Book Review: “The Shifting Scales of Justice: The Supreme Court in Neo-Liberal India”

There is a well-known narrative that explains the trajectory of the Supreme Court in the last quarter of the 20th century. Habeas Corpus (1976), with its abject capitulation to the Executive, was the low point – four judges, either desirous of currying political favour, or fearful of the consequences (or both), failed in their fundamental duty to protect the civil liberties of India’s citizens. The crisis of legitimacy that this generated drove the Court to look to another forum to re-establish itself. That forum became the PIL, a substantive and procedural revolution: loosening the rules of standing, combining it with an expansive interpretation of Article 21, and bringing in the Directive Principles into constitutional adjudication, the Court spent the 1980s solicitously tending to the social and economic needs of the most marginalized sections of society. But then, with the 1991 economic turn to neo-liberalism, there was a parallel change in judicial values. Now the PIL became the instrument of choice for a newly-assertive, rising middle class, and it was the interests of that class – prefaced with grand perorations of economic development and progress – that the Supreme Court found itself giving most attention to – and that, at the expense of the most marginalized. If Bandhua Mukti Morcha, with its powerful and moving use of the PIL to free bonded labourers living in conditions of abject depredation, characterized the former phase – then Almitra Patel, contemptuously equating encroachers on public land (normally desperately poor people with nowhere else to go) with “pickpockets” – marked the Brave New Supreme Court: neoliberal and corporatist.

This narrative fits in with two theories. One is the theory of institutional vacuum, which posits that if one wing of the State retreats from its proper sphere of functioning, its place will be taken by another. The other is Robert Dahl’s famous argument to the effect that the judiciary is not, and has never been, a “counter-majoritarian institution”: on the contrary, much like the legislature, the judiciary also comes to reflect majoritarian values. Legislature and judiciary are not so much in opposition, then, as much as sometimes separated by a lag: more often than not, they will be on the same side of a concrete issue.

On these accounts, it was the legislature’s continuing, supine inaction that allowed the Court to step in and consolidate itself in performing functions that, under classical separation of powers theory, are paradigmatically within the institutional competence of an elected body. And once established, it is hardly surprising that the Court’s actions reflected the same neoliberal values that animated the legislature through the 1990s, and beyond.

Of course, this is much too simple to be the whole story. The structure of the Court – its size, that it sits in panels, and its (at best) loose adherence to precedent – makes it nigh impossible to consider it as a social actor qua Court. And more broadly, neoliberalism itself has had a rocky road in India, coming in by fits, implemented by starts, and always faced with popular resistance.  A full account of the Court’s career through the 90s, then, must be far more nuanced than the simple narrative we have discussed above.

The Shifting Scales of Justice: The Supreme Court in Neo-Liberal India is a collection of eight essays interrogating various aspects of the simple narrative. In Embedded Judiciary, Aditya Nigam compares specific cases from the two eras: Olga Tellis, for example, which famously read in the “right to livelihood” into Article 21, and allowed for evictions of pavement dwellers only if alternative accommodation could be found for them – gave way, fifteen years later, to the notorious Almitra Patel, with its pickpocket analogy. A similar transformation is witnessed in labour-rights cases; essentially, the judiciary converts rights-bearing citizens to rightless subjects, whom the government can treat as it wills, without constitutional impediment, in the quest for economic growth.

Usha Ramanathan continues the theme in In the Name of the People. Both writers stress that the transformation in the Court’s jurisprudence has come about under a broad rubric of continuity. The Supreme Court has never said that it has changed course, or changed values, but it has done so nonetheless. Ramanathan locates the change in Article 21: in PIL 1.0, “life” stood for “dignity, health, livelihood and shelter”; in PIL 2.0, under the imperatives of “structural adjustment, liberalization, privatization and globalization”, it came to stand for “growth and development”, which was often at odds with the earlier set of values. In order to be able to rule on such issues, which seem prima facie the domain of the legislature, the Court undertook to aggrandize its own power, doing so through the Sheela Barse case, where it struck of the petitioner from a PIL and assumed control over the proceedings, and in the Nadiad and Bhopal Review cases, where it created out of Article 142’s (circumscribed) “complete justice power” a carte blanche for far-reaching policy-making judicial action.

Nivedia Menon’s Environment and the Will to Rule completes the triumvirate. Through cases such as Almitra Patel, Godavarman, Narmada Bachao Andolan, and so on, Menon identifies a clear hierarchy in the neoliberal Court’s scheme of priorities: development > environment > people. She argues that when it comes to a confrontation between extractive industries and indigenous people’s rights (Vedanta, for instance), the Court embarks upon a utilitarian calculation, pitting the needs of development against peoples’ land and forest rights, a calculation that comes out in favour of the former. We may make an additional observation here: whatever you may think of the outcome, the very fact that the Court is making these utilitarian calculations is a problem in and of itself, because this is exactly what the legislature is supposed to do. Recall Dworkin’s famous distinction between rights and goals:  a polity’s goals are for the legislature to decide, as the elected body and responsive to the people, whereas the Court’s task is to ensure that in pursuit of these goals, the legislature does not infringe citizens’ rights. The moment the Court gets into policy-balancing acts, rights-talk no longer makes sense. And not only is the Court ill-suited – institutionally – for making these judgments, but – invoking Dahl again – it means that marginalized communities are going to lose twice over: first, in the legislature, where they don’t have adequate access or influence; and secondly, in the judicial process, where the Court, instead of vindicating their rights, puts them in the balancing scale, and comes to the same judgment as the majoritarian organ. This demonstrates starkly the grave peril of the Court’s entry into the legislative arena. Once it starts thinking like a legislature, the Court loses sight of its primary, exclusive and most crucial task: to protect the rights of precisely those individual and groups who don’t have recourse with the legislature.

Varun Gauri, in Fundamental Rights and Public Interest Litigation in India, puts an empirical spin on the above arguments, demonstrating through statistics the relationship between the social class of PIL petitioners and their likelihood of winning in Court, that there has been a reversal of sorts between the 80s and the 90s, in terms of advantaged and marginalized communities. At the same time, however, Madhav Khosla and Sudhir Krishnaswamy, in Social Justice and the Supreme Court, strike a cautionary note: symbolic cases such as Bandhua Mukti Morcha and Almitra Patel do not paint an accurate picture, they argue. The basic question is whether a claim framed in the 1990s would have a less chance of succeeding than if it had been framed in the 80s. Anecdotal evidence cannot tell us that, and nor is there reliable evidence to suggest that that is the case. Nonetheless, in Swallowing a Bitter PIL, Arun Thiruvengadam cleaves to the accepted model, that locates a transformation in the Court’s jurisprudence – both in the type of constituencies it favours as the beneficiaries of the PIL, and in the way it structures constitutional priorities. The thrust of Thiruvengadam’s piece, however, is to advocate for continued engagement with the judicial process, notwithstanding the number of setbacks that have begun to pile up over recent years.

The last two essays examine two specific – and hugely important – areas. In A Meandering Jurisprudence of the Court, Philippe Cullett examines the approach of the Court to water laws, and finds it to be – unsurprisingly – wildly inconsistent. While the Supreme Court has, from time to time, held the “right to water” to fall within Article 21, and held water to be in “public trust”, it has not shrunk from allowing alienation of that trust in development cases. And while the Court has continued to develop its Article 21 jurisprudence with respect to water, cases such as Narmada Bachao Andolan and Wazirpur Bartan Nirmata Sangh demonstrate that when it is a question of displacement in the name of development, the Court once again enters into a utilitarian thicket, and emerges from it bearing a defeat for the oustees.

Perhaps fittingly, we end with democracy. In The Judicial Nineties, Ujjwal Kumar Singh compares the Court’s active, interventionist stance in the right-to-know election cases with its hands-off, deferential, near-obsequious approach in terrorism and national security cases. In the PUDR-PUCL series of cases, the Court held that under Article 19(1)(a), a voter had the right to know the antecedents of candidates, including assets and criminal records, and that the Election Commission had the power to enforce this; when the legislature tried to amend the RP Act to take the issue out of the purview of the EC, the Court struck it down on constitutional grounds. On the other hand, when it came to the constitutionality of the AFSPA, POTA, TADA, MCOCA and the rest of the national security legislation, the Court allowed the legislature to eviscerate the Constitution in the name of fighting terrorism, deferring not just to the legislature’s estimate of the threat, but also the extent to which it deemed fit to abrogate civil liberties to meet the alleged threat – thus giving an eloquent proof of that old Latin chestnut, inter arma enim silent leges. There is thus a clear tension between the Court’s grand perorations upholding procedural democracy in the right-to-vote cases, while allowing the executive to trample all over fundamental rights in national security cases.

Naturally, these sketchy summaries do not do justice to the eight essays. They are worth engaging with, and together, they form a coherent and fairly comprehensive body of work examining a crucial period in the Court’s history We may add to the range that they cover, the additional point of the Court’s pressing into service the Directive Principles of State Policy into service post-Habeas Corpus. Previously, the DPSPs had played little to no role in constitutional interpretation. With the advent of the PIL, they became formidable interpretive tools to flesh out the contours of Article 21, and to re-imagine concepts of equality, reservations, reasonable restrictions upon trade, etc. We may also add the Court’s invention of the continuing mandamus, particularly in the PUCL right to food and the Godavarman cases, that allowed it to play a near-executive role in not only framing policy, but implementing it as well.

Judicial Nineties is thus an important book, in order to understand how the Supreme Court has come to stand where it does today; but also, perhaps, to understand its trajectory in the short-term future.

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Mayur Suresh and Siddharth Narrain (eds)., The Shifting Scales of Justice: The Supreme Court and Neo-liberal India (Orient Black Swan 2014); Rs. 650. Available here. 

Grounding a Progressive Jurisprudence of Sex Equality: Anuj Garg v. Hotel Association

Anuj Garg v. Hotel Association of India,  a 2007 judgment by a two-judge bench of the Supreme Court, is well-known for the debate over whether or not it expressly incorporated the doctrine of “strict scrutiny” into India. Ashoka Kumar Thakur, the 2008 constitution-bench case on reservations, expressly rejected it – but then Naz Foundation decided to read the two cases “harmoniously” by adopting it for non-reservation based discriminatory measures. In actuality, however, Anuj Garg adopts at least three distinct standards of review (strict scrutiny, intermediate scrutiny, and European/Canadian style proportionality review), and it remains unclear which of those tests the Court finally endorses as a matter of constitutional law.

Anuj Garg, however, does do another very important thing: it provides the constitutional foundations for a genuinely progressive jurisprudence of sex equality under Articles 14 and 15 of the Constitution. It does so by invoking something called the “anti-stereotyping principle” that has become the foundation of American sex equality jurisprudence (albeit patchily applied). In particular, Anuj Garg cites three American cases, Frontiero v. Richardson, United States v. Virginia, and Justice Marshall’s dissent in Dothard v. Rawlinson. Let us briefly consider, then, American sex equality jurisprudence.

In Frontiero, what was at issue was a statute that allowed service-members to claim additional benefits if their spouse was “dependent” on them. If the claimant was male, he could claim automatically for his wife. If the claimant was female, on the other hand, she would have to actually demonstrate that her husband was dependent on her for more than half his support. The Court struck the statute down for violating the equal protection clause of the American Constitution. Justice Brennan, writing for the Majority, acknowledged the long history of sex-discrimination in the United States, in words that will sound very familiar:

“Traditionally, [sex] discrimination was rationalized by an attitude of “romantic paternalism” which, in practical effect, put women, not on a pedestal, but in a cage… [for example, that] the paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator… As a result of notions such as these, our statute books gradually became laden with gross, stereotyped distinctions between the sexes.”

As the statute seemingly could not be justified on grounds other than the stereotypical, “separate-spheres” notion of men being bread-winners and woman being care-givers, it was struck down. After Frontiero, in a series of cases such as Craig v. Boren, Personnel Administrator v. Feeney and Mississippi University v. Hogan, the Court fleshed out this doctrine: essentially, if the justification for a classification based on sex, and one that imposed unequal benefits and burdens, rested upon “stereotypes” of the role of men and women in society, the classification was unconstitutional. Note that the doctrine works both ways: in Mississippi University, the Court struck down a females-only admissions policy to nursing school, holding that in denying admission to equally qualified male applicants, it rested on stereotypical notions about nursing being a “woman’s job”.

This brings us to US v. Virginia. The Virginia Military Institute was a single-sex school with a mission to produce “citizen-soldiers”, for which purpose it provided a certain “adverserial” form of education, and excluded women from admission. Leaving aside a bevy of complicated facts, basically, VMI argued (among other things) that its unique model of character development and leadership training would have to be modified if it admitted women. That, in turn, was based on the testimony of certain expert witnesses, who provided:

“… opinions about typically male or typically female “tendencies.” For example, “[m]ales tend to need an atmosphere of adversativeness,” while “[f]emales tend to thrive in a cooperative atmosphere.” “I’m not saying that some women don’t do well under [the] adversative model,” VMI’s expert on educational institutions testified, “undoubtedly there are some [women] who do”; but educational experiences must be designed “around the rule,” this expert maintained, and not “around the exception.” Ibid. (internal quotation marks omitted).”

The Court rejected this justification, warning once again that statutes/governmental policies based on “fixed notions concerning the roles and abilities of males and females” were unconstitutional. And that:

“…generalizations about “the way women are,” estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description.”

Consequently, the VMI policy was struck down.

Keeping this framework in mind, let us now turn to Anuj Garg. Anuj Garg concerned a challenge to Section 30 of the Punjab Excise Act, which prohibited the employment of any man under the age of 25, and any woman, in any part of an establishment in which liquor or another intoxicating drug was being consumed. The Court started by taking note of the fact that the Act was a pre-constitutional legislation, passed before the guarantees of sex equality under Articles 14 and 15 became the law of the land. It made some remarks about the changing nature of the hotel industry. And then came the crucial point: it was argued that the legislation was essential to ensure the “security” of women. The Court observed:

“The present law ends up victimizing its subject in the name of protection. In that regard the interference prescribed by state for pursuing the ends of protection should be proportionate to the legitimate aims.” (Paragraph 36)

Immediately after this, it cited the ECHR’s provisions on sex equality, thus implying that it was in light of norms such as these that this issue would have to be understood – thus implying that the “romantic paternalism” that Justice Brennan excoriated in Frontiero, that is, the belief that women needed special protection from immoral or corrupting influences, protection that could only be achieved by confining them to close spaces under surveillance and supervision, was no longer a valid constitutional argument.

The Court then further strengthened this idea by expressly endorsing the anti-stereotyping principle. It started by citing Wendy Williams’ famous piece on sex-discrimination in the United States, whose central premise involves interrogating the stated “natural” differences between men and women, and demonstrating how they are often culture-bound (Para 39). In strikingly progressive language, then, the Court observed:

“Therefore, one issue of immediate relevance in such cases is the effect of the traditional cultural norms as also the state of general ambience in the society which women have to face while opting for an employment which is otherwise completely innocuous for the male counterpart...” (Para 40)

Consequently:

“It is state’s duty to ensure circumstances of safety which inspire confidence in women to discharge the duty freely in accordance to the requirements of the profession they choose to follow. Any other policy inference (such as the one embodied under section 30) from societal conditions would be oppressive on the women and against the privacy rights.” (Para 41)

These two paragraphs are absolutely crucial. Essentially, the Court holds that if there is a clash between “traditional cultural norms” and constitutionally-guaranteed privacy rights – that is, cultural norms that define and delimit the choices of women because of assumptions about their worth or abilities – and privacy rights, that guarantee a zone of autonomy and freedom of choice – then the latter must prevail. More to the point, insofar as governmental policy is based on the aforesaid cultural norms, it is constitutionally invalid. This is, in substance, the Frontiero-VMI doctrine transposed.

The Court drove home the pint by citing Frontiero (Para 42) and Justice Marshall’s dissent in Dothard, in particular, endorsing as “useful advice”, the following observation – which, again, in the Indian context, will resonate:

“In short, the fundamental justification for the decision [of not allowing women to serve as prison guards] is that women as guards will generate sexual assaults. With all respect, this rationale regrettably perpetuates one of the most insidious of the old myths about women that women, wittingly or not, are seductive sexual objects. The effect of the decision, made I am sure with the best of intentions, is to punish women because their very presence might provoke sexual assaults. It is women who are made to pay the price in lost job opportunities for the threat of depraved conduct by prison inmates. Once again, ‘the pedestal upon which women have been placed has upon closer inspection, been revealed as a cage.'” (Para 43)

And immediately after that, the Court made its acceptance of the anti-stereotyping principle explicit:

“The impugned legislation suffers from incurable fixations of stereotype morality and conception of sexual role. The perspective thus arrived at is outmoded in content and stifling in means.” (Para 44)

And:

“The Court’s task is to determine whether the measures furthered by the State in form of legislative mandate, to augment the legitimate aim of protecting the interests of women are proportionate to the other bulk of well-settled gender norms such as autonomy, equality of opportunity, right to privacy et al. The bottom-line in this behalf would a functioning modern democratic society which ensures freedom to pursue varied opportunities and options without discriminating on the basis of sex, race, caste or any other like basis.” (Paragraph 49)

Consequently, the Court found that the legislation amounted to “invidious discrimination perpetrating sexual differences” (Para 52), and struck it down.

Anuj Garg is perhaps one of the most progressive judgments to have come out of a Court whose record on sex equality has been patchy, to say the least. It provides a crucial template upon which to build a progressive jurisprudence of sex equality. Under the anti-stereotyping principle, a sex-based classification can no longer be justified on the basis of a blanket assertion of natural differences between men and women. The so-called difference itself will have to be interrogated, to understand whether its roots lie in historically perpetuated stereotypes of gender roles and differences that have become so entrenched, that they now appear natural. And perhaps more importantly, culture and tradition – that, historically, have been invoked to endorse great suppression – cannot constitutionally dictate how freedom of choice, privacy and autonomy are to be understood.

On an Anuj Garg conception, provisions like the marital rape exception, the restitution of conjugal rights, and many others, that lock into place a culturally-determined definition of what it means to be a man and to be a woman, must be tested on the touchstone of constitutional values, and will not be allowed to perpetuate norms that come into conflict with those values. In other words, the “separate sphere” which, historically, has been the justification for great suppression, no longer survives as a valid argument. This is the essence of transformative constitutionalism, which we have discussed before on this blog: through its guarantees of liberal-democratic values of choice, freedom, non-discrimination, autonomy and the rest, the Constitution sought to replace old practices and norms of hierarchy, dominance and suppression that were based on socially or otherwise constructed identities, such as caste, religion, gender etc.

It is to be hoped, therefore, that future Courts understand the deep foundations of Anuj Garg, and take it forward.

Reservations, Equality and the Constitution – IV: Indra Sawhney v. Union of India – Background and Preliminaries

In the last post, we saw how State of Kerala v. N.M. Thomas marked a shift in the conception of equality that the Constitution is committed to. It did so by abandoning the existing individualistic, colour-blind equality model that presumptively proscribed all classifications on prohibited bases (sex, race, caste etc.), whether for benign purposes or otherwise, unless explicitly permitted. We also noticed, however, that the seven-judge N.M. Thomas bench split in a manner that left it entirely unclear what the new model was. What four judges (a majority) did agree on was that Article 16(4) was not an exception to, but a facet of Article 16(1) – that is, the justification for affirmative action could be found within the conception of equality of opportunity under 16(1), and by extension, within the broader conception of equality under Article 14. 

There are, however, at least two distinct ways in which Article 16(1) can be interpreted, and no clear consensus emerged in N.M. Thomas on that point. Both interpretations are sensitive to group inequalities, but in different ways. Under the first interpretation (to fix ideas, let it remain the “group subordination principle”), the point of affirmative action is to achieve equality between groups. In other words, the site of constitutional action is the group, and the right (to equality) that is being vindicated is that of the group’s. The reason for this approach is that historically, injustice has been meted out to groups (women, dalits etc.), and thus, it makes sense for remedial action to be focused on groups.

The second interpretation is also sensitive to the realities of historical discrimination, but even so, it insists that ultimately, the right to equality is an individual right. However, since historically, the individual has been discriminated against in virtue of her membership of a particular group (e.g., as a woman, or as a Dalit), it might be necessary to take group identity into account, in order to achieve truly effective ameliorative measures that take us towards an eventual position  of genuine equality for all persons.

Notice that both these approaches support affirmative action, based on a historical understanding of the way in which discrimination has worked in our society, but for radically different reasons. The first – group-subordination approach – is geared towards preserving group identities by equalising groups qua groups. The second approach aims at eventual elimination of group identity, accepting group-based classifications as a necessary set of evils on the road to a society in which all individuals are brought to a position of genuine equality. The debate is not merely academic because, as we shall see, it deeply affects the models of reservation and affirmative action that are justified under Articles 15 and 16.

While N.M. Thomas left this basic philosophical point unresolved, this – and many other questions – came to a head in Indra Sawhney v. Union of India, decided by a nine-judge bench in 1992. Indra Sawhney saw a plurality opinion, written by Jeevan Reddy J. for himself and three other brother judges, and four separate concurrences. Indra Sawhney, therefore, has no majority opinion, and so, special care must be taken in determining what propositions, precisely, the case stands for.

Before diving into the case, however, in light of the sheer number and complexity of the issues raised, a brief historic background is necessary.

Reservation in India has a long history. Article 16(4) permits the government to make reservations in the matter of employment for backward. The first question which arises, therefore, is “what constitutes a backward class?” To answer this question, the Kalelkar Commission was set up in 1953. The commission identified six markers to identify a backward class, these being: 1) Traditional occupation and profession, 2) Literacy, 3) Population, 4) Distribution and concentration, 5) Social position in the caste hierarchy and 6) Representation in the Govt. service, or the industrial sphere.

The findings of the commission were criticized by a Central Government memorandum in 1956. Subsequently, in 1961, the Central Government agreed to let each State Government draft its own list of backward classes. This was carried out by individual State Governments.

In 1979, by a Presidential Order under Article 340 of the Constitution, the Mandal Commission was set up to identify backward classes. After an exhaustive survey, the Mandal Commission came up with eleven indicators of “social and educational backwardness,” which, in turn, were grouped into three broad headings – social, economic and political. Social indicators included castes/classes considered backward by others, caste/classes depending upon manual labour for their livelihood, castes/classes with low average ages of marriage and castes/classes with a low proportion of female workforce. Educational criteria included percentages of school attendance, dropouts and matriculation. Economic criteria included value of family assets, number of families living in kucha houses, distance of sources of drinking water, and households having taken consumption loans. Social indicators were given three points each, educational indicators two points, and economic indicators one point. The total points, therefore, amounted to 22. All castes/classes that had a score of above eleven, were deemed to be “socially and educationally backward.” The commission then used some further criteria to identify “other backward classes,” and also from the non-Hindu section of the population. In the final analysis, the Mandal Commission found that the percentage of OBCs in India was 52%. In the view of the Supreme Court decision (Balaji) limiting reservation to less than 50%, the Commission recommended a 27% reservation for OBCs in addition to the existing 22.5% reservation for SCs and STs. Subsequently, there were two Government Memoranda (an executive order) which enforced these recommendations, and provided that Backward Classes would mean “those castes and communities” that were common to the Mandal Commission report, and various State Government lists. The Mandal Commission report proved to be bitterly controversial, stoking tensions all over the country, and eventually, it was these memoranda that were challenged. A nine-judge bench was constituted, and Indra Sawhney came to Court.

One major sticking point was the use of caste to identify a 16(4) backward class, and this itself had had a troubled history. In Balaji, the Court had held that caste cannot be the sole, determining factor for identification of backward class. Subsequently, though, in P. Rajendran v. State of Madras, the list of “other backward classes” simply included a list of castes. The Court held that although a selection based purely on caste would fall foul of Art. 15(1), if it could be shown that the castes which were selected were, in fact, socially and educationally backward, 15(4) would apply, and the selection would be saved from invalidity. In a certain sense, therefore, P. Rajendran can be seen to have watered down the judgment in Balaji to an extent. This was followed in a number of cases such as Triloki Nath, Periakurappum v. State of Tamil Nadu and State of Andhra Pradesh v. Balram. However, in State of Uttar Pradesh v. Pradip Tandon, Ray C.J. came up with a very different interpretation: he argued that caste or religion could not be made a basis for identification under Art. 15(4), as this would stultify the operation of Art. 15(1). This judgment, of course, seemed to go against the stare decisis evolved in Rajendran and beyond – and N.M. Thomas then added yet another twist to the tale by holding  that the word “caste”, as a proscribed basis under 16(2), was not the same “caste” as the “caste” in “Scheduled Caste” – the latter being a purely administrative category. The Indra Sawhney Court, faced with these precedents, was called upon to resolve the role of caste and its relationship with class in the context of affirmative action, once and for all.

Before we delve into the core of Justice Reddy’s plurality opinion, one last point remains to be noted. In his opinion, Justice Reddy cites – and discussed in some detail – four American cases on affirmative action: DeFunis v. Odegaard, Regents of the University of California v. Allan Bakke, Fullilov v. Philip M. Klutznick and Metro Broadcasting Inc. v. Federal Communications Commission.

In Defunis, a percentages of seats in the University of Washington Law School were reserved for racial minorities. Although by the time the case went up to the Supreme Court, Defunis, who had filed the case, was in his final term, and therefore the question had become academic, Douglas J. still wrote an extensive judgment. The crux of his argument was that the Equal Protection Clause does not require Law Schools to admit students purely on the basis of testing results and undergraduate grades; on the other hand, it is equally permissible to view a candidate’s prior record, including the barriers he had to overcome to arrive at where he is. Taking the example of a Black student who had pulled himself out of a ghetto to arrive at Law School, and the son of a wealthy alumnus who got into Harvard, Douglas J. said that although, for obvious reasons, the Harvard man might achieve better grades throughout Law School, in the long run, the Black student might have a more successful career because of the perseverance and undoubted talent that had seen him even reach Law School. This logic was rejected in Regents of the University of California v. Allan Bakke, however, where again, the issue was regarding racial reservations in a University. By a narrow margin (5:4), the Supreme Court held racial quotas to be unconstitutional, and applied judicial “strict-scrutiny” to race-based classifications, holding it justified on the narrow ground only, of achieving a diverse student body.

The other two cases were business-related. In Fullilov v. Philip M. Klutznick, by an Act it was required that at least 10% of federal funds granted for local projects must be utilized in procuring supplies from business owned by minority groups. A challenge to this Act failed, the Court holding that the legacy of unequal treatment now justified differentiation and positive discrimination. Similarly, in Metro Broadcasting Inc. v. Federal Communications Commission, minority groups were given certain preferences in the matter of distribution of licenses. The Court held that benign race conscious measures are constitutionally permissible even if they are not designed to compensate victims of past governmental or societal discrimination so long as they serve important governmental objectives and are substantially related to achievement of those objectives.

What is particularly remarkable about the Court’s survey of American law was the one judgment it omitted to cite, decided three years before, in 1989: City of Richmond v. Croson, which was in direct opposition to Fullilov and Metro Broadcasting (the difference tracks complicated issues of American federalism that our irrelevant for our purposes here). Croson prohibited race-based classifications aimed at ameliorating past societal inequalities, holding that any such remedial action would have to be strictly limited to intentional and specific discrimination. 

In other words, by citing four cases out of which three were largely sympathetic to affirmative action, but out of which one was a moot judgment, and omitting the hostile case of Croson, the Court painted a skewed picture of American law, one that was more sympathetic to group-based philosophies of affirmative action than actual American law. Perhaps it did so to set the stage for its own group-based discussion, that we shall come to in the next post.

Obscenity: The Supreme Court discards the Hicklin Test

Just now, in Aveek Sarkar v. State of West Bengal, the Supreme Court has held that a photograph of Boris Becker and his fiancee, in the nude, is not “obscene” within the meaning of S. 292 of the Indian Penal Code. This judgment is particularly significant because it expressly rejects the Hicklin Test, the archaic 1868 rule for determining obscenity, that the Court has regularly used in its history – most notably, to uphold the ban on Lady Chatterly’s Lover in Ranjit Udeshi’s Case. Interestingly, by citing a number of countries where Lady Chatterly’s Lover was not found obscene, the Court seems – at least implicitly – to be expressing its disapproval of Udeshi, almost fifty years after it was decided (paragraphs 16, 17 and 22). 

In contrast to the Hicklin Test, which was focused on individual or isolated aspects of an entire work that could be deemed obscene, as well as its impact on “vulnerable” sections of society, the Court adopts what it called the “community standards” test:

“A picture of a nude/seminude woman, as such, cannot per se be called obscene unless it has the tendency to arouse feeling or revealing an overt sexual desire. The picture should be suggestive of deprave mind (sic) and designed to excite sexual passion in persons who are likely to see it, which will depend on the particular posture and the background in which the nude/semi-nude woman is depicted. Only those sex-related materials which have a tendency of “exciting lustful thoughts” can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards.” (Paragraph 24)

While welcome in that the Supreme Court gets rid of the Hicklin Test at last, the judgment is also problematic in many respects. First, the Court cites the 1957 US Supreme Court case of  Roth v. United States, and its use of the phrase “contemporary community standards” has been lifted from Roth – but the test in Roth itself was superseded twice over – first in 1966, by Memoirs v. Massachusetts, and then in 1973, by Miller v. California, neither of which are cited by the Court.

More troublingly, however, Roth did not just speak about community standards test, but actually laid down a three-pronged test. Community standards constituted the first prong, but under the second prong, the material had to be “patently offensive”, and under the third prong, “of no redeeming social value” (Memoirs and Miller saw a liberalization of the third prong). The second and third parts of the Roth test are conspicuously absence from the Court’s judgment – in essence, it seems to be saying that if (on applying community standards), a particular work “has a tendency to arouse feeling or reveal an overt sexual desire“, it can be criminalized as obscene. This is worse than vague. On what ground does the Court hold sexual arousal to be something that ought to be criminalised? Additionally, the last Roth ground is crucial, because it is on the social value prong that works of art, literature, sculpture etc., that would otherwise be deemed obscene, are spared. The Court has referred to social value elsewhere, notably in Udeshi itself, and so its absence in this judgment, that otherwise rejects the foundation of Udeshi, leaves the law of obscenity in a state of flux.

The Court also cites the Canadian case of R v. Butler in its support for the community standards test, but regrettably, doesn’t do much with it. This is a pity, because Butler restricted itself to outlawing “undue exploitation of sex”, which in turn it defined as either sex with violence, or that was “degrading or dehumanizing”. In this way, unlike in the US, while Butler made community standards relevant in its obscenity enquiry, it did not make them dispositive. This, naturally, is extremely important, because in determining “community standards”, time and time again we have seen that the Courts simply adopt the dominant majority’s publicly affirmed views, and thus a fortiori exclude alternative, marginalized and minority ways of thinking, especially about sexual matters. Butler tries to provide at least some protection against this tyranny of the majority.

Nonetheless, today’s decision is an important step forward. The Hicklin test is now gone. Furthermore, in focusing so closely upon contemporary community standards, the Court will hopefully henceforth close its doors to claims based upon an idealized, purified (and imaginary) vision of “Indian culture and values”, a monolithic, eternal entity, whose proscriptions tend to match the views of its most extreme  advocates. And lastly, by referring to both Roth and Butler with approval, the very incompleteness of today’s decision leaves it open to revision in light of these cases in a more specific and meaningful way. There is a long way to go before India’s obscenity laws are truly speech-protective, but perhaps we have at last stopped moving backwards.

 

Reservations, Equality and the Constitution – III: State of Kerala v N.M. Thomas and the Transformation of Equality

At the beginning of 1976, the meaning of the 14-15-16 equality code seemed to be reasonably well-settled. Twenty-six judges over an equal number of years had consistently affirmed that affirmative action was constitutional by virtue of the existence of Articles 15(4) and 16(4), both of which operated as exceptions to the equality and non-discrimination provisions of 15(1) and 16(1). Not just the outcomes, but judicial reasoning as well, as we have seen, relied upon a colour-blind vision of equality, one that considered any kind of classification on the bases of prohibited categories (race, religion, sex etc.) as presumptively unconstitutional. This idea, in turn, was grounded upon the belief that in distributing a benefit or burden, government must treat individuals as  individuals, and not as members of groups.

The lone dissenting voice had been Justice Subba Rao’s, in Devadasan. And in 1976, a seven-judge bench, in State of Kerala v. N.M. Thomas, adopted that view in full, and in doing so, entirely repudiated existing precedent. As a transformative decision, N.M. Thomas stands alongside Kesavananda Bharati and Menaka Gandhi in our constitutional history: it not only changed the constitutional understanding of reservations, but in doing so, transformed the deep foundations of the idea of equality that the Constitution commits us to.

In N.M. Thomas, a governmental order granted provisional promotions to members of Scheduled Castes and Scheduled Tribes who did not have the requisite qualifications to be eligible for such promotion, along with a two year grace period for them to gain such qualifications. This was challenged. The key contention of the aggrieved parties was that the classification was clearly void under Articles 16(1) and (2), and not covered by Article 16(4). Under existing precedent, this ought to have been a simple case. If Article 16(4) did not apply, then special provisions for SCs and STs clearly did violate Articles 16(1) and (2).

Not so, held the Court. In Paragraph 31, the Chief Justice Ray, writing the judgment of the Court, held:

“The rule of differentiation is enacting laws differentiating between different persons or things in different circumstances. The circumstances which govern one set of persons or objects may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different sets of circumstances. “

Consequently:

“The rule of equality within Articles 14 and 16(1) will not be violated by a rule which will ensure equality of representation in the services for unrepresented classes after satisfying the basic needs of efficiency of administration.” (Para 37)

The Court thus holds that Article 16(1)’s conception of equality itself includes remedial action to ensure due representation for hitherto excluded classes. No longer, then, is equal treatment to be accorded to individuals; the Court adopts the group-subordination idea of equality, one that locates the site of historical discrimination as the group, and seeks to remedy that by targeting groups.

That said, the bar of 16(2) remained, which expressly listed caste as a prohibited basis of classification. The Court’s answer was to accept that 16(2) would instantaneously void such classification (Paragraph 37), but then to perform a sleight of hand (one that would be repeated subsequently) by holding that Scheduled Castes were not the same as castes (under 16(2)), and could fairly be called “backward classes” within the meaning of 16(4) (Para 43) This raises a troubling issue for those situations where this sleight of hand will not be available to the Court. What, for instance, can the Court say if Government wishes to make special provisions in employment for women? 16(2) expressly prohibits classification on the basis of sex, and purely on the logic of N.M. Thomas, 16(2) continues to operate as an absolute bar.

In any event, the fundamental shift in N.M. Thomas is this: 16(4) no longer operates as an exception to 16(1), allowing the government limited powers to do what it would otherwise be prohibited from doing by virtue of 16(1), but now exists as “one of the methods of achieving equality embodied in Article 16(1).” (Paragraph 46) But this necessarily involves a shift in the nature of equality itself, because until now, 16(1) and 16(4) were considered to embody differing visions of equality: 16(1) was about individuals, and 16(4) – textually – about remedial measures targeted at historically discriminated groups. And now it is that latter logic that governs both 16(1) and 16(4).

On what basis does the Court deal with precedent in such cavalier fashion? The majority does not say, and it is in Justice Mathew’s concurring judgment that we find an articulate defence of the new principle of equality. Drawing upon sources as diverse as Brandeis and Laski, Justice Mathew conceded that Article 16(1) was about equality for individuals – equality of opportunity. But equality of opportunity, he argued, meant that in distributing a benefit or burden, the State must set those criteria for selection that “people from all sections of the society have an equal chance of satisfying them.” (Paragraph 84) To sharpen the idea, he drew upon Bernard Williams’ famous example: in a certain society, the most prestigious role is that of the warrior, which requires great physical strength. Hitherto, recruitment for this role has been – formally – solely from the wealthy/propertied classes. A reform movement succeeds in removing the formal barrier in favour of equal competition. Nothing changes, however, because the rest of the population is so undernourished by reasons of poverty, that they do not pass the physical requirements of the recruitment test. In other words, the criteria for selection has been changed from wealth to strength, but it so happens that – for obvious reasons – the poor also happen to be weak.

For Justice Mathew, this is not equality of opportunity. According to him: “To give X and Y equality of opportunity involves regarding their conditions, where curable, as themselves part of what is done to X and Y and not part of X and Y themselves.  Their identity for this purpose does not include their curable environment, which is itself unequal and a contributor of inequality.” (Paragraph 87)

This is a crucial philosophical point (and the connection to Amartya Sen will be obvious to everyone). Much turns upon what exactly “where curable” and “curable environment” mean, but broadly, Justice Mathew’s point is that equality of opportunity makes no sense without taking into account the structural conditions into which people are born and grow up in, and which define, limit or otherwise profoundly affect the formulation and achievement of their goals.

Justice Mathew then reconciled his argument that Article 16(1) was about individual equality with upholding group classification: any classification, he argued, must group together individuals sharing certain characteristics. Categorization into Scheduled Castes/Tribes, then, was no more than a convenient method for identifying individuals who did suffer from those structural conditions that required affirmative action. (Paragraph 108) Crucially, for Justice Mathew, Article 16(1) is not about group equality. It is about effective individual equality, which is to be achieved by using the method of group-identification. The obvious problem with this is the two-pronged evil of over-inclusiveness and under-inclusiveness. As soon as you abandon separate analyses of each individual case for group-categorization, it is inevitable that certain members of your chosen group will not be “backward” (over-inclusiveness), and certain members who do not fall within the group will be “backward” (under-inclusiveness). This makes the definition of the “group” absolutely critical, and as we shall see in subsequent cases, it is this issue that would emerge as a political and constitutional battleground. In N.M. Thomas, however, Justice Matthew was oddly unconcerned with this very real problem.

Justice Krishna Iyer, in his concurring opinion reiterated the shared vision of equality embodied in Articles 16(1) and 16(4), and added a further ground for the argument by invoking Article 46, of the Directive Principles. While the Directive Principles are, of course, unenforceable, Justice Iyer argued that the interpretation of Articles 16(1) and 16(2) must be such that gives effect to Article 46. In this way, by invoking the Directive Principles as background, structuring values, helping us select which conception of equality Article 16 embodied (colour-blind, or group-subordination, or something else), Justice Iyer provided the constitutional grounding to Justice Mathew’s philosophical vision of equality.

Justice Fazl Ali, in his concurrence, moved away from Justice Mathew’s individual-centric notion in categoric terms. While adopting the same philosophy of equal opportunity, he held:

“Equality of opportunity would naturally mean a fair opportunity not only to one section or the other but to all sections by removing the handicaps if a particular section of the society suffers from the same.” (Paragraph 193)

This, as we have seen, is the classic statement of the group-subordination theory of equality. He then adopted Justice Iyer’s argument about the interpretation of Articles 14 and 16 being determined by the Directive Principles (Paragraph 200). Note, however, that Article 46 categorically refers to weaker “sections” of society. If, therefore, the interpretation of Article 16(1) is grounded in Article 46, then it cannot but be taken to be embodying the principle of group-subordination.

The last concurring judgment was Justice Beg’s, but he only concurred in the judgment, siding with the majority on the ground that the present case was covered by Article 16(4). On the reasoning, he disagreed, sticking to the past interpretation of 16(4) remaining an exception to 16(1).

Justices Gupta and Khanna dissented. Justice Gupta held that Scheduled Castes were, indeed, “castes” within the meaning of 16(2); and that any event, the manner of distinction was not one that was permitted by 16(1). In a detailed dissent, Justice Khanna reaffirmed that 16(4) was an exception, and the legitimating ground for reservations for SCs and STs was found in, and limited to, 16(4). In particular, he held:

“There is no scope for spelling out such preferential treatment from the language of Clause (1) of Article 16 because the language of that clause does not warrant any preference to any citizen against another citizen.” (Paragraph 57)

Which, as we can see, if framed in explicitly individualistic language. Hammering the point home, he observed in the very next paragraph:

“Equality of opportunity in matters of promotion must mean equality between members of the same class of employees and not equality between members of separate, independent classes.” (Paragraph 58)

In other words, an express rejection of the group subordination principle. And to make it even clearer, he went on to hold:

“What Clause (1) of Article 16 ensures is equality of opportunity for all citizens as individuals in matters relating to employment or appointment to any office under the State.” (Paragraph 60)

N.M. Thomas, thus, leaves us with a deeply divided Court, one in which each of the seven judges wrote his own opinion, and came to deeply divergent conclusions on a number of issues. Let us try to sum up:

(1) A majority of five judges concurred in the judgment, and two dissented

(2) A majority of four judges held that 16(4) is not an exception, but an “emphatic restatement” of 16(1) – and thus, 16(1) itself permits reservations and preferential treatment

(3) Two judges – Fazl Ali and Krishna Iyer JJ – by invoking Article 46, specifically adopted the group-subordination principle of equality in their interpretation of Article 16(1)

(4) Four judges (or five, depending on how one interprets Ray CJ’s judgment, which seems to adopt both principles) – that is, Mathew and Beg JJ.’s majority opinions, and Khanna and Gupta JJ.’s dissents – while coming to different conclusions, nonetheless maintained the individual-centric view of Article 16(1)

In essence, therefore, while N.M. Thomas changes the idea of of equality under 16(1), a bare majority upholds the deep philosophy of individual equality that forms the ultimate philosophical basis of it. This, essentially, makes Justice Mathew’s opinion controlling. The point of the Article 16 scheme – after Thomas, therefore – is not to achieve group equality qua groups, but to achieve individual equality, and the use of groups is a convenient mechanism to achieve the end goal of individual equality. This, indeed, comports well with the founders’ vision (as we have seen in previous posts) of an end-goal of a society in which class and other such markers become entirely irrelevant. What Justice Mathew understands is that to achieve a colour-blind society, you might need to take colour into account on the way, in order to ameliorate the continuing negative effects of structural inequalities; the arguments are not novel. Feminists have regularly argued that the end-goal of a society in which gender is irrelevant can only be achieved by taking gender into account on the way, and bringing women to a position where formally making gender irrelevant really means actually making gender irrelevant; and the same with race. What is crucial to note is that none of these arguments lose their ultimate goal of emancipating the individual. Classification is a means to an end, not an end in itself.

The distinction is important, and not just simply to understand what kind of equality our Constitution commits us to, and whether it is a vision that we find inspiring and worth believing in. It is also important because – as we shall see – debates about identifying beneficiary groups (the Mandal Commission and beyond), the bitter fight over the “creamy layer”, and ultimately, how far we are willing to go with reservations (for instance, over-inclusiveness and under-inclusiveness aren’t issues at all if your goal is objective is group equality) – depend upon whether our goal is to make groups equal to each other (and thus, reinforce group identity), or to make individuals equal to each other (and thus, ultimately, dissolve group identities). After N.M. Thomas, the latter view had an edge. In subsequent posts, we shall examine how it would fare in the fraught and divided coming years.