New Blog – Legal Education in India

Professor Sidharth Chauhan, from Nalsar, has started a new blog titled “Legal Education in India”. Here is his brief introduction:

“I’m starting a new blog with a focus on legal education in India. While there are quite a few forums that either report on student activities in Indian law schools or cater to the informational needs of those applying for admission, there is hardly any discussion on teaching methods, scholarly interests and other institutional practices. I hope to fill that void through this forum. Collaborators and guest contributors are welcome.”

This is the URL: http://legaleducationinindia.blogspot.in/

Happy blogging to Professor Chauhan, who is a genuinely high-quality academic, and happy reading to all.

Reservations, Equality and the Constitution – VII: Exploring the Boundaries in M. Nagaraj

In response to the Ajit Singh case, which we discussed in the last post, the Government responded (not for the first time) by amending the Constitution. Recall that in 1995, through the 77th Amendment, Article 16(4A) had been inserted into the Constitution, which read, in relevant part:

“[The State can] make any provision for reservation in matters of promotion to any class or classes of posts… in favour of the Scheduled Castes or Scheduled Tribes.”

This, of course, was in response to Indra Sawhney, which had held that reservations extended to initial appointments but not to promotions. In Ajit Singh, the Court enunciated the catch-up rule, according to which promotions on the basis of reservations would not affect consequential seniority calculations in the higher level posts. The government then brought in the 85th Amendment in 2001, which read:

“In article 16 of the  Constitution,  in clause (4A), for the words “in matters of promotion to any class”, the words  “in matters of promotion, with consequential seniority, to  any class” shall be substituted.”

In addition, via the 81st Amendment, the government had also inserted Article 16(4B) into the Constitution, which read, in relevant part:

“[The State may consider] any unfilled vacancies of a year which are reserved for being filled up in that year… as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year”.

This is known as the carry-forward rule. Given the total reservation cannot exceed 50% in any given year, this rule allows the government to do an end run around that rule by “carrying forward” unfilled reserved posts from one year to the next; so suppose there are 100 posts, out of which 50 are reserved (in accordance with the Balaji rule). In year x, for whatever reason, only 30 out of 50 reserved posts are filled. Then, in year x + 1, the twenty unfilled posts can be “carried forward” – that is, the reserved posts in year x + 1 can be 50 + 20 = 70, and so onwards through the years.

Articles 16(4A) and 16(4B) were challenged before a Constitution Bench in 2007, in M. Nagaraj v. Union of India.  Since these were constitutional amendments at issue, this was a basic structure challenge. Along with 16(4A) and (4B), the petitioners also challenged the 82nd Amendment, which had (essentially) eviscerated Article 335. Article 335 originally required the claims of SCs and STs to be balanced with “efficiency in administration”, and had been invoked repeatedly by Courts (especially Indra Sawhney) to put limits on the extent and nature of government quotas. The 82nd Amendment added  a further clause to Article 335:

“…nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts.” 

The case of the petitioners was that, cumulatively, these amendments entirely destroyed the conception of equality running through Article 14, 15 and 16, which was part of the basic structure of the Constitution.

The Court recognised (as it had to) that equality was part of the basic structure (para 27). Of course, the question then becomes: at what level of abstraction do we understand “equality” in the sense that is part of the basic structure? As we have been discussing throughout the posts on reservations, the Courts have repeatedly struggled with the conception of equality that the Constitution commits us to – colour blindness, group subordination, and so on. While these conceptions are different ways of understanding what equality might require in particular situations, or particular instantiations of equality, they are nonetheless different understandings of the same abstract concept – that of equality. Before deciding, therefore, whether 16(4A) and (4B) violate the basic structure, it becomes important to decide what level of equality is involved when considering the basic structure.

This idea was implicit in the Court’s conclusion, after it exhaustively analysed precedent on the nature of the catch-up rule. It held: “the concept of ‘catch-up’ rule and ‘consequential seniority’ are judicially evolved concepts to control the extent of reservation. The source of these concepts is in service jurisprudence. These concepts cannot be elevated to the status of an axiom like secularism, constitutional sovereignty etc. It cannot be said that by insertion of the concept of ‘consequential seniority’ the structure of Article 16(1) stands destroyed or abrogated. It cannot be said that ‘equality code’ under Article 14, 15 and 16 is violated by deletion of the ‘catch-up’ rule.”

The Court went on to observe:

“Clause (1) of Article 16 cannot prevent the State from taking cognizance of the compelling interests of backward classes in the society. Clauses (1) and (4) of Article 16 are restatements of the principle of equality under Article 14.” (Para 67)

Although the Court failed to explain this rather cryptic statement, presumably, what it meant was this: Article 14 lays out the abstract concept of equality (which is a basic feature of the Constitution). Articles 16(1) [formal, individual-centric equality of opportunity] and 16(4) [group-based equality of outcomes] are two concrete conceptions of this concept, both of which form part of the Constitution (the use of the word “restatement” is unfortunate, since it signifies nothing). Insofar as 16(4A) and (4B) merely further the group-based vision of 16(4), therefore, they cannot said to be going against the basic structure (as long as, the Court was careful to add, the twin requirements of inadequacy in representation, and backwardness, are satisfied). It is possible, of course, that the balance could be upset by particular schemes of reservation established under these provisions. Thus, the Court observed:

“…the boundaries of the width of the power, namely, the ceiling-limit of 50% (the numerical benchmark), the principle of creamy layer, the compelling reasons, namely, backwardness, inadequacy of representation and the overall administrative efficiency are not obliterated by the impugned amendments. At the appropriate time, we have to consider the law as enacted by various States providing for reservation if challenged. At that time we have to see whether limitations on the exercise of power are violated. The State is free to exercise its discretion of providing for reservation subject to limitation, namely, that there must exist compelling reasons of backwardness, inadequacy of representation in a class of post(s) keeping in mind the overall administrative efficiency. It is made clear that even if the State has reasons to make reservation, as stated above, if the impugned law violates any of the above substantive limits on the width of the power the same would be liable to be set aside.” (Para 73)

The problem, of course, is that the Court gives little to no indication about manner in which all these aspects – 50% ceiling limit, creamy layer etc. – are to be balanced, what degree of presumption the State is accorded, what standard of judicial review applies, and so on. While that remains an issue, notice how the structuring features of Article 16 correspond to the tension between the two competing conceptions of equality that we have discussed before, especially when the Court observes, for instance, in its concluding remarks:

“… the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse…” (Para 82)

The 50%-ceiling limit, drawn from the Balaji era, ensures that the colour-blind, individual-centric notion of equality in Article 16(1) continues to exert some force. The creamy layer, backwardness and inadequate representation elements operate to refine the group-subordination principle to make it fit for application in concrete contexts. In a sense, then, Nagaraj marks the continuation of the third phase in the Court’s equality jurisprudence. 16(4) and its progeny are not treated as exceptions anymore (Phase One), and nor is Article 16 as a whole treated as one comprehensive group-subordination principle (Phase Two); but rather, Article 16 is taken to be embodying two different visions of equality at odds with each other; the Court in this case accords to the government substantial discretion to find a balance (as is evident in its upholding (4A) and (4B), but also sets the outer limit (by defining the structuring principles underlying Article 16). This of course means that not all reservations all the time – even those that are formally authorized by the 16(4) family – will be constitutional (if, for instance, they entirely obliterate the 16(1) principle, which the Court understands to be embodied in the 50% rule). What will be interesting to see is whether, in future years (especially after Ashoka Kumar Thakur, which we will discuss in the next post), the Court will fine-tune and clarify further how, precisely, we are to understand the balance it has drawn under the Article 16 scheme.

 

Reservations, Equality and the Constitution – VI: The Middle Way

The Indra Sawhney judgment, as we have seen, left the state of law in some degree of confusion. The complexity of the judgment itself ensured a series of what can only be called “procedural wrangles”, which repeatedly went all the way up to the Supreme Court, before the next important constitutional judgment, V. Nagaraj, in 2006. However, in order to understand what was at stake in Nagaraj – and subsequently, in the notorious Ashoka Kumar Thakur, in 2008 – we need to pause and briefly examine the intervening litigation.

Recall that Indra Sawhney v. Union of India had held that reservation under Art. 16(4) was applicable only to initial appointments, and did not extend to promotions. In response, the Centre brought about an amendment to the Constitution. The new provision, Art. 16(4A), permitted the Government to make provisions with respect to Scheduled Castes and Scheduled Tribes in the matter of promotions as well. In R.K. Sabharwal v. State of Punjab (1995), the Punjab Service Rules, it was laid down that there shall be 14% reservation for SCs and 2% reservation for STs. This was maintained in the form of a roster, with certain numbers/vacancies reserved for SCs and STs. It was argued before the Court that if certain reserved category candidates got in through the general quota, then the State’s objective in securing adequate representation, under Art. 16(4) would be satisfied, – therefore, reserved candidates who competed in the general category should also be counted against the reservation quota. In other words, suppose in a workforce of 100 people, there are 14 reservations for SC candidates. The argument is that if, say, 5 SC candidates get in without the quota, then the quota itself should be decreased to 9 – in order that, at the end of the day, there are 14 SC candidates in the workforce (at whichever level of seniority).

In paragraph 5, the Court rejected this argument, holding that the reserved roster spaces would have to be filled by reserved class candidates. It gave no constitutional reason for this claim, but notice how the original argument itself is premised on the group-subordination theory that we have discussed above: if reservation (in appointments, promotions, or whatever) is a group right, meant to uplift a historically subordinated group to a level of substantive equality, then it makes perfect sense to stop once the prescribed percentage of representation has been achieved. On the other hand, if the right is an individual right that is instantiated through the individual’s membership in a group, then the Court’s holding is understandable – because the fact that some members of the subordinated group have achieved parity with the rest of society, doesn’t affect the scope of the right held by other members of the group.

The Court also held that the roster would operate only until the vacancies (and, thereby, the quota) were fulfilled, holding that “as and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster.” It justified this on the ground that “the equality of opportunity guaranteed by clause (1) is to each individual citizen of the country while clause (4) contemplates special provision being made in favour of socially disadvantaged classes. Both must be balanced against each other.” But as we have seen, reams of ink were spent in both N.M. Thomas and Indra Sawhney to demonstrate how 16(4) was an “emphatic restatement” and a “facet” of 16(1), and that both 16(1) and 16(4) embodied the same conception of proportional and substantive equality. Here, though, was a clear statement in the mould of Balaji v. Mysore – 16(4) as laying down “special provisions”; although unlike Balaji, the Court here referred to “balancing” 16(1) and 16(4), as opposed to narrowly construing 16(4) as an exception. Again, remember, if 16(4) is a “facet” of 16(1), then the question of “balancing” the two becomes a conceptual absurdity. R.K. Sabharwal, therefore does nothing for doctrinal clarity.

Ashok Kumar Gupta v. State of UP (1997) involved a controversy over the precise ratio of Indra Sawhney. Some UP service rules provided reservations for Scheduled Castes and Scheduled Tribes. There was 21% reservation for SCs (Dalits), 2% reservation for STs (Tribes) and 27% reservation for the OBCs. Moreover, if SCs and STs were not available, and public interest required the vacancies to be filled, general category candidates would be appointed on an ad hoc basis. The carry-forward rule could not exceed 45%. It was also provided that each category would be prepared separately in the order of their inter se seniority for available vacancies for each category and selection would be done from such eligibility list for each category on the basis of seniority.

The main contention was that, following Indra Sawhney, reservations in promotions were inapplicable. This was despite the passage of Art. 16(4A). It was also questioned whether the right to promotion is a fundamental right, and whether the prospective ruling in Indra Sawhney is void.

The Court set out some important principles. It pointed out that the right to reservation in promotion is required to be balanced with the competing right to equality of the general employees. It held that there also needs to be a balance between equality in law and equality in fact (or what, for the sake of greater clarity, might be understood as equality of opportunity and equality of outcomes). In order to bridge the gap between the two, protective discrimination was needed. The Court observed “that de jure equality must ultimately find its raison d’etre in de facto equality.” (that is to say, formal equality of opportunity must be structured in such a way that there is a rough equality in the outcome).

The Court further held that the right to promotion is a statutory right and not a fundamental right. At the same time, however, it held that “Article 16(4A) read with Articles 16(1) and 14 guarantees a right to promotion to Dalits and Tribes as a fundamental right where they not have adequate representation consistently with the efficiency in administration.” What particularly stands out in this case, again, is how the facet language has been replaced by the rhetoric of balancing.

Our last case is Ajit Singh (II) v. State of Punjab (1999), which focused on the legality of the catch-up rule. Suppose that you are a general category candidate, I am a reserved category candidate, and you are senior to me. In the ordinary course of events, when the next vacancy comes up, you will be promoted. But it so happens that the next vacancy is in the reserved category, and consequently, despite your seniority, I am promoted before you. Now, when you do get promoted subsequently, and we’re both at the same level again, do you “catch up” to me, and our relative seniorities go back to what they were before promotions – or am I now senior because I was promote first?

The contentions were based upon two conflicting streams of case law. In Union of India v. Virpal Singh, it was held that it was “permissible” for the Railways to say that reserved candidates would not be entitled to claim seniority at the promotional level as against senior general candidates who got promoted at a later point of time to the same level. It was further held that “it would be open” to the State to provide that as and when the senior general candidate was promoted under the rules – whether by way of a seniority rule or a selection rule – to the level to which the reserved candidate was promoted earlier, the general candidate would have to be treated as senior to the reserved candidate (the roster point promotee) at the promotional level as well, unless, of course, the reserved candidate had received a further promotion by that time to a higher post.

In Ajit Singh (I), it was held that the balance must be maintained in such a manner that there was no reverse discrimination against the general candidates and that any rule, circular or order which gave seniority to the reserved candidates promoted at roster point, would violate Articles 14 and 16(1) of the Constitution of India.

On the other hand, in Jagdish Lal v. State of Haryana, it was held that the general rule in the Service Rules relating to seniority from the date of continuous officiation, which was applicable to candidates promoted under the normal seniority/selection procedure, would be applied even to the roster point promotees, as otherwise there would be discrimination against the reserved candidates.

The Court held that the ambit of Art. 16(1) is very wide, and includes promotion – therefore, the “right to be considered for promotion” is a fundamental right. (overruling Ashok Kumar Gupta). Furthermore, it was held that Arts. 16(4) and 16(4A) are enabling provisions, and do not confer fundamental rights. In this regard, the Court also rejected the argument that these Articles conferred a power coupled with a duty, overruling the cases of Jagannathan and Kuldeep Singh.

Coming to the scheme of Art. 16, the Court held that both the provisions (16(1) and 16(4)) have to be harmonised keeping in mind the fact that both are restatements of the principles of equality enshrined in Article 14. The provision under Article 16(4) – conceived in the interests of certain sections of society – should be balanced against the guarantee of equality enshrined in Clause (1) of Article 16 which is a guarantee held out to every citizen and to the entire society (there is an obvious contradiction here, which doesn’t bear repeating).

The Court then held that in the case of reserved promotions, a reserved category candidate was able to bypass a large number of general category candidates on the roster, without having to compete with them. Therefore, the Court held that “it is clear that the seniority rule relating to ‘continuous officiation’ in promotion is part of the general scheme of recruitment by direct recruitment, promotion, etc…. and is based upon a principle of equal opportunity for promotion. It is only to such promotions that the seniority rule of ‘continuous officiation’ is attracted.” In other words, therefore, on the grounds of equality of opportunity, the Court upheld the catch-up rule.

In response, the Centre amended Article 16(4A). The new Article 16(4A), along with 16(4B), became the subject of a basic structure challenge in the famous Nagaraj case, and it is that case that we shall turn to in the next post. This, however, is the crucial point that we must note: these three cases, post-Indra Sawhney, articulate a vision of equality that we have not yet explicated (it is latent in Indra Sawhney). We saw how before N.M. Thomas, cases adopted a color-blind view of equality, viewing 16(4) as a constitutionally-mandated (otherwise unconstitutional) exception to the basic rule of neutrality and colour-blindness in the 14-15-16 equality code. We saw how N.M. Thomas and Indra Sawhney – albeit with substantial degrees of confusion – seemed to adopt the different philosophy of group subordination, where the concept of equality itself was understood as requiring remedial measures to ameliorate group subordination. Post Indra Sawhney, we now see what seems to be a middle path: instead of one unified vision of equality, the Court holds that there are two, in equipoise and tension with each other, that need to be “balanced”: the colour-blind individualistic vision of 16(1), and the group-based remedial vision of 16(4). What “balancing” means, and how it is to be done, is of course something that the Court must now make up as it goes along.

 

Book Review: Giorgio Agamben, State of Exception

(One of the classic Constitutional chestnuts is the story of how Ambedkar believed that Article 356, which provides for emergency powers, would never need to be used, and would remain a dead letter – and how then next sixty years have demonstrated how wrong he was. Given the now-ubiquitous presence of Article 356 in national life, along with Article 370 and the use of the AFSPA throughout the country, emergency powers have now become woven into the fabric of constitutional law. In this context, it becomes important to engage with works like Giorgio Agamben’s 2005 monograph, “State of Exception”, which is amongst the most famous theoretical treatments of emergency powers in constitutional states.)

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In State of Exception, Giorgio Agamben is concerned with theorising the use of emergency powers (the “state of exception”) by modern constitutional states. Ever since the German jurist, Carl Schmitt, argued that the sovereign was best understood as the entity who had the power to decide upon the state of exception, the concept has been treated as a political fact, incapable of juridical analysis. As the Stanford Encyclopedia summarises the argument:

“No legal norm can govern an extreme case of emergency or an absolute state of exception. In a completely abnormal situation, the continued application of the law through the normal administrative and judiciary channels is going to lead to haphazard and unpredictable results, while preventing effective action to end the emergency… if the applicability of material legal norms presupposes a condition of normality… a polity must be entitled to decide whether to suspend the application of its law on the ground that the situation is abnormal.”

Therefore, as Agamben understands it, the justification for the state of exception is that it calls for ” a suspension of the order that is in force in order to guarantee its existence…  it is as if the juridical order contained an essential fracture between the position of the norm and its application, which, in extreme situations, can be filled only by means of the state of exception, that is, by creating a zone in which application is suspended, but the law, as such, remains in force.” He characterises this as a distinction between “norm” and “decision”; in situations of so-called normalcy, it is norms that govern action – norms that are characterised by being general, prospective, abstract – leaving very little space for individualised, particularistic decisions, based on particular facts (see this article by John Rawls for an analytical account of this distinction). In the state of exception, that relationship is reversed, and it is the decision that becomes the primary form of political action.

This reversal characterises another staple feature of the state of exception, that Agamben calls the “force of law“. The standard understanding of “law” (as we know, for instance, from Fuller) is precisely that it operates through norms – with its defining characteristics being its generality, formal equality, and so on. In the state of exception, however, Agamben points out that “decrees, provisions, and measures that are not formally laws nevertheless acquire their “force”. From a technical standpoint, the contribution of the state of exception is the separation of “force of law” from “law”. It defines a state of law in which, on the one hand, the norm is in force but is not applied (has no force), and on the other, acts that do not have the value of law acquire its force…” This distinction, and the understanding of suspended norms during states of exception, also leads to important insight that the acts undertaken during that period have no legal character – that is, they are neither transgressive (illegal) nor illegal, but exist sui generis, in a sense, beyond the reach of law (consider, for example, the immunity provisions in the AFSPA).

When we consider these features of the state of exception, and how at odds they are with our common understanding of how law ought to work, it becomes clear that – as the word “exception” would seem to signify – their only justification (if any) can lie in their temporariness and specificity. As Agamben argues, however, through the course of the twentieth century, the state of exception has become – paradoxically – the norm. He takes as his point of departure, Walter Benjamin’s famous observation in his Theses on History:

“The tradition of the oppressed teaches us that the ‘state of exception’ in which we live. We must attain to a concept of history that accords with this fact. Then we will clearly see that it is our task to bring about the real state of exception, and this will improve our position in the struggle against fascism…”

While Benjamin was writing in the context of Nazi Germany (a twelve-year state of exception), Agamben locates the change at the beginning of the 20th century (although the concept of the state of exception itself, he traces from the Roman practice of iustitum, through the French Revolutionary Constitution, and its Napoleonic successors), where the idea of necessity, which was originally understood to be a “single exception that justified not obeying existing law… in the first half of the twentieth century… came to be seen as the ultimate source of law.” That is to say, if the overall justification of law is necessity, then the state of exception is no longer a state of “exception”, but one instantiation of what necessity requires in certain circumstances.

Agamben charts the evolution of the states of exception through the twentieth century, demonstrating how – instead of being single, isolated instances – the came to gradually become the norm, used for such diverse purposes as wartime preparations, fighting the great depression, and suppressing worker-movements. “The voluntary creation of a permanent state of emergency has become one of the essential practices of contemporary states, including so-called democratic ones…” This is primarily marked by a breakdown in the classical separation of powers: going back to the force-of-law idea, the executive is conferred with greater and greater powers to issue decrees having the force of law (again, recall the warrantless-arrest provisions of the AFSPA). For Agamben, this reached its apotheosis in the Bush regime’s infamous Guantanamo Bay executive order, which has since resulted in “radically eras[ing] the legal status of the individual, thus producing a legally unnameable and unclassifiable being. Neither prisoners, nor accused, but simply detainees, they are the objects of a pure, de facto rule… what Judith Butler calls bare life reaching its maximum indeterminacy.”

The book, then, has two rather bleak morals: states of exception occupy a continuum along the history of post-Enlightenment constitutional democracies, starting with revolutionary France; and that in modern times, they have become the default rather than the exception, although – crucially – they have taken a new form: “declaration of states of exception has gradually been replaced by an unprecedented generalization of the paradigm of security as the normal technique of government.” In other words, the national security state – with its ubiquitous surveillance mechanisms and police procedures, is the 21st-century instantiation of a now-permanent state of exception (along with its more extreme and brutal forms that remain territorially and spatially limited, such as the permanence of the emergency-measure AFSPA in numerous parts of India – again, making the emergency the default rather than the exception). But perhaps, as Benjamin believed, a clear understanding of this fact is the essential first step in working against it.

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Malcolm Bull with an infinitely more erudite review in the LRB, here.

A brief piece, considering how the Schmitt-Benjamin debate plays out in Agamben’s work, here.

The Supreme Court on Hate Speech – Again

Today, the Supreme Court declined to adjudicate, on merits, a PIL requesting it to frame guidelines prohibiting political hate speech. Citing separation of powers concerns, it delegated the task to the Law Commission. The judgment, however, has some observations that – albeit obiter – are of great significance for free speech in India.

In Paragraph 6, the Court cites two Canadian cases with approval. The first, Canada v. Taylor, was a case about the constitutional validity of Canadian hate speech laws. The issue turned on whether proscribing hate speech violated the right to free expression. The Court upheld the constitutionality of hate speech legislation, and expressly framed the issue as one of equal participation in a pluralistic democracy. The direct effect of hate speech – both by the psychological effect it had on the individuals (mostly, of minority groups) so singled out, as well as its contribution to an atmosphere in which certain groups were systematically regarded as inferior – would stifle the opportunities of members of those groups to participate in the society on terms of equality and dignity. The ultimate goal of hate speech legislation, the Court held, is to prevent the kind of racial and religious discrimination that has been so divisive for societies all over the world. Specifically, the Court focused on the constitutional meaning of the phrase “hatred or contempt”, and observed that it had to be informed by the commitment to protecting “equality and dignity”, and categorically warned against conflating it with subjective “offense”. 

The second Canadian case the Court cites is that of Saskatchewan v. Whatcott. That case – as the Court observes – made it clear that there is a distinction between expression that is “repugnant and offensive”, and that which rises to “abhorrence, delegitimization and rejection that risks causing discrimination and other harmful effects.” Once again, notice that two out of three words directly implicate equality concerns – in particular, concern with the equal moral membership in society of all citizens, regardless of their group affiliations. The Court in Whatcott went on to add that the repugnancy of the idea in itself is not enough – the question is whether the effect of the expression is to expose the group to hatred by others – that is, whether it would incite other members of the society to deny the equal moral membership of the targeted groups (classic example – which the Court cited earlier in Taylor – German Jews in Nazi Germany).

In paragraph 7 of its judgment, the Indian Supreme Court then directly incorporates the Whatcott rationale. Let us excerpt paragraph 7 – which ought to be in quotation marks – in full:

“Hate speech is an effort to marginalise individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members. It can have a societal impact. Hate speech lays the groundwork for later, broad attacks on vulnerable that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts a protected group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy.”

There are four distinct ideas in this paragraph, that we need to unpack.

(1) What is at stake here – as explained above – is equality. The use of the terms “marginalise” and “delegitimise” highlight the fact that hate speech essentially holds a certain group to be unworthy of the general respect and dignity enjoyed by all other individuals in a pluralistic democracy.

(2) Hate speech is not about what targeted individuals might find subjectively offensive.

(3) Hate speech needs to be curtailed because of consequential reasons – in particular, its direct causal connection with actual discrimination (this is the point Waldron makes, that we discussed in the last post – an environment corroded with hate speech is a distinctly unwelcoming to targeted groups).

(4) Hate speech has a silencing effect that prevents the full participation of targeted groups in democracy – either through self-censorship because of fear of being attacked, or because the voices of targeted groups are distorted or unheard by the majority that is fed on delegitimising hate speech (another equality point).

In Whatcott, the Court went on to stress the difference – yet again – between hate speech and causing affront, ridicule or belittling of specific individuals. It also emphasised that one reason why the standard of protection for hate speech is lower is because it does nothing to serve the accepted free speech goals of promoting discourse – rather, it shuts down discourse because of its silencing effect.

After incorporating the Canadian test into its judgment, the Supreme Court then brings a whole host of legislation within the broad ambit of “hate speech”: in particular, Ss. 124A (sedition), 153A and B, 295A (insulting religious beliefs), the Representation of Peoples Act (election issues), Protection of Civil Rights Act (untouchability), S. 66A et al of the IT Act, and so on (paragraph 10). But if all this legislation is hate speech legislation – and if the Court’s framework analysis in paragraphs 7 and 8 is what must be undertaken when adjudicating what “hate speech” is – then logically, the interpretation of – say, S. 295A – must be informed by this particular understanding of hate speech.

So, for example – as we have argued before on this blog – when we are interpreting the word “insult” in S. 295A, we can’t restrict it to purely subjective feelings of offense or wounded pride. In today’s case, the Supreme Court gives us a methodology for interpreting such sections that are broadly consonant with liberal principles. That is, what S. 295A seeks to do is to ensure prevent discrimination against individuals for their religious beliefs, and to achieve this aim by preventing religious hate speech. What constitutes religious hate speech, then, under 295A, is speech that expressly deligimises or marginalizes – to use the Court’s expressions – individuals on the basis of their religious affiliations. Take three hypotheticals statements, taking an imaginary religion X:

Statement A: “You Xians actually believe in past lives and reincarnation? That is so utterly ridiculous and stupid.”

Statement B: “Turns out that some of your Xian Gods were serial sex addicts – your own religious texts indicate that.”

Statement C: “You Xians are cockroaches, and need to be eradicated.”

Keeping in mind our discussion above, and in previous posts, it is obvious that Statements A and B do not amount to 295A-prohibited religious hate speech, no matter how much offense they cause, and how much they infuriate. There is nothing in those two statements that denigrates Xians as persons, questions their equal moral membership in society, or denies them the right to participate in a pluralist democracy on equal terms. Statement C, on the other hand, falls clearly within the proscription, and for all the reasons adduced above, can be prohibited on liberal grounds.

(Needless to say, on this standard, there is absolutely no chance that Wendy Doniger’s books can be legally banned under 295A)

Today’s observations have no precedential force, but once again – like in the recent pornography decision – they lay the base for future developments of India’s free speech laws that are consistent with basic principles of political liberalism, pluralism and equality. It remains to be seen whether the Supreme Court will choose to walk down that road.

Book Review: Jeremy Waldron, The Harm in Hate Speech (and the relevance for Indian free speech law)

(There is no question that India’s “hate speech” laws – S. 153A and 295A IPC, S. 66 IT Act et al. – are problematic. Recall, however, that hate speech legislation as such is a staple feature of constitutional liberal democracies. Indeed, in prohibiting all regulation of hate speech, the United States is an outlier; hate speech laws, of some sort, are envisioned in the ICCPR and the ECHR, and provided for in the laws of South Africa, Canada, England, Australia and other western European nations. The problem in India, therefore, is not the existence of hate speech laws per se, but their infelicitously broad wording (sometimes, but by no means always, a colonial legacy), and their rampant abuse. Two things follow: first, even if – through legislation or through the Courts – S. 295A and the rest are repealed or struck down, they will almost certainly be replaced with something else. And secondly, until that time, it becomes even more important to carve out a legal/judicial hate speech doctrine that comports with the legislation on the statute books, and is consistent with basic liberal principles. One way of doing that is by engaging with the work of prominent liberal defenders of hate speech laws, and perhaps amongst the most famous of them writing today is Jeremy Waldron, who published his book, The Harm in Hate Speech, in 2012).

Jeremy Waldron’s The Harm in Hate Speech is a liberal defence of hate speech laws. It asks whether it is morally consistent for a polity based upon principles of political liberalism – that is, committed to upholding individual autonomy, personal freedoms and according equal respect and concern to all – to place restrictions upon the speech of its citizens. Waldron answers that it is.

According to him, there are two related values that hate speech damages. The first is the public good of inclusiveness. In modern pluralist democracies, there is a diversity of ethnicities, races, religions and ways of life. The public good of inclusiveness entails a general assurance each person, qua person and qua member of any particular group, can lead a regular life in the polity without facing “hostility, violence, discrimination or exclusion by others.”  In essence, it is a “sense of security in the space that we all inhabit” – and naturally, by that reason, it is something we all work towards building and sustaining through our daily conduct.

The second value is that of dignity. Waldron defines dignity as the confirmation of equal membership in a society, or one’s “basic social standing… as a proper object of society’s protection and concern” (or, in Dworkin’s language, democratic legitimacy springs from the community according “equal respect and concern to each of its members).

In order to grasp how precisely hate speech harms these values, Waldron asks to understand it as a form of group defamation. In the American case of Beauharnais v. Illinois, for instance, it was prohibited to portray the “depravity, criminality, unchastity, or lack of virtue of a class of citizens of any race, color, creed or religion.” The defendant’s criminal conviction for distributing pamphlets calling upon white people to resist the “encroachments of… the Negro” was upheld by the United States Supreme Court on the ground that libel deserved no free speech protection. Waldon argues that this, precisely, is the best conceptual frame for understanding the issue.

At the heart of Waldron’s arguments is his vision of “public order” in a liberal society: a state of affairs in which each person’s social status, as a citizen of equal moral worth and the possessor of inalienable dignity – is protected. The point of group defamation laws, then (drawing an analogy to individual defamation laws) is to “uphold against attack a shared sense of the basic elements of each person’s status, dignity, and reputation as a citizen or member of society in good standing – particularly against attacks predicated upon the characteristics of some particular social group.”

It is hardly surprising, then, that Waldron draws much of this theoretical ammunition from feminist arguments against pornography, in particular, the work of Catherine MacKinnon. Like MacKinnon, Waldron believes that speech is, in some sense, constitutive of social reality. Words don’t merely express states of affairs, they do things. In particular, he argues, it is the permanence of certain forms of expression – the written word, in particular – whose “apparently ineradicable presence makes a massive difference to the environment in which [we] live our lives.” In an environment rife with hate speech, therefore, the message that is conveyed to its targets – the message of exclusion and insult – becomes part of the very look of that society, and thus breaks down the assurance of inclusiveness that Waldron considers to be a basic public good.

Having established, then, that hate speech violates individual dignity, the problem of the slippery slope looms large – how do you cut off “dignity” from all the other ways in which free speech might affect people? Waldron’s answer is to draw a sharp distinction between “dignity” and “offence”. Being offended refers to subjective feelings of hurt, shock or anger, whereas a person’s dignity depends upon their objective standing vis-a-vis society. There is thus a conceptual difference between protecting someone from a certain kind of “effect on their feelings” (impermissible), and protecting “the assurance of their decent treatment in society” (permissible and warranted). In the context of religion, for instance – and this is something reflected in the religious hate speech codes of liberal democracies – the distinction is between attacking a system or a set of beliefs (e.g., questioning or ridiculing Christ’s resurrection), and attacking the civic status of a religious group qua religious group (“all Christians are scum”).

In essence, then, hate speech codes are about protecting an environment in which the equal citizenship of all individuals – and especially those belonging to unpopular minority groups – is respected, or at least, preserved. It is an intuitively powerful argument, narrowly tailored, and seems justified by the history of communal, ethnic and race-based strife throughout the last two hundred years, much of which has been stoked by incendiary expression (see, for instance, Prosecutor v. Nahimana, on the incitement to genocide in Rwanda).

It is in addressing counter-arguments, however, that some of the possible weaknesses in Waldron’s architecture are revealed. He responds to Edwin Baker’s argument from autonomy by performing a simple balancing task – balancing the autonomy concerns of stifling a racist’s self-expression with the harms described above. He fails to acknowledge, however, that the autonomy claims in this case are not just of the speaker, but also of the listeners. As Scanlon has argued, for instance, our fundamental intuitions of individual responsibility hold persons accountable for their actions, unless coerced. Consequently, what causes the dignity and inclusiveness harms – in the sense of moral and legal responsibility – is not hate speech, but all the individuals who listen to it and – as autonomous persons – allow themselves to be convinced by it.

Equally, it is no answer for Waldron to reply to Dworkin’s argument that the legitimacy of non-discrimination laws depends upon letting racists (for instance) have the full opportunity of rebutting them, by pointing out that racists can object to anti-discrimination laws through non-racist speech. Dworkin’s legitimacy argument, indeed, has a simpler response, and one that has repeatedly been made by feminists in the context of pornography: if the whole point of pornography and hate speech is to systematically distort the free speech of certain participants (women, minorities), then obviously, legislation that emerges out of such a distorted public sphere itself can lay no claim to legitimacy. The argument can then be turned against Dworkin by contending that free speech codes remedy the expressive inequalities created by hate speech (as one element in a system of structural inequality and hierarchy), and thus bolster the legitimacy of laws that arise out of a more equal and fair public sphere.

Somewhat unsatisfactory, as well, is Waldron’s response to Mill’s argument, that the truth needs constant opposition if it is to survive in a living and vibrant manner, as opposed to sinking into runic, doctrinaire formalism. Waldron responds by arguing that, whereas at some point the “race question” was a point of contestation in the framing of social policy, when racist arguments were a part of public discourse, “it would be fatuous to suggest that it is the importance of our continuing engagement in a debate of this kind that requires us to endure the ugly invective of racial defamation in the marketplace of ideas. In fact, the fundamental debate about race is over – won, finished“. I find this argument problematic because it accords to government the power to decide what debates are finished and what debates are live, what argument is on the wall and what argument is off the wall – and that is an extremely dangerous proposition. As the American Smith Act trials show – indeed, as Arthur Miller’s Crucible shows more eloquently than anything else – it is in the interest of momentary majorities to declare as many debates possible as finished, and then write their convictions into law.

Lastly, Waldron responds to Robert Post’s argument that the very meaning of democracy entails that “even the most cherished norms of our community to be challenged democratically in a contest in which it is possible that they might be denigrated and even rejected.” Here again, Waldron’s reply that you can challenge laws (norms) against discrimination and hate speech without engaging in hate speech simply will not do – because one of the very norms under challenge is precisely  the norm that objections to existing norms are not permitted to be expressed through hate speech (the specter of infinite regress loom here, but we can stop at this point). And the challenge to this norm, logically, can only be made through hate speech.

Despite these objections, Waldron’s account remains a powerful and important account of justifying hate speech codes within the rubric of political liberalism. In particular, his distinction between causing offence and undermining dignity is particularly crucial for India, because of our over-broad speech statutes. s. 295A IPC, for instance, criminalizes “insulting” the religion or religious beliefs of a particular class. One possible argument, I suggest, is to focus on the word “insulting”, that has been preferred to “offending”, and argue that it clearly signifies objective content. We can then argue, for instance, that “to insult” must necessarily mean to invoke those social conventions that have been historically used to subordinate, or deny the equal status of, particular groups (e.g., calling a community “dogs”) – and nothing less. This, then, provides a clear conceptual distinction, grounded in liberalism, that can allow us to distinguish, statutorily and constitutionally, mere “offence” (without the causing of which free speech can hardly exist), and attacks on equal citizenship and dignity, which there are strong reasons to protect.

It is also an elegant way of making sense of the Constitution. Naturally, S. 153A, 295A, 66A and the rest must be consistent with Article 19(2), if they are to remain constitutional. On this blog, we have argued before that the best interpretation of the “morality” restriction under Article 19(2) is to understand it neither as personal nor as public morality, but as constitutional morality – morality that is grounded in constitutional principles. One of the principles of the constitution – as evidenced from Articles 14, 15, 21 and 25 – is the principle of equal concern and respect. That is precisely what the Waldronian conception of hate speech laws seeks to protect. In this way, therefore, S. 295A et al – or some other avatar – would remain both constitutional and fundamentally liberal in their interpretation and application.

Guest Post: Recent Legal Confusion in the Supreme Court’s Death Penalty Jurisprudence

(In this guest post, Shivendra Singh highlights the extent to which India’s present death penalty jurisprudence is rife with doctrinal contradictions)

The Supreme Court’s pronouncement in Bachan Singh Vs. State of Punjab, (1980) 2 SCC 684, has acquired a place of special significance in Indian criminal law. The basis of the Court’s conclusion in Bachan Singh – that the sentencing discretion inherent in Section 302 of the Indian Penal Code is not violative of Article 14, 19 and 21 of the Constitution of India – was that norms of sentencing cannot be straitjacketed into a rigid formula. So, as long as a court could state ‘special reasons’ as per Section 354 (3) of the CrPC for the imposition of death penalty after considering the aggravating and mitigating circumstances of both the crime and the criminal, death penalty could be lawfully imposed. The Supreme Court in Bachan Singh was careful to clarify that it was not interested in delineating the list of aggravating and mitigating circumstances as it might lead to erosion of the peremptory norm that the sentencing discretion must not be confined or cribbed in water-tight compartments. Sadly, however, a three-judge Bench of the Court in Macchi Singh Vs. State of Punjab, (1983) 3 SCC 470, ignored it and thereby watered down the fundamental thesis of Bachan Singh. Above all, Bachan Singh nowhere says that death penalty could be awarded if the aggravating circumstances simply outweigh the mitigating circumstances. The ratio decidendi of Bachan Singh is that the judges should not be bloodthirsty and death penalty could be awarded only when the alternative option is unquestionably foreclosed.

It is generally accepted that the Supreme Court’s opinion in Swamy Shraddananda (2) Vs. State of Karnataka, (2008) 13 SCC 767, is a landmark judgment. There are certain reasons as to why it is considered to be a landmark decision. First, it was rendered by a Bench of three judges to resolve a rare deadlock between two judges on whether the accused should be sentenced to life imprisonment or be condemned to death. Secondly, this was the first explicit admission by the Supreme Court that the rarest of rare cases principle nor the Machhi Singh categories were followed by it uniformly and consistently. Thirdly, the Court laid down the theoretical foundations of subjecting an accused to 20 or 30 or 35 years of imprisonment without any remission so that the practical inadequacy of life imprisonment, which roughly works out to be 14 years or so due to remission by the appropriate Government, does not lead to blood-thirsty judges which was frowned upon in Bachan Singh. All in all, Swamy Shraddananda (2) marked an important moment as far as this area of the law is concerned. The grave concerns expressed in Swamy Shraddananda (2), with respect to the inconsistent outcomes in sentencing even by the Supreme Court, were reiterated in Santosh Kumar Bariyar Vs. State of Maharashtra, (2009) 6 SCC 498. So far so good. The difficulties, however, are discussed below.

(a) The Supreme Court has accepted Swamy Shraddananda (2) as an authoritative pronouncement now and this is reflected in its widespread affirmation by the Court on several occasions since 22.07.2008. I do not intend to multiply citations here but the reader can refer to the decision in Gurvail Singh Vs. State of Punjab, (2013) 10 SCC 631. However, the interesting question that arises is whether an accused can be given death penalty without considering whether the sentencing approach delineated in Swamy Shraddananda (2) to imprison the accused to 20 or 30 or 35 years of imprisonment without any remission would be an adequate punishment or not. Has the Supreme Court erred in not considering this aspect at all in Sunder Vs. State of Punjab,  (2013) 3 SCC 215  and Deepak Rai Vs. State of Bihar, (2013) 10 SCC 421 before awarding death penalty to the accused?  While the execution of the sole accused in Sunder has been stayed pursuant to the order dated 06.03.2013 passed by the Supreme Court in W.P. (Crl.) No. 39 of 2013 filed by the accused, the Review Petition filed in Deepak Rai was dismissed on 08.01.2014. Can lives be judicially extinguished without considering such a substantial question of law? After all, Bachan Singh held that death penalty could be awarded only when the alternative option is unquestionably foreclosed. Isn’t the option of imprisoning the accused to 20 or 30 or 35 years of imprisonment without any remission an alternative option which must be considered by the Court before imposing death penalty?

(b) A two-Judge Bench of the Supreme Court in Shankar Kishan Rao Khade Vs. State of Maharashtra, (2013) 5 SCC 546 has held that to award the death sentence, the “crime test” has to be fully satisfied, that is, 100% and “criminal test” 0%, i.e., no mitigating circumstance favouring the accused. Going by this test, there is a good arguable case to suggest that Ajmal Kasab also could not have been sentenced to death as his young age was a mitigating factor. I will leave that issue aside for the moment. Lokur, J. in a separate but concurring opinion in Shankar Kishan Rao Khade has delineated the cases/instances where the principles earlier applied to the sentencing decision have been departed from by the Supreme Court. This bears a close resemblance with the opinion of the Supreme Court in Swamy Shraddananda (2) and Santosh Kumar Bariyar wherein the Court lamented the inconsistency in the application of the sentencing discretion inherent in Section 302 of IPC by it. However, on 27.02.2014, in an extremely significant decision, a three-judge Bench of the Supreme Court in Mahesh Dhanaji Shinde Vs. State of Maharashtra (Criminal Appeal No 1210-1213 of 2012) has held:

“ A reference to several other pronouncements  made  by  this  Court  at different points of  time  with  regard  to  what  could  be  considered  as mitigating and aggravating circumstances and how they are to  be  reconciled has already been detailed hereinabove.  All that would be necessary  to  say is that the Constitution Bench in Bachan Singh (supra) had  sounded  a  note of caution against treating the aggravating and mitigating circumstances  in separate  water-tight  compartments  as  in  many  situations  it   may   be impossible to isolate them and both sets of circumstances will  have  to  be considered to cull  out  the  cumulative  effect  thereof.   Viewed  in  the aforesaid context the observations contained in para 52 of Shankar  Kisanrao Khade (supra) noted above, namely, 100% crime test and 0% criminal test  may create situations which may well go beyond what  was  laid  down  in  Bachan Singh (supra).

We may also take note of  the  separate  but  concurring  judgment  in Shankar Kisanrao  Khade  (supra)  enumerating  the  circumstances  that  had weighed in favour of  commutation  (Para  106)  as  well  as  the  principal reasons for confirming the death penalty (Para 122).

      In para 123 of the aforesaid concurring opinion the  cases/instances where the principles earlier applied to the sentencing  decision  have  been departed from are also noticed.  Though such departures may appear  to  give the sentencing jurisprudence in  the  country  a  subjective  colour  it  is necessary to  note  that  standardisation  of  cases  for  the  purposes  of imposition of sentence was disapproved in Bachan Singh (supra) holding  that

“it  is  neither  practicable  nor  desirable  to  imprison  the  sentencing discretion of a judge or jury in the strait-jacket of exhaustive  and  rigid standards”.(Para 195)  In this regard, the observations with regard  to  the impossibility of laying down standards to regulate the exercise of the  very wide discretion in matters of sentencing made  in  Jagmohan  Singh  (supra), (Para 22 hereinabove) may also be usefully recalled.  In fact, the  absence of any discretion in the matter of sentencing has been the prime reason  for the indictment of Section 303 IPC in Mithu Vs. State of Punjab. The view of Justice Chinnappa Reddy in para  25  of  the  report  would  be  apt  for reproduction hereinbelow:-

      “25. Judged in the light shed by Maneka Gandhi and Bachan  Singh,  it is impossible to uphold Section 303 as  valid.  Section  303 excludes judicial discretion. The scales of justice are removed from the  hands of the Judge so soon as  he  pronounces  the  accused  guilty  of  the  offence. So  final,  so  irrevocable  and  so  irrestitutable  is  the sentence  of  death  that  no  law  which  provides  for  it   without involvement of the judicial mind can be said  to  be  fair,  just  and reasonable. Such a law must necessarily be  stigmatised  as  arbitrary and oppressive. Section 303 is such a law and it must go the way  of  all bad laws. I agree with my Lord Chief Justice  that  Section  303, Indian Penal Code, must be struck down as unconstitutional.”

(emphasis supplied by me)

I urge the reader to consider:

• Can a three-judge Bench of the Court in Mahesh Dhanji Shinde impliedly overrule the decision of the three-judge Bench of the Court in Swamy Shraddananda (2) that the decisions of the Supreme Court itself depicted a doctrinal inconsistency with respect to the application of the judicial discretion inherent in Section 302? Wasn’t it more appropriate for the Court to refer the matter to a larger Bench?
• Is there any inconsistency in the judgments of the Supreme Court in Swamy Shraddananda (2) and Bachan Singh?

Interestingly, on 05.03.2014, a two-judge Bench of the Supreme Court has held in Ashok Debbarma @ Achak Debbarma Vs. State of Tripura (Criminal Appeal) No. 47-48 of 2013:

“We have laid down three tests – crime  test,  criminal  test  and  RR test, not the “balancing test”, while deciding the proportionality  of  the sentence.  To award death sentence, crime test has to be  fully  satisfied and there should be no mitigating circumstance favouring the accused,  over and above the RR test.   The hallmark of a sentencing policy, it is often said, that sufficiently guides and attracts the Court is the  presence  of procedures that require the Court to  consider  the  circumstances  of  the crime and the criminal before it recommends sentence.”

(emphasis supplied by me)

On this note, I leave it to the readers to decide whether India needs Bachan Singh (2) or not. In my opinion, it does. The Supreme Court of India (not the Supreme Courts of India) owes it to the people of India.

—

(Shivendra Singh graduated from the NALSAR University of Law, Hyderabad, in 2010 and is currently practising in the Supreme Court of India.)

The Supreme Court on (Election) Hate Speech

NDTV and FirstPost are carrying reports that the Supreme Court today dismissed a PIL asking the Court to require the Election Commission to prohibit hate speech by politicians during election campaigns. I don’t have access to a copy of the order (link, anyone?), but it seems that the Court made the following observations:

“We are 128 million people and there would be 128 million views. One is free not accept the view of others…”

“Let all shades of opinion come before the public. Let them decide…”

It’s unclear, of course, what precedential value these observations have, but it is important to note that:

– A complete ban on regulating hate speech is a position only followed in the United States. It is not the position in Canada, the EU and South Africa, to name three important constitutional courts.

– A complete ban on regulating hate speech – especially in the language that the Court has framed it, if the above quotations are accurate – has important consequences for doctrine. First of all, Indian law is full of provisions that criminalise some form of hate speech: S. 295A (at the centre of the Wendy Doniger controversy), The SC/ST (Prevention of Atrocities Act), and so on. Now, there are different ways of interpreting provisions like S. 295A, ways that are conservative and moralistic, but ways that are liberal as well (see, e.g., Waldron, The Harm in Hate Speech). For example, a liberal might argue that the word “insult” in S. 295A, which is doing much of the legal work in that Section, ought to be limited to speech that either intentionally, or by virtue of established social tradition, expressly denies the equal moral or human worth of the person it is addressed to, on the ground of the religion that they follow (such a test forms the basis of campus hate speech codes, for instance). Under today’s observations, however, it is difficult to see how S. 295A et al can be constitutional at all. Recall that what S. 295A does is essentially vest in communities a private right of public censorship. Now, if the reason for permitting hate speech is that all opinions ought to come before the public, then it is simply impossible that such a private right of censorship is consistent with that ideal.

– A complete ban on the regulation of hate speech has repercussions beyond the realm of hate speech as well. Let us consider the principled arguments in favour of this position:

(a) Perhaps the most famous one is the – almost cliched – “marketplace of ideas” argument. Every idea ought to have its turn in the grand marketplace, and ultimately, the market will decide which ideas are to survive and become common currency. It is not for government – and not for private parties using the mechanism of law – to impose controls and restrictions upon the marketplace of ideas. This seems to be what the SC is getting at when they refer to letting all opinions be before the 128 million people of India.

(b) Ideas of cultural democracy – advocated by scholars like Ronald Dworkin and Jack Balkin – ground free speech in ideas of equality. Every person, the argument goes, has an equal right to contribute to shaping the moral and cultural environment that they find themselves in, as a condition for the democratic legitimacy of the State.  By excluding certain ideas from the public domain, the State does not treat those individuals with equal concern and respect.

(c) Ideas of autonomy hold that it is an insult to autonomous, responsible individuals to withhold from them ideas or words on the ground that it would be (morally or ethically or otherwise) harmful to them. As a corollary, by banning speech on the ground that it might lead to public order disturbances, the State attributes responsibility on the wrong person: if autonomous individuals take responsibility for their acts, and if autonomous individuals, on reading Pierre-Joseph Proudhon, decide to go and burn down the nearest bank, then the responsibility for that act lies not on Proudhon, or his writing, but on those thinking, reflecting individuals. This, again, seems to be at play when the Court observes that “let the public decide”.

(d) Ideas of cultural pluralism hold that in a pluralist democracy, the same speech, or the same set of ideas, can mean very different things to very different people. To put the matter extremely crudely, one man’s obscenity is another man’s art. The argument then goes that it is not for the government to privilege one section of the people over others, by making a value judgment about the impugned speech.

This is not, of course, to argue that the case against regulating hate speech doesn’t have powerful counter-arguments – it does. The point is that if the Court holds today that hate speech cannot be regulated or banned, then it institutionally commits itself to some manner of content-neutrality – the idea that the content or message of expression in itself cannot provide a ground for censoring it. If we look at each of the principled justifications provided above, they all embody some vision of (weak or strong) content neutrality. But if that is the case, then a lot of our law needs to be rethought. We need to start by rethinking what the words “decency and morality” mean, under Article 19(2). For example, is it consistent to justify a ban on Lady Chatterley’s Lover under the morality ground of Article 19(2), or the continued existence of 295A as constitutional – again, on the morality ground of 19(2) – while simultaneously holding that the morality ground doesn’t cover hate speech? Either we need to find a definition of “morality” that reconciles these two positions – or we need to achieve consistency by rethinking our interpretation of 295A et al. 

Today’s observations have the potential to become a crucial point of departure for a full-fledged, long-overdue constitutional debate on what the philosophical foundations of Article 19(1)(a) and 19(2) are, what precisely they prohibit under the “public order, decency and morality” restriction, on what grounds, and how these grounds are consistent with the broader Constitution and our ideas of democracy and equality more generally. Whether or not that will happen, of course, is another question altogether.

 

Reservations, Equality and the Constitution – V: Indra Sawhney

In Indra Sawhney, Justice Jeevan Reddy wrote an opinion for himself and three other judges. We have already seen how his account of American affirmative action cases re-oriented the discussion towards greater support for the group-subordination principle of equality, than actually existed in the United States. Let us now examine the substance of his opinion.

Recall that the Mandal Commission had proposed an eleven-indicator test for determining “social and educational backwardness”, these indicators being social, economic and educational; and the units of analysis were castes/classes. On the application of these indicators, it selected certain castes as coming within the “socially and educationally backwards” classes category, which would make them eligible for reservations. It found that the sum total of Scheduled Castes, Tribes and Other Backward Classes came up to 52% of the population – but in light of the Balaji 50% dictum, it recommended a 27% reservation for OBCs, and a 22.5% reservation for SC/STs. In the government memoranda planning the implementation of the Commission’s recommendations, special solicitude was provided to economically weaker applicants from within the stipulated backward classes.

In the constitutional challenge, eight distinct issues were framed for resolution, which the Court expanded to eleven. Not all of the issues are germane to our discussion; let us therefore take the relevant ones, in order:

First, the Court considered whether Article 16(4) was an exception to 16(1), or a facet of it. This, as we have explained before, is the heart of the jurisprudential enquiry concerning the meaning of equality that the Constitution commits us to. In paragraph 56, the Court stated: “Clause (4) of Article 16 is not exception to Clause (1) of Article 16. It is an instance of classification implicit in and permitted by Clause (1).”

If group-based reservations, then, are an instance of 16(1)’s abstract guarantee of the equality of opportunity, then it becomes abundantly clear that the conception of equality is the equality of groups, not of individuals. The N.M. Thomas shift, therefore, was crystallised in Indra Sawhney. This, in turn, led the Court to the inescapable conclusion that 16(1) itself permitted reservations (paragraph 58) – thus crystallising another important conception that, in a sense, flows from the principle of group-subordination: the equality ideal is not formal, but outcome-based. The observation is hammered home by the fact that the Court twice explicitly rejects Powell J.’s opinion in Bakke, and says it is adopting the dissents’ view. As we explained in the last post, it was Powell J.’s opinion that first – in American constitutional history – directly enunciated the colour-blind vision of equality; and its rejection, therefore, is deeply symbolic.

The next set of questions before the Court pertained to the identification of “backward classes”. The Court went into a detailed analysis of precedent, the Constituent Assembly Debates, and pre-Independence history to analyse the uses of the terms “caste” and “class”. It concluded that:

“A caste is nothing but a social class – a socially homogeneous class. It is also an occupational grouping, with this difference that its membership is hereditary. One is born into it. Its membership is involuntary. Even if one ceases to follow that occupation, still he remains and continues a member of that group. To repeat, it is a socially and occupationally homogenous class.” (Paragraph 82)

In the same paragraph, the Court went on to examine the caste-occupation-poverty “nexus” that existed throughout India: that is, your caste determined the occupation you were socially entitled to pursue, and that in turn determine your economic status – a circle from which it was almost impossible to break out. The Court then made the crucial observation:

“It must be eradicated. That is the ideal – the goal.” (Paragraph 82)

Recall that the group-subordination principle, in recognising that groups have been the historical locus of discrimination, and that therefore, redressal effects need to be focused on groups, is nonetheless itself agnostic about whether or not group identity is something that ought to be preserved or eliminated. The difference becomes obvious if we consider – for instance – two rival schools of feminist thought. While both schools were focused on eliminating structural inequalities between men and women, and to do so through positive action in favour of women (group subordination par excellence), their goals were different: while one school of thought denied that relevant physical differences between women ought to bear any social meaning, and so ought to be downplayed and ignored (as Monique Wittig famously argued, channeling Simone de Bouevoir “One is not born a woman; one becomes one“) – the other school celebrated those very differences – e.g., pregnancy and child-bearing, and celebrated a female identity based upon those differences as distinct from the male. As a shorthand, the dispute was between those who advocated “sameness”, and those who advocated “difference”. The end-goal for the former was a society in which gender would cease to have any meaning at all, while for the latter, it was a society in which gender differences would be celebrated, with each considered equally worthy.

When, therefore, we are considering equality from a group subordination principle, it becomes important to ask what the end goal is. If the goal is to achieve a society in which group identity is equalised and strengthened, then affirmative action almost becomes an end in itself, as it is basically a concrete method of bringing about group equality. On the other hand, if the goal is to achieve a society in which group identity is eliminated, then affirmative action is only an essential means to bringing about that result – a necessary evil, so to say.

Notice, at this point, how this latter vision of equality, and colour-blindness share a common goal. But what the group-subordination vision, of this sort, understands is that to get to eventual colour-blindness, you must go through group-based affirmative measures. And it is this particular vision of group subordination that the Court adopted, as we have discussed above.

But this leads us to an obvious conundrum. If the goal is to achieve colour-blindness, and reservations are a means to that end, then Article 16(1) cannot be about group equality after all. Colour-blindness is a deeply individualistic concept. This evident tension, unfortunately, goes unrecognised by the Court, in Indra Sawhney, and, for that matter, beyond. Indeed, it is hammered home when the Court, in subsequent paragraphs, expressly lent its imprimatur to using caste as a means for identifying “backward classes” (Paragraph 83).

The tension becomes more pronounced when the Court moved on to the “creamy layer” argument. It held – perfectly logically – that to those members of “socially backward classes” who are not actually socially backward, reservations would not apply, because they lacked the features that the “class” needed to have, in order to be a homogenous grouping. But the Court then observed: “This discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes.” (Paragraph 86)

This is utterly bizarre. The entire thrust of the Court’s argument, thus far, had been that using caste as the basis for identifying backward classes was justified because, after all, castes were goupings, communities and so on – just like classes. The manner in which the Court got around the 16(2) prohibition on caste-based discrimination was precisely by differentiating between “castes” in 16(2) qua castes, and “castes” as standing in for “classes” under 16(4). But if that is true, then there is no logical reason for withholding the extension of the creamy layer test from Scheduled Castes. More problematically, it makes a mockery of the Court’s claimed ultimate goal as being colour-blindness, because in rejecting the creamy-layer test, instead of making backwardness as its criterion for reservation (with caste being a marker of identification), it makes caste as a criterion in and of itself – thus inevitable entrenching caste-based identities.

This tension is further evident when the Court had to examine the Balaji 50% limits for reservations. Notice that one it had been accepted that 16(4) was a facet of 16(1), the Balaji 50% logic was entirely wiped away, because that had been based on 16(4) being an exception, and on the argument that the exception cannot grow to swallow the rule. Nonetheless, the Court contrived to maintain the 50% rule:

“Just as every power must be exercised reasonably and fairly, the power conferred by Clause (4) of Article 16 should also be exercised in a fair manner and within reasonably limits – and what is more reasonable than to say that reservation under Clause (4) shall not exceed 50% of the appointments or posts, barring certain extra-ordinary situations as explained hereinafter.” (Para 94) 

But this will not do. The Court simply refuses to explain why it is “reasonable” that reservations not exceed 50%. What made it “reasonable” in Balaji was precisely that it was an exception to a general rule of equality. Now that that is no longer the case, why is 50% relevant at all? The Court does not explain.

Yet things were to become even more confusing, because then, in discussing the validity of the carry-forward rule, the Court observed:

“It must be remembered that the equality of opportunity guaranteed by Clause (1) is to each individual citizen of the country while Clause (4) contemplates special provision being made in favour of socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed to eclipse the other. For the above reason, we hold that for the purpose of applying the rule of 50% an year should be taken as the unit and not the entire strength of the cadre, service or the unit, as the case may be.” (Para 96)

In other words, after affirming that 16(4) was a “facet” and an “emphatic restatement” of 16(1), the Court went on to hold that (1) and (4) were conceptually distinct, and had to be “balanced” against one another – a classic instance of the Balaji line of reasoning, which NM Thomas had repudiated and the Court had endorsed.

Following this, the Court held invoked Article 335’s requirement of efficiency in the services to disallow reservations in promotions (paragraph 107); it observed that by definition, reservations meant selecting a “less meritorious” person (para 111), and that consequently, there may be no reservations in certain highly technical or specialized posts (para 112).

A compendious summary of the findings in this exhaustingly long judgment are set out in Paragraph 121. Altogether, Indra Sawhney is marked by a series of conceptual slippages that leave India’s reservations jurisprudence in a state of considerable doubt. The Court holds that 16(4) is a facet of 16(1), but in the same breath, holds that 16(1) embodies individual equality, that 16(4) embodies group equality, and that that the two must be balanced. But if that is the case, then 16(4) simply cannot be a facet of 16(1) – the two conceptions of equality – at a particular time t – are opposed to each other. If 16(4) is a facet of 16(1), then why does the 50% rule still remain? If the end-goal is color-blindness, then why isn’t the creamy-layer rule extended to explicit caste-based reservations? The Indra Sawhney judgment gives us a series of outcomes, but provides no underlying, coherent philosophy that explains to us why we have reservations, and what we are trying to achieve, in the long run, through this system. It is perhaps unsurprising, then, that twenty years after, reservations and caste remain entrenched and deeply divisive – the Supreme Court, with its judgment, provided strong motivation for that.