The ‘disastrous effect’ of lockdown and Abrogation of Article 370

[This is a post by Suvechha Sarkar, Contributing Member]

Introduction

The situation regarding the coronavirus pandemic had been getting worse since the last two months and is deteriorating till now. It is known to us that there is massive lockdown throughout the nation, the effects of which still persist and have been huge on the whole country including that of unemployment, hunger, migrating worker’s crisis etc. This issue has almost put the matter of the Indian Government’s revocation of the special status which was given by Article 370 of the Indian Constitution.

The indefinite curfew which was imposed on Jammu and Kashmir was the result of the extension of the state of emergency, invoked under Article 356.

What is Article 370 about?

Article 370 of the Indian Constitution gave a special status to Jammu and Kashmir. The history of it dates back to the time when India had just gained independence and there were many princely states existing independently. The Indian Government made all the other princely states to be annexed within Indian states but Jammu and Kashmir became one of the most disputed areas with Pakistan wanting its control over it and the residents opting for independent status.

To solve this dispute, it was proposed by the representatives of the constituent assembly that only the clauses of the original Instrument of Accession should be applicable on Jammu and Kashmir. The rest of the Constitution of India would not apply to them. They would be provided with autonomy and when the State’s Constituent Assembly would be formed, it would further decide on the matters of the State. Thus, the State had its own functioning Constitution. Non-residents were not allowed to buy lands in Jammu and Kashmir except the permanent residents, along with this article and under the Article 35A which was in turn in violation to the Article 14 of the Indian Constitution which stated: “Equality before the Law”.

Why the Article 370 was revoked and how was it done?

In April 2018, it was stated by the Supreme Court of India that Article 370 had gained a state of permanency as the State Constituent Assembly was ceasing to exist. It was at this point that the Government opposed the ruling of the Supreme Court and thus, claimed Article 370 as “inoperative” in spite of its sheer existence in the Constitution. On 5th August 2019, the President issued an order namely- the Constitution (Application to Jammu and Kashmir) Order, 2019 thus suspending the Constitution (Application to Jammu and Kashmir) Order, 1954. By the issuing of this Presidential Order, it was declared that all the provisions of the Indian Constitution were applicable on the State. The President’s rule was imposed thus negating the role of the state’s Governor and Jammu and Kashmir came under the list of the Union Territories.

Talking about how the revocation was made, we have to discuss the clauses which were present in the following Article. The President issued the order with the “concurrence of the Government of State of Jammu and Kashmir”. As the State Constituent Assembly ceased to exist, the President took control of the state by invoking Clause I of Article 370, which clearly stated that in this situation the President had the power to modify and change the subjects related to Jammu and Kashmir on the Indian Constitution. In order to carry out this power, the first change was made by him in Article 367 and a new clause was added because this Article dealt with the interpretation of the Indian Constitution.

The phrase “Constituent Assembly of the State” was replaced with “the Legislative Assembly of the State”. As the State Constituent Assembly was suspended, the Legislative Assembly needed to be referenced on the following matter, to which the Order stated that any reference made to the Legislative Assembly would be interpreted as a reference made to the Governor of Jammu and Kashmir. The Governor of the State is appointed by the President, who in turn works mostly on the advice of the Cabinet and the Prime Minister. Consequently, it would mean that the central Government would be functioning in place of the State Legislative Assembly.

The passing of the Resolution

The Home Minister of India moved the Resolution in the house of Rajya Sabha in order to provide the President with any kind of additional recommendations or suggestions on the Order. The Resolution was being highly debated and was passed by the Rajya Sabha with 125 votes i.e., 67% of the total votes in its approbation on 5th August 2019 and with 61 votes i.e., 33% of the total votes against it.

The bill was sent to the Lok Sabha for its reorganisation and after much debate, the bill was passed with 370 votes i.e., 86% of the total votes, in its favour and 17 votes i.e., 14% of the total votes against it on the 6th of August, 2019. Alongside with the resolution for reorganisation, the resolution which recommended the revocation of Article 370 was passed with 351 votes in its approbation and 72 against it.

Part II of the Jammu and Kashmir Reorganisation Act of 2019 clearly stated that:

3. On and from the appointed day, there shall be formed a new Union territory to be known as the Union territory of Ladakh comprising the following territories of the existing State of Jammu and Kashmir, namely:— “Kargil and Leh districts”, and thereupon the said territories shall cease to form part of the existing State of Jammu and Kashmir.

4. On and from the appointed day, there shall be formed a new Union territory to be known as the Union territory of Jammu and Kashmir comprising the territories of the existing State of Jammu and Kashmir other than those specified in section 3.

This part stated that the governance of the state would directly go to the President thus taking away the autonomous power of the State, which was now turned into a Union Territory.

The effects of lockdown in the “Heaven on Earth”

A year has passed with the revocation of Article 370. The conditions in Jammu and Kashmir have not got any better. Long before the lockdown due to pandemic situation, the state had been going through several curfews, lockdowns, restrictions on communication mediums and also the infringement of various fundamental rights due to the imposition of the State of Emergency under Article 356. Various political leaders had been arrested including the previous chief minister of the State.

The revocation of autonomy of the State had spurred up the residents which led to massive protests and widespread unrest. The Right to access the internet of the state was being taken away as the connection was being cut off except for some of the working agencies. This infringed their Right to Privacy. It subsequently has separated the whole valley from the rest of India as well as the rest of the world. There are no particular judgements by the Supreme Court regarding the question of whether the Right to access the internet is a fundamental right or whether it falls under the Right to Privacy. In the famous case of Faheema Shirin v. State of Kerala and ORS, it was stated that it falls under the Right to Education and Privacy under Article 26 and Article 21 of the Indian Constitution.

The voice of Kashmir has been further diminished by the limitations imposed on the newspapers and press release there, thus infringing the Right to information of the people living there. The Indian Supreme Court had been flooded with several pleas regarding the lockdown which mainly consists of petitions of Habeas Corpus. While some of the pleas have been heard, several others are still pending which consists of petitions challenging the revocation of Article 370, and against the atrocities which are being committed in the State.

Conclusion

There is no free flow of information, no internet or broadband connection, no proper security or no proper means for the people of Jammu and Kashmir till today, even after more than 1 year of the revocation has passed away. The “Heaven on Earth” may be easily compared to “hell” at the present.

The whole of India has been silent and the world is still unaware of the problems which the residents are facing. Human Rights are being threatened each and every day. Being citizens of the same country, it becomes our duty to stand beside our fellow brothers and sisters instead of turning a blind eye. The delays in the hearing of the Petitions, the ignorance of the population has been the big question as to when will the lockdown in Jammu and Kashmir be lifted and when will the “Paradise” return to its previous beautiful and peaceful state.

(The views are personal)

Gender Equality or Religious Beliefs: Conflicting Rights?

[This is a post by Panya Mathur, Contributing Member]

“Religion is regarded by the common people as true, by the wise as false, and by the rulers as useful.” -Lucius Annaeus Seneca

Through this article, I intend to introduce the concept of Right to Religion as well as Right to Equality as enshrined under the Constitution of India. I will be discussing the scope of these rights in detail and will be commenting briefly on the case of Indian Young Lawyers Association v. State of Kerala, popularly known as the Sabrimala Judgement, which is a landmark judgement that shines some light on the conflict between these fundamental rights.

Right to religious freedom

Articles 25 to 28 of the Constitution of India provide the right to freedom of religion. The right to practice any religion freely is provided under Article 25 of the Constitution of India.

Under Article 25, two distinct terms namely religion and conscience have been conceptualized. While the bare constitution makes no mention of these aforementioned terms, the jurisprudence of the courts has laid down comprehensively the meaning and boundaries of the term ‘religion’. In one of its earliest cases, Comm., Hindu Religious Endowments Madras v. Sri Lakshmindru Thirtha Swamiar of Sri Shirur Mutt, the Supreme Court has laid down extensively the meaning and ambit of ‘religion’,

“…religion is certainly a matter of faith with individuals or communities and not necessarily theistic… a religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well- being, but it would not be correct to say that religion is nothing else but a doctrine of belief…it may prescribe rituals and observances, and modes of worship…might even extend to matters of food and dress.”

On the other hand, Article 26 of the Constitution of India guarantees to every independent religious denomination the right to manage its affairs and maintain institutions for religious purposes and to manage and maintain the same. The interpretation of the term ‘religion’ for the purposes of Article 26 of the Constitution is a set of practices that have its belief in a basic set of doctrines and beliefs that the followers of such religion base their very spiritual well-being depend upon. The case of S.P. Mittal v. Union of India laid down a three-part test to determine whether a said group of religious worshippers can be construed to be a religious denomination for the purposes of Article 26 of the Constitution of India:

1.  Must be a collection of individuals who have a set of beliefs or doctrines which they regard as conducive to their spiritual well-being;

2.  A common organisation;

3. A distinctive name;

These two articles form the very basis of the fundamental right to practice a religion of choice to every citizen of the country. However, the rights enshrined under Article 25 are subject to public order, morality and health. Morality, in itself a very ambiguous and broad term, which gives rise to a plethora of interpretations across the population. Even the courts have failed to clarify the scope of the term ‘morality’ through its judgements and have resorted to an approach that differs from case to case.

Right to Equality

Article 14 of the Constitution of India mandates that the State shall not deny to any person equality before the law or equal protection of laws. It reads as:  “Equality before law. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” The permissible classification must satisfy the twin sets, namely:

(i) the classification must be founded on an intelligible differential which distinguishes persons or things grouped together from others left out of the class, and;

(ii) such differentia must have a rational relation with the object sought to be achieved by the legislation.  

In the case of Budhan v. State of Bihar, the Hon’ble Court stated that the validity of the Act depends on the object of the legislation in view and whatever has a reasonable relation to the object or purpose of the legislation is a reasonable basis for classification of the objects coming under the purview of the enactment. The court further stated that what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It has been a well-settled principle by the Supreme Court in the case of FN Balsara v. State of Bombay that in every form of classification, there would exist some form of inequality, and the mere existence of such inequality is not enough to violate Article 14 of the Constitution.

It can be very well conferred from the various judgements pronounced by the Supreme Court that if a particular belief is deeply rooted in the various practices of the worshippers of a particular religion, then there exists a reasonable nexus between the object of the legislation and the classification itself; therefore, making the religious practice valid, and not arbitrary.

However, it is pertinent to note that Equality and non-discrimination are certainly one facet of Constitutional Morality. However, the concept of equality and non- discrimination in matters of religion cannot be viewed in isolation. Constitutional morality requires the harmonization or balancing of all such rights, to ensure that the religious beliefs of none are obliterated or undermined. (Constitutional Morality viz-a-viz will be discussed later on this blog)

Sabarimala Judgment

A five-judge Constitutional bench of the Hon‘ble Supreme Court ruled 4:1 in favour of allowing women of all ages to enter the temple and found the practice prejudicial in its very essence and that it violates women‘s right to practice religion. It also ruled that the devotees of Lord Ayyappa do not constitute a separate religious denomination as they do not have any common religious tenets specific and different to themselves other than those which are customary to the Hindu religion. The verdict established the principle that individual freedom prevails over professed group rights, even in religious matters and relooks at the stigmatization of women devotees based on a medieval perspective that menstruation symbolizes impurity and pollution. It declares that the exclusion on the basis of impurity is a form of untouchability. Justice Indu Malhotra, however, delivered a dissenting opinion. She argued that constitutional morality in a secular polity, such as India, requires a ‘harmonisation‘ of various competing claims to fundamental rights. She stated that the Court must respect a religious denomination’s right to manage their internal affairs, regardless of whether their practices are rational or logical. Justice Indu Malhotra also highlighted that the primary reason for the imposition of this custom is the very well-being of the idol itself and that the well-being of the idol can be translated to the well-being of the devotees thereunder and since such ideas are distilled into the human brain to be a part of one’s religious practices itself, it becomes a part of the person’s faith and therefore, cannot be violated by demolishing such faith under the guise of superstition or irrationality.

This judgement gave rise to a rather heated debate where citizens began to criticize the apex court for overreaching its judicial powers. Academicians across the country believe that notions of rationality cannot be invoked in matters of religion by courts and the apex court should have refrained from doing so. But some people also celebrated the decision as they believed that the practices which legitimise menstrual taboos due to notions of purity and pollution, limit the ability of menstruating women to attain the freedom of movement, the right to education, and the right of entry to places of worship and eventually their access to the public sphere. It is, however, fairly disappointing that not a lot of attention was paid to the constitutional framework that was discussed in this case and how the principle of harmonious construction was held to be of grave importance.

A five-judge Constitutional bench of the Hon‘ble Supreme Court ruled 4:1 in favour of allowing women of all ages to enter the temple and found the practice prejudicial in its very essence and that it violates women‘s right to practice religion. It also ruled that the devotees of Lord Ayyappa do not constitute a separate religious denomination as they do not have any common religious tenets specific and different to themselves other than those which are customary to the Hindu religion. The verdict established the principle that individual freedom prevails over professed group rights, even in religious matters and relooks at the stigmatization of women devotees based on a medieval perspective that menstruation symbolizes impurity and pollution. It declares that the exclusion on the basis of impurity is a form of untouchability. Justice Indu Malhotra, however, delivered a dissenting opinion. She argued that constitutional morality in a secular polity, such as India, requires a ‘harmonisation‘ of various competing claims to fundamental rights. She stated that the Court must respect a religious denomination’s right to manage their internal affairs, regardless of whether their practices are rational or logical. Justice Indu Malhotra also highlighted that the primary reason for the imposition of this custom is the very well-being of the idol itself and that the well-being of the idol can be translated to the well-being of the devotees thereunder and since such ideas are distilled into the human brain to be a part of one’s religious practices itself, it becomes a part of the person’s faith and therefore, cannot be violated by demolishing such faith under the guise of superstition or irrationality.

This judgement gave rise to a rather heated debate where citizens began to criticize the apex court for overreaching its judicial powers. Academicians across the country believe that notions of rationality cannot be invoked in matters of religion by courts and the apex court should have refrained from doing so. But some people also celebrated the decision as they believed that the practices which legitimise menstrual taboos due to notions of purity and pollution, limit the ability of menstruating women to attain the freedom of movement, the right to education, and the right of entry to places of worship and eventually their access to the public sphere. It is, however, fairly disappointing that not a lot of attention was paid to the constitutional framework that was discussed in this case and how the principle of harmonious construction was held to be of grave importance.

Concluding Remarks

The philosophy of testing religious practices under the ambit of only Article 14, and the principles of rationality that it engages in, is in primary derogation of the Constitution in itself. By only applying the twin test laid down in Article 14 of the Constitution i.e. the fact that there should be a reasonable nexus between the object of the law and the very concept of intelligible differentia, the fundamental right protected under Article 25 of the Constitution of India is left untouched and undiscussed.  Furthermore, as discussed in the case of Bijoe Emanuel & Ors. v. State of Kerala & Ors, this Hon’ble Court laid down that the personal view of judges are irrelevant in ascertaining whether a particular religion or a belief followed therein should be protected under Article 25(1) of the Constitution of India. Unlike the Article 25 of the Constitution of India, which is subject to the other provisions of Part III of the Constitution, Article 26 is subject only to public order, morality, and health, and not to the other provisions of the Constitution of India. And as a result, the Fundamental Rights of the religious denominations are not subject to either Articles 14 or 15 of the Constitution. And thus, the principles of equality and non-discrimination as enunciated by Articles 14 and 15 are grossly inadequate in limiting the freedom to manage religious affairs under Article 26. The characterization of age may form a reasonable basis for the object of specific legislation. On satisfying both the parts of the twin test aforementioned, the statute must be held to be valid legislation. As already proved that the decision of the temple board is deeply based in the beliefs of the worshippers of the temple therein, there exists a reasonable nexus between the object of the legislation and the classification itself; therefore, making the classification valid, and not arbitrary.

(Note: In my next article, I will be focussing more on the aspect of essential religious practices as defined under Article 25 and its scope with special reference to Article 13 and 17 of the Constitution of India, in the light of the principles established by the Supreme Court in the Sabrimala Judgement. Access the Article here.)

Executive Aggrandisement and Democratic Backsliding in India: A Conceptual Analysis

In the starting of the year 2020, there was a headline that “India falls to 51st position in Democratic Index” by a survey done by the Economist’s Intelligence Unit. Further back in 2018, the Indian National Congress, the main opposition party in the Parliament, launched a campaign called “Save the Constitution”. There are many incidents and events wherein the People claim that democracy is dying. Is democracy really crumbling?

The Constitution of India is based on democratic principles and the very democracy has been jeopardised by the elected government in the past (as well). But now it is not like the 20th century when we saw Mrs Gandhi’s emergency of 1975 and military coup in Pakistan (coup d’état by Musharraf), which shattered the democracy and the democratic principles of India and her adjoining neighbour. But how is the situation in 2020 different from 1975?  What we are witnessing now is not ‘shattering’ of the democracy, it is more like a gradual erosion. A democratic decay.

The Indian Constitution has established three organs of the state: Judiciary, legislature and executive, each of them are assigned a definitive sphere of powers and functions. To check upon these institutions, we have the idea of “Constitutionalism”— which is, various sorts of accountability demand to keep a check on the powers of the organs of the state in the form of rights against the state, limiting the scope of the authority of the organs among various other checks. Herein, a question arises, despite all these checks then how is the democracy backsliding or decaying in India in 2020?

Executive Aggrandisement and democratic backsliding

Democratic backsliding, as Bermeo says, is “the state-led debilitation or elimination of any of the political institutions that sustain an existing democracy”, which basically means that when the state eliminates or dismantles the aforementioned “checks” on its powers to sustain themselves in power. Backsliding happens precisely where oppositions are already incapacitated by electoral failures and other internal divisions like lack of leadership. In parliamentary democracies, like India, the political executive is discerned as the “sole repository” of the democratic mandate, which is the Modi-led-Cabinet in India (as the Executive’s political party, i.e. the BJP is mostly in majority in the legislature). In the book, “Constitutional Democracy in Crisis?”, Elkins states that “most, if not all, of the concerns regarding constitutional democracy, has to do with an executive”. When this executive weakens the checks on executive power by a series of institutional changes that hamper the power of opposition (accountability seeking) forces to challenge executive preferences, this ‘kind of’ democratic backsliding is called “Executive Aggrandisement”. The values of constitutionalism and democracy are hampered by the aggrandisement of the executive; institutional accountability is the key and inseparable from the “efficient institutional design”. The change brought by the democratically elected executive in weakening the checks upon itself is often done by labelling independent checking institutions as “anti-establishment/anti-government” or by “packing them with the cadre of their political party”, as reflected by Professor Khaitan of Oxford University. When there is a crisis of executive accountability, we can witness gradual erosion of accountability-seeking mechanisms such as 1. Electoral accountability (there is always fear and probability of electoral fraud and tampering, see here and here); 2. Accountability by the judiciary (power of judicial review, see Article 13) and legislature (see Article 74 and read here); and 3. Accountability to civil societies, media and the academics (read here and here).

The accountability to the legislature is mostly done away it, as the majority party-led by the Executive always controls the House and there is a little scope for the opposition to come forward and create pressure on the executive. Furthermore, in India, accountability to the “upper house or the Rajya Sabha” is also overridden by introducing important bills as ‘money bills’ (see Aadhar Act). The judiciary is already restricted due to many reasons such as it gets to ‘review’ the orders of the executive ex-post facto, it may be inefficient or be overworked and surprisingly, the Apex Court has become an “Executive Court” in India already, as Bhatia calls it. Hence, the final check on the Executive must come from the electorate, media, civil societies and academics as they are neither appointed nor elected by the executive. These external checks are really necessary to occlude the executive from backsliding democracy. However, the executive tends to tempt the electorates by showing them (illusory) short term promises and ‘cheaper methods’ like caste and communal politics, reservation etc to coax the voters to vote for their political party.

How is ‘executive aggrandisement’ done?

The most visible democratic backsliding can be seen when there is an attempt to side-line the right to free speech and expression (such as filing FIRs against journalists and activists) and judicial autonomy (such as transfers of the constitutional court’s judges who pass orders ‘against’ the executive and further, the ‘micro-assaults’ of the executive cannot be assessed individually by the Judiciary). Other ways are also brought in force such as blocking websites (read here and here), discouraging dissent, and enactment of draconian laws (which are usually against the principle of ‘innocent until proven guilty’). Most bizarre and not-so-open way of democratic backsliding lies where when the ‘big media outlets’ are often owned (through holding companies) by those businesses which are dependent on government contracts. Hence, there rises a conundrum for the journalist between freedom of speech and expression (and) a job, basically a Hobbesian choice.

There are certainly other ways in which backsliding is done and the amusing thing about these particular ways is that these issues seem is to be ‘normal’, when seen individually, for any mass protests and any individual or collective dissent. Those who speak against the executive, either any former judge or any opposition party member, is framed as a person having “special interests” or in general anti-national, a common term in India. Those who work for the disadvantaged groups and question the executive for its actions are banned and booked under state-made draconian laws. Many times, there remains a lack of collective action towards the ‘ill-actions’ of the government and the majority of the population is lost in the trance (of government’s short-sighted actions like the building of various religious congregations).

Furthermore, the “democratically” elected executive tends to make laws (which are usually passed without debates and discussions) which goes against the very basic human rights of the individuals, but challenging such laws is “highly risky” as the person who challenges may face many barriers such as, first, she is called a ‘foreign element’ for challenging or raising the voice against the “law”, second, attributing ‘nefarious purpose’ to the law is often difficult (as the intention of the Parliament cannot be brought under Judicial scrutiny) and third, all the changes made by the law has some ambiguous justification ( as the “intention” is to deepen the democracy, instead of destroying it). The “rules” of law are a major setback for those who want to come together and raise their voices against the actions taken by the executive. The laws framed to govern and protect the individuals are used against those very individuals.

All this is worrisome because of the reason that these changes came into force by the democratically elected government with a strong majority in the Parliament and the popular support of the masses. In a Democracy, where the executive doesn’t have any check is more likely to erode the very principles of democracy by taking one piece at a time from the “collage of institutions”.

A way forward?

This aggrandisement happens due to lack of devout action plan, nor any consensus, within the opposition party, media, academia and the citizens, to impart cohesion. The separation of opinion amidst the checkers of the executive lead to the point where democracy stands alone in a lonely corner. There needs to be a collective voice against the actions of the executive to prevent backsliding. As Sunil Khilnani (The Idea of India) says fasts, silences, penances are just techniques of an eccentric parent but are not designed to nourish the accountability of a democratic institution. In the absence of any institutional challenges to the executive, we [as citizens] should take lessons from the pre-independence Congress party wherein the mass organisation of people became the key to establish the democratic constitution. It shall be successful, as we already have seen how mass mobilisation of The People have also helped in reversing the most erroneous decisions of the Supreme Court (For example Mathura Rape Case).

There must be a push for free media and ‘citizens as watchdogs’ to put the elected executives under strict scrutiny. Other institutions which are not tied to the executive through the umbilical cord (political party) can work efficiently to hold the executive accountable for its actions and they must inform citizens about the actions of the executive in an unbiased way. As professor Khaitan says the reason for informing citizens will help the voters, as “they [voters] cannot exercise their function of holding governments to account at the ballot box unless they are properly informed”.

There needs to be scrutiny and review of every action of the government as ‘the very rules of the game are being changed’ now. We the People of India need to come together to “retrieve and build constitutionalism without the courts”, as the Constitution is so much more than just the Courts (as we all see it as). To conclude, as said by professor Khaitan said,

“Democracy is being killed by a thousand cuts—incrementally to avoid the noise and mess of big guns—but systemically. These mortal cuts are being inflicted by democrats themselves, who are justifying their expediency in the name of democracy itself (as surgery, rather than assault)”

[Note: If would like to read more extensive on this topic, then kindly proceed to Constitution Database page (Under the heading: Constitutionalism)]

A Diaphanous upon Constituent Assembly-I: In Purview of Women in Politics and their Remembrance

[This is a post by Diksha DaduContributing Member]

This is a series of articles wherein I will be dealing with the heroism and contribution of women in the framing of the Indian Constitution and their honour in the Constituent Assembly. Parlance will be drawn regarding the initiatives and reforms brought about by women in the Constituent Assembly.

Introduction

“Boycott the future legislation of India if it doesn’t comprise of enough women in all levels, for, women are the centre stage of our freedom struggle and I do not wish to accept a legislation without enough Women leaders”

critiqued Mahatma Gandhi in early 1930s.

Our Indian Constitution is one of the lengthiest and well-written Constitutions of the world. It is considered to be an all-inclusive constitution which surfaces itself to the institution of the Constituent Assembly which in turn led to the making of our constitution. While addressing the framework or the committee of our drafting committee, we come across many notable members who were responsible for the ultimatum, however, no significant light has been centred towards the involvement of women and their wit grit which led to a revolutionary and reformatory change in our overall socio-economic and socio-political political system.  

Therefore, this article analyses the distinct importance of women in the framing of the constitution of India and their significant role in the Constituent Assembly. The vital essence and the main purpose of this article are to remember and pay respect to the reforms brought out by women in political and legislative roles in the Post-Independence Era via contemplating the historical background, famous speeches and work, difficulties due to Indian societal structure and an overall theoretical approach to the social issues which stunted the empowerment of women in politics as well as in other legislative roles.

Making of the Constitution: Women’s Contribution and Reforms in Constituent Assembly

Throughout the India’s Freedom Struggle for Independence, the role of women has been shadowed even though their sacrifices amidst the torture, hardships and exploitations carried out a huge impact on the overall movement. In the early 1817’s, that is, 30 years before the First War of Independence, women came forward to fight against the British atrocities when most of the Indian men were thrown in jail for their opposite interest from that of the Britishers. Heroism and acts of rebellion against the wrongful acts is said to be initiated by the infamous Bhima Bai Holkar who fought against Colonel Malcolm and defeated him in Guerilla warfare. Many other women including Rani Channama of Kittur, Rani Begam Hazrat Mahal of Avadh fought against British East India company in the 19th century and had laid an outstanding example of real patriotism. This historical appreciation gives us an insight into the role and position of women in our societal fabric which will help us entail the broad canvas with regard to the contribution of women in the making of the constitution within the sphere of complex social and political boundaries. 

In December 1946, the constituent assembly came together to debate and draft a constitution for an independent India. It took place over 2 years, 11 months and 17 days. Among the 299 members of the assembly, 15 were women who had either been voted or chosen to represent their provinces. The assembly was a platform from which they could assert their equality and craft a politically balanced republic. The under-currents beneath the drafting of constitution and rhetoric reformations brought out by women formulated a new hope for women with regard to the issue of gender roles and has strived women to be voluble in their speech and fight for their rights. The representation of women in the assembly was only 4%, however, it is a reflection of plurality in our historical juncture reinstating the interventions and backdrop of women participation led to a significant reformulation in future for women in politics.

Minority Rights and Abolition of Untouchability

“The working of the Constitution will depend upon how the people will conduct themselves in the future, not on the actual execution of the law. So I hope that in course of time there will not be such a community known as Untouchables and that our delegates abroad will not have to hang their heads in shame if somebody raises such a question in an organization of international nature,” said Smt. Dakshayani Velayudan who was the first Dalit woman to get elected and made the assembly go beyond framing a constitution and to give “people a new framework of life”. She used this opportunity to make untouchability illegal, unlawful and ensure a “moral safeguard that gives real protection to the underdogs” in India. Her discussion included taking down Churchill’s promise to safeguard the scheduled castes in an independent India and argued that the communist party was only exploiting the Harijans. She held strong to the conviction that only an Independent socialist republic can help uplift the Dalits and give them the liberties exercised by every other citizen.

She delivered her speech on the 28th of August 1947 against separate electorates in any form and her censure of the reservation system was in support of a nationalist narrative that sought economic and social upliftment rather than looking to politics as a means to eradicate the system of untouchability. She highlighted in her speech on “As long as the Scheduled Castes, or the Harijans or by whatever name they may be called, are economic slaves of other people, there is no meaning demanding either separate electorates or joint electorates or any other kind of electorates with this kind of percentage.”

Furthermore, Smt. Purnima Banerji and Smt. Renuka Ray played a significant role in putting forward minority issues and possible legal changes in the laws pertaining to women. Ray debated and discussed that “It is they who are the backward sections of the community and who are the majority at the same time. It is their problem that we have to take up. If we want to make the Objectives Resolution that this House has passed and the Fundamental Rights that have been laid down, a living reality, it is this problem that we have got to tackle.” They both fought for equal rights for minority groups and their development through all means and power imbibed in the constitution and their activism and arguments encircled India’s paramount interest and debated that Hindus as a religious community shall not override others interest with the main focus that no special group shall stand in the way of equality and harmonious development.

Socio, economic and Political Justice for Women

“There are thousands of women today who are denied ordinary human rights. They are put behind the purdah, secluded within the four walls of their homes, unable to move freely”, argued Smt. Hansa Mehta while emphasizing upon the vitality of social justice, economic justice, political justice and equality which can alone be the basis of mutual respect and without which real co-operation is not possible between men and women. She was the president of All India Women’s Conference, member of UN sub-committee on the status of women, and vice-chair with Eleanor Roosevelt on the committee which drafted the Universal Declaration of Human Rights. Mehta was an educationist, feminist and reformist and along with  Rajkumari Amrit Kaur framed the Indian Women’s Charter of Rights and Duties and fought for the uniform civil code (UCC). She joined hands with Vijayalakshmi Pandit and worked on women’s equality and human rights in the UN as well.

“People outside have been saying that India did not give equal rights to her women. Now we can say that when the Indian people themselves framed their Constitution they have given rights to women equal with every other citizen of the country”, pointed out Shrimati Ammu Swaminathan in her speeches and argued widely for the inclusion of women in various aspects of equal fittings in the Constitution and recognition of women in the framing of India’s Constitution. 

Concluding remarks

Thus, to conclude, we can draw parlance regarding the subordinate position of women since the pre-independence era in furtherance of the role and attributes of women in society. It is essential to ponder over the fact that the making of the constitution would be bereft if women were not included, even though the figure remained less than half of men. However, the voluble women leaders and participants in the Assembly has led to a drastic reformatory approach in terms of the minority rights, the abolition of the untouchability and the over-all attribute of women in the society. These reforms as mentioned above help us to honour and remember the position and vitality of women in leadership roles and in the overall equal diaspora.  

Stay tuned for more of this series.

Indian Constitution and Constitutionalism: Transformative Application

[This is a post by Minnah AbrahamContributing Editor]

Often, the questions, with regard to the formation of the State, persists in the mind of the man right from the beginning, since the emergence of civilization:

What is the best form of Government”

The answer to the above question brought the emergence of the idea to the origin of constitutionalism and constitutional law, which paved the road to structure and organizing the State, in the form of rules and regulations, requiring the need of law and governance. It was best described by Robert M MacIver“When we speak of the estate, we mean the organization of which government is the administrative organ. Even an organization must have a focus of the administration, an agency by which its policies are given specific character and translated into action. But the organization is greater than the organ. In this sense, the state is greater and more inclusive than its government. A state has a constitution, a code of laws, a way of setting up its government, a body of citizens…when we think of this whole structure, we think of the state… Under these endlessly varied circumstances the habits pertaining to government, which at first were centred in the family and kin-circle, found a locus in the inclusive community”

Contrastingly the two terms, constitutional law and constitutionalism differ where the former enshrines the coded form of rules and regulation, determining the principle functions, accepted as binding by all concerned in the Government, while latter explicitly accord specific limitations on general administrational powers to keep a check on the exercise of arbitrary decision-making or powers in the hands of the few. ‘Limited Governance’ is what is presupposed of Constitutionalism, incorporating the element of checks and balance within the constitutional law. From this, arose the fundamental rights and guaranteed remedies, Judiciary acting as the impartial arbiter with independent powers apart from legislative check on the executive. Within these fundamental systems, emerged the concept of judicial review, separation of powers, rule of law, the fundamental right to equality and quality of life, universal franchise transparent executive, ensuring the responsibility to keep an eye on anarchy and the wide possibility of misuse and exploitation of freedom guaranteed by means of reasonable restrictions inserted.

Constitutionalism has become as important an issue which deals with intricacies of good governance, constituting a supreme document that governs the legitimacy of the government’s state actions, implying something beyond the idea of legality requiring official conduct to be in conformity with pre-fixed legal rules. Constitutionalism as the concept that drives through the constitutional law ensures, to effectively check whether the act of a government is in accordance with the laws of the State. This further seeks to effectively regulate the State actions and ensure to adopt the changes in the societal evolution, promising to protect the citizens from the very restrictions and rigidity of the law and order.

As Justice H.R Khanna stated,

“The framing of a Constitution calls for the highest statecraft. Those entrusted with it have to realize the practical needs of the government and have, at the same time, to keep in view the ideals, which have inspired the nation. They have to be men of vision, yet they cannot forget the grassroots.”

Notwithstanding the constant changes in the global trend, the modern application of constitutionalism is increasingly under strain, where more recent turns of events seem to provoke profound changes, forcing a transition towards modern constitutionalism. In what was considered to be most celebrated of the judgements, Navtej Singh Johar vs. Union of India, was the one where the real purpose of the constitution was defined in modern terms, to guide the Nation to a transformation from medieval and hierarchical strata to an egalitarian democracy to enclasp the ideals embedded in the Preamble of the Constitution. It was the modern constitutional interpretation, which chose to protect its very own people from the humiliation and discrimination, rather than follow the static interpretation of the rights of liberty and equality, which were applicable in the yesteryears.

The laws are constantly changing, recall the 73rd and 74th amendments of the Indian Constitution in 1992, which create a fortified third tier of the governance i.e. Panchayats and Municipalities, thereby creating a stronger federal decentralisation within the country. Besides these, the dynamic politics and pressure groups, which reflect the diversity of interests so much so that brought to the point where the power centre has to take heed to the opinion emerging from a relatively small community, which had the power to pull down the government. Triple talaq, the case of Sabarimala, Aadhaar project, LGBTIQ+ Rights, judicial activism forcing to fathom deeper into constitutional interpretation to deliver right justice in order to address the broader societal implications and much more witnessed since the last decade. Shifting the focus to a generation of millennials in this decade, causing issues of collective identity, cultural plurality and multi-cultural society in constitutional democracies and the inherent struggle for recognition and demand for sub-national government. The major hindrance is that the strong accord of modern constitutionalism with an idea of ‘national identity’ has become challenging, to sustain/uphold in an increasingly diverse democratic society. It goes to say, “human experience must be decontextualized, and diverse identities extirpated in order to create a single national identity for each State.” In the unstable cultural-sociological, the rushing of the liberal idea of State neutrality forces the explicit recognition of common cultural identity, which seems impossible for the modern laws to be integrative. Thus, a need ensued for the rethinking of modern constitutionalism and uniform laws, in the current scenario, in which demands for recognition of cultural plurality and sub-state demands, are ever more prominent.

Antonio Negri believed, the ‘ethic’ of constitutional insurgencies is also ‘ethics of transformation’, signifying the power, strength, and movement of the multitude toward contradictions of constitutionalism’s, characterizing life under constitutional code. Constitutionalism needs to stress on,

“the freedom of the members of an open society to change the constitutional rules of mutual recognition and association from time to time as their identities change.”

Justice evolves around the language of communication through constitutional morality, the ‘morality’ as seen as the justification in the eyes of Lord Macaulay for the enactment of Section 377, which changed when read down by the judges, by turning the, then morality upside down, stating that constitutional morality calls for the values that the right to form intimate relationships to be protected as equal and freedom from persecution and humiliation by the law.

The founding fathers of India, BR Ambedkar and Jawaharlal Nehru, explicitly focused on the notion towards aiming for inclusivity in the post-independent India, the profound concept that discrimination against any minority community/population is antithetical to the ethics of constitution and disrespectful to the very people, who have already suffered/oppressed enough.

Although the concept of modern constitutionalism is a long way from the transformation, citing the ambiguous interpretations of the Constitutional law in the daily lives of a common man, eradication the age-old casteism, discriminatory treatment of a large number of diverse sections of Indian society, be it indigenous, women, disabled or on religious sect and building the culture of unity and inclusivity still remains a continuing challenge in India. However, with the recent event of developments on widening the scope of freedom of speech and expression, 2019 being the year of piercing the age-old concepts, for gender recognition and equality, recognition of women promise a change toward India refocusing towards political advocacy and possible reformed legislative amendments.

Keshav Singh’s Case-II: On President’s Reference under Article 143

Previously on this blog, I have discussed the facts of the Keshav Singh’s case here. In this post, I will be discussing the judgment of the Supreme Court in Re Special Reference No. 1 of 1964 (Powers, Privileges and Immunities of State Legislatures) focussing specifically on the Supreme Court’s advisory jurisdiction.

This case came before the Hon’ble Supreme Court after a reference was made by the President under Article 143(1) and the President formulated five questions of law (which will be discussed in the next part of this series) for the opinion of the Court. Article 143(1) authorises the President to refer questions of law or fact to the Supreme Court, which appear to him to have arisen or are likely to arise and which are of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon them. The Supreme Court ‘may’ give an opinion of the same. The language of clause 1 is quite broad and shows that the Supreme Court is not bowed to give an advisory opinion in every reference made to it. The Court ‘may refuse’ to give its advisory opinion for ‘strong, compelling and good reasons’.

But under clause 2 of Article 143, a matter which is excluded from the Supreme Court’s jurisdiction under Article 131 (Original Jurisdiction) may be referred to the Court by the President for opinion and the Court shall, after such hearing as it thinks fit, report to the President [under clause 2, the phraseology used it shall which makes the Court constitutionally obligated to give opinions].

The issue of Article 143 in the Keshav Singh’s Case

In the Keshav Singh’s case, the question of presidential reference arose before the court when Advocate-General of Bihar raised a preliminary objection that “the present reference is invalid under Article 143(1) because the questions referred to this Court are not related to any of the entries in List I and III and as such, they cannot be said to be concerned with any the powers, duties or functions conferred on the President”. The crux of the argument was that the President cannot refer those questions on which she doesn’t have any power, duties or functions whatsoever.

As predictable it was, the Court rejected the arguments and held in paragraph 14:

“The words of Article 143(1) are wide enough to empower the President to forward to this Court for its advisory opinion any question of law or fact….such a question is of such a nature or of such public importance”

The words used in clause 1 of Article 143 are of wide amplitude, hence they could not be interpreted narrowly as suggested by the AG of Bihar. The requirement of Article 143 is (a) satisfaction of the President that a question of law or fact has arisen or likely to arise; (b) she must be satisfied that the question if of public importance that it is expedient to obtain the opinion of the Court. If these two conditions are fulfilled, then the questions may be referred to the Court. In the present case, it is apparent that the reference made by the President is of utmost public and constitutional importance.

It is open for the president to formulate questions in regard to (a) validity of provisions proposed to be included in the Bills which would come before the legislature; (b) questions of constitutional importance. This issue, whether the Supreme Court is bound to answer to the reference under Article 143(1), was raised on the floor of the Constituent Assembly by Shri H.V. Kamath when article 119 of the draft constitution which corresponds to article 143 of the present Constitution came up for consideration. Shri Kamath while moving Amendment No. 1952 to the draft constitution, wanted a clarification from the assembly in the following words (Constituent Assembly Volume VIII, Book No. 3):

“Sir, the point which I wish to raise in my Amendment No. 1952 is a simple one. The Article contemplates that the Supreme Court should report to the President its opinion or in its discretion it may withhold its opinion. I believe what is meant is that when once the President refers the matters to the Supreme Court. If that is not meant than the language is right. But if it is meant that once the President refers a matter to the Supreme Court, it must report its opinion thereon to the President, then the word “shall” must come in. I wanted clarification on that point”

Shri H.V. Kamath did not move his amendment when Dr B.R. Ambedkar pointed out that the Supreme Court is not bound. Therefore, the Supreme Court is not bound to answer the presidential reference made under the article.

The Courts may refuse to make an opinion on the reference if “such a situation may perhaps arise if the questions formulated for the advisory opinion are purely socio-economic or political questions which have no relation whatever with any of the provisions of the Constitution, or have no significance” (paragraph 18 of Keshav Singh’s case). But the Courts have to give strong and compelling reasons. On questions of fact, Justice AN Ray stated in Re Presidential Poll case of 1974 in paragraph 38:

“The truth or otherwise of the facts cannot be enquired or gone into nor can Court go into the question of bona fides or otherwise of the authority making the reference. This Court cannot go behind the recital. This Court cannot go into disputed questions of fact in its advisory jurisdiction under Article 143(1).”

The Court in the case of Keshav Singh held that the present case involves “grave constitutional importance and significance and it is our [the Court’s] duty to make a report to the President embodying our answers to the questions formulated by [President]”. Hence, they accepted the reference made by the President for opinion. But the Supreme Court has the discretion and it may refuse to give an opinion on certain matters under clause 1.

Some earlier decisions: Understanding the “subject matter” of references

During the last seventy years since the constitution came into force, several references have been made to the Supreme Court under Article 143(1), but none under Article 143(2). I have taken note, in the tabular form, of a few references made by the President and the subject matter of the same.

Reference case & year Subject-Matter
Re the Delhi Laws Act (1951)Scope and extent of executive’s legislative power under the Delhi Laws Act
Re the Kerala Education Bill (1958)Constitutional validity of certain provisions of the Kerala Education Bill which was reserved by the Governor for the President’s consideration
Re Berubari (1960)Guidance to central executive as to how it should implement the Indo-Pakistan Boundary agreement between the Prime ministers of India and Pakistan
Re the Sea Customs Act (1962)Validity of draft bill seeking to amend certain provisions of the Sea Customs Act of 1878
Re Presidential Poll (1974)Whether the election of the President could be held in absence of an elected State Assembly
Special Courts Bills (1978)Constitutionality of Special Courts Bill
Re in the matter of Cauvery Water dispute Tribunal (1992)Whether the tribunal established under the Inter-state Water Dispute Act, 1956, has power to grant an interim relief to the parties to the dispute
Re in the matter of Ram Janmabhoomi (1993)Whether a Hindu temple or religious structure existed prior to the construction of the Ram Janma Bhumi-Babri Masjid… in the area on which the structure of Masjid stood.
Re Supreme Court/High Court judges (1998)Nine questions were formulated on these three points: (a) consultation between the CJI and other judges in the matter of appointment of the SC and HC Judges; (b) Transfer of HC judges and judicial review of the same; (c) the relevance of seniority in making appointments to the Supreme Court
Gujarat Assembly Election matterAfter premature dissolution of assembly, question arose with regard to the time-frame within which election to the assembly must be held

Through various decisions, the Court has emphasised that abstract or speculative or hypothetical or too general questions should not be referred to it for an advisory opinion. But if this is done by the President, then the Court may return the questions pointing out the impediments in answering it.

Jurisdiction of “Consult the Supreme Court” prior to the adoption of the Constitution

Before the adoption of the Constitution, the Federal Court had similar power of advisory jurisdiction under Section 213 of the Government of India Act, 1935. Clause 1 of section 213 is the same as Article 143(1) of the Indian Constitution. Clause 2 of the Act of 1935 is similar to Article 145(4) and (5) of the Indian Constitution. Some of the principles of constitutional interpretation which the Federal Court laid down in its advisory opinions in relation to the interpretation of the federal provisions of the Government of India Act of 1935 have very well stood the test of time and remain valid and controlling even to-day in interpreting the Constitution. (See In Re the CP Petrol Tax Case of 1939, In Re the Hindu Women’s Right to Property Act, 1937)

Conclusion

Presidential references have always been made only when the issues have become clarified and crystallised by discussion amongst the general public and it has actually been possible for the courts to express an opinion. I believe that the advisory jurisdiction conferred on the court is important as it allows the executive to consult the Supreme Court and save itself from the embarrassment if a particular law is held to be unconstitutional later (as held in many cases in the past). But should an opinion under Article 143 be considered a law of the land or a precedent? If that’s answered in positive [see the arguments against this on here], then the impact of this position, however, is that “proceedings which take place in an unreal atmosphere may sometimes prejudice the interest of certain future litigants”. A clarified opinion of the precedent value must come from the Apex Court.  

Misuse of the office of Speaker by the ruling party

[This is a post by Surabhi SrivastavaContributing Editor]

Introduction

Presently, we have come across the situations where the members of the legislative assembly are being disqualified or being given the notice to explain as to why they shouldn’t be disqualified from Legislative assembly. In this scenario, we need to understand first, the power of Speaker with regard to disqualification.

If we trace the history from post-independence there are multiple instances where MPs or MLAs have switched their party after getting elected. The most famous incident was from Haryana in 1967 where extreme political horse-trading, counter horse-trading and counter-counter horse-trading took place. Independent MLA Gayaram switched four different political parties in a span of 15 days. After such an incident, safeguards were placed in the constitution to keep a check on the elected members of the Parliament and Legislative Assembly against their misconduct.

 Constitutional Amendment

Anti-defection law was inserted in 10th schedule of the constitution by 52nd Amendment Act of 1985 to disqualify any member of the Parliament or Legislative Assembly from switching the political party from which they have been elected.

Speaker has vast power under the constitution to disqualify any member of the assembly. Being the presiding officer of the house any petition for disqualification is to be placed before him. Since 2003 the political parties have started to misuse the powers of the speaker’s office for disqualifying the members of the assembly. We all know that a speaker is to be elected by the members of the assembly but it’s an unfortunate truth that the party in the majority selects any person amongst themselves as a speaker who will remain biased during the proceedings of the assembly in their favour.

Judicial Review

Initially, any decision under the anti-defection law was not subjected to the judicial review but in 1993 through the case of Kihoto Hollohan vs Zachillhu And Others, the Supreme Court declared this provision as unconstitutional to the extent that, any decision of disqualification of any member of the assembly is subject to judicial review and can be challenged before the Supreme Court and High Court as a judicial review- part of ‘Basic structure’.

Misuse of Office of the Speaker and its Power

In 2019, a political crisis came up in Karnataka assembly where after election 17 MLAs of Congress they gave their resignation to K.R. Ramesh Kumar who was Speaker of the house. It was just before when congress was about to give confidence motion to the Speaker for making a government in the state.  Being loyalist to congress party K.R. Ramesh Kumar while passing the order of disqualifying these MLAs, restricted them to contesting election until the term of the current assembly ends in 2023.

Affected MLAs approached the Court of Law against the order of the Speaker being unconstitutional and beyond the power of the House of Speaker. A three judges’ bench of Supreme Court in Shrimanth Balasaheb Patil vs Honble Speaker Karnataka upheld the order of the Speaker disqualifying 15 MLAs from Congress and JD(S) but struck out the period of disqualification. Supreme Court held that the speaker in the exercise of powers does not have the power to indicate the period for which a person is barred from contesting an election. This could be said as one of the defects of the defection law as there is no penalty imposed to the defecting member of the House – so there is no deterrence whatsoever.

Court further held that the Speaker, while adjudicating a disqualification petition, acts as a quasi-judicial authority and the validity of the orders thus passed is subject to judicial review before this Court under Article 32 of the Constitution.

Court further observed that there is a growing trend of the Speaker acting against the constitutional duty of being neutral. Further horse-trading and corrupt practices associated with defection and change of loyalty for the lure of office or wrong reasons have not abated. Thereby, the citizens are denied stable governments.

Recently in July’ 2020, a similar issue came up in the State of  Rajasthan where show cause notice was being issued by the Assembly Speaker CP Joshi after the Congress complained that Deputy Chief Minister Sachin Pilot and 18 MLAs had disobeyed the whip of the party to attend two Congress Legislature Party meetings held at CM House. 

Sachin Pilot and 18 other MLAs moved to the Hon’ble High Court challenging legality and constitutional validity of such notice as such a party whip applies only when the assembly is in session. Hon’ble High Court vide its order requested the assembly speaker not to ake any further action on show-cause notices to the 19 legislators and to maintain “Status Quo” until 24th July 2020.

Felt aggrieved by this order Rajasthan Speaker moved to the Supreme Court challenged this order of “Status Quo” on the basis of the judiciary was ever expected” to intervene in such matters resulting in “constitutional impasse”. As per the Constitution bench, the Judiciary cannot interfere in the discharge of the duty of the speaker. However, it was contended that only notice was issued to the MLAs. The decision on the matter was yet to be taken. Unfortunate that the elected representatives are circumventing through Judiciary.  Three judges bench led by Justices Arun Mishra, B R Gavai and Krishna Murari while refusing to grant stay against the order of the High Court observed that “serious questions related to democracy” are involved in the matter.

Court further observed that the “voice of dissent cannot be suppressed in a democracy”. They had all been elected by the people and being their representative they have all the right to raise their voice and their voices cannot be suppressed. If some members of the political party do not agree with the agenda of the party, it will not be called for the disqualification of those members merely because they do not agree with the party.

Thus, to conclude, we can vividly witness how the powers of the speaker are being misused or being used in the most biased way. The position of the speaker is a constitutional post whose sanctity deserves to be maintained, however, in the above-mentioned instances the picture is truly disappointing. In simpler terms, political games put a wrong mark on the provisions of the constitution, which as a citizen makes us feel like the construction of fraud on the Constitution.

Keshav Singh’s Case-I: A pamphlet which led to a Constitutional Crisis

In this post, I would be discussing the facts and incidents which led to paralysation of administrative machinery and a constitutional crisis.  Interestingly, due to these facts and circumstances, the largest bench of 28 judges was constituted—even more than the 13-judges bench in the landmark case of Kesavananda Bharti v. the State of Kerala.

Keshav Singh, resident of Gorakhpur (U.P.) and a worker of an opposition party [Socialist Party] published a pamphlet along with his two colleagues—titled Shri Narsingh Pandey ke Kale Karnamon ka Bhanda-Fod. In that pamphlet, they alleged that Narsingh Pandey, Congress party’s MLA, was corrupt. The pamphlet was distributed in Gorakhpur and the vicinity of the legislative assembly in Lucknow. The Congress party MLAs including Pandey were offended by the act, hence, they complained to the Speaker that the pamphlet ‘breached the rights and immunities enjoyed by the assembly and its members’. Keshav Singh and his two colleagues were summoned to appear before the House in Lucknow to receive a reprimand.

While the other two colleagues accepted a reprimand on 19th February 1964, Keshav Singh failed to appear before the House citing ‘lack of funds’ to travel from Gorakhpur to Lucknow. Subsequently, the Assembly ordered to arrest Singh and brought him to the assembly on 14th March. After he arrived at the assembly, he was ‘expected’ to be reprimanded just like his other colleagues, but he had other ideas. He refused to answer when the speaker of the assembly repeatedly asked him to confirm his name. He turned his back towards the Speaker and stood silently after every question was posed to him. Another incident happened which worsened the matter was that- Singh had written wherein he protested against the reprimand as statements in the pamphlet were true, and condemned the warrant of his arrest as ‘Nadirshahi’ (tyrannical). Then, the first woman Chief Minister Sucheta Kripalani moved a motion in the assembly for Singh to be imprisoned for 7 days and he was sent to prison. Until now, it was just gossip of the town.

On the 6th day of his imprisonment, an advocate filed a petition on behalf of Singh at the Allahabad High Court, seeking immediate release. It was contended that Natural justice principles were not followed as Singh was not allowed to defend himself and assembly lacked the jurisdiction to commit him to prison. The matter was placed before Justices Nasirullah Beg and G.D. Sehgal at 2 p.m. wherein Singh was represented by Advocate Solomon and assistant advocate general, K.N. Kapur, appeared on behalf of the state government. Kapur sought a pass over and requested the matter to be placed at 3 pm. However, at around 3 pm, when the case was called Kapur was not present, due to some reasons [whether deliberate or not—we never know]. Solomon argued the case and based on the arguments and facts, the High Court ordered that Singh to be released on bail subject to a condition that Singh should be present in court at every future hearing.

After this usual course would have been that state government should have filed an affidavit, but the Speaker, Madan Mohan Varma, a lawyer by profession thought this as a violation of the doctrine of separation of power and he had read the Mayne’s Parliamentary Practices– an authoritative book on Parliamentary procedures and practices. In his view, the order of the High Court “undermined the assembly’s exclusive authority to address a breach of its own privilege”. Surprisingly, after two days of the order, the House passed a resolution with a majority that Singh, Solomon and two High Court judges be bought “in custody” before the assembly to explain their acts. Imagine a judge of a constitutional court being summoned before the legislative house to justify his acts in the judicial capacity. Isn’t this violation of Article 211 which states that “[N]o discussion shall take place in the Legislature of a State with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties”?

From a mere political issue, the whole incident became a clash between constitutional institutions. It became more of a power game between the Hon’ble High Court and the Hon’ble Assembly. This was unprecedented and the judges of the High Court had no clue how to react to this summon of the Assembly. According to Senior Advocate Shanti Bhushan,

Justice Beg “was waiting with a loaded gun, ready to shoot down the marshals and protect the honour of the Allahabad High Court”.

There arose a conundrum between saving the honour of the Court and contempt of the Assembly. As per Chintan Chandrachud, “if the judges agreed to appear before the assembly, the episode would risk undermining the independence of the judiciary. On the other hand, if they appeared and offered a robust defence, the assembly might be left with no choice but to refrain from further action, lest it criticised for persecuting well-intentioned judges”. The judges to save their honour and the honour of the Allahabad High Court filed petitions before the High Court stating that assembly’s resolution violated Article 211 and they were represented by Advocate Jagdish Swarup. There was a conundrum about the bench allocation because what if the judges which decide the matter would also suffer similar consequences as faced by the petitioner-judges. Later Advocate Swarup offered his suggestion that all the judges of the high court (except Justices Beg and Sehgal) should sit together to hear the matter. This was a symbolic gesture and for the first time in the history of the Indian legal system, 28 judges sat for deciding the case. The rationale behind this unprecedented action was that securing custody of two judges was one thing, attempting to do so for every judge of the high court was quite another.

The judges sat in two rows which were also unprecedented and unseen. They admitted the petition and restrained the government from securing the execution of arrest warrants against the two judges. Later, even the assembly withdrew the arrest warrants against the judges and Solomon. This led to a lot of uncertainty and the police were rather confused about whether to arrest or not. As Chintan Chandrachud says,

If the police escorted the two judges and Solomon to the assembly, they would be complying with the resolution of the assembly but possibly in contempt of court. If they refused to do so, the police would be complying with the court’s order but defying the resolution of the assembly.

By this time there was a hassle in New Delhi as the news reached the Capital. The CM Sucheta Kriplani apprised the PM Nehru of the situation. Then, it was decided that a presidential reference shall be made to the President to “enable the court to rule decisively on the authority of the assembly on the one hand, and the courts on the other, to determine the scope of the privileges of the assembly”. The issue could have been decided by the Parliament or the assembly, but Nehru chose to refer it to the Supreme Court for further adjudication and ‘final decision’. A seven-judge bench was constituted which was headed by the Chief Justice Gajendragadkar in the Special reference no. 1 of 1964. [The law laid down by the Court, in this case, will be discussed in next posts on this blog]

In conclusion, an observation made by Chintan Chandrachud in this regard is worth mentioning,

“This case is worth remembering – if not nothing else, to demonstrate how easily constitutional institutions can turn against one another and, equally, how difficult problems are best solved through statesmanship rather than brinksmanship.”

[Note: I would like to thank Chintan Chandrachud for his insightful book “The Cases that India Forgot“]

Contempt of Court: Analysis of the Jurisdiction of an “infallible” Court

In the previous post, we discussed all the facts relevant to Prashant Bhushan’s Contempt Case—In this post, I will analyse the Supreme Court’s jurisdiction of Contempt and try to make an objective effort to draw a line between free speech and the law of contempt as in the recent times’ judiciary has exercised its power of contempt which led to a burning debate. The premise for the law of contempt of Court stems from the accountability of Courts. Although the law of contempt has originated from English law, it is not entirely an imported concept.  The age-old systems to protect courts or assemblies (sabhas) point to the indigenous development of contempt law. Kautilya wrote in Arthashastra that, “any person who insults the King, betrays the King’s council, makes evil attempts against the King… shall have his tongue cut off”. Although it is not similar to the modern-day law of contempt but it shows that there was an attempt at protecting the sanctity of the images of justice.

Supreme Court: Court of record and power to punish for contempt of itself

Under in the Indian Constitution, Article 129 states that “The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.” The provision defines the position of the Supreme Court. Dr B.R. Ambedkar explained the meaning of “Court of Record” in the Constituent Assembly on 27.05.1949 as, “A court of record is a court the records of which are admitted to be of evidentiary value and they are not to be questioned when they are produced before any court.

And, the power of contempt follows from the fact that the Supreme Court is a court of record, as the High Courts. The provisions of contempt were included in the Constitution itself because, in England, this power is largely derived from Common Law and as we have no such thing as Common Law in India, we felt it better to state the whole position in the statute itself. The power of contempt is extraordinary and is exercised only to uphold the majesty of the judicial system. On the question of contempt, the Supreme Court has a summary jurisdiction to punish contempt of its authority. In the case of Om Prakash Jaiswal v. DK Mittal (2000), the Supreme Court emphasised the need for the concept of contempt as follows:

“Availability of an independent judiciary and an atmosphere wherein Judges may act independently and fearlessly is the source of existence of civilisation in society. The writ issued by the Court must be obeyed…..Any act or omission which undermines the dignity of the Court is therefore viewed with concern by the society and the Court treats it as an obligation to zealously guard against any onslaught on its dignity.”

The logic behind the contempt jurisdiction is that if the confidence in judiciary shakes, the due administration of justice suffers. But is there any definite meaning of contempt? The Contempt of Courts Act, 1971 defines criminal contempt as that which ‘scandalizes the court’ or ‘prejudices judicial proceedings’ without providing any explanation of these key terms. An attempt was made in Jaswant Singh’s case and it was held that the offence of criminal contempt is committed when a court is scandalised by casting “unwarranted, uncalled for and unjustified aspersions on the integrity, ability, impartiality or fairness of a judge in the discharge of his judicial functions as it amounts to an interference with the due course of administration of justice”. This is an extremely wide definition and it should not be read apart from the goals set forth by the Founding fathers under the Constitutional provisions. Even though uncertainty makes a law flexible but we cannot ignore the evils that come with this.

Also, according to Justice Mukherjea in a Brahma Prakash case, there must be two primary considerations when dealing with contempt of court amounting to “scandalisation of the court” – Firstly, whether the act is within the limits of fair and reasonable criticism, and secondly,  whether the act is a mere libel or defamatory in nature or contempt of court and if, it is a mere defamatory attack on the judge and is not calculated to interfere with the due course of justice, it is not proper to proceed by way of contempt. The accused must be held guilty only after these two considerations are adjudicated upon. Furthermore, in an interesting case where the accused- U.K. Krishna Menon charged the judiciary as “instrument of oppression”, and then he raised an interesting three-fold contention in his defence that: [a] the law of contempt must be read without encroaching upon the guaranteed freedom of speech and expression under Article 19(1)(a); [b] the intention of the contemnor in making his statement should be examined in the light of the political views as he was at lastly to put them before people and, [c] Lastly the harm done to the court by his statement must be apparent. Although it was rejected by the Court and he was held guilty for stating that judges are “guided and dominated by class hatred” and favours “rich against the poor” as these words weakens the authority of Courts, and have the effect of lowering the prestige of judges and courts in the eyes of the people.  Here, two questions arise: what does the court aim to protect from this law and what image of justice the Court seeks to preserve? A definite answer must come from the Apex Court.

Another question which arises is what are the “standards” of criticisms? According to Perspective Publications judgment, a fair, reasonable, temperate and legitimate criticism of the Judiciary or the conduct of a Judge in his judicial capacity is permissible – but what about the tweet/comment of lawyer-activist Bhushan on the CJI – isn’t that a fact that the Hon’ble CJI was “riding” a Harley Davidson without a mask? Should the reasonable restriction of contempt of court overshadow the freedom of speech and expression? Herein a quote by Justice Felix Frankfurter is relevant:

“Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions…..therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candour however blunt.”

A way forward

When should the power of contempt be exercised by the Courts? The courts must remember that “Speech is duty and silence cowardice”. The power of contempt is to be availed to aid in the administration of justice and not to shut out voices that solicit accountability from the Court for its fallacy of omissions and commissions. To suppress constructive criticism- or demand for accountability- is not and cannot be a ‘reasonable restriction’. As Prashant Bhushan replied in his affidavit before the Supreme Court, “power of contempt cannot be initiated “into service to stifle bonafide criticism” from citizens who are well-informed about the omissions and commissions of the Supreme Court”. The power must be exercised cautiously, wisely and with circumspection. The Constitutional Courts must protect our free speech even “against judicial umbrage”. Lord Atkin has observed, “Justice is not cloistered virtue”, hence, every judgment and conduct of judges must be open to public discussions and criticisms as they hold constitutional trust, confidence and faith of ‘The People’.

Further, Justice Brenan has observed in Sullivan’s case, “it is a prized privilege to speak one’s mind, although not always with perfect good taste, on all public institutions and this opportunity should be afforded for vigorous advocacy no less than abstract discussion.” Justices should not enter into public or political controversy instead they should rely on their conduct itself “to be its own vindication” and their lordships must have broad shoulders when someone criticises the Courts with an informed opinion.

The Courts must understand that the power of contempt is needed just for the administration of justice and punish those who disobey the order of the courts, not to gain respect. A more relaxed system is something we should strive for – remember post-Skycatcher judgment the British media banner published the photos of judges upside down calling them “You Fools”. Senior Advocate Fali S Nariman asked one of the judges, why they did not initiate contempt against the media, the Court replied it is just an opinion. We do not agree.

In conclusion, it is for us, as citizens, to think whether the court will be able to instil institutional greatness by this flourishing law of contempt- or whether this will lead to, as observed in Barnette’s case, the “compulsory unification of opinion [that] achieves only the unanimity of the graveyard.”

[Note: I would like to thank the editorial board, Manasi Bhushan and Diksha Dadu for their comments]

Prashant Bhushan’s Contempt Case: Are the Indian Constitutional Courts prone to dissenting remarks made in Social Media against it?

[This is a post by Minnah Elizabeth Abraham, Contributing Editor]

“Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us.” Lord Denning

The controversial case of contempt of court law against lawyer-activist Prashant Bhushan reveals much of the stifling unaddressed claims of the judicial systems as opposed to the rightful exercise of the freedom of speech and expression within the judiciary. The case draws a pricking line between exercise of the fundamental right of speech and expression with freedom of judiciary to maintain its credibility in the larger public interest.

Trotting down the facts, the whole issue was provoked when Prashant Bhushan tweeted firstly, on the Chief Justice of India, quoting

“CJI rides a 50 lakhs motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access justice.”.

Secondly, the controversy ensued when he yet again tweeted

“When historians in the future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”

Although the Freedom of Speech and Expression in enshrined in Article 19(1)(a) of the Indian Constitution, it is sadly bounded with restrictions under clause 2 of the same Article. In the above controversy, the statements as remarked by Mr Prashant  Bhushan have been claimed to downgrade the Supreme Court of India and judiciary system, attracting the very Contempt of Courts Act, 1971 (“The Act”) calling for his actions as criminal contempt, defined in the 1971 Act, for scandalising remarks against the authority and administration of law. The petitioner’s side (Mr Prashant Bhushan) claims the Act to be unsurprisingly incompatible with the basic structure of Constitution, all the more, perforating the guaranteed freedom of speech expression. However, this is not so, as stated on the other side,

“We are, prima facie, of the view that the aforesaid statements on Twitter have brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the institution of the supreme court in general and the office of the Chief Justice of India in particular, in the eyes of the public at large.”

The legislature does not provide with a concrete definition of contempt – howsoever Section 2(a) of Contempt of Court Act, 1971 defines contempt of court as civil contempt or criminal contempt: “Civil contempt refers to wilful disobedience to any decree, judgement, direction, writ, order or other proceedings of a court or wilful breach of an undertaking given to a court.

According to Section 2(c) of 1971 ActCriminal contempt – whether by word, spoken or written or by signs or by visible representation or otherwise – of any matter or doing of any other act whatsoever which –

  1. Scandalizes or tends to scandalize or lowers  the authority of any court or
  2. Interferes/Prejudice or tends to interfere with the due course  of any judicial proceeding
  3. Interferes or tends to interfere with or obstruct or tends to obstruct the administration of justice in any other manner

The impugned section renders power to the judicial authorities to routinely misuse the power to punish those of contempt of court for their misdeeds rather than carry forward their duties to uphold the laws of Justice. As noted, there are a high number of contempt cases – civil (96,993) and criminal (583) pending in various HC and SC. As clearly noted, the said section is ambiguous as it does not draw any distinction between criticisms or remarks made in consonance with freedom of speech with that of scandalization against the Court of Law. By going deeper into the case, it only points out, how both the issues are contrasting starkly against each other, for which there is a need to modify the laws of contempt of court without breaching the fundamental rights. The Court of Law, like every institution of an order, should fall back in welcoming public criticisms to deliver and serve in the interest of the general public.

To stir up further controversy, the 2009 pending case of Sterlite company, where Mr Prashant Bhushan accused the headed judge of having held shares in the said company was deferred to be heard in the next hearing scheduled on August 4th, 2020 joined with the recent controversy.

The cynicism in all of this brought forth, where the views of the same bench were pointed concerned hearing a matter of disqualification proceedings initiated against Sachin Pilot and other involved MLAs of Rajasthan, observing “Voice of dissent in a democracy cannot be shut down”. This same constituted bench responded completely in contrast to the voice of dissent raised against the very Court and used the provisions of Contempt of Court Act, 1971 to shut down the ensuing alleged claims against it, with due disregard for the Constitutional Rights.

As stated rightly by Mr Shekhar Gupta, Editor-in-Chief of The Print,Politicians run on political capital. Professions run on professional capital…so the Supreme Court’s capital is its own stature. It’s for the court to decide how fragile that stature is.”

Some concluding remarks

If contempt proceedings are going to be instituted against every tweets and remark against Courts of law, there would not be any room for informed public scrutiny, which holds the very purpose of arriving at right delivery of justice, covering all aspect of public concerning matters. Previously, the SC has been considered liberal with contempt proceedings and has set aside the punishment in the case of Chanchal Manohar Singh vs. High Court of Punjab & Haryana due to irregularities of both sides and other past actions have shown that the Courts of Law has subject to have positively drawn in criticisms in public debates and often have taken in consideration of the public remarks.

The case instituted against Mr Prashant Bhushan, especially when the main issue revolves around the freedom of speech and expression, the presiding bench heading the case has to carefully tread on the public’s faith on the judiciary and choose to uphold the dignity of the judiciary by thoroughly inspecting the essentials of the criminal contempt. The ongoing debate lingers on Bhushan case, covering every aspect of freedom of speech and expression and explore as to what extent does the freely expressed criticism turn to contempt. This imposes immense pressure on the Court of Law to distinguish between criticism and contempt on the part of the Bhushan’s action of freely expressed opinions against the Courts of Law and its adjudicating authorities and whether his tweets unquestionably resorts to scandalising the judicial administration.

[Note: This Article seeks to cover all the facts and bring in the legal standpoints as well as point out the need for Constitutional law to supersede the very Act that violates the guaranteed Freedom of Speech & Expression.]