Updated Guest Post Guidelines

The Indian Constitutional Law and Philosophy blog has updated its guest post guidelines. Those interested in submitting guest posts are strongly encouraged to read the Guidelines before submission. In particular, I would like to stress that:

A. Please send your submissions in the blog format. Specifically, please use hyperlinks to refer to sources, and not footnotes. Even more specifically, please do not submit research projects for consideration. If you want to convert a research project into a blog post, that’s absolutely fine, but please do that before you submit.

B. Please do not mention your institutional affiliation in your submission.

C. ICLP does not generally consider simultaneous submissions. The one exception to that rule is cross-posting on different forums, for which an accommodation can be made in certain circumstances. If you have submitted a piece to more than one forum with the objective of cross-posting, please mention that at the time of submission.

We will not be able to consider guest posts that do not follow these guidelines. Apologies in advance.

Notes from a Foreign Field: A Critique of the Kenyan High Court’s Homosexuality Judgment

In a judgment delivered last week (EG v Attorney-General), the High Court of Kenya upheld the criminalisation of same-sex relations under the Kenyan Constitution. At issue was the constitutionality of Sections 162 and 165 of the Kenyan Penal Code. Section 162 prohibits having “carnal knowledge of any person against the order of nature.” Section 165 criminalises acts of “gross indecency” between two male persons. In arguments that, by now, have attained a ring of familiarity, these provisions were challenged on the bases that they violated the rights to equality and non-discrimination, privacy and dignity, and health under the Kenyan Constitution, as well as being vague and over-broad.

In criticising the judgment of another country’s court, one must proceed with a degree of circumspection. Every nation’s constitutional jurisprudence is specific and unique, and the assumptions that one brings from a study of one’s own legal system may simply not hold. That said, however, on a reading of the judgment, the arguments advanced before the Kenyan High Court, and the manner in which the Court engaged with them have, by now, attained an almost universalistic cast: they have been litigated across a range of countries, and in supra-national forums, over many decades. It would, therefore, be almost remiss if one didn’t point out the ways in which the Kenyan High Court, with respect, appears to have delivered a seriously flawed judgment.

The Argument from Vagueness

It was argued before the Court that the phrases “carnal knowledge”, “against the order of nature”, and “gross indecency”, were impermissibly vague. This is, of course, a familiar argument, and readers will recall that in Kaushal, the Indian Supreme Court had dodged it entirely by recounting conflicting precedent, and then claiming that the question could be determined on a case-to-case basis. The Kenyan High Court, however, did a little better. Relying on precedent, it defined “carnal knowledge” as “sexual intercourse” (paragraph 270), “against the order of nature” as “anal sex” (paragraph 271), and “gross indecency” as contact between genital organs, or the breast and buttocks. (paragraph 273) Having defined each of these terms, the Court then held the two provisions were specific enough to pass constitutional muster.

That is fair enough in its own right, but notice that, having defined Section 162 in terms of a specific and particular sexual act, the implications of what that meant for the constitutionality of the statute could not, later, be dodged. However, when it came to the constitutional argument, this – as we shall see – was exactly what the Court did.

The Argument from Equality and Non-Discrimination

Article 27 of the Kenyan Constitution guarantees equality before law, and prohibits direct and indirect discrimination on a host of specified grounds, including race, sex, pregnancy, marital status, and so on. While interpreting the provision, the Kenyan High Court borrowed from the ECHR and South African jurisprudence, to (correctly) note that “unfair discrimination” occurs when a law “treats some people as inferior or less deserving of respect than others. It also occurs when a law or conduct perpetuates or does nothing to remedy existing disadvantages and marginalization.” (para 288) However, after stating the position of law, the Court went on to hold in paras 295 and 296 that Sections 162 and 165 did not violate the Constitution, because:

The substance of the Petitioners’ complaint is that the impugned provisions target the LGBTIQ community only. If we understood them correctly, their contestation is that the impugned provisions do not apply against heterosexuals … [O]ur reading of the challenged provisions suggests otherwise. The language of section 162 is clear. It   uses the words “Any person.” A natural and literal construction of these words leaves us with no doubt that the section does not target any particular group of persons.

Readers will recall that this is a very old and very familiar argument, which was also employed by the Supreme Court in Kaushal: the supposed distinction between “acts” and “identities”. According to this argument, anti-sodomy laws only target a specific set of sexual acts (in the present case, as defined by the Kenyan High Court, the act of anal sex), which could – in theory – be committed by heterosexuals or homosexuals. They do not target same-sex relations and, therefore, do not attract equality and non-discrimination provisions.

However, as old as this argument is, its basic flaws have also been pointed out multiple times. For example, as the US Supreme Court pointed out in Lawrence v Texas, when the act that is criminalised “is closely correlated with being homosexual … there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.” Likewise, in National Coalition, the South African Constitutional Court noted that “it is not the act of sodomy that is denounced by the law, but the so called sodomite who performs it.” The point, in other words, is that by criminalising a specific set of acts, anti-sodomy laws effectively construct the homosexual identity as legally salient, and go on to persecute it – a point that has, by now, been made in reams of scholarly literature. That point cannot be understood, however, if the statute is examined only on its own terms, and in the absence of the social context within which it is embedded and operates. And indeed, the text of Article 27 of the Kenyan Constitution does require the latter approach: by prohibiting both direct and indirect discrimination, it requires a court to examine the effect of a law (an enquiry that needs to be contextual), and not merely its formal language (which is what the Court limited itself to in the above paragraph).

In fact, when faced with Section 165, even the Court’s formal analysis began to border on the illogical. Section 165, it held, used the term “any male person”, and therefore targeted male persons in general, and not male persons of any particular sexual orientation. The Court seemed to miss the second half the provision, however, which uses the term “with another male person”! Now, when a statute criminalises “acts of gross indecency” only between two male persons, we don’t even need to go into questions of indirect discrimination – on its face, the statute clearly targets gay men.

That said, the Court did go on to consider questions of selective enforcement. After noting petitioners’ affidavits that set out various instances of discrimination and violence, the Court noted that “a party pleading violation of constitutional rights is at the very least expected to give credible evidence of the said violation and that it is not enough to merely plead and particularize a  violation.” In this case, “save for the allegations made in the Petition and the affidavits, no tangible evidence was given to support the allegations.” (paragraph 299)

But this is a bewildering argument. It is in the nature of social discrimination and prejudice that it is experiential: it takes the form of discrimination in access to services, taunts in public and private, physical violence, and so on. The only “tangible evidence” that can be produced in such cases is in the nature of the testimony of those affected by it – all of which was before the Court. And this is also the reason why there exist detailed sociological studies (see here) that discuss the interface between anti-sodomy laws and social norms. It is therefore unclear what kind of evidence the Court would have found satisfactory in this case (it did not specify).

The Argument from Privacy and Dignity

After moving quickly through some other arguments such as the right to health (I have refrained from analysing the Court’s analysis of this, because it appears to require access to the pleadings), the Court came to the final argument: that the provisions violated the rights to privacy and dignity. The Court made two arguments to reject this claim. First, it held that there was no conclusive evidence to support the proposition that homosexuals were “born that way.” (paragraph 393) And secondly, it held that the question of legalising same-sex marriage had been explicitly raised during the drafting of the Kenyan Constitution, and it had been answered in the negative, with Article 45 of the Constitution specifying that “every adult has the right to marry a person of the opposite sex.” According to the Court, allowing same-sex relations would “indirectly open the door for unions among persons of the same sex”, something that would conflict with Article 45. (para 397)

Let us take both arguments in turn. On the first issue, the Court is right that there exists some scholarly debate on the issue of whether sexual orientation is “innate” or whether it is a product of biological and social factors. Where the Court is wrong, however, is on the question of whether that matters at all. As this piece puts the point: “Why should gay rights depend on being born this way?” Indeed, the question of whether sexual orientation is innate or not is irrelevant to a privacy/dignity claim, where one of the core elements is that of decisional autonomy, and, in particular, the right to make intimate choices in freedom and without State coercion. Therefore, wherever upon the innate/choice spectrum sexuality may lie, its position upon that spectrum does not change the fact that it is protected by the constitutional rights to privacy and dignity.

The second argument is even more difficult to parse. Article 45 uses the specific term “marry“, and in the absence of a claim for same-sex marriage, it is difficult to see where the conflict is. The Court attempted to get around this by observing that Section 3(1) of the Marriage Act defined “marriage” as the “voluntary union between of a man and a woman.” For the second time in the judgment, however, the Court appears to have engaged in a spot of selective reading. Section 3(1), in full, reads: “Marriage is the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with this Act.” This means that the Court’s attempts to equate “marriage” and “unions” when it says that legalising same-sex relations would “indirectly open the door for unions among persons of the same sex” is a piece of casuistry: by its very terms, a same-sex union would not amount to a marriage unless it is registered under the Marriage Act; and therefore, there is absolutely no conflict with Article 45 of the Kenyan Constitution.

It is also impossible to ignore the Court’s own shifts in meaning through the judgment: while considering the equality and non-discrimination claim, the Court held that Sections 162 an 165 only criminalised certain “acts”, and not persons. But when it came to the privacy and dignity claims, the Court switched tack, and found a seeming conflict with Article 45 of the Kenyan Constitution on the assumption that what Sections 162 and 165 did do was to outlaw same-sex relations, and not simply anal sex.

Conclusion

Article 27 of the Kenyan Constitution is a striking provision. It outlaws both direct and indirect discrimination. It provides a host of grounds: race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language, or birth. And it uses the word “including” just after “ground”, signifying that the definition is open-ended. This makes it one of the most progressive anti-discrimination provisions in any Constitution, anywhere in the world.

It would seem the easiest and most natural of analytical feats to hold that sexual orientation falls within Article 27. The multiple grounds in connection are united by two things: they are either “personal characteristics”, or the products of personal and intimate choices. And they are united, further, by one overarching theme: they have been the historical and continuing sites of discrimination, used in order to identify and single out groups of people, and then target and attack them. On every conceivable understanding of this provision, therefore, sexual orientation clearly comes within its terms.

Why then did the judgment of the Kenyan High Court come out the way that it did? Reading it, I was in fact struck by the similarities that it had with Kaushal: both judgments are characterised by a similar unwillingness – an unwillingness not to justify or to defend discrimination, but simply to acknowledge that it even exists. This is what explains the fact that in both Koushal and in EG, ultimately, the Court dodged the hard questions by holding that the equality and non-discrimination provisions of the respective Constitutions didn’t even apply, because, after all, the only thing prohibited was a set of acts. The contextual analysis that was required to link these apparent “acts” to the stigmatisation and persecution of sexual minorities was the missing step that the Courts seemed either unwilling – or unable – to take.

But the future of Kaushal perhaps give hope that in Kenya as well, this is an error that shall soon be rectified.

The Uttarakhand High Court on Reservations and Article 16(1)

A Full Bench of the Uttarakhand High Court has just delivered an interesting judgment on the question of reservations and Article 16(1) of the Constitution. In Dhananjay Verma v State of Uttarakhand, the issue before the High Court was a straightforward one: could the State provide reservations for a group of people who fell outside the category of backward classes of citizens who were not adequately represented in State services? In the present case, reservations had been provided for sportspersons domiciled in the state of Uttarakhand. Sportspersons, admittedly, did not fall within the scope of Article 16(4), which specifically authorises reservations in State services. Consequently, were they entitled to reservations – and if so, under which Article of the Constitution?

On the constitutional issue, Chief Justice Ranganathan – writing for the Full Bench – held that reservations under the Constitution are authorised not merely by Article 16(4), but also by 16(1) [“equality of opportunity”]. The reasoning of the Full Bench was straightforward: it had been clearly established by N.M. Thomas and Indira Sawhney that Article 16(4) was not an exception to Article 16(1), but a facet – or a restatement – of it. This meant that 16(4) did nothing more than give concrete expression to the principle already contained within 16(1) – the principle of substantive equality. For this reason, even in the absence of 16(4), reservations could be sourced from 16(1)’s guarantee of equality of opportunity, as long as they met the basic threshold of reasonable classification.

While this line of reasoning – and the conclusion – seems unexceptionable, Courts in India have been remarkably hesitant over the years in affirming this logical extension of the Thomas-Sawhney principle. In the pre-Thomas days, of course, when Article 16(4) was considered to be an exception to Article 16(1), the situation was different: as the Patna High Court held in Sukhnandan Thakur (1955), over a strong dissent by the Chief Justice, reservations for ex-freedom fighters were unconstitutional, as they did not fall within the scope of Article 16(4). Two years after Thomas, though, the Punjab & Haryana High Court, in Jagdish Rai, took note of how Thomas had radically altered constitutional jurisprudence. It upheld reservations for ex-armed forces personnel, on the basis that under Article 16(1), a “just proportion of the posts should be given to those who, because of a peculiar handicap, may not stand a chance against those not so handicapped.” 

After that, however, the development of law – until Dhananjay Verma restated it yesterday – has been almost negligible. Part of the reason for this, I would suggest, is that judges have balked at the potentially radical consequences of this doctrine. Not only does it open up the scope of reservations to any group that is faced with structural or systemic barriers, but also, as I have argued in The Transformative Constitution:

“… if the principles underlying Article 16(4) are now ‘facets’ of Article 16(1), then it must follow that—as Galanter realized immediately after the judgement in N.M. Thomas was delivered—an individual who feels that she has been substantively disadvantaged by reason of her group membership has a right to approach the Court and demand that this inequality be mitigated. Of course, this radically transforms the relationship between individual and the State, when it comes to questions of structural inequalities and substantive barriers to access. After N.M. Thomas, the State does not merely have the power to remedy these inequalities, but has a duty to identify and remedy them—a duty for which it is answerable in a court.” 

As Karan Lahiri has argued before on this blog, the concept of a “power + duty” is not foreign to Indian constitutional jurisprudence. It would, however, radically alter our understanding of Article 16, even though it is a logical consequence of Thomas/Sawhney. And interestingly, the Uttarakhand High Court’s Full Bench appeared to have balked at that conclusion as well, setting up an interesting tension within the judgment. Because after holding that reservations could be sourced to Article 16(1), the High Court nonetheless refused to issue a mandamus to the government directing it to implement the quota for sportspersons, and instead left the issue to the discretion of the government.

There are a few things to note about this. The first is that this makes the judgment internally contradictory: the Full Bench could not both have held that reservations were sourced from Article 16(1), and that the issue remained purely discretionary. This is because Article 16(1) is framed as a right (to equality of opportunity), and a right whose enforcement is at the discretion of the State is no right at all. Secondly, the Ranganathan CJ justified this view by invoking the separation of powers, and observing that a mandamus to the State to implement reservations would amount to legislation. While the High Court’s concern about the separation of powers is to be genuinely appreciated in an age where it seems to matter less and less, on this point – with respect – it got its wires crossed. As Lahiri has explained, the duty aspect of “power + duty” does not refer to a duty to carve out reservations, but a duty to collect the facts and evidence that will show whether or not reservations are required (for a particular group), upon the principles of substantive equality. The mandamus, therefore, would be limited to just that – something well within the scope of the separation of powers – and not a mandamus to legislate. And lastly, in NALSA v Union of India, the Supreme Court did order reservations for the transgender community, after it found that the community was disadvantaged along a host of parametres. Consequently, there existed precedent even for a judicial order of reservations following upon the relevant finding of substantive disadvantage and denial of equality of opportunity within the meaning of Article 16(1).

Conclusion

The Uttarakhand High Court’s judgment is a welcome and lucid restatement of the law. Its clear holding that Article 16(1) is the constitutional source of reservations – and that groups other than the 16(4) groups can be granted reservation subject to reasonable classification – has been long overdue. That said, however, the High Court stopped short: carrying through with its reasoning, it also ought to have clarified that reservations form part of the right to substantive equality, and that 16(1) imposes a duty upon the State at least to conduct the necessary data-gathering exercise that would serve as a pre-requisite towards implementing the promise of substantive equality underlying Article 16.

Perhaps that will be the task of the Supreme Court, if this judgment is appealed.

The Supreme Court and Memes

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]

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Last week, I had written about the Punjab & Haryana High Court’s patently illegal order, where it made the quashing of an FIR conditional upon the accused paying a sum of Rs. 10 lakhs. This sort of behaviour appears to be infectious: today’s Supreme Court order directing Priyanka Sharma to “tender an apology” for sharing a meme about West Bengal CM Mamata Bannerjee is yet another example of the judiciary abdicating its role as the guardian of fundamental rights, and opting to play moral censor instead.

The facts are straightforward. Priyanka Sharma was arrested – and then sent to fourteen days’ judicial custody for sharing the following meme on Facebook:

This is, evidently, the head of CM Mamata Bannerjee photoshopped upon Priyanka Chopra’s costume at the met gala. The West Bengal police deemed it fit to book Sharma under Sections 66A and 67A of the IT Act, and Section 500 of the IPC. A moment’s reflection should make it clear that this entirely unsustainable. Section 66A was struck down as unconstitutional in March 2015, more than four years ago. Section 67A – the only non-bailable provision among these – which penalises transmitting images of sexually explicit acts or conduct, is inapplicable on the face of it. And it’s unclear how a piece of pure political satire attacks the reputation of the CM in a way that might bring it within the definition of defamation.

This, therefore, was not even remotely a case where remand was justified. When the petitioner approached the Supreme Court with a habeas corpus petition, therefore, there was an immediate opportunity to set things right. There was also a larger opportunity: this is not the first time that people have been arrested or remanded for making memes. Across India, for many years now, there have been reports of similar instances, where the police appear to act upon political directions, and the magistrates – the first lines of defence – act as rubber stamps. Clear orders from the Supreme Court, in this case, could have gone a long way in discouraging this practice.

Instead, what happened at the Court today makes for grim reading. Instead of limiting itself to its job – to see whether the remand was justified – the Court promptly entered into the merits of the case itself. According to Indira Banerjee J. , it was “wrong to put one person’s face on another” (welcome to the 21st century!). According to Sanjiv Khanna J., the problem was that Sharma was from “an opposite political party, and not a common citizen” (what does that have to do with bail?). The judges then dictated an order where, originally, Sharma’s release was made conditional upon her apologising (an order that would have been patently illegal for the same reasons that I have discussed in my previous post about the P&H High Court), but then recalled that, made her release unconditional, but nevertheless directed her to apologise. In addition, they left the “larger question” (of making memes?) open.

But in some ways, this is even worse. Presumably, if Sharma refuses to apologise, it will amount to contempt of court, and she will be subjected to prosecution. Effectively, then, the Court has told her to apologise or face the possibility of jail time. This, however, is nothing other than compelled speech: forcing a person to say something that they would rather not, on the thread of sanction. And compelled speech is as serious a violation of Article 19(1)(a) as limitations upon expression. In other words, this is yet another example of (lawless) judicial censorship – a trend begun in the days of Dipak Misra J., and now carried on by worthy successors – which finds no basis in the Constitution.

It hardly needs to be stated – yet again – that none of this had anything to do with the question of whether or not Sharma should have been granted bail.

At a more deeper level, today’s hearing reveals yet again the sad truth that when it comes to free speech issues, judges seem simply incapable of applying the law and the Constitution. The standard they do seem to apply is “if I don’t like it, it must be wrong, and I’m going to do something about it.” That would be fine if they were sitting as family elders mediating a domestic quarrel; it certainly isn’t fine when they are sitting as judges in a constitutional court.

This almost visceral unease with any form of expression that seems to go beyond judges’ personal comfort zone is evident from Banerjee J.’s anguished “it is wrong to put one person’s face upon another”, and her Delphic “free speech is non-negotiable, but it ends where the rights of others begin.” On the second point, apart from the fact that no “right” of anybody else was involved in this case (not even the “right to reputation” that Dipak Misra J. bizarrely raised up to the status of Article 21 in the criminal defamation case), it’s also important to note – on a point of law – that unlike many other Constitutions, the Indian Constitution does not limit free speech on the basis of a generic “rights of others” clause; Article 19(2) is entirely specific about the grounds on which free speech can be restricted, and it is not open to the Court to traverse beyond them. And on the first, Banerjee J.’s reaction to the arcane concept of photoshop is itself worthy of a meme, but since the legality of that is now in doubt until the Supreme Court hears the “larger issue”, we must make do with a generic meme:

Last week, it was the P&H High Court saying “[unsustainable criminal] charges against you will be quashed, but pay Rs. 10 lakhs for the privilege.” Today, it is the Supreme Court saying, “your [illegal] remand will be quashed, but you must apologise.” It remains to be seen what novel way the courts will find next week to show us that they couldn’t care less about following the law and the Constitution on issues of free speech.

Reservations in Promotions and the Idea of Efficiency: B.K. Pavitra v Union of India

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]

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This morning, a two-judge bench of the Supreme Court delivered a fascinating judgment in B.K. Pavitra v Union of India, concerning the relationship between reservations in promotions for Scheduled Castes and Scheduled Tribes [SCs/STs], and issues of seniority. The facts were as follows: in 2002, the state of Karnataka enacted a law stipulating – in effect – that consequential seniority would follow upon the promotions of SC/ST employees. To put it in simple language: if a reserved category employee (A) was promoted before a more senior colleague (B) by virtue of A belonging to the reserved category, then – in the higher level post – A would now be senior to B (when, eventually, the latter would get promoted as well).

Readers familiar with reservation will know that this issue – bitterly contested over many decades – was eventually set at rest by amendments to Article 16(4A) of the Constitution, that authorised consequential seniority in cases of reservations in promotions. In Nagaraj, while upholding the amendment in question, a Constitution Bench of the Supreme Court also held that the government was obligated to first collect data demonstrating “inadequacy” of SC/ST representation in the services, their “backwardness”, and the impact on “efficiency”, before it could enact laws in accordance with Article 16(4A). In 2017, the Supreme Court then found that the Karnataka law did not comply with Nagaraj, and was therefore unconstitutional (B.K. Pavitra – I). In response, the Karnataka government commissioned a study [“the Ratna Prabha Committee Report”], and based on the results of the study, (basically) re-enacted the earlier law.

The constitutional challenge to the law raised a host of issues. It was argued that Karnataka had impermissibly “overruled” the judgment in Pavitra – I by re-enacting the law that had been held to be unconstitutional, and doing it retroactively, to boot. It was argued that the bill had been wrongly sent for Presidential assent. It was argued that the study on the basis of which the law was passed was flawed. And it was argued that the law was unconstitutional because it failed to exclude the “creamy layer.” In this essay, I will not discuss all of the above issues: on some points, such as legislative overruling, the Court essentially synthesised and restated existing law; readers interested in the subject may read the judgment for a clear and lucid exposition of the principles. What I want to focus on, rather, are some of the novel issues that arose, as well as the novel treatment that the Court accorded to older issues.

Standards of Judicial Review

As the Chandrachud J. correctly observed at the beginning of the judgment, this was the first time in the post-Nagaraj era that the Court was explicitly asked to rule upon the State’s data-gathering exercise, which was now a constitutional pre-requisite for any law aiming to implement reservations (with consequential seniority) in promotions (paragraph 4).

The petitioners argued that the Ratna Prabha Committee Report was flawed because, inter alia, its methodology was either incorrect or insufficient (in many respects, such as measuring inadequacy against sanctioned posts instead of filled posts, that it was not cadre-based, and so on), and because the reports on efficiency were only general in nature. The Respondents contended, on the other hand, that these questions were within the “subjective satisfaction” of the State (as had been held in Indra Sawhney), and that it was the State that was in the best position to “define and measure merit.”

In response, the Court noted that, as a preliminary point, it would have to set down the parametres of judicial review in a case like this. These parametres, it held, would be based on two mutually reinforcing principles: the first was the general principle that the executive was best aware of prevailing conditions. This is nothing more than the familiar presumption of constitutionality. The second principle was more specific: in the context of reservations, questions such as adequacy of representation would be left, at the first instance, to the subjective satisfaction of the State. This was because, as Chandrachud J. noted, the State was tasked with promoting substantive equality under the Constitution through the vehicle of reservations. (paragraph 95). Applying these principles to the Ratna Prabha Committee Report, Chandrachud J. observed that the Report was based on sampling methods that were broadly accepted among social scientists. There was no evidence that extraneous or irrelevant material had been used. Beyond that assessment, it was not for the Court to hold that the Report was invalid because the best (or substantially better) methods were available, that had not been used. And on the basis of the Report, it was open to the legislature to hold that a disparity between the population percentage of SC/STs, and their representation in the services, was the basis for determining “inadequacy of representation.”

A few things follow from this discussion. The first is that the Court adopted a deferential attitude towards the State’s collection of data, and its inferences from the data it had collected. The reason for this, the Court held, that the purpose of the exercise was for the legislature to be able to effectively advance the constitutional goal of substantive equality. In other words, the Court recognised the crucial point that constitutional goals are to be advanced by all three wings of the State, and that in different contexts, the primary responsibility for that lies upon different wings. In the specific case of reservations, that responsibility has been placed upon the legislature. For this reason, in the domain of reservations, the Court would only assess the State’s subjective satisfaction on the deferential threshold of rationality and non-arbitrariness. Note, also, what follows: this principle of deference will not apply to every situation where a law is challenged, and the State invokes data collection and analysis to justify itself. In a case where – for example – the challenge is on the basis of a violation of civil rights, the Court may well elect to take on a more interventionist approach to the reliability of the data. In the specific context of reservations, though, given the constitutional text, and the clear responsibility of the State, this the Court’s approach has much to recommend it.

Interrogating Efficiency

Now, of course, it might be argued that the Court ought to have been more interventionist, because the case did indeed involve a violation of rights – the Article 16(1) equality rights of non-SC/ST candidates. This point was addressed by Chandrachud J. in the subsequent section where, relying upon the judgments in N.M. Thomas and Subba Rao J.’s dissenting opinion in Devadasan, he correctly observed that it was the principle of substantive equality – and not formal equality – that underlay the Constitution’s equality code. As Chandrachud J. observed, at paragraph 107:

There is substantial evidence that the members of the Constituent Assembly recognised that (i) Indian society suffered from deep structural inequalities; and (ii) the Constitution would serve as a transformative document to overcome them. One method of overcoming these inequalities is reservations for the SCs and STs in the legislatures and state services.

Readers may consult the following paragraphs for an account of the Constituent Assembly Debates, the the place of reservations in advancing the Constitution’s transformative character. This discussion, however, segued into what is perhaps the most fascinating part of the judgment. Recall that, according to Nagaraj, the government was also required to collect data on whether reservations in promotion would affect “efficiency” in services (as per the requirement of Article 335). And one of the bases on which the petitioners attacked the Ratna Prabha Committee Report was precisely that it had failed to do so.

In response, Chandrachud J. undertook a critique of the concept of “efficiency” itself. In paragraph 119, he observed that:

The Constitution does not define what the framers meant by the phrase efficiency of administration. Article 335 cannot be construed on the basis of a stereotypical assumption that roster point promotees drawn from the SCs and STs are not efficient or that efficiency is reduced by appointing them. This is stereotypical because it masks deep rooted social prejudice. The benchmark for the efficiency of administration is not some disembodied, abstract ideal measured by the performance of a qualified open category candidate. Efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people. If, as we hold, the Constitution mandates realisation of substantive equality in the engagement of the fundamental rights with the directive principles, inclusion together with the recognition of the plurality and diversity of the nation constitutes a valid constitutional basis for defining efficiency. Our benchmarks will define our outcomes. If this benchmark of efficiency is grounded in exclusion, it will produce a pattern of governance which is skewed against the marginalised. If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce a just social order. Otherwise, our past will haunt the inability of our society to move away from being deeply unequal to one which is founded on liberty and fraternity. Hence, while interpreting Article 335, it is necessary to liberate the concept of efficiency from a one sided approach which ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration of the Union or of a State.

This needs some careful unpacking. What Chandrachud J. is effectively arguing against here is an account of “efficiency” that sees it in purely instrumental terms, and devoid of any relationship with the socio-economic context within which such accounts are inevitably embedded. It is an account that is based in a deeper idea of philosophical individualism, where there exist certain mechanisms – such as standardised tests – that measure “individual merit”, independent of an individual’s group affiliation. This is what efficiency is about, and it must be set off and “balanced” against group-based affirmative action. However, this account has been challenged throughout our history (starting with Subba Rao J.’s dissenting opinion in Devadasan), and here Chandrachud J. takes up the challenge. At the heart of this reasoning is the acknowledgment that assumptions about what people are (i.e., their “merit” or “efficiency”) cannot be separated from what has been done to them (i.e., structural and social privileges, often the product of centuries of discrimination). And ultimately, constitutional values dictate that both must be taken into account. Thus, as Chandrachud J. observed in paragraph 126:

Thus, a meritorious candidate is not merely one who is talented or successful but also one whose appointment fulfils the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration.

On these bases – and on the basis of the Report’s finding that there had been no adverse impact even on instrumental efficiency as the data showed, this ground of challenge was rejected as well.

Creamy Layer

A final point: it was argued that the law was unconstitutional because – after Jarnail Singh – it was bound to take into account the exclusion of the creamy layer among SC/STs. The Court correctly observed that the question of creamy layer did not arise at the point of promotions and consequential seniority. It is worth pointing out once more, however, that Jarnail Singh’s finding on this respect is somewhat suspect: the reason why the creamy layer doctrine is not supposed to apply to SCs/STs is because – historically – they have been oppressed by virtue of their group identity. The concept of the creamy layer makes sense if we assume that it is possible to escape one’s group identity (through prosperity or other ways of social advancement, for example). However, when oppression is defined by characteristics such as social stigma (as was well-recognised by Ambedkar and other framers of the Constitution), then the very concept of a “creamy layer” within that group does not make sense. This aspect of Jarnail Singh, it is to be hoped, will be reconsidered at some point.

Conclusion

Today’s judgment is a fascinating read, particularly because of the manner in which it moves between different levels of reasoning – from concrete issues of service jurisprudence to the abstract principles of substantive equality and the idea of merit – and how it weaves them together in one coherent vision of transformative constitutionalism. The Court’s finding on the substantive question – the constitutionality of the seniority law – is informed by its reasoning about the abstract principles that underly the Constitution’s equality code; in other words, the Court believes that the Constitution ideals make a difference, and it explains precisely how it does so. And moreover, it joins an important tradition of judicial reasoning on affirmative action that does not take concepts of “merit” and “efficiency” as self-evident, but subjects them to critical evaluation, from the perspective of the original constitutional vision, noting how they are embedded within our social realities (and inequalities). This tradition of reasoning has, so far, been underdeveloped in our constitutional history – and today’s judgment marks an important milestone in its evolution.

The Lawyers’ Collective Order and the Rise of Fourth-Phase PIL

Earlier today, a two-judge bench of the Supreme Court – consisting of the Chief Justice and Deepak Gupta J. – issued notice in a PIL filed by an organisation styling itself “Lawyers Voice.” The petition asked the Court to constitute a Special Investigating Team that would investigate (under Court supervision) “into the apparent illegality and non-action of the government in registering IPC, PC Act, PMLA, Income Tax Act and other offences” (sic) against Indira Jaising, Anand Grover, and the Lawyers Collective. While providing no specific details, the petition alleged that “various malpractices” had been committed by the Respondents (the Ford Foundation and its CIA connections also features in the petition). In a press release released shortly afterwards, Indira Jaising pointed out various irregularities in the manner in which the PIL was listed and heard before the Court today, and stated that these proceedings were initiated to harass her because of her support for the complainant in the case involving allegations of sexual harassment against the CJI.

That apart, the decision of today’s bench to issue notice in the case raises a few crucial questions:

A. Maintainability: After three-and-a-half decades of PIL, one basic legal point remains clear: because it is filed under Article 32 of the Constitution, a PIL is maintainable only if there is a violation of one or more of the fundamental rights guaranteed under Part III of the Constitution. No matter how much the requirements of locus are loosened and how expansively Article 142 is interpreted, this threshold bar continues to exist, and cannot be wished away by the Court. With that in mind, what fundamental right of the petitioner-NGO – or of anyone else for that matter – has been violated by the government’s alleged inaction in prosecuting Indira Jaising, Anand Grover, or the Lawyers Collective? The petition is silent on this point, and for good reason: there is none. But if the PIL is non-maintainable, why has the Supreme Court issued notice on it?

B. Threshold for an SIT Investigation: In the Judge Loya Case, the threshold for ordering a Court-monitored investigation was made very clear, and a high bar was set – a point that I made recently, in the context of the Supreme Court not following that very precedent in the Utsav Bains Case. Recall that in Loya, notice was not issued, and the petition was dismissed on the basis of pleadings and oral arguments. Clearly, therefore, precedent dictates that the notice threshold in cases like these is a high one as well (a position that makes eminent sense under classic separation of powers theory, where the job of carrying on investigations is not that of the court). Why then has the Court refused to follow Loya twice in two weeks?

C. The statutory scheme: Leading on from the previous point, there is a specific procedure to be followed in case a crime has been committed, and it appears that the police is not registering an FIR: and that is to approach the Magistrate under S. 156(3) of the Code of Criminal Procedure. Admittedly, in “special cases”, the Supreme Court has ordered investigations in PILs before, without this requirement being fulfilled (see Abhinav Sekhri’s critique here); in this case, however, given points A and B above, there surely ought to have been something showing that the PIL-petitioner had tried the 156(3) route, and failed – and if not, then reasons why this was a special case where the normal procedure needed to be bypassed. However, the petition does not contain even a whisper about any of this.

D. Why not the High Court?: As the PIL itself points out, there are ongoing proceedings before the High Court of Bombay pertaining to the cancellation of Lawyers Collective’s FCRA license by the government. That being the case, why was this petition not filed before the Bombay High Court? More particularly, a few weeks ago, when the Aadhaar Ordinance was challenged before the Supreme Court, the Chief Justice dismissed it and asked the petitioners to approach a High Court (this was a constitutional challenge, no less). Here, on the other hand, notice is issued in a PIL where at least a part of the bundle of facts upon which it (purports to be) based is already in litigation before the Bombay High Court. Is there no obligation of basic intellectual consistency?

At a deeper level, today’s PIL – and the Court’s decision to issue notice – marks the high point of what I propose to call “fourth-phase PIL.” I use the term “fourth-phase PIL” in response to classic PIL theory, which divides the evolution of the jurisdiction into three phases: first phase (1980s), where PIL was a tool to vindicate the rights of the vulnerable and the marginalised; second phase (1990s), when it was primarily used by the court to tackle environmental (and other related issues); and third phase (2000s), when the Court used PILs to intervene into issues of corruption and secure good governance.

I define fourth-phase PIL as follows:

The use of the court as a vehicle, through public interest litigation and the procedural and substantive flexibilities that it allows, to restrict or curtail individual rights guaranteed under Part III of the Constitution, and/or to achieve political goals that are blocked by normal political routes, and/or to stymie existing legal proceedings or bypass statutory process.

While fourth-phase PILs are often filed by political parties or their proxies (a prominent contemporary PIL-filer, for example, is also the spokesperson of a national party), this need not always be the case. Recent examples of fourth-phase PILs include the national anthem proceedings, the NRC proceedings, and the attempts to have Aadhaar linked to SIM cards and to voter ID cards through judicial fiat; readers who have followed the Supreme Court over the last couple of years will doubtless be able to add many more.

Fourth-phase PIL takes to the extreme the various procedural and substantive innovations that were evolved – in very different contexts – in the first three phases. From the first phase, it takes the loosening of locus standi (which was done so that people who were not able to access the court could be represented), and turns it into an absence of locus standi: now, it seems, anyone can file a PIL about anything, without having to demonstrate that there exists an affected party unable to approach the court. From the second phase, it takes the elongation of Part III provisions, and transforms them into an irrelevance: now, a PIL petitioner need not even mention in their petition how a Part III right has been violated. And from the third phase, it takes the expansion of Article 142, and transforms it into a power vaster than empires: there is now no question about separation of powers, institutional capacity, or judicial encroachment. In fact, if fourth-phase PIL was to be given a moniker, it should be titled “Article 142 litigation”: it is as if the only article in the Constitution is Article 142. There is no Article 32, no Part III (not even Article 21), and no basic structure separation of powers, once fourth-phase PIL is engaged.

Today’s proceedings exemplify the place that fourth-phase PIL has taken us to. An NGO approaches the Supreme Court, asking it to order the government to take criminal action against another NGO (and two lawyers). It does not show locus, it does not show how the petition is maintainable, it does not explain why the Supreme Court should take it up while the Bombay High Court considers an overlapping petition, it provides no justification for shredding the existing statutory scheme, and it provides no documentary evidence. In any other court in the world, this petition would have been dismissed with punitive costs. The Chief Justice of India, on the other hand, issues notice.

But perhaps that’s why fourth-phase PIL/Article 142 litigation is a unique phenomenon in global constitutionalism.

Freedom of Speech at the High Courts: Contrasting Decisions from P&H and Bombay

Two decisions, delivered over the last few days, exemplify how the terrain of free speech remains a contested field in Indian constitutional law.

Burdening Legal Speech: Vishal Dadlani and the P&H High Court

Vishal Dadlani v State of Haryana came to the Punjab & Haryana High Court as a quashing petition. FIRs had been registered against Vishal Dadlani and Tehseen Poonawala under Sections 153A (promoting enmity between classes), 295A (hurting religious sentiments), and 509 (insulting the modesty of a woman) of the IPC, and 66E of the IT Act (publishing images of private body parts). These FIRs arose out an event in 2016, when the Haryana Legislative Assembly invited Tarun Sagar, a Jain monk, to deliver an address; according to the tenets of his faith, he did so in the nude. On Twitter, Dadlani criticised this strongly, focusing his ire upon the mixing of politics and religion. After getting into acrimonious arguments with Tarun Sagar’s followers, Dadlani apologised.

Meanwhile, Tehseen Poonawala criticised the prevalence of sartorial double standards, asking “why is this naked man ‘holy’ even if he walks nude in the state assembly while a woman would be termed a slut?” To drive the point home, he also posted a photograph of a “half-naked woman”, placed alongside a photograph of Tarun Sagar. From a perusal of the tweets, it appears that at least partially, Dadlani and Poonawala’s outrage was triggered by Tarun Sagar making various remarks about the role and place of women in society, such as asking wives to “accept the discipline” imposed by husbands.

Counsel for both petitioners argued that none of the offences were made out, even prima facie (counsel for Dadlani made the additional point that he had apologised directly to Tarun Sagar, and Sagar had accepted his apology; consequently, nobody from the Jain community had taken any action – the complainant at whose behest the FIR was registered was an outsider).

After extracting the submissions of both parties (including relevant precedent), the High Court held that the quashing petitions ought to be allowed, for (broadly) the following reasons: first, none of the followers of the Jain religion had initiated proceedings, or had come forward as witnesses; secondly, it had been long-accepted in Indian jurisprudence that the right to free speech included the right to express socially and culturally unpopular or unorthodox views; thirdly, the mens rea required for offences under Sections 153A and 295A had not been demonstrated; and fourthly, after two and a half years, the State had not granted sanction to prosecute, clearly demonstrating its own lack of interest in pursuing the case.

The High Court, therefore, announced that it would quash the FIRs; but in the last two pages of the judgment, it suddenly veered off into unorthodox territory. The Court noted that “justice” would also have to be done to the Jain community; it then observed:

If the contribution made by the petitioners towards poor people is compared to the contribution made by Jain Muni Tarun Sagar, it is apparent that the petitioners have played a mischief to gain publicity without having much to their credit. In recent years, the country has witnessed large scale violent protest on incitement made by using social media platform, thereby, causing extensive damage to public property. However, the preachings of Jain Muni Tarun Sagar about non-violence, sacrifices and forgiveness, has avoided repetition of such like protest. Therefore, it would be appropriate to impose the costs of 10 lacs each on the petitioner – Vishal Dadlani and the petitioner – Tehseen Poonawala, so that in future they may not mock at any head of a religious sect, just to gain publicity on social media like Twitter. (p. 38)

In other words, therefore, the High Court made the quashing of the FIRs conditional upon both petitioners paying Rs. 10 lakhs as costs.

Now, a few observations need to be made about this order. The first is that this order is incoherent. Effectively, it tells the petitioners, “you have committed no crime, but unless you pay Rs 10 lakhs, criminal proceedings against you will continue.” This cannot be. Once the High Court returned the legal finding that the offences under Sections 153A, 295A, 509 IPC and 66E were not made out even prima facie, then it followed from that finding that the FIRs would have to stand quashed. Accepting the alternative proposition would mean that if the petitioners refused to pay Rs. 10 lakhs, then the FIRs would continue and the case would go to the stage of charge and trial despite a judgment by the High Court stating that the offences had not been made out. This would be patently absurd – what, exactly, would a trial court be expected to do when faced with a situation like this?

Apart from being absurd, the High Court’s order is also illegal. Once it had found that the offences had not been made out, the logical consequence to that finding was that the petitioners had engaged in legal speech (however ill-thought, crass, or crude that speech might have turned out to be). Levying a financial penalty of Rs 10 lakhs upon that speech, then, is a classic case of judicial censorship: penalising speech in the absence of a law. As I have argued before at some length, this is, quite simply, impermissible under the Constitution. The only method through which speech can be penalised is through a State-made law (which is subject to judicial review) Under Article 19(2), as held in both Mirajkar and (more directly) in Rupa Ashok Hurra, judicial orders do not count as law.

But apart from being absurd and illegal, the High Court’s order also betrays some fundamental misunderstandings about Indian free speech jurisprudence, and the point of having a constitutional right to free speech in the first place. By noting that the purpose of its order is to deter people from mocking “at any head of a religious sect, just to gain publicity on social media like Twitter“, the Court lays down an extraordinarily broad and vague standard for the future. Recall that this comes after the Court had found that there was no mens rea to hurt religious sentiments or provoke enmity between classes; effectively, therefore, individuals who make comments that can be construed as “mocking the head of a religious sect”, and whose motives can be construed to be “just to gain publicity on social media”, can expect to be slapped with costs of Rs 10 lakhs. If this was the standard set out in a law, it would be immediately struck down as unconstitutional; indeed, in Shreya Singhal, similar phrases such as “grossly offensive” and “menacing” were struck down as being overly broad and vague. As the Supreme Court in Shreya Singhal understood, provisions such as these create a “chilling effect”: they blur the line between what is permitted and what is prohibited to such an extent, that people begin to self-censor, in order to steer far clear of that (now) invisible line.

There are two more serious mistakes in the High Court’s reasoning. The first is an implicit comparison it makes between what Tarun Sagar has done for the poor, and what the petitioners have (or have not) done. This is entirely irrelevant: the Indian Constitution does not assign value to free speech based upon the social qualities of the speaker. Setting up a hierarchy of speakers, where those who have done social work have more free speech rights than those who haven’t, is entirely inconsistent with the very concept of a right, apart from failing to understand that the Constitution protects free speech for reasons flowing from individual self-determination, democracy, and the search for truth, none of which have anything to do with the qualities of the speaker. And secondly, the High Court’s reference to “large scale violent protest” because of “incitement” on social media sanctifies the heckler’s veto: it places the burden of preventing riots on those who speak, rather than upon those who riot. That cannot be, as the Supreme Court held in Rangarajan.

It should therefore be clear that, both from the perspective of legality, and form the perspective of the deeper constitutional principles underlying the free speech guarantee, the High Court’s order is unsustainable, and ought to be promptly overturned on appeal. 

Defamation and Injunctions: The Bombay High Court

Meanwhile, in Lodha Developers Ltd v Krishnaraj Rao, the Bombay High Court considered a (typical) injunction application in a defamation case. The plaintiff was a real estate developer. Defendant No. 1 was a journalist, who had written critically about the plaintiff. Defendant Nos. 2 and 3 were purchasers who bought flats from the Plaintiff; they found the Plaintiff’s conduct and quality unsatisfactory, and criticised it online (according to the Plaintiff, it “went viral”). The plaintiff then filed a defamation suit. The defendants (as the Court noted in paragraph 11, pleaded the defence of justification (i.e., truth)). In this particular proceeding, however, the injunction was requested only against Defendant No. 1, and for five specific statements: an allegation that the plaintiff was “in connivance” with the MMRDA officials, that there was “golmaal”, that “norms” had been thrown to the winds, that “banks are part of the Lodha scam”, and that there was no occupation certificate.

Gautam Patel J. refused to grant relief for any of the five statements. His reasoning repays close study. For each of the statements, he began by carefully distinguishing whether they fell in the category of “facts”, or of “comments”. This distinction is crucial to defamation law, but is (unfortunately) far too often ignored in practice. The reason for this is that there are two separate defences in the common law of defamation: justification, and fair comment. Justification (or truth) applies to factual statements. Fair comment applies to opinion; now, contrary to what it sounds at first blush, the term “fair comment” does not mean that the comment must be “fair”, but merely that it must be founded on some factual basis that is of relevance to it. Once the factual basis is set out – and it is made clear that the comment pertains to those set of facts – then the defence applies, even though the comment itself might be hyperbolic or excessively dramatic. The reason for this is that once the reader has the facts in front of her, and has the comment, then she is best-positioned to judge whether the comment is warranted on the basis of the facts or not.

Applying this distinction, Patel J. noted that the first, second, and fourth statements were comments (and for the second comment, the Defendant promised not to repeat it without setting out his facts); and the third and fifth were factual statements. For the first and fourth statements, Patel J. held that the Defendant had set out the factual context from which he had drawn his inferences. Consequently, no injunction could be granted.

This brought the Court to the third and fifth statements, where the defence of justification (truth) was pleaded. The Court then considered the legal standard that was to apply when an injunction was sought on the basis of disputed facts. On a review of precedent (paragraph 26 onwards), the Court correctly concluded that at interim stage, an injunction could only be granted if the defences were bound to fail at trial. Consequently, as long as the Defendant produced some material in defence of her factual statements, the case would go to trial, but at the interim stage, she would not be injuncted.

This is an important observation, for many reasons. First, it adds further heft to the Delhi High Court’s detailed judgment in Tata Sons v Greenpeace, where, after a detailed survey of the common law of defamation, and in the context of Article 19(1)(a) of the Constitution, Justice Ravindra Bhat had arrived at an identical conclusion. Secondly, it comes at a particularly important time, when broad-based injunctions, granted at the ex-parte ad-interim stage, are becoming increasingly common (the Tejaswi Surya gag order, which was later set aside by the Karnataka High Court, being the latest example). By restating the law, Patel J. reminds us that at the interim stage, the law of defamation is actually tilted towards the speaker (as it should be, because the correct remedy for defamation, being a tortious offence, is compensation, not gagging). It is not for judges to take a look at the plaint, find themselves shocked at the seeming attacks upon a person’s reputation, and immediately proceed to issue gag orders; rather, it is for judges to remember that the rule is that speech is to be met with counter-speech pending trial, and a gag is the very rare exception. And thirdly, the judgment reveals the flaws in the reasoning of Shri Maheshwar Hydel Power Corporation v Chitroopa Palit, a 2004 judgment single-judge judgment of the Bombay High Court, which also concerned defamation and injunctions. In Palit, however, the Court articulated a significantly higher threshold at the interim stage, including (among other things) a requirement for the defendant to show public interest (note that “public interest” is a requirement under criminal defamation law, not civil). In the present case, Patel J. observed that even the tests under Palit had been satisfied; his own articulation of the standard, however, as we have seen, falls on the Tata Sons v Greenpeace side, and raises the hope that in due course, Palit will become an outlier judgment, as more and more cases endorse the (correct) Greenpeace view.

One final point: it was argued before the Court that the harm had been accentuated because the defamatory statements had gone viral on social media. This form of argument – that holds that legal standards protecting speech should be diluted based on the medium – is a familiar one; recall that it was made in Shreya Singhal as well, and the judgment itself is unclear on what stand it takes. Patel J., however, was unequivocal: the medium made no difference to the legal and constitutional standards at issue. Indeed, he made the (additional) important observation that the plurality of voices in the online world made the requirement of tolerating opposed views more urgent, rather than less.

Conclusion

The contrasting judgments – and approaches – taken by the Punjab & Haryana and the Bombay High Courts remind us that free speech adjudication remains highly judge-centric. A part of the reason for this seems to be that the separation between speech that we perceive to be irritating, value-less, mischievous – in a word, rubbish – and speech that is illegal, is still not embedded firmly enough in our jurisprudence. This is not necessarily a criticism: notwithstanding (the quotation attributed to) Voltaire, it is but human to allow one’s contempt for a speaker, or for what they are saying, to get in the way of a dispassionate constitutional analysis. That is what seems to have happened in the P&H case, with the pointed references to the petitioners’ (lack of) social work, and their desire for fifteen minutes of fame on twitter. But the future of Indian free speech jurisprudence depends upon judges being able to make that distinction; hopefully, they will have that opportunity soon enough.

A Question of Power

On Tuesday, the complainant in the sexual harassment case against the Chief Justice of India, decided against participating further in the proceedings of the In-House Enquiry being conducted by three sitting judges of the Supreme Court. In a press release, the complainant set out for reasons for her decision: that she was not allowed to have her lawyer accompanying her, that there were no video or audio recordings of the Committee proceedings, that she had not been given copies of her depositions, and that she had not been informed of the procedure that the Committee was following.

At this point, it is unclear what will happen. Technically, having heard the complainant, the In-House Committee could now proceed without her, examine any witnesses it deems fit, and come to its conclusions ex parte. At the same time, the legitimacy of these proceedings – which have been of an informal and ad hoc character so far (more on that anon) – cannot but be significantly damaged by the public exit of the complainant herself.

While we wait to see how events unfold, it is perhaps an apt moment to recall how it is that we got here. But before that, a few points need to be made.

Structures and Institutions

Sexual harassment is bound up with questions of power. Power operates along multiple axes in the ways that it structures our lives and relationships, and in the ways that it distorts them. It is of little surprise, then, that cases of sexual harassment (of varying degrees of severity) so often flow out of situations where differences in power are at their starkest, and the possibilities of abuse are rife: between teachers and students, employers and employees, the rich and the poor, army-men and occupied populations, and so on. And structuring all these relationships is the institution of patriarchy, that, in its own way, distorts relationships even in the absence of these more obvious markers of power. For example, the sense of impunity that society often attaches to male conduct (“boys will be boys”), accompanied by the corresponding sense of stigma attached to those at the receiving end of sexual harassment, skews power dynamics right from the outset.

Why is this important? It is important because the way in which power dynamics frame and characterise sexual harassment cannot but spill over into the structures of accountability that are set up to address them. If those structures of accountability do not take into account this fact, and do not seek to pro-actively mitigate its effects, accountability itself will remain a mirage. To put it in simple terms: when two deeply unequal parties are brought before a tribunal, where the powerful stands as the accused and the powerless as the accuser, “neutral” rules that treat them as formally equal will invariably perpetuate the initial injustice.

Progressive anti-sexual harassment laws recognise this. For example, the famous Vishaka judgment recommended that complaint committees should involve third parties (either an NGO or someone else familiar with issues of sexual harassment) precisely to “prevent the possibility of any undue pressure or influence from senior levels [of the organisation].” The 2013 POSH Act requires that an internal complaints committee be headed by a senior woman employee. Among other things, it allows for a complainant to ask for a transfer to another workplace, while the enquiry is pending. These are all provisions (and there are others) that specifically recognise the inequalities of power that seep into accountability processes, and the need to design structures that can adequately address them.

The Background

Keeping this framework at the back of our minds, let us now look at what has transpired in this case. The facts are well-known, and have been discussed threadbare in the public domain: on the (Saturday) morning that the allegations broke, the Chief Justice convened a bench of himself and two other judges (Arun Mishra and Sanjiv Khanna JJ). The government’s top law officers (the Attorney General and the Solicitor General) were present in Court. From the bench, the Chief Justice proclaimed his innocence, declared that the allegations were part of a conspiracy to destabilise the judiciary, and pointed to the criminal antecedents of the complainant and her family; in this, he was supported by both the law officers.

There has been extensive criticism – including by the SCBA and the SCAORA – on the procedural improprieties of this hearing. However, there is something even more important here: the deeply unequal power relations that structured the relationship between the accuser (a former employee) and the accused (the Chief Justice of India) were distorted even further when the latter decided to ascend the judicial pulpit to exonerate himself, with the support of two other judges of the Supreme Court, as well as the government’s top two law officers. A blanket denial of allegations, an attack upon the character of the complainant, and references to a large conspiracy are all common responses in cases like this; not everyone accused of sexual harassment, however, has the chance to proclaim his innocence in Courtroom No. 1 of the Supreme Court, with the Attorney General and the Solicitor General to call upon. In effect, the complainant was damned by five of the most powerful men in the country, before being heard.

This situation was compounded further by the hearing on the 24th of April. The bench now comprised of Mishra, Nariman, and Gupta JJ. This bench decided to look into an affidavit filed by Utsav Bains, claiming that he had been offered a bribe to frame the Chief Justice. Once again, I will not here discuss the controversy that has erupted around Utsav Bains and his affidavit(s). There is a different point: in the morning hearing, the Bench expressed its desire to combat the “larger conspiracy” ostensibly at play, and summoned the chiefs of the Delhi Police, the Intelligence Bureau, and the CBI, for a close-doors meeting. When an apprehension was expressed about how this would affect the sexual harassment allegations, Nariman J. emphasised that the two issues were entirely separate.

Unfortunately, Nariman J.’s protestations ring hollow. When the special bench in question was following up the hearing that the Chief Justice had convened on Saturday, and when the claims about a larger conspiracy against the Chief Justice and the judiciary were themselves now linked to Utsav Bains’ accusation that he had been bribed to fix the Chief Justice in a sexual harassment case, nobody could possibly maintain with a straight face that the two issues were separate. But most damningly of all, in that very morning hearing, Mishra J. specifically observed that “CJI Gogoi was trying to clean up the system” – hinting, thus, that it was for his independence that he was being targeted. How could anyone possibly argue that the judicial discourse around the “larger conspiracy” had nothing to do with the allegations of sexual harassment?

It is at this point that the question of power once again comes to the fore. Without having (yet) heard the complainant, the entire focus of the three-judge bench was on a possible conspiracy against the judiciary, a conspiracy that could have legs – and let’s be blunt here – only if the complainant was a liar. And every act taken by the bench – from Mishra J.’s statements in the morning hearing to the decision to summon law enforcement agencies for a closed-doors meeting, to the decision to have the matter probed by (Retd.) Justice A.K. Patnaik was, once again, a distortion of the power relationship against the complainant. Here was a bench of three Supreme Court judges saying that there were strong enough indications that the complainant was indeed a liar, very publicly summoning high-level law-enforcement agencies to their chambers (indeed, one of those agencies – the police – was precisely the entity that the complainant accused of having victimised her), and finally ordering a probe by a retired Supreme Court judge. And all this – and this cannot be stressed enough – without the complainant having been heard. Even once.

Meanwhile, Bobde J. – the second senior-most judge of the Supreme Court – had set up an In-House Committee consisting of himself, Indira Bannerjee J., and N.V. Ramana J., to look into the sexual harassment allegations. At this point, it took a public intervention by the complainant for Ramana J. to (correctly) recuse himself from the panel – for the very simple and straightforward reason that on the day that the allegations broke out, he had already dismissed them (effectively) as having been motivated.

It is one of the most basic principles of procedural justice that if you have already commented upon the merits of the case in a way that shows a clear view one way or another, you should not be on the Enquiry Committee that is probing that case. So why did it need the complainant to point this out before appropriate action was taken? Why wasn’t this evident at the time the In-House Committee was constituted? What does it do to the power relations in this case, already distorted beyond recognition after the Saturday morning hearing and the 24th April hearing, for the Supreme Court to constitute an In-House Committee seemingly either oblivious or indifferent to the fact that one of its members had conflicted themselves out by very publicly taking the side of the Chief Justice?

The Committee

It is in this institutional context that the complainant’s final act – to withdraw from the proceedings – now needs to be understood. When the In-House Committee was constituted, the Women in Criminal Law Association published a letter asking that best practices in cases of enquiries into sexual harassment, as set out under the POSH Act, be followed. What the Court elected to do, instead, was to set up what was effectively an ad-hoc process, with the constitution of the In-House Committee (where, after Justice Ramana’s recusal, Indu Malhotra J. came in). Among other things, one crucial departure from the Vishakha Guidelines was the absence of an external member on the Committee, an absence rendered even more critical by the fact that the complaint was against the (administrative) head of the institution himself.

That being the case – and given everything that had already happened before, as discussed above – the onus upon the Committee was particularly strong to ensure that the unequal power relations that characterised this case were mitigated by a set of structures and procedures that were designed to level the playing field in substantive ways. In particular, the In-House Committee had to deal with how best to restore the balance after two separate benches, one judge, and two government law officers had already suggested that the allegations were fabricated; how to deal with a situation where some of the witnesses testifying would be effectively testifying against their employer; how to deal with the fact that it was three sitting judges who were hearing allegations against their sitting colleague, the CJI; and above all else, how to correct the sheer imbalance of power that exists between an ex-employee and the Chief Justice of India.

The complainant’s press release suggests that the Committee comprehensively failed to address any of these issues. Each of the four points raised by the complainant speaks to issues of power: the refusal to allow the complainant a lawyer/support person, while she is facing a committee of three judges handling a complaint against one of their own colleagues, and the (administrative) head of their own institution, in a context when multiple other judges have publicly come out against the complainant, distorts the power relationship; the refusal to record the proceedings and the refusal to provide the complainant with a copy of her deposition (a procedural right that is guaranteed under the POSH Act) deprives the complainant of any kind of effective oversight over the process, and distorts the power relationship; but perhaps most of all, the refusal to disclose the procedures – in a case where procedures matter vitally, because they are critical to address the power imbalance, distorts the power relationship into something that is beyond hideous. And underlying all this is one simple fact: in any other situation, the complainant could have taken her dissatisfaction with the procedure to an appellate authority, and eventually, yes, to the court. But here, there is no appeal from what the In-House Committee does. That makes sensitivity to every single aspect of the process doubly, triply important. But once again, the facts reveal that the Court is either oblivious or indifferent to these issues.

Conclusion

It hardly needs to be said that this is not an essay about innocence or guilt, but rather, about the preconditions necessary to ensure that questions of innocence or guilt can be answered adequately. And for that, this is the point: at the time of writing, the sexual harassment complaint against the Chief Justice has been handled by no fewer than nine judges of the Supreme Court. As the above analysis demonstrates, each one of them has acted in ways that perpetuate the existing power imbalance. In the Saturday hearing, three of them either made statements against the complainant, or were complicit in the making of those statements by their silence. In the hearing of the 24th, two others did much the same. One judge agreed to sit in the In-House Committee despite being conflicted out on the most basic application of standards of conflict. And three judges who did finally conduct the In-House Enquiry did not follow processes that were sensitive to the power imbalances in this case, but rather, it appears, quite the opposite.

In 1997, following the murder of Stephen Lawrence, the United Kingdom government commissioned what would come to be known as the MacPherson Report. Among other things, the MacPherson report set out definition of “institutional racism”:

“The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people.” (Emphasis Supplied)

The crucial point about the MacPherson definition was that for an organisation to be institutionally racist, it doesn’t need to have people who intend to be racist, and to act upon those intentions. Rather, institutional racism stems from “unwitting prejudice”, “ignorance”, or “thoughtlessness” – almost internalised conditions, acted upon without any conscious desire or motivation to oppress or disadvantage anyone.

It is in a similar way that the above events demonstrate that there exists an institutional problem at the Supreme Court when it comes to dealing with allegations of sexual harassment, a problem that has been laid bare over the last two weeks. No doubt unwittingly, judges of the Supreme Court who have been tasked with handling the case have shown themselves unequipped to address – or even acknowledge – the bleeding heart of the problem: that this is a question of power, and without addressing that, you address nothing.