ICLP Book Discussion: Ornit Shani’s How India Became Democratic – III: The Transformative Constitution

(This is the third essay in our round-table discussion of Ornit Shani’s How India Became Democratic. In this essay, I discuss the implications of Shani’s argument for constitutional interpretation. Following this, we shall have a response by the author.)

In 1964, a seven-judge bench of the Supreme Court was asked to decide whether certain forest rights granted by the ruler of a princely state to some of his subjects continued to exist even after the accession of the princely state to the Union of India. Could these people continue to enforce the old ruler’s commitments against a new sovereign? A narrowly divided Court (split 4 – 3) held that they could not, agreeing with the contention of the State of Gujarat that the takeover of the princely states was “an Act of State” that automatically extinguished all subsisting rights, and that those rights remained extinguished unless specifically recognised by the new ruler.

To decide this question, however, the Court had to first answer another question: what was the nature of the transfer of power from the princely rulers to the newly-birthed Union of India? In his concurring opinion, Justice Shah characterised it thus:

“… [the] promulgation of the Constitution did not result in transfer of sovereignty from the Dominion of India to the Union. It was merely change in the form of Government. By the Constitution, the authority of the British Crown over the Dominion was extinguished, and the sovereignty which was till then rooted in the Crown was since the Constitution came into force derived from the people of India. It is true that whatever vestige of authority which the British Crown had over the Dominion of India, since the Indian Independence Act was thereby extinguished, but there was no cession, conquest occupation or transfer of territory. The new governmental set up was the final step in the process of evolution towards self-government. The fact that it did not owe its authority to an outside agency but was taken by the representatives of the people made no difference in its true character. The continuance of the governmental machinery and of the laws of the Dominion, give a lie to any theory of transmission of sovereignty or of the extinction of the sovereignty of the Dominion, and from its ashes, the springing up of another sovereign.”

The Respondents relied upon the judgment of Justice Vivian Bose in Virendra vs State of UP. Justice Bose had held that the Independence had been a transformative moment, ushering in a new legal order where the reign of arbitrariness and despotic power was replaced by the rule of law. Consequently, the “Act of State” doctrine – which placed certain actions of the State beyond the pale of the legal system – simply had no application in the post-Constitutional era. Justice Shah disagreed:

“These assumptions are not supported by history or by constitutional theory. There is no warrant for holding at the stroke of mid-night of the 25th January, 1950, all our pre- existing political institutions ceased to exist, and in the next moment arose a new set of institutions completely unrelated to the past. The Constituent Assembly which gave form to the Constitution functioned for several years under the old regime, and set up the constitutional machinery on the foundations of the earlier political set up. It did not seek to destroy the past institutions: it raised an edifice on what existed before. The Constituent Assembly molded no new sovereignty: it merely gave shape to the aspirations of the people, by destroying foreign control and evolving a completely democratic form of government as a republic. The process was not one of destruction, but of evolution. For reasons already stated it is impossible to hold that what were mere claims to property till the 25th of January, 1950, could be regarded as enforceable against any one. Till the Dominion of India recognised the right, expressly or by implication there was no right to property which the Courts in India could enforce.”

In our constitutional history, for the most part, Justice Shah’s views have carried the day. The argument is a familiar one: from the 1919 Government of India Act, which first introduced representative government under the colonial regime, there had been incremental progress towards Independence. Waymarked by events such as the 1935 Government of India Act, it is argued that this incremental progress almost imperceptibly culminated in the grant of Independence. The ruler changed; partial suffrage became full suffrage; the legislative assembly replaced the Office of the Governor-General as the supreme law-making body; and all of this was a logical evolution from what came before. Fundamentally, nothing changed: the old laws remained, the old governing structures remained, the old forms of rule remained.

This is not an academic debate. The question of how to accurately characterise the moment of constitutional creation has a direct impact upon modern-day constitutional interpretation. For example, it was on the basis of the evolutionary theory that the Bombay High Court, in Narasu Appa Mali, uncritically accepted the characterisation of “personal laws” by the colonial Courts; it was on this unstated basis that the Supreme Court, in Kathi Kalu Oghad, used colonial penal laws such as the Identification of Prisoners Act to narrow the scope of Article 20(3) of the Constitution, reasoning that, after all, the framers could not have intended to frame so wide a guarantee against self-incrimination that the Identification of Prisoners Act would be made redundant; and, until a long-overdue course-correction in Krishna Kumar, it was by invoking the Governor-General’s near-absolute powers of Ordinance-making in the pre-Constitutional era that the Supreme Court granted an almost unchecked discretionary power to the Executive to issue ordinances under the Constitution. The upholding of colonial laws, the endorsement of the continuity of colonial practices, and the restrictive interpretation of Part III of the Constitution – these three staple features of our constitutional jurisprudence are all founded upon the unarticulated premise that the Constitution represents a moment of continuity (or, at best, “evolution”), rather than transformation.

It is in this context that Ornit Shani’s How India Became Democratic is a work of great importance in thinking about the Indian constitutional tradition. As Suhrith and Anupama have demonstrated in their essays, in its granular and detailed elaboration of independent India’s first general election, How India Became Democratic challenges the simplistic claim that the grant of universal franchise was an easy or natural evolution from the representative institutions that existed under the colonial regime. As Shani points out in her Introduction:

“The institutionalisation of procedural equality for the purpose of authorising a government in as deeply a hierarchical and unequal society as India, ahead of the enactment of the constitution turned the idea of India’s democracy into a meaningful and credible story for its people.” (p. 5)

How did this happen? Shani writes about the preparation of the first electoral roll, the strenuous efforts that were made on the ground, and geared towards inclusion rather than exclusion, and the commitment of bureaucrats and officials towards realising the goal of universal adult franchise. At a more abstract level, however, what comes through Shani’s account is that there were three significant ways in which universal adult franchise marked a transformation that was not simply a question of degree, but of the very nature of the political society. First, sheer numbers: under the colonial regime, the extent of representation never crossed 10% of the electorate. From 10% to an aspiration of universality is not an “incremental evolution” – it is, more properly, a fundamental change. Secondly, consistent with the colonial practice of viewing Indian society as an agglomeration of groups that had normative priority over the individual, under the 1919 and 1935 Acts, representative government was conducted through separate electorates. This was repudiated in the Constitution, which envisioned a single electoral roll and universal adult suffrage – thus emphasising the priority of the individual ver the group. And thirdly, the colonial regime treated voting as a privilege, and threw up substantial barriers in order to ensure that only the “worthy” were able to vote. These included property and educational requirements, and for women, these requirements were linked to the status of their husbands. Consistent with Nehru’s observation that any procedural barriers towards exercising the right to vote would amount to a negation of democracy itself, the Constitution removed these disqualifications, placing instead universal adult franchise at its heart.

Therefore, in the size of the electorate, the nature of the electorate, and the character of the electorate, there was absolutely nothing “incremental” about what the Constitution did: it was a foundational and radical change. It is in this context that we can understand what Shani means when she writes that suffrage instituted procedural equality in a deeply hierarchical and unequal society.

We are therefore in a position to see that Justice Shah’s characterisation of the Constitution as creating only a “new governmental setup” and having nothing to do with a change of “sovereignty” is flawed. It is flawed because it puts the cart before the horse: from the fact that colonial laws and legal structures survived into the post-Constitutional era, it is extrapolated that the framing of the Constitution was more a conservative moment than a transformative one. This, then, becomes a self-fulfilling prophecy in a case like Kathi Kalu Oghad, where the existence of colonial legal structures imperceptibly mutates into a justification for them. The logic, however, works the other way: the character of the Constitutional moment should be judged on its own terms (as Shani does), and it should then be asked (as Justice Bose did) how, within the new democratic system, the continuing legal structures ought to be understood. Indeed, Justice Bose’s crucial insight in Virendra was precisely this: that a fundamental change in the constitutional structure (from autocracy to democratic institutions) must necessarily have an impact on constitutional rights (even though the content of the laws would remain the same).

The American legal scholar Akhil Amar provides a good example of this. He examines the First Amendment to the American Constitution, which guarantees “the freedom of speech.” Now, the freedom of speech, as it existed in English common law, was a very limited right in the late-eighteenth century, providing protection only against prior restraint. However, Amar points to the fact that freedom of speech in the British Parliament was virtually absolute, and this was at least partly because according to British constitutional theory, sovereignty rested in Parliament. Amar then argues that the American revolution marked a fundamental shift in this understanding, and in the new American republic, sovereignty was deemed to vest in the people. From this, Amar concludes that when the First Amendment guaranteed “the freedom of speech”, the fact that sovereignty had shifted from Parliament to People indicated that the (absolute) free speech rights enjoyed by Parliament now vested in the people.

I do not here want to comment on the historical accuracy of Amar’s argument. The point, however, is this: a transformation in the underlying constitutional structure (including the form of government) will inevitably affect the overlying substantive legal regime, even though, at the surface, the text of the laws might remain the same. Laws that had a certain meaning and content under an authoritarian regime must have a very different meaning under a democratic system (and this, precisely, was the reasoning of the Court in Krishna Kumar, when it rejected the colonial understanding of the Ordinance-making power).

For this reason, Shani’s demonstration that universal franchise was a transformative structural change provides us with a powerful argument to think through – and indeed, rethink – many of the features of our constitutional jurisprudence that have become virtually sedimented by the passage of time. Suhrith has written about the Rajbala judgment, but there are many others: for example, is it consistent with the framers’ commitment to prioritising the individual over the group through a common electoral roll for the Court to continue prioritising the group over the individual by excluding personal laws from constitutional scrutiny? Is it consistent with the conscious decision of the framers that women were to be treated as public citizens for the Court to continue to apply gendered stereotypes while deciding cases under Article 15(1)? And above all else, is it consistent with the Constitutional commitment to transform subjects into citizens for regimes of legal impunity (under laws such as AFSPA and the UAPA) continue to flourish with the blessing of the Court?

In his critique of Justice Shah’s judgment, K.G. Kannabiran notes that:

This interpretation ignores the social history of the period preceding the Constitution. It does not reckon with the struggles of the people who fought for freedom, the repressive legal structures on whose altars people were sacrificed and their dreams shattered. It ignores the aspirations of the people to build a better society for themselves. The rise of political democracy leading to liberation from foreign domination is not a mere matter of evolution. There can always be a break in the continuity, a severance from the past, without being preceded by violence and destruction. There cannot be, there should not be two social histories one for political theorising and another for legal theorising. The setting up of a Constituent Assembly and the passing of the Indian Independence Act, 1947 are a consequence, a culmination of the struggle for independence. It was the shared belief of a large section of the people that there was a political severance on August 15, 1947. and a severance constitutionally on 26 January 1950. If this aspect is lost sight of, the court disables itself from performing its assigned role under our Constitution. The people who met in the Constituent Assembly were nor mere technicians who had gathered there to prepare a handbook for running the government. They had participated in the struggles and, short of holding elections, every effort had been made to give their gathering a representative character. The historical background leading to the formation of the Constituent Assembly has nor informed our undemanding or interpretation of the Constitutio With that understanding absent, the institutions under the Constitution were looked upon as a continuation of the colonial system of administration.

In the continuing struggle to breathe life into Kannabiran’s constitutional philosophy, in the teeth of a judicial tradition that has too often treated the Constitution as an extension of what came before, Shani’s account of independent India’s first general election is invaluable: it is a point of departure for all of us to think more deeply about what 1947 meant, and how the transformative character of that moment ought to map onto how we think about our Constitution, our citizenship, and our rights.


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ICLP Book Discussion: Ornit Shani’s How India Became Democratic – II: Constituting the People

(In this second essay in our Roundtable on Ornit Shani’s How India Became Democratic, political philosopher Professor Anupama Roy, author of Gendered Citizenship, examines some of the book’s central claims.)

It is not often that one comes across a book which is an outcome of meticulous spadework in the archives opening up for scholarly attention a lesser known aspect of the making of the Indian Republic and democracy. Ornit Shani’s book on the preparation of the electoral roll for the first general election in India, which followed for the first time, the principle of universal adult franchise, is remarkable – quite like the feat Shani has studied in the book – both in terms of the enormity of the task and fortitude in the face of the labour involved.

Through an examination of the bureaucratic processes of the preparation of the electoral roll, Shani seeks to establish two points, both of which are of significance to the way in which scholars have thought about citizenship in India. Shani argues that Indians became voters before they became citizens (p.5). Indeed, it was in the course of the preparation of the preliminary electoral rolls from November 1947, set in motion by the ‘the note’ sent from the Constituent Assembly Secretariat to the various provinces and states of India that the process of inserting ‘the people’ into the administrative structures of the state was initiated. Indeed, it was the quest for a ‘place in the roll’, argues Shani, which prepared the ground for ‘the conceptions and principles of democratic citizenship that were produced in the process of constitution making from above’ (p.7).

A second point that Shani makes is about the relationship between democracy and the political imagination of the people of India, arguing that it was the implementation of universal franchise that elicited ‘both a sense of Indianness and commitment to democratic nationhood…’ (p.2). Moreover, she argues that it was in the contestations and the language of interaction that was produced at the ground level, in the process of making the roll, that political imagination itself was democratised (p.6).

These points are made painstakingly through a study of archival sources drawn primarily from the Election Commission’s internal records, which Shani was fortunate to access for two years before they were shifted to the National Archives in Delhi, Constituent Assembly Debates, and other official sources along with newspaper archives and interviews with Election Commissioners. Each of the six chapters which comprise the book, work out an aspect of the preparation of the electoral roll, and together they cover roughly the period between 1947-48 and 1949-1950. This was broadly the period from the beginning of the preparation of the electoral roll to the time the Election Commission started functioning as an integrated institution, under Sukumar Sen, the first Chief Election Commissioner of India.

In my discussion of these points, I will tease out some of the broad arguments which emerge in the book to show their complexity, but also how in each case there could be space for another argument, or an argument different from the one Shani makes.

  1. Genealogy of the ‘people’:

The concept of the ‘people’ is central to the universalist imaginings of modernity. It is abstract but also historically specific and can be traced through many genealogies, in which it assumes diverse forms. If one were to trace a particular genealogy of the people, one has to work out its formation in specific historical contexts, the meanings that are attributed to it, and the manner in which it operationalises itself. In the postcolonial context in India, the people were constituted at a pan-Indian scale of anti-colonial struggles for self-determination, but also in, and through specific sites where struggles took place against local power formations. The people were also constituted as the repository of sovereign power when they gave themselves the constitution on 26th November 1949 – a Constitution that they had enacted (through the Constituent Assembly). That the people also held constituent power was stated emphatically in Article 395 of the Constitution, which repealed the Indian Independence Act, severed all relations with colonial authority, and rejected the chain of validation which required that the Indian Constitution be placed before the Crown-in-Parliament for validation. The electoral domain was another space where the people acquired meaning and form – the people were constituted through a collective act of voting ‘simultaneously’ in a manifestation of unfettered popular sovereignty, achieved through the deferral of political authority, which is concentrated in the apparatus of the state.

The meaning of the people communicated through these diverse forms is identified with a specific ‘action’, which when expressed, constitutes the people as a collective body – emblematic as well as physical and corporeal. Ornit Shani makes a significant argument about the way in which ‘universal’ franchise inserted the principle of equality in the electoral roll and consequently a democratic disposition (p.18) among the people who were responsible for preparing the roll. On the other hand, in the process of acquiring a ‘place on the roll’, adult franchise played a role in connecting the people to a popular democratic imagination (p.19). I was curious how the big connection between a bureaucratic process and democratic imagination could be made. If one were to read the documents and communications among the administrators as accounts of how they managed to achieve the impossible task of registering Indians as voters, as a prelude to the next step of actually voting in an election (described by Sukumar Sen as ‘a massive act of faith’), it could appear to be a problem of administering an election efficiently, rather than making people feel equal, and make the leap to a horizontal camaraderie of equals.

In chapter 3 on the electoral roll as a ‘serialised epic’, Shani suggests that preparation of the electoral roll on the basis of universal adult franchise became part of the ‘popular narrative’. This narrative played a role in connecting people to a popular democratic imagination, ‘referring to manner in which it became not merely a system of rules that were to be observed but also part of the normative world of people and the stories, individuals make of it themselves’ (p.86). In the conclusion (p.253) Shani takes the argument further to say that through a process of consultation, the Constituent Assembly Secretariat engaged public officials, people and citizens association in the details of voter registration and citizenship, mentoring them into both the abstract principle and practices of electoral democracy. so much so that ‘people and administrators began using the draft constitution to pursue their citizenship and voting rights, and they linked its abstract text to their everyday lives’ (p. 252-53). Most of the material Shani discusses concerns the humungous ask of enrolling the entire adult population, in which ‘awkward’ categories – the refugees, displaced persons and women presented challenges of different kinds. This took place in an absence of an electoral law on the modalities of elections, without a precise legal-constitutional framework on citizenship, and the provinces were beset with specific problems pertaining to registration. In this literature it is difficult to find a corresponding ‘pervasive popular narrative’ on franchise, which according to Shani was of an order which ‘communicated substantially and therefore convincingly, India’s movement towards becoming a democracy’ (p.89). One would assume that such a narrative did exist, but a tangible and substantial expression of that is not present convincingly in what Shani calls the ‘serialised epic’.

  1. Chronosophy of ‘citizenship’:

Immanuel Wallerstein cautioned against a linear narrative of historical change, to argue that historical transformations do not take place sequentially in ascendant or descendant forms, but are uneven and undulating, punctuated by conscious decisions made along the way. When Shani makes the point about Indians becoming voters before they became citizens, she is perhaps referring to the fact that the legal affirmation of citizenship happened only with the commencement of the Constitution. While there was a legal vaccum on who were Indian citizens (there were in fact two periods of such vacuum between 1947 and 1949 and then again between 1949 and 1955, when the Citizenship Act of India was passed by the Parliament), it did not mean that questions of legal citizenship were not being addressed in ‘problem’ cases through instructions from the CAS. Indeed, the questions of legal citizenship were coming up and were being addressed primarily in the context of preparing the electoral roll, since only citizens could vote. Indeed, rather then a sequential development, one could perhaps see them as overlapping and simultaneous, taking shape through documentation practices of the state, and alongside the development of the institutions of the state and their functional differentiation. Indeed, over the years, (and controversially so) resolution of the contest over citizenship in the preparation of electoral roll has come within the purview of the ‘superintendence and control’ of elections function of the Election Commission of India (under Article 324).

An important point that Shani seems to be making is that in the process of finding a place on the electoral roll, a political community organised on the principle of horizontal camaraderie of equals could now be ‘imagined’. We may see the imagination of a community of equals marking the transcendental moment of independence, the emphatic rupture from the past, and the ‘triumphal’ democratic imaginary, which is a component of democratic citizenship. This imagination can, however, exist independent of the constitutional/legal frameworks of citizenship, as well as the statutory frameworks determining who can vote. Indeed, the peculiarity of the electoral roll and the legal and conceptual association/dissociation of the two – voter and citizen – is evident in the contests over the electoral roll in Assam. In the National Register of Citizens being prepared in Assam, a citizen-resident of Assam is required to trace his/her lineage to the electoral roll of 1971 in Assam, and then buttress it with the legacy data going back to the 1951 NRC of the state.

  1. Constitutionalism, State Formation and ‘Anticipatory Citizens’:

The period 1947 to 1950 is replete with polyrhythms of the democratic imaginary, one of which Shani writes about, i.e., the preparation of the electoral roll. The framing of the Constitution was another rhythm of democracy being produced at the time. As a deliberative body which was entrusted with the task of making the higher order rules from which all future governments would draw their authority and legitimacy, the debates in the Constituent Assembly enacted a space for the public, where questions concerning the future polity were debated and resolved. Baxi sees this process as following the imperative of locating the legal sovereign amidst ‘prior [and continuing] histories of power and struggle’. These struggles shaped the project of writing the constitution, the ‘specific modes of governance and production of juridical norms’, and also the relationship between the constitution, law and the ongoing state formative practices (Baxi, 2008, 93). The process of enrolling electors broke free from the colonial practice of what Shani calls the ‘guided democracy’ disposition of the colonial bureaucracy (p.34) to instill a new set of bureaucratic attitude in the bureaucracy based on the ‘procedural equality of voting’. While agreeing that the enrollment practices marked a rupture from the colonial past, is it possible to see the registration of electors as part of another tendency, which has to do with state formation? Indeed, as a body framing the Constitution, the Constituent Assembly also alternated as the Legislature and the government, taking decisions, which were percolating down to officials at the local levels. The various flows of communication between the government functionaries, across Ministries and Departments, the Constituent Assembly and the Legislative Assembly, give an insight into the ‘innards’ of the state, the manner in which the separation of powers among institutions, their own understanding of these powers, the problem of drawing boundaries between and among institutions, and more generally the emergence of broad patterns of settling in of institutions and institutional practices, and the governmentalisation of the state was taking place through deliberations.

The governmental regime of enrolling voters, for example, involved working with a new principle of registration (procedural equality) but at the same time it was also a task of sifting and sorting, of devising administrative and legal categories e.g., displaced persons, refugees, evacuees, abandoned women, classifying and categorizing those occupying the liminal spaces of citizenship, to include them in different ways. The excision of ‘descriptive’ women from the universal roll is one example. The other example is how displaced persons continued to pose a problem for the Election Commission when the electoral roll was being finalised before the first general election, after the Representation of the People Acts came into existence. As Shani has mentioned, the Constituent Assembly had decided that the names of all displaced person be included in the voter’s list on the strength of their oral declaration. According to the narrative report of the Election Commission of India on the first general election, the states were instructed to enroll all such persons in the electoral rolls and a distinguishing mark be placed against their names, so that their citizenship status may be confirmed later after the Constitution came into force. In finalizing the electoral roll, the marked voters presented and also experienced problems. In Delhi, for example, which had a large number of displaced persons who resided in temporary shelters when the electoral rolls started being prepared, had by September 1951, when the rolls were published and publicized, shifted to colonies and townships set up for their rehabilitation. These voters were then not entitled to vote in the polling stations, which were set up in the localities in which they came to finally reside. The localities in which they were originally resident and had enrolled to vote, now formed a part of another constituency. The displaced persons experienced their enrollment as voters differently, therefore, and aspired for ‘natural constituencies’ based on shared interests, rather than constituencies following a territorial grid. On page 129 Shani does argue that ‘the preparation of the electoral roll was a state building project of the largest possible scale in terms of its population and territorial reach’. This argument would then indicate a logic of state building in terms of reaching to its population spread over a definitive territory (embracing and encompassing functions of the modern state, as John Torpey would say) pointing towards an imperative different from that of a democratic imaginary. Read with the earlier argument on enrollment practices contributing towards making a democratic imaginary of a people, this argument presents a paradox, which inheres in all democracies.

I learnt a lot from Shani’s work and I’m looking forward to her next work on the first general elections in independent India.

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ICLP Round Table: Ornit Shani’s “How India Became Democratic” – I: Laying the Foundations

(Last month saw the release of Ornit Shani’s How India Became Democraticthe fascinating story of independent India’s first general election. Over the course of this week, The Indian Constitutional Law and Philosophy Blog will host a round-table discussing the book. Suhrith Parthasarathy, Professor Anupama Roy, and myself will be commenting on the book, and at the end, Ornit Shani will respond.

We begin with Suhrith’s essay, introducing some of the main themes of the book, and their impact on Indian constitutionalism.)

“Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it,” said Learned Hand in his famous address at New York’s Central Park in 1944 to an audience of newly naturalised American citizens. “No constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.” These words, as the ACLU’s national legal director David Cole argues in his book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, captures an important truth and also simultaneously somewhat overstates the case. Although a constitution is unquestionably important in memorialising a people’s collective commitments, in helping develop a democratic culture, there can be little doubt that the ultimate protection of liberty flows not from such guarantees—from an independent judiciary or from principles of separation of powers and federalism—but from the pure pursuits of a state’s citizenry. In his book, Cole relies on three broad themes to make this argument: on the campaign for same-sex marriage in America; on the Second Amendment and the right to bear arms; and on the rights of those accused of terrorism and held at Guantánamo. Each of these represents a case of a civil society campaign succeeding against long odds. It is precisely one such story, perhaps even more telling than the victories that Cole cites, which Ornit Shani tells in her stirring new book, How India Became Democratic: Citizenship and the Making of the Universal Franchise.

Shani’s book blazes a trail because it shows us how citizenship was “made and contested on the ground,” how India’s prospective voters acted as engaged citizens even before the Constitution came into force, and well before the country’s fundamental guarantees were set in stone. The creation of the suffrage, through a universal adult franchise, which we, today, tend to take for granted, was a consequence of radical thinking, of rewriting, as Shani says, “the bureaucratic colonial imagination.” While some of the institutions that make the present-day democracy in India have their antecedents in colonial rule, the universal adult franchise isn’t a consequence of any such legacy. It is a product rather of a uniquely Indian exercise, driven from the ground by Indians of generally humble backgrounds.

“Fundamentally, the concept of an electoral roll that would bind all adults together as equal individuals was anathema to colonial administrators,” writes Shani. As a result, “they designed voter lists and registrations forms that divided the electorate into at least three types of constituencies: general, European and Mohammadan.”

And, what’s more, the electorate contained various other qualifications, such as ‘Husband pays income tax, literacy’; and included a ‘special provision regarding names of women.’ The very idea of expanding the franchise to women, Shani shows us, was a concept that proved especially difficult for colonial bureaucrats to grasp.

The notion that India’s democracy would be secured on the basis of a universal franchise, which was agreed on at the very beginning of the Constituent Assembly’s debates in April 1947, was, therefore, already a product of revolutionary thinking. But that this principle could be realised, in the midst of partition, which led to the displacement of an estimated 18 million people, and the killing of approximately one million people, and in the midst of integrating the princely states into the Indian republic, was an achievement of astounding proportions. Ultimately, the franchise helped expand the electorate to more than 173 million people, about 85 percent of whom had never voted in their lives, and a vast majority of whom, as Shani points out, were poor and illiterate.

As invigorating, though, as the story on the bureaucratic excellence that helped drive the universal franchise is, How India Became Democratic tells an even bigger tale. It busts the conventional understanding, for instance, that the Constitution was a gift to India from an enlightened few, from India’s famous nationalist leaders. It shows us that common Indian people were “already engaged with and demonstrated an understanding of the constitution even before its enactment.” The process of constitution making, Shani argues—and indeed shows us through letters, petitions and exchanges—was greatly informed by reaction on the ground. The Constituent Assembly Secretariat [CAS], which was managed by a small group of bureaucrats, was tasked with the job of preparing the first draft electoral roll on the basis of universal adult franchise. In performing this exercise, the CAS, which worked under the guidance of the constitutional adviser, BN Rau, was able to observe closely not only the direct consequences of its various actions, but also how the Constitution that would eventually be made was likely to tangibly affect people’s political rights and aspirations. This process of preparing the electoral rolls using the draft constitutional provisions as its basis, Shani writes:

“not only turned the idea of the universal franchise into a reality, but also generated debates on the constitution outside the Constituent Assembly. Various civic organisations and administrators engaged with an array of constitutional provisions. In that context, the future constitutional vision as a whole was deliberated, interpreted, tested, and forged.”

Directing this entire campaign was a wide-ranging commitment to equality. In many ways this belief in equality, as the book shows us, went beyond traditional conceptions of liberalism, allowing, in some cases, for classifying people differently in a bid to ensure a larger fairness in the process. A complaint from the president of Devicolam Taluq Travancore written in July 1948 to the President of the Constituent Assembly exemplifies how a basic pledge of equality steered the process of making the rolls.

According to the complainant, some 1,20,000 Tamilians residing in Travancore were being denied voting rights in the state even though Travancore had acceded to the Indian Union. These people, the complaint pointed out, had emigrated to the area over 50 years ago, and had had children born there. “To-day there is none to represent our cause either in Travancore Government or Indian Union,” wrote the president of the Devicolam Taluq Travancore. “When India is fighting for the franchise and other rights of her people in South Africa and Ceylon I am fully confident that your Honour will immediately take up this matter with the present Congress Government now functioning in Travancore and get the most coveted right of voting and other privileges same as that a Travancorian enjoys in the State.”

In response to this grievance, a member of the CAS prepared a note noting that the government of Travancore had refused to register Tamilians in the electoral roll because they were not naturalised subjects of the state. Similar rejections had been carried out in the Cochin state too, and the government of Tripura had also undertaken an exercise to determine a basis for state citizenship. The CAS’s joint secretary ultimately wrote to the chief secretary of the Travancore Government arguing that under the draft Constitution of India there would only be one common law of citizenship and that states could not disenfranchise any of its residents by imposing their own conditions of naturalisation.

To this, the chief secretary answered that the common law of citizenship cannot alter the position of Tamilians in the state, “as neither in law nor in fact is there any necessary connection between citizenship and voting. Voting is a right which a citizen obtains by showing himself possessed of the qualifications which are established by the state in which he resides. Matters pertaining to suffrage will have to be regulated by the state, and it will be for the state to determine who shall vote at elections.”

The Joint Secretary’s final rejoinder was rather telling. The state can no doubt provide qualifications for the purposes of voting, he wrote in his letter, but those qualifications must not be inconsistent with the provisions of part III of the draft constitution, which enumerated the various fundamental rights. Clause (1) of Article 9 of the Draft Constitution [which is today Article 15], the Joint Secretary wrote, “prohibits discrimination against any citizen of India on the ground only of place of birth. If a citizen of India after the commencement of the new Constitution possesses all the qualifications prescribed for voters born in the State, it will not be permissible for the State to disqualify him from voting merely on the ground of place of birth.” What’s more, the Joint Secretary also highlighted that a new article 289B had been proposed, which, on adoption, would entitle every citizen of India to be registered as a voter at elections to the State legislature.

The Travancore government’s objections captured two primary arguments that were made by many in power during the time. One, that there would exist no general, fundamental right to vote, and two, that elections would be an essentially federal process, with separate election commissions being installed for voting at the centre and for voting in each of the states. It was the nature of these conflicts that made clear to the Constituent Assembly that a general principle of equality, both procedural and substantive, must guide the entire electoral process, and that there could be no separate electorates, one for the centre and one in each of the states.

Now, originally, the Fundamental Rights Sub-Committee and the Minorities Sub-Committee of the Constituent Assembly had agreed that a nominal right to vote should be included in the chapter on fundamental rights. The draft article read as follows:

“(1) Every citizen not below 21 years of age shall have the right to vote at any election to the legislature of the Union and of any unit thereof, or where the legislature is bicameral, to the lower chamber of the legislature, subject to such disqualifications on the ground of mental incapacity, corrupt practice or crime as may be imposed, and subject to such qualifications relating to residence within the appropriate constituency as may be required, by or under the law. (2) The law shall provide for free and secret voting and for periodical elections to the Legislature. (3) The superintendence, direction, and control of all elections to the Legislature, whether of the Union or of a unit, including the appointment of election tribunals shall be vested in an election commission for the Union or the unit, as the case may be, appointed, in all cases, in accordance with the law of the Union.”

However, the Advisory Committee on Minorities, Fundamental Rights, etc., headed by Sardar Vallabhbhai Patel, while agreeing with the substantive content of this article, recommended that the clause be included not in Part III, which enumerated the various fundamental rights, but in some other chapter of the Constitution. Patel offered no specific explanation for his committee’s decision, but the move to include the right to vote in a separate part of the Constitution flowed not from any belief in its relative lack of importance, but was likely a judgment founded on form, that elections in India needed separate constitutional grounding with an all-encompassing series of articles and clauses.

If anything, the exchange between the Joint Secretary of the CAS and the Chief Secretary of the Travancore Government only shows us that it was always the intention of the Constitution’s makers—guided as they were by debates that occurred outside the Constituent Assembly—to instil in the electoral system a basic guarantee of fairness. Unfortunately, though, this struggle for equality, these discussions that made clear to the Constituent Assembly that the electoral process would in any event be subject to the larger guarantees in Part III, haven’t informed the Supreme Court’s interpretive process. Time and again, the court has rejected arguments for an inalienable, fundamental right to vote. In Shyamdeo Prasad Singh v. Nawal Kishore Yadav (2000), a 3-judge bench of the court, for instance, held that the “right to contest an election, a right to vote and a right to object to an ineligible person exercising right to vote are all rights and obligations created by statute.” To the court, therefore, the right to vote was merely a license granted by statute that could be taken away just as easily by a legislative act. More recently, in Rajbala v. State of Haryana, (2015), the court cited with approval its own decision in Javed & Others v. State of Haryana & Others, where it had held, rather absurdly, that:

“…right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution, a right to contest election for an office in Panchayat may be said to be a constitutional right…”

These distinctions that the court has drawn between fundamental rights and constitutional and statutory rights ignore the serious contests that went into the conception of the universal franchise. They show us that the fundamental rights enshrined in Part III cannot be isolated from the electoral process. As How India Became Democratic argues, the preparation of the rolls provided a “concrete opportunity for people and administrators across the country to use the constitution…people discussed the constitution and suggested amendments because they saw the constitution as a means of resolving their disputes with the state and of securing their fundamental rights.” Therefore, any law that seeks to restrict a person’s right to vote, or a person’s right to contest an election ought to be tested not only on the provisions of Part XV, which is devoted to elections, but must also fulfil the basic conceptions of equality and liberty enshrined in the various different guarantees of Part III. The right to vote and the right to contest elections cannot be severed from each other. Indeed, they cannot be severed from the basic, foundational promises that the Constitution makes. The making of the universal franchise, as Shani’s book shows us, was a product of a revolution, a movement that had at its base a belief in equal treatment, a belief in principles of inclusiveness. Ignoring this history will de-democratize the Republic, tarnishing a constitutional culture built through the most rigorous contestations on the ground.














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Guest Post: Structure of Freedom – Federalism in the Context of Padmaavat

(This is a guest post by Karan Lahiri, a practicing lawyer.)

Earlier this month, the Supreme Court passed an interim order in the case of Viacom 18 Media Pvt. Ltd. & Ors. v. Union of India & Ors., lifting the bans that the state governments of Gujarat and Rajasthan had imposed on the screening of Sanjay Leela Bhansali’s Padmaavat, the release of which faced violent protests from fringe Rajput groups. It also tied the hands of States like M.P. and Haryana, where similar executive orders were being contemplated, from following suit. Whether one sees this as a reaffirmation of constitutional values, or, more cynically, as a grasping of low-hanging fruit in these fraught times for the Court, the issues thrown up are worth discussing from the standpoint of constitutional doctrine.

In an article published in the Mint, which can be accessed here, I’ve examined how the Padmaavat interim order drew from the Aarakshan judgment (Prakash Jha Productions v. Union of India), as also the 1989 judgment in S. Rangarajan v. P. Jagjivan Ram, both of which establish that States have a positive duty to protect free expression by maintaining law and order. The sequitur is that the States cannot throw up their hands when faced with a heckling mob, and point to instances of violence caused by such hecklers to justify censorship on grounds of law and order.

Apart from addressing the issue of the States’ duty to maintain public order and protect, I believe that the Order vaguely pointed at another important idea, which ought to have been fleshed out in a more organized, coherent manner, when it said –

“Once the parliamentary legislation confers the responsibility and the power on a statutory Board and the Board grants certification, non-exhibition of the film by the States would be contrary to the statutory provisions and infringe the fundamental right of the petitioners.”

The fact that there is a specialized statutory board is not really relevant here. This should not have sounded like an argument on institutional competence. The emphasis ought to be on the fact that this board, i.e. the CBFC, is a creature of Parliamentary legislation. To drive this argument home, the Court ought to have looked at Schedule VII of the Constitution, which divides legislative fields between the Union and the States. Entry 60, List I places “[s]anctioning of cinematograph films for exhibition” as an area in the exclusive domain of the Union Parliament. The power of the States, under Entry 33 List II, extends only to “cinemas subject to the provisions of entry 60 of List I”. This means that, first, States can only regulate individual cinemas through legislation. Second, this power is specifically subordinated to the Union Parliament’s power under Entry 60, List I, making it clear that States have no power whatsoever to enter into the content of the films screened in these cinemas.

One of the few judgments of the Supreme Court which has looked into this division of power between the Union and the States is Union of India v. Motion Picture Association, where the Court observed: –

“The basic purpose of the impugned laws which deal with licensing of cinema halls, and prescribing conditions subject to which such licences can be granted, is to regulate the business activity of the exhibitors of cinematograph films. Obtaining a licence for running such cinema theatres is for the purpose of regulating this business. This purpose has a direct nexus with Articles 19(1)(g) and 19(6) of the Constitution. The source of legislation under this head can be traced to Entry 33 of List II which entitles the States to legislate on “theatres and dramatic performances; cinemas subject to the provisions of Entry 60 of List I; sports, entertainments and amusements”.

That is why State laws have been framed for regulating the terms and conditions on which a licence for exhibiting films at cinema theatres can be obtained. Part III of the Cinematograph Act, 1952 which applies to Union Territories is also in the exercise of the legislative powers under Entry 33 of List II. Since Delhi was a Union Territory and is now National Capital Territory since 1991 by virtue of the Constitution 69th Amendment Act, 1991, Parliament has the power to legislate under this entry also [see Article 246(4) and the relevant provisions of Article 239-AA]. Entry 60 List I on the other hand deals with “sanctioning of cinematograph films for exhibition”. Censorship provisions, for example, would come under Entry 60 of List I and these would directly relate to Article 19(1)(a) and Article 19(2) of the Constitution. The basic purpose of these impugned provisions is, therefore, to regulate the business of exhibiting films in cinema theatres under Entry 33 List II.”

Justice Sujata Manohar, who penned this decision, identified that States can only regulate the business activity of the individual cinema hall, whereas legislation touching the content of the film lies exclusively within the domain of Parliament. This clear delineation of legislative powers ought to have been expressed clearly in the Supreme Court’s interim order.

This line of argument, where federalism and structure blend with rights and freedoms, and where the domain of impact of one tier in a federal system is fenced in, consequently enhancing liberty (e.g. by tying the hands of States in domain of censoring cinema), is not novel. In the United States, it has been used to great effect in advancing the rights of the LGBT community in challenges to the Defence of Marriage Act (DOMA), a federal legislation that had prevented same-sex couples married under their State laws from accessing federal benefits. Judge Boudin of the U.S. Court of Appeals for the First Circuit, in Massachusetts v. HHS, while striking down DOMA, placed the regulation of the rules and incidents of marriage within the domain of the States, and said that federal statutes intruding on matters customarily within State control are to be “scrutinized with special care”. Judge Boudin pointed quite clearly to the blending of structure and rights when he said: –

“True, these federalism cases examined the reach of federal power under the Commerce Clause and other sources of constitutional authority not invoked here; but a statute that violates equal protection is likewise beyond the power of Congress. See Moreno, 413 U.S. at 541 (Douglas, J., concurring). Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.

Therefore, federalism was used by Boudin to justify a closer scrutiny of laws violating the equal protection clause of the US Constitution. This rationale was picked up and taken much further by Justice Anthony Kennedy in the US Supreme Court’s decision in US v. Windsor, fusing federalism with the right of same-sex couples to live with dignity. He wrote: –

“Against this background DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next. Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage.

The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and disabilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.

Kennedy used federalism a little differently from Boudin. While Boudin used it to justify a higher degree of scrutiny, Kennedy used federalism to define a constitutional baseline against which to test DOMA. His argument, at its most basic, runs a little like this: –

  1. Only States can regulate marriage.
  2. States have used this power to recognize the rights of same-sex couples and their right to live with dignity. [This is the baseline set by Kennedy.]
  3. The Federal government, in enacting DOMA, has not only intruded into the domain of the State but also deprived the same class of people whose rights were recognized by the State of important benefit. This is, according to Kennedy, “strong evidence of a law having the purpose and effect of disapproval of that class”.

In other words, the ratcheting back of privileges by the Federal government (an interloper in the domain of States) tested against the baseline set by the States has been used by Kennedy to justify the conclusion that same-sex couples have been singled out for particular disability.

I have attempted to provide these two examples from American constitutional jurisprudence to clarify my own ideas on the link between structure and freedom, perhaps as a starting point for further examination and writing. To this end, I felt it might be useful to think aloud, in the hope that the reader may get a flavor of my claims from a few disjointed threads: –

  1. I think there is a need to look at our Constitution’s structural features more closely, and map this onto the larger doctrinal topography of Indian fundamental rights jurisprudence. For instance, the fact that these structural features (such as the interplay between Entry 60, List I and Entry 33 List II) have freedom-enhancing effects in certain cases cannot lead to the conclusion that they were inherently intended to be freedom enhancing. For this to hold good, there would need to be some evidence of this in our constitutional history supporting this claim, which is perhaps one avenue of inquiry for systematic research.
  2. Second, I recognize the fact that, in general, arguments flowing from federalism (or, indeed, any structural argument, even if it flows from the horizontal separation of powers between the three branches of government) do not, inherently, enhance or constrict freedom. A State law enhancing the breadth of rights may fall to a federalism objection. I am also aware that arguments flowing from structure are agnostic with respect to political valence and the desirability of outcomes. For instance, Boudin’s decision (mentioned above) cites S. v. Lopez, where the conservatives on the U.S. Supreme Court came together to strike down gun control legislation by deploying arguments founded in structure.
  3. I am interested, more specifically, in the formulation and deployment of arguments where there is a hybridity, so to speak, brought about by fusing structure and freedom, and the outcomes in such cases.
  4. Most particularly, it would be worth thinking about such hybridity as both a doctrinal and rhetorical tool in the hands of a judge (and, perhaps, developing a schema that explains particular cases, such as the DOMA cases in the U.S.), as also a strategy in the arsenal of constitutional lawyers, particularly in the face of a conservative bench. A conservative bench, ordinarily wary of expanding freedoms, would perhaps be more amenable to an argument addressing structure and In the Padmaavat case, the bench was headed by the present Chief Justice, who penned the judgment in Devidas Ramachandra Tuljapurkar v. State of Maharashtra, where he created a new class of “historically respected personalities”, previously unknown in our jurisprudence, and used it to justify curbing the breadth of provocative artistic expression touching upon such personalities. Arguably, a pure rights-based argument about Padmaavat, where the Karni Sena’s objections stem from the portrayal of Rani Padmini, a “historically respective personality”, may not have gained traction. What the Padmaavat order tells us, perhaps, is that in the face of a conservative Court, fusing rights with structure may make for a more successful formulation of arguments against intrusive state action.

One concluding point: it needs to be emphasized, for the sake of completeness, that the States could not have relied on Entry 1 of List II, giving the States the power to legislate on “public order”, or on Article 19(2), which allows for reasonable restrictions on free speech on grounds of “public order”, to justify their actions. This is because it would have been difficult to demonstrate that anything in the film constituted the proverbial “spark in a powder keg”, i.e. that the message has a clear tendency to disrupt public order, especially at a time when the movie had not even been released. Obviously, measures designed to maintain public order would have addressed themselves to the violent mob looking to silence expression, and not to an unreleased movie.








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Guest Post: The Rajasthan High Court’s Religious Conversion and Marriage “Guidelines”: Some Privacy Concerns

(This is a guest post by Vasudev Devadasan.)

Last month in Chirag Singhvi v State of Rajasthan the Rajasthan High Court was faced with an increasingly common set of facts. Chirag Singhvi filed a habeas corpus petition arguing that his sister Payal Singhvi had been kidnapped, forcibly converted to Islam, and compelled to marry a Muslim man. The claims regarding the kidnapping were rendered questionable when Payal Singhvi appeared in court on her own volition and it came to light that she had filed a complaint of her own. She claimed to have both converted to Islam and married on her own free will and was being harassed by her brother and father. Nonetheless, the High Court noted that she was born and raised a Jain and thus decided to examine whether an individual must complete a specific procedure before they can convert from one religion to another.

What sets the Chirag Singhvi case apart from the dozen other cases with analogous facts is that the Court took it upon itself to frame certain guidelines regulating how and when a person can convert from one religion to another. While the guidelines re-affirm the right of individuals to change religion, they also impose certain troubling conditions regarding notice and publication. Specifically:

  • The person, who is desirous to change his/her religion, shall give information to the District Collector/SDM/SDO of the concerned city and Sub-Divisional Area before conversion of religion.
  • The District Collector/SDM/SDO shall put such information upon the Notice Board of its office on the same day.
  • The person, who has converted his religion from one religion to another religion, shall solemnize the marriage/Nikah after one week of such conversion of religion.

By requiring individuals to provide public notice of religious conversion the Court’s guidelines raise troubling questions about the right to privacy, the freedom of association, and ultimately the freedom of conscience and propagation of religion. In this post I examine how anonymity is a crucial element in exercising the freedom of association, including religious association, and the potential harms of requiring the disclosure of religious conversions.

Some Context

Before proceeding further, it would be wise to quickly recap the context in which the Chirag Singhvi decision came out. In 2006 the Rajasthan Assembly passed the Rajasthan Dharma Swatantrya Act which made religious conversions made on the basis of “allurement” or “inducement” an offence. The Act did not get the assent of the Rajasthan Governor, who reserved it for the President’s assent. The Advocate General raised some concerns and finally the matter was passed on to the Home Department. The law has still not received the President’s assent. Rather than let the checks and balances of the constitutional scheme operate, the High Court noted that the State Government was “very serious to frame certain rules to govern conversion” and thus thought it more expedient for the High Court to frame guidelines itself. The High Court did not examine why the Act might not have received the Governor or the President’s assent, nor did it even seem concerned that it had not. It merely noted tha the guidelines would be in force until the Act did come into force. What happens if the Act or other regulations do not receive the President’s assent is one left unanswered by the High Court.

The question of religious conversion also has some context. In Stanislaus v State of Madhya Pradesh, the Supreme Court upheld Madhya Pradesh and Orissa’s legislations which criminalised ‘forcible religious conversion’. The Court said that although Article 25 protects the rights of people to “propagate” their religion, it does not allow an individual to convert somebody else to his or her religion. In the Courts own words, “if a person purposely undertakes the conversion of another person to his religion, […] this would impinge on the “freedom of conscience” guaranteed to all the citizens of the country.” This understanding seems to misconceive the reason why religious ideas are disseminated. They are not disseminated, or ‘propagated’ to increase social awareness of a religion, but to engender in individuals the moral conviction that results in conversion. Article 25 thus protects the right to “propagate” religion by individual A, and also protects the “freedom of conscience” of individual B to choose any of the religions being propagated. Thus, disseminating one’s religious ideas to convert others is not an interference with their religious freedom, but rather gives meaning to their “freedom of conscience”.

Coming to the Rajasthan High Court’s guidelines, they go further than the legislations in Madhya Pradesh and Orissa did. The legislations of those two states required the person conducting the conversion ceremony to notify the relevant authority in the event they thought the conversion was coerced. However, the guidelines in Rajasthan require the individual converting to himself/herself give notice of conversion, and by displaying it in public, allowing anyone to object to the conversion.

The right to anonymous association

By requiring that individuals disclose when and which religion they intend to convert to, the guidelines place a restraint on the individual’s freedom of association (included here is their religious association), and thus on their freedom of religion. For example, if an individual intends to convert to a religion whose members have been the victims of persecution, requiring the individual to publicly acknowledge their intention to convert may dissuade him or her from converting because of the risk of persecution. However, if you allow them to convert privately, they may happily do so. We would all balk at the idea of members of a religion being compelled to publicly identify themselves (for example, during the Nazi occupation of Poland, Jews were required to wear white armbands with the Star of David). Requiring individuals who intend to convert provide public notice similarly infringes on this crucial relationship between the “freedom to associate and the privacy of one’s associations”.

The U.S. Supreme Court highlighted this exact problem when the State of Alabama demanded that the National Association for the Advancement of Coloured People (NAACP) disclose its list of members. In NAACP v Patterson, the Court held that by compelling the disclosure of the NAACP’s membership lists, Alabama was violating the privacy of group association which was essential to the freedom of association. The Court stated that, “we think it apparent that compelled disclosure of the petitioner’s membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate.

The Court stated the obvious, that disclosure would dissuade individuals from joining the NAACP as they may face reprisal due to their membership. Crucially, the Court went on to hold that it did not matter that this reprisal was not from the government and may have been from fellow citizens. The Court noted:

It is not sufficient to answer, as the State does here, that whatever repressive effect compulsory disclosure of names of NAACP’s members may have upon participation by Alabama citizens in NAACP’s activities follows not from state action, but from private community pressures. The crucial factor is the interplay of governmental and private action, for it is only after the initial exertion of state power represented by the production order that private action takes hold.

Therefore, it should not matter that an individual facing discrimination or violence due to their conversion to a religion does not face this hardship at the hands of the State. By requiring public notice of conversion, the government is opening up these individuals to the risk of reprisal for actions that they have a constitutionally protected right to pursue.

Treatment in India

The requirement for public notice as espoused by the Rajasthan High Court has in fact been explicitly struck down by both the Himachal Pradesh High Court, and the Delhi High. In striking down the requirement of public notice prior to religious conversion in the Himachal Pradesh Freedom of Religion Act, Justice D. Gupta stated, “A person not only has a right of conscience, the right of belief, the right to change his belief, but also has the right to keep his beliefs secret” (See Evangelical Fellowship of India v State of HP). The Court also noted that the government failed to show how requiring people to publicly disclose their conversion to another religion would in any manner stop, or even reduce forcible religious conversions.

The Delhi High Court also had similar observations regarding the notice requirements in the Special Marriages Act (SMA). While each religion in India has its own set of marriage laws, the SMA allows for inter-religious marriage. Prior to marriage however, there was a requirement to publicly disclose the inter-religious marriage by a notice at the residence of both the husband and the wife to-be. The Delhi High Court struck down this requirement stating that requiring individuals to disclose their marriage to the public was a violation of their right to privacy. As in the two cases above, the Court is affirming the right to privacy that individuals have regarding their associations. This anonymity in association is essential to the meaningful enjoyment of the “freedom of conscience” that Article 25 guarantees. The Court also noted, “The unwarranted disclosure of matrimonial plans by two adults entitled to solemnize it may, in certain situations, jeopardize the marriage itself. In Certain instances, it may even endanger the life or limb of one at the other party due to parental interference.

The case of Chirag Singhvi and countless others is a testament to the fact that the fears of the Delhi High Court were well founded. By requiring individuals to disclose their association on marriage or religion, the State violates their right to privacy and puts them at risk of social persecution.

Post Puttaswamy

It is pertinent to note that these decisions were all prior to last year’s landmark Right to Privacy judgement. In Puttaswamy the Supreme Court emphatically asserted that the right to privacy protects an individual’s “choice of preference” on matters of religion, and stated, “The constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom, to express or not express those choices to the world.” (⁋169) Requiring that individuals provide public notice of their intention to convert from one religion to another seems to fall foul of this right to anonymously practice one’s religion articulated by the Supreme Court, and places the guidelines in a rather dubious position.


The Rajasthan High Court cited the Law Commission’s 235th Report as evidence of the rising problem of religious conversions, and the need to regulate them. It is true that the Law Commission did lay down certain guidelines, but it prefaced these guidelines by stating, “statutory prescription of procedure to establish conversion or nature of proof required is neither desirable nor practicable”. The High Court may have enacted the guidelines in the hope of reducing litigation of the kind in Chirag Singhvi, but such cases centre around the appreciation of evidence, something no statute or guideline can ever achieve. After examining the FIR, the various statements, and the testimony of the Molvi, the Court dismissed the case by stating that Payal Singhvi and Faiez Modi are free to go and “at liberty to live their life as per their choice.” If only the Court had extended this courtesy to the rest of the residents of Rajasthan.

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From a Culture of Authority to a Culture of Justification: The Meaning of Overruling ADM Jabalpur

The nine-judge bench judgment of the Supreme Court in Justice K.S. Puttaswamy vs Union of India is now four-and-a-half months old. The verdict, which held that there exists a fundamental right to privacy under the Indian Constitution, has been analysed threadbare. Its implications for decisional autonomy, personal choice, State surveillance, informational self-determination, and many other facets of privacy, have been debated and discussed. In the coming months, the Supreme Court will have an opportunity to cement the legacy of Puttaswamy, when it hears cases pertaining to almost all these issues. However, there is one aspect of the judgment that has received universal approbation, but no analysis. This is the Court’s decision to overrule its 1976 judgment in ADM Jabalpur vs Shivakant Shukla, the Emergency-era verdict that is widely accepted to mark the “lowest point” in the Court’s history.

Recall that ADM Jabalpur concerned the question of whether individuals who had been preventively detained by the State had the right to approach the Courts in a habeas corpus petition. The background context was the existence of a Presidential proclamation of a State of Emergency; this Proclamation also suspended the the locus standi of all individuals to move the Courts for relief, in case they were detained. A majority of the Supreme Court held that the Presidential Proclamation had validly suspended the remedy of habeas corpus under the Constitution; and because there existed no rights or remedies outside the confined of the Constitution, the Presidential Proclamation acted as a complete bar to exercising the fundamental right to life and liberty. Consequently, a detained person could not approach the Courts arguing that his detention was illegal or unconstitutional.

In Puttaswamy, Justice Chandrachud (writing for a plurality of four judges), Justice Nariman and Justice Kaul all categorically overruled ADM Jabalpur. Their reason was that there were certain basic rights that were recognised by the Constitution, but not conferred by it. These rights were inalienable, and inhered in all human beings simply by virtue of their being human. Specifically, therefore, Puttaswamy overruled the finding in ADM Jabalpur that the Constitution was the sole repository of the rights of citizens.

A narrow view of Puttaswamy would limit it to doing only so much. I think, however, this would be a mistake. It would be a mistake because ADM Jabalpur’s ruling on the character of rights under the Constitution cannot be taken in isolation. It was part of a larger judicial logic that, following the South African Constitutional scholar Etienne Mureinik, I shall label the “culture of authority.” And the repudiation of ADM Jabalpur in Puttaswamy, I will argue therefore, was a repudiation of the culture of authority itself; Puttaswamy is best understood as providing a bridge – a bridge from ADM Jabalpur to a new understanding of the Constitution, an understanding that is based on the “culture of justification.”

ADM Jabalpur and the Culture of Authority 

Recall that in ADM Jabalpur, there were two issues. The first was whether the Presidential Proclamation of Emergency acted as a complete bar to the enforcement of the individual right to life and personal liberty in the courts. The second was the constitutional validity of Section 16(9A) of the Maintenance of Internal Security Act, that allowed for a detenu not to be given access to the grounds of his detention. The broader political context, of course, was Prime Minister Indira Gandhi’s decision to impose an Emergency on the basis that there was a grave internal disturbance that threatened the life of the nation.

Consequently, ADM Jabalpur was delivered during a “state of exception” – that is, a situation where the Executive has suspended the normal functioning of the state, ostensibly to deal with an existential threat. The four majority opinions reflect this in granular detail. The reasoning that culminated in the majority holding that the detenus could not approach Court challenging their detention was based on four principal prongs, each of which reflected the logic of the state of exception.

A. The State of Exception 

The first prong was based on the proposition that the questions of when circumstances arose that justified the imposition of a state of exception (“Emergency”), and what rights and remedies citizens were to be allowed during a state of exception, were to be decided solely by the Executive. As Justice Beg observed:

Laws and law Courts are only a part of a system of that imposed discipline which has to take its course when self-discipline fails. Conditions may supervene, in the life of a nation, in which the basic values we have stood for and struggled to attain, the security, integrity, and independence of the country, or the very conditions on which existence of law and order and of law courts depend, may be imperilled by forces operating from within or from outside the country. What these forces are, how they are operating, what information exists for the involvement of various individuals, wherever placed, could not possibly be disclosed publicly or become matters suitable for inquiry into or discussion in a Court of Law.

Similarly, Justice Chandrachud wrote that “the facts and circumstances leading to the declaration of emergency are and can only be known to the Executive… Judge and Jury alike may form their personal assessment of a political situation but whether the emergency should be declared or not is a matter of high State policy and questions of policy are impossible to examine in courts of law.” He went on to state that:

The mind then weaves cobwebs of suspicion and the Judge, without the means to knowledge of full facts, covertly weighs the pros and cons of the political situation and substitutes ins personal opinion for the assessment of the Executive, which, by proximity and study, is better placed to decide whether the security of the country is threatened by an imminent danger of internal disturbance. A frank and unreserved acceptance of the Proclamation of emergency, even in the teeth of one’s own pre-disposition. is conducive to a more realistic appraisal of the emergency provisions.

At the heart of this articulation is not only the idea that extraordinary times call for extraordinary measures, but also that the determination of when extraordinary times have come upon us, and what extraordinary measures are needed, are for the State to decide. As the Nazi legal theorist Carl Shmitt wrote, “the sovereign is he who decides the State of exception.” According to the Jabalpur majority, this aspect of sovereignty lay solely with the Executive. So, Justice Chandrachud was able to write:

The people of this country are entitled to expect when they go to the ballot-box that their chosen representatives will not willingly suffer an erosion of the rights of the people. And the Parliament, while arming the executive with great and vast powers of Government, may feel fairly certain that such powers will be reasonably exercised. The periodical reviews of detention orders. the checks and counter-checks which the law provides and above all the lofty faith in democracy which ushered the birth of the Nation will, I hope, eliminate all fear that great powers are capable of the greatest abuse. Ultimately, the object of depriving a few of their liberty for a temporary period has to be to give to many the perennial fruits of freedom.

The same logic was at play in the Majority’s decision to uphold Section 16(9A), with Chief Justice Ray noting that:

The reason why Section 16A has been enacted is to provide for periodical review by Government and that is the safeguard against any unjust or arbitrary exercise of power… the grounds of detention and any information or materials on which the detention and the declaration were made are by Section 16A(9) of the Act confidential and deemed to refer to matters of State and to be against public interest to disclose.

A corollary to this was that the very act of vesting such extraordinary power with the Executive raised no constitutional concern. Justice Bhagwati, for example, held that the mere possibility or hypothesis that power might be abused was no ground to deny the existence of the power itself. And Chief Justice Ray noted that:

People who have faith in themselves and in their country will not paint pictures of diabolic distortion and mendacious alignment of the governance of the country. Quite often arguments are heard that extreme examples are given to test the power. If there is power, extreme examples will neither add to the power nor rob the same. Extreme examples tend only to obfuscate reason and reality.

B. Rights and Remedies

Secondly, ADM Jabalpur stood for the proposition that the removal of a remedy did not affect the existence of a right. The Presidential proclamation in question provided that the right of any person including a foreigner to move any Court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution would remain suspended for the period of the Emergency. All four judges in the majority held that by virtue of the Presidential Proclamation of Emergency, it was not that Article 21 was removed or ceased to exist; it was simply that a detenu could not approach the Court under writ proceedings to enforce his right under Article 21.

C. Jurisdiction of Suspicion 

Thirdly, ADM Jabalpur endorsed and authorised what Justice Beg referred to as a “jurisdiction of suspicion”:

Provision for preventive detention, in itself, is a departure from ordinary norms. It is generally resorted to either in times of war or of apprehended internal disorders and disturbances of a serious nature. Its object is to prevent a greater danger to national security and integrity than any claim; which could be based upon a right, moral or legal, to individual liberty. It has been aptly described as a “jurisdiction of suspicion.”

The crucial point was that the validity or reasonableness of the suspicion was entirely up to the Executive to decide. Since the right to move Court stood suspended, no detenu could approach a judicial authority and attempt to prove that the “suspicion” on the basis of which he had been detained was actually groundless, or illegal, or motivated by mala fides. Here again, the overarching justification was that of national security.

D. Salus Populi Est Supreme Lex

Lastly, ADM Jabalpur stood for the proposition that the liberty of the individual was not a paramount value under the Constitution, but simple one among many values to be weighed in the scales – and, in particular, always to be overriden by the principle of “salus populi est supreme lex” (“regard for public welfare is the highest law”). For example, Justice Beg warned against “a too liberal application of the principle that courts must lean in favour of the liberty of the citizen, which is, strictly speaking a principle of interpretation for cases of doubt or difficulty.” This, in turn, was drawn from the belief that individual liberty was a “gift” bestowed by the Constitution and the State, which could be withdrawn during a state of exception. For this, all for judgments of the majority relied upon the wartime British judgment in Liversidge vs Andersen, which had upheld the untrameled power of the Home Secretary to detain people, free from the constraints of judicial review. As Justice Beg wrote:

Clearly the question whether a person is of hostile origin or associations so that it is necessary to exercise control over him, raises, not a justiciable, but a political or administrative issue.

Let us now sum up the elements of the “culture of authority” that was at the foundation of the majority opinions in ADM Jabalpur.

  • There exists a state of normalcy and a state of exception (the paradigmatic example of which is an Emergency).
  • The Executive has the sole prerogative of determining when circumstances exist that a State of Exception ought to replace the default state of normalcy, and what is to happen with respect to citizens’ rights during a State of Exception.
  • The Executive is guided by the principle of “salus populi est supreme lex” (regard for public welfare is the highest law). It is not for the Courts to ask whether:
    1. The conditions requiring the state of exception to be called really exist or not (summed up by defining Court defining the preventive detention powers as a “jurisdiction of suspicion”, and disclaiming the need for showing proximity.
    2. Whether the Executive’s actions actually serve public welfare or not.
  • During the State of Exception, the Executive can suspend rights, suspend remedies, and be the sole arbiter both for the content of the right and for the remedy.
  • The fact that such a power is vested in the Executive and is capable of abuse is no ground for the power not existing. The Executive is always presumed to act in good faith.
  • In sum: “salus populi est supreme lex” is like the Ninth Schedule of constitutional interpretation.

The Foundations of Justice Khanna’s Dissent

In his sole dissenting opinion, Justice Khanna launched a fundamental challenge to this entire way of thinking. Justice Khanna’s dissent was not based merely on a difference with the majority about the question of whether rights existed outside the Constitution or not. Rather, his different was more fundamental, and went to the root of what it meant to live under a Constitutional republic. According to Justice Khanna, at the heart of a constitutional republic was the maintenance of a balance of power between State and individual. The issue was not whether the State may or may not abuse its powers, and the manner in which it might abuse its power in order to violate individual liberty. The issue, rather, was that the very existence of certain kinds of power with the State was a violation of liberty. As he noted:

“…experience should, teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion-of their liberty by evil-minded persons. Greatest danger to liberty lies in insidious encroachment by men of zeal, well-meaning but lacking in due deference for the rule of few.”


Whether such things actually come to pass is not the question before us; it is enough to state that all these are permissible consequences from the acceptance of the contention that Article 21 is the sole repository of the right to life and personal liberty and that consequent upon the issue of the Presidential order, no one can approach any court and seek relief during the period of emergency against deprivation of life or personal liberty. In order words, the position would be that so far as executive officers are concerned, in matters relating to life and personal liberty of citizens, they would not be governed by any law, they would not be answerable to any court and they would be wielding more or less despotic powers.

Constitutionalism meant curtailing what the State was able to do its citizens. To give the State power to both determine the state of exception, and then also to determine what rights and remedies citizens had during such a period, simply on the invocation of salus populi, was to make a mockery of the very idea of a constitutional republic. Consequently, Justice Khanna rejected the argument that, in the interests of public safety and public welfare, the Executive could be left to solely determine the scope and ambit of rights enjoyed by citizens, noting that “the power of the courts to grant relief against arbitrariness or absence of authority of law in the matter of the liberty of the subject may now well be taken to be a normal feature of the rule of law.”

A corollary of this was Justice Khanna’s rejection of the “jurisdiction of suspicion” – that is, the idea that during the state of exception, the Executive was vested with the sole power of curtailing the liberty of any individual it suspected of being a threat to the established order:

Normally, it is the past conduct or antecedent history of a person which shows a propensity or a tendency to act in a particular manner. The past conduct or antecedent history of a person can, therefore, be appropriately taken into account in making a detention order. It is indeed largely from the past events showing tendencies or inclinations of a person that an inference can be drawn that he is likely in the future to act in a particular manner. In order to justify such an, inference, it is necessary that such past conduct or antecedent history should ordinarily be proximate in point of time. It would, for instance, be normally irrational to take into account the conduct an activities of a person which took place ten years, before the date of ins detention and say that even though after the said incident took place* nothing is known against the person indicating ins tendency to act in a prejudicial manner, even so on the strength of the said incident which is ten years old, the authority is satisfied that ins detention is necessary. It is both inexpedient and undesirable to lay down an inflexible test as to how far distant the past conduct or the antecedent history should be for reasonably and rationally justifying the conclusion that the person concerned if not detained may indulge in prejudicial activities. The nature of the activity would have also a bearing in deciding the question of proximity. If, for example, a person who has links with a particular’ foreign power is known to have indulged in subversive activities when hostilities broke out with that foreign power and hostilities again break out with that foreign power after ten years, the authorities concerned, if satisfied on the basis of the past activities that it is necessary to detain him with a view to preventing him from acting; in a manner prejudicial to the security of India, might well pass a detention order in respect of that person. The fact that in such a case there is a time lag of ten years between the activities of the said person and the making of the detention order would not vitiate such an order. Likewise, a remote prejudicial activity may be so similar to a recent prejudicial activity as may give rise to an inference that the two are a part of chain of prejudicial activities indicative of a particular inclination. In such an event the remote activity taken along with the recent activity would retain its relevance and reliance upon it would not introduce an infirmity. If, however, in a given case and in the context of the nature of activity the time lag between the prejudicial activity of a detenu and the detention order made because of that activity is ex facie long, the detaining authority should explain the delay in the making of the detention order with a view to show that there was proximity between the prejudicial activity and the) detention order. If the detaining authority fails to do so, in spite of an opportunity having been afforded to it, a serious infirmity would creep into the detention order.

Towards the Culture of Justification 

Justice Khanna’s dissenting opinion in ADM Jabalpur, reminiscent of Lord Atkins’ dissent in Liversidge vs Andersen, exemplified the “culture of justification”. Mureinik writes thus:

If the new Constitution is a bridge away from a culture of authority, it is clear what it must be a bridge to. It must lead to a culture of justification –a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command. The new order must be a community built on persuasion, not coercion.

The phrase “every exercise of power is expected to be justified” is at the heart of this vision of constitutionalism. In particular, it is a complete repudiation of salis populi supreme est lex. The State cannot simply decide to compel its citizens by invoking the larger goal of public welfare. The State must, rather, justify every act of compulsion. It must justify, for example, that its exercise of power will actually serve public welfare. It must explain how it will do so. It must explain that the only way of doing so is through the route of force and compulsion. It must prove that there is no other non-coercive way of achieving that goal, and that it is not imposing any more compulsion than is strictly required in the interests of public welfare. It must show that the amount of power it arrogates to itself in order to carry through its coercive action is proportionate to the importance of the goal it seeks to achieve. And the State cannot impose a regime of permanent suspicion: a regime in which the only justification for the exercise of coercion is that all citizens are potential criminals, and preventive compulsion is the only effective mechanism of preserving the public good. The culture of justification prohibits the State from presuming criminality and law-breaking.

And most importantly, the State cannot be the sole judge and arbiter of these questions. It is the constitutional courts that must carefully examine and scrutinise each of these issues, where the exercise of power is concerned. The courts need not attribute bad faith to the State, or assume the existence of abuse; rather, as Justice Khanna pointed out all those years ago, the Court must be “most on… guard to protect liberty when the Government’s purposes are beneficent.” Therefore, it is precisely when the State claims salus populi, and asks the Court to back off so that it can freely exercise compulsion in order to secure public welfare, that the Court must be at its most vigilant. It is then that the hardest and most searching questions must be asked of the State, and the State put to strict proof in answering the questions outlined above. To adopt a hands-off approach on the basis that these are questions of “high State policy”, and that it is not for judicial authorities to enter into the realm of policy-making and second-guess the State on issues of general welfare, would be only to repeat the mistake of ADM Jabalpur, and ignore the lesson of Justice Khanna.

In the coming months, the Court is scheduled to hear a number of constitutional cases that have far-reaching effects on individual freedom and State power. When it decides those cases, the shadow of Puttaswamy and of Justice Khanna will loom large. It is now for the Court to complete the transformation from the culture of authority to the culture of justification, which was the promise of the Constitution, the hope of Justice Khanna when he dissented, and the beginning of the path outlined in Puttaswamy.

This is, after all, a Constitution that chose to make the individual its basic and most fundamental unit.


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Section 377 Referred to a Constitution Bench: Some Issues

In an order passed today, a three-judge bench of the Supreme Court, headed by the Chief Justice, referred the correctness of the judgment in Suresh Kumar Koushal vs Naz Foundation to a Constitution Bench. Because of the complex history of this case, some background is essential to understand the implications of today’s order. Recall that on December 11, 2013, a two-judge bench of the Supreme Court, in Koushal, had upheld the constitutional validity of Section 377 of the Indian Penal Code, which criminalises carnal intercourse against the order of nature. In doing so, the Supreme Court overturned the 2009 judgment of the Delhi High Court in Naz Foundation vs NCT of Delhi, which had read down Section 377 and decriminalised consensual same sex relations between adults. Although the Supreme Court did not specify what constituted “carnal intercourse against the order of nature”, its judgment was widely understood to recriminalise homosexuality in effect, if not in so many words.

Soon after the judgment in Koushal, a different two-judge bench of the Supreme Court delivered judgment in NALSA vs Union of India, where it upheld and affirmed the constitutional rights of transgender persons under Articles 14, 15, 19 and 21 of the Constitution. As I argued at the time, Koushal and NALSA rested on mutually irreconcilable foundations – the exact arguments that had been rejected in Koushal had been accepted in NALSA, and so, the only way out was to review the correctness of Koushal.

In the meantime, review petitions contesting the correctness of Koushal had been dismissed. Petitioners then took the last route open to them: they filed curative petitions. A curative petition is an extraordinary remedy developed by the Supreme Court in its 2002 judgment in Rupa Ashok Hurra. It is basically a remedy of the last resort: even after a review is rejected, the Court may still reconsider its judgment in certain exceptional circumstances. Hurra set out the exceptional circumstances:

“… this Court, to prevent abuse of its process and to cure a gross miscarriage of justice, may re-consider its judgments in exercise of its inherent power. The next step is to specify the requirements to entertain such a curative petition under the inherent power of this Court so that floodgates are not opened for filing a second review petition as a matter of course in the guise of a curative petition under inherent power. It is common ground that except when very strong reasons exist, the Court should not entertain an application seeking reconsideration of an order of this Court which has become final on dismissal of a review petition. It is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained. Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgement adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner… we are of the view that since the matter relates to re- examination of a final judgment of this Court, though on limited ground, the curative petition has to be first circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of, if available. It is only when a majority of the learned Judges on this Bench conclude that the matter needs hearing that it should be listed before the same Bench (as far as possible) which may pass appropriate orders.”

The rarity of the curative remedy is reflected by the fact that in the fifteen years since Hurra, only four curative petitions have been allowed. However, in 2014, Petitioners won a significant victory when the Court agreed to hear the Naz curative in “open court” – most curative petitions are dismissed by circulation in judges’ chambers.

The Naz curative was then listed for hearing on the 2nd of February, 2016, before the three senior-most judges at the time – Chief Justice Thakur, and Justices Dave and Khehar. After some oral argument, the Court passed the following order:

“All that we need say is that since the issues sought to be raised are of considerable importance and public interest and since some of the issues have constitutional dimensions including whether the Curative Petitions qualify for consideration of this Court in the light of the Judgment in Rupa Ashok Hurra’s case (Supra), it will be more appropriate if these petitions are placed before a Constitution Bench comprising five Hon’ble Judges of this Court.”

In other words, all questions – including the question of whether the curative petition could be admitted for hearing – were to be decided by a five-judge bench.

Later that year, however, a fresh petition was filed challenging the constitutional validity of Section 377.  Navtej Johar vs Union of India was filed by five LGBT individuals as a writ petition under Article 32 of the Constitution (and not a public interest litigation, like Naz Foundation was), alleging direct violation of fundamental rights. When this petition came before a two-judge bench of the Court on 29th June 2016, the Court passed the following order:

“The issue pertains to the validity of Section 377 of the Indian Penal Code. We are informed that the Constitution Bench of this Court is hearing the issue. Post this matter before Hon’ble the Chief Justice of India for appropriate orders.”

Both the curative petitions and this petition then went into cold storage. In late August 2017, however, the nine-judge bench of the Supreme Court handed down the famous “Privacy Judgment”. As we have discussed before, the a majority of judges in the privacy judgment directly held that sexual orientation was a facet of privacy, and very publicly doubted the correctness of Koushal. In his plurality, Justice Chandrachud observed:

…  we disagree with the manner in which Koushal has dealt with the privacy – dignity based claims of LGBT persons on this aspect. Since the challenge to Section 377 is pending consideration before a larger Bench of this Court, we would leave the constitutional validity to be decided in an appropriate proceeding.” (para 128)

While, therefore, judicial propriety and discipline prevented the nine-judge bench from overruling Koushal, there was little doubt that the bottom was entirely knocked out of that judgment – and it was only a question of when – not if – Koushal would be overruled.

It is in this context that we must understand today’s referral order. The order was made in the Navtej Johar petition, which had been filed after the initial curative hearing, and had not been tagged with the curative petitions. In the order, the Court observes the existence of the NALSA judgment, and also Puttaswamy. It then notes:

“… the said decision [Puttaswamy] did not deal with the constitutional validity of Section 377 IPC as the matter was pending before the larger Bench. The matter which was pending before the larger Bench is a Curative Petition which stands on a different footing.”

After noting that the issue of consensual same-sex relations “needs to be debated”, the Court concludes as follows:

“Taking all the aspects in a cumulative manner, we are of the view, the decision in Suresh Kumar Kaushal’s case (supra) requires re-consideration. As the question relates to constitutional issues, we think it appropriate to refer the matter to a larger Bench.”

A few questions arise from this. The first and most important is: what is status now? In Puttaswamy, the Court specifically declined to overrule Koushal on the basis that it was already being considered by a Constitution Bench. Today’s order effectively authorises the Chief Justice to set up a parallel Constitution Bench that will also consider Koushal. In that case, what happens to the curative proceedings? Today’s order observes that the curative proceedings “stand on a different footing”; that is, of course, true. The curative petitions have to be argued according to the very strict Hurra standard (see above), and cannot also invoke NALSA or Puttaswamy. A judgment asking for reconsideration of Koushal, however, is not bound by the Hurra standard.

That, however, leads to a conceptual problem: given that a curative petition in Koushal is pending and has been specifically referred to a Constitution Bench, clearly, Koushal is already under reconsideration. Or, to put it another way, the judgment in Koushal has not yet attained finality – it is subject to the outcome of the curative proceedings. From that perspective, today’s order appears to either mandate the reconsideration of a judgment that is already being reconsidered (if you take the judgment itself as final), or to mandate the reconsideration of a judgment that is not yet final (if you take the conclusion of curative proceedings as the point of finality).

The situation is further clouded when you consider the fact that – as the Court held in Hurra “the curative petition has to be first circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of, if available. It is only when a majority of the learned Judges on this Bench conclude that the matter needs hearing that it should be listed before the same Bench.”

In other words, the task of a curative bench, if the curative petition succeeds, is to send the matter back for a fresh hearing (and not to decide the case on merits itself). That is, if a curative petition succeeds, then the judgment under challenge is to be reconsidered.

But that is exactly what today’s order, in effect, achieves, when it says that “the decision in Suresh Kumar Koushal’s case requires reconsideration.” Or, in other words, today’s order effectively allows the curative petitions by a side-wind. Suddenly, the most difficult hurdle before the original petitioners – to meet the threshold requirements under Hurra – has been swept away.

The upshot, therefore, is this: the pending curative petitions have now been made effectively infructuous (by that I mean that while the curative petitions are still pending, and technically due to be heard, their subject matter – crossing the Hurra threshold – has effectively been decided separately now, so in substance, there is nothing that remains to be argued when they do come up for hearing). By virtue of today’s order, the issue of the constitutional validity of Section 377 is to be heard afresh, and the correctness of Koushal to be reviewed from scratch. There will of course be some procedural issues to untangle – the petitioners in the curative petitions will now have to either get those petitions tagged with Johar or file fresh intervention applications. The basic point, however, is that today’s order marks a very significant advance in the legal struggle against Section 377.

One last point: today’s order calls for a reconsideration of Koushal primarily by invoking the judgments in NALSA and PuttaswamyPuttaswamy, of course, was entirely about the right to privacy, and the relevant portion of NALSA cited by the Court also refers to privacy (in the context of Article 21). This should not result in the future Supreme Court hearing reviewing Koushal only on the grounds of privacy; Koushal‘s analysis of Articles 14 and 15 was every bit as wrong-headed as its “understanding” of Article 21. If the Court is now going to hear the case afresh, then it will, hopefully, rule not only on Article 21, but on issues of equality and non-discrimination as well.

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Filed under Bodily Privacy/Integrity, Decisional Autonomy, Equality, Privacy, Sex Equality, Sexuality