Tag Archives: India

Comment on India: Chintan Chandrachud: Dance Bars, Dialogue, and the Indian Supreme Court

ChintanAn interesting constitutional narrative, involving the government of the Indian state of Maharashtra and India’s Supreme Court, is developing. In 2005, the state legislature enacted primary legislation imposing a ban on dance performances in bars, except in certain establishments such as hotels rated three-stars and above. The rationale provided for the ban was that many such dance performances were obscene, promoted prostitution and the exploitation of women, undermined the dignity of the dancers and corrupted public morals. This statutory ban was challenged by affected parties before the Bombay High Court. The High Court struck down the statutory provisions on the basis that they violated the right to equality and the freedom to carry on any occupation, trade or business. The state government appealed to the Indian Supreme Court.

In a detailed judgment in July 2013 (reported as State of Maharashtra v Indian Hotel and Restaurants Association), the Indian Supreme Court affirmed the High Court’s decision. It pursued two lines of reasoning. First, it was impermissible for the state to distinguish between posh hotels and other establishments seeking licenses for dance performances. In the Court’s view, such a distinction was unsupported by empirical evidence and smacked of elitism. Second, the existing legislation had proven to be counter-productive, resulting in the unemployment of over 75,000 women, many of whom were forced by circumstances to engage in prostitution. The Indian Supreme Court noted that the constitutionally appropriate redress would be to take measures to ensure the safety, and improve the working conditions, of the dancers.

In spite of the Indian Supreme Court’s judgment being binding with immediate effect, the state government failed to implement it and almost instantly began exploring legal options to override the judgment. The Indian Supreme Court even issued contempt notices to the state government and relevant government departments seeking explanations for the disregard of its judgment. Last month, the state legislature passed a bill confirming the solution floated by the government – imposing a blanket ban on dance performances in all bars, whether in the dark alleyways of Mumbai or the exclusive hotels frequented by the city’s elite.

Some news reports seem to suggest that this was a devious, yet ingenious, response that exploited a loophole in the Indian Supreme Court’s judgment. However, the response fails to address the issues concerning the loss of livelihood and large-scale unemployment that were raised in the Court’s judgment. The state legislation is almost certain to be challenged, and it is unlikely that it will survive judicial review given that it fails to address a significant aspect of the Supreme Court’s decision. As it stands, the only way in which the judgment may be definitively overcome is through constitutional amendment by a two-thirds majority vote (either by directly amending the relevant constitutional provisions or by inserting the statute into the Constitution’s black hole, the Ninth Schedule, which is subjected only to limited review by courts). These options are highly unlikely, not least because the amendment would need to be enacted by the Union Parliament, which is controlled by a rival political alliance to the one with a majority in the Maharashtra state legislature.

From the perspective of comparative constitutional law scholarship, these developments are noteworthy in at least two respects. They indicate that the familiar notion of ‘dialogue’ between legislatures and courts is not distinctive to systems of weak-form judicial review. As Stephen Gardbaum argues, insofar as judgments can be overridden by ordinary legislation, there is almost no ‘non-dialogic judicial review’ under any constitutional system. Even if the legislative option that is currently on the table fails to survive judicial scrutiny, it is not inconceivable that we will see a second legislative sequel seeking to adjust the law in accordance with the Indian Supreme Court’s subsequent decision.

A further point to note is that we should be cautious in drawing hasty conclusions about the difference between a power to strike down legislation, which is expected to take immediate effect, and mechanisms like the declaration of incompatibility (under section 4 of the UK Human Rights Act), which have no automatic effect on legal rights. Just as British governments have sometimes strategically delayed compliance with declarations of incompatibility, the Maharashtra state government has managed to delay compliance with a judgment striking down primary legislation. The delay in this case may be substantial, since the structural failings and the heavy caseload of the Indian Supreme Court (see commentary by Tarunabh Khaitan and Nick Robinson) render it unlikely that the second exercise of judicial review will conclude swiftly.

The exercise of the power to strike down legislation is different from legislative repeal – like any other judicial order, it leans heavily upon executive compliance. The vulnerability of the strike-down power is particularly relevant where compliance with the judgment striking down legislation requires some explicitly positive governmental action – in this case, issuing performance licenses to establishments that were previously disqualified by virtue of the statutory provisions. The burden of inertia in cases like these is not dissimilar to that which exists after a declaration of incompatibility is made – the only difference being that after section 4 is invoked, the executive is not, at least as a matter of domestic obligation, required to comply with the judgment and subjected to sanctions for failing to do so (see R (Chester) v Secretary of State).

The second round of the constitutional narrative has only just begun, and it waits to be seen how many legislative and judicial sequels will follow.

 

Chintan Chandrachud is a PhD Candidate at Sidney Sussex College, University of Cambridge and India Correspondent for the UKCLA Blog. 

Suggested citation: C. Chandrachud, ‘Dance Bars, Dialogue, and the Indian Supreme Court’ UK Const. L. Blog (13th July 2014) (available at http://ukconstitutionallaw.org)

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Tarunabh Khaitan: Koushal v Naz: The Legislative Court

khaitan_tarunabhIn Koushal v Naz—the case being touted as one of its worst judgments—a two-judge bench of the Indian Supreme Court has overturned a 2009 decision of Delhi High Court which had struck down the criminalisation of sodomy by s 377 of the Indian Penal Code 1860 as unconstitutional. In doing so, it has recriminalized every Indian who has ever had oral or anal sex (irrespective of the gender of the person they had it with, and irrespective of consent).

Many commentators have already pointed out the spectacular lack of constitutional and judicial aptitude, understanding of human rights and compassion in the judgment (see these excellent commentaries by Vikram Raghavan, Gautam Bhatia, Pratiksha Baxi, Mayur Suresh, Siddharth Narrain, Arghya Sengupta, and Shreya Atrey among others). In this post, I will focus on the deeper structural and institutional decline of which this judgment is a painful symptom. If Koushal were read simply as the failure of a couple of judges to get the law right, India would miss a rare opportunity to treat the root causes of the malaise.

Koushal represents two structural failures of the Indian Supreme Court, at least one of which has sometimes been commended as a great success by some Indian and foreign commentators. The first structural failure, one that many progressives see as a model for how the judiciary should be organised, is the near-total abandonment by the Supreme Court of the principle of separation of powers, and its transformation into a populist, legislative court of governance. The second failure, one that flows from the first failure, is the Court’s routine dereliction of its duty to give reasons for its decisions and the Indian legal academy’s failure to hold it accountable for this dereliction. Let me explain both of these failures in turn, and how they have facilitated the decision in Koushal.

Failure I: Judiciary as a Counter-majoritarian Institution

In Koushal, the Court could barely conceal its disdain when it described lesbians, gays, bisexuals and transgendered people as ‘a miniscule fraction of the country’s population’ [43] with ‘so-called rights’ [52]. This may seem bizarre to those of us who believe that one of the primary functions of constitutional courts is the protection of vulnerable minorities. Clearly, a ‘miniscule’ minority should be of particular concern to a counter-majoritarian institution.

The Court’s position is easier to fathom if understood in the context of its history following the authoritarian Emergency imposed in India in the mid-70s by Indira Gandhi. During the Emergency, a scared Court agreed to the suspension of Habeas Corpus. After the deeply unpopular Emergency was lifted and the country returned to democracy, the Court started to reinvent itself to gain institutional legitimacy. This reinvention was, however, not in terms of pitting itself against the representative organs of the state, but by competing with these organs. The process, which began in the ‘80s, only intensified in the ‘90s which saw an end to one-party-dominance in politics. Coalition politics and weak legislatures remain a feature of Indian politics to this day. The Court, in the meantime, became a populist institution of governance—stepping in to fill the void left by an increasingly dysfunctional Parliament. In a country where the majority of the population suffers significant disadvantage, majoritarianism can often become aligned with ‘progressive’ politics. A majoritarian Court continued to play to the gallery and wrecked havoc on the principle of separation of powers. As it laid down detailed guidelines, took up cases without any litigant, appointed commissioners, created policy, and micro-managed implementation, it was cheered on by civil society, while meek politicians barely managed occasional squeals of disapproval. Its occasional retrogressive missteps were brushed aside as aberrations, and the Indian Supreme Court, regularly invoking its popular Public Interest Litigation jurisdiction, came to be seen as a model of progressive judiciary by many people in India, and outside India.

It should not surprise us that this majoritarian populist institution found it impossible to respect the ‘so-called’ rights of a ‘miniscule’ minority. Of course, Indian courts have sometimes stood up for minority rights. So has the Indian Parliament. What matters is the self-image the Court has been allowed to cultivate, which overwhelmingly determines its institutional course of action. This self-image is not that of a counter-majoritarian institution correcting the excesses of democracy, but one that is acutely conscious of the reception of its judgments by the people (such consciousness extends only to the outcome of a case, not its reasoning). Under this model, if representative bodies did a good job of representing the people, the courts would be unnecessary. The Court is a political actor, which wants to be judged as politicians are judged. Its legitimacy rests on popular acceptance, not constitutional mandate.

This political context explains, rather than complicates, how the bench in Koushal suddenly discovers the joys of separation of powers. The Court first extends the presumption of constitutionality to a pre-constitutional colonial law by suggesting that the democratic Parliament has ‘adopted’ it by failing to amend it! [28, 32]. It specifically mentions a 2013 legislation amending the law dealing with sexual assault as proof that ‘the legislature has chosen not to amend the law or revisit it’, ignoring completely the fact that there was no need for Parliament to do so after the Delhi High Court had read down s 377 to exclude private sex between consenting adults from its ambit. That the 2013 legislation was enacted after the hearing in Koushal was concluded, thereby affording no opportunity to the parties to challenge its use by the Court, is another matter.

This ostensible deference to democratic will is an opportunistic fig leaf of a populist Court with little more than contempt for the representative institutions of democracy. In an act of concluding magnanimity to the legislature, the final sentence of the judgment grants it permission to consider the ‘desirability and propriety of deleting section 377’ [56]. The fact that it thought such a clarification was necessary tells us that this is not a Court deferential to the legislature—this is a Court with unhesitant pretensions of being the legislature.

Failure II: The Duty to give Reasons

A key feature of adjudication is the public articulation of reasons after hearing principled submissions by the parties involved, on the basis of which a judge arrives at her decisions. In this respect, adjudication differs from voting, which allows a decision-maker to decide without having to articulate her reasons (or even without having any reasons). The Indian Supreme Court in Koushal fails to respect this fundamental judicial duty at so many levels that it is difficult to escape the conclusion that the Court seems to be voting, not adjudicating. The following factual inaccuracies, unsupported conclusions, and omissions in the judgment are particularly noteworthy in this regard:

    1. The Court records the Government of India’s position on the case as one defending the criminal provision under review [7]. This, despite the fact that the Government had chosen not to appeal the High Court ruling, and its top lawyer—the Attorney General of India—had clearly told the bench that the Government supported the High Court’s decriminalisation of adult consensual sex. Remarkably, the Court describes the Attorney General as ‘amicus’ [21], forcing him to publicly clarify that he had very much represented the Government’s official position in the case.
    2. The Court found itself able to ignore the voluminous material placed before it to conclude that there was no evidence to show that ‘homosexuals, gays, etc., are being subjected to discriminatory treatment either by State or its agencies or the society’ [40].
    3.  Long-standing precedent is clear that Article 14 (right to equality) of the Constitution requires every legal classification to be based on an intelligible differentia and have a rational nexus with a legitimate state objective. The Court, while repulsing the Article 14 challenge, finds it sufficient to say that the classification between ‘[t]hose who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature’ is intelligible [42]. It wastes no ink trying to identify the state objective being pursued, or asking whether the measure has any nexus with that objective.
    4. Even this half-hearted attempt to give reasons is not made when rejecting the Article 15 (right against discrimination) challenge. No reasons whatsoever are provided [44].
    5. The way the Court deals with the challenge under Article 21 (the right to life and liberty) is even more curious. After devoting several paragraphs quoting established precedents on Article 21 [45-50], the Court makes no specific finding with respect to Article 21! After these block quotations, the Court moves seamlessly to simply assert that the use of s 377 to ‘perpetrate harassment, blackmail and torture’ is ‘neither mandated by the section nor condoned by it’ [51]. How the preceding six paragraphs setting out the established doctrine under Article 21 help the Court reach this conclusion, and how this conclusion repels the Article 21 challenge, is anybody’s guess.

The judgment seems to have been written carelessly, perhaps even in a hurry—the hearing in the case concluded in March 2012, and the judgment was delivered in December 2013, on the day before the senior judge on the bench was due to retire. A cavalier attitude to its duty to give reasoned judgments is not uncommon in the Indian Court’s jurisprudence. Although unfortunate, this is hardly surprising. The Court has a total strength of 30 judges, who usually sit in benches of 2. In 2011 alone, they decided some 47,000 admission matters (the Court sets aside two days every week to hear admission applications!), of which 9,070 were admitted for regular hearing. The main reason for this staggering docket, apart from the size of the country, is its remarkably liberal invocation of its ‘special leave’ jurisdiction, which allows review petitions from any court or tribunal in the country to be placed directly before the Supreme Court (Article 136, Constitution). A direct approach to the top Court deprives it of the benefit of the considered views of the courts below, and should be allowed very rarely. The pressure of its workload also results in the constitutional requirement that any constitutional case involving a substantial question of law must be heard by at least five judges (Article 145) being routinely ignored (including in Koushal). Only 0.12% of all cases disposed of by the Court between 2005 and 2009 were decided by a bench of five judges or more.

Given such volume, what is surprising is the respectable number of cases where Indian judges do manage to give reasoned judgments. The fragmentation of the Court into small benches deciding thousands of cases every year had led to a situation where even a conscientious judge would find it next to impossible to respect stare decisis. For less conscientious judges, the opportunity to cherry-pick precedents is limitless.

Furthermore, the academy simply cannot keep up with the judicial assembly line. Academic criticism is the real check on judicial power in a democracy. In the Indian context, academics are forced to focus on the outcome of the cases alone—only a handful of cases (like Koushal) that really stand out receive proper academic attention. This reinforces the judicial belief that all they need to do is to make the outcome generally palatable; all else will probably be ignored. Thus, the judges decide as if they were politicians, and they are judged as if they were politicians—based not on how they reason but on the way they vote.

Conclusion

The outrage that this judgment has inspired amongst politicians, activists and academics in India presents an opportunity to rethink the fundamental structural weaknesses of the Indian Supreme Court. Most of the recent debate on the reform of the Court has focussed on changing the appointment system of judges (currently, the Court appoints its own judges!) and dealing with the lack of diversity in the judiciary. While who gets to be a judge is an important issue, unless these structural infirmities are addressed, even Herculean judges cannot change the situation very much. The Court needs to reaffirm its central counter-majoritarian purpose in a liberal democracy. It must do less and do it well. It must stop voting and stick to adjudicating.

Dr. Tarunabh Khaitan is Hackney Fellow in Law at Wadham College, Oxford.

Suggested citation: T. Khaitan, ‘Koushal v Naz: The Legislative Court’ U.K. Const. L. Blog (22nd December 2013) (available at http://ukconstitutionallaw.org).

Postscript: Some readers have emailed to ask about the possibility of review. Although this is a judgment of the highest court of the land, because of the proliferation of 2-judge bench rulings, the Court has had to invent two further review stages to challenge its own judgment–a (rarely invoked) review jurisdiction and then a (very rarely used) ‘curative’ jurisdiction. The  government has been the first of the parties to seek review.  Other petitioners are expected to follow suit. How the Court will react remains to be seen.

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Chintan Chandrachud: Beyond Ghaidan and Back: the Supreme Court of India on Rights-Compliant Interpretation

 ChintanGhaidan v Godin-Mendoza remains the leading case on rights-compliant interpretation under section 3 of the UK Human Rights Act 1998. In Ghaidan, the majority on the House of Lords held that even when the meaning of a statute seems clear, courts can depart from parliamentary intention to read legislation in a European Convention-compliant manner. Lord Nicholls emphasised that ‘the particular form of words’ used would not be determinative in ascertaining whether or not section 3 could be invoked.

The Supreme Court of India, on the other hand, has been careful over the years in ascribing to itself an interpretive power which is narrower than the Ghaidan variety. The Court consistently held that it would not distort or depart from statutory language where its plain meaning was clear. Then came Namit Sharma v Union of India (which I will, for reasons that will be self evident later, refer to as Sharma I). This was a case involving a challenge to some of the provisions of the Right to Information Act 2005 – a revolutionary law that seeks to increase transparency in the functioning of public authorities. The Act provides for the appointment of central and state information commissioners to monitor compliance. It requires commissioners to be ‘persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance’. The petitioner in Sharma I contended that these eligibility criteria were arbitrary and vague, and violated the right to equality under article 14 of the Constitution. In his argument, since the commissioners performed functions of a judicial nature, Parliament transgressed constitutional boundaries by failing to specify that they should possess judicial experience.

The Supreme Court’s judgment in Sharma I was remarkable. The Court considered that the provisions of the Act, as they stood, were unconstitutional. But rather than striking down the relevant provisions, it sought to interpret them so as to fall within constitutional parameters. The Court stipulated that since the commissioners performed quasi-judicial functions, they should predominantly be persons who have a judicial background and experience in adjudication. If some experts from other fields were appointed as commissioners, they should only make decisions as part of a two-member bench, along with a commissioner having judicial experience. The Act established a ‘High Powered Committee’, consisting of political leaders from the government and the opposition, for the appointment of commissioners. The Court went on to radically modify the process of appointment of commissioners, holding that since they perform quasi-judicial functions, the judiciary (more specifically, the Chief Justice of India/Chief Justice of the relevant state) should also be consulted in the appointment of commissioners with judicial experience.

This judgment clearly transgressed the dividing line between interpretation and amendment and went far beyond what even British courts, armed with the section 3 mandate, would do following the Ghaidan dictum. In Ghaidan itself, the House of Lords recognised that it would refrain from interpreting a statutory provision in a manner inconsistent with a ‘fundamental feature’ of the statute. By insisting that commissioners should consist of (and perhaps more remarkably, be appointed by) judges, the Court undermined Parliament’s intention of ensuring that a diversity of viewpoints are represented in the quest for increasing transparency and access to information. If the Court arrived at the conclusion that the absence of a robust judicial role in the composition and appointment of commissioners rendered the provisions of the Act unconstitutional, the appropriate response would have been to strike them down.

Understandably, Sharma I was received with disfavor both within the government and outside it. The government filed a petition asking the Supreme Court to reconsider its judgment, claiming that it was based on an ‘error apparent on the face of the record’. In Union of India v Namit Sharma (Sharma II), the Supreme Court agreed with the government, holding that its previous decision was an ‘encroachment’ of Parliament’s domain and ‘contrary to the principles of statutory interpretation’ recognised by the Court. So presumably, the Court hastily retreated back to its original position on interpretation.

But what was most interesting about Sharma II is the remedial path taken by the Court. Despite having similar misgivings about the eligibility requirements for commissioners as the Sharma I bench, the Court declared the relevant provisions constitutionally valid, only choosing to mention that it hoped that ‘persons with wide knowledge and experience in law will be appointed’. So why did the court refuse to invoke the power to strike down the Act? The explanation might be rooted in the nature of the strike down power. The invalidation of the relevant provisions of the Act would probably have led to the unenforceability of the entire statutory regime. How comfortable would the Court have been striking down a statute which formed part of the United Progressive Alliance government’s ‘common minimum programme’ and which was considered a hallmark of parliamentary democracy? In contrast, a British Court in the same situation would probably have made a declaration of incompatibility knowing that the statutory scheme would not be disturbed until Parliament responded. If the Supreme Court of India could issue a declaration of incompatibility, would it have done so instead of reluctantly upholding the constitutionality of the statute? Sadly, this question will remain in the realm of speculation.

Chintan Chandrachud is a PhD Candidate at Sidney Sussex College, University of Cambridge

Suggested citation: C. Chandrachud, ‘Beyond Ghaidan and Back: the Supreme Court of India on Rights-Compliant Interpretation’  UK Const. L. Blog (29th November 2013) (available at http://ukconstitutionallaw.org)

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Christopher Forsyth and Nitish Upadhyaya: Crown Immunity after the End of Empire in Hong Kong and India

Nitishforsyth1Crown Immunity is a recondite branch of Public Law that seldom makes an appearance in the Law Reports but it does potentially raise grave constitutional issues. It is surely ‘fundamental to the rule of law that the Crown, like other public authorities, should bear its fair share of legal liability and be answerable for wrongs done to its subjects’(H W R Wade and C F Forsyth, Administrative Law (10th ed, OUP, 2009), 695)).  But, on the whole, those grave constitutional issues are seldom acute in the United Kingdom. This is in large measure because of the passing of the Crown Proceedings Act 1947 which puts the Crown in much the same position as that held by an ordinary employer and an ordinary litigant and the decision of the House of Lords in M v The Home Office [1994] 1 AC 377 that scotched the heresy that Ministers of the Crown shared the immunities of the Crown and so only obeyed the law as ‘a matter of grace’ but were subject to coercive remedies to secure compliance.

But this post draws attention to the fact that these grave constitutional issues do arise elsewhere. In many parts of the world Crown Immunity is part of the legacy of Empire, left behind when the British departed.   At the height of the British Empire, the Crown enjoyed sovereignty over vast swathes of the globe that were not part of the United Kingdom; in these territories, unless altered by remedial statute, there are difficulties with proceedings in the local courts against the Crown (or its successor sovereign). The Crown Proceedings Act 1947 applied only to the Crown in right of the United Kingdom, so it does not help; there has to be local legislation in the jurisdiction concerned. Many of these jurisdictions enacted remedial legislation (sometimes earlier than the UK legislation) similar to that of the Crown Proceedings Act. But not all did.

This post deals with only two jurisdictions –India and Hong Kong – in which there are difficulties over Crown Immunity. First India.  The stark truth is that there is, in India, no general legislation similar to the Crown Proceedings Act. The current Indian State enjoys the immunities of the Raj (technically the Secretary of State for India), who enjoyed the immunities of the East India Company—the entity that governed India on behalf of the Crown prior to 1858 and enjoyed Crown Immunity (often called ‘Sovereign Powers’).  It is startling to note that ‘the liability of the [Indian] Government [today] is the same as that of the East India Company before…1858’(T. S. Pradhan, ‘Immunity to sovereign functions’, National Law Institute University Bhopal, Research paper for the Constitution Commission of India (4 June 2010), p 6.

The ambit of this immunity was first outlined in P. & O. Steam Navigation Co v Secretary of State (1861) 5 Bom HCR App. 1 (P. & O. Steam Navigation) where the Court distinguished between the functions of the East India Company which were mercantile (and in respect of which the company enjoyed no immunity) and the governmental functions of the company (in respect of which it did benefit from immunity). The court held that the company (and its successor, the Secretary of State for India) was not liable for anything done in the exercise of such ‘sovereign powers’. The court defined such ‘sovereign powers’ as powers which ‘cannot be lawfully exercised except by a sovereign, or a private individual delegated by a sovereign to exercise them’. Successive judicial decisions have mistakenly taken this antiquated position as a starting point from which to analyse the liability of the Indian State for tortious acts. This has effectively left the Indian government and its agents with full immunity for such acts—a wholly unacceptable position in a modern legal system.

In the case of Kasturi Lal v State of U. P.  AIR (1965) SC 1039. (Kasturi Lal), the Supreme Court accepted and applied the distinction first adopted in P. & O. Steam Navigation—that of sovereign and non-sovereign functions. The police arrested Kasturi Lal, a partner in the appellant firm. While in custody certain gold, the property of the firm, was seized from him on suspicion that it was stolen. On his release from custody the gold was not returned to him as the Head Constable had taken it and fled to Pakistan. An action was brought by the firm against the authorities to recover the value of the lost gold but the Supreme Court held that the negligence of the officers in allowing the gold to be stolen occurred when they were carrying out duties related to the sovereign functions of the State and so the claim failed. However, it is telling that even in this case, the Supreme Court felt ‘disturbed by the thought that a citizen whose property was seized by process of law, has to be told when he seeks a remedy in a court of law on the ground that his property has not been returned to him, that he can make no claim against the State. That, we think, is not a very satisfactory position in law. The remedy to cure this position, however, lies in the hands of the Legislature’. The adoption of this distinction to determine the liability of the authorities when they exercise ‘sovereign powers’ brings a surprising whiff of the rule of the John Company to modern India—an immunity akin to, and derived from, the unreformed Crown Immunity of nineteenth century Britain has survived into twenty first century India!

The decision in Kasturi Lal is gradually being pushed aside, in favour of rulings which hold the State to account for tortious acts. Crown Immunity is no longer applicable to public law cases lodged through writ petitions under Articles 32 and 226 of the Indian Constitution.   Further, a tort claim where inalienable constitutional rights, such at the right to life (guaranteed by Article 21) have been violated, the State cannot use immunity as a defence.  Judges have become ever more critical of the use of Crown Immunity to defend claims, with the most straightforward argument being that ‘the law has marched ahead like a Pegasus but the Government attitude continues to be conservative and it tries to defend its action or the tortious action of its officers by raising the plea of immunity for sovereign acts or acts of State, which must fail’ (State of Andhra Pradesh v Challa Ramkrishna Reddy  AIR 2000 SC 2083).

In Hong Kong, on the other hand, a Crown Proceedings Ordinance Cap 300 of 1957 was enacted  (and remains in force) to govern the liability of the Crown (in the form of the government of the colony) and, after the 1997 resumption of sovereignty, the government of the Special Administrative Region of Hong Kong. Section 3 of the Ordinance titled ‘Right to sue the Crown’ entitled a plaintiff to bring proceedings against and indeed such claims have continue under the Crown Proceedings Ordinance against the Hong Kong Government since the resumption of sovereignty.

But the Crown Proceedings Ordinance dealt only with the immunity of the Crown in Hong Kong. It left untouched the immunity of the Crown as far as the government of the UK was concerned. A suit in Hong Kong against the Crown in respect of a matter for which the UK government had responsibility could thus still be met by a plea of immunity. This did not matter much – in part because, in Hong Kong, relief against the Hong Kong Government was of much greater importance than relief against the Crown in right of the UK.  And in any event there was always the option, at least theoretically, of suing in the UK and taking advantage of the UK Crown Proceedings Act.

But what was the position after the resumption of sovereignty? Stone J had to address this question in Intraline Resources Sdn Bhd v The Owners of the Ship or Vessel ‘Hua Tian Long’  [2010] HKCFI 361; HCAJ000059/2008 (Hua Tian Long).

In Hua Tian Long the claimant alleged that the defendant owner of a floating derrick crane-barge, Guangdong Salvage Bureau, had failed to make the platform available as agreed under a Memorandum of Agreement.  The claimant was thus unable to complete various projects for which it had required usage of the crane-barge and therefore claimed damages.  The defendant, however, invoked the principle of Crown Immunity, claiming that it was part of the Ministry of Communications of the Chinese Government. Responding to the pleadings, Stone J held that ‘the short point is that in my view “crown immunity” in its true sense never was removed by the Crown Proceedings Ordinance,….. it continued to exist at common law unaffected by the Crown Proceedings Ordinance until the handover to the new sovereign power, [the People’s Republic of China], which in turn must enjoy the like crown immunity hitherto accorded to the British Crown…If the foregoing be correct, as I consider that it is, effectively that is the end of the doctrinal element of the “immunity debate”. In my view “crown immunity” subsists and thus now can be invoked as a matter of Hong Kong law’.  Furthermore, Stone J went one ‘ the Chinese Government is the metaphorical ‘Crown’ of the People’s Republic of China’.

Thus while Indian judges are moving to restrict the ambit of Crown Immunity, it appears Stone J has resurrected, or at least in view of his judgment, re-confirmed the broad scope of Crown Immunity in Hong Kong law.

 It seems that Stone J was not referred to the decision of the High Court of Calcutta in P. & O. Steam Navigation and its distinction between the mercantile and governmental functions of the East India Company. In that case, Sir Barnes Peacock CJ confirmed that ‘there is a great and clear distinction between acts done in the exercise of what are usually termed sovereign powers and acts done in the conduct of undertakings which might be carried on by private individuals without having such powers delegated to them’. In the context of Hua Tian Long, had Stone J used the reasoning of the Calcutta High Court, he may well have decided that the actions of the Guangdong Salvage Bureau were those that could be carried on by private individuals and held Crown Immunity to be inapplicable in the circumstances. This is surely how the essentially commercial dispute should have been resolved as, even if the Chinese Government is entitled in law to Crown Immunity, there is indeed a distinction between the exercise of sovereign powers on one hand, and acts which may be carried on by private individuals on the other. Instead, and most remarkably, the decision has allowed the commercial activities of the Chinese Government, nominally still communist, to avail itself of the privileges of the imperial Crown!  This is of particular importance in Hong Kong where the Chinese government has many commercial interests not all of which are publically known and which may only become known when (as in Hua Tian Long) Crown Immunity is claimed in litigation.

How is the law to be developed so that the successor sovereigns to the British Crown bear their fair share of legal liability? With the Indian Parliament unwilling to act, it has fallen to the judges in the lower courts to distinguish the decision in Kasturi Lal in order to reach a just decision for the claimants in cases where the State is clearly at fault and should be liable. Presented with the right case, it is to be hoped that the Indian Supreme Court will overrule Kasturi Lal.

Further east, the wider consequences of the decision in Hua Tian Long remain to be seen.  The P. & O. Navigation case long ago confirmed the distinction between mercantile and governmental acts of the State and would have provided Stone J with the perfect precedent to take a similar course. However, it appears that the spectre of Crown Immunity has once again reappeared and the utilisation of this doctrine may have worrying consequences for parties in commercial disputes with governmental bodies linked to the Chinese Government. Hua Tian Long is, of course, a first instance decision and it may be hoped that the Hong Kong Court of Appeal or Court of Final Appeal may take a different view and at least adopt the P. & O. Steam Navigation distinction.

But there is a difficulty with this: the conceptual confusion between sovereign immunity and Crown Immunity. There is of course a clear distinction between these two concepts: Sovereign or State Immunity is based on the principles of comity and equality between sovereign states and is a doctrine of public international law that governs inter-state relationships. It is relevant in determining the extent to which a foreign sovereign state is answerable to the local courts.  Crown Immunity on the other hand applies internally within a state and stems from the inequality between the ruling sovereign and the ruled.  Crown Immunity is about the extent to which the local or domestic sovereign is answerable to the local courts.   There is no reason why if the law of sovereign immunity is absolute, i.e. rejects the distinction between mercantile and governmental acts, that the law of Crown Immunity should reject the same distinction.

But the Hong Kong Court of Final Appeal has recently held in a controversial decision (Democratic Republic of Congo v FG Hemisphere Associates LLC Nos, 5, 6, & 7 of 2010 ) that foreign States enjoy absolute immunity from enforcement and jurisdiction in Hong Kong even in commercial disputes is thus a decision on Sovereign or State Immunity. Although China is the domestic sovereign, will the Court of Final Appeal be bold enough to hold that a different doctrine applies to it? Until it does so China will enjoy in the courts of Hong Kong the immunities of the Imperial British Crown!

Christopher Forsyth is Professor of Public Law and Private International Law at the University of Cambridge.

Nitish Upadhyaya is a law graduate from Robinson College, Cambridge currently working in Hong Kong.

This post is based upon ‘The Spectre of Crown Immunity after the End of Empire in Hong Kong and India” (2013) 21 Asia Pacific Law Review 77 by Christopher Forsyth and Nitish Upadhyaya.

Suggested citation: C. Forsyth and N. Upadhyaya, ‘Crown Immunity after the End of Empire in Hong Kong and India’ U.K. Const. L. Blog (2nd November 2013) (available at http://ukconstitutionallaw.org).

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Chintan Chandrachud: Prisoner Voting Rights in India

ChintanWhether prisoners should have the right to vote has been the subject of intense political debate in the UK for a few years now. In Hirst ((2006) 42 E.H.R.R. 41) as well as Scoppola ([2012] E.C.H.R. 868), the European Court of Human Rights (ECtHR) held that blanket prohibitions on the voting rights of convicted prisoners are incompatible with article 3 of the First Protocol to the European Convention on Human Rights. The Scottish Registration Appeal Court also made a declaration of incompatibility against the UK’s blanket ban on prisoner voting (Smith v Scott [2007] C.S.I.H. 9). The British government has introduced a draft bill for pre-legislative scrutiny in which two out of three options laid out by the government seek to purge the incompatibility, while the third restates the existing ban. Regardless of how the story develops, the debate that has unfolded is an important one in the context of a constitutional democracy which pledges a commitment to human rights.

A similar concern underpins the short but significant decision of the Supreme Court of India in Chief Election Commissioner v Jan Chaukidar (Civil Appeals 3040-3041 of 2004, decided on 10 July 2013). This was an appeal from the judgment of the Patna High Court declaring that prisoners and those in lawful police custody would be disqualified from contesting elections to the Union Parliament or the legislative assemblies of states. The case arose in the context of the steady flow of politicians accused of criminal offences into legislative bodies (several studies reveal that about a quarter of the elected members of the Indian Parliament face criminal charges). An NGO filed a public interest litigation petition seeking a declaration that convicted and undertrial prisoners had no right to contest elections.

The NGO’s argument (which the court accepted) was framed as follows. The Representation of the People Act 1951 is a federal statute that governs the conduct of elections in India. It stipulates that one of the qualifications for membership of legislative bodies is that the candidate must be an ‘elector’. It also provides that ‘no person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police’ (except in cases of preventive detention). Relying on these and other statutory provisions, the court decided that since prisoners were deprived of the right to vote, they could not be considered as ‘electors’ and would automatically be disqualified from standing for elections during periods of incarceration.

Although the court’s intentions may have been laudable, its line of reasoning is problematic at several levels. To begin with, the Supreme Court took for granted that the blanket ban on prisoner voting is itself compliant with fundamental rights, a position which is highly controversial in the UK and elsewhere and has not been considered by the Indian Supreme Court for the last sixteen years. As in the UK, there is no offence-based or sentence-based classification of prisoners in India, with the result that prisoners are debarred from voting irrespective of the gravity of the offence that they have committed or the length of their sentence. But the ban on prisoner voting in India is more sweeping than that that imposed by section 3 of the UK Representation of the People Act 1983 in one respect. Whereas the UK prohibits convicted prisoners from voting, the Indian disqualification extends to those awaiting trial and those in lawful police custody as well. Remarkably, this means that those whom we presume innocent until proven guilty are denied the right to vote.

One of the reasons for which the Supreme Court found it unnecessary to examine the constitutionality of the ban on prisoner voting was that the court erroneously considered the right to vote as a statutory endowment which can be revoked at any time by a majority in Parliament. It remarkably endorsed the observation of the Patna High Court that it is a ‘privilege to vote, which privilege may be taken away.’ The characterisation of the right to vote as a privilege is deeply problematic. It fits poorly with most modern conceptions of democracy, which accord a fundamental (and sometimes even predominant) status to the right to participate in democratic decision-making through the ballot box.

The Supreme Court founded the decision that prisoners have no right to contest elections based on the argument that prisoners are not electors, since they are disqualified from voting. This interpretation implies that the disqualification from contesting elections will remain so long as prisoners are debarred from voting. This does not bode well for future challenges to the sweeping ban on prisoner voting rights in India, since the invalidation of this statutory provision would bring down with it the ban on contesting elections, which has received widespread judicial and public support in the recent past. So the court has unknowingly made it more difficult for itself to strike down the ban on prisoner voting rights in the future.

Overall, the Supreme Court’s judgment is based on a skewed understanding of democracy. This is demonstrable through a concluding portion of the Patna High Court judgment, which was affirmed by the Supreme Court on appeal: ‘[t]he issue of crime as attached to candidates or voters pollutes the entire election process. It effects [sic] the sanctity of elections as a whole. It taints democracy.’ Even if one were to agree that disqualifying prisoners from contesting elections is a proportionate restriction on political rights, it is difficult to accept that enabling prisoners to vote would stain the sanctity of the democratic process. An important measure of the success of a democratic state is how it treats those that lie at the margins, including prisoners. The ban on prisoner voting then, which was glossed over by the Supreme Court, is what really taints the democratic process by excluding an entire segment of peoples from the exercise of their first democratic right. The Supreme Court would have benefitted from at least examining whether, to borrow the words of the ECtHR in Scoppola, the ‘general, automatic and indiscriminate restriction’ on the right to vote is permissible in a professedly diverse and inclusive constitutional polity.

Chintan Chandrachud is an MPhil Candidate at St Catherine’s College, University of Oxford

Suggested citation: C. Chandrachud, ‘Prisoner Voting Rights in India’  UK Const. L. Blog (8th August 2013) (available at http://ukconstitutionallaw.org)

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Menaka Guruswamy: Of Generals, Judges and Constitutional Democracies

MenakaOn July 3, General Fattah al-Sisi, the 58 year old Chief of the Egyptian Army announced on television that the army had removed President Mohammad Morsi from power and suspended the constitution. In this same televised address he informed the people that the Chief Justice of Supreme Constitutional Court would be the interim President till fresh elections took place.  Egypt had been in the throes of protests for a few days prior to this annoucement. The renowned Tahrir Square has been the site of demonstrations protesting against President Morsi for a failing economy, the increasing Islamism of the state, and for expanding  his own powers. The democratically elected President Morsi, who belongs to the Muslim Brotherhood, had been a  source of anxiety for secular minded Egyptians. The Muslim Brotherhood founded in 1928 in Egypt is a Islamist religious, political, and social movement that has spread through much of the region.

After a momentous uprising of the people in 2011 that ousted long term autocrat Hosni Mubarak, Egyptians withstood nearly seventeen months of army rule.   Soon after, President Morsi came to power claiming around 51 per cent of the votes cast in an election, which was widely regarded as free and fair. However, he grew unpopular as he was perceived to have pushed through a constitution that was neither inclusive nor egalitarian but simply reflected the values of the Muslim Brotherhood.  Eqypt has a history of military coups. And the military and the Brotherhood have been long standing allies in Egypt. For instance, in 1952 when the monarchy was overthrown by the military the Muslim Brotherhood supported this coup.

Therefore, it is safe to say that the Muslim Brotherhood was an unlikely  catalyst for democracy.  Perhaps no theocratic movement really is the appropriate choice for a democratic framework. Historically, the democracies that have endured have been those that formally separated religion and state.  These countries have placed their their abiding rationale as being located in largely secular constitutions.

Closer home the rather different trajectories of enduring democratic constitutionalism that have characterised the Indian and Pakistani experiences illustrate the consequences of ignoring the lessons of history. India’s rather efficient completion, in around a hundred and fifity working days, of a secular constitution helped the country to quickly pick up the habits of democracy. These habits include investing political and social capital in elections, political parties and parliamentary debates.  Undeniably, the quality of both political parties and parliamentary debates in contemporary India leaves much to be discontent about.  Yet, despite many problems, democratic constitutionalism came to be firmly entrenched in independent India.

By contrast, Pakistan’s first constituent assembly was dissolved by Governor General Ghulam Mohammad as it was nearing completion of a draft constitution in 1954.  Pakistan was therefore denied the chance to produce a constitution grounded in consensus. Perhaps as a consequence of this, Pakistan’s journey as a new country was marred by three military coups and the suspension of three constitutions. Each military dictator coming to power after deposing an elected government suspended the constitution of the time.  A number of facotrs encouraged, or facilitated, the emergence of the Army as a constitutional actor.  Western governments invested their faith in the military as a modernising force in Pakistan. Samuel Huntington captured these sentiments well when he wrote that the military in newly decolonised states were a welcome instrument of modernization and change.  And the military fuelled by support from traditional elites like wealthy land lords, religious figures, and its own accrual of political power in tandem with staggering budgetary allocations  grew into the commercial goliath that it is. Ayesha Sidiqqa’s brave and rigorous book, Military Inc., tells the story of the rise Pakistan’s military as a commercial giant.

However, militaries the world over have rarely acted as progressive forces of change after replacing elected governments. As the scholar Robert Price reminds us, arguments of the military being harbingers of change and stability are not located in empirical or analytical studies. According to him, these conclusions are arrived at merely by ascribing qualities like structural cohesiveness, internal discipline and nationalism to the military.

The Supreme Court of Pakistan played its own role in debilitating constitutional democracy by legitimising each military coup  often invoking grounds like ‘revolutionary legality’  (in State v Dosso and Anr, decided in 1958) that are unknown  to thoughtful jurisprudence. The Supreme Court more recently on May 19, 2012 in a decision by three judges, including Chief Justice Iftikar Mohammad Chaudhury disqualified Prime Minister Yusuf Raza Gilani from serving in office, by convicting him for contempt of court.  The consequences of collaboration of elites in Pakistan with the military, meant that there was little investment in democratic institutions and a disregard was cultivated for parliament. And it is only more recently in the last four odd years that Pakistan has had a long term of civilian administration uninterrupted by a military coup. Therefore, the  consequences of the non-completion of a constitution, the lack of elections and civil-military relations being dominated by the military, in the early years post-independence,  took over fifty more years to remedy.

Egypt’s own Chief Justice of the Supreme Constitutional Court, by accepting the position of caretaker President following the actions of the Egyptian Army, has struck a blow against the fundamental principal of separation of powers. Such a principle establishes separation between the executive, legislature and judiciary with each checking and balancing the other. Judges of apex courts in enduring democracies do not fulfil executive roles, least of all those of Presidents and Prime Ministers.

The holding of high executive office is a trend that is, unfortunately, gaining popularity. In Nepal, numerous changes of government, a failed constitution-making process which the constituent assembly could not complete, characterised its initial years post the fall of the monarchy.  The Chief Justice who stopped the endless drafting process then accepted the position of Prime Minister of the country. Such moves by the Egyptian and Nepali Chief Justices dismantle that most basic prerequisite of democracies: the need for an objective and watchful judiciary. Judiciaries maintain constitutions by consistent interpretation and  by protecting the citizen from  unconstitutional actions. By these actions they contribute to enduring democratic constitutionalism, but a judge who sits in the executive branch cannot fully play this role. When they fulfil political roles they tear at the fabric of democratic constitutionalism.

Egypt’s predicament throws up a fascinating question. What are the long term consequences of an elected government being deposed by a military riding on a magnificent wave of popular discontent? Such discontent was symbolised by signature campaigns and street protests – both great symbols of democratic dissent. Militaries after all can provide quick solutions through use of force. And this makes them superficially attractive agents for change- unconstitutional though it might be.  However, democracies and constitutions allow for  change slowly. They enable change through political and social movements,  a commitment to franchise by voters and  objective constitutional interpretation by courts. None of these methods can provide the quick change of regimes that military might can.

Constitutions and elections are rare and fragile entities. When trashed early on in the existence of new nation states, they subsequently either never take root or the harm done takes a long time to heal. The premise of constitutional democracy is incremental change, not support for convenient military coups. Discontent with constitutional provisions can be addressed by amendments to the text. Amendments do away with the need for revolutions. History teaches us that when courts capitulate or collaborate in unconstitutional acts, and when faith is invested by societies in militaries and not in change through elections and political movements- then only Generals benefit. Not,  ‘We the People’.

                                                Menaka Guruswamy practices law at the Supreme Court of India and is a D.Phil Student at Oxford University.  

Suggested citation:  M. Guruswamy, ‘Of Generals, Judges and Constitutional Democracies’ UK Const. L. Blog (19th July 2013) (available at http://ukconstitutionallaw.org)

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