Guest Post: The Trans Bill and its Discontents – I

(This is a guest post by Vasudevan Devadasan.)

This week the Transgender Persons (Protection of Rights) Bill is up for vote in the Lok Sabha. The Bill has had a comparatively short but turbulent history. On the back of the National Legal Services Authority v UoI (NALSA) judgement and an Expert Committee Report by the Ministry of Social Justice and Empowerment (here) the Bill was first introduced and passed as a Private Member Bill by the Rajya Sabha in 2015. A year later however, the Ministry introduced a modified version of the Rajya Sabha Bill and referred it to committee. The Standing Committee (whose report can be found here) lambasted the Bill on several points that we will discuss here and on subsequent posts. Despite the Standing Committee’s report, the provisions of the bill have not been modified and continue to raise some troubling constitutional issues.

Beginning with the distinctions of ‘sex’ and ‘gender’, as well as ‘gender identity’ and ‘gender expression’, this post examines the interpretation of Articles 19 and 21 in NALSA. While there are a host of practical and legal ramifications of introducing such legislation, this post focuses on the constitutional issues raised by the definition of “transgender” in the current Bill and the ‘screening process’ that individuals have to undergo to secure legal recognition of their gender identity.

The constitutional framework

Before looking at the multiple definitions of “transgender” that have been used by the bills in parliament, its crucial to understand the constitutional framework created by NALSA and Article 19 and 21. (There are other judgements before and after that contribute to this framework, but the relevant principles are discussed contextually in NALSA.) Firstly, the Court distinguishes between ‘sex’ and ‘gender’. The former is determined by biological characteristics such as chromosomes and internal and external sex organs, and is assigned to individuals at birth while the latter is constituted by an individual’s own experience, developed through innate belief, upbringing, society and culture. In the case of a transgender person there is a conflict between their “gender identity” assigned to them at birth, and the one they develop through the course of their life. Secondly, while ‘gender identity’ refers to an individual’s internal experience of gender, ‘gender expression’ refers to their outward expression, as perceived by society.

It is the right of transgender persons to choose their gender identity that the Supreme Court upheld in NALSA. In the Court’s own words, “self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed by Article 21”. Additionally, the Court held that ‘gender expression’ by way of dressing, speaking, or behaving was protected under Article 19. The invocation of ‘personal autonomy’ and ‘self-expression’ is crucial, because this means that the decision of a transgender person in choosing a gender (whether male, female) is made is made by the individual, as an expression of personal choice. In fact, the Court explicitly rejected an objective ‘medical’ or ‘pathological’ standard to determine an individual’s gender (¶75) The Court also recognised that “transgender” constituted its own, standalone, gender for individuals who did not wish to associate themselves with either the male or female gender. In summary, a transgender person could choose to be recognised as either male or female based on their choice, or alternatively could choose to be recognised as transgender.

Self-identification is a promising idea in principle and may work in practice as well. For example, Argentina passed a statute that recognises an individual’s right to gender identity, and allows a person to change their sex in public records by filing an affidavit. However, this is clearly more helpful to individuals who want to change their gender identity than individuals who wish to identify outside the male-female binary. Additionally, the Court in NALSA sought both non-discrimination and affirmative action to be taken for transgenders. To secure these goals, there needs to be some practicable process or method by which the State can identify transgender persons. The crux of the matter then becomes the suitable level of State-scrutiny over an individual’s decision to identify with a gender, be it male, female, or transgender. It is important to note that the purpose of scrutiny must not reach a level so as to interfere with the individual’s autonomy to choose a gender, but sufficient to enable recognition and efficient governance.

The (current) Transgender Bill

The primary issue with the current bill stems both from its definition of the term “transgender person”, but also from the fact that to be recognised as a “transgender person”, one must undergoe a ‘screening process’ conducted by, inter alia a medical officer and a psychologist/psychiatrist. Section 2(i) defines a “transgender person” as one who is:

  • Neither wholly female nor wholly male; or
  • a combination of female or male; or
  • neither female nor male; and

whose sense of gender does not match with the gender assigned to that person at the time of birth, and includes trans-men and trans-women, persons with intersex variations and gender-queers.

The use of the word “and” after clause (c) makes the definition conjunctive. Thus, to fall under the definition both the sexual characteristics and the gender characteristics of the definition must be met. By adding a pathological aspect to the definition of transgender, the Bill continues to view transgender as a medical or biological anomaly outside the normal duality of male and female. As we noted earlier, sex and gender are two distinct concepts; yet the definition in the Bill conflates them, both narrowing the scope of people who fall under the Bill’s protection, and distorting the definition of a transgender person in the national discourse. The definition also runs contrary to the rationale espoused in NALSA which explicitly ruled out the use of a ‘biological test’ to determine if a person is transgender. When looked at in contrast to the definition provided by the Expert Committee Report and the Rajya Sabha Bill, the conflation of ‘sex’ and ‘gender’ is apparent. They specifically dispensed with the male/female binary, and defined “transgender person” as:

a person, whose gender does not match with the gender assigned to that person at birth and includes trans-men and trans-women (whether or not they have undergone sex reassignment surgery or hormone therapy or laser therapy etc.), gender-queers and a number of socio-cultural identities…

In addition to the definition, the current Bill sets up a ‘screening procedure’. Section 4 states that a transgender person “shall have a right to self-perceived gender identity”. However, the recognition of this freely chosen gender identity is only possible when the procedures that the Bill stipulates are completed. Under Sections 5 through 7, a transgender person must approach a District Magistrate, make an application for issuing a ‘certificate of identity as a transgender person’. The application shall be evaluated by the ‘District Screening Committee’ which as noted above includes medical personnel. The inclusion of medical personnel as part of the identification procedure again hints at the legislature’s conflation of ‘sex’ and ‘gender’. By not specifying the criteria upon which the ‘Screening Committee’ shall grant or reject an application, the Bill risks the identification procedure, (a deeply personal choice originating in an individual’s internal experience of gender) morphing into an objective medical assessment. In NALSA the Court also grounded the principle of self-identification in an individual’s dignity. The Bill runs the risk of violating this principle by subjecting transgender persons to unnecessary medical scrutiny.

The Bill also makes the State (through the ‘Screening Committee’), as opposed to the individual, the final arbiter on an individual’s gender identity. Under the Bill, the Screening Committee acts as a gatekeeper to an individual being able to fully experience their self-perceived gender identity in society. This runs against the rights of ‘self-expression’ and ‘personal autonomy’ that Article 19 and 21 confer on citizens. As ‘gender expression’ is protected under Article 19(1) and the Supreme Court has recognised that individuals have a ‘positive right to make decisions about their life’ under Article 21 the constitutional validity of the ‘Screening Committee’ will certainly raise some constitutional questions as it poses a restriction on the legal recognition of an individual’s gender identity.

Lastly, Section 7 allows the District Magistrate to grant a “certificate of identity as [a] transgender person…” seeming to negate the possibility that a transgender person may choose to identify as a male or female. At its core, the idea self-identification would allow a transgender person to choose to identify with either the male, female, or transgender identity. Section 7 seems to relegate transgender persons as explicitly and eternally outside the male female binary that Indian society deems normal.


The current version of the Bill has received a lot of criticism on a wide range of issues. Since its inception it has seen the loss of several prominent aspects including exclusive courts for transgenders, reservation in educational institutions and incentives to the private sector to employ transgender persons. While these are notable lapses, far more troubling is that the Bill seems to misunderstand the very individuals it seeks to protect. By conflating the concepts of ‘sex’ and ‘gender’, and imposing an opaque recognition procedure, the Bill does little to uphold the core principle of self-identification and dignity as articulated in Article 19 and 21.



Guest Post: The Unconstitutionality of Prohibiting Differential Pricing

(This is a guest post by Swapnil Tripathi, fourth-year law student at the National Law University, Jodhpur.)

(Editor’s Note: The arguments that follow receive support from the (very) recent judgment of the Supreme Court in Del, delivered on 12 December 2017 (after this post had been accepted for publication.]

The Ministry of Consumer Affairs, on June 29, 2017, approved the amendment to the Legal Metrology (Packaged Commodities) Rules, 2011. The amendment which shall come into force from January 1, 2018 has brought significant changes to the erstwhile rules and is hailed by many as a step in the direction towards consumer friendly laws. However, despite the noble intention and purpose behind the amendment, it suffers from glaring constitutional infirmities. Let us unravel some of those.

Before, we proceed to analyze the amendment, let us first take a broad overview of the Legal Metrology Act, 2009 (“Act”). The Act replaced the erstwhile Standards of Weights and Measures Act, 1976, and is currently the governing law on standards of weights and measures for commodities sold in India. The central government, exercising the power under section 52 of the Act, passed the Legal Metrology Rules, 2011 which laid down exhaustive provisions, regarding the minimum standards of packaging, weights to be maintained.

Recently, the central government amended the said rules and added Rule 2A to Rule 18(2) which states:

“Unless otherwise specifically provided under any other law, no manufacturer or packer or importer shall declare different maximum retail prices on an identical pre-packaged commodity by adopting restrictive trade practices or unfair trade practices as defined under clause (c) of sub-section (1) of section 2 of the Consumer Protection Act, 1986 (68 of 1986).”

The essence of the amendment is that no manufacturer can have different prices for identical commodities at different places. For instance, if you buy a bottle of water from a nearby retailer, it shall cost you Rs. 20. But the same bottle, when bought from a movie theatre costs Rs.50. Before the amendment, this charging of different prices was allowed, but the same stands prohibited after the amendment. Therefore, the manufacturer is obligated to charge Rs.20 or Rs.50 for both the bottles, as long as the price remains constant at every place selling it.

Many laud the amendment as an attempt to end the monopoly of the theatres, who hike the prices of products, to earn more. However, the amendment presents certain constitutional infirmities as well. It falls foul of the principles of the Constitution on two counts. First, the amended rules expand the scope of the Act. Second, it flouts previous rulings of the Supreme Court.

The amendment travels beyond the scope of the Act:

The Indian polity follows the principle of separation of powers, wherein law making is the essential function of the legislature. However, at certain instances, the legislature confers this power to a delegate. This is called delegated legislation. Rules and regulations are the most common forms of delegated legislation. Delegation is not absolute and is subject to certain parameters wherein the validity of such a delegation is tested. The Court, in a catena of cases, has held that delegated legislation cannot go beyond the scope of the parent Act. In other words, if the delegated legislation expands the scope of the act, it is ultra vires and liable to be struck down.

Noteworthy here is the judgment of J.K. Industries v. Union of India, [(2007) 13 SCC 673], which clearly lays down the law on the subject matter. It states that a delegated legislation is ultra vires when it does not conform to the statute under which it is made or it fails to consider vital facts which are required to be considered by the statute or the Constitution. It further holds that the delegated legislation should be within the limits of the Act and should supplement and not supplant it. In other words, the nature of the delegated legislation is to fill up the details and perform ancillary and subordinate legislative functions (¶133). And whenever, the Court assesses the vires of a delegated legislation it has to examine the nature, object and the scheme of the legislation as a whole, and consider the area over which powers are delegated (¶129).


Furthermore. it is well-established that the object of a legislation can be gleaned from its preamble, as it lays down the intended aim, object and purpose of the Act [Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165 at ¶12]. Therefore, it is pertinent to peruse the preamble of the Metrology Act.

The preamble reads,

“An Act to establish and enforce standards of weights and measures, regulate trade and commerce in weights, measures and other goods which are sold or distributed by weight, measure or number and for matters connected therewith or incidental thereto.”

 Furthermore, the term ‘legal metrology’ is defined under the Act as,

“’Legal Metrology’ means that part of metrology which treats units of weighment and measurement, methods of weighment and measurement and weighing and measuring instruments, in relation to the mandatory technical and legal requirements which have the object of ensuring public guarantee from the point of view of security and accuracy of the weighments and measurements

A perusal of the preamble and the definition clearly establishes that the Act was intended to primarily deal with standards of weights and measures and goods sold/distributed by weight and measures. Additionally, it aimed at ensuring public guarantee towards security and accuracy of weighments and measurement. A reading of the above does not bring out any intention of the legislature to regulate pricing of the products, which is not even remotely connected with weight and measurement. The amendment, by introducing uniform pricing, tries to widen the scope of the act, which a delegated legislation cannot do.

Furthermore, an indication towards pricing not being within the ambit of the act can be seen from the judgments of the Apex Court, namely Pallavi Refractories & Ors. v. Singareni Collieries Co. Ltd. & Ors., [(2005) 2 SCC 227] (“Pallavi Refractories”). The case of Pallavi Refractories is the leading judgment on fixation of price and dual pricing. In that case, the Respondent (a state owned company) had implemented a government notification providing for differential pricing for same products produced by linked sector and unlinked sector. This move of the Respondent and the notification was challenged by the Appellants on grounds of bring discriminatory and violative of Article 14 of the Constitution. The counter of the Respondent was that because coal, as a commodity, is not controlled/essential, therefore it is within its discretion to fix appropriate prices for it, based on certain considerations (¶ 7 and 12). The Court upheld the notification and the action of the Respondent stating,

‘Clause 10 of the price notification did not violate the equality clause of Article 14 of the Constitution. By evolving dual price policy and charging lesser price from the core sector industries the respondent has not treated equals as unequals or that the classification was not rational.” (¶ 20)

Further, what is noteworthy about the judgment is that the Standards of Weights and Measures Act, 1976 (the previous statute in place of LM Act) or any other act dealing with pricing is not, at any point, mentioned or relied on. So much so, that the Court while discussing the legality of dual pricing and its approval from courts observed, “there is no such law that a particular commodity cannot have a dual fixation of price.” (¶19).

This demonstrates that even the judiciary has recognized that there is no law in India that regulates pricing (Pallavi Refractories has been relied on subsequently in Panjaba Rao v. State of Maharashtra, 2015 SCC Online 8283 and Union of India v. Government of Tamil Nadu, 2013 SCC Online Mad 1444]. It is evident that the Rules, by completely prohibiting dual pricing, attempt to overrule and circumvent the categorical observations of various Supreme Court precedents which have given a green signal to dual pricing. While this might be valid if the same was an act of the legislature, but an executive action lacking due legislative sanction, cannot do the same.

(If an argument is raised, that the amendment is introduced in response to Pallavi Refractories, as an attempt to fill the lacunae of no law on dual fixation, it would be erroneous. As discussed before, a delegated legislation cannot broaden the scope of the Act. Since, prima facie, pricing is not within the scope of the Act, a delegated legislation cannot govern it.)

The amendment is against the previous rulings of the Courts:

A school of thought believes that the Ministry’s inspiration behind introducing the amendment is the NCDRC’s judgment of Big Cinemas and Anr. v. Manoj Kumar, [2016 SCC Online NCDRC 123] which was the first to observe:

“There cannot be two MRPs, except in accordance with law. The whole gamut of the facts and circumstances, detailed above, clearly leans in favor of the Metrology Department (par.20).”

However, the judgment of the NCDRC renders an opinion which is inconsistent with the previous ruling of the Apex Court (which bind the NCDRC). Noteworthy here are the cases of Pallavi Refractories & Ors. v. Singareni Collieries Co. Ltd. & Ors., [(2005) 2 SCC 227], Maruti Suzuki v. Rajiv Kumar Loomba, [(2009) 15 SCC 195], State of Gujarat v. Rajesh Kumar Chimanlal, [(1996) 5 SCC 477] etc., all of which hold that there is no law prohibiting a particular commodity to have dual price and the same is a matter of policy. The amendment clearly flouts these rulings of Court.

The way ahead:

The author is aware that the Court, only in sparing circumstances intervenes into economic legislations/strikes them down. However, the amendment rules are not a usual instance of economic legislation as they follow unconstitutional means to achieve the end. If the legislature had passed an amendment, wherein such a provision prohibiting dual pricing was introduced in the Act itself, the question the author attempts to answer in the post would not have arisen itself.

ILR Early Career Researcher Prize for Case/Legislative Notes 2017

Indian Law Review invites submissions for Case Notes or Legislative Notes on any case decided or legislation passed in India in 2017 (pending cases/bills may be considered if exceptional). A Note should be around 5,000 words (including footnotes). Apart from summarising the case or legislation in question, it should situate it in the current body of law and analyse its implications. Existing scholarship on the issue involved should be engaged with. Comparative analyses examining similar developments in other jurisdictions are also welcome. They should be scholarly and rigorous, and need to do a lot more than a typical blog post in order to be publishable. For guidance, you can view examples of Notes we have published on our website.

We will offer a cash prize of INR 12,000 (Indian Rupees Twelve Thousand only) for each Note that is ultimately published in the Indian Law Review (the prize will be awarded in equal shares if the piece is co-authored). This Prize is intended to encourage contributions from early-career researchers. In order to be eligible for the prize, the author(s) must be:

(i) Currently pursuing a PhD on a legal subject or be within three years of the award of a PhD on a legal subject, or

(ii) In active legal practice for no longer than seven years.

The deadline for submitting a Case Note or a Legislative Note for this Prize is 21 January 2018 (submissions made after that date would still be considered for publication, but will not be eligible for this prize. Submissions made before the deadline are encouraged, and will be eligible). Any shortlisted author must also commit to working with the editors to improve the submission in light of reviewers’ comments and suggestions.

Submissions can be made on our dedicated submissions portal (please also email <tarunabh.khaitan[at]> separately, after submission, indicating that you wish to be considered for this Prize and explaining how you satisfy the eligibility criteria. Contributors are advised to read these Instructions for authors before making any submission. Potential contributors may direct any queries (including the suitability of their chosen area of law for the Note) to our Notes Editor Dr Prabha Kotiswaran <prabha.kotiswaran[at]>.

Notes from a Foreign Field: The South African Constitutional Court’s Decision on Gender Equality and Customary Marriages

(This guest post, on a recent judgment of the Constitutional Court of South Africa, is authored by Tim Fish Hodgson. Tim works on socio-economic rights, is based in Johannesburg and is a former law clerk of Justice Zakeria Yacoob. He is cricket nerd, a law jock and identifies as a heretic. He tweets from @TimFish42. He writes in his personal capacity.)

On 30 November 2017, the Constitutional Court of South Africa handed down an important judgment in Ramuhovhi, which consolidates and expands its body jurisprudence on gender equality in customary marriages and in terms of the recognition of customary marriages.

Ms Munyadziwa Netshituka, a black woman from South Africa’s poor, largely rural, Limpopo province was married to Mr Musenwa Joseph Netshituka. Ms Netshituka was not, however, the only Ms Netshituka to whom Musenwa was married. During his lifetime he concluded both civil and customary marriages with Munyadizwa and customary marriages with three other women: Tshinakaho, Masindi and Diana. Polygamous marriages are permitted in terms of Venda custom.

Musenwa died in 2008 and a dispute arose about how his property should be divided. In Venda customary law, ownership and control of marital property is reserved solely for husbands. However, Mr Netshituka’s will clearly indicated that he believed that he and Munyadizwa were married in community of property and had a “joint estate”. Indeed Munyadizwa was the registered as half-owner of valuable immovable property upon which the Why Not Shopping Centre is located.

When litigation was initiated, Munyadizwa was Mr Netshituka’s only remaining spouse at customary law (Tshinakaho, Masindi and Diana were all deceased). Upon Mr Netshituka’s death two of his sons (those of Tshinakaho and Masindi respectively) sought to challenge Munyadizwa’s right to ownership of this property in particular, and (as indicated above) they based their claim on Vedna customary law. And, if they had succeeded in proving the application of Venda customary law, this argument would have prevailed, potentially leaving Munyadizwa in a treacherous financial position.

Customary law in South Africa’s constitutional democracy

However, in South Africa’s constitutional dispensation customary law cannot be read in isolation. Venda customary marriages, like all other customary marriages, are also protected in terms of the Recognition of Customary Marriages Act (The Act). This includes both monogamous and polygamous relationships.

The Act was passed by Parliament in 1998 to give effect to the South African Constitution, which specifically contemplates protection of “marriages concluded under any tradition, or a system of religious, personal or family law”. This Act is therefore of considerable importance. According to the Constitutional Court, it:

“represents a belated but welcome and ambitious legislative effort to remedy the historical humiliation and exclusion meted out to spouses in marriages which were entered into in accordance with the law and culture of the indigenous African people of this country.”

Moreover, as with all other laws, traditions and practices in South Africa, the provisions of the Act must comply with the Bill of Right’s powerful protection of equality. The “achievement of equality” is a founding value of the Constitution, which also entrenches the right to “equal protection and benefit” of the law. It explicitly outlaws discrimination based on both “gender” and “sex”. Furthermore, when customary law is inconsistent with the Constitution, courts are required to “develop” it to ensure that it “promote[s] the spirit, purport and objects of the Bill of Rights”.

Women in Munyadziwa’s position have frequently needed to call on these constitutional provisions to ensure their own protection in terms of customary law. Without them, the Act itself is insufficient. It treats different marriages differently with serious consequences for women. Section 7(1) of the Act regulates such consequences of marriages concluded before the Act’s commencement (“old marriages”) while section 7(2) of Act governs those concluded after the Act’s commencement (“new marriages”).

 The basic and disastrous difference is that while “new marriages” are treated as marriages in community of property (where all property is shared equally between the spouses), the proprietary consequences of “old marriages” remain regulated by customary law. To return to the facts of this case, Mr Netshituka’s sons were therefore relying on the fact that the present case featured an “old marriage”, and therefore, Venda customary law (and not the “community of property” regime under Section 7(1)) would apply.

 The Constitutional Court and customary marriages

 The Constitution Court can (and should) be criticised from a feminist perspective. It has failed to identify, disregarded or ignored gender-specific arguments presented to it by women more often than it should have. It has also handed down some startlingly regressive judgments. Its infamous judgment(s) in Jordan, for example, unanimously refused to strike down legislation criminalising sex work saying: “dignity of prostitutes is diminished not by [the law] but by their engaging in commercial sex work”.

Nevertheless, overall, it has through its jurisprudence committed itself to the protection of formal and substantive equality for women. It has also, at times, been alert to systemic sexism in the form of patriarchy. It has described gendered patterns of behavior and gender-stereotypes as “a relic and a feature of the patriarchy which the Constitution so vehemently condemns”. Its broad position on gender equality has been no different in cases on African customary law.

In 2008, in Gumede, the Constitutional Court had already declared section 7(1) to be unconstitutional to the extent that it applied to monogamous “old marriages”. In coming to this conclusion, it reasoned that this provision is “self-evidently discriminatory” on the ground of gender. It was emphatic that the continued application of the provision in the context of Ms Gumede, an isiZulu women living in the KwaZulu-Natal province, negatively “affected wives in customary marriages” because they “are considered incapable or unfit to hold or manage property”. Women, the Court continued, are “expressly excluded from meaningful economic activity in the face of an active redefinition of gender roles in relation to income and property”.

The task in front of the court in Ramuhovhi, then, was simply to decide whether its reasoning in Ms Gumede’s case on monogamous “old marriage” could be extended to Munyadziwa’s case on polygamous old marriages. Quoting heavily from Gumede the Court confirmed that section 7(1) of the Act “perpetuate[s] inequality between husbands and wives” in old marriages. More specifically, it found that the provision clearly had the effect of violating Munyadziwa’s right to dignity and her right not to be discriminated against based on her gender and marital status. As a result, the challenge to Munyadizwa’s right to own, inherit and control marital property thus failed.

In its judgment, the Court also considered whether s 7(1) could be saved by s 7(4) of the Act. Section 7(4) permits couples to “jointly” approach a court to change the matrimonial property system applicable to “their marriage or marriages”. The Court’s response speaks to a strong understanding of unequal power relations between men and women in South African society. Describing s 7(4) as “cold comfort, if not pie-in-sky” for most women the court reasoned:

“The fact of not owning or having control over marital property renders wives in pre-Act polygamous marriages particularly vulnerable and at the mercy of husbands. They cannot be in an equal-bargaining footing for purposes of reaching agreement to make an approach to court in terms of section 7(4). In fact, some may even be cowed not to raise the issue at all.”

To cap off this reasoning the court added that it “it does not require rocket science” to know that most women “may not even be aware of the existence of the provisions of section 7(4)”. This observation is undoubtedly correct. A mere 46% of South Africans have ever heard of the existence of either the Constitution or the Bill of Rights, while a depressing 10% of people had ever read the Constitution or had it read to them. If people do not know their fundamental constitutional rights it takes legal fiction of science-fiction like proportions to imagine these same people will know complicated, hidden provisions of laws on the statute books.

Customary law and colonialism

 It is worth noting that the Constitutional Court has been particularly careful to respect customary law and to acknowledge the genesis of its patriarchal problems in its judgments. These problems have their origins both in patriarchal African cultures and their “formalisation and fossilisation” but Dutch and British colonial powers and the apartheid government. Therefore, though the court does not deny that patriarchy “has always been a feature of indigenous society” in Bhe it observed that:

“At a time when the patriarchal features of Roman-Dutch law were progressively being removed by legislation, customary law was robbed of its inherent capacity to evolve in keeping with the changing life of the people it served, particularly of women. Thus customary law as administered failed to respond creatively to new kinds of economic activity by women, different forms of property and household arrangements for women and men, and changing values concerning gender roles in society. The outcome has been formalisation and fossilisation of a system which by its nature should function in an active and dynamic manner.”

The result was the development “a particularly crude and gendered form of inequality, which left women and children singularly marginalised and vulnerable” in African customary law which was “recorded and enforced by those who neither practised it nor were bound by it”. These people were white settler colonialists.

The Constitutional Court’s approach to these cases has therefore been to prefer to acknowledge the organic development of “living customary law” – which is developing in a diverse and dynamic manner constantly – instead of repeating the colonial approach of strictly imposing rules from the judges’ lofty positions.

The Court’s understanding of patriarchal power imbalances, combined with its recognition that “those who were bound by customary law had no power to adapt it”, has made it very receptive to women who have approached the court in search protection. It is also critical in dispelling the myth that black African cultures and customs are any more or less patriarchal then the rest of South African society. Patriarchy, the Court rightly observes, “has worldwide prevalence”.

Constitutional promises and constitutional realities

However, as is often the case, paper-based legal protection provides paper-thin protection to women in reality. As retired Justice Zakeria Yacoob has said, contrary to the popular belief of human rights lawyers and bourgeois elites in particular, “our Constitution did NOT create the society it envisaged”. In truth, no Constitution can. Such is the pernicious and ubiquitous impact of patriarchy amongst all customs, cultures and races in South Africa.

And so, almost 20 years after the formal recognition of customary marriages in terms of the Act, women such as Munyadziwa Netshituka bravely continue to approach South African courts clutching onto “the right to equal protection and benefit of the law”. They do so simply to access the rightful benefits of their marriages and life’s work. Sadly, they often also seek protection from both their marriages, families, communities and the law itself.

But translating the constitutional promise of gender equality into a constitutional reality cannot be the business of courts alone. A monumental societal shift is needed. Women like Ms Gumede, Ms Netshituka, Ms Bhe and Ms Shilubana all around South Africa are pushing for this change on daily basis. Too many men refuse to budge, accepting instead the continued spoils of patriarchy. For as long as we men – whether white Jewish men, black Venda men, or Indian Muslim men – continue to endorse and support patriarchy, women will have to continue to fight back using any means they have at their disposal.

To paraphrase the Constitutional Court’s rhetorical question in its judgment in Ramuhovhi, on of the key questions remains: “how many [men] would readily give up their position of dominance?” If the number does not increase dramatically, exponentially and urgently, for all the constitutional protection provided to women (and all the beautiful prose in the Constitutional Court’s judgments), they will continue experience the society in envisioned in the Constitution as elusive: more fiction than fact.

Decriminalising Adultery?

Yesterday, the Supreme Court issued notice in a petition challenging the constitutional validity of the Indian Penal Code. Section 497, titled adultery, provides that:

“Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.

In such case the wife shall not be punishable as an abettor.”

The petition also challenged Section 198 of the Code of Criminal Procedure, which states, in relevant part:

“… no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code.”

It should be immediately obvious that these sections do three things. First, the offence of adultery applies only to the man committing adultery. Secondly, a woman committing adultery is not even deemed to be an “abettor” to the offence. And thirdly, the power to prosecute for adultery lies only with the husband of the woman.

Taken together, the underlying logic of these provisions is straightforward. In making only the man, and not the woman, liable for adultery, they are founded upon sexual stereotypes that attribute sexual agency only to men, and sexual passivity to women (or, in simpler language, men are the seducers (and therefore criminally liable), while women are the seduced). And in making the husband the only person who can prosecute for adultery, they are founded upon the idea that, in a marriage, the status of the wife is akin to that of the property of the husband.

As I have argued before, for these reasons, Section 497 is a textbook case of unconstitutional sex discrimination, and invalid under Article 15(1) of the Constitution (prohibition of discrimination on grounds of sex). The problem, however, is the judgment of the Supreme Court in Yusuf Abdul Aziz, which upheld Section 497 by invoking Article 15(3) of the Constitution, which states that:

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

In Yusuf Abdul Aziz, the Supreme Court held that in granting immunity to women from criminal liability for adultery, Section 497 was a “special provision” for their benefit, and therefore valid despite being potentially discriminatory under Article 15(1).

There are at least two reasons why the Supreme Court’s judgment was incorrect. First, the Court failed to note that Article 15(3) was not a free-standing provision in the Constitution. It was a sub-set of Article 15, which deals with discrimination. The purpose of Article 15(3), therefore, is not to give a carte blanche to any law that might provide tangible or material benefits to women, but to sanction laws that accord favourable treatment to women in order to achieve substantive equality and remedy existing discrimination. The immediate example that comes to mind is that of affirmative action, where there is a tangible link between favourable treatment, and achieving substantive or genuine equality. While the question of whether a particular law or executive action falls within the ambit of remedial action can often be a question of debate (see, for example, this judgment of the South African Constitutional Court), it seems obvious that  the immunity for women under Section 497 is in no sense a remedial law, designed to or serving the goal of, remedying past discrimination or achieving substantive equality.

Secondly, the Supreme Court failed to notice that even though the law ostensible benefited women by providing them with a tangible benefit (immunity), it was based upon a set of assumptions that were deeply discriminatory (see above). Consequently, not only did Section 497 discriminate against men (which was the only argument considered by the Court), but in actual fact, it discriminated against women as well. Such discrimination, even if not clearly unconstitutional in 1954, when the case was decided, is certainly unconstitutional after the 2007 judgment of Anuj Garg, where the Supreme Court made it clear that laws ostensibly for the benefit of women, but which were based on sexual stereotypes, were unconstitutional.

The constitutional case against adultery, therefore, appears to be unanswerable, and the Supreme Court’s decision to issue notice means that the only possible hurdle – refusing to reconsider Yusuf Abdul Aziz (and subsequent cases) on the grounds of stare decisis – has been surmounted.

However, in some of the reports over yesterday and today, the case has been pitched not as being about striking down adultery, but about upholding it and making it gender-neutral. On this view, the Court will simply hold that women can also be made criminally liable for adultery, and in this way, “cure” the constitutional defect.

There are a number of reasons why this is unlikely.

First, the petitioners themselves have only asked that the section be struck down. There is no prayer in the writ petition that asks for retaining the provision, while making the provision gender-neutral. In fact, the petition itself argues that not only is S. 497 discriminatory against men, but is also discriminatory against women (for the reasons I’ve discussed above).

Secondly, making Section 497 gender-neutral would essentially amount to rewriting it in toto, something that a Court is not competent to do. Recall that Section 497 states: “whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man…”

Now, while Section 13 of the General Clauses Act lays down a default rule (subject to context) that the masculine gender is taken to include the feminine, the reverse is not true. In other words, while – in general – a statute using the word “man” can be read to include “woman”, in Section 497, “wife” cannot be read to include “husband.” Furthermore, in any event, the context of Sections 497 and 198, read together, makes the gendered nature of the provision abundantly clear: both the words, and the legislative intent, signify that the section is not, and was never meant to be, gender-neutral. The only way the Court can make it so now is by rewriting it altogether.

It has been argued, however, that the Court might simply strike down the last sentence – “in such case the wife shall not be punishable as an abettor” – creating a legal regime where the man is tried as the primary offender, and the woman as the secondary offender.

While it is, of course, possible to do this, it would be entirely illogical. If the reasoning of Yusuf Abdul Aziz was to apply, then the entire section would have to be held constitutional under Article 15(3). On the other hand, if the Court was to strike it down – and the only way it could strike it down was by applying the anti-stereotyping analysis – then only striking down the last sentence would in no way cure the constitutional defect. Making women secondarily liable for adultery perpetuates and endorses the exact same stereotypes about gendered sexual agency as exempting them from liability altogether.

Consequently, there are only two realistic options before the Court: follow Yusuf Abdul Aziz and uphold Section 497, or strike it down on the basis of Anuj Garg’s anti-stereotyping analysis. There’s no middle course of “levelling up” or striking down just the last sentence.

In fact, the order issuing notice demonstrates that the Court is likely to follow the latter course. The order states, in relevant part:

Prima facie, on a perusal of Section 497 of the Indian Penal Code, we find that it grants relief to the wife by treating her as a victim. It is also worthy to note that when an offence is committed by both of them, one is liable for the criminal offence but the other is absolved. It seems to be based on a societal presumption. Ordinarily, the criminal law proceeds on gender neutrality but in this provision, as we perceive, the said concept is absent. That apart, it is to be seen when there is conferment of any affirmative right on women, can it go to the extent of treating them as the victim, in all circumstances, to the peril of the husband. Quite apart from that, it is perceivable from the language employed in the Section that the fulcrum of the offence is destroyed once the consent or the connivance of the husband is established. Viewed from the said scenario, the provision really creates a dent on the individual independent identity of a woman when the emphasis is laid on the connivance or the consent of the husband. This tantamounts to subordination of a woman where the Constitution confers equal status. A time has come when the society must realise that a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic. When the society progresses and the rights are conferred, the new generation of thoughts spring, and that is why, we are inclined to issue notice.”

It’s clear that the Court is thinking along the right lines. All that is left is a reasoned judgment striking down this “quite archaic” provision.

Guest Post: Marriage and Religion – An Introduction to Goolrokh Gupta vs Burjor Pardiwala

(Ed. Note: On the 7th of December, after a day of hearing, the Constitution Bench of the Supreme Court passed the following order: “In the course of hearing, regard being had to the facts and circumstances of the case, a suggestion was given to Mr. Gopal Subramaniam, learned senior counsel and Mr. Percy Ghandy, learned counsel appearing for the respondents to obtain instructions. Both of them, we must state, in all fairness, prayed for some time to obtain instructions.” The Court fixed the next date of hearing on the 14th of December. It is therefore unclear at present whether this case will go on, and whether it will be decided on the constitutional point. Nonetheless, on this blog, we shall discuss some of the important issues in the case, starting with the following introductory guest post by Vasudev Devadasan.)

Currently being heard by the Supreme Court, the Goolrokh case attempts to answer the question of whether a Parsi woman ‘loses’ her religious identity upon marriage to a Hindu man under the Special Marriage Act. The case stems from the events at a Parsi funeral, when the deceased’s daughter was denied access to the Agiari (fire temple) and tower of silence to perform the last rites for her parents. The trust and priests in charge of the Agiari claimed that the daughter, by marrying a Hindu man, could no longer be considered Zoroastrian and was not entitled to enter its places of worship. Ultimately, the petitioner in the Goolrokh case approached the Gujarat High Court requesting it to pass an order stating that: by marrying a Hindu man she had not renounced Zoroastrianism and in the event of her parent’s death, she would be allowed to access the tower and the temple to perform the necessary ceremonies.

The division bench of the High Court in its 2:1 decision held broadly as follows:

  • A Parsi woman, who was born and raised Parsi and who has completed her navjote ceremony, upon marrying a Hindu man under the Special Marriage Act, would cease to be a Parsi, and would be ‘deemed and presumed’ to have acquired the religious status of her husband until a Court (after undertaking a fact-finding inquiry) declares that she has continued to practice Zoroastrianism.
  • Because the petitioner is not a Parsi woman after marriage, and because the petitioner has not made any arguments for a ‘non-Parsi’ to be allowed into the Agiari, there is no need to make a ruling on whether the actions of the Parsi trust in denying her access to the place of worship are justified or not.
  • While the freedom to practice any religion is indeed a fundamental right (under Article 25), religious denominations also have the right to manage its own affairs on matters integral to the religion (under Article 26). Until it is determined whether the issue of ‘non-Parsi’s’ being excluded from the Agiari is ‘essential or integral’ to the Parsi religion (which would grant the practice protection under Article 26), no writ can be passed.

One angle to approach the case is from the perspective of gender equality (a Parsi man marrying a Hindu woman does not lose his religious identity) and these arguments will undoubtedly be made eloquently elsewhere. But this post examines the first holding of the court from the perspective of religious identity. By accepting the argument made by the Parsi trust, that a woman is de facto excommunicated upon marrying a man from another religion, the court grants the leaders of a religion the final say on what it means to be Parsi. The reasoning of the High Court is also of interest. By holding that a woman’s religion is that of her husband’s after marriage, the High Court locates her religious identity in her family, not in her as an individual. Additionally, it creates a ‘deemed conversion’ for all women marrying men of a different religion in the absence of any religious ceremony or indeed consent of the woman. Lastly, it is worth looking at the Special Marriage Act from a historical perspective and see whether it is part of the Constitution’s transformative agenda on religion.

What does it mean to be Parsi?

The dispute in Goolrokh is whether a woman who was undoubtedly Parsi before marriage, upon marrying a Hindu man, loses her Parsi identity. Before asking the question: ‘is marrying a ‘non-Parsi’ antithetical to the Parsi religious identity’, a preliminary question is how does the Court decide what constitutes the religious identity of the Parsi religion? Is the interpretation of the religious leaders and community absolute or can an individual have views on her religion that are at odds with the community interpretation and yet be part of the religion?

The power of a community and its religious leaders to determine the content of a religion and the power to exclude those who are not in conformity with this content stems from the need to preserve integrity within the religion. Arguably, in the absence of conformity by its members to certain fundamental beliefs and practices, a religion would not be a religion. Thus, it might be argued that the views of religious leaders and the community are at the heart of religion, and have consequently been accorded protection under Article 26(b) (the freedom of a religion to administer its own affairs on ‘matters of religion’).

Alternatively, an individual may have views on their own religion that are at variance with that of the community or its religious leaders. This question is particularly relevant in India where religion often governs several day-to-day aspects of life and where the implications of being removed from one’s religion can have severe implications. In Goolrokh for example, a woman was denied access to her mother’s funeral. Imagine if a community were to believe that members had to dress in a particular manner, or display some outward symbol of religion at all times, could an individual be excommunicated for not complying? There is clearly a difference between apostacy (the total abandonment of a religion) and a level of reasonable disagreement within a religion itself.

In Goolrokh the High Court was faced with a woman who claimed that she had not lost her religious identity upon marriage to a Hindu and the Parsi establishment that argued she had. Indian courts have to a great extent conflated religious belief, and religious practice. Additionally, the courts have taken it upon themselves to determine the content of religious identity by delving into religious scripture and tenets. But such an approach inherently favours the communitarian interpretation over the individual. Belief is deeply personal, but practice is almost always social. Similarly, religious leaders have a monopoly on religious scripture and doctrine. By accepting the views of the Parsi trust the court is upholding religious views as experienced by the community and its leaders over that of the individual.

The legislature has often attempted to empower the individual’s experience of religion by banning excommunication, thus limiting the power of religious leaders to determine when an individual is not in conformity with the leader’s perception of the religion. The Bombay High Court in Saifuddin v Koicha held that it was permissible to deny a religion the power of excommunication (thus empowering an individual’s religious views vis-à-vis religious leaders) so long as it does not take away the power to exclude ‘non-believers or renegades’ who would undermine the cohesive force that defines a religion. In the Supreme Court, this view was overruled, and the power of the community and its leaders to preserve solidarity and ‘maintain discipline’ within a religion was given paramount position. As noted above the preservation of the cohesive force within religion is constitutive of religion and certainly has its place, yet this needs to be balanced with an individual’s own experience of that religion, for it is in the dialectical relationship between the two that religion truly emerges. We will have to wait and see whether the Supreme Court attempts to strike such a balance in Goolrokh.

Locating a woman’s religious identity

In its judgement, the High Court notes that in the absence of any law by Parliament, a woman’s religious identity ‘shall merge into that of her husband’ and that such a rule is ‘generally accepted throughout the world’. The court relies on Lallu Bhoy v Cassibai which states, “the lady, on marriage becomes a member of the family and thereby she becomes a member of the caste to which she moved.” The substantive justifications that the court points to are (1) after marriage the husband’s family name is used to describe a woman’s identity, and (2) if a woman’s religious identity did not merge into her husband’s, it would be hard to determine the religious identity of their children. Most tellingly however, the court describes the dispute in Goolrokh as examining the “rights of the woman in the context of family which originates from marriage of a husband and wife.

Firstly, the court has already conflated a woman’s religious identity with her caste. But that is a discussion for another time. As Jacohbsohn notes, ‘India is heir to dual legal and political traditions, one making individuals the basic unit of society and envisioning universal equal citizenship, and another positing groups as the building blocks of society with particular rights attached to collective entities.’ However, by locating a woman’s religious identity in the family, and not the individual, the court has effectively made a woman’s religious identity conditional on her husband or father. This runs in direct contradiction to the text of Article 25 which states that “all persons” have the freedom to practice a religion of their choice, thus vesting the right in the individual.

Lastly, the implication of the court’s reasoning is this: upon marriage a woman is deemed to convert from one religion to another. The Supreme Court has noted on several occasions that adopting a religion is a solemn act, often premised on religious ceremony (e.g. baptism, navjote). However, the court appears to overlook these requirements when it comes to the ‘deemed conversion’ by marriage that it postulates.

An evolving constitutional landscape

It stands to reason that personal religious law would not recognise an inter-religious marriage. In 1872 with the enactment of the original ‘Special Marriages Act’, inter-religious marriage was recognised for the first time in India provided that both parties made a declaration to not profess any particular religion. In stark contrast, Section 4 of today’s Special Marriages Act makes no mention of religion in listing out the conditions for a valid marriage. In his dissenting opinion as part of the division bench that heard Goolrokh, Justice Kureshi specifically cited the shift from the 1872 Act to the modern-day legislation, concluding that the legislature had specifically provided for the recognition of inter-religious marriage without the need for either spouse to renounce their religion or convert to the religion of the other.

In reaching this conclusion he also noted that the current Special Marriages Act was a ‘reflection on the post-independence constitutional philosophy of a secular state’. In most senses the Constitution is radically transformative when it comes to religion. From the abolition of untouchability in Article 17 to the throwing open of Hindu institutions to all castes under Article 25(2). The constitutional text envisions a secular identity that the constitutional practices of the population have not necessarily caught up to. It is precisely these constitutional practices that the a-religious requirements for marriage in the Special Marriage Act allow to develop. By allowing individuals to marry without commenting on their religious identity, the Special Marriage Act invites citizens to participate in developing the constitutional practices of the day. As Jacobsohn notes: ‘Incrementalism is thus part of the spiritual core of Indian secularism, reflecting the cohabiting reformist and the conservative components of the Indian national identity’.


Goolrokh promises to be an intriguing case that throws up several key constitutional questions, not just on the issue of gender equality between a woman and a man, but on how the religious identity of an individual is determined. Religious identity undoubtedly lies somewhere on a spectrum between communitarian and individualistic. Indeed, as noted above, it is the dialectical relationship between the two that creates the religious experience. Whether the Supreme Court is willing to move the religious identity away from the communitarian absolutism of the Parsi trust and accommodate the individual’s views on religion is likely to be a turning point in the case.

The Leprosy PIL: A Chance to Rethink Equality under Law

Today, the Supreme Court issued notice on a petition filed by the Vidhi Centre for Legal Policy challenging provisions from as many as 119 statutes, which discriminate against people with leprosy. The petition follows the 256th Law Commission Report, which highlighted the discriminatory legal landscape against persons with leprosy, and called for its elimination.

The petition challenges these statutes (that range from election disqualifications to employment discrimination) on the expected grounds of Articles 14, 19 and 21 of the Constitution. I suggest, however, that this case provides, in addition, an opportunity to the Supreme Court to reconsider and evolve its jurisprudence of equality, which has been rather sterile in recent years (and decades). This opportunity exists because leprosy, insofar as it has been a historic site for group-based discrimination, is similar to the prohibited characteristics under Article 15(1) (race, caste, sex etc.), but of course, does not fall within any of them. Consequently, while the equality-based challenge to these discriminatory statutes will have to be made under Article 14, the Court can advance a theory of discrimination that dispenses with the classic intelligible differentia/rational nexus test under Article 14, and applies a higher threshold of scrutiny in circumstances where the ground of discrimination is similar to, but does not fall within, the listed grounds under Article 15(1).

Note that this is not unprecedented. The Delhi High Court did exactly this when it read down Section 377 of the IPC in 2009. The Supreme Court overturned that judgment in 2013, without undertaking any analysis of the High Court’s 14-15 synthesis.

I have written an article that defends this view, and considers its extension to exactly the kinds of laws under challenge in the present petition – i.e., those that discriminate against people with leprosy. The article can be accessed here.