The writ petitioner was a subordinate judge in Jharkhand, who was dismissed by the Governor of Jharkhand on the recommendation of the Full Court of the High Court of Jharkhand. The process had begun with a confidential report of the Inspecting Judge of the Garhwa Civil Court which observed that the petitioner did not prepare his own judgments and got them prepared from someone else. The Chief Justice, based on the report, referred the matter to a Full Court, which considered the infraction serious enough to recommend the petitioner’s removal from the service. Article 311 of the Constitution provides that a person who holds a civil post under a State cannot be dismissed by an authority subordinate to that which appointed him, and but for exceptional circumstances, he may not be dismissed ‘except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges’. However, Article 311(2)(b), allows for an inquiry to be dispensed with ‘where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry’. The Full Court thought fit to dispense with an inquiry since “it was not practicable in the interest of the institution to hold an inquiry since it may lead to the question of validity of several judgments rendered by him”. The Governor acted on the recommendation and dismissed the petitioner from the service. This decision was challenged by means of a writ petition, on the ground that there had been no notice, no enquiry, insufficient evidence, and non-application of mind. It was further contended that the requirements for removal under Article 311 of the Constitution were not satisfied.

The Supreme Court examined the scheme of the Constitutional provisions, and observed that although the pleasure principle was incorporated in Article 310, this was subject to Article 311. The powers contained therein, in particular paragraph (b), “is an absolute power of the disciplinary authority who after following the procedure laid down therein could resort to such extra ordinary power provided it follows the pre-conditions laid down therein meaningfully and effectively”. On facts, the Full Court was entitled to come to the conclusion that it did, and the Supreme Court observed that the concern for the interests of the institution of the judiciary was a valid ground for dispensing with the enquiry.

The petitioner further argued that the satisfaction as to the need to dispense with the inquiry had to be that of the ‘authority empowered to dismiss or remove’ him. This authority, by virtue of Article 311(1) could not be subordinate to that which appointed him. Here, since the satisfaction was that of the Full Court and not the Governor, the petitioner argued that Article 311(2) was violated.

The Supreme Court rightly dismissed this argument. However, with respect, the reasons provided by the Supreme Court appear dubious. The Court held that the petitioner was a judge for the purpose of Article 233 of the Constitution, and hence was appointed by the Governor in consultation with the High Court. Further, “under the scheme of the Indian Constitution the High Court is vested with the power to take decision for appointment of the sub-ordinate judiciary under Articles 234 to 236 of the Constitution. The High Court is also vested with the power to see that the high traditions and standards of the judiciary are maintained by the selection of proper persons to run the district judiciary”. On this basis, the Court concluded that allowing the High Court to make an assessment for Article 311(2)(b) did not violate Article 311(1). However, a simpler and less controversial rejection of the argument was possible, based on the language of Article 311(2)(b). The provision only requires the appropriate authority be satisfied of the need to dispense with the inquiry, and needs to record the reasons for the satisfaction in writing. It does not provide that the satisfaction cannot be based on the recommendation of a subordinate authority, or that the satisfaction must be based on investigations conducted personally by the appropriate authority. Hence, unless complete non-application of mind on part of the Governor is alleged and proved, the fact that his satisfaction was based on a recommendation of the High Court does not fall foul of Article 311(2)(b).

In sum, this decision is a welcome example of judicial accountability, and a liberal approach being adopted in the interests of the judiciary as an institution.

Any person who is a member of a terrorist gang or a terrorist organisation, which is involved in terrorist acts, shall be punishable with imprisonment for a term which may extend to imprisonment for life or with fine which may extend to rupees ten lakh or with both. [emphasis supplied]

The provision cannot be simpler, or clearer in what it renders an offence. The membership of a terrorist gang or organisation (as defined in the act) is all that is needed for the purposes of section 3(5). In a disturbing exercise of judicial overreach, the Indian Supreme Court in Arup Bhuyan v. State of Assam, has seen it fit to toy with this clear expression of the Parliamentary intent.

I do not wish to enter into a debate on the moral or ethical validity of the TADA; I take issue solely with what the Court has done, and how it has gone about doing it. First, what has been done is that the words ‘who personally resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence’ have been added to the provision. Three possible explanations for this apparent exercise of legislative power emerge from the brief judgement-

(a)    Confessions are unreliable since “under torture he will confess to almost any crime. Even Joan of Arc confessed to be a witch under torture”. However, under section 15 of the TADA, confessions made to the police are admissible. Hence, the conviction under the TADA for being a member of the ULFA, based solely on the confession, is based on shaky foundations.

(b)   A decision of the US Supreme Court in Elfbrandt v. Russell (1966), which the same Bench had approved a month earlier in State of Kerala v. Raneef as being authority for the proposition that a person cannot be held guilty by association.

(c)    The provision violates Articles 19 and 21 of the Indian Constitution.

Let us consider each of these in turn.

As to the inadmissibility of confessions, the Court is absolutely right as to the possible infirmities confessions can suffer from. However, once that provision has been held to be constitutionally valid, as it has, suspicions about it cannot besmirch another provision of the same Act. What may have been open was to argue that the evidence was insufficient to conclude that the accused was the member of the terrorist organisation. However, that would require a detailed examination of the evidence, which the Court chooses not to engage in. It instead prefers to focus on section 3(5) of the Act, proceeding on the assumption that the accused is a member of the organisation.

As to the decision of the US Supreme Court, while much may be said for not proving guilt by association, if the Parliament in its (deemed) wisdom has chosen to depart from that principle, there is precious little the judiciary can do about it. The reference to the earlier decision in Raneef is also misleading, since that was an appeal from a rejected bail petition, where the learned judge had observed, “at this stage we are not expressing any opinion as to whether the allegations in the versions of the prosecution or defence are correct or not, as evidence has yet to be led. However, we would like to make certain observations”. That certainly is insufficient to constitute an approval of the US doctrine in the Indian context, especially when it flies in the face of the express statutory language.

Finally, the only potent arrow in the quiver is the challenge to the constitutionality of the provision. The Court chooses not to hold the provision unconstitutional, but to use to potential unconstitutionality to ‘read down’ the provision. For starters, adding a clause to a provision which is at odds with the clear Parliamentary intent cannot be called ‘reading down’ in any sense of the term. However, even if it can (since precedent may be cited of similar instances of reading down), there must be an examination of what the infirmity with the provision is. Unfortunately, the Court contents itself with saying, “In our opinion, Section 3(5) cannot be read literally otherwise it will violate Articles 19 and 21 of the Constitution. It has to be read in the light of our observations made above. Hence, mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence”. This statement does little more than identify what the applicable provisions of the Constitution are. We are left in the dark as to whether the provision fails on grounds of ‘reasonableness’ under Article 19, which clause of Article 19 it breaches, why it is not saved by the ‘established by law’ clause of Article 21, and similar questions.

Technically, it may be incorrect to refer to this decision as an exercise of judicial activism, since it can be justified as an exercise of judicial review. However, what is alarming is the nonchalance with which clear expressions of legislative intent are ignored, which cannot augur well for a balanced separation of powers between the institutions of governance.

One question that has often vexed me is that which presents itself in the following hypothetical-

A bench of five judges decides a particular case by a majority of 3:2, three of the judges coming to the conclusion X and two coming to the conclusion not-X. The minority of two, when coming to the conclusion not-X, relies on reasoning Y. Of the majority, two of the judges relied on reasoning not-Y in arriving at conclusion X. However, the third judge forming the majority agreed with the minority on reasoning Y, but for some reasons (maybe application to facts, or some countervailing principle) came to the final conclusion X. Now, in a subsequent case, if a lower Court is asked to decide on the validity of reasoning Y, is it bound by the fact that three of the judges in the previous case adopted reasoning Y? Or is it to ignore the reasoning of the minority, and hold that since two of the judges forming the majority adopted the reasoning not-Y, that is what is the ratio of the case? Is there a third option? Matters get further complicated if none of the judges forming the majority agree on the reasoning. In that case, if we have the three judge majority relying on reasoning Y, not-Y and Z respectively, what are lower courts bound by?

My initial view on this was based (in the absence of authority, which is usually an ominous sign), on the separation between the reasoning of a case, and the conclusion arrived at. I believed that although the majority may have come to the same conclusion on facts, the legal principles all the judges employed to arrive at their respective conclusions must be considered irrespective of whether the judges espousing those principles ended up in the majority or the minority. The reasons for this were two-fold: first, just because a judge disagreed on his assessment of facts did not seem a strong enough reason for ignoring his legal reasoning in arriving at his conclusion; secondly, for purely practical reasons, particularly in India, adopting the approach of ignoring the judgments of the minority would often leave lower courts with Supreme Court dicta with no real binding ratio (the decision in Kesavananda Bharati would be an ideal example).

Whatever my initial views may have been, I have now come across two sources that take the opposite stance- and given their stature in India and the United Kingdom respectively, I can do no better than defer to their wisdom. The Indian authority is Mr. Seervai, in his analysis of Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills, Delhi, AIR 1968 SC 1232. [“Birla Mills”] and the English authority is Lord Denning, in his decision in In Re Harper and Others v National Coal Board, [1974] Q.B. 614 [“In Re Harper”].

Birla Mills was a decision on the validity of delegated legislation, and involved the question of whether, and what kind of, guidelines are needed for an act of delegated legislation to be valid. It was heard by a Bench of seven judges, which can be broken down into three major factions: 2 judges held that valid delegation needs policy, and that the impugned enactment did not contain such policy guidelines^[i]; 2 concurred on the point that policy guidelines were necessary but held that, on facts, there was such policy;^[ii] and 3 held that no policy is needed, and hence the enactment was valid.^[iii] Hence, 5 upheld the law and 2 quashed it. If the question of whether policy is needed arose, applying the rule I considered ‘logical’, I would have thought that since four of the seven judges thought that policy is needed, that is the ratio of the case. However, Mr Seervai argues that the decisions of the 2 dissenting judges have to be ignored. Hence, one should only look at the 5 who upheld the law. Since, among these 5, three held that no policy is needed, that should be taken to be the ratio of the case.[iv]

Lord Denning MR takes a very similar stance in In Re Harper. The issue before the Court of Appeal was whether the period of limitation for a claim in negligence began from the date when the claimant was aware of the facts constituting negligence, or from the date on which he became aware of the cause of action being made out in law. The binding House of Lords decision on the issue was Smith (and Dodd) v. Central Asbestos Co. Ltd., [1973] A.C. 518 [“Smith”]. There, the two Law Lords forming the minority had held that the limitation period was to be computed from the date when the claimant became aware of all the material facts. Two of the Law Lords forming the majority held that the limitation period began from the date when the claimant became aware of his cause of action in law. Lord Pearson, the “odd man out” ( per Lord Denning), held that the relevant date was the date on which the claimant became aware of the material facts. However, he disagreed with the minority on what this date was, and held that the date was the same date on which the claimant had also discovered that he had a cause of action in law. In other words, Lord Pearson agreed with two judges on what date the limitation period began from, and with the other two judges as to what the test for determining this date was.

Lord Denning’s solution to this conundrum is best read in his own words-

How then do we stand on the law? We have listened to a most helpful discussion by Mr. McCullough on the doctrine of precedent. One thing is clear. We can only accept a line of reasoning which supports the actual decision of the House of Lords. By no possibility can we accept any reasoning which would show the decision itself to be wrong. The second proposition is that if we can discover the reasoning on which the majority based their decision, then we should accept that as binding upon us. The third proposition is that, if we can discover the reasoning on which the minority base their decision, we should reject it. It must be wrong because it led them to the wrong result. The fourth proposition is that, if we cannot discover the reasoning on which the majority based their decision, we are not bound by it. We are free to adopt any reasoning which appears to us to be correct, so long as it supports the actual decision of the House.

Applying these propositions to the decision in Smith, Lord Denning concluded that since the majority was not agreed on a single reasoning, there was no ratio that could be taken away from the case in terms of the correct reasoning. Hence, he does not rely on Smith as binding precedent and culls out the appropriate test from earlier precedent.

Before concluding, one important difference between Lord Denning’s approach and that adopted by Mr Seervai is to be noted. Lord Denning, in culling out “the reasoning on which the majority based their decision”, appears to require that all the judges of the majority should have agreed on a single line of reasoning. He does not hold that a subsequent Court is bound by the reasoning of a majority of the judges forming the majority (i.e. two judges out of a three judge majority). Applying this stance to Birla, since the majority disagreed on whether guidelines need to be laid down by Parliament, subsequent Courts would not be bound by any of the observations on whether guidelines are needed. This is different from Mr Seervai’s approach, and with due respect to him, seems preferable, for two reasons- first, it does not result in a minority of judges (numerically) laying down binding law for subsequent courts; and secondly, it ameliorates the concern over facts influencing binding legal precedent which I had mentioned earlier (as the basis of my initial view).

[ii] Justice Shah and Justice Vaidialingam.

[iii] Justice Sikri, Justice Hidayatullah and Justice Ramaswamy. Justice Sikri gave a separate opinion, but the basis of his decision was very similar to the other two.

[iv] Although the settled position in India today is that some basic guidelines are needed and that essential legislative functions cannot be delegated: In re Delhi Laws Act, AIR 1951 SC 332, that does not take away from Mr Seervai’s argument on the interpretation of Birla Mills.

The facts of the case are rather unfortunate. A man and woman cohabited for nine years, and also had two children from that relationship. However, after the nine year period, the woman was turned out of the house. She alleged that the man had assured her that he would marry her and had executed an agreement to that effect. This agreement was disputed by the man, who further argued that the existence of this agreement does not mean that he had induced ‘a belief of marriage’.

The relevant provision, section 493 of the IPC reads-

Cohabitation caused by a man deceitfully inducing a belief of lawful marriage

Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. [emphases supplied]

Thus, on the text, there are two major requirements of this section that were arguably not satisfied. (1) the woman should believe that she is lawfully married to the man, and not that she will be married to the man; and (2) that the cohabitation and sexual intercourse be in that belief. There is also an additional requirement that the conduct of the man be deceitful, but the satisfaction of that requirement would depend largely on the answer to the first of the two questions. It may have been arguable however, that even if the section included a belief that she will be lawfully married to him in the future, there is no deceit unless the man actually never intended to marry her.

It was based on the above reasoning that Justice Markandey Katju concluded that the man cannot be convicted under section 493, IPC. He accepts that the accused “has not behaved like a gentleman. He lived with the complainant for nine years and had two children by her, and hence as a decent person he should have married her which he did not do”. However, he bases his decision on the “difference between law and morality”. Especially given that the sole basis of the complainant’s argument was the agreement to marry, and not any ceremonies similar to those resulting in a marriage under section 7(1) of the Hindu Marriages Act, or the Special Marriages Act.*

Justice Gyan Sudha Misra, however, reaches the opposite conclusion. She begins by saying that, “While there is no difficulty in accepting the position that law and morality might stand on a different footing although they are inextricably linked in my perception, yet I agree that legal decision cannot be based purely on morality”. On the belief in the marriage, she says that “although no ceremony of marriage took place between them, but as per social custom prevailing in the District of Lohardaga among the members of the Oraon community, if a young man lives with a young girl in his house for a long period, she is deemed to be his wife which is recognized as marriage”. She also mentions that the voter lists in the area in the early 1980s mentioned them as husband and wife, and also the fact that they had solemnized the birth ceremony of their children.

This conflict brings about a very interesting divide in the approach to section 493. As discussed above, the provision penalises the deceitful inducement of the belief that the woman is lawfully married to the man. The primary allegation of the complainant here was that the accused had promised to marry her. Even Justice Gyan Sudha Misra does not expand the meaning of the section to include promises of marriage. What she does rely on is the fact that the couple conducted themselves as a married couple, or gave the appearance of being married. This is evidenced by their names in the voter lists, and by the solemnization of the birth ceremony of their children. However, the relevance of such evidence is suspect. It is certainly not relevant what impression was given to people other than the complainant. It may be arguable that this evidence is relevant if the complainant’s case is that such conduct gave her the impression that they were lawfully married. However, that cannot be the case if there was a specific agreement to marry, which was entered into after the said voter lists and the birth ceremonies. It may be arguable that she did not understand the terms of the agreement, but that is not something mentioned by Justice Misra. Hence, on the facts as they appear, her interpretation of the provision, with respect, seems wider than that which the provision permits.

None of this is to condone the conduct of the accused here. However, in keeping with the anecdote about the Lord Chancellor of England Sir Thomas More, the Courts should not convict a person because he is a “bad man”, unless the conduct which makes him so also results in him breaking a law of Parliament. Reading the provision as ‘cohabitation or sexual intercourse in a relationship resembling one of marriage’ will not only be a impermissible interpretation, but will also have far-reaching implications for live-in relationships. The decision as to where and how the line is to be drawn must no doubt lie with the Parliament. In the meanwhile, with the matter being referred to a higher Bench, only time will tell what approach the Apex Court chooses to adopt.

* Having casted aspersions in my earlier post on the decision of Justice Katju in Pushpa Vanti, I think it is only fair to express my complete agreement with him here, in resisting the temptation to go beyond what the law penalises in the search for ‘justice’. However, what this further establishes, in keeping with an argument Mihir makes vividly here, is that Justice Katju cannot really be classified as being for or against judicial activism.

At first blush, that seems like a dialogue from yet another Indian remake of a classic Hollywood movie, this time, the Jack Nicholson starrer- ‘A Few Good Men’. However, for better or for worse, the quote is from a recent decision of the Supreme Court of India in Pushpa Vanti v. Union of India. And the decision, while motivated by noble motives, joins a slew of other decisions where the Indian judiciary seems to have stepped far beyond the scope of its traditional judicial function.

The claim before the Court (the opinion has no mention of what the precise nature of the claim was) was concerned with the pittance that widows and family members of army officers were receiving as pensions. This is undoubtedly a valid concern. However, what I take issue with is (1) the Court seeing it fit to address this concern; and (2) the way it went about addressing the concern.

Both these form essential prongs of the argument against aggressive forms of judicial activism. The first of these prongs rests on the principle that under the model of separation of powers, no matter how loosely adopted, there are some things which the judiciary is not competent to adjudicate. This institutional incompetence arises from either concerns over the concentration of power in one wing of the Government, or from the very nature of the judicial function. However, given the legislative lethargy that hinders progressive changes in the law, the first prong of the argument against judicial activism may be taken to have lost some of its strength. However, the same cannot be said about the second.

Before proceeding any further, let me list what the Supreme Court has seen it fit to do in Pushpa Vanti-

(1)   They have directed the Central Government to set up within two months a Commission which shall be called the Armed Forces Grievances Redressal Commission

(2)   They have laid down the functions of this Commission

(3)   They have laid down the composition (including specific individuals) of the Commission, as also the pay scales

(4)   They have established its term, the location of its headquarters, and also that the building “must have sufficient rooms to provide an office for each member of the Commission”. (¶15)

(5)   Having directed the establishment of this Commission, they have referred the claim of Ms. Pushpa Vanti to this Commission.

Even if it is argued that the judiciary ought to take cognizance of such claims, with all due respect, I cannot get myself to see this as an acceptable way of addressing those concerns. This is as far as it can get from the true nature of the judicial function. That is not to deny that the judiciary in the past has passed orders can be considered to have been factually beneficial- Vishakha being a case in point. It also cannot be denied that such orders make for very good headlines. However, neither of these answer the fundamental question of whether these orders are in keeping with the proper exercise of the Court’s judicial function.

Access to justice, the content of justice and the mode of delivery of justice, are inter-connected, but essentially different things. Yes, it is justified to allow reduced formality in approaching courts for the protection of one’s fundamental rights. Indeed, that is what has been done with the concepts of PIL and epistolary jurisdiction. A massive step has already been taken in relation to the content of justice by the incessant expansion of Article 21 of the Indian Constitution, in the face of arguments by the like of Mr. Seervai. However, the ways in which the delivery of justice is being taken over by the judiciary, seriously threatens the very notion of a judicial function. In other words, if Courts have unbridled freedom over access, content and delivery, there is practically nothing that falls outside the scope of the judicial function.

Admittedly, there are cases where some remedy is better than no remedy. But that temporary relief should not be allowed to colour the grave institutional damage that such over-reach results in. And this is not to mention the diversion in focus from addressing real concerns in other areas of governance, by championing the never-ending expansion of the judicial function.

Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such single Judge in such appeal or from any decree passed in such appeal. [emphasis supplied]

Thus, by this amendment, the constitutionality of which was upheld by the Supreme Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India [AIR 2003 SC 189], no appeals could lie from appellate decisions of single judges of a High Court. The rationale for this, as explained by the Supreme Court, was that intra-court appeals unnecessarily increased the workload of the Court. This was especially so, since most of the appellate matters heard by single judges involved very small matters. In 1999, the section was amended to disallow appeals even from decisions of a single judge in ‘any writ, direction or order is issued or made on an application under Article 226 or Article 227 of the Constitution’ uk inflatable boats. But for this addition, the provision was substantially identical. However, this amendment was not brought into force (arguably wisely). Finally, in the development at issue in the discussion here, the provision was again amended in 2002 to read as follows-

Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, where any appeal from an original, or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge. [emphasis supplied]

At first sight, the provision seems substantially identical to the original provision introduced in 1976. However, there are two notable changes- first, appeals from original decrees and orders are also included within the scope of the provision. Secondly and more importantly, the decisions of the single judge from which appeals are barred have been narrowed to ‘judgment and decree’ as opposed to ‘judgement, decision or order’. While mere semantics in lay terms, legally speaking, there is a world of a difference between these two phrases. It was the issue of whether this world of difference should be attributed to legislative intent that was considered by the Supreme Court in Mohd. Saud v. Dr. Shaikh Mahfooz, MANU/SC/0893/2010.

In the case before the Court (the detailed facts are not mentioned in the judgment), there had been an interim order by a Civil Judge, from which an appeal had been filed before a Single Judge of the Orissa High Court. Against this decision, an LPA was sought to be filed before a Division Bench of the Court. The civil suit before the Civil Judge was still pending. This would fall straight within the scope of the provision as it stood in 1976. However, a creative argument for the appellant arose from the amended section 100A.

The counsel for the appellant argued that the decision of the Single Judge of the High Court was neither a ‘judgment’ nor a ‘decree’. While there has been more of a debate on the meaning of these terms than can be effectively summarised here, these terms usually refer to a decision which is a final disposal of the matter at hand. Interim orders are not classified as judgments or decrees. Thus, the argument was that orders passed by a single judge have been excluded by the 2002 amendment and hence an LPA against them can lie. Unfortunately for the literalists (whom I share sympathies with), while the Court considered this argument “plausible”, it ultimately rejected it as having “no merit”.

However, refreshingly, the rejection of the argument was not based on an antipathy to textual arguments but was based on the text of the provision itself, and the absurdity which the argument proffered would result in.cheap water slides

First, the Court observed that the first part of the provision spoke of appeals to the Single Judge from ‘decrees or orders’ but disallowed appeals only from ‘judgements and decrees’. While it is possible, in very specific fact scenarios, for this contradiction to make sense, the Court held that mentioning appeals from orders would not make sense of decisions from those orders were not within the scope of the section 100A bar.

Secondly, the Court rightly looked at the anomalous position that this interpretation would result in. It would mean that “against an interlocutory order of the District Judge there may be two appeals, first to the learned Single Judge and then to the Division Bench of the High Court, but against a final judgment of the District Judge there can be only one appeal”. This clearly could not have been the legislative intent, and hence, interpreting the provision purposively, the Court held that even orders by the Single Judge fall within the scope of section 100A.

Now, this decision certainly reads something into section 100A which does not appear from its text. Especially given that the 1976 and the 1999 versions had the same language, the changed language in 2002 stands out. Since legislative intent is to be gleaned from the text, and not from what is thought best, one may very persuasively argue that nothing should be read into section 100A. However, in cases like this one, the Court seems to have hardly any option. The discomfort of the Court is seen in the penultimate observation by the Court that “We are of the opinion that the apparent contradiction in Section 100A as amended in 2002 was only due to bad drafting”. There are many cases where the legislative intent is not clear when applying this doctrine could lead to problematic results. Whether the Court should step beyond the bounds of the statute and read in what the legislature supposedly intended is the subject of a never-ending debate. The least that the legislature can do is reduce the number of times we need to engage in that debate.

The facts of the Glanrock Estate v. Tamil Nadu, (the details of which are not necessary for the discussion here) concerned land reform legislation. By virtue of a constitutional amendment, a statute which had been held to violate Article 14 of the Indian Constitution was added to the Ninth Schedule. By such inclusion, the statute was put beyond the scope of judicial scrutiny, subject only to the basic structure challenge. It was this argument that was made by the petitioners- arguing that the amendment, adding a law violative of Article 14 to the Ninth Schedule, went against the basic structure of the Constitution and should be struck down. [This was also challenged as being in violation of the separation of powers under the Indian Constitution. However, this contention was rejected on the basis that there was no such direct assault on the judicial function, and the separation of powers model was in no way affected. This left only the Article 14 challenge standing.] On the face of it, this argument seems persuasive. The law was discriminatory and hence violative of Article 14; Article 14 has been held as being one of the basic features of the Constitution; by virtue of the amendment, the law was being given a new lease of life. These factors taken together made a strong case for the amendment being struck down as violative of the basic structure.inflatable abominable snowman

However, the Court rejected this contention- issuing a very important and, it is submitted, appropriate clarification regarding the scope of the basic structure doctrine. The Court noted that challenges to Constitutional amendments should be treated with far more circumspection than “ordinary law(s) of the land” (¶ 8, Justice Kapadia), going on to express its view on what the function of the basic structure doctrine is. In the words of the Court, “The  doctrine  of  basic structure is brought in as a window to keep the power of  judicial  review  intact  as  abrogation  of  such  a power would result in violation of basic structure” (¶ 8, Justice Kapadia). Thus, possibly influenced by the historical origins of the doctrine, the Court observes that its primary function is to safeguard the judicial review of legislation, and “overarching principle(s) in the Constitution” (¶ 8, Justice Kapadia). What then are these principles? The Court suggests that these are principles which, if changed, would require a large-scale rewriting of the Constitution (¶ 8, Justice Kapadia).

When an impugned  Act  creates  a  classification  without  any rational basis and having no nexus with the objects sought  to  be  achieved,  the  principle  of  equality before law is violated undoubtedly.  Such an Act can be declared to be violative of Article 14.  Such a violation  does  not  require  re-writing  of  the Constitution.  This would be a case of violation of ordinary  principle  of  equality  before  law. Similarly,  “egalitarian  equality”  is  a  much  wider concept.  It is an over-arching principle.

Admittedly, the Court goes on to elaborate a larger view of the principle of equality, suggesting that the amendment is not, in fact, a violation of ‘egalitarian equality’. It also observes that the “essence of the challenge” (¶ 6, Justice Kapadia) was in the context of the right to property, and that this right had been repeatedly diluted and enjoyed far from an exalted status in the Indian Constitutional framework. However, while this may make these observations obiter, they are still relevant, because of the Court’s repeated emphasis that the only function of the basic structure doctrine is “a constitutional limitation against parliamentary autocracy” (¶ 12, Justice Radhakrishnan). The right to equality does form a part of the basic structure, but only in its role as a facet of the rule of law. Thus, when the violation of the right to equality results in a breakdown of the rule of law, or the separation of powers, thus allowing the Parliament unbridled powers over governance and the Constitution, only then will the Court step in and strike down the actions of the Government.

What implications, if any, does this decision have for the future application of the doctrine? It was always accepted that not all fundamental rights form part of the basic structure. However, some rights like the right to equality and the right to life had been recognised as being more fundamental than other fundamental rights. This may have led one to believe that any law/amendment which violates these special rights also violates the basic structure of the Constitution. The Court has rejected this belief, holding that a mere violation does not suffice, unless the violation strikes at the rule of the law, the power of judicial review, or has the trimmings of Parliamentary autocracy. In other words, one may have thought earlier that the decision about whether a said amendment violates the basic structure is arrived at in two steps-

a)      Is the provision a part of the basic structure?

b)      Has the provision been violated?

Now, the Court has replaced (a) with the question- does the violation require a rewriting of the Constitution, or result in Parliamentary autocracy at the cost of judicial review? This change, though in most cases an inconsequential one, may go a long way towards narrowing down the application of the basic structure doctrine. Also, it may also please the critics of the doctrine, who see it as giving too much power to the judiciary as the protector of an undefined and unclear ‘basic structure’ of the Constitution. This is not to deny that ‘rule of law’, ‘judicial review’ and ‘Parliamentary autocracy’ can also be easily expanded. However, the decision, and the conservative stance adopted by the Court [a stance more than amply evidenced by Justice Kapadia’s opening line- “Some doctrines die hard.  That certainly is true of the doctrine of basic structure of the Constitution”], may just provide some fetters on the extent to which these inherently vague limitations on the powers of the Parliament may be interpreted expansively by the judiciary.

In a significant ruling, the Supreme Court on Friday said underworld don Abu Salem can be tried for offences inviting death penalty even though the Portugal government had laid a pre-condition that he will not be extradited if he was to be awarded capital punishment.inflatable water slides for sale

Both from the political and legal vantage points, this would be a most remarkable decision. However, given the prevailing judicial attitudes in the United States regarding its war on terrorism, it would not be too surprising a result. Several recent decisions of Courts in the United States have reaffirmed the non-binding nature of international law in domestic legal spheres (and invited some stern criticism), particularly in relation to the war on terror. Thus, it was only natural, that on reading the headlines about this apparently remarkable decision, I eagerly looked forward to examining this radicalism relating to terror from a comparative perspective.

However, on taking a look at the opinion of the Court itself, I was more than a bit disappointed: because fortunately (in law) or unfortunately (for those academically inclined) the Supreme Court in Abu Salem Abdul Qayoom Ansari v. State of Maharashtra, has said nothing of the sort. The assurance provided to Portugal was that Abu Salem would not be sentenced to death or life imprisonment (though he may be tried for offences usually punishable with those sentences). The Court was neither called on to, nor did it cast any doubts on the binding nature of this assurance. What was the real issue then, before the Court? It was rather simple really- can Abu Salem be tried for offences which are not explicitly mentioned in the application for extradition, if they are lesser offences than the ones which have been mentioned? For instance, if a person is extradited for the offence of murder, can he be tried for culpable homicide on a finding that the facts don’t make out an offence of murder? The Court, after a detailed survey of international law and the Indian statutory framework, came to the singularly unremarkable conclusion that the person can be tried for lesser offences.

Thus, the Court held that nothing prohibits Abu Salem’s trial for offences lesser than the ones for which he has been extradited, so long as he is not awarded the death penalty or life imprisonment. In the words of Justice Ganguly, who delivered a concurring opinion, “In the instant case the extradition has been allowed by the requested State on the specific undertaking of the Government of India that the extradited criminal will not be subjected to death penalty or imprisonment beyond 25 years. Therefore, the basic human rights considerations have been taken into account and the guidelines in Soering (supra) have been adhered to. Thus, primacy has been accorded to human right norms in the extradition process”. Thus, far from allowing the Indian Government to renege on its sovereign assurance, the Court allows the trial for lesser offences on the basis of that very assurance.

Now, I understand that the media cannot be expected to understand legal nuances- and minor misunderstandings of what the Court actually said may be pardoned, particularly when they refer to some complex legal issue, or issues of statutory interpretation. What I cannot understand however, is cases of such blatant misreporting- when the judges state in no uncertain terms what their conclusion is. It is even more disappointing that, of the leading newspapers in the country,* all but one (the Hindu) have completely missed the point the Supreme Court was making (the Hindustan Times, it must be admitted, did not impute the radical conclusion to the Supreme Court- but that is only because that report hardly says anything). Only the Hindu report actually seems to have been based on what the judges actually said.

It is interesting that just a couple of days back, Eesvan has also posted on the tendency of the Indian media to ‘tart up’ legal developments. I couldn’t agree with him more. I cannot speak with any authority on the quality of legal news reporting outside India, but here atleast, there is a crying need for newspapers to get their facts (and atleast the basics of the law) right before printing sweeping statements about current legal developments. A layman reading the morning newspaper cannot possibly be expected to refer to the actual decision of the Court every time s/he reads about some ruling of public interest, just to check whether the newspaper got it right. Given the times we live in, (with special emphasis on the much-awaited decision of the Supreme Court on the Ayodhya issue), such instances of misreporting are very likely to cause much more damage than a couple of blog posts flailing the media.

* By that, I mean the online versions of Times of India, DNA, Indian Express, Hindustan Times, and the Hindu. I also checked CNN-IBN.

The facts which led to the proceedings before the Supreme Court were fairly straightforward, but require a detailed reproduction. Land belonging to the Respondents 1-4 was acquired by the Appellant, but the compensation due for this acquisition was not deposited. The Respondents approached the Executing Court for the recovery of this amount, but despite the service of notice, no one appeared for the Appellant. As a matter of course, the property was put up for auction sale on 12/8/1992, and Respondent 5 was declared the highest bidder with a bid of 22,65,000/-. In the words of the Supreme Court itself, it was only after this that the Appellant “woke up from its slumber”, and filed objections under Order 21, Rule 90. The case was then fixed for the recording of evidence on four dates in March, April and May, 1993. However, on none of these dates did any one appear on behalf of the Appellant, leading to its objections being dismissed on grounds of non-appearance. The case was posted for confirmation of the sale to June 1993, on which date again no one appeared for the Appellants. The sale was confirmed, and the amount of compensation due to Respondents 1-4 was paid over, and the rest of the moneys are still lying in deposit in Executing Court. It was only after this that the Appellant filed a Miscellaneous Appeal before the District Judge, Ludhiana, challenging the validity of the orders. This appeal was filed two months and a few days beyond the period of limitation, and was hence dismissed by the District Judge. An application for condoning delay under section 5 of the Limitation Act was filed, but was also dismissed since sufficient cause for condonation of delay was not established. In the face of a specific bar created by section 104 of the CPC, the Appellant filed a second appeal before the High Court of Punjab and Haryana, which the Court was kind enough to treat as a Revision Application, which it proceeded to dismiss. It was against this that a Special Leave Petition was filed in the Supreme Court (again severely delayed, as appears on p. 5 of the judgment).

The above list of dates and events provides no indication of what sufficient cause allowed for a condonation of delay. Even the judgment is entirely silent on what reasons justified this lackadaisical attitude by the Appellant. The only reason put forth is that the erstwhile advocate of the Appellant before the Executing Court, Mr. P.K. Jain, had been appearing in several matters for it, and enjoyed the “implicit faith and confidence” of the Appellant. Since the matter had been contested “in right earnest right from the beginning”, and since “whatever best was possible to be done by the appellant that (sic) had been done”, even though there was “some delay”, it should have been condoned by the District Judge. The above quotes show that apart from blanket assertions, little was produced in the Court by way of concrete circumstances that justified the condonation of the non-participation of the Appellant in the execution proceedings. This was particularly necessary given that two courts (the District Court and the High Court) had come to the conclusion that sufficient cause was not established on facts.支架水池

On this unpersuasive account offered by the Appellant, the Court held that the District Court should not have dismissed the appeal on such a “hypertechnical” ground. It reiterated that an application for condonation should be decided as per the facts and circumstances of that case. The Court opined that the Appellant here had not been “absolutely callous and negligent” in prosecuting the matter. Inspite of the fact that the Appellant was an Improvement Trust and not a poor, indigent person, and inspite of the airy grounds put forth for condonation, one may persuade oneself that the Court was justified in arriving at this factual finding. Given bureaucratic loopholes and red-tape, as pitted against the imperatives of development and other such policy imperatives, one may make a case for siding with the Appellant. However, what one cannot make oneself see eye to eye with, is the observation that “unless mala fides is writ large on the conduct of the party, generally, as a normal rule, delay should be condoned”. For, with due respect to the liberal stance adopted by the Court, this observation turns section 5 of the Limitation Act on its head. The provision, in its relevant part, reads-

Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908) may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. [emphases supplied]

Clearly, under the provision, the burden is on the applicant to establish that he had sufficient cause for the delay. The above observation indicates that it is for the other party to establish that the delay is on account of mala fide, or occasioned by ‘callousness’ or ‘negligence’. Further, it is interesting to note that even section 5 does not apply to an application under Order 21 of the CPC. The likely rationale for this is that Order 21 deals with execution proceedings, which should be conducted without undue delays. Admittedly, the appeal before the District Court is not an application under section 5. However, in determining if a sufficient cause is established, the Court would have been expected to note the fact that the appeal was from a proceeding, which the legislature in its wisdom, has sought to fast-track. Indeed, if a condonation application before the Execution Court would not be permitted, it seems absurd to allow a condonation application on appeal before the District Court, especially when the matter before the Execution Court has been disposed off on grounds of non-appearance.

In sum, while the Court’s quest for justice must be appreciated, observations such as “justice can only be done when a matter is fought on merits and in accordance with law”, are both incorrect and contradictory. For dismissing the matter on grounds of the expiry of limitation or the lack of jurisdiction is as much ‘in accordance with law’ as disposing of it on merits. It can only be hoped that these observations are not adopted with too much vigour by lower Courts, or that they are watered down soon by the Supreme Court itself.

The position on corporate citizenship in India is laid down by the decision of the Supreme Court in State Trading Corporation v. Commercial Tax Officer, and its subsequent interpretations in RC Cooper, TELCO and Bennett Coleman. The Court in State Trading Corporation rejected the possibility of corporations being treated as citizens for the purposes of Article 19. This position has not been challenged or doubted by any subsequent dicta and now forms a fairly settled proposition in Indian Constitutional Law. However, what is of interest is way this position has come about, and how Citizens United may become an important influence in India should the question of political speech of corporations arise in the future.kids inflatable toys

Before going any further, let me clarify why the ‘citizenship’ of a corporation assumes particular relevance in the case of Article 19. The Fundamental Rights conferred by Part III of the Indian Constitution, can be broadly categorised into those that confer rights on all persons and those that confer right on all citizens. Article 19, in clause (1)(a) of which the right to free speech is ensconced, belongs to the latter category. Thus, unlike in the United States, for claiming the right to free speech under the Indian Constitution, the petitioner must establish status as a citizen. Citizenship in India is governed by the Indian Constitution and the Citizenship Act, 1955, neither of which specifically provides for corporate citizenship. In fact, the Citizenship Act excludes juristic persons from its scope. However, in State Trading Corporation, it was argued that neither the Constitution nor the Act is exhaustive of the concept of citizenship, and that the common law concept of citizenship must continue under Article 372 of the Constitution. However, the Court (Justices Das Gupta and Shah dissenting) rejected these arguments- holding that the concept of citizenship is restricted to natural persons; atleast unless the Constitution or the Act is amended to include the concept of corporate citizenship.giant inflatable ball australia

There are three schools of thought that can be traced across the opinions of the judges in State Trading Corporation- (i) the majority with its emphasis on the independence of the corporate form, and the consequent deprivation of status as a citizen; (ii) Justice Das Gupta’s dissent, treating a corporation as little more than an association of persons, and allowing citizenship; and (iii) Justice Shah’s dissent, upholding independent corporate personality, and also confirming its status as a citizen. A closer look at these three views makes this case and Citizens United seem oddly similar.

In his opinion for majority, Justice Hidayatullah emphasises the significance of independent corporate personality, observing that,

Unlike an unincorporated company, which has no separate existence and which the law does not distinguish from its members an incorporated company has a separate existence and the law recognises it as a legal person separate and distinct from its members. This new legal personality emerges from the moment of incorporation and from that date the persons subscribing to the memorandum of association and other persons Joining as members are regarded as a body corporate or a corporation aggregate and the new person begins to function as an entity. But the members who form the incorporated company do not pool their status or their personality. If all of them are citizens of India the company does not become a citizen of India any more than if all are married the company would be a married person. The personality of the members has little to do with the persona of the incorporated company. The persona that comes into being is not the aggregate of the personae either in law or in metaphor.

A more coherent defence of independent corporate personality will be hard to find. Relying on the distinction between person and citizen, used in Chapter III, as also between the concepts of nationality and citizenship, the learned Judge held that a corporation may be a person, may have a nationality, but cannot be a citizen. Just like with Justice Stevens’ minority opinion in Citizens United, Justice Hidayatullah asks the petitioners to prove that the drafters intended that a corporation be treated as a citizen. Keeping in mind the context in which the term ‘citizen’ in used in many parts of the Constitution, he holds that the drafters must have intended not to treat corporations as citizens. Further, since it is independent from its members, the citizenship of its shareholders would also not confer that status on the corporation. On this basis, the petitioners claim was rejected.

Justice Das Gupta’s dissenting opinion is similar to Justice Scalia’s opinion in Citizens United, both in brevity and ideology, differing primarily (and I daresay expectedly), in the degree of vehemence and vitriol. Justice Das Gupta casts the question as “whether the framers of the Constitution when conferring some fundamental rights on citizens only intended-that citizens forming themselves into a corporation would cease to enjoy these rights”. Answering this is in the negative, he holds that irrespective of whether citizens are claiming in their individual capacity or as a corporation, their rights must be protected. This is almost identical to the opinion voiced by Justice Scalia- where the corporation is viewed as a vehicle through which citizens exercise their rights.

Justice Shah’s dissenting opinion serves as a rare example of upholding both independent corporate personality and corporate citizenship. In some ways, it provides an example of what could have been (but apparently was not) the basis of Justice Kennedy’s opinion for the Court in Citizens United. He proceeds on the assumption that corporations have the same competence as natural persons, except insofar as expressly limited by law, or by their artificial personality. He sees no issues with the fact that a corporation may not be able to exercise all the roles which are available to a natural person under the Indian Constitution. To the contrary, he observes a corporation is free to exercise its citizenship rights, albeit limited in scope. In so doing, he not only grants corporations citizenship, but also also upholds the sanctity of the corporate form, explicitly arguing against piercing the veil and basing citizenship of the corporation on that of its shareholders. In his words,

If the place of incorporation and the centre of management of its affairs do not confer right of citizenship upon the company, it would be impossible to project the citizenship of the shareholders upon the company so as to enable it to claim this reflected right and on that basis to claim relief for breach of fundamental rights.

Thus, after State Trading Corporation, the position of law settled in India was that corporations are not citizens, and that the veil cannot be lifted to grant them Constitutional rights on the basis that their shareholders are citizens. On the latter of these propositions, Justice Hidayatullah’s view is possibly obiter (for reasons explained by Krishnaprasad, the counsel for State Trading Corporation did not call upon the Court to lift the veil), but that point is merely academic, since in TELCO, the Court interpreted State Trading Corporation as authority against lifting the veil. The only way left for a shareholder was to establish that the State action deprived him/her of Fundamental Rights, independent of the corporation (RC Cooper).

The next step in the story comes with Bennett Coleman, where the Court seems to have departed from the latter of the propositions. The facts here involved restrictions on the printing and publishing of newspapers. Using past precedent in Sakal Papers and Express Newspapers, the Court drew a distinction in the case of media corporations. The Court, speaking through Justice Ray, observed that the right to free speech in Article 19(1)(a) includes the right to free press. By so emphasising, the Court seems to have carved an exception to the ‘no corporate citizenship’ rule in the case of media corporations. This is especially so, since the Court does not challenge the proposition that a corporation is not a citizen, contenting itself with distinguishing State Trading Corporation and TELCO on the basis that “There are however decisions of this Court where relief has been granted to the petitioners claiming fundamental rights as shareholders or editors of newspaper companies”. Thus, Bennett apparently left the apple-cart undisturbed, except for allowing media corporations and newspapers to claim the right to free speech.

Viewed in this light, the decision in Bennett Coleman again expresses the same views as those which influenced Justice Kennedy in Citizens United. There too, Justice Kennedy has made the protection of media corporations one of the primary bases of his decision. However, such a similarity between the two legal positions is at odds with the respective Constitutional frameworks. In the United States, the freedom of the press is expressly provided for by the First Amendment. In the Indian Constitution, there is no independent protection for the press, and it is traced only to the general protection of the freedom of speech and expression. As Seervai points out, while both Constitutions thus protect the freedom of the press, it enjoys a more exalted status in the American Constitution, and this is one situations in which this difference assumes significance. Given that the freedom of press derives from the right to free speech and expression and is not independent of it, any restrictions of the scope of the latter should also restrict the former. Thus, if State Trading Corporation holds that the freedom of speech and expression is not available to a corporation, there seems to be little authority for carving out an exception for media corporations. However, that is precisely what Justice Ray does in Bennett Coleman, apparently upsetting the apple-cart more than appears at first sight.

What then emerges from the above, more than slightly tedious discussion? And what significance, if any, does all of it have for the right of a corporation to political speech? No decision to my knowledge has specifically considered the Constitutionality of section 293A of the Companies Act (which regulates the political contribution by companies). However, the application of Bennett Coleman to political speech by corporations poses an interesting question. Will Bennett be interpreted as meaning that corporations can enjoy the right to freedom of speech, or will (as is more likely) Bennett’s ratio be restricted only to the freedom of the press?

Whatever the answer, if any, to the above questions, one can’t but help leave this discussion without a healthy degree of fascination at the similarities between the views expressed in Citizens United and the decisions that have shaped the Indian law. This is particularly fascinating since the Constitutional frameworks are anything but similar- there is no ‘citizenship’ restriction in the US Constitution, and there is no express mention of the freedom of press in the Indian Constitution. However, notwithstanding these differences, both jurisdictions have considered largely similar factors, and arrived at seemingly similar positions- the United States protection of political speech rests on Justice Scalia’s dilution of corporate personality; and the only way political speech of Indian corporations would be protected is by viewing it as speech by its members or shareholders. Only time will tell whether these commonalities assume more than mere academic significance, and whether Citizens United plays any role in shaping the Indian law on political speech.

*An excellent discussion on the decisions in State Trading Corporation and Bennett Coleman, and their implications for the concept of lifting the veil, is provided by Krishnaprasad KV, in the latest issue of the National Law School of India Review. Credit is due to that article for providing a very useful framework of the law, on which I have based parts of this discussion.