Net Neutrality, Free Speech and the Indian Constitution – II: Private parties, public obligations

(This post first appeared on the CIS website, here)

To sum up the previous post: under Article 12 of the Constitution, fundamental rights can be enforced only against the State, or State-like entities that are under the functional, financial and administrative control of the State. In the context of net neutrality, it is clear that privately-owned ISPs do not meet the exacting standards of Article 12. Nonetheless, we also found that the Indian Supreme Court has held private entities, which do not fall within the contours of Article 12, to an effectively similar standard of obligations under Part III as State organizations in certain cases. Most prominent among these is the case of education: private educational institutions have been required to adhere to standards of equal treatment which are identical in content to Article 14, even though their source lies elsewhere. If, therefore, we are to impose obligations of net neutrality upon private ISPs, a similar argument must be found.

I will suggest that the best hope is by invoking the free speech guarantee of Article 19(1)(a). To understand how an obligation of free speech might operate in this case, let us turn to the case of Marsh v. Alabama, an American Supreme Court case from 1946.

Marsh v. Alabama involved a “company town”. The “town” of Chickasaw was owned by a private company, the Gulf Shipbuilding Corporation. In its structure it resembled a regular township: it had building, streets, a sewage system, and a “business block”, where stores and business places had been rented out to merchants and other service providers. The residents of the “town” used the business block as their shopping center, to get to which they used the company-owned pavement and street. Highway traffic regularly came in through the town, and its facilities were used by wayfarers. As the Court noted:

In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.”

Marsh, who was a Jehovah’s Witness, arrived in Chickasaw with the intention of distributing religious literature on the streets. She was asked to leave the sidewalk, and on declining, she was arrested by the police, and charged under an anti-trespassing statute. She argued that if the statute was applied to her, it would violate her free speech and freedom of religion rights under the American First Amendment. The lower Courts rejected her argument, holding that since the street was owned by a private corporation, she had no constitutional free speech rights, and the situation was analogous to being invited into a person’s  private house. The Supreme Court, however, reversed the lower Courts, and found for Marsh.

Four (connected) strands of reasoning run through the Supreme Court’s (brief) opinion. First, it found that streets, sidewalks and public places have historically been critically important sites for dissemination and reception of news, information and opinions, whether it is through distribution of literature, street-corner oratory, or whatever else. Secondly, it found that private ownership did not carry with it a right to exclusive dominion. Rather, “the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation.” Thirdly, it noted that a large number of Americans throughout the United States lived in company towns, and acted just as other American citizens did, in their duties as residents of a community. It would therefore be perverse to deny them rights enjoyed by those who lived in State-municipality run towns. And fourthly, on balance, it held that the private rights of property-owners was subordinate to the right of the people to “enjoy freedom of press and religion.”

No one factor, then, but a combination of factors underlie the Court’s decision to impose constitutional obligations upon a private party. It mattered that, historically, there have been a number of spaces traditionally dedicated to public speech: parks, squares and streets – whose public character remained unchanged despite the nature of ownership. It mattered that individuals had no feasible exit option – that is, no other place they could go to in order to exercise their free speech rights. And it mattered that free speech occupied a significant enough place in the Constitutional scheme so as to override the exclusionary rights that normally tend to go with private property.

The case of the privately-owned street in the privately-owned town presents a striking analogy when we start thinking seriously about net neutrality. First of all, in the digital age, the traditional sites of public discourse – parks, town squares, streets – have been replaced by their digital equivalents. The lonely orator standing on the soap-box in the street corner now tweets his opinions and instagrams his photographs. The street-pamphleteer of yesteryear now updates his Facebook status to reflect his political opinions. Specialty and general-interest blogs constitute a multiplicity of town-squares where a speaker makes his point, and his hearers gather in the comments section to discuss and debate the issue. While these examples may seem frivolous at first blush, the basic point is a serious one: the role of opinion formation and transmission that once served by open, publicly accessible physical infrastructure, held – in a manner of speaking – in public trust by the government, is now served in the digital world, under the control of private gatekeepers. To that extent, it is a public function, undertaken in public interest, as the Court held in Marsh v. Alabama.

The absence of an exit option is equally important. The internet has become not only space of exchanging information, but it has become a primary – non-replaceable source – of the same. Like the citizens of Chickasaw lacked a feasible alternative space to exercise their public free speech rights (and we operate on the assumption that it would be unreasonably expensive and disruptive for them to move to a different town), there is now no feasible alternative space to the internet, as it exists today, where the main online spaces are owned by private parties, and access to those spaces is determined by gatekeepers – which are the ISPs.

The analogy is not perfect, of course, but there is a case to be made that in acting as the gatekeepers of the internet, privately-owned ISPs are in a position quite similar to the corporate owners of they public streets Company Town.

In the last post, we saw how it is possible – constitutionally – to impose public obligations upon private parties, although the Court has never made its jurisprudential foundation clear. Here, then, is a thought: public obligations ought to be imposed when the private entity is providing a public function and/or when the private entity is in effectively exclusive control of a public good. There is an argument that ISPs satisfy both conditions. Of course, we need to examine in detail how precisely the rights of free expression are implicated in the ISP context. That is the subject for the next post.

What is the “State”? – I: Article 12 and Constitutional Obligations

When we think of a Bill of Rights, there are two structural questions that we must answer before we even get to analysing its substantive content. Against whom are the rights enforceable – i.e., which parties are subject to the obligations that the rights impose. And who is entitled to enforce the rights – a question that often (but by no means always) translates into the question of which parties do the rights protect. Both these questions have been controversial. Evidently, individuals are beneficiaries of fundamental rights. But what about corporations? If individuals incorporate in order to do business, it would seem perverse to deny the right to carry on a business or profession to the corporation. But how about other non-commercial rights, like the freedom of speech and the freedom of religion? The church exists in a corporate form, but surely the church has freedom of religion rights separate and independent from the rights of its members? But what about a for-profit corporation whose owners have certain religious beliefs, which they wish to exercise in hiring decisions? Again, the press exists in corporate form, and if there’s anything that free speech includes, it’s the freedom of the press. But what about corporations donating large sums of money to political candidates, and justifying it on free speech grounds? The issues are endless, complex and often intractable.

In this series of posts, however, I wish to examine the first question: against which entities can fundamental rights be invoked?

Textually, the answer is present in Article 12 of the Constitution:

“In this part [i.e., Part III], unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

One of the important rules of legal interpretation is the rule of ejusdem generis. When a legal text has a number of specific and concrete terms, followed by a general term, then the general term must be interpreted to contain only that which would broadly be consistent with the specific terms. Insofar as Article 12 begins with the terms “the Government and Parliament of India and the Government and Legislature of each of the States”, the phrase “other authorities” – under the rule of ejusdem generis, ought to be interpreted in a manner consistent with the concrete terms that come before it. That is, “other authorities” must be confined to State-like entities.

This is not altogether surprising. Classically, bills of rights are designed to structure a vertical relationship between State and citizen. The regime of private law – the law of contract and tort – operate between citizens, while the regime of non-Constitutional public law – e.g., criminal law – operates between citizens via enforcement by the State. That, very roughly, is what the legal map would look like.

To understand why, a brief excursion into history would be apposite. Bills of rights – in their modern form – first emerged out of the Glorious Revolution in England (1689), the American Revolution (1776) and the French Revolution (1789). These revolutions were driven by a rising bourgeois class, against the dying vestiges of feudalism, and its concomitant aspects such as hereditary nobility, a landed gentry, and an economic system based around feudal relations of lord and vassal, serf and master. Consequently, while the bourgeois framed the language of the revolution in universal terms, it ultimately reflected their class interests. This is particularly evident in these Bills of Rights. Because the greatest threat to the bourgeois was an over-intrusive State meddling with trade, the primary functions that Bills of Rights played was to wall off an entire sphere of action from State interference, within which the bourgeois were free to shape their economic relations as they saw fit. The rights that we now take for granted as universal human rights – rights of expression, religion and so on – had their origins in the bourgeois’ desire to construct an unregulated economic realm free from State interference.

This explains why bills of rights were exclusively enforceable against the State. The standard answers – that there is something particularly egregious about State oppression as opposed to private oppression, and/or the State has much greater power, and so we must be particularly solicitous in protecting individuals against the State – might explain part of the issue, but not all of it. We are well aware that economic relations exist between private parties, and ultimately, are as powerful a weapon in a society of deeply unequal resource distribution, as is the coercive power of the State (the history of industrial Europe in the 19th century bears this out). The complete explanation, as we have noticed, lies elsewhere.

This model was upset in the mid-20th century, with the philosophical discrediting of laissez-faire economics, and the advent of the welfare State. The conception of the State changed from the classical liberal vision of simply guaranteeing law and order so that private parties could shape their own economic relations without interference, to a provider of important public goods ranging from education to healthcare to transport to essential commodities. Oftentimes, especially in mixed economies, the State would carry out many functions working alongside private corporations.

The philosophical shift in the functions of the State, however, also led to a corresponding philosophical shift in the idea of a bill of rights. If, now, the baseline of legitimate State action is the provision of public goods, then it stands to reason that whoever is in charge of providing those public goods ought to be subject to obligations under the bill of rights. So, for example, if we hold that it is the State’s task to provide low-cost, accessible healthcare to all its citizens, then insofar as that function is outsourced to a private party, that private party continues to perform a State function. Correspondingly, the argument goes, we are justified in imposing fundamental rights obligations upon that private party, as long as it continues to be in the shoes of the State.

We will see strands of these arguments in the important cases that the Supreme Court has decided under Article 12. Interestingly, however, there is a textual hook on which to hang this ideas. Consider again:

“In this part [i.e., Part III], unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

An equally important interpretive principle is the principle against surplusage. The legislature is deemed not to have wasted its words, and thus, an interpretation that renders a word or a phrase superfluous, is to be avoided. Here we can see that two phrases have been used: “within the territory of India” and “under the control of the Government of India”. They are connected by the word “or”, which implies that they are disjunctive. Consequently, there is a set of bodies that comes under Article 12, which is not under the control of the Government of India.

There are three possible ways of interpreting this. First, this refers to bodies under the control of the State governments. This is unsatisfactory, however, because it is clear that where the framers wanted to specify “under the control of…”, they expressly included it in the constitutional text. In other words, it seems strangely inconsistent drafting to specify “under the control of” when it comes to the federal government, and imply the same when it comes to the State government. It would have been far more convenient – and lucid – to have said, for example, “under the control of the Government of India or the legislatures of the States“.

Secondly, “within the territory of India” might be narrower than “under the control of the Government of India”, referring only to bodies expressly set up under statute. This would seem, again, to make part of the provision superfluous, because presumably statutory bodies, that owe their very existence to parliamentary legislation, are “under the control” of the Government.

The last option is to read “within the territory of India” as covering a set of circumstances parallel to that of bodies “under the control of the government”: that is, private bodies not under the control of the government, but performing governmental functions. This, of course, was the upshot of our theoretical distinction – and I argue that it is the interpretation supported by the most natural reading of the text, and the historical circumstances in which the Constitution came about.

This means, in turn, that the interpretation of Article 12 must be steeped in political philosophy. The interpreter needs to set her conceptual baseline for what she considers to be legitimate State functions – and it is on that basis that the term “other authority” will be interpreted.

Keeping this framework in mind, both historical and conceptual, we shall examine the Supreme Court’s approach to this question, in the coming posts.



Guest Post: The Supreme Court Rules on the Powers of the CAG

(This is a guest post by Manish)

Earlier this week, Justice Radhakrishnan of the Supreme Court delivered a judgment with far-reaching consequences: In Association of Unified Tele Services Providers v. Union of India (sitting with Vikramajit Sen, J.), he upheld the right of the Comptroller and Auditor General of India (CAG) to audit the books of private telecom companies.

The matter involved two sets of cases that were heard together as they involved similar facts and questions of law. A brief overview of the law and facts (described in greater detail in paragraphs 6-10 of the judgment) is necessary to provide some context. Under the Indian Telegraph Act, 1885, the Department of Telecommunications of the  Government of India (DoT) issues licenses to private companies (referred to in this piece as “telecom service providers” or “TSPs”)  to provide mobile telephony services in the country, for which the telecom service providers pay a license fee to DoT. The license agreement contains a number of terms and conditions that the licensee (the TSP) is subject to. Among these are accounting requirements which are spelt out in Paragraph 22. Of particular interest is clause 22.3(a), which empowers the licensor (i.e. DoT) or the Telecom Regulatory Authority of India (TRAI) to call for or examine any books of accounts of the licensee at any time without assigning any reason therefor, and places an obligation on the licensee to supply these documents. Clause 22.5 and 22.6 respectively empower the DoT to get an audit and a special audit of the licensee’s accounts carried out. We will return to the significance of these clauses later.

In January 2010, TRAI issued a notice to private telecom service providers, directing them to submit books of accounts for inspection by the CAG under Rule 5 of the Telecom Regulatory Authority of India, Service Providers (Maintenance of Books of Accounts and other Documents) Rules, 2002. Rule 5 requires TSPs to produce books of accounts, documents and related statements and information to TRAI for enabling an audit by the CAG under s. 16 of the Comptroller and Auditor General’s (Duties, Powers and Conditions of Service) Act, 1971 (“CAG Act”).

Both the notice as well as Rule 5 were challenged in writ petitions filed by the Association of Unified Tele Services Providers (AUTSP), an industry body comprising various Indian TSPs, as being in violation of section 16 of the  CAG Act and Article 149 of the Constitution of India.

Meanwhile, in a separate context, and in furtherance of the notice issued by TRAI, the DoT in March 2010 issued a notice to the telecom service providers directing them to provide details of their books of accounts for the previous three years to the CAG for audit. Following this, the Director General of Audit, Post and Telecommunication issued another notice in May 2010, requesting the telecom service providers to provide the required information. The telecom service providers challenged these notices before the Telecom Telecom Disputes Settlement and Appellate Tribunal (TDSAT) as being in violation of the terms of the license agreement. The TDSAT allowed the challenge and quashed the notices, holding that under Clause 22.5 of the license agreement, an audit was permissible only if the DoT were to form an opinion that the accounts submitted by the service providers were inaccurate and misleading, which was not done in the instant case. The DoT filed appeals before the Supreme Court, which were clubbed with the writ petitions filed by AUTSP and heard together.

The Supreme Court dismissed the writ petitions and allowed the appeals, grounding its reasoning in the powers of the CAG under the Constitution. In order to appreciate the reasoning of the Court, a brief overview of these powers is in order (discussed in paras 33-36 of the judgment). The office of the Comptroller and Auditor General of India derives its power from a relatively lesser-known provision of the Constitution – Article 149, the relevant portion of which reads as follows:


The Comptroller and Auditor General shall perform such duties and exercise such powers in relation to the accounts of the Union and of the States and of any other authority or body as may be prescribed by or under any law made by Parliament (…)” [emphasis supplied]


In furtherance of this Article, Parliament in 1971 enacted the CAG Act, which outlines the CAG’s powers, functions and the procedure for the exercise thereof in detail. Section 16 of the CAG Act specifically deals with the CAG’s functions in relation to the Consolidated Fund of India (CFI):


It shall be the duty of the Comptroller and Auditor-General to audit all receipts which are payable into the Consolidated Fund of India and of each State and of each Union territory having a Legislative Assembly and to satisfy himself that the rules and procedures in that behalf are designed to secure an effective check on the assessment, collection and proper allocation of revenue and are being duly observed and to make for this purpose such examination of the accounts as he thinks fit and report thereon.


One of the objections raised by AUTSP was regarding the scope of the CAG’s powers under Article 149. It was strenuously argued that the words “any other authority or body” had to be read ejusdem generis with the preceding words “of the Union and of the States”, and could therefore only be intended to cover Government authorities or bodies, thus excluding private companies from the scope of the CAG’s audits (much like, for instance, in the case of Article 12, where the term “other authorities”, in the context of fundamental rights obligations, has been read narrowly to cover only State-like entities). In a great example of judicial craftsmanship, Radhakrishnan, J. uses Article 266 of the Constitution to reject AUTSP’s argument, holding that the license fees paid by the telecom service providers would accrue to the CFI and thus be amenable to audit by the CAG under Article 149:


Article 266 says, all the public moneys received by or on behalf of the Government of India shall be credited to CFI. CAG can carry out examination into the economy, efficacy and effectiveness with which the Union of India has used its resources, and whether it has realized the entire licencee fee, spectrum charges and also whether the Union of India has correctly carried out the audit under Clauses 22.5 and 22.6 of UAS Licence Agreement. CAG’s examination of the accounts of the Service Providers in a Revenue Sharing Contract is extremely important to ascertain whether there is an unlawful gain to the Service Provider and an unlawful loss to the Union of India, because the revenue generated out of that has to be credited to the Consolidated Fund of India.”         (para 41)


Having thus firmly established the CAG’s competence to audit private firms in cases involving revenue-sharing arrangements with the Government, the Court then easily dismisses the challenge to the TRAI notice and Rule 5, holding them to be in consonance with the CAG Act and Article 149:


Rule 5 obliges every service provider to produce all such books of accounts or documents referred to in sub-rule (1) of Rule 3 so that the CAG can carry out audit entrusted to it by virtue of the powers conferred under Article 149 read with Section 16 of Act of 1971. Rule 5 only manifests conferment of powers upon CAG in relation to the accounts of bodies in the nature of private service providers which we have already found is consistent with Article 149 of the Constitution.”          (para 49)


The Court then proceeds to set aside the order of the TDSAT, which it holds was incorrectly premised on the assumption that the CAG audit was being carried out in furtherance of Clause 22.5 of the license agreement. It holds that the impugned notices were in fact issued in furtherance of the power in Clause 22.3 of the license agreement, which did not require the DoT to form any opinion or assign any reasons, and were hence not bad in law. The net effect is that the telecom service providers are now required to comply with the notices issued by TRAI and DoT and hand over their books of account to the CAG for inspection.

The implications of the judgment are significant. Every project or service carried out under public-private partnership, involving a revenue sharing model, will now be  subject to a CAG audit. There have been previous examples of CAG audits and inspections of private companies’ books accounts: most prominent from recent memory are the power distribution companies in Delhi and Reliance Industries’ Krishna-Godavari basin gas exploration, but these were carried out in a haze of legality with the threat of litigation looming large. With this authoritative pronouncement, the Supreme Court has cleared the way for large-scale audits of such projects.

More interesting is the subtle, but significant, shift of the power balance in the Constitutional administrative machinery that the Supreme Court has advanced through this judgment. In para 34, Radhakrishnan, J. declares the CAG’s powers under the Constitution to be a part of its basic structure, thereby preventing the Government from taking away these powers by legislation or Constitutional amendment:


Duties and powers conferred by the Constitution on the CAG under Article 149 cannot be taken away by the Parliament, being the basic structure of our Constitution (…)”


The Supreme Court seems to be implying doubts about Parliament’s ability to carry out effective and corruption-free governance, continuing its trend from recent years where it has taken the initiative to oversee investigations into scams and clean up electoral politics, simultaneously been pushing for a greater role for Constitutional authorities like the Election Commission and the CAG. The thread of good governance and public trust runs clearly through the judgment. Right at the beginning (para 3) Radhakrishnan, J. quotes from the 2G judgment and the Presidential Reference on allocation of spectrum:


We have to examine the above-mentioned issue in the light of the various constitutional, statutory and licensing provisions, bearing in mind the fact that we are dealing with “spectrum”, which is universally treated as a scarce finite and renewable natural resource, the intrinsic utility of that natural resource has been elaborately considered by this Court in Centre for Public Interest Litigation and others v. Union of India (…) and in (…) Natural Resources Allocation, in Re: Special Reference No.1 of 2012 (…). This Court reiterated that the spectrum as a natural resource belongs to the people, though State legally owns it on behalf of its people because State benefits immensely from its value.


The Court returns to the theme of the State as custodian, whether of natural resources or public funds, at several points in the judgment. However, by empowering itself and other Constitutional authorities to be keepers of the public trust, the Supreme Court is shifting the delicate balance of power that exists between different institutions of government. Whether this will ensure better governance in the longer run, only time will tell.

(Manish is a legal researcher based in Delhi. The views expressed are his own.)

Delhi High Court rules on Article 21 and Access to Medicine

Today, the Delhi High Court issued an important judgment on Article 21, the right to health, intellectual property and access to medicine. The issue in Mohd Ahmed v. Union of India is set out in the first paragraph:

“Whether a minor child born to parents belonging to economically weaker section of the society suffering from a chronic and rare disease, gaucher, is entitled to free medical treatment costing about rupees six lakhs per month especially when the treatment is known, prognosis is good and there is every likelihood of petitioner leading a normal life.”

The petitioner, Mohd Ahmed, was/is suffering from a rare disease, called the “Gaucher Disease”. There is a known treatment – Enzyme Replacement Therapy – which, however, is extremely expensive, and the drugs required for it are manufactured by only three pharmaceutical companies. The reason for the high expense, as the Court explains, is the rarity of the disease – because the disease is so uncommon, pharmaceutical companies argue that they can only recoup their research and development costs by pegging the price at extremely high levels. In the language of IP, such drugs are known as “orphan drugs“.

It was argued on behalf of the petitioner that failing to provide him with treatment would be a violation of his right to health (read into Article 21 via the right to life). On behalf of the Delhi government, it was argued that there were various exceptions to the right to health – in particular, exceptions based upon the resources available to the government, and its own best judgment of what kind of healthcare it would prioritise. What this meant was that no individual person could make an enforceable constitutional claim upon the State for medicine – rather, it was up to the State to allocate its resources in a manner that ensured the best and widest possible healthcare to as many people as possible.

Thus, the basic issue in this case was: (given that the right to health has been read into Article 21), what amount of deference ought a Court accord to the legislature’s determination that the lack of resources do not allow it to provide medical treatment to a particular person? And, as a corollary, does the degree of deference change with the nature of the case, turning upon factors such as the patient’s poverty, the seriousness of the disease, the availability of treatment, and so on.

In its reasoning, the Court found that although a number of countries had specific policies in place to address the problems of orphan drugs, no such policy existed in India (paragraph 38 – 42). Because of the separation of powers, however, the Court could not require the legislature to draft a law or frame a policy. (paras 44 – 45). The only question, then, was the constitutional question: “does the government owe a constitutional duty to provide free medical treatment to the petitioner suffering from a rare and a chronic disease, even though the treatment is expensive and recurring.” (Para 46)

The Court, after referring to Article 21, extensively cited the ICESCR (see Article 12), and General Comment 14 to the ICESCR, which fleshes out in detail the content of the right to health. Citing the prior cases of Paramanand Katara v. Union of India and Paschim Bangal Khet Mazdoor Samiti, the Court held:

Every person has a fundamental right to quality health care — that is affordable, accessible and compassionate.” (Para 59) The Court conceded that availability of resources was an important factor – and that in light of competing claims like education and defence, it could not “direct that all inhabitants of this country be given free medical treatment at state expense.” (Paras 62 – 63) Nonetheless, crucially – and directly echoing the ICESCR’s jurisprudence, that every right has a minimum core which is not subject to resource constraints and is directly enforceable – the Court held:

“By virtue of Article 21 of the Constitution, the State is under a legal obligation to ensure access to life saving drugs to patients. A reasonable and equitable access to life saving medicines is critical to promoting and protecting the right to health. This means that Government must at the bare minimum ensure that individuals have access to essential medicines even for rare diseases like enzyme replacement for Gaucher disease. Availability of a very expensive drug virtually makes it inaccessible.” (Para 68)


“Government cannot cite financial crunch as a reason not to fulfil its obligation to ensure access of medicines or to adopt a plan of action to treat rare diseases. In the opinion of this Court, no government can wriggle out of its core obligation of ensuring the right of access to health facilities for vulnerable and marginalized section of society.” (Para 69)

And, in conclusion:

“Although obligations under Article 21 are generally understood to be progressively realizable depending on maximum available resources, yet certain obligations are considered core and non-derogable irrespective of resource constraints. Providing access to essential medicines at affordable prices is one such core obligation.” (Paragraph 87)

Today’s judgment does two important things. First, it clarifies the content of the right to health under Article 21. One of the signal problems with the Court’s Article 21 jurisprudence over the last twenty years has been the lack of clarity, and a cavalier, laissez-faire approach towards this constitutional provision. By more or less expressly incorporating the ICESCR – with its concomitant principles of what the scope of the right is, what the obligations of the government are (see, e.g., General Comment 14), and the adjudicatory principles of progressive realization, minimum core and non-derogable implementation with respect to the most marginalised sections of society, the Court brings determinate standards to its Article 21/right to health jurisprudence. This would be helpful in future cases involving the right to health.

Secondly, by expressly invoking the constitutional right to health in a case where the driver of inaccessibility is the regime of intellectual property (patent, in this case), the Court lays the foundations of a jurisprudence that has been gaining ground in many countries: the constitutionalisation of IP law. That is to say, although the Court does not deal with IP issues in this case, it makes it clear that the Constitution is relevant. This is important because of a divide within the IP regime: IP maximalists argue that the balance between various rights and interests – the right of the inventor to profit from his work, the interest of the public in fostering more innovation and creativity by protecting inventors’ rights, and the public’s competing right to access medicine – are all balanced within the IP regime, through inbuilt exceptions such as compulsory licensing. However, of late, there has been a critique of this position. Scholars like Helfer and Birnhack have argued that basic human rights such as the right to free expression and the right to health ought to be invoked to determine the scope of the IP regime and its exceptions. So, for example, when we’re dealing with question of photocopying school/college textbooks, and the question of how much copying constitutes “fair use” under the copyright regime, these scholars argue that the right of free expression and the right to education should be invoked in determining how much use is fair use (as opposed to the traditional analysis, which focuses only on what level of exceptions would foster greatest innovation, without considering problems of individual access (that might be barred because of poverty, unaddressed y the market).

By invoking the specific, individual right to health in a case where medicines have been priced out because of IP, the Court thus opens up the possibility of using constitutional law and constitutional rights in subsequent cases, where IP is implicated much more directly: for example, cases of compulsory licensing, or the scope of S. 3(d). Invoking the right to health, for example, it could be argued that in S. 3(d) of the Patent Act (see here), which denies patents for “the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy  of that substance…”and is aimed at preventing evergreening, the term “known efficacy” should be read strictly so as to ensure that essential medicines do not remain perpetually behind exorbitant patent paywalls. Whether that step is taken by the Court in future cases, of course, remains to be seen.

(Interestingly, today’s decision is similar in many respects to the famous South African case, Treatment Action Campaign v. Minister for Healthwhich is well worth a read)


NALSA v. UoI and Koushal v. Naz: Acts against the order of nature?

In the last post, I argued that after NALSA v. UoIKoushal v. Naz ought to be reconsidered, since in rejecting the distinction between sexual conduct and sexual identity, NALSA removes the intellectual foundation upon which the entire Koushal decision was based. In conversation with Danish since then, it seems to me that we might not even need to go that far. Here is how.

While Koushal v. Naz is commonly understood to have recriminalized homosexual intercourse in India, it did not actually do quite that. The Delhi High Court, in Naz Foundation v. NCT, held that insofar as S. 377 criminalizes same-sex intercourse between consenting adults, it is unconstitutional. Recall, however, that S. 377 does not criminalize homosexual intercourse in so many words. It criminalizes “carnal intercourse against the order of nature.” The conceptual middle-step, of course, requires associating homosexual intercourse with carnal intercourse against the order of nature.

And, interestingly, that is a finding that the Supreme Court in Koushal never made. Let us go back to the notorious Paragraph 42:

“Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. What Section 377 does is merely to define the particular offence and prescribe punishment for the same which can be awarded if in the trial conducted in accordance with the provisions of the Code of Criminal Procedure and other statutes of the same family the person is found guilty. Therefore, the High Court was not right in declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution.”

So there is nothing in Paragraph 42 that indicates what “carnal intercourse against the order of nature” is, and the Court makes no finding on the point. True, the Court refers to precedents on what constitutes “sodomy”, and so on, but it does not incorporate any prior definition into its verdict. Now consider Paragraph 51:

“Respondent No.1 attacked Section 377 IPC on the ground that the same has been used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community. In our opinion, this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section.”

Here again, it’s not so much as what is stated, but what is omitted, that is significant. The Court specifically refers to the LGBT community, and again refuses to rule on whether the LGBT community is covered by the ambit of 377.

Indeed, if there is one thing that emerges out of all the precedents that the Court cites, it is that there’s no consensus on what the term means. One case holds that all non-procreative sex is against the order of nature, while another holds that that particular theory is outdates. Another finds oral sex to fall within the ambit of 377. Indeed, in paragraph 36, the Court specifically observes:

“The understating of acts which fall within the ambit of Section 377 has changed from non-procreative (Khanu v. Emperor) to imitative of sexual intercourse (Lohana Vasantlal v. State AIR 1968 Guj 352) to sexual perversity (Fazal Rab v. State of Bihar AIR 1963, Mihir v. Orissa 1991 Cri LJ 488).”

So, is homosexuality “perverse”? Again, the Court refuses to make a finding on point.

Consequently, the upshot of Koushal v. Naz is that although it is no longer the case that S. 377 expressly excludes homosexuals, it is also not the case that S. 377 includes them. That judgment is one to be made by later courts.

NALSA v. UoI is the judgment that does so.

The NALSA Court understands this, because in paragraph 18, it holds that because of Koushal, it will not rule on the constitutionality of S. 377. That, however, leaves it entirely free to interpret 377.

Now, in paragraph 20, the NALSA Court notes:

Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom.”

Notice that this paragraph is not limited to transsexuals. It refers to sexual orientation as such (especially because it uses the phrase in conjunction with “gender identity”). Now if sexual orientation is integral to personality, and a basic aspect of self-determination (and nobody – presumably not even the Koushal bench – would deny that same-sex intercourse is expressive of sexual orientation) – in what sense can we say that expressing your personality and self-determination is “against the order of nature”?

The Court then cites a number of international conventions and legal instruments, all of which prohibit discrimination on the basis of gender identity as well as sexual orientation. In paragraph 55, it holds that discrimination on grounds of sexual orientation or gender identity violates the equal protection of laws. And in paragraph 77 – the last paragraph of Justice Radhakrishnan’s judgment, he holds that:

We, therefore, conclude that discrimination on the basis of
sexual orientation or gender identity includes any discrimination, 
exclusion, restriction or preference, which has the effect of
nullifying or transposing equality by the law or the equal protection
of laws guaranteed under our Constitution.”

Now admittedly, Justice Radhakrishnan makes it clear that the scope of his judgment is limited to the rights of transsexuals. But surely it defies logic to argue that discrimination on the basis of sexual orientation is prohibited in the case of transsexuals, but allowed in all other cases? In other words, the logic of the NALSA judgment seems to make it clear – even if it does not say so in express terms – the “sexual orientation”, per se, is a protected category. And once again, recall that Koushal made no finding on that specific point.

In this sense, NALSA v. UoI can be taken to be a clarification of KoushalKoushal holds that it is constitutional to criminalise carnal intercourse against the order of nature. NALSA holds that sexual acts that are characterised purely in terms of the sexual orientation are not acts against the order of nature. In effect, this is the same as the holding of the Delhi High Court. However, while the Delhi High Court held that 377 is unconstitutional insofar as it criminalises same-sex intercourse between consenting adults – the logic of NALSA requires the conclusion that 377 is constitutional only because it does not criminalise same-sex intercourse between consenting adults. In that case, then – because NALSA is not a case about homosexuals, and therefore not precedent on that point – perhaps the next step is to approach the Court for a judgment clarifying the scope of S. 377 as applied to homosexuals.

None of this, of course, is an endorsement of anything in Koushal, or anything that Koushal stands for. The act/identity distinction in Koushal remains flawed and indispensable. Its cavalier treatment of the “so-called rights of a minuscule minority” remains indefensible. But insofar as we’re considering the present state of law, it is perhaps arguable that, reading Koushal and NALSA together, same-sex intercourse between consenting adults can no longer be criminal in India.


NALSA v. UoI: The Supreme Court on transsexuals, and the future of Koushal v. Naz

Today, in NALSA v. UoIthe Supreme Court issued a landmark ruling recognising transsexuals as a third gender, and upholding their rights to equality (Article 14), non-discrimination (Article 15), expression (Article 19(1)(a) and autonomy (Article 21). The judgment involves a wide-ranging discussion of international law and domestic legislation in other countries, engages reams of evidence of actual discrimination against transsexuals in Indian society, and discusses the idea of human rights. It also, as I shall argue, entirely destroys the foundation of Koushal v. Naz, last December’s decision on LGBT rights.

In Paragraph 11 of the case, Justice Radhakrishnan defines “transgender” as an “umbrella term for persons whose gender identity, gender expression or behavior does not conform to their biological sex.” After a brief historical excursion into the history of the transgender community in India, he observes, in Paragraph 17, that S. 377 was brought in at at time when transgenders were thought to come within its ambit, and then, in paragraph 18, he notes that “Section 377, though associated with specific sexual act, highlighted certain identitiesand was used as an instrument of harassment and physical abuse…” In the same paragraph, he also holds that in light of Koushal v. Naz, the Court will here “express no opinion on [its constitutionality].” As we will see, however, the matter is not quite so simple.

Indeed, issues of gender identity and sexual orientation are inextricably bound up with each other through the judgment, and the Court – wisely – makes no effort to separate them. Immediately after his analysis of S. 377, in a section titled “Gender Identity and Sexual Orientation”, Justice Radhakrishnan begins by noting that “gender identity is one of the most fundamental aspects of life… it refers to each person’s deeply felt internal and individual experience of gender… including the personal sense of the body which may involve a freely chosen modification of bodily appearances or functions by medical, surgical or other means and other expressions of gender, including dress, speech and mannerisms.” (Para 19)

Notice here how gender identity and expressing that identity through conduct, such as dress and speech, are inseparable. This is a point we shall return to.

Justice Radhakrishnan then observes that “each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom.” (Paragraph 20) This sets the tone for the rest of his judgment, where the two concepts – although distinct – are run together for the purposes of claims to rights.

After referring to international legal principles and foreign judgments, that are deeply solicitous of transgender rights (paras 21 – 42), Justice Radhakrishnan cites evidence (ironically, of a similar nature to that cited in Koushal) of widespread oppression against transgenders in India. (Paragraphs 45 – 46) He follows this up with an account of India’s obligations to follow international human rights law – and, in the absence of Indian legislation, engages in a kind of incorporation by reference, to argue that the international conventions ought to be read into Articles 14, 15, 19 and 21 (Paragraph 53). Armed with this, he has no trouble in holding that the “non-recognition of Hijras/transgender persons denies them equal protection of law… thereby leaving them extremely vulnerable to harassment, violence and sexual assault.” (Paragraph 55) Similarly, he argues that the point of Article 15’s non-discrimination guarantee is to prevent differential treatment of persons “for the reason of not being in conformity with stereotypical generalizations of binary genders… thereforethe discrimination on the ground of sex under Articles 15 and 16 includes discrimination on the ground of gender identity.” (Paragraph 59) Because of the historic discrimination against transsexuals, he also holds that the State must provide them with affirmative action under Article 16(4) of the Constitution.

The most interesting part of the judgment, however, is Justice Radhakrishnan’s analysis of Article 19(1)(a). He holds that “Article 19(1)(a) of the Constitution states that all citizens shall have the right to freedom of speech and expression, which includes one’s right to expression of his self-identified gender.” (Paragraph 62) After citing a few American cases on point, we come to the heart of the judgment, that is, Paragraph 66:

Gender identity… lies at the core of one’s personal identity, gender expression and presentation and therefore, it will have to be protected under Article 19(1)(a) of the Constitution. A transgender’s personality could be expressed by the transgender’s behavior and presentation. State cannot prohibit, restrict or interfere with a transgender’s expression of such personality, which reflects that inherent personality.” 


The values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to the members of the transgender community under Article 19(1)(a)… and the State is bound to protect and recognize those rights.” 

A standard Article 21 analysis follows (Paragraph 67 onwards), but this would be the ideal point of departure to discuss NALSA v. UoI and Koushal v. Naz.

Recall that in Koushal v. Naz, it was argued that S. 377, insofar as it criminalises same-sex intercourse between consenting adults, violates their rights under Articles 14 and 15. In Paragraph 42 of Koushal, the Court rejects that argument. Let us excerpt the paragraph in full:

“Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different  classes and the people falling in the later category cannot claim that Section 377  suffers from the vice of arbitrariness and irrational classification. What Section  377 does is merely to define the particular offence and prescribe punishment for  the same which can be awarded if in the trial conducted in accordance with the  provisions of the Code of Criminal Procedure and other statutes of the same family the person is found guilty. Therefore, the High Court was not right in declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution.”

The Court’s argument here rests upon a tight conceptual distinction between conduct and identity. Under a normal Article 14 analysis, the Court would have had to examine the classification, examine the rational nexus to a State purpose, and then examine the legitimacy of that purpose. The Court dodged that entire chain of argumentation by holding that all S. 377 did was to classify not persons, but acts – acts of carnal intercourse against the order of nature, and those in accordance with the order of nature. Hence, Article 14 was never attracted. This also allowed the Court to dodge the Article 15 argument, and engage with the Delhi High Court’s analysis of “sexual orientation” coming within the meaning of the word “sex”, because there was no classification of persons at all. In one fell swoop, therefore, the Supreme Court saved itself the trouble of analysing S. 377 on the touchstone of either Article 14 or 15, and this entire edifice rested upon its distinction between a person’s acts/conduct, and her identity.

Only, this distinction is deeply flawed, and NALSA v. UoI exposes the flaw in stark and glaring terms. When it comes to sex and sexual orientation, your “identity” means nothing if you can’t express it. A law that targets conduct, conduct that is the very expression of identity, thereby targets identity itself. When, therefore, S. 377 outlaws homosexuals from engaging in same-sex intercourse, it doesn’t just criminalise a set of acts – in outlawing the most basic expression of one’s sexuality, it criminalises sexuality – and thereby, identity – itself. As Justice Kennedy observed in Lawrence v. Texas:

“When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”

Similarly, in Elane Photography, the Supreme Court of New Mexico observed, just last year, that:

“… when a law prohibits discrimination on the basis of sexual orientation, that law similarly protects conduct that is inextricably tied to sexual orientation.”

Once the conduct/identity distinction collapses, the entire edifice upon which Koushal v. Naz was raised collapses along with it. The Court cannot now dodge either Article 14 or Article 15. It must, if it wants to uphold S. 377, provide a legitimate state purpose and a rational nexus for a law criminalising homosexuals as a class, and it must expressly engage with the Delhi High Court’s argument.

And lastly, as NALSA v. UoI shows, there is a further issue of Article 19(1)(a) to be considered (incidentally, 19(1)(a) was argued before the Delhi High Court in Naz, but the Court felt it sufficient to decide the case on grounds of 14, 15 and 21). To the extent that Article 19(1)(a) protects core expressions of our identity – including our sexual identity – as the Court holds today, it must necessarily protect homosexuals in expressing their identity. So even if the Court doesn’t wish to collapse conduct and identity – even if it wishes to hold the two to be separate – the logic of NALSA v. UoI leads inexorably to the conclusion that at the very least, in criminalising conduct, S. 377 criminalises the expression of homosexual identity, and therefore suffers from a 19(1)(a) problem.

In sum: if the conduct/identity distinction dissolves, S. 377 violates Article 14 and 15, because in criminalising conduct, it criminalises identity. If the conduct/identity distinction remains, S. 377 violates Article 19(1)(a), because it criminalises conduct that is the expression of identity. Either way, under the logic of NALSA, it is unconstitutional.

All this, of course, does not touch the Court’s holding that gender identity is “integral to the dignity of an individual and is at the core of “personal autonomy” and “self-determination”, and is therefore also protected by Article 21. (Para 74) This, as well, is inconsistent with the analysis in Koushal v. Naz.

The operative paragraph – with its directions – can be found at the end of the judgment, Paragraph 129. Today’s judgment is progressive in the best sense of the term, and is to be lauded. Equally important, however, today’s judgment is based upon reasoning that is fundamentally at odds with the reasoning in Koushal v. Naz. If NALSA is rightly decided, then Koushal is wrong. Surely, then, the time is now right to rehear Koushal before a Constitution Bench, redeem the promise of full moral membership for all persons, regardless of their sexual orientation, that the Delhi High Court affirmed so eloquently five years ago, and turn the page on one of the darker chapters in the Supreme Court’s civil rights history.





Net Neutrality, Free Speech and the Indian Constitution – I

(This piece first appeared on the CIS website, here)

Net neutrality is rapidly becoming one of the most important issues facing internet governance and internet freedom today, and it is quite likely that it will soon raise issues of law and legal policy in India. In this post (and the next), I will discuss net neutrality, free speech and the Indian Constitution.

I will not here go into the debates surrounding the multiple meanings of the concept of “net neutrality” but take, for the purposes of this post, the following definition:

The idea that all Internet traffic should be treated equally is known as network neutrality. In other words, no matter who uploads or downloads data, or what kind of data is involved, networks should treat all of those packets in the same manner.

In other words, put simply, net neutrality requires the extant gatekeepers of the internet – such as, for instance, broadband companies – to accord a form of equal and non-discriminatory treatment to all those who want to access the internet. Examples of possible discrimination – as the quote above illustrates – include, for instance, blocking content or providing differential internet speed (perhaps on the basis of a tiered system of payment for access).

Net neutrality has its proponents and opponents, and I do not have space here to address that dispute. This post – and the next – are premised on the assumption that net neutrality is both an important and a desirable goal (this brief article in the Times of India provides a decent, basic primer on the stakes involved).

An example of net neutrality in practice is the American Federal Communications Commission’s Open Internet Order of 2010, which was the subject of litigation in the recently concluded Verizon v. FCCThe Open Internet order imposed obligations of transparency, no blocking, and no unreasonable discrimination, upon internet service providers. The second and third requirements were vacated by a United States Court of Appeals. The rationale for the Court’s decision was that ISPs could not be equated, in law, to “common carriers”. A common carrier is an entity that offers to transport persons and/or goods in exchange for a fee (for example, shipping companies, or bus companies). A common carrier is licensed to be one, and often, one of the conditions for license is an obligation not to discriminate. That is, the common carrier cannot refuse to carry an individual who is willing and able to pay the requisite fees, in the absence of a compelling reason (for example, if the individual wishes the carrier to transport contraband). Proponents of net neutrality have long called for treating ISPs as common carriers, a proposition – as observed above – was rejected by the Court.

With this background, let us turn to India. In India, internet service providers are both state-owned (BSNL and MTNL), and privately-owned (Airtel, Spectranet, Reliance, Sify etc). Unlike many other countries, however, India has no network-neutrality laws. As this informative article observes:

The Telecom Regulatory Authority of India (TRAI), in its guidelines for issuing licences for providing Unified Access Service, promotes the principle of non-discrimination but does not enforce it… the Information Technology Act does not provide regulatory provisions relating to Internet access, and does not expressly prohibit an ISP from controlling the Internet to suit their business interests.”

In the absence of either legislation or regulation, there are two options. One, of course, is to invoke the rule of common carriers as a common law rule in court, should an ISP violate the principles of net neutrality. In this post (and the next), however, I would like to analyze net neutrality within a constitutional framework – in particular, within the framework of the constitutional guarantee of freedom of speech and expression.

In order to do so, two questions become important, and I shall address them in turn. First, given that most of the ISPs are privately owned, how does the Constitution even come into the picture? Our fundamental rights are enforceable vertically, that is, between individuals and the State, and not horizontally – that is, between two individuals, or two private parties. Where the Constitution intends to depart from this principle (for instance, Article 15(2)), it specifically and expressly states so. As far as Article 19 and the fundamental freedoms are concerned, however, it is clear that they do not admit of horizontal application.

Yet what, precisely, are we to understand by the term “State”? Consider Article 12: 

“In this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

The key question is what, precisely, falls within the meaning of “other authorities”. The paradigmatic example – and this is something Ambedkar had in mind, as is evidenced by the Constituent Assembly Debates – is the statutory corporation – i.e., a company established under a statute. There are, however, more difficult cases, for instance, public-private partnerships of varying types. For the last fifty years, the Supreme Court has struggled with the issue of defining “other authorities” for the purposes of Part III of the Constitution, with the pendulum swinging wildly at times. In the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, a 2002 judgment by a Constitution bench, the Court settled upon the following definition:

“The question in each case would be whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.”

Very obviously, this dooms the ISP argument. There is no way to argue that ISPs are under the pervasive financial, functional and administrative domination or control of the State. If we step back for a moment, though, the Pradeep Kumar Biswas test seems to be radically under-inclusive. Consider the following hypothetical: tomorrow, the government decides to privatize the nation’s water supply to private company X. Company X is the sole distributor of water in the country. On gaining control, it decides to cut off the water supply to all households populated by members of a certain religion. There seems something deeply wrong in the argument that there is no remedy under discrimination law against the conduct of the company.

The argument could take two forms. One could argue that there is a certain minimum baseline of State functions (ensuring reasonable access to public utilities, overall maintenance of communications, defence and so on). The baseline may vary depending on your personal political philosophy (education? Health? Infrastructure?), but within the baseline, as established, if a private entity performs a State function, it is assimilated to the State. One could also argue, however, that even if Part III isn’tdirectly applicable, certain functions are of a public nature, and attract public law obligations that are identical in content to fundamental rights obligations under Part III, although their source is not Part III.

To unpack this idea, consider Justice Mohan’s concurring opinion in Unnikrishnan v. State of Andhra Pradesh, a case that involved the constitutionality of high capitation fees charged by private educational institutions. One of the arguments raised against the educational institutions turned upon the applicability of Article 14’s guarantee of equality. The bench avoided the issue of whether Article 14 directly applied to private educational institutions by framing the issue as a question of the constitutionality of the legislation that regulated capitation fees. Justice Mohan, however, observed:

What is the nature of functions discharged by these institutions? They discharge a public duty. If a student desires to acquire a degree, for example, in medicine, he will have to route through a medical college. These medical colleges are the instruments to attain the qualification. If, therefore, what is discharged by the educational institution, is a public duty that requires… [it to] act fairly. In such a case, it will be subject to Article 14.

In light of Pradeep Kumar Biswas, it is obviously difficult to hold the direct application of the Constitution to private entities. We can take Justice Mohan, however, to be making a slightly different point: performing what are quintessentially public duties attract certain obligations that circumscribe the otherwise free action of private entities. The nature of the obligation itself depends upon the nature of the public act. Education, it would seem, is an activity that is characterized by open and non-discriminatory access. Consequently, even private educational institutions are required to abide by the norms of fairness articulated by Article 14, even though they may not, as a matter of constitutional law, be held in violation of the Article 14 that is found in the constitutional text. Again, the content of the obligation is the same, but its source (the constitutional text, as opposed to norms of public law) is different.

We have therefore established that in certain cases, it is possible to subject private entities performing public functions to constitutional norms without bringing them under Article 12’s definition of the State, and without the need for an enacted statute, or a set of regulations. In the next post, we shall explore in greater detail what this means, and how it might be relevant to ISPs and net neutrality.

New Pages on the Blog: A Summary

Over the last few weeks, I’ve tried to expand the reach of the blog by adding some new pages. Most of these are under construction, and constantly being updated. Here is a quick summary:

The book reviews page brings together all the book reviews on this blog. So far, we’ve reviewed Agamben’s State of Exception, Waldron’s The Harm in Hate Speech, and Narrain & Suresh (eds.), The Judicial Nineties.

The Civil Liberties Database aims to provide a comparative constitutional law resource for civil liberties lawyers. It provides links to summaries and full texts of important civil liberties judgments from the United States, South Africa, Canada, the United Kingdom, the European Court, international tribunals (where applicable) and so on. The Database is classified by liberties (e.g., free speech, discrimination law etc.), and by sub-categories (pornography, hate speech, commercial speech etc.). The free speech section is the most detailed so far, and others are under construction.

Free Speech Watch aims to record free speech violations throughout India, as they happen.

The Regressive Laws Database page, which is very much in its infancy, aims to compile a list of particularly regressive Indian laws (such as the marital rape exception, S. 377 etc.), with brief explanations of how they violate essential constitutional guarantees, and progressive political thought more generally.

Lastly, Theorising Rights provides links to classical texts in political philosophy, that are the foundations of how we think about our civil rights and liberties. We have recently added some brilliant feminist pieces by Nancy Fraser, Catherine MacKinnon and Carole Pateman, Marx’s original critique of liberal rights in On the Jewish QuestionRonald Dworkin on liberalism, and two full-length books: Judith Butler’s Precarious Life (on national security and emergency powers), and Sheldon Wolin’s Democracy Incorporated (on democracy and the economic basis of society).

As mentioned above, all the pages are works-in-progress – so check back for continuing updates!

Reservations, Equality and the Constitution – X: Untidy Endnotes

Let us try to sum up the long and tortuous judicial history of reservations in India. Conceptually, I suggest that we can divide this history into three distinct phases. The first phase, that lasted from 1950 (Champakam Dorairajan to N.M. Thomas), can be called the “colour-blind phase”. The judges held that the vision of equality that the Constitution subscribes to is “colour-blind”, that is, it refuses to take any account of caste, race, sex, religion etc. in the distribution of benefits and burdens. Articles 16(4) and – after Champakam, 15(4) – were constitutionally mandated exceptions to the rule and, as such, were to be construed narrowly, being departures from the norm. Cases like Balaji, which imposed a 50% cap on reservations, best embodied this view of the Constitution.

In N.M. Thomas, the Court shifted to a group-subordination view of equality, according to which groupings such as caste must be taken into account to achieve genuine equality, since historically, these groups have been the site and the locus of sustained discrimination. In holding that Article 16(4) is not an exception to, but a facet of 16(1), the Court effectively held that 16(1) itself – and thus, the equality code as a whole – is committed to the group-subordination vision. As we have seen, it is unclear whether this view ever commanded a majority of the judges in a decision.

Post Indra Sawhney, in the 90s and the 2000s, the pendulum swung back towards the middle. Now the Court held that while 16(1) was about colour-blindness, 16(4) was about group subordination, and both were independent guarantees of equality that had to be balanced against each other. So 16(4) was no longer an exception to 16(1), but neither was 16(1) just a more abstract way of expressing 16(4) – rather, both constituted different elements of the overall 14-15-16 equality code.

This view of two conflicting vision of equality, to be held and balanced against each other, ultimately permitted Parliament a wide degree of latitude both in devising schemes of reservations and justifying them by amending the Constitution itself. This was done through the introduction of Articles 16(4A), 16(4B) and 15(5), the first two of which were expressly introduced to overcome adverse Court decisions. By constitutionalising the carry-forward rule, the catch-up rule and educational reservations for OBCs, Parliament repeatedly shifted the balance towards empowering identified groups, at the cost of formal individual equality. These amendments survived basic structure scrutiny because the Court, having already held that the Constitution was committed to both visions, could hardly forbid Parliament from shifting the balance this way or that. Presently, the “private, unaided educational institutions” aspect of 15(5) is under basic structure scrutiny. The outcome of the case will be interesting, because it will demonstrate how far the Court is willing to let Parliament go with modifying the existing balance that it first invoked in Indra Sawhney.

We have also seen that group-based reservations are justifiable on two distinct grounds. One theory holds that the ultimate goal of the society is to get to a point where group identity becomes irrelevant; but that point can be reached only by using group identity as a locus for remedial programs, aimed at eradicating a present inequality that has been caused by historical circumstances. This theory continues to value the individual as the ultimate subject of its solicitude, and views group-based action as a necessary evil. On the other hand, the opposite theory values the group for itself, and views reservations as, ultimately, designed to achieve equality not between individuals, but between groups.

The two theories, as we have seen, clashed in the Court’s last major reservation case, Ashoka Kumar Thakur, and the Court emphatically asserted that the Constitution was concerned, ultimately, with bringing about a casteless society. The judicially-crafted doctrine of the creamy layer demonstrates this commitment. The creamy layer denies reservations to those individuals belonging to identified beneficiary groups (on the basis of caste) who do not share the social and educational backwardness that has provided the ground for singling out that caste in the first place. Notice that if ultimate group equality was the goal of the Constitution, then the creamy layer doctrine would be entirely uncalled for.

This, however, raises the following interesting point. In Ashoka Kumar Thakur, the Court expressly rejected the creamy layer doctrine when it comes to Scheduled Tribes and Scheduled Castes. This suggests that within the group subordination vision of equality, both subsidiary visions – the one of an eventually casteless society, that seeks to dissolve groups, and the one of a society in which groups exist based on equality – are at play. Now, this conceivably makes sense in the case of Scheduled Tribes. Arguments from multiculturalism and pluralism provide a plausible justification for preserving and strengthening the identity of defined sub-groups with their own particular ways of life (although, admittedly, arguments by feminists focus on inter-se inequalities within such groups – see, e.g., Benhabib, The Claims of Culture).  But on what basis – if the aim is a casteless society – is there a distinction between Scheduled Castes and other castes? Do Scheduled Castes have a claim on group preservation that non-Scheduled Castes don’t? The Court, in refusing to extend the creamy layer doctrine to Scheduled Castes, cites Constitutional provisions that define the group – but in so doing, it creates a doctrinal and conceptual incoherence, where different standards of equality are applied to analytically identical groups.

The selective application of the creamy layer doctrine represents a deeper conceptual problem with the Court’s reservations jurisprudence. The Court has never clearly stated what the ultimate goal is; if the goals are multiple (substantive equality? casteless society? equivalent representation?), then how do they relate to one another? Most importantly, how does the methodology (such as the 21-point Mandal Commission) relate to – or even, help in identifying – the goals at stake? A failure to address and answer these questions is largely responsible for the profusion of constitutional amendments that have brought in highly concrete administrative regulations into the domain of constitutional law, as well as the conflicting signals that have repeatedly issued from the bench, over the last two decades.

One way of doing this, as was suggested in the last post, is to adopt a form of intermediate scrutiny in adjudicating reservation cases. If the ultimate goal is, indeed, a casteless society, then caste-based classifications that ground the distribution of benefits and burdens, are at least presumptively suspect. Because the Constitution expressly envisages group-based reservations, though, it is perhaps not appropriate to hold the government to the level of strict scrutiny. Intermediate scrutiny solves both problems. It requires the government to demonstrate a substantial interest (which, following Ashoka Kumar Thakur, would probably be the eventual achievement of a casteless society), and to then show that there is a reasonable fit between its scheme of reservations, and the ultimate goal. Indeed, as was suggested in the last post, the creamy layer – without the Court quite knowing it – has been serving as just this kind of intermediate scrutiny. Whether or not the Court expressly adopts intermediate scrutiny at any point, there is, at the very least, an urgent need for doctrinal and conceptual clarity in the reservations jurisprudence: what values are at stake, and what are the permissible means of achieving the values, that take into account individual rights as well as historic and continuing social discrimination? Perhaps the next basic structure case will be the case that achieves that.

Reservations, Equality and the Constitution – IX: Ashoka Kumar Thakur and Tiers of Scrutiny

The concurring opinions of Pasayat J. and Bhandari J. do not, in substance, depart from the holding in the Chief Justice’s opinion. Both opinions emphasize that reservations for socially and educationally backward classes must remove the creamy layer, if they are to be constitutional. This, as we discussed in our last post, shows that the ultimate subject of analysis, as far as SEBC equality goes, is not the backward class, but the individual. And indeed, Bhandari J. says as much in his opinion.

Two aspects of Bhandari J.’s opinion stand out. First, he severs “private, unaided institutions” from Article 15(5), holding that by a complete exclusion of Article 19(1)(g), subjecting private, unaided institutions to reservations violates the basic structure. Whatever the merits of this argument, it is important to note that no private institution appeared in this case, the question was not before the Court, and the issue was not argued. For a judge to rule on an issue that is not before the Court and is not argued by the lawyers, in an adversarial legal system, is judicial bad form.

Secondly, and more pertinently, Bhandari J. cites a raft of constituent assembly debates, as well a series of precedents, to argue that the ultimate goal of the Constitution is to achieve a casteless society, and the constitutionality of reservation policies must be judged by that standard. In so doing, he seeks to reject a caste-based identification of socially and educationally backward classes, and shift to an economic test, although he cannot do so because of the binding opinion of the nine-judge bench in Indra Sawhney.

The observations, however, are a good point of departure to examine the last remaining issue. As we discussed in the last post, it was argued before the Court that the American doctrine of strict scrutiny ought to be applied to reservations. As we saw, the Chief Justice rejected the proposition out of hand, on the ground that the American and Indian constitutions are drafted differently. This, however, is not reason enough in itself, because the American Constitution makes no mention of strict scrutiny – it is entirely a judicial creation. In order to understand the stakes, then, a brief digression into American doctrine would be appropriate.

The Fourteenth Amendment to the American Constitution, passed in the aftermath of the Civil War, guarantees to all citizens “the equal protection of laws”. The question then becomes: what constitutes constitutionally impermissible unequal treatment?

American courts answer this question by subjecting classifications to three different tiers of scrutiny, based on the manner of the classification in question. The first level is “rational review” scrutiny. A classification is permissible as long as the government can establish a goal with which it is rationally connected (notice the similarities with a standard Article 14 analysis).

The second level is “intermediate scrutiny”. This is primarily used in cases of sex discrimination. Intermediate scrutiny requires the government to show a “substantial interest”, that is “reasonably” served by the classification in question. In many of the sex equality cases, sex-based classifications have been invalidated because they have been found to be based on outmoded stereotypes about the role of men and women in society (such as, for instance, that women are required to be the primary care-givers) – the perpetuation of which is not taken to be a goal that the government has a substantial interest in.

The third level is “strict scrutiny”, which applies to “suspect classes”, such as race. A race-based classification, then, must demonstrate a compelling governmental interest, and must also be narrowly tailored – that is, it must be the least restrictive way of achieving the compelling interest at stake. There has been bitter controversy between the liberal and conservative wings of the American Supreme Court as to whether strict scrutiny ought to apply to race-based classifications that are remedial or beneficial in nature, such as affirmative action policies; as of now, because of a conservative majority on the Court, all race-based classifications, no matter what their aim, are subjected to strict scrutiny, and consequently, affirmative action programs have been severely cut-back, and quotas held unconstitutional altogether.

The basic idea behind heightened scrutiny is that certain classifications – such as those based on race – are inherently harmful because either they stigmatize individuals, or that they fail to respect individuals by treating them not as individuals, but as members of racial groups. They also come bearing a history of terrible repression and discrimination. Consequently, the government is held to a near-impossible standard when it aims to use that particular method of classification.

There are two points to be made here. The first is that in many ways, caste in India, and race in the United States, have had a relevantly similar history. In particular, they have been used as identifying labels to sort a group of people into a permanently subordinate category, excluding them from normal economic and social life, and placing them in a position of extreme inferiority. The site of discrimination has been the identifying label itself – a person’s race, or caste, marks them out as deserving or undeserving of equal concern and respect from society. This explains, then, why the framers were so concerned with the goal of achieving a casteless society – they understood that in order to eradicate discrimination, its most potent marker would also have to be eradicated.

Now, that doesn’t resolve the issue. As is repeatedly argued in the United States, to get beyond race, you need to take race into account. If, for centuries, black people were kept in conditions of extreme subordination, then ushering in a regime of formal equality will only mean that their subordination will continue, because they are in no position to compete on equal terms with people who have had a two-century head-start. Consequently, true equality will require the government to take race into account in crafting affirmative action and other socially beneficial programs that, in a sense, compensate for the historically-determined present-day subordinate position of a class that is only formally free and equal. Of course, it is crucial to craft such programs in such a way that classification on the basis of race is a tool to achieve a society in which race becomes entirely irrelevant to social life. That is to say, paradoxically enough, race-based programs are designed to eliminate race, and not to entrench it.

The analogy is now obvious. We aim at a casteless society, but also understand that to get there, we need to take caste into account in crafting present-day beneficial and remedial programs. Much of Bhandari J.’s judgment focuses precisely on this (and this perhaps explains why he is far more sympathetic to American doctrine than the other judges). His advocacy of an economic test to determine social and educational backwardness stems from his suspicion that we shall ever truly be able to get beyond caste if we use caste-based classifications to redistribute educational opportunities in society.

We can now see, with Bhandari J., that while strict scrutiny is perhaps an inappropriately high standard to hold the government to, given the inherent dangers in caste-based classifications, there is a good case to be made for an intermediate standard of review – one that requires the government to show something more than simply a rational connection between its classification and its goal, but something more. In other words, the government ought to be able to demonstrate how its caste-based identification of socially and educationally backward classes reasonably contributes to the goal of achieving a casteless society.

And indeed, the use of the creamy layer doctrine is an instantiation of this form of intermediate review. The creamy layer doctrine circumscribes the discretion of the government in selecting socially and educationally backward classes on the basis of homogenous categories such as caste. It requires the government to wean out those members of an identified caste who are not, as it turns out, socially and educationally backward. By doing so, the doctrine seeks to ensure that there really is a substantive connection between eventual castelessness, and the affirmative action programs being used to achieve that goal. Some form of such scrutiny also exists when the Court, for instance, holds that reservations cannot be used for posgraduate studies, or in technically demanding fields such as aviation.

Intermediate scrutiny, therefore, exists in our affirmative action doctrine, although we don’t call it that. If the creamy layer is one particular instantiation of intermediate scrutiny, though, there is no reason why the Court shouldn’t subject caste-based affirmative action programs to a more general and broad intermediate scrutiny. In other words, instead of according near-complete deference (barring creamy layer) to the government in its selection of SEBCs, the burden should lie on the government to demonstrate in a convincing way how its program – if it is caste-based – will avoid the peril of entrenching (and not removing) caste. Unlike strict scrutiny, the government would not be placed under the near-impossible burden of showing that its program is the narrowest possible way of achieving its goals, but it would still be required to show that there is reasonable connection.

Given its emphatic rejection of American doctrine in Ashoka Kumar Thakur,  it is unlikely that the Supreme Court would adopt this. As 15(5) is currently undergoing another basic structure challenge, however, it does provide an opportunity for the Court to do so, and require the government to more carefully circumscribe and shape its quota systems, than it is doing at the present.