Birthright Citizenship in the US: possible legal arguments for and against

President Donald Trump's Executive Order cancelling Birthright Citizenship has taken the immigrant community by storm here in the US, where your favorite dormant lawyer currently reposes. Naturally, this development revokes TDL's dormancy temporarily...

The EO, issued within hours of President Trump taking the oath of office, states that the US Government shall not issue documents recognizing US citizenship to a person born in the US after 19th Feb 2025 if:

(1) the person's mother was unlawfully present in the US and the person's father was neither a citizen nor a permanent resident (i.e. a Green Card holder) of the US; or

(2) the person's mother was lawfully present in the US on a temporary visa and the person's father was neither a US citizen nor a permanent resident.

Such a "person" born in the US, then, would be prevented from becoming what is colloquially referred to as an "anchor baby" if the mum was an illegal immigrant to the US or was present in the US on a B1, B2, H1, H2, H4, L1, L2, etc visa, and the dad was not already a permanent resident or a citizen of the US. 

In other words, for a baby born in the US after 19th Feb 2025 to be recognized as a citizen of the US by birthright, at least one of the baby's parents need to be either a citizen or a green card holder.

Unsurprisingly, the Executive Order was immediately challenged in the federal courts in at least 5 different lawsuits, with the one filed in conjunction by the states of Arizona, Illinois, Oregon & Washington becoming the first to receive a hearing. The suit came before John Coughenour, US District Judge, Western District, Washington State who proceeded to block the EO because it is prima facie violative of the 14th Amendment to the Constitution of the United States. Until the next hearing, set on 6th Feb 2025, this block is obviously a temporary "stay order", and there's a long way to go in this story yet. This gives us an opportunity to discuss Birthright Citizenship in the US in detail.

The story of the origin of birthright citizenship in the US is a very uniquely American tale, with its roots in that nation's original sin: slavery. The historical milestones in the granting of citizenship to all persons born in the US can be summarized as follows:

1857: The Dred Scott judgment, in which the Supreme Court of the United States ("SCOTUS" hereinafter) held that slaves were not US citizens 

1861-65: The Civil War, during which President Abraham Lincoln freed slaves in the rebel states via the Emancipation Proclamation (1863) and then abolished slavery in the US via the 13th Amendment to the US Constitution (1865)

1866: The Civil Rights Act, which declared all persons born in the US (including the now-emancipated former slaves) to be citizens of the US

1868: The 14th Amendment, which enshrined the birthright citizenship clause of the 1866 Act into the Constitution

1898: The Wong Kim Ark judgment, in which the SCOTUS held that all persons born in the US, even those to non-citizen parents legally residing in the US, automatically became US citizens, thus expanding the purview of the 14th Amendment

1982: The Plyler judgment, in which a SCOTUS Justice's obiter dictum indicated that the Wong Kim Ark judgment extended even to children born to parents present in the US illegally, further expanding the scope of the 14th Amendment

2025: The Trump EO, which purports to overturn the Wong Kim Ark and Plyler precedents.

This chronology certainly suggests that the purpose of the 1866 enactment and the 14th Amendment (1868) was to extend birthright citizenship to previously enslaved people that were born in the US.  It all began with the Dred Scott case (the SCOTUS's "Worst. Judgment. Ever." thanks to the influence of the nation's Worst. President. Ever.). Dred Scott was born a slave in Virginia in 1799 and had been sold in 1830 to Dr. John Emerson, a military surgeon then posted in St. Louis, Missouri but later stationed to "free" territories, viz. the state of Illinois, and the future state of Minnesota, where Scott married another slave, Harriet Robinson, and had two children. Emerson's widow inherited her husband's property (which included the Scott family) and had returned to St. Louis, where Dred Scott sued for his and his family's freedom in 1846, claiming they had automatically become free when their owner(s) had taken them to areas of the US where slavery was prohibited. The case eventually made its way from the Missouri courts to the US Supreme Court led by 79-year-old Chief Justice Roger Taney, which, in its most atrocious and outrageous decision ever, held in 1857 that Scott could not have filed suit in the first place, since he was not a citizen. 

(Taney & Co also further erroneously and unnecessarily held that "free" status applied only to states that existed before the Constitution came into force; any states/territories added to the Union at a later date could not be prevented from practicing slavery, a notion that intensified the opposition to slavery in the Northern states since it effectively converted hitherto free states into slave states overnight and against the will of their citizenry, precipitating a reaction that led to the election of Abraham Lincoln to the presidency, which led to the consequent secession of the Southern states from the Union and to the outbreak of the Civil War. But that is not our legal research concern at this moment).

During the Civil War, the Emancipation Proclamation and the 13th Amendment to the US Constitution freed slaves and abolished slavery, and after the War the 1866 Civil Rights Act and the 14th Amendment to the US Constitution undid the legal wrongs inflicted by the Dred Scott judgment by ensuring that there would no longer be any doubt that not just Caucasians but also African Americans born in the US were citizens of the US. Let us now get into the nitty-gritty of the wording of the relevant clauses and explore the interpretations they may be subject to.

The 1866 Act states that “All persons born in the United States and not subject to any foreign power... are hereby declared to be citizens of the United States.” The relevant provision in the 14th Amendment is slightly modified and states "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

The crucial phrases here are "not subject to any foreign power", and "subject to the jurisdiction [of the US]" respectively. which at that time were understood as "subject to the complete jurisdiction of the United States alone, and not of the US along with any foreign power." This remained the interpretation of the clause through various judgments (see SCOTUS judgments in the "Slaughterhouse Cases" of 1873 and Elk v. Wilkins of 1884) - a person born in the US and not owing allegiance to anyone else was a citizen of the US by birthright; a person born in the US to parents who were subject to the jurisdiction of some country other than the US was a citizen of that other country. It is this interpretation that the Trump EO tries to revert the jurisprudence to.

The strict reading of the "subject to the jurisdiction of the US" clause was however expanded by the US Supreme Court in 1898. Wong Kim Ark, born in 1873 in San Francisco's Chinatown, had repatriated to China with his parents in 1889. He was then denied re-entry into the US in 1894, with the local Collector of Customs ruling that he was not a US citizen since his parents were Chinese nationals, and hence "subject to a foreign power" and thus "not subject to the complete jurisdiction of the US". Wong sued for entry on grounds of citizenship, arguing that his parents had been "subject to the jurisdiction of the US" when they were living in San Francisco at the time of his birth, since all aliens owe allegiance to the laws of the foreign country they are residing in. This case too made its way up to the US Supreme Court, where a 6-2 decision held that the only people residing in the US that would not be subject to its jurisdiction were either (i) foreign envoys to the US enjoying diplomatic immunity; or (ii) enemy forces engaged in hostile occupation of US territory. These were the only categories of people on US soil who were subject completely to a foreign power and not at all to the jurisdiction of the US. Only children born to such individuals could be excluded from birthright citizenship. Wong was indeed a citizen, since at the time of his birth, his parents were indeed subject to the jurisdiction of the US. Per United States v. Wong Kim Ark, then, persons born in the US to parents who were in the US temporarily and legally (B1, B2, H1, H2, H4, etc) were US citizens.

This interpretation was further expanded, rather controversially, in Plyler v. Doe. When called upon to rule whether a Texas law preventing children of undocumented (i.e. illegal) immigrants from attending public schools was constitutional, the US Supreme Court in a razor-thin 5-4 decision not only struck down the law in question, but also Justice William J. Brennan, in footnote #10 to his majority opinion, stated: 

given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.

Appearing in a footnote to an opinion dissented to by 4 of the Court's 9 Justices, including then Chief Justice Warren Burger, this line that says no distinction can be drawn between lawful and unlawful resident aliens is a great example of an "obiter dictum" - a remark made in passing, that is not binding and has only persuasive value. Yet it is this statement, hidden away in a footnote, that has gained the status of a ratio decidendi - the operative, binding part of a judgment - and allowed children born in the US to illegal immigrants automatically achieve citizenship.

The Dormant Lawyer, being an Indian citizen currently hibernating (but usually aestivating, since it's Texas), has no dog in the fight at all. But purely as a legal researcher at-large, here's what TDL believes might happen:

• Completely negating a constitutional amendment's long-standing interpretation through a mere Executive Order will not be easy. The federal government is unlikely to succeed in preventing the grant of birthright citizenship to persons born to legal (albeit temporary) immigrant mothers. This interpretation was not introduced in Plyler, and it is obvious that these persons and their mothers are indeed subject to the jurisdiction of the US. Also, the change in the wording from the 1866 Act ("not subject to any foreign power") to the 14th Amendment ("born or naturalized in the United States, and subject to the jurisdiction thereof") could further be argued to indicate that the intent of the legislature was to not exclude people that were also subject to other jurisdictions
• On the other hand, it will be very difficult for the challengers of the EO to succeed with respect to the 1st clause, viz. "the person's mother was unlawfully present in the US". The court is likely to utilize the reasoning in Wong Kim Ark, especially if the government lawyers argue that illegal immigrants, given their vast numbers, constitute an "invading army"; to a large extent, they are not subject to the jurisdiction of the US (e.g. theoretically they cannot even be allotted Social Security Numbers, except for the special case where they are asylum seekers who have then been explicitly granted work authorization, a not-straightforward procedure which takes months).

Either way, interesting times lie ahead for us precedent-seekers!

Resuetude?

Section 66A of the Information Technology Act, 2000 is straight out of a Zombie movie. It just refuses to die, though it quite certainly isn't alive. Killed 5 years ago by Chelameshwar and Rohintan Nariman, JJ, in the Shreya Singhal case in the Supreme Court, it appears that FIRs are still being filed under its provisions.

Let's remind ourselves at the outset what those provisions, added in 2008, state:

Any person who sends, by means of a computer resource or a communication device,-

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,

shall be punishable with imprisonment for a term which may extend to three years and with fine.

(The Dormant Lawyer particularly likes the use of "menacing character" in the section. Perhaps some day this blog would qualify as possessing that). Not surprisingly, the Supreme Court found the section "over broad" and vague, or to quote Rohintan Nariman, J:

It is thus clear that not only are the expressions used in Section 66A expressions of inexactitude but they are also over broad and would fall foul of the repeated injunctions of this Court that restrictions on the freedom of speech must be couched in the narrowest possible terms.

The Supreme Court thus struck down S. 66A in its entirety as being violative of Art.19(1)(a). It became a dead letter that day onwards (24 March 2015) and it was no longer an offence to send electronic messages "for the purpose of causing annoyance" (and a collective and viral sigh of relief was heaved by Twitter users). But, as reported, apparently the police refuse to believe it is a dead letter and continue to entertain complaints under it.

The latest such instance was quashed gleefully by the Allahabad High Court, but the mind boggles at this stubbornness and activism of the law enforcement authorities. Obviously, TDL is using euphemisms here; it may not be stubbornness/activism but politicking. Or worse, ignorance. Either way, one wonders how often this sort of situation occurs, where a law has been struck from the statute book but still is "in force" somehow. It reminded TDL of the opposite situation: Desuetude, examples of which would be perhaps what most people hoped S. 377 of the Indian Penal Code would become (barring the bestiality bit), before the Supreme Court stepped in anyway. Or perhaps, in a more expanded definition, what the powers of the British monarch have become. Defunct by non-use, whatever may be the reason for the non-use.

Every lawyer remembers taking a course in "Interpretation of Statutes", traditionally in their final year of law school, and would recall the concept of desuetude being taught therein, when dealing with "Expiry and Repeal of Statutes". Desuetude comes to us from Scottish law (and not common law, though the latter did acknowledge the concept of "non-observance" for a while) and refers to the situation where a law might technically be still in force but is not considered to be so by the courts since it has not been enforced for a significant, continuous period of time and there is actual accepted usage that is contrary to it. 

To quote Lord Mackay in Brown v. Magistrate of Edinburgh (1931):

[D]esuetude requires for its operation a very considerable period, not merely of neglect but of contrary usage of such a character as practically to infer such completely established habit of the community as to set up a counter law to establish a quasi-repeal.

Wonderfully expounded indeed, especially the quasi-repeal part, which really makes things clear. TDL would also refer you to this very readable scholarly article by Jitendra R. Bhat, J, that appeared in the SCC, which he begins as follows:

The jurisprudential meaning of "desuetude" is that long and continued non-use of law renders it invalid, at least, in the sense that courts will no longer tolerate punishing its violators or transgressors.

Now, desuetude, even on the face of it, appears immediately controversial. It almost goes against that most basic "Ignorantia juris non excusat" principle: if everyone has been ignorant of a law, one is allowed to break it, as it were. But what do we do with the opposite of this situation, where an actual repeal is being ignored? Where a law which does not exist, which has been repealed or rather has been struck down as violating the Constitution, continues to be in force? To twist Lord Mackay's words, does such practice set up a counter law to establish quasi-reinstatement? And what should we call this incredibly inexplicable and unprecedented unprincipled behaviour? Resuetude?

Prime Ministerial Incapacitation: A Constitutional Perspective

Covid-19 has begun infecting the Westminster Constitutional System now, with the British Prime Minister Boris Johnson coming down with it, leaving him incapacitated and confined to St. Thomas' Hospital's ICU on 7th April. Since he had tested positive for the virus back on 26th March, he had considerable time on his hands to set in place his interim succession, with Foreign Secretary Dominic Raab notified as next in line, and Chancellor of the Exchequer Rishi Sunak to follow him. There's no immediate worry about who's in charge, therefore. What has interrupted The Dormant Lawyer's lockdown reverie though is, who would be India's stand-in in the event of a similar occurrence? TDL's concern, as ever, is not about who the person(s) would be, but about what the system in place is.

We have, thanks to the unique Donald Trump, discussed in these pages the interim/temporary succession of the US President, if he's incapacitated due to an illness or is undergoing surgery or has been too Trumpy to tolerate. The equivalent of the 25th Amendment to the US Constitution however does not exist in Westminster Constitutions. Or rather, one should say, does not need to exist. 

Since the Head of the Government in a Parliamentary system is merely the leader of the cabinet - the first among equals - the functioning of the government continues unabated through this highest decision-making executive body, and through the permanent civil service, when the doctors of said primus inter pares get too worried. Since collective decision-making by the cabinet is how policy is formulated anyway, there is no requirement to formally recognise a primus inter residual pares, for the short duration of the PM's temporary absence. Consequently, there never arose an occasion to nominate a stand-in to the Prime Minister of India. That is, until we became a declared nuclear power.

Assuring the global community that the nuclear arsenal is in the hands of not the military but the civilian establishment achieved paramount importance after Pokhran-II. It should be remembered that the lack of "peace of mind" regarding the nuclear arsenal of North Korea, or the alleged WMDs possessed by Iraq, was due to the fact that those nations are not functioning democracies, and any decision to employ the nuclear weapons would not be considered the will of the people of those countries. The citizenry, in fact, would be completely bypassed in any such cataclysmic decision. As a self-proclaimed responsible nuclear state, India needed to demonstrate that she could be seen as a responsible nuclear power.

Accordingly, in January 2003, India published the structure of her nuclear command-and-control ("C2") setup, announcing that it will be comprised of the Strategic Forces Command (responsible for managing the nuclear weapons stockpile, headed by an Air Marshall or equivalent) and the Nuclear Command Authority. The SFC is the military wing of the command structure, and is not the concern of our constitutional discussions, so we'll stick with the NCA; it is composed of two arms: the Political Council (headed by the Prime Minister) and the Executive Council (headed by the National Security Advisor). The Political Council in turn (probably) consists of the Cabinet Committee on Security (viz. the PM, the Home Minister, the Defence Minister, the External Affairs Minister and the Finance Minister), while the Executive Council is made up of several top bureaucrats alongside the NSA. In the event of a proposed nuclear strike (retaliatory, assuming continuance of our No First-Use doctrine), the Executive Council would provide inputs to the Political Council for decision-making. The Political Council is the sole body that can authorise the use of India's nuclear weapons, and its ultimate executive decision would be made by its chair: the Prime Minister. Said decision will then be operationalised by the SFC in association with the Executive Council. The purpose of this sophisticated structure is to reassure the world that India's nuclear command is headed by a civilian, democratically accountable authority, and precludes the possibility of unauthorised/accidental use of nuclear weapons.

As is clear, the Prime Minister is not merely a primus inter pares in this setup, but is instead the sine qua non. Recognising this several years before the formalisation of the NCA, a key part of the PMO had been moved to Mumbai when Prime Minister Vajpayee underwent a knee-replacement surgery at the city's Breach Candy Hospital in October 2000. However, as far as is publicly known, this first "opportunity" for setting a precedent in these matters was not utilised to the fullest: Prime Minister Vajpayee did not officially designate one of his cabinet colleagues to take his place at the helm of the country's nuclear retaliatory apparatus, though Deputy Prime Minister Advani would have probably done the job if called upon. (It should be noted here that the post of "Deputy" PM is not a constitutional creation, and does not by default assume the responsibilities of the PM). 

The next occasion for setting a precedent of appointing a stand-in chair of the Political Council of the Nuclear Command Authority came 6 years after the formal creation of the NCA, when Prime Minister Manmohan Singh went under the knife for a coronary bypass in January 2009. On that occasion too, the interim chair was not disclosed. Now, TDL should make it clear that this does not mean that a line of succession was not defined, all we know for sure is that it wasn't disclosed. The narration of the two occasions in these last two paragraphs should not be seen as a criticism of those two Prime Ministers, especially, since it came post-NCA, of the second one (unlike this opinion from the archives). It must be discerned that disclosing the line of succession would endanger the very working of our nuclear deterrent: a motivated enemy would know which successor to incapacitate, along with the PM, in order to leave the NCA headless. This would cause untold anxiety in the rest of the world regarding the transparency of our C2, apart from the utter breakdown of our deterrent, and that anxiety would invite the intervention by other world powers in India's nuclear command and control structure.

However, us paranoid system-worshippers need some hint as to the second-in-command, in case our Prime Minister has to contemplate some downtime for medical reasons. And TDL submits that the secundus inter pares, as it were, would be the first minister to be sworn in after the Prime Minister when the government was formed after the last elections. That would make the successor not Home Minister Amit Shah, as many would assume, but Defence Minister Rajnath Singh. In fact,  come to think of it, there doesn't seem to be much else to discern from the order in which the Cabinet Ministers were sworn in. That oath-taking sequence points to the order of succession. TDL can now go back to lockdown mode peacefully!

Impeachment by Secret Ballot?

Donald Trump's Impeachment hearings have begun at a TV channel near you, and based on the evidence already available in the public domain, it appears that the US House of Representatives is very much likely to impeach the 45th President. That would make him the 3rd of that select group to have faced this ignominy - Andrew Johnson, who took over at the helm after Abraham Lincoln was assassinated, being the first back in 1868; Bill Clinton being the 2nd, in 1998. (Richard Nixon resigned in August 1974, 3 months after his impeachment hearings commenced, but before the House could vote). 

Both Johnson and Clinton were impeached by the House, Johnson by a vote of 128-47 (for intentionally violating an Act of Congress) and Clinton on two counts, by votes of 228-206 (perjury) and 221-212 (obstruction of justice). The subsequent Senate trials of those impeached Presidents - the second step in the process - did not go as per plan however.

Johnson had faced impeachment after he tried to get rid of his Secretary-of-War Edwin Stanton, in defiance of the Tenure of Office Act. The Act, later repealed, prevented the President from removing office-bearers without the approval of the Senate, if those office-bearers had been appointed with the advice & consent of the Senate. Johnson had vetoed the Act when it came before him, and Congress had promptly overridden the veto by passing it with a 2/3rd majority. Johnson went ahead and fired Stanton anyway, giving Congress the opportunity to impeach an unpopular President. The then 54-member Senate voted 35-19 for his removal, 1 short of the requisite 2/3rd majority.

Clinton's impeachment wasn't remotely close. The first count was actually defeated, 45-55, and the second ended at an impasse: 50 for and 50 against, way short of the 67-33 or higher that would have removed the President. The verdict was split almost exactly along party lines: no Democrat voted in favour of his removal (though Republicans, respectively 10 and 5, did cross the aisle to find Clinton not guilty).

Republicans enjoyed a 55-45 majority in the Senate in 1999 when Clinton's trial came before the US Congress' Upper House. Their majority is a thinner 53-45 today (there are 2 independent Senators currently: Angus King from Maine and Bernie Sanders from Vermont). And the US polity is much more entrenched and partisan than it was two decades ago. It's almost impossible, therefore, that if Trump is impeached by the House of Representatives and then tried by the Senate, 20 of the 53 Republicans will vote against him. Not publicly, anyway.

This is where the possibility emerges, expressed by Juleanna Glover in The Politico Magazine earlier this week, that the Senate could consider voting on the removal of Donald Trump by secret ballot. It would appear that this is a political rather than a legal strategy, but it has nonetheless caught the otherwise phlegmatic TDL's attention.

The logic is straightforward: The US Constitution does not specify the manner or the rules of the removal vote - this is left to the Senate to decide for itself, on a case-to-case basis. The rules for the Johnson and the Clinton removals had accordingly been decided by the Senate's of the day, through simple majority, as they will for the Trump removal. So, if 51 Senators decide to include in the rules a stipulation that the final vote on the impeachment article(s) shall be by secret ballot, such a rule would probably withstand a legal challenge. It is believed that this would free up many Republican Senators to vote as per their conscience rather than as per their support bases, whom they would have to face for their re-election campaign. Or because they'd rather have Vice President Pence take over. Or because they detest Trump as much as most Democratic Senators. And since this is after all a trial by jury, it follows that a secret ballot would not be anomalous, since a federal jury also always votes in trials in secret.

While all this seems fine in theory, one wonders whether matters of such consequence should ever be decided by secret ballot. The representatives of the people should do precisely that - represent the people. They should reflect the views and opinions of their constituents, and should be answerable for their choices made on the behalf of the people. Or, as Jim Geraghty argues over on the National Review, such a secret ballot "would represent senators trying to avoid accountability for their votes, during an exercise that is supposed to be a legislative effort to hold the president accountable for his actions."

It must be remembered that the Constitution of India, for example, stipulates voting by MPs and MLAs by secret ballot in the election of the President of India. But not for the impeachment and removal of that President.

Of course, The Dormant Lawyer is only going into this sort of sanctimonious conjecture because there is no precedent for this. The US Constitution does allow its Senate to vote by secret ballot on "questions" such as passing a Bill, adopting an amendment to a Bill and agreeing on a motion or appeal, unless 20 Senators oppose this, but the definition of "questions" does not include removals. As far as TDL has researched, no actual secret ballots have ever been held, but this was very limited research indeed. Either way, any such occurrences would hardly constitute a precedent, given the significance of this matter. Nor are there precedents of abstention in removal trials (30 Republican abstentions would bring the 2/3 threshold from 67 down to 46.67, which would be achieved by the 45 Dems and 2 Independents. Constitutionally, only 67 senators need to be present for the vote).

Which brings us to what sparked off Glover's opinion piece in the first place. Glover, who Wikipedia calls "one of the most powerful Republican lobbyists in Washington", has been a strategist and adviser to several Republican politicians (including President George W. Bush and his VP Dick Cheney), cites Mike Murphy, a fellow-Republican strategist, in her column. It was Murphy who said that 30 Republican Senators would vote to convict Trump if the ballot was secret, according to his source (another Republican senator). Later, former Senator Jeff Flake (Republican from Arizona) said that the number would be 35. Perhaps this is all just bombast, or a strategy to replace Trump with Pence, whom Glover et al might prefer, due to his traditional Republican stance. If there indeed are 35 Republican Senators who would convict Trump if they were promised immunity as it were, perhaps Glover et al are using this gambit to entice those Senators to, instead, abstain. Even that lesser evil would suffice.

Certification of Money Bills - II: The Aadhaar Judgment Perspective

Back in February 2017, TDL dealt with Money Bills, their certification as such by the Speaker, and whether said certification could be challenged in Court ("Certification of Money Bills"). Now, with a Constitution Bench having ruled on this in the Aadhaar matter, it is time to update our understanding of this concept.

We will, of course, not deal with the crux of the Aadhaar judgment here. Everyone will have surely, by now, read all about what was upheld and what was struck down therein, and there really is no need to discuss such momentous matters. It is the minutiae that concern us eccentrics. Our focus therefore begins with paragraph 389 (pg. 458 of 567) of Justice Sikri's judgment.

At the outset, let us note one thing: the Supreme Court has not refrained from going into this matter. That itself is a major landmark, in TDL's opinion. Whether or not the Aadhaar Act should have been passed as a Money Bill is a question that the SC has very much embraced and ruled upon. Kind of.

In paragraph 405, Justice Sikri states the following:

We would also like to observe at this stage that insofar as submission of the respondents about the justiciability of the decision of the Speaker of the Lok Sabha is concerned, we are unable to subscribe to such a contention. Judicial review would be admissible under certain circumstances having regard to the law laid down by this Court in various judgments...

The various judgments His Lordship refers to are the Raja Ram Pal decision (which we have discussed in our Feb-2017 ramble), along with the judgments in S. R. Bommai, Sub-Committee on Judicial Accountability, Ramdas Athawale and Kihoto Hollohan. To remind ourselves, it was held, for example in Raja Ram Pal, that if the impugned legislative procedure is illegal and unconstitutional, it would be open to be scrutinised in a court of law.

You can almost hear TDL rejoicing, can't you? The import of this ruling, after all, should be self-evident. No future government, and TDL is looking at those sly and cunning State governments that love to play fast and loose with the Constitution, will ever be able to slip through irrelevant Bills as Money Bills (examples include the Uttar Pradesh Lokayukta and Up-Lokayukta (Amendment) Act, 2012 and the Orissa Special Courts Act, 2016. Both were passed as Money Bills, though on the face of it, they clearly deal with anything but money matters. Both find special mention in Justice Sikri's judgment, since both were relied upon by the Respondents to contend that the Courts cannot go into these matters).

But wait. In paragraph 412, His Lordship goes on to state:

For all the aforesaid reasons, we are of the opinion that Bill was rightly introduced as Money Bill. Accordingly, it is not necessary for us to deal with the other contentions of the petitioners, namely, whether certification by the Speaker about the Bill being Money Bill is subject to judicial review or not...

Um. So which one is it? Did they or did they not go into this matter? They evidently didn't, though it is clear that they could, in future cases, go into the illegality of procedure, as stated in para 405 above. So why didn't they go into it in this matter? Because they were of the opinion that the Bill was rightly introduced as a Money Bill. So they did go into it then?

TDL hasn't perused Justice Chandrachud The Younger's dissent. It is a colourful one by all accounts, and he has held that the Bill was not a Money Bill. So he has gone into the matter as well. Perhaps TDL should just rest easy and be satisfied with that much. We all know how that will pan out...

Legal implications of Governor's Remission to Rajiv's assassins

As you can see, The Dormant Lawyer has been luxuriating in inactivity, and proud of it too. But as you are aware, long-suffering reader, every once in a while something does catch TDL's eye, causing him to emit a snort and reach for the old laptop. The Tamil Nadu cabinet's recommendation to Governor Purohit to remit the life imprisonment of all the seven convicts in Rajiv Gandhi's assassination case to time already served is one such snort-inducing laptop-reaching eye-catcher.

First of all, for the billions of non-lawyer readers of this prolific blog: remission is the reduction of the amount of punishment without changing the character of the punishment (as contrasted with the other powers granted in Art. 161 to the Governor, viz. reprieve - temporary suspension of sentence; respite - postponement of the execution of the sentence; and commutation - changing a punishment to one of a different sort than that originally proposed, e.g. rigorous imprisonment to simple imprisonment etc. These are all, of course, less efficacious than a pardon, which "not only removes the punishment but, in contemplation of law, places the offender in the same position as if he had never committed the offence.")

Now to the reason why this routine political matter has so stirred the normally unflappable, sloth-like TDL. 

It has been a while, but assuming my memory serves me, Art. 161 restricts the Governor's pardoning powers to matters to which the executive power of the State extends. Yes, here we are: "The Governor of a State shall have the power to grant... remissions of punishment.. of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends." Why is that relevant, you ask? Isn't the Indian Penal Code, under which the conspirators were tried, come under the "law and order" item of the State List, you contend?

It has been an even longer while, but assuming my memory doesn't deceive me, these individuals were tried under various other central Acts as well, including the The Passport Act, The Foreigners Act, The Wireless Telegraphy Act among others, and the Governor's power does not extend to any of these.

In fact, as recently as 27th April 2018, the Madras High Court, in a related matter, had held that the Governor could not consider the representation for premature release made by S. Nalini, the prime conspirator out of these seven, for that very same reason. To quote from the judgment delivered by K.K. Sasidharan, J., in that matter:

In view of the stand taken by the State Government that the conviction of the appellant was also for the offences under various Central enactments, and not only in respect of laws with reference to which the legislature of the State has power to make laws and in view of the pendency of the substantial Writ Petition before the Hon'ble Supreme Court, we are not in a position to direct the Governor to consider the representation by exercising the power under Article 161 of the Constitution.

(S. Nalini v. State of Tamil Nadu, W.A. No. 1619 of 2016)

It would seem that just on this legal ground, the matter should founder before the Governor. Not that that has caused the State government to pause.

If, somehow, the Governor is convinced he has the power in this matter to remit the sentences of each of these seven, it must be considered whether he is bound by the advice of his cabinet. Constitutional convention and Art. 165 would suggest so, and indeed, the Supreme Court has ruled on this issue on several occasions, the most recent being this obiter by a Constitution Bench:

It is also necessary to appreciate, that in the discharge of executive functions, the Governor of a State has the power to grant pardons, reprieves, respites or remissions of punishments or to suspend, remit or commute sentences (under Article 161). The Governor’s power under Article 161, is undisputedly exercised on the aid and advice of the Chief Minister and his Council of Ministers.

(Jagdish Singh Khehar, J., in Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh State Assembly & Others, 13th July 2016, JT 2016 (7) SC 64)

That, of course, leads us to President Pranab Mukherjee ignoring the recommendation of the Union Home Ministry back in January 2017, a matter that TDL has dealt with at length here followed by here and here. So let's quickly move past that..

We then come to the hypothetical scenario where the Governor of Tamil Nadu remits the sentence of the seven convicts. The Congress has come out in opposition to the proposal, so let us assume that there is indeed an interested party which would seek a remedy against the Governor's remission order. Who would that interested party be? Normally, the victim's next of kin takes up this cause. (One should hesitate to use "Normally" here, but unfortunately there have been far too many instances of the misuse of this gubernatorial power). But in this case, Sonia, Priyanka and Rahul have apparently "forgiven" the convicts. 

Now, in TDL's opinion, the said act of "forgiveness" cannot be legally binding, and will not preclude them from petitioning the court against the Governor's order. There is also the prospect that the act of forgiveness might have been as political a manoeuvre as the remission recommendation (go ahead, call TDL a cynic). Either way, in an enlightened, modern, democratic society built on the concept of the rule of law, victims and victim's kin have as much right to forgive as they have to avenge, viz. none. A crime is an offence committed against the society at large, and the assassination of a former as well as aspiring Prime Minister is an offence against the entire nation, and forgiveness by the PM's kin needn't enter the picture, whether it was heartfelt or vote-felt. 

Further, let's not forget the other victims of the suicide-bomber; apart from her and her target, 14 others lost their lives, and scores more were injured. They and their kin will have a cause of action, no matter what those who survive Rajiv choose to do.

Finally, should a remedy against the Governor's order be available at all? Isn't the Governor exercising a sovereign's prerogative after all? Fortunately, the law on this is settled as well, especially by the Supreme Court on 1st May 2000:

There cannot be any dispute with the proposition of law that the power of granting pardon under Article 161 is very wide and do[es] not contain any limitation as to the time on which and the occasion on which and the circumstances in which the said powers could be exercised. But the said power being a constitutional power conferred upon the Governor by the Constitution is amenable to judicial review on certain limited grounds. The Court, therefore, would be justified in interfering with an order passed by the Governor in exercise of power under Article 161 of the Constitution if the Governor is found to have exercised the power himself without being advised by the Government or if the Governor transgresses the jurisdiction in exercising the same or it is established that the Governor has passed the order without application of mind or the order in question is a mala fide one or the Governor has passed the order on some extraneous consideration. 

(G. B. Pattanaik, J., in Satpal v. State of Haryana, (2000) 5 SCC 170)

Let's look at those wise words again: the said power, being a constitutional power, is amenable to judicial review on certain limited grounds, including if the Governor has passed the order without application of mind, or on some extraneous consideration.

The extraneous consideration is rather obvious here. TDL submits that lack of application of mind is also in the offing. The petitioner(s) seeking to overturn the Governor's hypothetical remission order could contend that a blanket remission of all seven convicts would not have been ordered if application of mind had taken place. Surely each convict's case is different. Nalini, for example, had originally been sentenced to death by the trial court but her sentence had not been confirmed by the Supreme Court, after she had given birth to a daughter in prison. Her husband V. Sriharan alias Murugan and two others (T. Sudhendraraja alias Santhan and A. G. Perarivalan) also had their death sentences commuted to life imprisonment by the Supreme Court on grounds of inordinate delay, a decision much praised by the local media. 

His Excellency Banwarilal Purohit has a knotty problem on hand, and TDL is looking on in interest. More on this, fair reader, if it develops in the legal arena. Unfortunately it will probably proceed in the political sphere and dormancy will resume...

Spicy IP

My favourite Intellectual Property portal has recently launched a "Basic Case Law Series". The first post in there pretty much says it all about the purposes of venturing out on that endeavour, and until TDL finds a topic that piques his interest, this should preclude my followers from feeling deprived in the interim...

Bankruptcy Code passes its first brush with the SC with flying colours

The Supreme Court has recently been as busy with landmark decisions as our blog hasn't, rattling out a steady stream of must-read judgments. My billions of followers must have been wondering what my take is on the triple-talaq and right to privacy decisions, but I'm really not going to write anything about those two. TDL is frankly a touch embarrassed that it took this long for our judiciary to arrive at those conclusions, so let's just leave it at that.

The SC's latest significant decision, delivered yesterday (31st Aug) does deserve plenty of attention though. The court hasn't had an occasion to expound on the Insolvency and Bankruptcy Code, 2016 before this, and they have embraced the opportunity wholeheartedly. Justice Nariman is in fine form, delivering a judgment that will come in handy in all future cases and transactions dealing with the Code, and his commentary deserves our full attention. More of the same please!

Protection of We Men - II

Order withdrawn! Well, that was quick! Many, many thanks to Adv. Jayna Kothari.

Protection of We Men From Domestic Violence

I hate to say "I told you so". Actually, no, who am I kidding, I relish saying "I told you so". So I'm smug and tickled to remind you, my billions of followers, that we had spoken earlier in these here pages of the possibility of the extension of the Domestic Violence Act to victims of all sexes. Accordingly, the Karnataka High Court stepped up to the plate last week to instruct a Magistrate to take cognizance of a complaint filed by a Man under the Domestic Violence Act.

Back then we had 'mourned' the decline in status of the Great Indian Male Persons (GIMPs) - they were not the only ones anymore who were liable to be prosecuted under the provisions of the Protection of Women from Domestic Violence Act, 2005 after all, and this gave rise to the possibility that they would soon be able to complain of domestic violence themselves. We had wished though that it would be Parliament that would expand the scope of the Act rather than the Courts, a wish that is looking even more forlorn now. With Parliament too busy certifying non-Money Bills as Money Bills to look into the plight of the greatly enfeebled Indian Men, the judiciary has pulled the ball back into its, er, court.

More to follow, I'm sure. It'll be fascinating, for example, to see how they get past the definition of an aggrieved person in S. 2(a) of the Act, since only such persons, per the Act, can be victims of domestic violence...

The Dormant Blog...

...will reawaken soon.

Certification of Money Bills

The Specified Bank Notes (Cessation of Liabilities) Bill, 2017 was introduced in the Lok Sabha yesterday (7th Feb) as a Money Bill and was passed after a reasonably interesting debate headed by the Finance Minister. Nothing noteworthy here - the original 30th December ordinance needed to be placed before Parliament once it reconvened, and it was certified as a Money Bill as it falls comfortably within the restrictions imposed by Article 110 of the Constitution. 

Specifically, Art. 110(1)(b) states that a Bill shall be deemed a Money Bill if it contains (only) provisions dealing with "... the giving of any guarantee by the Government of India, or the amendment of the law with respect to any financial obligations undertaken by the Government of India", and since every currency note is a financial guarantee given by the Government, there can be very little opposition to this Bill's certification as a Money Bill. Not that no one has tried it, of course, but that particular piece is such a misguided polemic, it is best ignored anyway. (The very early use of the word "minions" ensures this, but there's even worse material within, such as the unashamedly incorrect interpretation of Rajya Sabha procedure regarding Rule 228, which deals with motions, not Bills).

There have been other instances though where the Government of the day has leaned upon the Speaker to certify Bills as Money Bills even though they contain provisions outside the list in Art. 110 that are not incidental to the pith and substance of the proposed legislation. The certification of the Bill that resulted in the Aadhaar (Targeted Delivery of Financial & Other Subsidies, Benefits & Services) Act, 2016 as a Money Bill is one such controversial endorsement; it has been challenged in the Supreme Court and is the subject of the present tirade.

The issues are quite clear: since the Aadhaar Act deals with streamlining the various subsidies that are charged to the Consolidated Fund of India, there is sufficient pretext for the Government to certify the Bill as an MB and pre-empt its blocking by the Rajya Sabha, where it was, and continues to be, in minority. The petition challenging the Act contends that much of the Bill deals with providing "a legislative framework for the establishment and maintenance of a central database of identity-related information of residents, and elaborates as to how such information may be collected, stored and used" - issues that are arguably outside the scope of a Money Bill. It must be noted that the petitioner, former Environment Minister Jairam Ramesh, has a thing or two going for him; this is not just a petition by a current Rajya Sabha MP who's feeling left out.

Attorney General Mukul Rohatgi appeared before the SC in May 2016 to oppose the petition relying on Article 122. Certifying a Money Bill is contended to be a power vested in an officer of the Parliament by this Constitution for the purpose of regulating the procedure or the conduct of business in Parliament, and is therefore, per Art. 122(2), not subject to the jurisdiction of any court. The Government's response also contends that Jairam Ramesh should not be allowed to approach the SC under Art. 32 since there is no fundamental rights violation. Mr. Ramesh obviously feels that the right to privacy is the issue here, what with all the biometric information being gathered by the government. All in all, exactly the kind of juicy constitutional issue that we like to see debated.

To be honest, whether or not Art. 32 should have been used should really be immaterial to the issue. The larger concern is whether certification of Money Bills should be governed by guidelines laid down by the Supreme Court, or whether the present state of affairs should continue, i.e. the provision in Art. 110(3) "If any question arises as to whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon should be final" should prevail. 

There is a third path available, as suggested by M. R. Madhavan, the President of PRS Legislative Research: the Lok Sabha create a consultative mechanism - two senior MPs, as is the case with the British House of Commons - to advise the Speaker regarding Money Bill certification. The British provision Mr. Madhavan refers to is contained in S. 1 of the Parliament Act, 1911, the last sentence in clause (3) of which reads as follows: "Before giving his certificate, the Speaker shall consult, if practicable, two members to be appointed from the Chairmen’s Panel at the beginning of each Session by the Committee of Selection." Perusal of a pamphlet regarding Money Bills produced for the Office of the Parliamentary Counsel (the Indian equivalent would be the Legislative Department within the Ministry of Law & Justice), reveals that the practice is to nominate one member from each of the two main parties to the "Chairmen's Panel" (now called "Panel of Chairs"). This doesn't seem like a feasible solution at all in our system, and is anyway at best a consultative mechanism which is to be employed "if practicable". Easy to guess what's going to happen there most of the time.

So we are left with the SC regulating parliamentary procedure, a prospect it has usually baulked at in the past; see for example the 2012 case of Mohd. Saeed Siddiqui v. State of Uttar Pradesh, wherein a three-judge bench led by Chief Justice Sathasivam refused to delve into the contention that the Uttar Pradesh Lokayukta and Up-Lokayukta (Amendment) Act, 2012, enacted by the U.P. Legislative Assembly without it passing through the U.P. Legislative Council, should never have been certified as a Money Bill. The Court held that "the question whether a Bill is a Money Bill or not can be raised only in the State Legislative Assembly by a member thereof when the Bill is pending and before it becomes an Act", and stated that the Court was barred from ruling on this by Article 212, the Constitutional provision regarding Procedure in the State Legislatures equivalent to Art. 122. This despite a 2007 Constitutional Bench judgment in Raja Ram Pal v. Speaker, Lok Sabha, which had held that proceedings which may be tainted on account of substantive or gross irregularity or unconstitutionality are not protected from judicial scrutiny... 

Art. 212(1) seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the legislative chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinised in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular.

One wishes that Their Three Honours in Saeed Siddiqui had at least considered whether or not the proceedings that resulted in the passage of that Uttar Pradesh Lokayukta Act as a Money Bill were "tainted by unconstitutionality" as they prima facie appear to be, especially since they were pretty much obliged to do so by a Five-Judge Bench...

There is surprisingly scarce jurisprudence on Money Bill certification, at least not much more that TDL could find apart from these few cases. There is a little bit more on Art. 122 and Art. 212, but the ratio from all of those largely is that the court will not interfere, hence the paucity of precedent on Art. 110, really. A pity, because theoretically, there really is nothing stopping a Speaker from certifying whatever s/he wants to as a Money Bill, provided the Lok Sabha doesn't get an opportunity to exercise its power under Art. 94(c). Some sort of discussion on this would really be welcome, and one wonders whether it will be carried out soon.

Now, the Aadhaar Act has suffered a veritable plethora of challenges, as tracked by this wonderful service provided by the Software Freedom Law Centre. The Jairam Ramesh petition, we are told, is scheduled for its next hearing on February 13th. Watch this space!

Mercy Petitions and Presidential Discretion - III

Well, at least I need not be worried about egg on my face anymore, since this article from The Wire showed up in search results today. And, we learn from it that this is actually the second time that the President (this President) has set aside advice given to him by the MHA regarding a mercy petition. The previous instance was the commutation of the death sentence awarded to Jeetendra (aka Jitu Singh Gehlot). Remember this commutation? Me neither. Mind boggling, the lack of footage for this.

Now, I don't want to go on some quixotic crusade, barking in the wind and all. But I really don't know which is more worrying - the fact that the President has begun to make a pattern out of disregarding the advice given to him by his Council of Ministers or the fact that no one seems to be concerned about it at all. Forget concern, The Wire article concludes that "Pranab Mukherjee’s quiet rejection of the government’s advice and the government’s tacit acquiescence to it have shown that it is indeed a proud moment in India’s presidency"! Egad! A proud moment in India's presidency? And what price India's Constitution?

The Indian Express' reporting on this commutation, last updated three days ago, mentions an interesting angle suggested by "sources" as to why the President has chosen this approach:

the President set aside the advice of the ministry as there were concerns about the decision unleashing a fresh round of caste skirmishes in Bihar and also because of the ‘inordinate delay’ by the state Governor in deciding on the mercy petitions

One is immediately reminded, by the first part of the above reasoning, of this commentary on the pardoning power:

The administration of justice through courts of law is part of the constitutional scheme to secure law and order and the protection of life, liberty and property. Under that scheme, it is for the judge to pronounce judgment and sentence, and it is for the executive to enforce them. Normally such enforcement presents no difficulty; but circumstances may arise where carrying out a sentence, or setting the machinery of justice in motion, might imperil the safety of the realm. Thus, if the enforcement of a sentence is likely to lead to bloodshed and revolution, the executive might well pause before exposing the State to such peril. 

[Constitutional Law of India, Vol. 2; H. M. Seervai, 4th Edition, pg. 2093, para. 18.112]

All well and good of course, but that Express article also tells us that the Bihar Governor, Ram Nath Kovind, had rejected the mercy pleas made to him by the four convicts under Art. 161 back in February 2016. And said rejection was indeed based on the advice of the Bihar Government, the particular Executive that would have to deal with any of the dreaded and apprehended renewed caste skirmishes. Now, Mr. Kovind has been a BJP MP in the Rajya Sabha, but the current Council of Ministers in Bihar advising him is drawn not from the BJP, but from the JD(U), RJD and the Congress. Also, since The Wire article focuses on the Dalit antecedents of three of the four, it should be noted that Mr. Kovind (Advocate Kovind, I should say) has been the President of the BJP Dalit Morcha as well as of the All India Koli Samaj. 

Setting aside the politics and returning to the constitutional issues, and the second part of the reasoning mentioned in the Express story: the inordinate delay (by the State Governor) in deciding the mercy petitions. That there has been tremendous delay is undisputed. The offences were committed in 1992 and the death sentence was awarded in 2001 and finally upheld by the SC in 2002. Over 14 years spent on death row is simply unacceptable. 

In its reporting on this, the Hindustan Times informs us that the mercy petitions were forwarded to the President's Secretariat on July 7th 2004. "However, the mercy petitions neither reached the Home Ministry nor the President's Secretariat. It was only after the intervention of the NHRC that these were processed after 12 years." Bizarre indeed, and sufficient reason, even in the otherwise bloodthirsty TDL's opinion, for commuting the sentence.

The Wire piece also uses the 'inordinate delay' line of reasoning, quoting the Shatrughan Chauhan case last seen in the previous post below, wherein a three-judge bench headed by Chief Justice Sathasivam held that undue delay in rejecting mercy petition amounts to torture and causes physical and psychological agony. The Court ruled that

if there is undue, unexplained and inordinate delay in execution due to pendency of mercy petitions or the executive as well as the constitutional authorities have failed to take note of/consider the relevant aspects, this Court is well within its powers under Article 32 to hear the grievance of the convict and commute the death sentence into life imprisonment on this ground alone.

That's right: this Court is well within its powers to commute the death sentence. Not the President, against the advice of his Ministers. The government should have advised the President appropriately, in light of Shatrughan Chauhan. A more sound procedure: the convicts could have approached the Supreme Court citing Shatrughan Chauhan and have had their sentences commuted, reinforcing the precedent and laying down the guidelines forever. Were none of the many human rights bodies and anti-death penalty organisations (such as the PUDR, so instrumental in Shatrughan Chauhan) in contact with the four, advising them as to their rights? Did we really need to weaken the Constitution to uphold Shatrughan Chauhan?

Another possible additional reason for President Mukherjee's activism with regards to mercy petitions that has been put forward is that his five-year term expires in July and he would understandably wish to depart leaving behind no unfinished business. The President has indeed worked to ensure that he leaves a clean slate for his successor as far as mercy petitions are concerned. It can only be hoped though that the 14th occupant of the chair will regard these incidents as aberrations rather than precedents.