‘The Courts and the Constitution-2023 in Review’ Conference M.K. Nambyar Saarclaw Conference Hall, NALSAR Hyderabad [March 30-31, 2024]

PROGRAMME CONCEPT NOTE

The ‘Courts and The Constitution’ Conference is an annual programme, meant to encourage critical engagement and the production of new scholarship in the field of public law. It aims to do so by undertaking a review of the significant judicial developments that have taken place in India over the previous calendar year. The Conference also provides a platform for broader reflections on the past, present, and future of constitutionalism in the South Asian region. It is an attempt to bring together diverse voices from the bench, bar, academia, journalism and civil society institutions to deliberate upon the developments that are likely to have a long-term impact on governance and the rights of the citizenry.

The previous four editions of this conference were held in January 2019, January 2020, April 2022 and March 2023 respectively. The fifth edition of this conference is being organised by the Editorial Team of the ‘Law and Other Things’ Blog in collaboration with the Centre for Constitutional Law, Policy & Good Governance, NALSAR Hyderabad and the School for Policy and Governance, Azim Premji University.

March 30, 2024 (Saturday)

10 am-11.30 am: Inaugural Session (Including Address by Justice B.V. Nagarathna, Judge, Supreme Court of India)

12 pm-1.30 pm: Electoral Laws and Democratic Legitimacy

2.30 pm-4 pm: Developments in Indian Federalism

4.30 pm-6 pm: Adjudication of Socio-Economic Rights in the SAARC Countries

March 31, 2024 (Sunday)

10 am-11.30 am: Taking Stock of the Judiciary

12 pm-1.30 pm: Developments in Equality Jurisprudence

2.30 pm-4 pm: Shamnad Basheer Memorial Roundtable — Disability and Law

4 pm: Closing Session

Panel I: Electoral Laws and Democratic Legitimacy

The past year witnessed the Supreme Court of India’s active involvement in protecting free and fair elections. Several challenges have arisen with respect to concerns about heightened executive control and in turn the long-standing constitutional scheme related to the separation of powers.

In Anoop Baranwal v Union of India (2023), the SCI devised a Selection Committee composed of the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India to recommend names for appointment as CEC and EC, with an eye to ensuring independent institutional and procedural mechanisms for such appointments. Subsequently, the Parliament has enacted a new law, Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 to replace the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. This Act deviated from the position developed by the Court in Anoop Baranwal, and changed the appointment process and service conditions of the CEC and EC, thereby enabling heightened control by the Executive Branch. This raised serious constitutional concerns about the curtailment of the autonomy of independent constitutional bodies, which in turn would affect the integrity of elections.

The Electoral Bond Scheme initiated in 2018 has emerged as the main medium for monetary contribution to political parties for elections. The introduction of this scheme generated various criticisms regarding corporate funding of elections, relaxation of upper limit and allowing foreign contribution to election funds, with the main objections focussed on the anonymity of the contributors. The very premise of free and fair elections stand to be compromised if the right of the voter to know about the influences shaping their political choices is not respected. As the petitioners against this scheme have argued, the right to know about the antecedents of electoral candidates has been seen as a subset of the larger sphere of the right to freedom of speech that flows from Article 19(1)(a) of the Constitution.

In another context, the revolt within the Shiv Sena precipitated a constitutional crisis in Maharashtra regarding the scope of powers of the Governor, the Speaker of the Assembly and eventually the higher judiciary. The Supreme Court’s intervention in May 2023 deemed the Governor’s directive for a floor test improper, but could not restore status quo ante after the Uddhav Thackeray-led government’s resignation. The issues of rebel legislator disqualifications and strategic delays in decision-making by the Speaker remain sub-judice. This situation demonstrated the limitations of constitutional remedies when political machinations can circumvent textual provisions and ethos. It underscores the need to re-work and perhaps also re-design constitutional safeguards to address such possibilities.

The Constitution (One Hundred and Sixth Amendment) Act of 2023 has provided for the reservation of one-third of all seats for women in the Lok Sabha and the Vidhan Sabhas. The key criticism of this Act is that it will be implemented only after the next delimitation of constituencies. However, it is important to discuss the larger questions: Is this an appropriate mechanism to ensure more representation in the legislature and political participation? Or, will this method largely be tokenistic legislation if the political parties do not give tickets for more women candidates to contest election in the first place? Is there a need to shift the debate towards alternative methods like intra-party reservations at the stage of nominations or perhaps even the revival of dual member constituencies?

Panel II: Developments in Indian Federalism

The recently delivered judgment in NCT of Delhi v. Union of India follows eight long years of litigation over the contentious implications of Article 239AA, which grants to the Delhi Legislative Assembly the power to make laws with respect to legislative fields under Lists II and III “in so far as any such matter is applicable to Union territories”. Textually, this phrase may be understood in two ways: first, that whether a particular entry in Lists II and III applies to a union territory or not depends on an ad-hoc determination, and second, that the phrase makes all entries in the Lists other than those expressly excluded, available to the union territory. CJI Chandrachud adopted the principle of asymmetric federalism and representative democracy to interpret the phrase in a manner that where there is constitutional ambiguity, the reading that advances principles of federalism and representative democracy is the preferred one. This judgement is an example of a relatively thin stream of precedents, where when explicit provisions favouring the Union exist, the Court takes the approach which restricts the ‘centralising drift’ from gaining further entrenchment, and instead, views the explicit provision as a ground to prevent further unwritten centralization.

In this light, the recent discourse around Indian federalism provides a rich ground for debate in light of the Supreme Court’s judgement in In Re: Article 370, that came later in the year, upholding the abrogation of Article 370 of the Indian Constitution. While the petitioners had invoked the historical commitments made to the erstwhile Princely State of Jammu and Kashmir at the time of the signing of the Instrument of Accession in 1948, the Central Government defended its measures taken in August 2019 on the premise that the safeguards provided under Article 370 should be characterised as temporary provisions. While the apex court has affirmed the stance of the Central Government, the reasoning adopted by the two concurring judgments has attracted considerable criticism.

In essence, the year 2023 has been quite prominent for Indian federalism. Besides these two high-stakes judgements, the year saw cases such as the original suit filed by the State of West Bengal against the Central Bureau of Investigation (CBI) which has been continuing to register and investigate cases even after the withdrawal of general consent to do so by the State Government. Inevitably, the question that arises is whether the unique nature of asymmetric federalism is being properly invoked in the recent disputes, or is there now an evident lapsing back to the ‘centralising drift’ witnessed in earlier decades.

Panel III: Adjudication of Socio-Economic Rights in SAARC Countries

Contemporary human rights law bends towards parity between civil-political and socio-economic rights, referring to them collectively as ‘universal, indivisible, interdependent and related’. However, profound disagreement persists regarding the precise legal position of socio-economic rights and what duties are held by the administrative state to realise them. While progress has been made in integrating the older conceptualisation of rights, deep divisions remain over enforcing socio-economic protections, both in the ideological and institutional sense.

The enumeration of socio-economic rights such as healthcare, education and housing still remains an outlier phenomenon if we survey constitutional texts globally. However, the entrenched inequalities in our societies have compelled Constitutional Courts in Bangladesh, India, Nepal, Pakistan, and Sri Lanka to either read in or expand the meaning of socio-economic rights through their adjudication.

Despite socio-economic rights being non-justiciable in these countries, the courts have carved an important role for themselves by integrating the right to education, housing, and other Directive Principles into Fundamental Rights. Further, an active judiciary has enabled relatively disempowered groups to approach the courts through Social Action Litigation. Socio-economic rights litigation in South Asia has sought to make welfare guarantees effective, not just symbolic, with mixed results-cases in India on education, Nepal on housing equity, and Bangladesh on healthcare access do highlight the courts’ potential and limitations in realising constitutional directives on development.

This, however, raises pertinent concerns regarding the lack of explicit constitutional safeguards for many of these rights. Are they limited to the court’s interpretation and intervention, or have popularly elected governments incrementally integrated them into their policies? This has also raised questions about judicial overreach and the competence of courts in when it comes to the granular details of making entitlements available. Additionally, despite widespread constitutional recognition of directive principles on equitable access to welfare, resources, and development, the practical realisation of these positive rights remains uneven across the region. By sharing experiences and insights on best practices and the likely pitfalls, this panel is aimed at finding common ground for ensuring that constitutional socio-economic protections do not remain “paper promises” but rather translate into enhanced living standards.

Panel IV: Taking Stock of the Judiciary

This panel will examine issues related to judicial administration, especially as they have been raised through successive attempts at empirical research in recent years. We routinely try to assess the judiciary’s role in achieving constitutional objectives through its decisions. However, there is an inherent limitation of doctrinal scholarship that largely concentrates on decisions made by specific benches, while not considering the working of the institution as a whole. The higher judiciary’s internal processes, particularly those related to the listing of cases before the respective benches, have faced criticism for their lack of transparency. Statistical analysis of the Supreme Court’s workflow has raised multiple questions, such as those related to the predominance of Special Leave Petitions (SLPs) as the route of entry, the lack of subject-matter expertise in bench-allocation, immense variations in judicial productivity, disparities in the regional origin of litigation and the considerably wide discretion exercised in scheduling Constitution Bench matters.

The presumptive equality of opportunity to be heard is often compromised by the presence of hierarchies, both among the practitioners and Judges as well as between them. The practice of having multiple benches, as opposed to an en-banc structure (as was the case with The Federal Court that functioned between 1937 and 1950), was seen as necessary to tackle a continuously increasing appellate docket. However, practioners and commentators have repeatedly raised the probems that arise when comparable propositions and situations are dealt with in disparate ways across different benches. It is argued that these disparities incentivise litigants to re-open the same questions before larger benches, thereby acting as a drain on judicial time and attention. In recent months, the present CJI has invoked the virtues of a ‘polyvocal’ court as a response to some of these criticims.

In popular discourse, decisions about the creation of benches and the assignment of cases to them, traditionally vested in the ‘Master of the Roster’, are often criticised as examples of ‘favouritism’ within the Bench or at worst ‘fixing’ in favour of privileged litigants. Scheduling practices followed by the Courts at different levels have also encouraged the production of a new literature on case-management in the Indian context. This panel will try to survey the significant questions that have been asked in the recently published scholarship that is focussed on judicial statistics.

Panel V: Developments in Equality Jurisprudence

The objective of this panel is to critically analyse the evolution of equality jurisprudence in the private sphere by examining the stance of the Supreme Court of India on the issues of gender, sexuality and religion. The discussion will seek to evaluate the Court’s developing position in cases involving overlapping identities and intersecting harms.

The Supreme Court’s reluctance to make a decisive shift towards marriage equality in Supriyo v. Union of India, was largely presented as an institutional limitation in the majority opinion. The judgment invites examination from several perspectives, including issues such as whether social rights need to be seen as contingent on the extent of the reliefs that are sought, whether a constitution bench should revert back to formalist reasoning and whether the piece-meal classification of issues in this case could lead to a regression from earlier precedents that have recognised a ‘right to marry’ in other contexts. Situating Supriyo in the genealogy of LGBTQ jurisprudence since the landmark NALSA judgement, there is a need to assess if the Court is actually crafting a transformative anti-majoritarian vision of equality, or if its doctrinal conservatism and institutional reticence to catalyse social reform is posing hurdles for the recognition of intersectional dignitary rights. This critical inquiry will illuminate the judicial balancing of arguments based on ‘constitutional morality’ with deference to the elected branches on socially contentious issues.

Moreover, there are various pending constitution bench decisions concerning uniform divorce, maintenance and alimony laws, restitution of conjugal rights, and constitutionality of Muslim marriage laws that have profound implications for egalitarianism within the private domain. The ongoing review of the hijab ban judgement warrants a nuanced analysis of how gender and religious minority rights collide and interface in private/community educational spaces. Similarly, the case regarding marital rape exception in the Indian Penal Code foreground the contentious divide between public constitutional protections and private sphere immunities in rights jurisprudence. Additionally, the lack of adequate jurisprudential guidance on the exercise of judicial discretion in abortion cases under the Medical Termination of Pregnancy Act is impeding the evolution of a progressive rights framework on reproductive autonomy for women.

This calls for various questions that we must examine carefully. Has the Court’s jurisprudence coherently reconciled notions of public constitutional morality with private/group rights in these cases? What reasoning apparatuses and standards of review has the Court evolved to tackle intersectional discrimination in the private realm?

Specifically, in addressing these themes, a bigger question to be evaluated is whether the Court has been able to craft a transformative vision of substantive equality that can be applied across the diverse contexts of discrimination or are there evident gaps and inconsistencies in its reasoning. The aim is to understand the current judicial thinking on the theoretical foundations and practical applications of equality doctrine in India’s unique socio-legal landscape.

Panel VI: Shamnad Basheer Memorial Roundtable-Disability and Law

(in collaboration with IDIA Hyderabad Chapter)

Apart from being an acclaimed scholar in the field of Intellectual Property Rights, Professor Shamnad Basheer was deeply engaged in questions of social justice. He founded the ‘Increasing Diversity by Increasing Access’ (IDIA) project in 2010, which aimed towards making legal education more accessible for the underprivileged and marginalised groups of society. With the organisation approaching its Fifteenth Anniversary, this panel provides an opportunity to remember Shamnad and the impact that his work has made.

IDIA runs with the help of volunteers which includes 600 plus members from the various National Law Universities. IDIA has assisted 206 plus scholars to not just crack entrance exams, but has also assisted them in pursuing their legal education through scholarships. The project has also worked towards building awareness about careers in law, having reached more than 71,000 students since its inception.

This panel aims to blend the experience of IDIA scholars with the judicial and academic perspectives on increasing accessibility within legal education and the judicial system in India. The panel will include IDIA scholars who have achieved eminence as practitioners and scholars of law, sharing their insights about their journey and how they overcame personal and professional challenges.