Month: September 2022

Guest Post: The NRC and Scope for Redemption – The Supreme Court’s Opportunities in Lal Bhanu vs Union of India and Ors.

Gautam Bhatia1 Comment

[This is a guest post by Atreyo Banerjee.]

Introduction

A division bench of the Supreme Court (“SC”) comprising of Justice D.Y. Chandrachud and Justice Hima Kohli will be hearing an appeal from a judgement of the Guwahati High Court (“Court”) in the case of “Lal Bhanu @Musstt. Lal Bhanu vs. The Union of India and Ors W.P. (C) 4445/2017” (“Lal Bhanu”). In Lal Bhanu, the petitioner had challenged an “opinion” issued in “BNGN/FT Case No. 1410/2007 by a Foreigner Tribunal (“FT”)  in Bongaigaon, Assam (“Opinion”) before the Court under its writ jurisdiction. In the Opinion, the FT had declared the petitioner as a foreigner, having illegally entered India from Bangladesh, and ordered for her deportation. Subsequently, in Lal Bhanu the Court upheld the Opinion without finding any infirmities with the decision of the FT. As of now, the SC has stayed the order of deportation against the Petitioner till the next date of hearing  

In this essay, I argue that the SC has been presented with a unique opportunity to remedy historical injustices arising from a near absolute vitiation of fair trial procedures which are routine in Assam’s foreigner tribunals operating under the aegis of the Court. In fact, the role of the Court (which has hitherto escaped scrutiny) has to be particularly noted. Despite being a constitutional court, the Court has played a key role in ensuring the entrenchment of injustices in a regime which operates within a legal vacuum relying on a culture of mass suspicion, as opposed to cogent evidence whilst stripping individuals in Assam off their citizenship.

Assam Sanmilita and the Case of Lal Bhanu:

The issues in Lal Bhanu have to be understood in the backdrop of the SC’s judgement in Assam Sanmilita. Ranjan Gogoi J and Rohintan Nariman J’s legacies have been well-documented on this blog (see here and here). Yet, the specifically problematic nature of the order in Assam Sanmilita  warrants a special mention. Despite it being a case where section 6A of the Citizenship Act, 1955 was challenged, the judges without addressing the vires of 6A (which has still not been heard) went on to order for an updated list of the National Register of Citizens (“NRC”). In a decision smacking of judicial overreach, the judges directed the state government of Assam to undertake a deeply complex and bureaucratic process which would feed on Assam’s already ruptured body politic. This exercise was posited on the prongs of adequate documentation (¶. 5) , without which, citizens would have to be tried by the FTs before facing deportation.

Following the orders in Assam Sanmilita, the state government specified fourteen categories of documents comprising of legacy and linkage documents, which would corroborate a citizenship claim. Legacy documents would demonstrate a citizen’s connection with the land, whereas the linkage documents read with the legacy documents were expected to rigorously support the veracity of the legacy documents.

In Lal Bhanu, the petitioner relied on linkage documents comprising of voter lists in an attempt to link her citizenship status (by blood) to her father and (by marital ties) to her husband. Incidentally, all the other family members of the petitioner had found place within the NRC but the petitioner was excluded. In addition to the voter lists, the petitioner submitted a certificate from the ‘Gaon Panchayat’ further highlighting her blood ties to her father. Further, the petitioner also produced a ‘Jamabandi’ copy showing a record of land ownership in the petitioner’s name. In total, the petitioner had tendered eight different kinds of documents as testament to her Indian citizenship. Further, the petitioner also submitted that the notice served on the petitioner by the FT suffered from laches.  

The Court found the entirety of the petitioner’s documentary evidence to be deeply lacking. The Court held that the certificate of the ‘Gaon Panchayat’ is not even admissible in evidence, as the document has to be proved by the author of the certificate. This would essentially mean that the exact person – without explicitly being summoned by the FT and/or Court – was expected to appear before the FT and corroborate the contents of the certificate. Similarly, the Court also found the voter lists to be inadmissible as they were photocopies. This is notwithstanding the fact that it is impossible for an individual to access original voter lists – being government property – on their own accord.

The Court also noted that there was no infirmity in the manner in which the notice was served to the petitioner for appearing before the FT. As per the high court, the notice was issued by the FT on a reference made by the Superintendent of Police asking an opinion of the FT on the citizenship status of the petitioner. Accordingly, there were no infirmities in the notice.

Finally, the Court observed that the petitioner had approached the Court under its writ jurisdiction. As such, the role of the Court acting on its writ jurisdiction is truncated and it cannot act as a court of appeal. Accordingly, the Court observed that it would “refrain” from reviewing the findings reached by the FT, and dismissed the petition.

Exceptional Regimes and the Guwahati High Court

Lal Bhanu is symptomatic of a larger malaise which is entrenched within citizenship adjudication as it happens in the FTs under the supervision of the Court. The malaise is an insidious form of banal legality. This banal legality finds its roots under section 9 of the Foreigner’s Act, 1946 (“FA 1946”). Section 9 reverses the burden of proof and mandates the person being investigated to discharge the burden of proving her citizenship before the FTs.

For example, in Lal Bhanu, although the petitioner submitted eight different documents, the FT found the evidence to be lacking. This in itself, may be justified. However, taking the example of the certificate issued by the ‘Gaon Panchayat’ and the inadequacy of the voter lists, the petitioner was statutorily expected to corroborate its contents. This required the petitioner to ensure that the author of the certificate is physically present before the FT for corroboration. Moreover, such author ought to have appeared before the FT on their own accord and benevolence without any formal requirement implying that the factum of requirement itself is premised on the whims and caprices of the author. It is not difficult to imagine the absurdity of this ask, as the petitioner is severely prejudiced in situations (such as Lal Bhanu) where the author of a certificate fails to appear. Be that as it may, the FT rules  provide the power to summon witnesses but given the reversal in burden of proof, and the harsh need of expediency in disposing cases, the FTs rarely use their powers to summon witnesses.

Further, in Lal Bhanu the notice itself, was served by the FT after receiving a reference from the police. Therefore, there are no processes to challenge the reference made by the Superintendent of Police. This is in stark comparison to the rules of the erstwhile regime of the Illegal Migrants (Determination by Tribunals) Rules, 1984 which provided for a rigorous standard of reference following which persons could be tried before tribunals.

Lastly, in Lal Bhanu the court highlighted the narrow role played by courts acting under its writ jurisdiction. It is trite law that writ courts are circumspect to interfere unless the principles of natural justice have been flouted and/or there is an error apparent on the face of the record. This principle assumes that an aggrieved party has access to other meaningful judicial remedies and has the capacity to exhaust those remedies. This assumption falls flat when it comes to the FTs. Neither the FA 1946 not the rules provide a statutory right to appeal an “opinion”  of the FTs. Essentially, these opinions operating as quasi-judicial orders may only be challenged in writ before the Guwahati High Court. But as the Court in Lal Bhanu has clarified, the writ jurisdiction of high courts are narrow and do not warrant a review on facts.  Therefore, not only is the evidentiary hierarchy of documents unclear and the standards of corroboration are unduly burdensome, but also a person does not have a right of appeal from cases of the FTs.

Lal Bhanu is a part of a long list of cases emanating from the Court which has severely undermined fair trial processes. For instance, in Abdul Awal the petitioner was declared a foreigner due to an error in the spelling of the petitioner’s father’s name. In Abdul Matin an ex-parte order was passed by the FT which was subsequently upheld by the Guwahati High Court. In Abdul Rahman vs Union of India and Ors (2019 SCC OnLine Gau 5708) relying on the reverse burden on proof the high court held that since the author of the ‘Gaonbura” certificate has not corroborated the certificate, the petitioner cannot rely on that for documentary evidence. In Hazara Khatoon vs Union of India and Ors. (2019 SCC OnLine Gau 953)the Court made the evidentiary requirements additionally onerous by requiring that not only must linkage documents be proved and established by the petitioner with respect to the person whose name appears therein, but also the possibility that any other person is linked to the person in the document has to be ruled out. In  Himanshu Sarkar vs State of Assam (2009 SCC OnLine Gau 272) the Court specifically referred to the egregious case of Sarbananda Sonowal which had held that India is facing “external aggression” due to migration at its borders(the author has separately discussed the case in here). The Court here, went on to hold that since the petitioner was 38 years old, his name ought to have been mentioned in voter lists without there being any legal requirement for citizens to enlist for voting. 

There are countless cases similar to the above, which have been adjudicated by the Court. These cases point to a systematic deprival of procedural safeguards when it comes to adjudication before the FTs and in writ, the Court adheres to a narrow approach and does not substantially review facts. The court has never used its powers to summon witnesses to corroborate contents of documents, or even consider a review of the facts. This approach is tantamount to adopting an “exceptional” regime where citizens in Assam are subjected to the tyrannical FTs are expected to defend themselves without statutory safeguards, applicable to other Indian citizens. Admittedly, there are cases such as Farida Khatun where the Court held that the FTs are mandated to consider the entirety of the evidence submitted by the persons. Further, the Court read the reverse burden of proof as one which implies that proceedings before the FTs are on a different footing when compared to ordinary civil and criminal proceedings. Therefore, proceedees gets a wider ambit and choice of evidence. However, such cases are outliers and rarely the norm within the Court.

Opportunities for the Supreme Court

The contestations around citizenship adjudication are many for the SC to unravel in the appeal. Nonetheless, cases around citizenship rights which come before the SC come with the twin albatrosses of Sarbananda Sonowal and Assam Sanmilita tied around their necks. The former ushered in the problematic foreigner tribunals in place of the tribunals constituted under Illegal Migrants (Determination by Tribunals) Act, year. It did so based on a dubious report submitted by the erstwhile Assam governor S.K. Sinha which was pregnant with hyperbole and scarcely objective, while describing immigration into India as a “silent demographic invasion”. The latter case could also be called ‘neo-Sonowal’, for giving precedence to notions of exceptionalism posited on national security and integrity, which resulted in an unjust and deeply flawed NRC process in Assam, and in the ascendancy of documentary citizenship.

Here then, lies the opportunity for the SC. Firstly, the SC could categorically enumerate an exhaustive list of documents which can establish citizenship without any reasonable doubt. Secondly, the SC could direct FTs and the Court to use their powers to summon, when certificates and other documents need to be verified by the original author. In fact, the SC’s imprimatur should also provide for the fact that documents which are usually under state responsibility, must be provided by the state. Thirdly, the SC ought to address the legal vacuum which presently exists due to their being no statutory right of appeal from FT opinions. It could provide directions to the Court – under its power to do extraordinary justice, if need be – to deviate from the usual rigours of evidentiary standards in writ petitions while hearing petitions from the FT opinions. The importance of this cannot be stressed. Presently, remedies available to individual petitions are haphazard and is negotiated by the individual benches of the Court. While such a risk will always remain in matters of writ, it is of paramount importance for the SC to clarify and provide for the unequivocal right for aggrieved petitioners to approach the Court in writ, until a statutory right of appeal is provided for.

These specific measures can emanate from the issues which Lal Bhanu brings up, and it is a unique chance for the SC to remedy some of the injustices which its previous orders and judgements – albeit delivered by different benches – have unleashed.

Guest Post: Centering Women’s Voices – A Feminist Analysis of Religious Freedom and the Hijab Case

Gautam Bhatia5 Comments

[This is a guest post by Megha Mehta.]

A Division Bench of the Supreme Court is currently hearing SLPs from Resham v. State of Karnataka, (MANU/KA/0912/2022) the Karnataka High Court judgement upholding the ban on hijab in state government-run educational institutions. Judging by what has been reported in legal news portals, the hearings have gone on the tangent of whether it is permissible to proscribe a ‘uniform dress code’ (a sartorial precursor to the UCC?) in ‘secular’ government institutions. Keeping aside the debatable nature of some of the observations made by the Bench, the issue now risks being collapsed into the same category as controversies involving Sikhs’ right to wear the turban in the army, the rights of Muslim airforce officers to have beards, whether the essential religious practices [ERP] test applies, etc.

However, this eclipses the larger jurisprudential point, i.e., to what extent should the State/judiciary intervene in religious/cultural practices to enforce ‘gender equality’/ ‘dignity’ for women? Whose version of ‘equality/dignity/’ should take precedence—that of the State or of women themselves? This is important, given that the Court has parallelly set up a Constitution Bench to hear petitions challenging the practice of polygamy and nikah halala amongst Muslims.

I would argue that both the hijab controversy and the anti-polygamy/nikah halala petitions are direct outcomes of two previous Supreme Court precedents on the supposed ‘clash’ between gender equality and religious freedom: Shayara Bano v. Union of India ((2017) 9 SCC 1) (the triple talaq case)and Indian Young Lawyers’ Association v. State of Kerala ((2019) 11 SCC 1)(‘Sabarimala judgement’). In both cases, the Supreme Court has arguably fallen into the trap of setting up a ‘rights conflict’ between the right to equality and protection against gender discrimination versus the right to freedom of religious practice. Moreover, in both cases the Court has sought to resolve this conflict by applying considerations of ERP, ‘morality’, and/or fundamental rights without centering the concerns of the women affected by the practice.

Therefore, Shayara Bano focused more on why triple talaq is theologically unsound under the ERP test, and the moral fault of the Muslim man, rather than the socio-economic context of why unilateral divorce disadvantages Muslim women. Indeed, the majority as well as the dissenting opinions referred to the Muslim woman in protectionist language, framing her as a victim of religious oppression. [1]

In the Sabarimala judgement, Dipak Misra CJI, in his opinion, authoritatively stated that “in the absence of any scriptural or textual evidence,” it cannot be concluded that excluding women from the Sabarimala temple is an “essential practice” of Hindu religion. Rather, he commented that it is essential to Hindu religion to allow Hindu women entry to a temple, (See Sabarimala judgement, ¶122) affirming the idea that Hinduism has always been egalitarian. On the other hand, Nariman J. and D.Y. Chandrachud J. in their respective concurring opinions held that even assuming that exclusion of women is an essential religious practice, freedom of religion under Article 25 must yield to the fundamental guarantees of equality and non-discrimination under Part III of the Constitution. (¶196, 409) Interestingly, Chandrachud J. relied on Gautam Bhatia’s scholarship on the ‘anti-exclusion principle’ to argue that the ideal approach in adjudicating the constitutionality of religious practices should be to bypass the ERP test altogether. Instead, the question should be whether the impugned practice results in the exclusion of a group of citizens and thus violates the fundamental principles of dignity, liberty and equality. (¶220-221, 409) His opinion further held that the phrase “morality” in Article 25 is to be read as “constitutional morality” as defined in terms of the liberal values contained in the Constitution. (¶215-216)

There has been sufficient critique of the ERP test so I will refrain from commenting on that aspect. From a feminist perspective, the ‘anti-exclusion’ principle appears to be a better approach as it avoids the pitfalls of the ERP test (judges acting as theologians, divergence in textual interpretation, promoting ‘Hinduism’ as a monolithic construct) and specifically focuses on whether a religious practice has the effect of denying civic equality to women. Notably, the anti-exclusion principle as developed by Bhatia, and Chandrachud J., shares similarities with philosopher Martha Nussbaum’s ‘capabilities approach.’ Nussbaum has also argued, in relation to the Hindu Code Bill debates and the Supreme Court’s judgement in Shah Bano, that a religious practice ceases its claim to State deference when it infringes upon ‘shared moral understandings’ embodied in the form of constitutional rights. This particularly includes practices which stigmatize individuals on account of their sex. [2]

Chandrachud J.’s adoption of the anti-exclusion principle and his articulation of the Indian Constitution’s transformative potential is a powerful tool for checking the subordination of women by religious norms. However, there are some important nuances which are not expressly clarified by the judgement though they may be implied therein—who is the correct authority for making assessments about what constitutes ‘dignity’ and ‘exclusion’? What if the affected group does not see religious worship and the enjoyment of fundamental rights in bright line/hierarchical terms—what if women wish to build a feminist reinterpretation of the religious practice into the law rather than arguing for it to be declared illegal/unconstitutional? It may be argued that since the anti-exclusion principle is undoubtedly a tool for achieving substantive equality, the views of the purportedly marginalized group should take precedence over that of any other authority. However, if you apply intersectionality as a framework, how should the State/judiciary respond to fractures within the group? What if upper-caste women and Dalit women have substantially differing ‘moral understandings’ of a religious practice? What about differences between Sunni and Shia Muslim women? Etc. etc.

In this respect, neither Shayara Bano nor the Sabarimala judgement have directly quoted women worshippers’ views on how they are excluded by the impugned practice or discussed dissonances therein—arguably it’s the judges’ own moral views on the subject which are taking center stage. The Sabarimala judgement has in fact, expanded the scope of the Supreme Court’s jurisdiction to entertaining PILs against allegedly exclusionary religious practices even if no woman worshipper has personally complained of discrimination (The petitioners in that case did not subscribe to the worship of Lord Ayappa). The counsel for the respondents had raised this issue in their submissions before the Supreme Court. However, both Nariman J. and Chandrachud J. emphasized in their respective concurring opinions that the “gravity of the issue” necessitated that the petition be heard, notwithstanding this anomaly. (Sabarimala judgement, ¶198, 224. Both judges cited Adi Saiva Sivachariyargal Nala Sangam v. State Of Tamil Nadu, (2016) 2 SCC 725, 737, ¶12 on this point.) Interestingly, it was the lone female justice, Indu Malhotra J. who highlighted in her dissent that permitting PIL’s in matters relating to religious practices, particularly by persons who do not subscribe to the faith, “would open the floodgates to interlopers” to question such practices, “and that the perils are even greater for religious minorities if such petitions are entertained.” (¶447) Notwithstanding criticisms of ‘anti-feminist’ thinking/conspiracy theories of a general pro-temple management stance concerning her decision, permitting ‘ideological challenges’ does create a due process issue given that the Court’s precedent will bind the affected group, i.e., religious women, without any mechanism to ensure that their interests are adequately represented. [3]

It can be counter-argued that Resham presents a substantially different bundle of facts since over here Muslim women are not challenging the constitutionality of a religious practice on the grounds that it demeans them, but are rather seeking the autonomy to continue following it contrary to State diktat. To that extent the application of the anti-exclusion principle should not encounter any difficulty if the women are able to prove that wearing the hijab does not stigmatize them as unequal, but is in fact essential to facilitating their full participation in civil society. Nevertheless, the High Court has completely ignored this distinction. The Advocate General of Karnataka quoted the Sabarimala judgement to argue that the hijab as a form of ‘compulsion of dress’ is not acceptable as it violates ‘constitutional morality’ and ‘individual dignity.’ The High Court went a step further and quoted Dr. B.R. Ambedkar on how the purdah system brings about the “segregation of Muslim women” and makes them “helpless and timid” to legitimize its conclusions on why the hijab militates against anti-exclusion and equality of opportunity (This of course, completely ignores the fact, as argued by Devdutt Kamat, that purdah and hijab are sociologically distinct practices).

The aforesaid reflexive application of the Sabarimala judgement to Resham is better understood from a law and political economy lens. From a legal realist perspective, though the Constitution embodies a transformative vision of Indian society, it is also in some respects a political compromise, given the ghost of Partition. Hence whilst Article 25(1) explicitly makes religious freedom subject to other provisions of Part III of the Constitution, Article 25(2) delegates the power to undertake social reform to the State. This echoes Dr. Ambedkar’s assurance to religious minorities during Constituent Assembly debates that “all that the State is claiming…is a power to legislate” and that their personal law would not be modified without popular consensus. (See Constituent Assembly Debates (Vol. VII), Dec. 2, 1948 speech by B.R. Ambedkar 7.65.178) In both Shayara Bano and the Sabarimala judgement, the Supreme Court has opened the floodgates to ‘ideological challenges’ to religious practices, sidestepping determination of popular consensus and deliberation by the legislature on the matter. The Karnataka government’s example indicates that such interventions by the judiciary are likely to push the executive to reclaim the mantle of ‘social reform’, and appropriate concepts like ‘constitutional morality’ and ‘dignity’ to enforce its own political agenda of ‘formal equality’ amongst religions [See 1].  On the other hand, the Supreme Court while hearing the challenge to the hijab ban, continues to parallelly act as a counter-majoritarian theological reformer in cases like polygamy/nikah halala. Scholarship critiquing rights-based reasoning has highlighted that the outcomes of ‘rights’-based cases often depend on the subjective political commitments of the judges hearing the case more than the inherent content of rights, which makes rights discourse ripe for appropriation across the political spectrum. [4] Therefore there is no guarantee that the same understanding of anti-exclusion which was applied in the Sabarimala judgement will be extended to similar cases involving ideological contestations over purportedly ‘anti-women’ religious practices (as evidently happened in Resham). In the political tangle between a majoritarian executive/legislature and a judiciary which is prone to changes in Bench composition, women’s voices are bound to be lost.

Thus, rather than delving into vague speculations about ‘secularism’, ‘liberal constitutionalism’ and the problematic ERP test, the Court should take a closer look at the anti-exclusion approach and refine it in a manner that can be used to resolve the conundrum of enforcing gender justice in religious communities. It is worth asking: which institutions are legitimately equipped to address such concerns? Can there be reconciliation, rather than rights conflict, between religious liberty and gender equality? (Malhotra J.’s dissent in the Sabarimala judgement indicated the possibility of a harmonious approach.) How can women’s voices be brought to the forefront? How do we avoid the problem of legal paternalism, i.e., courts/legislatures thinking they know ‘better’ than women themselves as to whether a particular practice is ‘dignifying’ or ‘exclusionary’? How do we deconstruct ‘woman’ itself as a monolithic category? These questions are particularly pertinent to any adjudication on the hijab, given that the existing binary between denouncing it as ‘oppressive’ and accepting it as a mandated Quranic injunction ignores the spectrum of unique reasons that Muslim women have for wearing it. Till the time courts adopt an adequate intersectional feminist analytical framework, we are unlikely to find much satisfaction in judicial reasoning on the issue.

Endnotes

  1. Ratna Kapur, Gender and the “Faith” In Law: Equality, Secularism and the Rise of the Hindu Nation, 35(3) Journal of Law and Religion 407, 418 (2020).
  2. Martha C. Nussbaum, Women and Human Development: The Capabilities Approach, 188 (2012).
  3. Lea Brilmayer, The Jurisprudence of Article III: Perspectives on the Case or Controversy Requirement, 93(2) Harvard Law Review 297, 306, 308 (1979).
  4. Duncan Kennedy, The Critique of Rights in Critical Legal Studies, in Left Legalism/Left Critique 198 (Wendy Brown & Janet Halley eds., 2002); Jamal Greene, How Rights Went Wrong: Why Our Obsession With Rights Is Tearing America Apart xi, xix (2021).

The ConCast: Episode 5 (The Essential Religious Practices Test)

Gautam BhatiaLeave a comment

In Episode 5 of the ConCast, I spoke to Suhrith Parthasarathy about religious freedom, the essential religious practice test, and the ongoing hijab case.

The Podcast is available to listen below, and also on Podbean, Google Podcasts, Apple Podcasts, and Spotify.

References:

The Shirur Mutt Case (Commissioner vs Lakshmindra Swamiar).

Mohd Hanif Qureshi vs State of Bihar.

Dargah Committee, Ajmer vs Syed Hussain Ali.

Sardar Syedna vs State of Bombay.

Sastri Yagnapurushadji vs Muldas.

Seshammal vs State of Tamil Nadu.

Commr of Police vs Acharya Avadhuta.

Indian Young Lawyers Association vs State of Kerala (Sabarimala Judgment).

Resham vs State of Karnataka (Karnataka High Court hijab judgment).

“Essential Religious Practices” and the Rajasthan High Court’s Santhara Judgment: Tracking the History of a Phrase“, Indian Constitutional Law and Philosophy Blog, 29 August 2015.

Between Agency and Compulsion: On the Karnataka High Court’s Hijab Judgment, Indian Constitutional Law and Philosophy Blog, 15 March 2022.

Gautam Bhatia, “Freedom from Community: Individual Rights, Group Life, State Authority, and Religious Freedom under the Constitution.”

Guest Post: Supreme Court Settles Jurisdictional Conundrum for Appeals from ITAT Orders

Gautam Bhatia2 Comments

[This is a guest post by Harshit Joshi.]

An appeal was brought before the Supreme Court in which both the Delhi High Court and the Punjab & Haryana High Court refused to have territorial jurisdiction over the dispute due to a difference of opinion, and dismissed the appeals filed before them. The Supreme court solved the conundrum concerning appellate jurisdiction of the High Courts under Section 260A of the Income Tax Act, 1961 (‘Act’) in its judgment dated 18 August 2022 in the case of Pr. Commissioner of Income Tax-I, Chandigarh v. M/s. ABC Papers Limited. Another question that the Supreme court resolved is the jurisdiction of the High Court consequent upon an administrative decision transferring a “case” under Section 127 of the Act from one Assessing Authority to another Assessing Officer (‘AO’) located in a different State.

The court ruled that the jurisdiction of the High Court stands on its own foundation and cannot be susceptible to the executive power of transferring a matter. The Apex Court also overturned the finding rendered by the High Court of Delhi in CIT v. Sahara India Financial Corporation Ltd. (‘Sahara’) and CIT v. Aar Bee Industries Ltd. (‘Aar Bee’) holding they do not lay down the correct law. In this post, we shall dissect and analyse the judgement of the Supreme Court.

Factual Background

The Appellant, M/s. ABC Papers Ltd. is a company engaged in the manufacture of writing and printing paper. The Deputy Commissioner of Income Tax (‘DCIT’), New Delhi, issued a notice under Section 143 (2) of the Act and followed it up with an order of assessment dated 30.12.2010. Aggrieved by that order, the Assessee preferred an appeal to the Commissioner of Income Tax (‘CIT’) (Appeals) – IV, New Delhi which was allowed. Against this appellate order of CIT, the Revenue carried the matter to Income Tax Appellate Tribunal (‘ITAT’), New Delhi. The ITAT, New Delhi, by its order dated 11.05.2017, upheld the order of the CIT (Appeals) – IV, New Delhi, and dismissed the appeal filed by the Revenue.

Meanwhile, by an order dated 26.06.2013 passed under Section 127 of the Act, the CIT (Central), Ludhiana, centralized the cases of the Assessee and transferred the same to Ghaziabad. The DCIT, Ghaziabad, passed an assessment order on 31.03.2015. Aggrieved by that order, the Assessee filed an appeal which came to be allowed by the CIT (Appeals) – IV, Kanpur, on 20.12.2016. Against this appellate order, the Revenue preferred an appeal to ITAT, New Delhi which was also dismissed by its order dated 01.09.2017.

The cases of the Assessee were re-transferred under Section 127 of the Act to the DCIT, Chandigarh, w.e.f. 13.07.2017. Revenue decided to file appeals, being ITA No. 517 of 2017 (against the order of the ITAT dated 11.05.2017) and ITA No. 130 of 2018 (against the order of the ITAT dated 01.09.2017) before the High Court of Punjab & Haryana.

The High Court of Punjab & Haryana by its judgment dated 07.02.2019, disposed of both the appeals by holding that, notwithstanding the order under Section 127 of the Act which transferred the cases of the Assessee to Chandigarh, the High Court of Punjab & Haryana would not have jurisdiction as the AO who passed the initial assessment order is situated outside the jurisdiction of the High Court.

The Revenue also filed an appeal, being ITA No. 515 of 2019 before the High Court of Delhi. The High Court of Delhi had taken a view that when an order of transfer under Section 127 of the Act is passed, the jurisdiction gets transferred to the High Court within whose jurisdiction the situs of the transferee officer is located and dismissed the appeal. The question came up before the Supreme court to resolve the issue as to which High Court would have the jurisdiction to entertain an appeal against a decision of a Bench of the ITAT exercising jurisdiction over more than one state.

Analysis of legal provisions

Given that each state has its own High Court and that ITATs are designed to exercise jurisdiction over multiple states, the question of which High Court is the appropriate court for filing appeals under Section 260A emerged. The question arose because Section 260A is open-textured and does not specify the High Court before which an appeal would lie in cases where Tribunals operated for a plurality of States. Section 260A of the Act states that “An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal before the date of establishment of the National Tax Tribunal, if the High Court is satisfied that the case involves a substantial question of law.”

The structure established in Article 1 of the Constitution is not followed by the jurisdiction the ITAT Benches exercise. Benches are sometimes constituted in a way that their jurisdiction encompasses territories of more than one state. The Allahabad Bench, for example, comprises areas of Uttarakhand. The Amritsar Bench has jurisdiction over the entire state of Jammu and Kashmir.

An AO is given the authority and jurisdiction over anyone conducting business or exercising a profession in any area that has been assigned to them by virtue of Section 124. A “case” may be transferred from one AO to another AO under Section 127 at the discretion of a higher authority. These clauses are all located in Chapter XIII of the Act and exclusively relate to the executive or administrative authority of the Income Tax Authorities.

The issue regarding the appropriate High Court for filing an appeal is well settled since when it fell for consideration before a Division Bench of the High Court of Delhi way back in 1978 in the case of Seth Banarsi Dass Gupta v. Commissioner of Income Tax. It was held that the “most appropriate” High Court for filing an appeal would be the one where the AO is located. This was held so that the authorities would be bound to follow the decision of the concerned High Court and has been followed and abided in subsequent judgements of the High Court of Delhi. However, the question in the instant case is in the context of an order of transfer under Section 127 of the Act, which transfers the case of an assessee from an AO in one State to another AO, situated in another state under the jurisdiction of a different High Court.

The Court analysed Sahara and Aar Bee judgements of the Delhi high court.

The AO, Lucknow, issued the assessment order in the case of Sahara. Appeal against that order was decided by CIT (Appeals), Lucknow, and a further appeal was decided by ITAT, Lucknow. An appeal was brought before the Lucknow Bench of the Allahabad High Court in response to the ITAT order. The records of the assessee were eventually transferred from Lucknow to New Delhi while this appeal was pending. Therefore, an appeal was brought before the Delhi High Court which departed from the long-standing decisions and held that upon order of transfer under Section 127 of the Act, the case of the assessee would get transferred “lock, stock and barrel” including the High Court.

The decision in the case of Sahara was followed by a subsequent Bench of the High Court of Delhi in Aar Bee. The court denied agreeing with the view of the Punjab and Haryana High Court in their judgement of Commissioner of Income Tax v. Motorola India Ltd. based on the meaning that it attributed to the expression ‘cases’ in the Explanation to Section 127(4) of the Act. The use of expression ‘cases’ was used to contend that the expression shall cover proceedings filed before a High Court as well. This contention was negatived and held as wholly misplaced by the Punjab and Haryana High court in the case of Motorola India Ltd.

Decision of the Court

As a matter of principle, it is against the independence of the judiciary to move a case from one legal forum to another without the intervention of a court of law. According to Section 127, the authorities may transfer a case at the request of the assessee or for other purposes. The power of transfer granted by Section 127 applies only to the jurisdiction of the Income Tax Authorities and has no influence on the jurisdiction of High Courts. The court must steer clear of any interpretation that would make appellate jurisdiction of the High Court dependent on the executive branch. Such an interpretation will clearly be against the interests of justice and the independence of the judiciary.

For these reasons, the Supreme Court overruled the judgements in Sahara and Aar Bee and held that appeals against every decision of the ITAT shall lie only before the High Court within whose jurisdiction the AO who passed the assessment order is situated. The High Court within whose jurisdiction the AO issued the order will continue to exercise its appellate jurisdiction even if the case or cases of an assessee are transferred in accordance with Section 127 of the Act. This principle is applicable even if the transfer is under Section 127 for the same assessment year(s).

Author’s Comments

The clarification by the Supreme Court is altogether necessary. A judicial remedy must be effective, independent, and also certain, and the Supreme Court made the proper choice in this case. Certainty of the forum would involve unequivocal vesting of jurisdiction to adjudicate and determine the dispute in a named forum.

The court also took cognizance of arguments and was right in noting that the decisions of the High Court in whose jurisdiction the transferee AO is situated will not bind the Authorities or the ITAT which had passed orders before the transfer of the case has taken place. The court prevented an anomalous situation where, even if the High Court corrected the erroneous order by the Authorities, it would not have been binding on the authorities as they would be outside the jurisdiction of the High Court. The Apex Court has also rightly read the scope and ambit of Section 260A and Section 127 of the Act. The court however did not decide the merits of the case and ordered the Delhi High Court and the Lucknow Bench of Allahabad High Court to decide the two appeals.