📰 Rajiv Gandhi assassination case | Tamil Nadu Governor will decide on Perarivalan plea in 3, 4 days
Solicitor General informs Supreme Court
•Tamil Nadu Governor Banwarilal Purohit would take a decision “as per the Constitution” in the next three or four days on the plea for release filed by A.G. Perarivalan, who is undergoing life imprisonment for the assassination of former Prime Minister Rajiv Gandhi in 1991, Solicitor General Tushar Mehta orally informed the Supreme Court on Thursday.
•“The Governor will decide as per the Constitution in three or four days,” Mr. Mehta, appearing for the Governor, informed a three-judge Bench led by Justice L. Nageswara Rao.
•The court, however, noted in its short order that the “Solicitor General submitted that the application filed by the petitioner [Perarivalan] under Article 161 of the Constitution of India shall be considered within four weeks from today. List this matter after four weeks”.
•Reacting to the variation in what Mr. Mehta said and what is recorded in the court order, senior advocate Gopal Sankaranarayanan said Perarivalan’s side was planning to mention the case in court for a clarification.
•Mr. Mehta’s submission came in the beginning of the court’s second day of hearing of a petition filed by Perarivalan, senior advocate Gopal Sankaranarayanan and advocate Prabu Ramasubramanian, highlighting the long delay on the part of the Governor to decide on the Cabinet recommendation.
•Though Mr. Mehta’s submission was made during the hearing of Perarivalan’s case, the State Cabinet had made the recommendation to remit the life sentences of seven convicts, including Perarivalan, on September 9, 2018, Additional Advocate General of Tamil Nadu Balaji Srinivasan confirmed. The recommendation to remit their life sentences was advised by the Cabinet under Article 161.
•Other than Perarivalan, the other convicts are Nalini, Murugan, Santhan, Jayakumar, Ravichandran and Robert Pyas.
•On Wednesday, Justice Rao termed the Governor’s delay “extraordinary”. The Bench too noted how a decision was not forthcoming despite the State government’s recommendation.
A surprise
•The new turn of events came as a surprise, as Additional Solicitor General K.M. Nataraj, for the Centre, had argued on Wednesday that the pleas for pardon and release should go to the President instead of the Governor.
•The Centre had, for the first time, raised the point about the Governor’s power to grant remission to Perarivalan under Article 161 in November last.
•But Mr. Sankaranarayanan had consistently argued that a convict was free to choose between the President and the Governor for pardon.
•In earlier hearings, the senior advocate had referred to the Constitution Bench’s judgment in the Union of India versus Sriharan of December 2015, which said the “exercise of executive clemency” was “vested in the President or the Governor”.
•Mr. Sankaranarayanan said the Centre’s rejection in 2018 of the Tamil Nadu government proposal to remit the sentence of the convicts under Section 432 of the Code of Criminal Procedure (CrPC) did not stop the convicts from separately moving the Governor for pardon under Article 161.
•The constitutional power of pardon of the President or Governor was “untouchable and unapproachable and cannot suffer the vicissitudes of simple legislative processes”, he had explained from the Sriharan judgment.
Constitution Bench decision
•The Constitution Bench, in a majority decision, had held that the States cannot unilaterally remit the sentences of life convicts in cases investigated by a Central agency under a Central law. The assassination case was probed by the CBI.
•In compliance with the 2015 verdict, the Tamil Nadu government wrote to the Centre on March 2, 2016, proposing the grant of remission to the convicts. The State wanted the Centre to concur.
•After a wait of over two years, the Centre rejected the State’s proposal, saying this was an unparalleled act in the annals of crimes committed in this country.
•On September 6, 2018, the Supreme Court asked the Governor to decide the pardon plea as he “deemed fit”.
•Three days after the court order, on September 9, the Tamil Nadu Cabinet made the recommendation to the Governor to release the prisoners.
1,92,581 beneficiaries inoculated on sixth day of nationwide COVID-19 vaccination
•The cumulative number of healthcare workers vaccinated against COVID-19 has touched 9,99,065 (till 6 p.m. on Thursday) through a total of 18,159 sessions, according to a provisional report. A total of 4,041 sessions were held till 6 p.m. on Thursday, and 1,92,581 beneficiaries were vaccinated on the sixth day of the nationwide COVID-19 vaccination, said the Health Ministry on Thursday, adding that there are no cases of serious/severe AEFI (adverse event following immunisation) attributable to vaccination till date.
•The Ministry said that 187 minor AEFIs have been reported till 6 p.m. on the sixth day of the vaccination drive.
•It added that enhancement in Co-WIN software has been introduced to cater to the creation of more session sites, more sessions per site, and change in site location, which is now allowed.
•“The enhanced version also allows planning and scheduling the sessions for entire week and works for the enhanced safety of the beneficiaries, tagging of contraindications. These new features are being enabled in vaccinator module,” noted the Ministry.
•Health Minister Harsh Vardhan, on Thursday, unveiled an IEC (information, education, communication) campaign with a series of posters to address the issue of COVID-19 vaccine hesitancy, stating that India is one of the few countries to halt the march of COVID-19 and simultaneously develop a vaccine for COVID-19.
•“Today, the country is seeing a steady decline in active cases,” said the Minister.
•Explaining the role of the vaccination in eradicating diseases, he noted, “The elimination of polio and smallpox was made possible by large-scale immunisation. Once immunised, not only is that person not capable of catching the disease, he/she is also unable to transmit the disease to others, thus passing on the social benefit to the larger society he/she interacts with. This was also the logic of undertaking mass immunisation of women and children against the 12 diseases under Mission Indradhanush. Vaccination against COVID-19 will similarly create persons incapable of transmitting the disease and eradicate the disease altogether in some time.”
•The Minister urged everyone to counter the vested campaigns of untruths and misinformaiton. “Let us put a stop to these falsehoods,” he said.
•“A handful of vested political interests who are interested in spreading rumours and encouraging vaccine hesitancy among those vulnerable to such propaganda in the population. The paradox is that countries across the globe are asking us for access to the vaccines, while a section of our own is misinformed,” he added.
•Meanwhile, India’s active COVID-19 caseload has contracted to 1.92 lakh currently, with 17 States/UTs registering case per million population lower that the national average. India’s cases per million population stand at 7,689, said information released by the Health Ministry. It added that the total number of persons found positive with the U.K. strain of the virus stands at 145 on Thursday.
•The Health Ministry said that five States — Kerala, Maharashtra, Uttar Pradesh, Karnataka and West Bengal account for 73% of the total active cases in the country. A total of 19,965 cases have recovered in the last 24 hours. The total recovered cases stand at 10,265,706, which translates to a recovery rate of 96.75%. “Kerala has reported the maximum number of single day recoveries with 7,364 recoveries, and Maharashtra follows with 4,589 new recoveries,” said the Ministry.
📰 Privacy and surveillance: On WhatsApp user policy change
Data localisation is not the only approach towards protecting data privacy
•Following an exodus of its users from its messaging service, WhatsApp, to apps such as Signal and Telegram, which promise more privacy options, the Facebook-owned service might have been forced to postpone the date for users to accept its new privacy policy terms to May 15. In just days after the earlier announcement by WhatsApp, Signal has emerged as the leading app on “app-stores” as Indian users signalled their discomfort with the former’s data sharing policies. WhatsApp, with 459 million users, had emerged as the leading communications application for most Indians. What has caused patrons discomfort is WhatsApp’s ability to seamlessly share user metadata and mobile information with its parent company and social media behemoth, Facebook. Facebook Inc., which also owns Instagram, has sought to integrate the offerings from WhatsApp, Instagram and Facebook, with the former acting also as a tool that secures payments for services and ads posted on the latter two applications, beyond its primary use as a messaging service.
•This integration of three large consumption products is a means to monetise their everyday use by consumers and considering the fact that Facebook’s revenue model uses data on its platform to allow advertisers to target ads towards users, the algorithms would benefit from the WhatsApp data as well. Such data transfer from WhatsApp to Facebook is not possible in regions such as the EU, where data protection laws have stringent restrictions on storage and transfer of user data. This regionally differential treatment has attracted the attention of the Ministry of Electronics and IT, which has sent WhatsApp a series of queries, including on why Indian users would be sharing information with Facebook, unlike in Europe. The onus is also on the Indian government to quickly take up the legislation for robust data protection, that aligns with the recommendations of the Srikrishna Committee, which tried to address concerns about online data privacy in line with the 2018 Puttaswamy judgment. The draft Bill proposed by the government in 2019 diluted some of the provisos, for example, by limiting data localisation in proposing that only sensitive personal data needed to be mirrored in the country, and not all personal data as mandated by the committee. But data localisation as proposed by the committee may not necessarily lead to better data privacy, as it carries the possibility of domestic surveillance over Indian citizens. Privacy is better addressed by stronger contractual conditions on data sharing and better security tools being adopted by the applications that secure user data. The proposed Bill has some of these features, similar to Europe’s General Data Protection Regulation, but it also requires stronger checks on state surveillance before it is passed.
📰 A case to dispose of mercy petitions swiftly
The prolonged detention of death row convicts in prison is inhuman and against the canons of justice
•Balwant Singh Rajoana, former Punjab Chief Minister Beant Singh’s assassin, was sentenced to death in 2007 by a special CBI court. His mercy petition was filed by the Shiromani Gurudwara Prabhandhak Committee in 2014. In 2019, the Ministry of Home Affairs sent a letter to the Punjab government to commute Rajoana’s death sentence. It said it had taken an “in principle” decision to commute the death sentence as a “humanitarian gesture” ahead of the 550th birth anniversary celebrations of Guru Nanak Dev. But its decision could not be implemented because the Cabinet did not send the file to the President. Rajoana has been incarcerated for over 25 years. The Supreme Court pulled up the government for its laxity and fixed the next hearing for sometime in January 2021.
Abolishing capital punishment
•The delay in carrying out the death penalty is one of the reasons to review India’s position on capital punishment. The debate on the efficacy of the death penalty in reducing crime has been going on for several decades. A few years ago, the issue of abolishing capital punishment was raised in the Rajya Sabha but was rejected by a voice vote. The then Minister of State for Home Affairs, Kiren Rijiju, stated that the government was not contemplating abolition of the death penalty. Through its report in 2015, the Law Commission of India proposed abolishing the death penalty and sought the comments of States and Union Territories on the subject. Despite reminders, just 14 States responded by 2018. Of these, 12 States rejected the proposal, while Karnataka and Tripura concurred.
•India figures among the 56 nations in the world that have retained the death penalty, while 142 have abolished it either by practice or by law. In 2019, the Sri Lankan government put an end to its four-decades-long moratorium on capital punishment when then President Maithripala Sirisena ordered the execution of four drug offenders. He claimed that the move would end the addiction problem in the country. According to Amnesty International, thousands of Chinese are executed in that country every year, though such executions are classified as secret information. In 2018, Iran executed 253 convicts and Saudi Arabia executed 149. However, the total number of executions across the world came down in 2018 to 690 from 993 in 2017.
Setting a time frame
•While the debate on abolition of the death penalty goes on, the delay in the execution of death row convicts coupled with long years of solitary confinement leads to immense psychological trauma for them. The prolonged detention of death row convicts in prison is not just inhuman but also against the canons of justice. It is a small wonder that the courts tend to take a lenient view and reduce the sentence when such cases of prolonged years of detention come before them.
•In India, 102 convicts were awarded the death sentence in 2019, raising the total number of death row prisoners to 378. Death row convicts have suffered imprisonment up to 25 years.
•It goes to the credit of former President Pranab Mukherjee that during his term, he disposed of 34 mercy petitions that had been pending for years. While 30 were rejected, four were given reprieves. While the fact that he rejected 30 mercy petitions can be debated, what is important here is that he dealt with the petitions swiftly. A time frame needs to be fixed for the President to dispose of mercy petitions.
•The lack of accountability of various officials in the government and the courts have adversely affected our criminal justice system. Delays in investigations, court hearings and administrative steps to be taken after the final verdict need to be inquired into, and responsibility fixed.
📰 Defending liberty against political prosecution
Courts need to recognise selective prosecution as a threshold constitutional defence against the abuse of state power
•One of the oldest, most pernicious and widespread forms of abuse of state power in India involves the police and enforcement agencies selectively targeting political and ideological opponents of the ruling dispensation to interrogate, humiliate, harass, arrest, torture and imprison them, ostensibly on grounds unrelated to their ideology or politics, while sparing comparably placed supporters and friends of rulers of the day.
•As a recent example, the November 27, 2020 Supreme Court judgment granting TV anchor Arnab Goswami bail says, not without considerable irony because of the personality involved, “The specific case of the appellant [Arnab Goswami] is that he has been targeted because his opinions on his television channel are unpalatable to authority.” Scores of others are currently so targeted. Many, not as fortunate as Mr. Goswami to be quickly bailed out by the top court, are languishing in prison in inhuman conditions. Is this use of state power legally permissible? Is there no escape for victims of such abuse of state power? Is their only remedy bringing an action for wrongful prosecution years later — if they are acquitted and after suffering through many years of process as punishment? Or is there a legal remedy for nipping this evil in the bud, at the very outset, to protect the life and liberty of the accused?
Separating two legal issues
•The problem is that the illegality involved in this type of prosecution is not self evident. At first glance, the prosecution appears legally kosher — acting on information about legal infractions, the police pursue the accused as per law. The illegality becomes plain when two legal questions are clearly distinguished and separated: first, the legality of the exercise of prosecutorial discretion in the selection of the accused for being investigated and prosecuted; and second, the merits of the criminal case filed against them. The two are independent legal issues and should not be wrongly conflated.
Selective prosecution
•On the first question, the applicable legal standard is that while the police and prosecutors in common law jurisdictions enjoy vast discretion in deciding who they may pursue and who they may spare, the choice of accused must not be based on grounds that violate Constitutional rights, including the Article 14 right to equal protection of the law. The accused should not be selected, either explicitly or covertly, on constitutionally prohibited grounds. The illegal selection of accused based on grounds prohibited by the Constitution is called “selective prosecution”.
•In the words of then Chief Justice W. Rehnquist of the United States Supreme Court, “A selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.” (United States v. Armstrong (1996)). “Selective prosecution” is thus a constitutional claim asserted by defendants to assail the proceedings against them on the basis that they were selected for being prosecuted in violation of Article 14 because the grounds of selection are constitutionally prohibited and are arbitrary. When the choice of accused runs afoul of the Constitution, the entire criminal proceeding is vitiated, irrespective of the determination of the second issue, viz., whether the accused are convicted or acquitted on the charges brought against them. Once the proceedings fail under the first issue, there is no legal basis to proceed to the second issue., i.e., trial on the merits of the case. The theory is that the Constitution cannot be violated to uphold the law — such an approach would spell doom for the Constitution. The selective prosecution claim must be adjudicated as a threshold issue, with the prosecution being quashed at the outset of the criminal case if the claim is justified. In the context of this discussion, the constitutionally prohibited ground we are confronting in India is the political or ideological affiliation of the accused. It is an arbitrary ground that violates the Article 14 guarantee of equal protection of the law.
Common law jurisprudence
•The United States Supreme Court has a long record of experience with the claim of selective prosecution relevant to us as it is based on American equal protection jurisprudence to which our own Article 14 traces its roots.
•In Yick Wo v. Hopkins, the United States Supreme Court said some 135 years ago (in 1886) that to punish some persons for “what is permitted to others as lawful, without any distinction of circumstances [is] an unjust and illegal discrimination”. The Court said further, “Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discrimination between persons in similar circumstances, material to their rights, the denial of equal justice is ...within the prohibition of the Constitution.” Chief Justice William Rehnquist said in Armstrong, “A prosecutor’s discretion is subject to constitutional constraints… One of these constraints, imposed by the equal protection component of the Due Process Clause of the Fifth Amendment… is that the decision whether to prosecute may not be based on “an unjustifiable standard such as race, religion, or other arbitrary classification”…. Justice John Paul Stevens said in the same case, “the possibility that political or racial animosity may infect a decision to institute criminal proceedings cannot be ignored... For that reason, it has long been settled that the prosecutor’s broad discretion to determine when criminal charges should be filed is not completely unbridled…”
Failure of Indian courts
•Our courts have not recognised selective prosecution as an independent claim because of the erroneous assumption that the lawfulness of prosecution can only be taken up after the trial, if the accused is acquitted. Thus, for example, the 2018 Report of the Law Commission on ‘Wrongful Prosecution (Miscarriage of Justice): Legal Remedies’ discusses remedies for wrongful prosecution available only if and after the accused is acquitted. Remedy after acquittal comes far too late, well after a brutal and long drawn out criminal justice process that upends the lives of the victims. Also, the right against selective prosecution cannot be extinguished by conviction. Separate from post-acquittal actions for wrongful prosecution (which will still be available), the claim of selective prosecution is a threshold issue that is required to be adjudicated at the outset of criminal proceedings (even during the investigation stage) irrespective of the merit of the charges.
Importance of Goswami case
•The judgment of Justice D.Y. Chandrachud in the Goswami case is crucial in this regard. It provides a much needed and long awaited legal opening to strengthen the recognition and use of the selective prosecution claim in India to counter politically coloured prosecution unleashed by the state and defend our liberty. In addition to acknowledging Mr. Goswami’s claim that he is being targeted for opinions he holds and expresses, the judgment says, “Courts should be alive to... the need ...of ensuring that the law does not become a ruse for targeted harassment ...The doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponized for using the force of criminal law”. The Goswami judgment also quotes the 2018 Supreme Court holding in Romila Thapar v. Union of India that, “[T]he basic entitlement of every citizen who is faced with allegations of criminal wrongdoing is that the investigative process should be fair. This is an integral component of the guarantee against arbitrariness under Article 14 and of the right to life and personal liberty under Article 21.” To strengthen the protection of civil liberty, equality and democracy, it is time our courts — at all levels — recognise selective prosecution as a threshold constitutional defence against the abuse of police and prosecutorial power.
📰 Getting it wrong on India’s level of agricultural support
The methodology behind the OECD’s numbers, that suggests negative support, has pitfalls and limitations
•The ongoing stalemate between the farmers protesting over the recently passed farm laws and the government has sparked an interesting debate regarding the level of agricultural support. Many media reports, based on data by the Organisation for Economic Co-operation and Development (OECD), have ostensibly stated that the support provided to Indian agriculture is extremely low or negative, and, therefore, net taxed. In contrast, the support provided by the Central and State governments through their various federal and sub-federal schemes is well-documented. This divergence merits a close examination for bringing clarity on this issue.
Estimates and elements
•The OECD estimates the support to the farmers in terms of producer support estimates (PSE), which mainly comprises the following two elements: market price support and budgetary payments. The OECD has estimated that Indian farmers received negative support to the extent of minus ₹2.36-lakh crore and minus ₹1.62-lakh crore in 2010 and 2019, respectively. The support to farmers was consistently negative during 2000-2019, except in 2000. Surprisingly, the negative support of minus ₹1.62-lakh crore as estimated by the OECD was higher than the total budgetary allocation of the Ministry of Agriculture at ₹1.09-lakh crore in 2019.
•Let us look at the logic behind the OECD negative support to Indian farmers by assessing its components.
Substantive expenditure
•Despite the overall negative support, the expenditure of the Central and State governments on agriculture has increased substantially since 2000. This support increased from ₹1.61-lakh crore to ₹3-lakh crore, between 2015 to 2019, registering 85% growth. Expenditure on the Pradhan Mantri Kisan Sammann Nidhi, or PM-KISAN, the National Food Security Mission, crop insurance, input subsidies such as fertilizer and electricity, are some of the measures covered under the 2019 OECD estimates. However, the expenditure related to the operation of minimum support price and general services is not covered by it.
•The massive negative market price support to the producers of different products has resulted in the total negative producer support, overshadowing the increase in the budgetary support over the years. The negative market price support was estimated at minus ₹4.62-lakh crore in 2019. The pertinent question here is what constitutes market price support?
•As per the OECD methodology, the market price support of a commodity is calculated by multiplying its total production with the gap between the domestic price and international prices in a relevant year. Total market support for India is calculated by adding the market price support of the agricultural commodities (of about 20 individuals) such as wheat, rice, cotton, milk, etc.
The consequences
•This methodology assumes that in case there is no government intervention in the agriculture market, then the domestic and international price of a product will converge, resulting in no gap in prices. What are the consequences of the OECD methodology?
•First, if the domestic price for a product is less than its international price, then support for that product would be negative. To illustrate this, in respect of rice and milk, the domestic price was less than the international price, which led to negative support of minus ₹46,605 crore and minus ₹2.17-lakh crore in 2019. For the same year, the support for wheat and cotton was ₹4,034 crore and ₹4,414 crore, respectively.
•Second, a negative market price support for a product in one year can turn into huge positive support in another year on account of the relative movement of domestic and international prices. For instance, in 2018, the domestic price of cotton was lower than the international price, resulting in negative support of minus ₹5,102 crore. However, in the subsequent year, the domestic price exceeded the international price, and the support turned positive to the extent of ₹4,414 crore.
•Third, even if in a particular year, the government does not provide any additional support compared to a previous year, the level of support calculated by the OECD can change. This will arise if there is a change in either the gap between the domestic price and international price for a commodity, or its production, in the two years.
Prices and the gap
•Why the gap between international and domestic prices? The OECD assumes government interventions lead to a gap between the international and domestic prices. However, even if the government does not implement any programme, the gap can still arise due to domestic and international factors. Changes in supply and demand conditions in the domestic and international market due to shocks such as the COVID-19 pandemic, weather conditions, depressed international price due to subsidies given by other countries, among other factors, can generate a gap.
Question the methodology
•Given the unpredictability in the inherent data, the total support can move from huge negative to huge positive. For India, the negative support as a percentage of the total value of agriculture production has substantially reduced in recent years. It is possible that support to Indian farmers in the near future becomes one of the highest in the world due to pitfalls in the OECD methodology. This might set alarm bells ringing, particularly in the developed countries, which may aggressively question India’s support measures.
•Just as beauty lies in the eye of the beholder, the amount of subsidy depends on the methodology adopted for calculating it. Rather than being swayed by the OECD numbers suggesting negative support, farmers, policymakers, and other stakeholders need to understand the pitfalls and limitations in the underlying methodology. This will help in providing a more correct perception of the level of support to agriculture in India.
📰 Are courts encroaching on the powers of the executive?
The courts are increasingly intervening in matters without providing sound legal reasoning
•On January 12, 2021, the Supreme Court stayed the implementation of three controversial farm laws passed in September 2020 and ordered the constitution of a committee of experts to negotiate between the farmers’ bodies and the Government of India. Rather than deliberating on the constitutionality of the three laws, the court appears to be trying to move some of the parties towards a political settlement. Arguably, in doing so, it is wading into the domain of the government.
•Has the court in this case abdicated its constitutional duty mandated by the Constitution and is this a growing trend? Anuj Bhuwania (a Professor at the Jindal Global Law School and author of Courting the People: Public Interest Litigation in Post-Emergency India) and Arun Thiruvengadam (a Professor of Law at Azim Premji University, Bengaluru and author of The Constitution of India: A Contextual Analysis) discuss this question in a conversation moderated by Jayant Sriram. Edited excerpts:
In the present instance of the court staying the farm laws and forming a committee to break the deadlock between the farmers and the government, what really stands out to both of you as problematic about this particular intervention?
•Anuj Bhuwania: What’s really striking here is that nobody asked the court to intervene in this particular manner, to break the deadlock. As the court itself noted in its January 12 order, there are three sets of petitions: one is challenging the constitutionality of the laws and the others are with regard to the protests. None of them ask the court to negotiate between the two parties.
•Now, the court has repeatedly said in its oral comments that it views the protests as completely legal and part of the exercise of citizens’ rights under Article 19 of the Constitution. And it has also said that the police alone can take a call on the security aspect. The court is not even framing these cases before it in legal terms. But it has still gone ahead and intervened in this manner, noting that the government has not been particularly successful in negotiating with the farmers’ groups. It has decided that it can do better than the government and appointed its own committee.
•The court gave the precedent of the Maratha reservation case in which it had issued a stay, but in that instance, the stay was given on constitutional grounds. Here it does not take up any such constitutional issues though these issues have been pleaded before the court by the farmers associations. The issues are of federalism, of agriculture being a State subject, as well as the manner in which the voice vote was passed in the Rajya Sabha, which was controversial.
•Arun Thiruvengadam: If you look at the January 12 order, what is striking is that the court does not even set out clearly what the legal grounds of challenge are. The petition filed by the Bharatiya Kisan Party argues that under our constitutional scheme, agriculture and farm produce are matters reserved under entries 14, 18, 30, 46, 47 and 48 of List II of the Seventh Schedule to the Constitution, which lays out the subjects on which State Legislatures are competent to enact law. The argument is that the Centre simply could not pass the farm bills as it did not have legislative competence.
•Courts are, of course, competent to issue stay orders on parliamentary laws, but they need to set out legal reasons. When you look at the reasoning given by the court, in paragraph 8, the court says, “We are also of the view that a stay of implementation of all the three farm laws for the present may assuage the hurt feelings of the farmers and encourage them to come to the negotiating table with confidence and good faith.” Now, this is a strange reason and arguably not a sound legal reason. To issue a stay, courts usually state the legal and constitutional arguments which make them take the view that the law, on its face, raises a question of constitutional violation. But when the court cites “assuaging hurt feelings” of a section of people who are protesting against the laws as a reason to stay a parliamentary law, the order does not seem to have a clear legal basis. That’s why some commentators have asked whether the court is looking at administrative concerns rather than legal considerations.
•In a different but related case, the Supreme Court told the Delhi Police that the question of whether the tractor protests should be allowed or not is a ‘law and order’ question and that it is for the police to deal with. It said, don’t come to us. This seems particularly strange because the question of the protesting farmers is also a ‘law and order’ question that authorities have to deal with. The constitutional challenge to the farm bills involves far more people and far more serious questions than only the farmers who have gathered at the borders of Delhi. So, it seems to me that the Bench has been inconsistent in how it is approaching these questions.
Broadening the scope of the discussion, is there a case for the Supreme Court, or for the High Courts for that matter, to be more proactive in matters of governance?
•Anuj Bhuwania: In India, almost every political issue gets rapidly translated into legal terms, and there’s nothing inherently wrong with that. In fact, what we see here with regard to the court is not just a problem of commission but also a problem of omission. There are issues central to Indian politics such as the change to Article 370, the Citizenship (Amendment) Act, reservation quotas for economically weaker sections, electoral bonds, and, more recently, the so-called ‘love jihad’ laws which are all extremely politically controversial. What is striking is that the court has shown no urgency in hearing any of them and has refused to pass a stay order in all of these cases.
•On the other hand, the court has very much intervened in matters that are extremely controversial, the most recent obvious example being in the Ayodhya case, if it is determined to do so. So, what we see is that the court is actually abdicating its constitutional responsibility of judicial review. At the same time, it’s acting in usurpation of executive and legislative powers, going beyond the standard areas of judicial behaviour.
•Arun Thiruvengadam: Let me take a slightly broader view. This question of judicial overreach is a phenomenon that has been observed in multiple contexts in various countries. Historically speaking, the idea that judges can exercise review powers to overturn laws enacted by democratically elected governments and Parliaments is of fairly recent origin. It is only in the post-World War II era that this idea has become dominant around the world. This has also led to changes in thinking about the role of courts. For instance, in South Africa, there is an interesting provision in their Constitution that enables courts to enter into a dialogue with legislators to prevent a situation of a legal vacuum. So, the court can point out that a law that Parliament has passed is inconsistent with the Constitution to a particular extent, and can allow Parliament time to fix the identified problem.
•In India, while adopting our Constitution in 1950, the framers of our Constitution made departures from the idea of parliamentary sovereignty, i.e., the kind you see in the Westminster type of Constitution in the U.K. (where Parliament has much greater power as compared to other systems). The framers gave courts the important power to strike down parliamentary laws. Over time, courts have used this power to check the power of the executive, while also extending their own authority. So, to give you an example, take the power of imposition of President’s rule under Article 356. It was initially understood that courts cannot go into the question of whether President’s rule has been properly imposed as this was based on the ‘subjective’ satisfaction of the President, but the Supreme Court has held that even that high power can be reviewed, at the very least on procedural grounds (S.R. Bommai v. Union of India).
•So, these are some of the trends that led to the Indian Supreme Court being described routinely as the world’s most powerful court, from about the 1980s till about 2015. But in all the recent cases that Anuj has mentioned, where legal and constitutional questions were raised, the court simply has not taken on those questions, and has put them in cold storage, often for years at a time. Instead, it is choosing to intervene in cases which are arguably less consequential or relevant, leading to questions being raised about the legitimacy of its intervention. Looking at the work of the court since 2017, it is quite debatable whether it is as strong a defender of constitutionalism and rights as it was in previous years.
•Anuj Bhuwania: Usually when we talk about the Supreme Court, we say that in the initial period it was a more conservative court and then it became more radical over time. But even if you look at the so-called conservative period and the big-ticket political issues that came its way such as land reforms, reservations, the use of Article 356, bank nationalisation, privy purses etc., these are all issues on which the court actually adjudicated pretty promptly. Not necessarily in ways that many of us may agree with but the point is that the court didn’t shy away from giving its opinion. But what we’re seeing recently is the court is very reluctant to take up constitutional challenges to similarly politically controversial moves. That’s quite unfortunate.
Can we point out instances in which the court has played a positive role in protecting or advancing the rights of various groups, in some cases, perhaps even taking up issues before the executive could come to them? Has the manner in which the courts have done so changed over the years?
•Arun Thiruvengadam: The classic justification for taking up these cases is to uphold the interests of a group which cannot prevail in a majoritarian system of elections, which are important but not the only concern of constitutional democracies. I think a classic instance fairly recently where the court was seen as performing that role is in the Navtej Johar case (Navtej Singh Johar v. Union of India) which relates to the question of the LGBTQ community and specifically on the question of decriminalisation of Section 377. This is an issue that the courts grappled with for a fairly long time. We know that LGBTQ populations in any human population are going to be a fairly small number. So, for them to run a political campaign and get a majority in Parliament for their position was going to be difficult. After a long struggle and considerable back and forth, the court finally decriminalised same sex relations in 2018.
•Anuj Bhuwania: The court’s record of acting in a counter-majoritarian manner is extremely erratic if not non-existent. Even if we take the Navtej Johar case as an exemplary instance, it was preceded by the Kaushal v. Naz judgment, where the court dismissed the LGBTQ community as a minuscule minority. The court has not been particularly interested in performing any counter-majoritarian role for a long time now. The Navtej Johar judgment is more like the exception that proves the rule. I would say in general that when we look at the court’s role we have to think of it more institutionally, we have to think about how it grounds its decision in terms of its reasoning. And look at its politics somewhat expansively — not just in terms of outcomes and who it benefits, but also in terms of its process. And the process includes who it hears and how it hears but also how it decides in terms of its reasoning.
