Notes from a Foreign Field: The Supreme Court of Belize Strikes Down its Anti-LGBT Law

Two days ago, in Caleb Oroczo vs The Attorney-General of Belize, the Supreme Court of Belize struck down Section 53 of the country’s Criminal Code, which penalised “carnal intercourse against the order of nature.” The Supreme Court found that Section 53 violated the claimant’s constitutional rights to dignity, privacy, and non-discrimination. The judgment stands out for the brevity of its reasoning, its close attention to evidence of LGBT discrimination, and its humanity, three qualities which, experience has taught us, cannot be taken for granted in cases of this kind.

The Court began its scrutiny of the Section by a quick foray into the history of anti-sodomy laws. In paragraph 9, it observes that the antecedent of sodomy laws in the Caribbean was Section 377 of the colonial Indian Penal Code, brought into force in 1860. The Belize Criminal Code of 1888 penalised “unnatural carnal knowledge”, but only if it was non-consensual. By an amendment of 1944, the requirement of non-consent was removed, and the Section was given its present form.

The Court then went into the question of the interpretation of Section 53. Before the Supreme Court, a number of Churches had also impleaded themselves in support of the Section. These Churches argued that Section 53 did not only apply to homosexuals, but also covered anal sex as well as oral sex between men and women. On a consideration of the evidence, however, the Court found that Section 53 had been primarily used to target male homosexuals, and therefore, despite its ostensibly gender-neutral language, was unevenly applied to men.

The Claimant before the Court was a homosexual man. From paragraphs 27 to 33, the Court considered his evidence, extracting two paragraphs from it to demonstrate “constant harassment, mocking and stigmatisation”, as well as taking note of the fact that he had been subjected to abuse and threats of violence on multiple occasions. The Court also recorded his evidence to the effect that members of the LGBT community often shun tests for HIV/AIDS because of the stigma involved, as well as the threat of criminal prosecution. This evidence was buttressed by formal reports that had reached the same conclusion, as well as UNIBAM, an NGO representing LGBT persons.

After considering the Claimant’s personal evidence, the Court then took notice of expert reports by psychiatrists, which pointed out that homosexuality is not a mental disorder (it was removed from the American Psychiatric Association’s list of mental disorders), and that “conversion therapy” was damaging and dangerous. It also took notice of a report filed by Executive Director of the Belize Family Life Association, which showed that criminalisation had the effect of driving LGBT people underground, and was consequently a threat to their health (paragraph 38). This was corroborated by two other expert reports.

With the help of this evidence, the Court was able to find that the Claimant had locus standi to pursue this case, since by engaging in same-sex intercourse, he ran the “perpetual risk” of being charged and prosecuted under Section 53. The Court also swiftly disposed off another preliminary objection, based upon the separation of powers. Rejecting the argument that this was an issue best left to the Parliament, the Court clarified that “the Supreme Court is the designated guardian of the rights conferred under the Constitution. It cannot shirk from such responsibility by by asserting that any change to legislation is a matter best left to the legislature. To do so would be to act in defiance of the mandate of the Constitution itself.” (paragraph 53) The Court also addressed the issue of strong religious sentiments against homosexuality, noting that “[while] the respect and influence of the Churches in Belize cannot be ignored… Belize is a secular state that with a written Constitution that provides for the protection of fundamental human rights and freedoms.” (paragraph 56)

With these preliminary objections out of the way, the Court proceeded to consider the merits of the argument. Starting with the right to dignity, it adopted the language of the Canadian Supreme Court in understanding dignity as being about “self-respect” and “self-worth” (paragraph 63). Evidence of stigmatisation had already been placed on record earlier, and in light of this, the Court found that Section 53 violated the claimant’s constitutional right to dignity (paragraph 67). The Court made a similar finding with respect to the right to privacy which, it held “emanated” from the right to dignity (paragraph 68). Under the Constitution of Belize, the right to privacy could be curtailed under certain circumstances, one of which was public morality. The State argued that Section 53 legitimately curtailed the right to privacy on the basis of public morality. However, this argument was rejected by the Court, on the basis that it was “a bald assertion not supported by any evidence.” (paragraph 69) The Churches also raised “public health” as a ground, citing a study about the Belize Central Prison that had found that men having sex with men (MSM) led to a higher risk of HIV-AIDS. However, on considering the balance of evidence, the Court held that there was enough professional scientific material on record (referred to above) that demonstrated the opposite. It therefore rejected the public health argument on grounds of evidence as well (paragraph 73). Finally, the Court considered the public morality argument made by the Churches, who claimed, in detailed affidavits, that homosexuality went against the moral sentiments of the majority of the people of Belize. In paragraph 81, the Court rejected this argument in the following terms:

There can be no doubt that the Reverend gentlemen deposed to views that that they sincerely and conscientiously hold, and that are representative of a majority of the Christian community and perhaps of the population of Belize. However, from the perspective of legal principle, the Court cannot act upon prevailing majority views or what is popularly accepted as moral. The evidence may be supportive but this does not satisfy the justification of public morality. There must be demonstrated that some harm will be caused should the proscribed conduct be rendered unregulated. No evidence has been presented as to the real likelihood of such harm. The duty of the Court is to apply the provisions of the Constitution.”

In other words, the Court rejected the notion of a free-standing, pure “moral harm”, contained solely in hurt feelings or outraged sentiments. Mere moral outrage could not be a sufficient ground for restricting basic rights, unless an accompanying harm could be demonstrated. Although the Court did not elaborate upon what it understood the term “harm” to mean, it was clear about what it did not mean.

Lastly, the Court held that Section 53 violated the right to non-discrimination on grounds of sex. Citing the famous Toonen vs Australia, that had interpreted “sex” in the non-discrimination clause of the ICCPR to include “sexual orientation”. The Court held that since Belize had ratified the ICCPR, it was bound by the authoritative interpretation of that instrument by the UN Human Rights Committee (paragraph 94). Consequently, “sex” under the non-discrimination clause of the Belize Constitution included “sexual orientation”, and Section 53 was therefore unconstitutional. As I have argued before, there are two ways of understanding this contention: one (which I find unconvincing) is that sexual orientation is an “analogous” ground to “sex”, and is therefore read into a non-discrimination clause as a separate right altogether. This seems to me to be textually insupportable. However, the other way of understanding this is that discrimination on the basis of sexual orientation has its origins in sex: it is precisely the non-conformity to sexual roles that open up LGBT persons to legal and social persecution. Consequently (as has been argued by certain American scholars), discrimination on grounds of sexual orientation should be considered as part and parcel of sexual discrimination, since both are caused by the same set of underlying stereotypes.

Having found multiple constitutional violations, the Court then finished by reading down Section 53, stipulating that “this section shall not apply to consensual sexual acts between adults in private” (paragraph 99).

At 38 pages, the judgment of the Supreme Court of Belize is a model of crisp, lucid, and tightly-reasoned legal prose. There are a few salient features that I would like to quickly recap (and attentive readers will note that the structure of reasoning is virtually a mirror image of the judgments of other constitutional courts that have upheld sodomy laws as constitutional):

  • Although the language of the section is ostensibly gender neutral, the Court holds that it admits of uneven application, and has indeed been unequally applied; consequently, it gives rise to a constitutional cause of action
  • The Court rejects the argument that this is a matter best considered by Parliament, reasoning that its constitutional mandate is to uphold fundamental rights
  • The Court rejects justifications based purely on grounds of religion, on the basis that the Constitution commits the nation of Belize to being a secular polity. In other words, religious justifications for curtailing fundamental rights do not count as constitutionally admissible reasons
  • After the claimant has demonstrated prima facie infringement of his rights, the Court places the burden of justifying the curtailment upon the State. It engages with the evidence on record (especially with respect to the medical evidence), and finds that on its own terms, the State has failed to discharge the evidentiary burden upon it
  • In considering the public morality argument, the Court refuses to constitutionalise hurt moral sentiments, and insists upon demonstration of actual harm
  • The Court engages throughout with comparative constitutional jurisprudence in order to determine the meanings of fraught terms such as “dignity”.

In terms of legal clarity, intellectual rigour, and of course, in terms of humaneness, sensitivity, and empathy in dealing with the so-called rights of the minuscule minority, one probably could not ask for more. The Supreme Court of Belize has joined numerous other judiciaries in upholding one of the most basic human rights that there is. One can only hope that other constitutional courts will eventually follow it.

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Guest Post: On the Supreme Court’s Encounter Killings Judgment

(In this post, Anupama Kumar, a practicing advocate based in Chennai, raises some questions about the recent Supreme Court order on alleged extra-judicial killings in the state of Manipur)

Recently, the Supreme Court passed an order in Extra Judicial Execution Victim Families Association vs Union of India [“EEVFAM”]. The petitioners, the Extra-judicial Execution Victims’ Families Association of Manipur, had compiled a list of “encounter killings” that had been carried out by the armed forces in Manipur. The short point before the Court related to the establishment of a Special Investigation Team to inquire into these killings. In this order, the Court made no observations on the formation of this SIT, but concluded that the petitioners did indeed have a “right to know” the truth under Article 21. As a result, while an inquiry can be carried out into the killings, the question of who is to carry it out remains open. The Court then examined the question of whether the Army enjoyed impunity for encounter killings under the AFSPA. I submit that this analysis of the powers of the Army under AFSPA remains unsatisfactory, and I explore this in greater detail below.

Lokur J began by analysing the scope of Entry I, List II (“public order”) in relation to Entry 2A, List I (“Deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of the civil power; powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment.”). He reasoned that the two entries used the term “internal disturbance,” which is also found in Article 355 of the Constitution. Lokur J noted that, while the term “armed rebellion” had been substituted for “internal disturbance” in Article 352, it continued to be used in Article 355. He further noted that the implication of this has been examined in Naga People’s Movement for Human Rights by four judges as follows:

“The expression `internal disturbance’ has a wider connotation than `armed rebellion’ in the sense that `armed rebellion’ is likely to pose a threat to the security of the county or a part thereof, while `internal disturbance’, thought serious in nature, would not pose a threat to the security of the country or a part thereof. The intention underlying the substitution of the word `internal disturbance’ by the word `armed rebellion’ in Article 352 is to limit the invocation of the emergency powers under Article 352 only to more serious situations where there is a threat to the security of the country or a part thereof on account of war or external aggression or armed rebellion and to exclude the invocation of emergency powers in situations of internal disturbance which are of lesser gravity . This has been done because a proclamation of emergency under Article 352 has serious implications having effect on the executive as well as the legislative powers of the States as well as the Union.

The provisions of the Central Act have been enacted to enable the Central Government to discharge the obligation imposed on it under Article 355 of the Constitution and to prevent the situation arising due to internal disturbance assuming such seriousness as to require invoking the drastic provisions of Article 356 of the Constitution. The Central Act does not confer of the Union the executive and legislative powers of the States in respect of which a declaration has been made under Section 3. It only enables the personnel of armed forces of the Union to exercise the power conferred under Section 4 in the event of a notification declaring an area to be a disturbed area being issued under Section 3. Having regard to the powers that are conferred under Section 4, we are unable to appreciate how the enactment of the Central Act can be equated with the exercise of the power under Article 356 of the Constitution.”

The Court, in that case, then went on to conclude that the Armed Forces Special Powers Act was constitutional, to the extent  that the Union forces were to be used in aid of civil power.

The expression “internal disturbance” was then considered by three judges of the Supreme Court in Sarbananda Sonowal, which arrived at a curious test for what might amount to “external aggression.”  The Court in that case considered the constitutionality of the IMDT Act, and the alleged failure of the Union to stop large scale migration into Assam from Bangladesh. In concluding that even non-violent migration could amount to “external aggression.” In doing so, the court did not rely on the text of the Constitution, but on a speech made by Dr. Nagendra Singh at the United Nations, with respect to the influx of refugees into India from erstwhile East Pakistan.

Admittedly, the Court in EEVFAM was bound by decisions of higher benches in both Sarbananda Sonowal and Naga People’s Movement for Human Rights. However, these decisions raise the larger issue of the fact that there is no clarity with respect to when Union forces can be deployed, and what the role of the Union is in such cases.

A similar confusion exists with respect to the scope of the word “war”. The Court concluded that there was no material on record to show that the situation in Manipur had escalated into a war, and that in any case, there had been no declaration by the Union to this effect. (Paras 110-118). In doing so, the Court distinguished the case at hand from Navjot Sandhu, on the grounds that “war” required the presence of an animus to strike against the sovereignty of the Indian State. On fact, the attack in question was to the Parliament, i.e., to the very heart of Indian democracy. In sum:

Therefore, animus to wage a war or any other similar activity is important before a non-conventional war or war-like situation can be said to exist. Every act of violence, even though it may be directed against the armed forces or public officials would not lead to an inference that a war is going on or that war-like conditions are prevailing. Similarly, sporadic but organized killings by militants and ambushes would not lead to a conclusion of the existence of a war or war-like conditions. Were such a blanket proposition accepted, it would reflect poorly on our armed forces that they are unable to effectively tackle a war-like situation for the last almost six decades. It would also reflect poorly on the Union of India that it is unable to resort to available constitutional provisions and measures to bring a war-like situation under control for almost six decades. We cannot be expected to cast or even countenance any such aspersions on our armed forces or the Union of India. All that we can and do say is that in such a situation, our Constitution recognises only an internal disturbance, which is what the situation in Manipur is and that ought to be dealt with by the civil administration with the services of the armed forces that are available in aid of the civil power.

 Such reasoning raises several concerns. First, the decision in Navjot Sandhu  did not refer to the term “war” in Article 352, or anywhere in the Constitution, but to s. 121 of the IPC, i.e., waging war against the State. Second, in any event, the scope of s. 121 was also discussed in Kasab, where the attack was on privately owned structures in India. In that case, the Court found that the ingredients of s. 121 had been satisfied, as the attack was “against Indians,” “by foreigners”  and with the intention of creating “internal strife and insurgency.” However, in this case, Lokur J had noted that there had been insurgency in Manipur, and that the perpetrators were plainly terrorists. It therefore appears that, third, the Court’s conclusion that this was not a situation of “war” or “armed rebellion” was arrived at simply because any other result would be unpalatable.

It is noted that the question of when Central forces may be deployed within India has been examined by both the Sarkaria and Puncchi commissions on centre-state relations. In both cases, the Commissions concluded that the deployment of the Union forces should only take place in the rarest of cases, and that the deployment should be for the shortest period possible. The Puncchi Commission went as far as to suggest an amendment to Article 355, in order to clarify the proper scope of the powers of the Union. However, until these steps are taking, several questions continue to be left open. What is the scope of Entry 2A, List I, and to what extent can the Centre act independently of the States? When can the Union classify a situation as being serious enough to require classification as not simply “public disorder,” but “internal disturbance” or indeed, “armed rebellion,” of a nature that would require the invocation of Emergency under Article 352? How should the government now classify movements such as the Naxalite movement in Central India, or the movement for independence of Kashmir, and which of these would call for the deployment of Central forces not “in aid of civil power.”? And where the civil power is unable, or unwilling to restore order – as noted by the Court here – what is the correct scope of the powers of the Union?

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Words, words, words

‘Words have a limited range of meaning; and no interpretation that goes beyond that range is permissible.’ 

Words can never attain precision since they are as intrinsically dynamic as they are inexact. T. S. Eliot in Burnt Norton eloquently stated: . . . Words strain,/ Crack and sometimes break, under the burden,/ Under the tension, slip, slide, perish,/ Decay with imprecision, will not stay in place,/ Will not stay still . . . .’

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ICLP Turns Three :: Thoughts on Legal Scholarship and Access to Courts

The Indian Constitutional Law and Philosophy blog turns three years old today. In its first year, I wrote this blog from the splendid isolation of a foreign country. Over the last two years, however, I have written it from the vantage point of a practicing lawyer, embedded within the legal system. The purpose of this blog has always been to contribute towards building a constitutional culture, and to initiate and participate in constitutional conversations. My time back in India has revealed to me several structural barriers standing in the way of this goal. This time last year, I wrote about academia’s abandonment of serious doctrinal scholarship, and how that is at least partially responsible for the breakdown of communication between the bar/bench and the academy. This time, I want to focus on access.

The Supreme Court has often spoken of our open and transparent justice system, something which is central to a well-functioning democratic republic. It stands to reason that constitutional conversations can only take place in an environment where the legal system is accessible. In that sense, the default language of the Courts (English) already excludes a very significant segment of our country’s citizens. Without minimising the seriousness of that issue, however (and its far too layered a problem to discuss in a blog post), here I want to highlight two very specific problems of access.

The first is physical access. To enter the Supreme Court, an ordinary person (who is neither a lawyer, nor a litigant) needs to have a pass that is signed off by an Advocate-on-Record (and the pass is issued only for one courtroom). This seems to me to be a complete negation of the principles of open justice. Why have a small group of lawyers been made the gatekeepers of the highest court in the country? Why cannot a citizen of the country get up one morning, and say to himself, “let me see how the Supreme Court dispenses justice“, and proceed to the Supreme Court to observe matters being argued (like you can do in the UK and the US)? If open justice is to mean anything, then surely it means that physical access to the Supreme Court ought to be a matter of right, and not a matter of whether I know an Advocate-on-Record.

An immediate objection to what I have just said is to point out the problem of overcrowding. This is admittedly a problem, but it is a problem that can be resolved in ways that do not involve this kind of iniquitous exclusions. The US Supreme Court, for instance, follows a first-come-first-serve pass-issuance system, and on the days of big-ticket cases, people queue up from early in the morning. Why can’t the Supreme Court do the same? If the further issue is the number of matters heard by each bench during the course of the day, then there are other ways (once again) of solving that; for instance, recently, someone suggested that each day’s cause list be divided into two, with the first half (to the extent possible) being heard in the morning, and the second half being heard in the afternoon. This suggestion was made in the context of preventing lawyers’ overcrowding, but is equally applicable to issuing passes (e.g., issue separate passes for the morning and the afternoon session).

There is, of course, the simplest solution: live video streaming of courtroom proceedings, on a dedicated Supreme Court online channel, as well as published transcripts of hearings. The courts have always been resistant to this proposal, however, and it seems a very long way away.

I fully accept that resolving the overcrowding-access issue is not an easy task. But surely the present system is makes the problem worse. It is a matter of some surprise to me how much this system has been internalised: I have never heard a judge or a senior counsel mention it as a problem that needs to be solved. If you take a step back and think about it, it seems (at least to me) obvious that – to repeat – making a small group of lawyers gatekeepers of the Supreme Court, the highest court of the land, the embodiment of the republic’s justice system, is really at odds with the ideals of the Constitution.

Physical access is one side of the problem. The other side is lack of access to court documents. At this point, as a general rule, all we have access to is the final judgment of the Court. In recent years, the Supreme Court has taken to recording the submissions of counsel in great detail (part of the reason for the increasing length of judgments), but this is not adequate. Judgments often fail to record submissions, or mis-record them. I have examples of both. The recent criminal defamation judgment, for instance, ignored several crucial legal arguments against the constitutionality of criminal defamation (its history as a public order offence and the inconsistency between the civil/criminal standards, to name just two). And during the hearings in the NJAC case, Mr Arvind Datar argued that Article 124C of the 99th Amendment violated the basic structure by converting a constituent power into a legislative power. This submission is recorded in the leading opinion, but in a manner that the core of the argument appears as something else entirely. However, even with the best will in the world, and with neither error nor avoidance, if a case is a conversation between the bench and the bar, what we have right now is a monologue that makes a feeble pretence at a conversation. Counsels’ submissions are, ultimately, only refracted through the lens of the judge’s understanding.

Compare this with the American SCOTUSBlog, for instance (and other linked sites), through which you can access briefs of the parties. And it makes a difference. Recently, while researching on some judgments delivered by the South African Constitutional Court, I also read the “Heads of Argument” submitted by counsel for the petitioners and the respondents. It immediately enriched my understanding of the case: I could see where both sides were coming from, how the Court responded to them, what arguments it found persuasive, and which it didn’t engage with.

The situation has improved somewhat in this past year, with the advent of websites such as LiveLaw, which have, on occasion, made petitions available in soft copy. It is nowhere near satisfactory, though. And in the absence of access to written briefs, it is scarcely surprising that reporting on Supreme Court proceedings is so problematic, and so inaccurate. I am not blaming the media here – in fact, it has happened to me as well. I once happened to be in Court during the hearing of an interesting case. I took notes, came back, and blogged about it. My notes turned out to be full of errors, and I had to hurriedly take down the post, with some degree of embarrassment. But what else do you expect? There will invariably be a lot that is lost in translation. Once again, you could remedy this with transcripts and/or video recordings. But with neither that option on the table, nor access to written documents, the conversation that we are having around our courts (and not just in constitutional cases) is, and will remain, severely impoverished.

Furthermore, it is not simply a matter of access. It is also a matter of democratisation. Presently, almost all constitutional matters are argued by a very small pool of senior counsel. I don’t want to get into the reasons for that here, but the conversation surely needs to be taken beyond twenty lawyers speaking to thirty judges.

Once again, there is a simple solution. Make the petitions available online, after they are filed in court. They are, after all, public documents. We shouldn’t need to file an inspection slip in the Supreme Court for an hour-long glimpse at the file (something only that lawyers engaged on the brief can do in any case). And after written submissions are handed over in court, and become part of the record, make them available online as well. Let us see what was argued. And let us also see how the Court chose to respond to those arguments, how it engaged – or didn’t engage – with them.

It is probably too much to expect an overburdened Registry to do this. However, it could be very easily done by briefing counsel and senior counsel chambers. They could put up their submissions online on Google Drive, or on Scribd, or on any other platform where it can be accessed and downloaded. For my part, I have created a new page on this blog called “Court Documents”, and I invite lawyers working on constitutional cases (if any of them comes across this post!) to send me links to soft copies of their submissions, after they have been filed in court (my email address is on the “About” page). I hope that, by this time next year, that webpage will not be as desolate as it is now, at the moment of its birth.

In many ways, it has been a deeply frustrating year for Indian constitutionalism (as was the last year, and the year before that, for that matter). But it remains, as ever, a pleasure and a privilege to think and write about the Constitution on a regular basis, and as ever, I remain deeply grateful to readers, commentators (both on the blog and through email), and of course, to the guest posters that I have hounded relentlessly, for helping me build the conversation. May it continue and get better.

G.B.

 

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Addendum: Free Speech, the Armed Forces, and Albie Sachs

As an addendum to the previous post on the free speech rights of government employees, consider the following brief concurrence, penned by Justice Albie Sachs of the Constitutional Court of South Africa, hearing a case about the rights of soldiers to unionise:

“… a blindly obedient soldier represents a greater threat to the constitutional order and the peace of the realm, than one who regards him or herself as a citizen in uniform, sensitive to his or her responsibilities and rights under the Constitution. The Constitution proclaims that national security is not simply directed towards the maintenance of power but must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life. [Section 198(a)]. It goes on to require that [t]he security services must act, and must teach and require their members to act, in accordance with the Constitution and the law . . . [Section 199(5)]. It provides expressly that no member of any security service may obey a manifestly illegal order [Section 199(6)] and declares that the primary object of the defence force is to defend and protect the Republic, its territorial integrity and its people . . . in accordance with the Constitution . . . [Section 200(2)]. These provisions clearly contemplate conscientious soldiers of the Constitution who can be expected to fulfil their constitutional duties more effectively if the values of the Constitution extend in appropriate manner to them and infuse their lives in the armed forces.

Secondly, I agree that, important though a communal esprit de corps may be for the armed forces, the mystique that any military force requires cannot take away the need for soldiers to be able to speak in their own distinctive voices on mundane but meaningful questions of service. In my view, however, the freedom of association that ‘everyone’ has [Section 18], and the right to fair labour practices that ‘everyone’ has [Section 23(1)], clearly entitle soldiers to set up a body such as SANDU to look after their employment interests. I therefore do not consider it necessary to go as far as O’Regan J has done in examining the complex question of whether soldiers qualify as ‘workers’ entitled to the panoply of workers’ and trade union rights set out in Section 23 (2), (4) and (5). Nor do I find it necessary to consider whether defining soldiers as workers entitled to form trade unions, and then denying them the right to strike, to organise in the full sense of the term, to engage in meaningful collective bargaining, or to join trade union federations, might only, in the words of Jackson J, result in ‘. . . a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper’s will.’

One can always hope.

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The Free Speech of Government Employees

Last week, the Economic Times carried a story about a proposed change to the All India Service (Conduct) Rules, which would prohibit government officials from “criticising” the government on social media. The Rules already prohibit critical statements on radio broadcasts or in the form of public utterances. In that sense, this change is simply expansionary. It does, however, give us a chance to explore a complex – and unresolved – area of constitutional law: the constitutional rights of government employees. The issue is an interesting one, because in its relationship with its employees, the government assumes two faces: as an employer, with the power to enforce discipline and unity, and as the State, which must respect fundamental rights. The scope of government employees’ rights to freedom of expression and association, therefore, depends upon which of those faces the Courts have considered to be the dominant one, and to what extent.

The story begins in 1957, with the judgment of a Constitution Bench of the Supreme Court in P. Balakotiah vs Union of India. Certain railway employees were terminated under Section 3 of the Railway Services Rules of 1949. Section 3 stated allowed for termination (in accordance with procedure) of an employee who ” is engaged in or is reasonably suspected to be engaged in subversive activities, or is associated with others in subversive activities in such manner as to raise doubts about his reliability.” There was a further proviso that termination or compulsory retirement could be imposed only if in the view of the authority, retention of the employee was prejudicial towards national security. The case of the government was that the employees in question had been involved with communists, and had carried on agitations resulting in a general strike. The employees challenged both the orders of termination, as well as the Rules, alleging violations of Articles 14, 19 and 311 of the Constitution.

With respect to Article 14, the Court rejected the contention that the phrase “subversive activities” was too vague to provide an intelligible differentium, observing that “subversive activities” in the context of “national security” was precise enough. More importantly, however, the Court rejected the Article 19(1)(c) [freedom of association] argument, in the following terms:

“The argument is that action has been taken against the appellants under the rules, because they are Communists and trade unionists, and the orders terminating their services under R. 3 amount, in substance, to a denial to them of the freedom to form associations, which is guaranteed under Art. 19(1)(c). We have already observed that that is not the true scope of the charges. But apart from that, we do not see how any right of the appellants under Art. 19(1)(c)has been infringed. The orders do not prevent them from continuing to be Communists or trade unionists. Their rights in that behalf remain after the impugned orders precisely what they were before. The real complaint of the appellants is that their services have been terminated; but that involves, apart from Art. 311, no infringement of any of their Constitutional rights. The appellants have no doubt a fundamental right to form associations under Art. 19(1)(c), but they have no fundamental right to be continued in employment by the State, and when their services are terminated by the State they cannot complain of the infringement of any of their Constitutional rights, when no question of violation of Art. 311 arises.”

The reasoning of the Supreme Court can be divided into two prongs. First, the Court holds that since the employees were terminated because of subversive activities (and not because they were associating with communists), Article 19(1)(c) was not attracted. The Court also holds that Article 19(1)(c) would not have been attracted even if the employees had been terminated for associating with communists. The underlying premise (spelt out only partially) is that since there is no antecedent fundamental right to government employment, the government is free to make employment conditional on the requirement that employees do not associate with communists. In this case, therefore, we see that the government qua employer, empowered to determine its own conditions of employment, wins out over the government qua State, which must respect fundamental rights.

The story is then taken up five years later, in 1962, when two Constitution Benches of the Supreme Court decided Kameshwar Prasad vs State of Bihar and O.K. Ghosh vs E.X. Joseph within months of each other. Kameshwar Prasad concerned the constitutional validity of Rule 4A of the Bihar Government Servants’ Rules, which stated that “no Government servant shall participate in any demonstration or resort to any form of strike in connection with any matter pertaining to his conditions of service.” The challenge was only to the prohibition of demonstrations, and not to the prohibition of strikes. On the logic of Balakotiah, this should have been a straightforward dismissal. The Court, however, took a radically different approach, and struck down the Rule as unconstitutional. It started by noting that “the mere fact that a person enters Government service, he does not cease to be “a citizen of India”, nor does that disentitle him to claim the freedoms guaranteed to every citizen.” The Court buttressed this argument by making the textual point that Article 33 of the Constitution specifically allowed the Parliament to modify the application of the fundamental rights chapter to the Armed Forces, forces charged with maintaining public order, and persons involved in intelligence. By omission, therefore, other branches of the government were entitled to the full enjoyment of their Part III rights. Therefore, in order for a restriction upon Article 19(1)(a) or (c) to be valid, it would have to meet the tests of reasonableness under Articles 19(2) and (4).

The State attempted to make the exact argument that had found favour in Balakotiah: that when an employee entered government service, she was deemed to have thereby consented to whatever service conditions the government, qua employer, chose to impose. To press this point, American First Amendment judgments were cited. The Court refused to rely on these judgments, noting that the First Amendment, being framed in absolute terms, had required the US Supreme Court to develop implied limitations to the right to free speech and association over the years, one of which was that of police power. The Indian Constitution, however, specifically stated the conditions under which speech and association could be restricted, and therefore did not allow the Court to traverse beyond the specific sub-clauses of Articles 19(2) and (4) [an aside: this is one of those rare cases where the Indian Supreme Court used the text of Articles 19(2) and (4) to evolve a more speech-protective standard than the American]. Then, Balakotiah was cited before the Court, and the Bench dismissed it in a line, stating that in that case, the validity of the rule had not been challenged. While conceding that the “nature” of the job might require some restrictions upon fundamental rights, such as the right to move freely throughout the territory of India (e.g., if a government servant was posted at a particular place), the Court stressed once more that as a general proposition, government employees had as much right to free speech and association as any other citizen.

Coming to the Rule in question, the Court held that in prohibiting all forms of demonstrations, without showing any proximate link with public disorder, the Rule was over-broad and void. The government’s argument that government servants constituted a specific class of people who needed to be disciplined in order that public order be maintained was also rejected on the ground that there was only one wing of government servants charged with maintaining public order – the police. The Rule, therefore, remained over-broad.

The logic of Kameshwar Prasad was then endorsed in O.K. Ghosh. A government employee was proceeded against for participating in demonstrations “in preparation” of a strike. One of the applicable rules was Rule 4A, which had already been struck down in part in Kameshwar Prasad. The other was Rule 4B, which prohibited government servants from joining associations not recognised by the government. Here, the Court struck down Rule 4B as well, on the same logic. It observed that:

“[Rule 4B] virtually compels a Government servant to withdraw his membership of the Service Association of Government Servants as soon as recognition accorded to the said Association is withdrawn or if, after the Association is formed, no recognition is accorded to it within six months… Can this restriction be. said to be in the interests of public order and can it be said, to be a reasonable restriction ? In our opinion, the only answer to these questions would be in the negative. It is difficult to see any direct or proximate or reasonable connection between the recognition by the Government of the Association and the discipline amongst, and the efficiency of, the members of the said Association. Similarly, it is difficult to see any connection between recognition and public order.”

Notice once again how this logic is directly contrary to that of Balakotiah. While Balakotiah held that Article 19(1)(c) is not even attracted in cases where government qua employer sets the terms of service, Kameshwar Prasad and O.K. Ghosh, on the other hand, held that government qua employer cannot evade the obligations of government qua State, and that therefore, any restriction upon an Article 19(1)(a) or (c) right must be tested under Articles 19(2) and (4), just like you would do for any other citizen. While in O.K. Ghosh the Court conceded that at certain times, service rules dealing with the conduct of government employees could be justified under the public order prong, that determination would be made on a case to case basis, and the standard Article 19(2) – (4) test of proximity would apply.

The last stop of the journey is 1984, and the two-judge bench decision of the Supreme Court in M.H. Devendrappa vs Karnataka Small State Industries. Here, yet again, the Court changed tack. An employee wrote a letter to the Governor of Karnataka, making various allegations against a state corporation, and also issued a press statement. Disciplinary action was taken against him, and he was dismissed from service. The relevant service rules prohibited employees from doing “anything detrimental to the interests or prestige of the Corporation“, and from assisting “any political movement or activity.” This time, the employee’s invocation of Articles 19(1)(a) and (c) were to no avail. The Supreme Court held:

“Rule 22 of the Service Rules is not meant to curtail freedom of speech or expression or the freedom to form associations or unions. It is clearly meant to maintain discipline within the service, to ensure efficient performance of duty by the employees of the Corporation, and to protect the interests and prestige of the Corporation. A Rule which is not primarily designed to restrict any of the fundamental rights cannot be called in question as violating Article 19(1)(a) or 19(1)(c). In fact, in the present proceedings the constitutional validity of Rule 22 is not under challenge. What is under challenge is the order of dismissal passed for violating Rule 22.”

We can start by noting that this is very obviously an incorrect proposition of law. Ever since Bennett Coleman vs Union of India, the Supreme Court had abandoned the “object and form” test for the violation of fundamental rights, in favour of the “effects” test. Consequently, whether a Rule is “designed” to violate fundamental rights is irrelevant; whether, in effect, it – or executive action taken under its aegis – violates fundamental rights is the necessary enquiry.

The Court was then faced with the conflicting precedents in Balakotiah and Kameshwar Prasad/O.K. Ghosh. It wriggled out of the difficulty by a sleight of hand, quoting the following passage in Kameshwar Prasad:

… we should not be taken to imply that in relation to this class of citizens the responsibility arising from official position would not be itself impose some limitations on the exercise of their rights as citizens.”

It then held:

“Therefore, in Kameshwar Prasad’s case (supra) this Court made it clear that it was not in any manner affecting by the said Judgment, the Rules of Government service designed for proper discharge of duties and obligations by Government servants, although they may curtail or impose limitations on their rights under Part III of the Constitution.”

What the Court in Devandrappa neglected to do, however, was to quote what came immediately after the cited paragraph in Kameshwar Prasad. There, the Constitution Bench had taken two specific examples: that of an income tax officer mandated to maintain secrecy of documents under the Income Tax Act, and an election officer mandated to do the same under the Representation of the People Act. The very narrowness and specificity of these examples directly contradicted the broad interpretation that Devandrappa placed upon Kameshwar Prasad, namely that a fundamental rights challenge could be avoided on the ground of requiring “proper discharge of duties by government servants”. The Court performed a similar sleight of hand with O.K. Ghosh, focusing upon its observation about how discipline and efficiency needed to be maintained among government servants, but then refusing to engage in a proximity analysis under Articles 19(2) – (4). Instead, the Court did the exact opposite, endorsing a breathtakingly broad proposition of law, completely at odds with the Supreme Court’s public order jurisprudence:

“In the present case, the restraint is against doing anything which is detrimental to the interests or prestige of the employer. The detrimental action may consist of writing a letter or making a speech. It may consist of holding a violent demonstration or it may consist of joining a political organisation contrary to the Service Rules. Any action which is detrimental to the interests or prestige of the employer clearly underlines discipline within the organisation and also the efficient functioning of that organisation. Such a Rule could be construed as falling under “public order” clause as envisaged by O.K. Ghosh (Supra).”

The Court ended by going back to Balakotiah’s original logic:

“In the present case, joining Government service has, implicit in it, if not explicitly so laid down, the observance of a certain code of conduce necessary for the proper discharge of functions as a Government servant. That code cannot be flouted in the name of other freedoms.”

In sum, therefore, Devendrappa – a two-judge bench – wrongly applied the object-and-form test for fundamental rights violations, and wrongly interpreted Kameshwar Prasad and O.K. Ghosh to uphold far-reaching restrictions upon the free speech of government employees. However, the matter is not so straightforward, because Kameshwar Prasad and O.K. Ghosh themselves changed the law despite being bound by Balakotiah (as a coordinate bench). Kameshwar Prasad – as we have seen – tried to distinguish Balakotiah on the basis that the validity of the rule had not been challenged. However, this was both incorrect and irrelevant. The validity of the relevant rule had been challenged in Balakotiah; and even if it hadn’t, the central logic of Balakotiah – that government qua employer can regulate its terms of service since there is no antecedent fundamental right to government employment – was independent of the vires of any Rule. In other words, therefore, Kameshwar Prasad and O.K. Ghosh incorrectly interpreted Balakotiah, and were then themselves incorrectly interpreted by Devendrappa, giving us, at the end of the day, an initial Constitution Bench decision and a later two-judge bench decision on one side, and two Constitution Bench decisions in the middle on the other.

Here is something, however, that the judgments in Kameshwar Prasad and O.K. Ghosh did not notice. One year after Balakotiah, a seven-judge bench of the Supreme Court decided Re Kerala Education BillRe Kerala Education Bill was the first Indian case to lay down the doctrine known elsewhere as the prohibition of “unconstitutional conditions“. The doctrine of unconstitutional conditions prohibits the State from denying citizens a benefit by making access to that benefit conditional upon citizens’ abstaining from exercising any or all of their fundamental rights. This is despite the fact that there is no antecedent right to that benefit in the first place. To take a crude example: the Government cannot require you to access subsidies by taking an Aadhaar Card and thereby sacrificing your private data, even though you have no fundamental right to a subsidy.

The doctrine of unconstitutional conditions clearly knocked the bottom out of Balakotiah’s logic. While there is admittedly no antecedent right to government employment, nor can the government make your employment conditional upon your abstaining from exercising your constitutional rights to free speech and association. And this is exactly what was going on in Balakotiah, in Kameshwar Prasad, in O.K. Ghosh, in Devendrappa and in the proposed social media rules.

As a seven judge bench, Re Kerala Education Bill was well within its rights to impliedly overrule Balakotiah. And as a seven-judge bench, its enunciation of the doctrine of unconstitutional conditions has never been overruled. Consequently, it is my submission that Balakotiah no longer holds the field, that Devendrappa was incorrect in following it, and that Kameshwar Prasad and O.K. Ghosh continue to be good law (although for reasons outside the judgments). Consequently, the proposed social media rules ought to be struck down as unconstitutional.

 

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Entry Tax: The Four Constitutional Questions

Karan Lahiri has kindly passed on to me the four questions framed by the nine-judge bench of the Supreme Court in the ongoing Entry Tax case. They are:

  1. Can the levy of a non-discriminatory tax per se constitute infraction of Article 301 of the Constitution?
  2. If the answer to Question No. 1 is in the affirmative, can a tax which is compensatory in nature also fall foul of Article 301 of the Constitution of India?
  3. What are the tests for determining whether the tax or levy is compensatory in nature?
  4. Is the Entry tax levied by the States in the present batch of cases violative of Article 301 of the Constitution and in particular have the impugned State enactments relating to entry tax to be tested with reference to both Articles 304(a) and 304(b) of the Constitution for determining their validity?

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