Thursday, June 20, 2013

In Memoriam: R.C Cooper

Rustom Cavasjee Cooper passed away on the 18th of June, 2013. Cooper enters the annals of Indian legal history as the main petitioner in the Bank Nationalisation cases (R.C Cooper v. Union of India , 1970 AIR 564). Cooper was a director of the Central Bank of India, but also challenged the nationalization ordinances on the grounds that he was a shareholder and account holder in several other banks, such as the Bank of Baroda and the Union Bank of India. What is left out of the legal record and comes through the obituary was his involvement with the Swatantra Party, which was known for its more market friendly economic policies. 

Monday, June 17, 2013

Colombia and India: Two of the Most Similar Courts in the World?

There was a recent post on ICONnect by David Landau describing how the Colombian Constitutional Court has struck or read down several Constitutional amendments there. Perhaps even more than India's Basic Structure Doctrine the caselaw in Colombia has taken on a life of its own and been used to narrow constitutional amendments (such as those concerning drug possession or the functioning of the civil service) one wouldn't necessarily believe are core to a sound liberal-democratic constitutional ordering.

When one surveys the courts of the world, it is often those in Latin America where I at least find the most parallels to India's more activist jurisprudence. The Colombian Constitutional Court has an incredibly expansive rights jurisprudence and its orders are far more frequent and detailed in its social and economic rights cases than the Indian Supreme Court's. In this article from 2009, Bruce Wilson looks at the reasons why two courts in Latin America - those in Colombia and Costa Rica - might be as active as they are: finding that relaxed rules of standing and access (like in India) are critical to creating such active judiciaries. It strikes me these similarities are only the beginning (and much more work has been done on courts in Latin America - see for example here and here). In India, the Court has benefited not only from relaxed standing rules and wide constitutional powers, but a long period of coalition governments at the centre which makes it difficult for any one political party to easily challenge the Court's authority, and a historical narrative of distrust towards the other branches created by the history by the Emergency that the judges have used to shape and reenforce their own power. On both these fronts there seem to be some parallels in Latin America (where there are histories of dictatorship, at least competitive political parties, and perhaps the added feature of having an Inter-American Court that may help apex courts shore up and internationalize a language that justifies their power). It strikes me much fertile comparative work could be done by looking at Latin America and India in more depth. Given language barriers though it might be more likely that such work originates in Latin America or at least from those studying courts there. Then again, just another reason to learn Spanish.

Thursday, June 13, 2013

Graduate Fellow Position Open at APU

The Law, Governance, and Development Initiative at Azim Premji University has a two year post open for a Graduate Fellow. Please see this link for more details. Please note that the original deadline of June 1, 2013 has been extended, but contact them soon if you are interested.

Wednesday, June 12, 2013

Polity in India Blog

There is a new blog up - Polity in India: Observations on Legal and Political Developments in India - that might be of interest to some readers. A number of the contributors are lawyers and several have/had a Centre for Policy Research/PRS Legislative Research connection. Do check it out as there are a number of good posts.

Monday, June 10, 2013

How the CIC missed the wood for the trees

The Right to Information Act, 2005, with its 31 sections and two schedules, is one of the outstanding legislations of Indian Parliament.   In view of its inherent potential to ensure accountability of the institutions of governance, and enhance the level of participation of citizens in the administration, there has been a natural tendency on the part of the Central Information Commission, to interpret its provisions liberally.   This has manifested in a number of pro-citizen rulings from the CIC and the appellate courts leading to a greater degree of transparency over decision-making of authorities, than what was possible earlier.

An expansive understanding of the definition of ‘public authority’ under the Act has apparently helped the CIC to bring many quasi-public authorities and private entities with substantial funding from the Government within the Act’s ambit.   As the Act requires the `public authorities’ to declare information about them suo motu, and to designate Public Information Officers to answer queries from information-seekers, the definition and interpretation of ‘public authorities’ determines the scope of the Act.

The CIC’s June 3 order bringing political parties within the ambit of public authorities, no doubt, stems from its sound objectives to make political parties, receiving substantial indirect funding from the Government, accountable, and empower citizens to use the Act to ensure it.  However, the legal reasoning adopted in the order, is vulnerable and may not stand scrutiny in the appellate courts.

The crucial question is whether a political party can be held as ‘public authority’  under Section 2(h) of the Act.  This provision deserves to be reproduced verbatim: “public authority” means any authority or body or institution of self-government established or constituted,- (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any – (i) body owned, controlled or substantially financed; (ii) non-Government Organisation substantially financed, directly or indirectly by funds provided by the appropriate Government.”

If one reads Section 2(h) carefully, there can be no argument over its first four parts, that is, (a) to (d).  The problem arises only with regard to the use of the expression “and includes any”, followed by (i) and (ii) under (d).

The CIC relies on the Delhi High Court’s judgment delivered by Justice Ravindra Bhat in Indian Olympic Association v.Veeresh Malik and Others (January 7, 2010), wherein the Court has observed that the expression ‘public authority’ has to be interpreted liberally and not restrictively. 

In this judgment, the High Court has conceded that a facial interpretation  of Section 2(h) would indicate that even the bodies brought in by the extended definition, that is, through the use of the words “and includes any” are to be constituted under, or established  by a notification, issued by the appropriate Government. 

The court then added as follows: “If, indeed, such were the intention, sub clause (i) is a surplusage, since the body would have to be one of self-government, substantially financed, and constituted by a notification, issued by the appropriate government.  Secondly – perhaps more importantly, it would be highly anomalous to expect a ‘non-government organisation’ to be constituted or established by or under a notification issued by the Government.  These two internal indications actually have the effect of extending the scope of the definition  “public authority”; it is, thus, not necessary that the institutions falling under the inclusive part have to be constituted, or established under a notification issued in that regard....irrespsective of the constitution (i.e. it might not be under or by a notification), if there was substantial financing, by the appropriate government, and ownership or control, the body is deemed to be a public authority.  This definition would comprehend  societies, cooperative societies, trusts and other institutions where there is control, ownership,  (of the appropriate government) or substantial financing.  The second class, i.e., non-government organisation, by its description, is such as cannot be “constituted” or “established” by or under a statute or notification.” 

Note that in its list of what the definition of ‘public authority’ would include, the High Court lastly mentions “other institutions”.  Individual political parties do not qualify to be called institutions; party system does.  As party system cannot constitute an independent entity, the question of considering it a public authority does not arise.

The registration of political parties under Section 29A of the  Representation of People Act, 1951, refers to political parties before their registration, as “an association or body of individual citizens calling itself a political party”.  The implication here is that once registered, they cease to become an association or body of individual citizens, and become political parties, with certain unique rights and responsibilities, which the R.P.A bestows on them. 

Therefore, there is an element of doubt whether the “body” referred to in Section 2 (h) (i) includes or could include a political party.    The principle of ‘surplasage’, used by the High Court to give meaning to Section 2(h)(d)(i)  is a recognised rule of interpretation.  It requires that effort should be made to give meaning to each and every word used by the Legislature.  The Legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons.

But the rule cannot be invoked, as the CIC has done, to interpret a provision, so as to include what the legislature did not intend to include at the time of enactment.  Otherwise, the courts may invite the criticism of wrongly resorting to casus omissus, that is, a matter which should have been, but has not been provided for in a statute cannot be supplied by courts, as to do so will be legislation and not construction. 

The Supreme Court’s constitution Bench reiterated this principle in a judgment on August 23, 2001 (Daddi Jagannathamv. Jammulu Ramulu): “Undoubtedly if there is a defect or an omission in the words used by the legislature, the Court would not go to its aid to correct or make up the deficiency. The Court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The Court cannot aid the legislature's defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there.”

The CIC, which acts as a Court while deciding a matter before it, has not demonstrated that Parliament unintentionally omitted to include political parties under Section 2(h)(d)(i); instead, it has assumed that Parliament intended to include political parties under the provision, without making a detailed inquiry into the intention of Parliament at the time of law-making.

The RTI Bill, 2004 – which was the precursor to the RTI Act, 2005 – defined “public authority” as any authority or body constituted by the Constitution, Parliament, or notification/order by Government.   The National Advisory Council recommended to the Government that this definition  be modified to cover the States, Panchayati Raj institutions, and other local bodies.  The Parliamentary Standing Committee which considered the Bill had accepted this recommendation, and this led to the Government’s redrafting the definition as it is now found in the Act.  There is no evidence to suggest that the redrafting of the definition was prompted by the demand to include political parties within the ambit of the Act. 

The debate in both the Houses of Parliament ( Lok Sabha & Rajya Sabha) on the Bill between May 10 and 12, 2005, also does not suggest that Members had intended to include political parties within the expansive definition of public authorities.  It is unlikely that Parliament would have left it to the CIC to decide whether political parties could be considered as public authorities under the RTI Act.  The Supreme Court has held in catena of cases that if a statutory provision is open to more than one interpretation, the Court has to choose the one which represents the true intention of the Legislature. 

Wednesday, June 05, 2013

Arbitrariness, “Doctrinal Looseness”, and other things…

In Chapter 6 of my book, Due Process of Law (published in 2011) [p. 177-206], I had argued that the “arbitrariness” test under Indian constitutional law, famously articulated by Justice Bhagwati in the Royappa and Maneka Gandhi decisions, and its subsequent application by the Supreme Court, suffered from “doctrinal looseness”. I said that the arbitrariness test was an indefinite, unfixed standard which was applied indiscriminately in a variety of contexts. On p. 177, I argued that the terms “reasonableness” and “arbitrariness” “were used interchangeably” by the court. On p. 186, I pointed out that “In March 1996, the doctrinal looseness of the “arbitrariness” test was most visibly highlighted by the Supreme Court of India in State of A.P. v. McDowell…” I concluded, on p. 202, that “The doctrinal looseness of the “arbitrariness” standard in Indian constitutional law is apparent.” (all emphases supplied)

It has come to my attention that the Supreme Court of India agrees with this view. In the 2G Presidential Reference case decided in September 2012, a Constitution Bench of the Supreme Court of India considered the ambit of Article 14 of the constitution. In paragraph 101, the court held that “the expressions ‘arbitrariness’ and ‘unreasonableness’ have been used interchangeably and in fact, one has been defined in terms of the other.”  Speaking for the court, Justice D.K. Jain wrote, “…since Royappa’s case (supra), the doctrine (of arbitrariness) has been loosely applied. This court in State of A.P. & Ors Vs. McDowell & Co. & Ors. stressed on the need for an objective and scientific analysis of arbitrariness….Some decisions have commented on the doctrinal looseness of the arbitrariness test and tried keeping its folds within permissible boundaries.” [paragraphs 103-104]. (all emphases supplied)

There’s no reason for me to think that any of the judges on the Bench read my book (which wasn’t cited in the judgment). What’s interesting, though, is that the phrase I used in my book: “the doctrinal looseness of the arbitrariness test” was used by the court in its judgment without attribution or citation. Incidentally, a simple Manupatra search will suggest that the court has used the phrase “doctrinal looseness” for the first time in this judgment, so it’s not like the phrase has been around. Of course, I’m flattered that the view I took in my book has found favor in the Supreme Court.

Interestingly, on p. 142 of my book, I also pointed out that Justice Bhagwati’s phrase “cribbed, cabined and confined” in the E.P. Royappa case was “borrowed from Shakespeare’s Macbeth, Act III, Scene 4.” In paragraph 96 of the judgment, the court likewise pointed out that “Justice Bhagwati...borrowing from Shakespeare’s Macbeth, said that the concept must not be “cribbed, cabined and confined” within doctrinaire limits”. To my knowledge, no previous judgment of the Supreme Court (or High Court) points this out. As far as I know, Seervai does not point out the Shakespeare connection either [see H.M. Seervai, Constitutional Law of India, 3rd edition p. 273-274, and 4th edition, p. 437] Once again, I’m thrilled that things which piqued my interest while reading Justice Bhagwati’s judgment also piqued the interest of a judge of the Supreme Court. 

On “arbitrariness”, the McDowell view has now become the accepted view of the court (though one must remember that the 2G case dealt with “arbitrariness” in the context of a government policy, not legislation). The court concluded by holding (at paragraph 105): “From a scrutiny of the trend of decisions it is clearly perceivable that the action of the State, whether it relates to distribution of largesse, grant of contracts or allotment of land, is to be tested on the touchstone of Article 14 of the Constitution. A law may not be struck down for being arbitrary without the pointing out of a constitutional infirmity as McDowell's case (supra) has said. Therefore, a State action has to be tested for constitutional infirmities qua Article 14 of the Constitution. The action has to be fair, reasonable, non-discriminatory, transparent, non-capricious, unbiased, without favouritism or nepotism, in pursuit of promotion of healthy competition and equitable treatment. It should conform to the norms which are rational, informed with reasons and guided by public interest, etc. All these principles are inherent in the fundamental conception of Article 14. This is the mandate of Article 14 of the Constitution of India.” The court held (at para 149) that though auctions are not the only manner in which natural resources can be alienated, the state’s methods of alienating natural resources can be tested on the touchstone of “arbitrariness”.

While we’re on the subject of the 2G case, I thought I should point out that in Center for Public Interest Litigation v. Union of India, [(2012) 3 SCC 1] decided in 2012, the Supreme Court of India called Shri V.M. Tarkunde a “former Judge of this Court”. Of course, though Shri Tarkunde would certainly have made a great Supreme Court judge, he never served as one. As far as I know, he was a Bombay High Court judge, who subsequently practiced in the Supreme Court.