Monthly Archives: May 2017

Guest Post: Judicial Review and Proportionality of Punishment

(In the context of life sentences and even the death penalty being mooted for cow slaughter in some states, Jeydev C.S. examines whether the Indian Constitution requires proportionality in punishment)

How far can the State go? It is a general proposition that duly enacted penal statutes can prescribe punishments for undesirable conduct. Recent political developments suggest that this legislative freedom may be taken further than ever before. From a constitutional standpoint though, it is far from clear if the state actually has untrammelled discretion in sentencing. For instance, can it execute someone for relatively minor offences like petty theft, or sentence a man to rigorous imprisonment for life if caught driving drunk? Screaming headlines and political ramifications aside, the underlying issue here is whether our Constitution can be concerned with proportionality of punishment while dealing with the legality of penal statutes. In this post, I posit that this specific legal question has been answered in the affirmative, considering the findings of leading case law of the Supreme Court of India while interpreting the text of the Constitution.

Article 21 provides that “No person shall be deprived of his life or person liberty except according to procedure established by law”. A perfunctory reading of this clause suggests that, as far as the state has, one, established a certain procedure through law; and two, such procedure is followed by the state while depriving a person of her life or personal liberty, then such an action of deprival by the state would be permissible. However, this has not meant that unchecked excesses by state agencies under the garb of procedural propriety have been condoned by the courts. In the case of Maneka Gandhi v. Union of India, the Supreme Court held that the “procedure established by law” must be just, fair, and reasonable so as to not be in violation of article 21. To put it another way, the Court read three non-textual pre-conditions into the nature of the administrative process, in the absence of which depriving actions of the state will be rendered unconstitutional. While arriving at this outcome, Chief Justice Beg particularly rejects the notion that articles 21 and 19 are independent compartments of rights; rather, they are available together (along with article 14, particularly with regard to reasonableness) when reviewing executive action. While Maneka Gandhi does much more in the realm of article 21 jurisprudence, this facilitative reading permits us to import certain relevant standards that have been laid out with respective to articles 19 and 14.

Article 19 of the Constitution primarily addresses the protection of certain rights (such as speech, assembly, association, movement, profession et cetera). These freedoms, as articulated in clause (1) are circumscribed by the limitations of clauses (2) through (6) – the common criterion of restriction under these clauses is that such restriction must be ‘reasonable’. While there have been many instances of the courts opining on the nature of what this actually entails, for our purposes, we may turn to the case of State of Madras v. V. G. Row. This case dealt with an action of the State of Madras (as it then was) whereby it declared a political organisation to be an unlawful association. In its opinion, the Court reaffirmed the reasoning of previous cases such as Dr. N. B. Khare v. State of Delhi, that article 19 restrictions must be substantially and procedurally reasonable, and that such reasonableness may be indicated by factors such as “the extent of the evil sought to be remedied”, “prevailing conditions”, and “disproportion of imposition”. Granted, Row only envisages this to be applicable to impediments imposed upon article 19 rights. However, Maneka Gandhi clearly expects a harmonious and combined reading of these standards which can help inform the contours of what may be reasonable for the purposes of article 21. Therefore, I contend that proportionality is a relevant consideration when reviewing law that deprives life or personal liberty.

In a similar tenor, I must now address article 14, which prohibits the state from denying to any person equality before the law or the equal protection of laws within India. Most famously, a constitutional bench of the Supreme Court held in E. P. Royappa v. State of Tamil Nadu that article 14 entails a prohibition on arbitrariness in state action. Drawing upon this precedent and Maneka Gandhi, the case of Mithu v. State of Punjab sought to apply the principle to a penal provision in a criminal statute. Section 303 of the Indian Penal Code, 1860, which provided for a mandatory minimum sentence of death for those who commit murder while serving a term of life imprisonment, was assailed against the combined significance of articles 14, 19, and 21. The Court struck section 303 down as unconstitutional, for such a sentence, which on no valid basis of classification discriminates between convicts and non-convicts, would be arbitrary – further, the automatic imposition of a sentence of death, which is expected to used sparingly per the judgment in Bachan Singh v. State of Punjab, would be disproportionately oppressive; for these reasons, the impugned section was held to be in violation of article 21. Chandrachud J illustrates the importance of a proportionality test for the purposes of sentencing – he notes that a savage sentence, such as amputation for theft, would run afoul of article 21; he actively adverts to the reliance upon article 19 standards of reasonableness to assess challenges under article 21. This further reinforces the importance of proportionality, which as we have noted, has been incorporated through Row.

It is true that a substantial bulk of Mithu dealt with the disproportionality parameter, in as much as a criminal statute took away sentencing discretion from courts during trial. However, perhaps the most forceful articulation of the need for proportionate punishment is seen in Vikram Singh v. Union of India. In this case, the appellants sought to challenge the constitutional validity of section 364A of the Indian Penal Code, 1860 on the grounds that it prescribed a sentence of death, thereby in violation of article 21, as clarified in Mithu. At the earliest, the Court sought to dissuade the notion of the appellants that section 364A amounted to a mandatory death sentence. As the provision itself reads, death is only one option before the trail court – it may also choose to impose a sentence of imprisonment for life. Therefore, this case is clearly distinguishable from Mithu as the mere option of death as a possible punishment for a crime does not violate article 21. Despite dismissing the instant appeal on this ground, Chief Justice Thakur addresses the general issue of proportionality. He opines that merely because courts are deferential to legislatures on matters of punishment, generally, does not mean that penalties that are “shockingly disproportionate” to the gravity of the underlying offence are immune from constitutional intervention.

The Court then proceeds to categorically import the principle of proportionality in punishment from foreign (particularly, North American) jurisprudence. In Weems v. United States, the Supreme Court of that country affirmed the proposition in favour of ‘graduated’ and ‘proportionate’ punishment, by finding grounding in the Eighth Amendment to the United States Constitution, which prohibits cruel and unusual punishments. Similarly, cases like Enmund v. Florida, Coker v. Georgia, and Solem v. Helm have all held penal statutes to be in violation of the Eighth Amendment on account of being disproportionate to the gravity of the underlying offence. Chief Justice Thakur specifically cites the cases of Harmelin v. Michigan and Ewing v. California to be indicative of a prospective American standard, as culled from past jurisprudence – as far as there is a “reasonable basis for believing” the prescribed punishment “advances the goals” of criminal justice and was arrived at through a “rational legislative judgment”, such statutes may be deemed to be proportionate.

While affirmative reiterations of these principles exist throughout Vikram Singh, the most utility for our purposes in evaluating the Indian constitutional scheme may be derived from the enumeration of guiding considerations at paragraph 49 – first, the general principle is that punishment must be proportionate; second, that there exists a presumption that the legislature (unlike the courts) is best positioned to propose punishment; and third, that the courts must defer to its wisdom in this regard unless the prescription is outrageously disproportionate to the offence or so inhuman or brutal that it would be unacceptable by any standard of decency. This standard if further raised in cases where the prescription is one of death – the Court defers to the high standard of judicial care that is applied to the death penalty, in line with evolving jurisprudence on the issue, while also asserting that the likelihood of this punishment being deemed disproportionate is particularly high. I must reiterate however, that my quest here is to not comment on whether the death penalty is disproportionate in certain cases. Rather, it is whether any punishing statute (including, but not limited to the death penalty) is open for constitutional review on the grounds of proportionality.

It is altogether another matter that the Court in Vikram Singh chose to dismiss the appeal on the grounds that the impugned provision did not offend the aforementioned standard. Nonetheless, these principles undoubtedly constitute the ratio decidendi of this case. Being the leading Supreme Court judgment on this point, it shall be binding on courts throughout India. Hence, any criminal statute that prescribes punishment can be held against this test of proportionality; and if it is found to run afoul of this, that punishment may be declared by our constitutional courts to be ineffective on account of it being in violation of article 21. Whether the recent spate of amendments and legislative proposals merit such consideration is a question for another day.


Filed under Article 21 and the Right to Life, Cruel and Unusual Punishment

The Section 6A Challenge: “Illegal Migration” as “External Aggression”

(In this guest post, Praharsh Johorey examines whether the Supreme Court can strike down legislation for violating Article 355 of the Constitution, in the context of the constitutional challenge to S. 6A of the Citizenship Act).

Later this year, the Supreme Court is due to hear the constitutional challenge to Section 6A of the Citizenship Act of 1955, which codifies a special citizenship law for the State of Assam. As explained in a previous post here, Section 6A divides ‘illegal’ immigrants (a foreigner who enters India without a valid passport or other travel documents, or someone who stays in India beyond their permitted time) into three categories, depending on their date of entry: People who entered before 1966 (who were to be regularised), people who entered between 1966 and 1971 (before the Bangladesh war, who were to be taken off the electoral rolls for ten years, and then regularised) and people who entered after 1971 (who were to be expelled in accordance with existing law).

Assam, post-independence, has dealt with the severe economic and societal consequences of continued mass migration from East Pakistan (now Bangladesh), which, it is claimed, has caused ‘perceptible change in the demographic patterns’ of the State. The principle challenge to Section 6A is thus based on the continuing failure of existing law to adequately protect the state from the undesirable consequences of mass migration.

Legally, two grounds are urged. First, that the State has failed to uphold its constitutional duty to protect the Assamese people from ‘external aggression’ under Article 355 of the Constitution. Second, that the differential (and arguably weaker) laws applicable to the State of Assam is a breach of the right of the Assamese people to be granted equal protection under Article 14.

I will deal predominantly with the first issue in this essay. Article 355 reads:

“It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution.”

The substance of this question was previously before the Supreme Court in Sarbananda Sonowal v. UOI, where Mathur J., writing for a bench of three judges, decided challenges to the Illegal Migrants (Determination by Tribunals Act), 1983 (“IMDT Act”) and its corresponding rules, which also dealt with illegal immigration in the State of Assam. Having engaged in a detailed analysis of the meaning of the term ‘external aggression’, and reading illegal immigration as falling within its scope, Mathur J. concluded in paragraph 42:

‘The provisions of the IMDT Act and the Rules made thereunder clearly negate the constitutional mandate contained in Article 355 of the Constitution, where a duty has been cast upon the Union of India to protect every State against external aggression and internal disturbance. The IMDT Act which contravenes Article 355 of the Constitution is, therefore, wholly unconstitutional and must be struck down.’

To declare the IMDT Act unconstitutional, Mathur J. could have relied on one of two grounds: first, that the IMDT Act is “law” under Article 13 of the Constitution, and therefore subject to constitutional scrutiny; and second (and which is more likely), that provisions such as Article 355 imposes a positive obligation upon the Government in power, the failure to adequately discharge which is unconstitutional. I will examine the veracity of both these assumptions independently.

Article 13 and Part III

Article 13 was inserted in the Constitution to ensure that ‘laws’ or ‘laws in force’ that contravene constitutional provisions are void – applying to both existing statutes and enactments subsequent to the Constitution. The question relevant for this essay is the scope of this Article, to determine whether it can apply to Article 355. The relevant provisions of the Article read:

(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

(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.

The wording of Article 13(1) and (2) is clear and unequivocal – it applies exclusively to Part III. Applying the principle of literal interpretation, and read with Expressio Unius Est Exclusio Alterius (which was discussed in the context of the definition of ‘laws in force’ here), it is clear that ‘laws’ or ‘laws in force’ can be declared unconstitutional as a result of the operation of this Article only if they are in breach of the provisions of Part III, and not the Constitution as a whole. Demonstrably, Mathur J. did not and could not declare the IMDT Act unconstitutional under Article 13.

Part III and Unconstitutionality

Even accepting the contentious argument that the flow of illegal immigrants is contemplated under the term ‘external aggression’, we have to understand whether it is permissible for the Supreme Court to declare the inadequacy of state measures under Article 355 as being sufficient grounds to declare that such measures are unconstitutional.

Article 355 imposes a duty upon the Union to protect every state against external aggression. It is accepted legal theory that all duties have correlative rights (Hohfeld) which would imply that all states, or aggrieved citizens (as in the present dispute) have a ‘constitutional right’ to be protected against external aggression and internal disturbance by the Union.

Rights not expressly codified in Part III of the Constitution – and therefore not “fundamental rights” as such – have been nonetheless interpreted as ‘constitutional rights’ by the Supreme Court, notably in Rajbala v. State of Haryana – which recognised a Constitutional right to ‘contest elections’. In this case, the Constitutionality of the Haryana Panchayati Raj (Amendment) Act, 2015 was challenged, which imposed more stringent qualifications (educational and financial) to be eligible to contest Panchayati elections, and was challenged as effectively denying a class of people their ‘constitutional right’ to contest elections. Despite holding that the amendments were constitutional Chelameswar J. held:

‘Various provisions, by implication create a constitutional right to contest elections to these various constitutional offices and bodies. Such a conclusion is irresistible since there would be no requirement to prescribe constitutional limitations on a non-existent constitutional right…. Every citizen has a constitutional right to elect and to be elected to either parliament or the state legislatures.’

The implications of this are clear – that if the state undertakes certain actions that impede upon a constitutional right, for e.g. if it enacts legislation debarring citizens from contesting elections, its actions may be said to be ‘unconstitutional’, even though the right to contest elections is not specifically enshrined in the Constitution. However, Chelameswar J. recognised the supremacy of the legislature to alter these rights, noting:

Under the scheme of our Constitution, the appropriateness of the Legislative Body is determined on the basis of the nature of the rights sought to be curtailed or relevant and the competence of the Legislative Body to deal with the right having regard to the distribution of legislative powers between Parliament and State Legislatures. It is also the settled principle of law under our Constitution that every law made by any Legislative Body must be consistent with provisions of the Constitution.

Therefore, the exercise of a duty through legislation can only be deemed unconstitutional if it is outside the ‘Legislative competence of the enacting body’, or it abrogates ‘provisions of the constitution’. It is my contention that ‘provisions of the constitution’ here means Part III, most crucially, Articles 14 and 21. In Rajabala itself, the Court’s determination of whether the Constitutional right to contest was violated was based on an examination of Article 14, and whether the scheme imposed was ‘arbitrary’, or created a classification without intelligible differentia. The Court undertook no analysis of whether ‘Constitutional rights’ could per se be violated, and demonstrated that at best, they can be linked to a breach of provisions of Part III.

External Aggression and the Insufficiency of State Action

Assuming (but not conceding) that the Court could strike down the IMDT Act for insufficiently discharging the 355 duty, it becomes significant to note the reasons why J. Mathur declared the IMDT Act so woefully inadequate, so as to render it in direct conflict with the Union’s obligations. He first frames the duty of the state as:

‘To take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution. Having regard to this constitutional mandate, the question arises whether the Union of India has taken any measures for that purpose.

Thus, to satisfactorily discharge its constitutional obligation, the Union was required to prove that it had undertaken any measures in furtherance of protecting the State of Assam from illegal migration. The Statement of Objects and Reasons of the Act makes clear that the Union recognised this problem, stating that ‘the influx of foreigners who illegal migrated into India…pose a threat to the integrity and security of the region’ with the Preamble further elucidating that ‘the continuance of these such foreigners in India is detrimental to the interests of the public of India.’ Thus there was clear recognition of the problem, and demonstrable intent to take measures to deal with it.

The scheme created under the Act was to authorise the Government to set up Tribunals for the purpose of determining whether migrants were legal. The justification for the scheme was to ensure that adequate safeguards were granted to those migrants who entered and resided in India legally, and to prevent their arbitrary deportation by granting them access to fair judicial process.

However, a perusal of the provisions of the Act lead to Mathur J. concluding:

The application of the IMDT act and the rules made thereunder in the state of Assam has created the biggest hurdle and is the main impediment or barrier in identification and deportation of illegal migrants. On the contrary, it is coming to the advantage of such illegal migrants as any proceedings initiated against them under the said provision which, as demonstrated above, almost entirely ends in their favour, enables them to have a document having official sanctity to the effect that they are not illegal migrants.

Thus, the malfunctioning/ineffectiveness of the Act, and not the absence of measures itself that lead to Mathur J.’s declaration – which belies his own standard for the discharge of the 355 duty. We should therefore examine whether the Supreme Court has in the past struck down any acts for insufficiently fulfilling a positive State obligation, even when no discernible standard for adequate discharge is established. The positive duties of the State under Article 21 serve as an appropriate starting point.

For example, the Supreme Court has read the right to a ‘Clean and healthy environment’ as being an essential feature of the ‘Right to Life’ under Article 21 – with the right to clean water and air forming part of the broader corpus of this right. Hohfeld’s test implies that there exists a correlative duty upon the State to ensure a clean environment, with access to clean air and water. Applying Mathur J.’s test, legislations like the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution Act), 1974 are therefore liable to be struck down as being ‘unconstitutional’ if it is proven that despite their operation, the environment continues to be polluted, or that people still do not have free access to clean resources. However, the Courts have continually refused to engage in the effectiveness of these legislations (or their consequent constitutionality) in solving these problems, instead engaging only with interpreting the Right to Life under Article 21. The dictum of the Andhra Pradesh High Court in Wasim Ahmed Khan v. Government of AP is relevant. Here, a PIL was filed against the Government for its failure to provide safe drinking water and prevent the outbreak of disease in the state as illegal and unconstitutional. While recognising that providing drinking water is a ‘priority issue’, the bench noted:

‘So far as the relief in general terms which was claimed by the petitioner (of the negligence being an unconstitutional act) is concerned, it should be borne in mind that in a State or rather a country where growth of population is in geometrical proportion and the natural resources are not only static but depleting or made to deplete, it will be only utopian to issue a direction as desired by the petitioner.

It is submitted that such a demonstrable failure of a ‘priority’ state duty under Article 21 can be treated no differently from the separate duty of the State under Article 355. Both problems: ensuring access to vital resources and preventing illegal immigration, are constrained by the limited resources of the State and the partial burden that is borne by the local populous in discharging such an obligation. The AP High Court went on to note:

There cannot be any second opinion that the State is under obligation to provide atleast drinking water to all its citizens, but at the same time, the limited availability of the water resources as well as the financial resources cannot be ignored. Within the available resources, the problem should be attended to with utmost importance and promptitude. In fact, it should be treated as a priority issue. At the same time, making the Government alone responsible and liable to provide water may not solve the issue. The people at large should address themselves to the problem and learn to use the water, particularly drinking water, in a judicious and reasonable manner. Wastage of drinking water, which is not available in plenty, would naturally result in denial of the same to the other needy persons. Individual and collective efforts in this regard are very much necessary and such efforts go a very long way in minimizing the scarcity.

In respect of State duty under Article 355, considerable responsibility was placed upon the local citizenry to report incidents of illegal immigration to allow the State to maximise the resources available to it. While the ultimate functioning of the Act may have resulted in an excessive burden upon the citizens, which caused lower rates of deportation and difficulty in identification of illegal immigration, it is respectfully submitted that these are not sufficient grounds to declare that the IMDT Act is wholly unconstitutional – but that parts of it are to be enforced with greater effectiveness. In summary, only a successful challenge to the IMDT Act under Part III (which was done) should have lead to a declaration of unconstitutionality.

Fact-Finding and the Insufficiency of the Supreme Court

A close reading of the Sonowal judgement reveals another troubling truth – that the Court makes its determination of the inadequacies of the IMDT Act on the basis of a distinct lack of concrete evidence. It relies primarily on a single report of the Governor of Assam (1998) to draw its conclusions on the efficacy of the Act, disputing none of the reports factual conclusions. Without drawing any inferences as to the accuracy of the report itself, this raises the questions of the ability of the Supreme Court to make concrete factual determinations, and whether it is even the correct forum for such determinations to be made.

The Supreme Court has been vested with wide powers to do justice in the Constitution – but its power to appreciate new evidence, or interfere with the findings of lower courts is limited when exercising its appellate authority. However, the Supreme Court has called on ‘expert committees’ to assess more closely the evidence submitted by the parties. For example, in an order passed concerning the Cauvery Water Dispute between Karnataka and Tamil Nadu, the Court ordered:

‘It is submitted that it would be in the fitness of things that a High Powered Technical Team is appointed by the Chairman of the Supervisory Committee who is the Secretary of the Ministry of Water Resources…to proceed immediately to the site so that an inspection of the entire Basin is done for assessing the ground realities and prepare a report forthwith for being placed before this Hon’ble Court.’

There have been numerous incidents of the Supreme Court having relied upon neutral ‘expert evidence’, such as in State of Tamil Nadu v. K. Balu, concerning liquor vendors on highways, or its creation of a Technical Expert Committee that studied Genetically Modified Organisms in Aruna Rodrigues v. UOI. Its treatment of facts in Sonowal is thus a departure from its current practice of commissioning independent studies to determine contentious assertions of on-ground realities. The Judiciary, in comprising of judges who are (justifiably) unable to address the several scientific and complex questions of fact posed to it, is invariably one-sided in its approach, as it lacks the inherent institutional expertise to make its own determinations of fact. As a consequence, the Supreme Court isn’t equipped to scientifically determine when a partial breach of duty has taken place, and what the threshold for such partial breach should be. As a result, judgements like Sonowal ignore the often overlapping (and not the binary positive or negative) outcomes that may result from legislations like the IMDT.


The Constitutional Bench of the Supreme Court is required to answer a set of thirteen questions as referred to it by the Division Bench before which the case was originally placed, some of which are crucial for the purposes of this essay:


  • Whether Section 6A violates Article 355?
  • What is the true interpretation of Article 355 of the Constitution?
  • Would an influx of illegal migrants into a State of India constitute “external aggression” and/or “internal disturbance”?
  • Does the expression “State” occurring in this Article refer only to a territorial region or does it also include the people living in the State, which would include their culture and identity?

To answer these questions effectively, it is crucial that the Supreme Court deliberate upon the nature of Article 355 – as to whether it requires that any measure be undertaken, or that these measures must also be effective. Answering these questions clearly would avoid Mathur J.’s dictum, which confused ‘unconstitutionality’ with ‘ineffectiveness’ – and may go some way to easing the plight of the Assamese.


Filed under External Aggression (Article 355), positive rights

Judicial Censorship, Prior Restraint, and the Karnan Gag Order

When the only weapon you have is a hammer, every problem looks like a nail. In recent times, the judiciary’s approach to the freedom of speech and expression seems to be proving this adage true. In response to people saying things that may not be to a judge’s liking, the response has invariably been to reach for the hammer, to ban, prohibit, or compel. Jolly LLB has a few scenes mocking lawyers? Make a committee and order cuts. Fundamental duties don’t have enough of an impact among people? Force them to stand up for the national anthem in cinemas. Condom packets have racy pictures? Direct the Additional Solicitor-General to come up with a way of “regulating” them. People are losing touch with cultural values? Force all schools in Tamil Nadu to teach the ThirukkuralThere are bandhs in Meghalaya? Ban the press from carrying statements about them. And so on.

The judicial hammer was in exhibition again today, in the seven-judge bench order convicting Justice C.S. Karnan of contempt, and sentencing him to six months in prison. The broader contempt case is not something I want to spend time discussing here, apart from noting, as an aside, that a Supreme Court that has no time to hear crucial constitutional cases for years on end on the ground that its judges are overworked and dealing with a backlog, nonetheless found the time to have multiple seven-judge sittings between February and May. Be that as it may, it is the last line of today’s order that I want to focus on. After convicting Justice Karnan to six months imprisonment, the Court states:

“Since the incident of contempt includes public statements and publication of orders made by the contemnor, which were highlighted by the electronic and print media, we are of the view, that no further statements made by him should be published hereafter. Ordered accordingly.”

The scope of this order is breathtaking. The Court takes one individual – Justice Karnan – and gags the media from carrying any statement made by him. In my view, apart from overreaching and violating Article 19(1)(a), the Court has passed an order that it had no power to pass.

Prior Restraint

The order imposes what, in free speech law, is called “prior restraint”: “… [State] action that prohibits speech or other expression before it can take place.” It has long been a position in common law that prior restraints upon speech are impermissible unless exceptional circumstances exist. As early as 1765 in England (a time not exactly known for liberties of speech and of the press), Blackstone famously wrote that “the liberty of the press… consists in laying no previous restraints upon publication.” The American Supreme Court has held repeatedly that “any prior restraint on expression comes to this Court with a `heavy presumption’ against its constitutional validity.” In Brij Bhushan vs State of Delhi, the Indian Supreme Court held, as well, that prior restraint upon speech is presumptively unconstitutional. Prior restraint is considered specially damaging to free speech because it chokes off the “marketplace of ideas” at its very source, and prevents certain individuals, or ideas, from entering the public sphere. In other words, it gives the State exclusive control over “exclusive control over what material can or cannot be allowed to enter the marketplace of ideas.”

The Media Guidelines Case

In Sahara vs SEBI, popularly known as the “Media Guidelines Case”, the Supreme Court carved out a specific exception to the rule against prior restraint. In SEBI, the Court was concerned about the issue of media trials causing prejudice in sub judice matters. In that context, the Court held that it had inherent powers under the Constitution to “prohibit temporarily, statements being made in the media which would prejudice or obstruct or interfere with the administration of justice in a given case pending in the Supreme Court or the High Court or even in the subordinate courts.” Drawing this power under Article 129 of the Constitution, which authorised the Supreme Court to punish for contempt of itself, the Court held that the power to punish included the power to prevent as well. On this basis, the Court held that it could pass “postponement orders” (i.e., temporary injuncting the media from reporting on a particular event) in order to ensure the proper administration of justice, a fair trial, and the protection of the rights of the accused under Article 21. The Court warned that:

“Given that the postponement orders curtail the freedom of expression of third parties, such orders have to be passed only in cases in which there is real and substantial risk of prejudice to fairness of the trial or to the proper administration of justice which in the words of Justice Cardozo is “the end and purpose of all laws”. However, such orders of postponement should be ordered for a limited duration and without disturbing the content of the publication. They should be passed only when necessary to prevent real and substantial risk to the fairness of the trial (court proceedings), if reasonable alternative methods or measures such as change of venue or postponement of trial will not prevent the said risk and when the salutary effects of such orders outweigh the deleterious effects to the free expression of those affected by the prior restraint. The order of postponement will only be appropriate in cases where the balancing test otherwise favours non-publication for a limited period.”

Consequently, in SEBI, the Supreme Court authorised prior restraint only in the narrow context of an ongoing trial, where media reporting presented a “real and substantial risk of prejudice to the fairness of the trial.” The Court stressed that the postponement order must be narrow and limited, both in its scope and its duration.

The Karnan Gag Order

The SEBI case has come under serious criticism, but for the purposes of this post, let us take it as binding law, and test the Karnan order against it. It is quite obvious that none of SEBI’s pre-conditions for imposing prior restraint are not even remotely satisfied. There is no ongoing trial – by the same order in which it imposed the media gag, the Court convicted him of contempt. Consequently, the prospect of prejudicing an ongoing trial and thereby interfering with the administration of justice – the basis of the judgment in SEBI – does not exist. The order is neither narrow in scope, nor in its duration: it is, in the true sense of the word, a blanket gag order. Consequently, the Karnan gag order does not fall within the scope of the SEBI judgment.

What, then, is the justification for this sweeping exercise of judicial power to silence speech? The answer is clear: Justice Karnan has, over the course of the last few months, made a number of statements, which formed the basis of his conviction for contempt by the Supreme Court. The Court presumes that he will make more such statements, and many of them will amount to contempt of court. To prevent these statements from being given the oxygen of publicity, the Court decides to gag the media from reporting on them, in advance.

This is the case for the Court, taken at its highest. And at its highest, it is no case at all. There is something particularly disturbing about punishing a man not for what he has said, but for what he might say (we are dangerously close to the realm of thought-crimes here). There is something particularly disturbing about taking the choice and judgment away from the media about what to report and what not to report, to decide for themselves what statements might be legal and what illegal, and imposing a blanket ban on reporting anything one individual might say, in advance. There is no counter-veiling interest: no ongoing trial, no sexual harassment claim where reputations may be destroyed, no grave imperilment of national security. There is absolutely nothing here apart from a man who has made some statements that the Court has found to be contemptuous, and on that basis the Court has decided to gag the media from publishing anything he says. Even if it could possibly be argued that the Court had the power to do this under Article 129 (since, as has been held, the power to punish for contempt includes the power to prevent it), the Karnan order clearly violates Article 19(1)(a), and fails all the proximity and reasonableness tests laid down under Article 19(2).

Needless to say, I don’t believe that the Court does have the power to pass an order under Article 129. SEBI – which held that the power to “punish” contempt includes the power to “prevent” contempt – was already stretching language to its limits. But even if there is some way to justify SEBI on the grounds of its narrowly focused nature, to say that the Karnan gag order falls within the Supreme Court’s power to “prevent contempt” is to act like Humpty Dumpty, and make words mean what you want them to mean, because you are the master.

Now, if the gag order cannot be traced back to Article 129, then – in my view – there is no constitutional source for it at all. As I have argued before in my analysis of the national anthem order, under Article 19(2), speech can be restricted only by the “State”, acting through “law”. It is, by now, well-settled, that under Article 19(2), the judiciary is not “State”, and judicial orders are not “law”. The judiciary’s task is to protect citizens’ right to free speech from executive and legislative tyranny, not to get into the business of censoring speech itself! In my view, therefore, the gag order is entirely illegal and unconstitutional.

Judicial Censorship

I have written before that over the last few years, we have been witnessing a disturbing trend where, in place of the legislature and the executive, it is the judiciary that has been taking upon itself the task of regulating, restricting, and censoring speech. The Karnan gag order is the latest trend in what fast seems to be becoming an established jurisprudence of (what I have called) “judicial censorship”.

The Karnan gag order was written by the Chief Justice, but co-signed by the next six senior-most judges of the Supreme Court. Three of those six judges will serve as Chief Justice in the coming years. What this suggests is that the problem is not with individual judges, but with the fact that, as an institution, the Supreme Court simply doesn’t view the freedom of speech and expression to be of much importance.

That is, in equal parts, alarming and tragic.


Filed under Contempt of Court, Free Speech, judicial censorship

The (Continuing) Doctrine of Judicial Evasion in the Aadhaar Case

On this blog, I have argued before that the ongoing Aadhaar litigation provides an example of the Supreme Court’s evolving doctrine of “judicial evasion”: faced with a dispute between individual and State that involves wide-ranging ramifications on civil and constitutional rights, the Court’s response is not to decide it one way or another, but to simply refuse to hear it at all. While legally this keeps the position of the parties at status quo, at the same time, it permits the State to take all steps on the ground to achieve a fait accompli that effectively makes the case academic and infructuous. In other words, by not deciding, the Court is, in effect, deciding in favour of the State, but without the public accountability that comes with the existence of a written, reasoned judgment.

The doctrine of judicial evasion ensured – as I pointed out in my posts about the Aadhaar/PAN litigation – that in the one constitutional challenge to Aadhaar that the Court did hear, the Petitioners had to argue as if they were playing a tennis match with one arm and one leg tied behind their backs. And today’s order – in Shanta Sinha vs Union of India – is another excellent example of how, by applying this doctrine, the Court has fundamentally abdicated its constitutional responsibility to protect the rights of Indian citizens.

Recall – yet again – the background. On 11th August 2015, after the Union of India argued that there was no fundamental right to privacy under the Indian Constitution, the three-judge bench of the Supreme Court referred the challenge to the Aadhaar scheme (at that point, a voluntary, executive scheme) to a larger bench for decision. The Court clarified that, pending the final decision, Aadhaar could not be made mandatory for availing of subsidies or benefits, and it recommended that the case be heard on an urgent basis. A Constitution Bench met in October 2015 to extent the list of subsidies for which Aadhaar could be used; after that, the case has not been heard, despite numerous attempts to “mention” it before the Chief Justice, and have it listed. It has been one year and nine months since the referral order.

In the meantime, the Union of India has gone full steam ahead with Aadhaar. In 2016, it passed an Aadhaar Act, providing statutory sanction to the scheme. Section 7 of the Act authorised the government to make Aadhaar mandatory for subsidies or benefits, which were paid out of the Consolidated Fund. Under the ostensible cover of Section 7, a number of notifications have been passed, making Aadhaar mandatory for a whole range of crucial, life-sustaining benefits: from schoolchildren’s midday meals to compensation for victims of the Bhopal Gas Tragedy.

Before the Supreme Court today, then, the case for the petitioners in Shanta Sinha vs Union of India was simple: seventeen notifications under the authority of S. 7 of the Aadhaar Act, which made Aadhaar mandatory for crucial subsidies and benefits, were illegal, and Section 7 itself was unconstitutional. Moreover, the case was one of utmost urgency: in most of these notifications, the last date for applying was June 30. Given that the Supreme Court was closing for the vacations today, unless some orders were passed, the case would become entirely infructuous. People entirely dependent on these subsidies for their basic survival would have no choice but to enrol for an Aadhaar number, whether they wanted to or not.

To this, the Court’s only response was to decline to hear the case, because the constitutional challenge to the Aadhaar Act was already pending before the Constitution Bench – the same Constitution Bench that had not been set up for a year and nine months, despite every attempt by numerous petitioners to persuade the Chief Justice to do so. Instead, it tagged this challenge to the already pending challenge before that Constitution Bench. Petitioners’ arguments that they would not rely upon the right to privacy – which was the reason why the referral had happened in the first place – had no impact.

Petitioners then requested the Court to at least hear the case on the issue of interim reliefs because – as pointed out above – the entire case would become infructuous by June 30. To this, the Court responded that the Petitioners could only raise the plea of interim reliefs before the Constitution Bench – that same unicorn Constitution Bench that nobody had seen a hoofprint of since August 2015. The Court then said that the Petitioners ought to approach the Chief Justice and mention this – the same Chief Justice who had publicly refused to list the case on a prior mentioning.

Needless to say, there’s going to be no Constitution Bench before June 30. In short, the Supreme Court has effectively decided the validity of seventeen notifications that make Aadhaar mandatory for accessing crucial services in favour of the government without hearing a single argument, not even arguments on an interim stay.

Presumably, judges of the Supreme Court do not live in individual silos. The two-judge bench of Justices Sikri and Bhushan who heard today’s case was surely aware of the non-progress of the Aadhaar case through the Supreme Court over nearly two years. Surely it was aware that there was going to be no listing of anything any time soon. And so, surely these judges knew that by “tagging” this case to the existing challenges before the mythical Constitution Bench, the effect was nothing other than to decide the case in favour of the government.

I have said before that the only proper description of the Supreme Court’s conduct in the Aadhaar case is institutional disingenuousness. In refusing to set up the Constitution Bench to hear Aadhaar, while simultaneously setting up three Constitution Benches in the vacations to hear three other cases (none of which carry the same urgency as this one) and in “tagging” new challenges to the main challenge that is never heard, thereby burying them as well, the Court has effectively ruled in favour of the government on Aadhaar without allowing the petitioners to argue their challenge, and without writing a reasoned judgment that would be subject to public scrutiny.

This, to me, seems nothing less than an abdication of constitutional responsibility through the doctrine of judicial evasion.


Filed under aadhaar, Access to Justice, Article 21 and the Right to Life, Judicial Evasion, Privacy

Personal Laws and the Constitution: Why the Tripal Talaq Bench should Overrule State of Bombay vs Narasu Appa Mali

(From this Thursday, a Constitution Bench of the Supreme Court will hear arguments about the constitutionality of the Muslim personal law practices of triple talaq, nikah halala, and polygamy. In this guest post, Praharsh Johorey argues that in doing so, the Court ought to overrule the long-standing precedent of State of Bombay vs Narasu Appa Mali, which exempts personal laws from constitutional scrutiny.)

On the 11th of May, the Supreme Court will begin hearing arguments on the petition concerning – among other things – the constitutionality of the Muslim divorce process commonly known as the ‘Triple Talaq’.

Before the Court, a number of interveners have canvassed a wide range of propositions. In this post, however, I shall focus on the specific issue of “instant Triple Talaq” (where a man can divorce his wife by unilaterally uttering the word “talaq” thrice in succession), and proceed on the assumption that such manner of divorce is illegal and unconstitutional. Now, in order to declare it unconstitutional, the Supreme Court can do one of two things. First, it can adopt a narrow approach in accordance with J. Krishna Iyer’s plea in A. Yousuf Rawther v. Sowramma, and hold that the instant Triple Talaq practice is not part of Muslim Personal Law and therefore excluded from the Muslim Personal Law (Shariat) Application Act, 1937. Second, it can take the broader approach, and subject all personal law to the test of Constitutional validity, and principally determine the constitutional validity of the practice. To take the broad approach, however, it will have to overrule a 1951 Bombay High Court judgement State of Bombay v. Narassu Appa Mali, which held that personal laws are not subject to the rights enumerated under Part III of the Constitution.

In this post, I will be dealing specifically with the Narasu judgement, and the need for the Supreme Court to overrule this deeply problematic constitutional pronouncement.

Narasu Appa Mali

The central question in Narasu related to the validity of the Bombay Prevention of Bigamous Hindu Marriages Act, 1946. The primary contention against the Act was that it was in breach of Articles 14 (Right to Equality) and Article 15 (Prohibition of Discrimination), because the law discriminated between a Hindu and a Muslim male with respect to their respective rights (or lack thereof) to engage in polygamy. Article 25 (Right to Freedom of Religion) was also argued, on grounds that this Act infringed with the right of Hindus to practice polygamy, which was argued as forming part of Hindu custom.

However, under the Constitution only a ‘law’ or a ‘law in force’ as defined in Article 13, which invalidates all laws that are in derogation of fundamental rights, can be subject to the rights under Part III. Therefore prior to examining the aforementioned contentions, the Court undertook to answer the more fundamental question of whether Personal Laws (such as the Act in question) are ‘laws’ or ‘laws in force’ under Article 13.

The Division Bench of C.J. Chagla and J. Ganjendragadkar unanimously answered in the negative, with both judges giving somewhat distinguishable reasoning for their decision. I will examine both separately.

Personal Laws as ‘Laws in Force’

Justice Gajendragadkar’s justification is based on a narrow interpretation of Article 13, stated in paragraphs 19 and 20 of his separate opinion:

‘The expression ‘laws in force’..refers to what may compendiously be described as statutory laws. There is no doubt that laws which are included in this expression must have been passed or made by a Legislature or other competent authority, and unless this test is satisfied it would not be legitimate to include in this expression the personal laws merely on the ground that they are administered by Courts in India. 

His argument thus proceeds on two grounds. First, that Article 13(1) only contemplates statutory laws, and second, that personal laws cannot be considered statutory law and are therefore outside the scope of Article 13.

Now, to understand the scope of ‘laws in force’ under Article 13(1), we must first look to Article 13(3)(b), which defines the term:

“… ‘laws in force’ includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.”

Respectfully, J. Gajendragadkar’s interpretation is in direct conflict with the wording of 13(3)(b), as it employs the term ‘includes’ in the definition of the term ‘laws in force’, thereby broadening its scope. J. Agarwal, in P. Kasilingam v. PSG College of Technology states that the word ‘includes’ enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import, but also the things as the clause says they shall include. More recently, J. Jain in Bharat Cooperative Bank (Mumbai) v. Employees Union agreed with the dictum of Kasilingam, by holding that ‘includes’ makes the definition enumerative, in that the term defined will retain its ordinary meaning but its scope will be extended to bring within it matters, which in its ordinary meaning may or may not comprise.

Applying this to the interpretation of the definition of ‘laws in force’ under Article 13(3)(b), the ‘ordinary’ or ‘natural’ import of the term must be given effect to. As per its dictionary meaning, a ‘law in force’ is any principle to which parties are legally bound, and which can be relied upon by a Court to resolve disputes. Interestingly, J. Gajendragadkar’s attributes all of these facets to ‘personal law’ in India, stating:

‘There can be no doubt that the personal laws are in force in a general sense; they are in fact administered by the Courts in India in matters falling within their purview.’ However, the expression ‘ laws in force’ is, in my opinion, used in Article 13(1) not in that general sense.’

It remains unclear what specific import he sought for the term ‘general’ to have in this context, and no clear reasoning as to why he resultantly narrows the scope of Article 13. This interpretation is plainly not supported by the enumerative wording of Article 13(3)(b), and it is his own characterisation of personal laws that places it well within the scope of the ordinary meaning of ‘laws in force’.

Even if one were to accept the contention that Article 13(1) is limited only to statutory pronouncements, for the Narasu dictum to withstand scrutiny, it must be established that there exists a clear distinction between ‘law’ under Article 13 and personal laws. To this end, J. Gajendragadkar states:

It is well-known that the personal laws do not derive their validity on the ground that they have been passed or made by a Legislature or other competent authority in the territory of India. The foundational sources of both the Hindu and the Mahomedan laws are their respective scriptural texts.

‘…the duty of a Judge who is under the obligation to administer Hindu law is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular school which governs the district with which he has to deal. In fact, the different schools and sub-schools of Hindu law which are recognised by our Courts are distinguished solely on the ground of the different texts to which they owe allegiance.’

This argument proceeds on the contention that personal laws are based upon an untrammelled application of the scriptural texts ‘to which they owe their allegiance.’ However, this reasoning ignores the significant role played by the Judiciary and the Legislature in moulding religious texts in light of modern constitutional principles – which have in several instances been accepted by the schools that are responsible for their application. As a result, the High Court’s singular premise for excluding personal laws from Article 13 is unfounded.

The Evolution of Personal Law in India

‘We ought not to be guided by Hindu law, which is a new introduction of our own.’

  • Mountstuart Elphinstone,

This contention can be demonstrated through an examination of how personal law came to be defined by religious practice in the colonial era. The British administration took upon itself the duty of both defining and adjudicating personal law, which required that it determine which practices would constitute law, and which would simply have social force. (Sturman, 2012) For this purpose, Courts, the Privy Council in particular, developed a three-step test to determine what constituted religious custom – that any principle must be ancient, invariable and supported by clear evidence. This made the establishment of any custom invariably difficult, leading to the greater homogenisation and enforcement of Brahmanical law by Courts, irrespective of the diverse religious leanings of parties to a dispute. (Sturman) The British insistence on ‘clarity, certainty and definitiveness’ was alien to Hindu and Islamic traditions, whose traditions and custom were ‘not of a nature to bear the strict criteria imposed by British lawyers.’ (Galanter, 1968) The establishment of the High Courts in India in 1864 also rendered null the position of ‘law officers’, like Shastris and Maulvis, who were responsible for offering textual interpretations and opinions pertaining to personal law.

This process also replaced the idea that socio-religious polities were based on changing beliefs and faith with the authority instead granted to objective experts, like Courts, to identify fixed beliefs determined at the time of the origins of such polity. For example, the Aga Khan case (High Court of Bombay, 1866), treated the Khoja community as Muslim and the Pushtimargis as Hindu instead of them being considered as independent polities within these larger faiths. The consequence of this was clear – polities that previously determined their own idea of the religious traditions in which they engaged were now subjected to the Western conception of Hindu and Islamic law. (Shodan, 2001)

Therefore, the idea that religious/personal law exists as it was written in the Smriti or the Quran ignores the intricate systems of ‘contractual governance’ within religious sects that enabled them to re-interpret text in light of changing societal norms. By taking away the ability of these local collective structures to make decisions for themselves, these structures were compelled to surrender all decision-making, concerning personal law, among other things, to the Imperial government which made decisions in light of international or a collective mode of logic – vastly different from the ones followed at the local level. The movement to bring the local community into the public sphere was thus not an organic one, and was done for the sole purpose of making them more amenable to coexistence with societal and religious norms defined by the British. Thus, J. Gajendragadkar’s notion of a clean and inextricable link between religious texts and personal law is deeply ahistorical and largely a colonial construct, as it denies entirely the crucial role played by customary law at the local level in developing this law, and subsequently shaping its application.

We can now turn to C.J. Chagla’s conception of the scope of law under Article 13, and where personal laws may be placed in this spectrum.

‘Expressio Unius Exclusio Alterius’ under the Constitution

It was argued before the bench that personal law can even be considered as ‘custom or usage having the force of law’ under the definition of law under Article 13(3)(a). J. Chagla dismisses this contention:

‘.Custom or usage is deviation from personal law and not personal law itself. The law recognises certain institutions which are not in accordance with religious texts or are even opposed to them because they have been sanctified by custom or usage, but the difference between personal law and custom or usage is clear and unambiguous.’

Evidence of this difference, J. Chagla argues, can be found in the inclusion of various provisions in the Constitution that relate to state regulation of personal law, such as Article 17 (Abolition of untouchability), Article 25 (Freedom of Religion) and Article 372 (Power to Adapt and Modify laws); the implication being that the drafters did not intend to subject personal laws to Constitutional provisions, because otherwise it would be ‘unnecessary to specifically provide for them.’

This reasoning is flawed for a number of reasons. His distinction between custom and personal law is, in my opinion, based on a misguided reading of the Constitution. This can be proven through an examination of the very basis of the argument, the principle of expressio unius exclusio alterius, i.e. the expression of one excludes the other, and its present application.

This principle is used sparingly as a tool of interpretation, being described as a ‘dangerous master’ because the conditions in which it can be conclusively applied remain unclear. Guidance is provided by the Calcutta High Court in Union of India v. BC Nawn, which held that primary purpose of this principle is when a provision in a statute expressly mentions one or more particulars, but does not mention some others, then those others not mentioned are taken to have been excluded from the provision. J. Chagla stretches the application of this principle far beyond this contemplation to encompass all provisions of the Constitution – holding in effect that any Constitutional declaration specifically relating to personal law is further evidence of its exclusion as a ‘law’ under 13(3)(a). This reading cannot be reconciled with the actual wording of Article 13, because it does not define ‘law’ or ‘laws in force’ in an exhaustive manner, with the broad import of the word ‘including’ in the definition of both terms exemplifying the intent of the drafters not to subject them to restrictive tools like the exclusio principle. It should not be said, as a result, that Articles relating to personal law under the Constitution occupy a field independent of Article 13.

This underlying logic of this principle is made weaker in light of its problematic implications. Take for example Article 23, which establishes a right against discrimination on grounds of religion, caste or class. As per J. Chagla’s reasoning, the inclusion of a specific right against caste-discrimination would signify its exclusion from the scope of Article 14, which establishes a right to equality. However, this is apparently untrue, with the Supreme Court holding in a catena of decisions that certain provisions in the Constitution must be read together, due to the broad wording of certain provisions under Part III, and the ‘abundant caution’ of the drafters lead to the inclusion of certain provisions. A relevant example is that of the inclusion of Article 13 itself. C.J. Kania in his decision in A.K Gopalan v. State of Madras wrote that even in the absence of Article 13(1) and (2), Courts would still have the authority to strike down unconstitutional enactments; but the drafters still included Article 13. This inclusion, he argues, demonstrates the exercise of ‘abundant caution’ by the Constitutional drafters to ensure that all prospective laws and laws already in force were immediately invalidated, irrespective of subsequent litigation. Similarly, the inclusion of Article 17, which criminalises untouchability, can be said to have been included on similar grounds, to enable the State to impose adequate sanction upon those engaging in the practice, without having to wait for its declaration as being ultra vires.


Therefore, one would hope that the Supreme Court recognises this, and overrules Narasu, in light of both its incorrect reading of Article 13, as well as the ahistorical understanding of the distinction between personal law and ‘laws in force’ as recognised under the Constitution. Only if the Court undertakes such an exercise can we move beyond the current trend of judicial ‘cherry-picking’ in relation to what religious doctrines are and are not in fact personal law, and principally examine the legal validity of these principles in light of Part III. Here’s to hoping.



Filed under Article 14, Article 15 (general), Equality, Non-discrimination, Personal Law

The Constitutional Challenge to S. 6A of the Citizenship Act (Assam Accord): A Primer

Tomorrow, a Constitution Bench of the Supreme Court will commence hearings in the constitutional challenge to Section 6A of the Citizenship Act. The case comes up for hearing as the result of a referral order under Article 145(3) of the Constitution, passed by a bench of two judges in Assam Sanmilita Mahasangha vs Union of Indiawho framed thirteen questions of law to be decided by a Constitution Bench.

Tomorrow’s hearing may be a brief one. The Bench has indicated that it is unlikely to hear the matter unless all counsel commit to finishing within seven working days. Given the scale and complexity of some of the questions (as we shall see), as well as the number of intervention applications that were allowed after the referral, this is unlikely. In light of the fact, however, that even if it is not heard at the present, it is likely to be taken up soon after the vacations (in July or August), I shall provide a brief primer to the case.


Migration has been a source of social and political conflict in the border-state of Assam at least the middle of the 19th century. During the framing of the citizenship provisions of the Constitution during the Constituent Assembly Debates, the representative from Assam highlighted issues pertaining to large-scale migration from Bengal, its impact upon the indigenous population and culture, and asked for specific constitutional provisions to deal with the issue. Ultimately, however, the Constitution contained only skeletal provisions on citizenship – in particular, to deal with the Partition – and left the issue to be addressed by Parliament. Article 5 of the Constitution incorporated the broad jus soli principle of citizenship, stipulating that all those who had their domicile in India at the time of the commencement of the Constitution, would be citizens if they were born here, if either of their parents were born here, or who had been ordinarily resident for not less than five years. Articles 6 and 7 were the Partition provisions, dealing with migrations to and from Pakistan, and fixing 19th July 1948 as the “cut-off date” for citizenship. And to clarify that these provisions were only dealing with the special situation created by the Partition, Article 11 contained an overriding clause authorising Parliament to legislate for citizenship. Parliament did so in 1955, with the Citizenship Act, and a special law for Assam titled the Immigrants (Expulsion from Assam) Act of 1950.

To regulate the entry of migrants into India, the colonial government had passed the Foreigners Act of 1946, which continued even after Independence. This Act conferred powers upon the government to prohibit entry of foreigners, among other things. In 1964, acting under the authority of the Act, the Government promulgated the Foreigners Tribunal Order. This Order authorised the Government to establish Tribunals to determine questions of nationality, in accordance with the provisions of the Foreigners Act. Consequently, the Constitution of India, the Citizenship Act of 1955, the Foreigners Act of 1946, and the Foreigners Tribunal Order of 1964 comprised a comprehensive statutory regime dealing with both substantive and procedural questions of citizenship and migration.

Meanwhile, issues of migration continued to cause conflict in Assam. Matters came to a head during the run-up to the Bangladesh War of 1971, where in fact a massive influx of refugees into India from (what was then) East Pakistan was cited as one of the reasons for India’s involvement in the war. The issues did not cease even after 1971, however, because it was perceived that many of “illegal immigrants” were being put on voting rolls by political parties attempting to create faithful constituencies. Ultimately, this led to a state-wide student movement called the Assam Agitation, which lasted six years, from 1979 to 1985. The movement was sometimes punctuated by violence, including the Nellie massacre of 1983. It was finally brought to a close in 1985, with the signing of the Assam Accord between the Government of India, and the leaders of the movement.

The Assam Accord, S. 6A of the Citizenship Act, and the IMDT Act 

The Assam Accord was effectively a political compromise between the government and the leaders of the Assam Agitation. While providing for two separate cut-off dates for regularisation of migrants (an issue we shall discuss in a moment), the Accord also contained provisions for the development of Assam, as well as obligating the Government to see that “the international border shall be made secure against future infiltration by erection of physical barriers like walls, barbed wire fencing and other obstacles at appropriate places.”

Section 6A of the Citizenship Act – introduced through an amendment in 1985 – was the legislative enactment of the legal part of the Assam Accord. Section 6A divided “illegal” immigrants of Indian origin (i.e., those whose parents or grandparents were born in undivided India) who came into Assam from Bangladesh into three groups: those who came into the state before 1966; those who came into the state between 1966 and 25th March, 1971 (the official date of the commencement of the Bangladesh War); and those who came into the state after 1971. The first group (pre-’66) was to be regularised. The second group (’66 – ’71) was to be taken off the electoral rolls, and regularised after ten years. The third group (’71-onwards) was to be detected and expelled in accordance with law.

Section 6A, therefore, was a special citizenship law for Assam, hammered out as a result of a political settlement. Meanwhile, two years before the Accord and S. 6A, the Parliament had also passed the Illegal Migrants (Determination by Tribunals Act) of 1983. This Act authorised the Government to set up Tribunals for the purposes of determining whether migrants were illegal. Under the Act, the Government framed the Illegal Migrant Rules of 1984. The Act and the Rules, taken together, made some departures from the procedure under the Foreigners Act and the Foreigners Tribunal Order: for example, the procedure for making a reference to the Tribunal was made more onerous, the burden of proof was shifted from the State to the individual, and so on.

Consequently, the statutory regime governing migration to Assam now became Section 6A of the Citizenship Act, read with the Illegal Migrants Act of 1983, and the Illegal Migrant Rules of 1984. While the Government defended this regime on the basis of protecting minorities, who were genuine citizens of India, from persecution they were also attacked as being too lax on illegal migration, and making it almost impossible to deport illegal migrants.

The Judgment in Sarbananda Sonowal vs Union of India

The Illegal Migrants Act and Rules were challenged before the Supreme Court in Sarbananda Sonowal vs Union of India. A three-judge bench of the Supreme Court held that the statutory regime, with its reversal of the burden of proof clause (placing the burden of proof upon the State rather than the alleged illegal migrant), and its procedural requirements of filing applications (“… accompanied by affidavits sworn by not less than two persons residing within the jurisdiction of the same police station in which the person referred to in the application is found, or residing, corroborating the averments made in the application.“), was insufficient to check the problem of illegal migration. Relying upon a 1998 report by the Governor of Assam, the Supreme Court held that there was a flood of Bangladeshi migrants into Assam, which the statutory regime had failed to check. This, the Court held, amounted to “external aggression” against the State of Assam, and under Article 355 of the Constitution, it was the duty of the Union to protect every state against external aggression. Holding the statutory regime of the Illegal Migrants Act and Illegal Migrants Rules to be directly responsible for this failure, the Court held the Act and Rules to be unconstitutional.

After Sarbananda Sonowal, therefore, the Tribunals under the IMDT ceased to function, and the statutory regime reverted to Section 6A of the Citizenship Act, and the Foreigners Act and the Foreigners Tribunal Order. The State’s attempt to get around this through passing the Foreigners Tribunal (for Assam) Order of 2006 was also struck down by the Court in Sarbananda Sonowal (II)

The Referral Order

It is in this context that the challenge to Section 6A of the Citizenship Act came before the Supreme Court. In his referral order, Justice Nariman framed thirteen questions of law:

“(i) Whether Articles 10 and 11 of the Constitution of India permit the enactment of Section 6A of the Citizenship Act in as much as Section 6A, in prescribing a cut-off date different from the cut-off date prescribed in Article 6, can do so without a “variation” of Article 6 itself; regard, in particular, being had to the phraseology of Article 4 (2) read with Article 368 (1)?

(ii) Whether Section 6A violates Articles 325 and 326 of the Constitution of India in that it has diluted the political rights of the citizens of the State of Assam;

(iii) What is the scope of the fundamental right contained in Article 29(1)? Is the fundamental right absolute in its terms? In particular, what is the meaning of the expression “culture” and the expression “conserve”? Whether Section 6A violates Article 29(1)?

(iv) Whether Section 6A violates Article 355? What is the true interpretation of Article 355 of the Constitution? Would an influx of illegal migrants into a State of India constitute “external aggression” and/or “internal disturbance”? Does the expression “State” occurring in this Article refer only to a territorial region or does it also include the people living in the State, which would include their culture and identity?

(v) Whether Section 6A violates Article 14 in that, it singles out Assam from other border States (which comprise a distinct class) and discriminates against it. Also whether there is no rational basis for having a separate cut-off date for regularizing illegal migrants who enter Assam as opposed to the rest of the country; and

(vi) Whether Section 6A violates Article 21 in that the lives and personal liberty of the citizens of Assam have been affected adversely by the massive influx of illegal migrants from Bangladesh.

(vii) Whether delay is a factor that can be taken into account in moulding relief under a petition filed under Article 32 of the Constitution?

(viii) Whether, after a large number of migrants from East Pakistan have enjoyed rights as Citizens of India for over 40 years, any relief can be given in the petitions filed in the present cases?

(ix) Whether section 6A violates the basic premise of the Constitution and the Citizenship Act in that it permits Citizens who have allegedly not lost their Citizenship of East Pakistan to become deemed Citizens of India, thereby conferring dual Citizenship to such persons?

(x) Whether section 6A violates the fundamental basis of section 5 (1) proviso and section 5 (2) of the Citizenship Act (as it stood in 1985) in that it permits a class of migrants to become deemed Citizens of India without any reciprocity from Bangladesh and without taking the oath of allegiance to the Indian Constitution? 

(xi) Whether the Immigrants (Expulsion from Assam) Act, 1950 being a special enactment qua immigrants into Assam, alone can apply to migrants from East Pakistan/Bangladesh to the exclusion of the general Foreigners Act and the Foreigners (Tribunals) Order, 1964 made thereunder?

(xii) Whether Section 6A violates the Rule of Law in that it gives way to political expediency and not to Government according to law?

(xiii) Whether Section 6A violates fundamental rights in that no mechanism is provided to determine which persons are ordinarily resident in Assam since the dates of their entry into Assam, thus granting deemed citizenship to such persons arbitrarily?”

As we can see, these referral questions raise a host of complex issues about the interaction between the State’s sovereign power of conferring citizenship, the right to equal treatment, and the right to preservation of culture and identity; the interaction between rule of law and citizenship provisions arising as a result of political settlements; and the impact of a possible judgment of unconstitutionality upon vested rights that have stood for decades.

The Aftermath

After the referral order, some further petitions were filed, that were tagged with the main case. These included a petition asking that Section 3 of the Citizenship Act be read in a manner that children of illegal immigrants, when it came to Assam, ought not to be granted citizenship, on the basis that Section 6A was a comprehensive provision dealing with the issue of migration and citizenship in Assam. Petitions were also filed challenging the Foreigners (Amendment) Order of 2015 and the Passport (Entry into India) Amendment Rules, 2015, which stated that “persons belonging to minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31 st December, 2014” would be granted exemption from application of the Foreigners Act and the Passport Rules. It is unclear whether the Court will take up these additional issues for hearing as well.

Either way, we shall know more about the progress of this case tomorrow.

(Disclosure: The writer is assisting the Respondents (AASU) in defending the constitutionality of S. 6A)

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Filed under Citizenship, Cultural Rights, Equality, External Aggression (Article 355), Migration, Minority Rights

The Constitutional Challenge to Aadhaar/PAN – III: The Petitioners’ Rejoinder and the Issues before the Court

In the last two posts, we examined the case of the Petitioners and that of the Union of India before the Supreme Court in the constitutional challenge to S. 139AA of the IT Act. In this post, we shall conclude by discussing the Petitioners’ rejoinder, and outlining the issues that the Court must adjudicate.

Mr Shyam Divan’s Rejoinder

On Article 14 and the Collision Between the Aadhaar Act and S. 139AA

Mr Divan argued that the entire case rested upon the Attorney-General’s argument that S. 7 of the Aadhaar Act was virtually mandatory – an argument, he stated, he had heard for the first time during these proceedings. Mr Divan contended that the only way in which the Attorney-General had managed to reconcile the Aadhaar Act and S. 139AA was by arguing that S. 7 was mandatory. If that argument failed, then the entire edifice would crumble, and S. 139AA would have to be struck down.

Mr Divan argued that the entire scheme of the Aadhaar Act made it clear that it was voluntary. This was evident from the Statement of Objects and Reasons, from Section 3, which stipulated that “every resident shall be entitled” to an Aadhaar number. It was also evident from S. 3(2), which required the enrolling agency to inform the individual about the manner in which the information would be used and S. 8(2)(a), which required requesting entities to “obtain consent” . And S.7 only permitted the Government to make Aadhaar mandatory as a condition for receiving subsidies which were financed out of the Consolidated Fund of India. Mr Divan argued that the Attorney-General’s reliance on S. 57 was incorrect, because S. 57 clearly stated that it was subject to the rest of the Aadhaar Act. No coercive measures were contemplated by the Act. Furthermore, the voluntariness of Aadhaar was also evident from the enrolling form, which specified consent; from the UIDAI’s own website, which used the phrases “entitled to voluntarily obtain an Aadhaar number“, and “any person may choose to use Aadhaar“; and from the UIDAI’s advertisements.

Aadhaar, therefore, was a voluntary scheme. What flowed from this, according to Mr Divan, was that a legislative scheme which divided people into two categories – those who choose to have an Aadhaar, and those who don’t – and then burdened the latter category, was discriminatory on the face of it. And this was precisely what S. 139AA did. By dividing taxpayers into those who had freely chosen to get an Aadhaar number, and those who hadn’t, and by forcibly requiring the latter to get an Aadhaar, S. 139AA violated Article 14 because its very objective was discriminatory. Mr Divan argued that the petition should succeed on this count alone.

Compelled Speech 

Mr Divan clarified that his point about compelled speech was simply that, by parting with her biometric details and iris scan – the most personal of all information about oneself – the individual was being compelled to “speak” – and that too, not to the State, but to private enrolling agencies. Mr Divan conceded that there might be different considerations if the State was doing the collecting itself; but how, he asked, could the State compel the individual to “speak” to another individual with whom they did not wish to have any interaction? Reading out the list of private enrollers, Mr Divan argued that the entire architecture of Aadhaar – which required me to go and provide my most sensitive information not to the State, but to “Pankaj Shah of Bits and Bytes Co.” violated Article 19(1)(a).

Bodily Integrity, Compelling State Interest, Narrow Tailoring 

The Union of India’s entire argument – Mr Divan stated – essentially boiled down to “what’s the big deal about this? Other laws require you to part with personal information too.” To this, he responded that there could be laws which infringed bodily integrity in order to protect and preserve life: this is why there were laws mandating helmets and seatbelts. Likewise, there could be laws stipulating narrowly-tailored exceptions to the right, in service of a compelling State interest, such as passports (where an urgent need might arise to identify a person in case of an accident abroad). That, however, was a far cry from a centralised database, which – according to the Union’s own affidavit – involved seeding of information. This was also what distinguished Aadhaar from a provision such as S. 32A of the Registration Act. The Registration Act required you to give your fingerprints, but that was for your benefit and was only on the document; it did not go into a centralised database, with all the accompanying possibilities of misuse and data theft. Similarly, the Census Act accorded a very high degree of protection to census information: inspection of census registered, for instance, was prohibited. What this showed was that when the coercive power of the State is used to invade bodily integrity, there must be a consequently high degree of protection – something which Aadhaar, with the possibility of seeding, did not have.

Furthermore, Mr Divan argued, the State had failed to make out a compelling interest. The argument about “giving people an identity” was flawed, because 99.97% of Aadhaar applicants already had pre-existing identity documents. The logic of duplication was also flawed, because official information showed the presence of 1,69,000 duplicate Aadhaar numbers. Consequently, the large-sale infringement of bodily integrity in this case could not be sustained by the goal the State was trying to achieve.

Competence and Deference 

Mr Divan reiterated his argument that under the constitutional scheme, there was an implied limitation upon the State’s power to legislate when it came to the human body: only narrowly-tailored infringements, in service of a compelling interest, were permitted. Wholesale taking of biometric details and iris scans, and storing them in a centralised database for the purposes of seeding was neither narrowly-tailored, nor in service of a compelling interest. Mr Divan also pointed  out that this case had raised serious questions pertaining to the violation of Articles 14, 19, and 21 of the Constitution. Consequently, the Court ought not to follow its usual policy in dealing with “fiscal statutes”, and defer to legislative wisdom; although 139AA was a tax amendment, its nature was anything but purely fiscal.

Mr Divan concluded by arguing that the Union’s three-pronged case – that there was no right to privacy, that fingerprinting and iris scans were no more intrusive than a photograph, and that Aadhaar was mandatory – if accepted, would overturn the entire relationship between the individual and the State, concentrating great power in the hands of the latter at the expense of the former. That would result in a tremendous compromise of civil liberties. He would urge the Court to strike down S. 139AA.

Mr Datar’s Rejoinder

Legislative Overruling of Judicial Orders

Mr Datar argued that before the Supreme Court, the Union of India had always reiterated that Aadhaar was voluntary. On 11th August 2015, and then again on 15th October 2015, the Supreme Court itself had stated that Aadhaar could not be made mandatory. Now, it was open to Parliament to legislate in a way that took away the basis of these orders. Parliament, for instance, could simply stipulate, in a law, that henceforth, every individual was obligated to obtain an Aadhaar Number. However, Parliament had not done that. Parliament had simply enacted S. 139AA, which made it mandatory to quote an Aadhaar number while filing Income Tax returns. That did not amount to taking away the basis of the Supreme Court orders. Mr Datar took the example of a case in Bangalore, where notwithstanding building regulations prohibiting a height of more than 80m, a person had built up to 100m. The case was taken to Court, and he lost. However, before his building could be demolished, the Regulation was changed to make the legal height 110m, and applicable retrospectively, from the time that construction had commenced. That, argued Mr Datar, was an instance of how the basis of a judgment could be altered, and that was the only way known to law in which the Parliament or Executive could overcome a contrary court order. Similarly, in the Supreme Court’s recent judgment banning liquor within a specified distance from highways, some states had responded by denotifying their highways, and turning them into ordinary roads. That was permissible, because it removed the basis of the Court’s judgment; however, those states could not simply have said, “notwithstanding the Supreme Court judgment, alcohol will continue to be sold in these shops.” S. 139AA effectively amounted to state action of the latter kind.

Justice Sikri pointed out that what was unique about this case was that the Court’s earlier orders had been passed when Aadhaar was merely an executive scheme, and no law existed. So could it be said that the orders even applied to a law in the first place? Mr Datar responded by saying that in view of Ram Jawaya Kapoor’s Case, the executive and legislative powers of the State were co-extensive. Consequently, whether the original orders applied to an executive scheme, or to a law, the point remained that they could only be overcome through the specific mechanism outlined above. Justice Sikri and Mr Datar agreed that the Court was dealing with this kind of a situation for the first time in its history, and would have to lay down the law on the basis of first principles. Justice Sikri then asked what the “basis” of the earlier Court orders was, that the Parliament could have legislated to take away. Mr Datar responded that the basis was that since the validity of Aadhaar was yet to be tested on the constitutional anvil, in the meantime it could not be made mandatory for anything but a specified number of services. Consequently, the only way of removing this basis was to pass an Act that stated “Parliament may make Aadhaar mandatory…” Mr Arghya Sengupta interjected to state that S. 7 of the Aadhaar Act did this already. Mr. Datar replied that S. 7 did nothing of the sort.

Legislative Dichotomy

Mr Datar then pointed out that S. 139AA of the Aadhaar Act did not contain a non-obstante clause (“notwithstanding anything contained in any other law for the time being in force…). In the absence of a non-obstante clause, there was a clear collision – or a dichotomy – between the Aadhaar Act and S. 139AA, a dichotomy that could be resolved only by striking down S. 139AA. Once Parliament had passed a law which made Aadhaar a right – it could not then pass a contrary law that made Aadhaar its jural opposite –  a duty without a non-obstante clause. Mr Datar read out numerous parliamentary statements – including one by Mr Jaitley – to demonstrate that at its core, Aadhaar was meant to be voluntary, and also pointed to the utter lack of debate in Parliament before passing S. 139AA.

Article 14

Mr Datar argued once again that the State had entirely failed to make out a rational nexus between making Aadhaar compulsory for individual taxpayers, and its stated goal(s) of preventing duplication, preventing black money, and preventing terrorism. He pointed out that only 0.4% of PAN Cards had been found to be duplicate, and that these figures from 2006. In response to Mr Sengupta’s interjection that this was only 0.4% of a very small sample, Mr Datar responded that that was exactly the point of statistical sampling. He observed there was no data after 2006, and asked on what basis the State had decided to take such a huge step – of mandatory Aadhaar – without analysing data, or sending the matter for consideration by a Parliamentary committee. The reason for the discrepancy between the number of PAN Cards and the number of taxpayers was simply that, after 1998, PAN began to be used for a wide number of transactions that had nothing to do with tax. Consequently, the Union had failed to discharge its burden under Article 14 that there existed a rational nexus between making individuals quote their Aadhaar numbers while filing tax returns, and checking duplication, tax evasion, or black money.

Mr Datar also addressed the Attorney-General’s arguments under FATCA, arguing that FATCA had nothing to do with Aadhaar numbers at all. Mr Arghya Sengupta interjected, saying that FATCA required handing over PAN numbers to US authorities, and that it would be embarrassing if duplicate PANs were handed over. Mr Datar pointed out that this had nothing to do with rational nexus under Article 14.

Article 19(1)(g) 

Mr Datar argued that the consequences of not having a PAN Card effectively locked an individual out of a number of economic transactions that were a lifeline (especially) for small traders and entrepreneurs. Apart from crores of individual taxpayers, it would be this class that would be affected the most: their entire economic life would grind to a halt. Consequently, for those who did not wish to get an Aadhaar number, S. 139AA was a serious infringement of their right to carry on trade and business under Article 19(1)9(g).

Now, if a law violated Article 19(1)(g), it could only be justified under Article 19(6): i.e., if it was a reasonable restriction in the interests of the general public. The correct test for assessing reasonableness had been laid down by Justice Sikri himself, in Modern Dental College vs State of MP (discussed on this blog here), and it was the test of “proportionality”:

“… a limitation of a constitutional right will be constitutionally permissible if: (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfillment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation (‘proportionality stricto sensu’ or ‘balancing’) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.” (paragraph 53)

Mr Datar pointed out that for 0.4% of duplicate PANs, 99.96% of taxpayers were being forced into Aadhaar. How, he asked, was this proportionate? In the balancing of interests between duplicate PANs and the freedom to do business, proportionality – in this case – clearly weighed in on the side of the former.

Mr Datar concluded by stating that this was a very serious case, with far-reaching consequences for civil liberties. Responding to the Attorney-General’s contention that all that had happened was that an extra “A” had been added to S. 139A, making it “Section 139AA”, he urged the Court to stop the encroachment on individual rights at its first step. He ended by quoting Justice Douglas of the US Supreme Court:

“As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air – however slight – lest we become unwitting victims of the darkness.”

Issues before the Court

The Supreme Court has to resolve the following issues:

(a) Did S. 139AA “take away the basis” of the Supreme Court’s earlier orders on Aadhaar being voluntary, or is it an impermissible legislative overruling of a binding Court order?

(b) Does S. 139AA violate bodily integrity under Article 21? If it does, then does it serve a compelling State interest? And is it narrowly-tailored? Is it analogous to other laws such as the Registration Act, the Census Act, or the Passports Act, or is it much broader and far-reaching then those statutes? When deciding this issue, the Court will also have to decide how much to defer to the Union’s claims on duplication and black money, in view of the fact that the Petitioners strongly contested the validity of these claims. One interesting aspect here is how the Court will choose to allocate burdens of proof: will it, if it finds an infringement of bodily integrity, hold that the State must then justify it on the touchstone of compelling interest and narrow tailoring?

(c) Does S. 139AA violate Article 19(1)(g)? If so, is it proportionate, in view of statistics on the number of duplicate PANs and the existence of duplicate Aadhaars?

(d) In view of the fact that the Aadhaar Act makes Aadhaar voluntary, does S. 139AA fail the discriminatory purpose prong of Article 14 by classifying taxpayers into those who have voluntarily taken an Aadhaar number, and those who haven’t?

(e) Has the State shown a “rational nexus” under Article 14, with its goals of preventing black money and duplication? Here again, the issue of deference will become decisive: will the Court hold 139AA to be an economic statute, and take the Union’s claims at face value? Or will it, in view of the contentions involving fundamental rights, subject the Union to a stricter scrutiny in justifying its contention about Aadhaar being the panacea for preventing tax evasion?

(f) Does 139AA amount to compelled speech under Article 19(1)(a)?

(g) Does 139AA violate the principle of informational self-determination under Article 21?

(e) Is there an implied limitation upon legislative competence as far as laws concerning the human body are concerned? If yes, then does 139AA violate this implied limitation?

Options before the Court

The Court may do one of the following six things:

(a) Strike down S. 139AA as unconstitutional.

(b) Accept Mr Divan’s argument, and hold that S. 139AA is voluntary by reading “shall” as “may”.

(c) Accept Mr Datar’s argument and “harmoniously construe” S. 139AA and the Aadhaar Act by holding that those who have already procured and Aadhaar number might be required to quote it, but those who haven’t cannot be compelled to enroll.

(d) Find that issues or privacy are essential to decide the case, refer the matter to the pending Constitution Bench, and stay its operation in the meantime.

(e) Refer without staying

(f) Uphold S. 139AA entirely, but leave it open to the Petitioners to challenge it on the grounds of privacy, once the Constitution Bench finally decides the main Aadhaar challenge.



Filed under aadhaar, Article 14, Article 21 and the Right to Life, Bodily Integrity, Bodily Privacy/Integrity, Equality, Privacy