bHAITA DOES INDIA NEED 4TH BRANCH

22/03/2024, 20:58 Indian Constitutional Law and Philosophy
Indian Constitutional Law and Philosophy
Guest Post: The Independence of the Election

Commission – a Middle Path
 MARCH 22, 2024MARCH 22, 2024  GAUTAM BHATIA  LEAVE A COMMENT
[This is a guest post by Utkarsh Rai.]
With the recent controversies over the process for the appointment of the Election Commissioner, it
might be time to consider various models for independence of 4th branch, or guarantor institutions.
In this regard, a possible model emerges from the arguments in the PJ Thomas
(https://indiankanoon.org/doc/310431/) case, that concerned the validity of appointments to the
CVC, another 4th branch institution. In the history of the Court’s engagement with guarantor
institutions (which the EC undoubtedly is), this judgement is unique because it saw the Court
quashing the appointment of PJ Thomas, relying on the principle of institutional integrity. However,
in this case, another argument brought forward by the petitioners (ADR, one of the petitioners in the
EC petition as well) was regarding the interpretation of Section 4(1) of the then CVC Act, and to read
the recommendation required by the High-Powered Committee to be unanimous (instead of by
majority).
The argument of the petitioners was based on a purposive reading of the text, as well as the
circumstances of the case, where the then Leader of Opposition Sushma Swaraj had already dissented
over the appointment of Thomas, highlighting flaws in his candidature. However, the Court did not
agree with the same. At this juncture, it is important to point out that the circumstances in the PJ
Thomas judgement are very similar to our own, with respect to the dissent of the Leader of Oppositon
with respect to the appointment. Further, the controversies over the appointment procedure for the
Election Commissioner also reflect an impasse over different models regarding the composition of
committees tasked with the appointment of persons to guarantor institutions in India. Roughly
speaking, the two prominent models are:
1. the procedure set down in the Anoop Baranwal judgement, which created a 3-member committee
consisting of the PM, CJI and the Leader of Opposition.
2. the procedure set down in legislation governing various 4th branch institutions, such as the CEC
and the CVC.

At this juncture, it is pertinent to point out that neither model is perfect. However, in the current
scenario, the main model that seems to have been articulated is for a return to the model set down by
the Court in the Anoop Baranwal judgement (that is, a selection committee consisting of the Prime
Minister, the Leader of Opposition, and the Chief Justice of India). This is understandable as such a
https://indconlawphil.wordpress.com 1/35
suggestion has already been made by various committees, as well as the Law Commission in 2015.
Not only this, a comparative overview will show that in other countries such as South Africa and
South Korea, a Supreme Court justice is either on the appointment committee (South Africa) or is one
of the 3 people that nominates individuals to the Election Commission. As such, the desire for the CJI
to be on the committee is not surprising at all.
The Problems with the Anoop Baranwal Model
However, despite such arguments, I believe we must reflect more on the viability of such a model in
India. In this regard, we must remember
(https://indconlawphil.wordpress.com/2023/03/04/decoding-the-supreme-courts-election-
commission-judgment-ii-on-the-separation-of-powers-guest-post/) that the practice of including the
CJI on the committee already exists for the appointment of individuals to certain positions, and it is
not clear yet that such a practice has been better than alternatives. More importantly, it is also
important to remember (http://More importantly, it is also important to remember the controversies
over post-judicial appointments in India) the controversies over post-judicial appointments in India,
and the allegations surrounding the executive bias of the judiciary across different political eras. I do
not bring these points up to endorse these claims, but rather to highlight the sorts of issues that are
already affecting public perception of the judiciary, and the further partisan conflicts that the
judiciary could get embroiled in if it is included in the committee for the appointment of the Election
Commissioners. Further, it can be argued that the presence of the CJI on the Committee also puts the
Court in an awkward position in the case of controversies regarding appointments, as past practise
will attest (https://indconlawphil.wordpress.com/2019/05/01/a-question-of-power/) to the Court’s
‘awkward’ handling of cases where it is required to review behavior by the CJI or other judges.
Decision-Making by Unanimity
This brings us to the second model. As is clear from the criticisms of the Bill and its provisions, the
model is inadequate because it clearly gives a majority to the Executive. However, a close reading of
the text shows that it leaves room for an interpretation in which the Committee, despite its
composition, has to take decisions unanimously. In the PJ Thomas case, it was such a suggestion that
the petitioners suggested reading into the case, based on a purposive reading of the statute. This was
the suggestion that was rebutted by the Court in the PJ Thomas case. However, the text in the CEC Bill
remains very similar to the text of the CVC Bill when the PJ Thomas case was adjudicated.
The only difference in the text between the CVC Bill and the CEC Bill is that the text of the CEC Bill
explicitly allows the committee empowered to appoint the Commissioner to set its own procedure.
This, along with the Section 7(2) of the Bill, which allows the Committee to decide regardless of a
vacancy in the Committee, are the provisions that reflect legislative intent to entrench executive
dominance in the Committee. An approach that the Court could take here is to interpret these
provisions to require unanimity from the committee in decision-making. The Court will also have to
strike down Section 7(2) of the Bill. To ensure that such a provision is not misused, the Court can also
put in place a deadline for appointments by the committee after it sits down to choose an Election
Commissioner (a problem that has already reared (https://www.hindustantimes.com/india-
news/centres-reply-sought-on-appointment-of-cbi-director-101634754806990.html) its head in such
appointment committees that include the CJI). Such an interpretation is also plausible in the
aftermath of the Anoop Baranwal judgement, where the logic of the Court’s judgement required setting
up an appointments committee that was not dominated by the Executive.

In this regard, the Court can take inspiration
(https://academic.oup.com/ojls/article/26/1/179/1505735) from UK jurisprudence in this regard.
In the UK, Section 3(1) of the Human Rights Act requires the Court to interpret legislation in a
manner that is consistent with the Convention. This has led to the Court to ‘read down’ or ‘read in’
provisions that are Convention incompatible. As Kavanagh discussed in her article, this approach is
now a part and parcel of the Court’s interpretation in such matters. A similar interpretive strategy
could be followed in this case, and other cases of this nature. Further, in Para 55 of the PJ Thomas
judgement, the Court stressed that all individuals in the committee must publicize their decisions and
the rationale for the same, especially in the case of dissent. This should be required regardless of
dissent, to ensure trans,parency and clarity regarding the reasons for the appointment of the
Commissioners.
Final Reflections
The PJ Thomas case remains a landmark case in the history of guarantor institution litigation in India
because of the Court’s articulation of the concept of institutional integrity, as well as its application of
the concept to the specific facts of the case. Since the case, the jurisprudence on guarantor institutions
has been further strengthened by the ruling of the Court in Anoop Baranwal. As the guarantor
institution litigation in India has been piecemeal, a coherent theory might emerge upon a combined
reading of the various cases, particularly Vineet Narain, where the Court highlighted the importance
of the concept in the Indian context, PJ Thomas, where it articulated the importance of institutional
integrity for these institutions, in their appointments and working, and Anoop Baranwal, where it
combined various strands to ensure that these institutions have structural autonomy. Such a reading
will also help us see how the holdings of Courts in older cases might get updated based on
jurisprudence that has emerged in later cases, and that now represents the final view of the Court in
such matters.
In this regard, it could be said that the holding of the PJ Thomas judgment, that did not require the 3-
member committee in charge of appointing the CVC to make its decision with unanimous consent, is
in need of re-evaluation, especially in light of the jurisprudence on the importance of the
independence of such institutions articulated by the Court in the Anoop Baranwal case. Thus, the
jurisprudence of the Court from the Anoop Baranwal case, specifically the Court’s emphasis on the
importance of an election commission independent from executive dominance, should now anchor
any future decisions the Court takes regarding how a 3-member committee might operate to prevent
executive dominance. While this does not seem to have been the consensus from the different
committees set up on this matter, I do believe this might be an acceptable middle-ground approach
with multiple advantages.
First of all, as has been pointed out earlier, while putting the CJI in the committee seems like a great
idea, it doesn’t seem to have been any better than existing ones in practise. By inserting the CJI into
the committee, it places the Court in the centre of partisan conflict, but this time in a role that it is new
to it. Further, it also places the Court in an awkward position with regards to the adjudication of any
future controversies into appointments, as the CJI’s inclusion in the committee could create potential
conflicts of interest that might affect the Court in its core duty as an adjudicator of such disputes, not
to mention the awkward manner in which the Court has carried out enquiries in controversies that
implicate its own members. Another point to consider
(https://indconlawphil.wordpress.com/2023/07/29/guest-post-conceptualizing-the-fourth-branch-
as-co-equal-on-the-supreme-courts-enforcement-directorate-judgements/) here is the extent to
which the Court’s decisions seem to have created a hierarchy in which the Court is superior relative
to 4th branch institutions. The inclusion of the CJI on the committee might further entrench this
hierarchy, which might not be the best approach. As such, while the idea of the inclusion of the CJI in
the committee for the appointment of the Election Commissioner is not a bad idea, I believe the Court

would be better served by not directly involving itself in the process, while requiring the selection to
be based on unanimity, transparency, and timely consultation, values that are common threads that
run through its judgements on guarantor institutions in India.
Subversive Speech and the Freedom of

Expression: The Judgment of the High Court
of Kenya
 MARCH 19, 2024  GAUTAM BHATIA  LEAVE A COMMENT
This Monday, the High Court of Kenya at Nakuru delivered a landmark judgment on freedom of
speech (Katiba Institute and Ors vs The Director of Public Prosecutions and Ors
(https://drive.google.com/file/d/1ItKFDqYLDYGIBcdsTqYCjTebDHg3N9xU/view?
usp=drivesdk)). At issue was Section 77 of the Penal Code, which criminalised acts done or words
spoken with a “subversive intention.” “Subversion”, in turn, was defined as prejudicing public order
or security, incitement to violence, promotion of enmity or hatred between different races, spreading
disaffection, and other very similar phrases.
One Joshua Otieno Ayika was prosecuted under this section for a 2022 tweet that speculated that the
army might be taking over the government. In this context, the Katiba Institute – and certain other
parties – filed a challenge before the High Court, contending that Section 77 was unconstitutional.
The High Court agreed, and struck it down.
The judgment of the High Court is a textbook application of some of the core doctrines of free speech.
Justice Mohochi begins by noting that at the time of Independence, Kenya inherited a repressive
colonial system; sedition prosecutions in the Independence era marked a continuation of this system
(paras 105-106). In this context, the Mohochi J notes that the 2010 Constitution is transformative, and
consciously designed to mark a break with the repressive past – including the post-colonial past,
which retained colonial legal structures with “very minor and cosmetic variations that were intended
for self-preservation and colonial repression.” (para 110) This requires pre-existing legislation and
legislative structures to be levelled up in order to comply with the new Constitution’s standards (para
110).
The High Court’s analysis then proceeds within this historical and conceptual framework. In the
present dispute, it was nobody’s case that Section 77 of the Penal Code infringed the right of free
speech; the only question was whether it fell within the specific excluded categories of the free speech
clause under Article 33 (propaganda for war, incitement to violence, hate speech, or advocacy of
hatred based on discrimination), or whether it was protected by the general justification clause of the
Bill of Rights (Article 24). The Court finds that although the State had invoked Section 77, it was
unable to explain which exclusionary clause in the Constitution covered the offending tweet; this, the
Court notes, is a chilling reminder of how a liberal and broad interpretation on making a decision to
prosecute (something, we may add, specifically enabled by the section) makes possible the abuse of
such a provision. (para 127)
Indeed, Mohochi J uses this to segue into the substantive challenge itself, noting that “the meaning of
“Subversive” takes in quite a variety of activities, and that its contents are therefore broad and wide
that it is vague or indefinite.” (para 128) This is, of course, a variant of the familiar free speech

doctrine of “void for vagueness,” and the Court echoes the primary concern of this doctrine by noting
the vast latitude that it gives to prosecutors and the police. The Court then folds the doctrine into the
first limb of the proportionality standard by noting that Section 77 of the Penal Code – because of its
vagueness – fails the test of being “prescribed by law.” (para 137) Strikingly, the Court finds that even
the clarificatory sub-sections of Section 77 suffer from the vice of vagueness:
… there exists confusing definition of “subversion” especially about the meaning of “prejudicial to public
order, security of Kenya and administration of justice”, “in defiance of or disobedience to the law and lawful
authority; unlawful society” or “hatred or contempt or excite disaffection against any public officer or any
class of public officer”. None of the terms used in the offence are defined or capable of precise or objective
legal definition or understanding. (para 137)
One important thing to note here is that a lot of terms that the High Court singles our are staple
features of repressive colonial legislation across the British commonwealth, which were then adopted
into post-colonial penal codes. Too often, courts in these post-colonial countries have interpreted their
Constitutions in light of these terms, rather than the other way round: that is, the scope of the free
speech guarantee has been defined and limited by phrases such as “disaffection” or “prejudicial to
public order,” rather than these phrases being considered on the touchstone of the Constitution. It is
here that the High Court’s invocation of history (both colonial and post-colonial) becomes important,
because it is that history that is the basis of the Court’s doctrinal approach towards interpreting the
Constitution as responding to that history.
While Section 77 therefore failed on the first prong of the proportionality test, the Mohochi J also
examines it on the third prong: necessity. In an interesting analysis, he notes that the stated goals of
the provision – that is, combating hate speech, or preserving State security – are fulfilled through
other existing laws, with lower penalties. This allows the Court to hold that Section 77 is not the “least
restrictive measure” to serve the State’s goals, given that lesser restrictive measures exist. This is
particularly interesting, as we don’t often see the “least restrictive measure” prong of the
proportionality test being deployed to compare existing legislative measures.
On this basis, the Court therefore finds the relevant part of Section 77 to be unconstitutional. By way
of conclusion, a final point: I have written above about the Court’s analysis, but what of the facts? It
must be said, putting out a tweet stating that a military coup is imminent skirts a very fine line on the
boundaries of free speech: given the potential panic that such communication might cause, one can
easily see a court comparing it to the proverbial “fire in a crowded theatre” test. One must, therefore,
commend the Mohochi J, in particular, for not allowing (potentially) bad facts to make bad law, and
by completely separating the constitutional analysis from the individual behaviour that gave rise to
the constitutional claim. Experience teaches us that while Courts always claim they do this, it is not as
easy as it seems!
Making the Right to Reproductive Health

Meaningful: The Judgment of the Kenyan Court of
Appeal [Guest Post]
 MARCH 2, 2024  GAUTAM BHATIA  LEAVE A COMMENT
[This is a guest post by Josua Malidzo Nyawa.]
Introduction 
The artificial cleavage separating civil and political rights and socio-economic rights was brought to
an end in 2010, when Kenyans promulgated the Constitution (http://kenyalaw.org/lex/actview.xql?
actid=Const2010), which expressly makes socio-economic rights justiciable. By doing so, Kenyans
ensured that the most vulnerable, marginalised and disadvantaged people were protected, and that
the state occupied the tiller to ensure the continual improvement of their conditions. However,
despite the progressive measure of entrenching these rights in the Constitution, their enforcement
and implementation have not been without challenges. While accepting that the debate on whether
socioeconomic rights are justiciable is old and well-worn
(https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1434944), the state (like other governments)
has consistently deployed the argument that socioeconomic rights are subject to progressive
realisation, and to the availability of resources.
This was the case in a recent decision of the Court of Appeal in the County Government of Bungoma
and others v Josephine Oundo Ongwen and others (2024) eKLR
(https://drive.google.com/file/d/1Dv6syz0yC_o48o5eCWsSbk4YTt9xUtKH/view?usp=drivesdk),
where the state argued that since the right to maternal health is a socio-economic right, it is to be
realised progressively and subject to the availability of funds. Had the Court accepted this argument,
it was expected to, like Pilate, wash its hands and leave the rights to appear like ‘defected footballers
who have lost a match’ (http://kenyalaw.org/caselaw/cases/view/91830/). However, the Court of
Appeal did the precise opposite: in an innovative judgment, Justice Joel Ngugi employed the
“minimum core obligation” concept to hold that notwithstanding socio-economic rights being subject
to progressive realisation requirements, rights contain minimum obligations which are realisable
immediately.
Setting the scene: Dereliction of duty and undignifying treatment by the state
On 8 August 2013, Josephine, a woman from a marginalised socioeconomic setting, went to one of the
district hospitals for childbirth. Upon arrival at the hospital, she was admitted, and she informed the
doctors that she was overdue. The doctor informed her that she would have to undergo induced
labour. Due to the space constraints at the hospital, she was forced to share a bed with another
patient. As if this was not bad enough, the nurses informed her that once the labour pains started, she
would have to walk to the delivery room. She was left unattended. When the labour pains started,
she attempted to walk to the delivery room, but unfortunately, she had to deliver on the floor along
the corridors of the hospital.
This, however, was not the end of the ordeal. When she was giving birth, she lost consciousness and
was woken up by shouts and physical and verbal assaults from two nurses who were displeased with
the fact that she delivered on the floor. Josephine was then forced to carry her placenta and walk to
the delivery room to have it expelled. She approached the High Court and awarded her Kshs 2.5M
for violation of her right to maternal health, among other rights. Dissatisfied with this judgment, the
state moved to the Court of Appeal.
The context for this case is, however, critical. In Kenya, three in four women report
(https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6751597/) that they have been subjected to at
least one form of obstetric violence (https://nation.africa/kenya/news/gender/dignifying-
childbirth-is-part-of-ending-violence-against-women-4450812) during labour and delivery. Pregnant
women have been mistreated at the hands of the healthcare workers. As a result of this background,
one of the members of parliament has introduced a bill
(https://www.standardmedia.co.ke/article/2001482436/proposed-law-seeks-to-protect-women-
from-pregnancy-related-violence). While introducing the bill, the member of parliament stated that
(https://www.capitalfm.co.ke/news/2023/11/lobbyists-endorse-wamuchombas-campaign-against-
obstetric-violence/):

Across delivery rooms and maternity wards in Kenya, many women remain similarly unassisted and
neglected as they struggle through childbirth; it is even worse if it involves women with disability.
This is gender-based violence and needs to stop immediately.
The importance of this case is better expressed if it is understood with this context in mind.
A case for minimum core obligations in Kenya
The Committee on Economic, Social and Cultural Rights (CESCR) articulated the concept of
minimum core obligation in General Comment 3
(https://www.refworld.org/legal/general/cescr/1990/en/5613) in para 10. The committee
formulated this requirement as follows;
The committee is of the view that a minimum core obligation to ensure the satisfaction of, at the very least,
minimum essential levels of each of the rights is incumbent upon every State party……………….. If the
Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be
largely deprived of its raison d’être.
In simple terms, the concept seeks to provide the ’bare level ground’ for socioeconomic rights. In
doing so, the concept sets ‘a quantitative and qualitative floor of socio-economic and cultural rights
that must be immediately realised by the state as a matter of top priority’
(https://documents1.worldbank.org/curated/es/476741515589301383/pdf/WP-Fisher-
PUBLIC.pdf). The concept can further be broken down into three principles. The first is immediacy:
the principle requires that the content identified must be realised immediately and not subject to
progressive realisation; secondly, unique content: the identified content must be so peculiar and of
high priority, without which the right loses its substantive significance as a human right; third, non-
derogability: the principle requires that the identified content is non-derogable.
Courts and judges are called upon to deploy human rights language in adjudicating human rights.
While considering socio-economic rights, courts must look for a proper doctrine. My assessment of
the jurisprudence emanating from the Kenyan courts is that judges have failed to correctly point us to
the standard of review that Kenya has chosen. However, in most decisions, the courts seem to have
adopted the reasonableness test, with the Supreme Court choosing to remain silent in Mitu-Bell
(http://kenyalaw.org/caselaw/cases/view/205900/).
In this case, however, Justice Joel Ngugi was not shy of finding that the case involved the right to
maternal health. The next obstacle was to deal with the state’s case that the hospitals are
overstretched and the right should be subject to progressive realisation. In dismissing this obstacle,
the Ngugi J observed that the right to maternal health has a “minimum core” that is realisable
immediately and not subject to progressive realisation. He held:
It is not, at all, contested that under our Constitution, every woman is entitled to respectful maternal care
during childbirth as part of their social and economic rights enshrined in Article 43 of the Constitution.
That aspect of the right to health is not subject to progressive realization. It is part of the minimum core of
the right that must be realizable immediately and not progressively.
Ngugi J further identified the minimum core of the right to maternal health to include:
a. The right to be free from physical violence and verbal abuse during labour and childbirth;
b. The right to be free from discrimination during labour and childbirth;
c. The right to a dignified and respectful care – including being granted acceptable levels of privacy and
confidentiality during labour and childbirth. 
He further underscored the point that whereas the state can argue the non-availability of resources
with regards to the availability of drugs, hospital beds and even shortage of medical personnel, the
‘human rights-based maternity care commanded by a purposive reading of Article 43 of the
Constitution’ includes the right of women to ‘dignified, respectful health care throughout pregnancy
and childbirth as well as freedom from violence and discrimination’: and that this is realizable
immediately. (see para 32).
The use of the minimum core concept to deliver a constitutionally-mandated good to women who
have suffered at the hands of a non-caring government is commendable. By using the concept, the
Court of Appeal ensured that the right to maternal health has teeth that can bite, and is not a
toothless bulldog (http://kenyalaw.org/caselaw/cases/view/7853/). In the broader scheme of
other socio-economic rights, it is a reminder (as noted above) that ‘article 43 of the Constitution does
not sit there like a defected football player who has lost a match. It is indeed alive and has started
the run towards full realisation as opposed to a slow shuffle in the name of progressive
realisation.’ (http://kenyalaw.org/caselaw/cases/view/91830/)
Although the Judge did not spend much time on whether this minimum core obligation content test
is applicable in Kenya, it is easy to answer. First, article 24 of the Constitution provides a general
limitation clause asking judges to consider the proportionality standard. Secondly, the provision
further requires that ‘[A] provision in legislation limiting a right or fundamental freedom shall not
limit the right or fundamental freedom so far as to derogate from its core or essential content’. Article
20(5) also requires the state to prioritise delivering socio-economic rights. Therefore, even if it were to
be argued that the position adopted by the committee is not binding (which is wrong), the concept of
minimum core obligation has already been endorsed by the Constitution of Kenya (see Orago on this
(https://www.saflii.org/za/journals/PER/2013/71.html)).
Consequently, the Court of Appeal, laid down a solid jurisprudential foundation of socio-economic
rights in Kenya. The migration of the minimum core obligation standard of review of socio-economic
rights is the most progressive decision on this issue, thus far, under the new Constitution: it lays
down a proper test for the adjudication of socio-economic rights. More importantly, it reiterates the
court’s role of ‘[p]rodding government to be more responsive to the needs of the poor to fulfil their
constitutional rights and have access to economic and social resources and services.’
(https://www.jstor.org/stable/44283621)
Developing the law to give effect to rights
Articles 259 and 20(3) of the Constitution lay down the canons of interpretation of rights. Apart from
requiring that the Constitution be interpreted liberally and purposively while giving effect to values
and principles, the Constitution demands that the idea is that of maximisation of rights, and not
minimalism. Notably, the Constitution imposes an injunction on judges to adopt the interpretation
that most favors the enforcement of a right or fundamental freedom. Additionally, the Constitution
requires judges to continuously develop the law to bring it in line with the Constitution. This rejects
any dream of judicial timidity or rigidity but calls for an interpretation that enforces the letter of the
Constitution and the aura of the Constitution. In accepting to use the test adopted by the committee
on economic and social rights, Justice Joel Ngugi, it is submitted, correctly appreciated the injunction
imposed on him as a judge by the Constitution. .
Conclusion
This decision is welcome for various reasons. First, the Constitution’s quest to alleviate the dire
poverty, economic inequalities and marginalisation in Kenya can only be achieved if judges are
willing to appreciate the language of the Constitution and properly mine an appropriate approach
 to
adjudicating socio-economic rights. Second, the decision revitalises the right to maternal health in
Kenya by reiterating the minimum obligations of the state. Third, the test adopted by the court of
appeal leads to a more stringent scrutiny of the state’s arguments on the non-implementation of
socioeconomic rights. Put differently, it leads to jurisprudence of exasperation
(https://hsf.org.za/events/lectures/hsf-memorial-lecture-
2011#:~:text=The%20legislature%20is%20democratically%20elected,of%20affairs%20in%20the%20co
untry.), which the Constitution has been loudly crying out for.
Fourth and importantly, the decision by the Court of Appeal can be argued to be one of the very first
progressive decisions of that specific court in Kenya’s history of adjudication of socio-economic
rights. The Court of Appeal has had a rough start with judgments such as Mitu-Bell
(http://kenyalaw.org/caselaw/cases/view/123600/) and Musembi
(http://kenyalaw.org/caselaw/cases/view/145462/), hence earning the term the “graveyard of
jurisprudence, where jurisprudence dies (https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=3379560#:~:text=The%20Court%20of%20Appeal's%20decision,to%20as%20human%20rig
hts%20graveyard.).” For the first time, Justice Joel Ngugi promises Kenyans that the Court of Appeal
might be the new Shiloh of jurisprudence, the sanctuary of jurisprudence, instead.
The Supreme Court’s Electoral Bonds Judgment –

II: The Arbitrariness of Manifest Arbitrariness
[Guest Post]
 FEBRUARY 28, 2024  GAUTAM BHATIA  LEAVE A COMMENT
[This is a guest post by Kieran Correia.]
In an earlier post (https://indconlawphil.wordpress.com/2024/02/23/the-supreme-courts-electoral-

bonds-judgment-i-political-equality-and-electoral-transparency/), I discussed the majority opinion’s
analysis of the first issue in the Electoral Bonds Case – whether the non-disclosure provisions which the
Finance Act 2017 introduced in various legislation, and included in the Electoral Bond Scheme (EBS),
were unconstitutional. Apart from this, Chandrachud CJI also briefly looks at another central feature
of the new electoral financing régime – the elimination of the cap on corporate financing – which this
post will take up.
As discussed in the previous blog, corporate donations to political parties were strictly regulated
since 1960, when the Companies (Amendment) Act 1960 first introduced a cap. Then, a few years
after the Santhanam Committee’s report in 1963, which uncovered high-level corruption, Parliament
outrightly prohibited and criminalized corporate funding – a ban which was to last till 1985, when a
cap of five per cent of a company’s average net profits in the preceding three years was introduced.
This restriction carried over to the new Companies Act 2013 – now at seven and a half per cent.
Section 154 of the Finance Act 2017 entirely did away with this restriction. The 2017 Act amended
section 182 of the Companies Act to delete the limit which it contained. This was the first time since
1960 that corporations were not limited, or prohibited, from political contributions. The Petitioners
therefore challenged the elimination of this restriction for being unconstitutional, invoking articles 14
and 19.

Article 14 and the Problem of Unlimited Corporate Funding
The Court sticks to the article 14 challenge with respect to section 154, and only invokes the manifest
arbitrariness doctrine. Manifest arbitrariness, or at least Nariman J’s spin on it (first articulated in the
Shayara Bano case), has been enjoying its day in the sun of constitutional jurisprudence. For a law to
be “manifestly arbitrary,” on Nariman J’s account, it must be “irrational, capricious, or without an

adequate determining principle.”
Chandrachud CJI takes a different, slightly less ambiguous, approach to the doctrine. In his version,
the test comprises two disjunctive prongs: either the legislature fails to make a classification by
recognizing the degrees of harm (which he borrows from Misra CJ’s opinion in Navtej
(https://main.sci.gov.in/supremecourt/2016/14961/14961_2016_Judgement_06-Sep-2018.pdf)), or
the purpose is not in consonance with constitutional values (para 209).
The Court invokes the first component – non-classification – in the failure to distinguish between
corporations and individuals and between profit- and loss-making companies (paras 211–214). An
individual’s political contributions have never been capped by law. However, corporations’
donations have historically been restricted. The reasons for this – as the Court recounts – were to
prevent loss-making and shell companies from donating large amounts of money to political parties.
By dispensing with the proviso to section 182(1) of the Companies Act, which ensured only profit-
making companies could contribute to parties, section 154 essentially allows loss-making companies
to funnel large sums to parties – an act that nakedly resembles a quid pro quo. Allowing contributions
by shell companies, on the other hand, does away with the safeguard of corporate democracy that
exists within corporations, and allows large sums to change hands – and thereby distort the electoral
process – with no oversight whatsoever.
Finally, the Court notes how “unlimited contribution by companies to political parties is antithetical
to free and fair elections because it allows certain persons/companies to wield their clout and
resources to influence policy making [sic]” (para 210). The Court again employs the principles of
political equality and free and fair elections it articulates in deciding the first issue in finding the
provisions unconstitutional. In other words, the Court finds the sanction of unlimited contributions
manifestly arbitrary because its purpose is not in consonance with the constitutional value of free and
fair elections.
Manifest arbitrariness and its discontents
The Court, in its analysis, focuses on the article 14 challenge, and chooses to sidestep entirely the
classification test. In this context, it is important to note that the manifest arbitrariness doctrine – a
change in costume from the arbitrariness doctrine of the 1970s – has come under immense criticism
from scholars, who have faulted it for its vagueness, imprecision, and lack of place in legislative
review (the review of legislation by courts).
The arbitrariness doctrine, Tarun Khaitan argues (https://papers.ssrn.com/sol3/papers.cfm?

abstract_id=2605395), is essentially the Court smuggling Wednesbury unreasonableness – a standard
of administrative action review – into legislative review (a feat paralleled
(https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2353211) by a similar move in
“proportionality” review cases). The locus classicus of the “new” arbitrariness test, EP Royappa
(https://indiankanoon.org/doc/1327287/), also concerned executive action, as Khaitan notes;
unfortunately, subsequent judgements of the Court have elevated it to a standard of legislative
review.
The problem with the arbitrariness doctrine, as many scholars have pointed out, is that it ignores the
text of article 14, which is essentially comparative. A petitioner complaining of her right underarticle
14 being violated must show how she has been treated unequally in comparison to someone else
similarly situated. However, the arbitrariness doctrine is non-comparative – if one seeks to charge a
provision with arbitrariness, one does not need to compare it with another provision to prove the
point. As HM Seervai points out, this renders redundant the law’s “equal protection of the laws” to
persons and therefore “hangs in the air” (Constitutional Law of India, 4th edn, vol 1, p 438). Since
everyone is not, in fact, equal, the purpose of the classification test is to ensure that the law can
differentiate between people who are not similarly situated.
It is perfectly possible, as Khaitan notes, for something to be unreasonable but not unequal – or even
arbitrary but not unequal. This problem plagues the second component the Court identifies – when
the purpose of a provision is not in consonance with constitutional values – even as it represents an
attempt to give the doctrine some meaning. A purpose not aligned with constitutional values,
whatever that would mean, is essentially a non-comparative test – it does not involve a comparison of
any kind and is a free-standing enquiry.
More than non-comparison, article 14 thus becomes an empty vessel for the Court to pour any
“constitutional value” – itself a dangerously vague phrase – into. The Court does not show us how
free and fair elections are connected to the equality guarantee. The only principle the Court tethers
free and fair elections to is democracy. But equality is not the same as democracy; where the two
overlap, it is on the Court to show us where and how they do. The Court thus detaches equality
review entirely from the text of article 14, as Seervai had long ago chastised the Royappa Court for
doing (p 438).
As for the first component of the test, the failure to classify on the part of the State is built into the
reasonable classification test, which the Courts has recognized on multiple occasions (see here
(https://indiankanoon.org/doc/1048632/) and here (https://indiankanoon.org/doc/1767934/)).
Indeed, that is the logical conclusion of the Aristotelian principle of treating “likes alike,” which is the
basis of the classification test. A failure to classify where classification is necessary – as it is with
corporations and individuals or profit- and loss-making companies – contravenes this principle.
It is thus unclear why the Court had to use the manifest arbitrariness doctrine at all, especially
considering the doctrine as it stood at the time did not include this principle, as – if we recall – it was
two judges (Misra CJ and Khanwilkar J), out of five, who recognized it initially. Admittedly, while
there is much to criticize in the highly formalistic Aristotelian version of equality. However, the Court
only muddies the waters by classifying – ironically enough – the failure-to-classify principle under
the manifest arbitrariness doctrine.
The road(s) not taken
There is nothing objectionable, to be sure, with the Court’s final conclusion. The elimination of the cap
on corporate donations to political parties – thereby allowing unlimited funding – is unconstitutional.
However, the Court must be careful in carrying out the task of judicial review, especially legislative
review. The Constitution is made up of words, and words, after all, have meaning.
The arbitrariness doctrine was, from its inception, a rhetoric-heavy test that had little grounding in
the principles of legislative review. The outcome of using the first component of this Court’s version
of the test – the failure to classify – could just as easily be achieved using the classification test. The
second component, on the other hand, presents an opportunity for the Court to use article 14 as a
decoy to invoke any constitutional value, thereby unravelling the test’s already tenuous connection
with the text of article 14. A more constitutionally sound method would be to test these provisions on
the ground of the classification test, which the Court does indirectly. For some reason, however, the
Court cloaks it in the garb of the manifest arbitrariness test, and collapses one into the other.

Another option for the Court would be to assess the impugned provisions vis-à-vis article 19(1)(a),
which it had already extensively analysed while deciding on the first issue. As one of the Petitioners
had submitted (https://drive.google.com/file/d/1-2eJ3vp6gzpGzT7cYuV-z_5tdcyrWnF0/view), the
elimination of restrictions “violates Article 19(1)(a) insofar as it permits deep pocketed companies to
flood out the voice of citizens who do not have access to such funds” (Petitioner’s Written
Submissions, para 76). Unfortunately, however, the majority opinion – signed by four out of five
judges, no less – cements this iteration of the manifest arbitrariness test in article 14 jurisprudence,
leaving us doctrinally worse off.
Addressing Boundary and Transplant Issues in

Horizontality: The Judgment of the Kenyan High
Court in Busia Sugar Industry vs Agriculture and
Food Authority
 FEBRUARY 26, 2024FEBRUARY 26, 2024  GAUTAM BHATIA  LEAVE A COMMENT
Introduction
In a judgment delivered earlier this month (Busia Sugar Industry vs Agriculture and Food Authority
(http://kenyalaw.org/caselaw/cases/view/280402/)), the High Court of Kenya at Busia (through
Musyoka J) made an important contribution towards the evolution of horizontal rights jurisprudence.
The facts of the case are complex, and can be traced back to ongoing commercial battles over control
of sugar production in West Kenya (see, for example, this report
(https://www.businessdailyafrica.com/bd/corporate/companies/jaswant-rai-suffers-defeat-in-busia-
sugar-lawsuit--4507500) of parallel proceedings elsewhere). However, for our purposes, the relevant
context is this: the Petitioner – a private sugar milling company – filed a constitutional petition
against Respondent No. 1 (the statutory authority) and Respondent No. 2 (a rival private sugar
milling company). The allegation was that Respondent No. 1 had wrongly granted a registration
license to Respondent No. 2; and because Respondent No. 2’s mill was was within the Petitioner’s
catchment area, as a direct consequence of the granting of this license – which allowed Respondent
No. 2 to commence operations – the Petitioner was suffering a grave and ongoing financial loss.
Compensation was, therefore, prayed for.
Midway through the proceedings, Respondent No. 1 (the statutory authority) was dropped.
Consequently, with respect to this claim, the Petitioner’s case was solely against Respondent No. 2:
that is, it was now a constitutional case, at the instance of one private party against another private
party. Naturally, Respondent No. 2 argued that the case was not maintainable: at best, the Petitioner
could pursue its grievances through a civil suit, and not through a case founded on an alleged
violation of constitutional rights. Thus, the issue of the horizontal application of the Constitution was
squarely before the Court.
Courts that have grappled with the question of horizontality – that is, the application of
constitutional rights to “private” relations – have faced two issues: let us call these the boundary
question and the transplant question (see, e.g., Chapter Three of the present author’s PhD Thesis
(https://ora.ox.ac.uk/objects/uuid:c40d9e07-102c-49da-89ca-f0f0ffaed36c/files/dn296wz48x); and
here (https://www.bloomsbury.com/in/horizontal-rights-
9781509967636/#:~:text=Horizontal%20Rights%3A%20An%20Institutional%20Approach%20brings%
20a%20fresh%20perspective%20to,inarticulate%20premise%20called%20'default%20verticality.)).  In
brief, and at the risk of being reductive, the boundary question asks: what principles must we deploy
to define and limit the terrain of horizontal application, in order to preserve the integrity of private
law, and avoid the “constitutionalisation” of all legal disputes. The transplant question asks: given
the very different characters of the State and private parties, when can a constitutional right that is
designed with a view to being enforceable against the State, be “transplanted” to apply to a private
relationship (for example, the right to vote obviously cannot be transplanted; the right to privacy
arguably can, with a few tweaks).
Since the advent of the 2010 Constitution, which makes the bill of rights horizontally applicable, the
Kenyan courts (like their counterparts around the world) have grappled with both the boundary
question and the transplant question (see, e.g., Chapter Eight of the present author’s PhD Thesis
(https://ora.ox.ac.uk/objects/uuid:c40d9e07-102c-49da-89ca-f0f0ffaed36c/files/dn296wz48x)). With
respect to the boundary question, one line of decisions has held that the existence of an alternate legal
remedy (say, under private law) will be a good reason for the Court not to apply the Constitution
horizontally (for an analysis and critique of this in terms of the doctrine of constitutional avoidance,
see Walter Khobe (https://journals.kabarak.ac.ke/index.php/kjle/article/view/203/192)). This is
somewhat similar to Ireland’s constitutional tort doctrine, where some Irish courts have indicated
that horizontality (via constitutional tort) will apply where private law is “inadequate” to deal with
the issue (see e.g. W v Ireland (No 2) [1997] 2 IR 141 (HC) (https://ie.vlex.com/vid/w-v-ireland-no-
804377553); Hanrahan v Merck Sharp and Dohme [1988] ILRM 629 (SC)
(https://www.casemine.com/judgement/uk/5da0271d4653d058440f934b); see also, the critique
(https://www.researchgate.net/publication/330909351_'Grasping_The_Nettle_Irish_Constitutional_
Law_And_Direct_Horizontal_Effect') of this position by O’Cinneade). With respect to the transplant
question, the doctrine is less clear: at times, the Courts have held that not all (private) disputes are fit
for constitutional resolution, but in elaborating why, Courts have sometimes fallen back upon the
boundary question, by noting that the existence of alternative legal remedies indicates that a particular
dispute is not to be adjudicated through the prism of horizontality.
The Transplant Question
In Busia Sugar Industry, the Court considered both questions. It began with a terse but exhaustive
summary of the constitutional position (paragraphs 75 – 77), laying out some of the issues discussed
in the paragraph above. It then considered the issue of constitutional tort, and noted that a
constitutional tort need not be applicable only against the State, but applies equally against non-State
parties. While there has been some back-and-forth on this issue in previous judgments, in the Kenyan
context, this is self-evidently correct: in Ireland, the constitutional tort doctrine was a judicial
innovation where the Constitution was silent on the question of horizontality. In Kenya, however,
Article 20 explicitly makes the Bill of Rights applicable horizontally. An action in constitutional tort,
therefore, is one specific form of horizontal rights litigation under the aegis of Article 20 (i.e., it seeks
compensation for wrongful breach of a constitutional right). Or, to put it another way, not all Article
20 horizontal rights application is equivalent to an action in constitutional tort, but all constitutional
tort claims will fall within Article 20.
On the question of application to this case, however, the Court considered the nature of the claim: it
was, essentially, a claim based on breach of legitimate expectations (i.e., the legitimate expectation
that the statutory authority would act in accordance with legal procedures for registration and
licensing). Musyoka J then noted that this legitimate expectation could not, by definition, be
“transplanted” to the private sugar milling company (para 83). The “transplant question,” therefore,
was decided autonomously, and by asking the question whether the right in question was capable of
being transplanted into the private domain (it was not).
The Boundary Question


What of the boundary question? Respondent No. 2 argued that alternative remedies in private law
existed for the Petitioner to pursue its claim. The Court began by framing this as an “exhaustion of
remedies” issue, and noted that this would apply only where the alternative remedies existed outside
the court system, and not within it (para 92). However, what the Respondent meant to argue, the
Court noted, was a variant of the doctrine of avoidance: that is, the well-established principle that
Courts should avoid deciding cases on constitutional grounds, where other grounds are available
(para 93). Musyoka J then articulated the following response to the argument (paragraph 95):
I hold the view that this principle does not sit well with the application of the Bill of Rights horizontally. The
horizontal application of the Bill of Rights enables the court, seized of a constitutional cause, to determine
disputes that would have also been quite properly handled in ordinary suits. In John Atelu Omilia &
another vs. Attorney-General & 4 others [2017] eKLR (Mativo, J), for example, the constitutional cause
arose from a failed criminal prosecution, and the petitioners complained of violation of their rights, and
sought compensation. There exist remedies in civil law for compensation for false imprisonment and
malicious prosecution, and constitutional violations through botched criminal prosecutions, and related
actions, can be redressed through the ordinary civil process. The petitioners, in that matter, had the option of
seeking and obtaining equivalent relief through ordinary litigation, and the court had the option of avoiding
determining the constitutional questions, and granting the reliefs sought, by referring the petitioners to the
ordinary civil court. The principle of constitutional avoidance was not invoked, and the court proceeded to
determine the constitutional questions, and to award compensation. Francis Mulomba Nguyo vs. Nation
Media Group Limited vs. 2 others [2021] eKLR (W. Korir, J) is the other example. The cause was about
breach of privacy, by a private entity, which could attract damages in tort for breach of privacy. That was
also a constitutional violation or infringement. The court did not invoke the principle of constitutional
avoidance, but entertained the claim, and awarded damages for violation of right to dignity and privacy.
Perhaps, as a country, to avoid inconsistency, there could be a case to be made for embracing only one of
these principles, and avoiding the other, for one negates the other.
This is extremely important, as it marks a clear, judicial departure from the position that the existence
of an alternate remedy is a ground to defeat horizontal rights application. For various reasons, that
proposition is unsatisfactory, and horizontal rights jurisprudence cannot evolve until it is abandoned.
Intersections with Private Law
With respect to the Court, however, its equation of the “alternate remedy” argument to the doctrine of
constitutional avoidance might have been a little too quick. While the existence of an alternate
remedy in private or non-constitutional ought not to defeat a horizontal rights claim, it certainly ought
to inform the Court’s analysis. To take a reductive example, if A robs B, A is prosecuted under the
penal code; it would sound faintly absurd if B filed a constitutional case against A on the ground of
the deprivation of the right to property. This shows that the existence of non-constitutional law is not
irrelevant to the question of horizontality: to reiterate the point made at the beginning of this essay,
the boundary question is a question precisely because all jurisdictions realise the dangers of what
Kumm refers to as “the total Constitution.”
In more conceptual terms, while a right is applicable horizontally, the details of its application often
have to be worked out through legislation (for example, a Constitution that guarantees labour rights
(such as, say, equal pay for equal work) does not obviate the need for a labour code that sets out the
details of how those rights will be applied in the day-to-day context of industrial relations) – or, what
Grigoire and Webber refer to as “legislated rights.” Now, one crucial advance that horizontality
doctrine has made is to ensure that this legislation itself will be subjected to constitutional challenge if
it does an insufficient job of protecting constitutional rights in the private context. This is why the
Court was correct in discarding the position that the existence of a remedy in private law defeats a
constitutional claim to horizontality. However, while correct, this does not completely answer the
boundary question: for a complete answer, one must also examine whether the private law remedy  is
consistent with the rights framework established by the Constitution, as applicable to the private
relationship (of course, with some necessary play in the joints for the legislature) (see, e.g., Chapter
Five of the present author’s PhD Thesis (https://ora.ox.ac.uk/objects/uuid:c40d9e07-102c-49da-89ca-
f0f0ffaed36c/files/dn296wz48x)). This, in turn, would – of course – require the Court to develop a
theory of horizontality, or when – and to which – private relationships, the Constitution ought to
apply as a threshold question (see the Rose Wangui Mwambo case for an attempt by the Kenyan Courts
to do just that). Of course, that particular question was not before the Court in this case.
Conclusion
In his article on horizontal rights under the Kenyan Constitution, Brian Sang YK calls horizontality “a
concept in search of content.” In its disaggregation and consideration of the boundary and the
transplant questions, the High Court in Busia Sugar Industries takes one important step forward in
infusing the concept with content. When we synthesise it with judgments such as Rose Wangui
Mwambo – which set out an institutional approach to the threshold question of horizontal rights
application – we may see the incremental emergence of a consistent and coherent doctrine of
horizontality under the Kenyan Constitution. This would be a notable contribution to the ongoing,
global conversation on the question of constitutional horizontal rights application.
On the Bombay High Court’s IT Rules Judgment:

Why “Reading Down” isn’t the Answer
[Guest Post]
[This is a guest post by Samriddh Sharma and Puneet Srivastava.]
I. Introduction
This blog post analyses the deployment of the “reading down” principle in the Bombay HC’s Kunal
Kamra v Union of India judgment. Vasudev Devadasan
(https://indconlawphil.wordpress.com/2024/02/02/the-bombay-high-courts-split-verdict-on-
government-fact-checking-under-the-it-rules-part-i/) has previously discussed vital aspects of the
judgements on this blog. He explains how the two differing interpretations of §3 of the IT Rules by
the two judges significantly influence their differing conclusions. While we are anchored to these
discussions, our focus narrows to the issue of reading down. The central argument of this piece is that
any endeavour to read down the provision, irrespective of the interpretation of §3, is untenable. We
do not seek to illustrate how the State’s proposed reading downs restrict rights. Instead, we aim to
show how any effort to read down the provision ultimately does not resolve the fundamental issues
of vagueness and absurdity that persist within it.
In Part II, we provide background information and explain the proposed interpretative adjustments.
In Part III, we argue why these adjustments are unsustainable. Finally, in Part IV, we present our
conclusions.
II. Background and proposed adjustments


MeitY had amended the IT Rules, making additions to §3(1)(b)(v) of the Rules. This provision
imposes a due diligence obligation on intermediaries, requiring them to make reasonable efforts to
curb the dissemination of misinformation. Intermediaries must refrain from hosting information that
deceives or misleads recipients regarding message origins, knowingly communicates misinformation,
or presents patently false, untrue, or misleading content. This rule is already fairly broad.
Nonetheless, the amendment introduces a targeted addition specifically at “fake, false, or misleading
information” related to the “business of the government”, asserting its sole authority over the
accuracy of such information.
Effectively, it introduces a Fact Check Unit (“FCU”). It’s tasked to identify false, fake or misleading
information regarding “(the) business of the government.” Once flagged by the FCU, this information
triggers the provision of §3(1)(b), placing an obligation on intermediaries not to host such content.
Failure to comply with this obligation results in the intermediary being deemed to have not fulfilled
its due diligence requirements. Consequently, the safe harbour protection provided under §79 of the
Act is forfeited, as compliance with the due diligence obligations outlined in §3 of the Rules is a
prerequisite for safe harbour. In essence, failure to cease hosting the information leads to the
automatic loss of safe harbour protection for the intermediary.
Kunal Kamra and others mounted a challenge against this provision. The principled and
constitutional fallouts of this provision are glaringly evident. A few key issues stand to the fore, for
example: a) vagueness and over-breadth due to unclear definitions (“fake,” “false,” “misleading”); b)
potential violation of free speech through government flagging and intermediary liability loss; c)
reliance on a problematic “true-false” binary overlooking complexities inherent in information
dissemination; d) violation of equality and due process by vesting singular authority in the
government to arbitrate the accuracy of information; e) contradiction with the Shreya Singhal
judgement’s intermediary liability principles; f) failure to meet the proportionality test by
outweighing free speech concerns through a chilling effect.
The Solicitor-General [“SG”] argued that the rule passed the constitutional muster on all accounts.
One crucial argument on how §3(1)(b)(v) is to be read is key for our analysis. The provision states that
the intermediary should make reasonable efforts not to air information that:
(v) deceives or misleads the addressee about the origin of the message or knowingly and intentionally
communicates any misinformation or information which is patently false and untrue or misleading in
nature or, in respect of any business of the Central Government, is identified as fake or false or
misleading by such fact check unit of the Central Government as the Ministry may, by
notification published in the Official Gazette, specify; (emphasis supplied)
For the SG, the inserted part is qualified by the provision’s preexisting knowledge and intent
requirement (¶54 Patel J). Effectively, this means that taking down FCU flagged information would
only apply to false, fake or misleading news aired with the knowledge and intention of the
intermediary. This understanding of the provision is also supported by Gokhale J and is considered to
narrow the scope of the provision (¶31 Gokhale J). However, Patel J dismisses this reading and says
that correctly understanding the provision doesn’t necessitate knowledge and intention (¶57 Patel J).
This difference in interpretation, succinctly elucidated by Vasudev Devadasan, forms the conceptual
fulcrum around which other issues are examined and evaluated.
Overall, both the judges are clearly divided in their opinions. Gokhale J does not find the
constitutional challenge to be met. Patel J, however, rules otherwise and strikes the provision down.
Precisely here, the issue of reading down takes birth. The solicitor-general (“SG”) argued that it is
well within the power of the judge(s) to save the provision by reading it down. There were three
interpretative adjustments he sought to be made, which follow:
1. Information should be read strictly as facts. Patel J rejects this, saying information is clearly
defined in the IT Act, and the judiciary can’t read down explicit definitions. (¶143 Patel J)
2. The takedown mandate is to be replaced by a disclaimer requirement. Patel J also rejects this.
(¶144 Patel J).
3. Defenestrating the word ‘misleading.’ Simply, to keep only ‘fake’ and ‘false.’ Patel J says this
would effectively be reading out, which he could not do (¶142 Patel J). He ascribes no additional
reason as to why he can’t perform the reading out function.
In the next part, we aim to demonstrate that regardless of SG’s qualification argument, the provision
remains unsustainable and cannot be salvaged by reading down.
III. Unsustainability of the proposed adjustments
In the previous part, we have explained how the SG argued that a reasonable interpretation of the
provision would employ knowledge and intention as qualifiers. Effectively, he built on the well-
established principle that the judiciary should choose a reasonable interpretation of the law, when
faced with a conflict between a literal and reasonable reading of the law. In principle, this is a fair
argument; Lord Denning, for example, in Birch v Wigan Corporation, is often cited for the following
proposition:, “Where there is a fair choice between a literal interpretation and a reasonable one- and there
usually is- we should always choose the reasonable one.” The argument of the SG, therefore, unfolds in two
parts. First, the “knowledge and intention” requirement narrows down the provision. Second, in
arguendo, if it still infringes rights, it can be read down employing the three adjustments produced
above. In the subsequent parts, we engage with each of the suggestions made by the SG and
demonstrate its unsustainability.
A. Information to be confined to facts
The SG argues in favour of reading down “information” to “facts”. This perhaps aims to do two
things. One, reduce vagueness in the provision; and two, make the teleological meaning of provision
(legislative intent) more pronounced. While seemingly well-intentioned, this adjustment ultimately
fails to achieve its stated goals and introduces additional complexities. Before we jump into it, it is
crucial to underscore some associated elements of this adjustment. This distinction between
information and facts carries a deeper significance here. The Kaushal Kishore
(https://indiankanoon.org/doc/103640961/) judgment asserts that speech lacking in propagating
ideas or social value may be restricted by the government, as it would not be protected under Article
19(1)(a) of the Constitution from the outset (¶193.2). Thus, the defendant’s argument presumably
unfolds as confining information to facts, in accordance with the principles of Kaushal Kishore, not
only eradicates vagueness but also conforms to acceptable limitations on freedom of speech.
Regardless of whether Kaushal Kishore is applied or not and whether there is more clarity on
legislative intent, this reading down does not rescue the provision. Defining “fact” presents a
significant challenge. Is it objectively verifiable truth, widely accepted knowledge, or something in
between? The lack of a clear definition leaves ample room for subjective interpretation and
potentially discriminatory application, negating the intended benefit of clarity. Even within the realm
of “facts,” nuances of context, interpretation, and underlying assumptions can render the distinction
between legitimate criticism and “facts” ambiguous, chilling legitimate discourse. Furthermore, a
strict application of the provision to only plain facts fails to consider the complexities of disciplines
like statistics and their inherent uncertainties, as highlighted by the famous coastline paradox
(https://en.wikipedia.org/wiki/Coastline_paradox).
The proposed introduction of a “knowledge and intention qualification,” aligning with the SG’s
approach, presents a potential incompatibility with the framework established in the Kaushal Kishore
judgement. This incompatibility arises from the inherent tension between the conditions delineated

by both approaches. The SG’s qualification would translate to mean that the Fact-Checking Unit
(FCU) would only flag “plain facts” aired with “knowledge” or “intention” but without “propagation
of ideas” or “social value.” However, such a restrictive standard would render the FCU’s function
practically nugatory.
This is due to three reasons:
1. Knowledge implies intent to propagate: If an individual knowingly airs information as factual, it

inherently suggests an intent to communicate that information.
2. Intent also implies propagation: When one intends to communicate something, it implies a desire
to influence or inform others, constituting “propagation of ideas.”
3. Facts often have social value: Information presented as factual, even devoid of overt knowledge or
intent, often carries inherent social value by potentially influencing societal perceptions or
understandings.
Therefore, applying the SG’s qualification within Kaushal Kishore framework would effectively strip
the FCU of its intended power. Nearly all “plain facts” aired with knowledge or intention would also
necessarily involve “propagation of ideas” and “social value.” Overall, this renders the provision
superfluous, absurd and unable to achieve its stated objectives.
Furthermore, establishing the FCU fails to rescue the provision from vagueness. Roy Sorensen
(https://global.oup.com/academic/product/vagueness-and-contradiction-9780199271160) posits
that a law is considered vague unless the delegated authority is better equipped than the delegating
authority to clarify whether “x is F,” where “x” represents a particular subject or entity and “F”
denotes a specific characteristic or condition. The FCU checks whether a fact (or information) is false,
fake or misleading or not. Here, the Fact-Checking Unit (FCU), in no demonstrable way, possesses
particularly better expertise compared to the delegating body in determining what constitutes facts
(or, for that matter, what is false or fake, as the government already issues takedown orders.) Patel J’s
reasoning further supports this argument, emphasizing that while the act provides a definition of
“information”, defining “facts” requires reference to the Evidence Act, which may lack specific
guidelines (¶111-6 Patel J). This lack of clarity places the delegated authority at a disadvantage in
determining whether “x is F,” as the criteria for identifying false information may be ambiguous or
open to interpretation. Moreover, the FCU already faces challenges in determining appropriate
remedies for “misleading” information, further raising concerns about its ability to objectively judge
and classify information based on unclear criteria.
B. Diluting the provision employing a disclaimer requirement
The SG suggests that “giving a disclaimer” can be read into the provision, thereby diminishing the
takedown obligation on an intermediary. Essentially, content flagged by the Fact-Checking Unit
(FCU) would not compulsorily require removal, allowing platforms a modicum of agency in the
decision-making process. In essence, intermediaries can continue to keep the information by issuing a
disclaimer. Patel J rejects this argument, opting for a prudent and conservative position on judicial
interference. However, the State is not making an unfair argument in principle, given that the
judiciary often interprets laws to salvage them rather than striking them down entirely. This was
observed in Shreya Singhal (https://indiankanoon.org/doc/110813550/), where the Supreme Court
struck down §66A but only chose to read down §79(3)(b). The court explained its reasoning,
expressing concerns that granting the State the power to decide what information the public receives
could lead to monopolization and unchecked censorship by intermediaries. Nevertheless, we argue
that even if we were to entertain the State’s proposal of reading in a disclaimer requirement, it would
be sub-optimal.
Simply, it isn’t a smooth ride to read in the disclaimer under the contours of the present law. §3(1)(b)
mandates the intermediary to make a reasonable effort to “not host, display, upload, modify, publish,
transmit, store, update or share” the specified information. These words, separated by commas, have to
be read together using the general rules of interpretation. Its plain reading, plus the short title of 3(1)
clarifies that this is a due diligence mandate. Modifying this to include a disclaimer requirement on
account of the FCU would change the nature of the provision from one mandating due diligence to
one specifying compliance.
Also, putting a disclaimer renders “reasonable effort” otiose. There’s practically no space for the
intermediary to exercise reasonable discretion if it has to comply with the FCU’s flagging. In fact, this
further leads to more uncertainty, for social media platforms may not have the practice of issuing
disclaimers in the first place. This forces them to change their user interface and layout unreasonably.
And, if social media companies are already mandated by IT Rules to make reasonable efforts to
prevent misinformation, this compliance serves no purpose. In all fairness, the disclaimer
requirement can itself lead to more constitutional challenges and be seen as infringing on the rights of
trade guaranteed under Art 19(1)(g). Even if intermediaries have disclaimers like X’s community
notes, there can be frustration. A company may choose to host information after making reasonable
efforts, which the FCU may flag. However, the information may not be false, fake or misleading
according to the intermediary even after making reasonable efforts. By the operation of this provision,
the intermediary has practically no power to host such information. Further, it should be considered
that there are no safeguards or review procedures, and the intermediary would immediately be
stripped of the safe harbour. This closes in on their discretionary space and creates conflicts.
At the cost of a slight departure from the scope of the piece, it is essential to underscore other
concerns which arise from the disclaimer requirement. If reduced to a disclaimer function, FCU may
end up issuing it much more than takedowns, effectively weaponizing it. It can selectively issue them
for fake news that is detrimental to the ruling party and government while refraining from issuing
disclaimers for fake news that incites the majority against minorities, political opponents, and other
vulnerable groups. This will create margins and make the internet an unequal place, effectively
polarising the digital space, reinforcing eco-chambers, and overall deepening the divide. Although
not directly, the FCU will be able to monopolise and steer discourse on the internet.
In essence, the introduction of the disclaimer requirement exposes several absurdities in the law.
However, it is crucial to note that even if we were to overlook these difficulties and implement them,
the constitutionality of the provision would still be circumspect.
C. Defenestrating “misleading” from the provision
To further limit the scope of the provision, the SG suggests that “misleading” be dropped from the
rule and only the words “false” and “fake” remain. Every single counter-narrative on the government
business can conceivably fall within the word “misleading” (¶126 Patel J). It is essential to clarify that
the SG’s suggested approach to “reading down” the provision is not entirely clear. It remains unclear
whether he suggests the provision be read down by construing misleading as coloured by false and
fake or if he proposes for it to be entirely disregarded, resulting in its exclusion from the provision. If
the former interpretation is favoured, the task of reading down the provision becomes unsustainable,
given that the three terms are used disjunctively and are separated by commas and the word ‘or.’ This
implies that each term must be interpreted distinctly, and satisfying any one of these conditions
would trigger the provision’s application (see ¶142 Patel J).
In all fairness, the exclusion of this term constrains the rule, explicitly delineating the authority of the
FCU to address solely false or fake information. Nonetheless, we maintain the position that such an
interpretation would not be judicious. Embracing this approach would elevate the dangerous false-
true binary in evaluating digital information. This is untenable and has been extensively argued
(https://drive.google.com/file/d/1GfpWeYvB18XK-zrNU472Yo9ZcTRlppgn/view) by the petitioners;
therefore, we refrain from reiterating those arguments.
IV. Conclusion
In light of the SG’s arguments for reading down the provision, this analysis is an attempt to highlight
their fundamental shortcomings. Terms like “facts” and “misleading” remain vague, even with
proposed adjustments, leading to subjective interpretations and potential discriminatory applications.
Limiting the FCU to “facts” renders the function of FCU conceptually redundant, as “facts” often
carry social value and are protected speech, even as per Kaushal Kishore. Even if Kaushal Kishore were
not to be applied, “facts” lacks a clear definition. Moreover, replacing takedowns with disclaimers
introduces new concerns, such as unreasonably undermining intermediary discretion and opening
doors for selective weaponization of disclaimers by the FCU. The provision may also violate free
speech and due process rights, even if constructional issues are addressed. In conclusion, attempts to
read down the inserted provision fail to address its core issues, perpetuating vagueness and
absurdity, raising concerns about FCU authority and misuse, and failing to tackle constitutional
challenges.
The Supreme Court’s Electoral Bonds Judgment –

I: Political Equality and Electoral Transparency
[Guest Post]
 FEBRUARY 23, 2024FEBRUARY 23, 2024  GAUTAM BHATIA  LEAVE A COMMENT
[This is a guest post by Kieran Correia.]
On 15 February, a five-judge bench of the Supreme Court handed down judgement

(https://main.sci.gov.in/supremecourt/2017/27935/27935_2017_1_1501_50573_Judgement_15-Feb-
2024.pdf) in Association for Democratic Norms v Union of India, popularly known as the Electoral Bonds
Case. Two opinions were issued – the majority opinion authored by Chandrachud CJI, joined by
Gavai, Pardiwala, and Misra JJ, and a concurring opinion by Khanna J. Both held the Electoral Bond
Scheme (EBS) unconstitutional; supporting legislation – such as the amendments to the
Representation of the People Act 1951 (RPA), Companies Act 2013, and the Income-tax Act 1961 (IT
Act) so on made by the Finance Act 2017 – were also declared unconstitutional.
The Court also passed an order requiring, inter alia, the State Bank of India (SBI) to submit details of
each electoral-bond contribution and purchase from 12 April 2019 till the present within three weeks,
which the Election Commission of India (ECI) is to publish on its Web site within a week.
The Court’s judgement joins a vanishingly small number of pro-democracy verdicts in recent Indian
constitutional jurisprudence. The verdict’s mobilization of the principle of political equality – in
ensuring equality in influence over both electoral outcomes and policy – rests on the principle that
elections in a democratic system must be subject to popular oversight and made available to public
participation. Combined with a rigorous order, the Court’s intervention also promises to begin the
process of levelling an electoral field that has become dangerously uneven over the past few years.
The majority opinion broadly deals with two issues: the non-disclosure provision – making it
optional for parties to disclose information pertaining to their funding – and the unlimited donations

provision, which eliminated the limit on how much each corporation could donate to a party.
In this post, we will examine the background of the judgement at some length and discuss the Court’s
preliminary analysis of the scope of its review before moving on to its reasoning for the non-
disclosure provision and how it infringes voters’ fundamental rights. We will also focus at some
length on Chandrachud CJI’s proportionality analysis. A later piece will take up the Court’s treatment
of the second issue of unlimited donations.
Electoral Funding and the EBS
Much has already been written on the EBS, including on this blog
(https://x.com/gautambhatia88/status/1758070759086235843?s=20), so I will try to be light on the
facts. Chandrachud CJI’s opinion begins by diving into the history of electoral funding in India.
Electoral funding is regulated by a complex legal landscape, comprising three pieces of legislation –
the RPA, IT Act, and Companies Act. The opinion specifically focusses on the regulation of corporate
funding, tax regulation that attempted to curb black money, and election law that mandated
transparency.
Barring a brief period between 1969 and 1985, when corporate funding was explicitly prohibited,
such funding has been tightly regulated by law since 1960. There was a cap on corporate funding,
disclosure requirements were high, and – this was implied – donations could only be made through
ordinary instruments such as cheque, bank draft, and electronic clearing system. The Finance Act
2017 loosened or eliminated all of these restrictions.
Tax legislation exempted the income of political parties through financial contributions and
investments from income tax. This was made subject to, inter alia, the requirement to maintain a
record of contributions. However, the Finance Act 2017 eliminated this requirement as well if
contributions were received by electoral bonds.
A similar transparency requirement existed in the RPA. Political parties had to declare the details of
contributions in excess of a certain amount to receive tax exemptions under the IT Act. However, the
Finance Act 2017 eliminated this requirement too for electoral-bond contributions.
On 2 January 2018, the Department of Economic Affairs in the Ministry of Finance notified the EBS
(https://retail.onlinesbi.sbi/documents/Gazette.pdf). The EBS defines an electoral bond as “a bond
issued in the nature of promissory note which shall be a bearer banking instrument and shall not
carry the name of the buyer or payee.” Importantly, the EBS notified the SBI – a nationalized bank
with direct government control – as the bank authorized to issue and encash bonds. Moreover, the
information received by the authorized bank was to be treated as confidential.
Scope of judicial review
The Court begins its analysis with the smaller – but no less important – issues relating to the scope of
judicial review. The Solicitor General, in his submissions (https://www.scobserver.in/wp-
content/uploads/2021/10/Written-Submissions-by-Solicitor-General-Tushar-Mehta-in-Electoral-
Bonds-Constitution-Bench.pdf), argued that the impugned amendments and the EBS pertain to
matters of “economic policy” (Respondent’s Written Submissions, paras 172–201). One of the
petitioners, on the other hand, in their Rejoinder Submissions (https://drive.google.com/file/d/1-
eA07OocQnN4pxvMdCXhpVfUAfKt2JVj/view) rebutted this contention by highlighting that “the
EBS is an executive instrument that deals with political party funding, and, therefore, indisputably,
with entities that participate in the electoral process” (Petitioner’s Rejoinder Submissions, para 7)
(emphasis in original).
Here, the Petitioner drew on John Hart Ely’s version


(https://www.hup.harvard.edu/books/9780674196377) of the representation-reinforcing justification
of judicial review – in broad strokes, the idea that the rôle of judicial review, a counter-majoritarian
force in a democracy, is to correct impairments in the representative process. Since the petitioners had
challenged legislation and a scheme which fundamentally impacted the electoral – and therefore
representative – process, the Court could not be light touch and afford a presumption of
constitutionality.
The Court cleaves apart the two issues. In dealing with the first issue – whether the impugned pieces
of legislation are “economic policy” – the Court agrees with the petitioners in tagging them as
“amendments [that] relate to the electoral process” (para 41) and therefore proceeding with the
ordinary level of scrutiny.
However, on the second, the Court remains reluctant to divest these amendments of the protection
afforded to them by the presumption of constitutionality. Unfortunately, the Court does not supply
much reason here apart from declaring that it “cannot carve out an exception to the evidentiary
principle which is available to the legislature based on the democratic legitimacy which it enjoys”
(para 45). The consequence of this is that the burden is on the petitioners to establish a prima facie
violation of their fundamental rights by the State.
Political equality and the disclosure of information
The Court sets the stage for discussing the two main issues by underscoring the connexion between
money and politics. This context-framing is important as it is the power that wealthy corporations
and individuals exert over the political process that makes unregulated political contributions so
dangerous to democracy. The Court – to its credit – recognizes this at the outset (para 55).
The amendments to the RPA, IT Act, and Companies Act – as mentioned earlier – eliminated the most
elemental requirement of electoral-financing regulation: disclosure. Companies now needed only to
disclose the total amount they contribute to political parties, not the specifics. The electoral bond itself
was also shrouded in secrecy, as we have already seen.
The challenge to this new régime, then, was that the non-disclosure of information infringes on the
right to information of the voter under article 19(1)(a) of the Constitution. The Court responds to this
challenge by analysing the jurisprudence around the right to information. In tracing its evolution, the
Court noted how it shifted from an instrumental right – to further transparent government – to a
right with intrinsic value. In the latter phase of the Court’s jurisprudence, the Court recognized the
“inherent value in [the] effective participation of the citizenry in democracy” (para 65).
The right to information, the Court notes, was extended to the requirement of candidates to disclose
their criminal records and assets. The question that subsequently arises, however, is whether this
jurisprudence would apply to political parties – and not to individuals alone. The analysis of the Court
has two prongs: first, whether there exists a right to information about the funding of political parties;
and secondly, whether the impugned provisions and the EBS constitute a “reasonable restriction”
under article 19(2).
The Court here delves into the centrality of political parties in the electoral process in India. Despite
the open-list first-past-the-post system used here, the candidate is not the focal point of the election;
the political party plays a prominent rôle too. This is due to a variety of reasons: the ubiquity of a pre-
election manifesto, the Westminster style of governmen, with a loose separation between legislature
and executive, the use of symbols to denote parties by the Election Commission of India, and the
object of India’s anti-defection law being the party – all point to the political party, despite not being
mentioned in the original text of the Constitution, being a central unit of the electoral process(paras
79–93).
By placing the political party at the centre of our analysis, it only stands to reason that political parties
must be subject to the same requirements candidates are. The Court recognizes this basic inference
(para 95). However, it goes one step further and articulates a transformative principle undergirding
the political process in India – political equality.
Political equality manifests itself in two ways: the principle of “one person, one vote,” and the
promise of shielding the political process from socioeconomic equalities. The two are joined at the
hip: if one person is to enjoy only one vote, it follows that individuals or corporations with
disproportionate power cannot exert their oversize influence on the electoral process and distort the
voting process. As the opinion notes, “This guarantee [of political equality] ensures (a) equality in
representation; and (b) equality in influence over political decisions” (para 98).
To enforce political equality, then, the influence of moneyed interests on the electoral process must, at
the very least, take place in plain sight. The electorate must be able to – by its own initiative or
through the media – have access to this information. The Court, moreover, rejects the argument that
the anonymity of the contributor goes both ways; parties can exploit various loopholes to ascertain
the identity of the donor. Retrieving this principle of political equality – long ignored by Parliament
and the judiciary – the Court holds that the voter has the right to information about party funding,
and the EBS and impugned amendments are, therefore, violative of article 19(1)(a) of the
Constitution. The next step is to see whether the impugned scheme and law are saved by article 19(2)
or outweighed by another fundamental right.
Before we look at the Court’s proportionality analysis, however, let us briefly look at the Court’s
analysis of the amended section 182(3) of the Companies Act, which emaciated the disclosure
requirement. The Court finds the replacement of the requirement to disclose the particulars by that to
disclose the total amount contributed to political parties unconstitutional. Under the amended section
182(3) of the Companies Act, the company did not need to disclose to which party it has contributed
money; the amended section 29C of the RPA exempted parties from disclosing information of
contributions received through electoral bonds.
This information, however, was “necessary to identify corruption and quid pro quo transactions in
governance. Such information was also necessary for exercising an informed vote” (para 172), leading
the Court to strike down section 182(3), as amended by the Finance Act 2017, unconstitutional,
restoring the older version.
Proportionality and Double Proportionality
Before we actually dive into the opinion’s proportionality analysis, a brief note about the Court’s
reluctance to employ the proportionality test is in order. Many scholars have noted
(https://ohrh.law.ox.ac.uk/wp-content/uploads/2021/04/U-of-OxHRH-J-Proportionality-in-India-
1.pdf) how the Court’s proportionality jurisprudence is muddled, often confusing it with an older
proportionality review used in fundamental rights cases. Others, including
(https://indconlawphil.wordpress.com/2023/02/23/proportionalitys-fifth-prong/) the editor of this
blog, have pointed out how the Court has been unwilling to use proportionality in high-stakes cases
against the executive.
The use of the classic four-part proportionality test in the majority opinion represents a stark
departure from both these maladies. The proportionality test, as is well known, comprises four stages:
legitimate goal, rational connexion, necessity (i.e., least restrictive and effective measure), and
balancing. The Court extensively subjects the EBS and the impugned provisions to each stage of the
proportionality test.

The Court finds that “curbing black money” and “protecting donor privacy” are the proposed aims of
the impugned scheme and provisions. The Court, importantly, agrees with the Petitioners and finds
that the legitimacy of a stated goal should be traceable to the article 19(2) grounds – unless it is a
competing fundamental right. While “curbing black money” could plausibly trace itself to “public
order,” the Court adopts a narrow meaning of the term and concludes otherwise.
A proportionality enquiry would ordinarily end there. However, the Court chooses to proceed with
the next three stages. The second stage is whether the proposed measures bear a rational nexus to the
stated goal. The State submitted that anonymity would incentivize contributors to contribute using
licit channels, which the Court hypothetically accepts.
The third stage, at which the Court ends its enquiry, is whether the EBS and the non-disclosure
requirement are any less restrictive – but equally effective – measures available to the State. Here, too,
the Court rejects the State’s arguments. The Court brings up other measures – cheques, electronic
transfers, and so on – and Electoral Trusts, another method of receiving political contributions which
are also effective in curbing black money. Therefore, the Court answers this question in the
affirmative.
However, in analysing the second ground – donor privacy – the Court adopts the double
proportionality test, as two fundamental rights are in play here: the donor’s right to privacy and the
voter’s right to information. As Chandrachud CJI writes, “[The proportionality standard] would
prove to be ineffective when the State interest in question is also a reflection of a fundamental right”
(para 152).
While this standard is not new to Indian jurisprudence, having been invoked by the Court in Central
Public Information Officer, Supreme Court of India v Subash Chandra Agarwal
(https://indiankanoon.org/doc/101637927/), the Court articulates a clear, three-part test in this case
to balance the conflict between two fundamental rights if the Constitution does not create a hierarchy
between the conflicting rights:
1. Whether the measure is a suitable means for furthering right A and right B (in other words, bears
a rational nexus to both rights);
2. Whether the measure is the least restrictive and equally effective to realize right A and right B; and
3. Whether the measure has a disproportionate impact on right A and right B.
In the first stage, the Court finds that the EBS bears no rational nexus to the voter’s right of
information as the information about contributions is “never disclosed to the voter” (para 163)
(emphasis in original). It goes on to state that “[t]he measure adopted does not satisfy the suitability
prong vis-à-vis the purpose of information of political funding” (ibid). Like the earlier proportionality
enquiry, the Court should have stopped here but chooses to apply the next two stages.
The next stage is whether there are less restrictive measures available to the State. The Court answers
in the affirmative. The RPA protects the privacy of contributions under twenty-thousand rupees. The
Court understands this purpose as circumscribing the influence of money in shaping electoral
outcomes and policy while still allowing the genuine expression of political views, protected by
article 19(1)(a). The exact question of whether this threshold is sufficient is outside the Court’s
purview; what matters is that an alternative, less restrictive, measure exists. This leads the Court to
strike down the EBS as unconstitutional (para 169).
The Court – to be clear – did not need to undertake this double proportionality analysis. The principle
here is not informational privacy; the stated aim, as the Petitioner argued, is unregulated donor
privacy (Petitioner’s Written Submissions (https://drive.google.com/file/d/1-2eJ3vp6gzpGzT7cYuV-
z_5tdcyrWnF0/view), para 65), which is not a legitimate state aim. However, the Court’s elaboration
of the double proportionality standard supplies a useful tool for balancing two fundamental rights in
a future case. 
Conclusion
The Court’s judgement is a welcome departure from a long tradition of extending deference to
Parliament and the Executive in matters of “policy.” Representative democracies are all too
vulnerable to the problem of “the People,” as constitutional actors, retreating into their private lives
as the whirring noise of legislation and government plays out in the background. The majority
opinion, however, paves a path for the People to be active participants in everyday politics.
The Court’s rigorous proportionality analysis, too, is a significant positive development – possibly the
first time that a majority opinion has invoked the doctrine to strike down legislation and executive
policy in a high-stakes matter. If the opinion signals anything for future jurisprudence, it is that the
proportionality test – and with it the culture of justification – is finally here to stay.
Guest Post: The PMLA’s “Adjudicating” Authority

as an “Administrative” Body: Appraising the
Madras High Court’s Decision
[This is a guest post by Saranya Ravindran.]
Introduction
The Prevention of Money Laundering Act, 2002 (“PMLA“) allows the confiscation of property
allegedly involved in money laundering by the Enforcement Directorate (“ED“) without a hearing,
under specified circumstances. To safeguard against potential abuse, Section 6 establishes an
Adjudicating Authority (“Authority“) to call upon an aggrieved party to show cause as to why the
confiscated property must be released.
The provisional attachment made by the ED is valid for 180 days. However, within 30 days of passing
the provisional order, a complaint must be filed before the Authority. If the Authority has reasons to
believe that the party is in possession of “proceeds of crime” as defined in Section 2(u) after hearing
the officer and the aggrieved party, then it can record a finding to that effect and confirm the
provisional attachment. Such an attachment would remain effective until the pendency of
proceedings before the Special Courts established under PMLA and a final order of confiscation or
release is passed.
Pay Perform India Pvt. Ltd. v. Union of India
The Madras High Court (https://mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/1099428)

recently was faced with a writ petition questioning whether a single-member bench of the Authority
can consist of exclusively executive members (i.e., whether a single-member bench without any
judicial member is valid). In RK Jain v. Union of India (https://indiankanoon.org/doc/1180101/)
(“RK Jain“), the Supreme Court held that members of tribunals that exercise quasi-judicial functions
should necessarily have experience in law, with qualifications deemed important to effectively

adjudicate the dispute.
Relying on RK Jain, the Telangana High Court

(https://csis.tshc.gov.in/hcorders/2022/wp/wp_34238_2022.pdf) held that since the Authority is
obligated to issue show cause notices, conduct a hearing, appreciate evidence, and give a reasonable
opportunity to both parties before passing its order, its functions are similar to a judicial proceeding.
On this basis, it concluded that the presence of a judicial member is mandatory. On the other hand,
arguing that the Authority makes no final determination on the guilt of the party and merely passes
an interim order to continue provisional attachment of properties suspected of being involved in
money laundering, the Madras High Court
(https://mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/1099428) reached the opposite
conclusion.
To determine whether power is administrative or quasi-judicial, one must consider various factors
(https://indiankanoon.org/doc/748892/), including the nature of the power conferred, the
consequences ensuing from the exercise of that power and the manner in which that power is
expected to be exercised. Through this analysis, each of these factors would be considered in-turn.
Nature of Power
The petitioners argued that the powers granted to the Authority has all the trappings of a Court. It
has the power to summon individuals, inspect records, and has detailed procedures
(https://enforcementdirectorate.gov.in/sites/default/files/Act%26rules/Adjudicating%20Authority
%20%28Procedure%29%20Regulation%20dated%2018-3-2013.pdf) for filing applications, signing
pleadings, registering cases, etc. Thus, a holistic understanding of the Authority would make the
procedures and powers it has akin to that of civil courts. However, the Court held that these
procedures are for “dealing with the ‘administrative case’ and that by itself will not in any manner
alter the Adjudicating Authority as ‘the Tribunal or the Court’.” It further held that as per Section
11(3), the proceedings are deemed judicial for the purposes of sections 193 and 228 alone, clearly
indicating that it is otherwise an administrative proceeding.
However, instead of determining whether the proceedings are administrative or judicial, the Court
operated from the presumption that such a case is administrative. Being administrative, any further
guarantee of power akin to that of courts would be irrelevant since the proceeding is prima facie
administrative anyhow. Apart from adopting such a circular reason, the Court ignored precedent
such as RK Jain (https://indiankanoon.org/doc/1180101/) and State Gujarat v Utility Users
Welfare Association (https://indiankanoon.org/doc/7885178/), which noted that the nature of
powers conferred is an essential consideration in determining whether a case is administrative or
quasi-judicial.
This is why, in Shri Bhawan v. Ram Chand (https://indiankanoon.org/doc/1009476/), even the

simple function of granting concurrence to a landlord to file an eviction suit against a tenant on non-
statutory grounds was deemed quasi-judicial, since the authorities had to consider both sides and
determine the relative benefits and harms before making such a determination. This adjudication
process led the Court to conclude that the powers exercised were quasi-judicial. In fact, in cases
where administrative authorities have exercised similar powers to extend preliminary seizures, such
orders have been held as judicial and not administrative.
In Assistant Collector of Customs v. Malhotra (https://indiankanoon.org/doc/873526/), the

Supreme Court had to determine whether the power of the collector of customs authorities to extend
the period of preliminary confiscation of illegal imports by six months was a quasi-judicial function.
The Court held that while the initial seizure was subjectively determined by the authorities, the
subsequent extension was not done mechanically but objectively, on facts and investigation. Hence,
the power of extending the time limit was deemed quasi-judicial. 
Similarly, PL Lakhanpal v. Union of India (https://indiankanoon.org/doc/1014253/) (“Lakhanpal“)

held that a reviewing function of a detaining authority is quasi-judicial. The Court noted that there is
a difference in the state’s power to enforce a prima facie detention and to continue them beyond six
months. It held that while the initial detention can be made subjectively, further detention has to be
based on an objective assessment, evidence, and an opportunity for both parties to be heard. Hence,
the latter determination was classified as quasi-judicial. Thus, even if the final subject of detention is
the same in both cases, the presence of certain adjudicatory powers can be grounds to classify an act
as quasi-judicial. Borrowing from such precedents, an act which extends the provisional attachment
of properties beyond the prescribed period must be held as quasi-judicial.
Consequences of exercising power
As per Section 5, the Authority can attach any property believed to be proceeds of crime. This
includes property derived either directly or indirectly from crime, with “crime” also defined
expansively to include both a scheduled offence and anything related to a scheduled offence. Thus,
even links to criminality are sufficient to confiscate property. Hence, as explained previously on this
blog here (https://indconlawphil.wordpress.com/2020/05/28/guest-post-attachment-of-property-
freezing-orders-and-pmla-investigations-the-need-for-reasonable-exclusions/), if some money is
invested in a house or a bank account with links to the acts of the offence, those can be attached.
While the Madras High Court read this power as relatively inconsequential since the property could
be released on final adjudication, the adjudication process could span several years and be an
unimaginable burden for someone whose house or bank accounts remain frozen.
If we refer to cases involving similar restriction of rights by customs authorities, orders confiscating
goods or imposition of penalty, are commonly regarded as quasi-judicial acts given the severe
restriction they impose on property rights of individuals. This is even if such confiscation does not
constitute a judgement or order of court for supporting a plea of double jeopardy, or become a
conclusive determination of guilt. Under PMLA, the restrictions are even more severe since orders
can be passed against persons not even named (https://indiankanoon.org/doc/145370496/) as the
accused of a scheduled offence. Under Section 24, the burden is also on the accused to show how the
properties are not involved in laundering. Thus, given the dangerous consequences of the Authority’s
powers, discretion to executive in the absence of any judicial member merits rethinking.
Manner of exercising power
The Respondents argued that the Adjudicatory Authority is merely an “additional internal
safeguard.” The Authority’s orders are appealable by the Appellate Tribunal and the High Court,
with final adjudication of the dispute itself dealt with by the Special Court, which are also appealable
to the High Court. Based on this structure, the Madras High Court
(https://mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/1099428) concluded that the authority
“is in place as a check and balance” and “does not also conclusively decide as to whether any
property or thing is part of / proceeds of crime or out of any involvement in money-laundering.”
Hence, it was held that the Authority was an administrative body.
However, there are two issues with this line of reasoning. Firstly, as seen in cases like Lakhanpal
(https://indiankanoon.org/doc/1014253/), merely because the order is subject to a final decision
does not make the order non-judicial. Civil courts routinely grant interim orders conditional on the
final decision. This does not make their acts any less judicial. Thus, conclusive determination is not a
necessary criterion for quasi-judicial acts. Secondly, even if a body has Appellate Tribunals and its
powers have extensive safeguards, that by itself does not obviate
(https://indiankanoon.org/doc/7885178/) its status as a quasi-judicial entity. Hence, the mere fact

that the Authority is present as an institutional safeguard is insufficient to rule out its character as
being quasi-judicial, especially given the widespread implications it has for individuals.
Conclusion
The power that the Adjudicating Authority wields is immense, even if it is only exercisable on an
interim base. Its exercise has so far been rife with various issues, most recently reflected in Justice
Pratibha Singh’s caution (https://www.scconline.com/blog/post/2023/05/03/delhi-hc-warns-
pmla-tribunal-to-avoid-template-paragraphs-disconcerted-language-legal-news/) to the Authority on
passing “templated orders” and to refrain from using “identical templated paragraphs”. Such non-
application of mind has the potential to cause serious prejudice to aggrieved parties. Hence, the
presence of a balanced coram, mandatorily including judicial members outside the executive, could
make a meaningful difference to the operation of the Authority.
Guest Post: A Critique of the Election

Commission’s Order in the “Real NCP” Dispute
[This is a guest post by Yogesh Byadwal.]
The Election Commission of India [“ECI”], last week, recognized THE Ajit Pawar faction as the ‘real’
Nationalist Congress Party (NCP) (refer here
(https://drive.google.com/file/d/1mNchG0uG_osKuW2C_XnFnV2Daxbvf3AS/view?
usp=share_link) for copy of the order and here (https://theleaflet.in/ncp-split-a-chance-of-course-
correction-for-eci/) for background of the current controversy). The order comes months after the
Supreme Court’s Subhash Desai
(https://main.sci.gov.in/supremecourt/2022/20234/20234_2022_1_1502_44512_Judgement_11-May-
2023.pdf) judgement, where the SC made important observation regarding the scope of Para 15 of the
Symbols order, 1968. In this post, first, I will advert to the observations made in Subhash Desai
regarding Para 15, and the role of the ECI in determining the ‘real’ political party. Then, I will
highlight three major issues with the order, deviating and ignoring from the observations made by
the SC in Subhash Desai. I conclude that the ECI conveniently ‘picks and selects’ from the judgment to
continue to decide Para 15 disputes as it did before Subhash Desai, despite obvious and major flaws
with the approach (see here (https://indconlawphil.wordpress.com/2023/03/07/guest-post-the-
shiv-sena-dispute-the-tenth-schedule-and-the-symbols-order/) and here
(https://indconlawphil.wordpress.com/2023/05/21/the-supreme-courts-maharashtra-political-
crisis-judgment-ii-on-the-tenth-schedule-and-the-symbols-order-guest-post/))
Subhash Desai on Para 15
In Subhash Desai, the SC made significant observations about the tests applicable while deciding a
dispute under Para 15. As discussed here (https://theleaflet.in/ncp-split-a-chance-of-course-
correction-for-eci/), the ECI has fashioned three ‘separate’ tests to resolve disputes under Para 15:
1. Test of analysing the provisions of the constitution of the party.

2. Test of assessing which of the two rival groups adheres to the aims and objectives of the party as
incorporated in its constitution.
3. Test of evaluating which of the two rival groups enjoyed a majority in the legislature (i.e., the

Houses of the Parliament as well as the legislative assemblies of states) and in the organisational
wing of the party.
On the test of the ‘aims and objectives of the party’, in para 153, the SC noted:
An evaluation of whether rival groups are adhering to the aims and objects of the party as incorporated in
its constitution, and which of the rival groups is more in consonance with such aims and objects, is an
entirely subjective exercise…It would not be appropriate for the ECI to accord its stamp of approval to the
routes or methods chosen by one group over those chosen by another group. This would amount to entering
the political arena…. ECI while making such an assessment would be rendering its opinion without any
objective basis. The ECI must remain a neutral body and refrain from passing a subjective judgement on the
approaches preferred by the rival factions.
Clearly, the Court did not consider the above as a viable test to decide a dispute under Para 15 owing
to the subjective nature of the exercise. On the ‘test of majority’, the Court noted in Para 150:
It is not necessary for the ECI to rely on the test of majority in the legislature alone. In cases such as the
present one, it would be futile to assess which group enjoys a majority in the legislature. (The Shiv
Sena Dispute) Rather, the ECI must look to other tests in order to reach a conclusion under Paragraph 15 of
the Symbols Order…. ECI must apply a test which is best suited to the unique facts and circumstances of
the case before it.
The SC reminded the ECI that the test of majority was not the ‘exclusively appropriate’ or ‘primary
test’ to determine a Para 15 dispute. It added that the previous observations in Sadiq Ali (refer here
(https://indconlawphil.wordpress.com/2023/03/07/guest-post-the-shiv-sena-dispute-the-tenth-
schedule-and-the-symbols-order/)) were made with regards to the facts and circumstances of that
case. In other words, the tests applicable while deciding a Para 15 dispute are not limited to the
above-mentioned tests. Rather, the parties can propose tests suited to the facts and circumstances of
the case. Alternatively, the ECI is encouraged to fashion new tests appropriate for peculiar cases
before it.
Therefore, in light of Subhash Desai, the ECI cannot use the test of majority merely because the other
two tests are inapplicable or that it has been consistently used to decide such disputes before. Rather,
it will have to provide reasons for the suitability of the test and its applicability to particular facts
(here (https://theleaflet.in/ncp-split-a-chance-of-course-correction-for-eci/)).
Ignoring Subhash Desai: Problems with the NCP order
In the NCP order, I will highlight three instances where the ECI diverged or completely ignored the
proposition of law laid out in Subhash Desai.
First, the ECI, in complete ignorance of the observations made by the SC, went ahead considering the
‘test of aims and objectives.’ As laid out in the previous section, the test was rejected by the SC as a
‘purely subjective exercise’ which was ‘without objective basis’. However, the ECI, following past
practice, still applied it to the present case. Since the test was not finally used to determine the
dispute, the error may seem inconsequential, however, as I will show, this is not the only instance of
the ECI disregarding the SC in this order.
Second, the ECI noted the reason for application of ‘test of majority’ in para 84 of the order as:
The inapplicability of the aforesaid tests in previous symbol dispute cases had led the Commission to rely on
the “Test of Majority” to arrive at a determinative outcome.
Further, it noted:

Both have proceeded to argue their case within the confines of the existing tests. In view of this and the
factual matrix of this case, the Commission decided to continue the test applied consistently over the past
decades i.e. the test of majority which has stood the test of time. (para 124)
The ECI did not provide any reasons as to the suitability of the ‘test of majority’ in the peculiar facts
and circumstances of the case. Rather, it simply provided that since the above two tests are
inapplicable, it would use the test of majority. It constantly relied on Sadiq Ali to argue for the validity
of the test of majority, when, in fact, the SC had acknowledged that Sadiq Ali was rendered when
Tenth Schedule did not form a part of the Constitution (para 151). However, the ECI proceeded in
ignorance of the same. In a way, ECI made it seem that it was constrained to apply the test since the
rival parties were not able to propose a test applicable to the facts and circumstances. This completely
ignores the observation of the SC that “the ECI may either apply one of the tests proposed or fashion
a new test, as appropriate”.
Evidently, the court required ECI to provide reasons for the suitability of the test and its applicability
to particular facts, rather than mechanically applying the test of majority. As I have argued here
(https://theleaflet.in/ncp-split-a-chance-of-course-correction-for-eci/), this provides, however
limited, a safeguard against the mindless usage of the majority test. The SC had, in fact, explicitly
rejected the application of the “test of majority in the legislative wing” in the Shiv Sena dispute.
Third, the ECI recognised Ajit Pawar’s faction as the ‘real’ NCP by placing sole reliance on the
numerical strength of the legislative wing. The respondent had argued before the ECI that after
Subhash Desai, it is incorrect to rely solely on the test of majority in legislative wing in the peculiar
circumstances of the case. It relied on Para 151 of the judgement:
When legislators are disqualified under the Tenth Schedule, the basis of recognition of the political party
under the Symbols Order and correspondingly, one of the reasons for using the test of legislative majority
itself becomes diluted. Thus, it is not appropriate to confine the ECI to the singular test of legislative
majority in such situations.
The ECI, in a cavalier fashion, brushed off the argument, noting:
In the present case, it is pertinent to mention that disqualification petitions were filed by the rival groups
against members of the opposite group under the provisions of Tenth Schedule of the Constitution after the
petition dated 30.06.2023 was filed by the Petitioner under Paragraph 15 of the Symbols Order. Thus, on
the date when the dispute was brought to the knowledge of the Commission, no disqualification proceeding
was pending against the members belonging to either of the rival groups. In the present case, as mentioned
above, the initiation of disqualification proceedings under Tenth Schedule was subsequent to filing of
petition under Paragraph 15 of the Symbols Order. This Commission ought not to await the outcome of the
disqualification proceedings pending before the Hon’ble Speaker of the Maharashtra Legislative Assembly
for adjudicating the present symbol dispute case.
There are two major flaws with the above reasoning.
First, the ECI, on its own, conjured a sequence, which, only if followed, would render sole reliance on
numerical strength of the legislative wing unsuitable. According to the ECI, only if disqualification
proceedings are filed prior to the initiation of proceedings under Para 15, would the application of the
test of majority be rendered inapplicable. Nowhere, in the 141 page judgement, did the Court in
Subhash Desai make the above observation. The observations regarding unsuitability of the test of
majority are generally applicable for situations where Tenth Schedule and Para 15 proceedings are
going on simultaneously. The court was concerned about a situation where the order of the ECI was
rendered before the order of the Speaker. Why? Because, as pointed out above, in case the Speaker,
later, disqualifies members of ‘real’ NCP, the whole basis of the decision of the ECI crumbles.The SC
also noted in Para 147 that “even if they (MLAs of majority faction) are not disqualified, the
foundation of their claim (i.e., a legislative majority) is still on uncertain ground at the time of
adjudication.”
Evidently, the SC was not concerned about which petition is filed first in point of time; rather, it was
concerned which outcome is rendered first, and accordingly, tried to resolve it by declaring the test of
majority inapplicable in certain peculiar circumstances, such as the Shiv Sena dispute. In the NCP
dispute, like the Shiv Sena controversy, simultaneous proceedings under Para 15 and Tenth schedule
were going on. Similarly, the ECI outcome in both the disputes came prior to the outcome in the
Tenth Schedule proceeding. Therefore, the observation of the SC that “in cases such as the present
one, it would be futile to assess which group enjoys a majority in the legislature” is indeed applicable
to the present dispute.
Second, ECI cited the different fields theory to reason that sole reliance on the numerical strength in
legislature was tenable in the present case. It noted that “the Commission ought not to await the
outcome of the disqualification proceedings.”
The SC, while explaining the different fields theory, had noted:
... the decision of the Speaker and the decision of the ECI are each based on different considerations and are
taken for different purposes.
The reason for the above observation was that since the ECI’s decision is supposed to have
prospective effect, the Speaker cannot decide Tenth Schedule proceedings based on ECI’s outcome:
otherwise, it will have retrospective effect, which is contrary to law (para 156). Similarly, the
Speaker’s decision is based in a point of time when the alleged conduct took place, not on future
splits and factions. Therefore, the “different fields theory” is aimed at allowing two separate
constitutional authorities to function independently of each other and deliver on their constitutional
purposes without constraints. However, there might be a situation, where both constitutional
authorities, although independently functioning, might head towards a collision course. It is
constitutionally desirable to avert such a situation. The SC, noting precisely this, noted in Para 147
If the faction which enjoys a majority in the House is disqualified soon after being adjudicated to be the
political party, the very foundation of their claim of being the political party no longer subsists. Even if they
are not disqualified, the foundation of their claim (i.e., a legislative majority) is still on uncertain ground at
the time of adjudication. This is not a constitutionally desirable outcome.
From the above observations, the present NCP order by the ECI is indeed ‘constitutionally
undesirable’ for deciding on the basis of legislative numerical strength, which, itself was undecided at
that point.
Conclusion
After Subhash Desai, there was hope that the ECI will change the manner in which it decides Para 15
disputes. However, it conveniently ‘picked and selected’ from the judgment to continue to stick to its
script in deciding these disputes. It is immaterial whether the Speaker will eventually decide in
favour of the faction declared as the ‘real’ political party; rather, it is constitutionally desirable to
avoid a direct conflict between two constitutional authorities. It may also be possible that the order of
the Speaker in disqualification proceedings is appealed to the SC, which, in turn, may then decide
against the majority faction. What then? It seems that the different fields theory has again come to
haunt political parties and their future.
Revising the Basics? – On the Supreme Court’s

Proclamation of “Jail as the Rule” in UAPA Cases
[Guest Post]
[This is a guest post by Kartik Kalra.]
Last week, the Supreme Court delivered its judgment in Gurwinder Singh v. State of Punjab
(https://main.sci.gov.in/supremecourt/2023/29067/29067_2023_15_1501_50150_Judgement_07-Feb-
2024.pdf) – an appeal from the Punjab & Haryana High Court’s rejection of bail for a terror-accused –
holding as a principle of law that bail rejection is the norm u/s 43D(5)
(https://www.indiacode.nic.in/show-data?
actid=AC_CEN_5_23_00001_196737_1517807318055&orderno=54) of the Unlawful Activities
(Prevention) Act, 1967, and that a UAPA-accused cannot be released as long as elementary factual
allegations of their involvement in the terrorism offence – even if divorced from the offence’s
constituents – have been made by the state. The Court’s formal pronouncement of “jail as the rule”
was a choice between two (https://indconlawphil.wordpress.com/2023/07/30/the-supreme-courts-
bail-order-in-the-vernon-gonsalves-case-ii-what-next-guest-post/) competing lines of jurisprudence
that have emerged in interpreting the UAPA’s bail-restrictive provisions: one, where courts have been
cognizant of the extreme state-citizen imbalance they create, and have accordingly required the state
to present particularistic probative material in assessing the existence of a “prima facie case” (the
standard to reject bail) against the accused (the “eyes wide open” approach); and the other, where
courts uncritically accept the state’s version of the accused’s involvement, a line of cases prompted by
the Supreme Court’s judgment in NIA v. Watali (https://www.livelaw.in/pdf_upload/pdf_upload-
359598.pdf) (the “eyes wide shut” approach). The instant case epitomizes and entrenches the latter as a
principle of law, formally laying down a two-pronged test mandating lengthy pre-trial detention
irrespective of the strength of the state’s case – at the bail stage –against the accused. More
importantly, however, it constitutes a regression even from the eyes wide shut approach, for its
assessment of a prima facie case is divorced from the offence’s constituents and definitions under the
UAPA.
In this essay, I discuss the judgment in Gurwinder Singh, in the context of what has been referred to on
this blog as the “basics” (https://indconlawphil.wordpress.com/2021/06/15/back-to-the-basics-the-
delhi-high-courts-bail-orders-under-the-uapa/): a set of principles that a judge cognizant of the
UAPA’s state-citizen imbalances must invoke in adjudicating bail. I also discuss the Court’s proud
proclamation – “bail is the exception, and jail is the rule”.
Gurwinder Singh – Law-Fact Approximation, Revising the

Basics
In this case, the accused was alleged to have committed an offence u/s 18
(https://indiankanoon.org/doc/354849/#:~:text=%E2%80%94Whoever%20organises%20or%20caus 
es%20to,also%20be%20liable%20to%20fine.) of the UAPA, which prohibits and penalizes, inter alia,
“act[s] preparatory to the commission of a terrorist act”. He was alleged to have received funds from
members of Sikhs for Justice, an organization deemed an “unlawful association”
(https://www.mha.gov.in/sites/default/files/2024-02/13_SFJ_03022024.pdf) u/s 3
(https://www.indiacode.nic.in/show-data?
actid=AC_CEN_5_23_00001_196737_1517807318055&sectionId=7990&sectionno=3&orderno=3) of the
UAPA by the Central Government, which were to be used in India for fuelling separatism through
the procurement of weapons, and for raising demands for a separate Khalistani state (¶3). He had
been imprisoned for five years when filing for bail; consequently, he also argued for the applicability
of the Supreme Court’s decision in Union of India v. K.A. Najeeb
(https://www.livelaw.in/pdf_upload/union-of-india-vs-ka-najeeb-ll-2021-sc-56-388472.pdf), which
held that UAPA-accused persons may be released on bail solely on rights-related considerations
arising from delays in trial (¶18).
The bail application was to be decided within the contours of Section 43D(5), which states that the
accused would be released on bail only if, based on an assessment of the charge-sheet or case diary,
“reasonable grounds for believing that the accusation…is prima facie true” do not exist. This term, as
interpreted in Watali, meant that materials indicating the accused’s complicity must be shown by the
state, and “must be good and sufficient” to demonstrate a possible commission of the alleged offence
(¶23). The Court sticks to this interpretation, reproducing the state’s version of the accused’s
involvement, without desiring the production of particularistic probative material, finding the
general existence of the state’s case sufficient. In this sense, it does not constitute a regression from
where the law, pursuant to Watali and the “eyes wide shut” approach, stood.
Simultaneously, however, it does make a grave omission: while the accused was alleged to have
committed the offence of “knowingly facilitating the commission of…an act preparatory to the
commission of a terrorist act”, the Court’s analysis of the prima facie case is wholly divorced from the
offence’s constituents u/s 18. The “eyes wide open” approach, which prohibits a gap-filling exercise
between allegations and evidence, does not account for this eventuality, perhaps assuming that any
standard – howsoever deferential – would assess the state’s case in reference to the law the accused is
alleged to have violated. This is also because in Watali itself, where the primary allegation against the
accused was a membership-based offence, evidence collected was directed to prove such
membership, corresponding to the legal composition of the offence as it is defined under the UAPA.
If, like in the instant case, the offence concerns the facilitation of an act preparatory to the commission
of a terrorist act, a prima facie case that aligns with the offence’s constituents must necessarily show
three things – first, what terrorist act, i.e., for what terrorist act was the preparatory act facilitated;
second, the accused’s knowledge of the alignment of their actions with the facilitation of the terrorist
acts; and third, a demonstration of how the terrorist act was furthered – howsoever marginally – by
the accused’s participation. Even pursuant to Watali, therefore, “good and sufficient” materials
showing these three elements – which are the offence’s constituents as it is defined in the UAPA –
must be shown.
In the Court’s analysis, however, there exists no appreciable link between the facts alleged and
reproduced, and the offence’s constituents. It reproduces the state’s case, which contains two primary
allegations, neither satisfying the offence’s constituents – first, constant communication between the
accused and members of the unlawful association; and second, a disclosure statement admitting to
travel – with members of the association – for the purpose of procuring weapons illegally (¶29-30).
While this may have been sufficient for showing a prima facie case for a membership-based offence,
such as those u/ss 10 (https://www.indiacode.nic.in/show-data?
actid=AC_CEN_5_23_00001_196737_1517807318055&sectionId=7997&sectionno=10&orderno=10) or
20 (https://www.indiacode.nic.in/show-data?

actid=AC_CEN_5_23_00001_196737_1517807318055&sectionId=8010&sectionno=20&orderno=23)
that prohibit membership of banned groups, the offence u/s 18 contains specific constitutive
elements. The Court’s omission in assessing the offence in reference to the law, therefore, necessitates
revising the composition of the “eyes wide open” approach, including within it the requirement to
assess the offence’s constituents in deciding the existence of a prima facie case:
Principle 1: The definitional clauses of the UAPA must be given a strict and narrow construction.
Principle 2: The allegations in the chargesheet must be individualised, factual, and particularistic. The gap
between what an individual is accused of, and the actual events, cannot be filled by inferences or
speculation.
Principle 3: Bail cannot be denied when the Prosecution’s evidence is of “low quality or low probative
value”, and a Court must engage in an analysis of the evidence to determine that.
Principle 4: In assessing the existence of a prima facie case, the state’s case – and the Court’s assessment –
must correspond to the offence’s constituents, and a vague allegation of involvement, which does not
correspond to the offence, cannot defeat bail.
Apart from regressing in this dimension, the Court also harshly interprets of Section 43D(5) in
rejecting bail, noting the legislative anxiety underlying the words “shall not…release on bail.” I
discuss this next.
Jail is the Rule! – On Legislative Intent, KA Najeeb
The most impactful component of the judgment, which is likely to become an oft-repeated phrase in
UAPA bail hearings, is the Court’s proud proclamation that in matters involving UAPA offences, jail
is the rule, and bail is the exception. The Court arrives at this conclusion through an assessment of the
words “shall not be…released on bail” u/s 43D(5), which indicate legislative intent to make bail a
rarity (¶18). The Court seeks to align itself with this legislative intent, seeking to concretize bail
rejections into law.
While the constitutionality of Section 43D(5) has not yet been decided, performing a harsh reading of
the section that codifies into law prolonged pre-trial incarceration – based on probative material of
little value, which may even be divorced from the law the accused is alleged to have violated – is an
unfortunate move. The derivation of the bail-rejection principle solely from the text of Section 43D(5)
is a misattribution – the word “shall”, at least in Indian constitutional jurisprudence, has been diluted
to nullity (especially in administrative law cases (https://indiankanoon.org/doc/982342/)), with
courts consistently departing from legislative mandates that appear seemingly mandatory. Awaiting
the constitutional challenge, therefore, a fairer, appropriate reading must be offered to s 43D(5),
enabling courts to fairly – without pre-existing tilts towards rejection – adjudicate bail under the
UAPA.
Apart from reading s 43D(5) strictly, the Court also distinguishes this case from Najeeb, which enabled
UAPA pre-trial detainees to obtain bail if have undergone imprisonment for a substantial period,
based on fundamental rights considerations. Contrary to Najeeb, it holds that “mere delay in trial
pertaining to grave offences… cannot be used as a ground to grant bail” (¶32). In Najeeb, it notes, the
accused was imprisoned for a period exceeding five years, while in the instant case, they were
imprisoned only for five (¶32). It also notes that while the trial in Najeeb was likely to take a long
duration, many witnesses had been examined in the instant case, with the trial expected to complete

shortly. The last justification for departing from Najeeb, however, concerns the existence of a prima
facie case itself (¶32-3). This is problematic, for the enquiry in Najeeb – which asks whether the
detainee’s constitutional rights have been violated owing to prolonged pre-trial detention – is distinct
from the question of the existence of a prima facie case u/s 43D(5):
18. It is thus clear…that the presence of statutory restrictions like Section 43D (5) of UAPA perse does not
oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the
Constitution…the rigours of such provisions will melt down where there is no likelihood of trial being
completed within a reasonable time and the period of incarceration already undergone has exceeded a
substantial part of the prescribed sentence.
It is clear, therefore, that the question of rights-violation is distinct from the existence of a prima facie
case, and one can – pursuant to Najeeb – be released on bail despite its existence, given its
immateriality to one’s release. The Court’s invocation of a prima facie case to reject bail on rights-
related grounds, therefore, is erroneous. It would also be worthwhile to note that Najeeb itself invoked
prior (https://main.sci.gov.in/jonew/courtnic/rop/2015/17079/rop_645746.pdf) UAPA-related
case-law, where accused persons underwent periods of imprisonment comparable to the instant case,
to develop its test of rights-violations.
Conclusion
The judgment in Gurwinder Singh, therefore, is both symptomatic of the prevailing “eyes wide shut”
approach, whereby courts seek to authorize detention based on general allegations of involvement in
a terror-related offense, while also regressing from how this deferential determination of a prima facie
case hitherto occurred. The Court’s assessment of the case against the accused in a manner divorced
from the offence’s constituents necessitates a revision to the set of basic principles a judge
adjudicating bail must consider. The proclamation of “jail as the rule” is a further, unfortunate move,
with the Court giving the state new vocabulary to invoke for seeking prolonged pre-trial detention.
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Guest Post: The PMLA’s “Adjudicating” Authority

Pay Perform India Pvt. Ltd. v. Union of India

The Madras High Court (https://mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/1099428)

Relying on RK Jain, the Telangana High Court

This is why, in Shri Bhawan v. Ram Chand (https://indiankanoon.org/doc/1009476/), even the

In Assistant Collector of Customs v. Malhotra (https://indiankanoon.org/doc/873526/), the

Similarly, PL Lakhanpal v. Union of India (https://indiankanoon.org/doc/1014253/) (“Lakhanpal“)

Consequences of exercising power

Manner of exercising power

Guest Post: A Critique of the Election

Subhash Desai on Para 15

1. Test of analysing the provisions of the constitution of the party.

Ignoring Subhash Desai: Problems with the NCP order

The ECI, in a cavalier fashion, brushed off the argument, noting:

There are two major flaws with the above reasoning.

Revising the Basics? – On the Supreme Court’s

Gurwinder Singh – Law-Fact Approximation, Revising the

Jail is the Rule! – On Legislative Intent, KA Najeeb

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