Sunday, July 24, 2016

Nine-Judge Bench Examines Part XIII of the Constitution

Last week, a nine-judge Supreme Court bench began hearing appeals relating to the interpretation of Part XIII of the Constitution (Articles 301-307). This nine-judge-bench is the sixteenth time that the Supreme Court has assembled in such strength. Most earlier benches handled fundamental rights questions. This is, perhaps, the first one to examine the taxation powers of the Parliament and the state legislatures.

Article 301 was patterned on Section 92 of the 1900 Commonwealth of Australia Constitution Act. It is commonly misinterpreted by academicians and advocates. Due to Article 301's Australian origins, our Court seems to have over-relied on cases from that jurisdiction. This considerable confusion especially in the landmark Atiabari Case. 

In a detailed analysis, Rahul Unnikrishnan, a Madras High Court advocate, discusses the present reference before the Court and two earlier precedents: Atiabari and Automobile Transport.

Sunday, July 17, 2016

Housing Discrimination update: Disturbed Areas Act and Real Estate Rules

This blog has doggedly pursued the issue of housing discrimination and the need for legal regulation (see here and here). Sociological research by Sidhwani and Vithayathil & Singh add to the growing evidence of housing apartheid in urban India. Here are a few further updates on the issue.

1. While the Government was piloting the Real Estate Bill 2016 through Parliament, two Congress MPs Kumari Selja and Rajeev Gowda moved amendments to outlaw discrimination in the housing sector. They withdrew their amendment on the Minister's promise to outlaw it under the Rules. Media reports were ecstatic over the promise. The Ministry's move seems to be a damp squib: first, it seems that the central Ministry can only frame rules for Union Territories without a legislature (just as well). So, the promise only applies to a very small part of the country. Even there, the published draft Rules only mention discrimination in passing, almost as an afterthought, and are highly unlikely to have any impact. The very short timeframe for sending comments on the draft has now expired. Hopefully, next time the MPs will insist on statutory amendment rather than be satisfied by vague promises relating to statutory instruments, which are mostly beyond parliamentary oversight in any case.

2. On a related matter, just saw this news story about the Gujarat Disturbed Areas Act 1991. In the notified areas, it forbids any transfer of immovable property unless the collector is satisfied that the transfer is free and consensual. In formal terms, therefore, it seems to be a law designed to address distress sales of property by persons fleeing violence. The hyperlinked media stories appear to suggest that it is being used to prevent Muslims from buying property in 'Hindu' areas. Sounds very similar to the various Freedom of Religion Acts passed in many states, ostensibly designed to protect religious freedom, but in effect having precisely the opposite effect.

3. For readers interested in my campaign to get a comprehensive antidiscrimination legislation enacted (along with the text of a draft Bill), please see this link.

Monday, June 06, 2016

Supreme Court on Pre-Legislative Consultation

This blog has previously carried commentary on pre-legislative scrutiny on several occasions: see here, here, here and here.
A few weeks ago, on May 11, 2016, the Supreme Court delivered a judgment in the case of Cellular Operators Association of India v. TRAI, popularly known as the 'call drops' case. The case has important implications for pre-legislative scrutiny, especially pertaining to sub-ordinate legislations. The impugned sub-ordinate legislation was the Telecom Consumers Protection (Ninth Amendment) Regulations, 2015, which required that telecom service providers compensate consumers for call drops. The constitutionality of the regulation was challenged before the Supreme Court (on appeal from the Delhi High Court) on various grounds.
One of the grounds on which the challenge succeeded was the violation the requirement under Section 11(4) of the Telecom Regulatory Authority of India Act, 1997 (TRAI Act), the principal legislation. Section 11(4) states: “The Authority [TRAI] shall ensure transparency while exercising its powers and discharging its functions”.
It is important to note that the Court at the outset states that ordinarily, a legislation (principal or sub-ordinate) is not subject to the rules of natural justice. However, if the parent statute explicitly provides for it, the sub-ordinate legislation must follow such rules of natural justice. In this instance, since the parent statute provides for a ‘transparency’ requirement, it was held by the Court that the ordinary rule was not applicable.
The term transparency, however, has not been defined under the TRAI Act. Thus the Court refers to other statutes and a number of case laws to determine the scope of the ‘transparency’ requirement:
  • The Court refers to Section 13(4) of the Airports Economic Regulatory Authority Act, 2008, which provides for three requirements under the ambit of transparency: holding due consultations with all stakeholders, allowing stakeholders to make their submissions, and fully documenting and explaining decisions. The English Court of Appeal case of R v. North and East Devon Health Authority is then cited, in order to determine the scope of the term ‘consultation’. The case holds that even the product of the consultation must be “conscientiously taken into account when the ultimate decision is taken”.
  • Thereafter the Court calls attention to the RTI Act, 2005 (including Section 4(1) where every public authority is to publish the procedure followed in its decision making processes) and connected judgments to emphasize the aspect of openness in governance (in the context of transparency).
  • Crucially, the Court also cites Section 553 of the US Administrative Procedure Act, which provides that notice of rules must be served beforehand and that after hearing comments a “concise general statement” of the basis and purpose of the rules shall be published. Next, the Corpus Juris Secundum is cited in order to discuss the requirements under the Administrative Procedure Act. The Corpus Juris Secundum explains that the general statement, in a reasoned manner, is expected to respond to and resolve significant problems raised by comments received. The Court rules that TRAI was expected to follow such procedure to fulfil the ‘transparency’ requirement under the TRAI Act.

Since TRAI did not reasonably respond to comments, such as those that pointed out that consumers themselves were at fault for call drops, the regulation was struck down as ultra vires. What about those sub-ordinate legislations that have no such ‘transparency’ requirements under parent statutes? The Supreme Court recommends that the Parliament enact a legislation on the lines of the US Administrative Procedure Act, binding all subordinate legislation.
It appears that the Pre-Legislative Consultation Policy (PLCP) adopted by the Committee of Secretaries in January 2014 escaped the attention of the Court. As per the policy, all legislation, principal or sub-ordinate, must be subject to pre-legislative scrutiny. Specifically, the policy requires prior publication of the legislation, publication of an explanatory note and receipt of comments on the draft legislation. The summary of comments and the response to the comments is to be placed before the Cabinet and the relevant Parliament Standing Committee. The policy also states that all new principal legislation must provide for prior publication of sub-ordinate legislation. What is especially important is that the policy applies to all principal and sub-ordinate legislation. In other words, the PLCP applies (a) irrespective of whether the principal legislation provides for prior publication of sub-ordinate legislation and (b) even though ordinarily (as the Supreme Court holds in the above case) legislation is not subject to rules of natural justice. This progressive piece of policy ought to have been taken notice of by the Supreme Court.
- Vasujith Ram

Thursday, June 02, 2016

Reviewing Legislation under Article 14

Readers may have already heard of the excellent Oxford Handbook of the Indian Constitution edited by Khosla, Mehta and Choudhry. I have contributed a chapter on the application of Article 14 to judicial review of legislation. 

The chapter explores the two doctrines that have evolved to test the constitutionality of a measure when faced with an Article 14 challenge: the ‘classification test’ or the ‘old doctrine’ (which I have labelled ‘unreasonable comparison’) and the ‘arbitrariness test’ or the ‘new doctrine’ (labelled ‘non- comparative unreasonableness’). I show that:

(a) the classification test (or the unreasonable comparison test) continues to be applied for testing the constitutionality of classificatory rules (whether or not legislative in character); 

(b) it is a limited and highly formalistic test applied deferentially; 

(c) the arbitrariness test is really a test of unreasonableness of measures which do not entail comparison (hence labelled non- comparative unreasonableness); 

(d) its supposed connection with the right to equal­ity is based on a conceptual misunderstanding of the requirements of the rule of law; and 

(e) despite some doctrinal confusion, courts are unlikely to consistently apply it to acts of legislatures.

The chapter concludes by showing that Article 14 has become a victim of the weak ‘old’ doctrine and the over-the-top ‘new’ doctrine. The former needs expansion and substantiation, the latter relegation to its rightful place as a standard of administrative review.

Wednesday, May 18, 2016

Restrictions on Constitutional Amendments in Papua New Guinea and India


The Supreme Court of Papua New Guinea (“SCPNG”)’s recent decision in Namah v Pato [2016] PGSC 13; SC1497 (“Namah) found the detention of asylum seekers (transferred from Australia to Papua New Guinea [“PNG”]) in a ‘regional processing centre’ on Manus Island to be ‘unconstitutional and illegal’. (For an excellent general overview of the decision, see Tony Blackshield’s post for AUSPUBLAW.)

The SCPNG was not concerned solely with detention in and of itself (and, in particular, the fact that such detention lacked statutory authorisation and was not constitutionally permissible),[1] but also with the validity of an enactment (the Constitution Amendment (No 37) (Citizenship) Law; the Amendment”)) purporting to amend the PNG Constitution. The amended clause in dispute (s42(1)(ga)) authorised the denial of personal liberty ‘for the purposes of holding a foreign national under arrangements made by Papua New Guinea with another country or with an international organisation that the Minister responsible for immigration matters, in his absolute discretion, approves.

In striking down the amendment (and hence s42(1)(ga)), the SCPNG highlighted the gulf between India and PNG’s approach to limitations on constitutional amendments, and provided an intriguing contrast to Kesavananda Bharati and successive Indian jurisprudence. This post is a brief overview of this aspect of the decision, including by reference to comparative developments in India.

Constitutional Structure

The PNG Constitution took effect upon PNG’s independence from Australia in 1975. This Constitution arguably bears greater resemblance to that of India than of Australia – as in the Constitution’s provision for ‘National Goals and Directive Principles’ (encompassing both civil-political and socio-economic objectives), its constitutional guarantees of fundamental rights and its length and breadth more generally (consisting at present of over 275 clauses and multiple schedules, as distinct from Australia’s 128-clause Constitution). Among the guarantees afforded by the PNG Constitution is ‘liberty of the person’, not to be deprived except in prescribed circumstances (set out by s42(1)) and, where deprived, to be accompanied by various procedural rights. Of the circumstances permitting detention prior to the Amendment, none were found to apply to the detention of asylum seekers on Manus Island (Namah at [39]).

s38(1) of the PNG Constitution limits the Parliament’s power to make laws regulating or restricting fundamental rights ‘to the extent that the regulation or restriction is necessary’ (having regard to various factors) or except where such laws ‘mak[e] reasonable provision for cases where the exercise of one such right may conflict with the exercise of another, to the extent that the law is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind’. Laws made for such purposes must be explicitly stated to be such, and the onus is upon ‘the party relying on [the law’s] validity’ to demonstrate compliance with s38 (at subsections (2)-(3)). s39 provides for various instruments to which the courts may choose to consider in determining whether laws are ‘reasonably justified in a democratic society’, including the Constitution itself, various international instruments, ‘laws, practices and judicial decisions and opinions’ in PNG and other countries and ‘declarations by the International Commission of Jurists and other similar organisations’.

These restrictions upon legislative power extend to purported amendments to the Constitution itself (Namah at [54]). Although this bears formal comparison to the restrictions upon amendment set out in Kesavananda Bharati (and related cases), and although reference has been made to Kesavananda Bharati in oral argument before the SCPNG in previous cases, the SCPNG has previously declared that the ‘basic structure doctrine’, as such, is ‘inapplicable to the interpretation of the [PNG] Constitution’ (Special Reference by Fly River Provincial Executive Council (at [109])). That is to say, restrictions upon amendment are said to arise purely by virtue of these explicit restrictions rather than by reference to any broader appeal to the Constitution’s ‘basic structure’ or principles.

Namah and Kesavananda (and its Descendents)

The SCPNG found that the PNG Government had not satisfied the onus upon them to establish that the Amendment satisfied the requirements of s38 of the PNG Constitution (Namah at [54], [65], [97]). The SCPNG’s treatment of this issue in Namah is relatively brief. At [53], Kandakasi J notes that the Amendment does not explain ‘the purpose of the amendment or the right or rights which it purports to restrict’ and does not justify why the regulation or restriction is ‘reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind’ (and hence why the regulation or restriction satisfies s38), and that no explanation was provided for the unusual procedural background to the amendment (having been enacted as part of a law governing dual citizenship in PNG). Kandakasi J hence asserts that ‘[i]n the absence of any evidence to the contrary, it is clear the 2014 Amendment was inserted without any proper consideration or thought’ – further bolstering the Government’s failure to satisfy the onus placed upon them by s38. Kandakasi J had further regard to the UNHCR’s guidelines on the detention of asylum seekers (Namah at [66]), PNG’s obligations under the Refugees Convention (at [67]), and the UNHCR’s condemnation of the conditions in which asylum seekers on Manus Island are detained (at [68]). Each of these materials are consistent with the matters to which the SCPNG may have regard under s39 in its construction of s38.

The Constitution of PNG hence provides (albeit in relatively broad terms) for the criteria that a valid constitutional amendment must satisfy (in s38), and for some considerations relevant to whether those criteria have been met (in s39). The contrast to the Constitution of India is apparent. Even if one does not accept Mehta’s view that the Indian Supreme Court ‘has not quite thought through the constitutional principle behind the basic structure doctrine[2] (or similar critical takes), accepting instead the notion that the ‘basic structure’ of the Constitution and its components must, in fact, have a textual foundation (with a corresponding conceptual underpinning),[3] the PNG experience presents an interesting contrast of limitations to amendment that are set out as explicit criteria (rather than, for example, basic features arising from, but not identified as such within, the constitutional text), albeit measured by external yardsticks. Interestingly, however (and admittedly contrary to the view I have expressed below about the beneficial clarity of PNG’s criteria), these external yardsticks noted in s39 allow the test under s38 to have regard to the ‘abstract ideals’ and extraconstitutional sources of the kind eschewed by Bhagwati J as a guide to the ‘basic features’ in Minerva Mills AIR 1980 SC 1789 (at 1821).

PNG’s constitutional provisions (and their subsequent development in caselaw) are, of course, the product of that nation’s unique history and circumstances. One may posit, however, that the result in Namah (and foreshadowed positive results for asylum seekers detained on Manus Island) was made more certain by textual clarity as to what, exactly, the SCPNG was required to examine, and what metrics it could use in doing so. I am sympathetic to the view that the Indian Supreme Court has in fact followed a coherent and identifiable method in its approach to the ‘basic structure’ doctrine,[4] and I acknowledge the considerable breadth of the terms ‘reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind’ (particularly where assessed by reference to a plethora of external sources). Even so, constitutional challenges of the kind that succeeded in Namah, and the ability of even marginalised and detained non-citizens to hold governments to account, are strengthened and made more likely by this degree of certainty and clarity as to the proof to which the Government must ultimately be put, and in a climate of relative consensus as to how that proof is to be reached.

I am grateful to Emeritus Professor Tony Blackshield for his inspiration and encouragement in writing this post. 

[1] Interestingly, the SCPNG has cited Maneka Gandhi’s case in noting that the term ‘personal liberty’ ought to be given a broad interpretation: Namah at [28].
[2] Mehta, ‘The Inner Conflict of Constitutionalism’’ in Hasan et al, India’s Living Constitution (2002) 201.
[3] See e.g. Krishnaswamy, Democracy and Constitutionalism in India (2nd ed 2010) 152-163.
[4] Ibid 163.