Why Separation Of Powers In India Is Like Love

1. Fundamental rights cannot be infringed in the absence of law (Kharak Singh v State of UP).
2. If there exists a law, that law must be promulgated publicly, so that citizens may know what it says, and know the basis on which fundamental rights are being restricted. Secret laws are an anathema to the very concept of the rule of law (Harla v State of Rajasthan*).
3. If that law is challenged in a court of law, then it is that court's constitutional duty to decide whether (a) fundamental rights have been infringed, and (b) whether that infringement is justifiable under the Constitution (do I really need to give you a citation here?).
4. After the petitioner has discharged her initial burden of showing a prima facie infringement of her rights, the burden shifts to the State to justify that infringement (see point 3).
5. When assessing the infringement of rights under Articles 19 and 21, the court is not expected to vacate the field and enable executive supremacy, as the Emergency-era judgment in ADM Jabalpur v Shivakant Shukla has been buried "ten fathom deep with no chance of resurrection." (Puttaswamy (I) v Union of India).
6. Instead, when examining the infringement of rights under Article 19 (freedom of speech, association etc.) or 21 (life and personal liberty), the court will apply the proportionality standards. The proportionality standard requires a showing that the infringing measures were necessary (i.e., there were no reasonable available alternatives) (Puttaswamy (II) v Union of India).
7. The right to freedom of expression under Article 19(1)(a) can be restricted only on the eight sub-grounds mentioned under Article 19(2). The Court cannot add additional grounds through judicial fiat (Sakal Papers v Union of India).
8. The Court must give reasons for its judgment (see point 3).

In its order dated 16.9.2019, in Anuradha Bhasin's Case, the three-judge bench of the Supreme Court, led by the Chief Justice, has taken each of these principles to the shredder. In doing so, it has fashioned new constitutional "law" that resembles a directive from the Home Ministry more than it does a reasoned judgment from a constitutional court. The petition involved a challenge to the communications lockdown that has been imposed in the State of Jammu and Kashmir since August 5 (the extent of the lockdown is disputed). According to the eight principles stated above, the task of the Court was simple: it had to (a) examine the order under which the lockdown was imposed (did it flow from Section 144 of the CrPC, for example, or from the Telecommunication Suspension Rules of 2018)?); (b) examine the grounds of the lockdown, and assess whether a state-wide suspension of communications infrastructure met the test of proportionality, and (c) provide a reasoned judgment.

In other words, the Court had to hear the case and decide it.

What did the Court do? After footballing the hearing from one date to another – thus enabling a continuing violation of fundamental rights without a decision on its legality – on the 16th of September, it passed a two-paragraph order. After stating that the matter will next be listed on September 30, the relevant portion of the order reads:

The State of Jammu & Kashmir, keeping in mind the national interest and internal security, shall make all endeavours to ensure that normal life is restored in Kashmir; people have access to healthcare facilities and schools, colleges and other educational institutions and public transport functions and operates normally. All forms of communication, subject to overriding consideration of national security, shall be normalized, if required on a selective basis, particularly for healthcare facilities.

Let us examine this paragraph. The first thing to note is that the order authorising the communications shutdown has still not been made public, after more than forty days. It stands to reason that if the government (either the central government or the state government) has passed this order without publicly promulgating it, then the responsibility lies upon the government to produce it before the court, so that adjudication may take place. In exempting the government from this most basic principles of the rule of law and natural justice, the court's order violates principles (1) and (2) mentioned above.

Next, the Court has returned no finding on the constitutional validity of the communications shutdown. It has, therefore, violated principle (3). It has not recorded any justification from the government in the order or examined its validity. It has therefore violated principle (4). And by choosing to include an exhortation to the government to restore normalcy by making "all endeavours" keeping in mind the "national interest and internal security", an exhortation without any binding force, and subject to what the government believes are the requirements of "national interest" and "internal security", the Court has taken us straight back to 1976 and ADM Jabalpur, violating principle (5). Ten fathoms deep, apparently, is not deep enough, because nothing of ADM Jabalpur doth fade; it only suffers a sea change, into something rich and strange (ding dong bell!).

Further, the Court has engaged in no proportionality analysis. It has not examined whether a communications lockdown of an entire state is a proportionate response to what the External Affairs Minister referred to as the goal of stopping terrorists from communicating with each other. It has not even asked the State to show that other alternatives were contemplated and found wanting (if the Court was concerned about national security implications, it could even have asked for the evidence in its favourite manner, i.e., in a sealed cover). So perhaps the judgments that have actually been buried ten fathom deep – to resurrect whenever convenient – are Puttaswamy I and II.

"National interest" and "internal security" are not grounds under Article 19(2). By inventing new grounds to justify the restriction of the fundamental right to freedom of speech and expression, the Court has violated principle (6). Words matter, especially when they are being used to justify a clampdown on rights.

And lastly, no reasons have been provided in this order. This is why I observed, at the beginning of this post, that this "order" resembles more a directive from the Home Ministry, rather than a reasoned opinion from a constitutional court: not only does it provide no reasons, but it is so vague and so broadly worded, that is has practically no impact. What does "all endeavours" means? The government will decide. What does "national interest" require? The government will decide. To what extent does "internal security" require clampdown on rights? The government will decide. In the ADM Jabalpur, the Supreme Court had the minimum courtesy of telling citizens that during the Emergency, fundamental rights stood suspended – and it provided some reasons for that conclusion. Here, by framing order for "restoring normalcy subject to whatever the government thinks is fit", the Court has effectively done exactly the same thing, without extending that courtesy.

The order of 16.9.2019, therefore, is not recognisable under any theory of constitutional adjudication, and the bench delivering is not recognisable as what we commonly understand as a "constitutional court." What it resembles more is a branch of the executive, enabling and facilitating the executive, instead of checking and balancing it, and reviewing its actions for compliance with fundamental rights.

And this has been a long time coming. Throughout the 1980s and the 1990s, in PIL litigation, the Court emphasized that it was not adversarial litigation, that normal standards of evidence and fact-finding were dispensable, and that it was effectively acting in partnership with the government to achieve national goals. It may have been possible to predict that if the court began to fashion itself as a partner of the government, its role as an oversight body would be severely compromised. But legal academics of the time did not mind; indeed, the foremost academic of these times, Professor Upendra Baxi, referred to concepts such as the separation of powers as "Anglo-Saxon" and outmoded, and indicated that they ought to be jettisoned as the Court became the "last refuge of the oppressed and the bewildered."

But perhaps, all along, Anglo-Saxon or not, separation of powers has been like love: you only realise what you had when it is lost.

Beyond any chance of "resurrection."

The article was first published here.

Gautam Bhatia is a Delhi based Lawyer and Author of the book The Transformative Constitution: A Radical Biography in Nine Acts