Guest Post: The Absence of Reason – The Supreme Court’s Extraordinary Order on Farm Laws

[This is a guest post by Siddharth Shivakumar.]

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On the 12^th of January, 2021 the Supreme Court of India passed an extraordinary Order staying the implementation of the Farmer’s Produce Trade and Commerce (Promotion and Facilitation) Act, 2020, the Essential Commodities (Amendment) Act, 2020 and the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 (hereinafter collectively referred to as ‘farm laws’). Moreover, the Supreme Court also appointed a four-member committee for the purpose of listening to the grievances of the farmers and the views of the Government and to make necessary recommendations.

In this piece, I argue that the Supreme Court has erred in its decision to stay the implementation of the farm laws, since it goes against established precedent, that enunciates the doctrine of presumption of constitutionality of statutes. Further, I argue that the Court has not provided any justification for the stay apart from those that I have inferred from the Order.  

According to the Supreme Court, three kinds of petitions were made before it. The first batch of petitions argued that the farm laws are unconstitutional. Another batch of the petitions were filed by individuals claiming that these unending protest by farmers violated their right to move freely and their right to carry out their trade. The third batch of petitions surprisingly supported the farm laws as being constitutional as well as beneficial to farmers. Without passing judgment on the merits of these petitions, it is extraordinary that the Supreme Court entertains petitions wherein the petitioners argue in favour of a law. However, considering that the Court can now arbitrarily stay the implementation of laws, we might see more such petitions where individuals feel the need to file a petition in favour of constitutionality, appreciating the work of the law-makers!

After describing the nature of the petitions, the Court describes the events on the ground at protest sites. This background is crucial as it seems to be the only reasoning provided by the Court for its Order. In this context, the Court seems to adopt a paternalistic view on women protestors, who “are exposing themselves to serious health hazards posed by cold and covid”. While these risks are real and dangerous, clubbing the protesting women with senior citizens and children perpetuates the already problematic stereotyping of women.  The Court even seems thrilled that one of the parties was keen on dissuading women along with senior citizens and children form joining the protests. Further, the Court acknowledges that the negotiations between the farmers and the Government have failed. Therefore, it appears that the Supreme Court has stepped in to perform the role of the executive.

To diffuse the tension between the farmers and the State the Court has not only stayed the implementation of the laws but also has set up a 4-member committee. According to the Court, they do not wish to stifle protests but they feel that such an extraordinary verdict will be considered as a victory by the protestors and will encourage them to get back to their livelihoods. This seems to be the only reasoning that can be inferred from the Order for staying the implementation of the laws. This is concerning for the following reasons. Firstly, the Supreme Court has not just allowed for the law-making process to be hijacked but has also set a precedent for protestors. An unelected set of judges can now stay the laws enacted by the elected representatives without any legal reasoning except for the fact that thousands of determined protestors refuse to budge. Secondly, it is not the Court’s place to encourage protestors to return to their livelihood. It is the duty of the executive to handle the law-and-order issues that arise because of such protests. No Court should usurp this power in such a manner with the aim of encouraging protestors to get back to their livelihoods. The job of the Court is to judge the constitutionality of these petitions or even the constitutionality of the State action with regard to these protests.

Apart from this, the only other justification provided by the Court that comes remotely close to being called a legal argument for staying the implementation of the laws is in Para 10 of the Order. In this paragraph, the Court states that it “this court cannot be said to be completely powerless to grant stay of any executive action under a statutory enactment.”

It is bizarre that the Court’s only justification is to split hairs by differentiating between staying the implementation of the statue and staying the statue itself. The Court has relied on the recent case of Dr. Jaishri Laxmanrao Patil v. The Chief Minister and another to argue that such a stay can be granted. This is a flawed argument advanced by the Supreme Court for the following reasons. Firstly, in Dr. Jaishri Laxmanrao Patil Case (Civil Appeal No 3123 of 2020), the Supreme Court stated:

“However, if the Court is convinced that the statute is ex-facie un-constitutional and the factors like balance of convenience, irreparable injury and Public Interest are in favour of passing an interim order, the Court can grant interim relief. There is always a presumption in favour of the constitutional validity of a legislation. Unless the provision is manifestly unjust or glaringly un-constitutional, the courts do show judicial restraint in staying the applicability of the same.…However, there is no absolute rule to restrain interim orders being passed when an enactment is ex facie un-constitutional or contrary to the law laid down by this Court.”

Therefore, ex-facie unconstitutionality and factors like balance of convenience, irreparable injury and Public interest are considered by the Court to grant such a stay. The Court in this order has failed to provide even one reason to show that the farm laws in question are unconstitutional. Forget providing a reason, they have not even hinted at unconstitutionality of the laws apart from suggesting that a batch of petitions challenge constitutionality.

Secondly, the Court has acknowledged the precedents cited by the Attorney General, yet it has failed to apply these precedents to the present matter. For instance, in, Health For Millions v. Union of India [(2014) 14 SCC 496],the Supreme Court quoted the following passage from Bhavesh D. Parish v. Union of India [(2000) 5 SCC 471]:

“When considering an application for staying the operation of a piece of legislation, and that too pertaining to economic reform or change, then the courts must bear in mind that unless the provision is manifestly unjust or glaringly unconstitutional, the courts must show judicial restraint in staying the applicability of the same. Merely because a statute comes up for examination and some arguable point is raised, which persuades the courts to consider the controversy, the legislative will should not normally be put under suspension pending such consideration. It is now well settled that there is always a presumption in favour of the constitutional validity of any legislation, unless the same is set aside after final hearing and, therefore, the tendency to grant stay of legislation relating to economic reform, at the interim stage, cannot be understood.” [Emphasis Supplied by Author].

Let us not forget that the farm laws are economic reforms in the agricultural sector. They may or may not have a desired impact. Yet irrespective of the impact, the Courts must be wary to stay such laws even if they are unjust or unconstitutional. A stay is granted only when these laws are manifestly unjust or glaringly unconstitutional. Therefore, especially in this particular case where economic reforms are in question, the Court ought to have demonstrated greater restraint and caution rather than an absence of reason.

Irrespective of your position on the farm laws, there should be no doubt that by ignoring the doctrine of presumption of Constitutionality (even law students are aware of this), the Supreme Court has acted with impunity to pass an Order without providing any legal justification for its decision. The Constitution Court through this Order has reduced its majesty by becoming the self-appointed patriarch of the Nation! 

Guest Post: Parties and their Legislative Role – an Argument for Distribution of Power

[This is a guest post by Udit Bhatia.]

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In a previous paper and post on this blog, I have highlighted the deliberative costs that the anti-defection law imposes on the legislative process. There are, I believe, good grounds to discard India’s anti-defection law, at least in its present form. In this post, I draw on my recent paper to advance an alternative response we might offer, assuming the anti-defection law remains in place. This response consists in insisting that the power to make decisions on legislative issues within the party be shared across multiple persons.

For the most part, parties have been treated under common law as merely private associations. Grounded in the freedom of association, parties are permitted wide latitude in the regulation of their internal affairs. This conceptualisation places sharp limits on the degree to which the law may intervene in a party’s internal affairs. In recent times, both public law and academic scholarship have advanced a second view of the party as a quasi-public body. On this second account, parties are now increasingly embedded in networks of state regulation and cannot be described as simply creatures of contracts between private actors. Moreover, parties also perform ‘public functions’, like serving as ‘conduit to Parliament’ or the ‘transmission belt for the development and carriage of policy into legislation and practice’. The latter conception significantly expands the scope of legal regulation of parties’ affairs. Yet, since parties are not agencies of the state, they would continue to enjoy considerable discretion in the regulation of their internal affairs.

I argue that there is a third way in which we could conceptualise the party. In jurisdictions with anti-defection laws, the party should be seen as a legislative entity. This is, first, because of the expressive dimension of anti-defection laws: the constitution lends its support for the idea that the party, and not the legislator, is the proper bearer of legislative power. Cross-voting is prescribed as a penalty for dissenting legislators, and MPs who fail to concur with their party line are conceived as rule-breakers. Further, as I have previously argued, an anti-defection law can sharply limit individual legislators’ ability to influence their party’s position on a bill. Empirical research demonstrates that much of the task of legislating takes place behind the scenes before a matter comes up for a floor vote. (This, by the way, is why near-perfect party unity in many democratic systems is not a good indicator of lack of dissent there; this can hide the considerable influence legislators routinely exert on policy during pre-vote negotiations). With anti-defection laws in place, individual legislators are particularly disadvantaged in their ability to exert such ‘latent influence’. This is partly due to the severity of the penalty (since legislators stand to lose their place in parliament, and not just from the party’s legislative caucus), but also because, in some cases, they enable leaders of the ruling party to enact legislation by simply issuing whips. When their majority in parliament is large enough, leaders of the ruling party can afford to disqualify rebels and ensure safe passage for their bills. The party should, for these reasons, be understood as the constitutionally recognised wielder of legislative prerogative. It is not a private organisation, nor merely a quasi-public one, but a legislative entity once underpinned by an anti-defection law.

What implications does this conceptualisation have for parties’ internal affairs? I argue that viewing the party as a legislative entity allows us to insist that parties should be prevented from concentrating internal decision-making power in the hands of a few. The argument starts from a simple premise: even in jurisdictions where the act of law-making is entrusted to the party instead of legislatures, this role must be performed consistent with the principles central to the task of legislating. Law-making must comply with procedural and substantive limits that govern the legislative sphere. The requirements that the law places on a legislative body should apply to whatever body holds the power to legislate. One such principle, central to legislation, is the many-minds principle, according to which the power to make laws must be distributed across multiple persons, and not concentrated in the hands of a few.

The many-minds principle is grounded in procedural as well as epistemic considerations. On the procedural side, the many-minds principle stems from the position that the coercive power of laws require public justification. As Jeremy Waldron argues, “If a citizen who disagrees with the new law asks why she should obey it, we want to be able to say that her disagreements…were aired as fiercely and forcefully as possible at the time the law was considered and that it was enacted nevertheless in a fair process of deliberation and decision”. The concern for legitimacy via public justification, in turn, places a premium on the representativeness of the legislative assembly (since a more numerous assembly is more likely to represent competing points of view compared to a small group of decision-makers). Further, we might also view democratic decision-making as an epistemic activity: an exercise in problem-solving that helps differentiate better from worse solutions to society’s collective challenges. From this perspective, law-making must be performed by multiple persons since this expands the pool of perspectives, making it likelier that relevant interests and arguments will be properly evaluated.

How widely decision-making power ought to be dispersed is a difficult question. Is it sufficient that twenty actors hold decision-making power, or should this number be higher? While these are no doubt controversial questions, party constitutions—and practice—in India fail to satisfy the procedural requirement even minimally. This is because they tend to grant a single figure—the party head (or their nominee[s])—a disproportionate degree of political power. At the very least, then, this power must be further dispersed for parties to perform their legislative role consistent with the principle of decision-making by the many. It also does not suffice to say that multiple elites already participate in the party’s policy-making process. The point is that the formal rules on decision-making should empower multiple individuals, rather than leaving inclusiveness to the whims and preferences of individual party heads.

It is also worth emphasising that the many-minds principle is compatible with what has been described as an ‘autopilot’ mode of decision-making, where multiple actors hold the power to take decisions but normally trust, and defer to, decisions taken by a small group among them. What is crucial here is the availability of institutionalised opportunities for critical contestation and the presence of a political culture within the organisation that permits their use. When these circumstances obtain, deference can represent a form of division of labour rather than forfeiture of power. Under these conditions, it is open to the decision-making committee of the party to insist that a particular issue requires further scrutiny instead of the deference it normally demonstrates. This approach to the many-minds principle is also consistent with how partisanship tends to operate in legislative processes: co-partisan political leaders are likely to support their party even without the threat of sanctions. So, even if the party’s decision-making forum for legislative issues comprises many members, it wouldn’t be surprising if decisions were actually taken by a smaller number of individuals. Nevertheless, the dispersal of legislative power would allow the wider committee to disrupt the routine decision-making process and call for further scrutiny of bills from time to time. Given the costs that the anti-defection law entails for legislative deliberation, this would be a limited but important check on the legislative process.

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This post is based on the author’s recent article, What’s the Party Like? The Status of the Political Party in Anti-Defection Jurisdictions published in Law & Philosophy. Please contact the author at udit.bhatia@jesus.ox.ac.uk for an ungated version of the article.

Notes from a Foreign Field: The Kenyan Supreme Court on Housing, Evictions, and the Right to Land

In Mitu-Bell Welfare Society v The Kenya Airports Authority, the Kenyan Supreme Court set out some important propositions with respect to the right to housing, evictions, and structural interdicts. The case involved a set of residents of the Mitumba Village, which was located near the Wilson Airport. On 15th September 2011, a Notice was published in the newspapers by the Attorney-General, giving the residents one week to vacate the land. The residents obtained a stay from the High Court, but the State authorities went ahead and demolished their houses anyway. The residents then asked the High Court to issue a finding that the demolition was illegal, that they were entitled to the land, or – in the alternative – to reasonable alternative accommodation, and to compensation.

The High Court agreed. Mumbi Ngugi J. found that the residents did not have a legal right over the land (it was public land). Despite that, however, the Notice of Eviction was unreasonable; first, because of the short seven-day period; secondly, in the absence of domestic legislation on the subject, international human rights law would apply, and the Eviction Notice fell short of those standards; thirdly, the destruction of the residents’ houses and personal effects violated their right to property under the Kenyan Constitution; fourthly, the refusal to provide reasonable alternative accommodation violated the residents’ right to housing under the Kenyan Constitution; fifthly, the residents’ had a constitutional right to public participation and consultation before eviction, which had not been done; sixthly, that the demolitions had been discriminatory, as multi-story buildings, also in the vicinity of the airport, had not been touched; and finally, the rights of children had been violated (as their school had been demolished). Coming to relief, the High Court crafted a “structural interdict” (what we understand as a continuing mandamus), requiring the State to submit a plan for what it intended to do with respect to shelter and access to housing for marginalised groups, and – for this specific case – to meaningfully engage with the residents and find an appropriate resolution.

The Kenyan Court of Appeal reversed the High Court’s judgment. It held, first, that the State was under no obligation to reallocate land, given that the residents had no legal right to it; secondly, that considerations of “national security” justified the eviction (tragically, the Court of Appeal cited Indian judgments for this purpose); thirdly, that the High Court was not entitled to grant a structural interdict/continuing mandamus, and the format of the structural interdict in the present case involved overstepping judicial boundaries; fourthly, that international human rights law was inapplicable to the present case, as the Kenyan Constitution and legislation covered the issue; fifthly, that socio-economic rights – such as the right to housing – were only progressively realisable, and therefore unenforceable; and finally, that “it is not the role or function of the Courts to re-engineer and redistribute private property rights.”

The case therefore came up to the Kenyan Supreme Court. In a (relatively) narrowly-reasoned opinion, the Supreme Court partially allowed the residents’ appeal, and reversed the judgment of the Court of Appeal (although the judgment of the High Court was not entirely restored). Because of jurisdictional constraints under the Kenyan Constitution, the Supreme Court essentially limited itself to addressing four issues: (a) the role of structural interdicts as a form of judicial remedy; (b) the application of international human rights law in domestic adjudication; (c) the relevance of UN Guidelines in the interpretation of socio-economic rights; (d) the scope of the right to housing under Article 43 of the Kenyan Constitution.

On the first issue, the Supreme Court noted that the scope of remedies was governed by Article 23 of the Kenyan Constitution. Article 23 used the word “may” when setting out forms of judicial relief (declaration, injunction etc.). Article 23, therefore, was an illustrative list, as had been affirmed by precedent. Structural interdicts, thus, were not ruled out by the Constitution. At the same time, the Supreme Court clarified that:

… interim reliefs, structural interdicts, supervisory orders or any other orders that may be issued by the Courts, have to be specific, appropriate, clear, effective, and directed at the parties to the suit or any other State Agency vested with a Constitutional or statutory mandate to enforce the order. Most importantly, the Court in issuing such orders, must be realistic, and avoid the temptation of judicial overreach, especially in matters (sic) policy. The orders should not be couched in general terms, nor should they be addressed to third parties who have no Constitutional or statutory mandate to enforce them. Where necessary, a court of law may indicate that the orders it is issuing, are interim in nature, and that the final judgment shall await the crystallization of certain actions. (para 122)

The Supreme Court, therefore, endorsed a form of bounded structural interdict, that would bring it in line with separation of powers. It found that at least a part of the High Court’s order failed to comply with this threshold.

On the second and third issues, the Court found – unsurprisingly – that international law principles were applicable in informing the interpretation of Constitutional articles. Consequently, it was permissible for the judge to “refer to the Guidelines as an aid in fashioning appropriate reliefs during the eviction of the appellants. Rather than offending the Constitution, the Guidelines actually do fill the existing lacuna as to how the Government ought to carry out evictions.” (para 142)

It is on the question of the right to housing that the Supreme Court returned its most interesting findings. Article 43 of the Kenyan Constitution states that: “Every person has the right to accessible and adequate housing, and to reasonable standards of sanitation.” Article 21(2) enjoins the State to take measures for the progressive realization of this right. Article 20(5) further provides that if the State claims that it is unable to fulfil an Article 43 right because of a lack of resources, it will bear the burden of showing that, and will also ensure that resources are prioritised to serve the interests of the most marginalised. The Court then noted:

… the right to housing in Kenya is predicated upon one’s ability to “own” land. In other words, unless one has “title” to land under our land laws, he/she will find it almost impossible to mount a claim of a right to housing, even when faced with the grim possibility of eviction. (paragraph 149)

The Court then came to the heart of its argument. While holding that an “illegal occupation” over “private” land could not create prescriptive rights in favour of the occupants, the case was different for public land. In short:

… we are of the considered opinion, that where the landless occupy public land and establish homes thereon, they acquire not title to the land, but a protectable right to housing over the same. Why, one may wonder, should the illegal occupation of public land give rise to the right to shelter, or to any right at all? The retired Constitution did not create a specific category of land known as “public land”. Instead, the constitution recognized what is referred to as “un-alienated government land”. The radical title to this land was vested in the president, who through the Commissioner of lands, could alienate it, almost at will. The consequences of this legal regime have been adequately recorded for posterity elsewhere. The 2010 Constitution has radically transformed land tenure in this country by declaring that all land in Kenya belongs the people of Kenya collectively as a nation, communities and individuals. It also now creates a specific category of land known as public land. Therefore, every individual as part of the collectivity of the Kenyan nation has an interest, however indescribable, however unrecognizable, or however transient, in public land. (paragraph 151)

This is a fascinating – and potentially radical – argument. Effectively, the Kenyan Supreme Court held that in a democratic, constitutional polity, land belonged to the people. For this reason, even where (landless) people did not have a legal right to land, they retained an interest in it. This, then, allowed the Court to go on and hold:

The right to housing over public land crystallizes by virtue of a long period of occupation by people who have established homes and raised families on the land. This right derives from the principle of equitable access to land under Article 60 (1) (a) of the Constitution. Faced with an eviction on grounds of public interest, such potential evictees have a right to petition the Court for protection. The protection, need not necessarily be in the form of an order restraining the State agency from evicting the occupants, given the fact that, the eviction may be entirely justifiable in the public interest. But, under Article 23 (3) of the Constitution, the Court may craft orders aimed at protecting that right, such as compensation, the requirement of adequate notice before eviction, the observance of humane conditions during eviction (U.N Guidelines), the provision of alternative land for settlement, etc. (para 152)

And:

The right to housing in its base form (shelter) need not be predicated upon “title to land”. Indeed, it is the inability of many citizens to acquire private title to land, that condemns them to the indignity of “informal settlement”. Where the Government fails to provide accessible and adequate housing to all the people, the very least it must do, is to protect the rights and dignity of those in the informal settlements. The Courts are there to ensure that such protection is realized, otherwise these citizens, must forever, wander the corners of their country, in the grim reality of “the wretched of the earth.” (para 153)

In other words, therefore, the Supreme Court decoupled the legal right to land (as set out under a country’s property law regime) from a constitutional interest in land (which, in turn, informed the right to housing), which inhered in all people, by virtue of the democratic principle that all land belongs to the people (one can see similarities with the concept of the “right to the city”). The constitutional interest in land would not always translate into a property right, but it would vest in the occupant a range of enforceable legal rights (for example, against eviction/to alternate accommodation/to reasonable engagement etc.), that the Court would articulate and vindicate, on a case to case basis.

This finding does, however, lead to a certain tension within the Court’s judgment. If indeed there is a democratic principle that all land belongs to the people, then the Court’s distinction between “public land” (where these principles apply) and “private land” (where they do not) is unsustainable. There is no inherent distinction between “private” and “public land” that is external to State law – any such distinction is legally constructed (by the State’s property law regime). The distinction would also mean that every time the State sold land to a private party, the peoples’ rights would be further narrowed. For this reason, it is respectfully submitted that the Supreme Court’s finding that land belongs to the people would, indeed, have to apply to all land, and not just defined “public land” – and the range of remedies spelt out by the Court would apply to occupation on both private and public land.

The Court finished by remitting the case back to the trial Court, with an instruction that it be disposed off in line with its findings and with the original pleadings. It remains to be seen what the High Court – that delivered the most far-reaching judgment of the three Courts – will do. But for now, it is important to note that the Supreme Court’s analysis of the right to land contains the germ of a transformative jurisprudence that recognises that inequality in access to, and control over, land is at the heart of inequality in society. In this case, the Supreme Court did not develop that idea further; perhaps, in later cases, it will.

Giving Freedom Some Breathing Space: The Allahabad High Court’s SMA Judgment

Yesterday, a single judge of the Allahabad High Court handed down an important judgment reading down Sections 4 & 5 of the Special Marriage Act, which requires couples to notify Marriage Officers one month in advance of their marriage, and for Marriage Officers to publicise such a notification. The SMA allows for any person to “object” to the marriage on the basis that it (allegedly) violates provisions of the Act (Section 7). The case – Safiya Sultana v State of UP – came to the Court as a habeas corpus case, but on resolving the issue of habeas corpus, the couple in question also asked for a finding on Sections 4 & 5 of the Special Marriage Act, especially in light of the ongoing cases under the Uttar Pradesh Prohibition of Unlawful Conversion of Religious Ordinance (separately under challenge before the Allahabad High Court). The reason for this was:

“… young couples are not in a position to raise these issues before solemnizing their marriages as any litigation further attracts unnecessary attention which invades into their privacy and also causes unnecessary social pressure upon them with regard to their choice of a life partner.”

Justice Vivek Chaudhary agreed with this argument, and proceeded to examine the Special Marriage Act on the touchstone of constitutionality. He began by noting that as the SMA had been passed in 1954, the task before the Court was to examine whether the social and legal landscape, in the meantime, had altered to a degree so as to warrant a different interpretation of the Act’s provisions. Justice Chaudhary observed that the 242nd Report of the Law Commission (2012) had specifically recommended deleting the notice requirement, observing that it would keep a check on “high handed or unwarranted interference”, which often took the form of social boycotts, harassment etc.

Justice Chaudhary then went on to observe that in a series of judgments – from 2006 onwards – the Supreme Court had repeatedly emphasised the role of individual autonomy in questions of marriage, and held it to be inherent in Articles 19 and 21 of the Constitution. Examining the Puttaswamy privacy judgment in some detail in order to glean the scope of the right to privacy, the Court followed up by noting – crucially – that in Navtej Johar, it had been clarified that, when examining a law for constitutionality, what was important was not its object or form, but its effect. Drawing precedent together, Justice Chaudhary concluded by observing that:

“The law as declared by the Supreme Court, since the case of Lata Singh till the decision in Navtej Singh Johar, has travelled a long distance defining fundamental rights of personal liberty and of privacy. “Once a person becomes a major he or she can marry whosoever he/she likes” (Lata Singh); “choice of woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognized in the Constitution under Article 19” (Asha Ranjan); “the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock…..it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution” (Shakti Vahini); “Neither the state nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters….. social approval for intimate personal decisions is not the basis for recognising them.” (Shafin Jahan) and finally the nine-judges bench “Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and selfdetermination…….privacy is one of the most important rights to be protected both against State and non-State actors and be recognized as a fundamental right” (Puttuswamy) is a long chain of decisions growing stronger with time and firmly establishing personal liberty and privacy to be fundamental rights including within their sphere right to choose partner without interference from State, family or society.” (para 40)

Thus, a combination of the propositions that (a) an individual’s autonomous choice in intimate matters was constitutionally protected, and (b) constitutionality had to be considered by the effect of a law, brought Justice Chaudhary to the conclusion that the SMA had to be interpreted in a way that its reporting requirements would have to be read as voluntary, not mandatory:

The interpretation of Sections 6 and 7 read with Section 46 containing the procedure of publication of notice and inviting objections to the intended marriage in Act of 1954 thus has to be such that would uphold the fundamental rights and not violate the same. In case the same on their simplistic reading are held mandatory, as per the law declared today, they would invade in the fundamental rights of liberty and privacy, including within its sphere freedom to choose for marriage without interference from state and non-state actors, of the persons concerned. (para 45)

Justice Chaudhary buttressed this conclusion by noting that there were no similar reporting requirements under the several personal laws, and that therefore, there was no reason to make the process under the SMA more onerous.

The judgment of the Allahabad High Court represents an important judicial pushback against what has been – of late – increasing State interference in questions of marriage, including by empowering social and vigilante groups. The SMA’s notice requirements, of course, are not new: as the Court observed, they were present at the very beginning, when the original SMA was introduced in 1872. However, arguably, it is these notice requirements that have formed the baseline of further intrusions (the UP ordinance also has a similar notice requirement). What is most important is what they signify: notice and reporting requirements convey a message to the world that decisions of the most intimate character are not for the individual to make, but must be ratified by the society (which, in practical terms, means the dominant members of society). In practice, they leave individuals and couples with a stark choice: face the possibility of social persecution and violence, or give up your freedoms. These are not choices that a constitutional democracy should be asking its citizens to make.

In recognising that, Justice Chaudhary’s judgment represents an authentic articulation of liberty under the Indian Constitution.

The Unwholesome Servility of the Kerala High Court

In 2020, while dismantling the constitutional guarantees of personal liberty, our Courts gave us some memorable lines as background score to accompany the clanking of prison bars. The prize for the best essay was finally split between the J&K High Court’s invocation of the Greek tyrant Menelaus and the Patiala House District & Sessions judge’s sanctimonious “if you play with embers…” Four days into 2021, however, a Kerala High Court Division Bench of Hariprasad and Haripal JJ have already beaten all comers for this year, with something truly extraordinary. In paragraph 39 of their judgment setting aside a well-reasoned bail order of the NIA Court, these judges note that:

“We would also like to remind the learned Judge that the impugned order has been prepared as if it is a court of record which was unnecessary. Similarly, the learned Judge, while quoting some judgments of the Apex Court, has stated the names of the Hon’ble Judges who authored the judgments which is unwholesome.”

First of all, what is an “order … prepared as if it is a court of record”? We do not know, but if the order served up to us by Hariprasad and Haripal JJ is supposed to be an example of what “courts of record” do, then perhaps the learned NIA judge would be well-served by taking this gratuitous piece of advice to heart. But it is the second line that is truly mind-boggling. Hariprasad and Haripal JJ appear to believe that Supreme Court judges are not public servants who have sworn an oath to uphold the Constitution, but gods on high whose “names” lesser mortals like a mere NIA judge (and presumably, by extension, the rest of us who do not sit on “courts of record”) ought not to take. After all, who knows what would happen if all of us started taking the names of Supreme Court judges in vain? Plagues, perhaps, or frogs from the sky, or maybe we’d just vanish in a cloud of contempt-tinged smoke. All very unwholesome occurrences. But jokes apart, this needs to be called out for what it is: two High Court judges browbeating and bullying a subordinate judge for daring to do his job, while signalling a servile fealty to the Supreme Court. And that is how the worst of hierarchies work: admonishment to those below, obsequiousness to those above.

It would have been bad enough if paragraph 39 was the worst of it, but unfortunately, it does not even begin to scratch the surface. The NIA Court had granted bail to two men accused of offences under the UAPA. The case of the Prosecution was that these men had been found in possession of materials that promoted Maoist ideology and advocated the “liberation” of Jammu & Kashmir. What is notable about this case is that whereas in other UAPA cases, the Prosecution makes at least a token attempt to link the accused with actual terrorist activities, or tangible associations with a banned organisation (for example, collecting funds, or collecting arms), here the Prosecution’s case was actually only limited to the possession of Maoist literature and sloganeering, apart from accusations of “attending meetings” and preparing “cloth banners.”

The Supreme Court – the names of whose judges we cannot take – has laid down clear jurisprudence on this issue. “Membership” of a banned organisation – according to the Supreme Court – has to be understood as being limited to “active membership”, i.e., incitement to violence. If passive membership was also held to be a part of the UAPA, then its sections would be unconstitutionally broad, and would have to be struck down. Consequently, these judges – who shall remain nameless – have made clear that even at the prima facie stage – and notwithstanding Section 43(D)(5)’s high threshold for granting bail – it must at the very least be shown that if the Prosecution’s case was taken to be true, it would have to meet the threshold for active membership.

It is obvious that in the present case, taking the Prosecution’s own case at face value (as laid down in the Watali judgment), the offence of active membership had not been made out. However, in exhorting the learned NIA judge not to dare name Supreme Court judges, Hariprasad and Haripal JJ seemed to have simultaneously exempted themselves from studying Supreme Court judgments. While there are copious references to Watali on the issue of bail under the UAPA, Hariprasad and Haripal JJ seemed either oblivious of Supreme Court judgments on the scope of the UAPA offences, or – for reasons best known to themselves – decided that it is optional to engage with Supreme Court judgments that go in favour of individual liberty.

Not only are Hariprasad and Haripal JJ wrong on law, but their judgment also contains multiple leaps of logic. In para 23, they go from “the accused were in possession of CPI(Maoist) literature” to “the accused are protagonists” of the CPI(Maoist) – not so much a logical leap as a running long-jump over the Grand Canyon. In my house, I have a lot of literature written by winners of the Hugo Awards, and I do wish that ipso facto made me a winner of a Hugo Award. Unfortunately, that is not how the world works, something that most people are aware of (but not, it would appear, Hariprasad and Haripal JJ). Hariprasad and Haripal JJ then go on to cite evidence that the accused had a “rapport” with persons having “close links” with the banned organisation: note, not that the accused were part of a banned organisation, not that they had close links with a banned organisation, but that they had a “rapport” with “persons who had close links” with the banned organisation. Not only are we at opposite ends from the Supreme Court’s requirement of “active membership”, but we are at opposite ends from any respectable concept of causation in criminal law. Similarly, Hariprasad and Haripal JJ go on to refer to “ocular evidence” that the accused were attending “meetings” of the banned organisation – failing to recognise, yet again, the distinction between “active membership” and attendance at meetings.

If this were not disturbing enough, we now come to something profoundly alarming. In paragraph 26, Hariprasad and Haripal JJ state:

True, the prosecution could not prove that the respondents are members of an unlawful organisation. But these are surreptitious activities for which evidence may not readily available, in black and white. Everything is done under the carpet, behind the curtain, without leaving any footprint.

In short: you are guilty if there is evidence against you. But you are also guilty if there is no evidence against you, because that only shows how good you are at operating “surreptitiously”. The State always wins. At this stage we are in Stalinist show-trial territory. Hariprasad and Haripal JJ then go into how the accused made “photocopies” (!) of documents, how they perceived the State to be their “foes”, and how the documents referred to overt and covert comrades. Things then pass into surreal territory, where Hariprasad and Haripal JJ observe that one of the documents mentioned the dangers of phone hacking, that the accused did not have their phones with them when they were arrested, and that this shows that they were “following a diktat.” If Hariprasad and Haripal JJ had spent their free time studying judgments of the Supreme Court (whose judges, I must remind you, we cannot name) instead of reading The Day of the Jackal, this “court of record” may have produced a better judgment than something reading like Frederick Forsyth’s fevered dream.

Hariprasad and Haripal JJ then put the cherry on top of this concoction by stating that the accused were in possession of documents involving J&K that bear “the seeds of a secessionist ideology.” Much like the “if you play with embers” line in Safoora Zargar’s bail order and the J&K High Court’s invocation of King Menelaus, this is that part of the judgment where you can tell the Court is hiding behind metaphor and imagery because, deep down, the judges know that the law requires something different. What on earth does “seeds of a secessionist ideology” mean? Which law defines “seeds …. of an ideology”, secessionist or otherwise? We do not know, and we cannot know, because the Courts have long sacrificed rigorous legal reasoning at the altar of the crudest nationalist rhetoric.

Hariprasad and Haripal JJ then end with the ringing declamation of the line that has been music to the ears of tyrants and authoritarians at all times and places. “individual rights should subserve the national interest. When individual rights are pitted against national interest and security, the latter should prevail.”

Ein volk, ein reich. Indeed.

These days, the “courts of record” (with a few honourable exceptions) appear to be in a race to become more pro-Executive than the Executive. Hariprasad and Haripal JJ’s effort has set the tone for 2021 in that respect, and will probably take some beating. But last year was full of surprises, and no doubt, soon enough, we will have a judgment where a judge will preside over a hearing but whose name will mysteriously vanish from the record, so that people actually can’t take his name.

Oh, wait. That already happened.

Guest Post: The Kerala High Court’s Judgment Reinforces the Need for an Anti-Discrimination Law

[This is a guest post by Megha Mehta.]

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The Kerala High Court has recently held in Dr. Prasad Pannian v. The Central University of Kerala that sex-based discrimination per se is not covered by the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 [“POSH”]. According to the High Court, sexual harassment necessarily mandates unwelcome behaviour with sexual undertones (Dr. Prasad Pannian, ¶13). Therefore, the creation of a hostile work environment for a woman employee will not be actionable under POSH unless it is accompanied by direct or implicit sexual advances.

This definition of sexual harassment as being limited to sexual conduct, as outlined under both POSH and the Supreme Court’s Vishaka guidelines (Vishaka v. State of Rajasthan, (1997) 6 SCC 241) originates from the U.S. Equal Employment Opportunity Commission’s (“EEOC”) guidelines. As I have pointed out in an earlier post, feminist scholars in the U.S. have long-since critiqued this conceptualization for propagating a “desire-dominance paradigm” which exclusively focuses on sexual advances by male supervisors against female subordinates. This paradigm excludes equally discriminatory but non-sexual conduct against employees of all genders who challenge hegemonic masculinity. For example, repeated sexist comments on an employee’s performance can undermine their job prospects as much as unwelcome sexual advances, though the degree of social stigma attached to sexual conduct may be higher.

In other words, sexual desire is not the driving factor behind sexual harassment in most cases, though it may be an important component. Sexual harassment is primarily used as a “technology of sexism”, i.e., a tool for enforcing underlying gender hierarchies in various institutional settings. Further, current definitions of sexual harassment ignore that cisgender women are not the only victims of harassment, though they are disproportionately impacted. LGBTQ workers are equally vulnerable to harassment for challenging gender and sexuality norms. Moreover, men often commit same-sex harassment against other men whom they consider as being too “femininized” for the job, as is common in workplace/college hazing rituals. Similarly, women may also harass fellow women employees who are perceived as transgressing societally prescribed boundaries of femininity (See here).  

The manner in which we define sexual harassment has significant implications for the framing of redressal strategies. Though Article 15 of the Constitution of India (“Constitution”) prohibits discrimination in access to public spaces, there is no domestic equivalent of say, the U.S. Civil Rights Act of 1964, or the U.K. Equality Act 2010, for enforcing this prohibition. Similarly, though Article 16 guarantees equality of opportunity in State employment, there is no legislation or agency for monitoring workplace discrimination in the private sector, or even the public sector for that matter. Instead, POSH provides for the constitution of Internal Complaints Committees (“ICCs”) at workplaces to inquire into sexual harassment complaints. It also provides for Local Committees to inquire into cases in the unorganized sector, or where the complaint is against the employer.

Theoretically, ICC inquiries are supposed to be a more convenient mechanism than criminal trials as they involve less rigorous procedures and lower evidentiary burdens. However, in practice, ICC inquiries re-enact the same adversarial he-said, she-said conundrum. This detracts from how the employer or the general workplace environment may have facilitated gendered harassment, e.g., through a “locker room talk” atmosphere. Hence the failure to enforce gender-cum-labour rights is reduced to a “private affair between two private parties”.

Moreover, since ICC’s are constituted from within the same hostile workplace environment, and may include people who are acquainted with the harasser, this creates conflict of interest for conducting the inquiry impartially. They are also unlikely to recommend structural reforms. Consequently, if a sexual harasser knows that their employer is unlikely to treat complaints seriously, this increases their incentive for committing hostile acts. It also means that the victim is less likely to speak out due to fear of retaliation (See here for a more detailed analysis). This is precisely why the Justice J.S. Verma Committee on rape law reform had recommended constituting independent Employment Tribunals to adjudicate sexual harassment complaints (See here, p 130), though arguably ICCs should continue to remain an option for those who find internal remedies more convenient.

Further, neither the Vishaka guidelines nor POSH provide for claiming civil reliefs from an employer who has failed to ensure workplace equity. Notably, the genesis of Vishaka was a public interest litigation highlighting the injustice meted out to Bhanwari Devi, a social welfare worker for the Rajasthan State government, who was gangraped by upper-caste men in her village. The assault was allegedly in retaliation to Bhanwari Devi’s campaign against the practice of child marriage prevalent in the upper-caste community. However, the Supreme Court refrained from addressing the State’s failure to protect Bhanwari Devi from, or compensate her for, the caste and gender-based violence her work engendered. Instead, it noted that criminal adjudication against the perpetrators was sufficient to impose liability (Vishaka, ¶2). Similarly, POSH only posits non-compliance with its mandate as a criminal offence against the State, for which the maximum penalty is a fine of Rs. 50,000 (POSH, Section 26).

This position appeared to have changed when the Supreme Court recently held that under Vishaka, even non-sexual acts of prejudice and discrimination against women employees will constitute a violation of their fundamental rights under Articles 14 and 21 of the Constitution (Nisha Priya Bhatia v. Union of India, 2020 SCC OnLine SC 394). Accordingly, a woman may claim compensation from her employer for failing to redress such violation of her rights. I had opined in my earlier post (See supra) that this decision paves way for a broader definition of sexual harassment, with an emphasis on unwanted discrimination, not desire; and institutional, instead of individual liability. Prior to this, the Delhi High Court had also noted that sexual harassment is only a species of sex-based discrimination, referring to the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) (Punita K. Sodhi (Dr.) v. UOI, (2010) 172 DLT 409, ¶82).

Unfortunately, Dr. Prasad Pannian shows that Indian sexual harassment law is yet to break out of the desire-dominance paradigm. The High Court circumvented Nisha Priya Bhatia by drawing a distinction between cases decided under Vishaka (such as the former), and the present case, which was instituted under POSH. Since the text of POSH circumscribes the definition of sexual harassment to sexualconduct, the High Court held that it was bound by the same. Further, that there was no need for referring to Vishaka or the CEDAW guidelines for interpreting the term more expansively. Therefore, the High Court chose to adopt a strict, textualist interpretation instead of referring to working women’s constitutional right to equality and dignity of life.

Dr. Prasad Pannian sets a troublesome precedent by allowing the text of the legislation, i.e., POSH, to control the constitutional guarantee against sex-based discrimination, instead of vice versa. On the other hand, in the High Court’s defense, judicial revisionism can only plug legislative gaps so far. Even if the definition of sexual harassment under POSH is interpreted in accordance with Nisha Priya Bhatia, it will continue to exclude forms of harassment such as sexual orientation discrimination, transphobia and same-sex harassment. It may also be argued that given the special stigma attached to sexual offences, sexual harassment and gendered discrimination need to be defined separately for legal purposes, though both are ultimately symptoms of the same malaise.

Further, POSH demarcates sexual harassment as a separate labor rights violation instead of accounting for its intersectionality with other forms of discrimination. There are no special procedures or aggravated penalties for protecting victims of caste-based or economically coerced sexual violence at the workplace. The Local Committee mechanism is largely inaccessible to women working in the informal sector, who are particularly vulnerable to such exploitation. Domestic workers don’t even have the option of civil relief against the individual respondent-they are legally compelled to pursue a police complaint (POSH, Section 11(1)).  POSH is also ill-equipped to deal with cases of third-party harassment, e.g., street harassment. In such cases, it is the State, rather than any specific employer, which is best placed to intervene to make public spaces safer for women.

Hence, the decision in Dr. Prasad Pannian reinforces the need for a holistic anti-discrimination legislation which mandates State and institutional liability for maintaining equality of opportunity at the workplace and equal access to public spaces. It also needs to be explored whether the constitutional guarantees under Articles 15, 16 and 19(1)(g) should be amended to expressly prohibit discrimination in the private sector, particularly in the context of housing and employment. Until then, courts will continue to compartmentalize sexual harassment within silos of individual sexual misconduct against women, instead of tracing its linkages to broader patterns of discrimination and inequality.

Guest Post: Why the new anti-conversion laws are unconstitutional

[This is a guest post by Manish.]

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The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 (“the UP Ordinance”) – and the spree of police action following it – has attracted much attention recently. The UP Ordinance follows existing legislative terrain: several states in India have (dubiously-named) “freedom of religion” laws that seek to restrict religious conversion. The first two of these were enacted in the 1960s, in erstwhile Madhya Pradesh and Orissa, and restrict or seek to penalise people who conduct or facilitate religious conversions by force, fraud or inducement. The rest have largely come in the 2000s, and go a step further by requiring an individual to take prior permission for conversion. The UP Ordinance goes the furthest, by altering the conversion’s effects on personal law, and through certain insidious procedural requirements which will be discussed later. But first, a history of the earlier legislation and legal challenges is in order.

Readers will be familiar with Article 25 of the Constitution, which guarantees equally to all persons the freedom of conscience and the right to freely profess, practice and propagate religion, subject to public order, health and the other provisions of Part III. The MP and Orissa laws were challenged, first at the respective High Courts and then the Supreme Court, as violating the propagation aspect of Article 25. A Constitution Bench of the Supreme Court, in its landmark Stainislaus judgment in 1977, upheld them as being valid exercises of legislative power under the public order exception to Article 25, holding that the right to propagate one’s religion did not include the right to convert others, and that forcible conversions could raise communal passions and give rise to a breach of the public order. This much is a fairly clear and settled proposition. (Whether it should be unsettled is beyond the scope of this blog post.)

That brings us to the first set of post-2000 laws, leading up to the UP Ordinance. These laws go beyond the mere prohibition of forced religious conversion (which was permitted in Stainislaus) by requiring individuals desirous of changing their religion– in addition to people facilitating the conversion, such as religious preachers – to provide prior notice to, or take permission from, the District Magistrate, under fear of penal consequences. Alert readers will notice that this requirement opens up a new Constitutional infirmity – because unlike the challenge in Stainislaus, which was restricted to propagation, it strikes at the right to profess religion under Article 25. This, it is submitted, really forms the core of the right guaranteed under Article 25  – the freedom of conscience – for without the right to profess religion, the right to practice or propagate it becomes meaningless.

For analysis of this point, I will focus on the Himachal Pradesh Freedom of Religion Act, 2006 (“2006 Act”), which is the only one that has been subject to judicial scrutiny. It was challenged before the Himachal Pradesh High Court, which in a lucid 2012 judgment found that the notice requirement under section 4 violated both the freedom of conscience and the right to privacy of the individual. The Court effectively laid down a “compelling state interest” test to justify any interference into this right (paragraphs 37-38):

“A person not only has a right of conscience, the right of belief, the right to change his belief, but also has the right to keep his beliefs secret. The State must have material before it to show what are the very compelling reasons which will justify its action of invading the right to privacy of an individual. A man’s mind is the impregnable fortress in which he thinks and there can be no invasion of his right of thought unless the person is expressing or propagating his thoughts in a manner that it will cause public disorder or affect the unity or sovereignty of the country.”

The Court rejected the argument of public order advanced by the State, holding that public disclosure of conversion could in fact cause public order issues and be counterproductive (paragraphs 40-41):

A person’s belief or religion is something very personal to him. The State has no right to ask a person to disclose what is his personal belief. The only justification given is that public order requires that notice be given. We are of the considered view that in case of a person changing his religion and notice being issued to the so called prejudicially affected parties, chances of the convertee being subjected to physical and psychological torture cannot be ruled out. The remedy proposed by the State may prove to be more harmful than the problem. (…) In case such a notice is issued, then the unwarranted disclosure of the voluntary change of belief by an adult may lead to communal   clashes   and   may   even   endanger   the   life   or   limb   of   the convertee.

Also important here is the Court’s finding that a bland declaration of “public order” (while itself possibly a compelling state interest) was insufficient to justify invoking the exceptions to Article 25. This, in effect, applies the strict scrutiny standard which the Supreme Court had articulated in Gobind v State of MP as far back as 1975 – requiring the state to both show a compelling interest, and adopt the most restrictive means to achieve it (relevant extracts of Gobind are cited in para 32 of the judgment). In this case, the court held that the means adopted did not achieve the interest at all, let alone in the most restrictive manner.

These findings in 2012, are strengthened by the Supreme Court’s nine judge bench Puttaswamy judgment in 2018, where decisional autonomy was articulated as an integral aspect of privacy in all the opinions delivered. In fact, the 2012 judgment is an excellent illustration of how the right to privacy is inherent in the expression of all other fundamental rights, and is one of the first to look closely at privacy in the context of Article 25 (most of the jurisprudence on this Article so far has been around the practice element, and the profession and propagation aspects in that sense offer new ground – one that is largely free of the ERP clutter).

While the substantive right is clear, it could be argued that procedurally, Puttaswamy eschewed Gobind’s strict scrutiny standard for testing infringement (adopted by the HP HC) in favour of a slightly less stringent proportionality test. Even then, the prior notice requirement in the 2006 Act and similar laws would fail the latter three prongs of the four-fold test articulated by Kaul, J in Puttaswamy: there is no justification as to why prior notice (in addition to the criminal penalty) is necessary to prevent forced conversions; the requirement is disproportionate and in fact could prove counterproductive; and there is no procedural safeguard – to the contrary, many of the newer anti-conversion laws contain reverse onus clauses. 

The 2006 Act also contained a proviso (to section 4) carving out an exception in case a person “reverts back to his original religion”. The Court held that this exception violated Article 14 as well, being both vague (since “original religion” was not defined) and arbitrary (since there was no reason for treating these two classes of conversion separately). It struck down the entirety of section 4 and the Rules framed thereunder. In sum, neither of the additions after Stainislaus – a prior notice/permission requirement, and an exception for “re-conversions” – could withstand Constitutional scrutiny.

With that background, let us look closely at the various elements of the UP Ordinance. Section 3, which contains a general prohibition on forced conversion, is on the lines of the ones upheld in Stainislaus. The proviso to section 3, however, carves out an exception for conversion to one’s “immediately previous religion” – while slightly less vague than the 2006 Act, it is, for the same reasons, arbitrary and fails the Article 14 test. There is also a requirement for prior notice (section 8) and public declaration (section 9) before and after conversion, both of which, as will be clear from the preceding discussion, are egregious violations of the right to privacy inherent in Article 25.

That leaves us with a couple of new provisions introduced by the Ordinance – the substantive one, section 6, which has been the subject of much public discourse, states that conversion for the purposes of marriage will render the marriage voidable, on the application of either party. While section 6, like many others in the UP Ordinance, is poorly drafted (what is a “marriage done for sole purpose of unlawful conversion”?), it only contemplates a civil proceeding, which can only be initiated by one of the parties to the marriage. Seen this way, it is the least suspect of the Ordinance’s provisions – in fact, the Supreme Court has previously deprecated, in its personal law jurisprudence, the practice of conversion solely for the purpose of marriage.

On the other hand, the most insidiously problematic part of the Ordinance is actually a procedural one, section 4, which permits registration of an FIR not just by the victim of the alleged conversion  but also by the parents, siblings or any other relative, even if the victim is a major. This is a body blow to personal autonomy, and is being used – as seen in several instances of complaints being lodged by everyone except the ‘aggrieved’ convert – to strip young women of their autonomy to decide both their religion and choice of partner. Indeed, the UP Ordinance is less of an attack on inter-faith marriage per se (technically, if one of the parties converts, it is doubtful whether the union remains an inter-faith one) than it is on the autonomy of youth–especially women–who dare to defy the social order.

As discussed earlier, decisional autonomy is a core element of the right to privacy as articulated in Puttaswamy. And even if the object of preventing forced conversion and maintaining public order is legitimate, the means certainly are disproportionate. There is one point of clarification required here: conventional criminal jurisprudence tells us that all crimes are committed against the State, which is what gives any member of the public the right – and sometimes the duty – to report an offence. But a forced conversion is more than just a simple criminal offence – it is also a violation of a Fundamental Right to make an intimate decision. And for an intimate decision, nobody else is quite placed to judge the violation than the victim. Putting it another way, if she has decisional autonomy, then this autonomy also empowers her, and her alone, to decide if and when it has been violated. To substitute her decision for anybody else’s (whether family or otherwise) would in itself amount to a (further) violation of her privacy. The only necessary and proportionate manner of solving this would be to permit the victim to report the violation herself, and take assistance from others if she feels the need to (which is anyway allowed under ordinary criminal procedure). Thus, section 4, in empowering third parties to make this decision on an adult convert’s behalf, without her consent, takes away her decisional autonomy; in an unnecessary, disproportionate action.

To sum up, changing one’s religion is an act of intimate decision making, and there are a limited number of restrictions that can be placed on it, on the specific grounds provided in Article 25. If forced conversions present a problem to public order, that creates a necessity for intervention which must, however, be achieved through a proportionate remedy. Such a remedy can only be provided by making legal recourse available to the victim without overbroad substantive or procedural provisions that further infringe the rights of the victim or other parties. Thus, it is submitted that the laws upheld in Stainislaus mark the furthest limit to which an infringement is permitted into the profession and propagation aspects of Article 25. Anything beyond that, whether couched in “freedom of religion” terms or marketed as “unlawful conversion”, is unconstitutional. The Allahabad HC has struck the right note in respect of the UP Ordinance by invoking privacy in interim orders, and it must take that to its logical conclusion by speedily dealing with the substantive challenge as well.

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Postscript: Similar constitutional infirmities exist in all the other post-Stainislaus anti-conversion laws. A 2009 petition challenging a similar law in Gujarat remained undecided till 2015 when the petitioners inexplicably withdrew it. A law passed by the Jharkhand assembly in 2017 is yet to be challenged in court – although it is apparently being after reviewed after a change in government. In Rajasthan, which has no such law, the High court inexplicably issued ‘guidelines’ in 2018 that have been previously critiqued on this blog. The HP Assembly in 2019 replaced the 2006 Act with a new law which reinstated virtually all the provisions that had been struck down earlier. The UP ordinance itself is based on similar provisions in the Uttarakhand Freedom of Religion Act, 2018, which has been challenged in the Supreme Court. If the HP HC’s decision – and subsequent developments in Puttaswamy I – are taken into account, all of these enactments are clearly ultra vires, and must be challenged and struck down. Their continuing enforcement is a stain on the Constitution.