Jurisdictional Questions and the Pending Naz Appeal in the Supreme Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Most apropos is Justice PN Bhagwati's caution in SP Gupta. That great pioneer of Indian judicial activism warned courts against those who abuse the public interest:

cases may arise where . . . there is a specific legal injury to an individual or to a specific class or group of individuals. In such cases, a member of the public having sufficient interest can certainly maintain an action challenging the legality of such act or omission. [B]ut if the person or specific class or group of persons who are primarily injured as a result of such act or omission, do not wish to claim any relief and accept such act or omission willingly and without protest, the member of the public who complains of a secondary public injury cannot maintain the action. [T]he effect of entertaining the action at the instance of such member of the public would be to foist a relief on the person or specific class or group of persons primarily injured, which they do not want.

Justice Bhagwati’s observations apply with alacrity to the Naz appeals. It is unclear whether these observations were brought to Justices Singhvi and Mukhopadhayay’s attention during the hearings. In any case, one respectfully hopes that the learned judges will reflect on Justice Bhagwati's words as they draft their opinions. Indeed, both judges have previously dealt with jurisdictional questions in other contexts. To mention just one example, their common decision in Village Panchayat Calatunge demonstrates that the two jurists have an excellent grasp over these questions.

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

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

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. 

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.

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.

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.

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. 

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, 3^rdedition p. 273-274, and 4^th 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.