Guest Post: Unconstitutional Laws and Non-Citizens

(In this guest post, Vikram Hegdea Delhi-based Supreme Court lawyer, discusses how Section 66A of the IT Act, which was struck down by the Supreme Court in Shreya Singhal’s Case, nonetheless continues to exist insofar as non-citizens are concerned)

For those who happened to have been living under a rock at the relevant time, Section 66A of the Information Technology Act, 2000 was struck down by the Supreme Court in Shreya Singhal in March 2015. The decision has been widely praised, with even the grumbles about the decision being that it didn’t do enough[1] and not that it did wrong. While the general celebratory consensus, is that this decision has sounded the death knell of Section 66A and all its malice, an old anomaly in the constitutional provision for freedom of speech may have the effect of commuting the death sentence of Section 66A to a banishment from India, but free to haunt foreigners. Shorn of comedic bombast, this means that while 66A is struck down as far as citizens of India are concerned, it may still survive as against foreign persons.

To improve the SEO value of this post, and also for ready reference, we may extract some provisions of the Constitution of India with selective outrage supplied emphasis:

Article 13. Laws inconsistent with or in derogation of the fundamental rights.—

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

Article 19. Protection of certain rights regarding freedom of speech, etc.—

(1) All citizens shall have the right—

(a) to freedom of speech and expression;

Now coming back to the Shreya Singhal case, the petitioners contended that Section 66A, in addition to being violative of Article 19, was also violative of Article 14[2]. The contravention of Article 14, it was argued, arose from the fact that the ingredients of the offence are vague and thus arbitrary. It was also argued that there is no intelligible differentia between the medium of print, broadcast and live speech as opposed to speech on the internet. The Court while holding that Section 66A is violative of Article 19(1)(a), being vague and overbroad, held that the intelligible differentia in the case of speech on the internet is clear and therefore the challenge to the provision under Article 14 must fail.[3] [Editor’s Note: My own reading is that the Court rejected an Article 14 challenge insofar as the internet is a space where certain specific offences exist, such as phishing, spam mails, cyber theft etc., which have no offline equivalents. Consequently, there can be a law framed to catch such offences; however, a law cannot impose different standards upon online speech, based upon spurious considerations such as the speed, or extent, to which online material can be disseminated) The conclusion of that judgment unequivocally states that Section 66A is struck down as violative of Article 19(1)(a).

Rights under Article 19[4], are available only to “citizens”. It has been urged by some that this means that only a citizen can challenge a legislation as violative of Article 19 and not a non-citizen, but once a law is struck down for violation of Article 19, the law is completely void, even as regards non-citizens. The judgment of the Constitution Bench of the Supreme Court in State of Gujarat v. Shri Ambica Mills says otherwise. The court, taking into account the phrase “to the extent of the contravention” in Article 13(2), expressly held

“[L]aw offending article 19, remains operative as against non- citizens as it is not in contravention of any of their fundamental rights.”

Seen in this light, the effect of the Shreya Singhal judgment is that Section 66A is void only as against citizens and not as against non-citizens. When this line of thought was voiced on fora on which freedom was enhanced by the judgment in question, questions were raised as to whether this meant that Section 66A was still available against non-citizens, such as corporates and other non-natural persons. The answer to that would lie inter alia in Bennet Coleman v. Union of India[5] where it was held that the shareholders exercise their rights under Article 19(1)(a) through the juristic person of the company and thus where the shareholders were citizens, their company was protected. However, as regards companies where the shareholders are not Indian, Section 66A would still apply.[6]

It is now time to ask ourselves an important question.

“What about 1984?”

That is the year in which the Law Commission of India examined and published a report on this very issue. While the Law Commission recommended that Article 19 be amended by adding an explanation some non-natural persons would be deemed “citizens” for the purpose of Article 19. However, this was limited to entities that have the character of “Indianness”. The recommendation has not yet been acted upon.

While I am aware of at least one legal proceeding where, post the judgment in Shreya Singhal, Section 66A has been applied to a foreign company, that dispute is currently at the lowest level in the judicial hierarchy. For a direct answer from the Courts on this point, we may have to wait.

[1] The resident author of this blog, in his excellent book Offend, Shock, or Disturb, states that the part of the order reading down Section 79 “is not entirely satisfactory”.

[2] Article 14, not being very important to our enquiry is treated unequally here and is consigned to a footnote: Equality before law.—The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

[3] I don’t know if and why the rational nexus angle was not raised and at this point am too afraid to ask.

[4] As also Articles 15, 16 and 29.

[5] The long list of cases supporting this proposition includes Chiranjit Lal Chowdhury, Sakal Newspapers, R.C. Cooper etc.

[6] I offer generous help in this regard. If the management of a foreign company such as Google or Facebook wishes that its rights under 19(1)(a) be protected, they can ensure the same by transferring a significant chunk of shares in those companies to me.

 

Guest Post: Secret Laws and Retrospective Punishment – on the Unconstitutionality of the Official Secrets Act

(Previously on this blog, we have looked at the intersection between the Constitution, and criminal procedure. In this guest post, Abhinav Sekhri examines how the Official Secrets Act is constitutionally suspect by enabling the possibility of retrospective creation of offences. The post first appeared here, on the Proof of Guilt blog, and has been cross-posted with permission.)

Very little intelligent discussion happens concerning the Official Secrets Act [OSA] in India. You could say this lack of discussion is by design, and means the law is doing its job. Perhaps it is. What it also does is perpetuate a culture of secrecy surrounding decision-making by officials. With an increasing intensity surrounding the freedom of information movement, there was a spurt in questions being raised in the Rajya Sabha (see hereherehere and here. I am certain it was discussed in the Lok Sabha as well) about the Official Secrets Act. The tenor of government’s responses seemed consistently non-committal but implying that change is mooted. But this seems to have changed as momentum stilled (see here, and here). In the meanwhile, we had the Right to Information Act bringing its overriding clauses, and the 2nd Administrative Reforms Commission recommending a repeal of the statute altogether. Obviously, that didn’t happen. This post takes up the argument that the criminalisation under the OSA is unconstitutional.
 
Context
The OSA is acknowledged to be a British legacy, dating back to 1923 (earlier variants existed as well). The statute’s context belie the imposing title. The phrase “official secrets” does not find any definition or mention; the law primarily attends to cases of espionage by using broad definitions of the potentially sensitive information involved. Offences are not designed simply, stating that one who steals “official secrets” shall be punished. Offences (such as Section 3), require individuals to act “prejudicial to the interests” of India, and these acts must be the unauthorised acquisition or dissemination of “secret official code, or password, or any sketch, plan, model or other information” that is useful to the enemy and/or prejudicial to India’s interests. Cases can only begin on a complaint by the authorised officer, and a sanction to prosecute the official must be granted before cognizance can be taken.
The Issue of Knowledge
Two questions become important here, (i) how do persons know that a a code or sketch, plan model etc is potentially useful to the enemy or affects the security and interests of India and  (ii) does it matter whether they know or not? Dealing with the second issue first, all hints point to a position of law that disregards the need for an accused to have knowledge. I argue this on the basis of the two primary offences, Sections 3 and 5. Section 3 was mentioned above, and sub-section (2) therein supports my claims. It allows a conviction simply on the basis of the ‘conduct or known character’ of the accused and allows the court to dispense with a need to specifically prove that the person had some prejudicial purpose. Not only does this go against the basic tenets of treating character evidence (which has been blogged about earlier), but in a unique manner disregards both actus reus and mens rea requirements. Nifty.
Section 3 is prefaced by a mental element (the acts must be “with a purpose prejudicial to the safety or interests of the State“), regardless of how it is rendered nugatory. Section 5 contains no such preface and so makes the knowledge issue more potent. It has three sub-sections, out of which only Section 5(2) uses the words “knowing or have reasonable ground to believe“. Does that mean the other offences do not require any knowledge element? A Constitution Bench of the Supreme Court approves of this logic (seeRanjit Udeshi v. State of Maharashtra, AIR 1964 SC 881). It is nobody’s case that the accused is unconsciously in possession of the documents – possession is conscious. But does the accused need to know that the documents were, to wit, “likely to assist, directly or indirectly, an enemy“?
The statute clearly suggests that knowledge is not essential, nor is lack of knowledge a defence. Interestingly, the U.K. repealed its old statute (contemporary to ours) to insert lack of knowledge as a defence (UK Official Secrets Act, 1989). Thus it is a defence if the person did not know, or did not have reasonable cause to believe, that the material concerned was such that its disclosure was prohibited. This is not unconstitutional strictly speaking, but goes against a the basics of criminal theory that one could argue are part of substantive due process.
(Ed. Interestingly, in a judgment handed down yesterday, the Court of Appeals in the UK held that without an intent requirement as part of the definition of terrorism, the UK Terrorism Act was incompatible with human rights)
Classification and Clearer Unconstitutionality
I’m not a fan of the Article 21 is omnipotent school, and so try and make my case on clearer grounds by answering the first question I posed. The question was how do persons know whether documents are state secrets when the document hasn’t got TOP SECRET on its face. The answer exists, and is in the form of a Ministry of Home Affairs Manual on Departmental Security Instructions. After the RTI a request was made for disclosure of this Manual. This was denied by the Ministry, and contested right up to the Central Information Commission. The Commission upheld that decision to deny disclosure, reasoning that making the classification public would prejudice the safety of the state.
Since nobody but the State knows whether something was secret, and holding secrets is an offence, what stops the State from deciding something is secret after it goes public? Take an example. A journalist, X, gets his hands on a non-public pending legislative bill potentially legalising marijuana and makes it public. The Police arrest X, suspecting him of having secret information, and ask the Government whether such non-public legislative bills form information of the kinds barred by the OSA. Here is the problem. (A) Since I cannot know if the information I have is potentially secret, any determination made now is ex-post-facto and illegal. (B) Since nobody knows what information is secret, nothing stops the State from deciding how to treat papers ex-post-facto, rendering any offences which follow unconstitutional under Article 20(1).
(Ed. There are two issues here. One is the question of whether a secret law, by virtue of being secret, violates Article 20(1), since it enables the State to make (secret) changes to it after the commission of any act, by which that act can be criminalised. Now, it is well-established that the possibility of abuse under an Act is no ground for the Court to hold that the Act is unconstitutional. However, those cases are premised upon the assumption that you can go to Court against the abuse itself, and obtain a remedy. In case of a secret law, there’s no way of even knowing when abuse has taken place, in the form of a post facto modification of the secret law. In such a scenario, it would appear that the logic in Romesh Thappar’s Case – i.e., that a law that enables unconstitutional action is itself unconstitutional – is more apposite.
It seems to me, though, that a better argument would be to invoke vagueness. In Kartar Singh, and then in Shreya Singhal, the Court held that vagueness is a ground for striking down legislation, primarily because it does not allow people to plan their affairs in a manner so that the can comply with the law, and in the case of free speech, casts a chilling effect. A secret law is the vanishing point of vagueness – it’s the point at which you literally don’t know what’s legal or illegal. In such a situation, vagueness should be invoked to strike down the law.)
What’s the Point?
India, along with South Africa, remains the only prominent erstwhile colony to have not reworked its secrecy law in the wake of the freedom of information movement. The point, therefore, is that such a blanket secrecy law curbs journalistic expression and is fundamentally anti-democratic. The arbitrary noose of the OSA may be brought upon any unwitting reporter, making her think thrice about writing that story on Naxal rebels in the heartlands. This is an old, overused point, but it seems silly that we’ve retained a British law that Britain comprehensively repealed. They even make the classification public. If nothing else, Section 5 must go.
(Abhinav Sekhri is a Delhi-based advocate)

Sabrimala and the PIL

Tomorrow, the Supreme Court will hear final arguments on the question of whether women between the ages of 10 and 50 can be excluded from the Sabrimala shrine – an issue that has gained a degree of notoriety in the last week. On the constitutional question, I think the arguments in this case, for the most part, track the ones in the Haji Ali Dargah case, which I wrote about on this blog early last year (I wrote a separate piece on Sabrimala for The Hindu a couple of days ago). I’m not as confident about the correct result in this case as I am about Haji Ali Dargah, especially because in the latter, the arguments of exclusion were based upon entirely non-religious, or even non-customary bases (such as the ‘inappropriate’ clothes worn by women).

I think it’s also worth pointing out that Sabrimala has taken the form of a PIL (unlike Haji Ali Dargah, where the petitioners are the women who are actually excluded from the inner sanctum of the dargah). The two petitioners here are lawyers, neither of whom is a female Sabrimala devotee (my understanding is that one of the petitioners is a man). The fact that the Court is hearing this case as a PIL tells us something about how standing simply doesn’t seem to be a question for the judiciary any more. Ssomething very similar happened in the Rajasthan High Court’s santhara judgment, which I had written about earlier, and I think it’s important to stress this fact every time this happens:

The loosening of standing rules [through the institution of PIL] was intended to ensure the representation of those who could not represent themselves. By now, it is used to  transform the Court into a super-legislature, where any social question might be agitated by any person. 

This is particularly stark in the present case, because matters of conscience, religious belief, and religious practice, are among the deepest and most personal issues for the individual. There seems to be something rather strange in one person agitating for the religious rights of a completely different person.

So surely, a PIL is a singularly inappropriate remedy for this kind of a claim? Was it right for the Court to have admitted the case without the actual affected parties (the excluded women) coming before it? More worryingly, is it right for the Court to decide the case without even hearing the excluded women?

T. Sareetha vs T. Venkata Subbaiah: Remembering a Revolutionary Decision

On July 1, 1983, Justice P.A. Choudary of the Andhra Pradesh High Court struck down Section 9 of the Hindu Marriage Act, which allowed the Court to pass an order for ‘restitution of conjugal rights.’ In simple language, if the Court was convinced that either a husband or a wife had ‘without reasonable cause, withdrawn from the society‘ of their spouse, then it could decree that the defaulting spouse was required to go back to the company of their partner – a decree that could be enforced by attaching the defaulter’s property. Justice Choudary held that Section 9 violated the rights to equality and privacy under the Constitution, and was accordingly void. Within five months, the Delhi High Court handed down a judgment disagreeing with this conclusion. And a little over a year later, the Supreme Court affirmed the judgment of the Delhi High Court, bringing the legal controversy to a close.

Sareetha remains as a footnote in family law courses, a passing reference in discussions about the restitution of conjugal rights. This is a pity. Sareetha was one of those rare cases in Indian constitutional history where a Court understood the Constitution as a radically transformative document, and struck out in a direction that was unfamiliar, bold, and creative – while remaining constitutionally tethered. Its interpretations of equality and privacy anticipated similar developments in other jurisdictions by years, or decades; and in some respects, it is still ahead of the time. Quite apart from the actual decision, it is its reasoning that constitutional lawyers should not forget; because even though the Supreme Court overruled the judgment, and perhaps closed off the window to a certain kind of legal change, Sareetha’s reasoning remains a template for other cases that might attempt to shape equality and privacy in an emancipatory and progressive direction.

Polis and Oikos: The Privacy of the Ancients

To understand the radicalism of Sareetha, we need to begin at the beginning. The distinction between the public and the private sphere, which is one of the most controversial issues today, and which was at the heart of Sareetha, had its origins in classical Athens.  As Don Slater writes, “The public sphere – the polis or res publica – was the realm of free association between citizens. Men [and only men] were deemed free in the polis not because it was unregulated, but because it was kept rigidly separated from the private sphere of the household and the domestic economy (oikos): the domestic sphere was regarded as the realm of mere physical reproduction, and therefore of the compulsion and slavery of needs.” In her book, The Human Condition, Hannah Arendt records that the public sphere (which Humphrey’s defines by its ‘impersonality’) was the arena of “equals” – men, who came together to debate and discuss issues affecting their City-State were neither “to rule, nor to be ruled.” In fact, the very idea of ‘rule’ was at odds with the idea of the polis. In the oikos, on the other hand, the male head of the household had absolute dominion over his slaves, the women, and the minor children. It was these who would ensure the satisfaction of his bodily needs, thus liberating him from ‘necessity’, and freeing him to participate in the public sphere with other, equally situated men.

The public/private divide, therefore, mapped on to the dichotomy between freedom and necessity, equality and inequality. The claims of equality were restricted to the public sphere (polis), and simply weren’t applicable to the household (oikos), which was defined by its inequality.

Public and Private: The Privacy of the Moderns

The public/private divide largely disappeared during feudal times (the manorial households, in a sense, came to embody characteristics of both spheres), and then made a reappearance after the Enlightenment and the revolutionary era. The modern era – Arendt argues – saw economic activities and market transactions taken out of the domain of the private sphere, which was now defined as the site of intimacy, or intimate relationships. At this time, as Seyla Benhabib records, the American and French Revolutions had brought into public consciousness the ideas of basic rights, and the idea of autonomy. Quoting the philosopher Lawrence Stone, she observes that:

“… from the beginning there were tensions between the continuing patriarchal authority of the father in the bourgeois family and developing conceptions of equality and consent in the political world. As the male bourgeois citizen was battling for his rights to autonomy in the religious and economic spheres against the absolutist state, his relations in the household were defined by nonconsensual, nonegalitarian assumptions. Questions of justice were from the beginning restricted to the ‘public sphere’, whereas the private sphere was considered outside the realm of justice.”

Unlike the Ancients, who accepted that the private sphere was essentially inegalitarian, the moderns held that it was simply not subject to the claims of equality. Benhabib further points out that “power relations in the ‘intimate sphere’ have been treated as though they did not even exist.” It is this idea of privacy that culminated in judicial holdings in the 20th century that viewed privacy as a question of a space of seclusion, a space that the State could not enter. After Warren and Brandeis wrote their famous article at the end of the 19th century, viewing the right to privacy as a right to seclusion, or a right to be let alone, the American Supreme Court held that the right extended to “areas” where there was a “reasonable expectation of privacy.”

It was this spatial concept of privacy that was strongly criticised by feminist legal scholars over the second half of the 20th  century. In light of the fact that the “private sphere” is itself a hierarchically structured space, Martha Nussbaum points out that “recognizing a sphere of seclusion into which the state shall not enter means that males may exercise unconstrained power.” A classic example of this is the marital rape exception which deems that forcible sexual intercourse within the marital relationship does not amount to rape.

Community and Individual: Privacy in Colonial India

In colonial India of the late nineteenth century, where – in the words of historian Tanika Sarkar, there first began to emerge a “pre-history of rights“, privacy took on yet another form: here, it became the right of communities to determine certain issues – including the treatment of women – free from the interference of the colonial State. Tanika Sarkar, Lata Mani, Partha Chatterjee, and other scholars recount the debates around the abolition of Sati, the raising of the Age of Consent, and indeed, on restitution of conjugal rights. Chatterjee notes, for instance, that “the so-called women’s question in the agenda of Indian social reform in the early 19th century was not so much about the specific condition of women as it was about the political encounter between a colonial state and the supposed “tradition” of a conquered people.” In other words, community “traditions”, which centrally involved the rights, positions, and social roles of women, were deemed to be off limits, since they came to represent, or embody, the “inner life” of the community. So the idea of privacy (although it was not framed in so many words) became connected with group rights; or, it was groups that – as bearers of value in themselves – that became the holders of something like a right to privacy.

The Ambiguity of Gobind v State of MP

Therefore, when the Indian Supreme Court began to take up issues relating to the right to privacy, it was adjudicating in the context of a number of different – although somewhat complementary – traditions. The case that first held that there existed a constitutional right to privacy in India reflected this problem. In Gobind v State of MP,  the Supreme Court held, in sphinx-like tones, that:

“Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing.”

As I have noted before, part of the reason why this definition sounds confusing is that it was lifted by the Supreme Court from an American decision delivered in an entirely different context – that of adult theatres. In any event, a quick reading of this sentence reveals at least four possible underlying themes:

(a) A spatial idea of privacy, flowing from the use of the word “home”, and the fact that all the terms that follow it refer to activities normally undertaken within the home

(b) An institutional, or relational idea of privacy: the home (in the sense of a household), the family, marriage, and motherhood are all social institutions. The right to privacy, then, protects the sanctity of these institutions by insulating them against State interference.

(c) A functional idea of privacy: motherhood, procreation, and child-rearing, in particular, seem to suggest domestic activities (and the absence of ‘fatherhood’, in turn, suggests the gendered nature of the division).

(d) An individualistic idea of privacy that focuses upon bodily integrity and decisional autonomy: a few years before Gobind, the American Supreme Court in Griswold v Connecticut and Roe v Wade  had upheld the right to contraceptives and the right to abortion, on grounds of privacy; privacy, here, refers to the right of the individual to make her own choices about decisions that directly affect her bodily integrity.

As we can see, while the first three interpretations reflect the various conceptions of privacy discussed above, the fourth marks something of a break. In Sareetha, the Justice Choudary would take this fourth idea, and use it to develop a transformative vision of privacy.

Sareetha; Reasoning and Outcome

A. Privacy as Individual Dignity

Justice Choudary held that “a decree of restitution of conjugal rights thus enforced offends the inviolability of the body and the mind subjected to the decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of such a person.” According to him, at the heart of the issue was the fact that the law, essentially, was a law compelling sexual intercourse. “The consequences of the enforcement of such a decree”, he observed, “are firstly to transfer the choice to have or not to have marital intercourse to the State from the concerned individual and secondly, to surrender the choice of the individual to allow or not to allow one’s body to be used as a vehicle for another human being’s creation to the State.” 

Notice, however, that the law itself does not require sexual intercourse. It only authorises a decree for cohabitation, which can be enforced through attachment of property. This is why Justice Choudary spoke of the consequences of enforcing a decree – and it is here that we see the first major break with traditional conceptions of privacy. Because Justice Choudary was not content simply to end his enquiry at the point of cohabitation – but to go further, to find that given the deeply unequal structure of the family, and given the myriad pressures – not simply physical, but of every other kind – that could be brought to bear upon a woman who is shorn from the protection of her own family, a decree for cohabitation would, in all likelihood, lead to compelled intercourse. Taking the example of a Madhya Pradesh High Court decision where a woman called Tarabai was required by decree to go back to her husband, Justice Choudary observed that “what could have happened to Tarabai thereafter may well be left to the reader’s imagination.” This, for him, was completely unacceptable, because:

Sexual expression is so integral to one’s personality that it is impossible to conceive of sexuality on any basis except on the basis of consensual participation of the opposite sexes. No relationship between man and woman is more rested on mutual consent and freewill and is more intimately and personally forged than sexual relationship.”

And for a women, who would be the one to conceive, “in a matter which is so intimately concerns her body and which is so vital for her life, a decree of restitution of conjugal rights totally excludes her.” Here, for the first time, we see a vision of privacy that focusses upon a combination of bodily integrity and decisional autonomy. Soon afterwards, Justice Choudary cited Gobind, and then focused on one particular line in Gobind:

“There can be no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior.”

Latching upon the concept of privacy-dignity (and dignity, it will be noticed, speaks to the individual), Justice Choudary then noted “any plausible definition of right to privacy is bound to take human body as its first and most basic reference for control over personal identity… [the] right to privacy belongs to a person as an individual and, is not lost by marital association.”

This is a crucial observation, since it completely rejects the view that the site of privacy claims are social institutions, such as the marriage or the family, and accepts, instead, the opposite claim that the right-bearer is the individual. Privacy, therefore, is to be understood not as an exalted space within which the State cannot enter (no matter what happens within that space), but as a right accorded to each individual, which guarantees her autonomy in all fundamental decisions concerning her body.

B. Justice Brandeis and the Balance of Power

Interestingly, during the course of his argument, Justice Choudary also referred to Justice Brandeis’ dissenting opinion in the case of Olmstead vs New York.  Olmstead was a 1928 American Supreme Court decision concerning the admissibility of evidence obtained through a wiretap. The majority held that the wiretap did not offend the Fourth Amendment, which was limited to  prohibiting illegal searches of “persons, houses, papers, and effects”. Justice Brandeis, however, refused to read the Fourth Amendment in such a literal way. He observed:

“When the Fourth and Fifth Amendments were adopted, “the form that evil had theretofore taken” had been necessarily simple. Force and violence were then the only means known to man by which a Government could directly effect self-incrimination. It could compel the individual to testify — a compulsion effected, if need be, by torture. It could secure possession of his papers and other articles incident to his private life — a seizure effected, if need be, by breaking and entry. Protection against such invasion of “the sanctities of a man’s home and the privacies of life” was provided in the Fourth and Fifth Amendments by specific language. But “time works changes, brings into existence new conditions and purposes.” Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.”

Justice Brandeis’ basic point was that as invasive State technologies increase in scope and reach, the law must correspondingly evolve to continue effectively protecting the individual. Underlying this is the idea that there must, at all times, remain a balance of power between State and individual. The more power the State acquires, the further must the law reach to constrain its use, lest we arrive at a totalitarian society in which State power has completely overwhelmed the individual.

The innovation in Sareetha is that it takes Brandeis’ idea of a parity of power between individual and State, and extends that to apply horizontally, in the private realm. The link between cohabitation and compelled intercourse is based upon a difference in power: and Sareetha’s striking down of S. 9 is a Brandeisian attempt to restore the balance. In a truly radical fashion, therefore, Justice Choudary’s attempt was to bring about – in the smallest of ways possible – a democratisation of the private sphere.

C. Article 14 and Indirect Discrimination

Justice Choudary’s last argument was with respect to Article 14. Section 9, of course, was facially neutral: the remedy, in theory, was open to both husbands and wives. But, Justice Choudary held, ” “Bare equality of treatment regardless of the inequality of realities   is neither justice   nor homage to the constitutional principle”… the question is how this remedy works in life terms In our  social reality, this matrimonial remedy   is found used almost exclusively by the husband  and is rarely resorted to by the   wife. A passage in Gupte’s Hindu law in British India’ page 929 (second edition) attests to this   fact…  the reason for this mainly lies in the fact of the differences between the man and the woman. By enforcing a decree for restitution of conjugal rights the life pattern of the wife is likely to be altered irretrievable whereas the husband’s can remain almost as it was before this is so because it is the wife who has to beget and bear a child. This practical but the inevitable consequence of the enforcement of this remedy cripples the wife’s  future  plans of life and prevents her from using that self-destructive remedy… The pledge of equal protection of laws is thus inherently incapable of being fulfilled by this   matrimonial remedy in our Hindu society. As a result this remedy words in practice only as an engine of oppression to be operated by the husband for the benefit of the husband against the wife.”

On this blog, we have often discussed the question of whether, to prove discrimination, once must show that the law was intended, or had a motivation to, discriminate; or is it adequate to show that the law, although neutral in its terms, has a disproportionate impact upon a certain group of people. The former views discrimination as a result of a discrete, intentional act; the latter, as the result of long-standing structures and institutions. The former understands social realities as independent of law, providing a neutral background within which law operates; the latter insists that these social realities are always constructed by, and complementary to, the legal system – and that therefore, laws which reproduce or endorse such social realities are equally suspect (or, in the words, of Justice Albie Sachs, the purpose of a Constitution is to transform “misfortune to be endured into injustice to be remedied“). In his analysis of the differential effects of Section 9 based upon a social reality that placed the cost of child-bearing and rearing disproportionately upon women, Justice Choudary firmly endorsed the latter, more nuanced understanding, of equality.

The Radicalism of Sareetha

We are now in a position to understand the full extent to which Sareetha was a transformative and radical judgment. In specifically applying Article 14 to the private sphere, Justice Choudary repudiated the privacy of the Ancients, according to which equality was a value only in the public sphere. In specifically invoking the power hierarchies and inequalities in the private sphere to justify his decision, he repudiated the spatial conception of the privacy of the moderns, that turns a blind eye to the realities of domination and subordination within the home. In invoking Justice Brandeis, he brought the idea of maintaining an egalitarian balance of power between State and individual into private relationships, and took a small step towards the democratisation of the private sphere. And in finding an Article 14 violation, he advanced a view of equality that was grounded in structures and institutions, rather than individual acts. One may disagree with his final conclusion – and in fact, Flavia Agnes, among others, has made arguments defending S. 9 – but the reasoning remains powerful, and a clarion call for a progressive vision of privacy and equality.

Aftermath

Soon after Sareetha, the Delhi High Court came to the opposite decision. In Harvinder Kaur v Harmender Singh Chaudhary, it held that:

“Introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the home and the married life neither Article 21 nor Article 14- have anyplace. In a sensitive sphere which is at once most intimate and delicate the introduction of the cold principles of constitutional law will have the effect of weakening the marriage bond. That the restitution remedy was abolished in England in 1970 by Section 20 of the Matrimonial Proceedings and Properties Act 1970. on the recommendation of the Law Commission headed by Justice Sharman is no ground to hold that it is unconstitutional in the Indian set-up. In the home the consideration that really obtains is that natural love and affection which counts for so little in these cold courts. Constitutional law principles find no place in the domestic code.” 

In its blanket refusal to apply equality and privacy to the “home”, the Delhi High Court reinstated the traditional, spatial view of privacy, that closed off a physical space from State intervention. This was upheld by the Supreme Court, which also added that “the right of the husband or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself” – thus reinforcing the position that the sanctity of privacy is accorded not to the individual, but to the institution of marriage.

Conclusion

Sareetha, undoubtedly, was buried thirty years ago, and cannot be brought back to life. But while a judgment remains in ashes, its arguments can certainly become phoenixes and rise again. Justice Choudary’s insights are relevant for the ongoing struggle against the non-criminalisation of marital rape, against numerous inequitable provisions in personal law codes, and for the continuing efforts to persuade the Court to understand Articles 14 and 15 in structural terms (another, abortive, effort was made in Naz Foundation, which was also overruled). At the very least, Sareetha should not be forgotten: it should remain in historical memory as a landmark of Indian constitutional law, taught and discussed as a brilliant – if unsuccessful – attempt at radically transforming our constitutional jurisprudence of privacy and equality.

Guest Post – Difficult Conversations: On why the Supreme Court’s judgment in the Kerala Liquor Ban Case represents a lost opportunity to examine tough questions on discrimination

(This is a guest post by Karan Lahiri and Vrinda Bhandari. A condensed version of this piece appeared previously on Scroll.)

As a bleak year drew to a close, the Supreme Court delivered another distinctly underwhelming judgment, in The Kerala Bar Hotels Association & Anr. v. State of Kerala & Ors.. This judgment is disappointing not so much for its outcome, but because of a glaring omission.

 This case was about whether the State of Kerala’s statutory amendment restricting the grant of FL-3 licenses (i.e. bar licenses that allow the sale of Indian Made Foreign Liquor or IMFL to the public) to Five Star Hotels was constitutional. Many may feel that in upholding this measure, the Court has justifiably approved the State Government’s legitimate attempt to curb alcoholism, which has statistically been shown to be an “acute social problem”.

The most important issue, however, is unrelated to the legitimacy of the Government’s ultimate objective, or whether there is a right to trade in liquor (which the Court dwells on at length). The key question relates to the exception that has been made in favour of (20 or so) Five Star hotels in the State, and, consequently, those who can access such hotels, and whether this amounts to discrimination based on wealth and social class, violating the right to equality guaranteed by Article 14 of the Constitution. In fact, this issue was specifically raised, and is recorded in Paragraph 17 of the judgment: –

The classification at hand is based on social and economic class, as there is a clear distinction between the expense and resultantly the clientele of the hotels that have been allowed FL-3 licenses and those that have not. Therefore, a strict scrutiny test must be applied, and the Government must be asked to provide a rigorous, detailed explanation in this classification… [W]hen discrimination is based on class, it is more pernicious and needs careful judicial enquiry.”

Unfortunately, this argument is not dealt with at all. Instead, the Court quickly accepted the explanation that this exception was directed at encouraging tourism. This omission represents a lost opportunity for the Supreme Court to re-examine fundamental questions about equality and discrimination.

One Size Fits All

Are there certain kinds of discrimination that are worse than others, demanding a more searching judicial examination? As of now, when a law differentiates or discriminates between two sets or “classes” of persons, the constitutionality of this line-drawing process is examined on the basis of a two-step test. First, a Court looks at whether there is an “intelligible differentia”. In other words, the line dividing two or more groups must be clear, based on discernible characteristics shared by members of each group. Second, it examines whether this “differentia” bears a rational relation to what the impugned law seeks to achieve.

The problem is that this is a one-size-fits-all test. All laws, essentially, differentiate between two or more groups of individuals. The Delhi Government’s odd-even formula to curb pollution differentiates between different groups (by exempting CNG vehicles, for instance), but it is, intuitively, different from a law that, let us say, penalizes begging on the road by the indigent. Can the same test be used for both sets of cases?

The “strict scrutiny test”, referred to in the judgment, is a concept that is making inroads into our jurisprudence, and is based on a concept we have borrowed from the U.S. When a law in the U.S. is tested on the anvil of equality, the default rule is that it will be upheld if it is rationally related to a legitimate government purpose. However, where the law makes a suspect classification (i.e. discrimination on the basis of race, religion, nationality etc., or analogous “discrete and insular minorities”), the more rigorous “strict scrutiny” test is applied. To survive strict scrutiny: –

  1. A law must be narrowly tailored to achieve a compelling government interest.
  2. It must be the least restrictive means for achieving that interest.

Notice that this test weighs in the importance of the State’s ultimate objective, and ensures that the means used to reach that objective are closely fitted to the ends, and that these are the least onerous means. Further, the fact that “suspect classifications” triggers strict scrutiny signals that the nature of the rights being affected by a discriminatory law are factored in, where some kinds of discrimination (i.e. on the basis of race, nationality etc.) are worse than others (e.g. a law exempting CNG vehicles from Delhi’s odd-even rule).

Just to clarify, this is not about whether the “strict scrutiny” test is the best test out there. What we are saying is that this was an opportunity for the Court to re-examine what goes into making a robust litmus test in equality cases.

Conversations on Equality and Class Discrimination

First, the Court should have begun a useful conversation on whether the dominant two-step test used in India is adequate to analyze all equality-related cases. As Dr. Tarunabh Khaitan points out, the test used in India is inadequate, because it is blind to the impact on, and the nature of the group being affected, as it does not “balance” the State’s interests against the rights of affected persons. Further, it does not look at the importance of the State interest involved, or whether there is a less onerous alternative. Putting it simply, as per the dominant two-step test, described above, if measure “X” is challenged on the basis that it is discriminatory, it is, simply put, based on whether it is reasonable and suitable to achieve objective “Y”, namely the Government’s end goal. The law in India, as it exists looks only at whether X and Y are reasonably connected, without looking at who measure X is impacting, or looking closely at the nature of objective Y.

Secondly, the Court should have entered into whether certain classifications are inherently “suspect”, justifying closer scrutiny compared to other more benign cases of differentiation. A good textual starting point would have been Article 15(1), which enjoins the State from discriminating on the basis of religion, race, caste, sex and place of birth. It could then have gone on to examine whether discriminating on the basis of wealth and social class is analogous.

We believe that this analysis, on discrimination based on social class, should have gone something like this.

  1. Given that both the Preamble and Article 38(2), have woven equality of status into the Constitution, there is a constitutional justification for treating discrimination based on status and social class as a “suspect classification”, warranting a higher degree of scrutiny, as opposed to cases where an underlying constitutional norm is not violated.
  2. Further, the Court ought to have looked at the additional question of whether the poor in India constitute what Dr. Khaitan calls a “vulnerable group”. In our opinion, poverty is about more that the lack of money or assets. It is characterized by a lack of social membership, meaningful citizenship, and dignity. Such a structural conception of poverty helps explain why the poor, as a separate class – independent of their caste or religious identities – are marginalized actors with little influence in the political process,[1] deserving of judicial protection by means of more rigorous standard of scrutiny.
  • Applying strict scrutiny standard, we believe the Kerala amendment ought to have been struck down. This is because even a universal ban on public drinking would have been a more narrowly tailored solution to the State’s objective of reducing alcoholism, since alcoholism afflicts rich and poor alike.

We must remember here that the Kerala amendment is about more than the price of alcohol. It is fundamentally different from a law raising the MRP of liquor, or imposing a tax on liquor across the board. What makes the Kerala amendment “pernicious” is that it singles out only those with the means to purchase liquor in a Five Star hotel, as also the status to enter and access a Five Star hotel, thereby giving them the exclusive privilege of drinking in public. At the same time, poorer sections of the population, who do not have the status to access such elite establishments (let alone afford the prices), are deprived of this privilege. Surely, the rich are not immune to alcoholism? However, this is almost exactly what the Court seems to suggest, when it says – “There is also little scope for cavil that the guests in Five Star hotels are of a mature age; they do not visit these hotels with the sole purpose of consuming alcohol.” The Supreme Court has, previously, in the Maharashtra dance-bars case, frowned on such logic, stating: –

 “Our judicial conscience would not permit us to presume that the class to which an individual or the audience belongs brings with him as a necessary concomitant a particular kind of morality or decency.”

The Supreme Court itself is not blind to fact that the Five Star hotel rating implies both a higher price and higher status for access. In dealing with allegations that Five Star hotels have opened out some of their premises for consumption of liquor at depressed rates in less salubrious surroundings, the Court encourages the State to end such “malpractice”, because, according to it, Five Stars are “violating the ambiance which they portray by enabling drinking in specially created bars at lower prices.”

What we have outlined above is what we believe to be the correct line of reasoning. We believe that gradualism and experimentation cannot be used as arguments to defer to legislative judgment (as the Court has done in this case), when groups are singled out based on social class and status. You may not agree either with the reasoning or the result we have proposed. That’s what makes Constitutional Law exciting – the fact that it inspires healthy and vibrant debate. Unfortunately, our Supreme Court has chosen to steer clear of such debate – a strange choice for an institution in a democratic polity, given that conversation and debate lie at the heart of democracy.

Karan Lahiri and Vrinda Bhandari are both practicing lawyers. Karan Lahiri assisted in representing one set of Appellants in the Kerala liquor ban case before the Supreme Court.

[1] There is empirical evidence to suggest that the poor, India, rarely come together as a class in a way that makes democratic institutions respond to their preferences. This ties is with the writings of certain American Constitutional scholars, who speak of the poor as an “anonymous and diffuse” group that cannot organize itself effectively.

Blog Editor’s Note: Previously, I’ve made the case for a higher threshold of Article 14 scrutiny in election cases here (unfortunately, we know how that turned out!), and Mihir wrote a guest post examining how the arbitrariness doctrine serves an alternative to the unsatisfactory one-size-fits-all nature of the rational review standard. To the persuasive arguments made in this post, I have a quick addition: a higher threshold of scrutiny would insist not only on the showing of a compelling State interest and a narrowly-tailored law, but would also place the evidentiary burden upon the State to demonstrate the connection. For instance, in this case, instead of making the State’s case for it by the blanket observation that people going to 5-Star Hotels are “more mature”, the Court would require the State to bring hard evidence forward showing that drinkers in 5-Star Hotels are less prone to be alcoholics, or indulge in violence, or something of that sort. Needless to say, it’s rather unlikely that there would be evidence of this sort forthcoming, and the law would have to fail. The purpose of this imposing this evidentiary burden is precisely to forestall the State from relying upon gross and invidious stereotypes about people (“uneducated persons can’t distinguish between right and wrong”, “5-Star alcohol drinkers are mature”) which, in itself, is a profound denial of the principle of equal concern and respect.

Dawoodi Bohra Case Delayed :: Will Kymlicka and Cultural Autonomy

The Dawoodi Bohra case, which we discussed in the last essay, has been taken off the supplementary list for tomorrow. Hopefully, it will not take eleven years for it to be listed a second time!

In the meantime, I came across this quotation by the liberal political theorist, Will Kymlicka, in his article, ‘The Rights of Minority Cultures: Reply to Kukathas’, which sums up the argument of the previous essay quite well:

A liberal theory can accept special rights for minority culture as against the larger community so as to ensure equality of circumstance among them. But it will not justify (except under extreme circumstances) special rights for a culture against its own members. The former protect the autonomy of the members of the minority of the cultures; the latter restrict it. Liberals are committed to supporting the rights of individuals to decide for themselves which aspects of their cultural heritage are worth passing on. Liberalism is committed to – perhaps even defined by – the view that individuals should have the freedom and the capacity to question and possibly revise the traditional practices of their community should they come to see them as no longer worthy of their allegiance[For example] restricting religious freedom or denying education to girls is is inconsistent with these liberal principles and indeed violates one of the reasons liberals have for wanting to protect cultural membership – namely, that that membership in a culture is what enables informed choices about how to lead one’s life. Hence, a liberal conception of minority rights will condemn certain practices of minority cultures just as it has traditionally condemned the traditional practices of majority cultures, and will support their reform.” 

The basic idea, again, is that the while the basic, normative unit of Part III is the individual, the protection of group rights under Articles 26, 29 and 30 of the Constitution acknowledges the fact that individuals are embedded in culture, and culture is what mediates effective exercise of human freedom. However, just as that basic idea requires the Constitution to guarantee group rights, it simultaneously limits the extent to which those rights can be invoked. In Kymlicka’s phrase, a culture cannot invoke special rights against its own members, insofar as such rights become a tool for curtailing, rather than enhancing, individual freedom. The philosophical mistake that the majority made in the Dawoodi Bohra Case was to treat group rights under Article 26(b) as ends in themselves (and hence, the repeated fears about the need to maintain group purity and discipline through the power of miscommunication), and not as instruments towards achieving individual freedom. In fact, a reading of the sort that Kymlicka advances (and which would require the Court to have upheld the Bombay Act), is more consistent with both the liberal strand of Part III (as embodied in classic civil rights against the State – Articles 14, 19, 21, 25), as well as its social-democratic strand, which is concerned with protecting individuals from the tyranny of their own communities (Articles 15(2), 17, 23, 25(2)).

Monday: An Important Case on Religious Freedom before the Supreme Court

On Monday, the 11th of January, a Constitution Bench of the Supreme Court will begin hearing the case of Central Board of the Dawoodi Bohra Committee v State of Maharashtra. This is a case that could potentially have important ramifications for religious freedom under the Constitution, and the interpretation of Articles 25 and 26. In this post, I will attempt to provide a short primer to the background of the case, and the events leading up to Monday’s hearing.

The genesis of Monday’s hearing lies in a Constitution Bench order passed in December 2004 (eleven years ago!), directing the setting up of another Constitution Bench to consider the correctness of the Supreme Court’s 1962 decision in Sardar Syedna Taher Saifuddin v State of BombayIn that case (yet another) Constitution Bench of the Supreme Court had struck down the Bombay Prevention of Excommunication Act of 1949, on the ground that it violated Articles 25 and 26 of the Constitution. Twenty-five years after the decision in Sardar Syedna [hereafter “the Dawoodi Bohra Case”], in 1986, a writ petition was filed asking the Court to review and overrule its decision. Eight years after the filing, in 1994, a two-judge bench directed the matter to be heard by a seven-judge bench. A seven judge bench was constituted that same year, but it adjourned the case. There was some controversy over whether the matter could be referred directly to a seven-judge bench. In its 2004 order, the Supreme Court observed that only a bench of ‘equal strength’ could question the correctness of a prior judgment; consequently, it was not open to a bench of two judges to directly refer the matter to a seven-judge bench. After a length discussion on the need for judicial propriety and discipline, the Court held that the matter be placed before a five-judge bench. Only if that bench doubted the correctness of the Dawoodi Bohra Case, could there be a further referral to seven judges, to finally hear and decide the issue.

The key question on Monday, therefore, will be whether the Petitioners can convince the Constitution Bench that there exists sufficient reason to doubt the Dawoodi Bohra decision, and to refer the matter to seven judges. To understand the stakes, therefore, we need to closely examine the Dawoodi Bohra decision.

The Dawoodi Bohra Case: Issues

The Dawoodi Bohra Case involved a challenge to the constitutionality of the Bombay Prevention of Excommunication Act of 1949. The preamble to the Act stated that its objective was to put a stop to the practice of excommunication, that was prevailing in certain communities, since its effect was to deprive members of their ‘legitimate rights and privileges.‘ To this effect, Section 2 of the Act defined excommunication as ‘the expulsion of a person from any community of which he is member depriving him of rights and privileges which are legally enforceable by a suit of civil nature…’, despite the fact that the determination of such right/privilege might also involve the Court having to rule on questions pertaining to purely religious rites or practices. Section 3 of the Act invalidated any excommunication, and provided for penal sanctions for the same.

The Petitioner was the “dai”, or head priest of the Dawoodi Bohra community, an offshoot of Shia Islam. As the Court noted, “as Dai-ul-Mutlaq and the vicegerent of Imam on Earth in seclusion, the Dai has not only civil powers as head of the sect and as trustee of the property, but also ecclesiastical powers as religious leader of the community.” The Petitioner further argued that one of his powers, as Dai, was the power of excommunicating recalcitrant members from the community, the result of which was ‘exclusion from the exercise of religious rights in places under the trusteeship of the Dai-ul-Mustlaq.’ By taking away this power, the Bombay Act violated the Petitioner’s right to religious freedom under Article 25 of the Constitution, as well as the Article 26(b) rights of the Dawoodi Bohra community, as a religious denomination, to regulate its own religious affairs and preserve the community by enforcing discipline.

On the other side, apart from questioning whether the Dai had any such power of excommunication, the State also observed that the Petitioner’s rights “do not include the right to excommunicate any person and to deprive him of his civil rights and privileges… [further] it was denied that the right to excommunicate was an essential part of the religion of the community… [and] that, alternatively, assuming that it was part of a religious practice, it runs counter to public order, morality and health.

At its core, therefore, the Dawoodi Bohra Case was about the limits of State intervention into the affairs of a religious community – intervention that, it must be noted, was aimed at recalibrating the balance of power between its members in a more equitable direction. Apart from raising important questions of constitutional law, the case also presents a fascinating philosophical problem: to what extent can a liberal democracy, which respects the rights of cultural communities to exist and propagate, impose democratic or liberal norms upon a community’s internal functioning?

The Majority Opinion

By a 4-1 majority, the Supreme Court struck down the Act. Das Gupta J. wrote the opinion for himself, and two of his brother judges. Referring to a previous decision of the privy council, he commenced by noting that it was now a settled legal position that the Dai did have powers of excommunication. He then observed that, on a survey of precedent, there were two clear principles underlying the interpretation of Articles 25 and 26:

“The first is that the protection of these articles is not limited to matters of doctrine or belief they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion. The second is that what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion.” 

Das Gupta J. then examined the place of excommunication in several religious systems, quoting Professor Hazeltine’s opinion that the purpose of excommunication is “maintaining discipline within religious organizations and hence of preserving and strengthening their solidarity.” Accordingly, he observed that “excommunication cannot but be held to be for the purpose of maintaining the strength of the religion. It necessarily follows that the exercise of this power of excommunication on religious grounds forms part of the management by the community, through its religious head, “of its own affairs in matters of religion.” Consequently, Article 26(b) was violated by the Act. That the effect of excommunication was to deprive a person of his civil rights was, according to the Court, irrelevant, since Article 26(b) did not carve out an exception for civil rights.

The next question was whether, despite violating Article 26(b), the Act could still be saved by Article 25(2), which allowed the State, inter alia, to make laws for social welfare and reform. Without providing any further reasons, however, the Court simply noted that “the mere fact that certain civil rights which might be lost by members of the Dawoodi Bohra community as a result of excommunication even though made on religious grounds and that the Act prevents such loss, does not offer sufficient basis for a conclusion that it is a law “providing for social welfare and reform.” Consequently, the Court held that the law violated Article 26(b), was not saved by Article 25(2), and was accordingly unconstitutional.

Concurring Opinion of Justice Ayyangar

In his concurring opinion, Justice Ayyangar observed that the purpose of excommunication was to ensure the preservation of  “the identity of a religious denomination… [which] consists in the identity of its doctrines, creeds and tenets and these are intended to ensure the unity of the faith which its adherents profess and the identity of the religious views are the bonds of the union which binds them together as one community.” He then noted that “the right to such continued existence involves the right to maintain discipline by taking suitable action inter alia of excommunicating those who deny the fundamental bases of the religion.” Consequently, it was clear that excommunication was a question of religion, and even if the aim of the Bombay Act was to protect civil rights, by outlawing excommunication altogether, it was interfering with the community’s Article 26(b) right to religion.

On the question of Article 25(2), Justice Ayyangar held that laws for social reform were saved only insofar as they did not “invade the basic and essential practices of religion”, because “by the phrase “laws providing for social welfare and reform” it was not intended to enable the legislature to “reform”, a religion out of existence or identity.” And since “faith in [the Dai’s] spiritual mission and in the efficacy of his ministration is one of the bonds that hold the community together as a unit”, the power of excommunication was clearly an integral part of the religion. Consequently, the Act could not be saved by Article 25(2).

Running through both opinions are the following strains of thought: first, excommunication is essential to maintaining the ‘identity’ or ‘purity’ of religion, by purging it of dissidents – and consequently, it is a matter of religion protected by Article 26(b); secondly, the fact that excommunication deprives an individual of core civil rights is legally irrelevant; and thirdly, the law is not saved by virtue of providing for social reform, because that is not its scope (Majority), and even it it is, the State is not permitted to ‘reform a religion out of existence’ (Ayyangar J.).

Dissenting Opinion of Justice Sinha:

Justice Sinha dissented. He located the Act within a long history of social welfare legislation, noting that its aim was to give “full effect to modern notions of individual freedom to choose one’s way of life and to do away with all those undue and outmoded interferences with liberty of conscience, faith and belief. It is also aimed at ensuring human dignity and removing all those restrictions which prevent a person from living his own life so long as he did not interfere with similar rights of others. The legislature had to take the logical final step of creating a new offence by laying down that nobody had the right to deprive others of their civil rights simply because the latter did not conform to a particular pattern of conduct.”

After considering precedent on the point, Justice Sinha then framed the question thus: Article 26 guaranteed religious denominations the right to manage their own affairs in matters of religion. However, “activities associated with religious practices may have many ramifications and varieties-economic, financial, political and other-as recognised by Art. 25(2)(a). ” These covered a much wider field than that covered by Article 25(1) or 26(b). Therefore, the Court had to “draw a line of demarcation between practices consisting of rites and ceremonies connected with the particular kind of worship, which is the tenet of the religious community, and practices in other matters which may touch the religious institutions at several points, but which are not intimately concerned with rites and ceremonies the performance of which is an essential part of the religion.” Only the former would be protected by Article 26(b). Now, in the case of excommunication, as Justice Sinha observed, the “expelled person is excluded from the exercise of rights in connection not only with places of worship but also from burying the dead in the community burial ground and other rights to property belonging to the community, which are all disputes of a civil nature and are not purely religious matters.” Consequently, it was clear that excommunication belonged to the category of acts that might “tough the religious institution“, but were not essentially religious.

Justice Sinha ended his dissent on a rousing note. Comparing the effects of excommunication with that of untouchability, he concluded that:

“The Act is intended to do away with all that mischief of treating a human being as a pariah, and of depriving him of his human dignity and of his right to follow the dictates of his own conscience. The Act is, thus, aimed at fulfilment of the individual liberty of conscience guaranteed by Art. 25 (1) of the Constitution, and not in derogation of it.”

Why the Constitution Bench Ought to Refer the Question to Seven Judges

It is my submission that the Majority opinion in the Dawoodi Bohra Case is incorrect, and Justice Sinha’s dissent is well-reasoned and persuasive. I will not attempt to make a complete argument for overruling at this point, since that is not the question before the Court on Monday. At the very least, however, there is enough reason for the Court to doubt the correctness of the Majority, and refer the question for full argument on merits. This is because:

A. The Majority provides no reason to hold that the Act is not saved by virtue of being a measure of social reform. By contrast, in his dissenting opinion, Justice Sinha places the Act in the tradition of laws outlawing Sati, removing caste disabilities, allowing widow remarriage, and so on. Since the Majority has no answer on point, at least this question deserves a full (re)hearing.

B. Justice Sinha’s argument about the link between civil rights and religion is powerful, and truer to the Constitutional scheme and intent than that of the majority. Previously on this blog, I have had occasion to attack the “essential religious practices test” that has insidiously wormed its way into the Court’s Article 25-26 jurisprudence. Providing blanket protection to “essential religious practices”, as Justice Ayyangar does in his Concurrence, rests upon a misreading of a statement made by Ambedkar in the Constituent Assembly Debates. On 2nd Decmber 1948, Ambedkar had said:

The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious. It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to succession, should be governed by religion.”

Ambedkar’s central concern, therefore, was to ensure that in a country like India, where the influence of religion was far more pervasive than in the West, the State’s power to pass reformative legislation should not be hamstrung by giving religion an expansive interpretation. Consequently, he distinguished between questions that are “essentially religious”, and questions that are connected with religion, but deal with other aspects of a person’s life. By a judicial sleight of hand, the distinction has now been converted into one between “essential religious practices” and inessential ones, instead of practices that are “essentially religious”, and those which are incidentally so. And indeed, Ambedkar’s examples of tenancy and succession seem to speak directly to Justice Sinha’s reasoning that, insofar, an ostensible religious act ends up curtailing an individual’s civil rights, it loses constitutional protection.

C. Justice Sinha’s dissent is more in tune with the Indian constitutional secularism. In a detailed study of the Court’s religious freedom jurisprudence, Gary Jacobsohn has argued that it is best characterised as (in his words) “ameliorative secularism”. Ameliorative secularism – as opposed to the “wall of separation” view in the United States – is embodied by an approach to religion that allows the State (or the Court, as the case may be) to intervene in religious practices with the goal of ensuring individual autonomy and freedom. There is a deeper argument of liberal philosophy here: Liberalism is based on the priority of individual freedom; however, it is well understood by now that for human beings, individual freedom and self-fulfilment are often dependent upon participation in, and identification with, affiliative groups (including religious groups). The reason why a liberal Constitution also provides for group rights, therefore, is not because groups are valuable in themselves, but because they are central to a complete and fulfilling life. Consequently, insofar as groups fail to provide the basic conditions of individual autonomy (for instance, by wilfully suppressing women, or by forcing people to conform to the dominant ideology on pain of excommunication), to that extent, the State can intervene through reformatory measures. This idea of ‘ameliorative secularism’ is present in a number of Supreme Court judgments, and most vividly in Gajendragadkar CJI’s opinion in Sastri Yagnapurushadji.

D. Justice Sinha’s dissenting opinion is more in line with the transformative spirit of the Constitution, that recognises that horizontal asymmetries of power are as dangerous and pernicious towards individual freedom as State oppression. Indian civil rights movements leading up to the framing of the Constitution were focused equally on freedom from alien political dominance, as well as freedom from oppressive private power. This is reflected in Ambedkar’s Mahar satyagrahas for temple entry and for the right to draw water from the community well. The Indian Constitution as well, through a number of provisions, recognises this (Articles 15(2), 17, 23 and 25(2)(b), to name four).

I hope to be able to develop these arguments more fully, either as a critique of the Court’s decision, should it choose against referral, or as reasons why a potential seven judge bench should overrule the Dawoodi Bohra Case.