Justice Sinha's legacy: Strict Scrutiny, Death Penalty, Counter-majoritarianism

Update: See link to yesterday's death penalty judgment below.

Justice Sinha, arguably one of the most interesting judges on the Supreme Court today, retires on the 9th of August 2009. He has written many important judgments over the years. In this post, I want to highlight three issues on which his contribution will define Indian constitutionalism in the years to come - strict scrutiny, death penalty and the role of the judiciary as a counter-majoritarian institution.

Strict Scrutiny: Reinterpreting Thakur
Justice Sinha has perhaps been the most enthusiastic proponent of strict scrutiny and proportionality as the appropriate standard of review in constitutional cases. His famous judgment in Anuj Garg, and its subsequent application in Naz Foundation should be familiar to most readers. In what would probably be his last judgment on the issue, Justice Sinha has sought to clear the air on strict scrutiny. Although Subhash Chandra v. Delhi Subordinate Services Selection Board, delivered this week, does not directly mention Naz Foundation's harmonious construction of Garg and Thakur, the motivation in Chandra appears to be to give Thakur an even more restricted interpretation than allowed by Naz. This judgment will fuel rather than settle the debate on strict scrutiny. Here are some excerpts [para 43]:

It is commonly believed amongst a section of Academicians that strict scrutiny test in view of the Constitution Bench decision of this Court in Ashok Kumar Thakur (supra) is not applicable in India at all.
...
The Constitution Bench in Ashok Kumar Thakur (supra), itself, held:
“252. It has been rightly contended by Mr Vahanvati and Mr Gopal Subramanium that there is a conceptual difference between the cases decided by the American Supreme Court and the cases at hand. In Saurabh Chaudri v. Union of India626 it was held that the logic of strict classification and strict scrutiny does not have much relevance in the cases of the nature at hand…” [Emphasis supplied]

Saurabh Chaudri (supra) itself, therefore, points out some category of cases where strict scrutiny test would be applicable. Ashok Kumar Thakur (supra) solely relies upon Saurabh Chaudri to clarify the applicability of strict scrutiny and does not make an independent sweeping observation in that regard.

We are of the opinion that in respect of the following categories of cases, the said test may be applied:
1. Where a statute or an action is patently unreasonable or arbitrary. [See Mithu v. Stateof Punjab [(1983) 2 SCC 277].
2. Where a statute is contrary to the constitutional scheme. [See E.V. Chinniah (supra)].
3. Where the general presumption as regards the constitutionality of the statute or action cannot be invoked.
4. Where a statute or execution action causes reverse discrimination.
5. Where a statute has been enacted restricting the rights of a citizen under Article 14 or Article 19 as for example clauses (1) to (6) of Article 19 of the Constitution of India as in those cases, it would be for the State to justify the reasonableness thereof.
6. Where a statute seeks to take away a person’s life and liberty which is protected under Article 21 of the Constitution of India or otherwise infringes the core human right.
7. Where a statute is ‘Expropriatory’ or ‘Confiscatory’ in nature.
8. Where a statute prima facie seeks to interfere with sovereignty and integrity of India.

However, by no means, the list is exhaustive or may be held to be applicable in all situations.

Perhaps the most interesting bit in this excerpt is the Court's attempt to respond to academic criticism. Also, point 3 in the list supplied by Justice Sinha suggests there exists a category of laws which do not get the presumption of constitutionality. Wouldn't colonial laws be in such a category?

Death Penalty: Towards abolition
The first steps towards doubting the constitutionality of death penalty were taken by Justice Sinha in Swamy Shraddananda. He further recognised the near-abolitionist spirit of the rarest-of-rare doctrine in Bachan Singh in landmark Santosh Bariyar case, discussed here and elsewhere.
Update: Justice Sinha's concurring opinion in Mohd. Farooq Abdul Gafoor v. State of Maharashtra delivered yesterday is his final parting shot at death penalty. He cites the Law Commission's 187th Report and Amnesty International's Report titled “Lethal Lottery: The Death Penalty in India - A study of Supreme Court judgments in death penalty cases 1950-2006” and re-emphasises the arbitrariness point.

Judiciary as a counter-majoritarian institution
Garg and Bariyar share a common theme - that the role of unelected and insulated judges in a constitutional democracy is to uphold constitutional principles, especially in the face of majoritarian outcry. Influence Lifestyle Stores drew upon this judicial role (discussed here). The idea of the counter-majoritarian role of the judiciary is well-established in academic literature: Fuller and Ely providing two good explanations of the appropriate judicial role. Indeed, in Subhash Chandra, Justice Sinha cites Ely:

The political compulsions and extraneous vote considerations in the functioning of the legislature are mentioned by a prominent political science scholar, John Hart Ely in his landmark book, Democracy and Distrust. He says that "special scrutiny, in particular its demand for an essentially perfect fit, turns out to be a way of 'flushing out' unconstitutional motivation."

Readers are invited to draw attention to his contribution to other areas of law in the comment section.

RS Debate on Judges (Assets and Liabilities) Bill 2009

During the debate on the now-deferred Judges (Assets and Liabilities)Bill, 2009, the Leader of the Opposition in the RS, Arun Jaitley made the point that it was perhaps the first time a Bill, before it was introduced in the House, was circulated to judiciary to secure its consent, and it was on its insistence that the objectionable clause 6 denying public access to Judges' assets declaration, had been introduced. He was suggesting that such a step could have compromised the legislative competence of Parliament. The Law Minister, in his reply, denied that the Bill was circulated among the Judiciary before its introduction.

Not all Bills are opposed at the introduction stage, on the ground that they are ultra vires.. Therefore, the opposition to the introduction of the Judges Bill makes one curious. The Minister denied the suggestion that the Bill was ultra vires.


He also claimed that Entries 77 and 78 (wrongly printed in the debates as 28) of the Union List provide for this. I remember during the debate on the First Amendment in the Lok Sabha, specific suggestions were made by some Members that the Bills could be vetted by the Supreme Court, before they were introduced, so as to make sure they were not ultra vires. Those Members were opposing the inclusion of the Ninth Schedule in the Constitution, to keep certain laws out of Judicial review. The Law Minister may be correct that the Bill was not circulated among the Judiciary. But did he discuss the contents of the Bill with the CJI and his brother Judges informally? It also raises the question whether it is wrong to discuss a Bill with its stake-holders before it is introduced. Obviously, there is no harm if a Draft Bill is circulated among the Judiciary to elicit its views.

The Law Minister, in defence of clause 6, has said the Bill only gives statutory support to the in-house mechanism of the Judiciary for declaration of assets. Therefore, if the in-house mechanism is not ultra vires, then the Bill cannot be opposed on that ground.

The Deputy Chairman has cited a 1947 ruling of the Speaker, Lok Sabha and 1956 ruling of the Rajya Sabha Chairman to suggest that he must allow the introduction of the Bill, if the Minister wanted, and it was for the House to reject it. Sensing the mood of the House in which the ruling party does not enjoy a clear majority, the Minister deferred the introduction of the Bill. But the question, though academic, remains: Can the Members insist on a vote to oppose the introduction of a Bill in the House? What if Moily insisted on introducing the Bill, and the Members wanted a division on the question of introduction? Was the Dy.Chairman left with no precedent to rely on?

Parliament's website has this to say on the First Reading a of Bill:

The legislative process starts with the introduction of a Bill in either House of Parliament-Lok Sabha or Rajya Sabha. A Bill can be introduced either by a Minister or by a private member. In the former case it is known as a Government Bill and in the latter case it is known as a Private Member's Bill.

It is necessary for a member-in-charge of the Bill to ask for leave to introduce the Bill. If leave is granted by the House, the Bill is introduced. This stage is known as the First Reading of the Bill. If the motion for leave to introduce a Bill is opposed, the Speaker may, in his discretion, allow brief explanatory statement to be made by the member who opposes the motion and the member-in-charge who moved the motion. Where a motion for leave to introduce a Bill is opposed on the ground that the Bill initiates legislation outside the legislative competence of the House, the Speaker may permit a full discussion thereon. Thereafter, the question is put to the vote of the House. However, the motion for leave to introduce a Finance Bill or an Appropriation Bill is forthwith put to the vote of the House.

Clearly, on August 3, the Members were questioning the legislative competence of the House before the introduction of the Bill. Therefore, was the Deputy Chairman correct to rely on the 1947 and 1956 precedents to suggest that he had to allow the Minister to introduce the Bill, if he wanted?


Relevant Links:

The Rajya Sabha debate on introduction of the Judges (Declaration of Assets and Liabilities) Bill, 2009 [pp.26-38][Synopsis: 561-562]
The CJI here admits that the Judiciary wanted such a Bill, and defends it without suggesting that he had gone through the draft Bill.

Brief notes: Impunity Report, Madras HC on individual autonomy, Dialogic Judicial Review

A few legal developments/opinions worth noting:

1. Human Rights Watch released its report on August 4th, titled 'Broken System: Dysfunction, Abuse and Impunity in the Indian Police'. The report comprehensively documents the human rights that Indian police abuses with impunity. Bibek Debroy calls for urgent police reforms in light of the report. The issue of impunity has been discussed on this blog previously (I, II and III).

2. The Madras High Court has held in Influence Lifestyle Stores v. Government of Tamil Nadu that spas offering massage by opposite-sex masseurs are not engaging in any illegal activity. Holding that 'majoritarian impulses rooted in moralistic tradition cannot impinge upon individual autonomy', the judgment has clear echoes of Naz Foundation. That both these champions of individual autonomy rely heavily on Anuj Garg is no surprise.

3. Abinav Chandrachud's opinion on dialogic judicial activism is very interesting. Jeff King mentions something similar in this article:

the metaphor of institutional or democratic dialogue between courts, the executive and Parliament. On this view, courts take part in an iterative process within which all branches of government contribute to sound decision-making. (p. 428)

Accountability Forum Blog

There is a new blog on corruption and accountability issues by the Accountability Initiative called the Accountability Forum. Yamini Aiyar, who recently contributed a guest contribution on this blog, is the director of the Initiative. I'm sure we can look forward to exciting and timely discussions on corruption issues in India on the new blog. It also has a news scan that may be helpful to some readers.

New Blog at NLS Bangalore

I am pleased to announce a new blog that is part of an initiative at the National Law School, Bangalore. The blog provides a forum for students at the law school to discuss and debate current legal issues, and is likely to infuse a great deal of vibrancy in the way in which legal education is currently carried out in India. Hopefully, it won't be long before other law schools follow suit.

Constitutionality of colonial laws

The Law Minister, in apparent agreement with the Delhi High Court's verdict in Naz Foundation, has remarked that:

We have a Constitution, many a times the Constitution runs parallel to many laws which were enacted earlier to the Constitution coming into force. This includes many provisions including some of the sections under the IPC or the Evidence Act. Many of these things (laws), if put to acid test of the Constitution, they may not stand up to the scrutiny. This is the apprehension. Either the Constitution makers did not anticipate this situation or a review of the laws or the Constitution should have taken place for properly synchronising the two.

[The above is an approximate quote - readers can hear him speak in this video.]

But surely there is a third possibility--That the founders were well aware of possible conflict between colonial laws and constitutional morality, but left it for the courts and legislatures to gradually reform the former to bring them in line with the latter. This is what I had argued in an earlier opinion in the context of impunity provisions which are also colonial in origin:

Independence, when it came in 1947, marked the end of a colonial government, but it was only the beginning of the end of the colonial system of governance. This system is opaque rather than transparent, and seeks to control subjects rather than empower citizens. The accountability-seeking and empowering constitutional regime that came about in 1950 did not abolish this colonial system of governance outright. For pragmatic reasons, the constitutional design contained in Article 372 envisaged its gradual unravelling over the years.

This debate on the intention of the founders is interesting because the Supreme Court in Anuj Garg and the Delhi High Court in Naz Foundation [para 105] have suggested that colonial laws do not merit the presumption of constitutionality that is extended to post-constitutional laws.

Pakistani Supreme Court Declares Emergency Unconstitutional

In a case followed earlier on this blog, a 14 judge bench of the Pakistani Supreme Court yesterday declared the Emergency under Musharraf unconstitutional. The order can be found here. It is not long.

The order is unanimous and by Chief Justice Chaudhry, which seems appropriate, but is also somewhat awkward to foreign eyes, such as when the Chief Justice finds, referring to his own saga: "it is declared that the office of the Chief Justice of Pakistan never fell vacant on November 3, 2007 and as a consequence thereof it is further declared that the appointment of Mr. Justice Abdul Hameed Dogar as the Chief Justice of Pakistan was un-constitutional."

It will take some time to digest all the implications of the order. Overviews can be found in the Hindu here, the Dawn here, and the Jurist here. It declares the appointment of all judges made in consultation with Chief Justices Dogar unconstitutional, and according to this article that aspect of the judgment will effect some 110 judges of the Pakistani higher judiciary. The Islamabad High Court will also cease to exist because it was set up unconstitutionally, although the Supreme Court order makes clear that such a court could be set up later following proper procedures.

[updated and edited 2/8/09]