The Karnataka High Court’s Troubling Decision on the Right to Education Act

On 31 May, a division bench of the Karnataka High Court handed down its judgment in RTE Students and Parents’ Association v State of Karnataka, upholding the constitutional validity of Rule 4 of the Karnataka Right of Children to Free and Compulsory Education Rules of 2012. The background is this: Section 12(1)(c) of the Right to Education Act requires private schools to admit – to the extent of 25% of the strength of their Class I batches – students belonging to “the weaker sections and disadvantaged groups in the neighbourhood.” The money spent on these children would be reimbursed to the private schools by the government. Rule 12 of the Karnataka Rules – secondary legislation under the RTE Act – stated that “provided that no unaided school falling under such clause (iv) of clause (n) of Section 2 [i.e., of the RTE Act] shall be identified for the purpose of admission of disadvantaged group or weaker section, where government school and aided schools are available within the neighbourhood.” The effect of this rule, therefore, was that the obligation under S. 12(1)(c) would not apply to private schools in cases where there existed government or aided schools in the neighbourhood. Or, in other words, children from disadvantaged sections would no longer be able to seek admission in private schools under the aegis of s. 12(1)(c) if there existed a government or aided school in their neighbourhood.

The constitutionality of Rule 4 – as flagged above – was challenge, and the High Court rejected the challenge. The case of the petitioners was primarily based on the contention that the vast quality gap between government and private schools essentially consigned socially and economically disadvantaged students to a second-class education, and deprived them of an equal opportunity to exercise their right to education under Article 21A of the Constitution. On the other hand, the State argued that the effect of the RTE had been a gradual closing down of state schools and a proliferation of private schools, apart from a heavy burden on the public exchequer spent on reimbursing private schools. As far as statutory interpretation went, the State argued that under Section 6 of the Right to Education Act, the State was under an obligation to establish – within three years – public schools in every neighbourhood. It was therefore argued that on a combined reading of Sections 6 and 12(1)(c), the 25% obligation on private schools was a “transitory” one, until such time that government schools were established in the neighbourhood. Consequently, Rule 4 – which effectively provided that when a government school was established, the requirements of S. 12(1)(c) no longer applied – was valid.

Accepting the argument, the High Court held that:

The learned Advocate General is right in his submission that the State Government or the local authorities are under the obligation to identify schools defined under Section 2(n)(iii) & (iv) only if there are no schools in the neighbourhood. The case of the petitioners is that notwithstanding the existence of Government or Government aided schools in the neighbourhood, unaided schools must also be identified to ensure that parent and the child get admission in schools of their choice. If petitioner’s contention is to be accepted, the State Government will be compelled to reimburse astronomical figures. The argument on behalf of the petitioners that children entitled for seat under the RTE Act may choose an unaided school in the neighbourhood though there exist Government and aided schools, is fallacious. (paragraph 21)

The Court then went on to explain the need for judicial restraint in the review of administrative action (!), and noted that because the Rule was neither arbitrary nor unreasonable, it could not be struck down under judicial review.

There are, however, a number of flaws with the analysis in paragraph 21. The first and most glaring is that it appears to ignore the plain wording of the statute. Section 12(1)(c) is clear that the private school shall admit 25% of its Class I batch strength from the disadvantaged sections. The obligation upon the private schools, in other words, is mandatory. What the High Court did, however, was to convert this mandatory obligation into a conditional obligation, based upon its reading of Section 6 of the RTE. Section 6, however, is a different provision entirely: it is addressed to the role of the government in carrying out its obligations under the Act, and therefore, requires the government to establish schools within three years. Nowhere in Section 6 – or anywhere else in the Act – is it indicated that the Section 12(1)(c) obligation on private schools is subject to the obligation upon the government under Section 6 remaining unfulfilled. Something as important as that, one would think, would be spelt out in the Act itself, and not merely inferred. The bridge between Sections 6 and 12, therefore, that the Court built, seems to be made entirely out of air.

This is evident from the fact that the Court seemed to view the issue only to be involving the right of children to be admitted into private schools of their choice. Once the argument was framed this way, it was able to make the common-sensical argument that the Constitution only guaranteed the right to education, and not the right to education in a private school of one’s choice. This, however, attacks a straw-man. The purpose of Section 12(1)(c) goes beyond granting a right of admission to private schools. To get a sense of the purpose, consider the Statement of Objects and Reasons appended to the RTE Bill of 2008, which is a permissible external aid to interpretation:

The proposed legislation is anchored in the belief that the values of equality, social justice and democracy and the creation of a just and humane society can be achieved only through provision of inclusive elementary education to all. Provision of free and compulsory education of satisfactory quality to children from disadvantaged and weaker sections is, therefore, not merely the responsibility of schools run or supported by the appropriate Governments, but also of schools which are not dependent on Government funds.

Not only does this make clear that Sections 6 and 12 of the RTE Act are independent provisions operating in independent spheres, but it also provides the rationale: inclusion, or integration. The rationale is further elaborated – in absolutely unambiguous terms – by the Ministry of Human Resource Development’s clarificatory memorandum on the provisions of the RTE:

The idea that schooling should act as a means of social cohesion and inclusion is not new; it has been oft repeated. Inequitable and disparate schooling reinforces existing social and economic hierarchies, and promotes in the educated sections of society an indifference towards the plight of the poor. The currently used term ‘inclusive’ education implies, as did earlier terms like ‘common’ and ‘neighbourhood’ schools, that children from different backgrounds and with varying interests and ability will achieve their highest potential if they study in a shared classroom environment. The idea of inclusive schooling is also consistent with Constitutional values and ideals, especially with the ideals of fraternity, social justice and equality of opportunity. For children of socio economically weaker backgrounds to feel at home in private schools, it is necessary that they form a substantial proportion or critical mass in the class they join. The relevant universe in which the proportion needs to be considered is the class/section. It is for this reason that the RTE Act provides for admission of 25% children from disadvantaged groups and weaker sections in class I only. This implies that these children cannot be pooled together in a separate section or afternoon shift. Any arrangement which segregates, or treats these children in a differentiated manner vis-à-vis the fee-paying children will be counter- productive.

Think of it as the anti-segregation rationale of Brown v Board of Education, only applied to class instead of race. The purpose of Section 12 was – and is – to combat, in whatever minimal way, the two-tier system of schooling that exists in India, where class enforces what is effectively a highly segregated structure, and where the the rich and the poor are “sorted” right from the moment primary schooling begins. Now, of course, a lot of people may have objections to the wisdom or the efficacy of the provision, but that is not the question here. The question here is a question of interpretation. And from that perspective, once the inclusive or integrationist purpose is clear, it also becomes clear that Section 12 – far from being a “transitory” provision, something like a poor cousin of Section 6 – is the heart and soul of the RTE itself. And that being the case, there is little doubt that Rule 4 – which effectively negates Section 12 – is ultra vires the RTE, apart from being unconstitutional.

How did this meaning of Section 12 – hiding away in plain sight – escape the Court? It is hard to say, but the Court’s repeated reference to the financial burden on the exchequer and to how the number of state schools was declining, gives us a hint of the factors that may have influenced the decision-making process. Neither of these factors, however, is relevant. The question of reimbursement is a pure question of policy, which – on the Court’s own insistence – it was in no position to get into. And whether the effect of the RTE was the decline of state schools is, as well, a deeply complex issue where questions of causation would be particularly difficult, and – again – unsuitable for judicial adjudication. And in any event, the clear meaning of Section 12 – and the constitutional goals that it is designed to fulfil – should have been enough for the Court.

The Karnataka High Court’s judgment, however, now makes it very easy for state governments to accomplish an end run around the heart of the RTE, and through copycat rules, basically once again ensure the insulation of private schools from the obligations of inclusion and integration, thus restoring economic segregation in the field of education. In this light, one hopes that the judgment will be set aside on appeal to the Supreme Court.

 

Civil Rights at the Bar of the High Courts: The Madras High Court on Gag Orders and the Kerala High Court on Voting Rights

Two High Court judgments delivered this month have restated certain important constitutional principles.

The Madras High Court and Injunctions

The first is the judgment of the Madras High Court in Ms Menaka v Arappor Iyakkam, delivered on 3 June by R. Subramanian J. In this case, a politician and certain government contractors [“the Applicants”] had filed a defamation suit against the Respondents. The Respondents had published certain claims regarding corruption in the award of government contracts involving the applicants. The applicants also filed for a broad, pre-trial injunction/gag order, asking the Court to “grant an order of ad-interim injunction, restraining the respondents/defendants their men and agents from in any manner, holding any press meet, releasing or distributing any statement to the Print and Electronic Media or to any one against the applicant/plaintiff and its business imputing the character or insinuating the reputation or linking the name of the applicant/plaintiff with any person(s) or defaming the name of the applicant/plaintiff in any manner, pending disposal of the above suit.”

These widely-worded prayers for injunctions are an increasingly common feature of defamation suits, and are granted with frequent regularity. As I argued recently, the purpose of such prayers is to effectively shut down any speech about the applicant by the respondent, until the final disposal of the suit (which could take years). This is because the civil law of defamation comes with certain inbuilt defences (truth, fair comment, etc.). In other words, you can make a defamatory statement (i.e., any statement that lowers the reputation of the plaintiff) without committing defamation (if that statement is true, or a fair comment etc.) However, these broad-ranging prayers, in the way they are framed, effectively take away the option of defences altogether, thus settling the case in favour of the plaintiff before a trial.

In this case, however, the Subramanian J. refused to grant the injunction prayed for. What is remarkable about his judgment is how unremarkable it is: Subramanian J. reached his conclusion not by making grand statements about the freedom of speech, but simply by following the law. As he noted, the common law rule in Bonnard v Perryman was clear: if, in a defamation suit, the defendant pleaded justification (i.e., the defence of truth), then a Court could only grant an injunction if it was prima facie clear that the defendant had no chance of proving the defence at trial. (paragraph 20) Bonnard v Perryman had been followed by the Delhi High Court in Tata Sons v Greenpeace (paragraph 26), and continued to be good law in England (paragraphs 24 & 25) as well as in Canada (paragraph 29). Consequently, Subramanian J. held that:

An analysis of the above principles laid down in the precedents, cited supra, would lead to an irresistible conclusion that grant of pre-trial injunctions in the matters of defamation, can be resorted to only in rarest of rare cases, where the Court reaches a conclusion that there is no iota of truth in the allegations made. The Court does not possess the advantage of analysing the evidence that will be made available at the time of trial. Whether there is a semblance of truth in the allegations or not, will have to be decided on a prima facie basis. (paragraph 30)

On the facts before him, Subramanian J. found himself prima facie satisfied that the Respondents were not acting out of malice, and that the veracity of their statements would have to be tested at a trial (i.e., they could not be declared false out of hand) (paragraphs 36 – 40). That was enough for him to decline – on the basis of existing law – the prayers for injunction.

Subramanian J. also made it clear that the case presented no privacy claims, as the comments concerned a politician’s official functions (paragraph 24). He, therefore, nipped in the bud what has become (of late) a disturbing tendency to invoke the Supreme Court’s privacy judgment in Puttaswamy as a sword to curtail other rights, rather than as a shield against State intrusion (paragraphs 3133) (a good example of this is the Ramdev injunction, which the Madras High Court expressly declined to follow).

The Madras High Court’s judgment joins a slow – but hopefully steady – judicial push back against trigger-happy judicial injunctions in defamation cases – a trend exemplified by the Bombay High Court recently, as well as the Karnataka High Court lifting the gag order in the Tejaswi Surya case.

The Kerala High Court and Voting Rights

The second judgment comes from the Kerala High Court. A. Subair v The Chief Election Commissioner involved the deletion of a voter from the voting rolls, on the basis of a “house to house check.” The State also argued that a draft electoral roll had been published, and objections had been invited from deleted individuals. Rejecting this argument, and reading S. 22 of the Representation of the People Act – which required an opportunity to be heard – the Chaly J. held that “… the action or enquiry contemplated under Sec.22 of Act, 1950 is not an empty formality, but on the other hand, founded on principles of natural justice, which if violated, action becomes arbitrary and illegal inviting action against the officer concerned. Bearing the said aspects in mind, it is clear, no such serious exercise is undertaken by the officer, before removing the name of the petitioner. It is also apposite to mention that, mere inaction on the part of the petitioner to restore the name removed from the voters list, is not a justification for removing the name, otherwise than in accordance with law. (paragraph 10)

The highlighted part is particularly crucial. This is because, in recent years, there have been reports of large-scale voter deletions, caused by the use of faulty software by the EC. In other words, deletions happen through an automated process. This has been challenged in the Hyderabad High Court where the case has been pending for many months now. One of the crucial issues at stake involves the concept of the “right to an explanation”: that is, if I am deprived of a right by an automated decision, taken by a machine, then I have the right to be given an explanation for how that decision has been taken.

One of the major arguments use to dodge that in the case of voter deletions is that the right to vote is merely a statutory right. As I have attempted to explain before, that argument is flawed: voting is a statutory right in the sense that the procedure and modalities of voting are determined by statute, but the act of voting itself is a fundamental freedom protected by Article 19(1)(a) of the Constitution. Therefore, the denial of voting altogether is a constitutional violation, and must be treated as such. Consequently, whether or not the Election Commission uses technology to “clean up voter rolls” (and the constitutional issues with that are another matter), the basic point remains that before a voter’s name is deleted, they must be heard: as the Kerala High Court correctly observed, the process where the name is first deleted, and then the burden is placed upon the voter to come forward and protest, is entirely illegal – no matter how well-publicised the deletions are, and how many “opportunities” are given.

The underlying basis should be obvious: the burden of being able to exercise a fundamental right is not on the citizen, but upon the State, when the latter seeks to deprive her of it. The Kerala High Court judgment is a crucial endorsement of that rather basic constitutional principle; and it is to be hoped that in the ongoing challenges to the EC’s actions before the Hyderabad High Court, that principle will be adhered to.

Guest Post: Notes from a Foreign Field – Carpenter v USA and Rethinking the Third-Party Doctrine in the Digital Age

(This is a guest post by Arushi Gupta.)


On June 22nd 2018, in Carpenter v. USA, the Supreme Court of the United States engaged in an important discussion about the possible modification of the Third Party Doctrine to suit the digital age. The facts were concerned with the conviction of a robber, Timothy Carpenter ,facilitated by Cell-Site Location Information (CSLI) evidence, subpoenaed from various wireless carriers under the Stored Communications Act, 1994. CSLI is formed every time the cell phone interacts with a cell site and record of all activity is maintained with the service provider. The Petitioner argued that the disclosure was a “search” within the Fourth Amendment and required a search warrant. The Court of Appeals for the Sixth Circuit dismissed his appeal, holding that the Petitioner did not enjoy expectation of privacy in information he had turned over to third parties. The Petitioner moved the Supreme Court. The decision of the Court was split. The majority (5) held that Carpenter enjoyed reasonable expectation of privacy in CSLI and thus, it was a search. The dissents (4) disagreed with the majority over Carpenter’s expectation of privacy in CSLI. Further, there was disagreement about the application of search warrant over a subpoena (Alito J.). In this post, I will only deal with the third party doctrine.

The Majority

The analysis of the Court was informed by the historical understanding of the Fourth Amendment. Thus, the aim was to adjust the Fourth Amendment in order to bring its two central guideposts – securing “privacies of life against arbitrary power” (Boyd v. US) and placing “obstacles in the way of a too permeating police surveillance” (US v. Di re) – to the digital age.

Justice Roberts, joined by four others, delineated CSLI at the intersection of two lines of cases. The first set addressed a person’s subjective expectation of privacy in his physical location or movement. Here, the Court held that individuals enjoyed privacy in CSLI, as they would not expect the Government to chronicle their movements. In this respect, it referenced US v. Jones to distinguish the “rudimentary” form of surveillance employed in Knotts from Carpenter.

The second set applied the third party doctrine: “Once individuals voluntarily give up their information to a third party then they assume the risk of unauthorized disclosure.” For this purpose, the Court traced US v. Miller and Smith v. Maryland. According to the Court, both held that the nature of the information owned and possessed by the third party affected the expectation of an individual. In Miller, the bank records were “not confidential but negotiable instruments to be used in commercial transactions.” In Smith, the pen register had “limited capabilities.” Further, the voluntary disclosure of not-so-private information to third parties meant, “At any rate, the expectation is not one that society is prepared to recognize as reasonable.” The Court conflated the “subjective” observations and considered them in the “objective”.

The doctrine comprises two parts: (1) once individuals voluntarily expose matters to third party/public (2) then they assume the risk of unauthorized disclosure. “Assumption of risk” is a consequence of losing privacy and not the rationale behind the doctrine. The voluntariness is the antecedent.

Due to its proprietarian foundations, the text of the Fourth Amendment is tethered to the “physical”. Throughout its jurisprudence, this was not abandoned even as Katz v. US declared, “Privacy belongs to persons and not places”. This means that the Fourth Amendment is interested in only protecting information over which individuals exercise control and put in efforts to conceal from the public to keep with “themselves”. After Katz, there was still no privacy in public spaces such as open fields (Oliver v. US) or garbage outside the home (California v. Greenwood). In US v. Knotts, the Court denied expectation of privacy of vehicles on public thoroughfares, “Since the movements of the vehicle and its final destination had been ‘voluntarily conveyed to anyone who wanted to look,’ there was no privacy interest in the information obtained” (page 460). The third party doctrine is the analogous application of lack of expectation of privacy in public spaces to the digital era.

In order to reconcile these two sets, the Court concerned itself with tailoring the Fourth Amendment to a new phenomenon. First, the Court declined to extend the pre-digital doctrine, which applies to bank records and telephone numbers, to the qualitatively unique— revealing, retroactive, untargeted and long-term—nature of CSLI. It reiterated the observations in Knotts —about heightened expectations of privacy in invasive technologies that secretly monitor and catalogue information that contains the “privacies of life” and Jones —about the indispensability of cell phones in modern life making surveillance inescapable. Most importantly, it admitted that its tailoring was not only concerned with Carpenter but also, “with more sophisticated systems that are already in use or in development” (page 18).  

Second, the Court refused to extend the principle governing Miller and Smith to the digital age where most private information is stored with the third party. The Court noted, “The third-party doctrine partly stems from the notion that an individual has a reduced expectation of privacy in information knowingly shared with another. But the fact of diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely” (page 19). Thus, it formulated a doctrine where the nature of the information determines the expectation rather than the bright-line rule of voluntariness. The Court held, “We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cellphone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection” (page 21).  

Further, it challenged the idea of voluntariness in disclosure of CSLI to the third party. It found that carrying a cell-phone is indispensable to participation in modern life. Individuals have no choice but to opt for the services of the third party and expose CSLI without any affirmative action in doing so. As a result, “in no meaningful sense does the user voluntarily ‘assume the risk’ of turning over a comprehensive dossier of his physical movements” (page 21). 

Therefore, the majority held it as a search within the meaning of the Fourth Amendment implying that CSLI requires the Government to prove “probable cause” for a search warrant. Since, the FBI had proceeded under the Stored Communications Act, which only requires proving “reasonable cause”, the “search” was unconstitutional.

Justice Kennedy’s Dissent

Kennedy J. delivered the first dissent. By focusing on the proprietan foundation (even after Katz) of the Fourth Amendment, he arrived at the conclusion that Carpenter enjoyed no reasonable expectation of privacy in property (CSLI) not belonging to him.

The dissent struck a blow to the shaky foundation of the Court’s redefined doctrine. First, the Court rephrased the doctrine from “no expectation of privacy” to “reduced expectation of privacy”. Second, it devolved a three-step for the doctrine to apply: (1) nature of the technology (2) nature of the information (3) the voluntariness of the action. Kennedy J. was quick to point, “The fact that information was relinquished to a third party was the entire basis for concluding that the Defendants in those cases lacked a reasonable expectation of privacy. Miller and Smith do not establish the kind of category-by-category balancing the Court today prescribes” (page 43). In this respect, in the actual third party doctrine, the nature of the information is irrelevant. Thus, by inference, the majority held that despite the voluntariness of the action, if the information were so sensitive to the “privacies of life” it could implicate an interest of privacy.

In an arguendo, he argued that even if the category test were correct still CSLI did not implicate the kind of privacy concern the majority asserted.

Justice Thomas and Alito’s Dissents

In their dissents, Thomas J. and Alito J. were deeply concerned with Carpenter’s seismic shift towards a privacy interest in property belonging to others by overlooking the text of the Amendment. Further, Thomas J. questioned Katz whereas Alito J. mentioned the uncertain consequences of Carpenter, which either would be the overturn of the doctrine or its limit to similar categories of data.

Justice Gorsuch’s Dissent

Gorsuch J. neither concurred with the majority nor the minority. Rather, he rejected the third party doctrine and the reasonable expectation test in favor of a property analysis of the Fourth Amendment and focused on whether the person has property interest (even if not a complete one) in the information. Since, Carpenter did not advance a property argument, Gorsuch J. did not conclusively hold on the issue.

The Third Party Doctrine in India

In India, District Registrar & Collector v. Canara Bank “rejected” the third party doctrine. The Court held, “Once we have accepted in Gobind and in latter cases that the right to privacy deals with persons and not places, the documents or copies of documents of the customer which are in a Bank, must continue to remain confidential vis-à-vis the person, even if they are no longer at the customer’s house and have been voluntarily sent to a Bank.”

(emphasis supplied)

This ratio contains two parts. Firstly, it deals with right to privacy as enshrined in persons—the customer. Secondly, it regards the customer’s house and the Bank as places. Thus, it concludes that notwithstanding the locational shift from the house to the Bank, the right to privacy is still enshrined within the person or the customer with whom the Bank shares a confidential relationship.

However, clearly the logic is fallible. If the Bank were considered as a person, which holds these documents, then it could be argued that the customer no longer enjoys the right to privacy in somebody else’s property. In Carpenter, the Court does not eschew this “control-oriented” jurisprudence and only squirrels it from all situations, whether the disclosure is voluntary or involuntary to voluntary disclosure of information. To bury the doctrine, one must challenge the rationale of “assumption of risk” by shifting towards privacy as dignity.

In K.S. Puttaswamy v. UOI, the Court held, “Privacy recognizes the autonomy of the individual and the right of every person to make essential choices that affect the course of life (paragraph 113), which may be infringed through an unauthorized use of such information (paragraph 85 of opinion of Kaul J.).” It located privacy in dignity by acknowledging the importance of self-determination and personality development.

After Carpenter, “voluntariness”, inter alia, instructs the reasonable expectation of an individual. But, Puttaswamy rejected this relation (paragraph 59, Nariman J. in Puttaswamy) and consequentially, “assumption of risk”, which treats privacy as a one-time waiver of your right to control your personal information. Rather, Puttaswamy instructed us about the principle of “informed consent”, which means that regardless of “voluntary” disclosure; consent has to be obtained for every subsequent disclosure. Further, it has to be informed and must fulfill reason (mental capacity to make informed decisions), independence (absence of coercion) and choice (the existence of actual alternatives) (page 199 of 567 in K.S. Puttaswamy v. UOI) and affirmative action.

Lastly, Puttaswamy dealt the final blow to the doctrine by recognizing “purpose limitation”—i.e. the reasonable expectation that the information will be utilized only for the purpose for which it was obtained (paragraph 66 in the opinion of Chandrachud J.). Thus, it redefined the expectation as allied not to voluntariness but “to the purpose for which the information is obtained”. Another is “content limitation”—i.e. only information necessary for the purpose would be collected through lawful and fair means (paragraph 184 in the opinion of Chandrachud J.).

To conclude, in India, an ideal test of reasonable expectation of privacy should bifurcate on two levels: (1) objective expectation of privacy on the basis of the nature of the information and (2) subjective expectation of privacy on the basis of constitutional values. Further, the latter should not be limited by the third party doctrine, as principles of dignity and autonomy override its control-oriented approach. 

Notes from a Foreign Field: “The Time has Come” – the Botswana High Court and the decriminalisation of homosexuality

Sodomy laws … deserve archival mummification, or better still, a museum peg, shelf or cabinet for archival display.” – Letsweletse Motshidiemang v Attorney General, High Court of Botswana, para 209

Two weeks ago, the High Court of Kenya handed down a disappointing judgment upholding the constitutional validity of the Kenyan sodomy law. Yesterday, however, confronted with almost identical legal provisions, the High Court of Botswana went the other way, decriminalising same-sex relations on the touchstone of the constitutional rights to privacy, liberty, equality, and dignity. The judgment in Letsweletse Motshidiemang v Attorney General makes for fascinating reading. This is because of its austere – but clear – reasoning, but also because it marks the fall of yet another progeny of what began life as Section 377 of the Indian Penal Code, and then proliferated through the British colonies: the prohibition of “carnal intercourse/knowledge against the order of nature.”

As I mentioned in my analysis of the Kenyan High Court’s judgment, the constitutional arguments against the sodomy law are familiar ones, whetted by years of litigation in constitutional courts across the world. What is striking, however, is the diametrically opposite view that the Botswana High Court took from its Kenyan counterpart, in responding to virtually identical arguments, within the space of two weeks. What is also striking is the similarities between the overall approach adopted by the Botswana High Court on the one hand, and the Delhi High Court in Naz Foundation and the Indian Supreme Court in Johar, on the other. Both are issues that I shall discuss.

As a preliminary point, the judgment stands out for its clear endorsement of the value of pluralism, which made its first appearance in the second paragraph. Pluralism – and the necessity of respecting diverse ways of being and life choices, which the Court defined as inclusiveness – form, in a sense, the intellectual scaffolding that allowed it to build and develop its substantive rights-based arguments. Tellingly, “pluralism” and “inclusiveness” were also two words that were at the heart of the Delhi High Court’s 2009 judgment in Naz Foundation; and perhaps equally tellingly, the Kenyan High Court’s judgment did not have a similar, framing value that would help to contextualise the constitutional challenge. Within that framework, let us now examine the judgment.

Vagueness

After a brief account of the Christian – and later, colonial – origins of anti-sodomy laws, the Court considered the first substantive challenge – that of vagueness. Like the Kenyan High Court – and unlike the situation in India, where judicial interpretation of Section 377 had been inconsistent – the Court found that there existed binding court judgments explaining what “carnal knowledge … against the order of nature” meant: in Botswana, it had been defined as anal sex. For this reason, the impugned sections – 164(a), (c) and 165 – of the Penal Code were not vague; and the question then became, did the blanket criminalisation of anal sex violate the Constitution of Botswana? (paragraph 96)

Acts and Identities: Liberty, Dignity, Equality

This, in turn, allowed the State to set up that old and familiar argument, which makes an appearance in every litigation around this family of legal provisions: that ultimately, the sodomy law only criminalised a certain kind of “sexual act.” It did not criminalise homosexuality – or homosexuals – per se, and therefore, none of the constitutional values of equality, dignity, or liberty, were relevant. As the Court recorded the Attorney General’s submissions:

In answer thereto, the Attorney General has submitted that the applicant is a “cry baby” and that he is free to engage in sexual activity as long as it is not sexual intercourse per anus. It is the respondent’s position that Sections 164 (a) and (c) are not discriminatory as they are of equal application to all sexual preferences, and that Section 15 of the Constitution provides limitations on the enjoyment of fundamental rights. (paragraphs 136 – 7)

Recall that this classification of sodomy laws as targeting only “acts” was accepted both by the Indian Supreme Court in Koushal and by the Kenyan High Court, and formed an important part of these Courts’ reasoning in upholding the laws. It was, however, rejected by the Indian Supreme Court in Johar, and the High Court of Botswana similarly gave it short shrift. At a very basic level, the Court noted that while the section may have been neutrally worded, it nonetheless targeted a form of sexual expression that, in effect, targeted homosexuals, because they could not – by definition – engage in penile/vaginal sex. (paragraph 144) This being the case, the section clearly denied to homosexuals the right to sexual autonomy and the right to a choice of a sexual partner, choices that fell squarely within the domain of individual liberty; it also denied them the right to sexual expression, which was a violation of individual dignity. (paragraph 151) As the High Court colourfully noted, “the impugned provisions force him [the individual] to engage in private sexual expression not according to his orientation; but according to statutory dictates.” (paragraph 144)

The Court then made a deeper argument about equality and discrimination. Section 15(3) of the Constitution of Botswana defines discrimination as “affording different treatment to different persons, attributable wholly or mainly to their respective descriptions by race, tribe, place of origin, political opinions, colour, creed or sex.” Like Article 15(1) of the Indian Constitution, this is a “closed list.” Unlike Canada or South Africa, It does not use words like “including” or “among others” before “race, tribe…” etc., and therefore, textually, precludes a Court from adding in entirely new grounds into the Section.

However, working within these constraints, and citing the previous judgment of Attorney-General v Dow, the High Court noted that:

I do not think that the framers of the Constitution intended to declare in 1966, that all potentially vulnerable groups and classes, who would be affected for all time by discriminatory treatment, have been identified and mentioned in the definition in section 15(3). I do not think that they intended to declare that the categories mentioned in that definition were forever closed. In the nature of things, as farsighted people trying to look into the future, they would have contemplated that, with the passage of time, not only groups or classes which had caused concern at the time of writing the Constitution but other groups or classes needing protection would arise. (paragraph 158, citing Dow)

As I have argued elsewhere, this is exactly the approach that should be adopted towards an anti-discrimination provision. Assessing discrimination is always a contextual enquiry, and the groups that are identified and persecuted by virtue of their group identity can – and do – change from time to time. For this reason, ideally, an anti-discrimination provision should lay down the principle, set out the groups that are salient at the time of drafting, and remain open-ended (as in Canada or South Africa). However, where it isn’t, a Court should at least be able to interpret the existing grounds flexibly, even if it can’t add new ones. And this is precisely what the High Court did, following comparative jurisprudence to hold (like the Delhi High Court in Naz), that sex included “sexual orientation”, as “sex and sexual orientation, are associable signifiers of a similar scope and content.” (paragraph 161) Interestingly, the Court buttressed this finding by noting that the Employment Act already prohibited discrimination on grounds of sexual orientation in the workplace; like the case of the 2017 Mental Healthcare Act in India, a poignant example of the first meaningful legal change coming through a statute.

Armed with this interpretation of Section 15(3), the Court returned to the question of acts and identities. Relying upon both comparative law and evidence (including evidence provided by the Applicant, a gay man), to hold that sodomy laws – whatever their wording – had the effect of stigmatising the LGBTQ population, “render[ing] the[m] … a criminal, or an “unapprehended felon”, always on tenterhooks, waiting to be arrested.” (paragraph 169) This, in turn, meant that the sections were discriminatory in effect (an argument similar to that made by Chandrachud J. in Johar) – a conclusion that was aided by the fact that the Constitution of Botswana explicitly prohibited indirect discrimination. Here again, the High Court’s approach was in stark contrast to that of its Kenyan counterpart: while the Kenyan High Court – like Koushal in India – found that there was no “evidence” for any of this, and that simply “pleading” rights violations in affidavits was insufficient, the High Court of Botswana took seriously the account of discrimination recounted by the Applicant, as well as relying upon scholarly studies for the stigmatic effect of sodomy provisions.

Privacy

The High Court also engaged in an interesting discussion of the right to privacy. Like the American Constitution, the Constitution of Botswana – through Sections 3(c) and 9 – frames “privacy” in its classical sense, as pertaining to spaces – the home, property, freedom from an unreasonable search, and so on. Specifically acknowledging this (para 116), the Court nonetheless refused to limit privacy to the merely spatial, instead – in line with comparative jurisprudence – extending it to include decisional autonomy and the privacy of intimate choice, free from State control. (para 122)

The State’s Arguments

Interestingly, this was not the first time that the constitutionality of sodomy laws was being litigated. In 2003, in a case called Kanane, the Botswana Court of Appeal had held that it “was not yet time” to decriminalise same-sex relations. Much like Johar in India, therefore, and Lawrence in the United States, the Court was faced with a recent decision that had gone the other way. The High Court of Botswana, however, was quick to get around this, noting that no expert evidence had been presented in Kanane, and that the Court had not even dealt with the arguments on privacy, dignity, and indirect discrimination. (paragraph 171)

The State then argued that the purpose of the law was to protect and advance public morality and public interest. – another familiar argument. Applying the proportionality standard, the Court responded by noting that these were merely “bare assertions and or speculations that sexual anal penetration is contrary to public morality or public interest.” (paragraph 180). However, none of this had been demonstrated, it had not been shown that criminalisation was the least restrictive method of achieving the State’s goal (even of advancing public morality), and evidence of the harm caused to the LGBTQ community had not been rebutted. (paragraph 181). But in any event, the Court noted, public morality was relevant in a constitutional claim, but not dispositive. (paragraph 185) In this case, for the reasons advanced above, it fell well short of the proportionality standard; the same was true for the public interest justification, as criminalisation:

… disproportionally impacts on the lives and dignity of LGBT persons. It perpetuates stigma and shame against homosexuals and renders them recluse and outcasts. There is no victim within consensual same sex intercourse inter se adults. (paragraph 189).

The only other possible justification, the Court noted, was the Victorian, “Judeo-Christian” idea of the purpose of sex being for procreation. That premise, evidently, had long ceased being valid. (paragraph 208). The Court therefore struck down the provisions prohibiting carnal knowledge against the order of nature, and read down the provision criminalising “gross indecency” (Section 167) by severing and excluding acts done in private.

Points of Critique

The judgment of the High Court of Botswana is a powerful and eloquent defence of the rights of privacy, dignity, freedom, and equality; its clear and unequivocal holding, which decriminalises same-sex relations, is to be welcomed and applauded. However, while most of the judgment is a study in excellent rights-reasoning by a constitutional court, there are three discordant notes, which also need to be highlighted.

First, from time to time, the High Court got sucked into the question of whether sexual orientation was “innate” (paragraph 142); towards the end of its judgment, it held that sexual orientation is an “innate attribute that [people] have no control over.” (paragraph 190) As I pointed out in my analysis of the Kenyan High Court judgment, however, the “born this way” argument is controversial even within LGBTQ circles, but more importantly, it is a red herring. The question of whether sexual orientation is innate or not is irrelevant to issues of group discrimination (where, as the South African Constitutional Court pointed out, a homosexual identity is first “constructed”, and then subject to persecution), and to questions of decisional autonomy and individual freedom in making intimate choices.

Secondly, as part of its substantive reasoning, the High Court drops the odd claim that homosexuals can “only” have anal sex (and that’s why Ss. 164 and 165 take away sexual freedom). Now, it’s unclear where the High Court gets this from, but in any event, this also misses the point: the struggle around getting sodomy laws removed is not – and has never been – about legalising a particular sexual act, but about bringing down a range of discriminatory practices that deny to the LGBTQ community equal moral membership in society.

Thirdly – and again, this comes at the end of its judgment – the High Court’s stress on the “private” sits ill at ease with its excellent analysis of freedom, equality, and discrimination. In Johar, the Indian Supreme Court was careful not to go down the Delhi High Court’s path and qualify decriminalisation by adding the words “in private.” Like Johar, the Botswana High Court also does not add any such qualification while striking down Ss. 164 and 165, but it does so in its analysis of S. 167 (gross indecency), where it strikes out “private”, and leaves the criminalisation of “gross public indecency” intact. But what is “public indecency” if not the same kind of socially-perceived “deviant” behaviour that the Court is otherwise so concerned to protect under the Constitution? Without a clearer definition, that is the only use it will ever be put to.

It is important to note, however, that none of these three points are central to the core of the decision; the decision would remain even if we jettisoned them. The High Court’s arguments on freedom, equality, and dignity, and its ringing endorsement of diversity, plurality and the protection of the marginalised, does not require it to commit to the “born this way” theory of sexual orientation; it does not require any holding on the mechanics of anal sex; and it does not need a re-entrenchment of the public/private divide. It is to be hoped, therefore, that in future, it is the rights-expanding, liberty-protecting aspects of the judgment that will stand the test of time, while these odd discordant notes will, ultimately, fade away.

Conclusion

Coming two weeks after the intense disappointment of the Kenyan High Court’s judgment, Letsweletse Motshidiemang marks a welcome reversion to form: across the world, the fact that sodomy laws have no place in liberal democracies is increasingly becoming part of judicial common sense. Arguments from “public morality” and “deference”, which once held powerful sway over the minds of judges, are losing their purchase. The Botswana High Court’s clear, powerful, and unambiguous judgment gives us hope that what happened two weeks ago was a brief aberration, which will be swiftly set right by the Kenyan appellate courts; in the meantime, there is another judgment to celebrate.

The Kanojia Bail Order: Two Constitutional Issues

[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.]

[First published here. Reposted with permission.]


In this blog post, Abhinav Sekhri has lucidly highlighted some of the systemic issues around the journalist Prashant Kanojia’s arrest and subsequent release on bail: in particular, the heavily politicized character of the police forces, and the structural reasons why Magistrates – the first line of defence in the fight for civil rights – too often act like postage stamps when it comes to confirming remand orders. In this post, I want to approach the issue from another angle, focusing on the Supreme Court. I will argue that the Court’s bail order is an extraordinary one, departing from ordinary procedure, and can only be justified if its underlying jurisprudential basis is an extraordinary emphasis being placed upon freedom of speech and personal liberty. While the Court does not spell this out in the order, it is – as I will argue – necessarily implied; but at the same time, it will have value only if it is now applied across the board and uniformly, in cases of this kind.

Recall that Kanojia was arrested by the UP police for some tweets “defaming” the Chief Minister of UP, and others that allegedly “insulted Hindu gods and goddesses” (the latter allegation was added subsequently, presumably after the UP police discovered that out of the two criminal provisions in the FIR, criminal defamation was non-cognisable – making the arrest illegal – and that not only had they erroneously invoked Section 66 of the IT Act instead of 66A, but 66A itself had been struck down as unconstitutional four years ago). In response, Kanojia’s wife moved the Supreme Court through a habeas corpus petition under Article 32 of the Constitution. Crucially, however, by the time that the case was heard by the Supreme Court, Kanojia had been produced before a Magistrate, who had remanded him to custody until 22 June. This meant that effectively the petition was no longer challenging Kanojia’s arrest but a judicial order of remand.

In this context, there were two important procedural questions that arose. The first was whether a habeas corpus petition was maintainable against a judicial order (as opposed to the more standard set of cases where habeas corpus challenges an illegal arrest); and the second was whether, as a matter of judicial propriety, the Supreme Court should have heard the matter under Article 32, when the High Court of Allahabad had not been approached by way of Article 226 proceedings.

 Maintainability

It is important to (very briefly) recapitulate the basics. The writ of habeas corpus – as everyone knows – was evolved to protect individuals against illegal detention, by forcing State authorities (in whose custody they were) to produce them in court. The State would then have to prove that the detention was legal; if it could not do so, the individual would be set free.

This makes it immediately clear that by definition, the habeas corpus remedy is directed against the Executive. However, where constitutional procedures under Article 22 have been fulfilled – i.e., the arrested individual has been produced before a Magistrate within 24 hours, unless the arrest has been made under a preventive detention law – at that point, a judicial authority has been seized of the matter. If the judicial authority then directs the accused to be remanded, the deprivation of his liberty is no longer courtesy of the Executive, but has received judicial imprimatur. Ordinarily, then, a habeas corpus remedy – through which the writ courts can be approached directly – will not lie; the accused must take their chances through ordinary proceedings, presumably under Section 439 of the CrPC. .

Over the years, however, the Supreme Court has carved out a very narrow set of exceptions to this rule. The position of law was summed up most recently in March 2019, in CFIO v Rahul Modi (thanks to Abhinav Sekhri for directing me to this case), where – on a survey of precedent – the Supreme Court reiterated that a habeas corpus petition against a remand order would not lie unless the Magistrate had acted without jurisdiction or if the remand order was “without jurisdiction or passed in an absolutely mechanical manner or wholly illegal” (this formulation comes from Manubhai Ratilal Patel v State of Gujarat). The basic idea appears to be that if the Magistrate acts in a way that cannot be described in any sense as “judicial”, their order is no better than arbitrary executive detention, and can therefore be challenged through habeas corpus.

It should now be obvious that, in the context of this high threshold, the Supreme Court’s finding that the habeas corpus was maintainable necessarily depended upon its finding that the Magistrate’s order of remand was “wholly illegal” or had been passed “absolutely mechanically” (jurisdiction was not an issue here). The Court, however, made no mention of whether the remand order had been passed “mechanically” or not; what it did say was that it was granting bail because of the “glaring case of deprivation of liberty as in the instant case, where the jurisdictional Magistrate has passed an order of remand till 22.06.2019 which means that the petitioner’s husband- Prashant Kanojia would be in custody for about 13/14 days for putting up posts/tweets on the social media”, and in view of the “excessiveness of the action taken.”

Although Justices Banerjee and Rastogi did not elaborate further, our discussion above should make it clear that the Court’s order rests upon the necessary inference that freedom of speech and personal liberty are such critical constitutional values, that the “deprivation of liberty” for a pure speech offence (“… putting up posts/tweets on the social media” (sic)) would ipso facto be presumptively illegal. Notice that the Court did not qualify its order in any way, or dilute it, by making observations about the character or the nature of the speech in question. Instead, the Court noted that “the fundamental rights guaranteed under the Constitution of India and in particular Articles 19 and 21 of the Constitution of India are non-negotiable.”

In other words, therefore, it necessarily follows from the Court’s order that granting custody for pure speech offences is illegal and unconstitutional (of course, this does not include cases involving an ongoing incitement to violence or public disorder, because in those cases it is no longer a pure speech offence – but it does involve cases of defamation, “hurting religious sentiments”, obscenity and the like). It is perhaps a measure of how far we have drifted from the promise of the Constitution that this eminently sensible and reasonable proposition today sounds almost odd to the ears. Readers will recall how, in a similar case, another bench of the Supreme Court told an individual that “jail would be the safest place” for him, for offending religious sentiments.

Article 226

The second issue was not one of formal maintainability, but of propriety. Even under writ proceedings, there is no doubt that it would have been more appropriate for habeas corpus proceedings to have been filed before the Allahabad High Court, instead of leapfrogging it to come straight to the Supreme Court. Here again, the Court noted that:

As a matter of self imposed discipline and considering the pressure of mounting cases on this Court, it has become the practice of this Court to ordinarily direct that the High Court first be approached even in cases of violation of fundamental rights. However, Article 32 which is itself a fundamental right cannot be rendered nugatory in a glaring case of deprivation of liberty as in the instant case, where the jurisdictional Magistrate has passed an order of remand till 22.06.2019 which means that the petitioner’s husband- Prashant Kanojia would be in custody for about 13/14 days for putting up posts/tweets on the social media.

Here again, what seems to have particularly weighed with the Court was that Kanojia had been unduly deprived of his personal liberty – and by the time the High Court could be approached and pass orders, this violation would remain an ongoing one. Once again, this is an approach that places an extremely high premium on personal liberty – where even an hour spent in custody is a grave infringement of rights that must be taken with utmost seriousness – and is keeping in with the finest ideals of the Constitution. If followed consistently, it would transform the existing situation – especially, for example, with regard to under-trials who spend years languishing in jail by virtue of provisions such as Section 43(D)(5) of the UAPA.

Conclusion

An American legislator once famously said: “If I let you write the substance and you let me write the procedure, I’ll screw you every time.” Some of the most significant legal developments take place not through sweeping substantive changes to law, but through subtle, almost unnoticed procedural evolution. The Supreme Court’s brief bail order in Kanojia’s Case is an order that, in the manner in which it engages with procedure, has the potential to transform substantive constitutional law and jurisprudence, towards a more rights-protective direction. However, so far it remains only potential: this is because although the substantive issues necessarily flow from the procedural findings, they have not been specifically spelt out in the judgment (and understandably so). Thus, while Justices Banerjee and Rastogi ought to be applauded for the verdict – and for what it entails – it is now the task of the Supreme Court, the High Courts, and the lower courts to take this forward and make it truly meaningful.