Supreme Court of India

Delay in deciding mercy petitions as a ground for commutation – did the judiciary exceed its brief?

RichaKaur_myLawThe death sentence, one of the punishments provided under Section 53 of the Indian Penal Code, 1860 is increasingly becoming redundant. By an order dated January 21, 2014, the Supreme Court commuted the death sentence of thirteen convicts on the grounds of inordinate delays in deciding on the mercy petition.

Under Article 72 and Article 161 of the Constitution of India, the President and the governors respectively, have the power to “grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence”. Durga Das Basu has stated that the object of the power of pardon by the President of India was to “correct judicial errors for no system of judicial administration can be free from imperfections.” This power however, instead of correcting judicial lacunae, has prevented victims from receiving true justice by allowing politics to affect decisions.

The President and the governors have to exercise their power to pardon on the advice of the Council of Ministers. Since the power has not been exercised expeditiously, a large number of mercy petitions are pending with the President of India. This callousness has resulted in unreasonable delays in the execution of the death sentences. Death row convicts languish in jail for more than twenty years under constant fear of death and the subsequent execution of the death sentence is cruel and barbaric.

LawSchoolInductionThe procedure commences with the filing of a mercy petition with the President under Article 72 of the Constitution. The petition is sent to the Ministry of Home Affairs in the Union Government (“the Ministry”), where the judicial division has been tasked with giving its recommendations on the petition in consultation with the concerned sate government. Thereafter, the mercy petition, along with the Ministry’s recommendations, is sent to the President’s Secretariat for a final decision. Sometimes however, even after the Ministry has made its recommendations, the President’s Secretariat does not act on the petition for an inexplicably long time.

Afzal Guru was convicted for attacking the Parliament of India in 2001. The Supreme Court confirmed his death sentence on August 4, 2005 and the date for his execution was fixed for October 20, 2006. His wife filed a mercy petition on January 4, 2006 before the President who sent it to the Ministry of Home Affairs on October 4, 2006 for its recommendations. A curative petition filed by Mr. Guru in Supreme Court was disposed of on January 12, 2007. Shivraj Patil, who was the Home Minister of India at that time, while responding to a question about Mr. Guru’s mercy petition in the Rajya Sabha said, After having seen the figures for last ten years, I would like to inform you that no mercy petition has been decided before six years, seven years….. After eight long years, the President rejected the mercy plea on February 3, 2013. Mr. Guru was executed on February 9, 2013. In this entire process, a lot of time is spent in sending the file from one department to another and vested interests and political considerations influence the final decision.

The Supreme Court’s January 21 order came in the case of Shatrughan Chauhan and Another v. Union of India and Others, 2014 (1) SCALE 437, where it framed guidelines for safeguarding the interest of death row convicts. Fifteen death row convicts had filed a writ petition seeking relief against the alleged infringement of their fundamental rights on account of the executive’s failure to dispose of mercy petitions within a reasonable time. Allowing the writ petitions and commuting the sentence of death of the petitioners to imprisonment for life, the Supreme Court observed that the right to seek mercy under Articles 72 and 161 of the Constitution is a constitutional right and not at the discretion or whims of the executive. Therefore, “when the delay caused in disposing the mercy petitions is seen to be unreasonable, unexplained and exorbitant, it is the duty of this Court to step in and consider this aspect. Thereafter, the Supreme Court, in February 2014, asked the government to include delay as a criterion in deciding the mercy petition of a death row convict. The Court said that “the clemency procedure “provides a ray of hope” to the condemned prisoners and their family members for commutation of death sentence to life imprisonment. Therefore, the executive should step up and exercise its time-honoured tradition of clemency power guaranteed in the constitution one way or the other within a reasonable time.

The Central Government is likely to file a curative petition against this decision of the Supreme Court. In a more recent decision, Navneet Kaur v. State of NCT of Delhi and Another, the Supreme Court commuted the death sentence of Devender Pal Singh Bhullar, a Khalistani terrorist accused in the 1993 blasts in Delhi, to life imprisonment both on the ground of inordinate delay of eight years in the disposal of the mercy petition and on the ground of insanity. As a result of such leniency, a number of hardcore convicted offenders including the assassins of Rajiv Gandhi and close aides of the forest brigand Veerappan have been freed from the gallows. This has resulted in injustice to the victim or his family members.

The research done by Bikram Jeet Batra, an independent lawyer and researcher, shows that until 1980, mercy petitions were decided within a minimum of fifteen days and a maximum of ten to eleven months. From 1980 to 1988, the time taken for the disposal of mercy petitions gradually increased to an average of four years. Now, we even see delays that extend up to twelve years.

Judicial review of mercy petitions

The Supreme Court has been of the opinion that even though the power of pardon exercised by the President and the Governor is above judicial review, its manner of exercise is certainly subject to judicial review. In Epuru Sudhakar and Another v. Government of Andhra Pradesh and Others, (2006) 8 SCC 161, the Court listed the grounds on which a decision under Articles 72 or 161 may be judicially reviewed. They include:

a. Whether  the order has been passed without application of mind,

b. Whether the order is mala fide,

c. Whether the order has been passed on extraneous on wholly irrelevant considerations,

d. Whether relevant materials have been kept out of consideration, and

e. Whether the order suffers from arbitrariness.

The courts therefore, do not interfere with the decision of the executive on merits but retain the limited power of judicial review to ensure that all the relevant materials are considered before the decision is made.

After Shatrughan Chauhan therefore, the question that arises is whether the judiciary exceeded its power of judicial review. The pardoning power conferred on the executive by the Constitution is a discretionary power and the judiciary seems to be curtailing it and substituting it with its own discretion. The solution would be to prescribe a time limit within which the executive ought to decide the mercy petition.

Richa Kaur is part of the faculty at

Supreme Court of India

A valid reason – On constitutionalism and the removal of governors

KhageshGautamThe Governor of a state is appointed for a five-year term but serves at the “pleasure of the President”, which under our Constitution, is effectively the pleasure of the Union Cabinet. Assume that a political party, let’s call it Party A, was in office in New Delhi, enjoying a majority in Parliament. During its five-year term, P is elected as the President of India and the Union Cabinet advises P to appoint G as the Governor of a state. Later, Party A loses the general elections and Party B is voted into office. Now, the Union Cabinet comprising members of political party B wants to remove G from office. Well, all they have to do is advice P to do so, right?

Not so fast. Even though he may not be very ‘pleased’ to issue orders removing G, who is probably a fellow member of Party A, Article 74(2) (known as the ‘Presidential Aid and Advice Clause’) makes it mandatory for him to do so when the Union Cabinet ‘advises’ so. As it happens, the same thing has been done many times before in the history of the Indian republic. In fact, Party A probably did the same thing while they were in office.

In 2010, a unanimous Constitution Bench of five judges of the Supreme Court in B. P. Singhal v. Union of India, (2010) 6 SCC 331, held that another member of Party A would not have the locus standi to approach the Supreme Court on behalf of G and seek a writ prohibiting the Union Cabinet from removing the latter from office. “The petitioner has no locus to maintain the petition in regard to prayers claiming relief for the benefit of the individual Governors”, the Court had said refusing to issue a writ of prohibition “quashing the removal of the four Governors” and a writ of mandamus allowing the Governors to complete the remainder of their five-year terms. This other member of party A could, however, maintain the petition if there was a substantial question of public importance involved – he just cannot seek a writ of prohibition on behalf of G.

The petitioner in Singhal had argued that the President cannot ‘withdraw’ his ‘pleasure’ under Article 156(3) in an arbitrary manner but can do so only in some ‘rare and exceptional circumstances’ on grounds similar to those prescribed for impeachment of the President or a Supreme Court judge and that even when the pleasure is withdrawn, a notice and a hearing would have to be given to the Governor and a speaking order will have to be passed. In response, the government, citing Article 74(2), argued that the Supreme Court cannot enquire into the advice tendered by the Union Cabinet to the President and that while of course the President cannot remove the Governor arbitrarily and there has to be a reason for removing the Governor, there is no requirement for the President to actually tell the Governor (or for that matter anyone else) what that reason actually is. Therefore, since the Supreme Court cannot inquire into that reason as well, the removal is effectively not subject to any judicial review.  The Court steered a middle course and held – “The doctrine of pleasure … is not a license to act with unfettered discretion to act arbitrarily, whimsically or capriciously. It does not dispense with the need for a cause for withdrawal of the pleasure. In other words, the “at pleasure” doctrine enables the removal of a person holding office at the pleasure of an authority, summarily, without any obligation to give any notice or hearing to the person removed, and without any obligation to assign any reasons or disclose any cause for the removal, or withdrawal of pleasure. The withdrawal of pleasure cannot be at the sweet will, whim and fancy of the authority, but can only be for a valid reason.”

Therefore, while there is no reason for the President to actually inform the Governor of the reasons for removal, there has to be a ‘valid reason’. But who will decide whether there was a valid reason? No prizes for guessing. The Supreme Court.

Shekhar Dutt, M.K. Narayanan, and Ashwani Kumar have all recently resigned as Governors of Chattisgarh, West Bengal, and Nagaland respectively and there has been media attention on Shiela Dixit's position as the Governor of Kerala. All images are from the Press Information Bureau.
Shekhar Dutt, M.K. Narayanan, and Ashwani Kumar have all recently resigned as Governors of Chattisgarh, West Bengal, and Nagaland respectively and there has been media attention on Shiela Dixit’s position as the Governor of Kerala. All images are from the Press Information Bureau.

So is the fact that Party A went out of office and Party B formed the government a valid reason? The Court rejected the contention that “Governors should be in “sync” with the policies of the Union Government or should subscribe to the ideology of the party in power at the Centre”. “As the Governor is neither the employee nor the agent of the Union Government, we also reject the contention that a Governor can be removed if the Union Government or party in power loses “confidence” in him.”

A Governor’s refusal to act on the advice of a State Cabinet that enjoys the confidence of the legislature of that State, on the other hand, is a very valid reason to remove a Governor. The Court in Singhal quoted with approval, Homi Seervai’s observation to this extent. Seervai of course, made two errors — the economist’s error of believing that people behave rationally and the constitutionalist’s error of believing that people occupying high constitutional offices behave honourably. It would clearly be a waste of political capital for the Union Cabinet to insist on the removal of a Governor notwithstanding the manner in which a Governor is discharging office, even if a Governor has acted on the advice of the State Cabinet. Further, it is precisely to address the problematic behavior of high constitutional functionaries that the Supreme Court had observed in Singhal and elsewhere, that the Governor’s is not a political office. Further, in S. R. Bommai v. Union of India, (1994) 3 SCC 1, a nine-judge bench of the Supreme Court interpreting Article 74(2) held that even though the actual advice tendered by the Union Cabinet to the President is beyond the scope of the judicial review, the materials on the basis of which the President has made the order can be examined. But the burden of proof, which the petitioner has to satisfy, to compel the Court to actually require the government to produce these materials in Court is extremely high.

So then, what constitutes a valid reason to remove a Governor? Well, that of course, still depends on the facts and circumstances of each case.

Khagesh Gautam is an Assistant Professor of Law at Jindal Global Law School and teaches constitutional law.

Human Rights

[Video] Labour law amendment proposals show government’s anti-labour direction: Colin Gonsalves

Colin Gonsalves, a senior advocate and founder of the Human Rights Law Network, said that the recent proposals to amend the Factories Act, 1948 (“Factories Act”) and the Minimum Wages Act, 1948 (“Minimum Wages Act”) indicate the “anti-labour direction in which this government is going”.

The failure of the Factories Act and the Minimum Wages Act

He used three cases to illustrate how labour statutes were not being implemented. First, the case relating to occupational safety at thermal power plants before the Supreme Court illustrated the failure of the Factories Act, 1948  (“a very old statute”) and the Workmen’s Compensation Act, 1923. The workers, he said, “were suffering in the most terrible conditions” from cancer, asbestosis, and other crippling diseases and there was no medical check up or compensation. The case relating to the Commonwealth Games before the Delhi High Court illustrated the existence of bonded and slave labour and the failure of the minimum wages law. “Wages were not paid, helmets were not given, protective equipment was not there, the helpline…or the lifeline which protects you when you fall was not there, they were living in places where there were bunks without mattresses, without fans, toilets without doors, toilets without water…”. In another case pending before the Supreme Court, the Directorate General of Factory Advice, Service, and Labour Institutes did not have a response when the Court asked what was being done about the plight of the lakhs of workers working in the construction, stone crushing, and marble industries who suffer from the debilitating disease of silicosis for which there is no remedy. “Lakhs of workers dying, dying because of that ingestion of that fine silicon dust which goes into your lungs…no action at all.”

Mr. Gonsalves said that it was elementary to any democracy that minimum wages should be paid and that when you work in a factory, you must work in a secure environment. He argued that labour reforms should address the issue of why these statutes are not being implemented, and the amendments should cover the loopholes in the law and make them foolproof. That however, was not the thrust of the proposals contained in the notifications of June 5 and June 17.

Proposed amendments to the Factories Act

He pointed out that there was a proposal to lengthen work hours and overtime, which went against the global trend. “In the era of globalisation where the hours of work shrink, you come from fourteen hours to twelve hours; to ten hours to eight hours… all across the world it will be eight hours, as a norm. You will do overtime as an exception to the rule. The amendment suggests a spread over of twelve hours. Can you imagine?” He said that it was inhuman for a person to be locked into employment for twelve hours even if he does not work for that long. Further, the limit on overtime, which is now seventy-five hours per quarter, is now proposed to be raised to one hundred hours per quarter. “So the amendment is not only to make you work longer hours in the day, but to make you work longer hours overtime – as of right of the employer! The employer can say work overtime, and you can’t refuse to work!”

Mr. Gonsalves also expressed his disappointment on the issue of women working after seven. “We thought that the law would be amended and make it progressive and say – all right women can work.” But instead, he is disheartened to see the amendment says, “that if the employer has this facility, and this facility, and this facility, and this facility…then, the government may consider issuing a notification allowing women to work, so instead of saying women can work, and the employer must do this, this, this, this, otherwise he’ll be punished…” He said that this meant that the government accepts that “women should generally not work”.

He also noted that the government has proposed a “climb down from the strict liability standard in the Bhopal case”, regarding hazardous substances in factories. The Supreme Court had placed a strict liability upon the employers, but now the amendment suggests that “the employer will try as far as practicable, that’s the term used, ‘as far as practicable’ to ensure that things are safe in this factory.”

He also laughed at the proposed amendments on child labour. “If children are found working in your factory, the parents are going to be punished! The amendment says they’ll catch the parents and punish the parents!”

Proposed Amendments to the Minimum Wages Act

The Minimum Wages Act does not specify a minimum wage for everyone. Instead, it notified wages in an industry-wise schedule. Most industries therefore, are not covered by the Act.

Mr. Gonsalves said that the government’s proposal for a national minimum wage was “a trick”. Firstly, the national minimum wage will be the lowest wage of the unskilled worker and will be specified at an appalling “starvation-level”. Secondly, a national minimum wage would lead to a move to reduce the minimum wage even in states such as Kerala where the minimum wage is higher. He said that even though the proposal does not directly state that the wages in the schedules will be reduced to the national minimum wage, the implication is exactly that. “The gains of the workers in getting minimum wages at particular levels in particular states must not be reduced, but that seems to be the tendency.” He suggested that there be a residual minimum wage instead. A residual clause will say that any worker working in an industry not specified in the schedule will have a minimum wage. “Once you do that, then everybody gets covered, those in the schedule, those not in the schedule, everyone will have a minimum wage.”

The actual shortcoming of India’s minimum wages law is that millions of workers who are not in traditional factories including domestic workers, are not included under the law. Further, the law contains no deterrent. “No person, no employer has ever gone to jail for failure to pay minimum wages in this country.”

Broaden the system of inspection

Mr. Gonsalves said that the implementation of the Factories Act and the Minimum Wages Act through the system of inspectors was ineffective. “Now the inspector system is basically this, and any worker will tell you, inspector comes to the factory, the factory owner warmly greets him, takes him to his cabin, gives him a cup of tea and biscuits and gives him an envelope, which he takes back home. Right? And that’s the end of your inspection. And if you ask the question as to why is that the Factories Act has remained unimplemented for decades, or the Minimum Wages Act unimplemented for decades, the answer is the system of corruption. Therefore these inspectors have failed.”

He suggested that as “the system of inspectors, government inspectors, has failed. And you need to replace it by a wider, civil society concept”. A trade unionist from a recognised union or even a senior teacher could be automatically designated as an inspector. “You need to enlarge the concept of monitoring and inspection and get out of the system where government officials make huge amounts of money by carrying out the so-called routine and farcical inspections in the factories.”

Agenda for reform

Mr. Gonsalves then outlined the agenda for the reform of India’s labour law. Firstly, he said that trade union elections should be held using secret ballot. “Once every five years, all the workers of the establishment come and elect their union as their recognised union for a period of five years.” The method used, like in all other sections of society, should be that of the secret ballot.

Secondly, there should be direct access to the courts for the adjudication of labour disputes. “Every section of society goes directly to court, but not the working class. The working class will be told to go and take permission and to take permission you spend five years in the Labour Commissioner’s office.”

Thirdly, there should be an amendment to reverse the decision in Uma Devi’s Case, a “horrible judgment” by a five-judge, constitution bench of the Supreme Court, which “sanctioned slave labour [and] bonded labour in the public sector”. A simple amendment in the law can state that if a worker works as a casual ad hoc worker on a perennial basis, in a government establishment public sector undertaking etcetera, that workman will be regularised. Two-line amendment.”

Fourthly, there should be an amendment to recerse the Supreme Court’s “awful, anti-labour judgment” in the Steel Authority of India Limited Case, where the Supreme Court said that where the contract labour system is abolished, the workers cannot be regularised. Mr. Gonsalves suggested that there should be a simple amendment, which states, “when the contract labour system is adjudicated upon and abolished contract workers will be recognised”.

Fifthly, child labour has to be abolished up to the age of eighteen. At the moment, child labour is only abolished up to the age of fourteen in specified hazardous industries.

Supreme Court of India

Competence and legitimacy: The Supreme Court’s opinions on the distribution of natural resources

GautamBhatia_SupremeCourtofIndiajpgWhat 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.”

LawSchoolInductionIn 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

The bench in the First Spectrum Case - Justices G.S. Singhvi and A.K. Ganguly.
The bench in the First Spectrum Case – Justices G.S. Singhvi and A.K. Ganguly.

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 bench in the Second Spectrum Case - Justices D.K. Jain, S.H. Kapadia, Ranjan Gogoi, Dipak Misra, and J.S. Khehar.
The bench in the Second Spectrum Case – Justices D.K. Jain, S.H. Kapadia, Ranjan Gogoi, Dipak Misra, and J.S. Khehar.

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

The bench in the Third Spectrum Case - Justices Vikramjit Sen and K.S. Radhakrishnan.
The bench in the Third Spectrum Case – Justices Vikramjit Sen and K.S. Radhakrishnan.

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.)

Supreme Court of India

Supreme Court invites public scrutiny of top bureaucracy in corruption cases

ShadanFarasat_SupremeCourtofIndiaFrom 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)