Monthly Archives: January 2018

Guest Post: Structure of Freedom – Federalism in the Context of Padmaavat

(This is a guest post by Karan Lahiri, a practicing lawyer.)

Earlier this month, the Supreme Court passed an interim order in the case of Viacom 18 Media Pvt. Ltd. & Ors. v. Union of India & Ors., lifting the bans that the state governments of Gujarat and Rajasthan had imposed on the screening of Sanjay Leela Bhansali’s Padmaavat, the release of which faced violent protests from fringe Rajput groups. It also tied the hands of States like M.P. and Haryana, where similar executive orders were being contemplated, from following suit. Whether one sees this as a reaffirmation of constitutional values, or, more cynically, as a grasping of low-hanging fruit in these fraught times for the Court, the issues thrown up are worth discussing from the standpoint of constitutional doctrine.

In an article published in the Mint, which can be accessed here, I’ve examined how the Padmaavat interim order drew from the Aarakshan judgment (Prakash Jha Productions v. Union of India), as also the 1989 judgment in S. Rangarajan v. P. Jagjivan Ram, both of which establish that States have a positive duty to protect free expression by maintaining law and order. The sequitur is that the States cannot throw up their hands when faced with a heckling mob, and point to instances of violence caused by such hecklers to justify censorship on grounds of law and order.

Apart from addressing the issue of the States’ duty to maintain public order and protect, I believe that the Order vaguely pointed at another important idea, which ought to have been fleshed out in a more organized, coherent manner, when it said –

“Once the parliamentary legislation confers the responsibility and the power on a statutory Board and the Board grants certification, non-exhibition of the film by the States would be contrary to the statutory provisions and infringe the fundamental right of the petitioners.”

The fact that there is a specialized statutory board is not really relevant here. This should not have sounded like an argument on institutional competence. The emphasis ought to be on the fact that this board, i.e. the CBFC, is a creature of Parliamentary legislation. To drive this argument home, the Court ought to have looked at Schedule VII of the Constitution, which divides legislative fields between the Union and the States. Entry 60, List I places “[s]anctioning of cinematograph films for exhibition” as an area in the exclusive domain of the Union Parliament. The power of the States, under Entry 33 List II, extends only to “cinemas subject to the provisions of entry 60 of List I”. This means that, first, States can only regulate individual cinemas through legislation. Second, this power is specifically subordinated to the Union Parliament’s power under Entry 60, List I, making it clear that States have no power whatsoever to enter into the content of the films screened in these cinemas.

One of the few judgments of the Supreme Court which has looked into this division of power between the Union and the States is Union of India v. Motion Picture Association, where the Court observed: –

“The basic purpose of the impugned laws which deal with licensing of cinema halls, and prescribing conditions subject to which such licences can be granted, is to regulate the business activity of the exhibitors of cinematograph films. Obtaining a licence for running such cinema theatres is for the purpose of regulating this business. This purpose has a direct nexus with Articles 19(1)(g) and 19(6) of the Constitution. The source of legislation under this head can be traced to Entry 33 of List II which entitles the States to legislate on “theatres and dramatic performances; cinemas subject to the provisions of Entry 60 of List I; sports, entertainments and amusements”.

That is why State laws have been framed for regulating the terms and conditions on which a licence for exhibiting films at cinema theatres can be obtained. Part III of the Cinematograph Act, 1952 which applies to Union Territories is also in the exercise of the legislative powers under Entry 33 of List II. Since Delhi was a Union Territory and is now National Capital Territory since 1991 by virtue of the Constitution 69th Amendment Act, 1991, Parliament has the power to legislate under this entry also [see Article 246(4) and the relevant provisions of Article 239-AA]. Entry 60 List I on the other hand deals with “sanctioning of cinematograph films for exhibition”. Censorship provisions, for example, would come under Entry 60 of List I and these would directly relate to Article 19(1)(a) and Article 19(2) of the Constitution. The basic purpose of these impugned provisions is, therefore, to regulate the business of exhibiting films in cinema theatres under Entry 33 List II.”

Justice Sujata Manohar, who penned this decision, identified that States can only regulate the business activity of the individual cinema hall, whereas legislation touching the content of the film lies exclusively within the domain of Parliament. This clear delineation of legislative powers ought to have been expressed clearly in the Supreme Court’s interim order.

This line of argument, where federalism and structure blend with rights and freedoms, and where the domain of impact of one tier in a federal system is fenced in, consequently enhancing liberty (e.g. by tying the hands of States in domain of censoring cinema), is not novel. In the United States, it has been used to great effect in advancing the rights of the LGBT community in challenges to the Defence of Marriage Act (DOMA), a federal legislation that had prevented same-sex couples married under their State laws from accessing federal benefits. Judge Boudin of the U.S. Court of Appeals for the First Circuit, in Massachusetts v. HHS, while striking down DOMA, placed the regulation of the rules and incidents of marriage within the domain of the States, and said that federal statutes intruding on matters customarily within State control are to be “scrutinized with special care”. Judge Boudin pointed quite clearly to the blending of structure and rights when he said: –

“True, these federalism cases examined the reach of federal power under the Commerce Clause and other sources of constitutional authority not invoked here; but a statute that violates equal protection is likewise beyond the power of Congress. See Moreno, 413 U.S. at 541 (Douglas, J., concurring). Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.

Therefore, federalism was used by Boudin to justify a closer scrutiny of laws violating the equal protection clause of the US Constitution. This rationale was picked up and taken much further by Justice Anthony Kennedy in the US Supreme Court’s decision in US v. Windsor, fusing federalism with the right of same-sex couples to live with dignity. He wrote: –

“Against this background DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next. Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage.

The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and disabilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.

Kennedy used federalism a little differently from Boudin. While Boudin used it to justify a higher degree of scrutiny, Kennedy used federalism to define a constitutional baseline against which to test DOMA. His argument, at its most basic, runs a little like this: –

  1. Only States can regulate marriage.
  2. States have used this power to recognize the rights of same-sex couples and their right to live with dignity. [This is the baseline set by Kennedy.]
  3. The Federal government, in enacting DOMA, has not only intruded into the domain of the State but also deprived the same class of people whose rights were recognized by the State of important benefit. This is, according to Kennedy, “strong evidence of a law having the purpose and effect of disapproval of that class”.

In other words, the ratcheting back of privileges by the Federal government (an interloper in the domain of States) tested against the baseline set by the States has been used by Kennedy to justify the conclusion that same-sex couples have been singled out for particular disability.

I have attempted to provide these two examples from American constitutional jurisprudence to clarify my own ideas on the link between structure and freedom, perhaps as a starting point for further examination and writing. To this end, I felt it might be useful to think aloud, in the hope that the reader may get a flavor of my claims from a few disjointed threads: –

  1. I think there is a need to look at our Constitution’s structural features more closely, and map this onto the larger doctrinal topography of Indian fundamental rights jurisprudence. For instance, the fact that these structural features (such as the interplay between Entry 60, List I and Entry 33 List II) have freedom-enhancing effects in certain cases cannot lead to the conclusion that they were inherently intended to be freedom enhancing. For this to hold good, there would need to be some evidence of this in our constitutional history supporting this claim, which is perhaps one avenue of inquiry for systematic research.
  2. Second, I recognize the fact that, in general, arguments flowing from federalism (or, indeed, any structural argument, even if it flows from the horizontal separation of powers between the three branches of government) do not, inherently, enhance or constrict freedom. A State law enhancing the breadth of rights may fall to a federalism objection. I am also aware that arguments flowing from structure are agnostic with respect to political valence and the desirability of outcomes. For instance, Boudin’s decision (mentioned above) cites S. v. Lopez, where the conservatives on the U.S. Supreme Court came together to strike down gun control legislation by deploying arguments founded in structure.
  3. I am interested, more specifically, in the formulation and deployment of arguments where there is a hybridity, so to speak, brought about by fusing structure and freedom, and the outcomes in such cases.
  4. Most particularly, it would be worth thinking about such hybridity as both a doctrinal and rhetorical tool in the hands of a judge (and, perhaps, developing a schema that explains particular cases, such as the DOMA cases in the U.S.), as also a strategy in the arsenal of constitutional lawyers, particularly in the face of a conservative bench. A conservative bench, ordinarily wary of expanding freedoms, would perhaps be more amenable to an argument addressing structure and In the Padmaavat case, the bench was headed by the present Chief Justice, who penned the judgment in Devidas Ramachandra Tuljapurkar v. State of Maharashtra, where he created a new class of “historically respected personalities”, previously unknown in our jurisprudence, and used it to justify curbing the breadth of provocative artistic expression touching upon such personalities. Arguably, a pure rights-based argument about Padmaavat, where the Karni Sena’s objections stem from the portrayal of Rani Padmini, a “historically respective personality”, may not have gained traction. What the Padmaavat order tells us, perhaps, is that in the face of a conservative Court, fusing rights with structure may make for a more successful formulation of arguments against intrusive state action.

One concluding point: it needs to be emphasized, for the sake of completeness, that the States could not have relied on Entry 1 of List II, giving the States the power to legislate on “public order”, or on Article 19(2), which allows for reasonable restrictions on free speech on grounds of “public order”, to justify their actions. This is because it would have been difficult to demonstrate that anything in the film constituted the proverbial “spark in a powder keg”, i.e. that the message has a clear tendency to disrupt public order, especially at a time when the movie had not even been released. Obviously, measures designed to maintain public order would have addressed themselves to the violent mob looking to silence expression, and not to an unreleased movie.

 

 

 

 

 

 

 

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Guest Post: The Rajasthan High Court’s Religious Conversion and Marriage “Guidelines”: Some Privacy Concerns

(This is a guest post by Vasudev Devadasan.)

Last month in Chirag Singhvi v State of Rajasthan the Rajasthan High Court was faced with an increasingly common set of facts. Chirag Singhvi filed a habeas corpus petition arguing that his sister Payal Singhvi had been kidnapped, forcibly converted to Islam, and compelled to marry a Muslim man. The claims regarding the kidnapping were rendered questionable when Payal Singhvi appeared in court on her own volition and it came to light that she had filed a complaint of her own. She claimed to have both converted to Islam and married on her own free will and was being harassed by her brother and father. Nonetheless, the High Court noted that she was born and raised a Jain and thus decided to examine whether an individual must complete a specific procedure before they can convert from one religion to another.

What sets the Chirag Singhvi case apart from the dozen other cases with analogous facts is that the Court took it upon itself to frame certain guidelines regulating how and when a person can convert from one religion to another. While the guidelines re-affirm the right of individuals to change religion, they also impose certain troubling conditions regarding notice and publication. Specifically:

  • The person, who is desirous to change his/her religion, shall give information to the District Collector/SDM/SDO of the concerned city and Sub-Divisional Area before conversion of religion.
  • The District Collector/SDM/SDO shall put such information upon the Notice Board of its office on the same day.
  • The person, who has converted his religion from one religion to another religion, shall solemnize the marriage/Nikah after one week of such conversion of religion.

By requiring individuals to provide public notice of religious conversion the Court’s guidelines raise troubling questions about the right to privacy, the freedom of association, and ultimately the freedom of conscience and propagation of religion. In this post I examine how anonymity is a crucial element in exercising the freedom of association, including religious association, and the potential harms of requiring the disclosure of religious conversions.

Some Context

Before proceeding further, it would be wise to quickly recap the context in which the Chirag Singhvi decision came out. In 2006 the Rajasthan Assembly passed the Rajasthan Dharma Swatantrya Act which made religious conversions made on the basis of “allurement” or “inducement” an offence. The Act did not get the assent of the Rajasthan Governor, who reserved it for the President’s assent. The Advocate General raised some concerns and finally the matter was passed on to the Home Department. The law has still not received the President’s assent. Rather than let the checks and balances of the constitutional scheme operate, the High Court noted that the State Government was “very serious to frame certain rules to govern conversion” and thus thought it more expedient for the High Court to frame guidelines itself. The High Court did not examine why the Act might not have received the Governor or the President’s assent, nor did it even seem concerned that it had not. It merely noted tha the guidelines would be in force until the Act did come into force. What happens if the Act or other regulations do not receive the President’s assent is one left unanswered by the High Court.

The question of religious conversion also has some context. In Stanislaus v State of Madhya Pradesh, the Supreme Court upheld Madhya Pradesh and Orissa’s legislations which criminalised ‘forcible religious conversion’. The Court said that although Article 25 protects the rights of people to “propagate” their religion, it does not allow an individual to convert somebody else to his or her religion. In the Courts own words, “if a person purposely undertakes the conversion of another person to his religion, […] this would impinge on the “freedom of conscience” guaranteed to all the citizens of the country.” This understanding seems to misconceive the reason why religious ideas are disseminated. They are not disseminated, or ‘propagated’ to increase social awareness of a religion, but to engender in individuals the moral conviction that results in conversion. Article 25 thus protects the right to “propagate” religion by individual A, and also protects the “freedom of conscience” of individual B to choose any of the religions being propagated. Thus, disseminating one’s religious ideas to convert others is not an interference with their religious freedom, but rather gives meaning to their “freedom of conscience”.

Coming to the Rajasthan High Court’s guidelines, they go further than the legislations in Madhya Pradesh and Orissa did. The legislations of those two states required the person conducting the conversion ceremony to notify the relevant authority in the event they thought the conversion was coerced. However, the guidelines in Rajasthan require the individual converting to himself/herself give notice of conversion, and by displaying it in public, allowing anyone to object to the conversion.

The right to anonymous association

By requiring that individuals disclose when and which religion they intend to convert to, the guidelines place a restraint on the individual’s freedom of association (included here is their religious association), and thus on their freedom of religion. For example, if an individual intends to convert to a religion whose members have been the victims of persecution, requiring the individual to publicly acknowledge their intention to convert may dissuade him or her from converting because of the risk of persecution. However, if you allow them to convert privately, they may happily do so. We would all balk at the idea of members of a religion being compelled to publicly identify themselves (for example, during the Nazi occupation of Poland, Jews were required to wear white armbands with the Star of David). Requiring individuals who intend to convert provide public notice similarly infringes on this crucial relationship between the “freedom to associate and the privacy of one’s associations”.

The U.S. Supreme Court highlighted this exact problem when the State of Alabama demanded that the National Association for the Advancement of Coloured People (NAACP) disclose its list of members. In NAACP v Patterson, the Court held that by compelling the disclosure of the NAACP’s membership lists, Alabama was violating the privacy of group association which was essential to the freedom of association. The Court stated that, “we think it apparent that compelled disclosure of the petitioner’s membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate.

The Court stated the obvious, that disclosure would dissuade individuals from joining the NAACP as they may face reprisal due to their membership. Crucially, the Court went on to hold that it did not matter that this reprisal was not from the government and may have been from fellow citizens. The Court noted:

It is not sufficient to answer, as the State does here, that whatever repressive effect compulsory disclosure of names of NAACP’s members may have upon participation by Alabama citizens in NAACP’s activities follows not from state action, but from private community pressures. The crucial factor is the interplay of governmental and private action, for it is only after the initial exertion of state power represented by the production order that private action takes hold.

Therefore, it should not matter that an individual facing discrimination or violence due to their conversion to a religion does not face this hardship at the hands of the State. By requiring public notice of conversion, the government is opening up these individuals to the risk of reprisal for actions that they have a constitutionally protected right to pursue.

Treatment in India

The requirement for public notice as espoused by the Rajasthan High Court has in fact been explicitly struck down by both the Himachal Pradesh High Court, and the Delhi High. In striking down the requirement of public notice prior to religious conversion in the Himachal Pradesh Freedom of Religion Act, Justice D. Gupta stated, “A person not only has a right of conscience, the right of belief, the right to change his belief, but also has the right to keep his beliefs secret” (See Evangelical Fellowship of India v State of HP). The Court also noted that the government failed to show how requiring people to publicly disclose their conversion to another religion would in any manner stop, or even reduce forcible religious conversions.

The Delhi High Court also had similar observations regarding the notice requirements in the Special Marriages Act (SMA). While each religion in India has its own set of marriage laws, the SMA allows for inter-religious marriage. Prior to marriage however, there was a requirement to publicly disclose the inter-religious marriage by a notice at the residence of both the husband and the wife to-be. The Delhi High Court struck down this requirement stating that requiring individuals to disclose their marriage to the public was a violation of their right to privacy. As in the two cases above, the Court is affirming the right to privacy that individuals have regarding their associations. This anonymity in association is essential to the meaningful enjoyment of the “freedom of conscience” that Article 25 guarantees. The Court also noted, “The unwarranted disclosure of matrimonial plans by two adults entitled to solemnize it may, in certain situations, jeopardize the marriage itself. In Certain instances, it may even endanger the life or limb of one at the other party due to parental interference.

The case of Chirag Singhvi and countless others is a testament to the fact that the fears of the Delhi High Court were well founded. By requiring individuals to disclose their association on marriage or religion, the State violates their right to privacy and puts them at risk of social persecution.

Post Puttaswamy

It is pertinent to note that these decisions were all prior to last year’s landmark Right to Privacy judgement. In Puttaswamy the Supreme Court emphatically asserted that the right to privacy protects an individual’s “choice of preference” on matters of religion, and stated, “The constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom, to express or not express those choices to the world.” (⁋169) Requiring that individuals provide public notice of their intention to convert from one religion to another seems to fall foul of this right to anonymously practice one’s religion articulated by the Supreme Court, and places the guidelines in a rather dubious position.

Conclusion

The Rajasthan High Court cited the Law Commission’s 235th Report as evidence of the rising problem of religious conversions, and the need to regulate them. It is true that the Law Commission did lay down certain guidelines, but it prefaced these guidelines by stating, “statutory prescription of procedure to establish conversion or nature of proof required is neither desirable nor practicable”. The High Court may have enacted the guidelines in the hope of reducing litigation of the kind in Chirag Singhvi, but such cases centre around the appreciation of evidence, something no statute or guideline can ever achieve. After examining the FIR, the various statements, and the testimony of the Molvi, the Court dismissed the case by stating that Payal Singhvi and Faiez Modi are free to go and “at liberty to live their life as per their choice.” If only the Court had extended this courtesy to the rest of the residents of Rajasthan.

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From a Culture of Authority to a Culture of Justification: The Meaning of Overruling ADM Jabalpur

The nine-judge bench judgment of the Supreme Court in Justice K.S. Puttaswamy vs Union of India is now four-and-a-half months old. The verdict, which held that there exists a fundamental right to privacy under the Indian Constitution, has been analysed threadbare. Its implications for decisional autonomy, personal choice, State surveillance, informational self-determination, and many other facets of privacy, have been debated and discussed. In the coming months, the Supreme Court will have an opportunity to cement the legacy of Puttaswamy, when it hears cases pertaining to almost all these issues. However, there is one aspect of the judgment that has received universal approbation, but no analysis. This is the Court’s decision to overrule its 1976 judgment in ADM Jabalpur vs Shivakant Shukla, the Emergency-era verdict that is widely accepted to mark the “lowest point” in the Court’s history.

Recall that ADM Jabalpur concerned the question of whether individuals who had been preventively detained by the State had the right to approach the Courts in a habeas corpus petition. The background context was the existence of a Presidential proclamation of a State of Emergency; this Proclamation also suspended the the locus standi of all individuals to move the Courts for relief, in case they were detained. A majority of the Supreme Court held that the Presidential Proclamation had validly suspended the remedy of habeas corpus under the Constitution; and because there existed no rights or remedies outside the confined of the Constitution, the Presidential Proclamation acted as a complete bar to exercising the fundamental right to life and liberty. Consequently, a detained person could not approach the Courts arguing that his detention was illegal or unconstitutional.

In Puttaswamy, Justice Chandrachud (writing for a plurality of four judges), Justice Nariman and Justice Kaul all categorically overruled ADM Jabalpur. Their reason was that there were certain basic rights that were recognised by the Constitution, but not conferred by it. These rights were inalienable, and inhered in all human beings simply by virtue of their being human. Specifically, therefore, Puttaswamy overruled the finding in ADM Jabalpur that the Constitution was the sole repository of the rights of citizens.

A narrow view of Puttaswamy would limit it to doing only so much. I think, however, this would be a mistake. It would be a mistake because ADM Jabalpur’s ruling on the character of rights under the Constitution cannot be taken in isolation. It was part of a larger judicial logic that, following the South African Constitutional scholar Etienne Mureinik, I shall label the “culture of authority.” And the repudiation of ADM Jabalpur in Puttaswamy, I will argue therefore, was a repudiation of the culture of authority itself; Puttaswamy is best understood as providing a bridge – a bridge from ADM Jabalpur to a new understanding of the Constitution, an understanding that is based on the “culture of justification.”

ADM Jabalpur and the Culture of Authority 

Recall that in ADM Jabalpur, there were two issues. The first was whether the Presidential Proclamation of Emergency acted as a complete bar to the enforcement of the individual right to life and personal liberty in the courts. The second was the constitutional validity of Section 16(9A) of the Maintenance of Internal Security Act, that allowed for a detenu not to be given access to the grounds of his detention. The broader political context, of course, was Prime Minister Indira Gandhi’s decision to impose an Emergency on the basis that there was a grave internal disturbance that threatened the life of the nation.

Consequently, ADM Jabalpur was delivered during a “state of exception” – that is, a situation where the Executive has suspended the normal functioning of the state, ostensibly to deal with an existential threat. The four majority opinions reflect this in granular detail. The reasoning that culminated in the majority holding that the detenus could not approach Court challenging their detention was based on four principal prongs, each of which reflected the logic of the state of exception.

A. The State of Exception 

The first prong was based on the proposition that the questions of when circumstances arose that justified the imposition of a state of exception (“Emergency”), and what rights and remedies citizens were to be allowed during a state of exception, were to be decided solely by the Executive. As Justice Beg observed:

Laws and law Courts are only a part of a system of that imposed discipline which has to take its course when self-discipline fails. Conditions may supervene, in the life of a nation, in which the basic values we have stood for and struggled to attain, the security, integrity, and independence of the country, or the very conditions on which existence of law and order and of law courts depend, may be imperilled by forces operating from within or from outside the country. What these forces are, how they are operating, what information exists for the involvement of various individuals, wherever placed, could not possibly be disclosed publicly or become matters suitable for inquiry into or discussion in a Court of Law.

Similarly, Justice Chandrachud wrote that “the facts and circumstances leading to the declaration of emergency are and can only be known to the Executive… Judge and Jury alike may form their personal assessment of a political situation but whether the emergency should be declared or not is a matter of high State policy and questions of policy are impossible to examine in courts of law.” He went on to state that:

The mind then weaves cobwebs of suspicion and the Judge, without the means to knowledge of full facts, covertly weighs the pros and cons of the political situation and substitutes ins personal opinion for the assessment of the Executive, which, by proximity and study, is better placed to decide whether the security of the country is threatened by an imminent danger of internal disturbance. A frank and unreserved acceptance of the Proclamation of emergency, even in the teeth of one’s own pre-disposition. is conducive to a more realistic appraisal of the emergency provisions.

At the heart of this articulation is not only the idea that extraordinary times call for extraordinary measures, but also that the determination of when extraordinary times have come upon us, and what extraordinary measures are needed, are for the State to decide. As the Nazi legal theorist Carl Shmitt wrote, “the sovereign is he who decides the State of exception.” According to the Jabalpur majority, this aspect of sovereignty lay solely with the Executive. So, Justice Chandrachud was able to write:

The people of this country are entitled to expect when they go to the ballot-box that their chosen representatives will not willingly suffer an erosion of the rights of the people. And the Parliament, while arming the executive with great and vast powers of Government, may feel fairly certain that such powers will be reasonably exercised. The periodical reviews of detention orders. the checks and counter-checks which the law provides and above all the lofty faith in democracy which ushered the birth of the Nation will, I hope, eliminate all fear that great powers are capable of the greatest abuse. Ultimately, the object of depriving a few of their liberty for a temporary period has to be to give to many the perennial fruits of freedom.

The same logic was at play in the Majority’s decision to uphold Section 16(9A), with Chief Justice Ray noting that:

The reason why Section 16A has been enacted is to provide for periodical review by Government and that is the safeguard against any unjust or arbitrary exercise of power… the grounds of detention and any information or materials on which the detention and the declaration were made are by Section 16A(9) of the Act confidential and deemed to refer to matters of State and to be against public interest to disclose.

A corollary to this was that the very act of vesting such extraordinary power with the Executive raised no constitutional concern. Justice Bhagwati, for example, held that the mere possibility or hypothesis that power might be abused was no ground to deny the existence of the power itself. And Chief Justice Ray noted that:

People who have faith in themselves and in their country will not paint pictures of diabolic distortion and mendacious alignment of the governance of the country. Quite often arguments are heard that extreme examples are given to test the power. If there is power, extreme examples will neither add to the power nor rob the same. Extreme examples tend only to obfuscate reason and reality.

B. Rights and Remedies

Secondly, ADM Jabalpur stood for the proposition that the removal of a remedy did not affect the existence of a right. The Presidential proclamation in question provided that the right of any person including a foreigner to move any Court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution would remain suspended for the period of the Emergency. All four judges in the majority held that by virtue of the Presidential Proclamation of Emergency, it was not that Article 21 was removed or ceased to exist; it was simply that a detenu could not approach the Court under writ proceedings to enforce his right under Article 21.

C. Jurisdiction of Suspicion 

Thirdly, ADM Jabalpur endorsed and authorised what Justice Beg referred to as a “jurisdiction of suspicion”:

Provision for preventive detention, in itself, is a departure from ordinary norms. It is generally resorted to either in times of war or of apprehended internal disorders and disturbances of a serious nature. Its object is to prevent a greater danger to national security and integrity than any claim; which could be based upon a right, moral or legal, to individual liberty. It has been aptly described as a “jurisdiction of suspicion.”

The crucial point was that the validity or reasonableness of the suspicion was entirely up to the Executive to decide. Since the right to move Court stood suspended, no detenu could approach a judicial authority and attempt to prove that the “suspicion” on the basis of which he had been detained was actually groundless, or illegal, or motivated by mala fides. Here again, the overarching justification was that of national security.

D. Salus Populi Est Supreme Lex

Lastly, ADM Jabalpur stood for the proposition that the liberty of the individual was not a paramount value under the Constitution, but simple one among many values to be weighed in the scales – and, in particular, always to be overriden by the principle of “salus populi est supreme lex” (“regard for public welfare is the highest law”). For example, Justice Beg warned against “a too liberal application of the principle that courts must lean in favour of the liberty of the citizen, which is, strictly speaking a principle of interpretation for cases of doubt or difficulty.” This, in turn, was drawn from the belief that individual liberty was a “gift” bestowed by the Constitution and the State, which could be withdrawn during a state of exception. For this, all for judgments of the majority relied upon the wartime British judgment in Liversidge vs Andersen, which had upheld the untrameled power of the Home Secretary to detain people, free from the constraints of judicial review. As Justice Beg wrote:

Clearly the question whether a person is of hostile origin or associations so that it is necessary to exercise control over him, raises, not a justiciable, but a political or administrative issue.

Let us now sum up the elements of the “culture of authority” that was at the foundation of the majority opinions in ADM Jabalpur.

  • There exists a state of normalcy and a state of exception (the paradigmatic example of which is an Emergency).
  • The Executive has the sole prerogative of determining when circumstances exist that a State of Exception ought to replace the default state of normalcy, and what is to happen with respect to citizens’ rights during a State of Exception.
  • The Executive is guided by the principle of “salus populi est supreme lex” (regard for public welfare is the highest law). It is not for the Courts to ask whether:
    1. The conditions requiring the state of exception to be called really exist or not (summed up by defining Court defining the preventive detention powers as a “jurisdiction of suspicion”, and disclaiming the need for showing proximity.
    2. Whether the Executive’s actions actually serve public welfare or not.
  • During the State of Exception, the Executive can suspend rights, suspend remedies, and be the sole arbiter both for the content of the right and for the remedy.
  • The fact that such a power is vested in the Executive and is capable of abuse is no ground for the power not existing. The Executive is always presumed to act in good faith.
  • In sum: “salus populi est supreme lex” is like the Ninth Schedule of constitutional interpretation.

The Foundations of Justice Khanna’s Dissent

In his sole dissenting opinion, Justice Khanna launched a fundamental challenge to this entire way of thinking. Justice Khanna’s dissent was not based merely on a difference with the majority about the question of whether rights existed outside the Constitution or not. Rather, his different was more fundamental, and went to the root of what it meant to live under a Constitutional republic. According to Justice Khanna, at the heart of a constitutional republic was the maintenance of a balance of power between State and individual. The issue was not whether the State may or may not abuse its powers, and the manner in which it might abuse its power in order to violate individual liberty. The issue, rather, was that the very existence of certain kinds of power with the State was a violation of liberty. As he noted:

“…experience should, teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion-of their liberty by evil-minded persons. Greatest danger to liberty lies in insidious encroachment by men of zeal, well-meaning but lacking in due deference for the rule of few.”

And:

Whether such things actually come to pass is not the question before us; it is enough to state that all these are permissible consequences from the acceptance of the contention that Article 21 is the sole repository of the right to life and personal liberty and that consequent upon the issue of the Presidential order, no one can approach any court and seek relief during the period of emergency against deprivation of life or personal liberty. In order words, the position would be that so far as executive officers are concerned, in matters relating to life and personal liberty of citizens, they would not be governed by any law, they would not be answerable to any court and they would be wielding more or less despotic powers.

Constitutionalism meant curtailing what the State was able to do its citizens. To give the State power to both determine the state of exception, and then also to determine what rights and remedies citizens had during such a period, simply on the invocation of salus populi, was to make a mockery of the very idea of a constitutional republic. Consequently, Justice Khanna rejected the argument that, in the interests of public safety and public welfare, the Executive could be left to solely determine the scope and ambit of rights enjoyed by citizens, noting that “the power of the courts to grant relief against arbitrariness or absence of authority of law in the matter of the liberty of the subject may now well be taken to be a normal feature of the rule of law.”

A corollary of this was Justice Khanna’s rejection of the “jurisdiction of suspicion” – that is, the idea that during the state of exception, the Executive was vested with the sole power of curtailing the liberty of any individual it suspected of being a threat to the established order:

Normally, it is the past conduct or antecedent history of a person which shows a propensity or a tendency to act in a particular manner. The past conduct or antecedent history of a person can, therefore, be appropriately taken into account in making a detention order. It is indeed largely from the past events showing tendencies or inclinations of a person that an inference can be drawn that he is likely in the future to act in a particular manner. In order to justify such an, inference, it is necessary that such past conduct or antecedent history should ordinarily be proximate in point of time. It would, for instance, be normally irrational to take into account the conduct an activities of a person which took place ten years, before the date of ins detention and say that even though after the said incident took place* nothing is known against the person indicating ins tendency to act in a prejudicial manner, even so on the strength of the said incident which is ten years old, the authority is satisfied that ins detention is necessary. It is both inexpedient and undesirable to lay down an inflexible test as to how far distant the past conduct or the antecedent history should be for reasonably and rationally justifying the conclusion that the person concerned if not detained may indulge in prejudicial activities. The nature of the activity would have also a bearing in deciding the question of proximity. If, for example, a person who has links with a particular’ foreign power is known to have indulged in subversive activities when hostilities broke out with that foreign power and hostilities again break out with that foreign power after ten years, the authorities concerned, if satisfied on the basis of the past activities that it is necessary to detain him with a view to preventing him from acting; in a manner prejudicial to the security of India, might well pass a detention order in respect of that person. The fact that in such a case there is a time lag of ten years between the activities of the said person and the making of the detention order would not vitiate such an order. Likewise, a remote prejudicial activity may be so similar to a recent prejudicial activity as may give rise to an inference that the two are a part of chain of prejudicial activities indicative of a particular inclination. In such an event the remote activity taken along with the recent activity would retain its relevance and reliance upon it would not introduce an infirmity. If, however, in a given case and in the context of the nature of activity the time lag between the prejudicial activity of a detenu and the detention order made because of that activity is ex facie long, the detaining authority should explain the delay in the making of the detention order with a view to show that there was proximity between the prejudicial activity and the) detention order. If the detaining authority fails to do so, in spite of an opportunity having been afforded to it, a serious infirmity would creep into the detention order.

Towards the Culture of Justification 

Justice Khanna’s dissenting opinion in ADM Jabalpur, reminiscent of Lord Atkins’ dissent in Liversidge vs Andersen, exemplified the “culture of justification”. Mureinik writes thus:

If the new Constitution is a bridge away from a culture of authority, it is clear what it must be a bridge to. It must lead to a culture of justification –a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command. The new order must be a community built on persuasion, not coercion.

The phrase “every exercise of power is expected to be justified” is at the heart of this vision of constitutionalism. In particular, it is a complete repudiation of salis populi supreme est lex. The State cannot simply decide to compel its citizens by invoking the larger goal of public welfare. The State must, rather, justify every act of compulsion. It must justify, for example, that its exercise of power will actually serve public welfare. It must explain how it will do so. It must explain that the only way of doing so is through the route of force and compulsion. It must prove that there is no other non-coercive way of achieving that goal, and that it is not imposing any more compulsion than is strictly required in the interests of public welfare. It must show that the amount of power it arrogates to itself in order to carry through its coercive action is proportionate to the importance of the goal it seeks to achieve. And the State cannot impose a regime of permanent suspicion: a regime in which the only justification for the exercise of coercion is that all citizens are potential criminals, and preventive compulsion is the only effective mechanism of preserving the public good. The culture of justification prohibits the State from presuming criminality and law-breaking.

And most importantly, the State cannot be the sole judge and arbiter of these questions. It is the constitutional courts that must carefully examine and scrutinise each of these issues, where the exercise of power is concerned. The courts need not attribute bad faith to the State, or assume the existence of abuse; rather, as Justice Khanna pointed out all those years ago, the Court must be “most on… guard to protect liberty when the Government’s purposes are beneficent.” Therefore, it is precisely when the State claims salus populi, and asks the Court to back off so that it can freely exercise compulsion in order to secure public welfare, that the Court must be at its most vigilant. It is then that the hardest and most searching questions must be asked of the State, and the State put to strict proof in answering the questions outlined above. To adopt a hands-off approach on the basis that these are questions of “high State policy”, and that it is not for judicial authorities to enter into the realm of policy-making and second-guess the State on issues of general welfare, would be only to repeat the mistake of ADM Jabalpur, and ignore the lesson of Justice Khanna.

In the coming months, the Court is scheduled to hear a number of constitutional cases that have far-reaching effects on individual freedom and State power. When it decides those cases, the shadow of Puttaswamy and of Justice Khanna will loom large. It is now for the Court to complete the transformation from the culture of authority to the culture of justification, which was the promise of the Constitution, the hope of Justice Khanna when he dissented, and the beginning of the path outlined in Puttaswamy.

This is, after all, a Constitution that chose to make the individual its basic and most fundamental unit.

 

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Section 377 Referred to a Constitution Bench: Some Issues

In an order passed today, a three-judge bench of the Supreme Court, headed by the Chief Justice, referred the correctness of the judgment in Suresh Kumar Koushal vs Naz Foundation to a Constitution Bench. Because of the complex history of this case, some background is essential to understand the implications of today’s order. Recall that on December 11, 2013, a two-judge bench of the Supreme Court, in Koushal, had upheld the constitutional validity of Section 377 of the Indian Penal Code, which criminalises carnal intercourse against the order of nature. In doing so, the Supreme Court overturned the 2009 judgment of the Delhi High Court in Naz Foundation vs NCT of Delhi, which had read down Section 377 and decriminalised consensual same sex relations between adults. Although the Supreme Court did not specify what constituted “carnal intercourse against the order of nature”, its judgment was widely understood to recriminalise homosexuality in effect, if not in so many words.

Soon after the judgment in Koushal, a different two-judge bench of the Supreme Court delivered judgment in NALSA vs Union of India, where it upheld and affirmed the constitutional rights of transgender persons under Articles 14, 15, 19 and 21 of the Constitution. As I argued at the time, Koushal and NALSA rested on mutually irreconcilable foundations – the exact arguments that had been rejected in Koushal had been accepted in NALSA, and so, the only way out was to review the correctness of Koushal.

In the meantime, review petitions contesting the correctness of Koushal had been dismissed. Petitioners then took the last route open to them: they filed curative petitions. A curative petition is an extraordinary remedy developed by the Supreme Court in its 2002 judgment in Rupa Ashok Hurra. It is basically a remedy of the last resort: even after a review is rejected, the Court may still reconsider its judgment in certain exceptional circumstances. Hurra set out the exceptional circumstances:

“… this Court, to prevent abuse of its process and to cure a gross miscarriage of justice, may re-consider its judgments in exercise of its inherent power. The next step is to specify the requirements to entertain such a curative petition under the inherent power of this Court so that floodgates are not opened for filing a second review petition as a matter of course in the guise of a curative petition under inherent power. It is common ground that except when very strong reasons exist, the Court should not entertain an application seeking reconsideration of an order of this Court which has become final on dismissal of a review petition. It is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained. Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgement adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner… we are of the view that since the matter relates to re- examination of a final judgment of this Court, though on limited ground, the curative petition has to be first circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of, if available. It is only when a majority of the learned Judges on this Bench conclude that the matter needs hearing that it should be listed before the same Bench (as far as possible) which may pass appropriate orders.”

The rarity of the curative remedy is reflected by the fact that in the fifteen years since Hurra, only four curative petitions have been allowed. However, in 2014, Petitioners won a significant victory when the Court agreed to hear the Naz curative in “open court” – most curative petitions are dismissed by circulation in judges’ chambers.

The Naz curative was then listed for hearing on the 2nd of February, 2016, before the three senior-most judges at the time – Chief Justice Thakur, and Justices Dave and Khehar. After some oral argument, the Court passed the following order:

“All that we need say is that since the issues sought to be raised are of considerable importance and public interest and since some of the issues have constitutional dimensions including whether the Curative Petitions qualify for consideration of this Court in the light of the Judgment in Rupa Ashok Hurra’s case (Supra), it will be more appropriate if these petitions are placed before a Constitution Bench comprising five Hon’ble Judges of this Court.”

In other words, all questions – including the question of whether the curative petition could be admitted for hearing – were to be decided by a five-judge bench.

Later that year, however, a fresh petition was filed challenging the constitutional validity of Section 377.  Navtej Johar vs Union of India was filed by five LGBT individuals as a writ petition under Article 32 of the Constitution (and not a public interest litigation, like Naz Foundation was), alleging direct violation of fundamental rights. When this petition came before a two-judge bench of the Court on 29th June 2016, the Court passed the following order:

“The issue pertains to the validity of Section 377 of the Indian Penal Code. We are informed that the Constitution Bench of this Court is hearing the issue. Post this matter before Hon’ble the Chief Justice of India for appropriate orders.”

Both the curative petitions and this petition then went into cold storage. In late August 2017, however, the nine-judge bench of the Supreme Court handed down the famous “Privacy Judgment”. As we have discussed before, the a majority of judges in the privacy judgment directly held that sexual orientation was a facet of privacy, and very publicly doubted the correctness of Koushal. In his plurality, Justice Chandrachud observed:

…  we disagree with the manner in which Koushal has dealt with the privacy – dignity based claims of LGBT persons on this aspect. Since the challenge to Section 377 is pending consideration before a larger Bench of this Court, we would leave the constitutional validity to be decided in an appropriate proceeding.” (para 128)

While, therefore, judicial propriety and discipline prevented the nine-judge bench from overruling Koushal, there was little doubt that the bottom was entirely knocked out of that judgment – and it was only a question of when – not if – Koushal would be overruled.

It is in this context that we must understand today’s referral order. The order was made in the Navtej Johar petition, which had been filed after the initial curative hearing, and had not been tagged with the curative petitions. In the order, the Court observes the existence of the NALSA judgment, and also Puttaswamy. It then notes:

“… the said decision [Puttaswamy] did not deal with the constitutional validity of Section 377 IPC as the matter was pending before the larger Bench. The matter which was pending before the larger Bench is a Curative Petition which stands on a different footing.”

After noting that the issue of consensual same-sex relations “needs to be debated”, the Court concludes as follows:

“Taking all the aspects in a cumulative manner, we are of the view, the decision in Suresh Kumar Kaushal’s case (supra) requires re-consideration. As the question relates to constitutional issues, we think it appropriate to refer the matter to a larger Bench.”

A few questions arise from this. The first and most important is: what is status now? In Puttaswamy, the Court specifically declined to overrule Koushal on the basis that it was already being considered by a Constitution Bench. Today’s order effectively authorises the Chief Justice to set up a parallel Constitution Bench that will also consider Koushal. In that case, what happens to the curative proceedings? Today’s order observes that the curative proceedings “stand on a different footing”; that is, of course, true. The curative petitions have to be argued according to the very strict Hurra standard (see above), and cannot also invoke NALSA or Puttaswamy. A judgment asking for reconsideration of Koushal, however, is not bound by the Hurra standard.

That, however, leads to a conceptual problem: given that a curative petition in Koushal is pending and has been specifically referred to a Constitution Bench, clearly, Koushal is already under reconsideration. Or, to put it another way, the judgment in Koushal has not yet attained finality – it is subject to the outcome of the curative proceedings. From that perspective, today’s order appears to either mandate the reconsideration of a judgment that is already being reconsidered (if you take the judgment itself as final), or to mandate the reconsideration of a judgment that is not yet final (if you take the conclusion of curative proceedings as the point of finality).

The situation is further clouded when you consider the fact that – as the Court held in Hurra “the curative petition has to be first circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of, if available. It is only when a majority of the learned Judges on this Bench conclude that the matter needs hearing that it should be listed before the same Bench.”

In other words, the task of a curative bench, if the curative petition succeeds, is to send the matter back for a fresh hearing (and not to decide the case on merits itself). That is, if a curative petition succeeds, then the judgment under challenge is to be reconsidered.

But that is exactly what today’s order, in effect, achieves, when it says that “the decision in Suresh Kumar Koushal’s case requires reconsideration.” Or, in other words, today’s order effectively allows the curative petitions by a side-wind. Suddenly, the most difficult hurdle before the original petitioners – to meet the threshold requirements under Hurra – has been swept away.

The upshot, therefore, is this: the pending curative petitions have now been made effectively infructuous (by that I mean that while the curative petitions are still pending, and technically due to be heard, their subject matter – crossing the Hurra threshold – has effectively been decided separately now, so in substance, there is nothing that remains to be argued when they do come up for hearing). By virtue of today’s order, the issue of the constitutional validity of Section 377 is to be heard afresh, and the correctness of Koushal to be reviewed from scratch. There will of course be some procedural issues to untangle – the petitioners in the curative petitions will now have to either get those petitions tagged with Johar or file fresh intervention applications. The basic point, however, is that today’s order marks a very significant advance in the legal struggle against Section 377.

One last point: today’s order calls for a reconsideration of Koushal primarily by invoking the judgments in NALSA and PuttaswamyPuttaswamy, of course, was entirely about the right to privacy, and the relevant portion of NALSA cited by the Court also refers to privacy (in the context of Article 21). This should not result in the future Supreme Court hearing reviewing Koushal only on the grounds of privacy; Koushal‘s analysis of Articles 14 and 15 was every bit as wrong-headed as its “understanding” of Article 21. If the Court is now going to hear the case afresh, then it will, hopefully, rule not only on Article 21, but on issues of equality and non-discrimination as well.

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Guest Post: The Trans Bill and Its Discontents – II

(In this Guest Post, Vasudev Devadasan concludes his analysis of the Transgender Bill.)

In the last post (here) we defined transgender persons as individuals who experience a conflict between the ‘gender identity’ assigned to them at birth, and ‘gender identity’ they develop through the course of their lives. Thus, an individual may be designated ‘male’ or ‘female’ at birth, but over time may come to identify with the opposite sex, or even outside the male-female binary as a transgender. In NALSA v UoI (NALSA) the Supreme Court affirmed both the right of the individual to choose their own gender and the existence of a third gender (transgender). The Court also ruled that discrimination against transgender persons for failing to conform with gender stereotypes (by choosing an alternative ‘gender identity’) amounted to discrimination on the grounds of ‘sex’ and was prohibited by Articles 15 and 16 of the Constitution. Lastly the Court held that transgender persons were members of ‘backward classes’ deserving of reservations under Articles 15(4) and Articles 16(4) of the Constitution.

When making these statements the Court had the benefit of speaking in the abstract. In implementing these guarantees the government faces the task of conferring benefits on a group whose membership is based on a subjective determination of conflicting ‘gender identity’ experienced only by the individual in question. How does the government provide reservations to ‘transgender persons’ when the only way to know whom a ‘transgender person’ is, is an internal conflict experienced by the transgender person?

In this post, I examine the anti-discrimination provisions in the new Transgender Persons (Protection of Rights) Bill and explore the difficulty of securing equality and affirmative action for a group whose membership cannot be objectively determined. I also examine the current Bill’s provisions on begging and residence (prohibiting transgender persons from being separated from their families) and question whether they are in tune with the developing concept of ‘autonomy’ under the Constitution.

Non-Discrimination

The current Bill provides a procedure for the ‘Recognition of Identity of Transgender Persons’. While we discussed the shortcomings of this procedure on the last post, the rationale for having a recognition procedure is clear. Non-discrimination rights arise when citizens belong to a class or category of citizen as distinguishable from other citizens. A claim to non-discrimination will be acknowledged when a citizen can demonstrate belonging to this class or category and then show that such belonging is the “ground” for the discrimination in question. Therefore, the current Bill provides a definition of ‘transgender person’, provides a procedure to recognise a ‘transgender person’, and then Section 3 of the Bill states, “No person shall discriminate against a transgender person…” by denying education, unfair treatment in employment etc. The provision thus protects individuals who are recognised as transgenders under the scheme of the Bill.

Before moving on, two points should be noted. Firstly, the Bill does not create reservations for transgender persons in education or employment. While the National Commission for Backward Classes did formally recommend that transgender persons be included in the category ‘Other Backward Class’, and while these recommendations are ordinarily binding on the Government, the current Bill does not create reservations for transgender persons. Secondly, the Bill does not define the term “discrimination”. By not defining “discrimination” the Bill is silent on how and when the protection guaranteed by Section 3 would be violated. In contrast, the 2014 Rajya Sabha Bill defined discrimination as “any distinction, exclusion or restriction on the basis of gender identity and expression which [restricts the exercise of human rights] on an equal basis with others.” Just as the Supreme Court did in NALSA, this definition states that where a person is treated differently because of their ‘gender identity or expression’, and such different treatment affects their enjoyment of rights, discrimination is deemed to have occurred.

The problem facing the government is that by creating a recognition procedure that the State controls, they have severely restricted the individual’s ability to self-identity with the gender of their choice (a choice the Court in NALSA held to be protected by Article 21). There are two seemingly conflicting goals here: (a) to fix and regulate the categories of sex (male, female and transgender), and (b) to allow individuals to freely move between these categories by choosing their own ‘gender identity’. The current Bill seeks to filter the subjectivity so essential to the transgender identity through a lens of legal certainty. The question is therefore whether the actual or potential mobility of ‘gender’ that NALSA and the very definition of transgender espouse can be accommodated within a regulatory non-discrimination framework.

Victoria and New South Wales for example dispense with the requirement of having a fixed legal identity when determining whether transgender persons have been discriminated against. The Victorian legislation (the Equal Opportunity Act) prohibits discrimination on the grounds of ‘gender identity’ which is defined as:

…the identification on a bona fide basis by a person of one sex as a member of the other sex (whether or not the person is recognised as such):

  1. by assuming characteristics of the other sex, whether by means of medical intervention, style of dressing or otherwise; or
  2. by living, or seeking to live, as a member of the other sex.

Thus, what matters is not whether the individual is recognised in law as a transgender person. Rather, whether they are perceived by society as being a transgender person. Thus, rather than the law having to recognise an immutable characteristic of ‘transgender’ which both violates the principle of self-identification and aims to ‘normalise’ transgender persons by creating a fixed gender/legal identity, discrimination occurs when an individual is discriminated against because they are perceived to be transgender, irrespective of whether they are actual transgender. For example, if an individual is denied employment on the ground that they are perceived to be transgender, a valid claim for discrimination can be made against the employer. Sharpe terms this the “interplay of performance and gaze” and this provides a framework within which the law is able to comprehend the fluid nature of the transgender identity and yet protect transgender persons from discrimination. Conferring rights without requiring a fixed legal identity.

While this solution may work for non-discrimination simpliciter, it still leaves the question of affirmative action open. Where legal benefits are positively conferred on a group, the State has a legitimate interest is ensuring that the individuals who are availing of these benefits belong to the group. The current Bill creates a ‘screening committee’ which includes medical personnel to verify and recognise an individual as a transgender person. This is likely to expose individuals to unwanted and intrusive scrutiny. Thus, a balance needs to be struck between the State’s interest to curb the abuse of affirmative action benefits, and an individual’s freedom to change genders with dignity.

In Secretary, Department of Social Security v HH, Justice Brennan moves the needle away from biological verification, to a slightly more holistic test. In determining an individual’s gender, he notes, “the respondent’s psychological and social/cultural gender identity are the matters of primary importance not sex chromosomal configurations or gonadal or genital factors…” The understanding that ‘sex’ is not a determinant factor, and that “psychological, social and cultural” factors can determine gender seems to be a step in the right direction. This ties in with the Indian Supreme Court’s understanding that an individual’s psyche is part of ‘sex’ within the meaning of Articles 15 and 16. If the ‘screening committee’ that the Bill creates was to examine this, a balance maybe struck.

Provisions on Residence

The current Bill also seeks to secure the right of transgender persons to stay in their own home. Section 13(1) states that, “No transgender person shall be separated from parents or immediate family on the ground of being a transgender, except on an order of a competent court…” Sub-clause 3 of the same Section goes on to note, “Where any parent or a member of his immediate family is unable to take care of a transgender, the competent court shall […] direct such person to be placed in a rehabilitation centre” The framework created by the Bill compels a transgender person to either continue living with their family, or be placed in a rehabilitation centre. The section makes no distinction between a ‘minor’ and an adult and creates a rather intrusive mechanism of regulation where a transgender person cannot choose where to live.

The Parliamentary Standing Committee raised concerns that the two options provided by the Bill would not guarantee protection given the realities present on the ground. Several transgender persons face significant abuse at the hands of their own families who deny them the right to self-identity with a gender of their choosing and restrict their gender expression. The nature of the rehabilitation centres is also unknown. The Committee noted that several transgender persons choose not to live at home, but rather within transgender communities where they form an alternative network of friends and family.

The Committees observations on Section 13 raise interesting constitutional questions given the understanding of ‘autonomy’ articulated in the Right to Privacy (Puttaswamy) earlier this year. At the core of the Court’s rationale in Puttaswamy was the idea that privacy protects an individual’s liberty by securing ‘dignity’ and ‘autonomy’. Privacy in the Court’s articulation is the right to determine how one should exercise the freedoms guaranteed by the Constitution. Thus, ‘autonomy’ guarantees the right of every person to make essential choices which affect the course of life.” (⁋113) The State cannot interfere with an individual’s decisions concerning several core areas that the Court describes (non-exhaustively) as including family, marriage, procreation, and even what to eat and drink.

By compelling transgender persons to either live at home or in a State run rehabilitation centre Section 13 seems to deny them the right to choose the community they wish to live in. Deciding to live at home or not would fall within an ‘essential choice’ relating to ‘family’. And by denying transgender persons the third alternative (of living within a transgender community) the case could be made that the State is interfering with their ‘autonomy’ as protected under Puttaswamy.

Provisions on Begging

Lastly, Section 19(a) of the Bill makes it an offence to ‘compel or entice a transgender person’ to commit the act of ‘begging’. Transgender persons have a well-documented history of suffering abuse at the hands of anti-vagrancy provisions such as this, simply because begging is often the only choice of income generation available. As the Standing Committee noted, transgender persons are often booked under analogous ‘begging’ provisions merely because they are present in public places. While the provision only penalises the offence of compelling a transgender person to beg, there is a thin line between criminalising an individual for begging out of their own volition and compelling another to beg, with the latter often being used against the former.

In Ram Lakhan v State, Justice Ahmed examined this distinction in the context of the implicit defences to the offence of ‘begging’. He noted that when an individual begs out of the sheer compulsion to stay alive, he is protected under the defence of ‘necessity’. Where an individual is compelled to beg he does so under threat of violence and even death and is thus protected under the defence of ‘duress’. In both cases, the individual has no real choice, and it is this involuntariness that provides the basis for both the defence of ‘necessity’ and ‘duress’ making it a “distinction without a relevant difference”. In the course of practical policing there may be obvious benefits to the distinction between a begging racket and a person begging to prevent the onset of starvation. However, the inclusion of the legislative provision as it is currently framed may be counter-productive, especially given the existence of parallel anti-begging laws.

Conclusion

We have seen how the current Bill fails to understand the core principle of ‘self-identification’ in defining a transgender person, how it struggles with the question of non-discrimination, and takes an approach to residence and begging that doesn’t appreciate the nuances of the law and its relationship with the ground realities faced by transgender persons. Creating a regulatory framework for transgender persons is undoubtedly a complex and delicate task. Certain questions, such as legal recognition for transgender persons, and the prevention of discrimination pose questions that expose the limits of law as crafted within the male-female binary. On the points of residence and begging however, the Bill seems to lack an understanding of ground realities required to upturn generations of neglect towards transgender persons. Even in their best possible forms, these provisions would require sensitive administration to have a meaningful impact in the long run. Perhaps what is most troubling is that none of the criticisms raised in this piece or the last are new. Given the excellent platform created for the government with the NALSA verdict, the original Rajya Sabha Bill and the various committee reports, the fact that the Bill remains in its current form is lamentable.

 

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