Monday, July 01, 2013

Jurisdictional Questions and the Pending Naz Appeal in the Supreme Court

Last week, in Hollingsworth v. Perry, the U.S. Supreme Court rejected an appeal from a lower court’s decision invalidating California Proposition 8. That Proposition amended California's state constitution to prohibit same-sex marriage. After a full-fledged trial, the Proposition was struck down as unconstitutional by a U.S. district court in San Francisco. Since California’s state government did not appeal this ruling, the U.S. Supreme Court held that the Proposition’s original sponsors had no standing to do so. Thus, the Court let the district court’s decision remain undisturbed. 

There is a similar gay-rights case presently before the Indian Supreme Court. It is an appeal against the Delhi High Court's 2009 Naz Foundation judgment. In Naz, the High Court held Section 377 of the Indian Penal Code unconstitutional for criminalizing sexual relations among consenting same-sex adults. Appeals were filed against this judgment before the Supreme Court. Hearings on the matter concluded in April 2012. We now eagerly await the Court’s decision.

Naz came before the Delhi High Court through a writ petition under Article 226 of the Constitution. The petitioner, Naz Foundation, is a non-governmental organization involved with HIV-AIDS intervention and prevention. It took two rounds of litigation (including a Supreme Court remand) for the Foundation to establish its standing to bring the case before the High Court. The National Capital of Delhi was the main respondent. The Union of India was also an original respondent in these proceedings. All the principal parties (the petitioner and two government respondents) accepted the High Court’s decision holding Section 377 unconstitutional as it applied to same-sex consenting adults. In fact, the Union of India, whose responsibility it is to defend and enforce existing laws, pointedly declined to pursue an appeal. This decision was taken by group of senior ministers some of whom praised the High Court's verdict.

Unfazed by the government's position, appeals were filled by a motley assortment of private individuals and groups. Some appellants had not even participated in the High Court’s proceedings, while the others were mostly intervenors. Through written and oral submissions, Naz Foundation's lawyers challenged the appellants’ standing to approach the Supreme Court. Yet, as an unofficial hearings transcript reveals, the bench did not spend much time on this jurisdictional question. In particular, the judges offered no recorded reaction to the Attorney General’s categorical statement that the government fully accepted the High Court judgment. Thus, the hearings appear to have concluded without properly debating the third-party appellants’ legal standing to maintain the appeal. Given last week's Perry decision, it is not too late for the Court to do so as it prepares to render a final judgment. At stake is an important constitutional principle and the Court’s own juridical practice.

To be sure, the Perry and Naz cases are factually distinct in many respects. The applicable constitutional frameworks also differ substantially even if some of the issues were broadly similar. At the same time, the two cases exhibit some striking parallels. In both matters, interested parties successfully challenged statutes unfairly targeting gay and lesbian citizens. After elaborate hearings, lower courts found these statutes to be unconstitutional. In each case, senior government officials (California state officials in Perry and the Union of India in Naz) accepted these findings and filed no appeals. Yet, private parties in each instance filed appeals against the underlying judgments. They sought to make up for the governments' refusal to appeal.

As Chief Justice Roberts points out in his majority opinion, the Perry appellants lacked standing for two reasons. First, although these appellants were the main sponsors of Proposition 8, they failed to establish any direct legal injury when the district court ruled the Proposition unconstitutional. Those, in fact, "injured" in the litigation were gay and lesbian plaintiffs whose same-sex marriages were blocked by the Proposition. Yet, having successfully obtained relief from the district court, those plaintiffs -- and the State of California whose interests were also affected -- had forgone their right to appeal. Second, the private Perry appellants were not the government’s defacto agents who could defend or enforce California’s laws. In addition, they could not be said to represent the people of California for purposes of the appeal.

Perry’s reasoning is strong and compelling. It emphasizes that, irrespective of the constitutional questions presented, appellants must have a proper interest to invoke an appellate court's jurisdiction. This is a well-settled common law principle. It is followed not only in the United States but in India as well.  It is certainly undeniable that the Indian Supreme Court enjoys a much wider jurisdictional base than the American apex court. Yet, like its U.S. counterpart, the Indian Supreme Court observes certain prudential and jurisdictional considerations to control its appellate docket. Party standing is one such consideration. Contrary to widespread perception, the Indian Supreme Court's extensive appellate jurisdiction and constitutional powers do not exempt appellants from explaining why the Court should take their case. The Naz appellants have failed to meet this requirement.

It’s important to remember that the Naz appeals are not writ petitions under Article 32 of the Constitution. Rather, the appellants challenge the High Court's judgment under Article 136. That provision enables the Court to allow appeals with “special leave.” As the Court has repeatedly emphasized, Article 136 is a discretionary jurisdictional base. Parties do not enjoy an unfettered right to invoke this remedy, and the Court must be satisfied that they have valid reasons to appeal. As the ever colourful Justice Krishna Iyer muses: “though parties promiscuously provoke this jurisdiction, the court parsimoniously invokes the power.”

It is true that, in Naz, the Delhi High Court decided important constitutional questions. However, when neither the petitioner nor respondents have challenged that decision, third-party appellants must establish how and why their interests are affected by it. In other words, if the principal adversaries in the underlying lis have fully accepted a lower court's findings, an appellate court should be extremely wary of reopening the case. To put it differently, the two teams have left the stadium after a full and fair game. They are content with the umpire's rulings and the final outcome. It seems inconceivable that spectators can now come out to the pitch and demand a rematch involving them.

In neither their written nor oral submissions do the Naz appellants convincingly explain how they are impacted by the High Court judgment. Interestingly, their reticence to address this central jurisdictional question is at sharp variance with their Perry counterparts. Indeed, the Perry appellants spent a considerable amount of time and money explaining why they were entitled to appeal from the district court. As Proposition 8's original sponsors, the appellants recounted how they had gathered signatures, raised money, and campaigned vigorously for the measure. But the U.S. Supreme Court was unimpressed. It held that, in defending Proposition 8, appellants were seeking to assert a governmental function which was impermissible. Of course, this logic provoked a mild dissent from Justice Kennedy. However, his minority opinion largely focused on why the appellants derived their standing by defending a law of their own creation.

By contrast, the private Naz appellants can hardly claim any involvement with either the original enactment of Section 377 or its subsequent retention on the statute book. In fact, it was only after the High Court’s judgment that some of them emerged from the shadows. When asked why they were before the Supreme Court, some appellants baldly claimed that homosexuality violates their religious sentiments. Others argued that they were seeking to uphold public morality. But it is difficult to see how such arguments assist the Naz appellants in maintaining their appeals.

At most, the appellants could claim that the High Court judgment infringes their constitutional right to religious freedom. But our Constitution does not protect every religious belief or practice. According to a long line of Supreme Court cases, only “essential” religious practices or traditions are constitutionally protected. Therefore, in order for the Court to sustain the appellants’ religious beliefs, they must establish that a proscription against homosexuality is an essential practice of their religious faith. Appellants do not even pretend to make this argument, which severely dents their jurisdictional claims.

Appellants’ standing is also unaided by their curious invocation of public morality. First, it is difficult to comprehend how the appellants can invoke their own conceptions of morality to demand restrictions on others' rights. Under our constitutional framework, only the State can impose such restrictions, and any such restrictions must be reasonable. Here, the High Court held that Section 377 was an unreasonable morality-based restriction on same-sex adults. The State accepted this decision. A group of private parties cannot now demand that the State reinstate the unconstitutional restriction. Second, as the Delhi High Court has pointed out, only constitutional, and not religious, morality can be a legal touchstone to restrict others' rights. Moreover, since securalism is a basic feature of our Constitution, appellants cannot insist that the State must make or enforce laws that uphold their religious morality while overlooking the fundamental rights of others.

It seems amazing that appellants defend a statute that two co-equal branches of government (the judiciary and executive) have clearly determined to be unconstitutional. Furthermore, the appellants overlook the fact that the third branch (the legislature) has made no attempt to overturn the High Court's judgment. Simply put, the Naz appellants’ jurisdictional position rests on a vague assertion of parens patria to serve their narrow and parochial interests. Previous invocations of the doctrine – mostly by the government -- have been problematic. It’s difficult to imagine how and why private parties should be allowed to do so here.

If third parties are permitted to maintain appeal without clearly establishing their legal interest, we run the risk of transforming an adversarial appellate process into an advisory or political one. Such a course of action would also undesirably loosen the locus-standi requirements in appellate litigation and open the floodgates to all kinds of cases. As the U.S. Supreme Court indicates in Perry, it has never before permitted private interveners to defend an unconstitutional statute where the government has pointedly declined to do so. To my knowledge, the Indian Supreme Court has followed the same practice. With the greatest respect, it should avoid reversing that practice in the Naz appeals.

Equally, it is difficult to see how the appellants can prevail even under the permissive standing rules of public interest litigation. In several PIL cases, the Supreme Court has refused to recognize the locus standi of third-party individuals and groups whose interests are not directly affected. A notable decision is Janata Dal v. HS Chowdhury, where the Court demanded that third parties must clearly establish their standing before pursuing any litigation in the public interest. This decision was followed in Win Chadha and Simranjit Singh Mann where the Court declined to hear cases filed by third-party litigants whose motives it suspected.

Most apropos is Justice PN Bhagwati's caution in SP Gupta. That great pioneer of Indian judicial activism warned courts against those who abuse the public interest:
cases may arise where . . . there is a specific legal injury to an individual or to a specific class or group of individuals. In such cases, a member of the public having sufficient interest can certainly maintain an action challenging the legality of such act or omission. [B]ut if the person or specific class or group of persons who are primarily injured as a result of such act or omission, do not wish to claim any relief and accept such act or omission willingly and without protest, the member of the public who complains of a secondary public injury cannot maintain the action. [T]he effect of entertaining the action at the instance of such member of the public would be to foist a relief on the person or specific class or group of persons primarily injured, which they do not want.
Justice Bhagwati’s observations apply with alacrity to the Naz appeals. It is unclear whether these observations were brought to Justices Singhvi and Mukhopadhayay’s attention during the hearings. In any case, one respectfully hopes that the learned judges will reflect on Justice Bhagwati's words as they draft their opinions. Indeed, both judges have previously dealt with jurisdictional questions in other contexts. To mention just one example, their common decision in Village Panchayat Calatunge demonstrates that the two jurists have an excellent grasp over these questions.

More to the point, our Constitution does not ordain that the Supreme Court must settle every constitutional question. A high court is equally competent to authoritatively interpret our constitutional framework. There are numerous instances in which the Supreme Court has refused to intervene or preserved high court decisions by affirming them entirely. Naz is an artfully and elegantly woven decision. It requires no further embellishment. It should remain, I respectfully submit, undisturbed.

This post expresses my personal views. They do not represent the opinions of my co-bloggers or of any institution with which I may be affiliated. This analysis is not intended to prejudice or predict the Court's decision on the Naz appeals in any way.


Ab said...

But if you look at the other US SC judgement that same day, US vs Windsor, it took a different view. It alowed a House committee to contest the case on appeal.
Also, isn't it better that the issue be settled at SC level, where it will be binding on the rest of the country, rather than leave it to the interpretation of the next HC which gets a case on it

gousgame said...

Although academic criticism is always welcome, isn't it slightly presumptuous to author a post on what the Supreme Court should do, when the matter is still sub-judice and reserved for judgment? If a newspaper did this with a murder trial, wouldn't we all be screaming trial by media?

The locus standi argument has been made before the Supreme Court and the Court is aware of it. As a litigator, I know better than to try and guess what's on a Judge's mind before you actually see the judgment. Unofficial court transcripts of court proceedings notwithstanding! Moreover, it isn't uncommon to see judges hearing cases fully on merits and finally dismissing on the issue of standing.

Also, the argument is kind of self-defeating. You write what you think the Supreme Court should do. You do so (presumably) in the hope (or knowledge perhaps?) that the concerned judges of the Supreme Court will actually read it. In case they do read it, why should they allow themselves to be influenced by you (i.e. someone who is not a party to the court proceedings - obviously I don't intend this as an affront to your academic qualifications and I hope it isn't construed that way!)? To their credit, the private party appellant's in Naz did bother with filing the appeal!

Nick Robinson said...

Thanks for this thorough analysis Vikram. I'm sympathetic to your argument. I do worry though that it would leave open a potential challenge down the road - for example, what would happen if another government came in next year and decided to challenge the High Court ruling? I presume they would have standing to do so? I've mentioned this before, but I think the larger procedural issue the Naz bench has to deal with is that it is not five judges, which under the Constitution it really should be if this indeed is a "substantial" question of constitutional law (and I don't see how it's not). Not being five judges opens up anything these judges say to a challenge later on.

The other commenter's concern about you expressing in a public forum how you think the case should come out I think is unwarranted. The public and academic community should be aware of different ways the case could come out and the merits of these different paths. If someone wants to advocate for one such path anyone else is free to disagree. This is not a murder trial where there is a presumption of innocence for the accused. Instead, we are debating laws and principles that are of wide public importance. Normative arguments focus the mind in a different way than descriptive analysis. They are also far more interesting to read.

gousgame said...

@Nick - fair enough. I agree that academic debate on a constitutional question isn't quite the same as the Press prejudicing a murder trial - an exaggeration at my end perhaps. And as I said, academic criticism is always helpful and I'm a regular reader of this blog for that reason. I usually find your blog's posts very good reads and insightful, but on the rare occasion (such as this once), I do find a post to be slightly over the top in terms of how the argument is pitched - so I thought I should point it out this time.

I do, however, have other concerns about the substance of Vikram's argument:

1. As you point out, a dismissal on the issue of standing leaves open the issue for future challenge (as does a decision by a 3-judge bench).

2. Vikram's premise seems to be that if the government/executive has chosen not to appeal and the legislature chose not to react to the Delhi HC's decision, then the SC should not entertain an appeal from private parties who were strangers to the HC litigation. I think there are two problems with that.

Firstly, it is likely that the private parties now on appeal before the Supreme Court did not feel the need to intervene at the High Court stage, because the government was arguing for Section 377's validity before the High Court, i.e., the private parties' interests were being adequately represented by the government. The need to intervene came after the Union Government's decision not to appeal.

Secondly, and more importantly, the argument ignores ground realities about how governmental decisions are usually made in India regarding whether the government should file appeals against adverse court judgments. In general, the machinations are quite opaque and often haphazard. Naz was an exception in terms of how much public attention was given to the government's decision making process on whether to file an appeal. Allowing private party appeals is perhaps one way of ensuring that case which should be taken up on appeal, are (in spite the government's failure to do so). I am aware of Nick's work on the SC's docket explosion, but I think restricting private party appeals as regards important constitutional questions isn't the best of solutions to that problem.

Prasanna S said...

Another related issue is the nature of the power exercised by the executive while deciding on whether or not a appeal a decision.

At first blush, it does appear to be a quasi-judicial power that ought to take into account all related interests, perhaps even issuing a public notice for a hearing in a few cases, before a decision on the appeal is made. While I am unaware of the practicability or otherwise of such an elaborate-sounding process, I'd think that that is what is ideal.

In this case, IMO, the ideal course for the appellants in the SC case would have been to represent to the Union of India as to why they think the decision to be appealed, and then approach the administrative review Courts if they are still aggrieved by the decision of the executive on whether or not to appeal the decision - or apply for a certificate to appeal from the HC.

With respect Nick, I am in agreement with Vikram that the Court should not disturb what appears to be a settled position on the requirements of locus standii for invoking the Appellate jurisdictions of the SC only because it may be desirable to close the doors against a potential challenge down the road.

The executive's power to decide on the question of appealing against a decision is particularly interesting in the case when we see that the State has been equivocal in its stance at different points - with Health Ministry and Home Ministry taking different stances before the Delhi HC; the Home ministry doing a U-turn before the SC etc.

Shadan Farasat said...

Very Nice piece and very well written.

My one concern is that I am not sure on the impact of the decision in other state jurisdictions, when one High Court decides that a provision in a central act is unconstitutional, and other high courts do not pronounce on that issue.

My understanding (subject to correction) is that the decision is valid in other jurisdictions as well till the time their High Courts do not come up with a contrary decision. From that perspective a decision from the SC is desirable.

Although I do completely agree with Nick that at least a five judge bench was needed in this case. If this is not a substantial question of law on the interpretation of the constitution, nothing is.

Disability Rights - Dr S.S Jain said...

I would like to raise three issues. Firstly, although the power to prefer appeal is quasi judicial in nature. It does not follow from the same that the actual decision to exercise the same is also quasi judicial. As a matter of fact, the actual decision to prefer an appeal is purely administrative in character, the reason being ‘right to prefer appeal ‘ is a Constitutional / Statutory right and is vested exclusively in the Parties and the same has to be exercised in accordance with the provisions of the constitution ( Articles 132-135) . In ‘Hohfeldian terms, it is ‘power’ exclusively vested in the State and therefore it is not subject to judicial review on the ground of violation of principle of natural justice or Wednesbury grounds. I am also not too sure whether one can challenge the decision of the State not to prefer appeal by invoking the doctrine of arbitrariness under Article 14. It is of course necessary to note that Article 136 of the constitution is an exception to this proposition and there is nothing in that Article which precludes the Supreme Court from entertaining appeals from the third parties.
Secondly, decision of one High court is not binding on other High Courts and the Principle of stare decisis does not have any play and if therefore Supreme Court were to dismiss the appeal merely on the ground of lack of locus standi, uncertainty would be perpetuated. Moreover, it is sheer intuitive assumption to contend that decision of a particular High court would be applicable throughout India till the contrary view is taken by some other High court.
Thirdly, it is not a very efficacious argumentation to constrict the jurisdiction of Supreme Court under Article 136 by drawing analogy from Public Interest Jurisprudence evolved by it. In my opinion the reach and objective of epistolary jurisdiction under articles 32 and 136 is markedly different.
Sanjay Jain ( I would like to acknowledge the interesting discussion i had with Dr. Shirish Deshpande)

Guruswamy Nataraj said...


Not a jurisdictional comment - but would like it if you could share your thoughts on paragraph 43 of this Koushal decision (I do not thin k we should call it the Naz judgment any more).

I wonder paragraph 43 now paves the way for the Supreme Court to abdicate its responsibility using the 'small fraction of population' line.