Notes from a Foreign Field: The Kenyan Supreme Court on Housing, Evictions, and the Right to Land

In Mitu-Bell Welfare Society v The Kenya Airports Authority, the Kenyan Supreme Court set out some important propositions with respect to the right to housing, evictions, and structural interdicts. The case involved a set of residents of the Mitumba Village, which was located near the Wilson Airport. On 15th September 2011, a Notice was published in the newspapers by the Attorney-General, giving the residents one week to vacate the land. The residents obtained a stay from the High Court, but the State authorities went ahead and demolished their houses anyway. The residents then asked the High Court to issue a finding that the demolition was illegal, that they were entitled to the land, or – in the alternative – to reasonable alternative accommodation, and to compensation.

The High Court agreed. Mumbi Ngugi J. found that the residents did not have a legal right over the land (it was public land). Despite that, however, the Notice of Eviction was unreasonable; first, because of the short seven-day period; secondly, in the absence of domestic legislation on the subject, international human rights law would apply, and the Eviction Notice fell short of those standards; thirdly, the destruction of the residents’ houses and personal effects violated their right to property under the Kenyan Constitution; fourthly, the refusal to provide reasonable alternative accommodation violated the residents’ right to housing under the Kenyan Constitution; fifthly, the residents’ had a constitutional right to public participation and consultation before eviction, which had not been done; sixthly, that the demolitions had been discriminatory, as multi-story buildings, also in the vicinity of the airport, had not been touched; and finally, the rights of children had been violated (as their school had been demolished). Coming to relief, the High Court crafted a “structural interdict” (what we understand as a continuing mandamus), requiring the State to submit a plan for what it intended to do with respect to shelter and access to housing for marginalised groups, and – for this specific case – to meaningfully engage with the residents and find an appropriate resolution.

The Kenyan Court of Appeal reversed the High Court’s judgment. It held, first, that the State was under no obligation to reallocate land, given that the residents had no legal right to it; secondly, that considerations of “national security” justified the eviction (tragically, the Court of Appeal cited Indian judgments for this purpose); thirdly, that the High Court was not entitled to grant a structural interdict/continuing mandamus, and the format of the structural interdict in the present case involved overstepping judicial boundaries; fourthly, that international human rights law was inapplicable to the present case, as the Kenyan Constitution and legislation covered the issue; fifthly, that socio-economic rights – such as the right to housing – were only progressively realisable, and therefore unenforceable; and finally, that “it is not the role or function of the Courts to re-engineer and redistribute private property rights.”

The case therefore came up to the Kenyan Supreme Court. In a (relatively) narrowly-reasoned opinion, the Supreme Court partially allowed the residents’ appeal, and reversed the judgment of the Court of Appeal (although the judgment of the High Court was not entirely restored). Because of jurisdictional constraints under the Kenyan Constitution, the Supreme Court essentially limited itself to addressing four issues: (a) the role of structural interdicts as a form of judicial remedy; (b) the application of international human rights law in domestic adjudication; (c) the relevance of UN Guidelines in the interpretation of socio-economic rights; (d) the scope of the right to housing under Article 43 of the Kenyan Constitution.

On the first issue, the Supreme Court noted that the scope of remedies was governed by Article 23 of the Kenyan Constitution. Article 23 used the word “may” when setting out forms of judicial relief (declaration, injunction etc.). Article 23, therefore, was an illustrative list, as had been affirmed by precedent. Structural interdicts, thus, were not ruled out by the Constitution. At the same time, the Supreme Court clarified that:

… interim reliefs, structural interdicts, supervisory orders or any other orders that may be issued by the Courts, have to be specific, appropriate, clear, effective, and directed at the parties to the suit or any other State Agency vested with a Constitutional or statutory mandate to enforce the order. Most importantly, the Court in issuing such orders, must be realistic, and avoid the temptation of judicial overreach, especially in matters (sic) policy. The orders should not be couched in general terms, nor should they be addressed to third parties who have no Constitutional or statutory mandate to enforce them. Where necessary, a court of law may indicate that the orders it is issuing, are interim in nature, and that the final judgment shall await the crystallization of certain actions. (para 122)

The Supreme Court, therefore, endorsed a form of bounded structural interdict, that would bring it in line with separation of powers. It found that at least a part of the High Court’s order failed to comply with this threshold.

On the second and third issues, the Court found – unsurprisingly – that international law principles were applicable in informing the interpretation of Constitutional articles. Consequently, it was permissible for the judge to “refer to the Guidelines as an aid in fashioning appropriate reliefs during the eviction of the appellants. Rather than offending the Constitution, the Guidelines actually do fill the existing lacuna as to how the Government ought to carry out evictions.” (para 142)

It is on the question of the right to housing that the Supreme Court returned its most interesting findings. Article 43 of the Kenyan Constitution states that: “Every person has the right to accessible and adequate housing, and to reasonable standards of sanitation.” Article 21(2) enjoins the State to take measures for the progressive realization of this right. Article 20(5) further provides that if the State claims that it is unable to fulfil an Article 43 right because of a lack of resources, it will bear the burden of showing that, and will also ensure that resources are prioritised to serve the interests of the most marginalised. The Court then noted:

… the right to housing in Kenya is predicated upon one’s ability to “own” land. In other words, unless one has “title” to land under our land laws, he/she will find it almost impossible to mount a claim of a right to housing, even when faced with the grim possibility of eviction. (paragraph 149)

The Court then came to the heart of its argument. While holding that an “illegal occupation” over “private” land could not create prescriptive rights in favour of the occupants, the case was different for public land. In short:

… we are of the considered opinion, that where the landless occupy public land and establish homes thereon, they acquire not title to the land, but a protectable right to housing over the same. Why, one may wonder, should the illegal occupation of public land give rise to the right to shelter, or to any right at all? The retired Constitution did not create a specific category of land known as “public land”. Instead, the constitution recognized what is referred to as “un-alienated government land”. The radical title to this land was vested in the president, who through the Commissioner of lands, could alienate it, almost at will. The consequences of this legal regime have been adequately recorded for posterity elsewhere. The 2010 Constitution has radically transformed land tenure in this country by declaring that all land in Kenya belongs the people of Kenya collectively as a nation, communities and individuals. It also now creates a specific category of land known as public land. Therefore, every individual as part of the collectivity of the Kenyan nation has an interest, however indescribable, however unrecognizable, or however transient, in public land. (paragraph 151)

This is a fascinating – and potentially radical – argument. Effectively, the Kenyan Supreme Court held that in a democratic, constitutional polity, land belonged to the people. For this reason, even where (landless) people did not have a legal right to land, they retained an interest in it. This, then, allowed the Court to go on and hold:

The right to housing over public land crystallizes by virtue of a long period of occupation by people who have established homes and raised families on the land. This right derives from the principle of equitable access to land under Article 60 (1) (a) of the Constitution. Faced with an eviction on grounds of public interest, such potential evictees have a right to petition the Court for protection. The protection, need not necessarily be in the form of an order restraining the State agency from evicting the occupants, given the fact that, the eviction may be entirely justifiable in the public interest. But, under Article 23 (3) of the Constitution, the Court may craft orders aimed at protecting that right, such as compensation, the requirement of adequate notice before eviction, the observance of humane conditions during eviction (U.N Guidelines), the provision of alternative land for settlement, etc. (para 152)

And:

The right to housing in its base form (shelter) need not be predicated upon “title to land”. Indeed, it is the inability of many citizens to acquire private title to land, that condemns them to the indignity of “informal settlement”. Where the Government fails to provide accessible and adequate housing to all the people, the very least it must do, is to protect the rights and dignity of those in the informal settlements. The Courts are there to ensure that such protection is realized, otherwise these citizens, must forever, wander the corners of their country, in the grim reality of “the wretched of the earth.” (para 153)

In other words, therefore, the Supreme Court decoupled the legal right to land (as set out under a country’s property law regime) from a constitutional interest in land (which, in turn, informed the right to housing), which inhered in all people, by virtue of the democratic principle that all land belongs to the people (one can see similarities with the concept of the “right to the city”). The constitutional interest in land would not always translate into a property right, but it would vest in the occupant a range of enforceable legal rights (for example, against eviction/to alternate accommodation/to reasonable engagement etc.), that the Court would articulate and vindicate, on a case to case basis.

This finding does, however, lead to a certain tension within the Court’s judgment. If indeed there is a democratic principle that all land belongs to the people, then the Court’s distinction between “public land” (where these principles apply) and “private land” (where they do not) is unsustainable. There is no inherent distinction between “private” and “public land” that is external to State law – any such distinction is legally constructed (by the State’s property law regime). The distinction would also mean that every time the State sold land to a private party, the peoples’ rights would be further narrowed. For this reason, it is respectfully submitted that the Supreme Court’s finding that land belongs to the people would, indeed, have to apply to all land, and not just defined “public land” – and the range of remedies spelt out by the Court would apply to occupation on both private and public land.

The Court finished by remitting the case back to the trial Court, with an instruction that it be disposed off in line with its findings and with the original pleadings. It remains to be seen what the High Court – that delivered the most far-reaching judgment of the three Courts – will do. But for now, it is important to note that the Supreme Court’s analysis of the right to land contains the germ of a transformative jurisprudence that recognises that inequality in access to, and control over, land is at the heart of inequality in society. In this case, the Supreme Court did not develop that idea further; perhaps, in later cases, it will.

Giving Freedom Some Breathing Space: The Allahabad High Court’s SMA Judgment

Yesterday, a single judge of the Allahabad High Court handed down an important judgment reading down Sections 4 & 5 of the Special Marriage Act, which requires couples to notify Marriage Officers one month in advance of their marriage, and for Marriage Officers to publicise such a notification. The SMA allows for any person to “object” to the marriage on the basis that it (allegedly) violates provisions of the Act (Section 7). The case – Safiya Sultana v State of UP – came to the Court as a habeas corpus case, but on resolving the issue of habeas corpus, the couple in question also asked for a finding on Sections 4 & 5 of the Special Marriage Act, especially in light of the ongoing cases under the Uttar Pradesh Prohibition of Unlawful Conversion of Religious Ordinance (separately under challenge before the Allahabad High Court). The reason for this was:

“… young couples are not in a position to raise these issues before solemnizing their marriages as any litigation further attracts unnecessary attention which invades into their privacy and also causes unnecessary social pressure upon them with regard to their choice of a life partner.”

Justice Vivek Chaudhary agreed with this argument, and proceeded to examine the Special Marriage Act on the touchstone of constitutionality. He began by noting that as the SMA had been passed in 1954, the task before the Court was to examine whether the social and legal landscape, in the meantime, had altered to a degree so as to warrant a different interpretation of the Act’s provisions. Justice Chaudhary observed that the 242nd Report of the Law Commission (2012) had specifically recommended deleting the notice requirement, observing that it would keep a check on “high handed or unwarranted interference”, which often took the form of social boycotts, harassment etc.

Justice Chaudhary then went on to observe that in a series of judgments – from 2006 onwards – the Supreme Court had repeatedly emphasised the role of individual autonomy in questions of marriage, and held it to be inherent in Articles 19 and 21 of the Constitution. Examining the Puttaswamy privacy judgment in some detail in order to glean the scope of the right to privacy, the Court followed up by noting – crucially – that in Navtej Johar, it had been clarified that, when examining a law for constitutionality, what was important was not its object or form, but its effect. Drawing precedent together, Justice Chaudhary concluded by observing that:

“The law as declared by the Supreme Court, since the case of Lata Singh till the decision in Navtej Singh Johar, has travelled a long distance defining fundamental rights of personal liberty and of privacy. “Once a person becomes a major he or she can marry whosoever he/she likes” (Lata Singh); “choice of woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognized in the Constitution under Article 19” (Asha Ranjan); “the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock…..it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution” (Shakti Vahini); “Neither the state nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters….. social approval for intimate personal decisions is not the basis for recognising them.” (Shafin Jahan) and finally the nine-judges bench “Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and selfdetermination…….privacy is one of the most important rights to be protected both against State and non-State actors and be recognized as a fundamental right” (Puttuswamy) is a long chain of decisions growing stronger with time and firmly establishing personal liberty and privacy to be fundamental rights including within their sphere right to choose partner without interference from State, family or society.” (para 40)

Thus, a combination of the propositions that (a) an individual’s autonomous choice in intimate matters was constitutionally protected, and (b) constitutionality had to be considered by the effect of a law, brought Justice Chaudhary to the conclusion that the SMA had to be interpreted in a way that its reporting requirements would have to be read as voluntary, not mandatory:

The interpretation of Sections 6 and 7 read with Section 46 containing the procedure of publication of notice and inviting objections to the intended marriage in Act of 1954 thus has to be such that would uphold the fundamental rights and not violate the same. In case the same on their simplistic reading are held mandatory, as per the law declared today, they would invade in the fundamental rights of liberty and privacy, including within its sphere freedom to choose for marriage without interference from state and non-state actors, of the persons concerned. (para 45)

Justice Chaudhary buttressed this conclusion by noting that there were no similar reporting requirements under the several personal laws, and that therefore, there was no reason to make the process under the SMA more onerous.

The judgment of the Allahabad High Court represents an important judicial pushback against what has been – of late – increasing State interference in questions of marriage, including by empowering social and vigilante groups. The SMA’s notice requirements, of course, are not new: as the Court observed, they were present at the very beginning, when the original SMA was introduced in 1872. However, arguably, it is these notice requirements that have formed the baseline of further intrusions (the UP ordinance also has a similar notice requirement). What is most important is what they signify: notice and reporting requirements convey a message to the world that decisions of the most intimate character are not for the individual to make, but must be ratified by the society (which, in practical terms, means the dominant members of society). In practice, they leave individuals and couples with a stark choice: face the possibility of social persecution and violence, or give up your freedoms. These are not choices that a constitutional democracy should be asking its citizens to make.

In recognising that, Justice Chaudhary’s judgment represents an authentic articulation of liberty under the Indian Constitution.

The Unwholesome Servility of the Kerala High Court

In 2020, while dismantling the constitutional guarantees of personal liberty, our Courts gave us some memorable lines as background score to accompany the clanking of prison bars. The prize for the best essay was finally split between the J&K High Court’s invocation of the Greek tyrant Menelaus and the Patiala House District & Sessions judge’s sanctimonious “if you play with embers…” Four days into 2021, however, a Kerala High Court Division Bench of Hariprasad and Haripal JJ have already beaten all comers for this year, with something truly extraordinary. In paragraph 39 of their judgment setting aside a well-reasoned bail order of the NIA Court, these judges note that:

“We would also like to remind the learned Judge that the impugned order has been prepared as if it is a court of record which was unnecessary. Similarly, the learned Judge, while quoting some judgments of the Apex Court, has stated the names of the Hon’ble Judges who authored the judgments which is unwholesome.”

First of all, what is an “order … prepared as if it is a court of record”? We do not know, but if the order served up to us by Hariprasad and Haripal JJ is supposed to be an example of what “courts of record” do, then perhaps the learned NIA judge would be well-served by taking this gratuitous piece of advice to heart. But it is the second line that is truly mind-boggling. Hariprasad and Haripal JJ appear to believe that Supreme Court judges are not public servants who have sworn an oath to uphold the Constitution, but gods on high whose “names” lesser mortals like a mere NIA judge (and presumably, by extension, the rest of us who do not sit on “courts of record”) ought not to take. After all, who knows what would happen if all of us started taking the names of Supreme Court judges in vain? Plagues, perhaps, or frogs from the sky, or maybe we’d just vanish in a cloud of contempt-tinged smoke. All very unwholesome occurrences. But jokes apart, this needs to be called out for what it is: two High Court judges browbeating and bullying a subordinate judge for daring to do his job, while signalling a servile fealty to the Supreme Court. And that is how the worst of hierarchies work: admonishment to those below, obsequiousness to those above.

It would have been bad enough if paragraph 39 was the worst of it, but unfortunately, it does not even begin to scratch the surface. The NIA Court had granted bail to two men accused of offences under the UAPA. The case of the Prosecution was that these men had been found in possession of materials that promoted Maoist ideology and advocated the “liberation” of Jammu & Kashmir. What is notable about this case is that whereas in other UAPA cases, the Prosecution makes at least a token attempt to link the accused with actual terrorist activities, or tangible associations with a banned organisation (for example, collecting funds, or collecting arms), here the Prosecution’s case was actually only limited to the possession of Maoist literature and sloganeering, apart from accusations of “attending meetings” and preparing “cloth banners.”

The Supreme Court – the names of whose judges we cannot take – has laid down clear jurisprudence on this issue. “Membership” of a banned organisation – according to the Supreme Court – has to be understood as being limited to “active membership”, i.e., incitement to violence. If passive membership was also held to be a part of the UAPA, then its sections would be unconstitutionally broad, and would have to be struck down. Consequently, these judges – who shall remain nameless – have made clear that even at the prima facie stage – and notwithstanding Section 43(D)(5)’s high threshold for granting bail – it must at the very least be shown that if the Prosecution’s case was taken to be true, it would have to meet the threshold for active membership.

It is obvious that in the present case, taking the Prosecution’s own case at face value (as laid down in the Watali judgment), the offence of active membership had not been made out. However, in exhorting the learned NIA judge not to dare name Supreme Court judges, Hariprasad and Haripal JJ seemed to have simultaneously exempted themselves from studying Supreme Court judgments. While there are copious references to Watali on the issue of bail under the UAPA, Hariprasad and Haripal JJ seemed either oblivious of Supreme Court judgments on the scope of the UAPA offences, or – for reasons best known to themselves – decided that it is optional to engage with Supreme Court judgments that go in favour of individual liberty.

Not only are Hariprasad and Haripal JJ wrong on law, but their judgment also contains multiple leaps of logic. In para 23, they go from “the accused were in possession of CPI(Maoist) literature” to “the accused are protagonists” of the CPI(Maoist) – not so much a logical leap as a running long-jump over the Grand Canyon. In my house, I have a lot of literature written by winners of the Hugo Awards, and I do wish that ipso facto made me a winner of a Hugo Award. Unfortunately, that is not how the world works, something that most people are aware of (but not, it would appear, Hariprasad and Haripal JJ). Hariprasad and Haripal JJ then go on to cite evidence that the accused had a “rapport” with persons having “close links” with the banned organisation: note, not that the accused were part of a banned organisation, not that they had close links with a banned organisation, but that they had a “rapport” with “persons who had close links” with the banned organisation. Not only are we at opposite ends from the Supreme Court’s requirement of “active membership”, but we are at opposite ends from any respectable concept of causation in criminal law. Similarly, Hariprasad and Haripal JJ go on to refer to “ocular evidence” that the accused were attending “meetings” of the banned organisation – failing to recognise, yet again, the distinction between “active membership” and attendance at meetings.

If this were not disturbing enough, we now come to something profoundly alarming. In paragraph 26, Hariprasad and Haripal JJ state:

True, the prosecution could not prove that the respondents are members of an unlawful organisation. But these are surreptitious activities for which evidence may not readily available, in black and white. Everything is done under the carpet, behind the curtain, without leaving any footprint.

In short: you are guilty if there is evidence against you. But you are also guilty if there is no evidence against you, because that only shows how good you are at operating “surreptitiously”. The State always wins. At this stage we are in Stalinist show-trial territory. Hariprasad and Haripal JJ then go into how the accused made “photocopies” (!) of documents, how they perceived the State to be their “foes”, and how the documents referred to overt and covert comrades. Things then pass into surreal territory, where Hariprasad and Haripal JJ observe that one of the documents mentioned the dangers of phone hacking, that the accused did not have their phones with them when they were arrested, and that this shows that they were “following a diktat.” If Hariprasad and Haripal JJ had spent their free time studying judgments of the Supreme Court (whose judges, I must remind you, we cannot name) instead of reading The Day of the Jackal, this “court of record” may have produced a better judgment than something reading like Frederick Forsyth’s fevered dream.

Hariprasad and Haripal JJ then put the cherry on top of this concoction by stating that the accused were in possession of documents involving J&K that bear “the seeds of a secessionist ideology.” Much like the “if you play with embers” line in Safoora Zargar’s bail order and the J&K High Court’s invocation of King Menelaus, this is that part of the judgment where you can tell the Court is hiding behind metaphor and imagery because, deep down, the judges know that the law requires something different. What on earth does “seeds of a secessionist ideology” mean? Which law defines “seeds …. of an ideology”, secessionist or otherwise? We do not know, and we cannot know, because the Courts have long sacrificed rigorous legal reasoning at the altar of the crudest nationalist rhetoric.

Hariprasad and Haripal JJ then end with the ringing declamation of the line that has been music to the ears of tyrants and authoritarians at all times and places. “individual rights should subserve the national interest. When individual rights are pitted against national interest and security, the latter should prevail.”

Ein volk, ein reich. Indeed.

These days, the “courts of record” (with a few honourable exceptions) appear to be in a race to become more pro-Executive than the Executive. Hariprasad and Haripal JJ’s effort has set the tone for 2021 in that respect, and will probably take some beating. But last year was full of surprises, and no doubt, soon enough, we will have a judgment where a judge will preside over a hearing but whose name will mysteriously vanish from the record, so that people actually can’t take his name.

Oh, wait. That already happened.

Guest Post: The Kerala High Court’s Judgment Reinforces the Need for an Anti-Discrimination Law

[This is a guest post by Megha Mehta.]


The Kerala High Court has recently held in Dr. Prasad Pannian v. The Central University of Kerala that sex-based discrimination per se is not covered by the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 [“POSH”]. According to the High Court, sexual harassment necessarily mandates unwelcome behaviour with sexual undertones (Dr. Prasad Pannian, ¶13). Therefore, the creation of a hostile work environment for a woman employee will not be actionable under POSH unless it is accompanied by direct or implicit sexual advances.

This definition of sexual harassment as being limited to sexual conduct, as outlined under both POSH and the Supreme Court’s Vishaka guidelines (Vishaka v. State of Rajasthan, (1997) 6 SCC 241) originates from the U.S. Equal Employment Opportunity Commission’s (“EEOC”) guidelines. As I have pointed out in an earlier post, feminist scholars in the U.S. have long-since critiqued this conceptualization for propagating a “desire-dominance paradigm” which exclusively focuses on sexual advances by male supervisors against female subordinates. This paradigm excludes equally discriminatory but non-sexual conduct against employees of all genders who challenge hegemonic masculinity. For example, repeated sexist comments on an employee’s performance can undermine their job prospects as much as unwelcome sexual advances, though the degree of social stigma attached to sexual conduct may be higher.

In other words, sexual desire is not the driving factor behind sexual harassment in most cases, though it may be an important component. Sexual harassment is primarily used as a “technology of sexism”, i.e., a tool for enforcing underlying gender hierarchies in various institutional settings. Further, current definitions of sexual harassment ignore that cisgender women are not the only victims of harassment, though they are disproportionately impacted. LGBTQ workers are equally vulnerable to harassment for challenging gender and sexuality norms. Moreover, men often commit same-sex harassment against other men whom they consider as being too “femininized” for the job, as is common in workplace/college hazing rituals. Similarly, women may also harass fellow women employees who are perceived as transgressing societally prescribed boundaries of femininity (See here).  

The manner in which we define sexual harassment has significant implications for the framing of redressal strategies. Though Article 15 of the Constitution of India (“Constitution”) prohibits discrimination in access to public spaces, there is no domestic equivalent of say, the U.S. Civil Rights Act of 1964, or the U.K. Equality Act 2010, for enforcing this prohibition. Similarly, though Article 16 guarantees equality of opportunity in State employment, there is no legislation or agency for monitoring workplace discrimination in the private sector, or even the public sector for that matter. Instead, POSH provides for the constitution of Internal Complaints Committees (“ICCs”) at workplaces to inquire into sexual harassment complaints. It also provides for Local Committees to inquire into cases in the unorganized sector, or where the complaint is against the employer.

Theoretically, ICC inquiries are supposed to be a more convenient mechanism than criminal trials as they involve less rigorous procedures and lower evidentiary burdens. However, in practice, ICC inquiries re-enact the same adversarial he-said, she-said conundrum. This detracts from how the employer or the general workplace environment may have facilitated gendered harassment, e.g., through a “locker room talk” atmosphere. Hence the failure to enforce gender-cum-labour rights is reduced to a “private affair between two private parties”.

Moreover, since ICC’s are constituted from within the same hostile workplace environment, and may include people who are acquainted with the harasser, this creates conflict of interest for conducting the inquiry impartially. They are also unlikely to recommend structural reforms. Consequently, if a sexual harasser knows that their employer is unlikely to treat complaints seriously, this increases their incentive for committing hostile acts. It also means that the victim is less likely to speak out due to fear of retaliation (See here for a more detailed analysis). This is precisely why the Justice J.S. Verma Committee on rape law reform had recommended constituting independent Employment Tribunals to adjudicate sexual harassment complaints (See here, p 130), though arguably ICCs should continue to remain an option for those who find internal remedies more convenient.

Further, neither the Vishaka guidelines nor POSH provide for claiming civil reliefs from an employer who has failed to ensure workplace equity. Notably, the genesis of Vishaka was a public interest litigation highlighting the injustice meted out to Bhanwari Devi, a social welfare worker for the Rajasthan State government, who was gangraped by upper-caste men in her village. The assault was allegedly in retaliation to Bhanwari Devi’s campaign against the practice of child marriage prevalent in the upper-caste community. However, the Supreme Court refrained from addressing the State’s failure to protect Bhanwari Devi from, or compensate her for, the caste and gender-based violence her work engendered. Instead, it noted that criminal adjudication against the perpetrators was sufficient to impose liability (Vishaka, ¶2). Similarly, POSH only posits non-compliance with its mandate as a criminal offence against the State, for which the maximum penalty is a fine of Rs. 50,000 (POSH, Section 26).

This position appeared to have changed when the Supreme Court recently held that under Vishaka, even non-sexual acts of prejudice and discrimination against women employees will constitute a violation of their fundamental rights under Articles 14 and 21 of the Constitution (Nisha Priya Bhatia v. Union of India, 2020 SCC OnLine SC 394). Accordingly, a woman may claim compensation from her employer for failing to redress such violation of her rights. I had opined in my earlier post (See supra) that this decision paves way for a broader definition of sexual harassment, with an emphasis on unwanted discrimination, not desire; and institutional, instead of individual liability. Prior to this, the Delhi High Court had also noted that sexual harassment is only a species of sex-based discrimination, referring to the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) (Punita K. Sodhi (Dr.) v. UOI, (2010) 172 DLT 409, ¶82).

Unfortunately, Dr. Prasad Pannian shows that Indian sexual harassment law is yet to break out of the desire-dominance paradigm. The High Court circumvented Nisha Priya Bhatia by drawing a distinction between cases decided under Vishaka (such as the former), and the present case, which was instituted under POSH. Since the text of POSH circumscribes the definition of sexual harassment to sexualconduct, the High Court held that it was bound by the same. Further, that there was no need for referring to Vishaka or the CEDAW guidelines for interpreting the term more expansively. Therefore, the High Court chose to adopt a strict, textualist interpretation instead of referring to working women’s constitutional right to equality and dignity of life.

Dr. Prasad Pannian sets a troublesome precedent by allowing the text of the legislation, i.e., POSH, to control the constitutional guarantee against sex-based discrimination, instead of vice versa. On the other hand, in the High Court’s defense, judicial revisionism can only plug legislative gaps so far. Even if the definition of sexual harassment under POSH is interpreted in accordance with Nisha Priya Bhatia, it will continue to exclude forms of harassment such as sexual orientation discrimination, transphobia and same-sex harassment. It may also be argued that given the special stigma attached to sexual offences, sexual harassment and gendered discrimination need to be defined separately for legal purposes, though both are ultimately symptoms of the same malaise.

Further, POSH demarcates sexual harassment as a separate labor rights violation instead of accounting for its intersectionality with other forms of discrimination. There are no special procedures or aggravated penalties for protecting victims of caste-based or economically coerced sexual violence at the workplace. The Local Committee mechanism is largely inaccessible to women working in the informal sector, who are particularly vulnerable to such exploitation. Domestic workers don’t even have the option of civil relief against the individual respondent-they are legally compelled to pursue a police complaint (POSH, Section 11(1)).  POSH is also ill-equipped to deal with cases of third-party harassment, e.g., street harassment. In such cases, it is the State, rather than any specific employer, which is best placed to intervene to make public spaces safer for women.

Hence, the decision in Dr. Prasad Pannian reinforces the need for a holistic anti-discrimination legislation which mandates State and institutional liability for maintaining equality of opportunity at the workplace and equal access to public spaces. It also needs to be explored whether the constitutional guarantees under Articles 15, 16 and 19(1)(g) should be amended to expressly prohibit discrimination in the private sector, particularly in the context of housing and employment. Until then, courts will continue to compartmentalize sexual harassment within silos of individual sexual misconduct against women, instead of tracing its linkages to broader patterns of discrimination and inequality.

Guest Post: Why the new anti-conversion laws are unconstitutional

[This is a guest post by Manish.]


The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 (“the UP Ordinance”) – and the spree of police action following it – has attracted much attention recently. The UP Ordinance follows existing legislative terrain: several states in India have (dubiously-named) “freedom of religion” laws that seek to restrict religious conversion. The first two of these were enacted in the 1960s, in erstwhile Madhya Pradesh and Orissa, and restrict or seek to penalise people who conduct or facilitate religious conversions by force, fraud or inducement. The rest have largely come in the 2000s, and go a step further by requiring an individual to take prior permission for conversion. The UP Ordinance goes the furthest, by altering the conversion’s effects on personal law, and through certain insidious procedural requirements which will be discussed later. But first, a history of the earlier legislation and legal challenges is in order.

Readers will be familiar with Article 25 of the Constitution, which guarantees equally to all persons the freedom of conscience and the right to freely profess, practice and propagate religion, subject to public order, health and the other provisions of Part III. The MP and Orissa laws were challenged, first at the respective High Courts and then the Supreme Court, as violating the propagation aspect of Article 25. A Constitution Bench of the Supreme Court, in its landmark Stainislaus judgment in 1977, upheld them as being valid exercises of legislative power under the public order exception to Article 25, holding that the right to propagate one’s religion did not include the right to convert others, and that forcible conversions could raise communal passions and give rise to a breach of the public order. This much is a fairly clear and settled proposition. (Whether it should be unsettled is beyond the scope of this blog post.)

That brings us to the first set of post-2000 laws, leading up to the UP Ordinance. These laws go beyond the mere prohibition of forced religious conversion (which was permitted in Stainislaus) by requiring individuals desirous of changing their religion– in addition to people facilitating the conversion, such as religious preachers – to provide prior notice to, or take permission from, the District Magistrate, under fear of penal consequences. Alert readers will notice that this requirement opens up a new Constitutional infirmity – because unlike the challenge in Stainislaus, which was restricted to propagation, it strikes at the right to profess religion under Article 25. This, it is submitted, really forms the core of the right guaranteed under Article 25  – the freedom of conscience – for without the right to profess religion, the right to practice or propagate it becomes meaningless.

For analysis of this point, I will focus on the Himachal Pradesh Freedom of Religion Act, 2006 (“2006 Act”), which is the only one that has been subject to judicial scrutiny. It was challenged before the Himachal Pradesh High Court, which in a lucid 2012 judgment found that the notice requirement under section 4 violated both the freedom of conscience and the right to privacy of the individual. The Court effectively laid down a “compelling state interest” test to justify any interference into this right (paragraphs 37-38):

“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. The State must have material before it to show what are the very compelling reasons which will justify its action of invading the right to privacy of an individual. A man’s mind is the impregnable fortress in which he thinks and there can be no invasion of his right of thought unless the person is expressing or propagating his thoughts in a manner that it will cause public disorder or affect the unity or sovereignty of the country.”

The Court rejected the argument of public order advanced by the State, holding that public disclosure of conversion could in fact cause public order issues and be counterproductive (paragraphs 40-41):

A person’s belief or religion is something very personal to him. The State has no right to ask a person to disclose what is his personal belief. The only justification given is that public order requires that notice be given. We are of the considered view that in case of a person changing his religion and notice being issued to the so called prejudicially affected parties, chances of the convertee being subjected to physical and psychological torture cannot be ruled out. The remedy proposed by the State may prove to be more harmful than the problem. (…) In case such a notice is issued, then the unwarranted disclosure of the voluntary change of belief by an adult may lead to communal   clashes   and   may   even   endanger   the   life   or   limb   of   the convertee.

Also important here is the Court’s finding that a bland declaration of “public order” (while itself possibly a compelling state interest) was insufficient to justify invoking the exceptions to Article 25. This, in effect, applies the strict scrutiny standard which the Supreme Court had articulated in Gobind v State of MP as far back as 1975 – requiring the state to both show a compelling interest, and adopt the most restrictive means to achieve it (relevant extracts of Gobind are cited in para 32 of the judgment). In this case, the court held that the means adopted did not achieve the interest at all, let alone in the most restrictive manner.

These findings in 2012, are strengthened by the Supreme Court’s nine judge bench Puttaswamy judgment in 2018, where decisional autonomy was articulated as an integral aspect of privacy in all the opinions delivered. In fact, the 2012 judgment is an excellent illustration of how the right to privacy is inherent in the expression of all other fundamental rights, and is one of the first to look closely at privacy in the context of Article 25 (most of the jurisprudence on this Article so far has been around the practice element, and the profession and propagation aspects in that sense offer new ground – one that is largely free of the ERP clutter).

While the substantive right is clear, it could be argued that procedurally, Puttaswamy eschewed Gobind’s strict scrutiny standard for testing infringement (adopted by the HP HC) in favour of a slightly less stringent proportionality test. Even then, the prior notice requirement in the 2006 Act and similar laws would fail the latter three prongs of the four-fold test articulated by Kaul, J in Puttaswamy: there is no justification as to why prior notice (in addition to the criminal penalty) is necessary to prevent forced conversions; the requirement is disproportionate and in fact could prove counterproductive; and there is no procedural safeguard – to the contrary, many of the newer anti-conversion laws contain reverse onus clauses. 

The 2006 Act also contained a proviso (to section 4) carving out an exception in case a person “reverts back to his original religion”. The Court held that this exception violated Article 14 as well, being both vague (since “original religion” was not defined) and arbitrary (since there was no reason for treating these two classes of conversion separately). It struck down the entirety of section 4 and the Rules framed thereunder. In sum, neither of the additions after Stainislaus – a prior notice/permission requirement, and an exception for “re-conversions” – could withstand Constitutional scrutiny.

With that background, let us look closely at the various elements of the UP Ordinance. Section 3, which contains a general prohibition on forced conversion, is on the lines of the ones upheld in Stainislaus. The proviso to section 3, however, carves out an exception for conversion to one’s “immediately previous religion” – while slightly less vague than the 2006 Act, it is, for the same reasons, arbitrary and fails the Article 14 test. There is also a requirement for prior notice (section 8) and public declaration (section 9) before and after conversion, both of which, as will be clear from the preceding discussion, are egregious violations of the right to privacy inherent in Article 25.

That leaves us with a couple of new provisions introduced by the Ordinance – the substantive one, section 6, which has been the subject of much public discourse, states that conversion for the purposes of marriage will render the marriage voidable, on the application of either party. While section 6, like many others in the UP Ordinance, is poorly drafted (what is a “marriage done for sole purpose of unlawful conversion”?), it only contemplates a civil proceeding, which can only be initiated by one of the parties to the marriage. Seen this way, it is the least suspect of the Ordinance’s provisions – in fact, the Supreme Court has previously deprecated, in its personal law jurisprudence, the practice of conversion solely for the purpose of marriage.

On the other hand, the most insidiously problematic part of the Ordinance is actually a procedural one, section 4, which permits registration of an FIR not just by the victim of the alleged conversion  but also by the parents, siblings or any other relative, even if the victim is a major. This is a body blow to personal autonomy, and is being used – as seen in several instances of complaints being lodged by everyone except the ‘aggrieved’ convert – to strip young women of their autonomy to decide both their religion and choice of partner. Indeed, the UP Ordinance is less of an attack on inter-faith marriage per se (technically, if one of the parties converts, it is doubtful whether the union remains an inter-faith one) than it is on the autonomy of youth–especially women–who dare to defy the social order.

As discussed earlier, decisional autonomy is a core element of the right to privacy as articulated in Puttaswamy. And even if the object of preventing forced conversion and maintaining public order is legitimate, the means certainly are disproportionate. There is one point of clarification required here: conventional criminal jurisprudence tells us that all crimes are committed against the State, which is what gives any member of the public the right – and sometimes the duty – to report an offence. But a forced conversion is more than just a simple criminal offence – it is also a violation of a Fundamental Right to make an intimate decision. And for an intimate decision, nobody else is quite placed to judge the violation than the victim. Putting it another way, if she has decisional autonomy, then this autonomy also empowers her, and her alone, to decide if and when it has been violated. To substitute her decision for anybody else’s (whether family or otherwise) would in itself amount to a (further) violation of her privacy. The only necessary and proportionate manner of solving this would be to permit the victim to report the violation herself, and take assistance from others if she feels the need to (which is anyway allowed under ordinary criminal procedure). Thus, section 4, in empowering third parties to make this decision on an adult convert’s behalf, without her consent, takes away her decisional autonomy; in an unnecessary, disproportionate action.

To sum up, changing one’s religion is an act of intimate decision making, and there are a limited number of restrictions that can be placed on it, on the specific grounds provided in Article 25. If forced conversions present a problem to public order, that creates a necessity for intervention which must, however, be achieved through a proportionate remedy. Such a remedy can only be provided by making legal recourse available to the victim without overbroad substantive or procedural provisions that further infringe the rights of the victim or other parties. Thus, it is submitted that the laws upheld in Stainislaus mark the furthest limit to which an infringement is permitted into the profession and propagation aspects of Article 25. Anything beyond that, whether couched in “freedom of religion” terms or marketed as “unlawful conversion”, is unconstitutional. The Allahabad HC has struck the right note in respect of the UP Ordinance by invoking privacy in interim orders, and it must take that to its logical conclusion by speedily dealing with the substantive challenge as well.


Postscript: Similar constitutional infirmities exist in all the other post-Stainislaus anti-conversion laws. A 2009 petition challenging a similar law in Gujarat remained undecided till 2015 when the petitioners inexplicably withdrew it. A law passed by the Jharkhand assembly in 2017 is yet to be challenged in court – although it is apparently being after reviewed after a change in government. In Rajasthan, which has no such law, the High court inexplicably issued ‘guidelines’ in 2018 that have been previously critiqued on this blog. The HP Assembly in 2019 replaced the 2006 Act with a new law which reinstated virtually all the provisions that had been struck down earlier. The UP ordinance itself is based on similar provisions in the Uttarakhand Freedom of Religion Act, 2018, which has been challenged in the Supreme Court. If the HP HC’s decision – and subsequent developments in Puttaswamy I – are taken into account, all of these enactments are clearly ultra vires, and must be challenged and struck down. Their continuing enforcement is a stain on the Constitution.

Horizontal Reservations and the Persistence of the Myth of Merit

Editor’s Note 1Posts about the contemporary Supreme Court may be read in the context of the caveats set out in this post (link).


Editor’s Note 2: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations (link) against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].


On 18th December, a three-judge bench of the Supreme Court handed down an important judgment clarifying the law on vertical and horizontal reservations (Saurav Yadav v State of UP). The judgment is an extremely complex one, so a preliminary explanation is in order.

Horizontal and Vertical Reservations

The term vertical reservations refers to reservations enacted under Articles 15(4) and 16(4) of the Constitution, which divide a candidate pool into the General, OBC, SC, and ST categories. While this division is not stipulated by the terms of the Constitution (Articles 15(4) and 16(4) use the phrase “backward classes” or “socially and educationally backward classes in addition to SCs/STs), it has come to be encrusted in both law and judicial decisions over the decades.

Now, until the judgment of the Supreme Court in N.M. Thomas, Articles 15(4) and 16(4) were treated as the sole repositories for reservations under the Constitution. That is, the “equality code” – Articles 14-16 was believed to embody a formal vision of equality, and Articles 15(4) and 16(4) were believed to embody specifically carved out exceptions, that allowed for reservations. Sporadic attempts to justify reservations under – for example – Article 16(1)’s equality of opportunity clause, by invoking a substantive vision of equality, were struck down the courts (albeit over some important dissents). However, that changed in N.M. Thomas, when the Supreme Court clarified that Articles 15(4) and 16(4) were not exceptions to, but restatements of, the equality principle contained in Articles 15(1) and 16(1). This was a seismic shift in the jurisprudence, because in the course of one judgment, the Court went from holding that the Constitution was committed to bare formal equality, to holding that it was committed to substantive equality that must account for actually existing differences between people. While judgments after N.M. Thomas have chipped away at its scope, and blocked its transformative potential from truly taking shape, the doctrine itself has, nonetheless, been re-affirmed.

Now, a necessary corollary of Thomas is that reservations are no longer solely facilitated by Articles 15(4) and 16(4). If 16(4) (reservations), for example, is a restatement of 16(1) (equality of opportunity), it must follow that genuine equality of opportunity permits (and may even require) reservations. Consequently, government policies can provide reservations for groups that do not follow the General-OBC-SC-ST division, as long as it is in service of genuine equality of opportunity. Now this is what gives rise to horizontal reservations in favour of (for example) women (where Article 15(3) is also involved), army veterans, the transgender community (although that has not happened yet), and so on. The reason why this set of reservations is called “horizontal reservations” is because it cuts across vertical reservations, in a manner of speaking. Imagine a graph divided into four vertical bars (General, OBC, SC, ST), in accordance with their respective quotas. Now imagine a horizontal bar (“women”) that cuts across these four vertical bars (because women can belong to any of the four categories mentioned above, and the horizontal reservation in question is for “women” as a class).

The Question in Saurav Yadav

Because of the way our reservations jurisprudence has shaped up, the intersection of horizontal and vertical reservations throws up a host of technical, complicated questions. Should horizontal reservations be calculated across the board (i.e., say, 30% of women in X department), or should it be “compartmentalised” (i.e., each category – General, OBC, SC, ST must have 30% of women)? The Supreme Court has, in the past, suggested that the compartmentalised approach would be better, and in my submission, that is correct, as it takes care of inter-sectional concerns. In Saurav Kumar, however, the question was even more technical: if State policy provided for an X% horizontal quota for women, then would women candidates whose overall scores were high enough for them to be recruited without the benefit of reservation, be counted against the quota or not? Or, in other words: let us assume that State policy requires 30% reservation for women. After the selection process, it is found that 10% of the successful candidates without the application of the quota are women. Does that now mean that the quota comes down to 20%, or does it mean that it remains 10% + 30%?

In the case of vertical reservations, this issue had long been sorted, with the Supreme Court making it clear that an SC/ST/OBC candidate whose scores were high enough for the general category, would be “counted” as having made it through that category; and consequently, that candidate would not be treated as SC/ST/OBC for the purposes of reservation. In the case of horizontal reservations, however, the position was unclear, as different High Courts had taken different views on the issue. In Saurav Yadav, the Supreme Court clarified the position, and held that – like the case of vertical reservations – a candidate who belonged to a horizontally reserved category, but whose score was high enough, would not be “counted” as having come through that category for the purposes of calculating quotas.

Analysis

In my submission, this decision is correct. However, I believe that the reasoning deployed by the Court to get there is not. In the majority opinion, Justice Lalit entered into a complicated analysis of various hypothetical scenarios that would arise when both methods were deployed: i.e., counting the high-scoring candidate against the quota, and not. He found that in some cases, horizontal and vertical reservations would intersect in a manner that if the high-scoring candidate was counted against the quota, a number of adjustments would follow, the end result of which might be that a higher-scoring candidate in the overall list would be bumped off in favour of a lower-scoring one (in the interests of space, I don’t want to reprise the calculations here, that run to around thirty pages – interested readers can refer to the judgment for the steps involved in the process). Justice Lalit then found that if, on the other hand, in the same situation, the high-scoring candidate from the horizontally reserved constituency was not counted against the quota, the overall list would have more higher scoring members. He then concluded that the second method enabled “merit” to a higher degree, and was therefore the constitutionally correct way of implementing horizontal reservations. In a brief concurring opinion, with a caveat that I shall later come to, Justice Bhat agreed with this analysis.

In my view, however, there was a much simpler reason for the outcome. The rationale for why, in the case of vertical reservations, a high-scoring candidate is not counted against the quota, is a simple one: the bases of reservations are the historical and structural barriers that prevent certain groups of people from gaining equal access to educational or employment opportunities. It may be the case that a combination of privilege, luck, and work enables some individual members of disadvantaged groups to overcome these barriers; however, that does not change the underlying logic of institutional disadvantage – and remedy – that structures reservation policy. For this reason, the purposes of reservations would be defeated if the numerical quota included those individuals who had managed to overcome disadvantage.

Now, this logic applies in the same fashion to (most) cases of horizontal reservations: like vertical reservations, horizontal reservations are premised on achieving genuine equality of opportunity by accounting for existing structural and institutional disadvantage. Consequently, precisely the same logic of not “counting” individuals who overcome those barriers against the quota should apply. That is all that the Court needed to arrive at its (correct) conclusion.

Unfortunately, however, the Court’s reasoning – that framed the entire question as one of “merit” – was not only unnecessary, but actively problematic at a conceptual level: effectively what the Court said was that models of reservation would be selected based on which one – in a strictly formal and technical sense – was deemed to advance “merit” more than the other (and “merit” here refers to scores in tests). “Merit”, thus, became the normative touchstone on which to adjudicate between these different models. But this took an entirely uncritical approach towards the concept of “merit” itself, something that another bench of the Court recently warned against, in B.K. Pavitra’s Case. There, Chandrachud J. had correctly observed that:

The Constitution does not define what the framers meant by the phrase efficiency of administration. Article 335 cannot be construed on the basis of a stereotypical assumption that roster point promotees drawn from the SCs and STs are not efficient or that efficiency is reduced by appointing them. This is stereotypical because it masks deep rooted social prejudice. The benchmark for the efficiency of administration is not some disembodied, abstract ideal measured by the performance of a qualified open category candidate. Efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people. If, as we hold, the Constitution mandates realisation of substantive equality in the engagement of the fundamental rights with the directive principles, inclusion together with the recognition of the plurality and diversity of the nation constitutes a valid constitutional basis for defining efficiency. Our benchmarks will define our outcomes. If this benchmark of efficiency is grounded in exclusion, it will produce a pattern of governance which is skewed against the marginalised. If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce a just social order. Otherwise, our past will haunt the inability of our society to move away from being deeply unequal to one which is founded on liberty and fraternity. Hence, while interpreting Article 335, it is necessary to liberate the concept of efficiency from a one sided approach which ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration of the Union or of a State.

In other words, therefore, the concept of “merit” – here constitutionally defined as “efficiency of administration” – could not be understood in isolation from the Constitution’s social justice goals, and, in particular, could not be reduced to something as simplistic and formal as scores in an exam (which, as we well know by now, themselves reflect and entrench social privilege). The Court’s approach in B.K. Pavitra is in stark contrast to its approach in Saurav Yadav where, as we have just seen, merit-defined-as-scores-in-the-exam was uncritically treated as the normative frame within which to examine competing models of reservation.

While Justice Bhat’s concurring opinion appeared, at various points, to reflect this concern, unfortunately, he too stressed the formal conception of “merit” as a normative frame. This conflict is summed up in paragraph 15 of his judgment, where he noted that:

I would conclude by saying that reservations, both vertical and horizontal, are method of ensuring representation in public services. These are not to be seen as rigid “slots”, where a candidate’s merit, which otherwise entitles her to be shown in the open general category, is foreclosed, as the consequence would be, if the state’s argument is accepted. Doing so, would result in a communal reservation, where each social category is confined within the extent of their reservation, thus negating merit. The open category is open to all, and the only condition for a candidate to be shown in it is merit, regardless of whether reservation benefit of either type is available to her or him.

While the first sentence followed up on Pavitra’s insight, the rest of the paragraph slipped back into the rhetoric of merit that structured the majority judgment. Now, as we have seen above, in this case, the philosophical difference did not lead to a difference in outcome. However, it is easy to imagine future cases in which it will, and past cases (such as Indra Sawhney’s affirmation of the 50% cap) where it already has. The future of reservation policy as a vehicle of achieving social justice will be significantly influenced by whether and to what extent the Supreme Court is willing to critically interrogate merit as itself being a function of social privilege that the Constitution is committed to equalising, and whether – on the other hand – it continues to hold on to a view that sees “merit” and reservations locked in a war with each other, with the adjudicatory function being to “balance” the two. The difference is a subtle one, but – as this post should demonstrate – a critically important one in the broader struggle for constitutional justice.

Notes from a Foreign Field: The South African Constitutional Court on the Rights of Domestic Workers

Last week, the South African Constitutional Court handed down an important judgment concerning the rights of domestic workers. In Mahlangu v Minister of Labour, the question before the Court was whether the exclusion of domestic workers from South Africa’s social security law – the COIDA – was unconstitutional. The Court unanimously answered that it was. The majority judgment, in particular,  repays careful study, as it advances constitutional jurisprudence in relation to inter-sectionality, indirect discrimination, and dignity, in important directions.

In this post, I do not consider the challenge based on Section 27 of the South African Constitution, that guarantees the right to social security. I will consider, instead, the equality and dignity challenges.

Equality and Non-Discrimination

It was argued that the blanket exclusion of the entire class domestic workers from the scope of the COIDA violated the right to equal treatment, and amounted to unfair discrimination against them, in contravention of Section 9 of the South African Constitution. As far as the right to equal treatment went, the government conceded the case at the bar, and the Court therefore returned a finding that the exclusion of domestic workers was irrational and served no discernible legislative goal.

Let us focus, therefore, on the unfair discrimination argument, centred around Section 9(3) of the South African Constitution. Section 9(3) prohibits direct and indirect discrimination on a number of familiar grounds (race, sex, sexual orientation, religion, and so on). “Domestic work” is not a listed ground under Section 9(3), and so this was not a case of direct discrimination. The Court found, however, that the exclusion constituted a case of indirect discrimination:

… because, as the applicants and amici submit, domestic workers are predominantly Black women. This means discrimination against them constitutes indirect discrimination on the basis of race, sex and gender. (para 73)

Note, however, that race, sex and gender are multiple grounds. This, therefore, took the Court into the concept of inter-sectionality, which it defined as the acknowledgment that “that discrimination may impact on an individual in a multiplicity of ways based on their position in society and the structural dynamics at play.” (para 76) Consequently:

It is undisputed between the parties that domestic workers who are in the main Black women, experience discrimination at the confluence of intersecting grounds. This simultaneous and intersecting discrimination multiplies the burden on the disfavoured group. (para 84)

It was evidently clear, therefore, that (a) a predominant number of domestic workers were black women, and (b) black women were located at intersecting axes of discrimination. This is what set apart the exclusion of domestic workers, as opposed to the exclusion of defence forces or the police (who, in any event, had access to other social security schemes):

Multiple axes of discrimination are relevant to the case of domestic workers. Domestic workers experience racism, sexism, gender inequality and class stratification. This is exacerbated when one considers the fact that domestic work is a precarious category of work that is often undervalued because of patronising and patriarchal attitudes. (para 90)

Indeed, in this case, as the Court observed, the reason why domestic workers were predominantly black women was itself founded at the intersection of racial and gender discrimination, at the time of apartheid:

The combination of influx control laws and the migrant labour system also had a particularly onerous effect on Black women. Taken together, they restricted the ability of Black women to seek and obtain employment opportunities, thus rendering them dependent on absent husbands or sons. Essentially, this all sedimented a gendered and racialised system of poverty, that was particularly burdensome for Black women. (para 98)

Consequently, their present exclusion from COIDA amounted to nothing more than a continuation of the same intersectional discrimination (para 100). For this reasons, the Court therefore held that the right against unfair discrimination had been breached.

Dignity

The Majority’s dignity analysis was very interesting. In brief, it noted that the reason why domestic work, alone, had been excluded from the protective scope of the COIDA was because it was not considered to be “real work”, as traditionally understood. This attitude towards domestic work was rooted in patriarchal assumptions. As the Court noted, therefore:

Historically, in varying contexts across the world, domestic work has generally not been regarded as real work and has been undervalued for that reason. In the American context, it has been argued that the historical undervaluation of domestic workers stems primarily from the gendered and racialised nature of those who have traditionally done this work, namely African-American women. To this end, domestic work there has been undervalued for two reasons. First, it has been described as work done by a “despised race”. Second, it has been regarded as “women’s work” or a “labour of love” having no economic currency. (para 110)

This, when combined with the exploitation built into domestic work, therefore made it clear that “the exclusion of domestic workers from COIDA is an egregious limitation of their right to dignity, alongside its infringements on their other constitutional rights. It extends the humiliating legacy of exclusion experienced during the apartheid era into the present day, which is untenable.” (para 115)

Analysis

The Constitutional Court’s judgment highlights the importance – and indeed, the indispensability – of paying close attention to context in any equality and discrimination-oriented examination. The Court’s inter-sectionality and dignity analysis was rooted in context – both the historical context that was responsible for compelling a disproportionate number of black women into domestic work, and the continuing context of how intersecting axes of disadvantage worked against them. Grounding domestic workers’ exclusion within this context was what allowed the Court to find that there existed both indirect and inter-sectional discrimination, as well as a violation of dignity.

The judgment is also important because – if we bracket the Section 27 analysis – what was at issue was not discrimination in its traditional sense (such as, say, different pay for men and women), but that legislation had not extended its benefits to a discrete category of work (domestic work). Historically, Courts have been reluctant to expand the scope of protective laws simply on the basis that certain categories are not within their scope, as that has been considered to be a matter of policy. The Constitutional Court’s application of the discrimination and dignity framework, however, dispensed with any such objections, as the very fact of exclusion was grounded within clear constitutional prohibitions.

This is important for a third reason: labour law – with its inclusions and exclusions – has often been considered to be an autonomous domain, with constitutional principles exercising weak scrutiny, at best. The Constitutional Court’s judgment demonstrates how rigorously testing labour law upon the touchstone of the Constitution will ensure that the rights of the most vulnerable are not left to the mercy of arbitrary legislative classifications (whether it was the exclusion in this case, or otherwise artificial definitions of “employees” or “employment relationships”, which equally serve to limit access to labour rights).

The advances made by the Constitutional Court in the domain of inter-sectionality, indirect discrimination, and dignity, are worthy of emulation. In 2018, in Navtej Johar, the Supreme Court gestured towards inter-sectionality, and various High Courts have tentatively begun to articulate the concept indirect discrimination. It remains for the Courts to firmly embed these concepts into our equality and discrimination jurisprudence. It is also crucial for Courts to make clear that labour law is a critically important terrain for actualising constitutional values, and that differential or discriminatory access to labour rights raises serious constitutional concerns. Here again, the judgment of the South African Constitutional Court shows the way.

 

 

 

 

 

 

Money Bills and Judicial Review: Lessons from a Constitutional Crisis in 1911 [Guest Post]

[This is a guest post by Rahul Narayan.]


A little over a century ago, Britain was headed for a Constitutional crisis due to severe differences between the Conservative party dominated, more-or less hereditary House of Lords and the elected Liberal Party dominated House of Commons. Matters came to a head in 1909 when the Lords rejected the Finance Act passed by the Commons leading to a resignation of the government, and political turmoil and elections. By 1911 a newly minted Liberal party majority in the Commons wished to remove the power of the Lords to reject Money Bills and derail other reform legislation. Thus began discussions on what became the Parliament Act 1911.

In many ways this was a continuation of a historical process. The right to originate bills of “aid and supply” had traditionally rested with the Commons since the Magna Charta. In 1671 and 1678 the Commons had passed resolutions denying the Lords the right to amend finance bills. This was accepted by the Lords, who only insisted that no unrelated matter be “tacked” on to the bills of supply to avoid scrutiny of the Lords on such unrelated questions because such tacking would be “unparliamentary” and would tend to “the destruction of Constitutional Government”. This sentiment was accepted by Commons in 1702. Bills of aid and supply were passed as consolidated Finance Acts after the 1860s to discourage the Lords from rejecting individual components of finance bills as it was believed the Lords would hesitate in striking the entire Finance Act. The skirmishes between the Lords and Commons from 1906 to 1909 which culminated in the rejection of the Finance Act 1909 only precipitated the end of the last remaining power of the Lords re money bills- the right to reject them.

In 1910, the Lords, stuck between the Scylla of money bill reform and the Charybdis of wholescale restructuring of the Lords to remove their hereditary privileges bowed to the inevitable and agreed not to press their Constitutional privilege to reject money bills asking in return only that the ancient malpractice of “tacking” be dealt with appropriately.

The quickly agreed contours of the discussion as regards money bills were: (a) The Commons had the sole privilege to pass or reject money bills; (b) No extraneous matter would be tacked on to a money bill to avoid scrutiny of the Lords.

In England, each House is the judge of its own privileges. Thus the Commons majority rejected the suggestions made by the Conservative opposition and by the Lords that either the courts or a Joint Committee decide when a bill was a money bill. The decision was that of the Speaker alone. Eventually it was decided that the Speaker would certify the bill as a money bill if practicable after consultation with 2 members of the House of Commons, one from each side of the House.

Extensive and learned debate was carried out in the Commons between PM Asquith, Samuel and Churchill (then a liberal) on the Government side and Balfour, Anson and others for the Conservative opposition on whether the actual definition of a Money Bill conformed to the contours everyone agreed upon. Speaker after speaker expressed the fear that the broad based definition of money bills could result in extraneous matters being tagged by the Speaker as a money bill to remove scrutiny of the House of Lords on important questions. The government tried to dispel these fears in two ways. Firstly, they argued that section 1 of the Bill only formalised the existing legal position on Money Bills alone. Secondly, they said that the word “only” in draft signified that nothing extraneous could be tacked on to a money bill. On 11th April 1911 PM Asquith stated that a law appointing 2 new high court judges would not be a money bill despite the fact that it would involve expenditure from the consolidated fund because “No human being could say that was a Bill which contained only provisions dealing with charges on the Consolidated Fund. It was for the appointment of two judges, and incidentally their salaries were a charge on the Consolidated Fund. That is a good illustration of the way in which these words will have to be construed.”  

Following serious debate, the Parliament Act, 1911 was passed in August 1911 and the incipient Constitutional crisis was averted. The Parliament Act 1911 was amended in 1949. Its use by the Labour Government to pass the Hunting Act 2004 over the protest of the Lords led to a huge brouhaha and a landmark case in the House of Lords, though not on the aspect of money bills. In the House of Commons with its strong tradition of an impartial Speaker (recently demonstrated during the Brexit debates by Speaker Bercow), there has never been a partisan food fight on the certification of a Money Bill and no accusation of “tacking”.

Money Bills were adopted into the Constitution of Ireland, 1937 with a little modification- as per Article 22 thereof, the certificate of the Speaker could be disputed by the upper house and the President could set up a committee headed by a High Court judge to determine the issue.

In our Constituent Assembly, the Framers used the Constitution of Eire as a basis for the money bill clause but removed the idea of a joint committee instead giving finality to the decision of the Speaker. An amendment to remove the word “only” was negatived on 8th June 1949 when the draft Article was approved.

What lessons can our Courts draw from the resolution of the crisis of 1911 when they examine the provisions relating to Money Bills under our Constitution in Article 110? On the issue of judicial review of the certification by the Speaker, the Courts must be conscious of the difference between the English position and ours while on the interpretation of the word “only” in Article 110(1), they must be conscious of the similarity.

Under our Constitution, judicial review of the certification of a Money Bill by the Courts ought to be permissible because:

  1. In Indian law, judicial review has to be specifically excluded and mere finality is not enough. Judicial review is specifically excluded in the Parliament Act, 1911, unlike in Article 110.  
  2. In India, the privileges of each house are subject to the provisions of Constitution as interpreted by the Courts, unlike in England.
  3. There is no absolute or unfettered power under the Indian Constitution.
  4. Certification by the Speaker is not “procedural” but is a substantive determination and a mistake is not irregularity of procedure but an illegality, and there is no bar on judicial review of an illegality.

Like in Britain, under our Constitution, the definition of a Money Bill is to be strictly construed because:

  1. The word “only” indicates that bills have to deal only with the provided heads and extraneous matter cannot be tacked on.
  2. Money Bills are the exception to the rule of bicameral legislative action and ought not to be allowed to subsume the main rule. The Rajya Sabha is emphatically not a hereditary chamber like the Lords in 1911 and the Rajya Sabha has a vital role to play. 
  3. Traditionally our Constitutional courts have not looked upon kindly at disguising the form of legislation to hide the substance- what is sometimes referred to as a “fraud on the Constitution”. 

The Aadhaar Act, inter-alia deals with eligibility for subsidies which are expenditures from the Consolidated Fund but neither creates subsidies nor directs such expenditures. Even otherwise no one would say this is a law only for this purpose. The majority judgment in the Aadhaar case, upheld the passing of the law as a money bill on the basis that the dominant purpose was subsidies, a characterisation disputed persuasively in fact and in law by Justice Chandrachud’s dissent. In Rojer Mathews case, when the Court was dealing with the amendment to the composition and rules governing Tribunal made vide the Finance Act, 2017, doubted the Aadhar judgment as regards money bills referred the issue to a larger bench both on the interpretation of the word “only” and on judicial review.

Based on his speech on April 11, 1911, PM Asquith would not think the Aadhaar Act is a Money Bill and would think that the merging of tribunals was tacked on to the Finance Act 2017 in a way that the Lords could describe as unparliamentary and what John Hatsell writing in 1785 would call “dangerous” and “unconstitutional”. As and when the Supreme Court considers the Aadhaar Review Petitions and the reference in Rojer Mathews, they should hold the same.    

Notes from a Foreign Field: Developing Indirect Discrimination – Bringing Fraser to India [Guest Post]

[This is a guest post by Gauri Pillai.]


Article 15(1) prohibits the State from discriminating against any citizen ‘on grounds only of religion, race, caste, sex, place of birth or any of them’. The Supreme Court, in the now infamous Nergesh Meerza, read Article 15(1) to mean that discrimination should not be made ‘only and only on the ground of sex’ but could be made ‘on the ground of sex coupled with other considerations.’ On the one hand, the ‘on ground only of…sex’ test functions to bring in a requirement of intention to discriminate. The presence of a reason for discrimination—say, to protect women—operates as an ‘other consideration’, bringing the rule outside the scope of the non-discrimination guarantee, even if the effect of the rule is to disadvantage women (see here). Discrimination in thus understood to mean intentional, individual acts of prejudice tied to the ‘moral blameworthiness’ of actors. There is no recognition that ‘such prejudices are frequently embedded in the structure of society’, the ‘unquestioned norms, habits, and symbols in the assumptions underlying institutional rules and the collective consequences of following those rules’: in other words the ‘everyday practices of a well-intentioned society’, beyond the conscious coercive actions of a ‘tyrannical power’ alone.  On the other hand, the ‘on ground only of…sex’ test excludes indirect discrimination. Facially neutral rules having an adverse effect on members of a specific group would amount to ‘other considerations’ beyond the listed ground, thus placing such rules outside the reach of Article 15(1) (see here).

However, the Supreme Court trilogy in Sabarimala, Joseph Shine and Navtej Johar offers an alternate reading of the non-discrimination guarantee. First, the scope of Article 15(1) was extended to ‘institutional and systemic discrimination against disadvantaged groups’, thereby tackling ‘structures of oppression and domination’ excluding members of these groups from full and equal social, economic, political and cultural participation (Chandrachud J., concurring opinion, Sabarimala, paragraph 117 and Joseph Shine, paragraph 38). Thus, there was a shift towards understanding discrimination in a structural sense. Second, the central enquiry under Article 15(1) was no longer the intention of the discriminator. Rather, the ‘primary enquiry to be undertaken by the Court’ was whether a rule, in form or effect, ‘contributes to the subordination of a disadvantaged group of individuals’ (Chandrachud J., concurring opinion, Joseph Shine, paragraph 38). Finally, the ‘on ground only of…sex’ test was dismissed as a ‘formalistic interpretation’ of Article 15(1), because it failed to recognise the ‘true operation’ of discrimination (Chandrachud J., concurring opinion, Navtej Johar, paragraph 36). Instead of relying on the formal basis of classification—the listed ground ‘plus’ the facially neutral criterion—Article 15(1) was reoriented to focus on the effect a facially neutral rule. In other words, indirect discrimination was recognised, and brought within the scope of the non-discrimination guarantee.

Despite the steps forward, several questions still remain unanswered. How does the recognition of discrimination as a structural phenomenon affect the doctrinal functioning of the non-discrimination guarantee? What is the test for indirect discrimination? How should courts assess the impact of a rule? What forms of impact are relevant? What kind of evidence is suitable and necessary for such impact assessment? Answers to these questions are crucial to enable Courts to apply these concepts going forward. In their absence, these ideas could remain at the level of rhetoric, without translation into doctrine. In this post, I present the recent decision by the Supreme Court of Canada in Fraser v Canada—interpreting the non-discrimination guarantee under Section 15 of the Canadian Charter—as offering clear responses to these questions, and thus providing normative and doctrinal guidance for India. However, before I get into discussing the case, it is important to interrogate briefly why a decision from Canada is relevant for constitutional jurisprudence in India: why should India listen to Canada?

Canada offers a helpful comparative because the constitutional function of the non-discrimination guarantees in the Canadian Charter and the Indian Constitution bear significant similarities. As the Court recognises in Fraser, ‘the root of s. 15  is our awareness that certain groups have been historically discriminated against, and that the perpetuation of such discrimination should be curtailed’ (paragraph 77). An identical commitment underlies Article 15, the object of which has been identified as guaranteeing protection to ‘those citizens who had suffered historical disadvantage’ by removing their ‘age-long disabilities and sufferings’. This is reinforced by the placement of Article 15 within the ‘equality code’, consisting of Article 16, which permits the State to treat members of disadvantaged groups differently through reservations, offering them ‘real and effective’ equal opportunity for employment; Article 17, which abolishes untouchability to free Dalits from ‘perpetual subjugation and despair’, ‘social inequity, social stigma and social disabilities’; and Article 18 which prohibits an Indian citizen from accepting titles in order to dismantle social hierarchy, or the perceived superiority of some over the other.

Having set out the similarities in the constitutional vision underlying the non-discrimination guarantees in India and Canada, I now turn to Fraser. In 1997, the Royal Canadian Mounted Police (‘RCMP’) introduced a job-sharing program to provide its members an alternative to taking leave without pay. Under the program, two or three RCMP members could split the duties and responsibilities of one full-time position, allowing each participant to work fewer hours than a full‑time employee. The petitioners, three female employees of the RCMP, enrolled in the job‑sharing program along with 137 other members. Most participants were women, and they cited unilateral responsibilities for childcare as their reason for joining the program. Ms. Fraser described feeling ‘overwhelmed’ as she tried to balance work and family; Ms. Pilgrim felt like she was ‘on a treadmill’; and Ms. Fox recounted the experience as ‘hell on earth’ (paragraph 7). The RCMP introduced a rule deeming the job-sharing position part-time work for which participants could not receive full-time pension credit. This policy was challenged by the petitioners as having a disproportionate, adverse impact on women, thus violating their right to non-discrimination under Section 15.

The Court began by identifying the shift away from a ‘fault-based’ conception of discrimination towards an ‘effects‑based model which critically examines systems, structures, and their impact on disadvantaged groups’. The shift, the Court observed, was premised on the recognition that discrimination is ‘frequently a product of continuing to do things the way they have always been done’ rather than an intentional, prejudicial act by an individual actor (paragraph 31). In other words, the Court identified discrimination as structural, in general. The Court then set out how parenting is structured socially in Canada. Citing evidence, the Court observed that the public sphere, including the workspace, continues to be built on the male norm, and requires an ‘unencumbered worker’ with no responsibilities of care. At the same time, the private sphere, including the home, continues to be built on the labour of women who unilaterally undertake a major share of parental responsibilities (paragraph 104). In other words, the gendered division of labour, a product of inequality between the sexes, is systemically built into the ‘everyday practices’ of Canadian society. While this recognition is significant in and of itself, how did it influence the claim under the non-discrimination guarantee?

The lower courts rejected the discrimination claim holding that while most employees who lost out on pension benefits due to job-sharing were women, the loss occurred due to the ‘choice’ of the petitioners to job-share. The Supreme Court in Fraser however used the understanding of discrimination as structural—in general and in the specific context of parenting—to contest this notion of ‘choice’. The Court observed that choice should not be assessed as against an ‘autonomous, self-interested and self-determined individual’. Rather, a ‘contextual account of choice’, taking into account the ‘social and economic environments’ in which choices play out is necessary. The Court then applied this contextual understanding of ‘choice’ to women’s decision to job-share. The Court argued that the decision to job-share is far from an ‘unencumbered choice’. Against the structurally unequal institution of parenting, the only available option for women—‘euphemistically labelled choice’—is to opt for forms of accommodation like job-sharing, which are associated with lower wages, fewer benefits, fewer promotional opportunities, and minimal or no retirement pensions. If so, penalising them for this ‘choice’ by denying them pension benefits both punishes them for inequality, and perpetuates such inequality by exacerbating women’s socio-economic disadvantage, and entrenching stereotypes about women as ‘bad employees’ who ‘do not merit or want more responsible, higher‑paying jobs because they will inevitably prioritize family over work’. Thus, the Court highlighted the ‘flaws of over-emphasising choice’ in the Section 15 enquiry: ‘by invoking the “choice” to job‑share as a basis for rejecting the s. 15(1)  claim, the [lower courts] removed the “challenged inequality from scrutiny, effectively taking it off the radar screen so as to circumvent examination of the equality issues at stake”’ (paragraphs 88-92).

This does not imply that in the absence of inequality, women would never opt to job share and spend time with their children. The Court in fact recognised this by holding that ‘differential treatment can be discriminatory even if it is based on choices made by the affected individual or group’. This is because discriminating on ground of certain choices—like the decision to parent—violates human dignity and is thus inherently discriminatory, independent of inequality (paragraphs 86-86). Thus, the decision to parent was implicitly recognised as valuable by the Court, and job-sharing was seen as facilitating the decision by removing the disadvantage associated with it in the employment sphere. However, the Court did not develop this line of reasoning, as it mapped onto a claim of discrimination on ground of parental status which did not need to be pursued in light of the gender discrimination claim (paragraph 114).   

In assessing ‘choice’ in light of the structurally unequal institution of parenting, the Court also recognised the reason why it was women who primarily made the ‘choice’ to job-share:

[a] number of structural conditions push people towards their choices, with the result that certain choices may be made more often by people with particular “personal characteristics”. This is a key feature of systemic inequality—it develops not out of direct statutory discrimination, but rather out of the operation of institutions which may seem neutral at first glance (paragraph 90).

This then brought the Court to the issue on indirect discrimination. It also normatively grounded the recognition of indirect discrimination as a necessary response to the interaction between seemingly neutral rules and prevalent structural inequality. Indirect discrimination, the Court held, occurs when ‘a seemingly neutral law has a disproportionate impact on members of groups protected on the basis of an enumerated or analogous ground…Instead of explicitly singling out those who are in the protected groups for differential treatment, the law indirectly places them at a disadvantage’ (paragraph 30). The Court then set out a two-stage doctrinal test for assessing indirect discrimination.

At the first stage, the Court would enquire whether a rule, in effect, creates a distinction on the basis of a protected ground by having a ‘disproportionate impact’ on members of a group within the ground. The Court discussed the nature of evidence that could be used to prove this claim. On the one hand, evidence providing the ‘full context of the claimant group’s situation’ would be useful to demonstrate that ‘membership in the claimant group is associated with certain characteristics that have disadvantaged members of the group’. However, the Court was careful to note that evidence on issues which predominantly affect certain groups may be under‑documented. As a result, claimants may have to rely more heavily on their own evidence or evidence from other members of their group, rather than on government reports, academic studies or expert testimony. On the other hand, evidence—including statistical evidence—about the outcome of the rule, or a substantially similar one, in practice could offer ‘concrete proof that members of protected groups are being disproportionately impacted’. The Court clarified that there is no universal threshold on what level of statistical disparity is necessary to demonstrate that there is a ‘disproportionate impact’. Declining to craft rigid rules, the Court held that it would vary depending on the case. The Court also noted that both kinds of evidence are not always required: ‘in some cases, evidence about a group will show such a strong association with certain traits—such as pregnancy with gender—that the disproportionate impact on members of that group will be apparent and immediate’ (paragraphs 50-72).

Once the petitioner establishes that the rule, in effect, creates a distinction on the basis of the protected ground, the second stage of the enquiry starts. At this stage, the Court asks whether:

the law has the effect of reinforcing, perpetuating, or exacerbating disadvantage…The goal is to examine the impact of the harm caused to the affected group. The harm may include “[e]conomic exclusion or disadvantage, [s]ocial exclusion…[p]sychological harms…[p]hysical harms…[or] [p]olitical exclusion”, and must be viewed in light of any systemic or historical disadvantages faced by the claimant group (paragraph 76).

Thus, a focus on impact or effect of the rule is built into both stages of the test: first to determine whether the rule draws a distinction on the basis of a protected ground, and second to assess whether the distinction perpetuates disadvantage and is thus discriminatory. Applying the test to the case at hand, the Court held that the rule denying full pension benefits to job-shares, though facially neutral, had a ‘disproportionate impact’ on women. The Court relied on statistics—from 2010‑2014, all RCMP members availing job-share were women, and most of them cited childcare as their reason for doing so—and other evidence—commission reports, academic work and judicial decisions—’about the disadvantages women face as a group in balancing professional and domestic work… because of their largely singular responsibility for domestic work.’ This evidence, the Court held, established the ‘clear association between gender and fewer or less stable working hours’, and proved that the rule drew a distinction in effect between men and women, satisfying the first stage (paragraphs 97-106). Coming to the second stage, the Court held that the denial of pension benefits to women exacerbates women’s historical disadvantage. It impacts them socio-economically, with evidence suggesting that the feminisation of poverty is linked to the disparities in pension policies. At the same time, it also entrenches ‘a long‑standing source of disadvantage to women: gender biases within pension plans, which have historically been designed for middle and upper‑income full‑time employees with long service, typically male’. In other words, it retains the ‘male pattern of employment’, continuing to construct the public sphere around the male norm. In light of these ‘far‑reaching normative, political and tangible economic implications’ of the rule, it was held to perpetuate women’s disadvantage, and thus discriminate against women (paragraphs 107-113).

Thus Fraser demonstrates, with great clarity, how understanding discrimination as a structural phenomenon translates into the functioning of non-discrimination guarantee. It allows the Court to resist the rhetoric of ‘choice’ which can be used to subvert claims of discrimination. It also offers a compelling normative grounding for the recognition of indirect discrimination. Fraser further lays out a cogent two-stage test for establishing indirect discrimination, indicates the forms of impact that are relevant and describes the nature of evidence which can be used to prove such impact. It therefore provides clear normative and doctrinal guidance to India in developing the constitutional jurisprudence on indirect discrimination.

Notes From a Foreign Field: The Impact of Schrems-II [Guest Post]

[This is a guest post by Rohit Gupta.]


On July 16, 2020, the Court of European Union (‘CJEU’) passed a landmark judgement in Data Protection Commission v. Facebook Ireland, Maximillian Schrems (‘Schrems II Decision’). The Schrems II Decision produced shockwaves for the practice of commercial transnational data transfers of personal data originating from the European Union (‘EU’) and being transmitted to a non-EU country, such as India. Under the EU data protection regime, data transfers are conducted pursuant to the European Union General Data Protection Regulation (‘GDPR’), in conjunction with the Charter of Fundamental Rights of the European Union (‘Charter’) and several other directive and regulations. Chapter V of the GDPR allows for transfers of data outside the EU through three different modes, provided that the receiving countries were determined to provide adequate privacy protections for the same. First, an adequacy decision may be passed by the Data Protection Commission as to the existence of adequate privacy protection within the domestic legal framework of the receiving country. Second, an agreement to provide adequate safeguards, accompanied with enforceable data subject rights and effective legal remedies for data subjects. These may take place between two public authorities, such as in the case of the EU-US Safe Harbour or Privacy Shield, or between the sending and receiving data processors, such as in the case of Standard Contract Clauses (‘SCCs’), or between affiliated companies within a single commercial enterprise, such as in the case of Binding Corporate Rules (‘BCRs’). Third, derogations, or exceptions, to the requirement of either one of the above may be availed in specific circumstances.

While the Schrems II Decision proceeds on the lines of evaluating the privacy protection of mechanisms used by companies incorporated in the United State of America (‘US’) to transmit data from the EU, this blog will translate the broader implications of the judgment, specifically in the context of India and its privacy regime, or a lack thereof.

The Schrems II Judgment

In 2012, Maximillian Schrems (‘Schrems’), an Austrian national, raised concerns regarding the transnational data transfer practices of Facebook under the Data Protection Directive 95/46/EC, the predecessor to the GDPR. However, the Irish Data Protection Commissioner (‘DPC’), the Irish supervisory authority for data protection, rejected the complaint on the basis of the European Commission’s Decision 2010/87, which upheld the validity of the EU-US Safe Harbour. Subsequently, the CJEU, in the Schrems I Decision, concluded that the standard of data protection afforded by the United States was not “essentially equivalent” to that afforded within the European Union. Hence, the Safe Harbour Decision was annulled.

A second complaint was formulated by Schrems on the claim that the use of SCCs by Facebook was invalid since the latter was obligated to allow the United States Government to access the foreign personal data collected through these agreements. The complaint also impugned the EU-US Privacy Shield. While the European Commission had affirmed the validity of both the aforementioned mechanisms in Decision 2000/520 and Decision 2016/1250 respectively, the complaint was referred to the CJEU by the Irish High Court for a final determination.

The CJEU, in the Schrems II Decision, concluded three crucial findings regarding the transnational transfer of personal data from European Union:

A. The CJEU Confirms Extra-Territorial Application of GDPR for EU-Citizens’ Data

First, it held that the GDPR would remain applicable to personal data that has been transferred out of the European Union by one economic operator, or body corporate, to another for any commercial purpose, regardless of whether such data may be processed by the governmental authorities of the latter for the purposes of public security, defence and State security.

B. SCCs to Hold Validity Only if Underlying Framework Provides GDPR-Esque Data Protection

Second, it affirmed the validity of SCCs, provided that the level of data protection must be of a standard which is “essentially equivalent” to that guaranteed under the GDPR, read with the Charter. To this effect, The CJEU mandated the use of “other clauses or additional safeguards” in circumstances where the SCC itself failed to secure adequate levels of protection. These may cover, for example, the issue of law enforcement and access of personal data by government agencies. Additionally, respective Data Protection Authorities were under the obligation to suspend or prohibit data transfer to any third country wherein the aforementioned privacy safeguards, and alternative methods to achieve the same, were absent. 

C. EU-US Privacy Shield Invalidated for Lack of Safeguard Against Government-Sanctioned Surveillance

Third, it invalidated the EU-US Privacy Shield on the grounds that (1) the United State surveillance regime, based on  Section 702 of the Foreign Intelligence Surveillance Act, 1978 and Executive Order 12333 (1981), assumes primacy of national interest and law enforcement over the fundamental right to privacy by allowing the sanctioning of surveillance with no apparent limitation, violating the principles of proportionality in so far as the same is not restricted by the requirement of necessity, (2) the United States does not provide foreign data subjects with an actionable right against the Government for privacy breaches, under the Presidential Privacy Directive 28 (2014) and Executive Order 12333 (1981), and (3) the United States legislative framework is inadequate in ensuring the independence of the judicial ombudsman, an authority established by the EU-US Privacy Shield and an undersecretary of state, and the requisite authority of the body to deliver binging judgments upon US intelligence services.

Implications for India: An Analysis in light of the Personal Data Protection Bill, 2019

According to Article 45 of the GDPR, the relevant inquiry into an adequacy decision involves an assessment of the rules and regulations applicable to data controllers and processors within a country. This also includes an analysis of the accompanying safeguards limiting the governmental access to foreign personal data. Per the Schrems II Decision, a like analysis would now be required for the operation of other modes of data transfer, such as Privacy Shields, SCCs, or BCRs. The recognition of the fundamental right to privacy in K.S. Puttaswamy v. Union of India (‘Puttaswamy Decision’) inducted principles of proportionality from Article 8 of the European Convention of Human Rights. Yet, without an underlying statutory framework, these rights lack remedial mechanisms that may be triggered by their violation. However, while the Personal Data Protection Bill, 2019 (‘PDPB’) remains to be passed, India exists in a state of limbo. Without a current standard of foreign personal data protection for all commercial operations, India does not qualify the criteria for an adequacy decision.

An analysis of the previous adequacy decisions illustrate that the privacy safeguards contained in the PDPB, such as data minimization, purpose limitation, transparency and accountability, may prima facie allow India to qualify for an adequacy decision as well.

Nonetheless, with regards to independent oversight and enforcement, the PDPB authorizes the Central Government to compose the supervisory authority, i.e. the Data Protection Authority of India, on the recommendations of the selection committee, which also comprises members of the Executive. To this effect, it may be noted that in the 2018 draft, this selection was based on judicial intervention. Additionally, governmental access to personal data collected for law enforcement purposes provided for under the Information Technology Act, 2000, and rules thereunder may also deter an adequacy decision. For example, on December 20, 2018, the Ministry of Home Affairs issued a notification, under the Section 69 of the Information Technology Act & Rule 4 of the Information Technology (Procedure for Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, authorizing 10 central agencies to intercept, monitor and decrypt any computer information.

Moreover, the PDPB itself allows the Central Government to exempt its agencies from the application of the legislation if the same is necessary in the interest of friendly relations with foreign states, public order, or to prevent inciting the commission of any cognizable offense related to the same. The use of vague and overbroad terms such as “public order” also affords arbitrary powers to the Central Government. Thus, the current concerns regarding the independence and impartiality of the oversight body and the arbitrary and obtrusive governmental access to foreign personal data vitiate any efforts to obtain an adequacy decision.

Article VII of the World Trade Organization’s General Agreement on Trade in Services, on the other hand, mandates that the EU offer similar opportunities to countries to negotiate comparable arrangements as offered to other countries. This mandate is based on the principle of non-discrimination and anti-protectionism. Thus, India has a claim to initiate negotiations for a Privacy Shield which would bypass the costly and time-consuming alternatives, such as SCCs or BCRs. This would also nullify the need to comply with respective Data Protection Commissions’ requirements for obtaining individual adequacy decisions.

Article VII of the World Trade Organization’s General Agreement on Trade in Services, on the other hand, mandates that the EU offer similar opportunities to countries to negotiate comparable arrangements as offered to other countries. This mandate is based on the principle of non-discrimination and anti-protectionism. Thus, India has a claim to initiate negotiations for a Privacy Shield which would bypass the costly and time-consuming alternatives, such as SCCs or BCRs. This would also nullify the need to comply with respective Data Protection Commissions’ requirements for obtaining individual adequacy decisions.

However, for establishing and maintaining a Privacy Shield, the inadequacies of the PDPB and other state legislations must still be rectified by incorporating provisions within the agreement which nullifies the operation of the same. Whether this would be an overreach of the powers of the Executive under the separation of powers doctrine is the subject matter of another discussion. Similarly, the operation of SCCs may also be discontinued if these violations are not safeguarded against. Essentially, the effects of the Schrems II Decision, thus, extend to India just as they do for the United States.

A Bleak Picture of Alternatives

While the India Government may work towards obtaining an adequacy decision or establishing a Privacy Shield, Indian companies may avail the following alternatives, apart from the common practice of using SCCs. However, as has been highlighted herein, these alternatives are merely the next-best alternatives, and do not paint an optimistic picture in comparison to the traditional methods in use.

A. Binding Corporate Rules

BCRs represent codes of conduct which are used exclusively for intra-enterprise transfers, i.e., between enterprises engaged in a joint economic venture. The European Data Protection Board (‘EDPB’), however, has specified that companies reliant on BCRs would still be required to conduct a prior assessment to determine that the receiving nations’ privacy safeguards are essentially equivalent to those provided by the European Union. Nevertheless, an alike assessment is mandatorily conducted by the relevant data supervisory authority, which is obligated to pe-approve the BCRs in question for operation. As indicated above, India’s current and proposed data protection framework illustrates a lack of requisite safeguards. Additionally, the GDPR prescribes a requirement of mandatory physical presence within the EU, a condition that may limit opportunities for several small-to-medium scale businesses. These are also unlikely to be adopted for common use due to the time-intensive case-to-case approval process involved. To remedy the same, a model BCRs template may be prepared by each data supervisory authority to expedite the process. This must, however, be preceded by legislative efforts to secure the protection of incoming foreign personal data.

B. Derogations

Hinted by the CJEU itself, derogations under Article 49 of the GDPR allow for the legitimization of data transfers even in circumstances where the receiving state lacks adequate privacy safeguards. These may be allowed in specific circumstances, including when the express informed consent of the data subject is obtained, when the transfer is necessary for the performance of a contract between the data subject and the data controller, or when the transfer is necessary for public interest. However, the applicability of these derogations is exceptional in nature so that regular data transfers cannot be justified.

C. Data Localization

Another alternative is to switch to data localization which entails the storage of all consumer data within the territory from which it is collected. Thus, companies can opt to set up data storage infrastructures within the European Union. While other jurisdictions generally demand only the storage of a copy of data transferred under data localization obligations, such as for law enforcement purposes, this specific obligation would completely restrict the outstation transfer of data in the absence of requisite privacy safeguards. However, this would exponentially increase processing costs and would also restrict the operation of several services which require a to-and-fro transfer of data.

Conclusion

Since member-states of the EU represent major players in the globalization and commercialization scene, nations across the world are likely to enact “essentially equivalent” data protection regimes to prevent against the inability to trade and offer services within the EU. India would also be caught in such a wildfire lest it amend its domestic regime to suit the requirement expounded by the Schrems II Decision. Thus, the Schrems II Decision may catalyse the spread of European data protection principles as a global privacy standard. While the DPCs across the EU are releasing separate guidelines to assist foreign companies to chart measures needed to be adopted in order to comply with the Schrems Decision II, urgent initiative must be taken by the Indian Government to counteract the immediate effects of the possible destabilization of the India-EU data transfer network.