Uttrakhand Eviction

Indian Constitutional Law and Philosophy 06/01/23, 10:14 AM
Indian Constitutional Law and Philosophy
Evictions and the Right to Housing: The

Uttarakhand High Court’s Haldwani Judgment
JANUARY 4, 2023JANUARY 4, 2023 GAUTAM BHATIA 4 COMMENTS
On 20th December 2022, the Uttarakhand High Court delivered judgment in a public interest
litigation, titled Ravi Shankar Joshi vs Union of India.
(https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?
filename=zDLovBVSUw02H8XukOjXfDnx2WQK8J4utDgxYMg7k3AjKc%2FI39QzBBXFaQS7rl
sn&caseno=WPPIL/30/2022&cCode=1&appFlag=) In this judgment, a division bench of the High
Court held that around 5000 individuals, living in an area called Gaffur Basti, had no legal right to
be there, as the land belonged to the Railways. The High Court then passed an order directing the
removal of all these individuals from the land within one week, “by use of force” if required.
Summary
A study of the High Court’s 176-page judgment reveals that the main finding turns upon the
status of a particular government document from 1907. Put simply, the interveners before the
Court – who were people residing on the land (many of whom had been there for decades) –
traced their legal rights to this document, which – according to them – declared that the land in
question was a specific type of land called “nazul land.” As the High Court itself notes in
paragraph 5, up until now – that is, until a public interest litigation was filed seeking the eviction
of these people – “the local bodies … had basically foundationed [sic] the class of property to be
nazul land.” The High Court, however, finds to the contrary: it holds that the 1907 document was
a mere Office Memorandum, which could not determine the classification of the land. And if the
land was not nazul land, every succeeding transaction – a sale, or a lease, or a mutation – was also
invalid. Therefore, even though many of the affected people had been living there for decades, and
did have documents to demonstrate title, they had no legal right to be on the land.
On its own terms, the decision of the High Court is legally questionable (and has been questioned
before the Supreme Court). For the present moment, however, the key issue is the High Court’s
order of eviction within a week which – at the time of the writing of this post – is underway.
https://indconlawphil.wordpress.com/ Page 1 of 38
Naturally, once the eviction process is completed, the pending appeal before the Supreme Court
will become infructuous in most respects. Consequently, what matters at the moment is whether
the High Court’s order of eviction is sustainable.
I suggest that it is not. Indeed, the order of eviction is prima facie flawed, and deserves to be stayed
by the Supreme Court, when the appeal comes up for admission.
Evictions and the Right to Housing
For the purposes of the argument, let us assume that the High Court’s finding that the residents
upon the land do not have an enforceable legal right to it is correct. The question then arises: do the
residents nonetheless have certain procedural and substantive constitutional rights before the
eviction process can be commenced? To this, the answer is in the affirmative. Going back to the
1985 judgment in Olga Tellis vs Bombay Municipal Corporation
(https://indiankanoon.org/doc/709776/), the Supreme Court (and various High Courts) have held
when carrying out an eviction, the State must respect the constitutional rights to life, livelihoods,
and housing, notwithstanding the absence of formal legal title. This stems from the recognition that
what are commonly called “encroachments” are a result of the State’s failure to discharge its
constitutional obligations to provide basic socio-economic rights (such as housing) to the citizenry.
When it comes to evictions – especially evictions that would make people homeless – an absence
of legal title does not mean that a resident is without any rights, and can simply be turfed off the
land.
What are these rights? As this piece (https://indconlawphil.wordpress.com/2020/09/05/guest-

post-the-supreme-courts-eviction-order-ignores-the-rights-of-jhuggi-dwellers/) by Rishika Sahgal
explains in some detail, there are two sets of rights: a right to notice-and-hearing, and a right to
rehabilitation under existing schemes. Let us consider the right to rehabilitation first. While the
Supreme Court had, thus far, refrained from declaring a right to rehabilitation in all cases, it has
nonetheless made it clear that before an eviction can be conducted, it must first be ascertained
which of the residents are eligible for resettlement and rehabilitation under existing state or central
government policies. In judgments after Olga Tellis, certain High Courts (in particular, the Delhi
High Court) and the Supreme Court have given concrete content to this right, noting, for example,
that the State must conduct a survey of the affected people in order to confirm their eligibility
under existing policies; failure to do so is a breach of the residents’ statutory and constitutional
rights (see Sudama Singh vs Government of Delhi and Ajay Maken vs Union of India). Admittedly, the
High Court does not do this: it proceeds directly from the finding that the residents do not have a
legal title to the land, to the order that they be evicted within a week. In this context, it is
particularly important to note that most state policies in this regard have cut-off dates, which
protect the rights (at the very least) of residents who have been on a piece of land for a long time.
In the present case, a significant number of the residents – and this is uncontroverted – had been
residing on the land for a long time (a few decades, or more).
Consequently, before ordering eviction, it was incumbent upon the High Court to (a) ascertain
which rehabilitation and resettlement policies of the state or central government were relevant to
the case at hand (for example, there is a law called The Uttrakhand Reforms, Regularization,
Rehabilitation and Resettlement and Prevention of Encroachment of the Slums located in the
Urban Local Bodies of the State Act (https://www.indiacode.nic.in/handle/123456789/4473?

view_type=browse&sam_handle=123456789/2511)). It is important to note that the absence of a policy
is, itself, a breach of the State’s positive obligations to protect the rights to livelihood and housing
of the citizenry. And (b) to direct the State to conduct a survey determining which of the residents
were eligible for resettlement and rehabilitation under the existing policies. The High Court does
not do so, and that is why its judgment is flawed in law.
What of the right-to-notice-and-hearing? One version of the right to hearing is a thin one, limited
to individuals submitting representations, which are then acted upon by the competent authority.
Given the consequences of eviction orders, however, Courts have developed a richer conception of
hearing in such cases, which is called “meaningful engagement.” As the term suggests,
meaningful engagement requires the authority to engage on equal terms with the residents,
concerning the impact of evictions upon lives and livelihoods, and to take its decisions only after
that process has been completed.
The Uttarakhand High Court misunderstands the concepts of hearing and meaningful
engagement. It determines that the procedural requirements have been fulfilled because it granted
to the residents a right to intervene and make legal submissions before the Court. This gets the law
wrong in two respects. First, hearing and meaningful engagement are not connected to proving
legal right to a particular piece of land. Hearing and meaningful engagement take place in the
backdrop of the fact that the residents do not have formal legal title, and how – in such
circumstances – their constitutional rights can be protected in the case of an eviction. Secondly –
and relatedly – hearing and meaningful engagement is before State authorities, not the Court. The
reason for this is obvious: if hearing and meaningful engagement is insufficient or a sham, then
the residents have the option of approaching the Court for a remedy (indeed, this is what
happened in previous cases such as Ajay Maken). But when the Court itself takes over directly, this
two-step process for safeguarding individual rights is bypassed. To take an analogy: if the
government bans a book under Sections 95 and 96 of the CrPC, I can make representations to the
government, failing which, I can approach the Court asking for judicial review of the ban.
However, if the Court itself bans a book directly, the existing two-step safeguard process is
undermined.
We can therefore see that the Uttarakhand High Court’s eviction order is legally unsustainable, as
it violates both the notice-and-hearing and the rehabilitation-and-resettlement pre-requisites
before a mass eviction can take place. For these reasons, it deserves to be stayed.
Inconsistent Application of Procedure
There are a few additional points about this judgment that need to be made. The first is that this is
not a case where the State authority (in this case, the Railways) was evicting people, and those
people came to Court for protection. Rather, this is a case where an individual filed a public interest
litigation in order to get people evicted through a Court order. Now, given that PILs are only
maintainable if one demonstrates the violation of a fundamental right, what specific, identifiable
right of the PIL petitioner was at stake in the present case? The Court makes no attempt to answer
this question; it only reiterates the tautology that PILs are for “the public at large” (para 196), and
berates the two or three interveners who had challenged maintainability.
Furthermore, while the High Court is perfectly happy to bend procedural requirements to allow a
PIL where the prayer is not to protect a fundamental right but to evict people, it suddenly
remembers the importance of procedure when it comes to the interveners (the actually affected
people). When a few of the interveners attempt to challenge a demarcation report prepared by an
advocate-commissioner in a previous (connected) PIL, the High Court forbids them from doing so,
on the ground that it was not challenged at the relevant time (para 132). Quite apart from the fact
that the interveners only came to know about the present proceedings because of a public notice –
and therefore, arguably, could not have challenged the demarcation report before – this is a bizarre
inversion of procedure, where a person filing a PIL to evict people seemingly does not have to
satisfy procedural constraints, but the people getting evicted are held to a strict procedural
standard.
Vitiation by Judicial Bias
Finally, there are various passages in the judgment that raise a distinct possibility of judicial bias.
In paragraph 63, the High Court states:
Owing to the certain most reckoned political shield, which was then being provided by the then Ruling
party for its political gains to the unauthorised occupants, just to secure its vote bank, the State itself has
filed a Review Petition, for no subsisting and valid reasons, being Review Petition No. 6 of 2017, seeking
review of the judgment dated 9th November, 2016, which too was dismissed by the Division Bench vide
its judgment dated 10th January, 2017.
This is an extraordinary paragraph. Note that the High Court does not castigate the State; it
castigates the “then ruling party” – i.e., a previous government, not a party to the present
proceedings – and then engages in a judicial dog-whistle by referring to “vote banks.” Later on in
the judgment, the High Court doubles down further, holding in paragraph 247:
This Court will not be hesitant to observe that in the instant case too, the present encroachers over the
railway land were sheltered by the political heads of the State Government and were having political
patronage, which at the relevant time, when the earlier Division Bench decided the matter, it was in the
helm of the affairs, and particularly, the shelter provided by the then sitting M.L.A., who was also
enjoying a status of being a Cabinet Minister, in order to secure her vote bank, have been irrationally
resisting any act of removal of the unauthorized occupants from the land, in order to protect her vote
banks.
Here, the Court now extends its attack not just to a specific government, but also to the “then
sitting MLA”, and makes accusations against a specific individual of – effectively – breaking the law
for the purpose of protecting her “vote bank.” Once again, the MLA in question was not a party to
the case, had no opportunity to have these accusations put to her and to respond to them, but
nonetheless is at the receiving end of an adverse finding by the Court. In this context, it is important
to recall the words of the Supreme Court in Bhullar (https://indiankanoon.org/doc/138575974/),
noting the importance of laying aside “private views” in the discharge of judicial functions, as
well as the observations in P.D. Dinakaran (https://indiankanoon.org/doc/990570/), stating that
“personal prejudice” cannot be a part of the decision-making process. When you look at these
paragraphs, however, which amount to an attack on a previous government, an attack on a
previous MLA, and accusations of collusion between the MLA and her constituents – none of
which have a bearing on the legal issues at hand – it is hard to see how the observations in Bhullar
and Dinakaran are not attracted.
Furthermore, at various places, the Court directly berates the interveners, and attributes motive to
them. When an intervener challenges the maintainability of the PIL, the Court states that it is a
“malicious intent to confuse the Court” (para 191); for another intervener, the Court states that
“the learned counsel for the applicant craftly (sic), in order to confuse the issue furthe, and for all
clever devices adopted by the applicant…” (para 208); to yet another, it says that “it cannot be
ruled out, that a deliberate effort has been made by the applicant was to (sic) confuse the
proceedings.” (para 214) It is respectfully submitted that such intemperate language does no
credit to the bench.
Conclusion
While the merits of the High Court’s judgment deserve closer examination, the present case also
presents an opportunity to the Supreme Court to clarify and restate the law on evictions and the
right to housing under the Indian Constitution. This is an excellent opportunity for the Court to
clearly set out the substantive notice-and-hearing and rehabilitation-and-resettlement principles
and the scope of their application. Not only would this help settle present confusion about the
state of the law, but also deal with the recent pandemic of evictions and demolitions that is
sweeping the country, and which presents a serious threat to constitutionalism and the rule of law.
“Every noble cause claims its martyr”: The

Supreme Court’s Demonetisation Judgment
JANUARY 3, 2023 GAUTAM BHATIA 4 COMMENTS
In a previous post on this blog, we had discussed some of the key issues in the demonetisation
challenge that was pending before the Supreme Court (Schrödinger’s Central Bank
(https://indconlawphil.wordpress.com/2022/12/25/schrodingers-central-bank-key-issues-in-
the-upcoming-demonetisation-judgment/)). In its judgment – Vivek Narayan Sinha vs Union of
India (https://main.sci.gov.in/supremecourt/2016/37662/37662_2016_3_1501_40708_Judgement_02-Jan-
2023.pdf) – delivered yesterday, the Court upheld the demonetisation policy by a 4-1 majority. This
post analyses some of the features of the judgment(s).
The Relationship between the Government and the Central Bank
As we have discussed previously, at the core of the case was the interpretation of Section 26(2) of
the RBI Act, which states, in relevant part, that “on recommendation of the Central Board the
[Central Government] may, by notification in the Gazette of India, declare that, with effect from
such date as may be specified in the notification, any series of bank notes of any denomination
shall cease to be legal tender.” Two issues arose. The first was whether the phrase “any series”
included all bank notes of a certain denomination (e.g. Rs 500 or Rs 1000). The second was: what
role did the phrase “on recommendation of the Central Board” accord to the government?
As we have discussed previously, the government’s response to these two issues set up an internal
contradiction in its own case. The petitioners argued – among other things – that if “any series”
included “all series”, then the section suffered from excessive delegation, as Parliament had
provided no guidelines or principles on the basis of which such extensive action could be carried
out. The government responded by saying that the very presence of the Central Bank – an
independent body comprising of experts, whose status under the RBI Act was higher even than
Parliament – in Section 26(2) was sufficient. But when it came to the phrase “on recommendation”
– where the petitioners argued that if Central Bank independence meant anything, it meant that
the recommendation would have to be initiated by the bank – the Government switched tracks and
downgraded the Central Bank’s role to “collaborating” with the executive.
Unfortunately, the majority opinion – which spends the better part of 259 pages reproducing the
government’s arguments and then agreeing with them – replicates this internal contradiction.
With respect to the interpretation of the phrase “any series”, the majority holds that “pragmatic
interpretation” requires it to find that “any” means “all.” As an interpretive argument, this is fair
enough. But, having held that a power of this nature – and this extent – vests in the executive, one
would then expect the majority to engage seriously with the excessive delegation argument. It
does not do so. After citing a plethora of cases on excessive delegation, the majority holds – in
paragraph 203 – that: “we, therefore, find that there is an inbuilt safeguard in sub-section (2) of
Section 26 of the RBI Act inasmuch as the Central Government is required to take a decision on
the recommendation of the RBI.” The majority therefore agrees with the government’s argument
that the protection against excessive delegation is found in the fact that an independent,
autonomous, and technical body – charged with managing currency in India – is the body that will
recommend demonetisation.
Now, on its own terms, this is a dubious argument: the doctrine of excessive delegation is meant to
preclude the legislature from outsourcing its essential functions of lawmaking to other bodies, of
whatever kind they may be. But let us, for the purposes of argument, take this point on its own terms.
In paragraph 205, the majority does ask the correct question: that the question of whether the RBI
Act provides adequate guidance to the delegate, or not, has to be determined by examining “the
express provision empowering delegation or the other provisions of the statute, the preamble, the
scheme or even the very subject-matter of the statute.” Having said that, you would then expect
the majority to highlight some of these “express provisions”, or the “preamble”, or the “scheme”,
or the “subject matter” that provide adequate guidance. However, the majority does not do so. It
does not refer to a single provision, or the preamble, or the scheme, or the subject matter, to
demonstrate what the legislative guidance to the delegatee is. It does not do so because of course,
as anyone who reads the RBI Act will see, there is no guidance. Instead, therefore, the majority
retreats once more to the presence of the central bank and its “experts” as the safeguard against
excessive delegation.
Having made this brief – and abortive – attempt to engage with the real issue, the majority then
holds in paragraph 208, that the delegation under the RBI Act is “the delegation is made to the
Central Government and not to any other body.” It then holds that the Central Government is “the
highest executive body of the country,” which is responsible to Parliament, who – in turn – are the
representatives of the people. For this reason, again, it holds that section 26(2) does not suffer from
excessive delegation.
This is both mystifying and badly wrong. Up until paragraph 203, the argument seems to be that
section 26(2) does not suffer from excessive delegation because of the presence of a technical,
expertise-filled, autonomous body like the RBI. The underlying premise here is that
demonetisation (as an aspect of currency management) is a technical issue, and the “guidance”,
therefore, will come from a technical body; consequently, the guidance need not be in the
legislation itself, as it is the RBI that will formulate it, keeping in mind its technical and
autonomous status. But then, in paragraph 208, we see a complete flip: section 26(2) is fine because
the delegate is the highest political body in the country. But if that is the justification, then the
doctrine of excessive delegation bites back with a vengeance: the whole point of the doctrine is
that the legislature is not meant to delegate essential lawmaking functions, to administrative
bodies such as the executive. The majority’s argument that the executive is answerable to
parliament gets Constitutional Law 101 wrong: it confuses democratic legitimacy with the separation
of powers.
The majority, thus, sets up two contradictory premises within the same argument: that section
26(2) is fine because the essential legislative task has been delegated to an independent, technical
and autonomous body, but also, it is fine because the ultimate delegate is the political executive.
It is here that Justice Nagarathna’s dissent is instructive, because she recognises this fundamental
dichotomy. Nagarathna J. therefore draws a distinction between two kinds of demonetisation:
demonetisation that is a simple function of currency management, and demonetisation that is
undertaken to serve legitimate political goals (in her view, these include dealing with black money,
terror financing etc). Nagarathna J then argues Section 26(2) is only meant to deal with the first
kind of demonetisation, and that for this reason, the word “any” is not intended to include “all.”
The contrary interpretation would mean that Section 26(2) did suffer from the vice of excessive
delegation, as – Nagarathna J correctly recognises – neither the provision nor the Act contains any
legislative guidance. In essence, therefore, Nagarathna J’s argument is this: if you are going to
argue that Section 26(2) is fine because of the presence of the central bank, then you must limit its
scope to the limited, technocratic, currency-management demonetisation that the central bank is
competent to make recommendations on. Wholesale demonetisation – that removed 86% of the
currency, as the 2016 demonetisation did – in express service of stated political goals – cannot be
done within the remit of Section 26(2).
Does this mean that wholesale demonetisation – as in 2016 – is impossible? Of course not. Pointing
to the two previous instances of demonetisation in our history, Nagarathna J holds that if the
government does want to engage in that kind of demonetisation, it must be through legislation:
Parliament – as the representative of the People – must be involved (and if speed and secrecy is of
the essence, the Ordinance route is always possible). And this makes eminent sense: if indeed the
goals are tackling black money and terror financing, then these are exactly the kinds of things that
Parliament should be debating. Nagarathna J’s dissent, therefore, is a powerful argument against
the increasing drift to the Imperial Executive that we have been seeing in recent times, and that
has – regrettably – been enabled by multiple judgments of the Supreme Court.
The “Independent” Central Bank
The majority’s internal contradictions are further heightened when it comes to the interpretation
of “on recommendation of the Central Board.” In the previous post
(https://indconlawphil.wordpress.com/2022/12/25/schrodingers-central-bank-key-issues-in-the-
upcoming-demonetisation-judgment/), we have discussed this at some length. The key question
– whether the proposal under Section 26(2) has to be initiated by the Bank or whether it can also
be initiated by the government – comes down to what role the Bank has under the scheme of the
RBI Act.
Here again, the majority essentially reproduces the government’s argument that there has to be
“consultation” between the RBI and the government as a precursor to the recommendation under
Section 26(2) (paragraphs 239 and 243). And once again, we have the two parts of Section 26(2) at
war with each other: Schrodinger’s RBI is simultaneously both independent and autonomous
enough that Parliament can leave demonetisation to it without any legislative guidance,
essentially making it – as the government itself argued in its affidavit – equal to or even higher
than Parliament in this domain; but simultaneously, the process not only permits, but is entirely
saturated by executive entanglement. The majority, thus, simultaneously upgrades and
downgrades the RBI, and picks and chooses whichever version justifies the government’s
argument at whichever time. Previously, on this blog, we have referred to this as a
‘constitutionalism of convenience.’
The dichotomy is, once again, recognised in Nagarathna J’s dissent, when she notes that under a
Section 26(2) demonetisation, the initiation has to be by the central bank, otherwise the basic logic
of the section fails; and under the basic principles of the rule of law, if it is prescribed that
something must be a done in a certain way, it must be done that way, or not at all. As I have
written previously, there are some instructive parallels here with the Kenyan Supreme Court’s
judgment in the BBI Case, which considered the question of whether the President of Kenya could
initiate a constitutional amendment through a “popular initiative route.” The Kenyan Supreme
Court held that while the President had other routes to initiate constitutional amendments, he
could not take over a legal pathway that specifically contemplated that another body – in this case,
the People – would commence the process. Underlying Nagarathna J’s dissent is the insight that if
the central government is vested with the power to initiate demonetisation under Section 26(2) –
what the majority euphemistically refers to as “consultation” – central bank independence has
essentially become a fig leaf.
The Process
We now come to the process itself. This part of the majority’s judgment is riddled with conceptual
errors and confusions, but before we go there, it is important to reiterate
(https://indconlawphil.wordpress.com/2022/12/25/schrodingers-central-bank-key-issues-in-
the-upcoming-demonetisation-judgment/) just how deeply irregular and problematic the Court’s
approach to this issue has been. The documents on the basis of which the majority gives a clean
chit to the government were secret documents, submitted after the hearing was over. The petitioners
were given no chance to see or respond to them. The public has not seen them (other than a couple
that were published by the newspapers). But nonetheless, the majority assures us that everything
is fine, and that on the basis of the documents that it has seen, the RBI evidently applied its mind
and acted independently when recommending demonetisation.
In a constitutional democracy, the judiciary’s only source of legitimacy is the exercise of public
reason. Public reason demands that (barring a few exceptional cases), a judicial order set out the
legal basis of the holding, and the facts that underly the reasoning. If the facts and evidence are
secret, then it is no longer public reason. Not only have the petitioners been deprived of a
opportunity to fairly argue their case, but the Court has also completely shielded itself from any
scrutiny of its own judgment: if we don’t know the basis on which the Court has held in favour of
the government, we have no way of examining its reasoning, or scrutinising whether it stands up
to accepted standards of legal and factual analysis. It is the judicial equivalent of me asking you
for a source for your claim that Lionel Messi is going to play for Manchester United, and you
answering: “trust me, bro
(https://www.reddit.com/r/AskReddit/comments/sybv46/what_is_the_meaning_of_source_tr
ust_me_bro_meme/).” That may be good for football banter, but it is not good for a constitutional
court.
What is further problematic is that in paragraph 236, when discussing whether the quorum was
made out, the majority refers to an affidavit filed on 6th December, 2022. The record of the
proceedings shows that judgment was reserved on 7th December, 2022
(https://main.sci.gov.in/supremecourt/2016/37662/37662_2016_3_501_40513_Order_07-Dec-
2022.pdf). So essentially, the majority relied on an affidavit filed by the government one day before
the hearings got over, and which the petitioners had no chance at all to address.
Now, if you’re going to do this sort of thing, why engage in the farce of a month-long hearing?
Why waste so much judicial time on listening to oral arguments? You can just ask the government
to (secretly) submit its documents (in a sealed cover), and write an order based on those
documents. It would simply save everyone’s time, and the outcome would be the same in any
event.
Moving on, though, let us come to the majority’s legal analysis. As I have said earlier, it is
impossible to assess the majority’s application of the law to the facts, as the facts are secret, so we
must limit ourselves to the legal standard. The majority first applies the Wednesbury standard of
irrationality (paragraph 226) to hold that “upon perusal of [the secret] material on record, we are
of the considered view that the Central Board had taken into account the relevant factors” when
recommending demonetisation. It then holds that whatever hardships caused by the policy were
irrelevant, as “every noble cause claims a martyr” (paragraph 257) (more on this in a moment).
Having said that, however, the majority then inexplicably goes on to write a full section on
whether demonetisation failed the test of proportionality. This is baffling. Wednesbury
irrationality and proportionality are two very different legal standards. You use one or you use the
other. You can’t use both, because Wednesbury irrationality is partially contained within one of the
prongs of the proportionality standard (rational nexus with objectives). So, which is the correct
standard? We do not know.
The Proportionality Test
However, having invoked proportionality, the majority goes on to make a dog’s dinner of it. In
paragraph 273, it asks:
Can it be said that demonetizing high denomination bank notes of Rs.500/- and Rs.1000/- does not have
a reasonable nexus with the three purposes sought to be achieved? We find that there is a reasonable
nexus between the measure of demonetization with the aforesaid purposes of addressing issues of fake
currency bank notes, black money, drug trafficking & terror financing. As such, the second test stands
satisfied.
But what is the reasonable nexus? The Court undertakes no analysis. Its argument literally takes
the form: “Can it be said that A is not B? We find that A is B. QED.” What kind of reasoning is this?
And what it makes it worse is that the RBI’s own documents
(https://rbidocs.rbi.org.in/rdocs/content/PDFs/89654.pdf) (see pgs 707-709) state that prior
demonetisation attempts did not succeed in tackling the problem of black money; consequently,
the argument that there was no rational nexus between the policy and the goal – and argument
that, incidentally, has been borne out by history – deserved serious analysis, not bombastic
rhetoric.
The majority’s reasoning is even more non-existent when it comes to the third prong of the
proportionality test, which is that the measure must be the least restrictive alternative available to
the State. The third prong is the one that, in theory, has the most bite, as it requires the State to
justify why it picked a more restrictive alternative out of a range of possible ones. The majority
however, turns this completely on its head, by holding that “what measure is required to be taken
to curb the menace of fake currency, black money and terror financing would be best left to the
discretion of the Central Government, in consultation with the RBI” (paragraph 274). Now, this is
in no way an application of the proportionality standard – it is a reverse of the proportionality
standard, which – even in its most relaxed form – requires some justification to be provided by the
State.
As far as the fourth prong of the test goes, the majority chooses not to apply it at all. The fourth
prong requires a balance between the importance of the goal and the extent of the restriction. It is
here where the “hardships” of demonetisation – and where the majority is so anxious to make
martyrs out of human beings – is legally relevant: if you remove 86% of the currency in one fell
swoop and unleash severe hardship upon people in terms of their lives and livelihoods, then the
proportionality test requires you to justify that that level of hardship is proportionate to the goal.
Instead of engaging with the issue, however, the majority once again takes refuge in rhetoric.
Indeed, it goes further. When considering the second prong, it merely asked: “can it be said?”
Now it asks: “can it really be said that there is no proper relation between the importance of
curbing the menace of fake currency, black money, drug trafficking & terror financing on one hand
and demonetizing the Rs.500/- and Rs.1000/- notes, thereby imposing restriction on the use of
demonetized currency?”
It’s no longer just “can it be said?” It’s now “can it really be said”? The “really” has changed
everything.
We can therefore see that while purporting to apply proportionality, the majority does nothing of
the sort. It either gets the legal standard wrong, or refuses to apply it, substituting analysis with
“can it be said?” and “can it really be said?” Indeed, this is of a piece with the rest of the judgment:
wherever you look for reasoning, what you find is rhetoric and a refusal to seriously engage with
the crucial constitutional issues that this case raised.
It is worth briefly flagging Nagarathna J’s analysis of process. In a section titled “Affidavits and
Records of the Case”, Nagarathna J observes that the RBI’s own documents show that it was the
government that “recommended” demonetisation, that a draft scheme was being made “as
desired” by the government, and that a recommendation had been “obtained” from the bank for
this (paragraph 17). She also notes that the documents show a conflict between the bank’s goals
for demonetisation and the government’s, showing that the so-called “consultation” was illusory
(paragraph 17.8); and that furthermore, the records showed that the hurry in which these
communications were exchanged (in under 24 hours) – clearly pointing to an absence of
application of mind by the bank (paragraph 19).
These observations are important, because they show us precisely what we miss when decisions
are based on documents submitted to the Court in a sealed cover. Had there been no dissenting
opinion, the majority’s glossing over of some truly damning evidence about procedural flaws
underlying demonetisation would have remained glossed over. It is worth repeating that a
judgment based on secret evidence is no judgment at all: it fails the most basic tests of the rule of
law in a constitutional democracy.
Conclusion: “Every noble cause claims its martyr.”
In paragraph 257 of its judgment, the majority – citing previous precedent, with approval, quotes:
“every noble cause claims its martyr”, to dismiss the petitioners’ arguments about the hardships
caused by demonetisation.
Lest you think this is a clumsy euphemism, it is worth remembering that in the week after
demonetisation, thirty-three people died (https://indianexpress.com/article/india/india-news-
india/demonetisation-suicides-heart-attacks-and-even-a-murder-among-33-deaths-since-decision-
4378135/). These people – human beings – died while waiting in interminable bank queues to
withdraw their money, they died by suicide because their money had become worthless, and
children died because hospitals or ambulances refused to accept 1000 rupee notes.
A martyr is someone who voluntarily suffers death because of their adherence to a faith or a belief.
The majority now tells us that all these people who died – including infants – sacrificed
themselves as martyrs in service of the great religion of demonetisation. They did not die because
of State failure and governance failure, no, they sacrificed themselves instead.
In so saying, the majority does not simply demonstrate callousness and a disregard for human life.
It does the worst thing one can do: it denies the dead the dignity of honestly acknowledging how
and why they died, and tries to wrap them up in the tattered flag of martyrdom instead. Long
after the dust has settled on this case, and long after demonetisation is itself a memory, this line
will remain an indelible stain in judicial history.
Guest Post: The Personal Data Protection Bill

and the Right to Privacy
JANUARY 2, 2023 GAUTAM BHATIA 2 COMMENTS
[This is a guest post by Siddhaant Verma.]
Introduction
After a 9-judge bench of the Supreme Court in Justice K.S. Puttaswamy v. Union of India
(https://indiankanoon.org/doc/91938676/) recognized the right to privacy as a fundamental
right, several attempts have been made to enact a data protection regime in India. The newest
iteration of the Personal Data Protection Bill (“PDPB”)
(https://www.meity.gov.in/writereaddata/files/The%20Digital%20Personal%20Data%20Potectio
n%20Bill%2C%202022_0.pdf) was released on November 18, 2022, for public consultation. While
the Bill takes several commendable steps to ensure that it complies with international standards of
data protection such as the General Data Protection Regulation (“GDPR”), it nevertheless suffers
from several infirmities that renders its constitutionality questionable. This article will seek to test
the provisions of the PDPB on the anvil of Puttaswamy and other similar judicial pronouncements
to analyse whether it passes constitutional muster.
Deemed Consent
The introduction of the Bill drew mixed reactions

(https://www.barandbench.com/columns/analysis-of-the-draft-digital-personal-data-protection-
bill-2022) from legal experts. While some lauded it for enacting a strong consent-based regime of
data privacy, others have expressed concern over the broad powers given to the government. To
analyse such infirmities in detail, let as look at Section 8 of the Bill. While generally, the Bill
mandates that personal data must only be processed after the express and unambiguous consent
of the data principal, S. 8 provides that such consent may be ‘deemed’ in certain circumstances.
This provision draws from S. 15 of the Personal Data Protection Act of Singapore
(https://sso.agc.gov.sg/Act/PDPA2012?ProvIds=P14-#pr15-), which recognizes that there may be
situations where processing of data is reasonably necessary without express consent. Non-consent-
based grounds for processing data are also mentioned in Article 6 (https://gdpr-info.eu/) of the
GDPR. However, the PDPB goes even further, by providing for deemed consent on a broadly
defined ground of ‘public interest’ in S. 8(8). Public interest has been defined under S. 2(18) as
including the sovereignty of India, security of State, public order etc. However, S. 8(8) provides for
deemed consent in cases of credit scoring, which is wholly incompatible with even the most liberal
definition of public interest. Credit scoring involves the collection of highly sensitive personal
information including financial data and history. Collection of such data without the express
consent of the principal constitutes a clear threat to their privacy. Puttaswamy has clearly
prescribed for a requirement of ‘narrow tailoring’ of a law infringing the right to privacy, i.e., the
law must be framed restrictively to achieve its stated objective. The object of the Bill being to enact
a data protection regime which balances the importance of consent and larger public interest,
needlessly broadening the ambit of public interest to include unrelated grounds is uncalled for.
The Apex Court in Puttaswamy also emphasised the importance of the non-discrimination
principle of data protection, which prescribes that the collection and processing of data must not
discriminate on the basis of race, ethnicity, religion and other similar characteristics. The new Bill,
unlike its 2018 iteration
(https://www.meity.gov.in/writereaddata/files/Personal_Data_Protection_Bill,2018.pdf), has
also done away with the distinction between non-sensitive and sensitive personal data. For
instance, under S. 16 of the old Bill
(https://www.meity.gov.in/writereaddata/files/Personal_Data_Protection_Bill,2018.pdf),
employment was a basis for processing only non-sensitive personal data. The new Bill is couched
in broader terms wherein S. 8(7) gives employers the authority to process sensitive information of
the data principal without express consent. In the old Bill, details such as sexual orientation, sex
life, transgender status, caste, religious affiliation etc. were covered under ‘sensitive personal
data’. If employers can obtain broad based consent to process such sensitive information of their
employees, it may lead to unfettered workplace discrimination of gender, sexual, caste, and
religious minorities.
Government Exemptions
S. 18(2)(a) empowers the Central Government to exempt instrumentalities of state from the
application of the provisions of the Bill. It is pertinent to note that this is a blanket exemption
without any procedural safeguards. Maneka Gandhi (https://indiankanoon.org/doc/1766147/)
propounded that a transgression of Article 21 must meet the threshold of a ‘fair, just, and
reasonable’ procedure. Puttaswamy further introduced the requirement of ‘proportionality’. The
proportionality test, now concretized by judgments such as Anuradha Bhasin v. Union of India
(https://indiankanoon.org/doc/82461587/), contains four prongs— (a) the law infringing on
privacy must have a legitimate goal, (b) it must bear a rational nexus with the said goal, (c) there
must not be a less restrictive but equally effective alternative, (d) it must not have a
disproportionate impact on the right-holder. Under S. 18(2)(a) the government can exempt
instrumentalities of state on grounds akin to those enumerated in Article 19(2), which is evidently
a much lower threshold than the proportionality review. Furthermore, this provision violates
prongs ‘(b)’, ‘(c)’ and ‘(d)’ of the proportionality test. It is not denied that there may be a necessary
and compelling state interest in granting an exemption to the government in the interests of
national security. However, a blanket exemption from all provisions of the Bill is excessive. The
state is already permitted to process personal data without express consent of the data principal in
furtherance of public interest under S. 8. This provision should be sufficient to allow the state to
counter illegal activities without having a heavy procedural burden, i.e., it is a lesser restrictive but
equally effective measure. Exempting the state from general obligations under S. 9, which includes
taking reasonable safeguards to prevent data breaches, or S. 10, which provides for the protection
of children in relation to data processing, bears no rational nexus to the object of preventing public
disorder or maintaining national security. It is a disproportionate measure, which expands state
power at the expense of individual privacy.
As per S. 18(4), instrumentalities of state are also exempt from the requirement of purpose
limitation, i.e., erasing personal data after its need has been fulfilled. This too, is devoid of any
procedural safeguards and allows the government to arbitrarily retain data for an indefinite
period of time. This is a plain violation of the data principal’s right to be forgotten (“RTBF”). While
the jurisprudential acceptance of RTBF as a standalone right is murky, judgments such as
Vasunathan v. Registrar General (https://indiankanoon.org/doc/12577154/) (delivered well
before Puttaswamy) have recognized the importance of the same. This right is based on the
importance of the autonomy of the data principal. As Justice Kaul in Puttaswamy explained-
“People change and an individual should be able to determine the path of his life and not be stuck only on a
path of which he/she treaded initially. An individual should have the capacity to change his/her beliefs and
evolve as a person. Individuals should not live in fear that the views they expressed will forever be associated
with them and thus refrain from expressing themselves.” Thus, an individual should be able to control
(as far as practicable) the use of their data to protect their dignity and autonomy.
Obviously, there ought to be exceptions to this right in light of the ‘legitimate interests’ of third
parties. This may include interests based on other fundamental rights (such as use of the data for
journalistic purposes) or the interests of the government in protecting the security of the State.
Clearly, all sorts of third-party users can have legitimate interests in the use of such data, but this
has to be determined on a case-to-case bases. For guidance, the European Court of Justice in
Google Spain (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62012CJ0131)
discussed several factors that the court may consider while balancing RTBF with legitimate
interests of third parties. What is not permissible, is giving an arbitrary and blanket exemption to
the government. The bill has created a distinction between the government and private entities
which lacks an intelligible differentia and a rational nexus with the purported object of the bill.
This is a patent violation of Article 14 as well as the proportionality test. While it has been
repeatedly stressed (https://internetfreedom.in/the-governments-got-your-number-and-
more/#:~:text=Data%20retention%20mandates%20need%20to,for%20which%20it%20was%20coll
ected.) that data retention mandates must be specifically reasoned, there is no clear justification
given as to why the state is exempt from the storage limitation requirement. Clause 20 of the
Explanatory Note
(https://www.meity.gov.in/writereaddata/files/The%20Digital%20Personal%20Data%20Potectio
n%20Bill%2C%202022_0.pdf) to the Bill provides that “a clear grounds-based description of exemptions
has been incorporated in the Bill”. However, such ‘clear grounds-based descriptions’ are visibly
absent from S. 18(4). It is hard to determine whether there exists a legitimate state aim or a
necessary purpose that this provision is seeking to fulfil. In absence of a legitimate aim, it is
impossible to ascertain if the proportionality criteria has been satisfied. Even in Puttaswamy- II, the
court stuck down a regulation that allowed the UIDAI to retain certain transaction data for a
period of five years. The bench noted the disproportionate nature of the provision and recognized
that it affected the RTBF of citizens.
Conclusion
The PDPB is an ambitious, yet gravely flawed attempt at creating a data protection regime in
India. While it purports to enact a consent-based system for processing of personal data, the
government has practically given itself carte blanche to ignore the safeguards in the bill. The
immense powers given to the government, coupled with the fact that the distinction between
sensitive and non-sensitive data has now been eradicated, may lead to undue targeting of gender,
sexual, and religious minorities. The bill is riddled with arbitrary provisions that are contrary to
the right to privacy judgment. The infirmities highlighted above ought to be rectified if the
government is serious about complying with international standards in data protection.
The ConCast: Episode 6 (The Collegium)

DECEMBER 31, 2022DECEMBER 31, 2022 GAUTAM BHATIA 1 COMMENT
In Episode 6 of the ConCast, I spoke to Suhrith Parthasarathy about judicial appointments and the
Collegium.
The Podcast is available to listen below, and also on Podbean

(https://gautambhatia1988.podbean.com/e/episode-6-the-collegium/), Google Podcasts, Apple
Podcasts, and Spotify.
0:00:00 1:16:34
References:
Union Of India vs Sankal Chand Himatlal Sheth (https://indiankanoon.org/doc/1302865/).
S.P. Gupta vs Union of India (https://indiankanoon.org/doc/1294854/) [“First Judges Case”].
Supreme Court Advocates-on-Record Association vs Union of India

(https://indiankanoon.org/doc/753224/) [“Second Judges Case”].
The 99th Amendment (https://legislative.gov.in/sites/default/files/99th.pdf).
National Judicial Appointments Commission Act, 2014

(https://legislative.gov.in/sites/default/files/A2014-40.pdf).
Supreme Court Advocates-on-Record Association vs Union of India

(https://indiankanoon.org/doc/66970168/) [“Fourth Judges Case”].
The South African Judicial Services Commission

(https://www.judiciary.org.za/index.php/judicial-service-commission/members-of-the-jsc).
Abhinav Chandrachud, Supreme Whispers (https://penguin.co.in/book/supreme-whispers/).
The Kenyan High Court on Forced Sterilisation,

Informed Consent, and Constitutional Damages
DECEMBER 27, 2022 GAUTAM BHATIA 2 COMMENTS
In a judgment delivered on 16th December 2022 (L.A.W. vs Marura Maternity and Nursing Home
(https://www.kelinkenya.org/after-an-8-year-wait-for-the-first-time-ever-the-court-rules-that-the-forced-
sterilization-of-a-woman-living-with-hiv-is-discriminatory/)), the High Court of Kenya handed down
some interesting findings with respect to informed consent to medical procedures, as well as the
important issue of constitutional damages enforceable against private parties.
The facts, in brief, were as follows: in 2006, when the Petitioner was pregnant with her second
child, she visited a health centre for an ante-natal check-up, and was found to be HIV-positive. A
nurse at the Baba Dogo Health Centre advised her not to have more children, in the interests of
her own health, as well as the life of the baby. Subsequently, she was referred to a community
health worker at Karogocho, who gave her two vouchers titled “CS” and “TL”, and told her to use
them at the Marura Maternity and Nursing Home (Respondent No. 1), when she was due for
delivery. The Petitioner did so, and after a Caesarean section operation, successfully gave birth.
Soon after, the Petitioner lost her husband. She remarried in 2010, but found that she was unable
to conceive. On visiting a medical camp, she was told that her fallopian tubes had been blocked.
On enquiries, it turned out that “TL” stood for Tubal Ligation, and it was at the Respondent No.
1’s clinic where this procedure had been carried out on her. The Petitioner, therefore, sued.
Before the High Court, it was not in dispute that the Tubal Ligation process was performed on the
Petitioner, permanently depriving her of the ability to bear children. This implicated several rights
under the Kenyan Constitution: the right to the highest attainable standard of health, including
the right to reproductive healthcare (Article 43 (http://chrome-
extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.constituteproject.org/constitution/
Kenya_2010.pdf)), and other rights such as the rights to family, dignity, privacy, non-
discrimination etc. The positive obligations under Article 43 required “the State to inter alia
develop health policies, legislate on health, building and equipping hospitals, employ qualified
health professionals and facilitate their training from time to time.” (para 59) In partial fulfilment
of these positive obligations, the State had enacted the Health Act (http://chrome-
extension://efaidnbmnnnibpcajpcglclefindmkaj/http://kenyalaw.org/kl/fileadmin/pdfdownload
s/Acts/HealthActNo.21of2017.pdf) of 2017, which mandated full and complete information
regarding the provision of healthcare services to those affected.
Having thus established the constitutional and statutory framework, and the rights at stake, the
key question before the Court was whether the petitioner’s informed consent had been taken for
performing the TL process. This was because the Health Act – which, according to the Court,
stood at the level of a constitutional statute (para 169) had specifically set out a definition of
‘informed consent,’ which, in turn, had been further specified in The Kenyan National Patients’
Rights Charter (http://chrome-

extension://efaidnbmnnnibpcajpcglclefindmkaj/https://kmpdc.go.ke/resources/PATIENTS_CH
ARTER_2013.pdf). According to the Charter, the right to informed consent to treatment entailed:
To be given full and accurate information in a language one understands about the nature of one’s
illness, diagnostic procedures, proposed treatment, alternative treatment and the cost involved for one to
make and decision except in emergency cases … the decision shall be made willingly and free from
duress.
Relying upon this framework, the Mrima J then made the following important observation:
It is indeed a fact that in most cases there is a grave imbalance of knowledge and information between the
healthcare provider and the person receiving the professional services. As such, a healthcare provider is
under an obligation to ensure that such information is accurately broken down and communicated to the
patient and in a language that the patient or user understands. (paragraph 176)
This passage is important, as it lays down both the burden of proof and the standard of proof for
informed consent. Because of the institutional difference of power between the healthcare provider
and the patient, the burden of eliciting informed consent lies upon the former, and in order to do
so, they must ensure accurate and effective communication in a manner that is intelligible to the
patient, based on their socio-economic circumstances. The Court also noted that these principles, in
effect, had been codified in Sections 8 and 9 of the Health Act (paragraphs 177-180), and were in
line with international best practices (paragraphs 181-187).
Applying these principles to the case at hand, the Court found that during the TL procedure, the
surgeon “asked [the petitioner] whether she knew she was being sterilized and she answered in
the affirmative” (paragraph 195), but nothing more. During cross-examination, the petitioner
stated that she had not been informed that the procedure was irreversible (paragraph 197).
On the basis of this, the Court found that there was no informed consent. In particular:
[The Petitioner’s] low level of literacy and understanding of family planning options and health
generally imposed upon healthcare providers a high legal duty to facilitate her consent … they had the
obligation to break down and convey in a language she understood the information as to what BTL
entailed in the first place, its implications and check to ensure that she had understood what was the
procedure was all about … in addition, the healthcare provider had a legal duty as required under
Sections 8 and 9 of the Health Act to explain to her the available alternatives of family
planning. (paragraphs 204-206).
The casual manner in which the petitioner had been asked if she knew that she was being
sterilised (without more context), the sketchy consent form itself, and no further evidence
tendered on how the consent was procured, therefore persuaded the Court that the required
threshold had not been met, and consequently, the Petitioner’s constitutional rights had been
breached.
This, then, brought the Court to the question of remedies. In the present case, the Petitioner’s
rights had been violated by two private, non-State bodies – i.e., the two clinics involved. The Court
noted that:
As is the case in constitutional Petitions, there are arrays of available remedies. What a Court
endeavours to do upon confirming of any infringement is to grant an appropriate remedy. Even in
instances where a party fails to ask for a specific relief, a Court, depending on the nature of the matter
ought to craft an appropriate relief. (paragraph 244)
The appropriate remedy, the Court decided, was constitutional damages, which it proceeded to
grant.
In my view, however, the basis for the remedy was left somewhat unclear. In paragraph 248, the
learned Judge referred to his prior judgment in Patrick Alouis Macharia Maina, and relied upon the
doctrine of constitutional tort. A perusal of Patrick Alouis, in turn, reveals that the basis of the
constitutional tort doctrine is the Court of Appeal judgment in Gitobu Imanyara vs Attorney-
General (http://kenyalaw.org/caselaw/cases/view/122210/). Gitobu Imanyara, however, was a case
involving State action, and the doctrine of constitutional tort was invoked as a public law remedy
to deal with cases where, in essence, the State’s tortious action leads to a violation of constitutional
rights. The doctrine of constitutional tort is not normally used in cases of private violations of
constitutional rights.
That is not to say that the remedy couldn’t have been granted. However, I believe that to do that
required the Court to use the bridge of Article 20 of the Constitution, which applies constitutional
rights horizontally, against private parties. While the text of Article 20 is unbounded – it applies
constitutional rights horizontally in all cases – the Kenyan courts have, through interpretation,
narrowed its scope (see this paper
(https://www.euppublishing.com/doi/abs/10.3366/ajicl.2018.0217)) – in particular, to cases of
serious constitutional violations, where alternative remedies are do not exist or are inaccessible. In
my view, both conditions were met in this case. Now, once Article 20 was called into play, and the
rights in question held to apply horizontally, it would follow that the doctrine of constitutional tort
could be likewise incorporated, as the doctrine is agnostic towards the nature of the duty-bearer
once the violation of rights has been established. The proposed solution, thus, would require the Court
to (a) demonstrate the applicability of Article 20 under existing Kenyan jurisprudence, and (b)
having done so, transplant the constitutional tort doctrine from the vertical to the horizontal
context – instead of directly invoking constitutional tort.
In sum, therefore, the judgment of the High Court makes important strides in the context of
informed consent in situations of vulnerability, and constitutional damages for breach of the same;
where it arguably comes up short is in a full articulation of how and when the constitutional tort
doctrine applies to private parties, via Article 20. That might be for a case for another day!
Notes from a Foreign Field: The Ugandan

Constitutional Court Strikes Down

Vagrancy Laws
DECEMBER 25, 2022DECEMBER 25, 2022 GAUTAM BHATIA LEAVE A COMMENT
In a significant constitutional judgment, delivered on 2 December 2022 (Francis Tumwesige
Ateenyi vs Attorney-General (https://www.ulii.org/ug/judgment/constitutional-court-
uganda/2022/5)), the Constitutional Court of Uganda struck certain sections of its Penal Code
(168(1)(c) and (d)) that criminalised “vagabondage.” The relevant sections of the Penal Code read
as follows:
168. Rogues and vagabonds (l) Every …
(c) suspected person or reputed thief who has no visible means of subsistence and cannot give a good
account of himself or herself; and
(d) person found wandering in or upon or near any premises or in any road or highway or any place
adjacent thereto or in any public place at such time and under such circumstances as to lead to the
conclusion that such person is there for an illegal or disorderly purpose.
Readers will immediately recognise the similarities with various state beggary laws in India,
which use the following template language as one of the definitional elements of beggary:
… having no visible means of subsistence and wandering about or remaining in any public place
in such condition or manner, as makes it likely that the person doing so exists by soliciting or receiving
alms.
The same phraseology – ‘no visible means of subsistence’ and ‘wandering … in any public place’
is striking, until you remember that both India and Uganda were British colonies, and much like
section 377 of the Indian Penal Code was then taken by the British on a world tour of its colonies,
so – it appears – was the case with the vagrancy/vagabondage/beggary laws. Of course, the
subsistence of these laws deep into the 21st century (the Delhi
(https://indconlawphil.wordpress.com/2018/08/10/something-of-freedom-is-yet-to-come-the-
significance-of-the-delhi-high-courts-decriminalisation-of-beggary/) and J&K beggary acts were
only struck down in 2018 and 2019) says something about the post-colonial States that succeeded
their colonial forebears.
The Court’s Judgment
In any event, better late than never: the Ugandan Constitutional Court made short shrift of the
State’s attempt to defend the law. In paragraph 36, it noted:
The elements of section 168 (l) (c) are that firstly the accused is a suspected person or reputed thief. It is
not clear what he or she would be suspected of. Neither is it clear, in case of a reputed thief, as to who
would determine that he is a reputed thief, at the time of arrest and being charged. More bewildering is
the second element and that he or she has no visible means of subsistence. Visible to who? What are
visible means of subsistence that ought to reflect in the person at the time of his arrest and
charging? The last element is that he or she cannot give a good account of himself or herself?
Account about what? And to who? Is to the police officer or citizen arresting him? And what is a
good account anyway? Is this not subjective, depending on whoever hears the same?
Similarly, with respect to Section 168(1)(d), the Constitutional Court noted:
The elements for the offence under section 1 68 ( 1 ) (d) of the Penal Code Act are firstly that a person is
found wandering in or upon or near any premises or in any road or highway or any place adjacent
thereto or in any public place. Secondly that it is at such time and circumstances that would lead to
conclusion that such person is there for an illegal or disorderly purpose. The first element would appear
to refer to anyone who is outside his or her home. The conclusion in the second element would
appear to only be a matter of conjecture for the person making the conclusion. The time and
circumstances that would lead to such a conclusion are not specified. What is a disorderly purpose? No
guidance is available in the provision. And why should having such a purpose be criminalised without
an element harm or prejudice to any person? (paragraph 37)
The Court found, on this basis, that provisions were void for being excessively vague – as indeed
had been found by other Courts, considering similar laws, in Ireland and the United States (and,
of course, recently in India).
The Constitutional Court also returned the additional – interesting – finding that the provisions
contravened the presumption of innocence, which was a non-derogable right under the
Constitution. The Court found that the presumption of innocence was an integral part of the right
to fair trial, and that while in a narrow class of cases, only involving certain facts within the
specific knowledge of the accused the burden might be reversed, it could not “extend to a full
element of an offence with which he is charged for in effect it would be contravening the
constitutional presumption of innocence or derogating therefrom.” (paragraph 51) This line in the
sand is important, as we are more than aware that once the presumption of innocence starts to
become negotiable in a legal system, it is a very short road to complete erasure.
The Social History of Vagabondage Laws
Interestingly, the Court rejected the petitioners’ argument that section 168 essentially criminalised
poverty, as it was used overwhelmingly against the poor, on the basis that only anecdotal evidence
had been provided for the same. This finding, perhaps, reflects the limits of the legal imagination –
even when it is progressive and well-intentioned – in analysing the deep structural causes
underlying certain kinds of legislation.
In her book, The Emergence of Social Space: Rimbaud and the Paris Commune
(https://www.versobooks.com/books/290-the-emergence-of-social-space), Kristin Ross traces the history of
vagabondage laws in France to the emergence of capitalism. As capitalism needed a sedentary
workforce, concentrated at a place, “wandering … with no visible means of subsistence” was a
particular anathema. Ross quotes Edouard Ducpetiaux, the Belgian inspector general of prisons,
who stated that vagabondage was “a sort of proclamation of independence … the first act of
defiance against the social order.” (Ross, p. 57) As Ross then notes – in terms strikingly similar to
those employed by the Petitioners before the Constitutional Court of Uganda:
… vagabondage is a pure creation of penal law, a word of repression; it has no existence apart from a
legally constituted infraction. A vagabond is a vagabond because he or she is arrested. What is
particularly disquieting about vagabondage is its ambiguous status: technically, vagabonds have not
violated any laws (except the laws against vagabondage), they have not committed any crimes. But
their “way of life” places them in a state that supposes the eventual violation of laws: vagabonds are
always virtual, anticipatory. One writer describes the ambiguity in this way: you can’t say to a
vagabond, as you might to a criminal who has committed a crime, “Don’t do it again”; instead, you
would have to say, “Change your habits of life, take up the habits of work, etc.” Their existence in
“virtuality” or “potentiality” of misdeed makes them more threatening, as Maupassant’s 1887 story, “Le
Vagabond” makes clear than the more predictable criminal. Vagabonds … are the incarnation of a social
illness that strikes not so much an individual as a family, a generation, a lineage.
Ross goes on to point out that the great French poet, Rimbaud, found himself arrested under the
French vagabondage law, which by the time had evolved to include not only individuals without a
home, but also as those without a “metier” (profession). Ross’ work is only one of many that point
to the deep linkages between vagrancy/vagabondage laws – with their bizarre focus on
“wandering in public” – with the industrial capitalism’s specific logic of reducing social relations
to wage labour. As Soren Mau points out in Mute Compulsion
(https://www.versobooks.com/books/4107-mute-compulsion):
Capital needs workers. A steady supply of labour-power presupposes that the people needed as wage
labourers are deprived of the possibility of reproducing themselves outside of the market. This in turn
presupposes the dispossession of everyone who could potentially support those needed by capitalists as
wage-labourers.
We are thus in a position to understand why the idea of the “vagabond” presented such a threat to
the social order, and the deep roots of vagabondage laws. Arguably, in the 21st century, these laws
have lost some of their 19th-century rationales, which now makes it possible for Courts to strike
them down on the relatively neutral grounds of vagueness; but it is always worth remembering
that the basic purpose of these laws was – and always has been – to criminalise a way of life, which
exists outside the capitalist logic of the market.
Conclusion
The Ugandan Constitutional Court’s judgment is another moment of progress, as courts around
the world move to cleanse their legal systems of the remnants of British barbarity. On its own
terms, the judgment is impeccable; but it should also prompt us to think more deeply about the
relationship between law and the critique of political economy, and the scope and limits of the
legal form in bringing about emancipation.
Schrödinger’s Central Bank: Key Issues in the

Upcoming Demonetisation Judgment
DECEMBER 25, 2022 GAUTAM BHATIA 5 COMMENTS
Last week, it was announced that a Constitution Bench of the Supreme Court would be delivering
judgment in the constitutional challenge to the central government’s 2016 banknote
demonetisation (https://en.wikipedia.org/wiki/2016_Indian_banknote_demonetisation). The
case itself had been heard through November 2022, and reserved for judgment on 7th December.
On this blog, we have uploaded the written submissions of the parties in the case, accessible here
(https://indconlawphil.wordpress.com/constitutional-cases-documentation/). Ahead of the
pronouncement, this piece will deal with some of the constitutional issues at the heart of the case.
Judicial Evasion
Recall that the demonetisation of Rs 500 and 1000 banknotes was announced on 8 November 2016.
The case was heard in November 2022, six years after the fact. When arguments began, the bench
asked counsel for the petitioners whether the issues in the case had now become ‘academic.’ In
response, counsel laboured at some length – both in court, and in their written submissions – to
establish that even if demonetisation itself had become fait accompli, its constitutionality was still a
live issue, especially as it concerned crucial and unanswered questions about the relationship
between the Reserve Bank of India and the central government. Notably, in their written
submissions, the government and the RBI urged the Court not to get into the adjudication of
purely academic issues.
For obvious reasons, petitioners before the Court could not answer this question in the manner
that it merited. On this blog, however, we have no such compunctions. The real answer is that the
constitutionality of demonetisation is academic because the Supreme Court made it so. A perusal of
the orders in Writ Petition No. 916/2016 (the matter eventually argued by Mr. P. Chidambaram)
reveals that it first came up for hearing on 11th November 2016 (http://chrome-
extension://efaidnbmnnnibpcajpcglclefindmkaj/https://main.sci.gov.in/jonew/bosir/orderpdf/28
21725.pdf), three days after demonetisation was announced. A further perusal of the orders in Writ
Petition No. 906/2016 (designated as the lead matter) reveals that the demonetisation challenge
came before the Supreme Court on the following dates: 15.11.2016, 25.11.2016, 2.12.2016, 5.12.2016,
9.12.2016, 15.12.2016, 16.12.2016, 27.1.2017, 7.3.2017, 21.4.2017, 31.7.2017, 15.9.2017, 19.3.2018,
28.3.2018, 10.7.2018, 24.8.2018, 10.12.2018, 25.2.2019, and 2.9.2019. That is a total of nineteen
hearings, before it was actually heard by the Constitution Bench in 2022. Indeed, the hearing of
16.12.2016 (http://chrome-
extension://efaidnbmnnnibpcajpcglclefindmkaj/https://main.sci.gov.in/jonew/bosir/orderpdf/
2839462.pdf) is particularly important, because on that date, a two-judge bench of the Supreme
Court referred the matter to a Constitution Bench as it raised questions of constitutional
importance, and simultaneously interdicted all High Courts from hearing any matter pertaining to
demonetisation. Effectively, therefore, the Supreme Court took sole charge – and sole responsibility
– for deciding this case.
Let us for a moment grant that regular housekeeping issues justified a one-month delay between
the filing of a case and the referral to a Constitution Bench. Even after that, the Supreme Court had
ample time to adjudicate the case while the issues were still live (as the right to privacy case
showed, the Court is entirely capable of hearing and deciding constitutional cases quickly when it
so chooses). But the Court didn’t do that. It evaded. It dodged, ducked, and weaved. It stung like a
butterfly and floated like a bee. A large number of the orders after 16.12.2016 involve the Court
granting “one final opportunity” to the Respondents to file counter-affidavits. Ultimately, what the
record reveals is that the Supreme Court simply wasn’t interested in hearing the demonetisation
case while its orders may still have had some bite.
This is why, despite the petitioners’ gallant attempts to demonstrate that the issue is not academic,
one is left distinctly unconvinced. Because even if this bench were to buck the trend of judicial
deference to the executive, find that demonetisation was unconstitutional, and lay down standards
and principles ‘for the future’, this would be of no use if, when that hypothetical future arrived, a
future Court once again simply evaded deciding the case until it became a fait accompli. As the
long-pending challenges to the abrogation of Article 370 and the constitutionality of electoral
bonds show, judicial evasion remains very much a part of the Court’s repertoire at the moment.
Substantive Issues: The Status of the RBI
As a perusal of the written submissions, and the coverage of the oral arguments reveals, many
challenges have been raised to the constitutionality of demonetisation. At the heart of the case,
however, lies the crucial question of the relationship between the Reserve Bank of India and the
central government. This is implicated by Section 26(2) of the RBI Act, which has been invoked as
the legal authorisation for the 2016 demonetisation. Section 26(2) (http://chrome-
extension://efaidnbmnnnibpcajpcglclefindmkaj/https://rbidocs.rbi.org.in/rdocs/Publications/P
DFs/RBIAM_230609.pdf) states, in relevant part:
On recommendation of the Central Board the [Central Government] may, by notification in the Gazette
of India, declare that, with effect from such date as may be specified in the notification, any series of bank
notes of any denomination shall cease to be legal tender…
The key legal issue turns upon the meaning of the phrase ‘on recommendation.’ Petitioners argue
– in essence – that if central bank autonomy is to mean anything at all, then the recommendation
has to come independently from the RBI, and anterior to the central government’s actions. The
recommendation from the RBI cannot come at the instance of the central government. In the present
case, however, the chronology reveals that the process was initiated through a central government
letter ‘advising’ demonetisation on 7th November 2016, followed by the RBI recommendation to
that effect on 8th November, 2016 (see Sections III and IV of the Petitioner’s written submissions).
This reversal of the process is ultra vires Section 26(2), especially as the RBI Act, as a whole, is
premised on the independence and autonomy of the central bank. On the other hand, it is the case
of the government (https://drive.google.com/file/d/1wT6Jz6BY7BrxWR-
Kh9g8_0qsF_ansrnu/view) and of the RBI that it is open for the Central Bank to base its
‘recommendation’ on the advice and inputs of the central government, especially on issues within
the executive’s domain (such as combating terror financing, eliminating fake currency, and
eliminating black money). The RBI can still make an independent decision based on those inputs.
Indeed, the Attorney-General’s written submissions make no bones about this, arguing specifically
that, in the context of Section 26(2), an “integrated role that will be played by RBI and the Central
Government acting together in promotion of public interest” (para 2.1). According to the
government, therefore, central bank autonomy does not mean an arms-length distance between
the government and the bank, but rather, an ‘integrated role’ in which both organs ‘act together.’
The core issue, therefore, is how do we understand the place and scope of the central bank in our
constitutional scheme, and what do we mean when we say that the central bank is meant to act
‘independently’ of the government. In this context, there are two points worth flagging.
First, in the context of the interaction between different institutions, the ability to initiate a process
has a significant bearing upon questions of independence and autonomy. For example, recall the
decision of the Supreme Court of Kenya in the BBI Case: one of the questions before the Supreme
Court was whether the President of Kenya could (directly or indirectly) initiate an amendment
process that – according to the Constitution – was meant to be the reserve of the People (“the
popular initiative”). Upholding the findings of both the Kenyan High Court and the Kenyan Court
of Appeal, the Supreme Court found that the President could not. Underlying this finding was the
insight that the independence and autonomy of the People to initiate constitutional change would
be largely illusory if a figure as powerful as the President could effectively make use of the same
avenue: it would then become a top-down amendment process rather than a bottom-up one.
While the context is different, of course, the considerations in the present case are largely similar: it
is an open question to what extent two institutions can act in ‘together’ and in an ‘integrated’
manner, when one of the two institutions is the political executive. Given that fourth branch
institutional independence is already exceedingly weak (for example, the RBI Governor is
appointed by the executive), if the central government was effectively allowed to play an initiating
role under Section 26(2), it is an open question to what extent any subsequent ‘recommendation’
from the RBI would be at all ‘independent,’ in any meaningful way.*
Secondly, if we read the Attorney-General’s submissions closely, there emerges a rather surprising
internal contradiction within the government’s own case on this point. One of the arguments
made by the Petitioners is that, unless given a narrow construction, Section 26(2) suffers from the
vice of excessive delegation: it does not lay down any guidelines or considerations on the basis of
which the RBI is supposed to make a recommendation for demonetisation. The Attorney-
General’s response to this is interesting: he argues that the question of excessive delegation does
not arise, because under the scheme of the RBI Act, in the domain of currency management and
regulation, the Bank occupies a status even higher than Parliament. Consider
(https://drive.google.com/file/d/1wT6Jz6BY7BrxWR-Kh9g8_0qsF_ansrnu/view):
RBI is not just like any other statutory body created by an Act of legislature. It is a creature, created
with a mandate to get liberated even from its creator. (Paragraph 1.1.1).
And:
What is taking place, by virtue of Section 3 of the Act, read with the other provisions therein, is the
transplanting of the primary responsibility of currency management in the country from the domain of
the union executive to an expert body, the RBI (which acts through its Board), set up exclusively for this
purpose. (Paragraph 1.1.2)
And:
The RBI is specifically empowered to do certain things to the exclusion of even the Central Government.
Therefore, to place its decisions at a pedestal lower than that of even an executive decision, would do
violence to the scheme of the Act. (Paragraph 1.2)
What we have, thus, is Shrödinger’s central bank: simultaneously higher than Parliament, while
working ‘together’ with the executive; higher than Parliament when it comes to justifying the
scheme of the RBI Act, but on par with the executive when it comes to justifying demonetisation;
in essence, the central government wants to eat its cake (by defending the RBI Act’s unconstrained
delegation of functions to the RBI), but also have it (by retaining a broad role for itself in the
performance of those functions). This is nothing other than a plea for executive impunity.
Due Process: A Sealed Cover in All But the Name
Let us assume, however, that the central government’s interpretation of section 26(2) is correct. At
a minimum, however, for the recommendation to be a recommendation, it would still require the
RBI to exercise independent judgment, and not act as a rubber stamp for the government. It would
also require the recommendation to meet constitutional standards of rationality, at the very least.
This, then, leads to the procedural part of the petitioners’ challenge, i.e., a challenge to the decision-
making procedure that underlay the 2016 demonetisation.
This also leads us to perhaps the most egregious part of the present proceedings. It is obvious that
a challenge to the decision-making procedure can hardly be made without access to the
documents on the basis of which the said decision has been made. As the petitioners’ written
submissions indicate, the following documents were sought for in this regard:
… (i) the contents of the Central Government’s letter dated 07.11.2016; (ii) the agenda note prepared by
the RBI for the meeting of the Central Board on 08.11.2016; (iii) the Minutes of the said meeting dated
08.11.2016; (iv) the text of the recommendation made by the RBI on 08.11.2016; (v) the file containing
the consideration by the Central Government on 08.11.2016; (vi) the Cabinet Note prepared on
08.11.2016; (vii) and the Minutes of the Cabinet dated 08.11.2016. (paragraph 7)
As the records of proceedings reveals, the government refused to provide these documents. Now,
in the Supreme Court’s order (http://chrome-
extension://efaidnbmnnnibpcajpcglclefindmkaj/https://main.sci.gov.in/supremecourt/2016/3766
2/37662_2016_3_501_40513_Order_07-Dec-2022.pdf) of 7th December 2022, in which it reserved
judgment, we come across the following line:
Learned counsel representing the Union of India and the Reserve Bank of India are directed to produce
the relevant records.
This is mind-boggling.
In a constitutional challenge focused upon flaws in the decision-making procedure, the Supreme
Court has asked the State to produce relevant evidence after the hearing is over. It has asked the
State to reveal its decision-making process – which is under challenge – at a time in the hearing
when the petitioners can no longer address arguments. And the Supreme Court is now going to
hand down a judgment – ostensibly – based on materials that were the basis of the challenge
before it, but which one side has not been given access to. This is, in essence, the sealed cover by
another name: a decision based on secret material, which – let alone the public – even the
contested party has not been able to see and address.
It is worthwhile, at this point, to quote the Stanford Encyclopaedia of Philosophy’s definition of

the rule of law (https://plato.stanford.edu/entries/rule-of-law/) (in particular, the following
element):
1. A hearing by an impartial and independent tribunal that is required to administer existing

legal norms on the basis of the formal presentation of evidence and argument;
2. A right to representation by counsel at such a hearing
3. A right to be present, to confront and question witnesses, and to make legal argument about the
bearing of the evidence and the various legal norms relevant to the case; and
4. A right to hear reasons from the tribunal when it reaches its decision, which are responsive to the
evidence and arguments presented before it.
One would think that this is basic; yet, spot how many of these basic principles have been violated
by this one single line in the Court’s order reserving judgment. And one needs to ask oneself what
legal value is carried by a judgment which appears to fall short of complying with even the
minimum threshold of what the rule of law demands.
It is important to note that this wasn’t the only avenue open to the Court. As I have argued before
in the context of the Rafale case, the Court could have simply refused to look at the decision-
making process. That would arguably have been judicial abdication, but it would also have been,
in a way, intellectually honest. What we have now is a halfway-house to nowhere, where the
Court wants to retain its power to scrutinise government action, while at the same time in a way
that nobody can scrutinise it for how it goes about that task. Much like the executive, the Court
wants to eat its cake and have it too.
Constitutional Standards
A quick, concluding point about the applicable legal standards in this case. The Petitioners have
argued that the standard of proportionality should apply, as demonetisation impacted numerous
fundamental rights. The Attorney-General and the RBI have resisted this. What standard they
prefer is somewhat ambiguous: it has shifted between no judicial review at all, and light-touch
rationality review. The core of their case is that when it comes to the economy and to banking,
substantial play in the joints must be accorded to the government.
Two points arise in response to this. The first is that we have, once again, that internal tension in
the State’s submissions. If the decision to demonetise came from an independent recommendation
of the RBI – and if the RBI is itself an autonomous, independent body that is meant to take its
decisions on non-political bases, then there is no reason why its decisions can’t be subjected to
rigorous scrutiny, at the very least, on the defined parametres that it is supposed to apply.
More importantly, however, the proportionality standard does not commit the Court to
interventionist scrutiny. The four steps of the proportionality standard are flexible enough for the
Court to accord greater deference on economic issues: from the rationality prong to the necessity
prong, at each step, the Court can take into account that economic policy needs greater play in the
joints, and thereby, lessen the burden of justification upon the State. The proportionality test,
however, retains great value, because at all times it requires the State to justify its decision by
giving due reasons. That is the minimum that should be expected of the State, within the context
of the rule of law.
Conclusion
The history of the demonetisation case has already seen the unfortunate deployment of two recent
judicial tools that inure to the benefit of the executive: judicial evasion and the sealed cover. As we
await the final judgment of the Court – especially on the substantive and procedural issues
outlined above – it remains to be seen whether the trinity will now be completed with a judgment
that is deferential to the executive on questions of fourth branch independence, due process, and
standards of judicial scrutiny – or not.
*It is important to clarify that this post is not making an independent case for central bank
autonomy. This author does not agree with the argument that institutions like central banks ought
to be encased from democratic control (https://www.hup.harvard.edu/catalog.php?
isbn=9780674979529). It is important to be clear, therefore, that this blog post is not a first
principles argument for the separation between the RBI and the central government, but rather, an
argument within the existing statutory and constitutional context. In any event, RBI independence
affects only the section 26(2) part of the argument, and not the others.
The Madras High Court’s Judgment in Sunitha

vs Additional Chief Secretary – II: Waking Up to
the Abuse of Preventive Detention Law
[Guest Post]
DECEMBER 3, 2022DECEMBER 3, 2022 GAUTAM BHATIA LEAVE A COMMENT
[This is a guest post by Varun Ahuja.]
On 14th November 2022, a Division Bench of the High Court of Madras delivered a scathing
judgement indicting the State for misusing the preventive detention law. Titled Sunitha v. State
[HCP(MD) No. 1710 of 2022 (https://www.livelaw.in/pdf_upload/sunitha-v-additional-chief-
secretary-444316.pdf)], the Court quashed two preventive detention orders passed under the
Tamil Nadu Goondas Act, 1982 (https://www.indiacode.nic.in/handle/123456789/13294?
view_type=browse&sam_handle=123456789/2507). Both the Orders were quashed on the ground
that the activities alleged did not fall under the purview of disturbance to ‘public order’ (Para 41 &
56). Notably, the Court recognized that repeated illegal detention orders would amount to a
constitutional tort (Para 26) and awarded a compensation of Rs. 25,000 in one of the cases to be
paid by the Additional Chief Secretary, who was the detaining authority in the case. This was not
the first time that the Madras High Court awarded compensation for illegal preventive detention.
In September 2022 (https://www.livelaw.in/news-updates/madras-high-court-grants-5-lakh-
compensation-to-women-kept-in-preventive-detention-illegally-210179), the Court awarded 5
lakhs compensation to the detenu who was kept in illegal custody for 128 days after the Advisory
Board opined that there was no sufficient cause for their detention (Manokaran v. State, HCP.
No.297 of 2022 (https://www.casemine.com/judgement/in/632f1fdc66c77f7b4ff278ff))
The judgement has been discussed on this blog before

(https://indconlawphil.wordpress.com/2022/12/02/preventive-detention-state-abuse-and-an-
unconstitutional-state-of-affairs-the-madras-high-courts-judgment-in-sunitha-vs-additional-chief-
secretary/). It has been correctly lauded for recognizing a pattern of abuse by the executive and
for providing a remedy (compensation) in cases of illegal preventive detention orders. This post
will primarily deal with the use of data by the Court to reach the conclusion that the State is
misusing the law of preventive detention. Additionally, it will compare another judgment from the
Manipur High Court, which conducted a similar exercise, but stopped short of providing
substantial remedy to the detenu.
Dearth of Data
It is settled law that the powers of preventive detention are extraordinary in nature and cannot be
used in place of ordinary criminal procedure. But how does one prove that the law is being
misused by the State? The power to detain a person preventively has been in operation ever since
India became an independent Country (https://theleaflet.in/preventive-detention-laws-in-india-
a-tool-for-executive-tyranny/) (and even before). However, there has always been a vacuum with
respect to data on the number of persons being detained. Earlier, fragments of the data could have
been accessed through Questions in Parliament (See here
(https://eparlib.nic.in/bitstream/123456789/517486/1/18111.pdf) and here
(https://eparlib.nic.in/bitstream/123456789/16631/1/10_I_22081991_p56_p57_t91.pdf)) or
through Parliamentary debates
(https://eparlib.nic.in/bitstream/123456789/56189/1/lsd_01_12_29-05-1956.pdf#page=111) (See
Columns 9981-82). It was only in 2017 that the National Crime Records Bureau (NCRB) started
publishing data on the number of persons detained every year.
In 2017 (https://www.thehindu.com/news/cities/Delhi/preventive-detentions-in-2021-up-by-
237-compared-to-year-before/article65853863.ece), NCRB started publishing statistics on the
persons detained under the various preventive detention laws in its Crime in India Report
(https://ncrb.gov.in/en/crime-india). A plain reading of the total number of persons detained
show the rise in the use of preventive powers of the State. On an average, the State detains close to
ninety-five thousand people under various preventive detention laws every year.
Year No. of
persons
Detained
2017 67,084
(https://ncrb.gov.in/sites/default/files/crime_in_india_table_additional_tabl
e_chapter_reports/Table%2019A.11_1.pdf)
2018 98,768
e_chapter_reports/Table%2019A.11_new.pdf)
2019 1,06,612
e_chapter_reports/Table%2019A.11.pdf)
2020 89,405
e_chapter_reports/TABLE%2019A.11.pdf)
2021 (https://ncrb.gov.in/sites/default/files/CII-2021/TABLE%2019A.11.pdf) 1,10,683
Recently the Supreme Court, in Mallada K Sriram v. State of Telangana
(https://indiankanoon.org/doc/44772325/), 2022 SCC OnLine SC 424, highlighted the abuse by
the State of Telangana of its Goondas Act, 1986
(https://www.indiacode.nic.in/handle/123456789/8504?locale=en) and termed its repeated use ‘a
callous exercise of the exceptional power of preventive detention.’ In that case, too, the Court made use of
data and noted that:
It is also relevant to note, that in the last five years, this Court has quashed over five detention orders
under the Telangana Act of 1986 for inter alia incorrectly applying the standard for maintenance of
public order and relying on stale materials while passing the orders of detention. At least ten detention
orders under the Telangana Act of 1986 have been set aside by the High Court of Telangana in the last
one year itself. [Emphasis Supplied]
The High Court refera to this judgement (Para 8) and goes much further in conducting a granular
exercise to point out the abuse of power by the State.
High Court’s Analysis
The Court relies upon the Prison Statistics India Reports published by the National Crime Records
Bureau (Para 5) to show that the State of Tamil Nadu has had the highest numbers of detenus
since 2011. However, the Prison Statistics only show how many detenus were in jail as on 31st
December of the year the Report is being published and not the number of detention orders being
passed each year. To buttress their point further and show the frequent use of the law, the Court
relies upon the ‘Crime Review, 2020’, a Report published by the Tamil Nadu State Crime Records
Bureau which indicated that 84.3% of all detentions in the State (2457 out of 2913 orders) were
passed under the State Goondas Act (Para 10).
A source of dismay for the Court seems to be the statistics with respect to habeas corpus petitions
disposed by the Madurai Bench from January 2022 till 31 October 2022 (Para 17). The results from
this dataset is strikingly similar to a larger study (https://www.thakur-
foundation.org/upload/judgements/1665571389_Shrutanjaya%20Bhardwaj,%20Empirical%20Stu
dy%20Delay%20at%20the%20Madras%20High%20Court%20in%20Preventive%20Detention%20C
ases.pdf) conducted of the habeas corpus petitions decided by the Madras High Court (both the
Benches) from the year 2000 till January 2022 (total of 7,448 cases over 22 years) under all
preventive detention laws operational in the State. The study revealed that an overwhelming 95%
of the cases (7,096 out of 7,448) emanated from the Goondas Act; in the Court’s dataset this
proportion was 72% (961 of 1,332 cases filed). The Study states that 87.9% of the petitions (6,547
out of 7,448) were ‘successful’ i.e. the detention order was rendered illegal; the Court has a similar
finding of 84% of the petitions decided (598 out of 708). In the Court’s data for the year 2022 there
was not a single detention order which was upheld on merits; the Study paints a similar picture
showing only 1.8% of the cases (136 out of 7,448) which are allowed on merits.
An important objective of the Study was to find how much time the High Court took in deciding a
habeas corpus petition – arguing that the blame for violating personal liberty lies on the doors of
the Executive as well as the Judiciary. Under the Goondas Act, the maximum period of detention
is prescribed as 12 months (Section 13). The study showed that calculating from the date of filing
of the petition, the Court, on an average, took 141 days (a little less than 5 months) to decide a case
and in its dataset, at least 30 cases were dismissed as infructuous due to the expiry of the detention
period and 722 cases were dismissed as the detention order was revoked by the Government
(collectively amounting to 10% of the cases). On the other hand, the Court’s dataset shows that at
least 15.5% of all the cases (110 out of 708) were disposed as ‘closed’ i.e. infructuous owing to time
and revoked by the Advisory Board (Para 18).
The departure in Sunitha’s casefrom the other judgements challenging detention orders has been to
not overlook the significance of this delay but to acknowledge it and provide for practical remedy.
The Court begins the judgement in Para 3 with the lament that orders in such cases take ‘at least 4-
6 months’ to be decided ‘owing to the existing backlog of cases’ (reiterated in Para 15). This
acknowledgement is important because a speedy disposal of such petitions will help keep the
State in check and prevent wilful abuse of its extraordinary powers.
In a Similar Vein
It is not the first time a Court has used data in a challenge preventive detention order to prove
indifference of the State. While the Supreme Court in Mallada provided numbers of detention
order quashed, another judgement from the High Court of Manipur had conducted a detailed
analysis on why detention orders were being routinely quashed.
In Ningthoujam Yamba Singh v. State of Manipur

(https://www.casemine.com/judgement/in/59c5572cce686e740155445b), 2018 Cri LJ 466, the
Manipur High Court was considering a detention order passed by the District Magistrate under
the National Security Act, 1980. The detenu in this case was a Rifleman of Army Supply Corps
(ASC) and was arrested in a case of kidnapping and extortion when the detention order was
issued. The Order was quashed because even though it recorded that there is a likelihood of
release of detenu on bail, no material was placed before the detaining authority that would
indicate the same (the Court relied upon Union of India v. Paul Manickam
(https://indiankanoon.org/doc/170679023/), (2003) 8 SCC 342)
The Court went on to tabulate details of 39 cases (Para 16) where it had quashed the detention
order on the identical ground – non application of mind as regards the satisfaction of the detaining
authority that the detenu is likely to be released on bail in near future. It also pointed out that in
spite of at least 4 previous judgements (W.P. (Cril). No. 37 of 2013
(https://www.casemine.com/judgement/in/56b49231607dba348fffe88d), W.P. (Cril) No. 37 of
2016, W.P. (Cril) No. 35 of 2016 & W.P. (Cril) No. 36 of 2016
(https://www.casemine.com/judgement/in/5919f37953bee721cecb9963)), where the Court had
passed directions to the Chief Secretary of the State to circulate the judgement laying down the
correct law, the officials were still passing illegal orders (Para 21-23). The Court even registered a
suo-moto case since the detenu in that case was affiliated with the Army and continued to be in its
employment even after detention orders were issued against him. The case was titled In Re
Detention Under National Security Act, 1980, PIL 28/2017 and the decision date as shown on ecourts
is 20-06-2018; however, no judgment is uploaded by the Court, nor is it available on any other
website.
The Manipur High Court, however, left the Sate with a warning:
28. It may be also noted that this Court may be constrained to pass appropriate orders in future against
those persons responsible for issuing defective detention orders by way of imposing exemplary costs who
continue to issue such defective orders as these defective orders may amount to illegally detaining
persons and violating their Fundamental Right as guaranteed under Article 21 of the Constitution.
[Emphasis Supplied]
However, this warning has been reiterated by the same the Court again
(https://indiankanoon.org/doc/125509714/) and again
(https://indiankanoon.org/doc/141490253/) quoting the same observations from Ningthoujam
Yamba Singh but no action has been taken. Therefore, it is in this context that the Madras High
Court’s judgement in Sunitha does not pay lip-service to the cherished right of personal liberty but
ensures that the State will have to suffer consequences for its wilful disregard of the same. Only
time will tell if compensation is deterrent enough to prevent abuse of the powers but it is a
welcome change from the current status quo of absolute impunity.
Preventive Detention, State Abuse, and an

Unconstitutional State of Aﬀairs: The Madras

High Court’s Judgment in Sunitha vs Additional
Chief Secretary
DECEMBER 2, 2022DECEMBER 2, 2022 GAUTAM BHATIA 3 COMMENTS
On 14th November 2022, a division bench of the Madras High Court handed down an important
judgment on the subject of preventive detention (Sunitha vs Additional Chief Secretary
(http://chrome-
extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.livelaw.in/pdf_upload/sunitha-v-
additional-chief-secretary-444316.pdf)). The High Court examined – and set aside – two
preventive detention orders passed by the State, under the Tamil Nadu Goondas Act
(https://en.wikipedia.org/wiki/Tamil_Nadu_Goondas_Act). There are three significant features of
the judgment, that merit careful study.
A Pattern of Abuse
The Court began by recounting its experience of “scores of habeas corpus petitions” against
preventive detention orders being filed every day, which “are inevitably allowed”, albeit after 4-6
months, because of the backlog of cases (paragraph 2). The Court elected to go deeper into the
issue, and consider statistics. Consulting prison statistics, it found that Tamil Nadu had the
maximum number of people in detention, for every single year between 2011 and 2021 (rising to
51% of the total number of detentions in the country). The Court observed that this could either
mean that the state was descending into lawlessness, or that the state was abusing its ‘jurisdiction
of suspicion’ (paragraph 6). Given that an overwhelming number of preventive detention orders
(86%) were eventually set aside, and indeed, not even one was confirmed, option 2 was evidently
more likely. The Court therefore observed that, enabled by the vague provisions of the Goondas
Act, “preventive detention has become an instrument of convenience whereby such elements are
dealt with on the sure knowledge that once a detention order is passed, such persons are bound to
be jailed for at least 3-6 months, pending reference to the Advisory Board or a challenge before this
Court by way of a petition for habeas corpus.” (paragraph 13)
Remedies
Having established this “pattern of abuse,” the Court came to the issue of remedies. It noted that
“the time has now come for this Court to explore the possibility of awarding damages in cases
where detention orders are set aside after finding that it was invoked on wholly extraneous and
irrelevant grounds, which amount to a conscious abuse of power.” (paragraph 24) The Court held
that such “indifferent” detention orders would amount to a “constitutional tort”, and therefore
give rise to a claim for damages (paragraph 26). Following the judgment in Rudul Shah, the Court
characterised this as a public law remedy, flowing from Article 21 of the Constitution.
Enforcement
The Court then went on to find that in the first of the two cases before it, the trigger for
compensation had clearly been met. The Preventive Detention Order had been issued on the basis
that the detenue had abused a public servant – but given that the said abuse had taken place in a
private space, it was the evident that the threshold requirement for the application of the Goondas
Act – a threat to public order – had not been met, given the constitutional definition of “public
order” (paragraph 35). The Court held that this clearly amounted to a “casual invocation” of the
preventive detention law would violate Article 21 of the Constitution (paragraph 38). And because
it was a constitutional violation, it overrode the Goondas Act “good faith” immunity for agents of
the State. Crucially, the Court noted that this would be necessary in cases of “misuse of the
preventive detention law against a detenue who could have been proceeded against under the available
penal laws.” (paragraph 40) This is important, because the Court’s focus was not on proving ill-
intent or malice against State officials (an almost impossible task), but the fact that preventive
detention had been invoked in a case that could evidently have been dealt with under ordinary law.
Indeed, this was the basis on which the Court set aside the second detention order as well
(although it did not impose costs): in the case, the detenue had abused and bitten the finger of a
police constable. The Court noted that while this was a heinous act, there was no reason why it could
not be dealt with under ordinary penal law, without the need to invoke preventive detention
provisions. The order was, therefore, set aside.
Comment
Compensation for wrongful arrest and detention is a very under-developed concept in India, with
courts almost never holding the State to account (indeed, the Supreme Court notoriously refused
(https://indianexpress.com/article/india/india-news-india/akshardham-terror-attack-case-sc-
refuses-compensation-plea-of-acquitted-persons-2895251/) a compensation claim from people
who had been imprisoned for a decade until they were acquitted), on the basis that doing so would
“demoralise” the police and the security agencies. In that sense, the High Court’s judgment is
welcome, as are its strong remarks about the abuse of the preventive detention law. Also welcome
is its focus on asking whether the alleged offence in question can be dealt with under ordinary
law. It is worth remembering that preventive detention is meant to be an exception to the normal
rules of criminal law, which frown upon imprisoning a person not for something they have done,
but for something they might do. That principle, however, has long been lost sight of; the High
Court’s judgment reiterates that crucial distinction between ordinary criminal law and exceptional
preventive detention law, and warns against blurring the lines between the two.
That said, a few points arise. The first is that the High Court invoked the doctrine of
“constitutional tort”, but it could do with more fleshing out. The contours of the doctrine vary in
different jurisdictions (for instance, US constitutional tort is distinct from Irish constitutional tort);
thus, the nature of the doctrine, and the legal standards that it encompasses, require some
development; perhaps that is for a case for another day.
Secondly, there is the question of future enforcement. As noted above, our constitutional culture is
yet to normalise the concept of compensation against the State for wrongful arrest; consequently, it
is doubtful how effective the High Court’s judgment will be as setting out an effective and
continuing deterrent. For this reason, I believe that the High Court could have gone further than it
did. Once it had found – as it did – that there was a statewide pattern of abuse, it need not have
restricted its finding to the case before it. Previously, on this blog, I have discussed the doctrine of
an unconstitutional state of affairs (https://indconlawphil.wordpress.com/?
s=%22unconstitutional+state+of+affairs%22), defined in the following way:
The unconstitutional state of affairs is a legal ruling that allows the Constitutional Court to
acknowledge the failure of both the Legislative and Executive branches of government to enforce public
policies against widespread and systemic violation of fundamental rights
(https://books.google.com.br/books?
id=oEN8jOw1v9oC&pg=PA260&lpg=PA260&dq=the+unconstitutional+state+of+affairs&source=bl&
ots=qakL_pHAjC&sig=bfEn-lhMu-GYfIhQJ3eWdyZbrBk&hl=pt-
BR&sa=X&ved=0CD8Q6AEwBWoVChMI79L1xpOIyAIVioiQCh2Nowms#v=onepage&q=the%20un
constitutional%20state%20of%20affairs&f=false), thus justifying a judicial intervention in order to
combat the structural causes (http://journals.sub.uni-hamburg.de/giga/jpla/article/view/40) of the
violations and to put everything back in order with the Constitution.
It is evident that the High Court’s own analysis pointed to the existence of an unconstitutional
state of affairs: it found that preventive detention was being repeatedly invoked for frivolous
purposes, and effectively to keep people detained for four to six months, until the order would be
set aside by the advisory board or by the court. This was evidently a “widespread and systemic
violation of fundamental rights.” The declaration of an unconstitutional state of affairs, therefore,
would have enabled the Court to address structural causes through tools such as the continuing
mandamus, where the bench in question could have commenced continuing oversight over the
State’s use of preventive detention, with the possibility of more compensatory orders for breach.
This, I submit, would be a more effective deterrent against State impunity.
And thirdly, it is questionable whether the actual remedy is “punitive” or deterrent in any
meaningful way. The High Court ordered compensation of Rs 25,000, which – in practical terms –
is nothing at all. In order to prove an effective deterrent, it is evident that the compensation
amount must be increased by several degrees.
Conclusion
In sum, therefore, the High Court’s judgment breaks important new ground, and is a laudable first
step towards combating State impunity in the invocation of preventive detention laws, and the
normalisation of preventive detention laws. However, future judgments can now build upon this
platform, and go further.
Guest Post: Should the Doctrine of Repugnancy

Apply to Delegated Legislation?
DECEMBER 2, 2022 GAUTAM BHATIA 1 COMMENT
[This is a guest post by Ashwin Vardarajan.]
Introduction
Two recent judgments of the Supreme Court – Gambhirdan K. Gadhvi v. State of Gujarat
(https://www.livelaw.in/pdf_upload/242-gambhirdhan-k-gadhvi-v-state-of-gujarat-3-mar-2022-
411202.pdf) (March 2022) and Sreejith P.S v. Rajasree M.S
(https://main.sci.gov.in/supremecourt/2021/29608/29608_2021_6_1503_39197_Judgement_21-
Oct-2022.pdf). (October 2022) – have brought to the fore an important issue of constitutional
interpretation: does the doctrine of repugnancy, under Article 254 of the Constitution of India,
allow a law made by a State Legislature to be subordinated to delegated legislation promulgated
by the Union Government under a law of the Parliament? While the SC’s answer was a
resounding ‘yes’, the reasoning employed by it is a continuation of a pre-existing constitutional
anomaly which has existed under Article 254 for quite some time. Without questioning the
correctness of the outcomes in Gambhirdan and Sreejit on merits, this essay argues that the
reasoning employed by the SC in answering the aforesaid question is incorrect and deserves to be
reconsidered.
The Decisions in Gambhirdan and Sreejit, and a Historical Background
Briefly put, Gambhirdan and Sreejit concerned the appointment of two Vice Chancellors (‘VC’)
under state laws of Gujarat and Kerala, respectively, challenged for being in contravention of the
method for choosing a VC prescribed under the University Grants Commission Regulations,
2018 (https://www.ugc.ac.in/pdfnews/4033931_UGC-
Regulation_min_Qualification_Jul2018.pdf) (‘UGC Regulations’).
In Gambhirdan, the VC was chosen on the basis of a criteria prescribed by the selection committee
established under the Sardar Patel University Act, 1955 (‘SPU Act’) as opposed to the UGC
Regulations. The SC, in this regard, held that the SPU Act’s provisions were “contrary to the [UGC
Regulations], which…are binding on the State Government and the universities thereunder”.
While setting aside the concerned VC’s appointment for being contrary to the UGC Regulations,
they held that “being a subordinate legislation, UGC Regulations becomes part of the [UGC] Act”,
and that “any conflict between State legislation and Central legislation, Central legislation shall
prevail by applying the rule/principle of repugnancy as enunciated in Article 254 of the
Constitution as the subject ‘education’ is in the Concurrent List (List III) of the Seventh Schedule of
the Constitution.”
In Sreejith, a similar question arose in respect of the appointment of the VC at the APJ Abdul
Kalam Technological University (‘AKTU’). The challenge against the appointment of the VC was
advanced again on lines of it being in violation of the UGC Regulations. Following Gambhirdan,
the SC set aside the appointment of the VC at AKTU, noting that:
“8.2…to the extent the State legislation is in conflict with the Central legislation including
subordinate legislation made by the Central legislation under Entry 25 of the Concurrent List, the
same shall be repugnant to the Central legislation and would be inoperative.” (Emphasis added)
In effect, the two decisions discussed above rule that a subordinate/delegated legislation
promulgated by the Union Government under a law made by Parliament will have an overriding
effect over a law made by the legislature of a State in accordance with Article 254. These decisions,
however, are not the first of their kind.
One of the earliest instances encountering this issue was the SC’s decision in State of Jammu &
Kashmir v. M.S. Farooqi (https://indiankanoon.org/doc/681372/) (1972), where the All-India
Services (Discipline and Appeal) Rules, 1951 were found to be in conflict with the State of Jammu
& Kashmir Government Servants (Prevention of Corruption) Act, 1962. While relying on a
plethora of decisions dealing with the doctrine of repugnancy, the SC held the State law to be
repugnant to the 1951 Rules in accordance with Article 254. However, it must be noted that none of
the decisions which the SC relied on to substantiate its ruling dealt with a case where a Central
delegated legislation superseded a (repugnant) law enacted by the legislature of a State. Rather, all
of these decisions concerned repugnancy between laws enacted by State legislatures and the
Parliament.
Farooqi was also a deviation from the language of Article 254(1), which reads that if:
“…any provision of a law made by the Legislature of a State is repugnant to any provision of a law
made by Parliament which Parliament is competent to enact, or to any provision of an existing
law with respect to one of the matters enumerated in the Concurrent List, then…the law made by
Parliament…shall prevail.” (Emphasis added)
Clearly, the wording emphasises on the enactment of a competent State legislature and the
Parliament, and does not provide any room for delegated legislation made by the Union
Government in its language. Naturally, thus, a delegated legislation must not be included within
the fold of the doctrine of repugnancy. Farooqi also does not offer any explanation or reasoning as
to why a delegated legislation superseded an enacted law of a State legislature by virtue of Article
254, despite the language indicating to the contrary. Later, in Annamalai University v. Information
& Tourism Deptt. (https://indiankanoon.org/doc/137963677/) (2009), while dealing with the
question of repugnancy between regulations made under the UGC Act and a State law, that the SC
categorically ruled that “[subordinate] legislation as is well known when validly made becomes
part of the Act (sic).”
This observation became the basis for courts, in subsequent decisions, to conclude that if a central
delegated legislation promulgated under a Parliamentary law must be considered an extension of
the latter, and thus supersede a law made by the State legislature under Article 254. For instance,
in Kalyani Mathivanan v. K.V. Jeyaraj (https://indiankanoon.org/doc/3329988/) (2015), the SC
relied on the decision in Annamalai and concluded that the State Madurai Kamaraj University Act,
1965 was repugnant to the UGC Regulations, 2010 (a delegated legislation under the UGC Act).
Thus, Farooqi, Annamalai and Kalyani collectively allowed courts to hold that delegated legislation
promulgated under a Parliamentary law is an extension of the latter, and deserves to supersede a
repugnant law enacted duly by the State legislature in accordance with Article 254. Gambhirdan
and Sreejit are a continuation of this line of judgments.
Constitutional Concerns
It is submitted that the SC’s reasoning suffers from several infirmities.
Firstly, as noted above, and pointed out elsewhere

(https://www.thehindu.com/opinion/lead/this-unseating-of-vice-chancellors-is-
faulty/article66145326.ece) too, the language of Article 254(1) itself does not permit a Central
delegated legislation to supersede a law enacted by a State legislature. Notwithstanding that,
Article 254 resides in Part XI, Chapter I of Constitution, which deals with ‘Legislative Relations’
between the Union and the States–a domain dealing squarely with relations between State
legislatures and the Parliament, and not the State legislatures and the Union Government. To
substantiate, we also see that the provisions under Part XI, Chapter I deal only with the
distribution of legislative powers between the Parliament and State legislatures, whereas Chapter
II deals with ‘Administrative Relations’ (i.e., relations between the Union and State Executives).
Second, a potential fallout of the SC’s interpretation is that the will of a legislature comprising of
the elected representatives in the concerned Indian State is made subservient to delegated laws
promulgated by the Union Government (which may comprise of ministers indirectly elected to the
Rajya Sabha and/or possessing a lesser magnitude public confidence and trust). Furthermore, we
may also read the per incuriam–but, it is submitted, correct–decision of the Calcutta High Court
(‘HC’) in Medical Council of India v. State of WB
(https://www.casemine.com/judgement/in/56e10242607dba389660d6c7) (2012). Dealing with
the question of repugnancy between the Bengal Medical Act, 1914, and rules and regulations
under the Medical Council Act, 1956, the HC held that a “delegated legislation cannot run counter
to supreme legislation” of a State by virtue of being below an enactment of a legislature in the
hierarchy of laws. In other words, a State law can only be repugnant to a Central law’s provisions.
The Bombay HC, in Suresh Patilkhede v. Chancellor, Universities of Maharashtra
(https://www.lawyerservices.in/Suresh-Patilkhede-of-Thane-Versus-The-Chancellor-
Universities-of-Maharashtra-2012-05-11) (2012), too subscribed to this line of reasoning, but was
overruled in Kalyani.
Thirdly, Parliamentary laws frequently grant extensive authority to the Union Government to
promulgate delegated legislations under vaguely worded provisions often devoid of any
determining scope within which the Government is permitted to act. Resultantly, the Government
often exercises essentially legislative functions–i.e., functions primarily performed by a competent
legislature–without adequate checks and balances–a criticism noted
(https://indiankanoon.org/doc/189160531/#:~:text=61.%20We%20can,a%20future%20date.) by
the SC as well. Therefore, to rule in a blanket way that the delegated legislation is a part, or an
extension, of the Central law overlooks the problems it causes in the context of the doctrine of
repugnancy under Article 254. In the absence of any safeguards to tackle it, the SC’s interpretation
undermines the federal compact between the Parliament and State legislatures manifested in the
Constitution.
Fourthly, the SC in Farooqi, Annamalai, Kalyani, Sreejit and Gambhirdan did not consider its
decisions’ impact on Article 245(2). An exception to the doctrine of repugnancy, Article 254(2)
permits a State law to prevail over a Central law if the same has been placed for consideration by,
and received an assent to that effect from, the President of India. By including delegated
legislations within the fold of Article 254(1), the SC impliedly has subjected State legislatures to
undergo the tedious process–a process often influenced by political motivations–of obtaining the
assent of the President in circumstances where the Union Government promulgates a delegated
legislation which is inconsistent with the impugned State law. It is also well known that State or
Parliamentary laws go through a much more rigorous process to get passed by the concerned
legislature, as opposed to a delegated law promulgated often without any legislative sanction or
scrutiny. Thus, despite there being no discussion on this front by the SC, ripple effects of their
interpretation will inevitably impact the working of Article 254(2).
Conclusion
The doctrine of repugnancy under Article 254 has a direct bearing on the rights of States to enact
legislatures under the Concurrent List, whereby the Parliament even may occupy the concerned
legislative field even without prior consultation with the States–a concern also flagged by the
Sarkaria Commission (here (http://interstatecouncil.nic.in/wp-
content/uploads/2015/06/CHAPTERII.pdf), ¶2.14.01). By (historically) allowing Central delegated
legislations to prevail over laws enacted by State legislatures, the SC creates fissures in the balance
of legislative powers distributed between the Union and States under the Constitution. In an
appropriate case, therefore, the SC must reconsider and reverse its stance on this issue.
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Indian Constitutional Law and Philosophy 06/01/23, 10:14 AM

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