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The Hindu Notes for 28th September 2018

Finding an equilibrium

The Supreme Court’s verdict in the Aadhaar case is best read in light of the dissenting opinion

A thicket of Aadhaar litigation has now ended with the decision of a five-judge Supreme Court Bench comprising the Chief Justice of India Dipak Misra and Justices A.K. Sikri, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan, which had reserved its order on May 10, after a marathon 38-day hearing. The victory of the right to privacy was presaged by K.S. Puttaswamy v. Union of India (2017), but that nine-judge Bench had left open the question of Aadhaar: whether the “national security” perspective (the vital role of surveillance to curb terror and prevent money laundering and crime financing) and “social welfare state” perspective (Aadhaar ensured that subsidies went to the right people) provided constitutional grounds for “reasonable restrictions” (reasonable because non-arbitrary).

Although conceived and executively implemented during the UPA-2 regime, the project got coercive statutory backing only during the NDA regime, in 2016. The Aadhaar Act has now been upheld, and Aadhaar is mandatory for all government benefits, as somewhat narrowly re-crafted by the majority. “[A]nnoyance, despair, ecstasy, euphoria, coupled with rhetoric, [were] exhibited by both sides”, but Justice Sikri rightly stressed the “posture of calmness”; the political fallouts of a decision, even in an election year, cannot be a matter for judicial concern.

The court examined only whether the entire scheme was constitutionally valid under the nine-judge Bench enunciation of the right to privacy and whether the decision of the Speaker of the Lok Sabha to pass the Aadhaar Act as a Money Bill was declared so “final” by the Constitution as to exclude even the jurisdiction of the apex court.

The Money Bill question

Whether this decision disappoints those who had high expectations or remains enigmatic on key aspects is a question which will be debated for long. But clearly the majority disappoints with the lack of constitutional scrutiny on the finality of the Speaker’s decision on what amounts to a Money Bill under Article 110(3) of the Constitution.

No one doubts the high constitutional status of the Speaker, but a very expansive view suggests that any bill which involves recourse to Consolidated Fund of India is a Money Bill and the finality of the Speaker’s decision is virtually unchallengeable. The other view is that the Speaker, like all constitutional functionaries, is bound to exercise the discretion reasonably; purposive as well as strict pragmatic scrutiny carrying “lethal emanations” from Article 14 and 21 must ensue when a large number of bills are tagged with Money Bills. This is dangerous because it removes the rationale for bicameral legislatures, because the Constitution does not foreclose the Rajya Sabha’s collective right to meaningfully deliberate legislative change. The Constitution is not a political tactic, it is not a mere ‘play thing’ of a special majority as Justice M. Hidayatullah said in Sajjan Singh v. State of Rajasthan (1965), laying the foundations of what became the doctrine of basic structure and essential features. Perhaps, T.S. Eliot’s words regarding Shakespeare remain apt for constitutional interpretation: “…if we can never be right, it is better that we should, from time to time, change our way of being wrong”.

But the majority led by Justice Sikri gives a short shrift to the finality argument. Both Justice Chandrachud and Justice Bhushan refer to a set of decisions which subject ‘finality’ to judicial review and even the basic structure but Justice Bhushan while ruling that the decision of the Speaker is not “immuned [sic] from Judicial Review” still takes the view that the Speaker’s decision “does not violate any constitutional provision, hence does not call for any interference in this proceeding”.

Justice Chandrachud fully dissents and holds the law invalid as a “fraud on the Constitution”, that is a colourable exercise of constitutional power. He maintains that the “notion of absolute power” is anathema to the Constitution and that there is need to “liberate its founding principles from its colonial past”. Its purpose cannot be to shield an excess of power from being questioned before the court, nor to clothe a high functionary with utter impunity.

The ‘ultimate test’

Memorably, he says that the “ultimate test” is whether the ouster of “judicial review is designed to achieve a constitutional purpose” that “meets the test of functionality, assessed in terms of a constitutional necessity”. Pointedly, Justice Chandrachud says: “In the seventh decade of the republic, our interpretation of the Constitution must subserve the need to liberate it from its colonial detritus.” Accordingly, he holds that the decision to give the Aadhaar Bill the status of a Money Bill violates the principle of bicameralism, declared as a part of basic structure, and an aspect of federalism and entails a “debasement of a democratic institution” which “cannot be allowed to pass. Institutions are crucial to democracy. Debasing them can only cause a peril to democratic structures”. Why was the majority not persuaded by the Chandrachud dissent is a question that will for long haunt those who prize democracy and rule of law values as essential for the future of putting the Constitution to work.

The proportionality test

Perhaps, a salient reason for the majority decision is to be found in ‘balancing’ interests under the ‘proportionality test’: simply put, any conflict of interest requires balancing, keeping in view constitutional first principles and its vision, values, and the mission. In Justice Sikri’s dexterous judicial hands, this leads to many welcome invalidations and dilutions of some important sections of the Act (like non-application of the Act to situations where no direct benefits are claimed by beneficiaries, minimal data sharing, prohibitions on corporates from acquiring metadata, of opting out of children when they attain majority, and equality of esteem for other means of identification when Aadhaar is not available). But on the main aspect whether the right to privacy is violated, there is now posited a conflict with privacy and dignity, which only ‘harmonious construction’ may reconcile. Their Lordships also felt that some loss of privacy is constitutionally permissible to achieve the public good to the “marginalised sections of society” and there was a collective right to privacy which may override the individual right.

Apart from the fact that the right to privacy decision foregrounds privacy and regards dignity as an integral aspect of privacy, the majority opinions ignore the message of the great sociological jurist Roscoe Pound, who developed the theory of law as an ad hoc balancing of the interests — sacrificing some, and supporting others for the time being — justified only when interests in conflict are put on the same plane (inter-translatability); the tasks of balancing begin only when all interests are translated as individual, social, or public. True, the “sanctity of privacy lies in its functional relationship with dignity”. But this relationship is “functional” only when “undue intrusion” into the “autonomy on the pretext of conferment of economic benefits” is avoided. Surely, there are other ways to achieve privacy and autonomy save the mandatory and ubiquitous Aadhaar number?

The majority decision offers a harmonious construction, but the dissenting opinion shows why this is not the only or necessarily the best way. Do the ways of upholding the Aadhaar also open the floodgates of being constitutionally nir-aadhaar?

Upendra Baxi is Emeritus Professor of Law, University of Warwick, and Delhi, and Distinguished Professor of Law, NLUD, Delhi

Idlib, the final frontier

The Putin-Erdogan deal may have postponed a battle, but the war is far from over

The September 17 agreement between Russian President Vladimir Putin and his Turkish counterpart Recep Tayyip Erdogan to prevent an all-out attack on Idlib, the last major enclave held by anti-government militants in Syria, signals a major realignment of the power dynamics within the Syrian theatre. The agreement, according to which Russia and Turkey will establish a demilitarised zone along the line of contact between Idlib’s militants and regime forces, has averted an imminent humanitarian crisis, but it also shows the increasing uneasiness in Russia’s policy towards a conflict which has bogged it down.

For months, war clouds were gathering over Idlib, which has been out of the Syrian government’s control for over three years. The regime of President Bashar al-Assad has practically won the civil war. If it were on the brink of collapse in September 2015 when Russia made its intervention, the regime has recaptured most major population centres including Aleppo, Daraa and Eastern Ghouta, ever since. The areas that lie outside the government control can be divided into three: Idlib, which is run by militants, including thousands of jihadists; the Kurdistan area controlled by Kurdish rebels, who are not hostile to Damascus but want more autonomy; and border towns such as Afrin and Jarabulus, which are under Turkish control. Of these, the regime doesn’t have any immediate plan to attack the Kurds, who also have the backing of the U.S. It can’t afford to attack Turkey either and provoke a bigger war. So the obvious choice for the next battle, or perhaps the last of the Syrian civil war, was Idlib. Iran backed this plan as it wants Mr. Assad to re-establish his authority over the whole of Syria.

Turkey factor

In the previous battles of the civil war, Russia fully backed the regime. The brute bombing that the Russian war planes carried out in Aleppo and Eastern Ghouta was vital for regime victories. But in Idlib, the situation is different. After the initial flare-up in ties, Russia and Turkey have warmed up to each other over the past two years. Last year, Russia, Turkey and Iran agreed on a de-escalation plan for Idlib which kept the province out of Russian-Syrian attacks. Under the terms of the agreement, Turkey set up 12 observation points on the front line. When rebels elsewhere struck surrender deals with the Syrian government, those who did not want to live under regime-held areas were bused into Idlib. At present, the province has some three million residents, half of them internally displaced people. Turkey, which already has 3.5 million of Syrian refugees, fears that an all-out assault on Idlib will trigger another massive refugee flow. Idlib shares a border with Turkey, which is now shut. In the event of a war, refugees will flow into the Turkish border or to the neighbouring Afrin and Jarabulus areas, which are controlled by Turkey. Either way, Turkey will be hit by an attack on Idlib, and doesn’t want a crisis of that proportion on its doorsteps.

Also, Idlib has a sizeable number of jihadists. Hyat Tahrir al-Sham (HTS), formerly Jabhat Al-Nusra which was the al-Qaeda arm in Syria, is one of the most powerful militant groups in the province. Turkey fears that an all-out attack could disperse them, prompting some of them to cross the border into Turkish land, posing new security challenges to the country, which is yet to recover from a series of terrorist attacks in 2016. So Turkey’s interest lies in finding a non-violent solution to Idlib.

Russia, on the other side, is in a dilemma. It wants Mr. Assad, who it calls the legitimate ruler of Syria, to win the civil war. But it also knows that the campaigns in Aleppo and Eastern Ghouta have spilled enough blood, and Idlib, given the size of its population, would be more disastrous. Such a violent campaign will also throw a spanner into its reconstruction plan for Syria with help from European powers. Besides, Mr. Putin values Russia’s emerging bonhomie with Turkey, a NATO member that’s growing increasingly hostile towards the U.S. Unlike the erstwhile Soviet Union, Russia is not in West Asia for any ideological reasons. It has cultivated good ties with both Iran and Israel. And a growing partnership with Turkey is vital for its force projection in the region as a hostile Turkey can shut Russia’s access to Bosporus and jeopardise its Mediterranean strategy. Just as it took a relatively independent line towards the Iran-Israel rivalry within Syria — by allowing Israel to target Iranian positions while at the same time supporting Iran in battles against rebels — Russia finally sided with Turkey over Idlib, while not giving up its commitment to the Syrian state. This is not the first time that Russians are doing this. When Turkey carried out an attack on Afrin in early January, Russia just looked away, allowing Mr. Erdogan to capture the Syrian town.

What’s next

To be sure, the Idlib deal has averted an all-out attack — for now. But it hasn’t provided any realistic solution to the crisis. Part of the problem is the HTS presence in Idlib. Neither the Syrian government nor Turkey can allow an al-Qaeda-linked group to continue to have a safe haven in Idlib. According to the UN, there are about 15,000 HTS fighters in Idlib. The government’s plan is to attack all militant groups, including HTS and the Turkey-supported rebels, and retake the province — the Aleppo model. Turkey, however, proposes using non-violent tactics to draw HTS fighters away from its organisational fold and also empower non-HTS rebels to take the jihadists on.

The burden of implementing the deal is also on Turkey. It has to prompt rebels to withdraw heavy weapons from the proposed demilitarised zone and then come up with a road map to defeat HTS inside the province. This may not be easy. Turkey-backed militants, including the Free Syrian Army, say they outnumber the HTS. But HTS militants are battle-hard ideologically charged jihadists who were in the forefront of the conflict at least since 2013. Earlier they had fought with both the Syrian regime and other militant groups, including the Islamic State, and survived. Idlib has been their haven for a long time. If Turkey fails to honour its commitments, that will give an excuse to Russisa to go back to the original plan — the Aleppo model. The Putin-Erdogan deal may have postponed a battle, but the war is far from over.

Should the convicts in the Rajiv Gandhi case be released?

Our prison system must ultimately stay loyal to the theory of reformative justice

Any further delay in ordering the release of the seven convicts in the Rajiv Gandhi assassination case will run the risk of the state falling foul of Article 14 of the Constitution which says that it “shall not deny to any person equality before the law or the equal protection of the laws”.

Legal history of the convicts

Hundreds of prisoners who have been convicted of similar crimes have had their sentences pardoned under Article 161. Equality has never been a notional or abstract concept. In the present case, it must be extended to the convicts regardless of the crime or punishment or any other consideration. In the event of a failure to do so, the constitutional courts are bound to ensure that appropriate protection is accorded to these persons. The legal history of these prisoners has endured its twists and turns. Their mercy petitions were kept undecided for 11 years, between 2000 and 2011, by the highest constitutional offices. In August 2011, the Tamil Nadu Legislative Assembly adopted a resolution recommending commutation of their death sentences.

The Supreme Court, in Union of India v. V. Sriharan (2015), eventually commuted the death sentences to rigorous imprisonment for the remainder of their lives, thereby providing a glimmer of hope for further commutation of sentences under Section 435 of the Code of Criminal Procedure (CrPC). A subsequent reference to a Constitution Bench resulted in a recalibration of the powers vested with the State government under the CrPC in Union of India v. V. Sriharan. Nevertheless, the scope of constitutional powers under Article 161 was not examined by any of these judgments, and the Governor, as the repository of the executive powers of the state, is bound to take a decision “in harmony” with the Council of Ministers, which has already recommended their release.

The division of powers places “public order” under Entry 1 of List II (State List) of the Seventh Schedule of the Constitution. Therefore, the matter must lie within the exclusive remit of the State government. The commutation of sentence vide V. Sriharan v. Union of India (2014) automatically brings the Tamil Nadu Prison Rules into play. Rule 341 states that the Advisory Board of the prison shall deem life imprisonment to be “imprisonment for twenty years” for consideration for premature release or parole. It naturally follows that these prisoners in question must be dealt with under the Rules in the same manner as would any other prisoner serving a sentence in a prison in Tamil Nadu. Any divergence from this principle would be ultra vires on the ground of arbitrariness.

Reforming prisoners

Our prisons, for all their faults, must ultimately stay loyal to the theory of reformative justice. Under this theory, a crime is committed on account of a set of peculiar circumstances, and it is highly probable that these circumstances may never repeat again. Therefore, the focus of our prison system should be in bringing about reform in the moral character of each prisoner and enabling him to restart his life outside the jail complex after serving his sentence.

Prisoners who have served the prescribed sentence of 20 years in Tamil Nadu must be considered for reintegration into our society. Failure to do so will only expose the problems within the prison system, not in the inmates. Oscar Wilde’s famous adage that “every saint has a past, and every sinner has a future” was cited by former Supreme Court Justice V.R. Krishna Iyer, who emphasised that “it is the rule of law to remind both [saints and sinners] of this”. Our high constitutional functionaries who are busy contemplating the way forward in the present case need look no further.

Difficult questions of law and policy are involved, which may have to be resolved first

It is a misconception that upon the completion of 14 years of imprisonment, a life sentence has been served. The Supreme Court, in Gopal Vinayak Godse v. the State of Maharashtra (1961), ruled that a sentence of imprisonment for life means imprisonment for the rest of one’s natural life. However, there is always the power of executive remission, under which the appropriate government reduces part of the sentence for the convict’s good behaviour. Remission is also necessary; otherwise overcrowded prisons will overflow with old and ailing prisoners who have no hope of release.

The government is charged with execution of sentences given by courts and it is well within the government’s executive power to remit any sentence, including a sentence of life imprisonment or of death penalty.

Understanding remission

Life sentences awarded to convicts, including those involved in terror activities, do not automatically imply remission. In normal cases of murder, many State governments have rules which allow for the release of a prisoner sentenced to life imprisonment after 14 years. In each of the cases, there is a specific order of remission. There are, however, cases now where the Supreme Court and the High Courts, instead of imposing a death sentence, rule that the prisoner should remain in prison for the rest of his or her life without any remission. This is a category apart from normal life sentences with specific restrictions on remission that are imposed by the courts.

In the Rajiv Gandhi assassination case, the question is, would it be appropriate to remit the rest of the sentence. This case involves not only the assassination of a former Prime Minister, but also the deaths of several others in the incident, including policemen and bystanders.

It may well be that the family of Rajiv Gandhi may have no objection. But equally, the families of the other victims need to express their preferences. Mercy cannot be extended only because a prominent victim’s family desires it. In any event, it was the intervention of the Gandhi family, among other things, which saw the death sentences being commuted to imprisonment of life. The fact remains that many of those who are currently imprisoned were imprisoned when they were barely in their 20s. They still have a long life ahead of them. The question is, should they be spending their remaining years in prison?

Factors to be considered

A case may be made to say that the perpetrator and the principal conspirator are dead, and that those who were imprisoned were mere pawns, some of whom may not have known the entirety of the enterprise. In these circumstances, to routinely deny the benefit of remission may not always be appropriate.

Another factor that may need to be taken into account is the social impact of a remission order, in the event that it is passed in this case. If people can be freed even after being convicted for the murder of a former Prime Minister in a terror incident, questions could be asked whether India is a soft state on matters of terrorism. A release order in this case may be cited as a precedent in other cases where terrorists and their co-conspirators are serving sentences of imprisonment for life.

There is, therefore, no straight answer. Complicated questions of law and policy are involved, which may have to be resolved before a final call is taken.

Pardon is not meant to be exercised without justifiable grounds

I do not think there can be any compromise on the question of national security or national sovereignty. I do not think the constitutional provision of pardon has to do with anything other than national security and the welfare of a country’s citizens. To that end, the kind of danger that is apprehended from these convicts, and keeping in mind the kind of conspiracy and crime that they have committed, there appears to be no reason to exercise pardon in their favour. Remission has been rejected on grounds that are well known, and includes issues of national security and national integrity.

Grounds for pardon

Pardon is not a right. Pardon is an act of discretion exercised in specific circumstances where an individual deserving of clemency is examined in the context of his family background. The dependence of his family on him, a critical emergency or a serious health issue necessitates his release. Pardon is not meant to be exercised without justifiable grounds.

These are political convicts. The Supreme Court has cautioned against their release. Even otherwise, given the large political conspiracy involved in the assassination of Rajiv Gandhi, there does not appear to be any justification for exercising the extraordinary powers of pardon in their case.

Let us understand that the punishment prescribed was death. In India, the death sentence, though present in statute books, is rare. The rare instances when death sentences have been awarded have been strictly followed. The entire purport of the death sentence is very clear. In the present instance, the death sentence was commuted to life imprisonment, which itself is an act of clemency. That’s the way one would construe it.

Again, after all, when the sentence was converted from death to life, it could have been commuted to a lesser sentence. So, my point is that the power has been exercised, not once but twice — first in commuting from death to life, and then when the question of remission was claimed and denied — on well-laid down parameters. To keep reopening issues would not be a very fair way to look at the system.

Anti-terrorist measures

Security has become a key issue not only locally but globally. It is not only our right but our duty as a part of the nation and the world to deal effectively with any attack or infringement or breach of security, and that too in a conspired, concerted manner.

The object of anti-terrorist measures is two-fold. The first is to deter future activity and the second is to prevent terrorist activities. The reason anti-terrorist laws are made, and are to some extent different from regular laws, is that they address acts that destabilise the country.

Pardon can be exercised only in the interests of the nation. In the present case, regarding the limits to which discretion can be exercised, we have reached a conclusion. No ground appears to exist to agitate again on issues which have been deliberated upon by constitutional and statutory authorities.