The following statement has been prepared by the Campaign for Judicial Accountability and Reform. Readers are welcome to offer their comments.
Pursuant to widespread public demand and outcry against the refusal of the Supreme Court and the Chief Justice of India to provide information on asset disclosure statements by judges (pursuant to a Full Court Resolution and Code of Conduct), the government has announced that it is preparing a Bill making it mandatory for judges to declare their assets.
However, the details of the proposed Bill as accessed and reported by NDTV, provide for disclosure of assets by judges only to their respective Chief Justices and not to the public. Even worse, the Bill seeks to make the disclosure of assets of judges to any citizen a penal offence punishable with imprisonment upto 3 years. The only positive feature in the proposed Bill is that non declaration of assets by judges has been made a violation of the Code of Conduct which is proposed to be made actionable under the Judges (Inquiry) Bill, 2006 through an in-house judges’ committee.
Experience with the existing Code of Conduct (which though non-statutory was unanimously adopted by the Chief Justices’ Conference in 1997) has shown that declaration of assets to the Chief Justice alone is unsatisfactory. Most Chief Justices have not looked into them critically, and it is virtually impossible for any Chief Justice to do so, given their preoccupation with judicial and administrative matters. Unless declaration of assets of judges or other public servants are made known to the people, such declarations will not serve any purpose.
It is only vigilant citizenry who can and will be able to point out unusual accretion to a judge’s assets or false declaration of assets by a judge.
Three reasons for withholding public disclosure have been advanced by judges.
1. Disgruntled litigants will misuse the disclosure to indulge in mudslinging against judges.
2. That judges cannot defend themselves unlike politicians.
3. That there are no clear rules and format for disclosure.
None of these reasons seem to be strong enough to justify the proposed secrecy. Disgruntled persons can fling mud on others in authority as well. But the Supreme Court rightly did not let that come in the way of ordering disclosure of assets of aspiring MPs and MLAs. They do not even have the protection of the Contempt of Courts Act which judges have. Making baseless allegations is civil and criminal defamation for which action can be taken by judges more easily than other persons. Moreover, the reputation of persons in public office is not sullied by baseless allegations of motivated persons. It is built upon their actions and behaviour, which is generally known.
So far as a format for disclosure is concerned, a format for disclosure has been rigorously prescribed by the Supreme Court itself for election candidates. The same format could be used by judges, with whatever amendments that may be required.
Only a public and annual declaration of assets as is done by all federal judges of the U.S. including judges of the U.S. Supreme Court, would ensure that the objective of transparency through this proposed Bill is achieved. We therefore appeal that the proposed Bill on declaration of assets by judges be finalized after effective consultation with civil society.
Endorsed by:
1. Fali S. Nariman (Senior Advocate, Supreme Court of India)
2. Shanti Bhushan (Senior Advocate, Supreme Court of India)
3. Justice Rajinder Sachar (Former Chief Justice, Delhi High Court)
4. Admiral R.H. Tahiliani (Former Chief of Naval Staff & Director, Transparency International, India)
5. Anil Divan (Senior Advocate, Supreme Court of India)
6. Aruna Roy (Founder, Mazdoor Kisan Shakti Sanghatan and RTI & NREGA Activist)
7. Prashant Bhushan (Convenor, Campaign for Judicial Accountability and Reform)
8. Nikhil Dey (Mazdoor Kisan Shakti Sanghatan and RTI & NREGA Activist)
9. Vikram Lal (Chairman, Common Cause)
10. Arvind Kejriwal (Magsaysay Awardee & RTI Activist)
11. N. Bhasker Rao (Chairman, Centre for Media Studies)
12. Harsh Mander (Director, Centre for Equity Studies)
13. Kuldip Nayar (Veteran Journalist)
14. Ravi Chopra (People's Science Institute)
15. Anil Sadgopal (Education Activist & Former Professor of Education, Delhi University)
16. Jean Dreze (Former Member, National Advisory Council)
17. Vandana Shiva (Education & Agriculture Activist)
18. Trilochan Sastry (Professor & Dean, Academic, IIM, Bangalore)
19. Shekhar Singh (National Campaign for People’s Right to Information)
20. Dunu Roy (Director, Hazard Centre)
21. Yogendra Yadav (Senior Fellow, Centre for the Study of Developing Societies)
22. Kamini Jaiswal (Advocate, Supreme Court)
23. Mira Shiva (Health Activist)
24. Gautam Navlakha (Human Rights Activist)
25. Shankar Singh (Mazdoor Kisan Shakti Sanghatan)
Thursday, July 16, 2009
Sunday, July 12, 2009
Q&A on Naz Foundation judgment
I found Vikram Raghavan's three posts analysing the Naz Foundation judgment extremely useful to understand its significance. What I attempt in this post is to answer some of his concerns, as well as that of others, not necessarily in the order of their importance.
Q.1: Was it necessary for the Bench to use 20 pages of its judgment to sum up the arguments?
A: As someone who has not followed the arguments during the hearing of the case, I found this summing up very useful to know who, among the parties to the case, said what.
Q.2: Should the Bench have gone into the legal and legislative history of S.377?
A: In my view, it is not necessary to know why it had been enacted in order to understand why it is no longer relevant. Though it would have been an interesting academic background to know why and how it was enacted, it was not necessary for the Bench to digress into this issue. It was obvious that S.377, even at the time of its enactment, did not reflect the then prevailing Indian conception of morality. Still, it could be enacted without resistance because people thought it did not concern them. [the same unconcern which characterises some sections even today; I refer to those who wonder what is this huge controversy all about. On the contrary, those who actively oppose the judgment do so for imaginary reasons]. In other words, S.377 was not relevant then when it was enacted, and hardly relevant even now.
Q.3: Is there a taxonomical confusion?
A: Although the judgment uses different terms under homosexuals synonymously, there appears to be no confusion with regard to its reasoning. The use of different terms in different paragraphs is justified according to their contexts.
Q.4: Did the Court rely on certain principles of International Law which are less authentic, because it has been adopted by very few States?
A: The Yogyakarta Principles, drawn in 2007, and the London Declaration of Principles on Equality (2008) and referred to in the judgment, have persuasive value as of now, for they have been adopted by very few States. I don't see any harm if a Court cites these to buttress its reasoning. The Court did not say we ought to follow these principles because they are binding.
Q.5: In Paragraph 35 of the Judgment, did the Court make a sweeping assertion that the Supreme Court in Kharak Singh held that the right to privacy was part of the right to life in Art.21? Was it correct to do so after noting that the majority in that judgment did not go into the question whether the police domiciliary visits violated the right to privacy?
A: If you read Kharak Singh carefully, (esp. the judg. By Ayyangar) it is clear that the Court was concerned with the question whether the U.P.Regulations authorise the police to make domiciliary visits. Therefore, it was not necessary for the Court to examine whether the police actually made those visits, because the police denied that they did. Ayyangar makes this distinction clear.
Q.6: Is Paragraph 47 confusing? What is its practical meaning?
A: By declaring that a person cannot leave behind his sense of gender or sexual orientation at home, the Court makes it clear that it sees homosexuality as a trait, rather than as a disorder and that a homosexual does not become a homosexual by choice. The HC relies on the weight of medical opinion for this. This is also buttressed by the responses of homosexuals themselves, who might say: “We are not attracted by the opposite sex; what do we do? Why criminalise us calling it unnatural?”. The following statement that “privacy allows persons to develop human relations without interference from the outside community or from the State” is consistent with this understanding.
Q.7: Does Paragraph 132 undercut the Bench’s finding that S.377 violates the fundamental right to privacy?
A: In Paragraph 132, the Bench bars the applicability of S.377 to consensual sexual acts in private between same sex persons. Does it mean that the section may still be freely applied to prosecute “non-private” conduct in a public place? Public Display of Affection (PDA) -whether between same sex or hetero sex couple – is covered under anti-obscenity provisions, namely, S.294(a) IPC. The Bench may be justified in avoiding a discussion on obscenity in order to confine its focus on S.377. PDA must be understood differently from that of carnal intercourse mentioned in S.377. Yes, if there is a carnal intercourse between same sex couple at a public place, even with consent, they must be prosecuted under S.377 even after this judgment. A hetero sex couple indulging in a similar act at a public place cannot be prosecuted under S.377, but under S.294(a).
I agree there is an anomaly even after this judgment in that the Court implicitly agrees that the S.377’s use of expression ‘against the order of nature’ is correct and that same sex carnal intercourse is against the order of nature, if it is at a public place. This inference is unfortunate because the Court questions the underlying assumption of S.377 – in terms of its application – that same sex intercourse is against the order of nature.
The Court could have avoided this contradiction by suggesting that consensual same sex intercourse in public could be prosecuted under S.294(a), rather than under S.377.
The Court was obviously confronted with two kinds of information:
A. There is no evidence of S.377 being used against same sex couple indulging in carnal intercourse with consent in private. Most of the trial court cases go unreported, and we don’t know whether there are indeed such cases. It is plausible that there are such cases, and the Court’s judgment must be seen as an answer to such situations. If the police indeed did not invoke S.377 against consenting same sex adults in private, then why have this provision which applies to them and which is a source of much harassment– this is what the court is suggesting in Naz Foundation.
B. The Court was also confronted with several actual cases of harassment by the police against homosexuals by abusing S.377.
Obviously, A & B are not contradictory, and the judgment seeks to address both the claims. The parsimonious finding regarding applicability of S.377 is due to lack of data with regard to trial court cases. But that need not have deterred the Bench from reaching its conclusion.
Q.8. Does the Bench prescribe that every governmental action that violates a fundamental right must henceforth satisfy Menaka’s test of “just, fair and reasonable” as well as Gobind’s requirement of furthering a “compelling state interest”?
Ans: I think Vikram’s suggestion that it is a radical restatement of the law is quite correct. Therefore, the distinction which he subsequently draws between penumbral rights and textual rights for the purpose of applying Gobind+ Menaka to the former is, in my view, unnecessary.
Q.9: How do we understand Constitutional Morality?
A: When the Court is confronted with an issue concerning popular conception of morality, can its reliance on what constitutes constitutional morality provide the answer? There can be no dispute about what is Constitutional morality with regard to what the Constitution says the State cannot do. Thus we do have a huge debate about Constitutional morality with regard to affirmative action (What the State should do and how the State should go about it), but there is a consensus (which signifies constitutional morality) regarding non-discrimination, equality and right to life and liberty. The right to trade in liquor is, like affirmative action, to be understood with reference to the State’s duty to enforce Prohibition under Article 47. The debate and the courts’ dilemma on what constitutes constitutional morality with regard to this right is understandable.
Q.10: Since the High Court concedes that S.377 is facially neutral, its criticism that it targets homosexuals as a class has no basis.
A: Discriminatory enforcement of a neutral provision can be a ground for challenge. Lack of precedents alone need not make this ground vulnerable. The court clearly hints that indirect discrimination is also discrimination. The very definition of indirect discrimination is facially neutral provisions which apply disproportionately to one single class. Indirect discrimination is accepted the world over as an aspect of discrimination. Discrimination based on pregnancy, although facially neutral, is, for example, indirect discrimination on the ground of sex.
Q.11: If sexual orientation is now included as one of these prohibited grounds, several existing laws, including those that define marriage as being between a man and woman, are in constitutional jeopardy.
A: Correct. But could this be a ground to stay or reverse the High Court’s judgment? If other laws are challenged in the light of Naz Foundation, so be it, and let them be heard separately on merits.
Q.12: Can the HC’s observations on Article 15(2) be considered as obiter?
A: No. One has to read only paragraphs 20 and 50 wherein the Court shows that statutory discrimination leads to the general atmosphere of prejudice leading to discrimination against gays by private persons. This was one of the pleas of the petitioner and some respondents. The HC correctly took this into account.
Q.13 Did the HC needlessly import the American doctrines of strict scrutiny and compelling state interest to invalidate S.377?
A. It is true that this was not strictly necessary, given the court's findings under Articles 14 and 21. Yet, the court found it useful to rely on Anuj garg, as it was a directly relevant judgment on discrimination, given the confusion over the possible impact of Thakur on Anuj garg, the court had to clarify why it could validly rely on Anuj Garg. In fact, the court expressly disagrees with American precedents by suggesting that strict scrutiny does not apply to affirmative action. This is a very Indian position. If you look at the chronology, Anuj Garg was delivered in December 2007 after the hearings of Thakur concluded on November 1, 2007. The Thakur judgment was delivered on April 10, 2008. There is no mention of Anuj Garg in Thakur judgment. But the Judges of Thakur were aware of Anuj Garg. If Thakur wanted to overrule Anuj Garg, they could have done so. But Anuj Garg was not argued during the hearings of Thakur case. Therefore, it was reasonable for the Delhi High Court to attempt a harmonious construction of the two judgments.
Q.1: Was it necessary for the Bench to use 20 pages of its judgment to sum up the arguments?
A: As someone who has not followed the arguments during the hearing of the case, I found this summing up very useful to know who, among the parties to the case, said what.
Q.2: Should the Bench have gone into the legal and legislative history of S.377?
A: In my view, it is not necessary to know why it had been enacted in order to understand why it is no longer relevant. Though it would have been an interesting academic background to know why and how it was enacted, it was not necessary for the Bench to digress into this issue. It was obvious that S.377, even at the time of its enactment, did not reflect the then prevailing Indian conception of morality. Still, it could be enacted without resistance because people thought it did not concern them. [the same unconcern which characterises some sections even today; I refer to those who wonder what is this huge controversy all about. On the contrary, those who actively oppose the judgment do so for imaginary reasons]. In other words, S.377 was not relevant then when it was enacted, and hardly relevant even now.
Q.3: Is there a taxonomical confusion?
A: Although the judgment uses different terms under homosexuals synonymously, there appears to be no confusion with regard to its reasoning. The use of different terms in different paragraphs is justified according to their contexts.
Q.4: Did the Court rely on certain principles of International Law which are less authentic, because it has been adopted by very few States?
A: The Yogyakarta Principles, drawn in 2007, and the London Declaration of Principles on Equality (2008) and referred to in the judgment, have persuasive value as of now, for they have been adopted by very few States. I don't see any harm if a Court cites these to buttress its reasoning. The Court did not say we ought to follow these principles because they are binding.
Q.5: In Paragraph 35 of the Judgment, did the Court make a sweeping assertion that the Supreme Court in Kharak Singh held that the right to privacy was part of the right to life in Art.21? Was it correct to do so after noting that the majority in that judgment did not go into the question whether the police domiciliary visits violated the right to privacy?
A: If you read Kharak Singh carefully, (esp. the judg. By Ayyangar) it is clear that the Court was concerned with the question whether the U.P.Regulations authorise the police to make domiciliary visits. Therefore, it was not necessary for the Court to examine whether the police actually made those visits, because the police denied that they did. Ayyangar makes this distinction clear.
Q.6: Is Paragraph 47 confusing? What is its practical meaning?
A: By declaring that a person cannot leave behind his sense of gender or sexual orientation at home, the Court makes it clear that it sees homosexuality as a trait, rather than as a disorder and that a homosexual does not become a homosexual by choice. The HC relies on the weight of medical opinion for this. This is also buttressed by the responses of homosexuals themselves, who might say: “We are not attracted by the opposite sex; what do we do? Why criminalise us calling it unnatural?”. The following statement that “privacy allows persons to develop human relations without interference from the outside community or from the State” is consistent with this understanding.
Q.7: Does Paragraph 132 undercut the Bench’s finding that S.377 violates the fundamental right to privacy?
A: In Paragraph 132, the Bench bars the applicability of S.377 to consensual sexual acts in private between same sex persons. Does it mean that the section may still be freely applied to prosecute “non-private” conduct in a public place? Public Display of Affection (PDA) -whether between same sex or hetero sex couple – is covered under anti-obscenity provisions, namely, S.294(a) IPC. The Bench may be justified in avoiding a discussion on obscenity in order to confine its focus on S.377. PDA must be understood differently from that of carnal intercourse mentioned in S.377. Yes, if there is a carnal intercourse between same sex couple at a public place, even with consent, they must be prosecuted under S.377 even after this judgment. A hetero sex couple indulging in a similar act at a public place cannot be prosecuted under S.377, but under S.294(a).
I agree there is an anomaly even after this judgment in that the Court implicitly agrees that the S.377’s use of expression ‘against the order of nature’ is correct and that same sex carnal intercourse is against the order of nature, if it is at a public place. This inference is unfortunate because the Court questions the underlying assumption of S.377 – in terms of its application – that same sex intercourse is against the order of nature.
The Court could have avoided this contradiction by suggesting that consensual same sex intercourse in public could be prosecuted under S.294(a), rather than under S.377.
The Court was obviously confronted with two kinds of information:
A. There is no evidence of S.377 being used against same sex couple indulging in carnal intercourse with consent in private. Most of the trial court cases go unreported, and we don’t know whether there are indeed such cases. It is plausible that there are such cases, and the Court’s judgment must be seen as an answer to such situations. If the police indeed did not invoke S.377 against consenting same sex adults in private, then why have this provision which applies to them and which is a source of much harassment– this is what the court is suggesting in Naz Foundation.
B. The Court was also confronted with several actual cases of harassment by the police against homosexuals by abusing S.377.
Obviously, A & B are not contradictory, and the judgment seeks to address both the claims. The parsimonious finding regarding applicability of S.377 is due to lack of data with regard to trial court cases. But that need not have deterred the Bench from reaching its conclusion.
Q.8. Does the Bench prescribe that every governmental action that violates a fundamental right must henceforth satisfy Menaka’s test of “just, fair and reasonable” as well as Gobind’s requirement of furthering a “compelling state interest”?
Ans: I think Vikram’s suggestion that it is a radical restatement of the law is quite correct. Therefore, the distinction which he subsequently draws between penumbral rights and textual rights for the purpose of applying Gobind+ Menaka to the former is, in my view, unnecessary.
Q.9: How do we understand Constitutional Morality?
A: When the Court is confronted with an issue concerning popular conception of morality, can its reliance on what constitutes constitutional morality provide the answer? There can be no dispute about what is Constitutional morality with regard to what the Constitution says the State cannot do. Thus we do have a huge debate about Constitutional morality with regard to affirmative action (What the State should do and how the State should go about it), but there is a consensus (which signifies constitutional morality) regarding non-discrimination, equality and right to life and liberty. The right to trade in liquor is, like affirmative action, to be understood with reference to the State’s duty to enforce Prohibition under Article 47. The debate and the courts’ dilemma on what constitutes constitutional morality with regard to this right is understandable.
Q.10: Since the High Court concedes that S.377 is facially neutral, its criticism that it targets homosexuals as a class has no basis.
A: Discriminatory enforcement of a neutral provision can be a ground for challenge. Lack of precedents alone need not make this ground vulnerable. The court clearly hints that indirect discrimination is also discrimination. The very definition of indirect discrimination is facially neutral provisions which apply disproportionately to one single class. Indirect discrimination is accepted the world over as an aspect of discrimination. Discrimination based on pregnancy, although facially neutral, is, for example, indirect discrimination on the ground of sex.
Q.11: If sexual orientation is now included as one of these prohibited grounds, several existing laws, including those that define marriage as being between a man and woman, are in constitutional jeopardy.
A: Correct. But could this be a ground to stay or reverse the High Court’s judgment? If other laws are challenged in the light of Naz Foundation, so be it, and let them be heard separately on merits.
Q.12: Can the HC’s observations on Article 15(2) be considered as obiter?
A: No. One has to read only paragraphs 20 and 50 wherein the Court shows that statutory discrimination leads to the general atmosphere of prejudice leading to discrimination against gays by private persons. This was one of the pleas of the petitioner and some respondents. The HC correctly took this into account.
Q.13 Did the HC needlessly import the American doctrines of strict scrutiny and compelling state interest to invalidate S.377?
A. It is true that this was not strictly necessary, given the court's findings under Articles 14 and 21. Yet, the court found it useful to rely on Anuj garg, as it was a directly relevant judgment on discrimination, given the confusion over the possible impact of Thakur on Anuj garg, the court had to clarify why it could validly rely on Anuj Garg. In fact, the court expressly disagrees with American precedents by suggesting that strict scrutiny does not apply to affirmative action. This is a very Indian position. If you look at the chronology, Anuj Garg was delivered in December 2007 after the hearings of Thakur concluded on November 1, 2007. The Thakur judgment was delivered on April 10, 2008. There is no mention of Anuj Garg in Thakur judgment. But the Judges of Thakur were aware of Anuj Garg. If Thakur wanted to overrule Anuj Garg, they could have done so. But Anuj Garg was not argued during the hearings of Thakur case. Therefore, it was reasonable for the Delhi High Court to attempt a harmonious construction of the two judgments.
Saturday, July 11, 2009
The Right to Food (and Implementation?) Act
There is much discussion surrounding the yet to be revealed Right to Food Act. Pragya Singh of Outlook India is not alone in her assessment that the Act "is being crafted as the centrepiece of the UPA's second innings." Singh's article then goes on to look at the debates concerning what the act will ultimately contain. As her article alludes I think there is some cautious optimism about the development of this Act by those who have worked on the Right to Food case and on this issue more generally, but also a very real fear about it. Those fears revolve around, first, whether the legislation will weaken the substance of the right, and second, whether the enforcement mechanisms that go along with any act will be weaker than those currently set-up by the Supreme Court in the guise of the Right to Food Commissioners and regular monitoring of the case by the Court itself. Jean Dreze has this recent opinion piece in Outlook that states what he thinks should be the minimum in any such Right to Food Act, which goes to the first substance point.
At first blush the story of this Act looks similar to the development of the Right to Information Act: committed activists rally around a cause, succeed in getting a positive Supreme Court order (or series of orders), and then use the traction and precedent gained from those orders, as well as a great deal of independent organizing efforts, to consolidate (and advance) their gains in legislation. Indeed, one could even tell this story - to some extent - about the development and passage of the National Rural Employment Guarantee Act at the beginning of the UPA's "first inning" (arguably its "centrepiece" at that time). As part of the Right to Food case, the Supreme Court had ordered that the government implement its then existing work-for-food scheme. Many of the same activists involved in the Right to Food Case then pushed to get NREGA drafted and passed, and have worked to implement it. The Supreme Court has since seemed to accept that the passage of NREGS fulfilled its orders concerning the work scheme in the Right to Food case and if I'm not mistaken hasn't passed any orders concerning the new NREGS in the Right to Food case.
This later non-interference by the Court around NREGS highlights an important point. By legislating a "right" the UPA seemingly made the Court more cautious about intervening to implement a right the Court once monitored and (at least on occassion) issued orders to enforce. This doesn't mean they might not issue orders later, but they seem to have adapted a wait-and-see attitude on this relatively new legislation. NREGS is more far-reaching and potentially far more transformative for India's poor then the work-for-food scheme it replaced that was subject of the Supreme Court's initial orders in the Right to Food case. Yet, enforcement of NREGS has been an ongoing problem, in part because the legislation does not provide for either an independent oversight body to enforce it (like a commission) or for a realistic way for those affected to enforce their right in court. As a result, implementation has varied from quite good to quite poor depending on administrators in a locality, state, etc. This sits in contrast to the Right to Information Act which was implemented to both expand and better articulate what the right was, but also to create mechanisms to make it easier to access (i.e. a system of complaint and appeal if requested information is not given and relatively harsh penalties for administrators who unlawfully withhold information).
If a Right to Food Act is passed it is not clear how the Supreme Court will respond. There is a very real chance that the Court might decide to consider the matter closed if the Act, at least on paper, looks like it is fulfilling its orders in the case. Now in the Right to Food case the Court did expand entitlements in some instances - such as universalizing and mandating the mid-day meal scheme - and these would theoretically be included in any Act. But as far as I can tell the core of the Right to Food case has always been about implementation. Most of the the courts orders simply involved telling the government to implement a scheme it already had on the books. I would suggest that when deciding whether to keep the Right to Food case open or not the Court should look most closely at implementation mechanisms in the Act. Indeed, any right to food act should at its core be about mechanisms of implementation - mechanisms hopefully superior to those that the Court has been able to create on its own.
Biraj Patnaik, the principal adivsor to the Right to Food commissioners appointed by the Court to monitor their orders, has a nice comparative piece in the Mint looking at right to food legislation in different parts of the world. In that article he makes the point that:
"The third key lesson [concerning right to food legislation] is creating a system of not just administrative, but also legal recourse. This is a key feature of the right to food Acts across countries. In Brazil, the public prosecutors’ office take up violations of human rights, including socio-economic rights, at the local level. Guatemala, Venezuela, Brazil, Peru, Uganda and South Africa have already put in place or proposed powerful national commissions that act as oversight bodies and also have the power to impose penalties. Although the Supreme Court has appointed its own commissioners to monitor the food and employment schemes of the Indian government, these commissioners do not have the kind of statutory powers to impose penalties that the bodies in other countries do."
Unfortunately, India currently doesn't have a public prosecutor system (i.e. attorney general, advocate generals, etc.) that is independent or resource-rich enough to be relied upon to implement any future Act. Therefore, the independent commission model with the ability to impose stiff penalties could be a potentially good substitute - it is worth noting that if the public prosecutor system could be built up much of the need for always creating yet another commission to implement a law would go away.
I am firm believer if you want something implemented though you need multiple systems all working towards the same goal because it's likely that they will all break down to some extent. That's why I think any Right to Food legislation should include personal judicial remedies, and more generally India should consider legislating a more robust system of constitutional torts. In the U.S. if someone is deprived of a legislated social welfare benefit this is considered an infringement of their right to property in this benefit. If they succeed in litigation, the party is not only given the benefit they were deprived of, but lawyers fees and potentially other damages. This creates a market amongst lawyers to bring these cases. A similar model could be used in any Right to Food legislation to guarantee damages at a sufficiently high level to attract lawyers to enforce the legislation. U.S. legislation also allows public officials to be personally brought to task if they infringe citizens rights (somewhat similar to the Right to Information Act's penalty of 250 Rs a day on PIOs if they wrongfully withold information).
Taking these considerations into mind, perhaps it would be suitable to call any future act "The Right to Food and Implementation Act" or something along those lines. This is where I think the focus needs to be. I hope that is where it ends up.
At first blush the story of this Act looks similar to the development of the Right to Information Act: committed activists rally around a cause, succeed in getting a positive Supreme Court order (or series of orders), and then use the traction and precedent gained from those orders, as well as a great deal of independent organizing efforts, to consolidate (and advance) their gains in legislation. Indeed, one could even tell this story - to some extent - about the development and passage of the National Rural Employment Guarantee Act at the beginning of the UPA's "first inning" (arguably its "centrepiece" at that time). As part of the Right to Food case, the Supreme Court had ordered that the government implement its then existing work-for-food scheme. Many of the same activists involved in the Right to Food Case then pushed to get NREGA drafted and passed, and have worked to implement it. The Supreme Court has since seemed to accept that the passage of NREGS fulfilled its orders concerning the work scheme in the Right to Food case and if I'm not mistaken hasn't passed any orders concerning the new NREGS in the Right to Food case.
This later non-interference by the Court around NREGS highlights an important point. By legislating a "right" the UPA seemingly made the Court more cautious about intervening to implement a right the Court once monitored and (at least on occassion) issued orders to enforce. This doesn't mean they might not issue orders later, but they seem to have adapted a wait-and-see attitude on this relatively new legislation. NREGS is more far-reaching and potentially far more transformative for India's poor then the work-for-food scheme it replaced that was subject of the Supreme Court's initial orders in the Right to Food case. Yet, enforcement of NREGS has been an ongoing problem, in part because the legislation does not provide for either an independent oversight body to enforce it (like a commission) or for a realistic way for those affected to enforce their right in court. As a result, implementation has varied from quite good to quite poor depending on administrators in a locality, state, etc. This sits in contrast to the Right to Information Act which was implemented to both expand and better articulate what the right was, but also to create mechanisms to make it easier to access (i.e. a system of complaint and appeal if requested information is not given and relatively harsh penalties for administrators who unlawfully withhold information).
If a Right to Food Act is passed it is not clear how the Supreme Court will respond. There is a very real chance that the Court might decide to consider the matter closed if the Act, at least on paper, looks like it is fulfilling its orders in the case. Now in the Right to Food case the Court did expand entitlements in some instances - such as universalizing and mandating the mid-day meal scheme - and these would theoretically be included in any Act. But as far as I can tell the core of the Right to Food case has always been about implementation. Most of the the courts orders simply involved telling the government to implement a scheme it already had on the books. I would suggest that when deciding whether to keep the Right to Food case open or not the Court should look most closely at implementation mechanisms in the Act. Indeed, any right to food act should at its core be about mechanisms of implementation - mechanisms hopefully superior to those that the Court has been able to create on its own.
Biraj Patnaik, the principal adivsor to the Right to Food commissioners appointed by the Court to monitor their orders, has a nice comparative piece in the Mint looking at right to food legislation in different parts of the world. In that article he makes the point that:
"The third key lesson [concerning right to food legislation] is creating a system of not just administrative, but also legal recourse. This is a key feature of the right to food Acts across countries. In Brazil, the public prosecutors’ office take up violations of human rights, including socio-economic rights, at the local level. Guatemala, Venezuela, Brazil, Peru, Uganda and South Africa have already put in place or proposed powerful national commissions that act as oversight bodies and also have the power to impose penalties. Although the Supreme Court has appointed its own commissioners to monitor the food and employment schemes of the Indian government, these commissioners do not have the kind of statutory powers to impose penalties that the bodies in other countries do."
Unfortunately, India currently doesn't have a public prosecutor system (i.e. attorney general, advocate generals, etc.) that is independent or resource-rich enough to be relied upon to implement any future Act. Therefore, the independent commission model with the ability to impose stiff penalties could be a potentially good substitute - it is worth noting that if the public prosecutor system could be built up much of the need for always creating yet another commission to implement a law would go away.
I am firm believer if you want something implemented though you need multiple systems all working towards the same goal because it's likely that they will all break down to some extent. That's why I think any Right to Food legislation should include personal judicial remedies, and more generally India should consider legislating a more robust system of constitutional torts. In the U.S. if someone is deprived of a legislated social welfare benefit this is considered an infringement of their right to property in this benefit. If they succeed in litigation, the party is not only given the benefit they were deprived of, but lawyers fees and potentially other damages. This creates a market amongst lawyers to bring these cases. A similar model could be used in any Right to Food legislation to guarantee damages at a sufficiently high level to attract lawyers to enforce the legislation. U.S. legislation also allows public officials to be personally brought to task if they infringe citizens rights (somewhat similar to the Right to Information Act's penalty of 250 Rs a day on PIOs if they wrongfully withold information).
Taking these considerations into mind, perhaps it would be suitable to call any future act "The Right to Food and Implementation Act" or something along those lines. This is where I think the focus needs to be. I hope that is where it ends up.
Friday, July 10, 2009
Naz, minorities and personal laws
In this Telegraph piece, I have argued that given the innovations under Article 15 in Naz Foundation, all vulnerable groups now have unprecedented protection under law, and therefore all minorities, including religious minorities, should welcome it. Swapan Dasgupta interestingly argues that
I agree that the reasoning is impeccable, but for a perverse ruling of the Bombay High Court in Narasu Appa Mali, and affirmed by the Supreme Court in Krishna Singh v Mathura Ahir, that personal laws are not 'law' under Article 13 and therefore need not satisfy the fundamental rights test. (I have discussed this jurisprudence here). Many aspects of personal laws will not even need this heightened scrutiny under Article 15. They are unconstitutional even under the more deferential Article 14 inquiry of reasonableness. So, Naz may only make a rhetorical (and political) difference to personal laws (though these can make a huge difference too). Legally, the Supreme Court needs to overrule Mali and Singh. How can any law be above the Constitution?
There is another legal aspect to this debate: are only uncodified personal laws barred by Article 13 or all personal laws? Supreme Court has often invoked constitutional guarantees against codified personal laws, but Narasu Appa Mali was also dealing with a codified law. Does it mean that Mali is impliedly overruled? What to make of Krishna Singh then?
Thanks to Sundeep Dougal for pointing this out.
If the criminal ban on homosexuality violates the fundamental rights and dignity of some individuals, it follows that all personal laws must be tested against this principle. If equality becomes the litmus test, can the existing Muslim personal laws relating to divorce and polygamy withstand impartial judicial scrutiny? Can the principle of inclusiveness extend to gays but not to Muslim women? Can the government enact Shah Bano-type legislation if it violates a fundamental right of the Constitution? The Supreme Court will have to consider these questions when it hears Baba Ramdev’s appeal against the high court verdict.
I agree that the reasoning is impeccable, but for a perverse ruling of the Bombay High Court in Narasu Appa Mali, and affirmed by the Supreme Court in Krishna Singh v Mathura Ahir, that personal laws are not 'law' under Article 13 and therefore need not satisfy the fundamental rights test. (I have discussed this jurisprudence here). Many aspects of personal laws will not even need this heightened scrutiny under Article 15. They are unconstitutional even under the more deferential Article 14 inquiry of reasonableness. So, Naz may only make a rhetorical (and political) difference to personal laws (though these can make a huge difference too). Legally, the Supreme Court needs to overrule Mali and Singh. How can any law be above the Constitution?
There is another legal aspect to this debate: are only uncodified personal laws barred by Article 13 or all personal laws? Supreme Court has often invoked constitutional guarantees against codified personal laws, but Narasu Appa Mali was also dealing with a codified law. Does it mean that Mali is impliedly overruled? What to make of Krishna Singh then?
Thanks to Sundeep Dougal for pointing this out.
Thursday, July 9, 2009
Extraterritorial application of High Court judgments: A riposte to Shivprasad Swaminathan
Guest Blogger
Subramanian Natarajan
I have been following with quite some fascination what is probably the only purely theoretical question to have faced the Indian constitution since the much vexed question of its amendability. I would like to make certain points in relation to the post by Mr. Shivprasad Swaminathan. Certain points that express my initial disquiet regarding the bases of his arguments. This is more a hole picking exercise than a response. I would be exceedingly happy, with some time, to articulate my own thoughts in a more refined manner, if the editors of the blog give me the opportunity.
First, the easy comment. The example of conflicts of law is I feel confusing and irrelevant. Indian courts are bound by Indian private international law to give recognition to the judgment of the English court without looking into the basis of the judgment. In fact, the major exercise in Private International Law is to somehow prevent the enforcing court from going behind the order to be enforced (with a few narrow and nebulous exceptions of public policy and the like).
The parallel to this situation within India is not a difference in interpretation between two High Courts regarding a central law on a PIL, rather it is the Section in the CPC that deals with the execution of a decree transferred from another state. (Section 42 of the CPC read with the relevant provisions of Order 21). These rules upon careful (and painful!) consideration also embody a principle similar to private international law- that the issues in the case should not be re-agitated in the execution stage. This question has little to do with constitutionality, because the declaration of unconstitutionality is not the reasoning in the judgment. That is the judgment. This is even more the case in a PIL where the whole exercise is hypothetical in the sense that there is no actual person being prosecuted under Section 377. The prayer is for the declaration. Therefore, I believe that example is not entirely relevant.
Coming to the next point of Mr. Swaminathan. Interpretation of the Contract Act, is not the same as striking down parts of the Contract Act. In the former, the High Court addresses the subjects of the dispute (both or one of whom fall within its territorial jurisdiction) in guiding them in their behaviour with regard to certain portions of the Contract Act and another High court has every right to disagree with that interpretation. However, when the High court strikes down a part of the contract as void it not only speaks to the parties of the dispute or the subjects in its territory- it also speaks to the creator of the offending statute. This is why the Union is always a party in cases where constitutionality is in question.
This brings me to the final point.
I agree with Mr. Swaminathan that there needs to exist a relationship of authority between the rule maker and recipient.(In fact it is extremely hard to disagree with that!) I would only disagree with his identification of the recipients in this case. I would suggest that Union of India (by which both executive and Parliament is referred to) is a recipient in a case where a Central legislation is struck down. It is the simple meaning of judicial review, that the judiciary stands in judgement and in review over the other organs. So, in this case, the recipient is Parliament which has offended a higher Constitutional norm. It is not merely the hypothetical person prosecuted under 377, it is not merely the homosexuals of Delhi, it is not merely the Delhi government, it is not merely the Central Executive, but rather it also is the source of the offending rule – the Indian Parliament.
Now, the question arises, jurisdictionally is the High Court allowed to give such a ruling? One would be tempted to say yes – because of this in the Indian Constitution: Article 226A. [Constitutional validity of Central laws not to be considered in proceedings under article 226.-Rep. by the Constitution (Forty-third Amendment) Act, 1977, s. 8, w.e.f.13-4-1978].
So it is clear that the High Court can consider the constitutional validity of central acts. What is the scope of this power? Is there a territorial limit to this power? I believe the territorial limit to this power is only found in the territorial limit of the offending statute – all of India.
The problem with this is that somehow one cannot imagine the High Court issuing a writ against Parliament. That would be absurd. But the exercise of power need not be only through writs – Article 226 is not exhaustive in this regard. A mere declaration of unconstitutionality – rendering the section void – may be the power that the High Court wields against the parliament. And the scope of such power should be determined by the scope of power of the Parliament – which is India – for it to make institutional sense.
But there are problems – the text is not clear. Indeed the textual basis for my argument is almost nonexistent. I am only saved by the fact the textual basis of the converse argument is not great either. Article 226 does not seem to envision this situation. There is the theoretically problematic question of differing interpretations in High Courts. All these need to be answered in a longer – more well thought post. As I said this post is only to critique!
[The author works as a trainee legal advisor in London]
Subramanian Natarajan
I have been following with quite some fascination what is probably the only purely theoretical question to have faced the Indian constitution since the much vexed question of its amendability. I would like to make certain points in relation to the post by Mr. Shivprasad Swaminathan. Certain points that express my initial disquiet regarding the bases of his arguments. This is more a hole picking exercise than a response. I would be exceedingly happy, with some time, to articulate my own thoughts in a more refined manner, if the editors of the blog give me the opportunity.
First, the easy comment. The example of conflicts of law is I feel confusing and irrelevant. Indian courts are bound by Indian private international law to give recognition to the judgment of the English court without looking into the basis of the judgment. In fact, the major exercise in Private International Law is to somehow prevent the enforcing court from going behind the order to be enforced (with a few narrow and nebulous exceptions of public policy and the like).
The parallel to this situation within India is not a difference in interpretation between two High Courts regarding a central law on a PIL, rather it is the Section in the CPC that deals with the execution of a decree transferred from another state. (Section 42 of the CPC read with the relevant provisions of Order 21). These rules upon careful (and painful!) consideration also embody a principle similar to private international law- that the issues in the case should not be re-agitated in the execution stage. This question has little to do with constitutionality, because the declaration of unconstitutionality is not the reasoning in the judgment. That is the judgment. This is even more the case in a PIL where the whole exercise is hypothetical in the sense that there is no actual person being prosecuted under Section 377. The prayer is for the declaration. Therefore, I believe that example is not entirely relevant.
Coming to the next point of Mr. Swaminathan. Interpretation of the Contract Act, is not the same as striking down parts of the Contract Act. In the former, the High Court addresses the subjects of the dispute (both or one of whom fall within its territorial jurisdiction) in guiding them in their behaviour with regard to certain portions of the Contract Act and another High court has every right to disagree with that interpretation. However, when the High court strikes down a part of the contract as void it not only speaks to the parties of the dispute or the subjects in its territory- it also speaks to the creator of the offending statute. This is why the Union is always a party in cases where constitutionality is in question.
This brings me to the final point.
I agree with Mr. Swaminathan that there needs to exist a relationship of authority between the rule maker and recipient.(In fact it is extremely hard to disagree with that!) I would only disagree with his identification of the recipients in this case. I would suggest that Union of India (by which both executive and Parliament is referred to) is a recipient in a case where a Central legislation is struck down. It is the simple meaning of judicial review, that the judiciary stands in judgement and in review over the other organs. So, in this case, the recipient is Parliament which has offended a higher Constitutional norm. It is not merely the hypothetical person prosecuted under 377, it is not merely the homosexuals of Delhi, it is not merely the Delhi government, it is not merely the Central Executive, but rather it also is the source of the offending rule – the Indian Parliament.
Now, the question arises, jurisdictionally is the High Court allowed to give such a ruling? One would be tempted to say yes – because of this in the Indian Constitution: Article 226A. [Constitutional validity of Central laws not to be considered in proceedings under article 226.-Rep. by the Constitution (Forty-third Amendment) Act, 1977, s. 8, w.e.f.13-4-1978].
So it is clear that the High Court can consider the constitutional validity of central acts. What is the scope of this power? Is there a territorial limit to this power? I believe the territorial limit to this power is only found in the territorial limit of the offending statute – all of India.
The problem with this is that somehow one cannot imagine the High Court issuing a writ against Parliament. That would be absurd. But the exercise of power need not be only through writs – Article 226 is not exhaustive in this regard. A mere declaration of unconstitutionality – rendering the section void – may be the power that the High Court wields against the parliament. And the scope of such power should be determined by the scope of power of the Parliament – which is India – for it to make institutional sense.
But there are problems – the text is not clear. Indeed the textual basis for my argument is almost nonexistent. I am only saved by the fact the textual basis of the converse argument is not great either. Article 226 does not seem to envision this situation. There is the theoretically problematic question of differing interpretations in High Courts. All these need to be answered in a longer – more well thought post. As I said this post is only to critique!
[The author works as a trainee legal advisor in London]
Guest Post: Extraterritorial application of HC judgment
It is my pleasure to post on behalf of Shivprasad Swaminathan [LLB (ILS , Pune) B.C.L (Oxford)]. He is a Doctoral Student studying jurisprudence at Balliol College , Oxford. He is working on The Normativity of the law and the nature of legal obligation. Previously he read in the chambers of N.H.Seervai in Bombay for 3 years.
Guest Post: The extent of a High Court’s Jurisdiction
When a high court declares a central law to be unconstitutional is the law invalid only in the state which it is a high court of or is it invalid in the rest of India? In practical terms, the question translates to whether the Delhi High Court’s judgment in Naz Foundation prevents a police official in any of the other states, from acting on Sec.377.
Article 226(1) provides that the writ of a High Court ordinarily runs only within the territorial limits of the state; Art 226(2) provides that the High Court has extra territorial reach over persons and authorities outside the state territory where the cause of action upon which the writ issues arises within its jurisdiction.
One line of thinking about the issue has it that when a High Court strikes down a central statute, it is unconstitutional for the whole of the legal system. One inclined to think in this fashion would be tempted to cite Art 226(2) in support of this proposition- as the Supreme Court did in Kusum Ingots - arguing that the unconstitutionality of the statute is a cause of action and by that token it is a cause of action arising in every state in India; thus each of the high courts are competent to declare the statute unconstitutional and that would be binding on all legal officials wherever they may be in India. The other line of thinking about the issue has it that the High Court can exercise jurisdiction only over authorities within its territories. This seems to be the view of the Supreme Court in Ambika Industries and Durgesh Sharma.
There is something odd about both lines of thinking . Surely, Art 226(2) permits the High Court to issue writs to persons and authorities outside its ordinary territorial state limits if the cause of action arises within its territory. After all when even a subordinate civil judge in Solapur has an analogous power under the Civil Procedure Court why deny it to a High Court? Therefore the second line of thinking which denies this extra territorial reach to a High Court in the face of the Art 226(2) is unacceptable. However , that need not lead us to accepting the first line of thinking- that just because a High Court can issue writs to authorities outside its jurisdiction its law is binding throughout India.
The error, in both lines of thinking is similar, namely, the assumption that the bindingness of an individual ruling of a high court is the same as the bindingness of the rule on which the ruling is based. However, as John Gardner points out in Types of Law there exists a world of difference between the ruling and the rule on which it is based. A rule is culled out of the ratio of the individual ruling.
The implications of the difference between a ruling and a rule would become clearer with this example from conflict of laws. If there is a contractual dispute between a plaintiff in England and a defendant in India and a part of the cause of action has arisen in England , an English court can pass a ruling against the Indian defendant, based on English Contract Law. By virtue of Indian rules of conflict of laws, the ruling of the English court is binding on the Indian party. But does that mean that the rule of English Contract law on which the ruling is based is applicable in India? None of us would have the least hesitation in denying that the rule of English law applies merely because the English court’s ruling is binding in India.
On a similar note ,none of us would have the least hesitation in agreeing that the Delhi High Court’s interpretation of a section of the Indian Contract Act would not have any force in Maharashtra. If the State of Maharashtra is a defendant in such a suit - and assuming a part of the cause of action arose in Delhi- we would maintain that of course the state of Maharashtra as a party is bound by the ruling and would have to satisfy the decree. However, we would not for a moment suggest that the Delhi High Court’s interpretation of the Contract Act on which the ruling was made becomes the law in the state of Maharashtra. We would not have the least hesitation in saying that a Civil Judge in Solapur is not bound by the Delhi High Court’s interpretation of the Indian Contract Act.
If we think in this fashion about a rule of contract law laid down by the Delhi High Court how does doubt creep in when we begin to talk about a declaration of unconstitutionality by the same court. Declaration of unconstitutionality is, for want of a better phrase, an exercise of negative law making power. In reality the striking down of a law amounts to the promulgation of a new rule calling upon the officials to not act upon the law which is being stuck down. The recipients of this rule are the legal officials. There is no reason why we should treat this any differently from how we would treat a rule laid down by Delhi High Court on contract law.
What we are then faced with is a classical conflict of laws situation, which is so common in other federal systems, but surprisingly finds little mention in Indian Constitutional jurisprudence. And at the heart of this problem lies the conflation of the ruling with a rule; a distinction which is fundamental in conflict of law situations.
In saying that a rule of law is binding- as Von Wright points out in Norm and Action - we mean that there exists a relationship of authority between the rule maker and the person to whom the rule is addressed. This authority is delineated by the Constitution by setting out territorial limits of each High Court’s jurisdiction in Art. 226(1). Thus the law laid down by the High Court is law only for its state. However because of Art 226(2) a High Court’s individual rulings can bind people beyond its territory just as the English Court’s ruling can bind a party in India. This also fits nicely with the legislative intent behind the constitutional amendment(1962) inserting Art 226(2). It was introduced to enable litigants in other states to seek relief against the central government , which was previously only subject to the jurisdiction of the Punjab High Court.
Hence the Delhi High Court’s declaration of unconstitutionality would be valid only for the territory of Delhi. Section 377 of the Indian Penal Code remains intact for the rest of India till the Supreme Court decides to strike it down.
Before signing off , I would like to quickly deal with one highly plausible solution to the problem previously suggested by Tarunabh , that reaches a result diametrically opposed to mine. The argument is that Art 13 renders this entire jurisdictional debate pointless because it provides that any law that infringes part III of the Constitution is unconstitutional and there is no territorial limitation to Art.13. Surely, this argument, if right, solves the puzzle in one stroke. Beneath the surface of this argument lies the assumption that a declaration of unconstitutionality ‘wipes out’ the law. But the law does not exist like other things in the physical world. The existence of a law is a relationship of authority between the law giver and the recipient. And a declaration of unconstitutionality is a fresh rule issued by a lawgiver not to act upon the law being struck down. Therefore the question returns to stare us in the face - over which persons does the lawgiver have authority to make such a rule? And that question cannot be answered by Art.13 . That question can only be answered by looking at the extent of the law givers jurisdiction. In case of the Supreme Court that is to be found in Art.141. In case of a High Court it is to be found in Art 226(1). Though I completely agree with Tarunabh’s point that a declaration of unconstitutionality is general in its nature, I disagree with the conclusions he draws from it because the question remains which officials are subject to the jurisdiction of the court issuing the rule declaring a law unconstitutional ? According to me Art 226(1) tell us that it is only officials in the state to which the High Court belongs that are subject to its jurisdiction.
Guest Post: The extent of a High Court’s Jurisdiction
When a high court declares a central law to be unconstitutional is the law invalid only in the state which it is a high court of or is it invalid in the rest of India? In practical terms, the question translates to whether the Delhi High Court’s judgment in Naz Foundation prevents a police official in any of the other states, from acting on Sec.377.
Article 226(1) provides that the writ of a High Court ordinarily runs only within the territorial limits of the state; Art 226(2) provides that the High Court has extra territorial reach over persons and authorities outside the state territory where the cause of action upon which the writ issues arises within its jurisdiction.
One line of thinking about the issue has it that when a High Court strikes down a central statute, it is unconstitutional for the whole of the legal system. One inclined to think in this fashion would be tempted to cite Art 226(2) in support of this proposition- as the Supreme Court did in Kusum Ingots - arguing that the unconstitutionality of the statute is a cause of action and by that token it is a cause of action arising in every state in India; thus each of the high courts are competent to declare the statute unconstitutional and that would be binding on all legal officials wherever they may be in India. The other line of thinking about the issue has it that the High Court can exercise jurisdiction only over authorities within its territories. This seems to be the view of the Supreme Court in Ambika Industries and Durgesh Sharma.
There is something odd about both lines of thinking . Surely, Art 226(2) permits the High Court to issue writs to persons and authorities outside its ordinary territorial state limits if the cause of action arises within its territory. After all when even a subordinate civil judge in Solapur has an analogous power under the Civil Procedure Court why deny it to a High Court? Therefore the second line of thinking which denies this extra territorial reach to a High Court in the face of the Art 226(2) is unacceptable. However , that need not lead us to accepting the first line of thinking- that just because a High Court can issue writs to authorities outside its jurisdiction its law is binding throughout India.
The error, in both lines of thinking is similar, namely, the assumption that the bindingness of an individual ruling of a high court is the same as the bindingness of the rule on which the ruling is based. However, as John Gardner points out in Types of Law there exists a world of difference between the ruling and the rule on which it is based. A rule is culled out of the ratio of the individual ruling.
The implications of the difference between a ruling and a rule would become clearer with this example from conflict of laws. If there is a contractual dispute between a plaintiff in England and a defendant in India and a part of the cause of action has arisen in England , an English court can pass a ruling against the Indian defendant, based on English Contract Law. By virtue of Indian rules of conflict of laws, the ruling of the English court is binding on the Indian party. But does that mean that the rule of English Contract law on which the ruling is based is applicable in India? None of us would have the least hesitation in denying that the rule of English law applies merely because the English court’s ruling is binding in India.
On a similar note ,none of us would have the least hesitation in agreeing that the Delhi High Court’s interpretation of a section of the Indian Contract Act would not have any force in Maharashtra. If the State of Maharashtra is a defendant in such a suit - and assuming a part of the cause of action arose in Delhi- we would maintain that of course the state of Maharashtra as a party is bound by the ruling and would have to satisfy the decree. However, we would not for a moment suggest that the Delhi High Court’s interpretation of the Contract Act on which the ruling was made becomes the law in the state of Maharashtra. We would not have the least hesitation in saying that a Civil Judge in Solapur is not bound by the Delhi High Court’s interpretation of the Indian Contract Act.
If we think in this fashion about a rule of contract law laid down by the Delhi High Court how does doubt creep in when we begin to talk about a declaration of unconstitutionality by the same court. Declaration of unconstitutionality is, for want of a better phrase, an exercise of negative law making power. In reality the striking down of a law amounts to the promulgation of a new rule calling upon the officials to not act upon the law which is being stuck down. The recipients of this rule are the legal officials. There is no reason why we should treat this any differently from how we would treat a rule laid down by Delhi High Court on contract law.
What we are then faced with is a classical conflict of laws situation, which is so common in other federal systems, but surprisingly finds little mention in Indian Constitutional jurisprudence. And at the heart of this problem lies the conflation of the ruling with a rule; a distinction which is fundamental in conflict of law situations.
In saying that a rule of law is binding- as Von Wright points out in Norm and Action - we mean that there exists a relationship of authority between the rule maker and the person to whom the rule is addressed. This authority is delineated by the Constitution by setting out territorial limits of each High Court’s jurisdiction in Art. 226(1). Thus the law laid down by the High Court is law only for its state. However because of Art 226(2) a High Court’s individual rulings can bind people beyond its territory just as the English Court’s ruling can bind a party in India. This also fits nicely with the legislative intent behind the constitutional amendment(1962) inserting Art 226(2). It was introduced to enable litigants in other states to seek relief against the central government , which was previously only subject to the jurisdiction of the Punjab High Court.
Hence the Delhi High Court’s declaration of unconstitutionality would be valid only for the territory of Delhi. Section 377 of the Indian Penal Code remains intact for the rest of India till the Supreme Court decides to strike it down.
Before signing off , I would like to quickly deal with one highly plausible solution to the problem previously suggested by Tarunabh , that reaches a result diametrically opposed to mine. The argument is that Art 13 renders this entire jurisdictional debate pointless because it provides that any law that infringes part III of the Constitution is unconstitutional and there is no territorial limitation to Art.13. Surely, this argument, if right, solves the puzzle in one stroke. Beneath the surface of this argument lies the assumption that a declaration of unconstitutionality ‘wipes out’ the law. But the law does not exist like other things in the physical world. The existence of a law is a relationship of authority between the law giver and the recipient. And a declaration of unconstitutionality is a fresh rule issued by a lawgiver not to act upon the law being struck down. Therefore the question returns to stare us in the face - over which persons does the lawgiver have authority to make such a rule? And that question cannot be answered by Art.13 . That question can only be answered by looking at the extent of the law givers jurisdiction. In case of the Supreme Court that is to be found in Art.141. In case of a High Court it is to be found in Art 226(1). Though I completely agree with Tarunabh’s point that a declaration of unconstitutionality is general in its nature, I disagree with the conclusions he draws from it because the question remains which officials are subject to the jurisdiction of the court issuing the rule declaring a law unconstitutional ? According to me Art 226(1) tell us that it is only officials in the state to which the High Court belongs that are subject to its jurisdiction.
Wednesday, July 8, 2009
Navigating the Noteworthy and the Nebulous in Naz Foundation -- Part III
This third, and final, post builds on posts of yesterday and the day before on the Naz Foundation Case. In today’s post, I discuss, among other things, the Delhi High Court’s use of “compelling state interest” as a standard for assessing fundamental rights infringements as well as its handling of the equality and equal protection issue.
1. Compelling State Interest and Morality. Paragraph 75 of Naz Foundation appears under the caption “morality as a ground of a restriction to fundamental rights.” This paragraph discusses restrictions on the conjoined fundamental right to privacy-dignity as well as the fundamental right to health. The bench begins by stating that a law infringing a fundamental privacy right must satisfy a “compelling state interest.” It correctly attributes this standard to Justice Mathew’s Gobind opinion. It then travels beyond Gobind to hold that the enforcement of public morality is not a compelling state interest to “justify invasion of the zone of privacy of adult homosexuals engaged in consensual sex in private.”
To paraphrase Justice Mathew’s own words in Keshavananda, “I have tried, like Jacob of the Old Testament, to wrestle all night with the angel,” namely, the use of the “compelling state interest” standard in Indian constitutional adjudication. I certainly have no quarrel with the general proposition that enforcement of morality is not a compelling state interest, much less an important or even a marginal interest. However, I believe that Naz Foundation’s use of the “compelling state interest” standard here is completely out of line with prevailing Indian precedents. It is true that Justice Mathew proposed and used the “compelling state interest” standard in Gobind to determine whether the regulations at issue in that case passed constitutional muster. I believe he was so greatly enamored with recent American decisions on contraception and abortion that he readily imported their teachings to India without adequate due diligence. It is one thing to refer to foreign precedents to expand the meaning of the fundamental rights, it is quite another to borrow standards for how those rights are to be restricted from jurisdictions with different analytical frameworks for constitutional questions.
It should be pointed out that the “compelling state interest” standard, which Justice Mathew enthusiastically adopted in Gobind, is part of the U.S. Supreme Court’s strict-scrutiny test to screen restrictions on fundamental rights. That test was judicially developed largely because the American Constitution provides little textual guidance on what restrictions can be imposed on fundamental rights. In India, the situation is rather different because our Constitution has “in-house” rules with specific grounds on which “reasonable” restrictions can be imposed on most fundamental rights (see, e.g., Article 19 (2)).
In fairness to the Naz Foundation bench, I should point out that Justice Mathew was a fairly consistent advocate for varying the applicable standard of judicial review depending on the subject involved. For instance, in Ambica Mills, he argued that laws regulating economic activity should “be viewed differently” from laws which concern freedom of speech and religion, voting, procreation, or criminal procedure. He would defer to legislative wisdom on economic laws and exercise greater vigilance in other areas (of course, his deference to economic laws was in the context of India’s flirtation with socialism during the 1970s!).
Aside from Gobind, I am hard pressed to find any major decision that either affirms or applies the “compelling state interest” standard. Rather, as Naz Foundation, itself, says in paragraph 25, after Menaka, any interference with life or personal liberty “must be right and just and fair and not arbitrary, fanciful, or oppressive.” This “just, fair, and reasonable” standard has been the generally applicable benchmark to assess governmental action for the past three decades now. One way to reconcile the apparent contradiction between paragraphs 25 and 75 in Naz Foundation would be to apply both standards together. In others words, every governmental action that violates a fundamental right must henceforth satisfy Menaka’s test of “just, fair, and reasonable” as well as Gobind’s requirement of furthering a “compelling state interest.” If this interpretation of Naz Foundation is correct, I’m afraid it is a rather radical restatement of the law.
Another way to resolve this conundrum would be to only apply the Gobind + Menaka formula to questions about penumbral or uncodified rights like privacy and health. Questions concerning codified rights would only have to meet the Menaka standard. But this solution would imply a higher constitutional bar for actions affecting penumbral rights than those actions affecting textual rights. This outcome would be irrational since penumbral rights are, in fact, derivatives of textual rights.
2. Substitution of Morality Standards. Let me turn now to the impressive manner in which Naz Foundation redefined the morality argument and turned it on its head. Rebutting the notion that public disapproval of homosexual conduct is an accurate barometer of morality, Naz Foundation brilliantly argues that it is “constitutional morality” rather than popular morality that ought to be the applicable yardstick. This aspect of Naz Foundation is, perhaps, what I like most about the case and underscores why I believe it is a landmark decision. The idea of a controlling “constitutional morality” is in, some sense, a continuation of the bench’s insistence on a secular approach in the judicial process case without risking a footfall into religious or sectarian ditches.
At the same time, I do not believe that Naz Foundation’s substitution of constitutional morality for popular morality is a silver bullet. Just consider the spaghetti bowl of inconsistent Supreme Court decisions on whether there is a constitutional right to trade in liquor or if it is res extra commercium. Some of our most enlightened justices have tied themselves up in knots over this issue because of their concern about its underlying moral implications. I should also point out that Naz Foundation does not imply that any morality-based legislation or governmental action is no longer permitted. Rather, it argues that mere public disapproval is an inadequate reason to restrict a fundamental right.
3. Implied Desuetude of Section 377. I want to end my discussion of morality in Naz Foundation by focusing on a most intriguiging sentence in paragraph 86, which reads:
In fact, the admitted case of the Union of India that Section 377 IPC has generally been used in cases of sexual abuse or child abuse, and conversely that it has hardly ever been used in cases of consenting adults, shows that criminalization of adult same-sex conduct does not serve any public interest.
In this passage, the court was referring to the Additional Solicitor General’s argument that Section 377 should be saved because it was not being enforced against homosexuals. The high court initially rejected this contention in paragraph 74 as contrary to evidence and testimony proffered by the petitioners. Yet, interestingly, the bench returns to this argument in paragraph 86, but only to turn tables on the government. It reasons that, if Section 377 has not been used to prosecute adult same-sex conduct, one can legitimately question whether such conduct should at all be criminally proscribed. In other words, if a statutory provision has fallen into disuse, why bother maintaining it?
Although Naz Foundation does not refer to it, there is, in fact, an old common-law doctrine called “desuetude” that supports this line of reasoning. This doctrine has, in fact, been recognized by the Indian Supreme Court in Municipal Corporation v. Bharat Forge, (1995) 3 S.C.C. 434, and it is a pity that it was not considered in this case. Perhaps, it was because petitioners were not confident that they could satisfy all the elements of the doctrine. For desuetude to set in, the statute in question must have been in disuse for a substantial period of time and some form of contrary practice must have evolved during this period.
4. The Equality Detour. As a threshold matter, I wonder why the bench even bothered addressing the equality argument. It had already resolved that Section 377 violated the penumbral fundamental right of equality-dignity, which was sufficient ammunition for its conclusion that Section 377 was unconstitutional. In fact, it is for this reason that the bench felt it was unnecessary to deal with the argument based on the fundamental freedoms in Article 19. Could not the same approach have been taken with respect to equality?
In my view, the equality section is Naz Foundation’s Achilles' heel. The discussion on equality begins with the bench conceding in paragraph 94 that Section 377 is facially neutral. Yet, the bench points out that the “sexual acts, which are criminalized are associated more closely with one class of persons, namely the homosexuals as a class” (emphasis mine). I’m afraid this part of the judgment is not completely watertight and may not convince an appellate court. As a textual matter, the section proscribes sexual acts involving carnal intercourse that are considered “unnatural” irrespective of whether they involve same-sex or opposite sex partners. Case law under the section shows that it has been used in prosecutions involving oral sex and anal sex. There is ample evidence to suggest that anal sex is not an exclusive homosexual preserve; many heterosexual couples routinely engage in it. And oral sex is commonly practiced by both same-sex and opposite sex partners. Therefore, this aspect of Naz Foundation could be particularly vulnerable on appeal.
To bolster its reasoning that Section 377 is hostile to gays, the bench cites Justice O’Connor’s opinion in Lawrence in which she held that the underlying statute in question targets homosexuals as a class. But what it fails to mention is that the Lawrence statute only targeted homosexual conduct; it was even called the “Texas Homosexual Conduct Statute.” This made it convenient for Justice O’Connor to find it violated the U.S. Constitution's equal protection clause. It is for this reason, that Justice O'Connor was able to file a concurring opinion in Lawrence (Justice Kennedy's majority opinion in that case was completely silent about equal protection). In fact, O'Connor remained unrepentant for her previous opinion in the Bowers Case, where the underlying statute, like Section 377, applied to both same-sex and opposite-sex conduct.
I entirely agree with Naz Foundation that, in implementation, Section 377 “does end up unfairly targeting a particular community.” However, I'm skeptical about whether the Supreme Court will accept this argument. There do not appear to be many cases in which a facially neutral law has been successfully challenged on the ground that it is enforced in a discriminatory manner. Perhaps, I'm influenced by what happened in Rathinam with respect to Section 309 of the Penal Code, which criminalizes an attempt to commit a suicide. Initially, the Bombay High Court struck down Section 309 on the ground of equal protection. It found that the provision did not provide adequate guidance and was susceptible to arbitrary application. However, the Andhra Pradesh High Court took a contrary view. The Supreme Court agreed with the Andhra Pradesh High Court, both in Rathinam as well as in Gian Kaur (which overruled Rathinam). Justices in both cases rejected the challenge to Section 309 on equal protection grounds. Don’t get me wrong; I strongly believe that Section 377 has a disparate and invidious impact on gays. I just don't think that this argument could be a winning one under prevailing Indian jurisprudence. I'll be very happy to be proved wrong.
5. The Dynamite of Non-Discrimination. I am still trying to unravel the true meaning of the high court’s holding on Article 15 (1). However, I must applaud the bench's precedent-setting conclusion that sexual orientation is a valid anti-discrimination marker under Article 15 (1). In fact, this aspect of Naz Foundation is sheer dynamite! If this holding is sustained on appeal by the Supreme Court, it has the potential to fundamentally reorder the Indian legal system. Just think about it. Article 15 (1) makes it illegal for the State to discriminate on various grounds, such as sex, place of birth, race, caste, or religion. If sexual orientation is now included as one of these prohibited grounds, several existing laws, including those that define marriage as being between a man and woman, are in constitutional jeopardy. Regretably, on this issue, the homophobic appellants before the Supreme Court do have a point.
6. Obiter on Horizontal Discrimination. In my view, the bench went on a “frolic of its own” by declaring in paragraph 104 that Article 15 (2), the Constitution's public-access provision, proscribes “horizontal discrimination” on the ground of sexual orientation. This was a completely unnecessary observation that had nothing to do with the underlying case. The writ petition did not contain any allegation about private discrimination against gays, and there does not appear to have been any substantial discussion of this issue during oral arguments. Therefore, I can only conclude that the bench misdirected itself to address this non-issue. Accordingly, I believe that the bench’s observations regarding Article 15 (2) are only in the nature of obiter.
7. Strict Scrutiny. Just as I take issue with Naz Foundation’s use of the “compelling state interest” standard under Article 21, I have serious reservations about its wisdom in needlessly importing the American doctrine of strict scrutiny to invalidate Section 377. As the bench admits in paragraph 110, the use of strict scrutiny has been decisively rejected by the Supreme Court in Ashok Kumar Thakur. Yet, Naz Foundation insisted that it could still use strict scrutiny based on the Supreme Court’s decision in Anuj Garg. The bench reasoned that, upon a “harmonious construction” of the two Supreme Court judgments, strict scrutiny would not apply to affirmative action, while it would to apply to disadvantaging measures targeting a vulnerable group based on personal characteristics.
I’m afraid I find the high court’s reasoning on this issue to be rather disingenuous for several reasons. First, Anuj Garg was a decision of a two-judge bench while Ashok Kumar Thakur was a constitution bench decision. Second, Ashok Kumar Thakur was the later decision, handed down several months after Anuj Garg; and ordinarily the subsequent larger bench decision should carry more weight than an earlier decision from a smaller bench. Third, there is nothing in Ashok Kumar Thakur to indicate that its refusal to apply strict scrutiny was only confined to affirmative action. Fourth, how do we reconcile the high court’s cute reasoning with the Supreme Court’s 2003 decision in John Vallamattom. The case involved the constitutionality of Section 118 of the Indian Succession Act (affecting the right of Indian Christians to make so-called death-bed charitable dispositions. It was not an affirmative action decision by any stretch. Yet, in it, Justice Khare said he was skeptical about the application of strict scrutiny in India.
I have the same concerns about using strict scrutiny to evaluate equality and equal protection claims under our Constitution as I do about using the “compelling state interest” standard to assessing fundamental rights violations under Article 21. The two American doctrines are, in a sense, two sides of the same coin. Strict scrutiny was invented to scrutinize classifications because the U.S. Constitution does not contain anti-discrimination provisions, such Articles 15 and 16, of our Constitution, and it requires a showing of a compelling state interest in order for a suspect classification to be upheld.
In India, our Supreme Court has generally applied rational-basis review to evaluate most classifications. From a tactical perspective, the bench could have applied this long-standing test and concluded, based on the evidence, that Section 377 flunked it. This would have been a better strategy, in my view, than subjecting Section 377 to a more stringent test, whose application is likely to be challenged before the Supreme Court.
8. Concluding Observations. Naz Foundation’s use of the severability-in-application doctrine is certainly a creative extension of the Supreme Court’s decision in Chamarbaugwala (ironically, that case advocated caution in the use of American precedents). However, I should note that the Supreme Court’s observations on severability, which Naz Foundation relied upon, were made in the context of legislative competence to enact a statute based on the division of powers between the centre and the states in the Seventh Schedule. They did not involve a statute that was found unconstitutional for violating fundamental rights. Be that as it may, Naz Foundation effectively used Chamarbaugwala to retain Section 377 on the statute book even though it was found to be unconstitutional on several grounds. I have some concerns about this Solomonic solution, but I respect the high court’s pragmatic decision under the circumstances.
Finally, my friend and classmate, Ramaswamy, offers an interesting alternative road that the high court could have taken in resolving this matter. According to him, the case could have been presented as a matter of statutory interpretation rather than constitutional law focusing on the phrase “carnal intercourse against the order of nature” in Section 377. The high court could have ruled that sex between consenting same-sex adults was not “carnal intercourse against the order of nature.” I leave it to you, our readers, to tell us what you think of this idea.
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