake. And
this is why I have used the term “Executive Court”: the trappings remain, but the substance is radically
different.
The second, of course, concerns the Court itself. We stand at a crossroads, and there is a clear choice that
faces the Court. It may keep walking down the road it has chosen in recent times (and there is a
continuity between the tenure of the last-but-one Chief Justice and that of the ex-Chief Justice, but that is
a discussion for another day). It may carry on with the disastrous management of the NRC, continue
with sealed covers, keep acting as if habeas corpus is a weird Latin term with no relevance to India in
2019, keep evading crucial constitutional cases where status quo benefits the government, and double
down on Article 142. It may keep doing that, and soon there will be li le left to call a “Court” in a true
sense.
Or, it may remember once again Patanjali Sastri J.’s words – back in the days when the government
actually lost some constitutional cases when it ma ered – that the role of the Court is that of “a sentinel
on the qui vive.” It may recall Justice Khanna’s admonition, that “the history of personal liberty is largely
the history of insistence upon procedure.” And it may recover its classic role as the counter-majoritarian
institution that stands between the individual and unaccountable, arbitrary State power.
The choice has never been clearer. And the jury, as they say, is out.
The RTI Judgment: On Proportionality
15 Friday Nov 2019
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proportionality, Right to Information
[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme
Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice
in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will
remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material
change in circumstances.]
Elsewhere, I have analysed the recent judgment of the Supreme Court, holding that the Right to
Information Act applies to information held by the Office of the Chief Justice of India. In this post, I want
to briefly flag an issue that cropped up in each of the three opinions in the case: applying the doctrine of
proportionality to a case of balancing rights.
Recall that the Majority Opinion holds that under Sections 8 and 11, the right to privacy must be
“balanced” against the “public interest” in disclosure. In paragraph 88, the Court observes that this
balance is achieved through an application of the proportionality standard, drawn from Pu aswamy. The
Majority Opinion applies the proportionality standard to highlight – for example – the “nature and
type” of information as relevant indicative factors for the Public Information Officer to consider when
deciding whether or not to provide the information. In his Concurring Opinion, Ramana J does
something similar, noting that “the contextual balancing involves ‘proportionality test’. [See K S Pu aswamy v.
Union of India, (2017) 10 SCC 1]. The test is to see whether the release of information would be necessary, depends
on the information seeker showing the ‘pressing social need’ or ‘compelling requirement for upholding the
democratic values’.” (paragraph 41)
There is, however, a slight problem with this form of analysis. The proportionality standard in the
context of privacy violations, as developed in Pu aswamy, is applicable against the State. It consists of a
four-pronged test that is applies to decide whether rights-infringing State action is constitutionally valid
or not. The “balancing” in this case, however, is not between State goals and the right to privacy. Rather,
it is between two rights: the right to privacy and the right to information (which, in social terms, becomes
the “public interest” in disclosure of information).
The proportionality standard sits uneasily with the second situation. To see why, consider for example
the “necessity” prong of the test. Necessity requires that the infringing law be the “least restrictive”
alternative; in other words, the infringement of rights must be to the least degree that is consistent with
achieving the State’s goals. That makes perfect sense when you are considering State action; however,
how do you apply that when you have to balance two rights against each other? Both the parties in this
case have normative claims against each other, founded in rights. So you cannot simply ask, for example,
is this claim to information the “least” amount that can be asked for in order to satisfy the claimant’s
purpose? Consequently, without a clearer anchor, the invocation of the proportionality standard in the
Majority Opinion and in Ramana J.’s concurrence, can end up becoming a shield for arbitrary and ad
hoc “balancing of interests” by Public Information Officers.
The issue is addressed to an extent in the concurring opinion of Chandrachud J. In paragraph 89, he
observes that:
“It is also crucial for the standard of proportionality to be applied to ensure that neither right is
restricted to a greater extent than necessary to fulfil the legitimate interest of the countervailing
interest in question.”
Chandrachud J. provides greater clarity in paragraph 111, where he quotes the opinion of Baroness Hale
in Campbell v MGN Ltd. In that case, Baroness Hale noted that:
“The application of the proportionality test is more straightforward when only one Convention right
is in play: the question then is whether the private right claimed offers sufficient justification for the
degree of interference with the fundamental right. It is much less straightforward when two
Convention rights are in play, and the proportionality of interfering with one has to be balanced
against the proportionality of restricting the other. As each is a fundamental right, there is evidently
a ―pressing social need to protect it … this involves looking first at the comparative importance of
the actual rights being claimed in the individual case; then at the justifications for interfering with or
restricting each of those rights; and applying the proportionality test to each.”
Chandrachud J. interprets this to mean:
“As observed by Baroness Hale, both the right to privacy and the right to information are legitimate
aims. In applying the principle of proportionality, the Information Officer must ensure that the
abridgement of a right is not disproportionate to the legitimate aim sought to be achieved by
enforcing the countervailing right. (paragraph 112)”
In practice, therefore, this would appear to be a two-step test. First, you apply a proportionality analysis
to the question of the infringement of privacy occasioned by the demand for information. You identify
the policy underlying the la er, treat that as the “legitimate aim” under the proportionality framework,
and then apply the four-pronged test (including the necessity/least restrictive alternative prong). Then,
you flip it around, and repeat the same process – but this time, the right is the right to
information/freedom of expression, and the “legitimate aim” is the policy underlying the protection of
privacy.
It may be conceptually possible that the PIO might find that the “right” to privacy is being
disproportionately infringed by the claim to information, but also that the freedom of expression is
disproportionately infringed if the information isn’t disclosed. Such a clash is unlikely to happen in
practice, though; it might, however, demonstrate a need for the actual analysis to be done in one step (in
the “balancing” form outlined above – or a more refined variant of how earlier Indian cases have done it:
simply by asking which of the two rights in this case would serve “greater” public interest, if
implemented), while for conceptual reasons, the two need to be kept separate.
The devil, of course, will be in the details; and as the proportionality standard continues to take root and
grow in Indian constitutional jurisprudence, such difficult issues about its meaning and application will
continue to come up before courts.
The Tribunals Judgment – II: On Independence
15 Friday Nov 2019
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Right to Information, tribunals
In yesterday’s post, I discussed the significance of the Tribunals Judgment on the vexed issue of money
bills. Today’s post discusses the judgment’s engagement with the principal legal provision under
challenge – Section 184 of the Finance Act. While the majority upheld the constitutionality of the Finance
Act – but struck down the Rules framed under it – Chandrachud and Gupta JJ, writing separate
dissenting opinions, struck down the primary legislation as well.
Recall that Section 184 of the Act authorised the Government to “by notification, make rules to provide for
qualifications, appointment, term of office, salaries and allowances, resignation, removal and the other terms and
conditions of service” of Tribunal Members. It set upper age limits, and prohibited the variance of the
terms and conditions to the detriment of members, after their appointment. The Petitioners argued this
amounted to excessive delegation, and would make “the Tribunals amenable to the whims and fancies of the
largest litigant, the State.” On the other hand, the Section was defended by the Union of India on the
ground that the existence of multiple Tribunals in the country required harmonisation.
The Majority Opinion
The Act
The Majority Opinion restated the law on excessive delegation, noting that what is prohibited is the
“abdication or effacement by conferring the power of legislation to the subordinate authority” (in this case, to the
government) – that is, “essential legislative functions” could not be delegated. Or, to put it another way,
legislation would have to stipulate the policy with sufficient clarity, while leaving the implementation of
it to the executive branch.
Applying this test, the Majority held that Section 184 did not suffer from excessive delegation. However,
the Majority’s rationale for that was somewhat curious. In paragraph 143, it noted:
“The objects of the parent enactments as well as the law laid down by this Court in R.K. Jain (supra),
L Chandra Kumar (supra), R. Gandhi (supra), Madras Bar Association (supra) and Gujarat Urja Vikas
(supra) undoubtedly bind the delegate and mandatorily requires the delegate under Section 184 to
act strictly in conformity with these decisions and the objects of delegated legislation stipulated in the
statutes. It must also be emphasised that the Finance Act, 2017 nowhere indicates that the legislature
had intended to differ from, let alone make amendments, to remove the edifice and foundation of
such decisions by enacting the Finance Act. Indeed, the learned A orney General was clear in
suggesting that Part XIV was inserted with a view to incorporate the changes recommended by this
Court in earlier decisions.”
In other words, the Majority held that the “policy” came not from the Finance Act, but from previous
judgments of the Court that had set out the framework within which Tribunals would necessarily have to
function; and it then deemed that the Finance Act had adopted this framework, as it had given no
indication to the contrary. This framework, the Majority went on to hold, was constituted by principles
such as independence (both individual, and institutional) of the Tribunal. Independence required “a
sufficient degree of separation” between Tribunals and the Government:
“Functional independence would include method of selection and qualifications prescribed, as

independence begins with appointment of persons of calibre, ability and integrity. Protection from
interference and independence from the executive pressure, fearlessness from other power centres –
economic and political, and freedom from prejudices acquired and nurtured by the class to which the
adjudicator belongs, are important a ributes of institutional independence. (paragraph 144)”
It must be said that this is a somewhat innovative development in the law of excessive delegation.
Interestingly, the Court was unable to provide precedent to support its view that “legislative policy” –
the existence of which was an essential precondition for delegation to be valid – could itself be – er –
delegated to the Courts instead. That said, however, this was a highly specific case: the history of
Tribunalisation in India has been a history of dialogue between the Court and the Legislature; in a sense,
the constitutional framework within which Tribunals function has evolved out of this dialogue. To the
extent that the Majority Opinion is justifiable, then, it is a justification that – at best – is limited to the
facts of this case.
The Rules
Having laid out the principle of independence – and what it required – the Majority went on to examine
the Rules that the government had passed under Section 184. Appointment to the Tribunals were to be
made upon the recommendation of a “Search-cum-Selection Commi ee.” These Commi ees were
dominated by government nominees and bureaucrats. On this basis, the Majority Opinion held that “the
lack of judicial dominance in the Search-cum-Selection Commi ee is in direct contravention of the doctrine of
separation of powers and is an encroachment on the judicial domain.” (paragraph 153) This was specially
important because “the Executive is a litigating party in most of the litigation and hence cannot be allowed to be
a dominant participant in judicial appointments.” (paragraph 157)
Next, the Majority found that the qualification of the members was lacking. Technical members without
any adjudicatory experience could be appointed, and Presiding Officers need not have any judicial
experience. This was particularly important, as these Tribunals had been formed after divesting the
Courts from adjudicating in these domains; consequently, it was necessary that “the qualification and
acumen of the members in such Tribunal must be commensurate with that of the Court from which the
adjudicatory function is transferred.” (paragraph 163) And even the qualifications of judicial members had
been weakened, with a substantial amount of discretion being placed in the hands of the government, to
appoint individuals it considered suitable. This, the Majority held, was unconstitutionally vague.
Thirdly, the Majority found that the removal process vested too much power in the hands of the
government as well; the government could constitute a commi ee, which could recommend removal.
The Court noted that “it is well understood across the world and also under our Constitutional framework that
allowing judges to be removed by the Executive is palpably unconstitutional and would make them amenable to the
whims of the Executive, hampering discharge of judicial functions.” (paragraph 169)
Fourthly, the Majority found that there were inconsistencies in retirement ages, and the tenures
themselves were short – they were of three years. The Court held that “a short tenure, coupled with
provision of routine suspensions pending enquiry and lack of immunity thereof increases the influence and control
of the Executive over Members of Tribunals, thus adversely affecting the impartiality of the Tribunals.”
(paragraph 175)
On the bases of these findings (summed up in paragraph 179), the Majority Opinion found the Rules to
be unconstitutional, and struck them down.
These observations and findings are undoubtedly correct. The Majority Opinion drew a clear link
between institutional independence (the “policy” underlying tribunalisation, as reflected in the Finance
Act), and the government control over (a) appointments, (b) qualifications, (c) removal, and (d) tenure. It
also went on to note – while considering the issue of a “nodal agency” to oversee the functioning of
tribunals – the importance of (e) financial independence.
And lastly, the Majority Opinion found that direct appeals from the Tribunals to the Supreme Court
were constitutionally problematic, and directed the government to reconsider the appeals process within
six months. Perhaps unfortunately, however, the Majority Opinion framed this as a question more about
judicial efficiency, and less about a valuable procedural right to access the High Courts under Article 226.
The Concurring/Dissenting Opinions
A large part of Justice Chandrachud’s substantive analysis of the Act was integrated with his analysis of
the Money Bill issue (discussed in the previous post). Chandrachud J. did note, however, that:
“By leaving the rule making power to the uncharted wisdom of the executive, there has been a self-
effacement by Parliament. The conferment of the power to frame rules on the executive has a direct
impact on the independence of the tribunals. Allowing the executive a controlling authority over
diverse facets of the tribunals would be destructive of judicial independence which constitutes a
basic feature of the Constitution. (paragraph 88)”
While this was not framed as a response to the Majority Opinion on the issue of excessive delegation, in
effect, that is what it is. According to Chandrachud J., Parliament could not validly delegate “controlling
authority” over Tribunals to the Executive, given the overarching framework of judicial independence.
On the analysis of the Rules, Chandrachud J.’s analysis mirrored that of the Majority.
Lastly, on the issue of excessive delegation, Gupta J. filed a brief opinion agreeing with Chandrachud J.
As he observed:
“We are in the present case dealing with the appointment of Chairpersons/Members to various
Tribunals. They are enjoined upon to discharge a constitutional function of delivering justice to the
people. What should be the essential qualifications and a ributes of persons selected to man such
high posts is, in my view, an essential part of legislative functions. (paragraph 27)”
Gupta J. went on to make the important point that the Constitution itself could not have “delegated” the
appointment process for judges to the executive (although recall that the NJAC did delegate it to the
legislature!). And if Tribunals were meant to substitute for Courts, then – logically – the same
considerations had to apply. Gupta J. specifically took issue with the Majority Opinion that the
legislative policy was provided by the judgments of the Court; he noted – and in my view correctly –
that it could not always be assumed that the other branches were prompt and accurate in following
Court judgments.
Addendum: Impact upon the RTI Amendments
Previously on this blog, we have discussed the amendments that were made to the RTI Act earlier this
year. In a similar fashion, the RTI Amendments had delegated to the Government authority over the
constitution and running of the Information Commission, through secondary legislation. Now, it is true
that the Information Commission is not identical to the Tribunals that were dealt with under the Finance
Act. That said, however, in my view, this judgment has an important impact upon the RTI Amendments
– and the Rules that were subsequently framed.
First, let us see the extent to which there is similarity between the two situations. In my view, the
similarity exists in two important respects. First, in view of the fundamental right to information, and
the role played by the Information Commission (as I argued in that earlier post), the requirement of
individual and institutional independence is at least as pressing for the Information Commission as it is
for the Tribunals. Secondly, the presence of the government as the largest litigator was an important
factor in this case; in the RTI context, however, the Government is an even bigger litigator, as information
requests are made to Public Information Officers. Institutional independence, then, becomes even more
important.
With that having been established, this judgment makes clear that (a) appointment, (b) qualifications, (c)
removal, (d) tenure, and (e) financial independence are all integral facets of institutional independence.
While the Court’s specific findings with respect to the adjudicatory character of the Tribunals may not
be directly applicable (although the point is arguable), the link between the above five factors and
government control applies across the board. The RTI Rules, therefore, can be directly examined under
this framework.
And lastly, as I have argued above, the Majority Opinion’s finding that Section 184 did not suffer from
excessive delegation was based upon the very specific history of the tribunalisation. In the absence of
that history, I believe that it is more than arguable that the RTI Amendments suffer from the vice of
excessive delegation (again, in the context of the fact that the right to information is a fundamental
right); indeed, Chandrachud and Gupta JJ.’s dissents on the point show us exactly how.
It remains to be seen, however, how the Courts will deal with these issues if a challenge is brought
before them.
The Tribunals Judgment – I: A Course Correction on

the Money Bill
14 Thursday Nov 2019
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aadhaar, money bill, speaker, structural analysis
Yesterday, a Constitution Bench of the Supreme Court delivered an important judgment concerning the
constitutional validity of the Finance Act of 2017. Briefly, through the Finance Act, Parliament had
merged a number of Tribunals, and delegated to the government the task of framing rules for their
functioning. The Finance Act had been passed as a money bill, which barred the Rajya Sabha from
amending it. There were, therefore, three issues before the Court: (i) whether the Speaker of the Lok
Sabha had correctly certified the Finance Act as a money bill; (ii) whether Section 184 of the Finance Act
– the delegation provision – was constitutional, and if it was, whether the rules the government had
framed for the Tribunals were constitutional; and (iii) miscellaneous issues around the functioning of
Tribunals in the country. The last issue – strictly – is one of legal policy, and I will not discuss it here.
This post will discuss the debate around the money bill, and the next post will discuss Section 184.
The debate around the money bill was framed in the background of the Supreme Court’s Aadhaar
Judgment, of September 26, 2018. Recall that in the Aadhaar Case, the Speaker’s certification of the
Aadhaar Act as a money bill was under challenge. There were a number of issues that the Court had to
consider: first, whether the Speaker’s decision was subject to judicial review; secondly, if it was, how was
the Court to interpret Article 110 of the Constitution, that set out the conditions for what constitutes a
money bill?; and thirdly, was the Aadhaar Act correctly certified as a money bill?
As Suhrith Parthasarathy pointed out repeatedly in the aftermath of the Aadhaar Judgment, the majority
decision returned a confused set of findings on this issue. The primary reason for this was that it mixed
up the order of the questions. Instead of first deciding whether the Speaker’s certification was subject to
judicial review, it went ahead and reviewed the law anyway – thus implying that it was – but later, went
on to say that it wasn’t answering the question of review. On the substantive issue, it first struck down a
provision of the Aadhaar Act (Section 57) that clearly couldn’t be traced back to Article 110 –
and then held that the rest of the Act passed scrutiny as a money bill. The consequence of this was that it
failed to provide clear standards for how the Court should interpret Article 110.
Importantly, the majority judgment in The Tribunals Case – authored by the Chief Justice – points this out
clearly and unambiguously. In paragraph 122 it notes that:
“Upon an extensive examination of the ma er, we notice that the majority in K.S. Pu aswamy
(Aadhaar-5) pronounced the nature of the impugned enactment without first delineating the scope of
Article 110(1) and principles for interpretation or the repercussions of such process. It is clear to us
that the majority dictum in K.S. Pu aswamy (Aadhaar-5) did not substantially discuss the effect of
the word ‘only’ in Article 110(1) and offers li le guidance on the repercussions of a finding when
some of the provisions of an enactment passed as a “Money Bill” do not conform to Article 110(1)(a)
to (g). Its interpretation of the provisions of the Aadhaar Act was arguably liberal and the Court’s
satisfaction of the said provisions being incidental to Article 110(1)(a) to (f), it has been argued is not
convincingly reasoned, as might not be in accord with the bicameral Parliamentary system envisaged
under our constitutional scheme. Without expressing a firm and final opinion, it has to be observed
that the analysis in K.S. Pu aswamy (Aadhaar-5) makes its application difficult to the present case
and raises a potential conflict between the judgements of coordinate Benches.”
Having taken this view, the Chief Justice then correctly refers the question to a larger bench for
resolution. In doing so, however, he also makes it clear that on the point of judicial review, the law is now
se led. By examining the Aadhaar Act on merits, it was a necessary implication that the question of the
Speaker’s certification is subject to judicial review (and this in line with previous judgments, such as Raja
Ram Pal); and contrary judgments, such as Siddiqui, now stand expressly overruled. The consequence,
then, is this: the speaker’s certification of money bills is now subject to judicial review. The standards
that a Court must apply – balancing respect for the Speaker’s prerogative against the importance of
bicameralism and the Upper House – will be decided by a larger bench.
In this context, Chandrachud J.’s concurring opinion repays careful study. Recall that Chandrachud J.
had dissented in the Aadhaar Case, including on the point of money bill. Here, he takes the argument
further. After se ing out the history and origins of money bills in British parliamentary practice, and
noting that as a ma er of constitutional text and structure, the “finality” of the Speaker’s decision
doesn’t necessarily exclude judicial review, Chandrachud J. comes to the heart of the case: the issue of
bicameralism. Put very simply, “bicameralism” refers to the existence of two legislative chambers, where
– depending upon the circumstances – the participation and/or concurrence of both chambers is
required to pass laws. In the Indian context, “bicameralism” is a specific, structural check upon
majoritarianism, as well as a guarantee of states’ representation in the federal scheme. The Rajya Sabha
exists both to articulate the interests of the states in Parliament, as well as act as a check upon the Lok
Sabha. Thus, as Chandrachud J. notes:
“The Rajya Sabha reflects the pluralism of the nation and ensures a balance of power. It is an
indispensable constitutive unit of the federal backbone of the Constitution. Potential differences
between the two houses of the Parliament cannot be resolved by simply ignoring the Rajya Sabha. In
a federal polity such as ours, the efficacy of a constitutional body created to subserve the purpose of a
deliberate dialogue, cannot be defeated by immunising from judicial review the decision of the
Speaker to certify a Bill as a Money Bill. (paragraph 65)”
What Chandrachud J. is doing here is what the legendary American constitutional scholar, Charles
Black, called “structural interpretation“: constitutional interpretation that flows from the structures and
relationships between various constitutional provisions. Here, Chandrachud J. uses the importance of
bicameralism as providing the interpretive framework within which to examine the issue of the money
bill; or, in other words, any interpretation of Article 110 must be one
that advances and protects bicameralism, rather than diluting or eroding it.
This interpretive framework comes into play when Chandrachud J. examines the merits of the dispute.
He notes that the inclusion of a non-fiscal provision ma er in a money bill is permissible only if it is
“incidental” to a ma er specified in Article 110. Or, in other words, the legislation must essentially relate
to one of the clauses under Article 110. The Finance Act – to the extent that it dealt with the restructuring
and composition of Tribunals – clearly did not fall within this category. Therefore:
“We are unimpressed with the submissions of the learned A orney General that since salaries are
payable out of the Consolidated Fund, Part XIV of the Finance Act bears a nexus with sub-clauses (c)
and (d) of Article 110(1) and that the other provisions are merely incidental. That the amendment has
a bearing on the financial burden on the Consolidated Fund of India cannot be the sole basis of
brining the amendment within the purview of Article 110(1). On a close analysis of the provisions, it
is evident that what is claimed to be incidental has swallowed up the entire legislative exercise. The
provisions of Part XIV of the Finance Act 2017 canvass a range of amendments which include
qualifications and process for appointment terms of office and terms and conditions of service
including salaries, allowances, resignation and removal which cannot be reduced to only a question
of the financial burden on the Consolidated Fund of India. The effect of Part XIV is to amend and
supersede the provisions contained in the parent enactments governing all aspects of the
appointment and terms of service of the adjudicatory personnel of the tribunals specified in the
Eighth and Ninth Schedules. This exercise cannot be construed as a legitimate recourse to the power
of enacting a Money Bill. (paragraph 77)”
It is crucial to note that this analysis on merits flows from the structural analysis discussed above.
In paragraph 86, Chandrachud J. goes on to observe:
“… the certification of a Bill as a Money Bill and the invocation of the provisions of Article 110 is an
exception which has been carved out by the Constitution to the constitutional requirements
accompanying the passage of ordinary legislation. In passing the Bill as a Money Bill, the immediate
impact is to denude the Rajya Sabha of the legislative role which is assigned to it in the passage of
legislation.”
On this basis, he finds that the Speaker’s certification was incorrect, and sets it aside; the rest of the Act,
however, is saved on principle of severability.
It is important to note that this is not the first occasion in recent times that structural analysis has played
a role in the Court’s judgments. It was also in play in the NCT of Delhi v Union of India decision. In that
case, while interpreting Article 239AA of the Constitution – that defined the relationship between Delhi
and the Union of India – the Supreme Court held that principles of federalism and representative
democracy constituted the interpretive framework within which textual ambiguities were to be resolved.
The principle is a simple one, but has powerful consequences: when used well, it ensures that the
Constitution’s fundamental principles act as waymarkers upon the often perilous road of judicial
interpretation; these principles help to anchor the Court within a principled adjudicatory framework.
In that sense, Chandrachud J.’s opinion has already done the work that the majority has left to a larger
bench.
And incidentally, it also makes it clear that the Aadhaar Act is unconstitutional.
What is a “Review”?
14 Thursday Nov 2019
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Article 137 of the Constitution of India allows the Supreme Court to “review” any judgment passed by
it. According to the jurisprudence of the Court, a review is to be granted in exceedingly rare
circumstances. In Union of India v Sandur Manganese and Iron Ores Ltd., for example, the Supreme Court
restated the position of law as follows: a review could only be allowed in cases of “discovery of new and
important … evidence“, an “error on the face of the record“, or another “sufficient reason” that had to be
analogous to the first two.
In this context, today’s order in Kantaru Rajeevaru v Indian Young Lawyers’ Association, concerning the
Supreme Court’s 2018 judgment in the Sabarimala Case, is a curious one. The Chief Justice begins his
order by observing:
“Ordinarily, review petitions ought to proceed on the principle predicated in Order XLVII in Part IV
of the Supreme Court Rules, 2013. However, along with review petitions several fresh writ petitions
have been filed as a fall out of the judgment under review. All these petitions were heard together in
the open Court. (paragraph 1)”
This is bewildering. Let us say that there are two sets of petitions before the Court. One set of petition
seeks “review” of the impugned judgment, on the grounds set out at the beginning of this post. The
other set comprises of fresh writ petitions that assail the correctness of the same judgment. “Hearing
them together in open Court” makes no sense, because not only is the scope of arguments entirely
different, the forum within which these cases have to be heard is different too! A review is heard by the same
judges who delivered the original judgment (apart from those who may have retired). In this case, as
the Sabarimala judgment was heard by a bench of five judges, the review would also be heard by five
judges (and in this case, four of them – apart from the Chief Justice – were parties to the original
judgment). A fresh writ petition, on the other hand, would have to go through an entirely different
process: it would first come up before a division bench (two or three judges) of the Supreme Court,
where the petitioner would have to make out an initial case for even having the petition admi ed, given
the existence of binding precedent to the contrary, on the same issue. If that was successful, the
petitioner would then have to convince the division bench that there was a prima facie mistake in the
earlier judgment, that required to be reconsidered by a larger bench (another substantial hurdle). The
division bench would – if convinced – refer the ma er to a five-judge bench, where the same process
would be repeated; and then – if the petitioner was successful in each of these stages – would the ma er
go before a seven-judge bench to reconsider.
These processes are of fundamental importance. They are important because they preserve one of the
crucial pillars of the justice system: the sanctity and finality of judgments (especially those of the
Supreme Court). One may agree or disagree with a judgment, but in the interests of legal certainty and
stability, the judgment (for be er or for worse) is law, and remains law, unless there are powerful
reasons to depart from it. Of course, no judgment is set in stone: that is why review jurisdiction exists,
and that is why referrals exist. And both processes – as we have just seen – cast an onerous burden upon
those who would have the Court revisit judgments that have a ained finality.
The first problem with today’s order, then, is that it mixes up two things that are fundamentally
different in character. Indeed, in no sense is this a “review” at all: the Court does not even a empt to
point out “an error on the face of the record” in the original Sabarimala judgment that was ostensibly
under review. But if this is actually a judgment about referral, then how did the writ petitioners short-
circuit the entire process that exists for these cases, and land up directly before a five-judge bench in
proceedings that everyone understood at the time to be proceedings in review?
That said, let us consider the substance of the order itself. In paragraph 3, the Court notes that issues
surrounding the entry of women into religious spaces arise in respect of some pending cases before the
Court, involving mosques and Parsi fire temples – and that there is also a pending case on the legality of
female genital mutilation (FGM). In paragraph 4, the Court then observes: “it is time that this Court should
evolve a judicial policy befi ing to its plenary powers to do substantial and complete justice and for an
authoritative enunciation of the constitutional principles by a larger bench of not less than seven judges … It is
essential to adhere to judicial discipline and propriety when more than one petition is pending on the same, similar
or overlapping issues in the same court for which all cases must proceed together.”
With respect, this is bizarre. What this appears to be is something wholly new, which we can perhaps
define as an “anticipatory referral.” The Supreme Court is due to hear some cases that have overlapping
issues. So before it hears those cases, a larger bench should decide those issues! But unless these different
cases are all heard simultaneously, by different five-judge panels of the Court – which then throw up
contradictory rulings – this has absolutely nothing to do with “judicial discipline and propriety” (in fact,
some of the cases the Court mentions have not even been referred to larger benches!). Let us take a
tangible example. Sabarimala was decided last year. Let’s say the next case to be heard is the Parsi Fire
Temple case. To the extent that legal questions arise in the la er that have already been resolved in the
former, the bench hearing the Fire Temple Case will be bound to follow them, unless it decides to refer the
ma er to a larger bench for resolution. That is how it has always worked. And there has never been a
reason to depart from that practice – certainly not by ostensibly citing “judicial discipline and
propriety”!
This is made clear by the fact that the Court goes on to note that the issues arising in these pending cases
“may be overlapping and covered by the judgment under review.” Yes, exactly – and unless the “judgment
under review” is set aside in review for having an error apparent on the face of the record, these pending
cases will be bound by it! Which brings us back to what the Court was actually asked to rule on in this
case, and which it simply did not do – decide the review!
The judgment then frames some issues that it says “could arise” in these pending cases, pertaining to the
interplay between various constitutional articles. It also points to an apparent conflict between Shirur
Mu and Dawoodi Bohra, on the issue of “essential religious practices” (the conflict is more apparent than
real, but that is a debate for another day), which needs to be resolved by a larger bench.
Notice, however – so far – that what has been referred to a larger bench are certain suggested
constitutional questions that may have an impact on the Sabarimala judgment, but are not about that case.
But it is now that we come to yet another bizarre part of this judgment. In the penultimate paragraph,
the Court notes that “while deciding the questions delineated above, the larger bench may also consider it
appropriate to decide all issues, including the question as to whether the Kerala Hindu Places of Public Worship
(Authorisation of Entry) Rules, 1965 govern the temple in question at all. Whether the aforesaid consideration will
require grant of a fresh opportunity to all interested parties may also have to be considered.“
But where on earth has this sprung from? It would be appropriate for this “larger bench” to
consider this question – that was se led in Sabarimala – only if it was sufficiently proven to another bench
– either in Review or in referral proceedings – that a mistake had been made that warranted
reconsideration. But – as already indicated above – the Court does not even a empt to show that a
mistake has been made, or may have been made. It simply decrees that the larger bench “may” consider it
appropriate to decide “all” issues. How and why? It does not say. This is not how a Court is supposed to
reason.
The Court then ends by noting that the review petition and writ petitions shall be kept pending until
these “questions” are answered. So, once again, we are back to the same point: it is not
the judgment in Sabarimala that has been referred for reconsideration, but certain “questions” that are
common to Sabarimala and other pending cases – without any judicial finding that Sabarimala got them
wrong! What on earth is happening here?*
The incoherence of this judgment is highlighted in the dissenting opinion authored by Nariman J., on
behalf of himself and Chandrachud J. In paragraph 2, Nariman J. sets out the exact point that this blog
post has been making:
“What a future constitution bench or larger bench, if constituted by the learned Chief Justice of India,
may or may not do when considering the other issues pending before this Court is, strictly speaking,
not before this Court at all. The only thing that is before this Court is the review petitions and the
writ petitions that have now been filed in relation to the judgment in Indian Young Lawyers
Association and Ors. v. State of Kerala, dated 28 September, 2018. As and when the other ma ers are
heard, the bench hearing those ma ers may well refer to our judgment in Indian Young Lawyers
Association and Ors. v. State of Kerala, dated 28 September, 2018, and may either apply such
judgment, distinguish such judgment, or refer an issue/issues which arise from the said judgment for
determination by a larger bench. All this is for future Constitution benches or larger benches to do.
Consequently, if and when the issues that have been set out in the learned Chief Justice’s judgment
arise in future, they can appropriately be dealt with by the bench/benches which hear the petitions
concerning Muslims, Parsis and Dawoodi Bohras. What is before us is only the narrow question as to
whether grounds for review and grounds for filing of the writ petitions have been made out qua the
judgment in Indian Young Lawyers Association and Ors. v. State of Kerala.”
And indeed, it is difficult to understand how it could be any other way. Nariman J. then actually goes on
to write a judgment applying the standards required in a review, and finds that no grounds for review
are made out (and that, at the same time, writ petitions directly a acking the judgment are not
maintainable). A debate on this could have been had if the majority judgment had actually engaged with
any of the points that Nariman J. makes. But of course, as we have seen, they do not. And finally,
Nariman J. goes on to point out that arguments around the protests that followed the
original Sabarimala judgment cannot possibly constitute a ground for the Court to retrace its steps, in a
country governed by the rule of law.
It should therefore be clear that what the majority judgment does in this case is indefensible under any
standard. One may agree or disagree with the original judgment in the Sabrimala case. But what a three-
judge majority has done here – that is, exhibit a cavalier disregard for a reasoned judgment of a
Constitution Bench, and invent a whole new method for people to collaterally challenge judgments they
don’t like – cannot but have profound and dangerous consequences for the rule of law. In a Court of
thirty-three judges – as I have pointed out before – these issues become particularly important. The more
the gravitational force of precedent is weakened – either by declaring coordinate benches per incuriam, or
by judicial pyrotechnics as in this case – the more we head towards a factionalised and divided Court,
where judicial interpretation becomes less about principle and more about power-play. Sabarimala will
be a small casualty in that conflagration.
*Incidentally, a corollary of this is that – for obvious reasons – the majority has not stayed
the Sabarimala judgment itself. Until the seven-judge bench is constituted, therefore, the judgment
remains good law, and binding and enforceable on all parties, including the State.
Revisiting the Aadhaar Judgment
11 Monday Nov 2019
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aadhaar, big data, data collection, dignity, privacy
It has been more than a year since the Supreme Court’s judgment in K.S. Pu aswamy v Union of India (II)
[“the Aadhaar Judgment”], which was delivered on September 26, 2019. The intervening period has seen
some legislative developments – for example, resurrecting the use of the Aadhaar database by private
parties, which had been struck down by the Court. It has seen the promise of fresh laws (such as the
Data Protection Act, which – it is rumoured – will be placed before Parliament in the winter session). It
has also seen the proposed extension of the Aadhaar programme (for example, mandatory linking of
voter IDs), as well as other legislative proposals involving the collection and use of personal data (facial
recognition systems, DNA profiling, and so on).
It is therefore important to revisit the Aadhaar Judgment, and determine what, precisely, the Supreme
Court held in that case. While the judgment is widely known for having upheld the constitutionality of
the Aadhaar programme while also limiting its scope in certain important respects, it was also the first
time the Supreme Court dealt with the intersection of contemporary data collection, storage, and use
practices, and fundamental rights. The principles that emerge out of that discussion, therefore, have a
significance that goes beyond the specific holding in that case.
Overview
To understand clearly what is at issue, let us begin with certain conceptual distinctions. The Aadhaar
Judgment involved three levels of analyses: (i) an analysis of facts involving the Aadhaar programme;
(ii) an analysis of applicable legal and conceptual standards; (iii) and an application of those standards to
the facts (in order to determine whether and to what extent the Aadhaar programme passed
constitutional muster). On this blog, in the aftermath of the judgment, a group of us analysed (i) and (iii)
in some detail, and criticised the Court on both counts. The Court’s decision to uphold the Aadhaar
programme, we argued, was premised on a wrong understanding of facts, and a wrong application of
legal standards to those wrongly-determined facts. In this post, I intend to bracket those two questions,
and complete the analysis be examining issue (ii) in some detail: i.e., the legal standards themselves.
I will argue that if we read the Aadhaar Judgment along with the nine-judge bench decision that upheld
privacy as a fundamental right in K.S. Pu aswamy v Union of India (I) [“the Privacy Judgment”], certain
important principles emerge (and on these principles, both the majority and Chandrachud J.’s dissenting
opinion were in broad agreement). In summary, the Supreme Court held that (i) the collection, storage,
and use of data in a manner that enables profiling is unconstitutional, (ii) data minimization, purpose
limitation, and limited data retention are integral to any legislation or executive act involving data
collection; (iii) use by private parties of the Aadhaar database is forbidden; and (iv) in testing the
constitutionality of any specific measure that infringes the right to privacy/involves data collection and
processing, the proportionality standard is applicable. This standard places an evidentiary burden upon
the government to justify both the rationality of the measure, as well as its necessity (i.e., no alternative
measures that infringe rights to a lesser degree are available).
The Role of Facts and Law
To understand the holding of the Supreme Court in the Aadhaar Judgment, it is important to begin with
the main grounds of challenge. As indicated above, the Aadhaar challenge involved a set of legal claims,
based upon a set of factual assertions. Relevant for our purposes here were the contentions that (i)
Aadhaar enabled a surveillance State by allowing the government to track individual transactions
through the authentication mechanism, (ii) Aadhaar enabled profiling by allowing the merging of data
silos, (iii) the data collection was excessive and breached the right to privacy, (iv) Section 57, which
private parties’ access to the database, breached the principle of purpose limitation, and also enabled
commercial surveillance.
It is of vital importance to note that the Aadhaar Judgment rejected none of the petitioners’ legal claims;
rather, to the extent that the Court found against the Petitioners, it did so because it disagreed with their
factual arguments, while agreeing with the legal claims (and it was those findings that we criticised last
year on this blog). In other words (to take one example), the Court found that the Aadhaar programme
did not allow for the merging of data silos; however, it becomes clear from a reading of the judgment
that had it been the case that the merging of data silos was allowed, the Court’s conclusion would also
have been different.
Surveillance
So: on the first contention (surveillance), the Court found on facts that, among other factors, the legal
prohibitions upon the sharing and disclosure of core biometric data, sharing of e-KYC data only with
user consent, no transmission of identity information back to the Requesting Entity, and the retention of
authentication logs only for a short period, precluded the possibility of State surveillance. In addition,
the Court found on facts that the merging of data silos was prohibited, the data collection at the time of
enrollment was minimal (fingerprints and iris), and the Authority was purpose blind. Consequently, the
Court specifically held that “we are of the view that it is very difficult to create profile of a person simply on the
basis of biometric and demographic information stored in CIDR.”
Data Protection and Privacy: Principles of Data Minimisation, Purpose Limitation, and Safeguards
On the issue of data protection and privacy, the Court specifically observed that “the crucial requirements,
which are indicative of the principles for data protection that India adheres to, inter alia include… information
collected shall be used for the purpose for which it has been collected [“purpose limitation”]… Body corporate or
any person on its behalf shall, prior to the collection of information, including sensitive personal data or
information, provide an option to the provider of the information to not to provide the data or information sought
to be collected … Disclosure of sensitive personal data or information by body corporate to any third party shall
require prior permission from the provider of such information, who has provided such information under lawful
contract or otherwise, unless such disclosure has been agreed to in the contract between the body corporate and
provider of information, or where the disclosure is necessary for compliance of a legal obligation.” (paragraph 166)
In this context, the Court’s discussion of case law from the European Union was particularly
illuminating. The Court discussed judgments such as Marper, where the storage of DNA profiles had
been struck down because of their “blanket and indiscriminate nature” (paragraph 178) (in particular,
failing to distinguish between suspects and convicts); Digital Ireland, where an EU Directive that enabled
profiling without any temporal or spatial limits; Tele2, where metadata collection was struck down
because it violated the data protection principles referred to above (again, it was indiscriminate in
nature, and affected individuals without any probable cause of suspicion). The Court concluded by
noting that “it is evident from various case laws cited above, that data collection, usage and storage (including
biometric data) in Europe requires adherence to the principles of consent, purpose and storage limitation, data
differentiation, data exception, data minimization, substantive and procedural fairness and safeguards,
transparency, data protection and security. Only by such strict observance of the above principles can the State
successfully discharge the burden of proportionality while affecting the privacy rights of its citizens.” (paragraph
187) It will be noted that these are the exact principles that the Court held operated in India as well;
European case-law, thus, is heavily persuasive authority on this issue.
The Court then went on to specifically analyse the provisions of the Aadhaar Act on the touchstone of
these principles. It held that “data minimization” was satisfied because the information collected was
minimal, and the nature of the transaction or the individual’s location was not revealed during
authentication; at the same time, the Court invalidated the storage of any form of metadata other than
“process metadata”, in order to meet the requirements of data minimization; it also held that “purpose
limitation” was satisfied because certain definitional provisions had been read down – and – critically –
Section 57, which allowed private parties to use the database under cover of any “law or contract” had
been struck down (as would be done later in the judgment); on data retention, the Court restricted the time
period for which the data could be stored to six months.
On both counts, the petitioners made a specific argument that there were insufficient safeguards under
the framework of the Act with respect to data sharing, as – in particular – the police could gain access to
the database. The Court answered this by holding that these concerns were assuaged by (a) reducing the
period of data retention to six months, (b) requiring that if through a judicial order any individual’s
information was to be shared, that person would have to be given a hearing (under S. 33 of the Act); in
particular, and crucially, the Court noted that “there is a reasonable presumption that the said court shall take
into consideration relevant law including Article 20(3) of the Constitution as well as privacy rights or other rights
of that person before passing such an order.” (c) sharing of information that did not go through a judicial
process (such as in cases of national security under S. 33(2)) was invalid, and a judicial member would
have to be added to the decision-making authority; and that Section 57 had been struck down (paragraph
220).
Data Silos
Thirdly, on the aspect of the integration of data silos, the Aadhaar Judgment noted that in the Privacy
Judgment, it had clearly been held that isolated information silos, when aggregated, could enable
profiling (paragraph 232); as indicated above, the Court found that as a ma er of law silos remained
integrated, and were not permi ed to be aggregated.
As an overall point, the Court held additionally – while addressing the privacy claim – that as part of the
balancing process, the expectation of privacy in biometrics and irises was relatively low (as opposed to,
for example, medical data); thus, overall, data collection remained “minimal”, and that this helped tip
the balance of rights in favour of Aadhaar. (paragraphs 295 – 297, 308)
Proportionality
Fourthly, moving on to specific challenges beyond the Aadhaar Act, the Court upheld the mandatory
linking of Aadhaar with PAN, but struck down linking with bank accounts and SIM cards. In each case,
the Court’s rationale was founded on the question of whether the government had managed to
discharge its evidentiary burden under the proportionality standard (i.e., demonstrating a legitimate State
aim, a rational connection between the measure and the aim, that the measure was least restrictive with
respect to fundamental rights as compared to all other alternatives, and finally, that on balance, it was
proportionate). On the issue of PAN Cards, it held that the government had demonstrated with
“empirical data” that as Aadhaar was a unique identifier, it could deal with the problem of bogus or
duplicate PAN cards (paragraph 421, 423); on the other hand, as far as bank accounts were concerned,
the Court specifically held that “that it does not meet the test of proportionality and is also violative of right to
privacy of a person which extends to banking details.” (paragraph 429); importantly: “under the garb of
prevention of money laundering or black money, there cannot be such a sweeping provision which targets every
resident of the country as a suspicious person. Presumption of criminality is treated as disproportionate and
arbitrary.”
The Court went on to hold that the State had not even demonstrated how mandatory linking would
solve the problem of black money, and why alternative methods of KYC were insufficient; mere “ritual
incantation” of black money would not suffice under the proportionality standard (paragraph 434), in a
world in which maintaining a bank account had become “almost a necessity” (paragraph 435); rather,
“there should have been a proper study about the methods adopted by persons who indulge in money laundering,
kinds of bank accounts which such persons maintain and target those bank accounts for the purpose of Aadhaar. It
has not been done.”
And the Court returned a similar finding on the issue of SIM cards, noting that “for the misuse of such SIM
cards by a handful of persons, the entire population cannot be subjected to intrusion into their private lives. It also
impinges upon the voluntary nature of the Aadhaar scheme. We find it to be disproportionate and unreasonable
state compulsion.” (paragraph 442)
The Legal Standards
In summary, therefore, the Aadhaar judgment proceeded in this way: the Supreme Court accepted the
Petitioners’ constitutional tests for adjudicating the validity of the Aadhaar programme. It found that
parts of the Aadhaar programme were compliant with these tests, and parts of it were not. At some
places, the Court found that compliance was possible if certain provisions were read down, or
interpreted narrowly. At other places, it found that it was not possible – and those provisions were
struck down. When we read this holistically, and in view of the Privacy Judgment, the following
principles (as indicated above) emerge:
Profiling is unconstitutional. Consequently, aggregation of data silos that enables profiling is also
unconstitutional. The “360 degree view” of citizens that certain states and police departments have
proclaimed as a ma er of pride, is not permi ed under law.
As a corollary, collection and storage of metadata that enables profiling is also unconstitutional.
Purpose limitation is mandatory for data collection. In other words, if law enables data collection for
“x” purpose, it cannot then be stored/used for any purpose other than X.
Two important corollaries follow from (a) and (b). First, the Aadhaar database cannot be accessed
by other bodies (for example, the police). Not only would this breach both (a) and (b), it would
also – in this specific case – breach the right against self-incrimination (it is for this precise reason
that the Court insisted that sharing of information could only be done through a specific and
individual judicial order, or an order involving a judicial member).
Secondly, laws for data collection cannot be framed in generic or open-ended terms. They must
categorically specify the purpose for which data is collected (and will be stored and used), and
their constitutionality will be judged on that count.
Private parties are not authorised to access the Aadhaar database. This becomes important in light of
the fact that after the judgment, an ordinance – and then a law – was passed just to allow this. This
law is unconstitutional. It may be argued that there are parts of the judgment that suggest that the
only part struck down in Section 57 was the part that allowed access even through a “contract.” This
argument cannot succeed. The Aadhaar Judgment is clear on more than one occasion that the part
involving body corporates is the one that is struck down – law or contract notwithstanding. There are
three further reasons why this interpretation is correct: first, the fact that clearly the database should
not be made accessible purely through a contract was not the only reason why the Court found
Section 57 unconstitutional. Section 57 was also struck down because it violated purpose limitation –
and the distinction between law and contract is agnostic in that regard; secondly, the Court upheld
the Aadhaar Act as a money bill on the basis (inter alia) that it had already struck down Section 57
(and that the rest of the Act was substantially a money bill). Obviously, this could not have been the
case if only a part of Section 57 had been struck down – the procedural flaw would have remained in
that case; and thirdly, the Court struck down Section 57 because it enabled commercial surveillance –
another point that is agnostic about the difference between law and contract.
Any law requiring data collection must satisfy the principle of proportionality. This principle
requires the government to demonstrate the necessity of the collection, through concrete evidence.
(for example, if the government wants to mandatorily link Aadhaar with Voter IDs, it must
demonstrate the factual necessity for it, and also that alternative methods of “de-duplication” are
insufficient). Crucially, data collection cannot be blanket – that is, if the goal is to identify a specific
instance of wrong-doing or prevent crime (in policing), the State cannot achieve that by blanket and
indiscriminate data collection, that fails to distinguish between those against whom there is probable
cause of suspicion, and against whom there is not. In other words, data collection statutes must be
specific and targeted.
The period of data retention also speaks to the proportionality of the measure. Retaining data for
an excessive period renders the measure disproportionate.
The greater the reasonable expectation of privacy in the data in question, the higher the burden of
justification upon the State. In the Aadhaar Judgment, the Court held that the expectation of privacy
in biometric details and iris scans was low. However, for any other species of data, (for example,
DNA), the analysis will have to be undertaken afresh.
Conclusions
As we pointed out at the time of the judgment, there are some serious doubts over the Court’s analysis
of facts, and application of law to the facts, throughout the course of the verdict. Those doubts remain.
However, while issues of that kind are specific to the judgment – and to the constitutionality of Aadhaar
– the interface between technology and fundamental rights obviously is not. It is here that the legal
standards evolved by the Court in the Aadhaar Judgment are important, because is they – and not the
concrete, fact-specific holding on the constitutionality of Aadhaar – that will provide the constitutional
framework within which future disputes will be litigated. In this post, I have a empted to show that on
that question, the Supreme Court articulated – and accepted – a rigorous and privacy-protective set of
legal standards. A correct application of those standards would invalidate – or at least, throw into
serious doubt – the government’s plans for open-ended data collection (under the guise of anodyne
terms such as “data is the new oil), facial recognition tenders, and indiscriminate DNA profiling; most
importantly, these standards provide a crucial yardstick from which to judge the adequacy of the Data
Protection Act that is eventually passed by Parliament. Any such legislation – it hardly needs reminding
– must comply with these standards, as they are grounded within the Constitution. In other words, the
soon-to-come statutory landscape of data protection in India must adhere to the constitutional
framework that has been traced out above.
Guest Post: Constitutional Silences, Balancing of

Rights, and the Concept of a “Neutralising Device”
09 Saturday Nov 2019
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Balancing Rights, constitutional silence, freedom of speech
[This is a guest post by Anubhav Khamroi.]
The doctrine of balancing of rights have troubled constitutional courts across jurisdictions. The Indian
Supreme Court, once again (although, in my opinion, unnecessarily), in Kaushal Kishor v. State of U ar
Pradesh [“Kaushal Kishor”], has taken upon itself the job of balancing two potentially competing
fundamental rights, namely – Article 19(1)(a) and Article 21 or any unenumerated right within it. The
Constitution Bench passed an order (see here) framing five questions for consideration. This Post
concerns only the first question, which reads –
““Are the grounds specified in Article 19(2) in relation to which reasonable restrictions on the right to
free speech can be imposed by law, exhaustive, or can restrictions on the right to free speech be
imposed on grounds not found in Article 19(2) by invoking other fundamental rights?””
In some previous posts, Gautam Bhatia has dealt with the question of balancing of Article 19(1)(a) with
other freedoms under Part III (See here and here). To summarise, his primary arguments are:
Article 19(2) does not contain a “public interest” limitation, such as found in Article 19(6), which
suggests a deliberatechoice to reject a general balancing between the Freedom of Speech and the
“social interests” not specifically enumerated under Article 19(2);
As the Constitution expressly enumerates limitations upon the Freedom of Speech within its text, the
process of balancing has already been undertaken within the drafting of Articles 19(1)(a) and 19(2);
Article 19(2) does not contain any proviso or limitation that makes the Freedom of Speech subject to
other provisions of Part III, such as found in Article 25(1);
In that light, some compelling questions arise: If there is no express mechanism for balancing of rights
within the constitutional text, what is the significance of such “constitutional silence” in Article 19(2), or
Part III in general? Does it make the Freedom of Speech a standalone right? Under what circumstances
can one Part III right operate as a valid limitation on another? I shall deal with the aforementioned
points in seriatim. Thereafter, I shall elaborate on the evolution of the concept of a “Neutralizing Device”
by the Supreme Court.
Situations of Potential Conflict between Two Part III Rights
As discussed above, Article 19(2) sets out eight express limitations. But it does not contain any limitation
that makes Freedom of Speech ‘textually’ subject or subordinate to other fundamental rights guaranteed
under Part III. This is also the case for other Part III rights, with the exception of Article 25(1). However,
we ought not lose sight of the possible clashes between two Part III rights. Following are some
illustrations of such clashes:
1. Freedom of Press [Article 19(1)(a)] vs. Right to Privacy [Article 21];

2. Right to Freedom of Speech [Article 19(1)(a)] vs. Right to a Fair Trial [Article 21] – This conflict was
being adjudicated upon in the initial proceedings of Kaushal Kishor, concerning a Minister calling the
victim’s case a “political conspiracy only and nothing else”.
3. Right to impart and receive Information on ma ers of public interest [Article 19(1)(a)] vs. Right to
Reputation or Autonomy to control dissemination of personal information [Article 21]- The scope of
this conflict was briefly commented on by SK Kaul J. in Paras 53 to 58 of his separate opinion in
Pu aswamy.
4. Freedom to manage religious affairs of religious denominations [Article 26] vs. Dignity and Liberty
of women [Article 15 & 21] – This conflict came up for consideration in the Sabarimala
It is thus evident that constitutional values do come in severe conflict quite often. However, for
resolution of such a ‘constitutional conflict’, there is no balancing mechanism set out within the text of
Part III. This is a classic case of ‘constitutional silence’. To balance competing rights of equal supremacy
is not a decision simpliciter for the judiciary and a proper mechanism must be formulated (See below –
the use of a “neutralizing device”).
Now, let us specifically focus on Article 19(2). I do agree with Mr. Bhatia’s conclusions here, that it might
not be appropriate for the Supreme Court to ‘invent’ additional grounds for restricting Freedom of
Speech, such as “constitutional fraternity” or “constitutional compassion”, which are mere abstract
concepts, incapable of sufficiently revealing their precise contents.
My disagreement is only to a limited extent – the limitations set out in Article 19(2) cannot be considered
exhaustive, to the extent it might be necessary to balance Freedom of Speech against other Part III rights,
such as Article 21 or unenumerated rights situated within it. However, to make the balancing process
functional, the contents of such unenumerated rights must be somewhat objectively determinable. For
example, the contents of right to privacy has been well defined in the Pu aswamy judgement.
In my opinion, while being in a state of mutual co-existence, the competing Part III rights operate as a
valid limitation upon each other. The judiciary, which is the “balancing wheel between the rights” (See
Chief Justice Subba Rao’s opinion in Golak Nath ), plays the role of a facilitator in this process.
Dealing with the absence of a Stipulation/Preface stating – “subject to other provisions of this Part”
The absence of a proviso or a clause such as “subject to other provisions of this Part” does not put any one
particular Part III right at a higher pedestal in constitutional order of priorities. During the operation of a
Part III right, as explained above, it might experience clashes with another right. In that event,
‘pragmatic reasoning’ clearly suggests that these rights cannot work in complete isolation. For example,
there must exist a functional cooperation between Article 19(1)(a) and Article 21, so as to make the
operation of both sustainable.
In a different context, Chandrachud J. pointed out the need to harmonise different provisions under Part
III of the Constitution, in the Sabrimala judgement (Para 13 of his separate opinion). I a empt to use his
reasoning as a suitable illustration and analogy to bu ress my point. In that case, he was evaluating the
consequences of a similar absence of ‘words of subjection’ in Article 26, as compared to the wording of
Article 25(1). In this regard, he had observed that:
““Even where one provision is not subject to another there would still be a ground to read both
together so that they exist in harmony. Constitutional interpretation is all about bringing a sense of
equilibrium, a balance, so that read individually and together the provisions of the Constitution exist
in contemporaneous accord….[T]he freedoms which find an elaboration in Part III are exercised
within a society which is networked. The freedoms themselves have linkages which cannot be
ignored.””
The inherent inter-relationship and cohesion between fundamental freedoms in a modern democratic
society also lends support to the above reasoning. Herein, it might also be noted that the legal maxim
“expressio unius est exclusio alterius” (express mention of one/some, leads to the exclusion of others) does
not strictly apply in the context of constitutional interpretation.
As we are well aware, any wri en constitution is never complete or comprehensive. The gaps in the
Constitution are ought to be filled with societal values and common experiences, promoting a notion of
fluidity. The Part III rights are not placed in “water-tight compartments”, operating in a staccato fashion
(See Rustom Cavasjee Cooper v Union of India & Maneka Gandhi). They do not exist in an exclusive sphere of
operation and therefore, a measured calibration of each of them is a ‘constitutional necessity’.
Conceptualizing the Idea of a “Neutralizing Device”
The questions that now haunts us are – in actuality, how and when do we balance freedoms of identical
or equal importance? What measures ought to be deployed to recalibrate two Part III rights, wherein
neither substantively loses its essence?
The answers to the above questions may be found in certain general principles laid down by a
Constitution Bench (five-judges) in Sahara India Corporation v. SEBI (Paras 42-43). Accordingly, a three-
step test must be followed before a balancing measure is deployed:
Operation of one Part III right poses a “real and substantial risk” to the effective operation of another;
A balancing measure is necessary i.e. no ‘reasonable’ or less intrusive alternative can assist in
prevention of the said risk (necessity test); and
The salutary effects or benefits of such balancing measures outweigh the detriment caused to the
operation of the right/freedom, which is sought to be limited (proportionality test).
Upon fulfilment of the above test, as per the Sahara decision, the courts must deploy a “neutralizing
device”. Of course, there cannot be a straightjacketed or common formula for what “neutralizing
device” ought to be used in every possible situation of conflict between Part III rights. It will vary
depending on the peculiar facts of each case. But as a general principle, these devices must – (1) operate
within the parameters of necessity and proportionality as set out above; (2) pass the test of
reasonableness under Article 14, 19(2) and 21 (Maneka Gandhi); and (3) have the capacity to ‘neutralize’
the friction and discord between two Part III rights.
For example, in the Sahara decision, there was a conflict between the Freedom of Press guaranteed under
Article 19(1)(a) and Right to a Fair Trial under Article 21. In that case, the Supreme Court devised the use
of postponement orders, as a “neutralizing device”, against any publication or broadcast that may put
the proper administration of justice or fairness of the trial at “real and substantial risk”. Also, in
accordance with the tests of necessity and proportionality, the Supreme Court declared that such orders
should have effect only for a limited duration.
Moreover, in a recent 2018 decision in Kanimozhi Karunanidhi, the Madras High Court considered
another conflict between Free Speech under Article 19(1)(a) and Right of Privacy under Article 21 (Para
26). Although it did not cite Sahara, the High Court adopted a similar conflict-resolution strategy and
passed an injunction order that only prohibited publication of ‘private information’ about the applicant’s
life without her consent. But it was clarified that the injunction shall not extend to any information
relating to the work of the applicant as a Member of Parliament or as a leader of the political party (Paras
43-44).
This must operate as a guideline for all Courts in future cases of similar conflict.
Conclusion- So isn’t Kaushal Kishor (Q1) An Unnecessary Academic Exercise?
As clarified above, the Supreme Court in Sahara has already declared “the law under Article 141 on
balancing of Article 19(1)(a) rights vis-à-vis Article 21” (Paras 15, 42 & 45). Although, the decision was
relating to contempt of court, I believe the Constitution Bench had sufficiently clarified the general
principles that ought to apply in all cases of conflict between 19(1)(a) and Article 21 rights,
notwithstanding the context. Therefore, the Supreme Court has already answered the first question
framed in Kaushal Kishor in the positive, and the question is no more res integra.
According to a Constitution Bench decision in Central Board of Dawoodi Bohra (Para 12), though a bench of
co-equal strength may express an opinion doubting the correctness of the view taken by an earlier bench
of co-equal strength, but thereupon such a ma er must be “placed for hearing before a bench consisting
of a quorum larger than the one which pronounced the decision laying down the law the correctness of
which is doubted.”
Accordingly, judicial discipline and propriety suggest that the five-judges bench in Kaushal Kishor must
either uphold and reiterate the decision in Sahara; or refer the ma er to a larger bench of seven-judges
for reconsideration. They should not themselves deviate from or declare the decision in Sahara per
incuriam, as clarified in Dawoodi Bohra.

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12/31/2019 Indian Constitutional Law and Philosophy | Page 2

Constitutional Functionaries, Constitutional

23 Saturday Nov 2019

(This is a Guest Post by Nivedhitha K.)

Facts of Miller’s Case

(2) If it is, by what standard is its lawfulness to be judged?

(3) By that standard, was it lawful?

(4) If it was not, what remedy should the court grant?”

Establishing the proportionality standard

The proportionality standard applied requires the following tests to be fulﬁlled:

(b) Whether the relevant reasoning is proportional to the eﬀect.

The Indian test on aid and advice

1. Is there any relevant material to sustainthe action (‘relevancy test’)?

Form and eﬀect of the prerogative act

Proportionality standard and the Presidential rule

Indian Jurisprudence on aid and advice, and the proportionality Standard

Guest Post: Engineering a Constitutional Crisis

22 Friday Nov 2019

[This is a guest post by Ziauddin Sherkar (ziawain@yahoo.co.in)]

1. An alliance of parties that was formed prior to the Elections.

Notes from a Foreign Field: The Hong Kong High

18 Monday Nov 2019

“A little brief authority”: Chief Justice Ranjan Gogoi

17 Sunday Nov 2019

Ranjan Gogoi is no longer the Chief Justice of India.

The NRC Case

Contempt for the Evidence Act

Judicial Evasion and Electoral Democracy

Slouching towards the Executive: The Voice Samples Case

Conclusion: At the Crossroads

The RTI Judgment: On Proportionality

15 Friday Nov 2019

Chandrachud J. interprets this to mean:

The Tribunals Judgment – II: On Independence

15 Friday Nov 2019

The Majority Opinion

“Functional independence would include method of selection and qualiﬁcations prescribed, as

The Concurring/Dissenting Opinions

Addendum: Impact upon the RTI Amendments

The Tribunals Judgment – I: A Course Correction on

14 Thursday Nov 2019

14 Thursday Nov 2019

Revisiting the Aadhaar Judgment

11 Monday Nov 2019

The Role of Facts and Law

The Legal Standards

Guest Post: Constitutional Silences, Balancing of

09 Saturday Nov 2019

[This is a guest post by Anubhav Khamroi.]

Situations of Potential Conﬂict between Two Part III Rights

1. Freedom of Press [Article 19(1)(a)] vs. Right to Privacy [Article 21];

Conceptualizing the Idea of a “Neutralizing Device”

Conclusion- So isn’t Kaushal Kishor (Q1) An Unnecessary Academic Exercise?

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