What is the #Sabarimala temple entry controversy all about? What are the legal and constitutional complications? Which fundamental rights are in conflict here? And how do we decide whose rights should prevail? We explored all these questions to give you a clearer picture. Watch below and don’t forget to let us know what you think.
Tag: Article 14
In a landmark judgment last week, the Supreme Court held that the central government’s allocation of coal blocks to public and private companies during the seventeen years between 1993 and 2010 was illegal and ultra vires the Constitution. The coal block allocation scam, popularly known as “Coalgate”, came to the forefront of the political and legal landscape when a 2012 report by the Comptroller and Auditor General (“CAG”) accused the government of causing huge losses (Rs. 1.86 lakh crore) to the public exchequer in its coal allocations. The same year, M.L. Sharma and Common Cause separately filed petitions before the Supreme Court, challenging the allocation. The petitions were clubbed together and heard jointly by the Court, which delivered its judgment last Tuesday. The political and economic ramifications of Manohar Lal Sharma v. The Principal Secretary (“Coalgate”) are already being felt. The judgment is also of great interest because of its significant contribution to one of the most important constitutional issues in contemporary India: the judicial review of the government’s distribution of natural resources.
The Spectrum Cases – the Supreme Court’s scrutiny of process and policy
In a previous post here, I had discussed the Supreme Court’s opinions in the “2G Spectrum Cases”. In the First Spectrum Case, the Court invoked the principle of equality under Article 14, the common law doctrine of “public trust” (that is, the government acts as a trustee of the people in its ownership and distribution of natural resources), and the requirement of managing natural resources in order to serve the common good (drawn from the Directive Principles of State Policy) to hold that a public auction was the only acceptable way of distributing natural resources to private parties for exploitation. In other words, the Court not only scrutinised – and invalidated – the process by which distribution took place, but also the policy. The Court’s judgment (I argued) conflated two separate issues: the government’s obligations under the Directive Principles and the public trust doctrine, and the Court’s power (or lack thereof) to enforce those obligations. In deciding not only upon the process, but also the policy of allocation, the Court overstepped its authority in entering a field that was both beyond its competence and its legitimacy.
After the First Spectrum Case, the Court embarked upon a process of self-correction. In the Second Spectrum Case (a Presidential reference), the Court limited the holding of the First Spectrum Case only to spectrum allocation, and held that it did not lay down a requirement for public auctions being the only legitimate methods of distribution in all cases. The Second Spectrum Case left open the question, however, of the extent to which the Supreme Court could substitute its own opinions about legitimate policy for that of the government, and various observations in that case point in different directions. In Coalgate, the Supreme Court has gone a long way towards answering that question.
Before the Court, the petitioners contended that the coal block allocation violated statutory requirements under the Mines and Minerals (Regulation and Development) Act, 1957 and the Coal Mines (Conservation and Development) Act, 1974 as well as the public trust doctrine, and Article 14. In paragraphs 12 through 73, the Court examined the statutory question (see an analysis here), and found that the allocation was illegal. Ordinarily, this would preclude any need to examine the constitutional question. However, perhaps in view of the government’s history of amending laws retrospectively to get around court decisions, the Court then proceeded to consider the constitutional questions as well.
The Supreme Court’s refusal to second-guess government policy
The process of allocation was done by a Screening Committee constituted by the Ministry of Coal. In paragraph 82 of its judgment, the Court framed the three constitutional issues that arise for its consideration: first, whether the allocation of coal blocks ought to have been done via public auction; secondly, whether the allocations based on the Screening Committee’s recommendations were unconstitutional; and thirdly, whether the allocations made via government “dispensation” (through the Ministry of Coal) were unconstitutional. The Court settled the third question on the basis of statutory violations (paragraph 153). Therefore, we shall focus here on the first two questions. Notice that while the first question pertains to the policy of allocation (public auction versus all other methods), the second question is about the process of allocation.
The Court correctly noted that the first question required it to consider the two spectrum cases discussed above. Affirming the Constitution Bench’s opinion in the Second Spectrum Case, it noted the Central Government’s contention that the increase in input price (due to a public auction) would have a “cascading effect” upon the economy (paragraph 100), the detailed objections of the state governments (such as, for example, that auctions would lead to the concentration of industries) (paragraph 100), and the supply-demand mismatch in 1993 (paragraph 102). On the basis of these considerations, the Court held:
“[We] cannot conduct a comparative study of various methods of distribution of natural resources and cannot mandate one method to be followed in all facts and circumstances, then if the grave situation of shortage of power prevailing at that time necessitated private participation and the Government felt that it would have been impractical and unrealistic to allocate coal blocks through auction and later on in 2004 or so there was serious opposition by many State Governments to bidding system, and the Government did not pursue competitive bidding/public auction route, then in our view, the administrative decision of the Government not to pursue competitive bidding cannot be said to be so arbitrary or unreasonable warranting judicial interference. It is not the domain of the Court to evaluate the advantages of competitive bidding vis-à-vis other methods of distribution / disposal of natural resources.”
This is consistent with the opinion in the Presidential Reference Case, namely that an auction is required only when the aim of an allocation is to maximise revenue (because clearly, under Article 14, an auction is the only method that bears a rational nexus with an objective of revenue maximisation), but that it is open to the government to have objective other than revenue maximisation, which are also consistent with the public trust doctrine and Article 39. In this case, the Court examined the material on record, which clearly indicated that the government’s objectives went beyond direct revenue maximisation, and refused to substitute its own opinion of which policy would be most consistent with public trust and the Directive Principles. This is exactly how it should be.
Absence of relevant guidelines: Constitutional infirmity in the procedural lapses
The Court then examined the process of allocation, via the Screening Committee. In Paragraphs 109 through 151, it examined the minutes of the 36 meetings of the Screening Committee between 1993 and 2005. The Court found that in its first seventeen meetings, the Screening Committee, at no point, examined the inter se merits of the various applicant companies (paragraph 128). Even when, in its eighteenth meeting the Steering Committee did raise the question of framing guidelines for making that determination, no guidelines were actually framed (paragraph 132). And even when guidelines were framed, the Court found that they “did not lay down any criterion for evaluating the comparative merits of the applicants.” (paragraph 134) The Court noted that in its subsequent meetings, the Screening Committee made its allocations without a discussion about the inter se merits of the applicant companies (see, for example, paragraph 135, 137, 138, and 139 for specific instances), and even changed its own guidelines repeatedly (paragraph 136). In 2005, for the first time, the Screening Committee advertised for applications, but yet again, its allocations demonstrated no comparative assessment or evaluation of the applicants (see, for example, paragraphs 143, 146.1, and 148 for specific instances).
On the basis of these findings, in paragraph 150, the Supreme Court listed twenty-two procedural flaws with the allocation process, most of which had to do with the absence of any considerations about the inter-se merit between the applicant companies, the lack of any objective criteria for making that determination, and the constant changes in the norms and guidelines. Thus, in paragraph 154, the Court held:
“To sum up, the entire allocation of coal block as per recommendations made by the Screening Committee from 14.07.1993 in 36 meetings and the allocation through the Government dispensation route suffers from the vice of arbitrariness and legal flaws. The Screening Committee has never been consistent, it has not been transparent, there is no proper application of mind, it has acted on no material in many cases, relevant factors have seldom been its guiding factors, there was no transparency and guidelines have seldom guided it. On many occasions, guidelines have been honoured more in their breach. There was no objective criteria, nay, no criteria for evaluation of comparative merits. The approach had been ad-hoc and casual. There was no fair and transparent procedure, all resulting in unfair distribution of the national wealth. Common good and public interest have, thus, suffered heavily. Hence, the allocation of coal blocks based on the recommendations made in all the 36 meetings of the Screening Committee is illegal.”
It is crucial to note the Court’s assessment of the policy vis-à-vis the process. The Court upheld the non-use of a public auction as a method of distribution because, on a prima facie perusal of the material placed on record by the government, there were evident purposes behind the allocation that went beyond revenue maximisation. The Court did not substitute its own opinion of the legitimacy and validity of the purposes. On the other hand, while holding the process illegal, the Court did so on the basis that the government had placed no material to demonstrate how the allocations were made in a fair and non-arbitrary way. Therefore, much like its holding on the issue of auction, once again, the Court did not go into the question of whether the outcome of the government’s decision on allocation was valid or not, or into the merits of the guidelines; it restricted itself to the question of whether, in the process of allocation, the guidelines included essential considerations of merit and competence for deciding between applicant companies or not. It was the absence of relevant guidelines that constituted the basis of the Court’s decision, holding that the allocation was illegal.
Coalgate, therefore, represents an advance upon the route first marked out by the Court in the Second Spectrum Case. The Court will examine, for legality, the process of distributing natural resources. It will examine whether, during the process, the government has taken into account relevant considerations to ensure transparency and fairness. It will not, however – keeping in mind considerations of institutional competence and legitimacy – question the outcome of the process, or the policy behind the process.
The Court’s judgment is pragmatic and wise, and deserves to be lauded. One question remains open, however: what if the Screening Committee had prescribed guidelines for deciding inter-se merit between applicants, but the petitioners argued that the Committee’s allocation was contrary to its own guidelines? In other words, what degree of scrutiny will the Court apply to the government’s implementation of its own procedures, when disputed factual issues arise? Unlike an auction, where a violation of the results of the auction can be objectively determined, that enquiry is much harder to undertake when standards are at least partly subjective. Will the Court apply a hands-off test, taking the government’s determinations at face value, and insisting only upon the presence of guidelines (as it does, for instance, under Article 356) or a proportionality test, drawn from administrative law? Or, keeping in mind the principles of public trust and Article 39, will it subject them to a more rigorous scrutiny? Perhaps we need another Constitution bench to decide that question.
(Gautam Bhatia blogs at Indian Constitutional Law and Philosophy.)
What obligations does the State have when it decides to outsource the exploitation of natural resources to private parties? To what extent – if at all – can courts enforce those obligations? These questions have come to the forefront over the last few years and are bound to dominate the political and legal landscape for some time to come. Two events, in particular, have contributed to this: the 2G Spectrum Scam, and the Coal block allocation scam, political controversies that rocked the previous government, and which were ultimately litigated before the Supreme Court. While the Court has reserved its judgment in the latter case, it issued between 2012 and 2014, an assortment of opinions in the former (“the Spectrum Cases”). These opinions go some way towards clarifying the present Court’s stance on these two questions and provide some guidance towards anticipating how future cases will be decided.
Simplifying greatly, the 2G Spectrum controversy arose out of the government’s decision to allocate spectrum to telecommunications companies on a first-come-first-serve basis. The entire process was rent with irregularities, such as an arbitrary advancement of the deadline for applications, and was duly challenged before the Court (the First Spectrum Case). The challenge itself, however, went far beyond simply impugning the specifics of the individual case: it invited the Court to rule on the standards generally applicable to government’s alienation, transference, or distribution of natural resources – a question of policy, if there ever was one. The Court accepted the invitation. It held that in distributing natural resources, “the State [is] bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest.”
In the operative part of the Court’s opinion, these three principles – equality, public trust, and public interest (or common good) as obligations governing the State’s conduct – are repeatedly run together with little attention paid to the second important question: what is the Court’s institutional role in holding the State to these obligations? Equality, of course, is a constitutionally enforceable duty enforceable in the courts under Article 14. Additionally, the Court derived the doctrine of public trust (that is, in distributing natural resources, the State acts as a trustee for the people), and public interest or common good (whose difference from public trust is never satisfactorily explained) from Article 39(b), which is a non-enforceable Directive Principle of State Policy. Armed with this, the Court then held that “when it comes to alienation of scarce natural resources like spectrum etc., it is the burden of the State to ensure that a non-discriminatory method is adopted for distribution and alienation, which would necessarily result in protection of national/public interest… a duly publicized auction conducted fairly and impartially is perhaps the best method for discharging this burden and the methods like first-come-first-served when used for alienation of natural resources/public property are likely to be misused by unscrupulous people who are only interested in garnering maximum financial benefit and have no respect for the constitutional ethos and values. In other words, while transferring or alienating the natural resources, the State is duty bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process.”
Non-discrimination under Article 14 and the public interest
This paragraph is worthy of close scrutiny. Essentially, the Court transforms what is meant to be an Article 14 enquiry (requiring the State to adopt a non-discriminatory method) into a public interest enquiry, by holding that non-discriminatory methods of distribution necessarily protect the public interest. It then substitutes its own vision of the public interest for that of the State’s, and holds that the only method consonant with that public interest is an auction (indeed, the Court expressly overrode the Telecome Regulatory Authority’s (TRAI) opinion in favour of a first-come-first-serve allotment by holding that TRAI could not “make recommendations which would deny people from participating in the distribution of national wealth and benefit a handful of persons.”)
Courts lack the institutional legitimacy and the competence to hold the government to some standards
The Court’s opinion is unfortunate, because it conflates the two very distinct questions that were outlined at the beginning of the essay. In finding that the government is bound by standards of equality, public trust and the common good, it automatically takes upon itself the task of determining the content of those standards, as well as their enforcement. This, however, is anything but obvious: there are many things that the State ought to do, which must be enforced at the ballot box, via social movements or elsewhere – but not in the courts. This is because one of two reasons might exist to prevent courts from ruling on the matter: reasons of institutional competence, and reasons of institutional legitimacy. Structurally, courts are not equipped and do not have the resources – that is, they lack the competence – to decide certain issues (such as, for instance, the allocation of resources in the national budget). Separately, as unelected bodies, courts have limited authority to interpret laws and protect constitutionally guaranteed rights – they cannot, for instance, frame policy, because that is something that the peoples’ elected representatives are exclusively authorised to do. For all its Article 14 gloss, the Court’s opinion arguably transgresses both these principles, and its failure to engage with them is doubly troubling.
The Government’s reaction was a Presidential Reference attempting to re-litigate the issue under the guise of seeking a clarification on the scope of the judgment. A Constitution Bench of the Supreme Court retreated from the expansive position taken in the first of the Spectrum Cases. In the Second Spectrum Case, it focused on the use of the word “perhaps” in the previous opinion (“an auction is… perhaps the best method…), to hold that the First Spectrum Case was limited to its facts, and did not lay down any general principles. Unfortunately, the Second Spectrum Case, like its predecessor, failed to engage with issues of institutional competence and legitimacy. Once again, it took refuge in the boundlessly manipulable category of Article 14 “arbitrariness” to hold that “when… a policy [of distribution of natural resources] is not backed by a social or welfare purpose, and precious and scarce natural resources are alienated to private entrepreneurs for commercial pursuits… adoption of means other than those that are competitive and maximise revenue may be arbitrary and face the wrath of Article 14.”
There are two ways of reading the above paragraph. One is that the Court, while narrowing the actual reach of the First Spectrum Case, has kept alive its overall import: public interest and the common good will determine what is or is not arbitrary under Article 14, and that determination ultimately vests with the Courts, to be exercised on a case to case basis. There is, however, another interpretation, which comes through in a subsequent paragraph: if the objective of a particular distribution is not directly social welfare or common good, but indirectly aims at that goal through maximising State revenue, then non-competitive methods will attract Article 14. For example, in the case of spectrum, if the government’s objective in allocating it to private parties is to maximise revenue (which it then – presumably – uses to further the common good), then a non-auction-based method violates Article 14. Notice that this is very close to the traditional Article 14 two-pronged test of intelligible differentia and rational nexus: clearly, differentiating spectrum applicants into those who applied before and after the cut-off date (first-come-first-served) bears no rational nexus with the purpose of revenue maximisation. Indeed, the Court seemed to be heading towards this conclusion (although it didn’t specifically make it), when it held in a subsequent paragraph: “Where revenue maximization is the object of a policy, being considered qua that resource at that point of time to be the best way to subserve the common good, auction would be one of the preferable methods, though not the only method. Where revenue maximization is not the object of a policy of distribution, the question of auction would not arise. Revenue considerations may assume secondary position to developmental considerations.”
The future development of the Court’s jurisprudence depends on which reading of the Second Spectrum Case – narrow or broad – is adopted by future Courts. In this essay, I’ve tried to suggest that it is the narrow reading – one that limits itself to a rigorous intelligible-differentia-rational-nexus Article 14 analysis – is truer to the institutional role of the Court.
Going beyond Article 14
In addition to the core arguments outlined above, the concepts of public trust and public good have played an additional role as background principle guiding the interpretation of legal provisions. In the Third Spectrum Case, a controversy arose over whether the Comptroller and Auditor General (“CAG”) was authorised to demand an audit of private telecom companies under its Article 149 powers. The key question was whether, in Article 149, the term “… any other authority or body”, that came after “Union” and “States” included purely private entities (which were therefore subject to a CAG audit). On a textual reading, it would seem that – on the principle of noscitur a sociis – the term was limited to bodies of a public or quasi-public character. The Court held, however, that “when the executive deals with the natural resources, like spectrum, which belongs to the people of this country, Parliament should know how the nation’s wealth has been dealt with by the executive and even by the UAS Licence holders. When nation’s wealth, like spectrum, is being dealt with by even the private parties, like service providers, they are accountable to the people and to the Parliament.” On a similar note, in Reliance Natural Resources Ltd. v. Reliance Industries Ltd., which involved an extremely complex dispute over the fixing of gas prices, the Court invoked the international law principle that a nations’ people have ultimate sovereignty over natural resources and the public trust doctrine, along with Articles 39(b) and (c) of the Constitution, to interpret Article 297 of the Constitution as prohibiting the State from entering “into a contract that permits extraction of resources in a manner that would abrogate its permanent sovereignty over such resources”, and that the State could not, inter alia, “transfer title of those resources after their extraction unless the [State] receives just and proper compensation.” These two cases demonstrate that Article 14 is not the only recourse available to the Court: it can use the public trust doctrine, and other similar concepts, as background principles to interpret constitutional and other provisions to conform to their requirements. How far it will go down that path before interpretation becomes invention, again, remains to be seen.
(Gautam Bhatia blogs at Indian Constitutional Law and Philosophy.)
From the 1950s to the 1970s, constitutional issues were regularly decided by Constitution benches of the Supreme Court comprising of at least five judges. Today, such decisions have become rare. It is not uncommon to see the correctness of a decision from a bench of two or three judges on a constitutional issue questioned within a year or two by another bench of two or three judges, which then refers the question to a larger bench. A decision of a Constitution bench on the other hand, has the advantage of expressing a position of law that will prevail for much longer than a similar decision from a bench of two or three judges.
It was therefore refreshing to see a Constitution bench of the Supreme Court give a unanimous decision on May 6, 2014 in Subramanian Swamy v. Director, CBI, W.P. (Civil) No. 38 of 1997 and W.P. (Civil) No. 21 of 2004. The Court found that Section 6-A of the Delhi Special Police Establishment Act, 1946 (“DSPE Act, 1946”) was unconstitutional because it violated Article 14 of the Constitution of India.
Section 6-A was added to the DSPE Act, 1946 by Section 26 (c) of the Central Vigilance Commission Act, 2003 and provided that no investigation or enquiry could be conducted under the DSPE Act without the prior approval of the Central Government, in respect of allegations under the Prevention of Corruption Act, 1988 against employees of the Central Government above the level of Joint Secretary and officers appointed by the Central Government in corporations owned by it. Section 6A was challenged on the ground that it created a separate class of offenders and sought to protect them from investigation for corruption offences. The position that such a classification was not permitted was articulated by the amicus curiae Senior Advocate Anil Divan, Advocate Prashant Bhushan (an advocate in the 2004 petition), and Gopal Sankarnaraynan, an advocate for an intervenor. Interestingly, Subramanian Swamy, whose name the reported decision will bear, did not argue the matter in court, even through an advocate.
The response of the government, which was articulated by two of its law officers, was that higher bureaucrats in government and government owned corporations are responsible for important policy decisions and that such a protection was necessary to allow them to take decisions fearlessly without worrying about harassment through false criminal cases.
Speaking for the Court, Chief Justice of India R. M. Lodha held that the difference that was sought to be carved out between higher officials and lower officials in respect of prosecution for corruption cases was itself discriminatory and therefore, the classification envisaged in Section 6-A was devoid of intelligible differentia as the object of the intelligible differentia cannot be itself discriminatory. The Court found Section 6-A in violation of Article 14 on this ground alone and did not embark upon the second query of whether the intelligible differentia furthers the legislative objective of the enactment, because the legislative objective itself was discriminatory. The relevant finding of the Court (in paragraphs 67 and 69) is extracted below.
This finding can prove crucial for challenging the constitutionality of a range of provisions in legislations, where the political class has rather opportunistically protected itself from public scrutiny. Many of these provisions relate to election law, where through various amendments, a large number of exceptions have been provided to the political class from scrutiny, including scrutiny of funding and political expenses. The limit on expenses under Section 77 of the Representation of People Act, 1951 for example applies only to expenses made or authorised by candidates and not expenses made by the political party, leaving it open for political parties to flood elections with unaccounted money. Similarly, Section 13A read with Section 29C of the Income Tax Act, 1961 mandate disclosure of contributions made to political parties only when they are above Rs. 20,000. Political parties have misused this provision to hide their actual sources of income by showing most of their income as contributions below Rs. 20,000 from the sale of coupons to party workers.
Both these provisions are likely to fail the mandate that the object of the legislation or the amendment itself has to be non-discriminatory. This test, which has actually existed ever since the concept of “intelligible differentia” was envisaged, has been reinstated with this Constitution bench decision and now provides an important basis for challenging the constitutionality of those laws where the unconstitutional objectives of the provisions are writ large in the provision itself. All it will now take is for a willing court to describe the provisions of law for what they are – expressions of a discriminatory objective to give the powerful political class an advantage in the society.
(Shadan Farasat is an Advocate-on-Record at the Supreme Court of India)
This week, in Centre for Public Interest Litigation v. Union of India, a Constitution Bench of the Supreme Court struck down Section 6A of the Delhi Special Police Establishment Act, 1946 (“DSPE Act”). The Section, which had been inserted into the enactment through a 2003 amendment (with a tortuous history of its own), prohibited inquiries or investigations of offences alleged to have been committed under the Prevention of Corruption Act, 1988 without the prior approval of the Central Government, if such allegations were made – inter alia – against certain senior government officials (Joint Secretary and above), and officials appointed in government corporations. Section 6A thus created two classes of officials, one of which could be investigated for corruption without prior sanction and the other, which could not. This classification was challenged under Article 14 of the Constitution. The Supreme Court upheld the challenge.
In order to survive an Article 14 challenge, the government must demonstrate three things. There must be an intelligible differentia between the two groups that have been treated differently. This differential treatment must bear a rational nexus with a governmental purpose. And the purpose itself must be legitimate. This is accepted doctrine, established in cases such as Budhan Choudhry v. State of Bihar, and Rama Krishna Dalmia v. Justice S.R. Tendolkar (both cases that the Court cites).
Unfortunately, the Court’s opinion omits these distinct enquiries. This renders the basis of its judgment uncertain, and leaves the law in a state of some confusion.
The government’s argument was straightforward. High-level government officials must repeatedly take important decisions. They must take them swiftly and without the benefit of hindsight. Repeated and frivolous allegations of corruption will invariably exercise a chilling effect upon their behaviour. Often, they will prefer inaction over taking a controversial decision that could subsequently land them in court, answering corruption charges. Section 6A is important just to avoid this policy paralysis. Thus, governmental efficiency is the legitimate purpose with which this classification bears a rational nexus.
A response to this could do one of four things: challenge the intelligibility of the classification, its nexus with the stated purpose, whether the stated purpose is the actual purpose, and if so, whether it is a legitimate purpose.
Surprisingly, however, the Court begins its analysis by ignoring the government’s stated purpose altogether. In Paragraph 58, it notes:
“It seems to us that classification which is made in Section 6-A on the basis of status in the Government service is not permissible under Article 14 as it defeats the purpose of finding prima facie truth into the allegations of graft, which amount to an offence under the PC Act, 1988.”
Admittedly, the purpose of the Prevention of Corruption Act is to expose corruption. Yet the stated purpose of S. 6A of the DSPE Act, which is under consideration, is different: to achieve efficiency by insulating “decision-making officials” from frivolous allegations. The Court spends a significant part of its opinion demolishing a straw-man. It argues – with perfect truth – that making a distinction between higher and lower officials bears no rational nexus with exposing corruption, because “irrespective of their status or position, corrupt public servants are corrupters of public power. The corrupt public servants, whether high or low, are birds of the same feather and must be confronted with the process of investigation and inquiry equally.” The Court makes a number of observations about the need for an unhampered, unbiased, free, and fearless enquiry into corruption, and the role and purpose of the CBI more generally. But in so doing, the Court substitutes the government’s stated purpose with a purpose it imports from a different statute, without providing reasons for the same. Having done so, it enters a finding of irrationality in the scheme of classification.
It is difficult not feel that its suspicion of a corrupt and self-serving political class has played a role in the Court’s thinking. Immediately after its most conclusive statement of no-rational-nexus, the Court observes:
“There will be no confidentiality and insulation of the investigating agency from political and bureaucratic control and influence because the approval is to be taken from the Central Government which would involve leaks and disclosures at every stage.”
That is no doubt an undesirable state of affairs, but one that, in a Constitutional democracy based on the separation of powers, is meant to be punished by the voters at the ballot box. A bad situation of governance is not an Article 14 violation.
The Court then shifts tack. In Paragraph 67, it holds:
“The object of Section 6-A, that senior public servants of the level of Joint Secretary and above who take policy decision must not be put to any harassment, side-tracks the fundamental objective of the PC Act, 1988 to deal with corruption and act against senior public servants. The CBI is not able to proceed even to collect the material to unearth prima facie substance into the merits of allegations. Thus, the object of Section 6-A itself is discriminatory.”
This is a very curious statement. The Court rules that because the objective of S. 6A (a legally enacted provision of a statute) is in conflict with the objective of another legally enacted statute (the Prevention of Corruption Act), it is an illegitimate objective. Both the DSPE and the PC Acts, however, enjoy the same legal status in our hierarchy of norms. A finding of illegitimate objective surely needs something more than an existing conflict with an equally authoritative norm.
The Court punctuates its legal findings with rhetorical flourishes about equality before law, noting that it is singing to the tune of the aphorism, “However high you may be, the law is above you.” Insofar as this applies to different procedural requirements for prosecuting the same offence, this is simply untrue. Sanction-for-prosecution requirements exist in a number of laws, most controversially, the Armed Forces (Special Powers) Act, 1958. The Court expressly holds that it is concerned with the validity of sanction-for-prosecution more generally, but is concerned only with this case. Yet the seeming basis for judgment – that you can’t have different legal regimes for different persons, based on their status – cuts much wider and deeper, and calls into question a number of legislations – which, evidently, the Court did not intend. Yet it is where it must explain why this statutory provision specifically violates Article 14 that the Court stumbles.
It is only towards the end of the judgment that the Court briefly engages with the government’s argument. Noting that there has been no recorded case of frivolous harassment of officials, and noting that the classification assumes that out of all investigative organisations, harassment is limited to the CBI, it dismisses the argument. This, of course, is the quintessential Article 14 enquiry into the relationship between the stated purpose and the classification. Unfortunately, it is limited to two paragraphs, and the Court does not explain what standard of scrutiny it is applying, what degree of deference is due to the government, and what evidence it considers relevant.
Ultimately, the Court’s decision is – arguably – correct. The reasoning however, only extends the ad hoc jurisprudence that has come to characterise one of the most important fundamental rights of our Constitution. That is a pity.
(Gautam Bhatia blogs at Indian Constitutional Law and Philosophy.)