Guest Post: Animal Rights Adjudication: The Case for a Restraintivist Approach

(This post is by Vasujith Ram, a student at NUJS Kolkata)

A few days ago the Delhi High Court delivered an oral order in People for Animals v Md. Mohazzim (birds’ case). The case was initiated back in October 2004, when the police seized the birds and animals ‘belonging’ to the respondent and registered an FIR due to violation of the Prevention of Cruelty (Capture of Animals) Rules, 1979. The rules state that birds and animals cannot be captured except by specific methods as prescribed under the said rule. The rules are framed under subsection (2) of Section 38 of the Prevention of Cruelty to Animals Act, 1960 (PCA Act). Subsection (3) states that any contravention of the rules would leave the respective person liable to a fine and/or imprisonment.

The owner of the animals (and respondent in this case) then filed an application to release the birds on ‘superdari’ – i.e., conditional return of possession of ‘property’ connected with an offence. The application was allowed. A revision petition was unsuccessfully filed for release of the birds. Then the petition in this case was filed, along with “colour photographs” which showed that birds were being kept in small cages. The Court was then informed that this is common practice; and that thousands of birds are being treated in a similar manner, being sold in ‘commercial’ markets.

The Court then held that running the trade of birds was in violation of their rights; and that they “deserve sympathy”. As was widely reported across print and electronic media, the Delhi High Court held that it is “settled law” that “all the birds have fundamental rights to fly in the sky”. Instead, the Court observed, they are being exported illegally to foreign countries. Opining that human beings have no right to keep birds in small cages for the purpose of their business or otherwise, the Court issued notice.

Having not referred to any constitutional provision, the Court approvingly cited the A. Nagaraja v Animal Welfare Board case (popularly called the Jalikattu case). It was observed that the Jalikattu case recognized ‘five fundamental rights’ of animals, including the right to live with dignity.

It is thus instructive to briefly discuss the Jalikattu case as well. In a landmark case last year, the Court was called upon to decide the legality of events such as Bullock Cart races, Jalikattu, etc. The Court examined the facts and decided that the practices violate the statutory mandate under Section 3 and Section 11 of the PCA Act. Section 3 prescribes duties of persons in charge in animals (taking reasonable measures to ensure well-being; and preventing unnecessary pain or suffering). Section 11 criminalizes cruel treatment of animals, and lists various activities which count as ‘cruel’.

Having found so, the Court further held that the PCA Act must be read in conjunction with Article 51A(g) and 51A(h) – the ‘magna carta’ of animal rights. Moreover, the Court held that “all forms of life, including animal life … fall within the meaning of Article 21 of the Constitution”. It was also observed, “Rights guaranteed to the animals under Sections 3, 11, etc. are only statutory rights. The same have to be elevated to the status of fundamental rights, as has been done by few countries around the world, so as to secure their honour and dignity.” Having listed the five freedoms for animals as per the guidelines of the World Organization for Animal Health, the Court held that “[t]hese five freedoms, as already indicated, are considered to be the fundamental principles of animal welfare and we can say that these freedoms find a place in Sections 3 and 11 of PCA Act and they are for animals like the rights guaranteed to the citizens of this country under Part III of the Constitution of India.”

The Jalikattu case was considered landmark, and many activists hailed it as a case watershed moment for animal rights adjudication. However, for constitutional scholars, these cases raise more questions than they answer. The recognition of constitutional rights are not accompanied by a discussion of the full implications of such recognition. Questions of seminal importance for constitutional rights adjudication arise – including but not limited to questions of horizontal application of rights, conflict of rights, locating the duty holders, etc. – none of which the Court (both in Jalikattu and birds’ case) clarifies. These issue arise precisely due to the nature and method of adjudication by the Court. As I will illustrate below, the cases are decided on grounds of constitutional law even when the dispute could have been sufficiently resolved by means of recourse to clearly provided statutory law.

I would like to argue for a restraintivist approach to animal rights adjudication, drawing upon the doctrine of ‘constitutional avoidance’ (Note I am not advocating for or against animal rights, but only for a particular method of adjudication). This thought is best captured in Justice Brandeis’ concurrence in Ashworth v TVA, although there are plenty of documents tracing the development of the idea over the years. Justice Brandeis laid down seven facets of constitutional avoidance:

  1. The Court will not pass upon the constitutionality of legislation in a friendly, nonadversary, proceeding.
  2. The Court will not “anticipate a question of constitutional law in advance of the necessity of deciding it.”
  3. The Court will not “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.”
  4. The Court will not pass upon a constitutional question, although properly presented by the record, if there is also present some other ground upon which the case may be disposed of … Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.
  5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.
  6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.
  7. When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.

Of particular importance to this essay are facets 2, 3 and 4. Keeping in mind the fallibility of human judgment, it is advocated that Courts, as far as possible, avoid judgment on grounds of constitutional law. This is a policy of judicial minimalism in adjudication. Constitutional avoidance proposes that when remedial options are both statute – based and constitution – based, the court must prefer the former.

The issue before the Delhi High Court in the birds’ case was the caging of birds. This is squarely covered by S. 11(e) of the PCA Act, which bars keeping any animal in any cage which does not permit reasonable opportunity for movement. Instead, the Court simply states that birds cannot be kept in small cages for any purpose, since they have a fundamental right to fly in the sky! The jalikattu issue was, of course, found to be covered by the contours of S. 11 of the PCA Act. Thus there was no need to ‘constitutionalize’ the issue when statute based adjudication was sufficient. It is clear that a whole host of doctrinal puzzles and clash of constitutional principles could have been avoided. Apart from all the theoretical puzzles opened up (and left unanswered), there is always the possibility of misinterpretation. For example, the ‘five freedoms’ read into S. 11 of the PCA Act has been described as the five fundamental rights of animals in the birds case.

The doctrine of constitutional avoidance has been given recent scholarly attention in cases involving social rights. Scholars have claimed that many of the social rights cases in India could have been adjudicated on statutory or administrative law grounds, rather than on constitutional law grounds. The critical advantage is that it gives the legislature flexibility and discretion. The same argument follows for contested concepts like animal rights.

Horizontality under the Indian Constitution: A Schema

According to the classical model, constitutional rights are deemed to regulate the relationship between the individual and the State, acting as a check upon State power, and enforceable “vertically” by the individual against the State. They are not supposed to apply to interactions or transactions between private parties. Such interactions are to be regulated by the common law, or by legislatively enacted statutes. There are a number of theories for why the idea of rights evolved in this manner. Critical theorists such as Seyla Benhabib argue that the conception of rights arose out of the American and French revolutions, both of which were led by a rising bourgeoisie class that wanted to wall off a “private” economic and personal domain against absolutist State interference; other legal historians argue that at the time that Constitutions were first drafted, the common law was deemed sufficient to protect whatever rights individuals might have had against each other. Be that as it may, over the last thirty years, there has been a growing consensus among Constitutional courts that a purely vertical model of constitutional rights is insufficient – whether this is because of growing private power and the retreat of the welfare State, feminist critiques of the public/private distinction, an expanded conception of rights, or some combination of all three. Constitutional courts, therefore, have developed various ways in which to apply rights “horizontally” – i.e., to apply rights in transactions where private actors are involved in some way.

Like its counterparts in the United States, Canada, South Africa and Germany, the Indian Supreme Court has had occasions to engage with horizontality, and to craft various kinds of remedies in such cases. However, there is a significant lack of clarity about the different ways in which the Indian Supreme Court has invoked horizontality, and the constitutional questions that need to be resolved in such cases. In this essay, I will attempt to schematize the way in which the Court has treated horizontality, and highlight some of the key unresolved issues in the Court’s jurisprudence.

Any systemtisation of horizontality must address two issues. First, against whom is the remedy being sought? While the ultimate goal of horizontal rights litigation is to modify the relationship between private parties, this may be done either by arraigning the private party directly as a respondent, or by indirectly attempting to reach private action through litigation against the State, which is aimed at forcing the State to act in order to change the private behaviour in question. And secondly, what is the remedy being sought against? This second enquiry proceeds parallel to, but is not identical with, the first. What is impugned might be private action, or it might be State action that allows certain kinds of private action which are at issue.

With this in mind, consider the following table as a prelude to the discussion, with the remedies arranged on a rough, intuitive spectrum of vertical —> horizontal:

Type of Remedy

Respondent Cause of Action Case(s)
Private body assimilated to State under Article 12 Private actor Private act (classified as State act) Pradeep Kumar Biswas vs Indian Institute of Chemical Engineering, (2002) 5 SCC 111.
Positive Rights enforceable against the State State State (in)action Vishaka vs State of Rajasthan, (1997) 6 SCC 241; Medha Kotwal Lele, (2013) 1 SCC 311
Indirect horizontality Private actor State law/common law R. Rajagopal vs State of Tamil Nadu, (1994) 6 SCC 632.
Direct horizontality Private actor Private act IMA vs Union of India, (2011) 7 SCC 179; PUDR vs Union of India, (1982) 3 SCC 235.


1) Assimilation under Article 12: Article 12 of the Indian Constitution includes within its definition of State “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 Supreme Court has held that certain private bodies, in their structure or function, are so closely connected to the State, that they qualify as “other authorities” within the meaning of Article 12, and are consequently equated with the State for the purposes of fundamental rights enforcement. Indian cases have historically fluctuated between two tests for determining the scope of “other authorities” under Article 12: a control test (or, a structural test), which looks at the extent to which the private body is under the control of the State; or a functional test, which asks whether the private body is performing a function that could fairly be called a State function. In Pradeep Kumar Biswas vs Indian Institute of Chemical Engineering, the Supreme Court settled the debate in favour of the control test. It held that only bodies that were “functionally, financially and administratively dominated by or under the control of the Government” came within the ambit of Article 12. I have explored and critiqued the theoretical foundations of this debate elsewhere. For the purposes of this discussion, under this approach, what is ultimately being challenged is a private act of a private respondent, but both the act and the party are deemed, by a legal fiction, to be equivalent to the State. Consequently, this is the most “vertical” of the approaches that ultimately seek to hold a private body liable for rights violations.

2) Positive rights enforceable against the State: Classically, fundamental rights have been understood to be negative in nature – i.e., they act as constraints upon what the State can do, but they do not impose a positive obligation upon the State to act in any particular way. This understanding has been critiqued extensively by legal scholars as well as judges. The United States cleaves to the classical negative approach, as exemplified by the case of DeShaney vs Winnebago, where the Supreme Court held that no cause of action lay against a State agency’s negligent failure to prevent child abuse by a custodial parent. Internationally, however, this position has not been accepted. In interpreting the ICCPR, the United Nations Office of the High Commissioner for Human Rights has stated that a right casts a parallel, composite set of duties upon the State: the duties to “respect, protect, and fulfill” that right. The duty to respect tracks the classical conception of non-interference, while the duty to protect requires the State to protect individuals against human rights abuses, no matter who might commit them. In other words, the State’s failure to reasonably prevent human rights violations by private parties amounts to an abrogation of its duty to protect.

The Supreme Court applied this conception in Vishaka vs State of Rajasthan, the Supreme Court held that the State’s failure to pass a sexual harassment legislation for regulating public and private workplaces amounted to a violation of the Petitioner’s constitutional rights under Articles 14, 19 and 21. The Court issued a set of guidelines, now famously known as the Vishaka Guidelines, which were meant to act as a temporary stand-in until the legislature framed a sexual harassment law. Fifteen years later, in Medha Kotwal Lele vs Union of India, the Supreme Court found that many states had still not implemented the Guidelines, and consequently, directed them to do so within a period of two months. What is crucial to note is that in both Vishaka and Medha Kotwal Lele, what was at issue was both public and private discrimination, but that in both cases, the respondent was the State. In other words, what the Court held was that individuals have Articles 14, 19 and 21 rights against the State which, in turn, cast an obligation upon the State to regulate private actors in a manner that ensures that these rights are not violated.

Conceptually, it is crucial to distinguish the logic of Vishaka from the famous (or notorious) proliferation of the Supreme Court’s Article 21 jurisprudence. In most of the cases where the Court has interpreted Article 21’s guarantee of the right to life and personal liberty in an expansive manner, it has done so in order to repair certain omissions or problems with its acts (e.g., the right to livelihood developed in Olga Tellis was in response to State evictions, the right against solitary confinement was in response to the acts of prison wardens, and so on). These cases are about the duty to fulfill – that is, the State is required to undertake all acts that ensure that a negatively-worded right is nonetheless effectively exercised by rights-bearers. In the context of horizontality and Vishaka, however, what was at issue was the duty to protect, which focused upon the State’s abrogation of its duties via its failure to regulate private actors.

While Vishaka is a landmark judgement, the Court is yet to explicate clearly the model of positive duties that it is using. General Comments to the ICCPR, for instance, clearly specify what the corresponding duties entail in cases relating to the right to education, or the right to food. This lacuna is something that the Court will, hopefully, address by developing a rigorous and constitutionally justified account of positive duties.

3) Indirect Horizontality: Indirect horizontality refers to a situation where the respondent is a private actor, acting in its capacity as a private actor. The challenge, however, is not to the respondent’s acts, but to the law that the respondent relies upon to justify its acts. One classic example of indirect horizontality is the famous case of New York Times vs Sullivan, where the American Supreme Court found that the common law of defamation, as applied by the state Courts of Alabama against the New York Times, was inconsistent with the constitutional guarantee of the freedom of speech and expression. Consequently, in private defamation proceedings between Sullivan and the New York Times, the Court modified defamation law in order to bring it in line with the Constitution, and exonerated NYT. Similar to this, Canadian Constitutional jurisprudence casts an affirmative duty upon the Court to develop common law in line with the Constitution. The most famous example of indirect horizontality, however, is the German Constitutional Court’s “radiating effect”. According to the famous Luth case:

“…the Basic Law is not a value-neutral document .. Its section on basic rights establishes an objective order of values, and this order strongly reinforces the effective power of basic rights … Thus it is clear that basic rights also influence [the development of] private law. Every provision of private law must be compatible with this system of values, and every such provision must be interpreted in its spirit.”

In other words, basic rights radiate outwards beyond the Constitution, in a manner that affects private law and private adjudication.

In R. Rajagopal vs State of Tamil Nadu, the Supreme Court adopted indirect horizontality in the context of both defamation and privacy, which – until that time – had remained common law torts. Upon the lines of New York Times vs Sullivan, it modified the common law of defamation, adopting a stricter threshold for the plaintiffs, in order to bring it line with Article 19(1)(a) of the Constitution. It also referred to Article 21 in order to strengthen the individual’s right to privacy against other individuals. Notice that in Rajagopal, the respondent is the State. That, however, is only because it so happened that it was the officials of the State who brought defamation and privacy claims against the appellant (much like how, in Sullivan, Sullivan himself was the police commissioner of Montgomery, Alabama). The logic of Rajagopal, however, is one of indirect horizontality – i.e., it is not constitutionally suspect private action that is directly being implicated, but the law that authorises that action is what is at issue.

Cases involving indirect horizontality often require a delicate balancing act. This is because action that is off-limits to the State is often completely acceptable when it comes to private parties. Therefore, laws that merely permit, or facilitate, private arrangements that individuals are entitled to enter into, but the State is not, should not be invalidated or modified. For instance, in Zoroastrian Cooperative vs District Registrar, the Supreme Court held that the members of a Cooperative Society had the freedom and the right to associate with whomever they pleased, and that this freedom overrode the right of the individual against non-discrimination on the basis of caste, race, religion etc. Consequently, the Court upheld the impugned legislation, as well as the bye-laws, that permitted and authorised the Society to exclude people purely on the basis of religion.

As in the case of positive duties, the Court is yet to clarify that it is incrementally developing common law in accordance with constitutional values. It is important for the Court to develop a model that specifies the extent to which it is permissible for the Court to invoke background constitutional values during the course of private law adjudication. Different jurisdictions such as the United Kingdom (with respect to the Human Rights Act), New Zealand, and Germany all allow varying ranges of flexibility to Courts to achieve the goal of harmonising common law and a background rights-based legislation. The Indian Supreme Court is yet to explicate a similarly lucid account.

4) Direct Horizontality: Lastly, direct horizontality refers to a situation where the private act of a private party is challenged on the touchstone of the Constitution. The Indian Constitution has three specific provisions that outlaw horizontal rights violations. Under Article 15(2), no citizen may be restricted from access to shops, public restaurants, hotels and places of public entertainment, as well as places of public resort dedicated to the use of the general public, on grounds only of religion, race, caste, sex, place of birth, or any of them. Article 17 prohibits the practice of untouchability. Article 23 prohibits traffic in human beings, as well as bonded labour.

In IMA vs Union of India, the Supreme Court referred back to the Constituent Assembly Debates to hold that the word “shops” was of very wide import, and referred not merely to a physical “shop”, but to any arms-length provision of goods or services on the market. In that case, the Court held that schools came within the meaning of shops for the purposes of Article 15(2), and that consequently, private schools were subject to the non-discrimination guarantees under the Constitution. At the heart of the Court’s reasoning was the understanding that the most pervasive forms of discrimination in Indian society had been horizontal, and took the form of excluding a section of society from the economic and social mainstream through boycotts and denial of access.

With respect to Article 23, in PUDR vs Union of India, the Supreme Court did something similar, holding that “begar” under Article 23 did not simply refer to “bonded labour” in its technical sense, i.e., inter-generational captivity, but “every form of forced labour.”


This line of reasoning, however, remains underdeveloped. Apart from Article 23, when it comes to Article 15(2), the Court is yet to provide a rigorously developed understanding of the scope of the word “shops”. It is also yet to analyse the exact meaning of the word “access”. Is “access” limited to situations where private parties refuse to transact on the basis of a constitutionally prohibited marker, or does it extend to all kinds of economic interactions between parties, including – to take a recent controversy – hiring and firing decisions?

Conclusion: In sum, at present, we have a fairly detailed and layered jurisprudence of horizontality. A few things, however, are important. The Court must conceptually distinguish between the different types of horizontality, based upon the identity of the actors, as well as the nature of the action that is being challenged. Once that is done, the Court must also develop these distinct models in a doctrinally consistent and justified manner. At present, the only issue that the Court has definitively settled is the State action issue under Article 12. Beyond that, the following questions remain open:

(1) What is the scope of the positive duties upon the State under Part III, and the extent to which the State must regulate the conduct of private actors as an aspect of those positive duties? Different jurisdictions have given different answers thus far.

(2) To what extent, and under what circumstances, may the Court invoke indirect horizontality to develop private law, in proceedings between private parties, in a manner that is consistent with Constitutional values? How are the rights of the parties to be balanced in such cases?

(3) What is the scope of direct horizontality under Article 15(2), with respect to the words “access” and “shops”?

Guest Post: Same Sex Schools and Gender Discrimination under the Constitution – II: Minority Rights

(This is the second of a two-part series by Anindita Pattanayak on same-sex education and the right against discrimination)

In the previous post, we explored some of the arguments against state-aided same sex educational institutions. In this post, we will examine the issue of rights granted to minority institutions to control admissions, and how it affects the right against non-discrimination under Article 15.

Is Article 29(2) an Exception to Article 15(1)?

The position of same sex education is further complicated in cases where the educational institution in question is a minority institution. The minority institution’s rights to control admission under Article 30 of the Constitution and the permissibility of restricting admission on the ground of sex under Article 29 of the Constitution are then brought into question. Article 29 of the Constitution is titled “Protection of the Interests of Minorities”, and Article 29(1) guarantees to minorities the right to conserve their language, script or culture. Article 29(2) states:

   “No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.”

In Shantha Bai, the High Court of Madras reasoned that Article 29(2) allowed Mahatma Gandhi Memorial College to discriminate on the basis of sex, as sex was not explicitly listed as a ground that the educational institution could not discriminate on, unlike in Article 15 where “sex” is clearly mentioned as a ground the State cannot discriminate on. On the relationship between the two rights, the Court reasoned – “it will be seen that while Article 15(1) enacts a general principle. Article 29(2) deals with a particular topic, viz., admission to educational institutions. If the principle generalia specialibus non derogant is to apply, the controlling provision would be Article 29(2) and not 15(1).” In other words, according to the Court, the individual right under Article 15 must yield to the right granted to institutions under 29(2). It must be noted here, that despite being located within the minority-protection scheme of Article 29, Article 29(2) was considered to be a stand-alone provision applicable to all educational institutions and not only minority educational institutions. Interestingly, it was considered special because it applied to educational institutions only.

This issue was addressed again by the High Court of Allahabad in Christian Inter College. Here, the High Court limited itself to examining the constitutionality of such a provision only within the context of minority institutions and held that Article 30 and 29 granted minority institutions the right to control admissions and restrict it on the ground of sex. Though, in that case, it resulted in the admission of girls into the institution, the judgment held that it was “open to the minority community to change its policy and to convert an institution from an institution meant for one of the sexes into a co-educational one and vice versa.

Both these judicial decisions are, however, flawed on this issue. First, the High Court in Shantha Bai completely ignored the issue of whether Mahatma Gandhi Memorial College is a minority institution to which Article 29 would apply at all and if Article 29(2) is applicable to all institutions regardless of minority status. Even if it was a minority institution, the judgment in Shantha Bai and Christian Inter College defy the precedent set by the High Court of Calcutta in Anjali Roy outright. The decision by Bose J. before appeal states,

Article 29(2) does not refer to the ground of sex. So this article by itself does not invalidate any order of the State Government or of the Authorities of an educational institution of the type described in Article 29(2) restricting the admission of women students into government or Government-aided institutions. Article 15(1) which is of wider application than Article 29(2) prohibits discrimination on the ground of sex on all matters and so it includes discrimination in matters of admission to educational institutions. The result is that Article 15(1) should be construed as controlling Art 29(2) of the Constitution, and tested in this light the order complained of would be bad being in contravention of Article 15(1) of the Constitution.”

On appeal, this observation was neither affirmed nor denied. Yet, Sen J, in the judgment on appeal held that it was open to a minority institution to restrict admission on the basis of sex. The justification provided was that, “the framers of the constitution may have thought that because of the physical and mental differences between men and women and considerations incidental thereto, exclusion of men from certain institutions serving women only and vice versa would not be hostile or unreasonable discrimination.”

This reasoning can no longer pass muster post Aruj Garg which warns against perpetuating gender stereotypes and reasoning grounded in the belief that males and females have particular tendencies or different ways of thinking.


Is Article 30 an Exception to Article 15?

Now, let us address the issue of the right granted to minority educational institutions under Article 30. Article 30 guarantees to minorities the right to “establish and administer educational institutions of their choice.” It becomes necessary to question why a minority institution decides to restrict admission on the ground of sex. The purpose of Article 30 is to allow religious and linguistic minorities to promote their cause or community. The Supreme Court, while trying to interpret the possible clashes between the right under Article 30 and Article 29(2) has taken this purpose into account and examined the reasons why a minority institution would draw a distinction between one class of persons and another and what purpose such a classification this would serve. According to the Supreme Court in TMA Pai v. State of Karnataka,when the right of admission is exercised not to meet the need of the minorities, the rights of admission given under Article 30 (1) is to that extent removed and the institution is bound to admit students for the balance in keeping with the provisions of Article 29 (2).” If a similar strain of interpretation is employed in determining the clash between Article 30 and Article 15, it can be seen that a minority educational institution cannot show the nexus between denying admission to female students and the promotion of the minority community’s interests. Thus, Article 15 should prevail to that extent.


Reconciling an Expanded 29(2) with 15(1)

Recent decisions on Article 15, Article 29 and Article 30 negate the reasoning employed in Christian Inter College as well. According to the High Court of Allahabad in that case, restriction on admission on the ground of sex was permissible only for minority institutions as “sex” is not listed in Article 29(2). However, the Supreme Court has held that Article 29(2) applies not just to minority institutions but all educational institutions maintained by the State or receiving aid out of State funds. Extending the Supreme Court’s logic, all educational institutions maintained by the State or receiving aid out of State funds can then restrict admission on the ground of sex. However, this conclusion is absurd as the High Court itself follows Tewari and agrees that denial of admission to women by non-minority institutions is unconstitutional.

The best way to reconcile this anomaly is to argue that education is a public function that requires even aided minority institutions to follow constitutional principles of gender equality. A similar strain of reasoning was adopted in T.M.A. Pai where it was argued that the State had an interest in maintaining standards in professional courses which allowed it greater powers of interference in the administration of educational institutions offering professional courses.

The practice of same sex education can no longer be declared constitutional without a direct engagement on the merits of same sex education and a discussion on the tangible benefits of segregation of men and women in education. The only attempt at discussing the merit of co-education has been by a half hearted one by Markandey Katju J. in the following words –

Co-education is healthy and good for the development of the personalities of both boys and girls. If there is co-education boys and girls will know how to interact with each other in a healthy manner and this will also help them towards social adjustability… A young man does not know how to interact with a young lady and behave in her presence and the young lady is terror stricken in the presence of a young man as she has only interacted with her father and brother till then. This segregation leads to several kinds of psychological and social problems fend hence it should be done away with.

Without more rigorous and well researched analysis on the merits of same sex education, denial of admission to state aided same-sex educational institutions has to be declared unconstitutional.

Guest Post: Same-Sex Schools and Gender Discrimination under the Constitution – I

(In a two-part series, Anindita Pattanayak explores the issue of same sex schools and the guarantee against gender discrimination under Article 15(1) of the Constitution, and the judicial doctrine and reasoning in this area).

The constitutionality of state supported same sex education has been a contentious issue in the United States. Challenges to it have been brought in American courts on the ground that it violates the Equal Protection Clause of the Fourteenth Amendment. A similar challenge can be raised against denial of admission to women in educational institutions on the basis of sex in India on the ground that it violates Article 15 of the Indian Constitution. To address this issue, some High Courts in India have interpreted the Constitution in several ways, all of which perpetuate gender stereotypes in the country.

There are four cases decided by Indian High Courts that have addressed the issue of constitutionality of state supported all-male educational institutions. The first is Anjali Roy v. State of West Bengal decided by the High Court of Calcutta in 1952. In that case, a girl was denied admission into Hooghly Mohsin College due to an order issued by the Director of Public Instruction against admission of girls into the Boys’ College. The denial was upheld for two reasons. First, the regulation was not intended to be discriminatory to women as eight women were already admitted to the college before the petitioner. Second, the Court reasoned petitioner could enroll herself in the Women’s College and use the library of the Hooghly Mohsin College whenever required.

The next case is University of Madras v. Shantha Bai decided by the High Court of Madras. A regulation framed by the University that women could be admitted to all-male colleges only with the prior sanction of the Syndicate was challenged before the High Court under Article 15. The High Court upheld this regulation on three grounds – first, the University was not “state” as mentioned in Article 12, as it was only state-aided and not state-maintained and therefore, its actions were not subject to rights in Part III of the Constitution; second, the omission of “sex” in Article 29(2) was a deliberate departure from the language in Article in 15(1) and therefore, there is no obligation on educational institutions to admit women (the controversy regarding the application of Article 29(2) will be addressed in the next post in this series); and finally, the University never attempted to discriminate against women and the regulation was framed only to ensure that colleges have adequate facilities and protection before women students are admitted. The first line of reasoning where a distinction was drawn between state-aided and state-maintained institutions has now been overruled.

The third judgment was passed by the High Court of Allahabad in Rama Nath Tewari v. Committee of Management, Allahabad Intermediate College [1993 (21) ALR 85) where Regulation 8(1) of Chapter 7 of the U.P. Intermediate Education Regulations which states “girls shall not be admitted into Boys’ institutions without obtaining prior approval of the Inspector” was challenged as violating Article 14. Markandey Katju J. simply stated that such a provision violated Article 14. Interestingly, he utilized Article 39(f) to hold that co-education is necessary for the healthy development of children and therefore, same sex education is “backward”.

This ratio was affirmed in Christian Inter College v. State of U.P. In that case, girls in a Christian minority institution were not allowed to take Board examinations due to a state regulation which prohibited the admission of girls into a boys’ school without the permission of the District Inspector of Schools. The High Court of Allahabad, however, held that a minority institution had the power to admit or deny admission to either sex without permission of the State under Article 30 of the Constitution.

Now, let us analyse each of these lines of reasoning adopted in these decisions to see whether they can still be used to justify the exclusion of women from all-male educational institutions.

Intention to Discriminate

Indian courts have found it difficult to accept that same sex education is discriminatory to either sex. There is a pervading sentiment that regulations separating the sexes are not meant to discriminate against women as there is no objection to women being educated. In Shantha Bai, the Madras High Court observed that “the Madras University never attempted to exclude women from collegiate courses…In fact there is no regulation refusing admission to women students; those regulations are addressed to the colleges and it is the colleges that refused permissions to admit women when they do not provide sufficient facilities. It is difficult to see how these regulations can be regarded as discriminatory against women.” (para 11)

In the United States, a similar line of reasoning was adopted by federal District Court in Doe v. Vermilion Parish where it held that mandatory single sex classes were not unconstitutional as the school did not intend to discriminate against girls. On appeal, however, the Fifth Circuit held that when there is segregation on the ground of sex, no discriminatory intent needs to be proved. Similarly, no intention of discrimination needs to be proved to establish violation of Article 15. In other words, in certain cases and contexts, discrimination is inherent in the fact of, and by virtue of, segregation.

Further, the argument that the educational institution has admitted other women (like that accepted in Anjali Roy) and is, therefore, not discriminatory, is completely flawed. Article 15 is an individual right and even if any one woman is denied admission on the ground of her sex, her fundamental right is violated and she is entitled to appropriate relief.


Paternalism and Gender Roles

A long line of American cases on the constitutionality of same sex education led to the landmark decision in United States v. Virginia. In that case, an all-male military college following an “adversative method” denied admission to a woman. There was in existence, a parallel course for women at Virginia Women’s Institute for Leadership which, however, followed a “cooperative method”, had fewer facilities and did not have the distinguished alumni VMI could boast of. The American Supreme Court, in effect, extended the strict scrutiny standard to cases of sex segregation in this case. In fact, in his dissent, Justice Scalia noted that such an application of this standard of review would make all state supported same sex education unconstitutional.

The Indian cases on same sex education have been woefully inadequate and unclear about applying a standard of review of state action. However, post 2007, it can be argued that the “strict scrutiny” standard is to be applied in such cases as has been held by the Supreme Court in Anuj Garg v. Hotel Association of India. The Supreme Court, in that case, warns against legislations suffering from “incurable fixations of stereotype morality and conception of sexual role.” Applying this standard of review to the case facts of Shantha Bai and Anjali Roy, it can be argued that the lack of facilities for women and “discipline issues” cannot be cited as a reason to deny them admission into an educational institution. Instead, the specific purpose of a directive to take permission for admitting women students will have to be examined. Finally, if any purpose is specified by the State, the Court will have to assess if the impugned regulation achieves this purpose. If, for instance, the State argues that the purpose of the regulation is to ensure that colleges provide all required facilities for women, it must be taken into account that the effect of the regulation is that colleges will simply not invest in facilities for women and continue denying admission to women.

Judicial reasoning that distinctions made on sex in same sex educational institutions is not made solely on the basis of sex but on additional considerations like the feasibility of separate facilities of women and their protection, stems from a paternalistic understanding of gender roles. It is no more than an extension of “sex” as a ground and is not a separate ground by itself. An example of this sort of concern is displayed by the Madras High Court in Shantha Bai where it mentions, “Co-education has become inevitable and unless that is properly controlled. It might result in evil and not good. It is for this reason that the syndicate requires that colleges which seek permission to admit women students should provide the necessary facilities for them.”

Such statements made on the basis of paternalistic and archaic notions of gender are no longer an adequate justification as is made clear by Anuj Garg. Further, it is seen that the Indian courts deal with a lack of facilities for women in colleges not by directing their institution but by simply denying women admission. For instance, the petitioner in Anjali Roy was expected to shuttle between two colleges to be able to attend the courses of her choice and use the library – an inconvenience no boy was expected to undertake. The effect of the impugned regulations is discriminatory to women and this should be accounted for in judicial reasoning.

Separate but Equal

There is a reigning sentiment among Indian courts that having a separate educational institution for women counters any discrimination they may face by being denied admission to all-male educational institutions. These courts have been confronted with the argument that such reasoning is the same as the “separate but equal” logic used by American Courts to justify racial segregation. However, none of the judgments address this issue directly or explain how their reasoning is different (both in Anjali Roy and Shantha Bai). In fact, Bose J. was directly confronted with the case of Sweatt v. Painter where it was clearly held that instituting a separate educational facility for African Americans would still be a violation of the equal protection clause.

It is evident that the Indian judiciary suffers from a coloured perception of the role of women in society. It is difficult for judges to see the similarity between state supported racism and “differences” between men and women that appear “natural” when in fact they have been evolved through years of patriarchy and societal impositions. Indian courts should note the observations in VMI where it was seen that a separate educational institution can never be truly “equal” and often, separate educational facilities for women are found wanting. Further, as was held in Brown v. Board of Education, despite similar facilities, the act of segregation itself is inherently unequal and creates a feeling of inferiority among those discriminated against. Unfortunately, the Madras High Court in Shantha Bai chose to follow and use the logic of Norris v. Mayor and City Council of Baltimore decided in 1948 where denial of admission to blacks in a private school which received aid from the state but was not maintained by the state, was upheld. Instead, it could have drawn the analogy between race and sex segregation and then followed Brown decided in 1954.

The judicial reasoning employed by the High Courts perpetuates decidedly patriarchal notions of gender and has hampered the understanding of “equality”. All the decisions have steered cleared of any debate as to the need and rationale for same sex education. Anuj Garg has now paved the way for an effective challenge to denial of admission of women into state supported educational institutions, if the matter is brought before the Supreme Court. In the next post, we will discuss the legal complications arising in the case of single sex minority educational institutions which enjoy rights under Article 29 and consequently seem protected from state interference in the matter of admissions.

Land Boundary Agreements and the Constitution – I: The Bangladesh Land Swap

(This is a guest post by Manish, who is a legal researcher based in Ahmedabad, and a regular contributor to this blog)

The one hundredth Amendment to the Constitution, passed by the Rajya Sabha on May 6 and the Lok Sabha on May 7, is not merely a statistical milestone, but an event of immense political and diplomatic significance. The Constitution (100th Amendment) Act, 2015 (“the Act”) may well bring to an end one of India’s longest-running boundary disputes that has spanned seven decades and two countries. This post discusses the Constitutional complications that compounded this dispute, and how the passage of the Act resolves them.

The Act makes changes to the significant, but rarely discussed, opening provisions of the Constitution: Part I and the First Schedule, which deal with the Union and its territory. A brief overview of these provisions will be in order before delving into the story behind the Act. Article 1 declares India to be a Union of states, and defines its territories to include the States and Union Territories, as described in the First Schedule, as well as “such other territories as may be acquired”. Article 2 empowers Parliament to admit into the Union, or establish, by law, any new States on such terms and conditions as it thinks fit. Article 3 gives Parliament legislative power to create new States and Union Territories, or alter the boundaries of existing ones. Article 4 provides that no law made under Articles 2 or 3 shall be deemed to be a Constitutional Amendment, thereby simplifying the procedure for the Union Government to carry out this process.

The story of the Act is intricately tied to the story of India itself. After the Partition of British India in 1947, India and East Pakistan were at one point separated by the then princely state of Cooch Behar, which, on account of a number of historical factors, had enclaves located in both countries. The accession of Cooch Behar to India in 1949 led to a situation where Indian enclaves were located in East Pakistan, and vice-versa, with some complicated second and third order enclaves as well (the details of these enclaves, with maps, are explained in this thesis). A series of attempts to resolve some of these issues by demarcating a common boundary in certain parts and exchanging some enclaves, culminated in the signing of the Nehru-Noon Agreement between the Prime Ministers of both countries in 1958.The operationalisation of the Nehru-Noon agreement presented the first significant Constitutional challenge to the resolution of the boundary dispute. The agreement envisaged, inter alia, the transfer of four enclaves of Cooch Behar to Pakistan, along with the southern half of a territory called the Berubari Union, hitherto part of the Jalpaiguri district of West Bengal. Parliament attempted to do this by exercising its power under Article 3 of the Constitution, enacting the Acquired Territories (Merger) Bill, 1958. Under the proviso to Article 3, the Bill was referred to the legislature of West Bengal for its opinion. Here it ran into trouble, with the Assembly passing a unanimous resolution rejecting the Bill and opposing the proposed ceding of Berubari and the other territories. Under these circumstances, the President, in exercise of his powers under Article 143, referred the matter to the Supreme Court for its opinion.

The three questions to be considered by the Court were as follows:

(1) Is any legislative action necessary for the implementation of the Agreement relating to Berubari Union ?

(2) If so, is a law of Parliament relatable to article 3 of the Constitution sufficient for the purpose or is an amendment of the Constitution in accordance with article 368 of the Constitution necessary, in addition or in the alternative ?

(3) Is a law of Parliament relatable to article 3 of the Constitution sufficient for implementation of the agreement relating to Exchange of Enclaves or is an amendment of the Constitution in accordance with article 368 of the Constitution necessary for the purpose, in addition or in the alternative ?

In its judgment delivered in Re: Berubari and the Exchange of Enclaves (AIR 1960 SC 845), the Constitution Bench unanimously answered the reference with the opinion that legislative action was necessary for implementation of the agreement, and a Constitutional Amendment would be required to implement the provisions relating to both the Berubari Union as well as the exchange of enclaves.

Re: Berubari was an unusual reference in the manner in which it was decided. The Court examined questions of fact and did not restrict its opinion to a question of law, and also adjudicated upon hypothetical questions (both of which, in later references, it declined to do). While the primary reasoning behind the Court’s decision lay in the words and scheme of Part I of the Constitution, there were several related aspects and Constitutional provisions that were considered.

The Court decided that the answer to the first question, of whether legislative action was required to implement the agreement, would turn on whether the agreement involved an actual transfer of territory, or was merely an interpretation of a pre-determined boundary (in this case, the Radcliffe Line).  To do this, it examined the historical background and factual aspects of the agreement, including maps, documents and deliberations of the Radcliffe commission. It eventually concluded that the agreement did involve a factual transfer of territory, specifically a cession of territory by India in favour of Pakistan. Consequently, its implementation would alter the boundaries of the state of West Bengal, as defined in the First Schedule, thereby requiring legislative action for its implementation.

The answer to the second and third questions was more closely connected to the interpretation of Part I, specifically Article 3. Extreme rival submissions were advanced on the one hand by the Union of India, which argued that Article 3(c) permitted the reduction of a State’s territory by ordinary legislative action and consequently, cession of the same to another country; and on the other hand, by the State of West Bengal, which argued that cession was not permissible under the Constitution at all. The Court declined to accept either extreme submission, concluding that while the scheme of Article 3, and Part I in general, only envisaged acquisition of territory by the Union and not its cession; it was possible, as a sovereign power, for the Union to cede territory. However, the Court held, since cession was not permitted under Part I, any amendment to the First Schedule as a result of the cession of territory would not be saved by Article 4. Therefore, an amendment to the First Schedule involving cession of territory would not be possible by ordinary legislation under Article 3, but only through an Amendment to the Constitution under Article 368. (The court also hypothetically opined that it would be possible for Parliament to amend Article 3 itself to expand its ambit to include cases of cession of territory.) Since the agreement in respect of both the Berubari Union and the exchange of enclaves involved cession of territory, the Court opined that the same would be possible only through an Amendment to the Constitution. Pursuant to the judgment, Parliament passed the Constitution (9th Amendment) Act, 1960, amending the First Schedule and paving the way for the implementation of the Nehru-Noon agreement and settling the border dispute in respect of some of the enclaves. However, it could not be implemented in its entirety.

East Pakistan was eventually liberated as Bangladesh in 1971, and three years later another, comprehensive agreement was signed between India and Bangladesh, covering the remaining aspects of the land boundary dispute. This came to be known as the Indo-Bangladesh Land Boundary Agreement of 1974, which envisaged a final boundary demarcation and exchange of enclaves involving a further cession of about 17,160 acres of land to Bangladesh and acquisition of about 7,110 acres by India. As a result of the judgment in Re: Berubari, and the fact that Article 3 remained unamended, Parliament was required to pass a Constitutional Amendment to the First Schedule to implement the 1974 agreement. Due to a variety of historical and political factors, this Amendment was never passed. In 2011, the two countries signed a Protocol to the 1974 Agreement, committing to implementing the exchange of enclaves and also lands which were in adverse possession on both sides of the border. A useful resource in this regard is this booklet compiled by the Ministry of External Affairs, containing the text of the 1974 Agreement, as well as the revisions brought about by the 2011 Protocol and the processes that went into creating it.

The Act brings into operation the 1974 Agreement, along with the 2011 Protocol. The main provision is Section 3, which alters provisions of the First Schedule in respect of the states of West Bengal, Assam, Meghalaya and Tripura, overriding the amendments made in 1960 and bringing them into consonance with the 1974 Agreement and the 2011 Protocol. Thus, after a process spanning nearly six decades, India’s longest border (4,096 km) will finally have legal clarity and Constitutional recognition.

“Historically respectable personalities”: The Supreme Court invents a new exception to free speech

When the Supreme Court struck down S. 66A of the IT Act in Shreya Singhal vs Union of India two months ago, the verdict was hailed as a landmark milestone in Indian free speech jurisprudence, for two reasons. First, for once, the Supreme Court followed up its platitudes about the value of free speech in a democracy not with a sentence beginning with “but...”, but rather with actual concrete action – striking down a speech-restricting provision. And secondly, it was a judgement in which the Supreme Court began with the text of Article 19(1)(a) and 19(2), proceeded to rigorously examine that text in light of constitutional history, purpose and precedent, and analysed the impugned law on the touchstone of the Constitution, as understood and interpreted over the years.

Today, in Devidas Ramachandra Tuljapurkar vs State of Maharashtra, the Supreme Court reversed the slight gains made by Shreya Singhal on both counts, creating a new exception to 19(1)(a) when it comes to putatively obscene speech about “historically respectable figures”. As I shall presently explain, today’s judgement is entirely misconceived, for the following reasons: first, it misstates and misconstrues fifty years of Indian obscenity law jurisprudence; secondly, it invents a “historically respectable figures” exception with no basis in constitutional text, history, precedent or reason; thirdly, in failing to define this new standard, it opens a Pandora’s Box of future claims brought on behalf of “historically respectable figures”, which will cast a deep and broad chilling effect upon core political speech; and fourthly, in creating an artificial hierarchy between “historically respectable figures” and the rest, with differential standards applying to both, it destroys the very basis of having a fundamental right to free speech in the first place – that is, to enable citizens to contest the most entrenched and basic norms that society subscribes to.

In Devidas Ramachandra Tuljapurkar, the question before the Court was asked to quash charges of obscenity leveled against a poet for writing a poem called “Gandhi Mala Bhetala” (‘I Met Gandhi’), published in 1994 and meant for private circulation among the employees of the All India Bank Association. A member of the “Patit Pawan Sangathan” lodged a complaint with the Police against the author and publisher, alleging offences under Sections 153A and 153B of the IPC (causing disharmony between classes) and 292 (obscenity). The Magistrate discharged the accused under 153A and 153B, but not under 292. After unsuccessfully moving the Additional Sessions Judge and the High Court to quash the charge, the accused finally reached the Supreme Court.

After setting out the factual matrix, the Court spent the next thirty-seven pages extracting excerpts from various judgements handed down by American, English and European Courts (paragraphs 12 to 33); thefifty-four pages extracting excerpts from various Indian judgements on obscenity (paragraphs 34 to 60); and then sixteen pages extracting excerpts from the Constituent Assembly Debates and various Indian judgements in praise of free speech (paragraphs 61 to 72). Since the Court made no attempt at a synthesis, however, it is essential to set out, in brief, the development of Indian obscenity law over the last fifty years.

In its 1965 judgement in Ranjit Udeshi vs State of Maharashtra, the Supreme Court had adopted the Victorian-era English test in R vs Hicklin: material was obscene if it tended to deprave or corrupt the people into whose hands it was likely to fall. There were three problems with the Hicklin test as it stood: the broadness of the terms “deprave or corrupt”; its acontextuality (prosecutions under the Hicklin test would focus on pointing out specific words or phrases that were supposedly obscene); and its focus on looking at the text from the point of view of the people who, in the opinion of the Court, were most likely to be corrupted or depraved – something that Madhavi Divan has called “the most vulnerable constituency test”. The second of these issues was resolved by the Court in Udeshi itself, when it clarified that obscenity must be tested by looking at the work of art as a whole, and in context. Subsequently, over the next fifty years, the other prongs of Hicklin were gradually liberalised. In cases over the 80s and 90s, and ending with D-G Doordarshan vs Anand Patwardhan, and Ajay Goswami, the Supreme Court shifted from the “most vulnerable constituency test” to that of the average, reasonable and strong-minded reader; and in Aveek Sarkar, decided last year, it finally expressly abandoned Hicklin after a half-century of chipping away, and replacing it with the 1957 American test in Roth vs US. The Roth test holds that:

“The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.”

The Roth test, therefore, is sharper and narrower than Hicklin. It does not cover all material that might corrupt or degrade, but limits itself to whether the dominant theme of the material, taken as a whole, appeals to the prurient interest (and whether it is utterly without redeeming social value). Admittedly, Roth is a problematic test, and as I’ve pointed out before, Aveek Sarkar ought to have considered the developments within American obscenity jurisprudence as well, in future cases, before relying upon a test that has been significantly displaced in its own country of origin. Nonetheless, as a test for obscenity, it is at least more speech-protective than Hicklin – because, for instance, merely (allegedly) vulgar or distasteful work, that might also allegedly deprave or corrupt individuals, would not be caught by the obscenity net.

This survey is essential to understand why the Court proceeds to go entirely off the rails in Tuljapurkar. The test for obscenity, as developed in Roth and adopted in Aveek Sarkar, does not contemplate differential standards for different people. It proceeds on a simple basis: does the work, taken as a whole, to the average reader, appeal to the prurient interest? Presumably, under the old Hicklin test, it would be somewhat possible to make this distinction by (somehow) arguing that disrespecting historically respectable figures would corrupt all those people who follow them as models for the ideal life. I say presumably, because this argument is a stretch, but it is at least conceivable. Under Roth and Sarkar, however, it is the nature of the work that matters, not not who it is about.

The Court gets around this rather basic problem by engaging in what can only be called a sleight of hand. In paragraph 73, it holds that “the test evolved by this Court, which holds the field today is the ‘contemporary community standards test’.”

This, however, entirely misstates the Roth test by omitting what follows after community standards. A complete statement of the test is:

“…applying contemporary community standards, [whether] the dominant theme of the material, taken as a whole, appeals to prurient interest.”

It is not open to judges to pick one part of a judicially evolved test, established through years of gradual and incremental precedent, and omit another part that is inconvenient to the conclusion that they wish to reach. If a judge wishes to depart from a test, than it is incumbent upon him to state the old test, provide his new version, and give reasons for doing so. This is how the Court went about replacing Hicklin with Roth in Aveek Sarkar, and how a Court is normally supposed to act.

By simply ignoring the second part of the Roth test, the Court is able to invent a new exception to free speech: obscenity standards are different when it comes to “historically respectable figures”, because of community standards. To prove the established “community standards” in case of Gandhi, the judgement spends the next twelve pages extracting various Supreme Court judgements that had referred to Gandhian thought and principles, and cites the names of various books about Gandhi. What role these citations are meant to play in the explication of an obscenity test is unclear, but at the end of it, Justice Dipak Misra observes that:

“The issue in the instant case, whether in the name of artistic freedom or critical thinking or generating the idea of creativity, a poet or a writer can put into the said voice or image such language, which may be obscene.”

This, however, is deeply confusing, because the Court begs the question: first, it says that historically respectable figures command a different threshold of obscenity; then, without explaining what that threshold is, it says that the question is whether “in the name of artistic freedom… a poet… may be obscene.” But there is absolutely no quarrel with that proposition! Everyone accepts that obscenity is a constitutional restriction upon the freedom of speech in India. The question is what constitutes obscenity.

Confusion is worse confounded in its concluding paragraph, where the Court says:

“When the name of Mahatma Gandhi is alluded or used as a symbol, speaking or using obscene words, the concept of “degree” comes in. To elaborate, the “contemporary community standards test” becomes applicable with more vigour, in a greater degree and in an accentuated manner. What can otherwise pass of the contemporary community standards test for use of the same language, it would not be so, if the name of Mahatma Gandhi is used as a symbol or allusion or surrealistic voice to put words or to show him doing such acts which are obscene.”

Quite apart from the fact that the last sentence is viciously circular again, the question remains: how do you apply the “community standards” test as a matter of degree? What does it mean to say that the test applies with “greater vigour“? Prima facie, juxtaposing “community standards” with questions of degree seems entirely incoherent. Does it mean that the burden of proof shifts? Does it mean that the evidentiary standards for establishing community standards are lower (not that the Court has bothered with evidence of community standards in its obscenity judgements before)? The Court does not provide any guidance upon these issues. And by refusing to do so, it opens the floodgates for a whole host of future 292 claims in which organisations, claiming to speak on “behalf” of historically respectable figures (another term that the Court refuses to define), will make of S. 292 what has already been made of S. 295A and 153A. The chilling effect of Ss. 295A and 153A will not be compounded because of a conceptually incoherent and incorrect judgement has made vague observations about strict “community standards” for “historically respectable personalities”, but has made no attempt to clarify the meanings of those vague and open-ended terms.

Lastly, the philosophical implications of this judgement are deeply troubling. In walling off a class of individuals – “historically respectable figures”, the Court does two things. First, it arrogates to itself the power to define “respectability”. On what basis must we all accept Gandhi’s “respectability”? By now, we have reams of literature that impugn Gandhi’s personal and political motivations, his actions and his character, and his impact upon the freedom movement. Through this judicial fiction of Gandhi’s “respectability”, the Court creates a judicial narrative which it then imposes upon the rest of the country. This is not the judiciary’s province. And secondly – and relatedly – by creating differential standards about what can and cannot be said based upon the respectability of historical personalities, the Court betrays the whole purpose of a free speech right: the freedom to question, criticise, and undermine the most deeply entrenched narratives that society holds dear, the freedom to use speech to attempt to uproot and transform the most fundamental social and moral norms of a community (as held in Khushboo vs Kanniamal), the freedom to offend, shock or disturb. A right to free speech is nothing without the right to attack and undermine one of the most deeply crystallised narratives of modern India – the narrative of the “father of the nation”.

The vagueness and conceptual slippages rife throughout this judgement leave it unclear how much of an impact it will have doctrinally. For the reasons adduced above, it is submitted that this judgement is incorrect, productive of great public mischief, and ought to be overruled the first chance the Supreme Court gets.

Lastly, the following observation is necessary: it is one thing to decide a case on the basis of one’s moral or political instinct, and then reverse-engineer reasoning to make the conclusion fit with text and precedent. That is an unavoidable facet of the judicial task, and demonstrates at least a degree of respect for constitutional fidelity. It is quite another thing to decide a case, and then bowdlerize text and precedent by ignoring inconvenient parts that don’t suit your conclusion. In the Make-Up Artists judgement, Justice Dipak Misra did this with regard to the Trade Union Act, citing one half of a statute and ignoring the other half that entirely undermined his argument. Today, he has done it again, citing one half of an existing test, and ignoring the other that would preclude his conclusion. The results – to repeat – make for good headlines or bad headlines, depending upon one’s predilections, but in the long run, they cause serious damage to constitutional fidelity and constitutional doctrine.

Directive Principles of State Policy: An analytical approach – II: The Constituent Assembly, Article 37 and the Early Days

This is the second part of a series of analytical posts on Part IV of the Constitution – the Directive Principles of State Policy. In the first post, I examined the possible conceptual distinction between Part III (“civil/political” or “first-generation” rights), and Part IV (“socio-economic” or “second-generation” rights), concluding that from the point of view of adjudication and judicial reasoning, the distinction ought not to make any difference. From this post onwards, we discuss the judicial understanding of Part IV, an its relationship with Part III).

Part IV of the Constitution commences with Article 37, which states:

“The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.

Each of the three highlighted terms is susceptible to different interpretations. First – non-enforceability means, of course, that one may not ask the Courts to strike down a law for violating the Directive Principles (contra fundamental rights). But does non-enforceability also bar the Courts from using the Directive Principles in considering, interpreting and adjudicating upon other laws? Secondly – our enforceable Part III rights are specifically defined as “fundamental rights”. Does the use of the same word in Article 37 imply some degree of conceptual overlap between Parts III and IV? And thirdly – what is the nature of the “duty” that Article 37 imposes upon the State? Is it a constitutional duty, a legal duty or a moral duty? And what are the consequences? A purely textual reading of Article 37 cannot answer any of these questions, and is insufficient to inform our understanding about the nature of the Directive Principles, and their place in constitutional adjudication.

At one end of the spectrum stands H.M. Seervai, who argues that the Directive Principles are nothing more than political exhortations to the legislature, and can only be “enforced” at the ballot box. According to Seervai, a Court may not even take note of the existence of the DPSPs (much less their content) in deciding any case, constitutional or otherwise. And in the first ten years after the Constitution came into being, the judiciary adopted this approach. In State of Madras v. Smt Champakam Dorairajan, for instance, the State’s justification of caste-based reservations under Article 46 of the Constitution was rejected on the ground of the non-enforceable character of the DPSPs. Similarly, in Muir Mills vs Suti Mills Mazdoor Union, the Court refused to invoke the DPSPs even to interpret the law on workmen’s right to bonus payments, sticking instead to the traditional common law of wages and bonuses. Various High Courts followed this approach, taking non-enforcement to be equivalent to constitutional irrelevance. For instance, in Jaswant Kaur vs State of Bombay, the Bombay High Court unambiguously held that any article conferring fundamental rights cannot be whittled down or qualified by any thing that is contained in part IV of the Constitution.”

This approach reached its apogee in the famous cow-slaughter judgement of 1959 – Mohd Hanif Qureshi v. State of Bihar. Bihar’s cow slaughter ban was justified by arguing that it was designed to give effect to Article 48. Rejecting this contention, the Court noted:

“… a harmonious interpretation has to be placed upon the Constitution and so interpreted it means that the State should certainly implement the directive principles but it must do so in such a way that its laws do not take away or abridge the fundamental rights.”

In other words, while the State ought to make laws implementing the directive principles, Part III rights, standing alone and interpreted autonomously, would place a check upon such endeavours. The Directive Principles ought to have some role to play at the time of enacting legislation, but none afterwards. This was evident in the manner in which the Court decided Qureshi. Its exhaustive economic analysis informing the application of Article 19(1)(g) and 19(6) saw little reference to the DPSPs.

That same year, however, marked a subtle – yet distinct – change. In Re Kerala Education Bill dealt with the rights of minorities to run educational institutions. Referring to the Directive Principle (Article 45) that mandated the State to ensure the provision of effective and adequate education, the Court observed:

“The directive principles of State policy have to conform to and run as subsidiary to the Chapter on Fundamental Rights… nevertheless, in determining the scope and ambit of the fundamental rights relied on by or on behalf of any person or body the court may not entirely ignore these directive principles of State policy laid down in Part IV of the Constitution but should adopt the principle of harmonious construction and should attempt to give effect to both as much as possible.”

Notice that while both Mohd Hanif Qureshi and Re Kerala Education Bill use the phrase “harmonious construction/interpretation”, they use it in different senses. Qureshi’s harmony does not accord any interpretive role to the Directive Principles. In Re Kerala Eduction Bill, on the other hand, while reaffirming the primacy of the fundamental rights, the Court nonetheless opens the gates for DPSPs to play a tangible – if subsidiary role – in interpretation, holding that the “scope and ambit” of the fundamental rights should be determined in such a harmonious way, that full effect is given both to Part III and Part IV.

Before we pause to examine the evolution of this approach, we must examine the constitutional arguments that support this position. The first is textual. Article 37 states that it shall be the duty of the State to apply the Directive Principles in making laws. Now, whether the obligation is legal, moral or political, it is, at the very least, a Constitutional obligation. And if we are to accept the benign fiction that the legislature is composed of reasonable persons pursuing reasonable ends reasonably, then it makes sense to assume that, insofar as the parliament acts in good faith while enacting laws, it is taking the DPSPs seriously, and applying them in the making of such laws. Consequently, when a Court is called upon to interpret those laws, it may assume that Parliament has legislated in consonance with the DPSPs and, therefore, may invoke them in determining the content of laws. Thus, textually, there is at least some scope for the DPSPs in an interpretive enquiry (the clause leaves open what scope, exactly) that does not rise to the level of “enforcement”. According to Ambedkar himself, the proscription on enforceability was to be as imposing no obligation upon the State to act upon the Directive Principles – not that the principles themselves were irrelevant in understanding how the State had (legislatively) acted, once it did.

Seervai relies upon Ambedkar’s initial speech in the Constituent Assembly Debates to substantiate the ballot-box argument. Ambedkar, however, made the ballot box point in a very specific context: to draw a contrast between requiring the government to answer for the breach of a directive principle in a Court of law, and to answer for it to the electorate. That is, he was concerned about non-enforceability which, as we have seen, does not exhaust the textual possibilities of Article 37. In the same speech, indeed, Ambedkar repudiated the objection that the DPSPs were no more than pious wishes, arguing that no legal force did not imply no binding force. Ambedkar’s use of the word “binding” (as opposed to “political” or “moral”), a word that is equally at home in both a legal and a non-legal context, seems to indicate that the Principles, while falling well short of enforceability, were not meant to be legally irrelevant either. Responding subsequently to Naziruddin Ahmad’s call to remove Part IV altogether, he expressly argued that the Principles were both fundamental and directive in the sense that they “should be made the basis of all executive and legislative action.”

Other members of the Drafting Committee agreed. Alladi Krishnaswamy Iyer argued that while the Directive Principles were neither justiciable not enforceable, it would be idle to suggest that any responsible government or any legislature elected on the basis of universal suffrage can or will ignore these principles.” The use of the word “can” (in addition to “will”) is telling: it suggests that it is simply not open to the legislature to ignore the Principles, whether it chooses to or not. But the only way in which this makes sense would be if the Court was to impose the legal fiction that we have discussed before – that the legislature has applied the Directive Principles in the making of laws (whether or not individual legislators consciously did so).

Evidence that what distinguished Part III and Part IV, in the mind of the framers, was a narrow conception of legal enforceability/remedies is evident from the debate over Draft Article 36. Originally worded as “every citizen is entitled to free primary education…”, it was amended to “The State shall endeavour to provide… free and compulsory educationon the specific ground that the language of entitlement (which, of course, logically entails a remedy) was the language of fundamental rights. In addition, as Minattur points out, the fact that the word “enforceable” in Article 37 was actually brought in to replace the word “cognizable” (which is of much wider import), makes the argument compelling.

To these arguments, we can add a brief, structural point. The principle of non-superfluity is a standard interpretive technique, based on the assumption that the legislature does not waste its words. Thus, an interpretation that renders a part of a statute legally irrelevant is to be avoided, if possible. Surely the same argument applies with even greater force to the Constitution: ceteris paribus, an interpretation that renders an entire Chapter constitutionally irrelevant is to be avoided, if possible. The above arguments have been designed to demonstrate that at the very least, an interpretation that does not do so is feasible.

In sum, therefore, the text, history and structure of the Constitution suggest the following holistic reading of Article 37: the first part – the non-enforceability clause – is limited to just that: citizens may not move the Court seeking remedies for either breach of a directive principle, or for requiring Parliament to enact a directive principle into law. The second and third parts – that specify the fundamental nature of the Principles and the duty of the State to apply them –set out an interpretive role for the Principles to play in determining the legal meaning of statutes. Article 37, thus, is janus-faced: it carves out a sphere in which the Directive Principles have no role to play, and at the same time, carves out another sphere in which they do. I suggest, therefore, contra Mr. Seervai, that in In Re Kerala Education Bill, therefore, the Supreme Court was correct in turning away from its own earlier jurisprudence.

In the next post, we will turn to the Supreme Court’s jurisprudence in the aftermath of In Re Kerala Education Bill, to understand what interpretive role the Directive Principles have played in the judicial enquiry.

Bombay HC Upholds S. 20(3) of HAMA

In a brief judgement today, the Bombay High Court rejected a challenge to S. 20(3) of the Hindu Adoptions and Maintenance Act. Under Sections 20(1) and 20(2), a Hindu is bound to maintain his children as long as they are minors. Section 20(3) stipulates, however, that an unmarried daughter is to be maintained as long as she is unable to maintain herself out of her own earnings or property. In other words, an unmarried son loses all claims to maintenance upon majority, while an unmarried daughter can claim if she is unable to maintain herself.

Section 20(3) was challenged on the grounds of Article 14 (equality before laws) and Article 15 (non-discrimination on the basis of sex). The Court rejected both arguments; unfortunately, it made no attempt to provide a reasoned argument supporting its conclusions. On the Article 14 issue, it noted:

The class of unmarried sons who have attainemajority is completely different from the class of unmarried daughters who have attained majorityThe reason being the peculiar position of a daughter and especially an unmarried daughter in Hindu society. Therefore, the argument that two equals are being treated as unequals is not at all acceptable and therefore, Article 14 will have no application.”

The conclusion states the premise. Why are the two classes different? What is this “peculiar position” occupied by the unmarried Hindu daughter? Logically, the reason for granting maintenance to one and denying it to the other can only be that the former class is expected not to be able or willing to maintain themselves. But is that a constitutionally legitimate assumption? In Anuj Garg vs Hotel Association, as we have discussed previously on this blog, the Supreme Court made it clear that stereotypical assumptions about the roles of the sexes in modern society, or about the spheres in which they should be confined by virtue of birth, cannot be made the basis of laws that grant unequal benefits or burdens to men or women. In fact, interestingly, the logic of Anuj Garg, which is borrowed from American sex discrimination jurisprudence, had its inception in Frontiero vs Richardson, a case where the challenged policy was somewhat similar to S. 20(3) of the HAMA. In Frontiero, according to the US Air Force rules for benefits for dependent spouses, “servicemen could claim their wives as dependents and get benefits for them automatically, while servicewomen had to prove that their husbands were dependent on them for more than half their support.” Holding this to be unconstitutional (even though it ostensibly benefited women), the Supreme Court held:

“[T]he sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members.

Notice, once again, that from within a tangible, purely economic framework, women were actually benefiting from the policy. But what the American Supreme Court was concerned about was the fact that these benefits were predicated upon an ideology that cast women as inferior, and destined to remain within the domestic sphere by virtue of their sex – a view that is now called “romantic paternalism”.

This brings us to the second prong upon which S. 20(3) was challenged – Article 15. Here, the Court was even more perfunctory in its dismissal:

“… clause (3) of Article 15 specifically provides that nothing in the Article 15 shall prevent the State from making any speciaprovision for women and children. Sub-section (3) of section 20 is a special provision within thmeaning of clause (3) of Article 15.”

Article 15(3) of the Constitution states:

“(3) Nothing in this article shall prevent the State from making any special provision for women and children.”

The key question, of course, is what is legitimately covered by the phrase “special provision” – and it speaks back to the discussion of Anuj Garg and Frontiero. Virtually any kind of inequality can be justified as being a “special provision” for women – in fact, recall that in Anuj Garg that prohibition upon women from working as bartenders was sought to be justified under Article 15(3), being a special provision for their benefit! This, of course, is the very embodiment of romantic paternalism, and Anuj Garg makes it clear that classifications on this basis cannot be sustained, even when the State makes a claim that the law actually benefits women, and is thereby saved by Article 15(3).

This being the case, it is unfortunate that the Bombay High Court blandly assumed that a law that seemed to provided a benefit to women at first blush, was automatically saved by Article 15(3), without the need for a further enquiry into its rationale and its foundations. Of course, there is a very fine line between a law that is based on impermissible stereotypes, and a law that allocates unequal benefits and burdens in a bid to remove historical and structural disadvantages. For instance, a law mandating reservations for women in Parliament is clearly not based on stereotypes about the separate roles and spheres of men and women (quite the contrary!), but is meant to help women to overcome long-standing hurdles to their full participation in politics and the public sphere. Similarly, it might well be argued that 20(3) is simply cognisant of an unfortunate social reality, and seeks to ensure that women are put on a secure financial footing, in order for them to truly be in a position to lead fulfilling and self-determined lives.

I am not sure whether such an argument would succeed, but it is an argument that needs to be engaged with, when considering the constitutional validity of provisions like 20(3), which very evidently place unequal burdens upon men and women, and definitely had their inception in a romantic-paternalistic view of women as domestic and private beings. Unfortunately, by reducing both constitutional arguments (14 and 15) to mere assertions, the Bombay High Court missed a chance to develop Indian sex-discrimination jurisprudence in a meaningful way.