“The struggle of memory against forgetting”: The Kenyan Supreme Court’s Judgment on Transitional Justice

January 30, 2023 Gautam Bhatia2 Comments

“The past is a foreign country.” To what extent does that adage apply to State violence that occurred decades in the past? As time passes, evidence erodes, memories senesce, and witnesses forget, when do such events settle into a history that is to be studied, rather than an injustice to be remedied? Such questions have occupied courts and scholars of transitional justice across the world; and in its judgment in Wamwere vs The Attorney-General – delivered on 27th January, 2023 – the Supreme Court of Kenya addressed them in some detail.

The facts of the case went back to 1992. They related to State violence against a set of protesters, collectively referred to as “mothers of political prisoners” (the reference is self-explanatory), and who were the Appellants before the Supreme Court. Appellants submitted that for a period of many months in 1992, they were subjected to repeated physical assault by the State police, as they peacefully protested for the release of political prisoners. Because of the prevailing political situation (Kenya was still effectively transitioning to a multi-party democracy at the time), the Appellants elected not to go to court. They finally did so in 2013, three years after the coming into force of Kenya’s new, 2010 Constitution.

Both the High Court and the Court of Appeal dismissed the petitions on the basis of delay. While both courts agreed that in principle State violations of fundamental rights did not have a limitation period, they also held that in this case the delay was inordinate and unexplained: the President in power at the time of the events had left office by 2003, and avenues to redress human rights violations existed after that.

The Supreme Court disagreed. It located the question of delay within the framework of transitional justice (paragraph 40), the purpose of which was to allow a society to “confront the wrongdoings from its past.” (paragraph 42) As the Court noted:

The need to confront and silence the ghosts of past wrongs or historical injustices is relevant in the Kenyan context. This is in light of Kenya’s history which is littered with incidences of gross violations of human rights and other atrocities that occurred during the colonial era and continued in the post-independence era. Further, victims of such abuses were never granted an opportunity to obtain redress and justice during that period. (paragraph 43)

Thus, as the Court noted, the appellants’ claims fell within the category of transitional justice claims, as they related to a period recognised as oppressive (paragraph 44). Consequently, it held that “courts ought to be particularly sensitive” to the reasons for delay, while nonetheless balancing those reasons against the possible prejudice to a fair trial (paragraph 46), given the efflux of time. Marshalling material from the Latin American context, the Court observed that transitional moments, in particular, were long-drawn, and did not have a clear end-date: it was in the nature of transitions that they featured occurring and recurring attempts at justice, and the retrieval of historical memory in an effort to achieve that justice. More specifically – and in a remarkable moment of self-critique – the Court noted that right up until 2010’s constitutional overhaul, courts were “generally notorious for their abject failure to provide protection to victims of human rights violations.” It was also the case that the 2010 Constitution itself provided for redress for injustices committed during the repressive era (for example, in the context of land claims) (paragraphs 53 – 55).

The Court thus found that the delay, in this case, was not inordinate, and had a reasonable explanation. To this, it added an important public interest element. In paragraph 56, it noted:

To us, a judicial trial serves to send strong expression of formal disapproval of gross abuse of human rights. It also functions to re-commit state institutions and persuade the general citizenry of the importance of human rights in a polity. On the other hand, failure to ensure access to justice could send the wrong signal that judicial imprimatur has been given to these historical wrongs. Such a stance will encourage not deter potential violators of rights. It would also send the signal to the public that they can be complicit in violation of rights without consequences attaching to the perpetration of such atrocities.

In other words, therefore, remedying atrocities from the past within a transitional justice framework is not only a backward-looking activity that seeks to redress a wrong, but also a forward-looking activity, which performs an important expressive function: it involves a recommitment by State institutions to the human rights framework, which is an important bulwark against a polity lapsing back into authoritarianism. This, thus, is a response to a common argument against dredging up events from the distant past: that no matter how distant, the past always impinges upon the present, and a constant, critical re-examination of the past is necessary for the present. It is the judicial articulation of Milan Kundera’s famous line: “the struggle of man against power is the struggle of memory against forgetting.”

Having held so, the Court still had some work to do regarding the actual events. It found, first, that as the 2010 Constitution did not apply retrospectively, given that the events were from 1992, Kenya’s repealed (Independence) Constitution of 1963 would apply. This is (perhaps unintentionally) instructive: the events of 1992 were squarely covered by the repealed Constitution and its bill of rights (except, of course, there had been no will to implement it at the time), and – when interpreted and applied by an independent judiciary – became the foundation upon which the Appellants were granted their remedy.

That apart, the Court also had to consider the threshold and standards of evidence, where the initial burden of proof – it held – lay upon the Appellants to establish a violation of their rights. For one set of claims – namely, that State authorities had harassed one of the protesters by repeatedly demolishing her home – the Court found that no evidence existed for this, and that therefore, it was unable to grant relief. However, matters were different with respect to police violence, as those events had been extensively covered by the media and by academic historians. The Court was therefore able to cast this as a “matter of general notoriety”, and take judicial notice of the same (paragraph 71). Of course, the Appellants had to establish their presence at the scene, the fact of the arrest, and medical evidence of beatings. While they did not have documentary evidence for these, the Court relied on their affidavits, which had not been controverted or denied by the State. This, given the overall factual matrix, the Court held that on a balance of probabilities the Appellants’ case for their presence was made out (paragraph 79). It then followed:

However, taking into account the violent nature of the disruption of the subject protest/assembly, it is more likely than not that the whole episode had a psychological traumatic effect on the appellants, who we have held were at the locus in quo. Although the appellants did not exhibit any physical injuries or medical reports, we are persuaded that the whole incident had a psychological/traumatic effect on them. This in our view can be equated to inhuman treatment which was a violation Section 74(1) of the repealed Constitution. This is because the respondent did not give any justifiable reason(s) whatsoever why it was necessary to violently disrupt and disband the protests by the appellants who were harmless. To that extent and unlike the two superior courts below, we find that the appellants’ right to freedom of association and assembly was interfered with and due to the violent methods employed by the police, this amounted to a violation of their human rights which were duly protected under Section 74(1) of the repealed Constitution. (paragraph 90)

The Court thus had to tread a fine line: in the absence of evidence, it could not quite hold that the specific case of torture had been made out. But what it could do was to take the facts that were given – i.e., the violent disruption of the protests by State agencies – and place it in its appropriate context. This allowed the Court to reach the (slightly more benign) finding of inhuman treatment, traced back to the State action and its impact on the group as a whole, as opposed to the specific finding of torture. Accordingly, it went on to award compensation to the Appellants, that would “serve to enhance the dignity of the appellants but also be a public recognition of the wrong done to them given the historical context of this case.” (paragraph 93)

To my mind, therefore, the Supreme Court’s judgment stands out in two respects, and deserves a close reading from students of transitional justice. First, the Court framed it not merely as a question of redress (which it undoubtedly is), but also as a question of periodic recommitment (or renewal) that State institutions the polity must undertake towards the rule of law and the fundamental rights regime. This brings the past into a continuing dialogue with the present (and the future), and ensure that – through the vehicle of constitutional law – the present and the future will continue to be informed by the past. And secondly, when it came to questions of evidence and burdens and standards of proof, even though three decades had passed, and individual claims were no longer supported by categorical evidence, the Court skilfully used judicial empathy and imagination to bridge the gap between the established facts (violent police break-up of protests) and the constitutional guarantee (against inhuman treatment). This serves as an object lesson in how to deal with history in a sensitive and even-handed manner.

As a final point, it is perhaps important to note that the Court’s task was made easier by historical and social consensus around the past: at one point, the Court noted that it was recognised that the period in question was a repressive period, where the State’s own (subsequently commissioned) reports showed that all state organs (including courts) were deeply hostile to accountability. The Court was able to draw upon relatively established sources – academic histories, State reports, court judgments – all of which converged upon this understanding. This perhaps shows that while the role of courts in transitional justice contexts is crucial, that role needs to be built upon previously-laid foundations by political and social movements for the rule of law and against impunity. It is only once these movements establish a consensus around what the past meant, that the Courts can come in and provide justice. This is perhaps something to think about in other contexts, where authoritarian pasts are themselves contested, down to the bare facts of what happened (let alone why, or what the justifications were).

With that said, Wamwere vs The Attorney-General is an important addition to the global conversation on the intersection between law, the courts, and transitional justice.

Equality in Marriage and the Limits of Transformative Constitutionalism: The Kenyan Supreme Court’s Judgment in Ogentoto vs Ogentoto

January 27, 2023January 27, 2023 Gautam Bhatia4 Comments

Article 45(3) of the Kenyan Constitution stipulates that “parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.” This potentially radical provision brings equality into the very heart of the private sphere: that is, to the marital relationship. Of course, the devil is in the detail: one ongoing controversy has been whether – and to what extent – Article 45(3) applies to property claims at the time of the dissolution of a marriage (see Ch. 7 of the present author’s PhD Thesis).

The roots of the controversy lie in the patriarchal structures of our world. It is an incontrovertible fact that in most societies, men hold a disproportionate share of immovable property (for the gendered skew in Kenya, see here). The reasons for these are both historical (dating back to times when women were legally barred from owning property) and current (structural barriers to women acquiring the resources to obtain property). It is also an incontrovertible fact that within marital relationships, division of labour is overwhelmingly gendered, even in a fast-changing world: statistics show that a significant share of (unremunerated) domestic labour continues to be performed by women. For our purposes, this has a natural, knock-on effect upon financial earnings within marital relationships. Subject to exceptions, at a structural level, financial and non-financial contributions towards a household skew along a gendered axis. This, in turn, means that when it comes to the acquisition of property during the course of a marital relationship, again – at a structural level – the financial contributions of the male spouse tend to be greater than that of the female spouse.

If, therefore, at the time of the dissolution of a marriage, property is divvied up solely on the basis of who has legal title to it, it is clear that such a solution will only serve to exacerbate the gendered inequalities that structure a marriage: women come into a marriage at a disadvantage, this disadvantage persists through the marriage, and then becomes the cause for further disadvantage if the marriage ends, and property needs to be divided: a vicious cycle.

What, then, is to be done, if “equality within marriage” is to be meaningful? One solution – prevalent in some jurisdictions – is known as “community of property,” and simply requires a straight, 50-50 split of matrimonial property upon the dissolution of marriage (this solution also carries with it some interpretive problems, such as defining what constitutes marital property). At the other extreme is what we discussed in the above paragraph – only financial contributions are considered towards determining legal interest in matrimonial property. And in between these two solutions, there is a spectrum of different models and approaches: for example, explicitly factoring in non-monetary contributions such as care work, domestic work, and emotional labour (see e.g. Kenya’s Matrimonial Property Act of 2013); having a 50-50 split as a default, which will not apply in cases where it is clearly unconscionable; factoring in the length of the relationship; and so on.

In Joseph Ombogi Ogentoto vs Martha Ogentoto (decided today), the Supreme Court of Kenya located itself somewhere near the middle of the spectrum described above. The case was complicated somewhat by the fact that it was filed before the 2013 Matrimonial Property Act came into force, and there was therefore a question of whether it was governed by the old 1882 Matrimonial Property Act (which did not provide for non-monetary contributions), or the new one. The Supreme Court held that while the 1882 Act was applicable, so was the 2010 Constitution of Kenya (as Article 45(3) applies directly to private parties). The question then squarely arose: what was the meaning of the phrase “equal rights … at the dissolution of a marriage.”

Positions from across the spectrum that we have discussed above were canvassed before the Supreme Court. The Court held that (a) Article 45(3) did not require an absolute rule of a 50/50 split at the time of the dissolution of marriage, and (b) the respective shares of the property would have to be determined on a case-to-case basis, depending upon the actual contributions of each spouse.

As a principled point, the Supreme Court noted that equality within marriage did not entail a redistribution of property rights. With the greatest of respect to the Court, the arguments advanced above make it clear that if you want to have genuine equality within marriage, you do need to reimagine property rights, at least to some degree: as we have seen, existing patterns of property ownership, when placed within patriarchal structures, exacerbate inequalities instead of mitigating them. Indeed, to some degree, this reimagining has already happened in the 2013 Matrimonial Property Act, where childcare, domestic work, and companionship are all treated as “contributions” towards the acquisition of matrimonial property, no matter in whose name and with whose money it is acquired. Another form of reimagining was put forward by the Law Society of Kenya (acting as amicus), which asked the Court to start with a default presumption of a 50/50 division, which could then be departed from in exceptional circumstances. In my view, this would have been a solution that would have both recognised the structure gendered inequalities within marriage, and allowed judges the discretion to mold relief where specific cases did not fall within that structure. However (subject to a caveat I shall come to later), this interpretation did not find favour with the Court.

One can see, therefore, in this judgment, the limits of transformative constitutionalism when it comes to the private sphere, limits that are articulated in the Court’s hesitation to tamper too greatly with the legal regime of property. This is notable, especially because in other contexts, the Court has brilliantly reimagined property rights in the context of transformative constitutionalism: think, for example, of the remarkable judgment in William Musembi, that did so in the context of evictions and the right to housing. Perhaps marriage and the family, however, remains the last hold-out against transformative constitutionalism’s impulses towards democratising the private sphere. Indeed, this is particularly poignant when we consider Dr Victoria Miyandazi’s argument, in her book, Equality in Kenya’s 2010 Constitution (2021), that the intention behind Article 45 was, inter alia, to address “harmful practices such as … unequal claims to matrimonial property upon divorce.” (see pg 42)

Now, having held the above, a lot would turn on what the Court would say about the burdens and standards of proof when it comes to the question of proving contribution. Here, there appears to be some internal tension within the judgment. At certain points, the Court seems to suggest a high standard of proof; citing the previous case of Echaria vs Echaria, for example, it notes that specific contribution has to be assessed towards a specific share (paragraph 78) (one wonders how that can be done for something like emotional labour, or companionship). The Court also appears to approve Echaria’s finding that the performance of “domestic duties” would not entitle a spouse to a beneficial share in the property (paragraph 83), although one expects that this proposition would certainly not be tenable within the statutory framework of the 2013 law. The overall drift of these observations appears, however, to somewhat devalue non-monetary contributions in determining beneficial interests in matrimonial property, and placing a higher burden of proof upon what will overwhelmingly be female spouses.

At the same time, however, other parts of the judgment appear to endorse a more egalitarian perspective. In paragraph 94, the Court correctly notes:

Equity further denotes that the other party, though having not contributed more resources to acquiring the property, may have nonetheless, in one way or another, through their actions or their deeds, provided an environment that enabled the other party to have more resources to acquiring the property. This is what amounts to indirect contribution. Equity therefore advocates for such a party who may seem disadvantaged for failing to have the means to prove direct financial contribution not to be stopped from getting a share of the matrimonial property.

In the next paragraph (para 95), the Court notes:

Any substantial contribution by a party to a marriage that led to acquisition of matrimonial property, even though such contribution is indirect, but nevertheless has in one way or another, enabled the acquisition of such property amounts to significant contribution.

One must note the breadth of the term “in one way or another.” Indeed, in the same paragraph, the Court approvingly cites the English case of Burns vs Burns, which listed childcare and domestic work as indirect contributions (contrary to the observations in Echaria, which the Court also appears to approve of), and the judgment in White vs White, which specifically observed that “there should be no bias in favour of the money-earner and against the home-maker and the child-carer.”

So, which of the strains of thought is dominant in the Court’s judgment? Interestingly, towards the very end, the Court considers two Canadian judgments that advanced the LSK’s proposition of a default 50% rule subject to departure in exceptional cases, and then, in paragraph 103, it notes that:

In agreeing with the above [Canadian] decisions, we must note that, in a marriage, the general assumption is that both spouses share everything, and on the face of it, both parties contribute towards the home or family, in one way or another, to whichever extent, however big or small. Again, and further to this, both spouses may also work and earn income, which inevitably, at most instances, always ends up being spent on the family unit. It may be the whole income, or a substantial part of it, but ultimately, a percentage of it goes into the family. This is the essence of Section 14 of the Matrimonial Property Act, 2013.

Now I would submit, with respect, that this formulation brings the Supreme Court very close to the LSK’s stated position of a default rule of 50%, that a judge could depart from in cases of unconscionable circumstances. The Court does not specifically use that language, but phrases such as “general assumption” and “one way or another” do suggest that in the application, the starting point should be one of equality. For the reasons advanced above, I suggest that this is the true import of Article 45(3) and equality within marriage, in the context of transformative constitutionalism. And, what is more, the Court goes on to agree with the Court of Appeal’s 50/50 division of property in this case, and dismisses the appeal against the CoA’s judgment?

So, where do we stand? While on the one hand, it would perhaps have been ideal if the Supreme Court had laid down a clear rule that the default is equal division, with the burden lying upon the party who wishes to depart from it, there is enough in the judgment to suggest that on a case-by-case basis, that is roughly the approach that ought to be followed. In this context, the next terrain of battle will be litigation around how, precisely, one understands the term “non-monetary contributions” under the 2013 Act, and how one goes about establishing them (especially for terms such as “companionship”, because how can you possibly quantify “companionship”?). Indeed, in a brilliant judgment from 2021, the High Court of Kenya at Nakuru has already initiated this analysis, noting that childcare and domestic work entitled the female spouse to a 50% share of the matrimonial property; that needs to be carried forward. There will also be parallel struggles about the very definition of what constitutes marital property, but that is a different matter. And it will probably be in the implementation – and the future interpretation of today’s Supreme Court judgment in concrete family law disputes – that the interface between equality, marriage, and transformative constitutionalism in Kenya will play out.

Kaushal Kishor, Horizontal Rights, and Free Speech: Glaring Conceptual Errors

January 27, 2023January 27, 2023 Gautam Bhatia8 Comments

There is an old adage that if you want to arrive at the right answers, you have to first ask the right questions. The Supreme Court’s judgment judgment earlier this month in Kaushal Kishor vs Union of India reflects another truth: that if you want to arrive at answers that mean anything at all, your questions have to first make sense.

Ostensibly, this judgment of a Constitution Bench of the Court deals with crucial constitutional issues around the limits to freedom of speech and expression, and the horizontal application of fundamental rights. If this was the only information you had about Kaushal Kishor, you would imagine that the case arose out of a factual matrix where perhaps an institutionally powerful non-State actor violated an individual’s constitutional rights – a case such as Tomlinson vs Television Jamaica (Jamaican Court of Appeal), for instance, or Khumalo vs Holomisa (South African Constitutional Court). In these cases, the judiciaries of their respective countries developed the law on horizontality and free speech because the disputes before them raised questions about horizontality and free speech.

What was the dispute in Kaushal Kishor vs Union of India? To understand this, you will first have to go back to August 2016 – the halcyon days of Chief Justice Dipak Misra’s Court – when the SC admitted a petition seeking action against a UP government minister, who had claimed that a gangrape in Bulandsahr was a “political controversy.” The Court framed four “questions” for resolution, which – as I pointed out at the time – were vague to the point of being incoherent. The government minister in question then apologised to the Supreme Court. The matter ought to have rested here, except that in October 2017, the case – now without a lis – was referred to a Constitution Bench of the Supreme Court, i.e., a five-judge bench that is constituted only when a “substantial question of law” with respect to the interpretation of the Constitution has arisen. During this time, the Court had also anointed Messrs. Fali Nariman and Harish Salve, and the genesis of what finally became the judgment in Kaushal Kishor can be traced back to one of the “questions” submitted to the Court by Mr. Nariman, namely, whether obligations under Article 21 would apply to non-State parties.

The matter was then buried for a couple of years, as often happens at the Supreme Court, until its sudden resurrection in mid-2019. At this point, the following five questions were framed by the Constitution Bench:

Are the grounds specified in Article 19(2) in relation to which reasonable restrictions on the right to free speech can be imposed by law, exhaustive, or can restrictions on the right to free speech be imposed on grounds not found in Article 19(2) by invoking other fundamental rights?
Can a fundamental right under Article 19 or 21 of the Constitution of India be claimed other than against the ‘State’ or its instrumentalities?
Whether the State is under a duty to affirmatively protect the rights of a citizen under Article 21 of the Constitution of India even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency?
Can a statement made by a Minister, traceable to any affairs of State or for protecting the Government, be attributed vicariously to the Government itself, especially in view of the principle of Collective Responsibility?
Whether a statement by a Minister, inconsistent with the rights of a citizen under Part Three of the Constitution, constitutes a violation of such constitutional rights and is actionable as ‘Constitutional Tort”?

As I had written at the time, while questions (4) and (5) had some tenuous connection to the original dispute, the first three questions were simply general excursions into constitutional philosophy (see “A Very Strange Constitution Bench“, October 27, 2019). I had also warned that this kind of judicial buccaneering never ends well, because these questions are simply too complex, too multi-layered, and too poly-centric to admit of resolution in the abstract: judiciaries all over the world have spent decades developing the law on these issues, incrementally, and in response to the concrete disputes that are brought before them. Shortly after, in a guest post, Anubhav Khamroi pointed out that the first question had already been decided by a coordinate bench in Sahara vs SEBI, thus making Kaushal Kishor not only an academic exercise on this point, but an unnecessary academic exercise too boot.

The matter once again lay buried for three years, until it was pulled out a second time during CJI Lalit’s tenure, assigned to a bench, and then heard and decided. The Court split 4-1, with Nagarathna J in partial dissent. Some of the conclusions in Kaushal Kishor have already been critiqued on this blog (see “Who Killed Article 12?“). This piece sets out a few additional arguments.

Horizontality

Before looking at the Court’s analysis, it is important to get a few concepts straight. When we look at the application of constitutional principles to private, non-State parties, there are four different approaches, which must be kept conceptually distinct (for an explanation, see “Horizontality: A Schema” on this blog, and the present author’s PhD thesis. These are as follows:

The State Action doctrine refers to an approach where you ask whether a private party sufficiently resembles the State, for its actions to be attributable to the State. Different tests are used in different countries: the doctrine itself originated in the US, is applied in various jurisdictions such as South Africa, and in India, it takes the form of the extensive case law on the interpretation of Article 12 of the Constitution (see the blog series “What is the State?“, from 2014)
Positive obligations refers to an approach where rights are deemed not only to have negative content – i.e., requiring the State to refrain from doing something – but also, positive content – i.e., requiring the State to act affirmatively to protect your rights. On some occasions, positive obligations arise in the context of State omission in cases where certain private parties are violating the rights of others. The classic example here is Vishaka.
Indirect horizontality refers to an approach where private law is subjected to constitutional scrutiny, and is interpreted or modified accordingly. For example, in the famous New York Times vs Sullivan, the US Supreme Court modified the common law of defamation to bring it in line with the constitutional guarantee of free speech.
Direct horizontality refers to an approach where private conduct is subjected to constitutional scrutiny. For example, Article 15(2) proscribes discrimination by any person against any other person, in certain specified contexts.

Kaushal Kishor commits an elementary mistake by repeatedly bunching these concepts together. This is evident in its opening discussion of US law from paragraphs 50 to 54), where it conflates The Civil Rights Case (state action), New York Times vs Sullivan (indirect horizontality), and Shelley vs Kraemer (state action, with the judiciary deemed to be state). It is evident in its consideration of Irish constitutional law (paragraph 55), where it mixes up positive obligations with horizontality. The majority states that Irish constitutional law is on “the opposite end of the spectrum” from US constitutional law on the question or horizontality. This is fundamentally incorrect: Irish constitutional law has developed a restrictive account of horizontality under the constitutional tort doctrine (more on that anon). A few paragraphs later, the majority cites the Irish Supreme Court case of Meskell to hold that under Irish constitutional law, “full horizontal effect” has been given to rights such as freedom of association, freedom from discrimination and the right to livelihood (paragraph 57). This is also incorrect: it is, in fact, a criticism of Irish constitutional law that its horizontal rights doctrine is narrow and limited (see, e.g., Banda). The majority’s discussion of South African constitutional law then conflates horizontality under the Constitution with horizontality under statute (paragraph 61), and its awareness of South African jurisprudence on horizontality appears to end at 2011 (for reference, the most recent South African judgments on horizontality, which significantly developed the law, were handed down in 2021) (paragraph 64). Even its analysis of the law it does seem to be aware of is ill-considered: the majority states that the South African Constitutional Court in Juma Masjid took horizontal effect to “an extreme”: if anything, the decision in Juma Masjid is a fundamentally conservative one, that firmly places horizontal rights subordinate to vertical rights against the State. And then we finally have the UK and the ECHR (paragraphs 66 – 70), where every example the Court takes is grounded in positive obligations, and not horizontality.

Now, nobody was forcing the majority in Kaushal Kishor to undertake a global, comparative analysis of horizontality. However, if the majority elected to do that, then it bore a minimum obligation to (a) get the concepts right, (b) get the law right, and (c) provide an up-to-date picture of the law. The Kaushal Kishor majority manages to fail all three requirements.

The majority then comes to Indian law, where once again the same set of confusions is rife. In paragraph 76, the majority claims that it is going to examine a set of cases that extended the application of fundamental rights to non-state parties. It then indiscriminately summarises sixteen cases, some of which were about positive obligations (e.g. Vishaka vs State of Rajasthan), some of which were about the meaning of “State” (Zee Telefilms), some of which were about direct horizontality (IMA vs Union of India), and some of which are utterly irrelevant to the question altogether (the RTE judgment). Having slashed and burned its way through thus jurisprudential forest, the majority then notes “that all the above decisions show that on a case-to-case basis, this Court applied horizontal effect, considering the nature of the right violated and the extent of obligation on the part of the violator.” (paragraph 77) Of course, the decisions cited do nothing of the sort. The majority then bizarrely cites a passage in Puttaswamy that goes against its own position (something picked up on by Nagarathna J in her dissent), as it notes that common law rights are horizontally applicable, while fundamental (constitutional) rights are vertically applicable. The majority says that Puttaswamy has answered a “part of the question” (it does not explain how), and then triumphantly concludes, in paragraph 78:

A fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities.

Like the title of the famous Borges’ short story, this is both everything and nothing. The Court’s “declaration” that Articles 19 and 21 apply horizontally is meaningless and incoherent without further clarity. It should be immediately clear that not every violation of Articles 19 and 21 (or, for that matter, other constitutional provisions) can yield a constitutional remedy through writ proceedings (a point that is hammered home by Nagarathna J). To take a basic example, if referee Mike Riley takes a bribe to award a wrongful penalty to Manchester United against Arsenal, the remedy is to proceed against him under criminal law, and not under the constitutional guarantee against manifestly arbitrary treatment. Similarly, if X enters into a contract with Y and then refuses to pay Y for services rendered, you proceed against X under contract law, not for breaching your right to livelihood under Article 21. “Unbounded” direct horizontality is an obvious non-starter, because it will turn all of existing private law into constitutional adjudication, creating havoc both in substance and in procedure. It is precisely for this reason that Courts elsewhere – whether it is Ireland, or South Africa, or Kenya, or even the United States – have developed doctrine incrementally, and arising out of concrete cases, and not as abstract philosophical exercises. And it is precisely for this reason that the majority ought to have refrained from answering this question in the abstract.

There is, however, a second – and more conceptual – problem with the majority’s approach (again, noted by Nagrathna J in her dissent). If you take up Part III of the Constitution, you will immediately see that where the Constitution intends for a fundamental right to apply horizontally, it explicitly provides so (Articles 15(2), 17, 23, and 24). This is structurally different from, for example, the South African Constitution, where Section 8(2) states: “a provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right” (see also, Article 20, Constitution of Kenya). Unlike the South African Constitution, therefore, where any provision of the Bill of Rights can potentially apply horizontally (subject to doctrinally-placed constraints, which is how the South African law on horizontality has developed), the Indian Constitution has specific carve-outs for domains where rights apply horizontally. Presumptively, therefore, for other rights, there is no horizontal application available. Now, the majority does not even engage with this argument, let alone deal with it. It provides no reasoning whatsoever to explain why it is departing from the obvious result of an eyeball test of Part III’s text and structure; and the judgments that it relies upon – as pointed out above – do not support the proposition that it advances.

All this is unpardonably shoddy.

Miscellany

There is little profit in dwelling upon other parts of the judgment, although a few brief points may be made. The third question involves a literal restatement of existing law, which the Court does (the answer is “yes”, going back at least to Vishaka). The fourth question is a basic, first-principles articulation of the simple point that a minister does not always speak for the government. Conceptual confusion returns in the fifth question, where the majority confuses torts by government actors with constitutional tort, and embarks on a thoroughly irrelevant excursion into tort law. As Nagarathna J correctly points out in her opinion, the reason why it is called constitutional tort is because it incorporates the concept of damages/compensation from tort law; a constitutional tort involves the breach of constitutional rights by State actors where compensation is an appropriate remedy (even here, there is some degree of conflation, as constitutional tort in Ireland means something else), not a common law “tort” committed by a State actor.

And finally, there is confusion even in the majority’s consideration of Article 19(2). The majority once again seems to conflate two conceptually distinct points. The first point is that the Court – obviously – cannot engraft fresh exceptions to the right to free speech, beyond the eight sub-clauses already present in Article 19(2). This the Court (correctly) affirms in paragraph 29. The second point is that there will inevitably be occasions where rights under Part III will clash, and the Court will have to balance clashing rights through a principled and doctrinally sound approach. Ostensibly while analysing this second point, the majority cites a series of cases where the courts have done precisely this – sought to balance the claims of two competing rights (e.g., free speech and privacy). Noting that “tools” exist to do so, the majority then comes right back, in its conclusion, to the statement that “under the guise of invoking other fundamental rights or under the guise of two fundamental rights staking a competing claim against each other, additional restrictions not found in Article 19(2), cannot be imposed on the exercise of the right conferred by Article 19(1)(a).” But what does this mean? When I argue for restricting your right to free speech because it is impinging on my privacy, I am invoking privacy (not found in Article 19(2)) to restrict the scope of your right to free speech. Also, where does this leave judgements such as the 2016 criminal defamation verdict, which explicitly invoked reputation as a ground to justify criminal defamation as a limitation upon free speech? Once again, there is no engagement with these thorny issues in the majority’s judgment; in the dissent, at the very least, there is, although Nagarathna J.’s conclusion that certain kinds of speech are outside the ambit of Article 19(1)(a) altogether is, itself, a somewhat perilous idea, as it involves assessing the comparative worth of forms of expression, without adequate thought for the structure of Article 19(1)(a) or the consequences that follow.

Conclusion

Kaushal Kishor is a salutary lesson in judicial restraint when it comes to dealing with abstract philosophy instead of a concrete lis. Horizontality is one of the most complex and complicated issues in contemporary constitutionalism, involving a multitude of overlapping questions about the nature of the State, institutional power asymmetries, public and private law, forms of remedies, and so on. These questions can only be considered in the concrete, in a situation where a rights-bearer and a rights-violator are before the Court, and the issue of horizontal rights applicability assumes tangible form. Without that, as we have seen, there is confusion, and what is worse, a muddying of previously (relatively) clear waters. One can only hope, with Kaushal Kishor, that when future courts look at the majority, they find it simply incapable of application, and that with the passage of time, the judgment slips into judicial desuetude.

Guest Post: Business as Usual – Melancholy Takeaways on Proportionality from the Demonetisation Case

January 26, 2023 Gautam Bhatia2 Comments

[This is a guest post by Rudraksh Lakra.]

Introduction

There are two key duties Courts have to fulfil while adjudicating on legal interests or rights. First, to coherently design and define the standard of review, which includes both substantive and procedural standards (including standards of evidence). Second, to ensure that this exercise is not merely performative, Courts must apply the standard they lay down dutifully to the facts of the case. In the context of proportionality, the Indian Supreme Court (“Indian SC”) has had a long history of failing to satisfactorily perform these two functions (see here, here, here, here, here, and here). The Indian SC has repeatedly applied lower standards of review under the disguise of applying proportionality (here, here, and here). Its attempt to define the standard clearly has been lacking and often muddled (see here, here, here, here, and here). All of this undermines the claim of the current Chief Justice DY Chandrachud that proportionality reflects a bridge from a “culture of authority” to a “culture of justification”.

Initially, this piece aimed to assess the reasoning of the Indian SC on proportionality in the Vivek Narayan Sinha v Union of India decision (“Demonetisation Judgement”), which concerned the constitutionality of the Indian Government’s overnight demonetisation of 86.4% of the currency notes in 2016 (see the analysis of the case here and here). In the process of reading, it emerged that this was not possible as there was no reasoning. The Court follows a “business as usual” approach vis-a-vis proportionality, falling prey to the proclivities that have so far impeded it from developing meaningful proportionality jurisprudence. This piece seeks to compensate for the court’s refusals to engage with the test and assess the claims on the merits based on available information.

Standard of Review

In the Demonetisation judgement the petitioners had posited that proportionality was the suitable standard of review as demonetisation infringed fundamental rights (see here and here). On the other hand, the respondents stressed on the fact that demonetisation was an economic policy based on the recommendations of the Reserve Bank of India, an expert body and an independent body (see here and here). Therefore, they argued it should be subject to a standard of review with a lower threshold (see here, and here). These two stances constitute two different visions for adjudication one provides excessive deference to the whims of the executive and one that promotes a “culture of justification”. The Court had the duty of clearly delineating which vision it would adopt.

However, the approach is mix-and-match, and lacks a coherent vision. The Court first adopts the Wednesbury standard (which sets a low threshold for the state to pass) because demonetisation was an economic policy (Para 226). After quickly concluding that the measure passes the Wednesbury standard the Court moves on to proportionality analysis (See from Para 263). From the lens of judicial economy, it raises the question about the duplication of resources. A more concerning issue is how we reconcile these two distinct standards of review which constitute different visions of adjudication and vis-a-vis power configuration between citizens, the judiciary and the executive. The Court’s failure to offer any cogent reasoning for its raises apprehension about its understanding of the applicable standard of review and its larger implication.

Standard of Proportionality

In the Demonetisation judgement, the Indian SC clearly defined and articulated the conception of proportionality that it wished to apply. This is a rare occurrence (see here, here, here, here, and here). The Court adopted the “the four-pronged test culled out by Aharon Barak, former Chief Justice, Supreme Court of Israel which has been reproduced in the case” of Modern Dental College v State of Madhya Pradesh (“Modern Dental College”) (Para 270). The Court further relied upon the Internet and Mobile Association of India v Reserve Bank of India to hold that proportionality should be rooted in evidence and the state should provide “at least some empirical data” to substantiate its goals (Para 263 and 265).

However, there are conceptual issues with the Court’s reasoning that need to be flagged. First, the Court asserts that the standard of proportionality in India is one forwarded by Barak based on their interpretation of Modern Dental College. This interpretation is flawed as in the case of Modern Dental College the Indian SC referenced both Barak’s version of the test as well as the separate Canadian test in R v Oakes without explaining which one is to be adopted in India. Both these tests are structurally distinct and empirical data shows these differences lead to divergences in the approach of German and Canadian Courts impacting judicial outcomes.

Second, the standard forwarded by Barak among others has been subject to significant criticisms including for the fact that it is a balancing-centric test with other stages having a low threshold (see here, here, here, and here). Even among the certain proponents of proportionality, this has necessitated a discourse about how the test can be best designed to achieve its original motivations. I have tried to locate this conversation in India elsewhere.

Deference in cases related to economic policy

Before I turn to the Court’s application of proportionality, an important issue which had a direct bearing on the test’s application needs to be attended to. This concerns whether and to what extent deference should have been accorded to the executive in the Demonetisation case. Readers will recall that the respondents had highlighted that this case involved adjudication over an economic policy which was based on the recommendation of the RBI, an expert and independent body. These factors formed the basis for providing wide deference to the respondents. The Court held that “[i]t is not the function of this Court or of any other Court to sit in judgement over such matters of economic policy and they must necessarily be left to the Government of the day to decide” (Para 225). This position has valid policy reasons. However, the need is for the Court to view deference as existing on a spectrum, where the degree of deference ought to be determined in a case-to-case manner based on an evaluative criterion. Without comprehensively theorising on factors that would influence the degree of deference in each case these factors should account for (1) the quality of consultative dialogue and research that preceded the policy, (1) the degree of epistemological certainty vis-a-vis policy, (3) the nature and degree of the adverse impact of the policy, and (4) whether there was a situation of urgency or emergency. As for the first factor, both J Nagarathna and the petitioners detail how the consultation was illusionary: the policy was approved within 24 hours by the RBI, in addition to the fact that there was a conflict between the bank’s goals for demonetisation and the government’s.

Policymaking is often conducted in situations of epistemological uncertainty; this is the policy rationale behind the second factor. However, the degree of certainty can change with time and progress in research. In the case of demonetisation, the policy was adjudicated six years after its promulgation. This is crucial as within this period we have a lot of expert evidence including data from the government that provides evidence that the demonetisation failed to meet its stated objectives and a similarly designed policy has little chance of meeting such goals (see Para 8.2 and 8.3 of this written submission).

As for the third factor, demonetisation had a profound adverse impact on the economic security of the state both short-term and long-term and it had significant human costs as well (see here, here, here, here, and here). Since the judgement is largely “academic” as it is being delivered 6 years after the lapse of the policy this was an important opportunity for the Court to record and condemn the imposition of the currency ban. This would be symbolic but still a valuable official admission of the injustice.

Proportionality

At para 275 of the judgement the majority approvingly cites this quote: “every noble cause claims its martyr”. Bhatia emphasises and reflects on this quote which the majority uses to dismiss the argument raised by petitioners’ regarding the hardships caused by demonetisation. This quote indicates the Court views demonetisation as any other policy with its acceptable “collateral” damage, and as Bhatia rightly notes it is evidence of callousness and a disregard for human life. Given that this is the frame through which the majority views the issue it is not surprising that the proportionality analysis reflects this business as usual approach. Below I shall examine the Court reasoning at the stage of suitability, necessity and balancing to highlight the callous attitude of the Court. I shall also re-examine those stages to explore if the demonetisation would have passed them if the Court applied the test scrupulously both based on evidence at the time of its introduction and when the Court delivered its judgement in 2023. I will not explore the stage of legitimate aim which in my opinion the demonetisation would pass.

Suitability

Court’s Reasoning

The Court explains that the second test entails an examination of whether there is rational nexus between the impugned measure and the state’s declared purpose (Para 273). The two main stated goals were reducing the circulation of counterfeit currency and eliminating black money (Para 271). Did demonetisation have a rational nexus with these two goals? The Court answers this question by using a rhetorical question: “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?” (Para 273). The Court does not engage with argument and the evidence including the government’s own data which the petitions had forwarded. In fact here the evidentiary inquiry should have been stricter upon the government given in the past demonetisation measures with similar objectives in India had failed, and such large-scale overnight demonetisation is without many helpful precedents around the globe as well.

Re-examination of the stage

Let us first travel back to November 2016 when demonetisation was introduced by the Government. Would the measure have met the second stage? As I elaborate below in my opinion certainly not as the measure was fundamentally flawed by its very design. It could not have made an effective contribution towards the two stated goals. The evidence that has emerged since the lapse of the policy has further confirmed the lack of rational nexus ex-post.

Taking first the goal vis-à-vis black money, economists had explained that black money in India at the time was kept predominantly in non-cash assets or was often in foreign banking haven systems (see here, here and here). Only an estimate of around 3% to 6% of black money was represented by currency. Even this money could easily circulate around the economy through investments and laundered through intermediaries. In fact, economists had warned that the demonetisation could have a counter effect by targeting unintended groups who predominantly hold cash (either in savings or for day to day operational concerns) for instance small merchants or women (see here and here). Therefore, the measure did not have a rational nexus with the goal of eliminating black money ex-ante and the evidence that had further come to light confirms the measure would fail this stage even ex-post. Since, as per RBI’s data 99.3% of the demonetised banknotes were deposited back to the bank (see Para 8.2 of this written submission). These estimates were preceded by reports of complex money-laundering networks that arose during demonetisation that led to almost all of the black money being laundered (see here and here). Therefore demonetisation had a counterproductive impact on the goal of black money.

As for eradicating counterfeit currency, economists had explained that demonetisation would only have a meagre impact on the production of counterfeit currency as it would not target the root of the issue (see here and here). Let us assume that the Indian administrative machinery had 100% efficiency in detecting fake notes. Even then capturing counterfeit currency does not catch those who minted them or prevent them from developing systems to print fake currency for the new legal tender. For instance, ever since the introduction of the 2000 INR note in November of 2016 according to the RBI estimates they constitute 16.5% of the total value of all counterfeit notes. From 2017-2022 the estimated value of the 2000 counterfeit notes was 35.83% of the total value of all counterfeit notes annually (see Para 8.3 of this written submission). Finally, as per RBI data, only 0.0028% were counterfeit (ibid.). This could be due to the low percentage of fake currency in circulation at the time or the lack of efficiency of Indian administrative machinery to detect fake notes. Therefore, demonetisation did not have a rational nexus with the goal of eradicating counterfeit currency either ex-ante or ex-post.

Thus, demonetisation fails at this stage as it only had a negligible contribution towards its declared goals. This is due to both its flawed design and its disastrous implementation. Failure at this stage means that the demonetisation would fail proportionality and consequently would be unconstitutional. Nonetheless, I engage with the state of necessity next.

Necessity

Court’s Reasoning

The necessity limb requires that amongst the two means that can promote the State’s aim to the same extent, the one that is the less intrusive of the rights should be chosen. The petitioners had not proposed alternative measures but they posited that the government had not considered any alternatives (see here and here). Despite this the Court provides carte blanche deference to the government at this stage observing all the “areas which are purely within the domain of the experts and beyond the arena of judicial review” (Para 275). This is regrettable and this reasoning is seriously flawed. As I have elaborated above in this case deference should have been limited in this case if any was granted. Keeping that in mind, limited deference could have been provided while conducting the necessity analysis. For instance, the Court could have only asked the government to provide proof that it had considered alternatives and then shifted the burden of proof onto the petitioners to establish that there were other valid alternatives. An absolute abdication of scrutiny is completely unmerited, though perhaps not surprising given similar recent instances.

Re-examination of the stage

Scholars have posited that necessity has a low threshold in the standard of proportionality forwarded by Barak and others, which is applied in Germany (see here, and here). This is also reflected in empirical evidence. According to me, this is one of the rare cases where the measure could have failed even with this low threshold of necessity. An important caveat before the main analysis due to the paucity of space, I shall not provide in-depth details about how alternatives could have been designed and implemented. Rather I shall point towards the possible alternative directions that the government could have taken.

I would like to reiterate that demonetisation was foundationally flawed and its potential to contribute to the state goals (black money and counterfeit currency) was meagre. This was further compounded by the calamitous implementation. Therefore, it will not be difficult to find potential alternative measures that may have achieved the State’s goal to the “same (here, rather ineffective) extent”. The alternatives could range from more structural changes or designing and implementing demonetisation. For the latter category regarding counterfeit notes, the government should have conducted capacity building before demonetisation to bolster its capacity to detect counterfeit notes and to prevent the new note series from being widely counterfeited.

Regarding black money, a greater understanding was required of the complex money-laundering networks which were enabled by gaps in the banking security systems, and lack of adequate supervision of the relevant financial entities and intermediaries among other factors. Targeting these networks required gaining an understanding of the issues of the complex logics and the logistics of the level Indian financial system (both formal and informal) and the ground-level realities and obstacles. Based on this data then solutions had to be tailored which would have focused on designing suitable incentives for black money disclosure, eliminating non-essential intermediaries in money-laundering networks, building capacity to detect laundering (administrative, technical, and investigative) and proposing a more effective supervision framework. The colossal failure of demonetisation offers lessons about overreliance on technocratic and “marketworld” protocol and solutions that focus on maximising efficiency while maintaining the structural status quo. This is often in neglect of considerate policy making which is based on meaningful consultation with relevant stakeholders, and accounts of those facing greatest adverse impact.

On the structural side, one of the key approaches could have been to take measures to target the heavily cash-dependent nature of the Indian economy. In a less cash-dependent economy, it is relatively more difficult to conduct cash-based money laundering and tax evasion (see here, and here). In fact, countries like Singapore and South Korea have had greater success while demonetising their higher denomination currency due to their economy being less cash-dependent (see here, and here). Other systemic measures could have focused on strengthening the anti-graft law, targeting offshore parking of black money, focusing on the flow of proceeds of money laundering, especially to sectors with a higher risk of laundering, and better anti-money laundering regulations. Therefore, demonstration would not pass the stage of necessity.

Balancing

Court’s Reasoning

Finally, at this stage in the proportionality test, the question is whether the interference with the right is justified considering the gain in the protection for the competing right or interest. To this end, the two values have to be “balanced” against each other.

The Court refuses to answer the question of whether the Government properly balanced its interests with the possible deleterious impact of demonetisation by cowering behind its lack of competence to judge economic issues and by an abysmal attempt at constitutional reasoning which hangs on a rhetorical question: “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” (Para 276)

The Count does not engage in balancing because that would require considering both interests which the Court has no concern in. As the Court itself put it “merely because some citizens have suffered through hardships would not be a ground to hold the impugned Notification to be bad in law” (Para 255). Here the term “hardships” is a euphemism behind which hides the real extent of suffering and devastation caused by demonetisation. The Court actively invisibilises this suffering and their loss of life of citizens by its failure to engage at this stage with the harm caused by demonetisation and all that could have been undertaken by the Government to prevent this harm. It is this refusal to engage with these arguments that makes the Court complicit.

Re-examination of the stage

As I explained above demonetisation failed to achieve its goals and the measure from the get-go was flawed. Compare this with the massive economic, and human cost of the policy. The demonetisation of 86.4% legal note tender in an economy that is close to 90% cash-reliant overnight led to chaos. This was accompanied by haphazard, ill thought out and constantly changing banking withdrawal policies, and logistical nightmares for instance the ATMs not dispensing new notes (also see, here, here, and here). These lead to a large deficit in the total amount of cash ready for circulation. After a month and a half after demonetisation the currency in circulation was only about half of the pre-demonetisation amount. The demonetisation hurt those people who were not the intended targets such as small merchants, women who had savings, and those with a lack of ready access to financial services (see here, and here). By an estimate, 82 people had died due to demonetisation within a month of the announcement of the policy. The policy was followed by a fall in growth rate in all relevant indicators and the GDP (see here, here, here, here, and here). Consequently, in my considered opinion demonetisation of Rs.500/- and Rs.1000/- notes as legal tender is clearly disproportionate.

Conclusion

The goal of this piece was to examine the proportionality analysis in the Demonetisation Judgement. The Court followed a “business as usual” approach while adjudicating on proportionality. Despite the certain theoretical concerns, the Court clearly explained the standard of proportionality. But when actually it comes to examining the constitutionality of the impugned measure it failed to scrupulously apply the standard. The Court also had a benefit of hindsight as it adjudicated six years after Demonetisation which it fails to appreciate. As the petitioners had explained, ex-post facto evidence would clearly show that Demonetisation was a failure from the get go. This kind of reasoning is the embodiment, and an indication, of an executive court.

I wrote in the introduction that “[i]n the process of reading it emerged that this was not possible as there was no reasoning.” This meant that the Court failed to engage in cogent and methodical constitutional reasoning; rather the Court’s reasoning is sustained by rhetoric (can it really be said), metaphors (merely because some have suffered hardships), and euphemisms (“every noble cause claims its martyr”). It provides a convenient frame within which judges can invisibilise and trivialise the “harships” of the already marginalised masses. In the midst of this clouding rhetoric being feigned as constitutional reasoning, it becomes our responsibility as scholars and observers to bring light to alternative possibilities, or what could have been – so that there remains a record of the court’s failure to meet the minimal rigours expected of it When courts are our beacons of last resort and fail to acknowledge the harm caused by state action, then that non-acknowledgment becomes our history, and “everything else is lost”.

Guest Post: Strategic Executive Veneration: Demonetization and the Right to Property

January 25, 2023 Gautam BhatiaLeave a comment

[This is a guest post by Kartik Kalra.]

The Supreme Court recently delivered its judgement in Vivek Narayan Sharma v. Union of India, a 4:1 verdict on the constitutionality of the demonetization exercise. The majority answered every single question in favour of the state: first, that the term “any” u/s 26(2) of the RBI Act, 1934 empowers the state to demonetize any series of any bank notes (¶151); second, that the conferral of such a power doesn’t constitute excessive delegation (¶207-8); third, that the particular exercise of this power u/s 26(2) under S.O. 3407(E) (“demonetization exercise”) met the principles of Wednesbury irrationality (¶234); and fourth, that the exercise of powers u/s 26(2) satisfied the four-pronged test of proportionality (¶278). While the first two questions concern the vires of state action, the last two concern constitutional compatibility. This piece concerns the last question – the use of proportionality to assess the validity of the demonetization exercise.

Unlike Wednesbury irrationality, satisfying the proportionality enquiry requires that state action have a proper purpose, a rational connection to this proper purpose, the non-existence of any lesser-restrictive means of achieving that purpose, and a gain from the achievement of that purpose that outweighs the harm to the right. But what right? Even before the first stage of the enquiry, the Court must identify the impugned state action and the affected rights. The identification of affected rights, which serve as the locus of the proportionality enquiry, is key – while the harm to the right of a religious denomination may be easy to justify, the harm to human dignity would require a huge set of benefits to be gained by the state action. In the present judgement, the majority identifies the right to property as the only right that demonetization engages, flying in the face of well-settled jurisprudence that calls for a recognition of all rights affected by the use of state power:

269. The proportionality doctrine is sought to be placed in service on the ground that in the case of Jayantilal Ratanchand Shah (supra), the Court held the bank notes to be property and as such, impugned Notification imposed unreasonable restrictions, violative of Article 300-A of the Constitution of India.

270. Let us test the four-pronged test culled out by Aharon Barak…

In identifying the right to property as the sole affected right against which state action must be tested, the Court turned its back towards a spree of fundamental rights violations caused by the demonetization exercise. In this piece, I argue that the Court’s identification of the right to property as the sole affected right frames the proportionality question in a manner that makes upholding the demonetization exercise inevitable. I then undertake a proportionality enquiry that takes cognizance of the engagement of the right to life, arguing that demonetization must have been held unconstitutional due to the availability of lesser-restrictive alternatives, including the state’s absolute abstention from taking any action, which would have contributed to attaining demonetization’s objectives with a similar, if not greater, degree of efficacy. In order to make this argument, firstly, I evaluate the Court’s proportionality enquiry and lay bare the reasoning it employs to conclude demonetization’s satisfaction of the same; secondly, I argue that the Court’s refusal to evaluate the efficacy of demonetization cannot stand simultaneously with the demands posed by the proportionality enquiry, for it assesses validity via an assessment of comparative efficacy; thirdly, I enquire into demonetization’s satisfaction of the necessity prong, arguing that the state’s absolute abstention from taking any action would have been one among a set of lesser-restrictive alternatives possessing a similar degree of efficacy to demonetization. I conclude that the Court, in order to uphold state action, strategically identified the right to property as the sole affected right, which enabled State impunity.

Proportionality and the Right to Property

The Court considered the right to property to be engaged by the demonetization exercise, whose validity would have to be assessed using a proportionality enquiry. In undertaking its enquiry, it used the first prong to identify three objectives that demonetization sought to achieve – i) the elimination of “black money”; ii) the elimination of counterfeit currency; and iii) the elimination of subversive activities, including terrorism, that use counterfeit currency (¶271). It then moved to the second prong, where it assessed the ability of state action to contribute to furthering the three objectives of demonetization. Its analysis in this prong was done in the following manner:

273. 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…

There isn’t much reasoning the Court adopts in this prong, and Gautam has already critiqued it as resembling the form “Can it be said that A is not B? We find that A is B.” To be fair to the Court, however, the second prong is highly deferential, and is constrained to evaluating whether state action even marginally contributes to the fulfilment of the proper purposes. As long as this marginal contribution is present, the satisfaction of the second prong is concluded, and the Court moves to the necessity prong. This prong examines minimal impairment, assessing the availability of any lesser-restrictive alternatives to the impugned state action that can achieve the state’s proper purposes in a real and substantial manner. This prong is where the Court’s identification of the right to property as the sole affected right gains significance, for it is able to formulate the question as “how much of the right to property in banknotes must be infringed to meet the state’s proper purposes” instead of “whether there exists an alternative to demonetization in order to achieve the state’s proper purposes”. It says the following:

275. Whether the Courts possess an expertise to decide as to whether demonetization of only Rs.500/- denomination notes ought to have been done or the denomination of only the notes of Rs.1000/- ought to have been done or as to whether particular series of the bank notes ought to have been demonetized. These are all the areas which are purely within the domain of the experts…

On this basis, it holds that given the Court’s inability to define the quantum of the banknotes whose demonetization would have restricted the right to property less, the third prong stands satisfied. This answer was inevitable, given the couching of the question of rights in terms of the right to property. The absence of a determining principle to assess the quantum of banknotes whose demonetization would minimally impair the right to property in banknotes was obvious, and yet the Court chose to make that particular right the core of its enquiry. It escapes a proper enquiry at the balancing stage as well, asking rhetorically “can it really be said that there is no proper relation between” the state’s objectives and the infringement of the right to property (¶276). It doesn’t enquire into the benefits attained via demonetization versus the harm to the right in property, holding that actually, no right to property is even engaged:

277. In any case, by demonetization, the right vested in the notes was not taken away. The only restrictions were with regard to exchange of old notes with the new notes, which were also gradually relaxed from time to time…

Thus, after attempting to undertake a proportionality enquiry, the Court holds that it was a meaningless endeavour, for the right to property in banknotes isn’t actually even taken away. You can always deposit your money in the bank, get as much of a right to property in banknotes back – then what violation of the right to property are you complaining of? If the Court were to ultimately hold that demonetization doesn’t even engage the right to property, a proportionality enquiry was intended solely a red herring in its overall state-knows-best reasoning. On this basis, I submit that the Court made a strategic choice in favour of the state in the very beginning when it chose to identify the right to property as the sole affected right, turning its back towards the spree of human rights violations that the demonetization exercise caused. In the following section, I identify these rights, and argue that the Court refused to recognize the well-entrenched principle of recognizing the engagement of every single right affected by state action. In case it did, it may have seen a different outcome of its proportionality enquiry.

“The State Knows Best” and the Obfuscation of Efficacy

The demonetization exercise had wide-ranging implications for a plethora of fundamental rights. If judgements on Article 21 repeat ad-nauseum that the right to life means “something more than mere animal existence”, on what basis don’t a hundred deaths, millions standing in queues for days on end, hunger and under-nutrition, and a massive loss in livelihoods even call for a recognition that the right to life of the population was affected? Workers in the informal and agricultural sectors were substantially deprived of their salaries and wages, with many compelled to perform unpaid work for a prolonged period, affecting the right to livelihood. Lack of food and a breakdown of the agricultural economy have also been alleged, leading to circumstances of situations of hunger and malnutrition, affecting the right to food. The state compelling its citizens to stand in long queues for days on end that led to approximately a hundred deaths, all in pursuit of three instrumental aims, affects human dignity.

A blind-eye towards the devastating consequences of demonetization stands behind the Court’s obfuscation of two distinct issues – the rights affected by demonetization following the decision, and the post-facto efficacy of the demonetization. While the latter would not be relevant at the third stage of the proportionality prong, the former would be extremely relevant in determining the locus of the proportionality enquiry. The Court holds that it isn’t capable of “assess[ing] or evaluat[ing] what would be the impact of a particular action and it is best left to the wisdom of the experts” (¶252). But what constrains its ability to evaluate the impact of state action on fundamental rights – isn’t that its very job? If there exists quantifiably verifiable evidence that shows a spree of human rights violations caused by demonetization, it is unclear why a recognition that these rights were affected be withheld. An effects-based assessment of the engagement of rights is the norm since RC Cooper (¶49). In Anuj Garg, the Court held that the effects of a stereotype-perpetuating law would determine the locus of its enquiry (¶44); and in Madhu and Ravina, it held that the unequal effects of a facially neutral law must be taken into consideration in assessing engaged rights (¶19; 12). On this basis, while the state may have intended to impose a limitation, howsoever transient, on the right to property in banknotes, the ultimate effect of that limitation on other rights would be determinative of the rights engaged by the state action. The right to life, therefore, would be engaged, and the Court would undertake an analysis of the reasonableness of state action on that anvil. The first two prongs of the enquiry would still be mostly similar, where the Court identifies demonetization’s objectives and its ability to marginally contribute thereto. For the third prong, it must be recalled that the state has offered three objectives for demonetization – i) the elimination of “black money”; ii) the elimination of counterfeit currency; and iii) the elimination of subversive activities, including terrorism, that use counterfeit currency (¶271).

The Court, however, was unable to do anything meaningful at the third prong due to its obfuscation of the above two questions – its stance against the examination of demonetization’s post-facto efficacy also became a ground to refuse an examination of demonetization’s efficacy within the necessity prong. The Court, including Nagarathna J. (¶20), held that judicial review of economic policies must occur independent of their ability to attain their purported outcomes:

247. However, we do not wish to go into the question as to whether the object with which demonetization was effected is served or not or as to whether it has resulted in huge direct and indirect benefits or not.

This proposition is fair, for using the post-facto failures of demonetization as a ground to hold the exercise unconstitutional would be unfair to the state – it would impute to it a constitutional requirement of predicting the unforeseeable. This is not, however, what the necessity prong asks. It enquires into the availability of similarly efficacious alternatives with the state at the time the impugned state action was taken, while the efficacy of the impugned (and alternative) state action is that which the state must have pre-empted using objective materials. In the Court’s necessity analysis, however, it states the following:

274. As such, 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. Unless the said discretion has been exercised in a palpably arbitrary and unreasonable manner, it will not be possible for the Court to interfere with the same.

The Court concedes its inability to determine alternatives to the impugned state action at the time that the state action was taken, for the state knows best. While the subsequent failures of demonetization would not be a ground to hold the exercise unconstitutional, the availability of alternatives at the time the exercise was taken is exactly what the test enquires. In Aadhaar, the Court has provided the following composition of the enquiry (¶155):

Identify a range of possible alternatives to the present state action;
Examine the ability of these alternatives to attain the state’s purported objectives in a real and substantial manner;
When similarly efficacious alternatives are available at Stage 2, examine their rights-restrictive nature;
If an alternative at Stage 3 is able to be lesser-restrictive than the present state action, the impugned state action fails the necessity test and is unconstitutional.

In order to determine whether any alternative would have been able to fulfil the state’s objectives with similar efficacy at Stage 2, it logically follows that the objectively pre-empted efficacy of the impugned state action at the time that it was taken must also be examined. This stage, by design, is comparative in evaluating efficacy, and would necessarily require an efficacy-based assessment of the impugned state action. If the Court wished to shield the state by holding that the state action is economic in nature, it must have avoided invoking an enquiry that assesses validity using efficacy. While it can be argued that the Court must show greater deference to the state in its enquiry given that demonetization is an economic policy, my argument is solely that once proportionality is invoked, there is no question of “more” or “less” deference in terms of how the test stands in India – there exist only four steps, and the third step consists of a further four steps – there’s no scope of tinkering with the objective components of the enquiry. If the Court wished to show greater deference to the state, the way of doing it was to stop at the third stage of its enquiry, where it concluded that demonetization satisfied the Wednesbury principle (¶234). It did not choose this path, invoking proportionality while simultaneously refusing to evaluate the availability of alternatives. Once proportionality is invoked, this cannot be done, and the enquiry would proceed using the abovementioned four stages. I undertake this enquiry in the following section.

An Efficacy-based Minimal Impairment Analysis

In the instant case, the state submitted that 98% of the demonetized currency has returned to it, indicating low post-facto efficacy in eliminating unaccounted cash and fake currency notes (¶20, Nagarathna J.). This, however, cannot be of direct use at this stage, for the question instead is demonetization’s pre-emptive efficacy at the time that state action was taken. For all three objectives, the Court could have asked the state to produce evidence of demonetization’s efficacy that the state envisioned, along with information of alternatives that were available at the time that state action was taken. Even if the state could somehow prove that demonetization was the only alternative available that could attain all three objectives with the efficacy that it envisioned, the Court would still assess alternatives at Stage 1.

Consider the following alternatives to demonetization available with the state at the time state action was undertaken, whose efficacy based on their ability to curtail unaccounted cash, counterfeiting, and connected terror-funding and must be evaluated: i) the status quo itself; ii) a gradual replacement of the former Rs. 500 and Rs. 1,000 banknotes with new notes that are difficult to counterfeit; iii) moving against individual counterfeiters under the Indian Penal Code (“IPC”), and attaching their assets under the Prevention of Money Laundering Act, 2002 (“PMLA”); iv) use of Section 51A(a) of the Unlawful Activities (Prevention) Act (“UAPA”), 1967 to impose individualized sanctions on organizations and individuals “engaging in or suspected to engage in” currency-based terror-related activities.

Unaccounted cash, hold some authors, is not hoarded, and is instead always in circulation in the form of assets being bought and sold. The fact that almost all of the demonetized currency returned to the state wasn’t extraordinary – for information with the state already indicated that a conception of “black money…held in the form of notes tucked away in suit cases or pillow cases is naïve” (11). Further, data of the National Crime Records Bureau suggests that the new Rs. 2,000 banknote is no less susceptible to counterfeiting as compared to the former Rs. 500 and 1,000 banknotes. One monograph suggests the following:

In any case, demonetisation is hardly an effective measure against counterfeiting in future. It would be so only if the technology employed in printing the new legal tender prevents any possibility of these notes being faked in future. However, it is now evident that the security features in the newly released notes are no different from or even slightly less than in the earlier notes. Therefore, they are just as liable, if not even more liable, to being counterfeited. (19)

Further, terror-related activities pertaining to counterfeit currency are estimated to be minimal, with the large-scale introduction of such currency to cause economic instability being absolutely unheard of. Even if an immense counterfeiting problem exists, this kind of activity could as easily be undertaken using new currency notes, for the new notes are no less susceptible to being counterfeited than the old ones. On this basis, option (i) of maintaining the status quo is a very real alternative carrying a similar degree of efficacy as the present state action, having the ability to meet the state’s three objectives in a manner akin to the demonetization exercise. By doing nothing, the state could have achieved its objectives in an equal, if not better manner.

The RBI, in its 2015-16 Annual Report, has stated that counterfeited currency constitutes only 0.0000070% of the total currency in circulation (page 92). Given that the problem being combatted isn’t as large, a gradual replacement via option (ii) could also have served to eliminate this proportion of counterfeited currency. Further, it must be noted that the Indian state is now more powerful than ever, and has a plethora of targeted mechanisms to curtail currency-related subversive activities instead of having to demonetize its currency. If the RBI identifies counterfeited currency in circulation, it means that the currency is being used to buy and sell something in the market, along with the fact that such currency is being produced. This series of acts with counterfeits – from production to transacting – constitutes an independent offence u/ss. 489A and 489B of the IPC. If the state discovers that a bunch of entities are involved in the regular production of counterfeits, it can proceed against them individually under the above sections. Further, the PMLA considers Sections 489A and 489B to constitute scheduled offences, meaning that the proceeds from committing those offences shall be deemed “proceeds of crimes”, and that the assets purchased using such proceeds can be attached u/s 5 of the PMLA. Lastly, the state can also invoke Section 51A(a) of the UAPA to freeze “all economic resources” of an individual or organization that has engaged in, or is suspected to be engaged in currency-related acts of terrorism. Options (iii) and (iv), therefore, are individualized mechanisms of combatting counterfeiting and its corresponding terror-related activities. Given their individualized nature, they may enjoy a comparable, if not greater efficacy than demonetization in reducing the 0.0000070% counterfeit currency in India. On this basis, options (iii) and (iv) may be able to fulfil the state’s objectives in a real and substantial manner, and satisfy Stage 2 of the enquiry.

Given the availability of four alternatives to demonetization, their rights-restrictive nature is evaluated at Stage 3. It must be noted that option (i) is the least rights restrictive – for all that’s asked of the state is to abstain – and its non-action would be more efficacious and less rights-restrictive than the present state action. Option (ii) may also be of a similar rights-restrictive nature as option (i), for the state’s gradual replacement of counterfeits may not have a significant impact on fundamental rights. The use of option (iii) may lead to a violation of the guarantee against non-retrospectivity, which has been discussed here; and the use of option (iv) may lead to the violation of the guarantee against non-arbitrariness, for the UAPA confers uncannalized powers on the state to freeze assets of persons that it “suspects” to have engaged in terrorism. While there may be rights violations caused by invoking options (iii) and (iv), the only question is whether any of the four options is less rights-restrictive than demonetization – and if it is, then the demonetization exercise is unconstitutional.

It is clear that options (i) and (ii) are less rights restrictive than demonetization, for they effectively indicate the continuation of the status quo for the citizen. The less-rights restrictive nature of any of the options leads to a conclusion of demonetization’s unconstitutionality, and the exercise would therefore fail at this prong. Regardless, consider options (iii) and (iv): while they may also violate fundamental rights against retrospectivity and arbitrariness, the overall deprivation of the right to life caused by the demonetization exercise – with numerous deaths, loss of livelihoods, hunger, and a state of desperation – must be considered greater. This doesn’t mean that the violation of one’s guarantee against retrospectivity is justified in pursuance of the right to life of a hundred others – it only means that the greater rights-restrictive nature of one, in the presence of the other, is a violation of fundamental rights because the other was always available. If the state would have employed Section 51A(a) of the UAPA to freeze the assets of a counterfeiting-related terror suspect, a separate constitutional enquiry would lie against that exercise of state power, and alternatives to the invocation of Section 51A(a) would have to be identified – whose efficacy and rights-restrictive nature would then be evaluated. In this way, there’s no overall free pass given to the state, which must always show why it couldn’t do something else that was less rights-restrictive in pursuit of its objectives.

On this basis, I submit that the availability of lesser-restrictive alternatives to demonetization with a similar degree of efficacy at the time of undertaking the state action means that the exercise is unconstitutional. The state could just have let it be, and still achieved its objectives more effectively than it did using demonetization.

Conclusion

But the Court doesn’t enquire into any of this. In the garb of its state-knows-best reasoning, it considers the right to property the sole right engaged, turning its back towards the spree of human rights violated by demonetization. It cloaks its super-deferential enquiry as proportionality, while simultaneously refusing to evaluate demonetization’s efficacy. The most bewildering segment of the decision, however, is its absolute inattention towards the meaninglessness of the state action, the implications of which are deemed irrelevant (¶257). If the state could do nothing and still attain its objectives with greater efficacy than doing something, and in doing that something it causes immense hardship and fundamental rights’ violations, the Court simply says that as long as you’re getting your banknotes back, there’s no right to even complain of. This mode of reasoning is chosen strategically to uphold state action – from choosing among engaged rights arbitrarily, to holding that a determination of the quantum of the infringement of the right to property in banknotes lies solely in the domain of experts (¶275). This is strategic executive veneration – framing its enquiry in such a manner that all pieces of the puzzle come together to validate state action.

Guest Post: Who Killed Article 12? – Horizontal Rights and the Judgment in Kaushal Kishor

January 10, 2023 Gautam Bhatia4 Comments

[This is a guest post by Ishika Garg and Abinand Lagisetti.]

Introduction

On 3rd January 2023, a Constitution Bench of the Supreme Court delivered its judgement in the case of Kaushal Kishor v. The State of Uttar Pradesh. One of the questions before the Court was whether fundamental rights under Articles 19 and 21 of the Constitution can be claimed against parties other than the ‘State’ or its ‘instrumentalities. Essentially, the question revolved around the extent of and the limitations within Article 12 of the Constitution. Surprisingly, the majority in this case went on to hold that:

A fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities.

Talk about starting the year with a bang! The implication of this holding is that the rights under Article 19 and 21 are henceforth to be considered horizontal in nature, and would thus be available against private individuals. This begs the question of whether the decades-long jurisprudence that the courts have developed in delineating the scope of the ‘State’ under Article 12 was all in vain. In this post, the authors shall first attempt to unpack the line of reasoning followed by the majority in arriving at its conclusion. Thereafter, the post shall outline the approach that the Bench should have instead adopted when deciding the question under reference before it. Lastly, the authors shall analyse the potential impact that this judgement shall have on future cases involving a similar question of law, and demonstrate how the same is undesirable.

Deconstructing the Majority: A Search for Reason

The majority begins with a rather unnecessary reproduction of the jurisprudence on horizontal and vertical application of fundamental rights in different jurisdictions. Unfortunately, the only role this reproduction seems to have served is that of a page-filling exercise. Regardless, two limbs of reasoning that enabled the majority’s conclusions can be culled out. At the first level, the majority argues that over a period of time, there has been a jurisprudential shift in India in favour of the horizontal application of all rights under Part III. This is evident from the following extract from the judgement:

To begin with, this Court was weary of extending the enforcement of fundamental rights against private individuals. But this reluctance changed over a period of time.

At this juncture, it becomes important to clarify that the problem that this post seeks to address is not of horizontal rights in general. Rather, the issue arises when we try to horizontally apply Articles 19 and 21 in specific. Indeed, there can be no doubt that some fundamental rights, such as the right against untouchability, can be and have been, horizontally applied. However, the very language of Articles 19 and 21 exclude such an application. This is clear from the dictum in the case of P.D. Shamdasani v. Central Bank of India. In that case, the Court held that the phrase “except by procedure established by law” in Article 21 necessarily excludes its vertical application. Similarly, it noted that the language and structure of Article 19 was intended to only cover cases involving some form of state action.

While acknowledging this thread of reasoning, the majority proceeds to discuss judgments, which it believes portray an inclination towards the horizontal application of these fundamental rights. Of all the cases that the majority has discussed, only two cases could be construed to lend support to its conclusion: Bodhisattwa Gautam and MC Mehta. All the other cases directly involve a state entity or an entity undertaking a public function akin to that of a state or involve a right other than those under Articles 19 and 21. Even the aforementioned two cases have been erroneously relied upon by the majority. This is for the reason that the relief awarded in each of these cases was not linked in any way to the status of the violator of the fundamental rights in question (private or public), but was in fact connected either to a statutory remedy to that effect or to a remedy in tort. For instance, in MC Mehta, the remedy finally awarded to the petitioners against a private body was so done by virtue of the existence of the well-established environmental law principle of ‘polluter pays’. Likewise, in Bodhisattwa Gautam, the compensation awarded was a result of an existing remedy by way of a Central Government scheme.

The second level of reasoning employed by the majority is dependent upon its interpretation of the applicable test under Article 12. As per them, the test has transitioned in the following manner:

…. from “State” to “Authorities” to “instrumentalities of State” to “agency of the Government” to “impregnation with Governmental character” to “enjoyment of monopoly status conferred by State” to “deep and pervasive control” to the “nature of the duties/functions performed”.

Through this excerpt, the majority seems to suggest that the test under Article 12 has been watered down by judicial decisions over the years. However, nothing could be farther from the reality. Post the decision in Ajay Hasia, requirements for a body to qualify as a ‘State’ under Article 12 have come to be crystallised in cases such as PK Biswas (as shall be discussed later). Resultantly, the test under Article 12 has only become stricter. Regardless, this excerpt serves as the majority’s recognition of the existence and relevance of a test under Article 12, whatever may be the standard. However, the final conclusion reached in this case stands in opposition to this acknowledgement. If fundamental rights are indeed enforceable against all private entities, then there would be no point in looking to Article 12 to see if the entity qualifies for such enforcement in the first place. In simple terms, the conclusion that the majority reaches not only presupposes the existence of no test but also invisibilizes Article 12 as a whole. Crucially, there is a clear absence of any reasoning to justify such a logical jump from the existence of some test to the existence of no test.

The Road Not Taken: A Constitutionally Compliant Alternative

Despite acknowledging the existence of a test under Article 12, the majority fails to meaningfully engage with it. It is this gap that provides a space to outline an alternative approach which the Court could have instead adopted. The authors propose that there is a two-fold procedure that the majority should have looked at in response to the question under reference before it. First, any question of enforcement of rights under Article 19 and 21 against any individual or entity should necessarily be answered through an enquiry into whether the individual or entity falls within the scope of Article 12. In establishing this, perhaps the most widely used test would be that established in the case of PK Biswas. While the elements of this test have been recounted in great detail on this blog earlier, the essence of it can be captured through the following question: Whether the body is financially, functionally and administratively dominated by or under the control of the Government? If this question is answered in the affirmative, then the body shall fall within the scope of Article 12. Even if the answer is in the negative, there is yet another level of scrutiny that may be conducted. This brings us to the second prong of our procedure.

While a body which does not pass the PK Biswas test would not be open to claims under Article 32 of the Constitution, the route of Article 226 continues to remain open. Article 226 vests in the High Court the power to issue orders and writs to “any person or authority” for the “enforcement of any of the rights conferred by Part III, and for other purposes.” The logical implication is that it is possible to hold a non-State body accountable for a substantive Part III violation even without invoking Article 32. An example of such an application is found in the case of Zee Telefilms. In that case, the status of BCCI under Article 12 was in question. Although BCCI was held not to be a ‘State’ within the meaning of Article 12, the Court held that the aggrieved party could nonetheless seek redressal through Article 226, given that BCCI discharged functions of significant public importance. Additionally, the Court supported the Article 226 route in that case because the BCCI was discharging such functions exclusively. Thus, as has been previously pointed out by a post on this blog, to avail of the option under Article 226, the aggrieved party must consider: first, the nature of the function being performed by the violator; and second, whether the violator is performing such function exclusively. In light of such precedent, the Court in the present case should have evolved the following method of enquiry instead of jumping the gun:

To check whether the body against whom fundamental rights under Articles 19 and 21 are sought to be enforced falls within the scope of Article 12;
To check if the body in question can be made amenable to writ jurisdiction under Article 226 by virtue of it fulfilling the two prerequisites of nature and exclusivity of its functions, if the first question is answered in the negative.

However, in the present case, there seem to have been no attempts on part of the majority to even consider, let alone establish, such layers of enquiry. Instead, the court directly moves on to the surprising expansion of Article 19 and 21 rights against all private bodies. Even if one turns a Nelson’s eye to such ignorance for a moment, a more foundational issue remains to be addressed. As Justice Nagarathna points out in her dissenting opinion, before the invoking the writ jurisdiction of a court, a preliminary enquiry into the existence of any alternative statutory or common law remedies must be embarked upon. This idea stems from the principle that if an effective remedy is found to exist that can adequately tackle the rights violation in question, then writ jurisdiction cannot be invoked. Given this limitation, an additional level of enquiry inevitably comes to precede the two-step procedure outlined above. This level would essentially look at whether any statutory remedies already exist in relation to the act for which a violation of fundamental rights is being claimed in the first place. Simply put, only in the vacuum of any such remedies should the Court get into the two stages of enquiry relating to the status/function of the body against whom the rights violation is claimed.

Through the Looking Glass: An Eye to the Future

As until now, all claims involving infringements of Articles 19 and 21 required the infringer to meet the requirements of Article 12. The immediate impact of doing away with such a condition would be the countless private disputes that would now flood the writ courts. In addition to overburdening the writ courts, such private disputes would also now require the writ courts to adjudicate upon disputed questions of fact. This would be a stark departure from the well-established practice of writ courts not entertaining such questions. Notwithstanding this, let us for a moment, pause and consider what rationale the Court might have had in reaching the overbearing conclusion that it did.

In the authors’ opinion, the Court’s attempt has been to spread its net wide to entrap those entities which violate fundamental rights of individuals but fail to meet the requirements of Article 12. One class of such entities would be social media giants. While such a rationale might have a plausible logical goal, it would undermine the existing legal framework as shall be demonstrated below. The ongoing Facebook-WhatsApp litigation before the Supreme Court serves as a reminder of the same.

The case involves a challenge to the data sharing agreement between Facebook and WhatsApp on the ground that it violated the users’ right to privacy and freedom of speech. The question that arises is whether such rights can be enforced against such non-state actors. While the majority opinion answers this question in the positive, an application of the aforementioned two-fold test reaches the opposite conclusion. First, neither Facebook nor WhatsApp, being independent private actors, are financially, administratively and functionally under the control of the Government. Given that they do not meet the requirements of Article 12, we shall now proceed to the second level of enquiry. What must be considered is whether the nature of the functions and the exclusivity of the functions render the platforms amenable to writ jurisdiction under Article 226. The nature of the functions discharged by both Facebook and WhatsApp i.e., expression and communication, are undeniably of significant importance to the public. However, the provision of such service, by no means, is the exclusive domain of just Facebook and WhatsApp. Multiple other actors such as Twitter and Telegram flood the field. Thus, neither Article 32 nor Article 226 provide a viable recourse against these entities.

Importantly, what the majority fails to consider is that the inapplicability of Part III remedies does not exhaust common law remedies that still continue to be available to aggrieved parties. As recognised by Justice Nagarathna in her dissent, there exists a concurrent remedy under common law that can be brought against non-state actors. For instance, as observed by the Court in Puttaswamy, the contents of the right to privacy under Part III and under common law are identical. The only difference being that, in cases involving non-state entities such as Facebook and WhatsApp, an action for the violation of such a right would now lie before an ordinary court. Alas, these nuances too have received no engagement from the majority, setting a dangerous precedent for the future.

Interestingly, no other jurisdiction in the world allows for such unbounded direct horizontal application of rights against non-state actors. Even jurisdictions that constitutionally recognise the horizontal application of rights, do so with certain limitations. For instance, Article 20 of the Kenyan Constitution allows for both direct and indirect horizontality. However, as highlighted by Brian Sang in his work, subsequent judicial developments such as Isaac Ngugi have made this horizontality contingent on the nature of the right and the circumstances of the case in question. Similarly, Article 8(2) of the South African Constitution expressly qualifies the direct horizontal application of rights on the basis of the nature of the right and the corresponding duty imposed by it. The basis for the Indian Court’s misadventure into uncharted territory thus remains a mystery.

Guest Post: On the Bombay High Court granting bail to the Kochhars

January 10, 2023January 10, 2023 Gautam Bhatia1 Comment

[This is a guest post by Abhinav Sekhri, cross-posted from the Proof of Guilt blog, with permission.]

The Bombay High Court has re-affirmed the most elementary legal position — the mere power to do something does not act as a justification for doing it. That its order of 09.01.2023 directing the release of Deepak Kochhar and Chanda Kochhar by granting them interim bail on this very premise has generated such a buzz is not indicative of any pathbreaking findings made, but on how distant even these elementary legal principles appear when it comes to our criminal process that every such order warrants celebrations within the community of defence lawyers akin to India winning a cricket match.

Chanda and Deepak Kochhar were named as accused persons by the Central Bureau of Investigation (CBI) in an FIR lodged in 2018. They were not arrested then, and appeared numerous times before the agency (as well as other agencies investigating them) [a useful list of dates begins at page 8 of the order]. On 23.12.2022, they were again present at the office of the CBI for questioning, only this time they were both arrested. The grounds disclosed for their arrest in the Arrest Memo were that (i) they were named as accused persons, and (ii) they were not cooperating with the ongoing probe.

Without seeming to engage with the sufficiency of these reasons for arrest, the trial court first remanded them to police custody and then to judicial custody. On 27.12.2022, it appears that the FIR, the arrests, remand orders were all challenged before the Bombay High Court. As we already know, going by the premise that the mere power to do something—arrest—does not act as a justification for it, the High Court held that the justifications for the Kochhars’ arrests required scrutiny, and when scrutinised these came up horribly short of passing muster under the law as present under Section 41 of the Criminal Procedure Code 1973 and as had been clarified by the Supreme Court most recently in Arnesh Kumar (2014) and Satender Antil (2022).

It is likely that the High Court’s specific findings on the insufficiency of justifications behind the arrests will garner most attention. Being named in a case in and of itself was never grounds for arrest, even more so where four years had lapsed between the lodging of a case and the arrest. And in respect of the ‘non-cooperation’ — an idea incidentally also critical to the Satendar Antil judgment — the High Court agreed with the view that cooperation could not be a substitute for ‘confession’, such that when an accused did not sing the tune of an agency she would be labelled as being non-cooperative. On closer scrutiny, arguably more important conclusions become visible that are not headlined in the same manner, as well as some cracks in the reasoning and the obvious limits to this order.

First, to the conclusions that hopefully other courts can build upon to restore a wall to protect personal liberty. The High Court order does not only advance the basic premise that there must be sufficient justifications for an arrest, but it also indirectly indicates that these justifications must be captured in a public facing document in the form of the arrest memo, and not hidden away in the case diaries where an accused will not have access to them. This is critical, because it is only the arrest memo that is shared with the family upon arrest and, as extracted in the order, the reasons for arrest that are disclosed therein are often unintelligible or party excuses. The High Court’s order stands for the position that given the gravity of the measure in question, full and adequate reasons ought to be recorded and disclosed for the process to be in consonance with the letter and spirit of the law.

Besides the casting of clearer duties on police, the order also restates a requirement for trial courts to engage with the sufficiency of an arrest when a remand to custody beyond 24 hours is sought. In this case, the High Court could not discern from the remand orders whether the trial court had even considered the issue of the legality of arrest, and it severely reprimanded the trial court for failing to do so. It is not the first order to do so, and the High Court invokes earlier cases to support its view, but the importance of our trial courts discharging their role as the first bastions for protecting our personal liberty — as the late K.G. Kannabiran had said — cannot be overstated. Not only from a broader, socio-political standpoint, but also from a legal remedies standpoint. Where an illegal arrest is sanctified by a remand to custody, the writ of habeas corpus against such an arrest is practically extinguished.

It is possibly why the Kochhars also did not file a writ only challenging their arrests, but filed an omnibus writ petition challenging the very registration of the case and all executive / judicial action emanating therefrom (a strategy that had also been taken when Arnab Goswami was arrested in an old case, where incidentally the senior counsel for Ms Chanda Kochhar was on the opposite side). Moving an interim relief in such a petition, as opposed to a regular habeas or even seeking regular bail before the trial court, was a strategic call that clearly paid great dividend.

Then there are the tiny cracks. While the High Court comes down heavily on agencies treating cooperation synonymous with confessions, that happens by the High Court accepting the argument that this was the only possible cooperation left. The High Court did not engage with the idea of cooperation on its own terms. If it had done so, it would have had to square up to the language of Section 41 of the Cr.P.C. which justifies an arrest in cases where it is necessary for ‘proper investigation of the offence’. What is the scope and ambit of this ‘proper investigation’ thus remains unclear, even as it remains clear that it certainly is not the practice of taking custody in the hope of extracting confessions. One imagines that this order will not be the slaying of the non-cooperation dragon after all

Lastly, the limitations. The offences alleged against the Kochhars were not of the very serious variety — a maximum seven years punishment was prescribed. Within the statutory universe of Section 41, and cases that have interpreted the power to arrest such as Arnesh Kumar, there is a different treatment for these offences. The enumerated list of justifications provided for arrest in such cases does not cover the more serious class of offences punishable with more than seven years imprisonment. One can only hope that the findings on sufficiency of recorded justifications and engagement with them by the trial courts at time of remand is not sought to be limited by future courts using this classification.

To sum up, The Kochhars were arrested four years after a case was filed against them without any real basis recorded in writing. They could afford to move the High Court during vacations, get an urgent listing and hearing, and get the High Court to remind everyone that personal liberty ought not to be trifled with. What they did is not a route that many similarly placed accused persons can hope to follow, but hopefully the fruits of their labour can be enjoyed and built upon to narrow the gap between the promise of Article 21 and the practices of our law enforcement agencies.

Guest Post: Sabarimala V 2.0 – Religious Freedom and Non-Discrimination Revisited

January 10, 2023 Gautam BhatiaLeave a comment

[This is a guest post by Shreyasi Singh.]

Recently, a petition before the Kerala H.C. challenged the constitutional validity of the Travancore Dewaswom Board notification, inviting applications only from Malayala Brahmins for appointment as Melshanthi (chief priest) of Sabarimala-Malikappuram temples. The notification has been mainly challenged on the grounds of the violation of Articles 14, 15(1), 25(2), and 16(2) of the Constitution. Previously on this blog, there have been critiques of the application of the Essential Religious Practice Test, hereinafter ‘ERP’, as infringing upon the religious autonomy of religious institutions. Rather than going by that path, for the course of this article, I shall limit my analysis to the Anti-Exclusion principle vis a vis Justice Chandrachud’s question: ‘what was the legacy of injustice that the Constitution sought to acknowledge and then transform’?

Four questions come to my mind while examining the same :

Ques 1. What should be the governing principle for balancing the Religious freedom of groups with that of individuals?

Ques 2. Whether the governing principle applies equally to religious denominations under Article 26?

Ques 3. Whether the governing laws of the Anti-Exclusion Principle cover religious institutions, or is there a restriction on the application of the rights?

Ques 4. If the answer to the above question is yes, what alternatives, if any, does the Constitution provide for balancing the fundamental right to religion of individuals, that of religious denomination vis a vis the transformative vision of the Constitution?

I shall take each of these questions in the subheads below. I start by tracing the judicial development of the Anti-Exclusion principle and its extension to religious denominations. In the second half of this article, I shall first answer the normative question of reading Article 15 (2)( b) to include places of worship within its ambit and then apply the grounds of discrimination enumerated in Article 15 to test the validity of the notification. It is important to note that Sabarimala has been declared not constituting a religious denomination in Indian Young Lawyers Association v State of Kerala. However, a review petition is pending against the same. For the sake of clarity, I shall examine the validity of the notification by considering Sabarimala, firstly, as a non-religious denomination and, secondly, as a religious denomination. I conclude by addressing the limitations of applying the Anti-Exclusion principle to balance the rights of religious groups.

TRACING THE ANTI-EXCLUSION PRINCIPLE IN INDIAN JURISPRUDENCE

Babasaheb Ambedkar, while discussing the religious freedom clauses in Constituent Assembly Debates (hereinafter ‘CAD’) noted that in India, religion, the private life of an individual, and the community’s public life are inextricably bound together and thus require state intervention to regulate merely secular matters. He observed in the CAD that ‘we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious’. Importantly, however, this method/basis of the distinction between religious and secular is not contained within the code. It is through judicial pronouncements that the distinction is interpreted and, in that exercise, has lost its intent by application of the ERP test, which the drafters did not intend.

However, a rejection of the same demands another way of making sense of the freedom of religion vis a vis rights of individuals. As an alternative to the same, recently, in Indian Young Lawyers Association v the State of Kerala, J Chandrachud, in his concurring opinion, subscribes to what Bhatia has called the Anti-Exclusion Principle. The principle adds to what Sandra Fredman identifies as a multi-dimensional approach to equality and provides an additional ‘common denominator‘ that enables courts to balance irreconcilable issues. In effect, the anti-exclusion principle provides for the interests of disadvantaged groups with a history of social exclusion to be given precedence over religious autonomy claims, particularly those of dominant religious groups. The Court should leave it to the followers of any religion to determine what practices are essential and worthy of following. It is not a new perspective; it has been followed across jurisdictions committed to constitutional liberalism, like the US, Canada, and Europe, by restricting the imposition of external points of view over religious affairs to judge its essentiality.

The application of the Principle demands a horizontal application of the non-discrimination rights contained in Article 15(2) and Article 17, primarily intended to secure the individual’s dignity and balance it with the coexisting freedom of religion. Such application can be traced back to the dissenting opinion of BP Sinha CJ in Sardar Syedna Tahir Saifuddin v State of Bombay. The case concerned the challenge to the Bombay Prevention of Excommunication Act 1949, which prohibited religious communities from excommunicating any of its members. While this Court held barring ex-communication on religious grounds cannot be considered to promote social welfare and reform, C.J. B.P. Sinha framed the issue as one of untouchability and, thus, not within the guaranteed right to religious freedom. He held that the “impugned act was aimed at ensuring human dignity and removing all those restrictions which prevent a person from living his own life so long as he did not interfere with similar rights of others” (paragraph 11). He did an impact analysis of the social aspect of ex-communication to hold that ex-communication would render the person untouchable in their community.

Anti-exclusion has not been invoked before the Sabarimala judgment, but it has been in the judicial conscience for some time now.

APPLICATION OF ANTI-EXCLUSION PRINCIPLE TO RELIGIOUS DENOMINATION:

Essentially, there are two aspects to applying the Anti-Exclusion principle under Article 26. Firstly, religious freedom rights are a seamless web of rights within the cover of Part III of the Constitution. Secondly, a true construction of the word morality means “constitutional morality.”

This first view is built upon Rustom Cavasjee Cooper (Bank Nationalisation) v. Union of India that held fundamental rights contained in Part III do not exist in watertight compartments, and that all freedoms have linkages and exist in a state of mutual co-existence. In effect, where a belief infringes the fundamental values of dignity, liberty, and equality, it is liable to be struck down. Moreover, in the case of Shri Venkataramana Devaru v. State of Mysore, a Constitution Bench of this Court considered the constitutionality of the Madras Temple Entry Authorisation Act, 1947, which sought to reform the practice of religious exclusion of Dalits from a denominational temple founded by the Gowda Saraswat Brahmins. In this case, by harmonious construction, the Court balanced the tension between the individual right under Article 25(2)(b) and the denominational right under Article 26(b). It held that to preserve individual dignity and constitutional guarantees, where the protection of denominational rights would substantially reduce the right conferred by Article 25(2)(b), the latter would prevail against the former. The Court emphasized that Article 25(2)(b) is not a mere enabling provision but a substantive right. It creates an exception for laws providing for social reform or throwing open Hindu religious institutions of a public character to all classes and sections of Hindus and thereby embodies the constitutional intent of abhorring exclusionary practices. Moreover, the word public institutions in Article 25(2)(b) includes all religious institutions of public character and, thus, all denominational temples.

Furthermore, J Chandrachud, in the Sabarimala case, held that the right of religious denominations under Article 26 is not mutually exclusive of all guaranteed fundamental rights. He posed the question: “should the freedom conferred upon a group—the religious denomination under Article 26(b)—have such a broad canvas as would allow the denomination to practice exclusion that would be destructive of individual freedom?” Answering the question negatively, Justice Chandrachud observed that bestowing such exclusive rights on religious denominations would not only run against the liberal constitutional values but also be derogatory to individual dignity, which couldn’t have been the intention of the Constitution. It is in line with what Dr. Ambedkar had argued during the Constituent Assemble Debate, that the Constitution had adopted the individual as its basic unit. Thus, group rights, in a way, also are a platform for individuals within the denominations to achieve self-determination.

Secondly, as clarified by Justice Misra in Indian Young Lawyers Association v State of Kerala, the word morality used in Article 26(b) means constitutional morality. It is rooted in the fundamental postulates of human liberty, equality, fraternity, and dignity. Thus, as a consequence, the freedom of religion and, likewise, the freedom to manage the affairs of a religious denomination are subject to fundamental notions of constitutional morality, effectively opening the door for the application of Article 15(2) and Article 17, given the conditions enumerated within the clauses are satisfied.

The above analysis helps answer the first two questions posed at the start of this blog. Firstly, the anti-exclusion principle could be applicable to balance individuals’ rights with that of religious groups. Secondly, an interpretation of the fundamental rights as a seamless web of rights extends the application of the anti-exclusion principle to religious denominations, even though the same is absent in the bare text of Article 26.

APPLICATION OF ANTI-EXCLUSION PRINCIPLE:

Having traced the recognition of the anti-exclusion principle in Indian Jurisprudence and its extension to religious denominations, I shall now apply the anti-exclusion principle to the present case.

In the present case, Article 17 would be inapplicable. Untouchability requires a form of social ostracising of a group. A restriction on appointment to a public office is not necessarily social exclusion amounting to Untouchability.

Further, the notification prescribes the appointment as the chief priest to one particular category of brahmins and excludes all other brahmins and non-brahmins likewise; thus, it wouldn’t amount to Untouchability. It does not selectively exclude a category but instead restricts the appointment to a subcategory that is not caste-based. The SC in the N. Adithayan v. Travancore Devaswom Board observed thatArticle 17 was not applicable since the exclusion from the sanctum sanctorum and duties of performance of poojas extended even to Brahmins. Thus, it was not caste-based exclusion.

This brings us to the other aspect of the anti-exclusion principle, i.e., Article 15(2). However, the Application of Article 15(2) raises questions about the lack of explicit mention of places of worship within the text of the provision.

A CASE FOR ARTICLE 15(2)

There are two primary arguments against extending the application of Article 15(2) to Religious institutions:

Firstly, it has been contended that a reading of the Constituent Assembly Debates and, specifically, the interpretation of the word ‘Public Resort’ signifies the intention on the part of the framers to exclude religious institutions.
Secondly, allowing the reading of public resort to include religious institutions would mean that any person, regardless of their religious inclination or belief, ought to enjoy equal access to any place of worship without a bar on religion.

J Indu Malhotra, in her dissenting opinion in Indian Young Lawyers Assn. v. State of Kerala, opined that all the proposals for inclusion of the places of worship within the ambit of draft Article 9 of the Constitution were rejected. In the course of this part, I shall deal with the amendments proposed in the Constituent Assembly debates and reach a different conclusion. A fair reading of Constituent Assembly Debates suggests that “public resort” does include places of worship, and where the State fully or partially funds it, the same would be subject to the application of Article 15(2).

Let us consider all three amendments:

Prof. K.T. Shah proposed the first amendment for the substitution of sub-clauses (a) and (b) as follows: “any place of public use or resort, maintained wholly or partly out of the revenues of the State, or in any way aided, recognised, encouraged or protected by the State, or place dedicated to the use of general public like schools, colleges, libraries, temples, hospitals, hotels and restaurants, places of public entertainment, recreation or amusement, like theatres and cinema-houses or concert-halls; public parks, gardens or museums, roads, wells, tanks or canals; bridges, posts and telegraphs, railways, tramways and bus services; and the like.”

Significantly, the modified clause uses the word ‘like,’ and to that extent, it gives an indicative list of places included within the term public resort. Prof Shah, while proposing the amendment, mentioned, “I am not merely trying to give a list of places of public use or resort, or those dedicated to public service, from which in the past discrimination has been made and individuals of particular communities or classes have been excluded for no other reason except their Caste or birth. Clearly, this is the intention of the article, and I am only seeking to expand and express it more clearly than has been done in the wording of the article as it stands.”

Thus, while discussing places of public resort and what to include in them, he was proposing a list and not referring specifically to places of worship.

Furthermore, the intention to include places governed by religious institutions is also evident when at one point, S Nagappa asked whether places of the public resort included places like burial or cremation grounds which are generally maintained by religious bodies. Dr. Ambedkar answered that if there is a burial ground maintained out of State funds, then obviously, every person would have every right to have their body buried or cremated therein.

The discussion on the meaning of public resort was further clarified when R.K. Sidhva asked Dr. Ambedkar about the interpretation of the word ‘public’. Dr. Ambedkar refused to accept the narrow definition of ‘Public’ used in the Indian Penal code. He clarified that in this clause, the word public is used in a special sense to mean ‘a place is a place of public resort provided it is maintained wholly or partly out of State funds’.

Thus, it can be said that KT Shah’s amendment was merely indicative of places that would come within places of public resort. Reliance on one facet of the amendment, i.e., there was an indication of places of worship, and the same was not incorporated in the final draft, as signifying the intention to not include places of worship under Article 15(2) is not accurate. Because in this manner, the amendment even had the word educational institutions, which is not prima facie included in the text of Article 15(2) but has been interpreted in the case of Indian Medical Association V UOI within the meaning of the word ‘shops’. The intention of the constitution makers is seen from the drafting committee and the basis of rejection. In this case, the basis of the amendment’s rejection was not the intention to not include places of worship but to leave it wide open to include places that the State partially and fully funds.

The second and third amendments were proposed to modify 15(2)(a) to include the words ‘places of worship’ after the word ‘public entertainment’ at the end of sub-clause (a) of Article 15(2). The rejection of both of these amendments by the drafters was logical. It helped clarify that places of public worship were already included in public resorts in a restricted sense with the condition of it being partially or fully funded by the State under Article 15(2)(b). Thus there was no need to incorporate the word in Article 15(2)(a). It is also true, given that the condition of being fully or partially funded is only a qualification for Article 15(2)(b) and not of Article 15(2)(a).

This interpretation helps answer the second part of the contention raised against the application of Article 15(2)(b) to include places of worship because it might hamper the autonomy of religious institutions, and they would not have any say. This, however, is not true. Article 15(2) is qualified by the phrase ‘wholly or partly out of State funds or dedicated to the use of the general public’. Thus, it acts as a condition precedent for subjecting a temple to Article 15(2)(b ), which as a consequence, balances the religious autonomy by restricting the application of Article 15(2) only to places of worship that are public places.

The above reading of the CAD clarifies the intent of the Constituent makers and helps answer the third question, i.e., the governing laws of the anti-exclusion principle cover religious institutions within their ambit.

APPLICATION OF ARTICLE 15 TO PRESENT PETITION

In the present case, the notification prescribes the appointment of Malayala brahmin as the Melshanti of the Sabarimala Temple. A Malayala Brahmin is a subcategory of Brahmin belonging to the State of Kerala. Thus, the question for consideration is whether the Travancore Board’s notification restricting the appointment of Melshanti on the grounds of Caste and Place of birth violates Article 15(2), i.e., whether simultaneous discrimination based on two prohibited categories is within the fold of Article 15?

Article 15(2)(b) provides that “No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public”.

Shreya Atrey suggests a complete reading of the clause, including the phrase “or any of them”, which clarifies an indication of covering multi-ground discrimination within its ambit. Similarly, Kannabiran supports the assertion that Article 15(1) could be interpreted to mean that discrimination is prohibited on a single ground or a combination of grounds, whether listed or not, and places the responsibility of examining discrimination on the Court. Furthermore, A reference to Constituent Assembly debates suggests that there has neither been an indication in the CAD to exclude multi-ground discrimination nor an indication to restrict the number of grounds in a claim or consider it a closed list.

While the above observation is regarding Article 15(1), it could be imported to Article 15(2) in the absence of intentions to the contrary in CAD. Thus, in the present case, restricting the appointment of the Melshanti to Malayala Brahmin infringes upon the personal autonomy of other eligible brahmins and non-brahmins based on their immutable status of Caste and place of birth.

This brings us to the second prong of the analysis, i.e., when can such categorisation and discrimination be justified? Article 15 allows discrimination for affirmative action. Any categorisation should satisfy the reasonableness standard. For that, there should be an intelligible differentia and a rational nexus to achieve the objective. In the present case, the criteria is that person should be a Malayala Brahmin. However, it is not clear who would form Malayala brahmin. There exist multiple categories and subcategories within the Malayala Brahmin, and a lack of prescribed criteria in the absence of a census to determine a person as a Malayala brahmin. Secondly, the reason behind affirmative action flows from article 14 to maintain equality of opportunity for equals. Malayala brahmins are the upper priests in the State of Kerala, and there is no need to provide for their upliftment.

Further, the aim, if any, is the proper performance of the rituals of the Temple. It requires that only a qualified person well-versed and adequately trained for the purpose should perform pooja at the Temple. Notably, the Travancore Devaswom Board had opened a Thanthra Vedantha School at Tiruvalla for training Santhikarans, irrespective of their caste/community. Thus, there cannot be any justification later on, to restrict appointments to one particular Subcategory of Brahmin.

WHAT IF SABARIMALA WERE ASSUMED TO BE A RELIGIOUS DENOMINATION

In the preceding section, I have examined the validity of notification in line with the current judgment of the Court in the Indian Young Lawyers Association v State of Kerala. Here, I will try to analyse the impact, if any, of declaring Sabarimala as a religious denomination on the application of Article 15(2)(b).

In Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, the expression “religious denomination” was held to require three conditions:

(1) It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, that is, a common faith;

(2) common organisation, and

(3) designation by a distinctive name.

Significantly, funding from the State is not a necessary condition for a religious denomination. However, for a place of worship to be subject to Article 15(2)(b), funding from the State acts as a condition precedent. Thus, a fair reading of the conditions prescribed for Article 15(2)(b) and Article 26 suggests that all places of worship, whether governed by a religious denomination under Article 26 or not, are subject to Article 15(2)(b) if the State wholly or partially funds them. This helps answer the final question about the limitation on application of anti-exclusion principle to balance the fundamental right to religion of individuals to that of religious denominations. In cases where a private religious denomination not funded by the state restricts appointment to priestly position to a particular group, citing their religious practice/custom, and such practice/custom does not run foul on the threshold prescribed for untouchability under Article 17, it would not be made subject to general and broader grounds of prohibition mentioned under Article 15(2).

In the present case, it is clear that the Travancore Devaswom board receives funding from the consolidated fund of Kerala according to Article 290 A and is administered through a statutory body constituted under the Travancore-Cochin Hindu Religious Institutions Act, 1950. Thus, the only condition precedent to the application of Article 15(2)(b) is satisfied even in cases where the Court was to declare Sabarimala a religious denomination.

Guest Post: Distributive Justice and the EWS Judgment

January 10, 2023January 10, 2023 Gautam BhatiaLeave a comment

[This is a guest post by Faizan Ahmad. The author thanks Anurag Bhaskar for providing some of the non-open access academic material used in this post.]

Much has been said about the Supreme Court’s decision in Janhit Abhiyan v Union of India on reservations for ‘Economically Weaker Sections’ [EWS]. So far, the framing of equality in the majority, as well as dissenting opinion, and some judges’ observations on the basic structure doctrine have been questioned.

All the judicial opinions, including the hailed dissent, are united in the embrace of an income-based exclusive criterion, in principle, as a permissible form of reservations. This post shows how the court, in upholding the EWS reservations has not engaged with some indispensable considerations under its basic structure enquiry. I also discuss two more overlooked, but equally serious and concerning ideas in the judgment: the court’s invocation of ‘efficiency’ and Article 335 as a limit to reservations, and the intention to fix a time limit on reservations.

The Basic Structure Enquiry

Similar to the framing in Nagaraj, the court begins by noting that a constitutional amendment can be challenged only on the basic structure doctrine. [Maheshwari J ¶33, Nagaraj ¶28] Accordingly, the question is whether reservations based on an individual income criterion would violate the basic structure. This is indeed an uphill task. If it were not a constitutional amendment, one could simply argue that it violates articles 15(4) and 16(4). On the other hand, a constitutional amendment would not, per se, be bound by the requirements of already existing reservation provisions i.e., Articles 15(4)/16(4). But does that mean that the purposes and essential principles behind reservations are irrelevant in its basic structure enquiry?

Before addressing this question, some aspects of the basic structure enquiry need to be highlighted.

First, examining whether an amendment violates basic structure is ultimately an exercise of abstraction and depends on what level of abstraction the court accepts. Courts seem to have adopted a deductive approach where a specific provision/measure is tethered to a more general abstract principle. For instance, RC Poudyal v. UoI involved tethering the “one-person-one-vote” principle to ‘representative democracy’. Yet, establishing this connection as a critical one was not sufficient. It had to be shown how a deviation ‘damages’ or ‘destroys’ an abstract concept of representative democracy. Since these concepts are always on a high level of abstraction, it essentially becomes akin to the Ship of Theseus puzzle, where we can never tell at what point something actually destroys or alters the identity [of the Constitution]. No wonder most basic structure challenges fail. These problems make scholars and lawyers wary of the basic structure ‘dilemma.’ For now, we are stuck with a dilemma which cannot be escaped (contrary to a suggestion here), but can only be navigated.

Second, some suggestions to overcome this hurdle (also argued by one petitioner), are along the lines of the following deduction: basic structure >> equality >> substantive equality>> reparative justice >> reservations >> based on social and class backwardness, underrepresentation etc. Simply put, reservations not based on certain essential criteria will no longer be reparative justice, which will in turn destroy/alter the identity of substantive equality, which is part of the basic structure.

Bhatia has pointed out that because of the polysemous nature of these abstract principles, it is difficult to sustain a basic structure challenge. He is unconvinced because there may be various visions of equality and “basic structure does not bind Parliament to any particular conception of equality and social justice.” It is very difficult to disagree but there is also discomfort in endorsing that the absence of a fixed meaning is a licence for the Parliament to get away by labelling any measure as enabling equality, and that any attempt to constrain this is judicial dictation of policy. I offer no roadmaps or answers, and in the next few paragraphs, I attempt to illuminate some possibilities by returning to how the court dealt with a similar dilemma in the NJAC case.

In the NJAC case, it was argued that the 99^th Amendment is only aimed at enabling accountability, transparency etc. in judicial appointments. The independence of the judiciary being a basic feature was undisputed. For the court, “the only issue [was] what is the permissible procedure or mechanism which would ensure establishment of an independent judiciary.” The petitioners argued that the independence of the judiciary is a ‘component’ of the basic structure of the Constitution and the process of appointment is an essential ‘element’ of such ‘component’. Could it then be said that this a question of what particular conception, i.e. the manner of judicial appointments, which the parliament is unbound to choose as long as it appeals to the abstract idea of ‘independent judiciary’? For the Union, yes, and this is how it seemed to defend the amendment. There too, apart from the original constitutional provisions, there was nothing explicit to show that parliament was bound by a particular conception of judicial independence. Confronted with this reality, the interpretation of the phrase ‘consultation’ became the lynchpin of the case, and the court consciously picked one interpretation over the other by relying on the Constituent Assembly Debates about how judicial appointments were originally envisioned.

Hence, while assessing whether a ‘conception’ or micro-level element is a part of the basic structure, courts will sometimes have to prefer one particular conception/means over the other, after assessing how the interpretation affects the broader principle enshrined within it.

If we are to accept that the Parliament has a free hand as long as it frames its justification of the amendments as merely an ‘alternative route’ or ‘enabling’ mechanisms towards abstract constitutional values, we are left in a state of limbo. A sample of this notion resonates throughout the majority opinions, in the over-significance accorded to the idea that ‘enabling provisions’ are excluded from the basic structure.

One response is given to us by Bhat. J:

The enabling provision in question’s basic premise, its potential to overbear the constitutional ethos, or overcome a particular value, would be in issue. The court’s inquiry, therefore, cannot stop at the threshold, when an enabling provision is enacted. Its potential for violating the basic structure of the Constitution is precisely the power it confers, on the legislature, or the executive. ….To view a newly added provision as only “enabling” can be an oversimplification in constitutional parlance. The court’s concern is not with the conferment of power per se, but with the width of it, lack of constitutional control, and the direct impact it can have on principles constituting the basic structure [¶157-9].

As long as we hold on to the idea that certain constitutional goals such as equality were to be realised through certain minimum guarantees enumerated in the text of the Constitution, we are, in effect, subscribing to a particularity: that not all pathways lead to realising that goal of equality. On the contrary, some may hinder its achievement. To be sure, basic structure challenges ought not to be simply challenges against misguided policy. The point is, and to rephrase Malvika Prasad’s statement, the ‘why’ and ‘for whom’ questions to preserve substantive equality/affirmative action must be equally central to the basic structure as the ‘how’ and the ‘what’ questions.

Having clarified this, I will now demonstrate that the context and intention of reservations are not irrelevant to the basic structure enquiry.

The Relevant Considerations

Context, intent, and purpose become important in a basic structure review. As it has been pointed out, “for determining whether a particular feature of the Constitution is a part of its basic structure, one has per force to examine in each individual case the place of the particular feature in the scheme of the Constitution, its object and purpose and the consequences of its denial.” [ Indira Gandhi v. Raj Narain, affirmed in Nagaraj ¶30] While taking note of how reservations have been placed in Article 16, the Nagaraj court noted: “We have to go by what the Constitution framers intended originally and not by general concepts or principles.”

Secondly, the court also referred to Article 335. Does this mean that the constitutional amendment was bound by Article 335? Surely not. Nor did it say that Article 335 is a part of the basic structure. Rather, the court considered Article 335 relevant for its basic structure analysis of reservations. Accordingly, reservations as a facet of equality have to be understood “in the context of the placement of an article which embodies the foundational value of equality.” [ Nagaraj ¶30]

Indeed, the 103^rd Amendment would not strictly be bound by the particularities of Articles 16(4) and 15(4); but to interpret whether the amendment is within the constraints of the broader principle of equality- the purpose of reservations, its underlying principles, and target beneficiaries need to be considered. That cannot be done in isolation without considering Articles 15(4) and 16(4). This was seemingly understood by the Nagaraj court when it called backwardness and inadequacy of representation as “constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse” [ ¶122], heavily relying on Indra Sawhney . Likewise, the observations in Indra Sawhney and NM Thomas, confirm that there is a clear exclusion of economic criteria (discussed here), not specifically limited to Article 16(4), but in deciding the essence of rights under Article 16(1) as a facet of substantive equality.

The Court’s Engagement

So far, I have shown the considerations that are indispensable to the court’s basic structure enquiry. Yet, the engagement and indulgence that the court makes are superficial and inadequate, especially when it considers the basic structure the only anvil on which the amendment is to be tested.

Maheshwari. J acknowledges that reservations are a form of compensatory discrimination which leads to substantive equality. [¶48] Articles 15 and 16 are facets of equality. [¶52.2] However, in his view, reservation is not a basic feature because it is an “exception to the general rule of equality”. [¶56] None of the various arguments regarding the alteration of the identity of substantive equality are engaged with (i.e., the width and identity test propounded in Nagaraj).

We know from NM Thomas and Indra Sawhney that framing reservations as an exception to equality is incorrect. For Iyer. J “reservation is but an application of the principle of equality within a class and grouping based on a rational differentia.” [ NM Thomas at ¶162] We are provided with two more broad reasons for upholding EWS reservations in principle: that (i) the contours drawn in Indra Sawhney are irrelevant for this kind of new affirmative action based on income, and (ii) that such reservations are permissible under Articles 15 and 16, since it is based on the principle of ‘distributive justice’ under Article 46. [¶72-74 Maheshwari. J]

Once we agree that the context and purpose of reservations are relevant in deciding the validity of the EWS reservation, we can then identify three cumulative requirements. Firstly, that the EWS is a class; secondly, such a class is ‘backward’; and thirdly, that the backward class is not adequately represented.

Class v. Individual

Kartik Kalra has already suggested that the court should have undertaken a homogeneity analysis, i.e., a backward class receiving reservations must be similarly situated, homogenous and precisely delineated. However, the question is not whether the EWS has characteristics of homogeneity, but whether the EWS is a class at all. One of the petitioners contested this aspect by arguing that ‘PEWS are not a “class” but are a “section” comprising of all classes except the backward who are specifically excluded. This converts a class-based remedy to an individual one.’ This distinction is not engaged with in any of the opinions.

On the other hand, Indra Sawhney understood backwardness in class terms. As per Sawant. J:

… backwardness has to be a backwardness of the whole class and not of some individuals belonging to the class, which individuals may be economically or educationally backward, but the class to which they belong may be socially forward and adequately or even more than adequately represented in the services…It is further difficult to come across a “class” (not individuals) which is socially and educationally advanced but is economically backward or which is not adequately represented in the services of the State on account of its economic backwardness. [¶482]

This was a hurdle in the way of the court’s justification of an individual-based criterion of income. Sidestepping this, Maheshwari J. found that “the said decisions cannot be read to mean that if any class or section other than those covered by Articles 15(4) and/or 15(5) and/or 16(4) is suffering from disadvantage only due to economic conditions, the State can never take affirmative action qua that class or section.” [¶72]

Here, the court seems to be saying that these principles apply to reservations under Articles 15(5) and 16(4) only and are inapplicable to a new clause added on a new ground for affirmative action. As argued in the previous sections, these articles are essential and relevant for its basic structure enquiry.

When a reservation not covered under Article 16(4) is to be made, it must still cater only to ‘classes’. [Indra Sawhney at ¶246] The observations in Indra Sawhney draw the contours of the target group for reservations, which cannot be expanded through a different route. In other words, if Article 16(1) is a general principle and Article 16(4) an enunciation of substantive equality, then, what is prohibited under the former cannot be smuggled back in by inserting Article 16(6). It defies the very idea of affirmative action intended by the reservation provisions (Articles 15 and 16) because the common thread that runs through them is the idea of class backwardness and under-representation. The sine qua non for providing reservation is the inadequate representation of the class concerned in the State services, and it is from this underrepresented class that a backward class is to be culled out. [ Indra Sawhney, ¶362] The question then, is whether the individuals part of the EWS are part of communities that are under-represented. Within the 8-lakh income bracket proposed under the EWS, these are mostly forward castes or castes that are already represented in the state, as shown by various studies.

Defenders of the amendment relied on Nagaraj to argue that the ‘basic structure doctrine’ prevents only the destruction of the core identity of a principle such as equality, and not the enablement of the principle through a different route. On the contrary, Article 16(6) is not an enabling provision or a different route to realising equality. Rather, it modifies the rationale and targeted beneficiaries of reservations. In this sense, it alters the identity of the equality code, which is part of the basic structure ( see Malvika Prasad’s post, arguing that group-based reservations are essential to the identity of equality).

‘Compensatory Discrimination’ But for Whom?

The plurality opinion presumes that reservations are an ‘exception’ to equality, while nonetheless articulating the equality code in the substantive equality framework [see Ayan Gupta’s post]. The agreed principle is that substantive equality can be realized through ‘compensatory discrimination.’ [¶ 48] This means as a form of reparations, exclusive benefits to a target group can be granted by the exclusion of advantaged groups (that did not suffer discrimination). [¶82.1] But, for this to be a permissible discrimination of the ‘compensatory’ kind, it is obvious that the target beneficiary group must be one that has suffered historical discrimination/oppression, for which the compensation is being made. In other words, the validity of these benefits hinges on which target group one thinks deserves this compensation. But the answer to this question is already assumed – in the court’s view, EWS is a deserving category entitled to reservations simply because other backward classes have it.

The court notes:

Suffice it to observe that the amendment in question is essentially related to the requirements of those economically weaker sections who have hitherto not been given the benefit of such an affirmative action (particularly of reservation), which was accorded to the other class/classes of citizens namely, the SEBCs/OBCs/SCs/STs. Viewing this affirmative action of EWS reservation from the standpoint of backward class versus forward class is not in accord with the very permissibility of compensatory discrimination towards the goal of real and substantive justice for all. [ ¶75]

The petitioner’s objection that compensatory discrimination cannot be for the forward castes, is frowned upon. For Maheshwari. J compensatory discrimination is meant for all, and in a language tacitly implying the return to the formal equality conception, it does not matter whether you are forward or backward.

Reservations for the Poor as ‘Distributive Justice.’

As has previously been argued here, reservation is envisaged as a reparation for identity-based historical oppression which cannot be equated with poverty. Knowing that it would be impossible to justify the EWS as a historically discriminated class entitled to reparation, the last straw the court is able to clutch on to is the ‘principle of distributive justice’. [¶74.1] The court’s cited judgment [Lingappa Pochanna Appelwar v. Maharashtra 1988] that it relies on to define ‘distributive justice’, pertained to a challenge to the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 which provided for the restoration of possession of agricultural lands owned by tribals which had been transferred to non-tribals.

Justifying the enactment, the court noted:

16. . The present legislation is a typical illustration of the concept of distributive justice….Our Constitution permits and even directs the State to administer what may be termed ‘distributive justice’. …Law should be used as an instrument of distributive justice to achieve a fair division of wealth among the members of society…. All such laws may take the form of forced redistribution of wealth as a means of achieving a fair division of material resources among the members of society or there may be legislative control of unfair agreements.

In the subsequent paragraphs, [ ¶74.1.1] Maheshwari. J concludes “the wide spectrum of distributive justice mandates promotion of educational and economic interests of all the weaker sections, in minimizing the inequalities in income.”

Clearly, we can see the court has now proceeded to equate reservations as a poverty alleviation measure, a characterisation that the Indra Sawhney court categorically rejected. [Sawant. J, ¶482] To liken a land redistribution enactment with the EWS, shows the court’s limited understanding of ‘distributive justice’ and its conflation with remedial justice in the form of reservations. As we saw above, distributive justice is about the reallocation of wealth, property, and material resources. Neera Chandhoke argues that there is a difference between projects of ‘distributive justice’ that aim to reorganise ownership of economic resources equitably, and ‘remedial justice’ that recognises historical injustice and ensures benefits to a doubly disadvantaged community. Reservations can provide reparations but cannot remedy deprivation and inequality, because remedial justice cannot replace redistributive justice.

This characterisation is implicit in the distinct purposes of Article 46 and reservations under Article 16(4), which was acknowledged in Indra Sawhney:

… individuals belonging to the weaker sections may not form a class and they may be weaker as individuals only. Secondly, their weakness may not be the result of past social and educational backwardness or discrimination. Thirdly, even if they belong to an identifiable class but that class is represented in the services of the State adequately, as individuals forming a weaker section, they may be entitled to the benefits of the measures taken under Article 46, but not to the reservations under Article 16(4). Thus, not only is the concept of “weaker sections” under Article 46 different from that of the “backward class” of citizens in Article 16(4), but the purpose of the two is also different. One is for the limited purpose of the reservation and hence suffers from limitations, while the other is for all purposes under Article 46, which purposes are other than reservation under Article 16(4). While those entitled to benefits under Article 16(4) may also be entitled to avail of the measures taken under Article 46, the converse is not true. [Sawant. J ¶481]

Secondly, any kind of affirmative action measures under Article 46 will still be subject to the consideration of backwardness:

Article 46 emphasises the overriding responsibility and compelling interest of the State to promote the educational and economic interests of the weaker sections of the people, and, in particular of the Scheduled Castes and the Scheduled Tribes…This principle must necessarily guide the construction of Articles 15 and 16, All affirmative action programmes must be inspired by that principle and addressed to that end. Whether such action should be in the nature of preferences or by recourse to reservation is a matter on which the State must, by an objective evaluation of the degree and nature of backwardness and with reference to other constitutional principles, come to a conclusion. [ Indra Sawhney ¶300]

Distributive justice may have contested meanings, but it cannot be used as a blanket justification for interfering with the purpose of reservations. These justifications were discussed and rejected in Indra Sawhney, yet the observations are unengaged within Janhit Abhiyan. Even within an understanding that accords reservation the status of distributive justice, it can only be for those communities that have been historically disadvantaged socially. In any case, ‘minimizing income equality’ is not a legitimate aim for the purposes of Articles 15 or 16.

The Ghost of Efficiency

The Supreme Court has, in the past, considered the ideas of ‘efficiency of administration’ (used in Article 335) and ‘merit’ as opposing propositions [Devadasan v. Union of India ¶32] and thus, Article 335 to be a limitation on Article 16(4). [Nagaraj (¶ 108)] The Janhit Abhiyan majority, observing that “Article 335 mandates that reservations have to be balanced with the ‘maintenance of efficiency’. [¶ 37.9, ¶92.5, Maheshwari. J] resurrects this erroneous perception. On the contrary, the Constituent Assembly Debates on the drafting of Article 335, (then Draft Article 296) reveal that it was not a limitation on the power to make reservations under Article 16(4), i.e., then Draft Article 10(3).

Hirday Nath Kunzru while discussing the scope of draft Article 10(3) noted that while Draft Article 10(3) used the term ‘backward classes’, Draft Article 296 used the phrase minorities. Minority communities could avail reservations only if they were found to be “backward”. Ambedkar then clarified that representation of SCs, and backward classes was to be specifically addressed under Article 10(3), while Article 296 made a reference for the consideration of the claims of minorities for reservations in appointments to services. In other words, that these served different purposes and Article 10(3) was independent of Article 296. [CAD, Vol. VII, Nov.1948]

Later, the Sardar Patel-led Advisory Committee claimed that after consultation with minority leaders, it was agreed that minorities would not be considered for reservations. The minority members protested that this agreement was only about waiving claims to reservations in the legislature, and not in employment. The Drafting Committee then replaced the phrase ‘minorities’ with the phrase- ‘Scheduled Castes and Scheduled Tribes” in Article 335.

Some confusion arose from Article 320(4) which removed the need to consult the UPSC with respect to “the manner in which any provision referred to in clause (4) of Article 16 may be made or as respects the manner in which effect may be given to the provisions of Article 335”. The intent behind this was self-explanatory: to disallow the UPSC to create obstacles for reservations. Kunzru explained that under Article 335, the State will consider the claims of SCs and STs, but it is Article 16(4) that empowers the State in clear and “express terms”. Thus, while Article 16(4) equipped the State to make reservations for SC/STs, Article 320 was its consequence. Likewise, when Brajeshwar Prasad moved an amendment that “the maintenance of efficiency of administration shall be the only consideration” in relation to “appointment to services and posts in connection with the affairs of the union or of a state”,- it was rejected by the Assembly. [CAD vol. X, 14, Oct 1949]

Accordingly, Anurag Bhaskar has argued that the Constituent Assembly “never made Article 16(4) subject to Article 335 or 320, rather accepted it as a stand-alone and overriding provision”. In Ambedkar’s view, representation was essential to efficiency. It was a metric of ‘good governance’ not despite the representation of backward castes, but because of their representation. Thus, ‘efficiency of administration’ as mentioned in Article 335 was not envisioned to be a limitation to reservations. This was later echoed in BK Pavitra II, which Janhit Abhiyan court avoids citing. The Supreme court in BK Pavitra (II), noted:

… efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people.

This has also now been confirmed by various studies that reservations in employment do not dilute efficiency in any way, but rather enhance it.

The Ten-Year Time Limit

The second manner in which the Janhit court reproduces the stigma of reservations and caste is by reiterating the myth of the time limit on reservations in Article 16.

Pardiwala. J claims that, “The idea of Baba Saheb Ambedkar was to bring social harmony by introducing reservation for only ten years.” [ ¶190] No reference or context is given for this statement by Ambedkar. Similarly, Trivedi. J does not shy away from claiming that “at the end of seventy-five years of our independence, we need to revisit the system of reservation in the larger interest of the society as a whole”, and the phrase “transformative constitutionalism”, is added for good measure.

Previous court decisions have also shown their inclination towards an endpoint in reservations. In K.C Vasanth Kumar, as per Desai. J “reservation must have a time span otherwise concessions tend to become vested interests”. Later, in Ashok Kumar Thakur v Union of India the court noted:

Reservation as an affirmative action is required only for a limited period to bring forward the socially and educationally backward classes by giving them a gentle supportive push. But if there is no review after a reasonable period and if reservation is continued, the country will become a caste divided society permanently… Any provision for reservation is a temporary crutch…

The time limit myth arises from the Poona Pact negotiations, where Gandhi and Ambedkar could not agree on the time period after which a referendum on separate electorates for depressed classes could be held. After much deliberation, the final clause stipulated that the reservation of seats in provincial and central legislatures “shall continue until determined by mutual agreement between both the communities concerned in the settlement”, i.e., Caste Hindus and the Scheduled Castes. This fixed time limit was not to end reservations in joint electorates, but rather an initial limit after which the position of joint electorates with reservations would be merely reconsidered.

However, after the partition, some leaders in the Constituent Assembly sought to do away with political reservations for all minorities. When Ambedkar walked out of the proceedings, the Patel-led Advisory Committee reconsidered its position. It carved out an exception for SCs, noting “the peculiar position of the Scheduled Castes would make it necessary to give them reservation for a period of ten years”. As Ambedkar was outnumbered, this later went to become Article 334, despite some members objecting. Monomohan Das pointed out that if these safeguards were to cease in ten years, it could only be “after consideration of the situation then of the Scheduled Castes, and the Scheduled Tribes”. Although, the Constituent Assembly fixed a time limit of ten years on political reservations and only in that context, Ambedkar himself prescribed the method of the constitutional amendment to extend this time limit; if the situation of SCs and STs did not improve (for Bhaskar’s full discussion see here).

On the other hand, the Parliament debates show that when the first constitutional amendment of 1951 inserted Article 15(4), there was no discussion on the time limit. Similarly, there was no discussion during the drafting of Article 16(4), either. Thus, there is nothing to suggest that reservations in education and public employment were intended to be abolished after ten years.

Conclusion

The net effect of the judgment is that it reproduces the timeless harangue against reservations by showing a false conflict between reservation and ‘efficiency’, by legitimising the myth of the ten-year time limit, and packaging a measure largely benefitting the already represented forward castes as a form of distributive justice. These need not be seen as mere “intellectually suspect, conceptual confusions.” It is the judicial enablement of an “upper caste revolt“: a class which has historically frowned at reservation for being contrarian to merit, now claiming victimhood, through an individualised income basis.

Evictions and the Right to Housing: The Uttarakhand High Court’s Haldwani Judgment

January 4, 2023January 4, 2023 Gautam Bhatia8 Comments

On 20th December 2022, the Uttarakhand High Court delivered judgment in a public interest litigation, titled Ravi Shankar Joshi vs Union of India. 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. 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, 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 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). 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, noting the importance of laying aside “private views” in the discharge of judicial functions, as well as the observations in P.D. Dinakaran, 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.

Constitutional Law and Philosophy

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Month: January 2023

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Evictions and the Right to Housing: The Uttarakhand High Court’s Haldwani Judgment