Monthly Archives: September 2015

Notes from a Foreign Field: The New Zealand High Court Issues Its First “Declaration of Incompatibility”

(We are starting a new series called ‘Notes from a Foreign Field’, focusing on decisions of other constitutional courts, and constitutional controversies in other jurisdictions, written by specialists from those jurisdictions. In the opening post, Max Harris, a New Zealand lawyer and presently Prize Fellow at All Souls College, Oxford, writes about a recent, important decision of the New Zealand High Court, which broke new ground in the area of judicial review)

On 24 July 2015, Justice Heath of the New Zealand High Court issued a landmark human rights decision, Taylor v Attorney-General [2015] NZHC 1706. The case is worth reviewing for readers outside of New Zealand. it provides an overview of the human rights landscape of a jurisdiction that is often overlooked, presents a further perspective for global debates on prisoner voting, and is an example of robust judicial reasoning in a constitutional context.

The Taylor case arose out of New Zealand’s Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010, which imposed a blanket ban on prisoners voting in New Zealand elections. The position prior to 2010 had been that prisoners serving a prison term longer than three years were banned from voting. Arthur Taylor, a prisoner, challenged the 2010 Act. He argued that it posed an unreasonable limit on his right to vote, under s 12 of the New Zealand Bill of Rights Act 1990.

The New Zealand Bill of Rights Act 1990 is an early example of a statutory bill of rights. The original draft Bill of Rights empowered judges to strike down legislation, but after public opposition to this, the Act reached a compromise solution. It lists a standard set of rights and freedoms, indicates that rights are subject only to “reasonable limits” that can be “prescribed by law” and “demonstrably justified in a free and democratic society” (s 5), but makes clear that legislation cannot be struck down where limits on rights are found to be unreasonable (s 4). The Act allows the Attorney-General to flag up violations of rights at the legislative drafting stage (s 7), and also notes that “[w]herever” legislation “can be given a meaning” consistent with rights, “that meaning shall be preferred to any other meaning” (s 6).

The Act was a model for the UK’s Human Rights Act 1998. However, unlike the Human Rights Act, the New Zealand Bill of Rights Act 1990 does not spell out the remedies available for litigants in the event that a court finds that legislation unreasonably limits rights. In Simpson v Attorney-General [1994] 3 NZLR 667 (Baigent’s case), the New Zealand Court of Appeal found that damages should be available for violations of the New Zealand Bill of Rights Act. What remained in doubt was whether New Zealand courts could issue a declaration of inconsistency or incompatibility (of the kind explicitly allowed by s 4 of the Human Rights Act 1998 in the UK), where an Act imposes an unreasonable limit on rights. That was the key issue in the Taylor case, because Arthur Taylor asked the High Court to issue a declaration of inconsistency with respect to New Zealand’s prisoner disenfranchisement legislation.

Let us consider the judgment. Justice Heath points to the fact that interestingly, the Crown had conceded that there was inconsistency between the legislation and the right to vote, and agrees with the Attorney-General’s preliminary opinion that there was an inconsistency. He adds one further reason why the legislation is an unreasonable limit on the right to vote: it arbitrarily focuses on imprisonment, rather than conviction, thereby allowing a person who is sentenced to home detention to retain a right to vote, though that person may be as equally culpable as another person sentenced to imprisonment.

So far, so uncontroversial. The real question in the case, however, was that given the acknowledged inconsistency, whether the Court has jurisdiction to grant a declaration of inconsistency, in light of the New Zealand Bill of Rights Act 1990 and relevant policy concerns.

The first argument made by Crown lawyers was that a declaration could not be issued in a case where there is no dispute over interpretation of legislation. It was said that the main remedy provided by the New Zealand Bill of Rights Act is an interpretive one: courts can try to interpret away a possible inconsistency with rights, but cannot issue a declaration saying that legislation is inconsistent with rights. Justice Heath considers this argument and rejects it. He accepts that there are some restrictions on when a declaration can be granted. The New Zealand District Court is a creature of statute and cannot grant any declarations (let alone a declaration of inconsistency), and declaratory relief should not be available in a criminal trial, because a declaration represents civil relief that would be inappropriate in a criminal context. (He cites a Court of Appeal decision that notes the inappropriateness of using civil remedies in a criminal context.) But he suggests that these should be the only restrictions placed, in principle, on the issuing of declarations of inconsistency.

Justice Heath points out that earlier courts had said that judges can, and indeed sometimes must, indicate an inconsistency between legislation and the New Zealand Bill of Rights Act. He says further that to allow a declaration of inconsistency would not contradict s 4 of the New Zealand Bill of Rights Act 1990 – the provision preventing judges from striking down legislation on Bill of Rights grounds. Acknowledging the room for “judicial choice”, Heath J reviews earlier case law where remedies (including damages) for Bill of Rights breaches have been developed. He extracts a general principle that “where there has been a breach of the Bill of Rights there is a need for a Court to fashion public law remedies to respond to the wrong inherent in any breach of a fundamental right”. He concludes that Parliament did not intend to exclude the ability of a court to make a declaration of inconsistency.

Justice Heath feels fortified in this conclusion by the fact that a legislative amendment in 2001 allowed declarations of inconsistency in discrimination cases (heard by the Human Rights Review Tribunal in New Zealand). Through this legislative act, Justice Heath says, “Parliament has signaled that it sees no particular objection to that particular remedy being granted”. It would be odd for Parliament to confer this power on a lower tribunal, notes Justice Heath, and to empower higher courts to review use of this power on appeal, but to remove the right of higher courts to issue declarations of inconsistency. Whether a declaration of inconsistency breaches art 9 of the 1688 Bill of Rights (which protects parliamentary privilege and remains part of New Zealand law) or principles of comity between the legislature and the courts are matters that only affect whether a declaration should be issued in a particular case, according to Heath J, not matters that go to the general jurisdiction of a court to issue a declaration.

Addressing whether a declaration of inconsistency is appropriate in the Taylor case, Heath J considers arguments based in the Bill of Rights 1688 and comity. Heath J states that if courts are able to give reasons why legislation imposes unreasonable limits on rights under s 5 of the New Zealand Bill of Rights Act, it is hard to see how a declaration would create any greater intrusion on parliamentary privilege or comity. This is a kind of boot-strapping argument: if s 5 of the New Zealand Bill of Rights Act is constitutionally legitimate (a proposition Heath J assumes), then a declaration of inconsistency must be similarly legitimate.

Courts should not hold back from issuing declarations out of fear that they might be ignored, says Heath J. The New Zealand judicial oath requires decision-making “without fear or favour”. And the Court is, after all, not seeking to persuade – it is merely stating the law (echoing Justice Marshall’s statement from the US Supreme Court decision in Marbury v Madison (1803) 5 US 137). Heath J disagrees with the comments of an earlier judge in an interlocutory decision in the Taylor case that a court might hesitate to issue a declaration where the Attorney-General has already flagged up a Bill of Rights inconsistency in a s 7 report to Parliament. There is no reason why a court “should not reinforce the Attorney’s report”, notes Heath J. He adds that a court should also be able to disagree with an Attorney-General’s report.

Should the absence of a live controversy between parties prevent a declaration? Heath J points out that there is no limit of this kind for ordinary declarations under the Declaratory Judgments Act 1908 (though he doubts whether a declaration of inconsistency could be granted under that Act). Points of “constitutional importance” should be ventilated, says Heath J: “[t]he importance of the right and the nature of the inconsistency are sufficiently fundamental to demand a remedy”.

In this case, Heath J confirms that a declaration of inconsistency will be granted. The case concerns a central aspect of democracy, the right to vote: “if a declaration were not made in this case, it is difficult to conceive of one in which it would”. Heath J notes that “a formal declaration” is more appropriate than “an observation buried in [a court’s] reasons for judgment”. There is no violation of Art 9 of the Bill of Rights 1688 or principles of comity; the comment is on “the consequences of a legislative act”, not the internal workings of Parliament itself. The functions of the Attorney-General’s pre-legislative report and the court are different; the Attorney-General is considering an apparent inconsistency, a court is considering an actual inconsistency. A court’s ruling will also be more accessible. Finally, Heath J says, Parliament’s earlier legislative recognition of declarations in discrimination cases shows a certain amount of approval for the notion of declarations of inconsistency. Heath J notes in passing that there are “powerful arguments” that the earlier limitation on prisoner voting (allowing the vote only for prisoners serving fewer than three years in prison) could be Bill of Rights-compliant. He concludes with the declaration itself, in the following terms:

Section 80(1)(d) of the Electoral Act 1993 (as amended by the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010) is inconsistent with the right to vote affirmed and guaranteed in s 12(a) of the New Zealand Bill of Rights Act 1990, and cannot be justified under s 5 of that Act.

This is the first case in New Zealand in which a judge has issued a declaration of inconsistency. (In an earlier Court of Appeal case, R v Poumako [2000] 2 NZLR 695 (CA), one judge, Thomas J, issued a declaration of inconsistency, and reviewed the arguments for declarations in some detail. But he was the sole dissenting judge in this case.) The declaration has not resulted in any legislative reconsideration of the prisoner voting ban, however. It seems that no law change will be forthcoming. The Crown has not appealed the ruling.

What more general points, then, can be drawn from this detailed review of Heath J’s reasoning in Taylor v Attorney-General?

First, there are parts of the judgment at which criticism might be directed. Given Heath J’s emphasis on how distinct the Attorney-General’s s 7 report is from a court’s later review of legislation, it is surprising that he does not undertake a fresh proportionality assessment of the prisoner voting legislation in this case. Perhaps Heath J felt that in a controversial case like this one, and as the first judge ever to issue a declaration of inconsistency, it would be safer simply to affirm the Attorney-General’s earlier reasoning.   However, it would have been helpful for Heath J to offer further reasoning on this point, especially since prisoner voting bans have been contentious in other jurisdictions, including the United Kingdom, South Africa, and Canada. (An earlier interlocutory decision of Brown J did refer to some of these other cases.) As well, Heath J is a little peremptory in some conclusions. He is quick to accept that declarations of inconsistency should not be issued in criminal trials, when there is no legislative reference to this carve-out. And he is not entirely convincing in his claim that declarations of inconsistency do not undermine Art 9 of the Bill of Rights. Heath J might also have made some broader comments about the proper approach to the separation of powers and dialogue under the New Zealand Bill of Rights Act. Perhaps, however, these are points that might be expected in the judgment of an appellate court. Overall, Heath J’s judgment is admirably careful, considered, and courageous.

Secondly, the effect of the judgment – even if it is not momentous, and only slightly shifts the pre-existing position – is to recalibrate subtly the relationship between the courts and Parliament in New Zealand. New Zealand is a jurisdiction where judges have restricted powers. There is no single codified constitution in New Zealand, just as there is no single codified constitution in the United Kingdom. The generally accepted position is that judges cannot strike down legislation, and parliamentary sovereignty is often invoked. Judges (with some notable exceptions) tend to be deferential towards the executive and the legislature. Against that backdrop, this judgment gives judges slightly greater powers in human rights cases and should cause Parliament to hesitate a little more when passing legislation that might violate human rights. Whether, of course, Parliament actually shows more respect for human rights as a result of this judgment is an empirical question. The early signs are not especially promising: New Zealand Justice Minister Amy Adams, after the judgment was released, said that she was considering the judgment, but there seems to have been no further comment from the Minister since July of this year. Opposition Labour and Green Parties did use the judgment to call for the prisoner voting legislation to be repealed, and this highlights a further benefit of declarations of inconsistency: even if they do not lead to direct political change, they can provide tools for citizens, campaigning groups, and other politicians to criticise legislation.

In the earthquake-prone islands of New Zealand in the South Pacific, this judgment may not have shifted the tectonic plates of constitutional law – but at the very least, Taylor has jolted the constitutional landscape. The case is a significant milestone in the development of the jurisprudence of the New Zealand Bill of Rights Act 1990, and an important reminder of the valuable role that courts can play in clarifying matters of principle – and upholding human rights.

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Filed under Comparative Constitutional Law, Judicial Review, New Zealand

The Delhi High Court on Pregnancy and Sex Discrimination

Recently, my attention was drawn to a fascinating judgment of a division bench of the Delhi High Court, delivered last month. Inspector (Mahila) Ravina vs Union of India concerned a challenge to the CRPF’s denial of promotion to a female inspector. The facts are somewhat complex. For our purposes, it is sufficient to note that the Petitioner, an inspector in the CRPF, was unable to attend a Pre-Promotional Course, conducted between July and August 2011, because she was pregnant. Consequently, after her pregnancy was over, she attended the next Course, conducted in July and August 2012, and qualified, thus fulfilling the requirements for promotion to the next-higher post. However, when the CRPF released its promotion list in 2014, the Petitioner’s name was not included, and consequently, she lost her seniority vis-a-vis her batchmates and juniors. When the Petitioner filed a representation before the CRPF, she was informed that she had lost her seniority because of her “unwillingness to attend the promotional course [held in 2011].” The Petitioner challenged this decision before the High Court.

The question before the High Court, therefore, was whether “the Petitioner’s pregnancy would amount to unwillingness or signify her inability to attend a required promotional course and if she is entitled to a relaxation of rules to claim seniority at par with her batchmates.” The Court upheld the Petitioner’s claim on two grounds, both of which merit close attention.

First, the Court held penalising the Petitioner for her pregnancy violated Article 21 of the Constitution. In paragraph 9, Justice Ravindra Bhat observed:

To conclude that pregnancy amounts to mere unwillingness – as the respondents did in this case- was an indefensible. The choice to bear a child is not only a deeply personal one for a family but is also a physically taxing time for the mother. This right to reproduction and child rearing is an essential facet of Article 21 of the Constitution; it is underscored by the commitment of the Constitution framers to ensure that circumstances conducive to the exercise of this choice are created and maintained by the State at all times. This commitment is signified by Article 42 (“Provision for just and humane conditions of work and maternity relief- The State shall provide conditions for securing just and humane conditions of work and for maternity relief”) and Article 45 (“Provision for early childhood care and education to children below the age of six years- The State shall endeavour to provide for early childhood care… ”)…”

There are two important points that need to be noted here. The first is that under the Court’s interpretation of Article 21, personal liberty is violated not only through coercive State action, but also State action that puts persons in a position where they must choose between availing a State benefit, or exercising a constitutional right. In other words, if “unwillingness” is to be construed as including absence due to pregnancy, then a woman is put in a position where she has to either forego her promotion, or forego her pregnancy. The State is therefore penalising women who exercise their constitutional rights by withholding the benefit of promotion from them. Readers will note the similarity between the argument here, and the doctrine of unconstitutional conditions discussed in the last post. The petitioner’s position here was even stronger, however, because denial of promotion is a more tangible and direct harm than withdrawal of a tax exemption.

The second is the Court’s use of the Directive Principles of State Policy – in particular, Articles 42 and 45. As I have attempted to argue before, a conceptually sound approach towards the DPSPs must respect the fact that the framers chose to make them unenforceable, while finding a textually and structurally relevant role for them in constitutional interpretation. There are two possible ways of doing this. One is that where a legal provision may be reasonably interpreted in two different ways, the interpretation that furthers the Directive Principles ought to be given precedence. The second is that the Directive Principles may be used to provide concrete content to the abstract concepts contained in Part III of the Constitution. In paragraph 9, the Delhi High Court does both. Referring to Articles 42 and 45, it holds that the guarantee under Article 21 is not merely a negative prohibition against coercive State action, but also casts a positive obligation upon the State “to ensure that circumstances conducive to the exercise of this [Article 21] choice are created and maintained by the State at all times.” In the instant case, this concretely translates into prohibiting the State from indirectly penalising a person if they choose to exercise their constitutionally guaranteed right to personal liberty. The Court also uses the DPSPs interpretively, by preferring an interpretation of the word “unwilling” that excludes pregnancy rather than one that includes it.

In its Article 21 analysis under paragraph 9, the Court stresses that pregnancy is a “deeply personal” choice. This is an ideal segue into the second part of the Court’s analysis. In paragraph 12, the Justice Bhat holds:

“It would be a travesty of justice if a female public employee were forced to choose between having a child and her career. This is exactly what the CRPF‟s position entails. Pregnancy is a departure from an employee‟s “normal” condition and to equate both sets of public employees- i.e. those who do not have to make such choice and those who do (like the petitioner) and apply the same standards mechanically is discriminatory. Unlike plain unwillingness – on the part of an officer to undertake the course, which can possibly entail loss of seniority – the choice exercised by a female employee to become a parent stands on an entirely different footing. If the latter is treated as expressing unwillingness, CRPF would clearly violate Article 21. As between a male official and female official, there is no distinction, in regard to promotional avenues; none was asserted. In fact, there is a common pre-promotional programme which both have to undergo; both belong to a common cadre. In these circumstances, the denial of seniority benefit to the petitioner amounts to an infraction of Article 16 (1) and (2) of the Constitution, which guarantee equality to all in matters of public employment, regardless of religion, caste, sex, descent, place of birth, residence etc. A seemingly “neutral” reason such as inability of the employee, or unwillingness, if not probed closely, would act in a discriminatory manner, directly impacting her service rights.

There are some crucial points here that need to be unpacked. The first is the express acknowledgment of pregnancy-based discrimination as a form of sex discrimination, which brings it within the non-discrimination guarantees under Articles 15 and 16 of the Constitution. As we discussed recently on this blog, the Supreme Court in Nargesh Mirza’s case (1981), dealt a serious blow to Indian sex discrimination jurisprudence by failing to consider pregnancy on the touchstones of Articles 15 and 16, and instead considering it under the “arbitrariness” prong of Article 14. Bizarrely, in Nargesh Mirza, the Supreme Court held that termination on a first pregnancy would be unconstitutional because arbitrary, but termination on a third pregnancy wouldn’t be (since it helped the nation’s family planning program and helped women become good mothers!). The discontents of the arbitrariness approach under Article 14 are legion, and I do not need to recount them here. The Court’s analysis of pregnancy discrimination under Article 16 represents a significant advance.

What is even more important, however, is how the Court does it. Justice Bhat observes that “a seemingly “neutral” reason such as inability of the employee, or unwillingness, if not probed closely, would act in a discriminatory manner, directly impacting her service rights.” This is the language of indirect discrimination: facially “neutral” provisions have a discriminatory impact because they end up reproducing existing social inequalities and hierarchies. As we have seen in our discussion of the evolution of Indian sex discrimination jurisprudence, indirect discrimination still has only a tenuous hold upon the imaginations of our judges. A large number of cases have chosen to interpret the word “grounds” in Articles 15 and 16 as referring to the reasons, or motives, behind a law, and have consequently refused to find discrimination even when there is a clear case of differential impact. In my analysis of the text of Articles 15 and 16, I advanced an alternative reading of the word “grounds”, one that referred not to the motive of the law, but to the characteristics that were protected from adverse impact (sex, race, caste etc.). An effect or impact-based test was accepted by the Supreme Court in Anuj GargHowever, even in Anuj Garg, the law itself was directly discriminatory: it prohibited women from working as bartenders. The Delhi High Court, however, applies the framework of indirect discrimination to a facially neutral law, which discriminated not on the basis of sex, but on the basis of pregnancy. In this, it follows an analytical tradition, the finest exemplar of which is the Andhra Pradesh High Court’s judgment in 1983, which struck down the restitution of conjugal rights provision under the Hindu Marriage Act as discriminatory, because of its strongly adverse impact upon women.*

It is also fascinating to note that Justice Bhat places the word “normal” within quotation marks. In the first part of the paragraph, he notes that “pregnancy is a departure from an employee’s “normal” condition…” This reveals the crucial understanding that our intuitive ideas about the existing baseline, the “normal” from which we judge deviations, is a political and social construct. In other words, the “normal” is constructed form the perspective of a privileged subject position. Previously on this blog, I have cited the work of Joan Williams, who makes the point in the context of workplace discrimination:

“... society is structured so that everyone one, regardless of sex, is limited to two unacceptable choices – men’s traditional life patterns or economic marginality. Under the current structure of wage labor, people are limited to being ideal workers, which leaves them with inadequate time to devote to parenting, and being primary parents condemned to relative poverty (if they are single parents) or economic vulnerability (if they are currently married to an ideal worker). Wage labor does not have to be structured in this way… [the recent] massive shift in the gendered distribution of wage labor has produced intense pressures to challenge the assumption that the ideal worker has no child care responsibilities. But this pressure is being evaded by a cultural decision to resolve the conflicts between home and work where they have always been resolved: on the backs of women. In the nineteenth century, married women “chose” total economic dependence in order to fulfill family responsibilities.’ Today, many women with children continue to make choices that marginalize them economically in order to fulfill those same responsibilities, through part-time work, “sequencing,” the “mommy track” or “women’s work.” In each case, the career patterns that accommodate women’s child-care responsibilities often are ones that hurt women’s earning potential.

The “normal” worker, therefore, being male, is not expected to become pregnant, and consequently, the baseline rules (penalisation for “unwillingness” to attend the promotional course) are constructed from his perspective. It is this edifice of exclusion that the Delhi High Court’s judgment interrogates, and then finds to be inconsistent with the Constitution.

By de-mythologising “normalcy”, the Delhi High Court has made another significant advance towards a jurisprudence of discrimination that is true to the Constitution’s commitment of ensuring social justice. In his dissenting opinion in Volks vs Robinson, Justice Albie Sachs of the South African Constitutional Court observed that “the purpose of constitutional law is to convert misfortune to be endured into injustice to be remedied.” The Constitution guarantees not only formal equality, but also promises that entrenched power structures which, over decades, even centuries of sedimentation, have attained the status of facts of nature, will no longer be treated as immutable in the very existence of things, but as human-caused instances of injustice, and will be dismantled. In a very profound sense, this judgment implements Justice Sachs’ vision of the transformative Constitution.

(*NB: The case before the Delhi High Court was an easier one than the one before the AP High Court, because while only women can get pregnant, both men and women can invoke the restitution of conjugal rights provision. The AP High Court rested its decision upon the unequal power relations within the family, which would mean that restitution of conjugal rights would adversely impact wives to an enormous degree, while having very little impact upon the lives of husbands. That judgment was reversed in one year by the Supreme Court. Perhaps it was too far ahead of its time. One hopes that thirty years later, as indirect discrimination continues to struggle for a foothold within Indian discrimination jurisprudence, the Delhi High Court has not also committed the error of being far ahead of its time.)

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Filed under Article 15 (general), Article 21 and the Right to Life, Equality, Non-discrimination, Right to Health, Sex Discrimination, Sex Equality

Gujarat’s Withdrawal of Tax Exemption to a Film on Homosexuality: The Doctrine of “Unconstitutional Conditions”

Yesterday, the Supreme Court admitted the State of Gujarat’s appeal against a decision of the High Court of Gujarat, which had set aside the Gujarat State Tax Commissioner’s denial of tax exemption to the film “The Colour of Life“. The Gujarat government grants a 100% entertainment tax exemption to Gujarati colour films produced after 1997. This exemption is, however, withheld from films “depicting evil customs, blind faith, sati, dowry and such “social evils,” and those “against national unity”.” “The Colour of Life” depicts the “sufferings of the homosexual prince”, and was refused tax exemption by the State Tax Commissioner. This decision was quashed by the Gujarat High Court, which held that it violated the filmmaker’s right to freedom of expression. The case was appealed, and the Supreme Court had passed an interim order denying tax exemption to the film.

Although the Supreme Court has only admitted the appeal, the filmmaker had pointed out that it effectively kills the film. This is because the time between admission of an appeal and the end of the final hearing is often a matter of years. In the meantime, the stay will continue to operate. Effectively, therefore, if the filmmaker cannot afford to pay the entertainment tax, the film will not be shown, whichever way the Supreme Court might decide the case. One of the most problematic aspects of our judicial system is precisely that delays ensure the effective victory of the party that has the upper hand in the status quo. In this case, the status quo is effectively a creation of the Supreme Court’s interim order, and if there is indeed a curtailment of the filmmaker’s free speech rights, then the Supreme Court is responsible for it – even if there is no financial decision yet.

It might, however, be argued that the interim order was justified, because there is no prima facie violation. The power to tax – and the power to grant exemptions from tax – is a State function. There is no prior entitlement or right to a tax exemption. Rather, it is in the form of a privilege. Withdrawing the privilege is a discretionary act by the government, and does not give rise to any constitutional claim.

It is in this context, however, that we must consider the doctrine of “unconstitutional conditions.” This doctrine originated in the United States, and holds that “the government may not require a person to give up a constitutional right in exchange for a discretionary benefit conferred by the government, even if the government is not obligated to provide the benefit in the first place.” Take the 2013 judgment of the Supreme Court in Agency for International Development vs Alliance for Open Society International. A US law provided for government funds to organisations combating HIV/AIDS worldwide. The Act also provided that no funds “may be used to promote or advocate the legalization or practice of prostitution,” and no funds may be used by an organization “that does not have a policy explicitly opposing prostitution.” In other words, in order to be eligible for government funds under the Act, organisations would have to refrain from promoting the legalisation of prostitution, and would also have to explicitly oppose prostitution.

The Supreme Court held that these provisions violated the First Amendment. The Court’s analysis was in two steps. First, the Court asked whether, if the government the impugned provisions were in the form of a direct regulation – i.e., the government compelling people to support its point of view on prostitution – it would be unconstitutional. The answer to that was clearly in the affirmative, since “the government is prohibited from telling people what they must say.” The next question was whether “whether the Government may nonetheless impose that requirement as a condition of federal funding.” Here, the Court drew a crucial distinction: between “conditions that define the limits of the Government spending program—those that specify the activities Congress wants to subsidize—and conditions that seek to leverage funding to regulate speech outside the contours of the federal program itself.” The distinction is a tricky one, but consider the following hypothetical: government may set up a fund for the promotion of Hindi literature. English writers cannot complain that this violates their rights, since the government is entitled to “specify the activities… it wants to subsidise.” In Agency for International Development, however, there was something more. As the Court pointed out, the case was “not about the Government’s ability to enlist the assistance of those with whom it already agrees. It is about compelling a grant recipient to adopt a particular belief as a condition of funding.”

In India, the unconstitutional conditions doctrine was adopted by Justices Mathew and Chandrachud in the 9-judge bench decision in Ahmedabad St Xavier’s College vs State of GujaratThe judges observed:

The doctrine of “unconstitutional condition” means any stipulation imposed upon the grant of a governmental privilege which in effect requires the recipient of the privilege to relinquish some constitutional right. This doctrine takes for granted that ‘the petitioner has no right to be a policeman’ but it emphasizes the right he is conceded to possess by reason of an explicit provision of the Constitution, namely, his right “to talk politics”. The major requirement of the doctrine is that the person complaining of the condition must demonstrate that it is unreasonable in the special sense that it takes away or abridges the exercise of a right protected by an explicit provision of the Constitution… though the state may have privileges within its control which it may withhold, it cannot use I a grant of those privileges to secure a valid consent to acts which, if imposed upon the grantee in invitum would be beyond its constitutional power.”

This, it will be noted, is substantively similar to the American doctrine. Let us now apply it to the case at hand. It is submitted if the government was to directly impose the restrictions contained in its tax-exemption policy, it would violate Article 19(1)(a) because of over-breadth. “Evil customs”, “blind faith” and things “against national unity” go beyond the 19(2) restrictions of “public order”, “decency or morality” (as interpreted in Ranjit Udeshi and Aveek Sarkar), and “security of the State” The Tax Commissioner’s stated justification for disallowing the exemption – that it would create “friction” in society – certainly goes far beyond Article 19(2). According to the second step of the argument, the conditional exemption is clearly not defining the boundaries of the state’s funding assistance program, but amounts to “compelling… an [exemption] recipient to adopt a particular belief as a condition of funding.”

Consequently, the denial of tax exemption to The Colour of Life – and arguably, the government’s exemption policy – imposes an unconstitutional condition upon filmmakers, and falls foul of the fundamental right to the freedom of speech under Article 19(1)(a). It might be too late in the day to save The Colour of Life, but a positive decision on merits might help in creating a more speech-protective doctrine for the future.

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Filed under Decency and Morality, Film Censorship, Free Speech, Unconstitutional Conditions

The Bombay High Court’s Ruling on NSE’s Defamation Case against Moneylife

In a significant judgment delivered yesterday, the Bombay High Court rejected the National Stock Exchange’s application for injunction, in a defamation action, against the journalist Sucheta Dalal (and others), for articles published on the financial news website, moneylife.in. Justice Gautam Patel also imposed heavy damages upon the NSE, in what seems to be an acknowledgment of the need to put a halt to proliferating SLAPP lawsuits (although imposing damages in an injunction application without disposing off the main suit seems a little incongruous). The imposition of damages will be particularly controversial, but it is not an issue I will deal with here.

The case is significant because it adds to a growing body of (High Court) jurisprudence on the relationship between defamation and the freedom of speech and expression. The constitutionalisation of defamation law, which began in the 1994 judgment of the Supreme Court in R. Rajagopal’s Case, has enjoyed an uneven history over the last twenty years.  The Bombay High Court’s decision bucks an emerging trend of subjecting defamation law standardsto rigorous constitutional scrutiny.

The disputed articles effectively accused the NSE of actively permitting illicit trading advantages to users of certain high-end technology. The two articles were written on the basis of a detailed anonymous letter that was sent to Sucheta Dalal. After receipt of the letters, Ms Dalal emailed the SEBI Chairman, as well as two persons “at the helm of” NSE’s affairs, but received no reply. A reminder email and a reminder SMS were also met with silence. After this failed correspondence, the two articles were published.

NSE claimed that the accusation was false, since the illicit advantage it talked about was technically impossible to arrange. NSE’s argument, consequently, was that the articles were defamatory, and not saved by the defences of truth, fair comment, or qualified privilege (the standard defences in civil defamation law).

In dealing with this submission, Justice Patel focused at length on Ms Dalal’s attempts at investigating the veracity of the claims made in the anonymous letter, and the NSE’s refusal to furnish her with the information they then put in their plaint, in order to argue that the Moneylife articles were false (i.e., the “illicit advantage” was not technically possible). Notice, however, that the common law of defamation is a strict liability offence: i.e., a false defamatory statement results in liability for the defendant, notwithstanding the care he or she took to establish its veracity. The relevance of Ms. Dalal’s investigations, therefore, depended upon modifying the common law standard of defamation, which is what Justice Patel proceeded to do. In paragraph 22, he noted:

“Mr. Basu has also done some quite formidable legal research. The point he makes is this: that there is a material difference when the complainant plaintiff is a public persona or figure or institution, as the NSE undoubtedly is, as opposed to a private citizen. He cites, of course, the classic decision in New York Times Co. v Sullivan, for its proposition that a public official cannot recover damages in a defamation action unless he proves with convincing clarity that the statement was made with knowledge of its falsity or with reckless disregard of whether or not it was false. This standard has been generally applied to public figures, but I will for the present, set this to one side since Sullivan seems to me to be closely hinged on the First and Fourteenth Amendments to the US Constitution. Mr. Basu’s reliance on Reynolds v Times Newspapers Ltd & Ors. may be more appropriate. That seems to me to be a case closer to our conception of the law in the field, though the law it states is somewhat different, as Radhakrishnan J noticed, from our own standard. I do not think this distinction is material, given the facts of this case. The House of Lords in Reynolds inter alia reviewed the law from other jurisdictions, including ours: it referenced the Supreme Court decision in Rajagopal v State of Tamil Nadu, 16 to much the same effect as Sullivan in relation to public officials. Now if there is no doubt, and I do not think there can be any doubt, that the NSE is very much a public body, then this standard must apply. In that situation, a demonstration that the defendant acted after a reasonable verification of the facts is sufficient to dislodge a claim for an injunction and a charge of malice.”

There is one crucial advance in this paragraph. In Rajagopal’s Case, the Supreme Court – following Sullivan – limited the higher threshold for defamation to public officials. As Justice Patel correctly notes, in the United States, “public officials” has subsequently been expanded to include public figures as well as issues of public importance. Although Justice Patel refuses to adopt the Sullivan standard here, in adopting the House of Lords decision in Reynolds, he definitively extends the threshold to public bodies and public figures. This is important, because a number of SLAPP defamation suits have been brought by large-scale private corporations that are (at least arguably) performing public functions. Justice Patel’s reasoning, therefore, opens the door to heightened scrutiny being applied to private corporate defamation claims as well. Something similar had been attempted six years ago by Justice Ravindra Bhat of the Delhi High Court in Petronetwhere in a claim injunction against disclosure of confidential information, a company with 50% state shareholding, and performing the important public function of gas distribution, was held to a Pentagon Papers-level threshold. Petronet, however, did not directly deal with defamation law. The Bombay High Court’s judgment is squarely on point.

It must also be noted that Rajagopal is a highly confusing judgment, which Justice Patel attempts to clarify in at least two ways. FirstRajagopal cites both Sullivan and Reynolds, which lay down very different tests, but does not specify which of them it is adopting. Justice Patel clarifies that he is adopting the latter. SecondlyRajagopal is entirely unclear about the issue of burdens. Under the Sullivan test, the burden of showing that the defendant acted with reckless disregard of the facts is upon the plaintiff. Under Reynolds, the burden of demonstrating reasonable verification of facts is upon the defendant. Justice Patel seems to adopt the latter, when he notes:

… where there is a factual demonstration of sufficient steps being taken to ascertain the ‘other side of the story’ and this opportunity, when presented, has been ignored, no more can be expected if it is also shown that the article when published was not unreasonable in its content, tone and tenor.”

In other words, insofar as a publication relates to a public official, public body or public figure, it is enough of a defence for the defendant to show that even if the publication is false in some respect, she acted only after a reasonable verification of the facts.

Unfortunately, much of the lucidity in the judgment so far is jeopardised in a rather unfortunate paragraph 26. Here, Justice Patel notes:

“For public bodies and figures, I would suggest that the legal standard is set higher to demonstrated actual malice and a wanton and reckless embracing of falsehood though countered at the first available opportunity. I do not think it is reasonable to propose a legal standard of utter faultlessness in reportage or public comment in relation to such bodies or persons. If there is indeed a factual error, can it be said to have been made in good faith, and in a reasonable belief that it was true? The ‘actual malice’ standard seems to me to suggest that one or both of these must be shown: intentional falsehood, or a reckless failure to attempt the verification that a reasonable person would. In this case, I do not think that the Plaintiffs have met that standard, or demonstrated either intentional falsehood or a failure to attempt a verification. The burden of proof in claiming the qualified privilege that attaches to fair comment can safely be said to have been discharged.”

Unfortunately, just like Rajagopal did, this paragraph conflates two very distinct legal standards. “Actual malice” and “reckless embracing of falsehood” is the Sullivan test, which requires proof of either intentional lying, or reckless disregard of truth. “Good faith” and “reasonable belief” in truth is modeled upon the tests currently in vogue in Canada, the UK and South Africa. “Reasonableness” is one step below “recklessness”, and imposes an affirmative burden upon the publisher to take certain measures towards establishing the truth of her claims. There is a further issue with the use of “qualified privilege” without explaining what, precisely, it means. Qualified privilege has now been statutorily abolished in the United Kingdom, and carries a very different meaning in Australia (applicable to statements on matters of political importance).

It is also a little unfortunate that the judgment makes very little mention of the appropriate legal standards to be followed in deciding upon an injunction in a defamation case. The High Courts of Delhi and Bombay have taken opposite views on the issue. The correct position at common law was laid down long ago in Bonnard vs Perryman, and prohibits the grant of an injunction unless it can be shown that the defendant has almost no chance of success at trial. In an otherwise erudite judgment, the failure to deal with the common law precedent directly on point is disappointing.

As an aside, it may also be noted that this judgment has an ancillary effect upon the criminal defamation challenge that has been reserved by a two-judge Bench of the Supreme Court. In affirming that civil defamation law allows for false defamatory statements to escape liability as long as they have been made after reasonable verification, it is once again established that Indian defamation law is unique in that, as it stands, criminal defamation is more stringent than civil defamation. It is to be hoped that this fact will be considered by the Supreme Court in deciding whether to strike down or read down Sections 499 and 500 of the IPC.

To sum up: Justice Patel’s judgment is significant in that it extends the higher threshold of defamation from public officials to all public figures or public bodies. It also seems adopts the Reynolds defence of reasonable verification of facts in case of false defamatory statements, with its attendant evidentiary burdens. Depending on how you read Rajagopal, this may or may not be correct. In any event, it is important to note, once more, that Sullivan (actual malice) is not equivalent to the reasonableness standard, but is considerably more speech-protective. We still await clarity for which of those standards is to be adopted under Indian civil defamation law.

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Haryana’s Educational Qualifications Ordinance Becomes an Act

Previously on this blog, we have discussed the Rajasthan legislature’s imposition of educational qualifications as a pre-requisite to contest local body elections, via an Ordinance, strategically passed last December, just before local body polls. The Supreme Court and Rajasthan High Court’s refusal to expeditiously deal with the issue meant that the elections went ahead, disenfranchising a large segment of the population. The case is still pending adjudication.

The other state that has introduced a similar requirement is Haryana. On August 22, the Chandigarh High Court stayed the operation of Haryana’s ordinance. Two weeks later – late this Monday, in fact – the Haryana parliament passed the Panchayati Raj Amendment Bill, in substance converting the Ordinance into an Act. The next morning, it announced the schedule of the elections. The reason for this is that once the schedule is announced, the election process is deemed to have been set in motion, and according to the jurisprudence of the courts, may not be stayed until completion.

While the judge-made rule against staying elections once the process has begun is a hoary one, the State can hardly be said to have clean hands in this case! The Ordinance was stayed specifically because a constitutional challenge was raised. The legislature’s move – converting it into a law, and then announcing the schedule within the space of a few hours – is clearly designed to avoid a judicial challenge and stay on the very same issue on which the Court has already granted a stay. Surely, if ever there was a time to depart from the principle that elections ought not to be stayed once the schedule has been announced, this is it.

Rajasthan and Haryana are now two states that have property and literary-based disqualifications in place for running for elected office. In the trajectory of enfranchisement throughout world democracies, this places them somewhere in the 1920s. In the nine months since this began, the Supreme Court as well as the High Courts have failed to respond. If this manner of disenfranchisement continues unchecked, it must surely rank as one of the more serious instances of the courts’ abdication of their role as guardians of civil and constitutional rights.

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Female Intestate Succession under Hindu Law: Analyzing its Constitutionality

(This is a guest post by Ayushi Singhal)

Under the present legal system of India, people from different religions are governed by their own personal laws in matters of inheritance, marriage, separation, guardianship etc. In this regard, the succession in Hindus is governed by the Hindu Succession Act, 1956 (‘HSA’). A peculiar fact about this Act is that it makes a differentiation between the intestate succession of females and males. The female intestate succession is further dependent on the source from which the property was received by the deceased female. This post after critiquing the Act as it stands (it being discriminatory and therefore unconstitutional) discusses the development in law brought by a Bombay High Court decision, which I hope will be affirmed by the larger bench putting an end to the present scheme of female intestate succession amongst Hindus.

The property of a Hindu female under the HSA has been divided into three categories, viz. property inherited by a female from her father or mother, property inherited from her husband or father-in-law and the third kind, the properties which are not governed by the first two categories. This kind of differentiation, depending upon the source of property and gender, is not seen in any other religion across the world. Under §15 r/w §16 of the HSA, the general rule for succession of all kinds of the properties is that it will pass on to the children (or if children predeceased the female, to the predeceased children’s children) and the husband. However, in case there is no one in existence from the above at the time when succession opens, the first kind of property will be inherited by the heirs of her father and the second by the heirs of her husband. Perhaps, the intention of the legislature was that the property should go back to the source from which it was received. It is the succession procedure of the third kind of property, which includes the self acquired properties or properties received in any other manner or from any other source, provided the female has absolute rights in that property, which is under question in this post. §15(1) of the act provides for a specific order, in which this property divests;

“(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother”

The discriminatory nature of this law can be understood using the case of Om Prakash v. Radha Charan (‘Om Prakash’). The case pertains to Narayani, after whose death, there was a dispute regarding the succession of her properties. Ramkishori, the mother of Narayani, filed an application for grant of succession certificate under §372 of the Indian Succession Act, 1925. The respondents, who were the brothers of Narayani’s husband, also filed a similar application to get the succession of Narayani’s self acquired properties. To understand the complication in the situation, it is important to know the background of the way the properties were acquired.

Narayani’s husband died of snake bite within a short period after marriage. She was then thrown out of her matrimonial place by her in-laws who were the respondents here. She was never enquired of for the 42 years she stayed in her parents place after the husband’s death. She was educated by her parents and subsequently gained a well paid job. Therefore, she left a huge amount of property including bank accounts, provident funds, land etc. She died intestate at the end of these 42 years. Despite these facts, the Judges said that sentiments and sympathy cannot be a guiding principle to determine the interpretation of law and it should not be interpreted in a manner that was not envisaged by the legislature. The court stating so said that the HSA specifically mentioned that the self acquired properties will pass on to the husband’s heirs in the absence of any issues and husband, which was the case with Narayani also and so the court will have to pass the judgment in favor of the respondents.

Although it is understandable that the court couldn’t have gone beyond the intention of the legislature, however, neither did the court give full effect to what the Parliament intended. The argument of the advocate for Narayani’s mother holds weight in this regard. The lawyer argued that since the intent of the Parliament while introducing the said section was to send the property back to the source and not to a stranger, it is logical that since here the property was earned via the money spent by Narayani’s parents, the money so earned should be returned to her parents. This wasn’t accepted by the court.

It should be noticed that the succession laws are not only about the ones who are entitled to the property, but also about the ones who should be disentitled. The 21st edition of Principles of Hindu Law (Mulla) also observes that §15(2) is based on the grounds that property should not pass to the individual “whom justice would require it should not pass.” Here, the court granted the property to the very people who behaved cruelly with the deceased and did not maintain the relationship when she needed it the most. As has been argued by the scholar Dr. Poonam Pradhan Saxena, the court should have denied them the locus standi of asking the property of a person whom they had disregarded for more than four decades. Support can be drawn for the above argument from §25 of the HSA, where a murderer is disqualified from inheriting the property of the person he/she has murdered. It is based on the belief that the deceased person will never want the person who murdered him/her to inherit property.

On the other hand, §8 of the Act which deals with succession in the case of males, gives precedence to blood relatives over the relationships arising out of marriage. This prejudiced scheme of the act is evidently ultravires the constitution since the rules for males and females in the Act are different and thus they discriminate only on the basis of gender which is prohibited under Article 15(1) of the Indian Constitution.

In contrast to the Parsi, Muslim or Christian law, where the blood relatives of the women inherit even in the presence of her husband or her husband’s relatives, the blood relations of a Hindu woman are given an inferior position in contrast to her husband’s heirs. This leads to a situation where her own relatives will never be able to inherit in case there is even a remote heir of the husband. There is judicial imposition of the husband’s relatives over her own blood relations. The entire group of husband’s heirs inherits from her, whereas she does not inherit from them. The marriage of a man doesn’t make a difference on the way his property gets devolved, but the marriage of a woman changes the pattern of inheritance for her properties. This is a result of the thinking that a woman has no family of her own, it is either the husband’s or the father’s that she lives in. The woman is not treated as an independent individual capable of transferring her property to her blood relatives, but an epitome of her husband. The law is also a suggestion of the discarded view that the woman has a limited stake in the property. This view which was sought to be removed by §14(1) of the HSA, still clearly lingers in the scheme of succession.

However a recent Bombay High Court decision in Mamta Dinesh Vakil v. Bansi S. Wadhwa has tried to change the position in this respect. The case is a regular female intestate succession issue, however one of the few to challenge the constitutionality of the law as it stands today. To understand the basis of the judgment, one needs to understand the principles on which affirmative discrimination is made in the law.

Under Article 15(1) of the Indian Constitution, discrimination cannot be made “against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”. This being the case, discrimination based only on the above grounds is unconstitutional, but not the one which is based on the above factors coupled with some other criteria like social and educational backwardness. Taking this argument further, it was argued in the Bombay High Court case that the inequality which exists in §15(1) of the Act, is not based on gender alone but also on family ties. Building it further, it was said, “that the woman, upon marriage, goes into the family of her husband; the converse is not true. A woman gives up her maternal/paternal ties upon her marriage and assumes marital ties. Hence, intestate succession for Hindus takes into account this ground reality.” It was argued that it is considering this reality that the legislature has provided for the heirs of the husband in the woman’s property.

It needs to be noticed that the constitutional validity of the section in question was also brought to the judiciary in an earlier case of Sonubai Yeshwant Jadhav v. Bala Govinda Yadav. It was held there that

“… the object of the legislation was to retain property with the joint family upon marriage which brought males and females together forming one institution. It, therefore, accepted that in recognition of that position when the wife’s succession opened, the class known as heirs of the husband were permitted to succeed as a result of initial unity in marriage upon which the female merged in the family of her husband”.

The court in the present case, rejected this argument, and added that the discrimination in the section is only based on gender and not also on family ties. The court analyzed the succession scheme of the male intestates under the HSA to check the viability of the argument. It noticed that keeping the property within the family wasn’t being envisaged, otherwise the property of a male Hindu wouldn’t be inherited by daughters, sister’s sons and sister’s daughters, since they marry off to homes of other people. It was thus observed that the only basis of this classification was gender. It was further concluded that the Section is extremely discriminatory in as much as the female’s property even if self acquired is not inherited by her core heirs. Further a Hindu female who would expect to inherit from the estate of another “receive(s) setback from distant relatives of husband of deceased not even known to her or contemplated by her to be her competitors”. Therefore the Section is ultra vires the scheme of the Constitution and hence invalid.

The question that judiciary shouldn’t interfere in personal laws was also brought up. The court considered that it will be a blemish that even when the Hindu society was thriving towards gender equality, the succession laws discriminate. It was said that a legislation which discriminates only on the basis of gender, can be questioned, as was done when §§ 10 and 34 of the Indian Divorce Act were amended (in the cases of Ammini E. J. v. Union of India and N. Sarda Mani v. G. Alexander). Moreover, there have been progressive changes in the Hindu law itself, e.g. the amendment in §6 giving women the right to coparcenary and deletion of §23 which deprived women of sharing the dwelling house by the 2005 amendment. It was recognized that although there can be different laws for different religions, there cannot be different laws for different sexes and thus the judiciary has a right to interfere in the latter case.

Although a magnum opus, this judgment has been passed by a single bench of the High Court and needs to be affirmed by the division bench. Once it is so done, it will be a watershed judgment to bring in equality in the Hindu law. Once declared unconstitutional, the government can use the recommendations of the 207th Law Commission Report to bring reforms in the law. The report suggests two options, one of bringing the intestate succession laws in parity with the males, and the other of dividing the property equally among the matrimonial and natal heirs taking into note the ground reality that the woman ultimately leaves her natal place and works under the constant support of her in-laws. Either of these options will be progressive changes in the Hindu law.

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Guest Post: Women and the Constituent Assembly – II: The Framing of the Non-Discrimination Clause

Initial Drafts

The initial drafts of the equality and non-discrimination provisions were prepared by B.R.Ambedkar (B Shiva Rao Ed. “The framing of India’s Constitution- Select Documents’ Universal law publishing co. Pvt. Ltd Vol II (2004) PP 86-88) and K.M.Munshi (Vol II PP 74-75). Ambedkar’s draft referred to the ‘prohibition of disqualification inter alia on the ground of sex’ only once in respect of holding of public office or practicing of trade or calling (Vol II 84-88). The remainder of the draft provisions were gender neutral using either the words and phrases “all persons, person, public, or people (Vol II 84-88), or “all citizens or every citizen” Moreover, he did not recommend any special provisions for women or children.

However, in comparison to B.R. Ambedkar, K.M. Munshi’s draft attached more significance to gender (Vol II 74-75) in two respects;

  • Calling for treatment of women at equal basis with men generally and;
  • Providing justification for exceptions to the rule against sexual discrimination.

He was also less gender neutral in his approach than Ambedkar and used the words ‘women and men’ (rather than citizens). Clauses 1 and 3 of his draft are worth noting.

  • All persons irrespective of…….. sex are equal before the law and are entitled to the same rights and are subject to the same duties.
  • Women citizens are the equal of men citizens in all spheres of political, economic, social and cultural life and are entitled to the civil rights and subject to same civil duties unless where exception is made in such rights or duties by the law of the Union on account of ‘sex’(Vol II 74)

Ironically, he did not advocate prohibition of ‘discrimination on the ground of sex’ in respect of equal access to public places and enjoyment of equal opportunities in spheres of public employment and office of power and honour, the exercise of trade, profession or calling and exercise of franchise (Vol II 74-75). Thus, unlike Ambedkar who espoused formal equality, the draft of Munshi was a combination of paternalism and formal equality and was influenced by cultural feminism.

Based on both drafts, the sub-committee on fundamental rights produced a non-discrimination provision: draft Article 5. This Article apart from recognizing the principles of equality before law and the equal protection of the law also prohibited discrimination on the ground of sex (but not gender). The obligation of non-discrimination was not only vertical but also horizontal, bringing into its scope ‘wells, tanks, roads, schools and places of public resort’ (Vol II P 138). Constitutional adviser B. N. Rau expressed concern that,

“…. The clause as drafted would prejudicially affect the institution of separate schools, hospitals etc for women” (Vol II P 148)

The Minorities Sub-Committee, endorsing the suggestion of Rau, decided to remove ‘sex’ as one of the prohibited grounds of discrimination, so far as ‘the use of wells, tanks, roads and places of public resort’ was concerned and also excluded ‘schools’ from this clause. (Vol II P 208)

The above views of both these committees were discussed by Advisory Committee. Although there was consensus in the committee to have a strong Anti-discrimination provision, it was also felt that,

“..the drafting of a clause which would prevent discrimination and at the time would serve the practical social ends was somewhat complicated.” (Vol II P 208, P 221, 253-255)

According to the Committee the same was crucial in respect of discrimination on the ground of ‘sex’. In order, therefore to redraft the Anti-discrimination clause, yet another sub-committee consisting of Munshi, Rajgopalachari, Pannikar and Ambedkar was constituted. (Vol II P 223)

This sub-committee drafted the general nondiscrimination provision, which read:

The State shall make no discrimination against any citizen on grounds of religion, race, caste or sex...’ (Vol II P 256).

However, in regard to access to trading establishments, public restaurants and hotels and use of wells, tanks and places of public resort, it omitted ‘sex’ as one of prohibited grounds of discrimination. During the debates, Rajkumari Amrit Kaur objected, arguing that this went against the basic principles of social equality. Rajgopalachari tried to defend it by pointing out,

“…in dealing with particularities, separate provision for women would be necessary and if we say that there shall be no discrimination, we will have to follow it.” (Vol II P 257)

Another member Panikkar added a new dimension to the debate by pointing out,

“..discrimination for women means discrimination against men…when you say no discrimination shall be made on the ground of sex, it also means it should not be discriminated against men...” (Vol II P 257)

However, the debate ultimately resulted in adoption of redraft of the clause suggested by Rajgopalachari, which apart from accepting the objection of Rajkumari Amrit Kaur, also had a proviso, ‘provided that nothing contained in this clause shall prevent separate provisions being made for women.’ (Vol II P 258). Draft Article 11 was then debated by Constituent Assembly on 29th April 1947 but the discussion did not result in any material changes in the provisions dealing with discrimination on the ground of Sex. (B Shiva Rao Vol V P186-187)

The Final Wording and the Debates over the Word “Only”

This clause however was qualitatively modified along the lines of Section 87 of Charter Act, 1833 which became Section 298(1) of Govt. Of India Act 1935 by Constitutional Adviser and remained part of both the Draft Constitutions. When the I visited HANSARD to gather the legislative intention of British Parliament behind enactment of section 87 and 298, I did not find any discussion on the same. (B Shiva Rao Vol III (2004) P 7-8, P 521)

To have an idea of the changes made by Constitutional Adviser B.N. Rau, it is necessary to compare the language of the clause 11 (1) and clause 9(1) in the draft Constitutions with the earlier clause 4 of draft of subcommittee. He substituted the following clause as clause 1 of draft Article 11. The changes made are italicized. ‘The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or any of them.’ 

It is also interesting to note that, B. Pattabhi Sitaramayya, Durgabai, Mahavir Tyagi,Thakurdas Bhargava. B.V. Keskar, T.T. Krishnamachari, M. Anathasayanam Ayyangar and k. Santhanam raised objections about the inclusion of the word ‘only’ and recommended its deletion wherever it occurred viz. draft article 9 and 10 etc (presently Articles 15 and 16 of Constitution of India). However, the same was rejected by B.N. Rau, by giving following justification,

“[There is an argument that] there are advantages in retaining this wording. For example, suppose because of discrimination against Indians in South Africa, India decides to discriminate against South African Europeans in India. Such discrimination would be on grounds of race, but not on grounds only of race: the Constitution as it stands, would permit it, but not if it is amended as proposed”… In my opinion, It is not clear how this example would explain the insertion of the word ‘only’ in draft clause 10 (presently Article 16 of constitution of India) dealing with non-discrimination in the public employment. Rau also did not offer any justification or articulated his thought on the insertion of the words ‘only’ ‘or any of them’ in his book. (B. Shiva Rao Vol IV (2004) PP 27)

During the final debate on this Article on 29th November 1948, the above amendment of B. Pattabhi Sitaramayya and others was not taken up. (P 673) But on same day, during the final discussion of draft article 10 ( present article 16 of constitution of India), Naziruuddin Ahmad moved amendment no 333, by observing “That in clause (2) of article 10, for the words ‘on grounds only’ the words, ‘on grounds’ be substituted. It is really a motion for deletion of the word ‘only’ which seems to be redundant or rather causing some difficulty. The same difficulty has been felt by a large number of honorable members, as is evidenced by several amendments to the same effect”.

The other similar amendments were amendment no. 335 and first part of 337. It is also necessary to point out another amendment no. 336 moved by Naziruddin Ahmad, also doing away with the word “only”: “thus for clause (2) of article 10, the following clause be substituted, ‘(2) every citizen shall be eligible for office under the state irrespective of his religion, caste, sex, descent or place of birth’.. the only reason for suggesting this amendment is that it is more direct in form” Amendment 341 was similar to the amendment 336 and was not moved.

During his reply to the discussion ,B.R. Amebdkar pointed out, “Mr. Vice President… that I cannot accept amendment 334 by Misra nor I can accept the two amendments moved by Mr Nazruddin Ahemad , nos. 336 and 337…”

I submit that the observations of B.R. Ambedkar in respect of the amendments moved by Nazruddin Ahmad sidestepped the real issue as to what in substance were the objections raised by the members.

Anti-discrimination vs Non-discrimination

Furthermore, an amendment suggested by Jaypraksh Narayan to add a sub-clause to clause 1 of Article 9, so as to afford protection against discrimination on the ground of ‘sex’ for interalia ‘possession of property, exercising or carrying of any occupation etc’ was also rejected by pointing out interalia,

“ … Under Hindu Law there are certain disabilities with regard to the possession of property on the ground of ‘sex’….it may for example be necessary to impose restrictions on the carrying out of certain occupations by women such as the occupation of rickshaw-puller, the occupation of laborer in mines etc….the amendment if accepted, will not enable the State to impose any such restrictions…..” (Vol IV (2004) PP 29-30)

On the basis of this, I submit that B.N. Rau introduced a subtle distinction between ‘Anti-discrimination and non-discrimination’ because although as a part of strategy of Anti-discrimination, he retained all the prohibited grounds as suggested by Rajgopalachari Committee, but he seriously watered down the scope of Non-discrimination. Thus, he envisaged the possibility of legitimizing the discrimination even on prohibited grounds, if State could suggest some other non-prohibited grounds as compelling justification for the discrimination and could prove that it is not a discrimination ‘only’ on one of the prohibited grounds. Of course in one way the draft of B.N. Rau was quite ahead of time. By incorporating the words ‘or any of them’ he not only recognized the phenomenon of Multiple discrimination but also created a potential for invocation of ‘Principle of Intersectionality’. There is neither discussion in the constituent assembly about the significance of these words, nor has the judiciary has taken their due cognizance during the interpretation of articles 15 and 16. Indeed, it is ironical that at one hand, B. N. Rau contracted the scope of Non-discrimination, while on the other hand, like a visionary, he also opened up the possibilities of placing innovative and creative interpretation on Articles 15 and 16. Similarly, he also severed the Proviso as suggested by Rajgoplachari from draft clause and incorporated a separate clause by making some qualitative and material changes, which was adopted finally as present Article 15 (3). The clause reads as, ‘Nothing in this Article shall prevent the State from making any special provision for women and children.’

Prior to the introduction of the final draft of the Constitution before the Constituent Assembly on 4th Nov 1948, one of the members, Tajamul Husain had sought the complete deletion of clause 2 of Article 11 (Present Article 15 (3). However, his suggestion was not accepted by Constitutional adviser B.N. Rau, who opined,

“ ..this clause is necessary as obviously special provision would be required in the case of employment of women and children in factories and mines…” (Vol IV (2004) PP 29)

On the other hand, during the final debate, K.T. Shah had moved an amendment to this clause to also include in its scope ‘scheduled castes and backward tribes ‘along with women and children. However, B.R. Ambedkar rejected this amendment by drawing a distinction between SC/STs and women:

“… with regard to amendment no.323 moved by Professor K.T. Shah ,the object which is to add ‘the scheduled castes and scheduled tribes’ along with women and children, I am afraid it may have just the opposite effect. The object which all of us have in mind is that the scheduled caste and scheduled tribes should not be segregated from the general public. for instance none of us, I think would like that separate schools should be established for Scheduled Caste , when there is a general school in a village open to the children of the entire community…if these words are added, it will probably give a handle for a State to say, well , we are making special provisions for the scheduled caste. To my mind they can safely say so by taking shelter under the Article if it is amended in the manner …..

Subhash Kashyap points out that according to Constitutional adviser B.N. Rau, this clause [Present Article 15(3)] was an exception to the general anti-discrimination clause (Dr. Subhash Kashyap Ed. Vol V P 187). He also demonstrates how B.N. Rau found support for insertion of clause 2 of Draft Article 9 ( Present Article 15 (3) of Constitution of India) , during his discussion with Justice Frankfurter of US Supreme Court by noting ,“ ..Justice Frankfurter emphasized that legal provision might occasionally have to be made for women e.g. to prohibit employment for a certain period before and after child-birth ”. (Dr. Subhash Kashyap Ed. Vol V P 187)

 

 

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Filed under Article 15 (general), Constituent Assembly Debates, Non-discrimination, Sex Discrimination, Women