Tag: constitutional law

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Human Rights

A judgment very much in error — Part 2 (Dignity, privacy, and reasonableness)

Article21_ProtectionOfLifeAndPersonalLiberty_ConstitutionofIndia.jpgThe Delhi High Court had concluded that interpreting Section 377 to include consensual acts between adults violated Article 21. The Court had reasoned that not doing so would result in:

– Violation of the right to dignity, which is part of the right to life, as interpreted by the Supreme Court. The High Court provided a Kantian colour to the meaning of ‘dignity’, stating that “at root of the dignity is the autonomy of the private will and a person’s freedom of choice and of action”, and that “Section 377 IPC denies a person’s dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution.”

NoticeAndStayAdityaVerma_SupremeCourtcolumn– Violation of the right to privacy, which is part of the right to life, as interpreted by the Supreme Court, and internationally. The right to privacy thus has been held to protect a “private space in which man may become and remain himself”, and “privacy recognises that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which one gives expression to one’s sexuality is at the core of this area of private intimacy.”

– The law being unreasonable, as no compelling state interest was proved — this is a requirement under Article 21 as interpreted by the Supreme Court for validity of a law curtailing personal liberty. The high incidence of HIV/AIDS among male homosexuals and their medical treatment to ‘cure’ them of homosexuality were raised as arguments to show a compelling state interest in support of criminalisation. These arguments were rejected in the face of contrary evidence (from the National Aids Control Organisation and the Ministry of Health) that criminalisation actually increases health risks by driving affected individuals underground where they are susceptible to severe harassment, and psychological studies indicating that homosexuality is not a ‘disease’. ‘Reasonableness’ therefore, was not proved, especially as the State admitted that Section 377 was not enforced against homosexuals in practice, which betrayed the absence of a genuine public health interest. Popular morality against homosexuality, it was also argued, provided a compelling state interest in criminalising it. This argument was rejected as popular morality is distinct from constitutional morality, and only the latter can be used to restrict fundamental rights. Mere disapproval is not a sufficient reason for criminalising an activity.

Again, there were three distinct grounds (highlighted in bold above) in relation to life and personal liberty on the basis of which the High Court interpreted Section 377 to exclude carnal intercourse between consenting adults in private. In order to set aside the judgment of the High Court, it was necessary for the Supreme Court to conclude that each of these grounds was fallacious.

Analysis of the Supreme Court judgment in relation to life and personal liberty (Paragraphs 45 to 49 and 52 to 53)

In Paragraph 45, the judgment recognises that Article 21 requires laws to be just, fair, and reasonable. Paragraphs 46, 47, and 50 acknowledge that privacy and dignity are within the ambit of Article 21.

In Paragraph 48, a case is cited in the context of reproductive rights and abortion to demonstrate that while a woman has full control over her reproductive rights under Article 21, the right to abortion is not absolute. The conditions for abortion specified in the Medical Termination of Pregnancy Act, 1971 are reasonable given the “compelling state interest in protecting the life of the prospective child”. The judgment does not discuss how this case provides a sufficient analogy to establish a compelling state interest in criminalising consensual penile–non-vaginal intercourse.

In Paragraph 49, another case is cited in the context of the medical duty of confidentiality of patients. Recognising that although a patient has a general right of privacy, the duty of confidentiality does not prevent a doctor from informing the patient’s wife-to-be that he (the patient) is HIV+. Again, there is no discussion how this analogy is relevant in to consensual penile–non-vaginal intercourse.

Needless to say, in contrast to the examples in Paragraphs 48 and 49, the existence of consent and the absence of harm would be distinguishing factors.

Out of the three challenges under Article 21, the judgment only attempts to deal with ‘reasonableness’ and ‘existence of a compelling state interest’. The challenges under the right to privacy and the right to dignity are not refuted.

In Paragraphs 52 to 53, the judgment cites other cases to the effect that judgments from foreign jurisdictions need not necessarily be adopted by Indian courts. This is correct, The reliance on foreign judgments by the High Court however, was only to develop persuasive reasons within the framework of the requirements of the Indian Constitution, and not as an appeal to formal authority. Without addressing the arguments on privacy and dignity, disapproving the reliance on foreign judgments and using it to set aside the judgment of the High Court is a case of missing the forest for the trees.

There were six distinct constitutional challenges to the existing interpretation of Section 377 – three each under Articles 14 and 15 (which I wrote about in the first part of this article) on one hand, and Article 21 on the other. To set aside the judgment of the High Court, the Supreme Court had to refute each of these six challenges. To say it fell short of doing so in respect of any of them is an understatement.

Amidst signs of a possible political solution to negate the effect of the judgment, it is clearly not a stage where something like a ‘jail bharo’ campaign would appear to be a conscientious imperative to force a change in an unjust law. It would be ideal that the Supreme Court sets right this constitutional malady on its own in review or curative proceedings.

The next part of this article will look at the debate around the presumption of constitutionality of laws and judicial overreach.

(Aditya Verma practices as an Advocate at the Supreme Court of India. He is an alumnus of NLSIU, Bangalore, and is on the roll of solicitors in England and Wales.)

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Human Rights

A judgment very much in error — Part 1 (Equality)

NoticeAndStayAdityaVerma_SupremeCourtcolumnConfusion, shock, and anger continue to simmer in light of the Supreme Court’s judgment in Suresh Kumar Koushal and Another v. NAZ Foundation and Others that “Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.”

The effect of the judgment is to sustain previous judicial interpretations of the phrase “carnal intercourse against the order of nature”. As a result, any “carnal intercourse” (which by definition involves penetration) other than penile-vaginal intercourse is ‘against the order of nature’, and constitutes an offence under Section 377, Indian Penal Code, 1860.

Section377On the face of it, such criminality attaches equally to both heterosexual and homosexual activity. The latent legal consequence is that male homosexuality is criminalised without exception due to the impossibility of penile-vaginal intercourse.

Apart from compelling philosophical and practical arguments for decriminalising male homosexuality, there has also been an outpouring of a rhetoric of outrage in the immediate aftermath of the judgment — which may not necessarily convince anyone who is not already a sympathiser!

This three-part article aims to provide a reasoned contribution to the debate from a legal perspective, concluding that the judgment is very much in error. Part I compares how the High Court and the Supreme Court addressed the issue of equality under Articles 14 and 15. Part II contrasts the judgments in the context of the right to life and personal liberty under Article 21. Part III addresses two ‘red herrings’ which have occupied some of the discussion following the judgment, although not forming the substance of the debate.

So, what happened?

On 2 July 2009, the High Court of Delhi declared “that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.”

This means that carnal intercourse between consenting adults in private would have been outside the scope of the phrase ‘against the order of nature’, and therefore, not punishable under Section 377. The Supreme Court has disagreed.Article14_15_ConstitutionofIndia

Summary of the judgment of the High Court in relation to equality: 

After taking note of previous judgments in relation to Section 377, the High Court reasoned that “It is evident that the tests for attracting the penal provisions have changed from the non-procreative to imitative to sexual perversity.” The issue was whether Section 377 should include sexual acts performed by consenting adults in private (and in particular the legality of male homosexuality). Relying on judgments from India and other jurisdictions, the Constituent Assembly Debates, scholarly works, the 172nd Report of the Law Commission recommending deletion of Section 377, and various international human rights documents, the High Court held such acts to be outside the purview of Section 377, as otherwise Section 377:

– Violates Article 14 resulting in irrational classification having no nexus with the object of the law – it was argued that the object of Section 377 was to protect women and children, prevent the spread of HIV/AIDS, and enforce societal morality against homosexuality. These arguments were rejected as consensual private acts between adults have no connection with the protection of women and children, criminalisation increases health risks instead of preventing spread of HIV/AIDS, and moral norms cannot be enforced by the state on individuals if no harm is caused to anyone else or society.

– Violates Article 14 by targeting male homosexuals specifically, although Section 377 is ostensibly worded without reference to sexual orientation. It makes criminals out of all male homosexuals as a class, as the nature of the activities proscribed bears an unavoidable correlation with that class, which is arbitrary and unjust.

– Violates Article 15 as ‘sexual orientation’ is a ground analogous to ‘sex’, within the meaning of Article 15, which prohibits discrimination solely on the basis of such grounds. The High Court adopted the standards of ‘strict scrutiny’ and ‘proportionality review’ of laws, in cases where rights of a particular class were taken away on the basis of a prohibited ground. Using these standards, Section 377, if interpreted to include male homosexuality, would violate the Constitution.

The High Court noted that, given the other conclusions it had reached, it was not necessary to deal with the issue of the violation of Article 19(1)(a) to (d). Employing the doctrine of severability, Section 377 was ‘read down’ to include only non-consensual penile-non-vaginal sex and penile-non-vaginal sex involving minors.

Therefore, there were three distinct grounds (highlighted in bold above) in relation to equality on the basis of which the High Court interpreted Section 377 to exclude carnal intercourse between consenting adults in private. In order to set aside the judgment of the High Court, it was necessary for the Supreme Court to conclude that each of these grounds was fallacious.

Analysis of the Supreme Court judgment in relation to equality (Paragraphs 38 to 44 and 50 to 51)

The judgment of the Supreme Court discusses previous cases in relation to Section 377 and states (Paragraph 38):

“However, from these cases no uniform test can be culled out to classify acts as “carnal intercourse against the order of nature”. In our opinion the acts which fall within the ambit of the section can only be determined with reference to the act itself and the circumstances in which it is executed. All the aforementioned cases refer to non consensual and markedly coercive situations and the keenness of the court in bringing justice to the victims who were either women or children cannot be discounted while analyzing the manner in which the section has been interpreted. We are apprehensive of whether the Court would rule similarly in a case of proved consensual intercourse between adults. Hence it is difficult to prepare a list of acts which would be covered by the section. Nonetheless in light of the plain meaning and legislative history of the section, we hold that Section 377 IPC would apply irrespective of age and consent.” (emphasis supplied)

It is not difficult to see why a uniform test has not evolved – the words in the provision are in the realm of metaphor, or at best, subjective opinion. The first and last sentences of the above paragraph are directly in conflict. If Section 377 has a ‘plain meaning’, a uniform test should be decipherable from the section itself. In any case, it is acknowledged that even judicial interpretation has not provided a uniform test for the applicability of the section. The absence of a uniform test implies arbitrariness. If at all a ‘core’ meaning of the section can be identified, it has to be restricted to cases of “non consensual and markedly coercive situations”, which is precisely what the High Court had done.

Paragraphs 39 to 41 and 51 of the judgment assert that the factual foundation necessary for the challenge to the constitutionality of the law was not established and that discrimination or abuse of a law cannot be presumed. According to the judgment, the facts pleaded by Naz Foundation “are wholly insufficient for recording a finding that homosexuals, gays, etc., are being subjected to discriminatory treatment either by State or its agencies or the society.”

Whether the pleadings were insufficient for such a finding to be reached is a question that permits some subjectivity, although it is relatively unusual for the Supreme Court to make a factual assessment anew in an appeal under Article 136. The reasoning in those paragraphs of the judgment is fallacious because the challenge under Article 14 did not require a factual foundation of that nature to be established. The challenge was based on the presence of an irrational classification in the law without a nexus with its object, not particular instances of discrimination by state agencies.

LGBT activists organised a Global Day of Rage against the Supreme Court judgment. Protestors gathered in cities around the world, including New York (above).
LGBT activists organised a Global Day of Rage against the Supreme Court judgment. Protestors gathered in cities around the world, including New York (above). The photo is from The All-Nite Images photostream on Flickr. CC BY-SA 2.0.

Paragraph 42 states “Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the latter (sic) category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification… Therefore, the High Court was not right in declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution”

Although Article 15 is mentioned, the challenge under Article 15 based on the prohibition of discrimination on the basis of sexual orientation is not addressed.

As far as Article 14 is concerned, in a case where the challenge is based on the constitutionality of male homosexuality being classified specifically as ‘against the order of nature’, it is no answer that the existence of such classification itself means that it is not arbitrary. According to this logic, there would never be any cases of irrational classification as long as such classification exists.

The conclusion of the argument is that classification under Section 377 is not irrational. The assumption of the argument is that classification under Section 377 is not irrational. This is, by definition, a tautology.

Paragraph 43 states that “a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution”.

According to the Constitution, fundamental rights do not admit of exceptions solely on the ground that the class of people affected is a minority. Imagine laws that would label people as criminals if they were left-handers, or atheists, and the flaw in such reasoning is apparent (although criminalising this does not sound so unreasonable, eh? What about vegetarians?). Those who support criminalisation of homosexuality under Section 377 must justify how a person’s sexuality — a private facet of that person’s life — enables them to cast a moral judgment about that person as a whole, and render that person liable to imprisonment for life.

As a distinct point, it is disconcerting that the judgment only considers the 200-odd who have been prosecuted under Section 377 as affected, and not the 25 lakh men who have sex with men in India whose sexuality is labelled criminal (2006 Government estimate quoted in the judgment).

In Paragraph 44, by citing two previous decisions, the judgment seeks to argue that the vagaries of language and the scope for interpretation of a penal provision by itself would not render the provision arbitrary. It is implied that the ‘against the order of nature’ cannot be arbitrary merely on the ground that it can be interpreted to mean different things. However, this does not answer any of the challenges to Section 377 under Articles 14 and 15. There is no legal basis to conclude that an interpretation contrary to these fundamental rights can be sustained.

(Students of jurisprudence will probably afford themselves a wry smile at the irony of the argument in Paragraph 44 of the judgment being a strand of the idea of the inevitable ‘open texture of law’, an idea developed by the jurist H.L.A. Hart, who also formed one half of the Hart-Devlin debate.)

The second part of this article will compare the arguments in relation to life and personal liberty (Article 21).

(Aditya Verma practices as an Advocate at the Supreme Court of India. He is an alumnus of NLSIU, Bangalore, and is on the roll of solicitors in England and Wales.)

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Human Rights Supreme Court of India

Koushal — An ADM Jabalpur moment for the Supreme Court

Manish_jimanishThe Supreme Court’s decision in Suresh Kumar Koushal v. Naz Foundation is a disappointing and dangerous failure to fulfil its obligation to uphold the Constitution and protect the fundamental rights of citizens. With shallow and unsatisfactory analysis, seemingly grounded in inexplicable and excessive deference to the legislature, the Court set aside the decision of the Delhi High Court. That decision had read down Section 377 of the Indian Penal Code, 1860, in its application to consenting adults, as being in violation of Articles 14, 15, and 21 of the Constitution of India.

Locus standi of the respondents

The very premise of the appeals was fragile. The respondents at the Delhi High Court (that is, the State) did not choose to appeal the decision. The point of locus standi of the various individuals who filed the appeal was raised in arguments before the Supreme Court, but the Court did not even consider this issue, despite good precedent existing for it to do so.

Baffling deference to legislative superiority

The judgment adopts an unusually — and, it is submitted, wholly incorrect — deference to legislative superiority, beginning with a warped discussion on the presumption of constitutionality. Strangely, the Supreme Court relies on the Criminal Law Amendment Act, 2013 to suggest that Parliament did not intend to amend Section 377 (Para 32).

The fact that the State had chosen not to appeal, and the submissions of the Attorney General (who argued as amicus curiae that the State did not find any error in the decision) (Para 21), seem to have been conveniently ignored. Why a Court that has stepped into the domain of the legislature and the executive, legislating and enforcing policy on several occasions, showed such reluctance to exercise what is undoubtedly its assigned Constitutional function — that of upholding the Constitution and protecting the fundamental rights of citizens — is beyond baffling.

Setback for the Court’s fundamental rights jurisprudence

The worst part of the Court’s reasoning is found in Paragraphs 42 and 43. In Paragraph 42, the Court blandly states, “Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes…” As to what constitutes the acts in each category, the court gives us no indication whatsoever. The fact that there has to be an intelligible differentia, clearly does not seem to matter to the Court. According to the Court, there exists some classification and that seals the question of any violation of Article 14. The arbitrariness doctrine is not dealt with. The Court does not even bother with Article 15(1) — notwithstanding that the Delhi High Court had made a significant Constitutional point in treating sexual orientation as an “analogous ground” to sex.

More follows in the next paragraph:  “…the High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years, less than 200 persons have been prosecuted for committing offence under Section 377.” In one fell swoop, the Court demolishes over sixty years of jurisprudence and constitutional values, suggesting that minorities are second-rate citizens, not entitled to any constitutional protection under Part III.

MinorityRights_HumanRights_377

Besides setting a dangerous precedent in terms of taking a majoritarian view in respect of Constitutional protection, the judgment has worrying implications. Another Bench of the Supreme Court has reserved judgment in a writ petition seeking the recognition of transgender rights. It is unclear what impact the decision in Koushal will have on that case. Further, Section 377 is a cognizable offence, and in light of the recent Constitution Bench judgment in Lalita Kumari that made FIR registration mandatory, re-criminalising it opens the door to frightening possibilities of misuse and intimidation (factors that, incidentally, the Court dismissed as irrelevant in Koushal).

The most inexplicable part of the judgment is the reasoning on Article 21. From Paragraphs 45 to 50, the Court devotes considerable space to this, quoting generously from several of its previous judgments. Then, abruptly, it moves on, without any conclusion whatsoever. Whether there was a paragraph that was accidentally deleted, or whether the Court deliberately chose to leave this question hanging, we will probably never know.

The Supreme Court also berates the High Court for its reliance on international and comparative jurisprudence in what it terms “anxiety to protect so-called rights of LGBT persons”. The careless and hurtful wording aside, it is extremely disappointing that the Supreme Court never bothers to substantively engage with the reasoning of the High Court, much of which drew from Indian precedent and the Constituent Assembly Debates while interpreting the Constitution.

Pratap Bhanu Mehta, writing in the Indian Express, termed the decision “morally regressive” and “constitutionally dubious”, stating that it would be “remembered in infamy as one of those decisions that, like Dred Scott, show how liberal democracies can sometimes give rein to a regime of oppression and discrimination under the imprimatur of law”. A press release by LGBT organisations suggested that it was the Supreme Court’s ADM Jabalpur moment of the twenty-first century.

At the time of writing this, efforts to file a review petition against the decision were in progress. Meanwhile, the ruling political coalition was reported to have opposed the order, and an ordinance is apparently being considered to amend Section 377. It will be a sad day indeed for the Supreme Court if it is Parliament that shows greater resolve in protecting fundamental rights and upholding the Constitution.

(Manish is a Researcher at the National Law University, Delhi.)

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When the aid and advice of the Council of Ministers is in conflict with the Presidential oath

KhageshGautamWhat do the President of India, the Comptroller and Auditor General of India, the Chief Election Commissioner of India, and judges of the Supreme Court of India have in common? They are all high constitutional functionaries at the central level of the government. They can only be removed from office by impeachment.

Only the President however, is elected. The rest of them are appointed by the President acting on the aid and advice of the Council of Ministers. The President is (indirectly) elected by a collegium consisting of the members of the Parliament and the members of the State Legislatures. Indeed, among elected representatives, the President’s is the only tenure that is constitutionally guaranteed, no matter what happens in the Parliament.

The President of India, Pranab Mukherjee (right) with the Prime Minister of India, Manmohan Singh (left).
The President of India, Pranab Mukherjee (right) with the Prime Minister of India, Manmohan Singh (left). Image is from the Press Information Bureau.

Also unlike the President, the rest have clearly defined constitutional compartments within which they can function. They are not bound by the Cabinet and are truly independent high constitutional functionaries. This has been demonstrated by the people who have held these offices in past.

So the Comptroller and Auditor General of India, the Chief Election Commissioner of India, and Supreme Court judges are not elected to office and can only be removed by the tedious process of impeachment. Why then has the elected President been denied a clear constitutional compartment in which he can act freely?

Preserve. Protect. Defend.

Among the Cabinet, the Parliament, and the President, only the President is sworn to preserve, protect, and defend the Constitution. Like a Supreme Court judge, a Member of Parliament swears to bear true faith and allegiance to the Constitution. In addition to taking an M.P.’s oath, a Cabinet minister takes an oath of secrecy. It stands to reason then that the Cabinet, which has sworn to work within the four corners of the Constitution, would never tender any advice to the President, the acceptance of which will place the President in violation of the Presidential oath. If such advice were tendered however, would the President have the constitutional authority to reject it outright and discharge the duties of the high constitutional office in contradiction to the advice tendered by the Cabinet? Further, who decides whether the advice tendered would force the President to act in violation of the Presidential oath?

A reversal of roles

B.R. Ambedkar (left) with the first President of India, Rajendra Prasad.
B.R. Ambedkar (left) with the first President of India, Rajendra Prasad.

B.R. Ambedkar in fact, said that it would be permissible on occasion for the Cabinet and Presidential roles to be reversed. The text of the originally adopted “Presidential Aid and Advice Clause” (Article 74) said, “There shall be a Council of Minsters with the Prime Minister at the head to aid and advice the President.” While this provision was being drafted, Dr. Rajendra Prasad asked Dr. Ambedkar, “Where is the provision in the Draft Constitution which binds the President to act in accordance with the advice of the Ministers?” There was in fact no provision in the Draft Constitution to this effect and Dr. Ambedkar said, “…there is a provision in the Instruments of Instructions.” The Instruments of Instructions were removed from the Draft Constitution when it was adopted. But speaking on the text of the originally enacted Article 74, Dr. Ambedkar said, “It is the Prime Minister’s business, with the support of Ministers, to rule the country and the President may be permitted now and then to aid and advice the Council of Ministers.” Perhaps Dr. Ambedkar had the foresight to predict the impossible situation the President would find himself in where accepting the Cabinet’s advice would force him to act in violation of his oath.

Governor’s power to overrule the State Cabinet

In fact Justice V. R. Krishna Iyer, in his concurrence in Shamsher Singh v. Punjab, (1974) 2 SCC 831, a seven-judge bench decision, cited the views of Dr. Ambedkar to support his conclusion that, “…the President and Governor, custodians of all executive and other powers under various Articles, shall, by virtue of these provisions, exercise their formal Constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations.” This view was later used to support the conclusions in M.P. Special Police Establishment.

In M. P. Special Police Establishment, (2004) 8 SCC 788, a unanimous five-judge bench of the Supreme Court held that in exceptional circumstances, the Governor of a State, whose office is considered structurally equivalent to that of the President of India, would have the constitutional authority to act in his personal discretion. Such a situation would arise when the State Cabinet is not in a position to tender unbiased or impartial advice to the Governor. Clearly, the Supreme Court was also not oblivious to a situation where acceptance of the State Cabinet’s advice would place the Governor in violation of the Gubernatorial oath, which incidentally also is, to preserve, protect, and defend the Constitution. When the Governor granted the sanction for prosecution of the members of the Cabinet, which was denied by the Cabinet in the face of sufficient evidence, the Supreme Court upheld the Governor’s action as constitutionally valid and rejected the argument that the Governor could not have overruled the State Cabinet. The Court however, cautioned that this should be done only in exceptional circumstances.

Note here that the Governor is the other high constitutional functionary that is not elected. The Governor is appointed by the President and serves at his pleasure. Which begs the question once again — how is it possible that a non-elected high constitutional functionary, the head of a State of the Indian Union, has been granted constitutional authority to, in rare circumstances, overrule the State Cabinet, but the office of the President, who is the head of the Indian Union itself, has been denied similar constitutional authority?

In Rao v. Gandhi, (1971) 2 SCC 63, the Supreme Court, while interpreting the originally enacted Article 74, held that the President is bound by the advice of the Union Cabinet. Later by the infamous Forty-Second Amendment, Article 74 was amended to read, “There shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President who shall, in the exercise of his functions, act in accordance with such advice.” One wonders what the point of amendment was when the Court had already interpreted Article 74 in favour of the Cabinet. Anyway, in Rao v. Gandhi, the unanimous five-judge bench was not faced with the question of what the President could do if in his opinion the advice tendered by the Cabinet is unconstitutional. Later, by the Forty-fourth Amendment, Article 74 was amended once again and a proviso was added which said, “Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.” This proviso admits the possibility of the Cabinet’s advice being rejected by the President but not if tendered again.

Unconstitutional advice

However, if the President rejects the Cabinet’s advice for the first time on the grounds of it being unconstitutional, merely tendering the same advice again would not cure the vice of unconstitutionality. For the purposes of this proviso therefore, it cannot be said that an advice has been constitutionally tendered at all. We must also note that both these amendments came after Kesavananda Bharti and can be judicially reviewed.

Chief Justice of India P. Sathasivam (left) with the President of India, Pranab Mukherjee. Image is from the Press Information Bureau.
Chief Justice of India P. Sathasivam (left) with the President of India, Pranab Mukherjee. Image is from the Press Information Bureau.

In any event, the President cannot and should not wait for the Supreme Court to give its opinion on the constitutionality of the Cabinet’s advice when in his opinion, accepting it would place him in violation of the constitutional duty to protect, preserve, and defend the Constitution. That truly would be an exceptional circumstance in which the President should be constitutionally allowed the authority to act according to his discretion. With all the legal assistance at his disposal, the President would be just as competent as a Supreme Court judge to decide whether accepting the Cabinet’s advice would force him to act in violation of the Presidential oath.

(Khagesh Gautham has an LL.M. from Columbia Law School and teaches constitutional law at the Jindal Global Law School.)

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Judicial appointments – the devil will be in the details

NoticeAndStayAdityaVerma_SupremeCourtcolumnThe Judicial Appointments Commission (“JAC”) that has been proposed for the appointment of judges to the Supreme Court and the High Courts (“judges”) including the Chief Justice of India does not guarantee better outcomes. The proposal contemplates a more transparent and broad-based process compared to the current “judicial collegium system”. However, it does not make merit the dominant criterion for appointment and so risks making the process subject to elaborate political bargaining.

Role of Parliament: After the 120th Constitution Amendment Bill (“the Amendment”) is enacted and brought in force, the President will appoint judges on the recommendation of the JAC. According to the Amendment, the Parliament can make law to provide for the composition, functions, and procedure of the JAC, as well as the manner of selection of persons for their appointment as judges. As a consequence, Parliament will also enact and bring in force the Judicial Appointments Commission Bill, 2013 (“the JAC Bill”).

Can the new scheme of judicial appointments upset the balance?
Can the new scheme of judicial appointments upset the balance?

Generally speaking, an amendment to the provisions of the Constitution relating to the appointment of judges requires a two-thirds majority in Parliament, as well as ratification by at least one-half of the legislatures of the States. An ordinary law requires only an ordinary majority in Parliament.

Therefore, after the Amendment and after the JAC Bill becomes the JAC Act, Parliament will only require an ordinary majority to repeal or amend the new law. Theoretically, if a single party were to achieve an absolute majority in Parliament, it could amend the composition of the JAC to suit its own ends, even to the extent of excluding the judiciary from the process completely.

Composition of the JAC: According to the JAC Bill, the JAC will be composed of six persons:

– The Chief Justice of India (the CJI) as Chairperson;

– Two other judges of the Supreme Court next to the CJI in seniority;

– The Union Minister in charge of Law and Justice; and

– Two eminent persons (to be appointed by the “collegium” consisting of the Prime Minister, the Chief Justice of India, and the Leader of the Opposition in the Lok Sabha).

Views of members of the Bar are not explicitly a part of the appointment process, though the two “eminent persons” on the JAC may well turn out to be legal professionals. For the appointment of judges to the High Courts, the views of the respective Governor, Chief Minister, and Chief Justice of that High Court will also be elicited.

Regulations of the JAC: Crucially, Parliament will delegate to the JAC the power to make regulations specifying its own procedure for inviting recommendations, short-listing candidates, and discharging its functions. These regulations must be laid before Parliament, which will have the power to modify or annul them.

While the Amendment and the JAC Bill reveal who will be responsible for appointing judges and that there will be a procedure specified for appointment, they do not tell us what the procedure will be. That will be specified in the regulations.

Who can be a judge?

According to the JAC Bill, the JAC will have a duty to ensure that the person recommended by it is of “ability, integrity and standing in the legal profession”. This is in addition to the constitutional requirements of prior judicial or advocacy experience that currently apply (ignoring the “distinguished jurists” provision for the moment).

In a pure merit-based system, relevant factors would only be those that have regard to a person’s suitability for judgeship. Judges’ appointments would not be means to any other ends. While it is significant that the JAC Bill provides a merit-based statutory standard for the appointment of judges, an equally relevant question arises about those who may not be appointed despite fulfilling that standard. Unless the regulations of the JAC go on to specify that “ability, integrity and standing in the legal profession” (or a more sophisticated merit-based standard consistent with it) will be the only or dominant criterion, it appears that it would be open to the JAC to consider other factors in appointing judges, provided that the statutory standard is satisfied. (Compare this with a relatively open merit-based selection process for an appointment to the Supreme Court of the United Kingdom).

The challenge faced the JAC: The history of appointment of judges in India is marked by a tussle for control between the executive and the judiciary. Many perceive the JAC to be another salvo in this exchange. This perception can be changed if the JAC will emphasise and give primacy to merit-based factors in its regulations and functioning. Whether it is the collegium system or the JAC, the standards on the basis of which judges are appointed should be more important than the persons who appoint them, bearing in mind that those who appoint must have the necessary information and tools to make that qualitative assessment.

As with the collegium, the success of the JAC, assessed from the perspective of judicial independence and impartiality, will depend on how it will frame its own regulations for inviting recommendations and short-listing candidates, and which factors it will consider while discharging its functions. Without stating standards for selection, there is no inherent reason why influence over appointments of judges by one institution would be preferable over the other.

 

Read more about the constitutional ping pong that is the history of the debate on judicial appointments in India here.

(Aditya Verma practices as an Advocate at the Supreme Court of India. He is an alumnus of NLSIU, Bangalore, and is admitted as a solicitor in England and Wales.)