Guest Post: Notes from a Foreign Field – The US Supreme Court’s Masterpiece Cakeshop Case: A Skipped Opportunity

Tags

, , ,

(This is a guest post by Aakanksha Saxena.)

The jurisdiction of the United States Supreme Court [“SCOTUS”] is, unlike the Indian Supreme Court, extremely narrow. The Court grants certiorari in fewer than a hundred cases each term, giving nod to the several steps of constitutional adjudication that matters go through before reaching the Court. But in the area of same-sex couples and their legal rights, the Apex Court jurisprudence has been pioneering. The Supreme Court has been the first of the three federal wings of constitutional government to legalise consenting sexual intercourse, and a few years later, marriage, between two adults of the same gender. As a result, the case of a baker refusing to bake a wedding cake for a same-sex couple’s wedding gathered steam and appeared to set the stage for a further step in the direction of recognition of the rights of homosexual individuals and couples. Through this post, I shall attempt to unravel the judgement that SCOTUS finally rendered, addressing not the issue of homosexual rights under public anti-discrimination legislation, not the right to free exercise of religion – addressing really nothing at all.

Pared down, the facts of the case are this: a gay couple visited a renowned, “designer” bakery in Colorado [at a time when gay marriage was still unrecognised in the state] with the intention of procuring a unique and momentous cake for their upcoming nuptials. The owner of the bakery refused to design them a wedding cake, citing his faith as ground for refusing to make a statement in support of gay marriage; he directed the couple to other products he had ready for sale in his shop. The couple sought legal redress under the Colorado Anti-Discrimination Act [hereinafter, “CADA”], which prohibited inter alia sexual orientation-based discrimination in public places and were successful before the State authorities. The relevant provision that the bakers relied on is as under:

It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of … sexual orientation … the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation…

The case’s trajectory through the State judiciary gave it traction, and by the time it reached its ultimate pitstop, it was being touted as the most significant matter SCOTUS would hear this past term. Fittingly, a reading of the transcript of the SCOTUS oral arguments [duly sensationally reported in polarised media sources] reveals the Bench and the attorneys raising and debating several different aspects of the case, as well as jurisprudence on compelled speech. Several members of the Bench seemed to be performing a confused choreography around the issues, in order to appropriately articulate the questions they would approach.

 

At the Apex Court, from the exchange between the Justices, the attorney for the Petitioner-baker Jack Phillips, and the Solicitor General for the United States Department of Justice in support of the baker, there emerged three broad axes that the case seemed to turn upon several inter-linked questions: what comprises speech, and to that end, how much does it depend on who creates it? How would the case be different if the marriage being objected to was interracial, interreligious, or something else the baker found objectionable – or more simply, who can be refused service, and on what grounds? Lastly, does the nature of the message matter while refusing service?

Tying up these aspects with the First Amendment brought the conflict in the case down to the rights of the baker to free exercise of his religious beliefs and expression, which consequently protected him from being compelled to make speech, versus the rights of the gay couple Charlie Craig and David Mullins to service under public accommodation law, as recognised through years of evolution of hard-fought cases, which cases have now established jurisprudence and state legislations recognising the rights of same-sex couples to be wedded.

When the judgement was delivered, it contained a surprising, not-so-slim 7:2 verdict in favour of the Petitioner baker. Both prongs of the judgment were a surprise, considering SCOTUS follows a 5:4 voting trend on rights-based issues stemming from social equality [as I shall elaborate further shortly]; even more surprise arose from the Court’s decision to side with the baker and rule that his refusal to serve a homosexual couple was well within his constitutional rights. Peeling away the layers of the transcript and the five different opinions in the judgement, the surprise fades away and transmutes into confusion. Where is the decision on whether a cake, or other forms of artistic expression constitute speech [which issue was raised as a constitutional claim by the baker right up to his Supreme Court briefs]? Has this judgment helped furthering the legal cause of same-sex couples? What is the reason for the silence on how the Hurley case – which held that public anti-discrimination laws regulate conduct and not speech – is to be applied? Does the Court’s ruling in this case govern the baker’s cake i.e. his avowed “speech”, or the act of his refusal to make one? The answer to this last question would necessarily form precedent for further kinds of “speech” that could not be compelled.

Justice Kennedy (the Court’s perceived “swing vote”) writing for the majority (joined by Chief Justice Roberts, and Justices Breyer, Alito, Kagan, and Gorsuch) brought the focus on the standard of neutrality that the Colorado Commission, as the first branch of state adjudication ought to have afforded the Baker in its hearing, but didn’t. He therefore concluded that the Commission violated the Free Exercise Clause of the First Amendment. The opinion takes issue with the comments and questions posed by the Commissioners in their hearing of the case, deciding that the Commissioners brought prejudice and hostility against the Baker’s beliefs to the Bench, such that the Commission failed to meet the standard of neutrality that the State must afford in adjudication. In fact, Justice Kennedy even recognised that the Commissioners’ statements were ambiguous such that they could lend to two very starkly different interpretations – one of which was that “they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views.” I believe that this view is not only legally innocuous but also factually accurate. The majority has however taken the other view, holding that the Commissioners’ comments “might be seen as inappropriate and dismissive comments” and thus did not afford the Petitioner the due consideration for his free exercise rights.

The Court posed the question of the level and nature of the Commissioners’ bias to the attorney for the State of Colorado who, in his personal capacity, disavowed the statements while maintaining, for legal argument, that the level of bias was not such that permeated the entire judicial process so as to target the baker for his faith. The subordinate courts’ treatment of Phillips’ constitutional claims went unanswered, and the Court instead concluded on threadbare discussion and analysis that the Commission’s conduct in its treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.

The majority also failed to address Justice Ginsburg in dissent [Sotomayor joining], setting out the different levels of adjudication that the case went through, particularly the de novo review by the Colorado Court of Appeals, which served to negate the alleged “hostility” of one or two Commissioners at one of these levels. Justice Ginsburg also accurately pointed out the majority’s heavy yet misplaced reliance on one SCOTUS precedent on this point, Church of Lukumi Babalu Aye, Inc. v. Hialeah, which concerned governmental prejudice in only one decision-making, legislative body, a distinction that also went untreated by the majority. All opinions skimmed the standard of neutrality that a State or its agencies must afford when regulating or adjudicating, providing no analysis on the requirements that the Commission had to satisfy. Choosing to sidestep the issue of how a state anti-discrimination statute must harmoniously co-exist with First Amendment rights, the majority limited itself to the actual judicial application of the state statute in this case.

The Court also distinguished this treatment from the precedential manner in which the Commission decided what a fractured part of the majority deigned an analogous set of Colorado cases involving another Jack. Mr. William Jack requested three bakeries to bake cakes containing specific messages decrying homosexual persons based on biblical verses. He was refused at all 3, and the Colorado Commission ruled in favour of such refusal. The SCOTUS majority treated this as a buttress to its conclusion that the Commission was especially hostile to Phillips’ religion, and it did not address how the issues of speech and expression, or anti-discrimination were tackled by the Commission in either. Justice Kagan’s concurrence [joined by Justice Breyer] correctly distinguishes the treatment by the Commission in both cases – in refusing William Jack, the bakers treated him just as they would any other paying customer with the same order; in refusing Craig and Mullins, Phillips discriminated against them by refusing to provide what he ordinarily provide [a wedding cake] to other [heterosexual] couples.

This in essence is what the court was supposed to decide, as distilled by Justice Ginsburg – the Baker provided a service to heterosexual couples, that he refused to provide to the homosexual couple in this case, i.e. designing and baking a cake celebrating the wedding of Mullins and Craig; the Bench had to determine whether this refusal was constitutional. It is trite to say that the dissenters chose to uphold the decision of the Colorado Court of Appeals, but they too limited themselves to deciding this on the same basis as the majority, that is, finding that the level of alleged hostility displayed by the Commissioners did not amount to a violation of the Free Exercise clause.

On the merits of the issues raised by all parties in the case, the Justices’ opinions revealed loose threads that certainly ought to raise red flags for LGBTQ and other minority groups’ advocates, and indicate how a future case may be decided. Justice Gorsuch [concurring with the majority and joined by Justice Alito] seemed concerned about where SCOTUS must draw a line – if at all – in identifying which minorities were to be protected and what kinds of messages could be deemed expressive. To that end, perhaps his vote would, on the merits as well, go to the baker. Gorsuch, J., applying the tenets of secularism of state action found that there could be no difference of adjudication between the protection and the treatment to be afforded the avowed “secular” baker who refused to bake homophobic slurs into cakes, and Jack Phillips. Focusing therefore, on the message being “compelled”, rather than the group being protected, this opinion weighed heavier on the side of free religious exercise, as opposed to expansion of homosexual rights. Therefore, in the event a hypothetically 100% neutral commission was faced with the same facts on record, the refusal by the baker to deliver a “compelled” message that he did not agree with on the grounds of First Amendment Free Exercise, would in his eyes be considered constitutional. Gorsuch, J.’s views are cemented by his joining Justice Thomas’ partial concurrence. Justice Thomas took the baker’s case even further, by relying on precedents which had protected anti-gay sentiment under Free Speech claims. In his opinion, he therefore avoided dealing with the impact of the subsequent precedent categorically recognising gay marriage, and which required application in this case. In fact, the application of those precedents becomes unique in the context of Free Exercise which, arguably, is more at loggerheads with gay rights, than the Free Speech clause.

This line of reasoning is also at direct odds with Justice Kagan’s concurrence that sought firmly to distinguish between service providers that refuse to create “offensive” messages versus those that make identity-based refusals. These polar opposing opinions tied themselves to the majority decision only on the issue of the Commission’s treatment being an invalid exercise of State power. The two votes of Justices Kagan and Breyer would otherwise, as was considered foregone prior to the delivery of the opinion, have fallen neatly on the side of the homosexual couple. The conflict between the opinions authored by Justices Kagan and Gorsuch therefore presents the central, critical constitutional question that the Court deftly sidestepped.

Justice Kennedy’s opinion on behalf of the majority carved out the protection for religious exercise, leaving wide open the question of the give-and-take between the Free Exercise clause and a valid exercise of state power in enacting generally applicable anti-discrimination laws. Kennedy, J. highlighted the widespread concern that an exception granted to members of the clergy in choosing whether to perform gay marriage was liable to create a slippery slope fallacy for other kinds of religiously neutral service providers in the context of the wedding industry. Considering that SCOTUS judgements are traditionally devoid of any self-enforcing mechanism, it is reasonable to worry that the nature of this verdict may do even further damage to the tolerance that previous compositions of the Court was trying to propagate.

The State’s responsibility to afford secular treatment of all cases brought to its courts and tribunals is no small feature of United States democracy, and by no means must be blindsided – but was this the case to raise it, and was this the reason to side with Jack Phillips? Is it presumptuous to conclude that the current political climate in USA reined SCOTUS in, such that it chose explicitly to defer the contentious issues that were patently framed throughout the movement of this case through judicial mechanisms? Whatever being the Court’s motives, it remains to be seen what kind of lower court adjudication will ever reach the artificial standard of State neutrality that SCOTUS has banked on here, to enable a more comprehensive, nuanced decision that these exceptional and pressing issues certainly demand.

(The author practices at the High Court of Bombay.)

From Koushal to Navtej Johar: Round-Up

Tags

With the conclusion of the Section 377 litigation, here is a round-up of the ICLP essays, which have spanned the last five years.

A. Pre-Koushal

  1. Textualism v Structural Analysis – or why the Court ought to uphold Naz Foundation” (25 September, 2013).
  2. Is there an interpretive methodology for construing colonial era statutes?” (10 October, 2013).
  3. Naz Foundation and homosexuality: a humorous, historical aside” (10 December, 2013).

B. Koushal

  1. The Unbearable Wrongness of Koushal v Naz Foundation” (11 December, 2013)
  2. Koushal v Naz Foundation: Picking up the pieces and exploring the grounds of review” (12 December, 2013).
  3. Koushal v Naz: Issue-wise Round-up of commentaries” (13 December, 2013).

C. NALSA

  1. NALSA v UoI: The Supreme Court on transsexuals, and the future of Koushal v Naz (15 April, 2014).
  2. Nalsa v UoI and Koushal v Naz: Acts against the order of nature?” (16 April, 2014).

D. The Interregnum

  1. Foucault, Rubenfeld, Naz Foundation, and Article 15″, (4 October, 2014).
  2. Guest post: Sex, sexual orientation, and the courts” (27 August, 2015) (by Vansh Gupta).
  3. Notes from a foreign field: The Supreme Court of Belize strikes down its anti-LGBT law” (13 August, 2016).

E. Puttaswamy

  1. The Supreme Court’s right to privacy judgment – III: Privacy, surveillance, and the human body” (29 August, 2017).
  2. The Supreme Court’s right to privacy judgment – V: Privacy and decisional autonomy” (31 August, 2017).

F. Navtej Johar 

  1. Section 377 referred to a Constitution Bench: Some Issues” (8 January, 2018).
  2. Guest Post: Inclusive pluralism or majoritarian nationalism: Article 15, Section 377, and who we really are” (9 July, 2018) (by Tarunabh Khaitan)
  3. Guest post: on the presumption of constitutionality for pre-constitutional laws” (11 July, 2018) (by Tarunabh Khaitan).
  4. Guest post: against natural rights – why the Supreme Court should NOT declare the right to intimacy as a natural right” (17 July, 2018) (by Tarunabh Khaitan).
  5. Civilisation has been brutal: Navtej Johar, Section 377, and the Supreme Court’s moment of atonement” (6 September, 2018).
  6. Guest Post: Navtej Johar v Union of India: Key highlights” (9 September, 2018) (by Abhinav Chandrachud).
  7. “Guest Post: Navtej Johar v Union of India: What remains of Section 377?” (10 September, 2018) (by Vanshaj Jain).
  8.  “Navtej Johar v Union of India: Rethinking Rajbala and the way forward” (15 September, 2018).

 

Navtej Johar v Union of India: Rethinking Rajbala, and the Way Forward

Tags

, , , ,

(This is the concluding post in our series of essays examining the Supreme Court’s judgment in Navtej Johar v Union of India. An earlier version of this piece appeared in Scroll.)

As the dust settles over Navtej Johar v Union of India, attention must turn to the future. When, last year, the Supreme Court delivered the famous privacy judgment, it was immediately clear that it was both important in its own right, but also, equally important in the possibilities that it opened up for future expansion of civil rights. Navtej Johar – as I mentioned in my initial essay – was itself made possible by the privacy judgment. And Navtej Johar – in turn – now opens up a series of possibilities. Here are three of them:

A. “Manifest arbitrariness” as a ground for striking down laws

As readers of the blog are aware, we have previously discussed the long judicial tussle between the “classification” and the “arbitrariness” tests under Article 14 of the Constitution. To cut the long story short, the traditional rational classification standard under Article 14 has always been deferential towards the State, and incapable of addressing complex inequalities. Arbitrariness was introduced to mitigate the shortcomings of the classification standard, but has itself ended up being rather … arbitrary. Notwithstanding that, there has always been controversy over whether the arbitrariness standard is limited to invalidating executive action (which would, essentially, reduce it to a glorified Wednesbury principle), or whether it can be applied to invalidate statutes as well.

In the Triple Talaq judgment last year, at least two judges out of five held that “manifest arbitrariness” could, indeed, be applied by courts to invalidate statutes. It was unclear whether the “swing opinion” – that of Joseph J. – endorsed this principle. Subsequent judgments (delivered by two judges) appeared to believe that it did. However, the controversy has now been set to rest. In Navtej Johar – as Abhinav Chandrachud points out in his guest post – all five judges partially strike down S. 377 on grounds of manifest arbitrariness.

What does this mean for civil rights? There is one immediate implication. Three years ago, in Rajbala v State of Haryana (which I have analysed here), the Supreme Court upheld the State of Haryana’s amendments to the Panchayati Raj Act, which had imposed educational, debt and property-based restrictions upon the right to contest Panchayat elections. The judgment expressly held that the “arbitrariness standard” could not – and would not – be applied to test the law under Article 14. As Mihir Naniwadekar pointed out at the time, there was a strong argument that the Rajbala bench was bound to apply the arbitrariness standard, under existing precedent. Two judges out of five believed so in Triple Talaq, when they expressly stated that Rajbala stood overruled on this point. And that view has not been vindicated by the verdict of all five judges in Navtej JoharRajbala, therefore, requires reconsideration.

(N.B. I should add that, as previously discussed on this blog, I do not think the arbitrariness standard – as it stands, and without further development – is constitutionally defensible. However, it is what it is.)

B. Discrimination as a contextual enquiry

Justice Chandrachud’s concurring judgment in Navtej Johar argues at great length that the question of whether a law or a rule has a discriminatory effect must be answered by taking into account the background social context in which the law operates. In 2013, in its judgment upholding Section 377, the Supreme Court in Koushal v Naz Foundation had held that in criminalizing “carnal intercourse against the order of nature”, the section only penalized “acts”, and not persons; consequently, the question of discrimination did not arise. In a detailed repudiation of this facile argument, Justice Chandrachud examines how, when Section 377 interacts with the existing social and moral proscriptions, its effect is to confine the LGBT+ community to the proverbial closet, causing great harm to their individuality, personhood, and dignity. Whatever the form of the law, therefore, its effect – when placed within the social context – is discriminatory.

This focus on effect and context has the potential to significantly advance discrimination jurisprudence in India. As an example, take once again the judgment in Rajbala v State of Haryana. While upholding educational disqualifications in that case, the Court noted that it was only education that allowed people to distinguish between right and wrong. What the Court didn’t take into account, however, was that despite our legal and constitutional framework, access to education continues to be skewed along caste, gender, and economic lines, for a multiplicity of reasons (ranging from stereotypes about women’s role in the family, to simple economic stress that does not permit the luxury of sending children to school). This has been pointed out repeatedly, and is well-documented. For example:

A glimpse at Haryana’s background tells us how deeply it is entrenched in patriarchy. It has one of the most skewed sex ratios in India — 877 overall and 837 in the 0-6 year age group. Male literacy rate is 85 pc, against 66 pc for females, a significant gap.

 

Therefore, while the law in Rajbala appeared to be about incentivizing education (a laudable goal), its effect was to further marginalize from the political process those who were already most marginalised. If Chandrachud J.’s reasoning in Navtej Johar is followed, this background context cannot be ignored.

The Supreme Court has an immediate opportunity to correct its error in Rajbala: the State of Rajasthan passed a very similar law at around the same time, which is yet to be adjudicated upon by the Court.

It is, after all, never out of season to dream.

 C. Analogous grounds

In her concurring opinion, Justice Indu Malhotra argues that discrimination on grounds of sexual orientation violates Article 15(1) of the Constitution. Article 15(1) prohibits discrimination on grounds of sex, race, religion, caste, and place of birth. Justice Malhotra takes the view, however, that Article 15(1) covers not only these five stipulated grounds, but also “analogous” grounds: that is, characteristics that bear a family resemblance to sex, race, religion etc. What is common to the “grounds” under 15(1) – Justice Malhotra argues – is that they are either immutable (i.e., impossible or extremely difficult to change), and/or deeply linked to personal autonomy. Sexual orientation, thus, is an “analogous ground”, and therefore protected under Article 15(1).

Malhotra J.’s interpretation is difficult to sustain on the text of Article 15(1), which makes it clear that it refers to a “closed list of grounds” – i.e., the Court cannot add to the five grounds stipulated therein. However, if Justice Malhotra’s view is accepted in future judgments, it does open up Article 15(1) to a range of discrimination claims: for example, age, disability, political belief, and economic status are just a few of the possible “grounds” that can be invoked as analogous, and therefore, protected by a non-discrimination guarantee. Here, once again, the Court must tread carefully, and develop the law in an incremental and rigorous fashion.

Conclusion

For a long time now, the Indian Supreme Court’s thinking on issues of equality and non-discrimination has been static. This is contrary to other jurisdictions such as Canada and South Africa, where judges have deepened their understanding of these questions, over time. Navtej Johar’s judgment provides us with a gateway to updating our own understanding of Articles 14 and 15(1) of the Constitution, to match with ever more sophisticated accounts of what constitutes inequality and discrimination. However, it is only the foundation stone: the future development of the law is now in the hands of the courts.

Guest Post: Navtej Johar v Union of India – On Intersectionality (We’re not quite there yet)

Tags

, , , ,

(This is a guest post by Gauri Pillai).

The theory of intersectionality, within feminist jurisprudence, views individual identity as arising from an interaction of several grounds, such as caste, sex, disability, age, religion, race, sexual orientation etc. Originating in the context of understanding the identities of Black women as being shaped by both gender and race, the theory recognises that women are not a monolith, facing a single form of oppression; instead their multiple social identities interact, resulting in unique forms of marginalisation. Intersectional discrimination therefore signifies discrimination suffered on the basis of more than one personal characteristic. Such discrimination is not merely a sum or overlap of discriminatory treatment experienced due to individual grounds, but is instead characterised by a “uniqueness and sharedness” arising from the intersection of the various grounds. For instance, a Dalit woman with disabilities shares experiences of discrimination with persons with disabilities, Dalit individuals and other women. However, she also faces a distinctive form of discrimination due to the interaction of her multiple identities, which is more than a mere combination of discrimination on account of disability, caste and sex/ gender.

Article 15(1) of the Constitution of India reads, “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”. In interpretation of this provision, courts have placed emphasis on the word “only” to imply that only discrimination on a single ground is suspect under Article 15, thus excluding intersectional discrimination from its scope. For instance, the Calcutta High Court in Mahadeb v Dr BB Sen held, “The impugned law must be shown to discriminate because of sex alone. If other factors in addition to sex come into play in making the discriminatory law, then such discrimination does not, in my judgment, come within the provision of Article 15(1) of the Constitution”. In Dattatraya Motiram v State of Bombay, the Bombay High Court accepted a form of discriminatory treatment as constitutionally valid, arguing, “If there is a discrimination in favour of a particular sex, that discrimination would be permissible provided it is not only on the ground of sex, or, in other words, the classification on the ground of sex is permissible provided that classification is the result of other considerations”. This trend was confirmed in Air India v Nergesh Meerza, where the Supreme Court stated, “[W]hat Articles 15(1) and 16(2) prohibit is that discrimination should not be made only and only on the ground of sex. These Articles of the Constitution do not prohibit the State from making discrimination on the ground of sex coupled with other considerations.

However, previously on this blog, Shreya Atrey has argued that this misinterprets the meaning of the word “only”. Relying on the placement of this word within the text of Article 15(1), which says “on grounds only of” rather than “only on grounds of”, Atrey points out that the word “only” refers to the inappropriateness of certain personal characteristics or grounds being relied on as the basis of discrimination, and does not indicate the requirement of single-ground claims. Further, interpreting “only” to permit solely claims invoking a single ground of discrimination is a partial reading of Article 15(1), omitting to taking into account the phrase “or any of them” which would allow claims to be made under several grounds.

Justice Chandrachud’s concurring opinion in Navtej Singh Johar v. Union of India dismisses the reliance placed on “only” by cases like Nergesh Meerza as a “formalistic interpretation of Article 15” which would render the “constitutional guarantee against discrimination meaningless” [Chandrachud J., 36]. Though Chandrachud J. does not offer a reinterpretation of the text, as suggested by Atrey, the Court does state that discrimination based on “sex and another ground (‘sex plus’)” would fall within the ambit of Article 15 [Chandrachud J., 36].

This seems to indicate clear judicial approval for the theory of intersectionality. However, Chandrachud J. bases his observations on the need for recognising intersectional discrimination under Article 15(1) on a critique of Nergesh Meerza, holding that the approach adopted by the court in the case was incorrect since it failed to adopt an “intersectional understanding of how discrimination operates” [Chandrachud J., 41]. A close reading of Nergesh Meerza, on the other hand, shows that the case concerned discrimination solely on ground of sex. Nergesh Meerza involved a challenge to certain provisions of the Air India Employee Service Regulations, which created significant disparity between male and female crew with respect to service conditions. The Supreme Court, relying on these very differences in service conditions between men and women, dismissed the claim under Article 15(1), stating the discrimination was on ground of “sex coupled with other considerations”. The Court however failed to question the basis on which these “other considerations” were differentially allotted. As Bhatia argues, especially after finding that the nature of work performed by male and female members was similar, the Court should have held that the initial classification, relying on which these “other considerations” were decided, was based on sex. As pointed out by the female crewmembers in Nergesh Meerza, “the real discrimination was on the basis of sex which was sought to be smoke screened by giving a halo of circumstances other than sex”.

Thus, the dictum of the Supreme Court in Nergesh Meerza was certainly incorrect. However this was not due to a failure to account for intersectional identities of women. Rather, it was because the Court did not recognise that the constitution of the separate cadres and fixing of differential service conditions were themselves based on sex, such that the “other considerations” which the Court declared, when coupled with sex, excluded the claim from the scope of Article 15, were products of sex discrimination. Nergesh Meerza is thus not an example for a “sex plus” claim of discrimination; instead it is a case of sex discrimination where the Court omitted to consider that the “other considerations” were also incidents on discrimination on ground of sex.

The Supreme Court, in Navtej Johar, reversed this trend by stating that if the “other considerations” being relied on are stereotypical understandings of the notions of sex, or factors which have a disparate impact on the members of one sex, these cases would not be distinguishable from discrimination solely on ground of sex. For instance, citing Anuj Garg v. Union of India, the Court pointed out that stereotypes regarding socially ascribed gender roles cannot be used as plus factors to argue that discrimination was not only on ground of sex [Chandrachud J., 41]. Similarly, a rule that only people six feet or more in height would be employed in the army cannot be excluded from the ambit of Article 15(1) as being based on sex and height, since height is often an incident of sex, and classification on the basis of height would have a “disproportionate impact” on women [Chandrachud J., 36]. In this manner, the Chandrachud J. in Navtej Johar deviated from the dictum in Nergesh Meerza, where the Court adopted a formalistic interpretation of sex discrimination as a facial classification between men and women, relegating the other manifestations of sex discrimination to “other considerations”.

To this extent, the approach of the Court in Navtej Johar (through the opinion of Chandrachud J.) represents a welcome shift in the interpretation of “only” under Article 15(1). Atrey argues that the technical interpretation of “only” relied on so far by courts excludes both a contextual and an intersectional analysis of discrimination. By going beyond cases of facial classification between men and women to include other manifestations of sex discrimination- such as the use of stereotypes- the Court in Navtej Johar places sex discrimination within the existing socio-political context by including within the ambit of Article 15(1) the gendered aspects of sex discrimination. In this way, the Court brings in a contextual lens to the analysis of discrimination under Article 15. However, the examples relied on by the Court, as identified above, are incidents of discrimination on ground of sex, rather than intersection of sex with other grounds such as race, disability, age etc. This implies that the Court in Navtej Johar did not go the entire way in recognising intersectional discrimination, despite references to the intersectional nature of sex discrimination [Chandrachud J., 36, 41].

Adopting a more holistic view of sex discrimination, as the Chandrachud J. has done in Navtej Johar, is different from acknowledging the unique forms of oppression created by the intersection of multiple identities, of which sex is only one. For instance, in Shayara Bano v Union of India, the claim of discrimination was brought by Muslim women. Though the decision of the Supreme Court in the case has been critiqued (here and here) for failing to account for intersectional discrimination, the case illustrates how multiple grounds- sex and religion- interact to create a distinctive form of disadvantage. Shayaro Bano is thus an example of a claim of intersectional discrimination; Nergesh Meerza is not. The Supreme Court in Navtej Johar appears to have conclusively established a contextual approach towards analysing claims of discrimination under Article 15(1) by rejecting the interpretation of “only” presented in cases like Nergesh Meerza. However, whether an intersectional lens, which would not just allow but also recognise the distinctiveness of a claim invoking multiple grounds under Article 15(1), has been adopted remains to be seen.

In sum, Justice Chandrachud’s judgment in Navtej Johar recognises the concept of contextual discrimination and acknowledges the concept of intersectional discrimination; however, his actual reasoning is limited to the former. For a judgment that incorporates the concept of intersectional discrimination within the framework of Article 15(1), we may have to wait a little longer.

(The writer has recently completed her BCL degree from the University of Oxford.)

Guest Post: Navtej Johar v Union of India – What Remains of Section 377?

Tags

, , , ,

(This is a guest post by Vanshaj Jain).

That consensual sex between adults lies outside the scope of s.377 is now certain, per Navtej Singh Johar. What remains within the confines of the provision, however, is perilously unclear. To understand the conceptual imprecision that lies at the heart of this decision, it is necessary to understand how the normative content of Section 377 has changed since its ignominious birth.

Sections 375 and 377 were originally intended to cover two mutually exclusive categories of sexual acts. While s.375 covered “sexual intercourse”, s.377 infamously covered “carnal intercourse against the order of nature”. Though these terms were left intentionally imprecise, over time their meaning became conceptually dependant on each other. In Khanu v. Emperor, sexual intercourse was considered intercourse ‘in the order of nature’ with “the possibility of conception of human beings” and carnal intercourse against the order of nature was understood to cover all non-procreative sexual acts. Similarly, in Lohana Vasantlal Devchand, the content of s.377 was defined in opposition to s.375 by describing carnal intercourse against the order of nature as “an imitative act of sexual intercourse”. This bifurcation of sexual acts was cemented by the Supreme Court in Sakshi v. Union of India, where ‘sexual intercourse’ in s.375 was restricted to penile-vaginal penetration, while all residual forms of intercourse (including “penile-oral penetration, penile-anal penetration, finger-vagina, finger-anal penetration and object-vaginal penetration”) were considered carnal intercourse against the order of nature under s.377. Thus defined, the relationship between the two provisions could be conceived as follows:

Vanshaj1

However, the 2013 Criminal Law (Amendment) Act put an end to the watertight separation between these provisions. Section 375 was altered to include acts that earlier fell only within the domain of s.377, including oral sex, anal sex and penetration by objects. Coupled with these changes, the section ceased to describe the actus reus of rape as ‘sexual intercourse’. In fact, the marital rape exception to s.375 which earlier covered only ‘sexual intercourse’ was specifically amended to except “sexual intercourse or sexual acts”. As Sekhri and Mukhopadhyay argue, this ended the binary separation of ss.375 and 377 under ‘sexual intercourse’ and ‘carnal intercourse against the order of nature’. Indeed, it would be strange if the Amendment Act continued to restrict s.375 to ‘sexual intercourse’ alone since it was based on the Justice Verma Committee Report, which expressly recommended removing s.377 and abolishing the ‘sexual intercourse’/‘carnal intercourse against the order of nature’ division. Consequently, following the 2013 Amendment, the relationship between the provisions could be conceived of as follows:

Vanshaj2

It is this change in the conceptual interdependence of ss.375 and 377 that the Court seems to gloss over in Navtej Singh Johar. The opinions in Navtej erroneously presume that s.375 is still restricted only to ‘sexual intercourse’ and thus has no potential overlap with the actus reus of s.377. Per Chandrachud J., for instance, the 2013 Amendment shifts non-traditional male-on-female sexual acts [now covered in amended s.375(a)-(d)] from the category of ‘carnal intercourse against the order of nature’ to that of ‘sexual intercourse’. He reasons that:

…if ‘sexual intercourse’ now includes many acts which were covered under Section 377, those acts are clearly not ‘against the order of nature’ anymore. They are, in fact, part of the changed meaning of sexual intercourse itself. This means that much of Section 377 has not only been rendered redundant but that the very word ‘unnatural’ cannot have the meaning that was attributed to it before the 2013 amendment…[m]any of these acts which would have been within the purview of Section 377, stand excluded from criminal liability when they take place in the course of consensual heterosexual contact. Parliament has ruled against them being regarded against the ‘order of nature’, in the context of Section 375. Yet those acts continue to be subject to criminal liability, if two adult men or women were to engage in consensual sexual contact.

This misconception is repeated in the opinions of the other judges, compelling them to believe that the 2013 Amendment implies that consensual non-traditional male-on-female sex is legal because it displaces such acts from s.377 to s.375, the latter having a consent requirement. As is argued above, the language of amended s.375 betrays that this cannot be its effect; instead such acts remain within the meaning of ‘carnal intercourse against the order of nature’ but are to be covered both by s.377 and s.375 (under the phrase “sexual acts” added by the amendment).

Further, to add to the confusion, the judges seem to ascribe the intention of decriminalizing all consensual sex between a man and a woman to the 2013 Amendment. Per Nariman J., for instance:

…the legislature has amended one portion of the law in 2013, making it clear that consensual sex, as described in the amended provision, between two consenting adults, one a man and one a woman, would not be liable for prosecution.

The basis for this conclusion is never made clear in the opinions in Navtej, and cannot be located within the text of the 2013 Amendment Act or the Justice Verma Committee Report. Indeed, it is strange to reason that merely because the actus reus of one provision (here: s.375) is expanded but made contingent on a consent requirement, the implication it carries is that the same act cannot be penalized under any other provision (here: s.377), even if it falls within its definitional parameters. This seems patently incorrect.

The second concern with the manner in which the decision addresses s.377 relates to the phrase ‘carnal intercourse against the order of nature’. The concurring opinions indicate that this phrase lacks clear content:

In the contemporary world where even marriage is now not equated to procreation of children, the question that would arise is whether homosexuality and carnal intercourse between consenting adults of opposite sex can be tagged as ‘against the order of nature‘. It is the freedom of choice of two consenting adults to perform sex for procreation or otherwise and if their choice is that of the latter, it cannot be said to be against the order of nature. [CJI]

At the very outset, we must understand the problem with the usage of the term ‘order of nature’. What is ‘natural’ and what is ‘unnatural’? And who decides the categorization into these two ostensibly distinct and water-tight compartments? The simple question which we need to ask ourselves is whether liberty and equality can be made to depend on such vagueness of expression and indeterminacy of content…[i]f it is difficult to locate any intelligible differentia between indeterminate terms such as ‘natural’ and ‘unnatural’, then it is even more problematic to say that a classification between individuals who supposedly engage in ‘natural’ intercourse and those who engage in ‘carnal intercourse against the order of nature’ can be legally valid. [Chandrachud J.]

…the phrase “carnal intercourse against the order of nature” in Section 377 as a determining principle in a penal provision, is too open-ended” [Malhotra J.]

While the reasoning is unimpeachable, the judges don’t seem to fully appreciate its consequence. The phrase ‘carnal intercourse against the order of nature’ forms the crux of s.377; it is the actus reus on which the crime is based. If its content is unclear, as the judges rightly point out, only two consequences can follow: either the Court provides a clear guiding principle to determine the content of this phrase for future use or it strikes down the entire provision for vagueness. Troublingly, the Court does neither.

Instead, the Court reformulates the content of s.377 as follows:

“However, if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 is constitutional and it shall remain a penal offence under Section 377 IPC. Any act of the description covered under Section 377 IPC done between two individuals without the consent of any one of them would invite penal liability under Section 377 IPC.” [CJI]

 

The phrase “act of the description covered under Section 377” could, reasonably, only refer to ‘carnal intercourse against the order of nature’. Yet, by virtue of the pronouncements highlighted above, this phrase no longer carries any positive content, since the Court has, in no uncertain terms, departed from the tests laid down in Khanu and Lohana Devchand, without providing a new test of their own. This renders the residual content of s.377 uncertain. It could, potentially, be conceived of in three possible ways:

Vanshaj3

Vanshaj4

Option A is the only one consistent with the Court’s statements on the unintelligibility of ‘carnal intercourse against the order of nature’. By undermining this phrase, it is conceivable that the Court wishes to put the divide between ‘sexual intercourse’ and ‘carnal intercourse against the order of nature’ to rest once and for all. Consequently, s.377 could be used to cover all non-consensual acts of sex (in addition to bestiality and paedophilia) that are not already covered by s.375 – this reinterpretation could raise the interesting possibility that marital rape and female-on-male rape are now subject to penal liability under s.377.

Option B indicates that s.375 and s.377 are not watertight categories; whereas s.375 criminalizes non-consensual male-on-female sexual intercourse and carnal intercourse (“sexual acts”), s.377 covers all remaining forms of non-consensual carnal intercourse. While this option best reflects the text of the 2013 Criminal Law (Amendment) Act, it isn’t consistent with the court’s reasoning on the 375-377 relationship. Option C allows for ss.375 and 377 to retain their independent character, the former applying only to ‘sexual intercourse’ while the latter covers only ‘carnal intercourse’, and best reflects the court’s description of their interaction. However, given the Court’s twin reasoning, first, on the unintelligibility of ‘carnal intercourse against the order of nature’ and its clear dicta that non-traditional forms of sex are not ‘unnatural’, and second, that the 2013 Amendment Act has shifted non-traditional forms of sex from ‘carnal intercourse’ to ‘sexual intercourse’, it is possible that, both under Options B and C, s.377 could no longer be used to cover non-traditional intercourse when done non-consensually, rendering the provision redundant (outside the context of bestiality and paedophilia). This would also have the bizarre outcome that even though male-on-male rape was criminalised earlier under s.377, by virtue of this decision it now carries no sanction (due to the gendered nature of s.375’s text). However, if the phrase ‘carnal intercourse’ does have any residual content, this would again raise the possibility, under Option B, of trying marital rape and female-on-male rape (when it entails such carnal intercourse) under s.377.

In conclusion, the normative content of s.377 is uncertain, and will, in all likelihood, require further clarification. What is clear, however, is that the judgment unfortunately glosses over the conceptual boundaries of a criminal law provision whose content it was called upon to decide.

Guest Post: Navtej Johar v Union of India – Key Highlights

Tags

, , , , , ,

(This is a guest post by Dr. Abhinav Chandrachud.)

Much has already been written and said about the recent landmark decision of the Supreme Court in Navtej Singh Johar v. Union of India, where a bench of five judges of the Supreme Court partially struck down Section 377 of the Indian Penal Code (IPC), which made “carnal intercourse against the order of nature” a criminal offence. Four separate judgments were delivered by the court, by Chief Justice Misra (supported by Khanwilkar J), and Justices Nariman, Chandrachud and Malhotra. Though the conclusions arrived at were the same, some of the reasoning was different. For example, Justice Nariman held that there is no presumption of constitutionality for pre-Constitution laws [Nariman J, paragraph 90], Justice Chandrachud rejected [Chandrachud J, paragraph 36] the “sex plus” test laid down in Air India v. Nergesh Mirza, (1981) 4 SCC 335, while the other judges didn’t dwell much on these subjects. This post therefore focuses on some of the key highlights of the reasoning of the majority in the case. All paragraph number references are from the original judgments published on the website of the Supreme Court of India.

What is “natural”?

Section 377 of the IPC bears the heading “unnatural offences” and it penalizes carnal intercourse which is against the order of “nature”. Some of the judges therefore asked themselves what was meant by the word “natural”. Chief Justice Misra and Justice Malhotra held that a person’s sexual orientation itself is natural [Misra CJ, paragraphs 4, 109; Malhotra J, paragraph 13.1]. Relying on scholars like Zaid Al Baset and Shamnad Basheer, Justice Chandrachud wrote that there are shortcomings in the conceptual categories of “natural” and “unnatural”, that the idea of the “natural” was manufactured by a majoritarian suppression of the history of the prevalence of sexual minorities, that merely because something is natural does not mean that it is desirable (e.g., death), and just because something is unnatural (e.g., a heart transplant) doesn’t mean that it ought to be criminal [Chandrachud J, paragraphs 28-29].

Constitutional Morality:

One of the central themes of the court’s decision in Johar is that the aim of the Constitution is to transform society, not to entrench and preserve the pre-existing values of the majority. In other words, though a majority of people in India may be heterosexuals, though the prevalent “social morality” in India might even dictate sexual intercourse only between a man and a woman, it is “constitutional morality” which must prevail [See, Misra CJ, paragraphs 110, 119; Nariman J, paragraphs 80-81; Chandrachud J, paragraphs 3, 24, 141]. Ambedkar himself had said that “our people have yet to learn” the “sentiment” of “constitutional morality” [Chandrachud J, paragraph 141].

In West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), Justice Jackson of the U.S. Supreme Court famously wrote, “Compulsory unification of opinion achieves only the unanimity of the graveyard.” In passages reminiscent of these words, the Johar court found: “Any attempt to push and shove a homogeneous, uniform, consistent and a standardised philosophy throughout the society would violate the principle of constitutional morality.” [Misra CJ, paragraph 116]; And: “Democratic as it is, our Constitution does not demand conformity. Nor does it contemplate the mainstreaming of culture. It nurtures dissent as the safety valve for societal conflict. Our ability to recognise others who are different is a sign of our own evolution.” [Chandrachud J, paragraph 5].

The Miniscule Minority:

In Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, the Supreme Court had previously upheld Section 377 of the IPC because only “a miniscule fraction of the country’s population”, according to the court, belonged to the LGBTQI community. This argument was rejected by the court in Johar [Misra CJ, paragraphs 115, 120, 169; Nariman J, paragraph 95; Chandrachud J, paragraph 55; Malhotra J, paragraph 19(ii)]. The number of people asserting a fundamental right, said Chief Justice Misra, is “meaningless; like zero on the left side of any number.”

Unreasonable Classification:

Section 377 of the IPC was partially struck down by the court on the ground that it violates the rights to equality, free speech, and life under Articles 14, 19(1)(a) and 21 of the Constitution. Two tests were applied to determine whether the provision fell foul of Article 14 – the old classification test, and the new manifest arbitrariness test.

Under the classification test, a law falls foul of Article 14 if it either classifies people into categories without applying an intelligible differentia, or if the object sought to be achieved by the law doesn’t bear any rational nexus with the intelligible differentia. Applying this test, Chief Justice Misra found that the object of Section 377 (“to protect women and children from being subjected to carnal intercourse”), did not bear a reasonable nexus with the classification of persons into those who have carnal intercourse against the order of nature and those who don’t [Misra CJ, paragraph 237]. Justice Chandrachud, on the other hand, held that it was “difficult to locate any intelligible differentia between indeterminate terms such as ‘natural’ and ‘unnatural’” [Chandrachud J, paragraph 29]. Justice Malhotra held that “Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia.” [Malhotra J, paragraph 14.3]

Manifest Arbitrariness:

All the judges found that Section 377 was manifestly arbitrary [Misra CJ, paragraph 239, Nariman J, paragraph 82; Chandrachud J, paragraph 29; Malhotra J, paragraph 14.9]. The following were among the reasons given by the court in support of this conclusion: (i) Section 377 does not distinguish between consensual and non-consensual sexual intercourse among competent adults; (ii) it fails to recognize that such sexual intercourse is not harmful to society; (iii) it inflicts a stigma on members of the LGBTQI community; (iv) modern psychiatric studies have shown that members of the LGBTQI community are not persons suffering from mental disorders; (v) Section 377 inflicts life imprisonment, which is disproportionate; (vi) it is rooted in the belief that the sole aim of sexual intercourse is procreation; (vi) it discriminates on the basis of sexual orientation, over which a person has “little or no choice”; (vii) the phrase “carnal intercourse against the order of nature” is too open ended and vague to be in a penal provision; (viii) after the 2013 amendment to the IPC, some consensual sexual acts between heterosexual adults would no longer be considered rape under Section 375, though they would still fall foul of Section 377 [Misra CJ, paragraph 220; Nariman J, paragraph 94; Chandrachud J, paragraph 31 (at pp. 39-41)].

Articles 19(1)(a) and 21:

The court found that Section 377 violates the right of members of the LGBTQI community to dignity, identity, and privacy, all covered under Article 21 of the Constitution [Misra CJ, paragraphs 143, 229; Nariman J, paragraph 83; Chandrachud J, paragraphs 51 (at p. 66), 58; Malhotra J, paragraphs 13.1, 14.5, 16]. Two judges found that it violates the right to health, because the criminalization of homosexual intercourse makes members of the LGBTQI community hesitate to seek medical advice and that they are therefore more susceptible to sexually transmitted diseases [Chandrachud J, paragraphs 76, 83, 84, 87, 92; Malhotra J, paragraph 16.3]. The court also found that Section 377 violates the right to the freedom of expression under Article 19(1)(a) [Misra CJ, paragraphs 245, 247; Malhotra J, paragraph 17].

Partially Struck Down:

However, Section 377 of the IPC has not entirely been struck down. It still covers bestiality and non-consensual intercourse [See: Misra CJ, paragraphs 252, 253 (xvii), Nariman J, paragraph 97; Chandrachud J, paragraphs 7, 156(i)]. Since the court struck down the provision as far as it applies to consenting adults, the provision still presumably applies to consensual sexual intercourse among minors of the same gender. Under Section 375 of the IPC, as amended in 2013, even consensual sexual intercourse among heterosexual minors, if the girl is under 18 years of age, is considered to be rape.

(The writer is an advocate at the Bombay High Court)

“Civilization has been brutal”: Navtej Johar, Section 377, and the Supreme Court’s Moment of Atonement

Tags

, , , , ,

Last year, in Justice K.S. Puttaswamy v Union of India, the Supreme Court did a remarkable thing. While declaring that privacy was a fundamental right under the Indian Constitution, five out of nine judges also noted that the Court’s 2013 judgment in Suresh Kumar Koushal v Naz Foundation (an entirely unconnected proceeding) had been wrongly decided. In Koushal, the constitutionality of Section 377 of the Indian Penal Code – that criminalised “carnal intercourse against the order of nature” – had been upheld, and the 2009 Delhi High Court judgment reading it down to exclude consenting same-sex relations had been overturned. How deeply the Koushal Court had erred (in the view of the Puttaswamy bench) was evident from the fact that in his plurality opinion, Chandrachud J. singled it out as one of the two “discordant notes” in constitutional history (the other was the Emergency-era ADM Jabalpur judgment).

The privacy judgment made it clear that Koushal was living on borrowed time. That time came to an end today, when a Constitution Bench of the Court, in Navtej Johar v Union of India, formally overruled Koushal, effectively restored the Delhi High Court judgment in Naz Foundation, and unambiguously held that the LGTB+ community was entitled to equal rights under Articles 14, 15, 19, 21, and the rest of the Constitution’s fundamental rights chapter.

Four concurring judgments were delivered in Navtej Johar. While concurring on the outcome of the case – that Section 377 violated Article 14 (equal protection of laws), 15(1) (non-discrimination on grounds of sex), 19(1)(a) (freedom of expression) and 21 (right to life and personal liberty) – the judges came at the issues from different angles. In this essay, I shall discuss the different strands of constitutional reasoning that we find in Navtej Johar, and their implications for the future.

A. The Chief Justice and the Primacy of Choice 

The Chief Justice wrote for himself and Justice Khanwilkar. His is a wide-ranging judgment, but at its heart lies the idea of choice. This is not as straightforward an argument as it seems at first blush. Recall that there has been a long-standing debate about whether sexual orientation is “natural” and “immutable”, a question of choice, or somewhere in between upon a spectrum. It has always been intuitively tempting to argue that sexual orientation is simply a question of having been “born this way.” It is tempting because if sexual orientation is “natural”, and something beyond the individual’s power to alter, then criminalising it is ipso facto irrational. Our criminal law is based upon the idea of holding people to account for acts that they are responsible for. How then can you criminalise something that is inherent, and which cannot be controlled?

The “born this way” discourse, however, has been strongly criticised. As this article points out, for example:

If biology determines our expression, then there is no reason to think about making better or different worlds. It has all been decided, from the moment we became Homo sapiens. Yet if we recognise sexuality as constructed, we open up essential discussions about some of the most important aspects of life. Who are we sexually intimate with, and how? What do we do with the consequences of sexual intimacy (offspring and health)? Who is responsible for children’s lives, development and education in a society? The arrangement of sexual relations is the key social building block of society’s reproduction. Hence the importance of gay marriage. Yet we have a surprisingly limited way of engaging this conversation; indeed, biological determinism helps us avoid the issue altogether. A host of social issues are pressing down upon us, and we cannot effectively address them if we deny the reality of the human condition, including sexuality, and thereby close off discussions before they begin.

And, as the work of Foucault and other scholars has demonstrated, essentialising sexuality (and sexual orientation) runs the risk of trapping people in pre-constructed identities, in a manner that – in the long run – is anything but emancipatory.

To the judgment’s merit, it keeps both these propositions in an equilibrium, and refrains from choosing one over the other. So, in paragraph 9, the Chief Justice observes:

When we talk about identity from the constitutional spectrum, it cannot be pigeon-holed singularly to one‘s orientation that may be associated with his/her birth and the feelings he/she develops when he/she grows up. Such a narrow perception may initially sound to subserve the purpose of justice but on a studied scrutiny, it is soon realized that the limited recognition keeps the individual choice at bay.

“Natural orientation” and “choice” are discussed in a complementary manner throughout the judgment (see, e.g., paragraphs 109 and 148). Admittedly, at various points in the judgment, the Chief Justice comes close to slipping back into the former type of vocabulary, using words such as “inherent”, “innate”, “by birth”, and so on (paragraph 143 – 144). A holistic reading of the judgment, however, makes it clear that the concept of choice (that he also frames as individual self-determination) is as important to the exercise of constitutional rights as the “naturalness” of sexual orientation. Indeed, in paragraph 140, while defining the aspects sexual orientation, the Chief Justice refers both to “inherent orientation” and “demonstration of choice.”

And, perhaps most importantly, it is in the language of choice that the Chief Justice rejects Koushal’s argument (indeed, the only argument actually made in Koushal) that as Section 377 only criminalises “acts” and not “persons”, it does not violate constitutional guarantees:

… individuality of a person and the acceptance of identity invite advertence to some necessary concepts which eventually recognize the constitutional status of an individual that resultantly brushes aside the ―act‖ and respects the dignity and choice of the individual. (paragraph 81)

Additionally, the argument from dignity is also framed in the language of choice:

Dignity while expressive of choice is averse to creation of any dent. When biological expression, be it an orientation or optional expression of choice, is faced with impediment, albeit through any imposition of law, the individual‘s natural and constitutional right is dented. (paragraph 132)

This articulation of “choice” then becomes an important basis of the Chief Justice’s finding that Section 377 violates the Constitution. Because it disrespects individual choice, Section 377 is both irrational and “manifestly arbitrary”, and violates Article 14 (paragraph 240). This is, of course, in addition to the violation of expressive rights under Article 19(1)(a), and the right to privacy under Article 21 – which too is defined in terms of “intimacy in privacy as a matter of choice” (Conclusion X).

B. Justice Nariman and the Presumption of Constitutionality

Justice Nariman’s opinion shares many of the interpretive commitments of the Chief Justice. He too holds that Section 377 violates dignity (paragraph 79), and that it is “manifestly arbitrary” (paragraph 82). Nariman J. arrives at the second conclusion from a slightly different route. He examines the 2017 Mental Healthcare Act, which expressly prohibits discrimination on grounds of sexual orientation (in the domain of mental health). Combining this with scientific evidence, he notes that the natural/unnatural distinction that is at the heart of Section 377 has no rational basis, and consequently, violates Article 14 (paragraph 82).

By far the most interesting aspect of Nariman J.’s opinion, however, is his holding that pre-constitutional laws do not enjoy any presumption of constitutionality. He notes that:

The presumption of constitutionality of a statute is premised on the fact that Parliament understands the needs of the people, and that, as per the separation of powers doctrine, Parliament is aware of its limitations in enacting laws – it can only enact laws which do not fall within List II of Schedule VII of the Constitution of India, and cannot transgress the fundamental rights of the citizens and other constitutional provisions in doing so. Parliament is therefore deemed to be aware of the aforesaid constitutional limitations. Where, however, a pre-constitution law is made by either a foreign legislature or body, none of these parameters obtain. It is therefore clear that no such presumption attaches to a pre-constitutional statute like the Indian Penal Code.

While I believe this is a correct argument, it is nonetheless an incomplete argument. Nariman J. does not tackle one important objection: that Parliament’s failure to repeal a pre-constitutional law indicates an implicit acceptance. It also seems to prove too much (for example, could someone challenging the Indian Contract Act of 1872 argue that there is no presumption of constitutionality?). Consequently, I would suggest that Nariman J.’s argument requires to be slightly deepened: the reason why pre-Constitutional laws should not carry a presumption of constitutionality is because, insofar as they affect fundamental rights, they impose a double-burden upon the individuals they impact: first, these individuals had no say in the framing of these laws (since they were passed by a non-democratic colonial regime); and secondly, now that these laws exist, it is those who suffer their effects who have to mobilise and convince parliament to repeal them. It is this double-burden that is unacceptable, and therefore mandates that the presumption of constitutionality be withheld from those colonial laws that affect fundamental rights (I have made this argument in greater detail elsewhere).

C. Justice Chandrachud and Indirect Discrimination

For me, the most interesting – and complex – argument in the case was that Section 377 violates Article 15(1) (non-discrimination on grounds of sex), and a combined reading of Articles 15 (non-discrimination) and 14 (equality before law). In Chandrachud J.’s opinion, this argument receives detailed treatment. As a prelude, he begins with the following, critical observation:

Equating the content of equality with the reasonableness of a classification on which a law is based advances the cause of legal formalism. The problem with the classification test is that what constitutes a reasonable classification is reduced to a mere formula: the quest for an intelligible differentia and the rational nexus to the object sought to be achieved. In doing so, the test of classification risks elevating form over substance. The danger inherent in legal formalism lies in its inability to lay threadbare the values which guide the process of judging constitutional rights. (paragraph 27)

This is an important rebuke, not just to the Koushal Court, but also to the dominant strand of equality thinking on the Supreme Court, which – even in 2018 – continues to apply the “classification test” to judge equality violations (i.e., a law is unconstitutional if there is either an “unintelligible differentia” between the things that it classifies, or if the classification bears no rational nexus to the State goal).

Chandrachud J. goes on to note:

Article 14 has a substantive content on which, together with liberty and dignity, the edifice of the Constitution is built. Simply put, in that avatar, it reflects the quest for ensuring fair treatment of the individual in every aspect of human endeavor and in every facet of human existence.

What does this “substantive content” of equality entail? This takes us to the heart of Chandrachud J.’s judgment, which his treatment of the Article 15(1) claim. As he notes, Indian courts have historically interpreted the statement “The State shall not discriminate on grounds … only of sex” in a highly formalistic manner, and have upheld laws that – in their language – use more than one or a differently worded ground (for example, in Koushal, the Court held that because Section 377 only criminalised “carnal intercourse against the order of nature”, there was no question of discriminating against identities). This, however, is flawed: what matters is the effect of law upon the exercise of fundamental rights. (paragraph 34)

The effect of law must be understood by taking into account the broader social context within which law is embedded. It must therefore take into account “the intersectional nature of sex discrimination, which cannot be said to operate in isolation of other identities, especially from the socio-political and economic context.” (paragraph 36) Drawing from progressive gender equality judgments such as Anuj Garg, Chandrachud J. concludes that:

A provision challenged as being ultra vires the prohibition of discrimination on the grounds only of sex under Article 15(1) is to be assessed not by the objects of the state in enacting it, but by the effect that the provision has on affected individuals and on their fundamental rights. Any ground of discrimination, direct or indirect, which is founded on a particular understanding of the role of the sex, would not be distinguishable from the discrimination which is prohibited by Article 15 on the grounds only of sex.

The words “direct or indirect” are crucial, since this is the first time that the Supreme Court has explicitly recognised the concept of indirect discrimination (i.e., where facially neutral laws – such as S. 377 – nonetheless have a disproportionate impact upon a segment of the population).

How must Section 377 be analysed within this constitutional framework? After recording the experiences of LGBT+ individuals subjected to the “shadow of criminality”, Chandrachud J. notes that “Section 377 criminalizes behaviour that does not conform to the heterosexual expectations of society. In doing so it perpetuates a symbiotic relationship between anti-homosexual legislation and traditional gender roles.” (paragraph 44) How does it do so? The answer comes immediately afterwords:

If individuals as well as society hold strong beliefs about gender roles – that men (to be characteristically reductive) are unemotional, socially dominant, breadwinners that are attracted to women and women are emotional, socially submissive, caretakers that are attracted to men – it is unlikely that such persons or society at large will accept that the idea that two men or two women could maintain a relationship. (paragraph 44)

It is in this manner that Chandrachud J. draws together the indirectly discriminatory character of the facially neutral S. 377, the effects test, the prohibition of “sex” discrimination under Article 15(1) in a case about “sexual orientation”, and the importance of social context to the enquiry.  Here is how the argument goes:

  1. Article 15(1) prohibits sex discrimination.
  2.  Discrimination on grounds of sex is premised upon stereotypes about appropriate gender roles, and the binary between “man” and “woman”.
  3. It is these stereotypes about gender roles that constitute the bases of criminalising same sex relations.
  4. Section 377 may be neutrally worded, but it’s effect is primarily – and disproportionately – upon the LGBT community. It is therefore indirectly discriminatory on grounds of sexual orientation.
  5. Since the basis of that indirect discrimination lies in stereotypes about gender roles (the background social context), S. 377 violates Article 15(1) of the Constitution.

Consequently, to sum up:

Statutes like Section 377 give people ammunition to say “this is what a man is” by giving them a law which says “this is what a man is not.” Thus, laws that affect non-heterosexuals rest upon a normative stereotype: “the bald conviction that certain behavior-for example, sex with women-is appropriate for members of one sex, but not for members of the other sex. (paragraph 51)

As Terry Eagleton wrote in Saint Oscar, his play about Oscar Wilde:

You hold that a man is a man and a woman is a woman. I hold that nothing is ever purely itself, and that the point where it becomes so is known as death. I therefore demand to be defended by metaphysicians rather than by lawyers, and that my jury should be composed of my peers – namely, poets, perverts, vagrants and geniuses.

I do not think it is an exaggeration to say that today represents the most advanced interpretation of Article 15(1) and non-discrimination that has come out of the Supreme Court thus far.

Chandrachud J.’s judgment then goes on to examine Article 19(1)(a), focusing on how S. 377 inhibits the sexual privacy of the LGBT+ community, by forcing them into the closet (paragraph 61). He is careful to notice perhaps the only shortcoming of the Delhi High Court judgment, which was to restrict the right to “private spaces.” Like his judgment in Puttaswamy, Chandrachud J. once again critiques the facile public/private binary, and notes that “the right to sexual privacy, founded on the right to autonomy of a free individual, must capture the right of persons of the community to navigate public places on their own terms, free from state interference.” (paragraph 62) He goes on to discuss the rights to privacy and autonomy (paragraph 65), holds that Article 21 also protects a right to intimacy (paragraph 67), and includes a detailed discussion on how Section 377 inhibits the right to health (including the right to mental health) (Part G). There is also an extended discussion of the limits of criminal law, which concludes with the now-familiar observation that harm to others is the only adequate ground for criminalisation. (paragraph 137)

D. Justice Malhotra and a Truer Vision of Equality  

Justice Malhotra penned a brief, concurring judgment, that discussed Articles 14, 15, 19(1)(a) and 21 in turn. Her judgment, however, takes immutability as the basis for the 14/15 violation. In her view, Section 377 violates Article 14 because:

[It] creates an artificial dichotomy. The natural or innate sexual orientation of a person cannot be a ground for discrimination. Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia. (paragraph 13)

In my analysis of the Chief Justice’s opinion, I have noted that this view is controversial. Here, however, I want to focus on something else: the second sentence. Malhotra J. argues that where a legislation discriminates on the basis of an “intrinsic or core trait”, it ipso facto fails Article 14; that is, it cannot be counted as a reasonable classification. However, there is nothing inherent about such discrimination that makes it an “unintelligible differentia”, or precludes it from having some “rational nexus” with a possible goal. Consequently, Malhotra J. actually advances a more radical reading: she argues that the very concept of equality under Article 14 rules out certain kinds of classifications at the threshold. In her view, legislation based on an “intrinsic or core trait” fails that threshold inquiry. I would put it slightly differently: legislation based on a core trait (related to personal autonomy), a trait that has been a historical or present site of systemic discrimination, is ruled out under Article 14. This is because, for the reasons given above, I believe that the language of “intrinsic” or “immutable” characteristics is a dangerous road to go down. That, however, is a minor point of difference: what is crucial is that Malhotra J.’s reasoning – in its own way, as Chandrachud J in his way – opens up the transformative potential of Article 14 and 15(1).

Malhotra J.’s argument is important for another reason. In Dipak Sibal, the Supreme Court held that in addition to intelligible differentia and rational nexus, Article 14 also required a “legitimate State purpose.” However, neither Dipak Sibal nor any subsequent case clarified what State purposes may be illegitimate. In Malhotra J.’s opinion, we now have an answer: whatever the differentia, and whatever the nexus, the State is not permitted, under Article 14, to disadvantage groups on the basis of an “intrinsic or core” trait.

E. Odds and Ends 

Malhotra J.’s transformative understanding of Article 14 is the best point for us to segue into some of the overarching themes of the judgment. Why is it that discriminating on the basis of an “intrinsic or core” trait is ruled out by the constitutional vision of equality? Two themes – present in all four judgments – answer the question: constitutional morality and transformative constitutionalism. The Chief Justice notes, for example:

Any attempt to push and shove a homogeneous, uniform, consistent and a standardised philosophy throughout the society would violate the principle of constitutional morality. Devotion and fidelity to constitutional morality must not be equated with the popular sentiment prevalent at a particular point of time. (para 116)

Justice Nariman observes:

It must not be forgotten that Section 377 was the product of the Victorian era, with its attendant puritanical moral values. Victorian morality must give way to constitutional morality as has been recognized in many of our judgments. Constitutional morality is the soul of the Constitution, which is to be found in the Preamble of the Constitution, which declares its ideals and aspirations, and is also to be found in Part III of the Constitution, particularly with respect to those provisions which assure the dignity of the individual. (para 78)

And Chandrachud J.:

The Constitution envisaged a transformation in the order of relations not just between the state and the individual, but also between individuals: in a constitutional order characterized by the Rule of Law, the constitutional commitment to egalitarianism and an anti-discriminatory ethos permeates and infuses these relations. (para 52)

The wheel has turned full circle. It was the Delhi High Court, in Naz Foundation, which first introduced all of us to the grammar of “constitutional morality”, and linked it to the Objectives Resolution, and the qualities of inclusiveness and pluralism at the heart of the Constitution. And, nine years later, this vision of constitutional morality lies at the heart of the decriminalisation of same-sex relations. The reason why Malhotra J. is correct when she holds that legislation discriminating on the basis of “intrinsic or core” traits is ipso facto violative of equality, is because equality – viewed through the lens of constitutional morality – is defined by the values of pluralism and inclusiveness: different forms of life and different ways of being are guaranteed equal treatment, equal concern, and equal respect under the transformative Indian Constitution.

The Road Ahead 

What lies ahead? This was, after all, a limited case: it was a constitutional challenge to Section 377 of the IPC. But as the judges themselves acknowledge, there is much work to be done ahead. As the Chief Justice notes, in his judgment:

Equality does not only imply recognition of individual dignity but also includes within its sphere ensuring of equal opportunity to advance and develop their human potential and social, economic and legal interests of every individual and the process of transformative constitutionalism is dedicated to this purpose. (paragraph 104)

Chandrachud J. likewise notes, in his conclusion, “members of the LGBT community are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution.” This, clearly, indicates at a future beyond mere decriminalisation. It indicates towards civil rights, a guarantee against horizontal discrimination in the domains of housing, education, and access to services (under Article 15(2)), a potential right to affirmative action (on the lines of the NALSA v Union of India), and of course – eventually – equal marriage, if demanded. How rocky the road will be towards full and equal moral membership, of course, remains to be seen.

What of other domains? The judgments of Chandrachud J and Malhotra J, as I have argued above, open new windows for understanding and interpreting Articles 14 and 15(1). Will we see them play out in the future? Will Chandrachud J.’s observations about the limits of criminal law have an impact on litigations concerning bans upon dietary preferences? Will the salutary observations about transformative constitutionalism and the value of the individual percolate into other cases concerning State power and individual rights? In the coming months and years, these questions will be answered.

For today, it remains to be said: five years ago, the Supreme Court committed a grievous error in Koushal v Naz Foundation. Today, the Court has atoned. “Civilization“, observes Chandrachud J., “can be brutal.” That brutality was felt on 11th December 2013, and in the days and months that followed. But today is about the Constitution, and today is about emancipation and liberation.

Navtej Johar v Union of India is a judgment worthy of our transformative Constitution.

(Disclaimer: The author was one of the lawyers representing Voices against 377, a coalition of organisations challenging S. 377 before the Court.)

The Meesha Judgment: Book Bans and the Supreme Court’s Dangerous Grandstanding

Tags

, , ,

The present Chief Justice of India is no friend of free speech. He upheld the constitutionality of criminal defamation in a near-indecipherable judgment. He invented a new standard of obscenity for writings about “historically respectable personalities.” He forced cinema owners to play the national anthem before every film for more than a year through an “interim” (!) order, never explaining the constitutional authority for doing so, and relenting only when both his brother judges and the government urged that the order be recalled. He toyed with inventing a doctrine called “auto-block”, which would have required search engines to automatically block certain key-words, before finally deciding against it. He cooked up a phrase called “constitutional compassion” while issuing notice on the question of what politicians could or could not say with respect to an ongoing criminal investigation (the case was disposed of after the politician apologised). His judgments and orders have reflected not just a hostility towards the principle of freedom of expression, but – as I have written on this blog multiple times – a near-contemptuous disregard of precedent and the separation of powers in order to write this hostility into law.

There was some hope that, being caught up with Constitution Bench hearings since the start of his tenure as Chief Justice, Article 19(1)(a) would get through the last year or so before his retirement relatively unscathed. That hope has now been dashed with today’s judgment in the Meesha book ban case. In some ways, this judgment is worse than the ones that have preceded it, because of its insidious character: it is a sugar-coated poison-pill.

Meesha is a serialised novel written by the Malayalam author S. Hareesh. Its publication sparked a protest from a group that claimed that its dialogues were insulting towards temple-going women. Both the government and the civil society came to Hareesh’s support, and – as will become important later on in this essay – the government refused to ban the book. Meanwhile, however, a “public interest” petition was filed before the Supreme Court, asking for the book to be banned. Showing great alacrity, the Chief Justice allowed an “urgent mentioning” to take the case out of turn (July 31), his bench heard the arguments, asked for a translation of the “offending” passages, and reserved judgment (August 2), and the Chief Justice delivered the judgment today (September 5).

The Chief Justice begins his judgment by quoting from his own anti-free speech judgment in the “historically respectable personalities” case (paragraph 2), and spends the next thirty pages waxing eloquent about the importance of free expression. The judgment is peppered with phrases such as “pragmatic realism” (paragraph 5), “fertile faculties of the human mind”, “literary pusillanimity” and “abject obscenity” (?!) (paragraph 27), “the unwritten codes of maturity” (paragraph 28), “intellectual pusillanimity” (paragraph 33), “the passion of didactism” (paragraph 34), “pyramiding a superstructure without the infrastructure” (paragraph 35), “an intrusion to create sensation” (paragraph 36), “thematic subsidiary concepts” (paragraph 38), and “objective perceptibility” (paragraph 39). About ten paragraphs are spent discussing the contents of the book, and another three paragraphs on analysing whether there was actually something wrong with it. Louis Brandeis, Pablo Picasso, and Voltaire (incorrectly) are all name-checked. And the upshot is that the petition for banning is dismissed, with “no order as to costs.”

Now, what is so problematic about this, you may wonder. After all, the Court rejected the ban, and said all kinds of wonderful things about the freedom of speech. The problem is this: this case needed to have been dismissed at the outset, because under the Constitution, the Court has no power to ban books. But by issuing notice and deciding the case on merits, the Court has now given itself – and every High Court in the country – a new and dangerous power of censorship.

Article 19(1)(a) of the Constitution guarantees the freedom of speech and expression. Article 19(2) authorises the “State” to impose reasonable restrictions upon this freedom, by “law”. There is some dispute over whether, for the purposes of Part III of the Constitution, the Court counts as “State”. However, there is no dispute over the fact that the word “law” refers only to Parliamentary law, or secondary legislation (such as statutory rules or regulations). It does not refer to judgments. This flows from the text of Article 13, the judgment of the six-judge bench of the Supreme Court in Kharak Singh v State of UP (not overruled on this point), and the judgment of the two-judge bench in Union of India v Naveen Jindal. What follows? It follows that, under our constitutional scheme, the Supreme Court cannot play censor. The Court does not have the power to restrict speech, censor films, ban books, and force people to say (or not to say) certain things. What the Court does have the power to do is to review State action that falls under the above categories, and test it for constitutionality.

This basic jurisdictional point was entirely missed by the Chief Justice in his ill-thought national anthem order, and many months on, no lessons have been learnt. Today’s judgment once again arrogates to the Court a power that the Constitution explicitly denies it. Not only is the judgment wrong in law, but by ignoring binding precedent on the point, it is also per incuriam.

This is not a formalist argument. Its importance can be gauged by looking at how the legal framework for banning books actually does work. Section 95 of the Code of Criminal Procedure states, in relevant part:

Where-

(a) any newspaper, or book, or

(b) any document, wherever printed, appears to the State Government to contain any matter the publication of which is punishable under section 124A or section 153A or section 153B or section 292 or section 293 or section 295A of the Indian Penal Code (45 of 1860 ), the State Government may, by notification, stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited…

The power to ban books, therefore, lies with the state government, and can be exercised only where, in the government’s view, certain specific sections of the IPC have been violated. Now, the remedy against the state government’s decision is provided for under Section 96:

Any person having any interest in any newspaper, book or other document, in respect of which a declaration of forfeiture has been made under section 95, may, within two months from the date of publication in the Official Gazette of such declaration, apply to the High Court to set aside such declaration on the ground that the issue of the newspaper, or the book or other document, in respect of which the declaration was made, did not contain any such matter as is referred to in sub- section (1) of section 95.

Section 96(2) then goes on to state that an application under Section 96(1) must be mandatorily heard by a special bench of three judges.

The legal scheme, therefore, sets up three layers of statutory safeguards. The first is that it limits the offences for which books may be banned. Secondly, at the first instance, it leaves the decision in the hands of the government, and makes a provision for judicial review only if a book is banned. In other words, if the government elects not to ban a book, there is no judicial review against that decision (at least as per the legal scheme). And thirdly, if the government does ban a book, a special bench of the High Court is bound to review it in accordance with the law and the Constitution. At the heart of this scheme is the idea of the separation of powers: decisions restricting expression are to be taken by the government, and then reviewed by the Court for constitutionality.

Today’s judgment takes a sledgehammer to this carefully calibrated scheme in four distinct ways. First, it wipes out the separation of powers, and creates an entirely new book-banning authority – the court itself (this was exactly what the Bombay High Court did a few months ago with respect to the censorship of films, a decision that was appealed to the incoming CJI – who did nothing). Second, by making constant references to “defamation”, it also wipes out the careful limitation of the categories under which books can be banned. Section 95 of the CrPC makes no mention of defamation or Section 499 of the IPC (criminal defamation), thus making it clear that the government cannot ban a book on the ground that it is defamatory. But apparently, now, a Court can. Third, instead of limiting the right to review in case a book has been banned, it now allows just about anybody to move a “PIL” and ask for a book to be banned. This effectively opens up an entirely new legal window for authors to be relentlessly harassed (as if they were not facing enough problems in court already). And fourth – and most dangerous of all – it raises the distinct likelihood of the regular weaponisation of PILs for the purposes of book-banning, where the lottery of case assignments will entail that in many cases, such PILs may actually succeed.

The Chief Justice’s judgment, therefore, is wrong in law, wrong in the Constitution, and productive of great public mischief. He has simply arrogated to itself a power that it does not have, and shredded a carefully constructed legal framework of safeguards with respect to the banning of books.

It is worth pointing out (and it is not for the first time that I have made this argument on this blog) how we’ve gotten here. It is a three-letter answer, and it is called “PIL.” What began as a loosening only of locus standi requirements for a greater good has now become a free-for-all where concepts such as jurisdiction, maintainability, and the separation of powers have been so thoroughly discredited, that they now don’t even feature on the radar when it comes to arguments and judgments. The upshot of this is that these concepts, long demonised by proponents of PIL as remnants of “Anglo-Saxon (!) jurisprudence”, but which stood between fundamental rights and judicial autocracy, have been washed away. And the result is plain for all to see: PILs are now at the forefront of lopping off fundamental rights.

It is also worthwhile to note that the road the Chief Justice was going down was more than evident the day that this case was hurriedly listed out of turn, and the day when his bench began hearing it on merits. That was the time for people to question how it was that the Court was doing what it was doing. How was this PIL maintainable? How did the Court have jurisdiction in an Article 32 petition asking for a book to be banned? What “appropriate writ” could it possibly issue? Instead, there was absolute silence. And that is perhaps the most profoundly depressing aspect of the situation that we find ourselves in today: the sinking feeling that the ship has sailed so far that there is no point to even raising these questions anymore. It is no more than a cry in the wilderness.

Guest Post: Constitutional Silences, Textual Impasses, and Structuralism – A Comparative Analysis of the NCT Delhi and Miller Judgments

Tags

, ,

(This is a guest post by Preetika Mathur, and is a follow-up to her previous piece on this subject.)


The purpose of this post is to highlight some interesting similarities between the famous R (Miller) v Secretary of State for Exiting the European Union (“Miller”) decision of the UK Supreme Court and the recent NCT Delhi judgment of the Indian Supreme Court. A discussion of the key issues in NCT Delhi can be found here, here and here. An analysis of the final judgment can be found here.

The UK Supreme Court gave its judgment in the Miller case on 24th January 2017. The Indian Supreme Court gave its judgment in NCT Delhi on 4th July 2018. This post does not seek to argue that the Indian Supreme Court was necessarily influenced by Miller in its own reasoning – though no Constitutional Court decides cases in a vacuum. Rather, this post demonstrates how when faced with similar questions about the meaning of constitutional democracy, in two cases riddled with constitutional silences and textual impasses, the respective Courts resorted to similar tools from the limited judicial toolbox to reach their final decisions.

Similar Questions

Fundamentally, the central question for the Supreme Courts in Miller and NCT Delhi was the weight to be given to the constitutional principle of representative democracy in determining the key institutional relationships within a modern State. Specifically, the Supreme Courts in both cases had to decide on the extent to which to prioritise the value of representative democracy over other conflicting values advanced by the Union executives in both cases. In both cases the executive at the Federal level sought to prioritise the value of a stronger more empowered Union executive using the interests of the Nation State as a whole to justify their claim. In both cases, the Union executive claimed that a stronger more empowered executive at the Central level was in the interests of the unity, integrity and political expediency of the Nation State as a whole.

The Miller case arose from the Brexit referendum. In the referendum held on June 23rd 2016, the UK voted to leave the EU by a majority of 51.9% for leave and 48.1% for remain. Article 50 of the Treaty of the European Union states that “any Member State” that “decides to withdraw from the EU in accordance with its own constitutional requirements” should serve a notice of that intention. In Miller, the Supreme Court was asked to decide on whether the UK’s constitutional requirements required the executive to obtain the prior authorisation of Parliament before it could serve its notice of intention to withdraw from the EU. The alternative contention advanced by the Government was that the executive could serve this notice of intention without prior Parliamentary permission.

The UK Government proposed to use its ‘Prerogative Powers’ to serve the notice of intention to withdraw from the EU without prior Parliamentary approval. Prerogative Powers find their origin in the personal powers of the monarch from the time when the monarch was the absolute and all powerful Head of State. The residue of these powers is now vested with the British Crown in Council – where the Crown (Queen) is merely nominal head with the residue of Prerogative Powers exercised by the Cabinet in reality. As Thomas Poole has written:

The UK Constitution recognises a bundle of prerogative powers… – or ‘Ministerial executive powers’, as a Commons Select Committee prefers to call them. These are the inherent common-law powers of the executive. ‘Inherent’ and ‘common-law’ because they have not been conferred by statute and their existence and conditions of application are matters to be recognized and determined by the courts (Philip Allott, ‘The Courts and the Executive: Four House of Lords Decisions’ (1977) 36 Cambridge Law Journal 255, 265-6). Although the bundle has dwindled significantly, it still covers a range of matters… The most important relate to national defence and foreign relations. What distinguishes them politically perhaps is the need for ‘unanimity, strength and despatch’ and a connection to the notion of salus populi (e.g. Chandler v Director of Public Prosecutions [1964] AC 763). What distinguishes them legally is that they do not require Parliamentary authorization.

The argument at the core of the Respondents case in Miller was that since the UK was a representative Parliamentary democracy, operationalising representative democracy took precedence over the governmental expediency gained through use of Prerogative Powers. Similarly in NCT Delhi the core of the Respondents case was that the Constitution through Article 239 AA had expressly conferred a Legislative Assembly on Delhi modelled on the Westminster style Parliamentary system with a Westminster style Cabinet. As a result, operationalising representative democracy had to take precedence over the priorities of the Union executive.

Similar Reasoning and Outcomes

Both cases are also similar because both the Supreme Courts used structuralist reasoning to navigate through constitutional silences and textual impasses. Vasudev Devdasan has already explained the difference between textual and structural approaches to constitutional interpretation in detail in his series of posts on NCT Delhi. In summary, textualism relies exclusively on the words of a particular provision in isolation from the broader institutional relationships created by the constitutional scheme. Structuralism does not look at the text of the provision in isolation. Instead, structuralism looks at the existence and position of a constitutional provision in its relationship to the existence and position of other constitutional provisions. This is in order to identify the institutional relationships envisaged by the Constitution in order to find answers to specific questions about institutional relationships.

Both Miller and NCT Delhi cases were riddled with silences – situations where the constitutional text does not speak. In his seminal piece ‘A Syntax of the Unsaid’ Professor Lawrence Tribe writes:

Indeed, to decree that we must ignore legal silences altogether is no more plausible than to command that we ignore the uncovered parts of a canvas or the pauses in a sonata…We must therefore reformulate, and reduce to more plausible dimensions, the resistance to silence as a source of law if the failure of that resistance is to be replaced with even a modest success. Without a more explicit grammar of how silences may and may not operate in the interpretation of law – a syntax of the unsaid – we may say that law cannot be made by silence, but the echo will return: “Oh yes it can, just watch!

In both the Miller and NCT Delhi cases, the opposing parties construed the textual silences in a manner that allowed them to arrive at diametrically opposed conclusions.

In NCT Delhi the constitutional text of Article 239 AA was silent on the Delhi’s precise place in the hierarchy between Union Territory and State. The Constitutional text of Article 239 (AA) (4) was silent on whether the Lieutenant Governor was bound by the ‘aid and advice’ of the constitutionally mandated Council of Ministers of the Delhi Government. Article 74 on the other hand explicitly says that the President of India “shall” act in accordance with the Aid and Advice of his Council of Ministers. Article 246 was silent on whether Delhi was a Union Territory for its purposes. The proviso to Article 73 was silent on whether it was applicable to Delhi.

In NCT Delhi, the Central Government tried to fill these silences with the assertion that Delhi was merely a Union Territory simpliciter. As a result, even though Delhi had the same legislative competence as a State for all purposes apart from relating to Entries 1, 2 and 18 of the State List it would not have the same executive competence as a State. This meant that Parliament had plenary powers with respect to the Union Territory of Delhi under Article 246 and the Union’s coextensive executive powers remained unaffected by the proviso to Article 73. As a result the Lieutenant Governor was not bound by the ‘aid and advice’ of his Council of Ministers.

 The Delhi Government tried to fill the silences in the constitutional text with the assertion that Delhi was a unique constitutional hybrid. This led the Delhi Government to arrive at the exact opposite conclusions to the Central Government with respect to the same constitutional provisions. The Delhi Government argued that since Delhi had the same legislative competence as a State for all purposes apart from Entries 1, 2 and 18 the Constitution intended to treat Delhi akin to a State for the purposes of the executive powers of the Delhi Government. As a result, Delhi had the same executive competence as a State in all areas apart from Entries 1, 2 and 18. Further, since Delhi was not a Union Territory simpliciter but a unique constitutional hybrid the proviso to Article 73 had bite with respect to Delhi and the Union’s executive powers were displaced by the proviso to Article 73.

The Miller case too, was riddled with constitutional silences. In Miller, like in NCT Delhi both parties used these silences to arrive at diametrically opposed interpretations of the same legal provisions. The Government wished to rely on an unwritten Prerogative Power in an unwritten constitution. The key pieces of legislation governing the issue were silent on whether the Prerogative claimed by the government really did exist and whether it could be used to remove the UK from the EU. The key pieces of legislation were The European Union Referendum Act 2015 which made legal provision for the Brexit Referendum and The European Communities Act 1972 which made the UK a member of the EU and brought EU law into UK domestic law. These silences in The EU Referendum Act 2015 and The European Communities Act 1972 led the Government to argue that they had a pre-existing Prerogative Power to make and unmake treaties at the international level. Since both The EU Referendum Act 2015 and The European Communities Act 1972 were silent on the issue of Prerogative Powers and neither Act explicitly or implicitly removed the pre existing Prerogative Power this pre existing power could be used by the Government to serve its notice of intention to withdraw. The Respondents arrived at the exact opposite conclusion from the silence. They argued that the Government did not have the pre existing Prerogative Power that they claimed to have. Since both The EU Referendum Act 2015 and The European Communities Act 1972 were silent on Prerogative Powers and neither Act expressly conferred such a power, the Government had no such Prerogative Power that it could rely upon. Specifically, the Governing was seeking to use Prerogative Power to alter and destroy domestic law rights – the Respondents argued that the Government had no Prerogative Power at the international level to alter or destroy domestic law rights.

The diametrically opposed constructions of the constitutional silences is also well demonstrated by the conflicting usage of the same metaphor by the Government and the Respondents throughout the case. Both sides relied on the metaphor of the “conduit pipe” to different ends. The Government argued that The European Communities Act 1972 (which brought EU law into UK domestic law) was merely a “conduit pipe” for whatever rights and obligations the Government decided to subscribe to at the international level. They relied on Section 2 of The European Communities Act 1972 which provides that EU law rights, remedies etc “from time to time provided for by or under the Treaties” were “to be given effect or used in the United Kingdom”. The Government argued that the words “from time to time” meant that The European Communities Act envisaged that the Government could through its treaty making/unmaking Prerogative at the international level increase or decrease the flow of rights and obligations down this pipe. The Government argued that The European Communities Act 1972 was ambulatory in that it envisaged varying levels and intensities of rights flowing down this pipe over time.

The Respondents in Miller turned the “conduit pipe” argument on its head. They argued that once rights had flowed down the pipe to become a part of domestic law, the Government did not have the Prerogative Power at the international level to take away or alter these domestic law rights. Further, the Respondents argued that The European Communities Act 1972 created a new legal order by introducing a new source of law into the UK and the Government was not simply seeking to decrease the flow of rights and obligations down the pipe but to destroy the pipe altogether. They argued that Section 2 of The European Communities Act 1972 did not envisage the destruction of the “conduit pipe” altogether. They argued that there is a vital difference between changes in domestic law resulting from variations in the content of EU law that arise from new EU legislation which “flow down the pipe” and changes in domestic law resulting from withdrawal from the EU altogether.

In NCT Delhi all the judgments of the Supreme Court (both majority and separate concurring) resorted to structural reasoning to cut through the silences and textual impasse in that case. All judgments relied heavily on and prioritised the structural principle of representative Parliamentary democracy concluding that the Lieutenant Governor was bound by the ‘aid and advice’ of his Council of Ministers. Specifically, this was because Article 239 AA was an exercise of constituent power; that had introduced Westminster style representative democracy into Delhi with a Westminster style cabinet system of government. An aspect of a Westminster style cabinet was the principle of collective responsibility. As a result, ultimate executive authority must vest with the Council of Ministers in Delhi and the Lieutenant Governor must be bound by their ‘aid and advice’ where Delhi has legislative competence (this was subject to the limitation that Delhi’s status as the national capital would require situations where this principle could be departed from, as acknowledged by Justice Chandrachud in his concurring opinion).

The Miller case was heard by a 11 judge bench of the UK Supreme Court. The Supreme Court by a majority of 8-3 found in favour of the Respondents. The majority gave a single judgment, Lord Reed, Lord Carnwarth and Lord Hughes dissented and wrote separate judgments each.

In Miller too the majority of the Supreme Court resorted to structural reasoning to identify the best approach to fill the silence and resolve the textual impasse. It viewed the dispute in the Miller case from several distinct structural perspectives to determine the most appropriate outcome in the case.

The first of these perspectives involved examination of the institutional relationships between the judiciary, the Crown and Parliament over the course of several centuries. The court noted that over this historical period the judiciary had progressively curtailed the Prerogative Powers of the Crown to further the interests of representative democracy and transfer power from the Crown to Parliament. The Courts had progressively curtailed the circumstances in which Prerogative Powers could be resorted to as well as the manner in which they could be used and the extent of their impact on domestic laws when used. The majority judgment of the Supreme Court described that in many ways the history of the common law had been an unbroken history of limiting the Prerogative. The Supreme Court cited a long unbroken line of authorities through which these developments had taken place. The first of these cases was the 17th Century Case of Proclamations. The Court then cited a number of important 20th Century decisions. This included the following extract from Lord Parker’s judgment from the 1916 decision of The Zamora:

The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administered by Courts of law in this country is out of harmony with the principles of our Constitution. It is true that, under a number of modern statutes, various branches of the Executive have power to make rules having the force of statutes, but all such rules derive their validity from the statute which creates the power, and not from the executive body by which they are made. No one would contend that the prerogative involves any power to prescribe or alter the law administered in Courts of Common Law or Equity.

The Court also cited the 1920 judgment of Attorney General v De Keyser’s Royal Hotel Ltd and the 1995 decision in R v Secretary of State for the Home Department, Ex p Fire Brigades Union. It held that these two cases had crystallised the principle that that the Crown cannot alter the common law or statute by an exercise of the Prerogative Power and nor can the Crown frustrate the purpose of a Statute – even if that Statute is not yet in existence. It also cited the 1965 judgment of Burmah Oil Co (Burma Trading) Ltd v Lord Advocate in which Lord Reid explained that the Royal Prerogative is a source of power which is “only available for a case not covered by statute. This historical analysis of institutional relationships within the British Constitution helped the Court to identify the role that it ought to take in the Miller case. After conducting its historical analysis of institutional relationships as developed through the case law, the Court concluded that: “It would be inconsistent with long standing and fundamental principle for such a far reaching change to the UK Constitutional arrangements to be brought about by ministerial decision or ministerial action alone”.

 This historical analysis and consideration of the development of the institutional relationship between judiciary, executive and legislature led to the second structural perspective that was used by the majority of the Supreme Court. The majority considered the proper relationship between the people of the United Kingdom and the executive. The majority concluded that this meant that the executive could not deprive people of domestic rights through Prerogative Power at international level. Such deprivations could only done by Parliament as this better protected the democratic interest of citizens.

The third structural perspective used by the majority of the Supreme Court was to compare the institutional arrangements in the British Constitution before The European Communities Act 1972, after its enactment and after its destruction to determine what had changed. The Court did not resort to more textualism to resolve the conflicting interpretations of the constitutional silences in The European Communities Act 1972 but instead opted to examine the bigger structural picture. It agreed with the Respondents that The European Communities Act had “effected a fundamental change in the constitutional arrangements of the United Kingdom” and introduced a new source of law entirely. It held that as a result the silences in The European Communities Act 1972 could not be construed to mean that Parliament had contemplated or intended that Ministers could cause the United Kingdom to withdraw from the European Treaties without prior Parliamentary approval.

“Something of freedom is yet to come”: The significance of the Delhi High Court’s decriminalisation of beggary

Tags

, , , ,

Yesterday, Abhinav Sekhri provided an excellent overview of the Delhi High Court’s landmark judgment striking down (most provisions of) the Anti-Beggary Act (Harsh Mander v Union of India). As Sekhri pointed out, the provisions of the Anti-Beggary Act (first enacted by the state of Bombay in 1958, and then extended to twenty states and two union territories) effectively criminalised status through an extraordinarily broad definition of “begging.” They also established a system of “Certified Institutions” that were little better than detention centres.

Sekhri correctly observes that the High Court’s judgment was facilitated by only token opposition from the Delhi government. Perhaps unfortunately, this also appears to have limited its scope. The decision is, ultimately, based on narrow grounds. But perhaps more troublingly, it is also based upon a distinction between “voluntary” and “involuntary” begging that obscures the vicious, colonial logic that underlay the entire family of laws that the Anti-Beggary Act was a late, post-colonial entrant into (such as the Criminal Tribes Act, and various vagrancy statutes). Nonetheless, that does not take away from how important this judgment is. It is, in its own way, as transformative as the first Naz Foundation judgment of the Delhi High Court, and I share Sekhri’s guarded optimism that it can be the starting point for a long-overdue reckoning with some of the worst and most enduring legacies of colonialism in our criminal legal system.

Article 14

The first ground employed by the Court for striking down the law was Article 14. Interestingly, this was based on a concession by the Government. The Government took the stand that the Act did not intent to criminalise involuntary begging (i.e., begging attributable to factors such as poverty). If that was the legislative purpose, however, then the provisions of the Act were irredeemably broad. The five-pronged definition of “begging”, for example, read as follows:

(i) “begging” means—

(a) soliciting or receiving alms in a public place, whether or not under any pretence such as singing, dancing, fortune-telling, performing or offering any article for sale

(b) entering on any private premises for the purpose of soliciting or receiving alms ;

(c) exposing or exhibiting, with the object of obtaining or extorting alms any sore, wound, injury, deformity or disease whether of a human being or animal ;

(d) having no visible means of subsistance and wandering about or remaining in any public place in such condition or manner, as makes it likely that the person doing so exists by soliciting or receiving alms ;

(e) allowing oneself to be used as an exhibit for the purpose of soliciting or receiving alms.

As the High Court correctly noted, the definitional clause made no distinction between “voluntary” and “involuntary” begging, and also brought in homelessness within its ambit (paragraphs 16 – 18). And it is well-settled that an unconstitutional statute cannot be rescued through a promise on the part of the State to implement it fairly. The law, therefore, clearly violated Article 14, and was accordingly struck down by the High Court on grounds of arbitrariness.

I am, however, slightly bemused about why the High Court chose to adopt the more contentious and unsettled “arbitrariness” test under Article 14, in a case where the traditional classification test was so clearly applicable. The over-inclusiveness of the definitional section in a case where the Government had itself conceded the legislative purpose was so patent, that even under the deferential rational review standard, the Act could not have stood.

Article 19(1)(a) 

Sekhri argues that the Court did not go into issues of Article 19(1)(a). That conclusion, however, might be a little too hasty. While there is no fleshed-out Article 19(1)(a) analysis, the Court did not – in paragraph 31 – that “criminalising them [i.e., persons accused of begging]denies them the basic fundamental right to communicate and seek to deal with their plight.” While this does not go as far as stating that criminalising begging is per se contrary to Article 19(1)(a) because it interferes with an expressive activity without justification, it does at least recognise the Article 19(1)(a) interests involved.

Article 21

The Court then found that the summary detention provisions of the Act violated Article 21’s due process guarantee. The Union of India argued that detaining individuals was necessary in order to find out whether they were begging voluntarily or involuntarily. This, as the Court correctly noted, entailed that the police “would be arresting persons who may be subsequently found to have not been begging, thereby, depriving such persons of their liberty without following any process of law.” (paragraph 20)

Furthermore, the Act – as a whole – contravened the more substantive guarantees under Article 21 as well. Criminalising begging – as the Court noted – effectively made individuals liable for the State’s failure to provide the basics of a dignified life (food, shelter, clothing, education) as envisioned by Article 21 (paragraphs 28 – 29). The Court observed:

A move to criminalize [persons accused of begging] will make them invisible without addressing the root cause of the problem. The root cause is poverty, which has many structural reasons: no access to education, social protection, discrimination based on caste and ethnicity, landlessness, physical and mental challenges, and isolation.

The Court concluded by noting that if the State wanted to bring in a law to penalise forced begging, it could do so after conducting appropriate empirical studies.

While the basis of the Court’s judgment was a distinction between compelled and voluntary begging (note that this was because the State itself had conceded that it was only concerned with criminalising “voluntary begging”), this final observation suggests that, ultimately, what the State can legitimately criminalise is a situation where individuals are coerced or forced into begging through organised or unorganised “rackets.” Sekhri correctly worries that the judgment does not go into the question of the limits of the State’s power to criminalise status; however, the concluding observations suggest, at the very least, that the conversation is heading in that direction.

The Unsaid 

This brings us to the silences in the judgment. The most glaring silence relates to the definitional section. Recall that S. 2(1)(a) defines begging as “soliciting or receiving alms in a public place, whether or not under any pretence such as singing, dancing, fortune-telling, performing or offering any article for sale.” S. 2(1)(e) defines it to include “having no visible means of subsistance and wandering about or remaining in any public place in such condition or manner, as makes it likely that the person doing so exists by soliciting or receiving alms.”

At one level, of course, these sub-clauses reveal the classist character of the legislation. The law envisions public places as exclusionary, closed off to those who look poor. It is a sanitised vision of the public sphere, built upon keeping out the undesirables, those who “are not like us.” Indeed, it is the legislative equivalent of shops putting up spikes outside their doors and windows to prevent rough sleeping.

There is, however, a deeper logic running through these provisions, which is specifically visible in the underlined parts. Notice that the definition of “begging” is (consciously made) so broad, that it covers not just an activity (say, “soliciting for alms”), but entire ways of life. What unites these ways of life (singing, dancing, fortune-telling, performing) is their itinerant character. 2(1)(e) makes it clear when it uses the bizarre phrase “wandering about.” This gets to the heart of the phobia driving these laws: the fear of shifting populations whose changing movements and patterns makes them “invisible” to the administrator, and therefore, harder to classify, categorise, control, and (yes) extract tax from.

The “taming” of such individuals, groups, and communities was central to the colonial project, both in India and elsewhere. By associating them with hereditary criminality, the British stigmatised and (virtually) enslaved entire nomadic communities by bringing them within the ambit of the vicious Criminal Tribes Act. The myth of “thuggee” (a word still found in the IPC) was employed to the same end. Through vagrancy laws, the British made it impossible for itinerant lifestyles to remain outside the net of punitive legislation. All of this was driven by the imperative to ensure a “settled” population that could be disciplined and taxed with ease.

It is trite to say that post-colonial legal logic has, more often than not, replicated this model. The laws of the colonial regime have been turned by post-colonial administrators upon their own people. The Criminal Tribes Act was repealed in the 1950s, but (as we have seen) other laws live on: from the Habitual Offenders Act to vagrancy statutes to the Anti-Beggary law to various sections of the IPC. It is this that makes the Delhi High Court judgment so important. Even though these issues are not addressed in the judgment itself (and for good reason, because the State itself abandoned that justification), the striking down of the Anti-Beggary Act is a powerful blow against the enduring shadow of colonialism in our legal regimes. It is now for other courts to take the logic forward.

During oral arguments in the recent Section 377 hearings, Justice Chandrachud made the observation that the Constitution is committed to the value of pluralism: that is, an affirmation that every individual has the right to self-determination when it comes to choosing ways of life, modes of faith and belief, and self-expression. I intend to address this point in a later post, but for now, I want to note that Chandrachud J.’s observation is perhaps more accurately understood as an aspiration for the future rather than an accurate account of our constitutional history. The colonial project was characterised by a homogenising drive that delegitimised plural forms of life, and established hierarchies between them. Our Constitutional era has not entirely transformed this reality. You see signs of it in the text of the Constitution itself, which assimilates Buddhists, Sikhs and Jains within the legal category of Hindus. You see further signs of it in the jurisprudence of the Supreme Court, which has repeatedly denied to dissenting traditions the status of independent religious. And of course, you see it in the web of criminal legislation (whether Section 377 or the anti-beggary laws) that is premised on stigmatising alternate ways of living.

The importance of the Delhi High Court’s judgment lies in how it can force us to reckon with this legacy, which is so deeply intertwined with our legal and constitutional system.

Conclusion

In conclusion, I think it’s important to note that the Delhi High Court elected not to go down the route of far too many constitutional challenges: uphold a clearly unconstitutional law, but issue unenforceable “guidelines” to soften the blow. The rise of PIL and the “good governance” Court has tended to make the judiciary often forget that its primary task is testing legislation for constitutional validity, and striking it down if it fails the test. In its administrative avatar, the Court has too often begun to act like administrators, focusing more on issues of implementation rather than constitutionality. Indeed, when the anti-Beggary Act was itself challenged before the Bombay High Court in 1993, the High Court established a “Committee” to look into the matter! Despite the Committee’s clear recommendation that the Act had to go, nothing happened. This is, of course, symptomatic of a wider issue, and it is truly refreshing to see that the Delhi High Court avoided falling into this trap.

A final observation. A couple of years ago, while inspecting a file in Patiala House, I came across a chargesheet that, while listing an individual’s particulars, listed “Residence: Vagabond.” The incongruity stuck in my mind, a reminder that the law is linguistically incapable of dealing with the range of issues in society, let alone addressing them in any meaningful way. Apart from all else, the High Court’s judgment is also an acknowledgment that you cannot “solve” poverty through arrests, detention centres, and courtrooms. It is a rare example of humility in a legal system that, too often, seems to lay claim to omnipotence.