Guest Post: A Case for the Inclusion of the Right to Public Participation Under Article 21 of the Indian Constitution – A Comparative Constitutional Analysis

[This is a guest post by Shamik Datta and Ishika Garg. It was first published on the I-CONnect Blog, on 7 October 2021.]

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Recently, in the case of Rajeev Suri v. Delhi Development Authority, the Supreme Court of India has recognised participatory democracy as a strong element of the Indian representative democracy, embedded in the Constitution itself. However, the government has failed to echo the judicial position towards public participation in its recent legislative processes. This is reflected in the ongoing Winter Session of the Parliament. Of the 29 Bills listed to be passed this Session, 17 have seen zero public consultation. Legislative processes of this kind are increasingly becoming a trend, with more than 73% of the Bills recently introduced seeing no public consultation. Even those legislations and regulations which saw a public consultation process on paper, were virtually deprived of any effective public scrutiny in practice. While some of these processes did not account for vernacular languages, the others suffered from the vice of an incredibly short public consultation period, and sometimes both. Examples of such legislations and regulations include the 2021 Draft Lakshadweep Development Authority Regulation (‘LDAR’) and the infamous draft Environment Impact Assessment (‘EIA’) notification. In this post, we argue for the inclusion of a right to public participation within the ambit of Article 21 of the Constitution, in cases which directly concern the right to life and livelihood. To support this, we shall draw strength from a comparative constitutional position on this subject-matter in other common-law jurisdictions, and rely on recent Indian legal developments. 

Introduction: Locating the right to public participation 

When it comes to locating the right to public participation in the Indian context, a lot can be gained through a reference to the jurisprudence evolved by the foreign courts in this regard. The true meaning of public participation has been realised by the Kenyan courts. Perhaps the most notable of these cases is that of the Mui Coal Basin Local Community, in which the Kenyan Court laid down a four-fold test to examine whether public participation has been realised in a particular case. First, the concerned governmental authority must craft a public participation programme which accounts for both the quantity and quality of those who are to be governed. This shall ensure that the governed can participate in their own governance. Second, a test of effectiveness was laid down by the Court. As per this, the concerned authority must provide the governed with a reasonable opportunity and forum through which they can adequately ventilate their views. Third, the programme must include access to and dissemination of the relevant information to the governed. Lastly, the public participation process must be diverse, and most importantly inclusive. This view was further affirmed by the Court in the Al Ghurair case, where it was held that the process must be inclusive as opposed to exclusive, and the concerned authority must undertake reasonable efforts to ensure the same. 

Translating these requirements into the Indian context, we see that recently introduced legislation fails on all these counts. For example, the LDAR was published only in English, when only one person is registered as literate in English in Lakshadweep, as per the 2011 Census. By not accounting for the local vernacular languages, the LDAR has tainted the public participation process with an exclusionary approach. The authorities failed to factor in both the quality and quantity of the governed. This isn’t an isolated instance where the fundamentals of the process have been flouted. Previously, the government published the EIA notification only in the online format. Official data makes it clear that only 25.36% of the rural population, who will be most affected by this notification, have access to the internet. Far from providing the governed with a reasonable opportunity and forum to voice their views, the process denies them access to the relevant information. 

South African jurisprudence supplements the Kenyan Courts’ reasoning in this regard. In Doctors for Life International v. Speaker of the National Assembly, the duty of legislative bodies to facilitate public involvement in the law-making process was examined. The South African Court in that case was of the view that participation by the public on a continuous basis is vital to the very functioning of a representative democracy. In fact, such participation is imperative to accommodate pluralistic viewpoints in order to ensure the wide acceptance and effectiveness of such laws in practice. This principle of including the duty to facilitate public involvement in legislative and other processes under public participation was reiterated in King v. Attorneys Fidelity and Matatiele Municipality.

Furthermore, in Doctors for Life it was held that the government’s duty to facilitate public participation manifests itself through two elements. The first element requires the government to ensure that the citizens have the necessary information to meaningfully engage with the law. The other component relates to granting citizens an effective opportunity to exercise their right to political participation. These elements have been recognised within Article 21 of the Indian Constitution in several cases. In Reliance Petrochemicals Ltd v. Indian Express Newspapers, the Supreme Court of India held that the right to know is a necessary ingredient of participatory democracy, and is included under Article 21. Additionally, in Kamil Siedczynski v. Union of India, it held that the expression of one’s free will through political participation is a part of their right to life and personal liberty. By recognising the two elements of public participation under the right to life and liberty, we believe that the Indian courts have effectively paved the way for the inclusion of a larger right to public participation within Article 21.

This line of reasoning is further substantiated by recent Indian jurisprudence surrounding public participation. The case of Hanuman Laxman Aroskar v. Union of India serves as the starting point for such an understanding. In that case, the Supreme Court of India held that public participation should not be reduced to a mere procedural formality which must be completed before proceeding to the next stage. The Court recognised that the constitutional value underlying public participation is that the decisions which affect the lives of individuals must, in a democracy, account for their concerns. In locating a larger right to public participation within the meaning of Article 21, we must understand the degree to which a particular policy affects the lives of the governed. In Research Foundation v. Union of India, the primary subject matter was the banning of the import of toxic and hazardous wastes. In that context, the Supreme Court of India held that the right to information and public participation in matters which concern the protection of the environment and human health, is an inalienable right under Article 21. While the right to information has already been recognised under Article 21, what is essential to the present discussion is the question of the status of public participation in the Indian jurisprudence.

This aspect can be better understood by referring to the Supreme Court of India’s decision in Rajeev Suri. Therein, the Supreme Court of India held that public participation is required in any instance, where the subject matter in question has a direct bearing on the lives and livelihoods of the concerned segment of the population. It can then be said that the courts have repeatedly recognised the need for public participation in those cases which directly impact on certain persons. As discussed, in Research Foundation, while emphasising on the large impact that a change in the environmental policy would have on the public, the Supreme Court of India even recognised such public participation as a right under Article 21. Translating the recent decisions into a broader framework, we argue that public participation must be viewed as a right under Article 21, in those contexts where a certain policy has a direct bearing on the lives and livelihood of those concerned. 

Conclusion

The right to public participation is meant to cross-fertilise and enhance a particular policy decision with the views of those who will be most affected by the decision at hand. The engagement of the civil society in the law-making process serves to enrich the tapestry of a participatory democracy. However, the recognition of this right under Article 21 is only the first step towards fulfilling the ultimate goal of giving the governed a voice in their own governance. To truly realise the democratic constitutional ideals, the mere formal existence of public participation in any given case shall not suffice. In practice, the right must play out in the manner envisioned by the Kenyan and South African Courts. In our opinion, the sanctity of the public participation process cannot be entirely extinguished or reduced to a mere formality. Instead, these processes must adhere to the well-defined tests laid down by the Kenyan Court in Mui Coal Basin. As emphasised in Doctors for Life, the governed must be given a reasonable and effective opportunity to have a say in matters which directly affect them.

Land, Citizens, and Farmers: Recognising Political Constitutionalism

Indian political and legislative processes are far from perfect. Recently, this has led to arguments (on this blog, and elsewhere) exploring the possibility of increased judicial intervention in the legislative process – where the judiciary ‘examines the validity of procedures leading to enactment’. In this post, I suggest that judicial scrutiny of legislative activity should not underestimate the power of democratic processes to produce respect for the rule of law and rights. However, this approach requires us to locate the ‘constitutionality’ of legislative action in the legitimate decision-making processes of the political system (as opposed to the legal system). Through an examination of the events surrounding the Land Acquisition Bill (2015), the Citizenship Amendment Act (2019), and the three agricultural laws (2020), I highlight how actors beyond courts may impact the constitutionality of legislation.

I briefly outline the two approaches to ‘constitutionality’ under the rubrics of legal and political constitutionalism and then analyse the three legislative events from the lens of political constitutionalism. I do not suggest a wholesale bar on judicial interventions in the legislative process (nor do authors who advocate judicial interventions suggest abandoning other means to improve the legislative process). I also do not delve into how political or legislative reforms may be achieved. The purpose of this post is merely to highlight how democratic processes can also be an avenue to achieve constitutional goods.

Legal and Political Constitutionalism

Legal constitutionalism suggests that because citizens and legislators may not always embrace the values necessary for constitutional democracy, the respect for these values needs to be protected by judges. Therefore, judges serve as a key restraint on legislative power – evaluating whether legislation satisfies constitutional values. (E.g., the Supreme Court invalidating legislation that violates the freedom of speech.) Stepping outside the grammar of rights, such exercises of legislative power typically involve substantive and fundamental competing interests (e.g., public order v free speech), and legal constitutionalism suggests that judges are best situated to settle these crucial issues. However, dissenting opinions and overruled judgements indicate that judges themselves disagree over which outcomes uphold constitutional values. Therefore, the ‘correctness’ of these outcomes largely stems from legal structures that confer jurisdiction on courts to settle these disputes and confer finality on judicial determinations on competing societal interests.

Political constitutionalism argues that ‘the democratic process is equally, if not more legitimate and capable than courts at resolving these substantive and fundamental disagreements.’ Rather that suggesting judicial oversight, it focuses inter alia on: (i) improving the democratic process through improving electoral and parliamentary systems (e.g., proportional representation and parliamentary scrutiny); (ii) creating multiple inflection points where power is balanced (federalism, off-set election cycles, and independent bodies); and (iii) political parties competing for the support of diverse interest groups who themselves have cross-cutting interests, compelling political parties to listen varied viewpoints and often compromise. Crucially, it ‘locates the ‘constitutionality’ of legislation within the political and not the legal system’ by focusing on how decision making procedures can be made legitimate through balancing institutions and ensuring transparent participation. Where legal constitutionalism may emphasise judicially policed rights as central to constitutional culture, political constitutionalism sees democratic participation as causing citizens to identify with a constitutional system.

This may sound idyllic, and caveats must be made in the Indian context. India’s political and legislative structures contain several democratic weaknesses (role of the governor, ordinance powers, anti-defection, partisan speakers, lack of intra-party democracy, imbalanced federalism). As a result, the efficacy and visibility of constraints on power envisioned by political constitutionalism may vary or be entirely absent. In all the three legislative instances discussed below, there was immense public pressure in the form of demonstrations, speeches, strikes, and vigils despite fragile protections for civil liberties. The need for such resistance to hold power accountable does not undermine the argument for political constitutionalism (such actions are firmly within the democratic process envisioned by political constitutionalism) but rather points to the urgent need to reform our political structures to allow for public opinion, contestation, and compromise through elected officials without blood having to be shed.

Readers will forgive my painfully brief explanation of three complex legal issues. The goal here is merely to identify when the structures of political constitutionalism are at play (I tag them in italics for brevity).

Land Acquisition Bill

On 24 February 2015, the Government introduced a bill (Land Acquisition Bill) to replace an ordinance which amended the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The Land Acquisition Bill identified certain situations when the government did not need to obtain landowners’ consent or conduct a social impact assessment before acquiring land. The Land Acquisition Bill passed the Lok Sabha on 10 March but the government did not advance the Bill in the Rajya Sabha because it lacked a majority in the upper house (bi-cameralism and federalism). The existing ordinance was due to expire on April 5, but the Rajya Sabha session continued till 8 May. As ordinances cannot be passed when Parliament is in session, the ordinance looked certain to expire until, on 28 March, the President prorogued (terminated the session of) the Rajya Sabha, allowing the government to re-issue the ordinance on April 3, effectively circumventing Parliamentary approval. These actions were challenged in the Supreme Court as an ‘abuse of the President’s ordinance powers’.  

The Land Acquisition Bill was referred to a Joint Parliamentary Committee. In the BJP chaired committee, it was reported that all eleven BJP MPs moved amendments reinstating the need to acquire landowners consent and conduct social impact assessments (parliamentary scrutiny and intra-party contestation). However, the Land Acquisition Bill never passed the Rajya Sabha, and in August 2015 the ordinance was allowed to lapse two months before the 2015 Bihar elections (staggered electoral cycles). The Supreme Court would eventually dismiss the court challenge as infructuous.

Citizenship Amendment Act

The Citizenship Amendment Act, 2019 (CAA) allows illegal migrant to apply for citizenship if: (i) they entered India before 31 December 2014; (ii) they receive exemptions under the Passports and Foreigners Acts; (iii) they are from Afghanistan, Bangladesh, or Pakistan; and (iv) they are Hindu, Sikh, Christian, Parsi, Jain, or Buddhist. The Government claimed the intention of the law was to protect religious minorities in Afghanistan, Bangladesh, and Pakistan from persecution, and the exclusion of Muslim migrants was a ‘reasonable classification’ within the legislature’s discretion given that Muslims constituted a majority in these three countries.

However, critics of the CAA argued that for the Act to be constitutional, the classification must be connected to the purpose of the legislation. If the goal of the CAA was to protect individuals from religious persecution, then the test under the Act must be – is the individual being persecuted? In other words, the law cannot (without basis) presume that Muslims are not persecuted in Afghanistan, Pakistan, and Bangladesh. The exclusion of Muslims was thus disconnected from the goal of protecting individuals from persecution, and hence violated Article 14 (equality before law). It was also pointed out that the exclusion of Rohingya Muslims from Myanmar suggested an unprincipled (and potentially discriminatory) use of legislative power.

The adoption of the CAA led to sustained nationwide protests. The CAA was also opposed by several states and the Union Government received resolutions the legislatures of Meghalaya, West Bengal, Tamil Nadu, Kerala, and Punjab denouncing the CAA (federalism). Kerala and Rajasthan would go on to sue the Union Government under Article 131 of the Constitution over the CAA. The Government has not repealed the CAA. However, despite Parliamentary manuals requiring that subordinate legislation (rules) for the legislation be adopted within six months of a law passing, two years later, the Union Government is yet to adopt any rules for the CAA (as of writing, the Home Ministry has requested time till January 2022). In the two years since the passage of CAA, 140 petitions have been instituted challenging the constitutionality of the legislation, but the Supreme Court has yet to render a verdict.

Agricultural Laws

In 2020, the Government introduced three laws aimed at reforming the agricultural sector (Farm Laws), discussed in detail here. The laws were passed in the Rajya Sabha using a voice vote instead of a division vote. A voice vote is where the chairperson places the issue before the house and decides the vote based on whether the yes’s or no’s are louder. This may be fine to quickly dispose of issues on which there is significant consensus. However, for more closely contested votes, the process of a division vote exists (where MPs vote electronically). It stands to reason that any vote that is won during a voice vote should also be able to pass in a division vote (otherwise the vote is wholly illegitimate as the chairperson has usurped the collective decision-making of the house and replaced it with their own singular discretion). To guard against this risk, the Rajya Sabha Rules expressly provide that if the outcome of a voice vote is challenged, there must be a division vote (r. 253).

The Farm Laws were passed amongst pandemonium in the Rajya Sabha, and the Chairperson contended that opposition MPs were not in their seats when they challenged the voice vote (a claim contradicted by video footage of the day but an issue also not helped by the fact that the audio feed from the Rajya Sabha was cut for half an hour). After the Farm Laws were passed, the leader of the opposition met the President who protested the breaches of parliamentary procedure and requested the President to refuse assent (another structural inflection point). Soon after, the NDA Government lost its oldest coalition partner (the SAD) (coalitions as a restraint on power). The yearlong protests by farmers and the incident at Lakhimpur Kheri have sufficiently entered the popular consciousness that they need not be repeated here. Towards the end of this stalemate, an MP from the ruling party introduced a private members bill to secure some of the protections sought by protesting farmers (intra-party contestation). Eventually, in December 2021 the Farm Laws were repealed in the lead-up to state elections in Uttar Pradesh and Punjab (staggered electoral cycles).

Conclusion

This piece began by noting that the shortfalls in our political and legislative system to meet our needs for legitimate government can be addressed both through judicial interventions and through political structures. The goal of the above examples is to highlight how political structures such as bi-cameralism, federalism, staggered elections, coalition politics, intra-party democracy, and public protests can restrain power, arrive at decisions about contentious issues in legitimate ways, and respond to breaches of the rule of law. These structures are by no stretch perfect. However, reform of political structures must begin from an understanding that they are worth reforming. At a bare minimum, this requires a discourse which situates the constitution in the political system beyond courts. It also requires us to be able to look past political double-speak and understand when political structures are at play.

There is also reason to be cautious of increased judicial intervention. It is notable than in all three of the above examples, constitutional courts have been conspicuous in their inability or unwillingness to intervene. It is always possible to examine individual situations and argue that a court acting as it is supposed to, could have done better. But this ignores the reality that just as political actors do not always act in conformity with their roles, courts are also not perfect functionaries. Arguments for increased judicial intervention must address the reality that constitutional courts in India have their own structural and behavioural weakness. Lastly, where judicial interventions may vest more power in judges, a focus on reforming electoral systems and structuring institutions so that governmental power is constantly subject to meaningful competition and accountable to cross-cutting interests creates space for a broader set of actors to engage in constitutional authorship.

Two New Judgments on Proportionality from the Supreme Court

[Editor’s 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 a former 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 (e.g., the introduction of structural mechanisms to ensure accountability)]


State of Tamil Nadu v National South Indian River Interlinking Agriculturist Association (November 23), and Akshay N Patel v Reserve Bank of India (December 6) are two recent judgments of the Supreme Court that have applied the doctrine of proportionality to adjudicate constitutional challenges to State action.

Proportionality Within Article 14

State of TN v NSIRIAN involved a challenge to the Tamil Nadu government’s granting a loan waiver to “small and marginal farmers” (i.e., farmers holding five acres of land or less). The scheme was challenged on the basis of arbitrariness and under-inclusiveness, for failing to grant loan waivers to farmers who held more than five acres of land.

Relying upon the previous judgment in Subramaniam Balaji v State of TN, the Supreme Court began by noting that the principle of equal protection could not be applied to instances of State largesse (as opposed to the State imposing a burden upon an individual or group) (paragraph 13). It is submitted that this proposition may require reconsideration. There is no principled distinction between “largesse” and “burden”, when it comes to the equal protection of law: the State singling out an individual or a group for a benefit over the claims of other groups raises equality concerns, much like the State singling out an individual or a group for a penalty does: in fact, given that the former case involves the distribution of scarce resources, there are good reasons why such policies should be subjected to Article 14. Indeed, in paragraph 17, the Court itself noted that one of the justifications offered up by the Tamil Nadu government was the need to provide maximum benefits with minimum funds (and also noted how this, in itself, could not be an answer to an Article 14 challenge).

In any event, the Court did not dwell too long on this point, and went to substantively review the policy. Noting the State’s justifications that the purpose of the policy was the uplift of poorer and more vulnerable farmers, the Court observed that would have to be put “to the test of reason through the submission of cogent material.” (paragraph 21) Here, data provided by the State showed that small and marginal farmers had a significant capital deficit, were resource deficient, and needed access to larger holdings to avail of land, water, and so on (paragraph 22 – 25). For this reason, they were more vulnerable to crises (such as the impact of climate shocks), and were also economically more vulnerable, as a class (paragraph 25). The government scheme, therefore, was best understood as a form of constitutionally justified affirmative action.

It remained, of course, to deal with the argument from under-inclusiveness and over-inclusiveness: that is, the bright line of five acres would not map on precisely to the markers of precarity and vulnerability identified above. In his judgment, Chandrachud J identified the question to be primarily a “means-ends problem”, which could be adequately addressed by deploying the two-pronged test (intelligible differentia and rational nexus). Chandrachud J then went on to note that the degree of deference to under-inclusivity or over-inclusivity in a statute (i.e., how much leeway the Court would accord before striking down a statute for being over or under-inclusive) would depend upon the “relationship prong (‘rational nexus or proportional’) of the test.” (paragraph 31) In this case, the classification in question was not based on either an innate or core trait of an individual, or one of the prohibited non-discrimination grounds under Article 15(1) – and consequently, the correct test to apply was that of rational nexus. This, the Court held, had been adequately satisfied by the State through data.

While the decision is undoubtedly correct, it is respectfully submitted that the Court’s observation that classificatory arbitrariness is subjected to the two-pronged test while non-classificatory arbitrariness is subjected to the proportionality test, may need reconsideration. Indeed, the Court itself stated the correct position later in the judgment, when it held that where under or over-inclusiveness was predicated upon either a core individual trait or upon one of the grounds set out in Article 15 the more rigorous proportionality test would apply. It is submitted that the two-tiered standard of review within Article 14 – that is, rational nexus (lower scrutiny) and proportionality (higher scrutiny) is not dependent on whether the policy is classificatory or non-classificatory, but simply on whether the unequal or arbitrary treatment being complained of can be traced back to a core individual trait (and which, it may be added, has been a site of structural or historical disadvantage – not every core trait, such as eye colour or height, for example, should be subjected to proportionality review). And this – as pointed out above – was ultimately affirmed by the Court, in the operative part of its judgment.

The States of the Proportionality Test

Akshay N Patel v Reserve Ban of India was a slightly more complicated case, that involved a challenge to Clause 2(iii) of the Reserved Guidelines on Merchanting Trade Transactions (MTTs), issued by the Reserve Bank of India. Put simply, the impugned guidelines states that MTTs would be allowed only with respect to those goods that were permitted for export and import under the Foreign Trade Policy of the Government of India. An MTT, for our purposes, is a transaction where an Indian firm acts as an intermediary between two foreign firms, without the goods in question actually being imported into, or exported out of, Indian territory (in other words, the only link with India is that the intermediary firm is Indian).

The challenge arose when, during the Covid-19 pandemic, the Indian government banned the export of PPE products, in order to ensure that the domestic stock was not depleted. Accordingly, MTTs in PPE were also banned, following Clause 2(iii). The appellant firm wanted to engage in an MTT involving an American buyer and a Chinese seller, but found itself stymied. The primary ground of challenge was that under an MTT, there was no actual export of the good from India, and consequently, the question of depleting Indian stock of PPE did not arise.

The Court noted that as the question involved a restriction on the Article 19(1)(g) freedom of trade, following the Modern Dental judgment, the proportionality standard would apply (paragraph 15). The Court then went on to note that the case also involved challenges on grounds of Article 14 and 21. However, since the substance of the challenges was essentially the same, they could be collectively considered (an “integrated” approach) (paragraph 27) (as the Court noted, this would not necessarily be true in all cases, where for example, the nature of the violation might be different, or where the limitations affect the rights in different ways).

Chandrachud J then went on to apply the four-pronged proportionality test. First, he noted that the aim of the ban was to ensure adequate domestic supplies of PPE during a global health pandemic. This was undoubtedly a legitimate State aim (paragraph 29).

Secondly, he noted that under international trade policy, goods under MTTs were formally regarded as “negative and positive imports” from the territory of the intermediary country (paragraph 42), as the intermediary was considered the owner while the goods were in transit (paragraph 43). Consequently, the Court held that “it was suitable for the RBI to link the permissibility of MTT in goods to the permissibility of their import/export under the FTP.” (paragraph 44)

Thirdly, Chandrachud J noted that while MTTs in PPE did not “directly” reduce the available stock of PPE in the country, they nonetheless reduced “the availability of the stock in the international market, which may have been bought by India, if so required (paragraph 47). Furthermore, this also reflected the Union government’s policy stance that such goods were “non-tradeable” during the pandemic (paragraph 47); in other words, “banning MTTs in PPE products was critical in ensuring that Indian foreign exchange reserves are not utilized to facilitate the hoarding of PPE products with wealthier nations.” (paragraph 47) On this basis, the Court held that the necessity prong was satisfied.

Finally, on the balancing prong, the Court – after making a set of observations about the importance of allowing regulatory bodies to set the terms “for operation of private economic actors” – held that the RBI had adequately demonstrated the rational nexus between the ban and the public health of Indian citizens. Consequently, “this Court is constrained to defer to the regulations imposed by RBI and the UOI, in the interests of preserving public health in a pandemic.” (paragraph 57)

Two points of critique arise with respect to this judgment. The first is that the analysis of the suitability and necessity prongs of the proportionality test is clouded by the fact that the Court moves between levels of abstraction. What the Court finds suitable is the link between prohibiting MTT and the overall foreign trade policy of the government (i.e., the actual text of Clause 2(iii)). What the Court finds necessary is the specific ban on MTTs involving PPE that logically flows from Clause 2(iii), but is not equivalent to it. Since the challenge was to Clause 2(iii) itself, it is submitted that it was incumbent upon the Court to examine the appellant’s arguments that the linking of MTT bans to export-import bans itself failed the necessity test, and – indeed – to engage with the appellant’s proposed less restrictive alternatives (which the Court records in an earlier part of its judgment). This the Court did not do; instead, within different steps of the same proportionality test, it ended up answering two different questions: was the linking of MTTs to export-import policy suitable? And was the ban on PPE MTTs necessary?

Furthermore, it is respectfully submitted that the Court’s necessity analysis raises serious questions about causation. The Court argued that even though an MTT transaction did not directly affect the stocks of PPE in India, it affected stocks on the world market that India could have bought, but would now not be able to, because they had been sold. But this is a very attenuated causal link upon which to predicate the restriction of a fundamental right: the argument surely cannot be that because any transaction involving PPE, anywhere in the world, affects India by altering the global stock, therefore – regardless of whether India intended to or had the capacity of, or the need for – said PPE, the transaction itself could be banned as long as India could enforce its ban (in this case because the intermediary was Indian). It is submitted that, without further evidence, the causal link here would fail even a rationality test (presumably, if the Indian company can’t act as an intermediary, the transaction would still go ahead with another intermediary!), let alone the stronger necessity test; in either event, this case highlights the importance having causal standards explicitly set out in proportionality judgments.

The second point of critique is with respect to the fourth prong: effectively, the Court ended up replicating its rationality argument in holding that the RBI had demonstrated a rational link, and its expertise as a regulatory body required deference. However, the balancing prong requires more: it requires that the extent of the rights restriction (in this case, a complete prohibition) is proportional – in a strict sense – to the importance of the goal (in this case, presumably, harmonising export-import and MTT transactions at the higher level of abstraction, and maintaining a global stock of PPE at a lower level of abstraction). Perhaps the Court wold still have held that proportionality stricto sensu was made out; but if so, the analysis would need to be spelt out, and not presumed.

Conclusion

The judgments in NSIRIAN and Akshay N Patel are important, in that they explicitly entrench the proportionality standard as the constitutional standard in adjudicating Articles 14, 19, and 21 claims; NSIRIAN, in particular, is helpful in further clarifying the two-tier standard of review internal to Article 14. As Akshay N Patel shows, however, the application of the four-step test continue to raise certain knotty problems which, it is hoped, future judgments will help clarify.

Notes From a Foreign Field: The Botswana Court of Appeal’s Judgment Decriminalising Same-Sex Relations [Guest Post]

[This is a guest post by Karan Gupta.]


Earlier this week, a full Bench of the Botswana Court of Appeals (CoA) in Attorney General v Letsweletse Motshidiemang partly upheld the High Court’s (HC) judgment (analysed here) which decriminalised same-sex relations. Commending the ‘erudite’ and ‘searching’ judgment of the HC, the judgment inducts Botswana into a group of countries such as India (here), and Angola (here) which have recently struck down similar provisions criminalising same-sex relations and away from the judgments recently issued by the High Courts of Kenya (here and here) and Singapore (here). In so doing, the CoA affirmed the equal moral membership under the Botswana Constitution of individuals who identify with same-sex relations. The judgment is commendable for its careful navigation of the arguments raised, which I explore, in seriatim.

Setting the context

The case concerned criminal provisions germane across former British colonies. The impugned provisions of the Penal Code 1964 [Sections 164(a); 164(c)] criminalised relations ‘against the order of nature’ which had been judicially interpreted to outlaw same-sex anal intercourse. Both sides presented now familiar arguments in cases concerning the decriminalisation of same-sex relations. The appellant (Botswana Government) argued that the provisions were not enforced, were gender-neutral (and was hence not discriminatory), prohibited only certain sexual acts limited to anal intercourse and did not cause or perpetuate prejudice, stigma and oppression. The Respondents (and the Amicus  – Legabibo) urged that though the provisions were gender neutral, the effect was discriminatory in singling out same-sex relations for criminalisation, they violated the fundamental rights to liberty, dignity, privacy and equality before the law, did not constitute permissible restrictions of these fundamental rights, and amounted to discrimination on the basis of sex.

Section 3 of the Botswana Constitution guarantees to every person in the Country (whatever their ‘sex’), the fundamental right to life, liberty, security and privacy of their home and property. Section 7 guarantees that no individual shall be subjected to torture or to inhuman or degrading punishment or other treatment. Section 15 stipulates the fundamental right against discrimination on enumerated grounds (including ‘sex’). Though arguments were urged before the High Court of Section 7, the CoA restricted itself to the other fundamental rights on the basis that no finding was returned by the High Court on the provision, nor was any appeal filed on this ground (paragraphs 8, 10)

At the arguments before the CoA, the appellant restricted its arguments to three principal grounds (35, 110): First, that the High Court ignored stare decisis in that it was bound by the 2003 CoA decision in Kanane, where a constitutional challenge to the same provisions was squarely rejected (22, 37); Second, a change in law is essentially a policy matter within the exclusive domain of the democratically elected legislation. Any adjudication amounts to impermissible judicial law-making (10, 74); and Third, the High Court erred in failing to apply Section 15(9) – a ‘saving’ constitutional provision which preserved and protected from discrimination-scrutiny statutory provisions which existed at the time the Constitution came into force (35, 36, 91). Consequently, the CoA dedicates a significant part of its judgment addressing these arguments.

Kanane and the tides of change

In Kanane, the CoA rejected a constitutional challenge based on Section 3 and 15 of the Constitution to the impugned provisions. The High Court distinguished the CoA decision in Kanane on the ground that the judgment delivered in 2003 had explicitly noted that Botswana was not then ready for the decriminalisation of same-sex relations. The CoA, on a careful reading of its earlier decision, agrees with the High Court (57). As such, the constitutional findings in Kanane were not categorical, but conditional i.e., the CoA in Kanane, though supportive of the ‘rights of the gay community’ (64), had expressly stated that “the time had not yet arrived” to strike down the provision “at this stage”. Thus, there was no need to distinguish a case, which had left open a window for future evidence to be lead which may point to a different conclusion (55-58). As for the evidence, the CoA reproduces and notes that judicial opinions and public opinion (including statements by Heads of State) since 2003 reflected a ‘progressive change’ (62) which indicated that the ‘tide has turned’ (65). Given the ‘adequate evidence of the change of attitude’, ‘sex’ in Sections 3 and 15(3) was held to include ‘sexual orientation’ as well as gender identity. Consequently, the CoA holds that the HC’s judgment under appeal reflected a logical progression (71) and did not contravene the principles of stare decisis.

The holding of the CoA on this count is broadly in line with the constitutional interpretive technique in Botswana committed to living-tree constitutionalism. Broadly speaking, this asserts that constitutions do not reflect stable and fixed pre-commitments and legitimate constitutional interpretation involves development and change in constitutional law through interpretation by judges, in a manner keeping it abreast of changes in society, politics, culture and legal systems. The CoA had earlier affirmed in Attorney General v Dow (1992) that the Constitution is not a “lifeless museum piece” but a living constitution which should “meet the just demands and aspirations of an ever-developing society”. Similarly, the High Court below had held that the “living and dynamic charter of progressive human rights, serving the past, the here and now, as well as the unborn constitutional subjects.” (HC, 76).

Interestingly however, whilst the doctrine is often employed to interpret constitutional provisions in their application to circumstances unforeseen/unimaginable to the drafters (for instance, privacy in an emerging digital age), the CoA employs it to interpret the substance of constitutional rights on the basis of changing public opinion. Such approach beckons obvious caution – public opinion, is by its very nature, in a state of flux and influenced by majoritarian tendencies. Constitutional principles cannot be subject to the vicissitudes of public opinion. The CoA, in then recognising that public opinion cannot on its own be grounds for striking down provisions (66), finds support for its conclusion in the ‘proper independent evidence’ which to it demonstrates the effect of such provisions – the perpetuation of stigma and exclusion, which undermines the constitutionally guaranteed rights to liberty, privacy, dignity and the equal protection of law (67). To distinguish its earlier holding in Kanane, the CoA is pushed to build on the window left open by it. Despite this, it carefully reiterates common-place principles of constitutionalism – that it is rights-violation and not public opinion which invites judicial review.

Separation of Powers and democracy deficit

Perhaps the most interesting observations are in CoA’s rejection of the Government’s argument that the separation of powers reserves to the legislature exclusive power in matters of policy. It is the sole prerogative of a democratically elected legislature, it was argued, to amend or repeal the impugned provisions.  The CoA decisively rejects this and holds that policy matters, though within the domain of the legislature, are tested against the anvil of constitutional provisions and principles (86, 90). Where fundamental rights are breached, it is the role and responsibility of courts to ‘tweak’ the meaning of legislation to bring it in line with the Constitution (81, 83). So far as constitutional principles go, this is now fairly well-settled. It is the observations thereafter that are significant in inviting attention to political processes and judicial review.

The CoA effectively observes that that political process by which legislation is enacted is often tainted by the will of the majority and may not be suited for the protection of minorities (82). It observes:

“82…the views and concerns of individuals, or of minority or marginalised groups will carry as little weight as their voting power dictates”

“88. It is most unlikely that the popular majority as represented by its elected members of Parliament, will have any inclination to legislate for the interests of vulnerable individuals or minorities, so the framers, in their wisdom, allocated the task and duty to the judiciary.”

These observations are significant. In recognising that legislative reform may take two distinct paths (one through the democratic mandate of the elected parliament, and second, through judicial review of legislation by courts in a bid to protect minority rights (89)), the CoA squarely positions itself to give effect to the constitutional guarantee of equality by addressing and remedying majoritarian democratic deficit in legislative and political processes. Where elected legislatures may represent majoritarian desires, the political process is ill-suited for the protection of certain identities and minorities. To argue then that the protection of identities and minorities is a policy matter within the domain of the elected legislature alone, is to subject such protection to purely majoritarian impulses and insulate it from principles of equality enshrined in the Constitution.

Recall here a similar observation in the infamous ‘fn 4’ in United States v Caroline Products by the Supreme Court of the United States. Justice Stone noted that a more ‘searching judicial enquiry’ (which was later interpreted to mean strict scrutiny)may be required where prejudice against minorities curtail the operation of the very political process relied upon for their protection. In such cases, it is futile to assert that the judiciary has no role whatsoever. In making the above observations, the CoA sets up a normative defense of judicial review of legislation which arises from a specific role attributed to it – a role informed by the equality guarantee in the constitution. In rejecting the Government’s contention, the CoA affirms that constitutional values prevail over majoritarian politics.

Section 15(9) and the ghost of a colonial past

The Government argued that the Penal Code 1964 was promulgated prior to the coming into force of the 1966 Constitution. Section 15(9), a saving clause, insulated from challenge these laws against discrimination claims arising from Section 15. The CoA recognises that these statutes are ‘legislation for the people, not by the people (93), and noted that this form was common to former British Colonies.

The CoA notes that whilst the Botswana judiciary has frowned upon blanket insulation of these laws from constitutional scrutiny, two reasons peculiar to the impugned provisions are grounds to reject the arguments – first, prior to rape laws being made gender-neutral to include men as potential victims/survivors, the impugned provisions protected men and boys from the act (101). Thus, the ‘public interest’ role earlier served by the impugned provisions was subsumed by virtue of the amendments to the rape law. What remained then was ‘ancient biblical condemnations’; second, the saving clause protected laws vis-à-vis the discrimination scrutiny at a time when neither sex nor sexual orientation were its part. (103). Given their inclusion, the impugned provisions are not protected by Section 15(9). The CoA rightly notes that where legal provisions derogates from fundamental rights, the saving clause must be accorded a restricted and narrow interpretation (103, 108). Consequently, Section 15(9) could not be read to protect from scrutiny the impugned provisions.

Privacy beyond a closet (spatial sense)

As the arguments urged orally were restricted to three grounds, the CoA briefly marks its agreement with the High Court’s reasoning on liberty, privacy and dignity vis-à-vis Sections 3 and 15 (110). Here however, the judgment is worthy of commendation for another reason. Despite its short approval of the observation by the HC, it rightly sets an expansive idea of privacy by noting that the ‘full scope and reach’ of the constitutionally guaranteed right is not restricted to a spatial sense, but extends to personal choices (112). What this means is that the right to privacy is not limited to the private confines of the bedroom, but more broadly to decisional autonomy.

This is crucial because as I have argued before, provisions such as those impugned do not criminalise specific acts, but a set of identities.  Many times, the HC errs in reducing the right to privacy to a spatial sense in its constitutional scrutiny of the impugned provisions (HC, 3, 126, 127, 189, 214, 215, 223. “Should private places and bedrooms be manned by sheriffs to police what is happening therein”). This is because the HC also reduces sexual orientation from an identity to merely a sexual act (HC, 144, 151, 164, 169, 206. “…only mode of sexual expression is anal penetration”). Though the CoA falls to a similar reduction occasionally (7, 15, 54), the brief observations on privacy towards the end rightly set the ground for a more expansive jurisprudence which could argue that the public assertion of identities by those who identify with same sex relations are just as crucial to ensuring the equal moral membership of these individuals. Recall here that the move from acts to identities and from private (spatial) to private (decisional autonomy) animated the entire judgment of Justice DY Chandrachud in Navtej. Though the CoA sometimes falls to the trap of brief in these observations, the observations of CoA are bound to progressively inform and influence the development of jurisprudence in Botswana.

Conclusion

In carefully navigating the arguments urged by the Government as well as its previous decision in Kanane, the CoA explicitly recognises the stigma, prejudice, vulnerability and exclusion faced by same-sex relation individuals by relying on expert evidence filed by the Amicus as well as studies authored by the Botswana government itself (15-17). It calls to attention the fear of arrest and the exclusion from access to public health facilities. Crucially, it notes that such sitgmatisation persists ‘at all levels of society’ which will continue even after the striking down of the impugned provisions (16). In so doing, the CoA signals that ensuring the equal moral membership of these individuals is not restricted to circumscribing state action alone, but must be informed by a broader cultural permeation of constitutional rights in the horizontal and inter-personal relations between individuals. The recognition of this aspect rightly brings to attention that judicial intervention is but a first step towards ensuring equality, not conceptualised merely as the absence of legal barriers but as creating an environment sans social barriers as well in which these identifies can foster, thrive, and be afforded the guarantees enshrined in the Constitution. In political theory that is oft-dominated by the jurisprudence of western courts and authors, the judgment of the CoA promises to ring loud. The judgment is worthy of commendation.