Anujay Shrivastava*
I. Introduction
The Supreme Court of India in Association for Democratic Reforms v Union of India (2024) (‘EBS Judgment’) unanimously struck down the Electoral Bonds Scheme introduced by the Parliament as unconstitutional, with Justice DY Chandrachud penning the majority judgment and Justice Sanjeev Khanna delivering a separate but concurring opinion. Much ink has been spilled about the EBS Judgment and its implications (see here, here, here, here, here and here). Yet, a crucial aspect of the EBS Judgment relating to the doctrine of presumption of constitutionality, has escaped the eyes of the legal fraternity.
In this post, I shall attempt to dissect the Supreme Court’s EBS Judgment with particular reference to the Court’s observations and holdings on the doctrine of ‘presumption of constitutionality’ of statutes. I argue that the majority judgment authored by Justice Chandrachud is doctrinally and pragmatically flawed, setting a dangerous precedent which could have negative implications for any pending and future challenges to electoral statutes. I also argue that Justice Khanna adopted the doctrinally correct approach to dealing with the challenges advanced against the constitutional validity of the electoral statutes challenged. Prior to exploring the EBS Judgment, I shall briefly describe what the doctrine of presumption of constitutionality entails.
II. Doctrine of Presumption of Constitutionality: A Primer
The origins of this doctrine lie in US Federal Supreme Court’s precedents, with a famous instantiation being the Young (1931) case where Justice Brandeis opined that, “The presumption of constitutionality must prevail in the absence of some factual foundation of record for overthrowing the statute”. This doctrine has been also adopted by the Privy Council in Jobe (1984), where it was held: “It is but a decent respect to the wisdom, integrity, and patriotism of the legislative body, by which any law is passed, to presume in favour of its validity, until its violation of the Constitution is proved beyond a reasonable doubt.”
This doctrine was adopted by the Indian Supreme Court in Charanjit Lal Chaudhary (1951) by placing reliance on US Federal Supreme Court precedents to note that, “the presumption is in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a transgression of constitutional principles”. The presumption of constitutionality is based on the notion that the Legislature must have determined that a law was constitutionally valid before enacting it and that it did not intend to make laws that are ultra vires the Constitution.
Noticeably, this doctrine is a judicial innovation which does not source itself from the Indian Constitution, including Article 13 which defines ‘law’ and provides that laws inconsistent with fundamental rights in Part III of the Constitution shall be void to the extent of their inconsistency. This doctrine was further developed by the Indian Supreme Court in Kedar Nath Singh (1962), where it was held that, “It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favor of the former construction.”
This entails that where the existence of differing interpretations of a statute concerning its constitutionality is demonstrated, the interpretation that construes the statute as being constitutionally valid should find favour with the Courts. Put differently, the statute is cloaked with the presumption of constitutional validity.
In Dharam Dutt (2004), also relied upon by Justice Chandrachud in the EBS Judgment (¶44), the Indian Supreme Court watered down the doctrine of presumption of constitutionality, holding that there is a continuous shifting process in the burden of proof while applying the doctrine. Essentially, where prima facie evidence of the unconstitutionality of a statute is visible on the Court’s assessment, the burden heavily shifts on the State to assert the constitutional validity of the law challenged (meaning that no presumption of constitutional validity is cast over the statute). If the State (then) succeeds in grounding the constitutional validity of a statute, this would again shift the burden onto the one who is challenging the constitutionality of the law (therefore reviving the cloak of the presumption of constitutional validity of the law).
III. Electoral Bonds Judgment and the Presumption of Constitutionality
A. Chief Justice Chandrachud’s Approach
While authoring the majority judgment, Justice Chandrachud rejected an argument advanced by the petitioners: that the principle of presumption of constitutionality should not be extended to electoral statutes as they “alter the ground rules of the electoral process” (¶s 31(d), 43). Justice Chandrachud has expressly extended the doctrine of presumption of constitutionality to electoral statutes (¶45). He holds that:
"Courts cannot carve out an exception to the evidentiary principle which is available to the legislature based on the democratic legitimacy which it enjoys. In the challenge to electoral law, like all legislation, the petitioners would have to prima facie prove that the law infringes fundamental rights or constitutional provisions, upon which the onus would shift to the State to justify the infringement."
Consequently, Justice Chandrachud concludes that the Electoral Bonds Scheme is not prima facie violative of fundamental rights or constitutional provisions (¶45) and therefore that the presumption of constitutionality extends to it. This reasoning understandably creates uneasiness, especially since Justice Chandrachud himself goes on to conclude that the Electoral Bonds Scheme is antithetical to democratic accountability and scrutiny (¶210), and violative of the principle of free and fair elections (¶216) on its face – going forward to use these findings to strike down the scheme as manifestly arbitrary and therefore violative of Article 14 of the Indian Constitution (¶217).
Underlying Justice Chandrachud’s findings is his erroneous approach of presuming that the corporate donors have a claim to invoke the fundamental right to privacy – which competes with the petitioner’s fundamental right to information (or ‘right to know’), and thereafter build on this wrongly-conceived presumption to reach the balancing stage and make application of the double proportionality review. Justice Chandrachud thus incorrectly posits for a possibility that, assuming that the corporate donors have a claim to the fundamental right to privacy, the electoral statute could potentially be upheld on balance by promoting the privacy rights over the fundamental right to information enshrined in the Constitution, which would be a sound reason to accord presumption of constitutionality to the electoral bonds scheme in favour of the State.
B. Justice Khanna’s Approach
Justice Khanna had a contrasting take on the presumption of constitutionality doctrine in his separate opinion. Interestingly, relying on a Canadian Supreme Court precedent in Oakes (1986) while invoking the principles of proportionality review, Justice Khanna has held that, “The doctrine of presumption of constitutionality has its limitations when we apply the test of proportionality” (Khanna J, ¶18). Underlying Justice Khanna’s analysis is his subsequent observation that: “It will be rather difficult for a public (or even a private) limited company to claim a violation of privacy as its affairs have to be open to the shareholders and the public who are interacting with the body corporate/company” (Khanna J, ¶73). While there are no further references to the presumption of constitutionality in Justice Khanna’s separate judgment, it is visible that he puts a strong burden on the State to establish the constitutional validity of the Electoral Bonds Scheme and does not extend presumption of constitutionality to the electoral statutes under challenge.
Justice Khanna thus outrightly rejects the conceivability of any valid claim on part of corporations to advance the existence of a fundamental right to privacy and therefore, assert the (potential) constitutional validity of the electoral statutes on ground of promoting this right by overriding the allegedly competing fundamental right to information. Consequently, Justice Khanna also finds no reason to imbue the electoral bonds scheme with the presumption of constitutionality. Justice Khanna simultaneously seems to implicitly reject the notion that the State could advance such a claim to shield the electoral statutes with presumption of constitutionality. This marks a significant, yet unnoticed, disagreement between Justice Chandrachud and Justice Khanna. In my opinion, Justice Khanna adopts the correct approach while dealing with the constitutionality challenges to the Electoral Bonds Scheme.
IV. Doctrinal Flaws and Ignorance
There are two major doctrinal flaws with the judgment authored by Justice Chandrachud: first, that it ignores earlier precedents highlighting that courts have often discarded the presumption of constitutionality while examining the constitutionality of a statute; and second, as per earlier precedents, it is not necessary for a litigant to bear the burden to prima facie demonstrate that a statute is unconstitutional, particularly where a challenge on Article 14 is involved.
It is important to highlight that Justice Chandrachud in the EBS Judgment does not refer to a key observation made by Justice Nariman in his concurring judgment in Navtej Singh Johar (2018) (¶s 360-361). In Navtej, Justice Nariman expressly rejects the notion that: “[…] pre-constitutional laws, which have been adopted by Parliament and used with or without amendment, being manifestations of the will of the people of India through Parliament, are presumed to be constitutional”. Justice Nariman concomitantly rejects extending the presumption of constitutionality to Section 377 of the Indian Penal Code, 1860, which was a legislative provision preceding the enactment of the Indian Constitution that criminalised unnatural carnal intercourse against the order of nature, and was used to criminalise consensual homosexual relations and sexual activities between adults—prior to Indian Supreme Court unanimously reading it down in Navtej (¶s 362-363).
This instantiation shows that the principle of presumption of constitutionality is neither absolute nor does it necessitate that a litigant challenging the constitutionality of a statute should prima facie demonstrate that a statute is unconstitutional prior to a Constitutional Court’s shifting the evidentiary burden on the State. Thus, Justice Chandrachud’s approach of extending presumption of constitutionality to electoral statutes is doctrinally flawed. The judgment in Navtej could have bolstered the position on presumption of constitutionality in Justice Khanna’s judgment, had he referred to it. Further, given that the electoral bonds scheme is created by laws that were enacted after the Constitution commenced, this a priori entails that presumption of constitutionality should not be extended to the scheme, especially in light of Justice Khanna’s observation that donors cannot claim a fundamental right to privacy.
Notably, Justice Chandrachud’s judgment also ignores an earlier precedent of the Indian Supreme Court in Anuj Garg (2008), was cited with approval in Navtej and Indian Young Lawyer Association v State of Kerala (2019), where it was held that, “[…] it is trite that when the validity of a legislation is tested on the anvil of equality clauses contained in Articles 14 and 15, the burden therefore would be on the State.” In light of the precedent in Anuj Garg and the challenge to Electoral Bonds Scheme vis-à-vis Article 14 in the EBS Judgment, it would have been prudent to shift the burden of proof upon the State to establish that the electoral statute is constitutionally valid—an approach clearly not adopted by Justice Chandrachud. Since Justice Chandrachud ultimately reached a finding that the Electoral Bonds Scheme was against democratic accountability and scrutiny as well as violative of free and fair elections, he could have reached this conclusion at the stage of prima facie review itself—even if such review is not required as Navtej indicates. What appears evident is that a prima facie evaluation of the constitutionality of the electoral statutes was not properly undertaken by the majority.
V. Pragmatic Difficulties in the Majority’s Approach
There are further pragmatic difficulties in accepting Justice Chandrachud’s holding that the doctrine of presumption of constitutionality extends to all electoral statutes as it does to other legislations. For instance, if a similar rationale is applied to statutes that entirely remove judicial review, affect judicial independence or appointments, or nonchalantly extend capital punishment to any crime, it is unlikely that the Indian Supreme Court would ever extend the presumption of constitutionality to such classes of statutes. It is concomitantly important to acknowledge that much like judicial independence, independence of the election commission from the executive organ and promoting free and fair elections (such as by introducing information about corporate donations to political parties in the public domain to enable informed voting) is equally significant at a time when scholars such as Bhat and Pandey have argued the Election Commission of India to be a fourth pillar of the State.
This may be demonstrated by reference to examples. First, it is beneficial to refer to a Constitution Bench decision by the Indian Supreme Court in Supreme Court Advocates-on-Record Association (2016) (‘Fourth Judges’ Case’). In the Fourth Judges’ Case, inter alia, the validity of newly enacted constitutional amendments and derived statutory laws relating to judicial appointments by a National Judicial Appointment Commission was challenged. A majority of 4:1 Judges (Justice Chelameswar dissenting) seemed to have reached an ex facie view that the constitutional amendment and the derived ‘statutes’ (Justice Khehar only, ¶381)[1] challenged as unconstitutional were violative of ‘judicial independence’ which was a part of the basic structure of the Indian Constitution. In fact, it was held by Justice AK Goel that: “Plea of presumption of constitutionality can be of no avail where an established basic feature of the Constitution is sought to be damaged.” This instantiation shows that the doctrine of presumption of constitutionality is not universally applied to all statutes or constitutional amendments.
Second, a similar example is the UK Supreme Court’s decision in Privacy International (2019) (¶99-100), where Lord Carnwarth did not extend any presumption of constitutionality to the judicial review ouster clause in section 2 of the Judicial Review and Courts Act, 2022 (UK) and ultimately struck it down as being violative of common law principle of legality. In Privacy International, Lord Carnwarth also categorically held that there is a strong presumption “against ousting the supervisory role of the High Court over other adjudicative bodies, even those established by Parliament with apparently equivalent status and powers to those of the High Court” (¶ 99).
In India, the Supreme Court of India similarly in a Constitution Bench decision in Sampath Kumar (1987) held that: “Judicial review is a basic and essential feature of the Constitution and no law passed by Parliament in exercise of its constituent power can abrogate it or take it away. It is, however, within the competence of Parliament to amend the Constitution so as to substitute in place of the High Court another alternative institutional mechanism or arrangement for judicial review without in any way violating the basic structure doctrine, provided it is no less efficacious than the High Court”. Later, the Supreme Court in a Seven Judge Constitution Bench decision in L Chandra Kumar (1997) partly altered this position, holding that the jurisdiction of High Courts and the Supreme Court itself cannot be entirely ousted by the Parliament as to do so would infringe upon independence of the judiciary – a basic feature of the Constitution. Per L Chandra Kumar, this would primarily apply in two situations: first, where a legislation attempts to preclude writ jurisdiction of courts under Article 226 (High Courts) or Article 32 (Supreme Court); second, reiterating the position in Sampath Kumar, where it appears that the powers of an administrative tribunal are less efficacious than the High Courts.
Hence, it is difficult to pragmatically accept why the Supreme Court of India should feel at ease in extending a blanket presumption of constitutionality to all electoral statutes challenged as being unconstitutional (including the statutes governing the EBS Scheme, which were struck down as against principles of free and fair elections, and democratic accountability and scrutiny—recognised as basic features of the Indian Constitution). This is particularly significant, considering that the Supreme Court of India and the Supreme Court of the United Kingdom have previously categorically refused to extend presumption of constitutionality to statutes affecting principles such as judicial independence, judicial appointments and effectuating ouster of judicial review.
VI. Conclusion
In this post, I have attempted to highlight the doctrinal flaws and ignorance of earlier precedents in the majority opinion authored by Justice Chandrachud in the EBS Judgment as it relates to the doctrine of presumption of constitutionality vis-à-vis electoral statutes. I have concomitantly attempted to illustrate pragmatic difficulties in adopting the Court’s approach universally to all electoral statutory enactments.
The negative implication of the majority opinion authored by Justice Chandrachud is important for pending and future litigations challenging the constitutional validity of electoral statutes. In light of the majority’s approach, the doctrine of presumption of constitutionality could be casually adopted by Constitutional Courts while reviewing challenges to electoral statutes, thereby making it difficult for petitioners to challenge such statutes even where they clearly transgress principles such as democratic accountability and scrutiny, free and fair elections, and non-arbitrariness (or ‘rule of law’)—all of which are important principles that also constitute a part of the basic structure of the Constitution after the Raj Narain (1975) case.
For instance, subsequent to the adoption of a new electoral legislation[2] governing the appointments of the Chief Election Commissioner (‘CEC’) and Election Commission members – which attempts to legislatively overturn a unanimous judgment by a Constitution Bench in Anoop Baranwal (2023), the pending challenge against their constitutionality could witness the Indian Supreme Court invoking the doctrine of presumption of constitutionality to cast a heavy burden on the petitioners to prima facie demonstrate unconstitutionality of the legislation, even though the challenged legislation attempts to overturn an earlier precedent of the Court.
I hope that the Supreme Court recognises the flaws with the casting of a blanket presumption of constitutionality over electoral statutes by the majority in the EBS Judgment, and carves a path that has greater doctrinal and pragmatical desirability. To conclude, I would reiterate that Justice Khanna’s contrasting approach in dealing with the challenge to statutes governing the Electoral Bonds Scheme and his acknowledgement of the limitations on the principles of presumption of constitutionality deserves appreciation.
* Anujay Shrivastava [anujay.shrivastava@jgu.edu.in] is a Lecturer, Assistant Dean (Research), and Research Fellow, Centre for Constitutional Law Studies (CCLS) at Jindal Global Law School, O.P. Jindal Global University, India. He is grateful to Professor Sandeep Suresh and Professor (Dr.) Sarbani Sen for their inputs in CCLS’s Panel Discussion on the Electoral Bonds Judgment, along with the inputs received from the NLSIR Online Team, which helped shape this post. Views are strictly personal and may not be attributed to author’s affiliated institutions.
[1] Notably, Justice Khehar was the only judge to apply the basic structure doctrine to the ordinary laws under challenge, while the other judges in the majority only used the basic structure doctrine to review the constitutional amendments challenged as unconstitutional.
[2] The Chief Election Commissioner and other Election Commissioners (Appointment Conditions of Service and Terms of Office) Act, 2023 (India). This legislation does not include the Chief Justice of India from the Appointing Panel for CEC and Election Commission members – which is contrary to the Indian Supreme Court in Baranwal, as it had proposed and directed (as interim measure prior to adoption of an electoral statute) the Chief Justice of India’s inclusion in the foregoing Panel. The legislation also gives the incumbent government at the Union level a 2:1 majority in the Panel by including only the Prime Minister of India, a Cabinet Minister of the Union Government (who reports to the Prime Minister) and the Leader of Opposition in Parliament.
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