The mainstream media especially the TOI through Manoj Mitta has made one and all aware of para 22 (SCC) of Kusum Ingots which reads thus:

22. The Court must have the requisite territorial jurisdiction. An order passed on a writ petition questioning the constitutionality of a parliamentary Act,whether interim or final keeping in view the provisions contained in clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act.

Today, we’ve had a well reasoned article on this by my dear friend Shiv in the IE where he argues that the judgment will be confined in its operation to the territory of Delhi. There is a counter post on Law & Other things which seems to suggest that the problem lies with the absurdity of a High Court mandating the country’s Parliament with a writ and the solution lies in the declaratory jurisdiction of the High Court, akin to that exercised by the English courts under the Human Rights Act in declaring a legislation to be not in conformity with the European Convention of Human Rights (ECHR); thus leaving the formal act of repealing the legislation or part thereof in question, to the Parliament.

I dare to venture to add my 2 pence to these well articulated views albeit without any profound jurisprudential basis (which I am not qualified to profess) or principles of private international law, and I do so in support of Shiv’s views:

With the greatest respect to Sinha J., the contents of para 22 of Kusum Ingots in my humble view are mere casual observations, having no binding effect considering the issue was not germane to the dispute in question and from the text of the judgment was not argued by either parties. The issue in question was whether a particular High Court had the jurisdiction to entertain the writ petition in that case. The proposition in para 22 appears to be a corrollary drawn by the court from what is truly the ratio of the case i.e. the import of clause 2 of Art. 226.

The statement of law in the said para 22 does not seem to have a prelude as a basis in the text of the judgment. The only purported basis is clause 2 of Article 226. The legislative history of the said clause would suggest that it was drafted into the Constitution with a view to get over the anamolous interpretation prevailing at that point; namely that to seek a writ against a central authority seated in Delhi, one had to approach the Delhi High Court and none other. The said clause was brought in to expand the accrual of cause of action to include a partial cause; more particularly where the authority in question was seated outside the terrtorial limits of the High Court that could be approached.

I am unable to comprehend as to how a neccessary corrallary of this expanded accrual of cause of action would be the expansion of the territorial jurisdiction of a High Court for the purposes of the effect of its order.

There is no discussion or consideration in Kusum Ingots of the fact that apart from Art. 226(2), there is nothing in the constitution to suggest the expansion of the territorial jurisdiction of a High Court.

If one argues that the basis of para 22 of Kusum Ingots is the fact that compliance of the order can be ensured by a High Court through the presence of the Respondent within its territory then the said proposition would necessarily have to be qualified by the fact that such compliance would have to be only qua the territory over which the High Court has jurisdiction.

The proposition in para 22, though seemingly fair in the context of the Naaz Foundation verdict to the extent that it would help confer the benefit of the verdict upon evereyone across the country; does not take into consideration the scenario where there could be more than one and even conflicting fundamental rights and if as a result of a verdict of a High Court, one fundamental right is given precedence over the other, then why should any citizen not within the territory of such High Court, who claims the latter fundamental right, loose the same without an opportunity of agitiating the same.

The proposition renders the quasi federal structure of our constitution and of our judiciary a dead letter to the extent that it purports to give an order under Art. 226 the effect of one under Art. 32 till such time that a citizen moves the Supreme Court under Art. 32 to reverse the same.

Bottom Line: The proposition in para 22 of Kusum Ingots apart from not being law under Art. 141 of the Constitution by virtue of being a casual observation, nonetheless ought to be qualified with many an exception and most importantly with the fact that a verdict of one High Court does in any manner whatsoever take away or restrict the right of a citizen residing within the territory of another High Court to approach such a Court seeking a contrary verdict.

This proposition though sounds fine from the perspective of confering a benefit upon all citizens of the country equally, in a reverse scenario has the effect of punishing a citizen residing in another High Court’s territory for not been proactive and sitting pretty over the rights, which he legitimately thinks, stand accrued to him under the Constition or any law applicable to him.

At best, it could be suggested that the Government, when it finds that a benefit is accruing to citizens as a consequence of a HC ruling, as a matter of practice may honour the ruling across the country till such time that the matter is adjudicated by the SC.

Before parting, I must clarify that in the context of the Naaz Foundation case, I would not complain if Kusum Ingots is considered the gospel till such time that the Supreme Court pronounces on the matter.

The most encouraging of these are the views of the 15th Law Commision headed by Justice B.P. Jeevan Reddy which sought to shift the focus to child abuse by deleting Sec. 377 and amending Sec. 375 to cover non-consensual sex in general:

After the changes effected by  us in  the  preceding  provisions (sections 375 to 376E), the only content left  in  section  377  is  having  voluntary carnal intercourse  with  any  animal. We may leave such persons to their just deserts.

Come tomorrow and India will have a new Chief Election Commisioner (CEC), Mr. Naveen Chawla. He takes over this high office at a time when the elections to the Lok Sabha are underway and after having had a few months of controvertial existence; courtesy an adverse recommendation by the outgoing CEC Mr. N. Gopalaswami. This recommendation threw up a number of questions, whether valid or otherwise. Those that drew the maximum attention were that of the timing and the suo moto nature of the recommendation. 

As for the timing, Mr. N. Ram of The Hindu took the lead and thence received a sufficiently elaborate factual response from Mr. N. Gopalaswami himself; which has made any talk of the timing incredulous. A fellow blogger at INI too had analysed the credibility of this allegation. As for the argument against a suo moto recommendation, the same is a double bind of sorts for the BJP. When the BJP approached the then President Dr. Kalam, the Government took it upon itself (rather than the President), not to forward the matter to the CEC for its recommendation. And when the BJP approached the CEC, it cried fowl that the CEC had dealt with the BJP’s petition. Contrary to the generous references that it has drawn in the media, the T.N.Seshan case of 1995, did not deal with the sequence of exercise of, the power to recommend, by the CEC. 

Today, the controversy seems to have been buried and forgotten, well in time to usher in the new CEC. Even the outgoing CEC does not want to talk about it and believes that the President has had the final word on the issue and hence it is closed. 

This brings us back to an issue that I thought was of most consequence, that of the next step after the recommendation was made. This issue seems to have been lost in the tangential rhetoric that followed the recommendation by Mr. Gopalaswami. The double bind that the Union Government has engineered is based on the assumption that the Cabinet is the final arbiter on the matter. This assumption was, not surprisingly, echoed by the Union Law Minister, Mr. H.R. Bharadwaj, when he said while speaking to the press that “I have to see what is new in the matter” and “when a decision is taken, we will inform you”.  

This begs the question as to whether Mr. Bharadwaj or anyone in the Union Council of Ministers had any business at all to consider the matter.

The answer lies in dispelling a largely held misconception that the President, is a titular head for all purposes whatsoever viz a viz the Council of Ministers . This misconception has two main basis; first, our constitution requires that the President must have a Council of Ministers to aid and advice him at all times, hence the necessity of an acting Prime Minister; second, Art. 74 of the constitution which provides that there shall be council of ministers to aid and advice the President only affords the President the leeway to request his Council to reconsider their decision once; but not any further. 

In reality, one of the many subtleties of the functioning of India’s unique constitution, are the instances when the President cannot possibly act on the aid and advice of his Council, lest it lead to absurd results. This room of discretion afforded to the President has been long recognized through many decisions of the Supreme Court (SC). 

• First in 1964, while deciding on the issue of the age of a Calcutta High Court judge, to be determined by the President under the constitution; the SC categorically held that the President himself should decide, uninfluenced by the Executive, i. e., by the Minister in charge of the portfolio dealing with Justice. Again in 1971, when the same matter revisited the court, it went to the extent of clarifying that even for all communications in the matter, the President’s Secretariat should be the channel and that “there must be no interposition of any other body or authority”. 
• In 1965, when deciding on the power of a Governor to disqualify a member of the legislative assembly upon the opinion of the Election Commission; the SC  clarified that the Governor “is not required to consult his Council of Ministers”. 
• In 1974, the SC, on a general note conceded that that though the President and Governor, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers, there do exist few well known exceptional situations. As illustrative instances, it cited the choice of Prime Minister and the dismissal of a Government which has lost its majority in the House but refuses to quit office. 
• In 1982, the SC had to decide on the sanction for prosecution of Mr. A.R. Antuley, having been the Chief Minister, by the Governor. It held that in such a situation, the Governor must “as a matter of propriety, necessarily act in his own discretion and not on the advice of the Council of Ministers.”
• More recently in 2004, the SC again while dealing with the sanction for prosecution of a Minister by the Governor, explained that “there may be situations where by reason of peril to democracy or democratic principles an action may be compelled which from its nature is not amendable to Ministerial advice. Such a situation may be where bias is inherent and/or manifest in the advice of the Council of Ministers.” These words to my mind best describe the situation at hand; the allegation against Mr. Chawla being that of bias towards the largest component of the Union Cabinet, the Congress Party. 

Lastly, the one judgment that has been made the cornerstone of all criticisms of the CEC’s recommendation is that of T.N. Seshan (1995) and in particular a line therein where the court observed that the CEC in recommending removal of a commissioner should not do so “as per his whim and caprice”. These words of caution from the SC do not take away from the fact that Mr. Bharadwaj or his colleagues in the Cabinet have no business to  judge the recommendation. That, it is the sole preserve of the President, is beyond doubt in view of the catena of decisions on the discretionary scope of the President’s functions. 

Less than a month after the Bombay High Court had pulled up the Maharashtra Government for its overt inaction with ensuring law and order viz  the activities of the Maharashtra Navnirman Sena (MNS), the MNS is at it again. The High Court had remarked :

“If the government does not have any political will, then it should send out a message to the people that it cannot do anything….” 

To add insult to the injury faced by the people of Mumbai, the State government had last week filed a ludicrous affidavit claiming lack of evidence against Raj Thackeray to make out a cognizable offence. The affidavit, is reported to have noted :

“Officers investigating the offences registered against MNS activists were instructed to examine the role of Raj Thackeray. They have reported so far that there is no evidence pointing to the direct involvement of Raj” 

As has been the case with many an issue in this country where political will is found lacking, the common man can only look up to the judiciary in despair; the next hearing is scheduled for the 29th of November. 

A. G. Noorani recounts the origins of the Article in a write up in The Statesman dated 17 July 1998 [Constitutional Questions in India, OUP, 2004] by noting that it “was not entirely born in sin, but it was conceived in murky circumstances.” Referring to B. Shiva Rao’s compilation on the papers that went into framing the Constitution, he notes that this was an article which found its place in the Constitution by way of a check suggested by the Dewan of Jaipur among others to balance what was perceived by them as unparalleled emergency powers which now find place in the Constitution in their entirety.

The suggested Article read as follows :

It shall be the duty of the union to protect every state against external aggression and, upon a request from the executive government of a state, to protect or restore the duly constituted authorities of of that state in the event of domestic violence or insurrection’. 

Interestingly enough, the vital bit on a request was dropped when paving way for the article in its present form. Dr. Ambedkar while explaining the rationale behind the article in the Constituent Assembly drew parallels with the American and Australian Constitutions which pertinently have the vital facet of an application from the executive government of the state in that regard. 

Thus Bommai’s case explained the import of the article by stating that it was not an independent source of power for interference with the functioning of a state government but was in the nature of a justification for the exercise of the powers under Art. 356 and Art. 357.  Hence the vital deletion from the originally suggested article changed its character from that of a ‘duty’ to be discharged by the Centre to being a measure of reprimand to be exercised by the Centre and thus make the ground for more drastic action under the emergency provisions. 

As for the circumstances under question today, though I would without any hesitation condemn the attacks on christians in Karnataka and Orrisa (irrespectgive of the genesis of the problem which itself requires a deeper examination and remedial action), I can’t help wonder as to what is the yardstick to measure internal disturbance under Art. 355 being adopted by the Central Govt. Was Nandigram not good enough as was in fact suggested by Mr. Advani ? Are the incidents (loss of peace and property) resulting from Raj Thackeray’s campaigns in Maharashtra not good enough as pointed out by Mr. Jaitley ? 

The issue of parity apart and more importantly in the context of the original intention behind this provision in the Constitution, I can’t stop myself from thinking of the failure of the Central Govt. in terms of the lack of political will it unapologetically shows and some overt actions and inaction in dealing with the internal disturbances that have become a horrifying routine throughout the country. Hence I am reminded of a decision of the SC of 2005, Sarvananda Sonowal’s case wherein the court had the occasion of examining a legislation which was undoubtedly a result of the aforesaid consistent policies of the political dispensation at the helm in the Centre today; the Illegal Migrants (determination by tribunals) Act, 1983 (enacted under the premiership of Mrs. Gandhi), the title of which is a clear misnomer in view of its real intentions. The Act was challenged whilst questioning the intention behind it and its latent and patent effects. 

The court in striking down the said Act relied on Art. 355 and held as follows :

38. This being the situation there can be no manner of doubt that the State of Assam is facing “external aggression and internal disturbance” on account of large scale illegal migration of Bangladeshi nationals. It, therefore, becomes the duty of Union of India to take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution. Having regard to this constitutional mandate, the question arises whether the Union of India has taken any measures for that purpose. ……42. The above discussion leads to irresistible conclusion that the provisions of the IMDT Act and the Rules made thereunder clearly negate the constitutional mandate contained in Article 355 of the Constitution, where a duty has been cast upon the Union of India to protect every State against external aggression and internal disturbance. The IMDT Act which contravenes Article 355 of the Constitution is, therefore, wholly unconstitutional and must be struck down. 

The court though has qualified its sanction to these reservations by stating :

1. The Creamy layer has to be excluded lest the reservations become unconstitutional.

2. There has to be a periodic review every 5 years on the effectiveness of the said reservations.

Thus, while the anti-reservationists sought a surgical remedy, the court has handed out a balm. The court though cannot be faulted for failing the Petitioners simply because they were shackled by the judgement of 9 judges in Indra Sawhney I which is turning out to be a historically damaging decision to our dream of a caste-less society.

The individual views of the 4 judges who pronounced their judgments made an interesting reading too. The Chief justice did not find any fault with the Act or the Constitutional amendment or the identification process but only emphasized on the exclusion of the creamy layer which would have to determined according to the 1993 Office Memorandum. He also did not find fault with the lack of a time frame in the said Act.  He held that the 27% figure could not be questioned and also added that the suggestion that those having completed their 10+2 ought to be excluded, cannot be accepted. He thus interpreted OBCs to be socially and educationally backward classes in this context. However, he sought a10 yearly review of the implementation of these measures.

Mr. Justice Arijit Pasayat speaking for himself and Mr. Justice C.K. Thakker emphasized on the exclusion of the creamy layer and suggested a 5 yearly review. He made some very significant suggestions: To ensure room for merit, there must be a fixed cut off criteria for the OBCs with a fixed concession such as 5 grace marks. If they are unable to make the cut even with the fixed concession then they ought not to be given the seat and the same should be offered to the general category.He also came down heavily on the commission for BCs saying that it was not a body merely to add castes in the lists but it should rather work in a more comprehensive manner to make reservations meaningful. He also added that the stress should be on primary and secondary education rather than the advanced stages in providing such support systems.

Mr. Justice R.V. Ravindran concurred with with the Chief Justice and Mr. Justice Pasayat.

All of the above named Justices left unanswered the question as to whether the constitutional amendment violated the basic structure by imposing reservations on private un-aided institutions since none of the private players had petitioned the court.

The lone dissenter, though partially, was Mr. Justice Dalveer Bhandari. Though he upheld the Act, inter alia he held:

1. The constitutional amendment is violative of the basic structure viz the private educational institutions.
2. The creamy layer must be excluded and children of MPs among others are automatically included in the said layer.
3. The Government should stress on upholding Art. 21A and thus should focus on primary education.
4. He noted that he “was compelled” to uphold the validity of caste as a criteria for reservations in view of Indra Sawhney I and added that this could not be allowed in perpetuity. He said that caste as a criteria could be continued only for the next 10 years and thereafter it should be a purely economic criteria.
5. He also added that those who were graduates could by no means be classified as educationally backward and hence should be ineligible for this reservation.

What this judgment implies for us: Caste based reservations are to stay in educational institutions but minus the creamy layer. The silver lining in this verdict is the scope for review every 5 years. Thus whenever (if and when) we have the political will, a difference could be made to make these reservations meaningful rather than rendering them a mere political gimmick.

Let’s hope the political will does emerge some day !

The Parliament in Britain had its own history and thus a clear necessity of the same for myriad reasons and situations. Indian parliamentarians have written their own history over 58 years and perhaps have made it clear that they are undeserving of most of such privileges.

No doubt a parliamentarian must have the independence to fearlessly represent his people without a sword hanging over him; thus the necessity of the protection. But to what extent should this protection go ?

A classic case of the undeserving nature of the protection was seen in the JMM bribery case wherein MPs voted in favour of a motion in view of illegal consideration (read bribes) and yet got away on a strict reading of the constitutional provisions providing for these privleges by the Supreme Court.

The matter revisited the Supreme Court when certain MPs who were disqualified from the Lok Sabha (and quite rightly) for having sought monetary consideration to pose queries in Raja Ram Pal v. Speaker, Lok Sabha. These MPs challenged the action suspending them. The court posed 2 questions : 1) Did the House have such a  power 2) Does the court have the power to even examine the manner of exercise of such power/ privilege ?

The court answered the first question in the affirmative and thus sealed the fate of the MPs in question. More significantly, the court also answered the second question in the affirmative while breaking fresh ground (and in my humble view impliedly overruled the JMM bribery case).

It inter alia held that though on limited grounds, the exercise of a parliamentary privilege is indeed amenable to judicial review simply because the Constitution does not allow absolutism of either of the 3 pillars of the Republic. As painful as it may have been for people like the present Speaker of the Lok Sabha, the court rightly held that the separation of powers theory could not be taken to the extreme of being treated as a fairy tale. It also rebuffed any reliance on British precedent simply because of the difference in conditions and the variance in our constitutional set up.

More importantly, the court presumably mindful of the level of politics and attitude of politicians in our country, in an unprecedented observation stated as follows:

Ordinarily, the legislature, as a body, cannot be accused of having acted for an extraneous purpose or being actuated by caprice or mala fide intention, and the court will not lightly presume abuse or misuse, giving allowance for the fact that the legislature is the best judge of such matters, but if in a given case, the allegations to such effect are made, the court may examine the validity of the said contention, the onus on the person alleging being extremely heavy;

After the SC laid down this land mark dicta, the Maharashtra Assembly has provided a classic opportunity for the court to exercise this extraordinary facet of judicial review by imprisoning the State Election Commissioner. The onus will be high but if the commissioner’s statements are to be believed, he will make the break.

Incidentally the Petitioners (Good Governance India Foundation) had also sought to question the constitutionality of the 42nd Amendment to the Constitution to the extent of the insertion of the word ’socialist’ in the preamble to the Constitution. The Court though did not issue notice on this prayer.

The questions before the court among others are whether the said provisions are violative of Art. 19 (1) (a) [freedom of expression] and Art. 19 (1) (c) [freedom of association] of the Constitution depending on whether the compulsory allegiance to socialism is a reasonable restriction as provided for under the Constitution or not.
In the National Anthem Case the Court held in favour of two Jehova’s witness who refused to sing the national anthem. The basis of the decision was that public morality or national sovereignty is not threatened by the students not singing the national anthem. What the case also established is that the restrictions on fundamental rights on the grounds of ‘allegiance’ and the like will be frowned upon.

It remains to be seen as to how the Government will defend the said provisions without falling back on the word in the preamble which was also challenged.

No doubt the vote of confidence in Goa in Feb 2005 or in Nagaland on Dec 13, 2007 was not without contention.

But the law on this situation is settled by the Meghalaya scenario  in Bommai’s case. And it goes without saying that the law must be certain and uniform in such cases. The Court had held in such a case that if the Governor for any reason doubts the manner of conduct of the floor test, he ought to re-order the same rather than count numbers at the Raj Bhavan and thus take a decision himself .

In August 2007, a Congress Govt in Goa saved itself through one of the most innovative use of the Speaker’s chair  in India’s constitutional history; suspension of legislators for changing coalitions and not parties. If this vote of confidence was considered the final word, why not those in Goa in 2005 and Nagaland last month ?

The Bhuta Singh fiasco in Bihar too has not made any difference to the Congress’ constitutional think tank.  

Shameless is the word !

This is not surprising considering that similar petitions having been dismissed by the SC and the Delhi HC right after the signing of the deal.

The court cannot be faulted for firstly the petitioner was not specific as to his prayer (under the existent constitutional regime the Parliament in fact does not have a role to play as there is no requirement for ratification) and secondly he did not refer to the August 2006 PIL which I would suppose is pending in the court.

Interestingly another PIL is pending in the Bombay HC on the matter.

The bottom line is that if petitioners continue to seek the moon in their prayers and get into the merits of the treaty in question they will obviously not get anything. The prayer ought to be akin to what has been sought in the August 2006 PIL.

The premise should be that there is a lacuna (casus omisus) in the Constitution as there is no provision for ratification. The anomaly can be illustrated by the fact that if a bill seeking to deal with stray dogs in the country is tabled in the Lok Sabhait will have to passed there, then the Rajya Sabha and then would have to get the assent of the President. Even after this process, a citizen can challenge the said law under Art. 226 or Art. 32 in a HC or the SC respectively if he feels that it is violative of his fundamental rights.

Bizarrely enough if a treaty is as or more infringing, one can do nothing !

Similarly if the constitution is amended in a manner that disturbs the basic features of the constitution, it can be challenged under the Keshavanda ruling.

Bizarrely enough if a treaty disturbs the basic features, one can do nothing !

Leaving aside the merits/ de-merits of the N-deal (over which I am not competent to comment), it is necessary to focus on this constitutional anomaly.

One could perhaps seek the invocation of Art. 142 of the Constitution asking the court to read the requirement of ratification in the constitution as it is the guardian of the constitution and democracy is one of the basic features of the same. A challenge to the merits of any particular treaty though would have to be seen from the perspective of the principles of an ‘Act of State’.