Shadan Farasat on Supreme Court – the myLaw.net blog

Supreme Court invites public scrutiny of top bureaucracy in corruption cases

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)

Supreme Court wrong to cite contrary personal law as basis for rejecting a fundamental right to adopt

In a recent decision, Shabnam Hashmi v. Union of India, (2014) 4 SCC 1, a three-judge bench of the Supreme Court upheld the right of a Muslim couple to adopt a child under the Juvenile Justice (Care and Protection of Children) Act, 2000 as amended in 2006 (“JJ Act”). The question posed sharply before the Court was whether a Muslim couple should be allowed to adopt children under the JJ Act even though Muslim personal law as applicable in India only provides for the Kafala system, under which a child can be put under the care of a Kafil, who provides for the well-being and care of the child while the child remains the descendant of the biological parent and not the adoptive parents. The implication of adoption under the JJ Act is that the adoptive parent is treated just like the biological parent of the child and biological parent ceases to be the parent of the adopted child.

The petitioner, a social activist, approached the Supreme Court directly under its writ jurisdiction by filing a PIL and seeking a dual declaration that:

1. Muslims can adopt a child with full rights as natural parents under the provisions of Section 41 of the JJ Act, and that

2. the right to adopt a child be declared a fundamental right.

Speaking for the Division Bench, Justice Ranjan Gogoi’s judgment answered the first question in the affirmative, holding that prospective parents can either employ the provisions of Section 41 to adopt a child or submit themselves to their applicable personal laws. Personal laws however, cannot dictate the operation of the provisions of an enabling statute like the JJ Act and cannot come in the way of a person who chooses to adopt a child under JJ Act. In effect, the Supreme Court gave Muslim parents the choice to adopt either according to their personal law or according to the JJ Act.

This approach, of giving the affected individuals an option to choose between the personal law and the applicable statutory law is a mechanism that can be easily used to harmonise many cases of conflicts between personal law and statutory law that go beyond the issue of adoption.

Despite having developed this methodology, surprisingly, the Court found its own approach to be an interim measure, until the professed goal of the Uniform Civil Code under Article 44 of the Constitution is achieved. The court observed:

“To us, the Act is a small step in reaching the goal enshrined by Article 44 of the Constitution. Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling statute. At the cost of repetition we would like to say that an optional legislation that does not contain an unavoidable imperative cannot be stultified by principles of personal law which, however, would always continue to govern any person who chooses to so submit himself until such time that the vision of a uniform Civil Code is achieved. The same can only happen by the collective decision of the generation(s) to come to sink conflicting faiths and beliefs that are still active as on date.”

While this approach is sensitive to the country’s many faiths, it nevertheless presupposes that the UCC is a constitutional goal that should be achieved, even if in the distant future. Applying the same thread of reasoning, it answered the second question about whether the right to adopt is a fundamental right of all citizens under Article 21 in the negative. It reasoned that:

“The Fundamental Rights embodied in Part-III of the Constitution constitute the basic human rights, which inhere in every person and such other rights which are fundamental to the dignity and well being of citizens. While it is correct that the dimensions and perspectives of the meaning and content of fundamental rights are in a process of constant evolution as is bound to happen in a vibrant democracy where the mind is always free, elevation of the right to adopt or to be adopted to the status of a Fundamental Right, in our considered view, will have to await a dissipation of the conflicting thought processes in this sphere of practices and belief prevailing in the country.”

The opt-in-or-opt-out approach should not have been treated by the Court as an interim measure towards the end of achieving the UCC. It is common knowledge that religious personal laws are strongly wedded to the religious-cultural identity of religious minorities in India, particularly the Muslims. Any attempt to change that using the UCC will be viewed by the concerned religious minority as a majoritarian excess and likely to create only conflict without in any manner enhancing the legal rights of the intended beneficiaries. The fact that the biggest vanguards of UCC in India are those on the extreme political right, whose support for UCC is intended to diminish the religious-cultural identity of the religious minorities rather than empower gender groups within them, calls for a substantial judicial and societal rejection of the UCC route to reform of personal laws.

The reform of personal laws, on the issues where it is necessary, from within the Muslim community, in particular through pressure from Muslim women and men on the Personal Law Board, is possibly the most democratic and effective means to achieve the change in Muslim personal law in India. The mechanism of opt-in-or-opt-out of statutory law and personal law adopted by the Supreme Court can co-exist with the personal law without in any manner characterising it only as an interim measure.

For the same reason, the rejection of declaration of the right to adopt as a fundamental right because requisite consensus is not there, is in my view, not the ideal basis of rejecting this as a fundamental right. When the statue provides for a right, which can be accessed by one and all, there is no need to declare that right also as a fundamental right, unless there is a threat to that right from the legislature itself (which is not present in this case).

In fact, by allowing Muslim couples to adopt under statutory law despite the existence of a conflicting personal law, but using that same conflicting personal law as a basis for not declaring the right to adopt as a fundamental right shows the inherent contradiction in the judgment in answering the two questions posed before it.

Thus, if the Court did indeed have to decline from declaring the right to adopt as a fundamental right, the lack of necessity for such declaration, rather than existence of contrary personal law would have been a much better basis.

(Shadan Farasat is an Advocate-on-Record at the Supreme Court of India.)