Guest Post: The Hijab Judgment and the Meaning of Constitutional Secularism

[This is a guest post by Karan Gupta.]


Numerous questions arose consequent to the recent ban in Karnataka on students wearing a hijab over a school uniform in classrooms. Some resolution was brought to the dispute on 15 March 2022, when a three-judge Bench of the Karnataka High Court dismissed the petitions challenging the ban. The High Court adopted a narrow path to reach its conclusion – that wearing a hijab is neither essentially religious nor is it an essential religious practice. To the Court, the ban, though touching upon the right to privacy, autonomy, and agency, is a constitutionally permissible restriction.

Some authors have commented on the judgment from different angles (see here, here, here, here, and here). I will focus however on the Court’s reasoning and conclusion which rests on India’s commitment to secularism. In unpacking the arguments raised, I argue that the Court committed itself to operationalising secularism through an equality lens which views all individuals as abstracted from society. This lens prioritises uniformity, assimilation and sameness within the arbitrarily identified ‘quasi-public space’ of a classroom, as opposed to viewing individuals as shaped by distinct identities and consequently prioritising the recognition, protection and celebration of plurality.

Secularism – Two questions

In unpacking how the case sets the stage for secularism as a cause of concern, let us consider two roughly separate questions – what is secularism and how is it operationalised/achieved? 

On the first question, I suggest reading the Petitioners’ argument in the following manner: first, India is committed to a “positive” secularism which entails religious diversity, pluralism, and toleration; second, under the Indian Constitution, though the state is not anti-religion, the Constitution proscribes state action which discriminates against individuals on religious grounds.

On the second question, I suggest reading the Petitioners’ argument in the following manner: first, operationalising secularism includes recognising, protecting, promoting, and celebrating diversity and proscribing any action which homogenises and erases diverse identities; and second, flowing from the previous, where state action indirectly discriminates against an individual on the basis of religion, there is a duty of reasonable accommodation. The argument then was that positive secularism, understood as religious diversity, pluralism, and toleration, is operationalised through recognising and protecting diversity through the implementation of the non-discrimination duty.

The Court accepts the Petitioners’ arguments on the first question (what is secularism) and rejects the arguments on the second question (how is secularism operationalised). It is worth unpacking this in some detail.

Individuals and Identity

The Court accepted that India is committed to positive secularism, which is “not antithesis of religious devoutness but comprises in religious tolerance” (p. 42). It also accepted that secularism, as a basic feature of the Indian Constitution, places upon the state a duty to not discriminate against anyone on the basis of religion. (p. 42). The Court cited Chief Justice S. R. Das’ (as he then was) observations in Re: Kerala Education Bill that India has welcomed diverse creeds, cultures and races, the observation in S. R. Bommai that India, as the ‘world’s most heterogenous society’ celebrates its rich heritage through accommodation and tolerance, as well as the Supreme Court’s observations in Indira Gandhi v Raj Narain that the basic feature of secularism is that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion (p. 40-42). So far, so good. The crucial move however, which touches upon the second question, came immediately thereafter.

The Court recorded that “it is pertinent” that the Constitution imposes a Fundamental Duty to promote harmony and the spirit of common brotherhood transcending religious, linguistic and regional or sectional diversities (p. 42). The Court observed that this duty is as also found in the Karnataka Education Act 1983 Act, which empowers the State to act in a manner to “inculcate the sense of this duty” and “cultivate a secular outlook” (p. 97). The move here is crucial. To the Court, the commitment to secularism (or as the Court frames it – ‘a secular outlook’) is operationalised/achieved by transcending religious diversities. And how should this be done? The Court answered – through equal treatment that is not informed whatsoever by religious identities or claims. As long as all individuals are treated equally(i.e., in the same manner), and no space is accorded whatsoever for religious claims, the actions aid in transcending religious diversities and are constitutionally protected (p. 95-97). To the Court, any religion-sensitive treatment undermines the constitutional duty to transcend religious diversities, and by extension undermines the commitment to secularism.

This, I argue (with respect), is problematic.

Individual identity is shaped by their membership of groups across different axes – nationality, religion, language, caste, colour, creed, etc. There is a critical difference between an identity axis as the basis for autonomy, agency, and self-actualisation as compared to an identity axis as the basis for prejudicial and degrading treatment based on group membership. This view of equality is sensitive to the reasons and effects for which the identity axis is employed. If race is employed as the basis for actions which result in recognising and redressing past disadvantage, or addressing structural inequality, this would arguably be permissible. However, if race is used as the basis for actions which perpetuate unfair treatment and stigmatisation, these actions would be suspect. It recognises, protects, promotes and celebrates a claim arising out of an identity axis when it furthers individual liberty and proscribes state action where it perpetuates unfair treatment.

For instance, the former explains the Constitutional guarantee that any section of citizens having a distinct language shall have the right to conserve the same (Art. 29) as well as the enabling provisions empowering the President to direct that a language be officially recognised throughout a State if a demand is made by a substantial proportion of the population of a State (Art. 347). The latter explains the constitutional guarantee that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds of religion (Art. 29.2). This also explains the co-existence of the constitutional guarantee to the freedom of conscience and the right to freely profess, practise and propagate religion (Art. 25.1) and the provision enabling the state to make law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice (Art. 25.2). The distinction based on the reasons and effects recognises that an identity axis (say language and religion) may at an individual level be founded in autonomy and agency, be deeply constitutive of individual identity, and be worth protecting. The distinction also recognises that identity axes have historically been the basis of prejudicial and degrading action, requiring constitutional non-discrimination guarantees on their basis.

The Court overlooked the above difference. To the Court, any claim grounded in or arising out of religion, whether based on autonomy, privacy, and choice or to recognise and redress past disadvantage and prevent its perpetuation, is impermissible. To the Court, transcending religious diversities (which is how secularism is operationalised) entails viewing every individual, not as located at the cross-currents of distinct identities and group memberships, but as a unit abstracted from society. Social structures, power imbalances, past and present practices are all irrelevant so long as the action under challenge treats all individuals equally(i.e., in the same manner). Even if the action under challenge results in unfavourable treatment, exclusion, or relative group disadvantage, the same is sustainable as long as every individual has been treated equally.

Notice how the above view is often the basis of the argument against reservations. In adopting the ‘equality as symmetry’ view, the argument runs that any differential treatment, even if explained through recognising and redressing past disadvantage, constitutes preferential’ treatment, which is impermissible. The Court adopts this view of equality as symmetry and sameness in contrast to an equality which is sensitive to social structures, power imbalances, past and present practices.

Armed with the view that secularism is operationalised by transcending religious diversities, and that this entails treating all individuals in the same manner, the Court concluded that the State is right in its argument that the prescription of a dress-code (even if to the exclusion of hijabs), being “religion-neutral” and “universally applicable” cannot be called into question as it operationalises constitutional secularism (p.39, 96). As every individual is a unit abstracted from society, the prescription of a dress-code, in so far as it treats “all the students as one homogenous class, serves constitutional secularism” (p. 96).

An (undesired) solidarity of sameness – indirect discrimination, reasonable accommodation, and public spaces

The Court’s reasoning from the above may be deduced thus:

  1. Indian is committed to positive secularism, which entails religious diversity;
  2. Operationalising secularism involves a duty to transcendall religious diversity;
  3. Religious diversity can only be transcended by abstracting individuals from the ebbs and flows of societal structures and treating allindividuals in the samemanner; and
  4. Any differential treatment, based on religious identities or claims, will undermine the constitutional commitment to secularism.

This above line of reasoning sets the stage for the Court to address (and reject) the Petitioners’ arguments on indirect discrimination and reasonable accommodation. The argument was two-fold – first, proscribing hijabs within classrooms, in so far as it prejudicially affects only women, amounts to ‘gender–based’ discrimination which Article 15 does not permit (p. 28); and second, where facially neutral regulations have an adverse impact on one gender or one religion, a commitment to substantive equality places the burden of reasonable accommodation on the State – i.e., where there is no undue burden/hardship, the state must take steps to accommodate the claim (p. 29).

These above contentions were however decidedly at odds with the Court’s understanding that any action is protected as long as it treats all individuals equally(in the same manner) in furtherance of the secular commitment to transcend all religious diversities. Thus, the Court’s rejection of the Petitioners’ arguments rested comfortably on its own understanding – “when the dress code is equally applicable to all the students, regardless of religion, language, gender or the like”, there is “absolutely no scope” for a challenge on discrimination (p. 100).

The Court then went one step forward and took the reasoning to its logical conclusion and rejected the argument for reasonable accommodation. The Court held that if the Petitioners argument was accepted, there would be two classes of students – those who wear a hijab and those who do not. To the Court, the object of prescribing a uniform (i.e., ensuring uniformity, transcending religious diversities, and homogenising) would be defeated if there is “non-uniformity in the matter of uniforms”.  And thus, if the Petitioners’ arguments were accepted, the uniform “ceases to be uniform” (106). The next observation is crucial. The Court noted that “this would establish a sense of social separateness, which is not desirable”. The Court noted that as young children are highly impressionable, and grasp the “differentiating lines of race, region, religion, language, caste”, proscribing hijabs creates a “safe-space where such divisive lines should have no place” (107).

Notice the emphasis on the object of prescribing a uniform within educational institutions, and specifically classrooms. This is not piece-meal, but animates the entire judgment. Something must explain the Court’s acceptance of India’s commitment to a positive secularism which entails religious diversity and plurality and at the same time be averse to the visibility of that diversity within classrooms. This distinction between a public space generally and the public space of a classroom is explained in the Court’s acceptance of the State’s argument that educational institutions are ‘qualified public spaces’ (p. 32). The Court concluded that: first, schools are qualified public spaces predominantly for imparting education; second, imparting education implicitly includes discipline and decorum; third, given the qualified nature of the space with a demarcated primary goal, substantive rights “metamorphise into a kind of derivative rights” and must give way to the primary goal (p. 100). With this, the Court concluded that by “no stretch of imagination” can it be said that the prescription of a dress-code offends the right to expression or autonomy (p. 100). The Court cements its distinction between public spaces and the qualified public space of the classroom by concluding that women “can wear any apparel of their choice outside the classroom” (p. 124).

With respect, the Court’s reasoning on the above front is inadequate. First, there is no explanation whatsoever on what demarcates a ‘space’ as a qualified public space. For instance, why are only classrooms carved out, as opposed to the entire school premise itself? Second, the arbitrary demarcation of ‘qualified public spaces’ would open the floodgates to arguments that all substantive rights are nothing but derivative rights within such qualified spaces which must give way to the primary objective with which those spaces are demarcated; third, the Court offered no justification as to why secularism may be operationalised differently within a classroom as opposed to outside it. To me, the only explanation is the Court’s notion that it is mostly young impressionable students (p. 107) who are within classroom and as operationalising secularism is solely understood as transcending religious diversities, students should not be allowed to “readily grasp” the “differentiating lines” of religion. But this is again not helpful as there is no explanation as to why transcending religious diversities operates in this specific manner within classrooms only and why the logical conclusion is not that religious diversity and plurality must be eliminated from all public spaces which are equally accessible to ‘young’ and ‘impressionable’ children.

There is yet another worrying premise in the reasoning – that seeing difference and diversity is problematic and does not serve constitutional secularism. To the Court, transcending religious diversities entails that such diversity should not be seen in the public space of a classroom, as these would create separateness. Recall here that one basic premise of critical race theory is that ‘colour-blindness’ or not seeing race for any context and in public spaces is in reality a technology of power to prevent the redressal of past disadvantage or celebrate diversity in the name of universalism. At its base, colour-blindness (and by extension religion-blindness) obscures the distinction I noted above which touches upon the reasons and effects for employing an identity axis and treats any action based on an identity axis as impermissible. The Court adopted a similar premise and held that constitutional secularism is served by eliminating any plurality in the public space which (to it) may cause social-separateness.

The Court however overlooked the importance of seeing diversity and locating every individual within their societal structures and power hierarchies. It (regrettably) accepted that transcending religious diversity entails suppressing and turning a blind-eye to any religious plurality within the classroom as a public space. In accepting that students should not see diversity, and that uniformity and assimilation is the core ideal, the Court committed itself to a universalism that is erroneously structured on the solidarity of sameness, rather than the dynamics of celebrating difference and plurality. In doing so, the Court operationalised secularism by arbitrarily carving out a ‘qualified public space’ and effectively suspending the right to freely profess, practise and propagate religion.

Conclusion

The Petitioners’ argued that a commitment to positive secularism was operationalised through protecting, promoting, and celebrating diversity, while the State argued that the commitment was operationalised by transcending all religious diversities through equal treatment, homogenisation, assimilation and the removal of any plurality from public spaces. Ratna Kapoor was right to caution over two decades ago that ideological battles are waged not “in opposition to secularism, but in and through it”. The Court vindicated this when it recognised that both sides equally emphasised secularism to buttress their arguments (p. 39).

In failing to recognise that the reasons for and effects of employing an identity axis are relevant, the Court accepted the argument that secularism is operationalised/achieved through an equality lens which views all individuals as abstracted from society and prioritises uniformity, assimilation and sameness. In a bid to achieve this, it also abandons its own observations on the first question of what constitutes secularism.

It is ironic that the Court recognised that India is a “sanctuary for several religions, faiths & cultures that have prosperously co-existed” (p. 40). It is also ironic that the Court quoted the words of Rabindranath Tagore that “none shall be turned away from the shore of this vast sea of humanity that is India”. It is not ironic however that a secularism which accommodates, celebrates and nurtures plurality and diversity has been rejected. It remains to be seen whether the Supreme Court will take note of the two questions on secularism as well as the distinctions urged above and arrive at a different conclusion.


[All views are personal]

Stenographer for the Prosecution: The Bail Order in Umar Khalid’s Case

In the last few months, there has been something of an internal tug-of-war within the judiciary on the question of bail under the Unlawful Activities Prevention Act [“UAPA”]. As we have seen, the Delhi and Bombay High Courts have pushed back against the notion that in a UAPA case, the judiciary’s role is to act as a stenographer for the Prosecution, mechanically reproduce the allegations in the chargesheet, and keep people in jail until the ten or fifteen years that it takes to complete a trial. These Courts have pointed out that, given how strict the UAPA’s threshold requirement is for granting bail, it behooves the judge to subject the Prosecution’s case (which is the only case that exists at the time of bail) to an equally strict scrutiny: both on the necessity of factual evidence being concrete and specific, and on the question of whether the legal standard under the UAPA is made out. On the other side, we have the Supreme Court’s judgment in the notorious Watali case, as well as some trial court judgments (e.g., in Safoora Zargar’s case), where the attitude has been that Courts should adopt a feather-light touch towards the prosecution case when considering bail, and not look too closely or too deep at that the State has placed before them. If the result is that people stay in jail for upwards of a decade waiting for trial, then that is just the way it is.

The order passed today by the Addl. Sessions Judge at Karkardooma Courts in Delhi, denying bail to Umar Khalid in the Delhi riots case, is significant because it represents that extreme version of the second approach. As is well-known by now, the core argument of the Prosecution in these cases is that the Delhi riots were the culmination of a well-planned conspiracy, which were “masterminded” by a group of people, including Umar Khalid, under the guise of protesting against the CAA/NRC. In Khalid’s case – as a reading of the bail order makes pretty clear – there were several hurdles before the Prosecution, to wit that: (a) Khalid had given no public call to incitement to violence – in fact, quite the contrary; (b) there was no material on record showing Khalid’s participation in funding or transporting arms, and no recoveries from him; (c) when the riots took place, Khalid was not even in Delhi. This being the position, the Prosecution’s case was strung together by a set of witness statements to the effect that “X saw Khalid along with Z”, “A heard Khalid say G”, and – in some cases – “B heard Y say that Khalid said C” (it is important to note that the last of these statements legally could not be considered by the Court at trial, because it ie hearsay).

In this context, the bail order takes the following structure: first, the Court records what the Prosecution witness stated (in most cases, this witness is anonymous, carrying names such as “ROMEO” and “JULIET”); secondly, it records the defence counsel’s argument that – for certain well-founded reasons, the statement is ex facie unreliable (e.g., it was recorded substantially after the fact, or is contradictory to another statement, or has already been disbelieved in separate proceedings); thirdly, it says that the defence counsel’s objections can only be considered during the trial, and are therefore discounted. Fourthly, and ergo, the witness statement is to be accepted as entirely true (no matter how implausible, contradictory, or vague in particulars it might be).

This is basically the entirety of the bail order. In paragraph 10, the Court records witness Tahira Daud’s statement that Umar Khalid expressed support for Sharjeel Imam’s call for a chakka jam in a meeting in a Jangpura office on a certain date; it then records protected witness “Bond’s” statement that Umar Khalid called for overthrowing the government when “the time is right”, and for a chakka jam; it then records Bond’s statement that at a certain meeting two other people said that Umar Khalid had told them to use women and children as shields at the protests; in paragraph 10.4, the Court refers to witness “Bravo’s” statement about Khalid’s presence at a meeting at the Indian Social Institute; then to a statement by witness “Saturn” about a meeting between Umar Khalid, Khalid Saifi, and Tahir Hussain at Shaheen Bagh; then, in paragraph 10.5, to statements by witnesses “Smith”, “Echo”, and “Sierra” about a “conspiratorial meeting” at Jafrabad between Umar Khalid, Pinjra Tod, and others. In fact, paragraph 10.5 is particularly instructive, as it is quite representative of the bail order, and deserves to be set out in full:

A conspiratorial meeting took place in the intervening night of 23/24.01.2020 at Seelampur, Jafrabad Protest site between Umar Khalid with Pinjra Tod members and others. It was decided to induce local women of Seelampur to start stock piling knives, bottles, acids, stones, chillypowder and other dangerous articles to be used in rioting as part of a conspiracy. The plan was to escalate the protest to the next level of chakkajam and then riots. This is confirmed by statement of protected witness Smith, Echo and Sierra. (Again, Ld. Senior Advocate referred to some minor inconsistencies which the witness will be required to explain during trial, but there are incriminating material against the accused in the statement of the said witnesses).

On a reading of this paragraph, the following stands out. First, vagueness of particulars: it is unclear who “the others” were or who the “members” of Pinjra Tod were, and there is no material detail at all about what specifically was said, and what made the meeting “conspiratorial”. This is particularly important, because even if you were to discount the points that follow, and subject the statements to a no-touch scrutiny, the vagueness makes these statements incapable of supporting a concrete and specific charge under the UAPA; but in any event, and secondly, there is not even light-touch, but zero scrutiny of the witness statements on their own terms; and thirdly, there is no engagement, but summary dismissal of the defence’s attack on the witness statements – again, on their own terms – with the observation that this is a matter for trial. It is important to ask oneself if a system rhetorically committed to the “rule of law” ought to be countenancing jailing people for years without trial on such quality of reasoning.

In paragraph 10.7, the order refers to statements by “Helium” and “Crypton” about Umar Khalid telling Bangladeshis to fight against the CAA (again, even if true and taken at the highest, not a UAPA offence); in paragraph 10.11, there is perhaps the only reference to a public speech by Umar Khalid, in which he “refers” to the visit of then-President Donald Trump (what, specifically, Khalid said about Trump is not discussed). The Court then refers to various protected witness statements about certain other individuals – not Umar Khalid – allegedly preparing for riots; at this point, it is unclear how this serves as proof of conspiracy against Khalid; later on, however, the Court uses Khalid’s membership of a WhatsApp group – the DPSG – to establish his “links” with the conspirators. In paragraph 10.14, hearsay evidence returns: witness “Bond” records that he was told by someone else called Asif that he, Asif, had received instructions from Umar Khalid and Nadeem to start riots; the Court then records some other witness statements that do not feature Khalid, but uses that to conclude that the riots were, indeed, pre-planned, and not spontaneous. In paragraph 10.23, the Court refers to a “flurry” of calls that took place between a number of people after the riots started, including Umar Khalid. We do not know the content of these calls, so it is unclear what role they play in the Court’s analysis. The Court notes that “the calls still show how different accused persons are linked and talking to each other after the riots have begun and more importantly, most of the accused persons involved reached a common place.” Yet again, however, there is no explanation forthcoming of what this linking actually shows: indeed, this is a fourth common theme running through the bail order. Both when it comes to the WhatsApp group and to the phone calls, in the absence of any specific evidence, the Court falls back on what appears to be a guilt by association argument (somewhat ironic, as none of the accused have actually been convicted yet): that Khalid’s role in the conspiracy is made out through these “links”, even though there is no evidence about what the specific nature of these links was.

In paragraph 12 onwards, the Court refers to some more protected witness statements, which – again – stand out in their vagueness. In paragraph 12.3, witness “Gama’s” statement that Umar Khalid gave “provocative statements” is recorded (what were these statements? Whom – and how – did they provoke?); in paragraph 12.4, witness “Delta” states that Umar Khalid gave “a speech against the government” (…and?); in paragraph 12.5, witness “Saturn” states that “Tahir Hussain also went to Shaheen Bagh on 08.01.2020 where Umar Khalid and Kahid Saifi were also present” (… and?); in paragraph 12.6, witness “Helium” states that Umar Khalid talked about educating Bangladeshis to fight against the CAA (… and?); in paragraph 12.7, protected witness “Beeta” (sic) states that he saw a video of Umar Khalid giving a speech about coming out onto the roads for Trump’s visit (…and?); this goes on in the same mould, with similar anonymous witness statements – vague and free of material particulars – recording, for example, Umar Khalid telling a third party about spilling blood.

This detailing is undoubtedly tedious; but it is important to set it out, because it helps to contextualise the Court’s legal finding about Umar Khalid’s “role” in the riots, which occurs at paragraph 12.1 and 14:

In terms of the chargesheet, as discussed above, it is noticed that the name of accused Umar Khalid finds a recurring mention from the beginning of the conspiracy till the riots. He was a member of Whatsapp group of Muslim Students of JNU. He participated in various meetings on 07.12.2019, 08.12.2019, 13.12.2019, 26.12.2019, 08.01.2020, 23/24.01.2020, 10.02.2020. He is also a member of the DPSG group and attended meeting at Indian Social Institute (ISI) on 26.12.2019. He gave reference to Mr. Donald Trump, President of USA in his Amrawati speech on 17.02.2020. He was also mentioned in the flurry of calls that happened post riots, as mentioned above. He was instrumental in creation of JCC.

Ld. Senior Advocate for the accused had correctly argued that accused Umar Khalid was part of the Whatsapp group MSJ and DPSG but he has not written many messages in those groups and they are not overtly provocative or incriminatory. However, the fact that he was part of such groups created for specific objects and his acts or presence throughout the period beginning from the passing of the CAB Bill in December 2019 till the February 2020 riots, as mentioned above, has to be read in totality and not piecemeal. He has connectivity with many accused persons.

The case against Khalid, therefore is based on: (a) membership of WhatsApp groups; (b) participation in various meetings, the particulars of which are provided by anonymous witnesses, for the most part in vague terms; and (c) being mentioned in a “flurry of calls” after the riots began.

Out of these three legs, the first and third wouldn’t be enough – as they say colloquially – “to hang a dog on.” Of the second leg, as pointed out above, every statement, in all its glorious vagueness, is accepted by the Court without any further analysis; indeed, as we have seen above, many of these statements – even taken on their own terms – are allegations of Khalid engaging in constitutionally protected, legitimate speech; when you take those away, what you are left with is essentially four or five anonymous witness statements claiming that Khalid said X or Y incendiary or violent thing. Now, the Court engages in no analysis about whether these statements – even if taken as absolutely true – would constitute a UAPA offence; instead, it undertakes an exercise of filling in the gaps in the Prosecution’s case, by pulling together these statements, “membership” of WhatsApp groups, and “connectivity” with accused persons, throwing them together, and claiming – without reference to the legal standards – that the bar under UAPA has been attracted.

Thus, on a close reading of the sixty-one page long bail order, the denial of bail to Umar Khalid is based entirely upon an act of judicial stenography: the Court reproduces the statements in the chargesheet, refuses to examine them on their own terms, refuses to engage with the defence’s examination of them, and finally – and most importantly – fills in inferences of guilt where the prosecution’s case is vague or missing particulars. It is crucial to note that UAPA precedent does not require the Court to act as the prosecution’s stenographer in bail cases: not even the Watali judgment goes that far, and – as we have seen – there are, by now, numerous High Court judgments (which the Court fails to engage with) that articulate the basic common sense that a UAPA case does not require a judge act as if they have undergone lobotomy just before writing the judgment.

The implications of this are both obvious and frightening. The bail order takes us to a position where the Prosecution can write literally anything in its UAPA chargesheet – vague, inconsistent, implausible, ex facie false, things that you would laugh at if someone presented them to you and tried to make your believe them – and we will have a bail order that will reproduce those statements, park all objections for a trial that will not finish for the next ten years, and ensure that people remain in jail all that time. This is the embodiment of a broken criminal justice system – broken not just by the UAPA and its language, but broken by judges who, somewhere in all this, seem to have forgotten the judicial role as being one that tempers and confronts State abuse.

It now remains to be seen whether that internal tug-of-war that I mentioned at the beginning of the post will see a course-correction when this – or other cases – go up on appeal; or whether we will only see the continued descent of the judiciary from sentinel on the qui vive to stenographer for the Prosecution.

Guest Post: Decisional Autonomy and Group Privacy – on the Karnataka High Court’s Hijab Judgment

[This is a guest post by Shreyas Alevoor.]


The ongoing Hijab controversy raises interesting questions about the limits of expression and privacy. The Karnataka High Court’s judgement begins by recognizing that one’s attire is an aspect of decisional autonomy and privacy, as set out in the Supreme Court’s judgement in KS Puttaswamy vs. Union of India. However, it then goes on to hold that the right to privacy is not of much significance in this matter [pg. 99], as a “substantive right [of privacy] metamorphizes into a kind of derivative rights in [qualified public] spaces” [pg. 100].

How the High Court chose to (not)engage with the privacy question has been discussed previously on this blog, but I want to make a few observations here. In Part I of this post, I argue that the High Court’s judgement is premised on an incorrect understanding of decisional autonomy as a facet of privacy. In Part II, I argue that Puttaswamy recognizes claims of privacy by groups, and such a claim can be successfully used as an alternative to the Essential Religious Practices (ERP) test.  

Decisional autonomy

Privacy is a recognition of the sovereignty of the individual. Decisional autonomy then becomes an exercise of sovereignty by the individual against “legislative or popular” morality. In Puttaswamy, Chandrachud, J.’s majority opinion defines it as “intimate personal choices, as well as choices expressed in public such as faith and modes of dress”, and notes that “personal choices governing a way of life are intrinsic to privacy”. It follows that decisional autonomy (as an aspect of dignity) is valuable only if it allows for the full expression of one’s personality, and in all spheres of an individual’s life and not merely the personal. Furthermore, it is crucial to note that the reasons for wearing a Hijab can range anywhere on a spectrum between choice and coercion, with it being virtually impossible to determine where on the spectrum a particular individual’s wearing of the Hijab lies.

Puttaswamy recognizes only very limited grounds for limiting the right to privacy – reasonableness under Art. 14, grounds provided under Art. 19, substantive due process under Art. 21, and compelling state interest. In the present judgement, all of this is brushed under the carpet, with the reasoning that the right to privacy is not engaged sufficiently. The word ‘autonomy’ appears only five times in the operative part of the judgement, and is almost always qualified by the statement “subject to reasonable regulation”. However, the only hint of a compelling state interest found is that of maintaining positive discipline and decorum within the classroom [pg. 105].

The High Court then goes on to defer to the wisdom of the Executive [pg. 121], and holds that the Government Order had proven a loose nexus between the “wearing of Hijab and the ‘law and order’ situation” [pg. 119], contrary to the requirement of proving a rational nexus.

In my previous post, I had argued that the challenge in this case is to balance freedom of expression and decisional autonomy on one hand, and the larger public interest of protecting public order and morality on the other; and on balance, the former should prevail over the latter. Here, I borrow from John Dewey and propose an alternative argument: that as social beings, the good of the individual (i.e., privacy) does not have to necessarily conflict with larger public interests. Dewey claims that rights should be valued based on “the contribution they make to the welfare of the community”, or else, individual rights in most cases would be trumped by the social interests. Indeed, there exists a social value in protecting the decisional autonomy to express oneself – that of promoting secular and democratic values – which is explicitly recognized in Nariman, J.’s concurring opinion in Puttuswamy:

82. The core value of the nation being democratic, for example, would be hollow unless persons in a democracy are able to develop fully in order to make informed choices for themselves which affect their daily lives and their choice of how they are to be governed.

As also by the majority in Puttaswamy [pg. 263]:

Privacy protects heterogeneity and recognizes the plurality and diversity of our culture.

Reading group privacy into Puttaswamy

Without delving into its nuances, group privacy at its simplest not only seeks to protect the personal privacies of its individual members (derivative privacy), but also the privacy of a group as a group which shares common visions and goals (inferential or strong privacy).

There is reason to believe that Puttaswamy recognizes claims of privacy by groups.

The criticism of the Suresh Koushal judgement by the majority in Puttaswamy provides an excellent starting point. It considers how a general right to privacy intersects with gender and sexual orientation to create a “private space which protects elements crucial to gender identity” [pp. 169]. Here, we must also consider the implications of privacy intersecting with religious identity (which is a personal identity characteristic like gender). These implications are briefly considered in Bobde and Chelameswar, JJ.’s concurring opinions. Importantly for our purposes, the majority also held that the LGTBT community cannot be denied the right to privacy merely because it is a “minuscule fraction of country’s population” [pp. 126].

Bobde, J.’s concurring opinion notes that privacy “constitutes the springboard for the exercise of freedoms” under Art. 19:

31. … A peaceful assembly requires the exclusion of elements who may not be peaceful or who may have a different agenda. The freedom to associate must necessarily be the freedom to associate with those of one’s choice and those with common objectives.

33. The right of privacy is also integral to the cultural and educational rights whereby a group having a distinct language, script or culture shall have the right to conserve the same.

43. Exercising privacy is the signaling of one’s intent to these specified others – whether they are one’s coparticipants or simply one’s audience – as well as to society at large, to claim and exercise the right.

From Chelameswar, J.’s concurring opinion:

39. The choice of appearance and apparel are also aspects of the rights of privacy. The freedom of certain groups of subjects to determine their appearance and apparel (such as keeping long hair and wearing a turban) are protected not as a part of privacy but as a part of their religious belief. Such a freedom need not necessarily be based on religious beliefs falling under Art. 25.

Consider then the following line of argument:

  1. Decisional autonomy as a facet of privacy enables one to “preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices” against majoritarian diktats.
  2. The general right to privacy intersects with deep personal identity characteristics (like gender and religion) to create a space where elements crucial to that identity are protected.
  3. The right to privacy includes right to form groups (and also exclude people from the group), which have the right to preserve and promote their symbols of identity – language, culture, and forms of appearance and apparel in both private and public spaces.
  4. The right to privacy cannot be denied to a group merely because they are “minuscule”.

I would suggest that this is a better alternative to the ERP test. Among other things, the ERP test denies agency to smaller sects or dissenting groups within a religion which may not follow the practices of the majority. In the present case, the High Court held that the claimants had failed to meet the ‘threshold of pleadings and proof’, as they had not shown how long the petitioners had worn the Hijab; and if Islam would “lose its glory and cease to be a religion” if one does not wear the Hijab – without considering the possibility that there may be a group within Islam which deems the wearing of Hijab an essential to their identity. This is especially problematic in a diverse country like India, where cultural and religious practices differ across lines of class, caste and region.

Conclusion

The silver lining in the High Court’s order in the Hijab controversy is that it lays bare the problems with the ERP test. It also shows that cases involving questions of identity treated as mere thought experiments. This should be one of them good problems for the Supreme Court – it has an opportunity to update its discrimination, free speech and privacy jurisprudence, and hopefully, do away with the ERP test entirely.

Between Agency and Compulsion: On the Karnataka High Court’s Hijab Judgment

It is an old adage that the manner in which you choose to frame a question will decide the answer that you will choose to give yourself. In today’s judgment by the Karnataka High Court upholding a ban on the wearing of the hijab within classrooms, that giveaway can be seen at page 39 of the judgment, where the Full Bench frames four questions for consideration. The second question reads: “Whether prescription of school uniform is not legally permissible, as being violative of petitioners Fundamental Rights inter alia guaranteed under Articles, 19(1)(a), (i.e., freedom of expression) and 21, (i.e., privacy) of the Constitution?

It is notable that the Court asks itself a question that nobody else had asked, and indeed, nobody could ask, given how absurd it is: whether a school uniform is itself unconstitutional. But that framing allows the Court to elide the fundamental argument before it – i.e., that the wearing of the hijab alongside a school uniform is consistent with the broader goals of constitutionalism and education – with the sanctity of the uniform itself. A close reading of the judgment reveals how the uniform haunts the Court’s imagination on every page, topped off by the extraordinary remark on page 88, where the Court says that “no reasonable mind can imagine a school without a uniform.” The unarticulated premise of the judgment is that the claim to wearing the hijab is a claim against the very idea of a school uniform, and that allowing the former would destroy the latter. Respectfully, this elision leads the Court into misconstruing and misapplying a range of settled constitutional principles, and for those reasons, the judgment ought to be overturned on appeal.

Introduction

First, a quick summary: the Court’s decision to uphold the ban on the hijab rests upon three constitutional grounds. The first is that the wearing of the hijab does not constitute an “essential religious practice” under Islam, and is therefor not insulated from the regulatory power of the State (pp. 53 – 79, pp. 85 – 87); secondly, that to the extent that wearing the hijab is an aspect of the freedom of expression, or the right to privacy, the ban is reasonable restriction upon the exercise of those rights (pp. 88 – 112); and thirdly, as the Government Order under challenge is facially neutral and non-sectarian (i.e., does not single out the hijab), there is no unconstitutional discrimination against Muslim women students (pg. 96).

Essential Religious Practices

I do not want to spend too much time on the first argument. I have written before why framing the argument in terms of the essential religious practices test is unsatisfactory, both in general, but also specifically in this case, not least because it strips Muslim women of any agency in the matter, and essentially argues that the wearing of the hijab is not a matter of choice (no matter how situated, complex, or otherwise messy the context of that choice may be), but is objectively compelled by the tenets of Islam. Additionally, there is nothing particularly noteworthy about the Court’s analysis of this point, either way: surveying the sources (in particular, the Qur’an), the Court finds that the Petitioners have failed to prove that wearing the hijab is essential to Islam – i.e., that is is mandatory, non-optional, and that Islam would lose its identity if women did not wear the hijab. Under the essential religious practices doctrine, these are broadly the parametres of the analysis (leave aside the fact – as most people have pointed out – that neither the Court, nor external commentators, are particularly well-placed to conduct this analysis). Having established this, the Court is therefore able to hold that, as a matter of religious freedom, the right to wear the hijab is not insulated from State regulation.

There is, of course, a problem with the analysis in that it effectively denies to the Muslim women the ability to frame their argument as one of religious choice, and requires, instead, for them to argue in the language of religious compulsion. This is particularly ironic when we think of the right as the “right to religious freedom”; the blame there, however, lies squarely with the essential religious practices test, as it has evolved over the last seventy years, and it is clear that there is no way out of this hall of mirrors until that test is overruled.

Freedom of Expression and Privacy

Let us now come to the argument where, in my respectful submission, the Court’s analysis is mistaken. Previously, on this blog, it has been argued that the freedom of expression and the right to privacy are important rights implicated by this case. To sum up the argument in brief: as held by the Supreme Court in NALSA v Union of India, dress can, on certain occasions, and depending upon the context, be a form of “symbolic expression” that is protected by Article 19(1)(a) of the Constitution (why it should be treated as such in this case has been argued in the linked posts). The application of the right to privacy – in terms of decisional autonomy – is also evident. Note that the freedom of expression and privacy arguments are not cleanly separable from the religious freedom arguments: indeed, it could well be – in certain cases – that the very reason why wearing the hijab is a form of symbolic expression is because it is worn as a defence of a beleaguered identity.

Once the rights to freedom of expression and privacy are triggered, the analysis moves to restrictions, where the test of proportionality applies. Proportionality requires, among other things, that the State adopt the least restrictive method in order to achieve its goals. Thus, where something less than a ban would suffice, a ban is disproportionate. The proportionality framework provides the broad intellectual scaffolding within which multiple jurisdictions across the world, as well as India in the NALSA judgment, when dealing with cases involving dress codes and uniforms, have adopted the test of reasonable accommodation. Reasonable accommodation requires the Court to ask whether, in a setting where a certain default exists, a particular claim for departing from that default, founded in constitutional rights, can be reasonably accommodated by the State (or private party), without the activity in question losing its character. In case of the hijab, the claim for reasonable accommodation is straightforward: that the wearing of the hijab (especially hijab that is the same colour as the uniform and is simply draped, like a shawl, over the head) can be reasonably accommodated alongside the uniform, without damaging or in other ways vitiating the overall public goal of education.

How does the Court respond to the argument? The reasoning is somewhat scattered in different parts of the judgment, but drawing it all together, this is how the Court’s argument goes:

  1. Dress is not at the “core” of free expression and privacy rights, but is a “derivative” right, and therefore weaker (page 99).
  2. The classroom is a “quasi-public space”, where the operation of rights is weaker (page 100).
  3. Given (1) and (2), and given the overriding salience of the uniform in a classroom, the proscription of the hijab is reasonable.

With respect, this analysis is flawed. It is true that in US jurisprudence – such as the O’Brien judgment – visible manifestations of expression (such as clothing) can be regulated by the State; however, that is in the context of the American First Amendment, which in cases of State restriction upon speech, is more or less “absolute”. O’Brien only says that where you move from speech to visible manifestation, that “absolute” protection goes. However, in a proportionality-focused jurisdiction such as ours, whether speech is verbal or a visible manifestation, the test remains the same. This flows from the Naveen Jindal case, where the flying of the Indian flag was held to be protected under Article 19(1)(a) of the Constitution.

Secondly, it is unclear what exactly the concept of a “quasi-public space is”, since the Court does not undertake a genealogy of the phrase. At one point, it lists “schools, courts, war rooms, and defence camps” (page 104) as examples of quasi-public spaces, and you really have to wonder what on earth unites a classroom and a defence camp; but in my view, it is in any event a misreading of the NALSA judgment to argue that the salience of symbolic expression diminishes in a “quasi-public space”. Indeed, whether it is the public sphere or the quasi-public sphere, the whole purpose of recognising a right to symbolic expression – as manifested through dress – is to recognise that our “public” is diverse and plural, and that diversity and plurality (as long as it does not violate anyone else’s rights) is to be affirmed and not censored.

But it is the final part of the analysis where, in my view, the main error lies. The Court’s response to the reasonable accommodation claim is that the hijab cannot be accommodated because it would deprive the uniform of its uniformity. At page 107, it notes that:

The object of prescribing uniform will be defeated if there is non-uniformity in the matter of uniforms.

But that is patently circular: by definition, the doctrine of reasonable accommodation assumes the existence of a default uniformity, and argues that the default is insufficiently accommodating of a diverse and plural society; what the reasonable accommodation (and proportionality) analysis requires of the Court is to ask whether accommodation is such that it would undermine or otherwise destroy the purpose for which the default rule exists in the first place: which, in this case, is the purpose of education. The crucial error the Court makes is that it sanctifies the uniform instead of sanctifying education; instead of looking at the uniform as instrumental to achieving the goal of an inclusive and egalitarian right to education (and which would, therefore, require accommodation where accommodation would better serve that goal), it treats the uniform (and its associated values of sameness, homogeneity etc) as the goal itself. Thus, by mixing up levels of analysis, the Court’s proportionality and reasonable accommodation analysis is constitutionally incorrect. And the root of this error – as I have pointed out above – is the Court’s assumption that education is uniform – that “no reasonable mind can imagine a school without a uniform.”

Where the Court does attempt to move the analysis to education itself, its conclusions are suspect. For example, on page 96, it notes that by creating “one homogenous class”, the uniform “serves constitutional secularism.” But this is inconsistent with the Court’s own analysis in a previous part of its judgment, where it notes that the Indian concept of “positive secularism” does not require the proverbial “wall of separation” between religion and State, but is much more accommodating towards religious pluralism within the overarching public sphere. On page 97, the Court holds that the Petitioners’ argument that “the goal of education is to promote plurality … is thoroughly misconceived.” But the Court provides no citation or source that the goal of education – note, not the goal of a uniform, but the goal of education – is uniformity at the cost of pluralism. On page 101, the Court quotes this argument again, and this time – regrettably – chooses to ridicule it instead of engaging with it, noting that it is “hollow rhetoric” and redolent of the “oft quoted platitude” of “unity in diversity”. Ironically, after ridiculing this as a platitude, the Court immediately afterwards cites the Supreme Court judgment in Re Kerala Education Bill that uses the exact same phrase!

Even more ironically, in the same paragraph, the Court then cites the UK House of Lords judgment in Regina v Governors of Denbigh High School, where, in paragraph 97 of her speech, Lady Hale notes that “a uniform dress code can play its role in smoothing over ethnic, religious, and social divisions.” Unfortunately, however, the Court omits to cite what Lady Hale goes on to note in paragraph 98, which is this:

It seems to me that that was exactly what this school was trying to do when it devised the school uniform policy to suit the social conditions in that school, in that town, and at that time. Its requirements are clearly set out by my noble and learned friend, Lord Scott of Foscote, in para 76 of his opinion. Social cohesion is promoted by the uniform elements of shirt, tie and jumper, and the requirement that all outer garments be in the school colour. But cultural and religious diversity is respected by allowing girls to wear either a skirt, trousers, or the shalwar kameez, and by allowing those who wished to do so to wear the hijab. This was indeed a thoughtful and proportionate response to reconciling the complexities of the situation.

The judgment of the UK House of Lords in Denbigh High School, indeed, is a model of exactly the kind of analysis that the Karnataka high Court steadfastly sets its face against in its hijab judgment: Denbigh involves an extensive discussion about how schools in plural and diverse societies should accommodate difference instead of insisting upon uniformity; and the correct question to ask – which is always a contextual question – is at what point does reasonable accommodation tip over into a demand that is inconsistent with the goals of education (in Denbigh, it was the wearing of the jilbab). It is therefore somewhat extraordinary that the Court cited the judgment in support of its ruling, when the very next paragraph after the paragraph it cited explicitly noted that the wearing of the hijab in a school was a good example of reasonable accommodation!

In fact, the Denbigh judgment is an excellent example of why the fear that really seems to be animating the Court’s judgment is no fear at all. On page 105, the Court notes:

An extreme argument that the students should be free to choose their attire in the school individually, if countenanced, would only breed indiscipline that may eventually degenerate into chaos in the campus and later, in the society at large.

But nobody – nobody – ever really advanced this “extreme argument.” Denbigh in fact shows that it is actually fairly straightforward – and well within the domain of judicial competence – to examine cases on an individual basis, and draw principled lines based on context. Trotting out a hypothetical parade of horribles to deny a constitutional right is not good judicial practice.

Indeed, the fact that the Court is itself fully capable of drawing these distinctions when it wants to is made abundantly clear by the next case that it discusses: the South African judgment in MEC for Education, Kwa-Zulu Natal (discussed in previous blog posts), where the controversy involved the wearing of a nose-stud by a Hindu student. The Court distinguishes the case on the basis that “the said case involved a nose stud, which is ocularly insignificantly (sic), apparently being as small as can be.” (p. 108) Now in my respectful view this distinction is quite bogus (more on this below), but that is not the point I want to make here: the point I want to make is that the “extreme argument” that the Court articulates – where everyone would ask to choose their own attire, and there would be general chaos – is an argument that it doesn’t even seem to believe in itself, given how easily – almost facilely – it distinguishes between the hijab and the nose-stud.

Non-Discrimination

Earlier on this blog, detailed arguments were made about how the hijab ban violates the constitutional guarantee of non-discrimination. The Court addresses this argument very briefly, noting only that the proscription – based on the Government Order – was facially neutral and non-sectarian (pg. 96). Unfortunately, while this argument applies to direct discrimination, it does not apply to indirect discrimination, where facially neutral rules and regulations have a disproportionate impact on different people. The doctrine of indirect discrimination has long been accepted by the Supreme Court, and is therefore part of Indian jurisprudence.

In fact, it is the Court’s own analysis – in particular, its distinguishing of the South African case – that shows how indirect discrimination is squarely applicable to the present case. The Court’s distinction between the “ocularly insignificant” and (presumably) the “ocularly significant” is a classic example, in discrimination law jurisprudence, of a “facially neutral rule” (which, in the Court’s reading, would allow “ocularly insignificant” adornments to a uniform, but not others) that has a disproportionate impact, in this case, grounded at the intersection of religion and burden. In my respectful view, the Court’s failure to consider this ground at all provides another compelling reason for why this judgment should be set aside on appeal.

Addendum: A Case of Conscience

From pages 80 to 88, the Court undertakes a brief analysis of that forgotten cousin of the freedom of religion – the freedom of conscience. The main judgment, of course, is the iconic Bijoe Emmanuel case, where the right of the Jehovah’s Witnesses not to participate in the singing of the national anthem was upheld. The Court distinguishes Bijoe Emmanuel on two grounds. First, it argues that “conscience is by its very nature subjective. Whether the petitioners had the conscience of the kind and how they developed it are not averred in the petition with material particulars.” This is not entirely unreasonable, and perhaps offers valuable guidance to future cases (and indeed, this case on appeal). If indeed one is making a claim based on the freedom of conscience, then it needs to be specifically pleaded, with the acknowledgment – of course – that conscience is subjective. For example, an anti-war activist can refuse conscription by arguing that war conflicts with their pacifist beliefs – but they do have to spell that out in specific terms. In this case, perhaps, it may be necessary for the petitioners to spell out, perhaps in more concrete terms, the (subjective) reasons for wearing the hijab as a case of conscience – an argument that, of course, overlaps with the argument from symbolic expression.

What is less convincing is the Court’s attempt to show that Bijoe Emmanuel was not a case of conscience at all, but one of religious freedom, despite the fact that Bijoe Emmanuel specifically uses the phrase “matters of conscience.” It is important to note that conscience might flow from religious convictions (for example, I may be a pacifist because I am religious), but it need not do so. In that way, the clean-cut separation that the Court attempts between conscience and religious freedom is, in my respectful view, unsustainable – and might materially have altered the outcome of this case.

Conclusion

There are two important things to note, by way of conclusion.

The first is that the Court is explicit that its judgment applies to classrooms (i.e., not even school premises, but classrooms). It notes this specifically on page 124, after some rather (in my view) unfortunate remarks about how banning the headgear is emancipatory “for women in general, and Muslim women in particular”: it notes that:

It hardly needs to be stated that this does not rob off the autonomy of women or their right to education inasmuch as they can wear any apparel of their choice outside the classroom.

The scope, thus, is limited to classrooms.

Secondly, for the reasons advanced above, I believe that the judgment is incorrect, and should be overturned on appeal. It is incorrect for the following reasons: first, it mistakenly holds that the rights to freedom of expression and to privacy are diminished, or derivative, in this case; secondly, it misapplies the reasonable accommodation test, and does not show how allowing the hijab for those who choose to wear it, as a uniform accessory, is incompatible with the goal of education; thirdly, it fails to consider that the ban amounts to indirect discrimination against Muslim women; and fourthly, it wrongly elides freedom of conscience and religious freedom. This creates an overarching framework of reasoning where the sanctity of the uniform is placed above both the goals of education, and the exercise of constitutional rights. I submit that a correct calibration calls upon us to recognise that educational spaces in a plural and diverse society ought to reflect its plurality and diversity, and facilitating the freedom of choice and expression is one crucial way to achieve that. Such an approach is more consistent with our Constitution.

Guest Post: The Constitutional Case Against EWS Reservations – Exploring the Principle of Reparative Justice under the Indian Constitution

[This is a guest post by Utkarsh Roy.]


Introduction

In January 2019, Parliament enacted the Constitution (103rd Amendment) Act, 2019 (“the Constitutional Amendment”), which amended Articles 15 and 16 by inserting Articles 15(6) and 16(6) into the equality code of the Constitution, and introduced reservation in the spheres of higher education and public employment for the Economically Weaker Sections (“EWS”) on the basis of their ‘financial incapacity.’ Articles 15(6) and 16(6), categorically speak of economically weaker sections of citizens other than the classes mentioned in Articles 15(4), 15(5) and 16(4). Therefore, the category of EWS arguably excludes the economically weak from Scheduled Castes (“SCs”), Scheduled Tribes (“STs”) and Other Backward Castes (‘OBCs’).

Until the Constitutional Amendment was introduced into the Constitution, reservation was restricted to certain social groups who suffer marginalisation on the basis of their ascribed identity. Such social groups comprise of various endogamous units constituting the three categories of OBCs, SCs, and STs on the basis of the social marginalisation and subjugation faced by them on account of their ascribed caste identity. The degree of such social marginalisation or oppression on the basis of caste identity varies across these three categories; however the nature of marginalisation finds its root in the caste identities for all the three categories.

The SCs comprise of those castes who were at the receiving end of the worst form of oppression on the basis of their caste identity and were labelled as ‘untouchables’ on account of them being assigned such tasks that were considered ritually polluted and impure. (Anand Teltumbde, The Persistence of Caste (Zed Books 2010), pg 14). The STs comprise of those indigenous communities (also referred to as ‘Adivasis’) who face oppression due to their isolation or exclusion from ‘mainstream’ society. Sanjukta Das argues that owning to such exclusion, the dominant mainstream society pejoratively categorises them as the ‘primitive other’ or ‘savages’ on the basis of their identity. The administrative category of OBCs encompasses those castes who were identified as ‘Shudras,’ and who were engaged in various marginal occupation assigned to them by the society to serve the upper three varnas higher to them in the caste hierarchy. According to DL Sheth, the OBCs have suffered from varying degree of ritual prohibitions (D.L. Sheth, ‘Changing Terms of Elite Discourse: The Case of Reservation for ‘Other Backward Classes’’in Zoya Hasan (eds), Politics and the State in India (Sage India 2000) pg 222). The Mandal Commission recommended, inter alia, reservation in favour of the OBCs in higher education and public employment on the ground that the OBCs were marginalised and excluded from institutions in the society on the basis of their inferior status in the caste hierarchy (Mandal Commission Report, Vol I, Chap 4, pg. 14). The Supreme Court in Indra Sawhney v Union of India (Indra Sawhney) relied on the observations of Mandal Commission that described how Shudras, were kept in a state of intellectual and physical subjugation and the historical injustices perpetrated on them (Indra Sawhney, Paragraph 13)  Similar rationale can be discerned regarding the constitutional provision for reservation in favour of women who have been at the receiving end of the oppression on the basis of their gendered identity.

In this essay I intend to establish that reparation towards marginalized identities like Schedule Castes, Schedule Tribes, Other Backward Classes, Women, Trans people etc. (collectively referred to as “Socially Marginalized Identities” or “SMIs”), forms part of the basic structure of the Constitution. I start off by emphasizing on the significant difference between the nature of injustices suffered by the SMIs and the EWS. I go on to argue that underlying principle behind the provisions dealing with reservation within the constitutional framework is essentially that of reparation. Further, I argue that the term ‘reparation’ necessarily involves acknowledgement / apology on the part of the oppressors for the oppression committed by them on the SMIs, coupled with a measure which intends to remedy the injustices of the past, i.e., reservation. Furthermore, I argue that the underlying principle of reparation, including its crucial element of acknowledgement, forms part of the basic structure. Lastly, I argue that the Constitutional Amendment erases the principle of reparation from the Indian Constitution, and therefore violates the basic structure of the Constitution. 

Difference between Identity-Based Oppression and Poverty

One has to be mindful that the SMIs and EWS are not similarly situated. The cause and nature of injustice suffered by the two groups are significantly different. Hill Jr. argues that racial and sexist oppression not only involved depravation in terms of tangible goods or denial of rights and opportunities, which can be roughly quantified and “paid back” in kind, but also consisted of psychological injury in the form of humiliation and contemptuous treatment which could not be paid back in the strict sense. Forms of oppression such as casteism, sexism and racism are primarily in the nature of psychological injury to the dignity of the entire social group. Therefore, the damage caused to the SMIs includes psychological damage in addition to material damage, which cannot therefore be compensated through material compensation. As Judith Jarvis Thomson argues in the context of racism and sexism:

And even those who were not themselves down-graded for being black or female have suffered the consequences of the down-grading of other blacks and women: lack of self-confidence and lack of self-respect.

Affront to the dignity of the SMIs requires moral repair or acknowledgement on the part of the oppressors along with a remedial measure to ensure the sincerity of the acknowledgement.

Further, the causes behind the injustice suffered by the EWS and SMIs are inherently different. There is a deliberate intention to oppress, exclude and subjugate the SMIs on the part of the oppressors on the basis of their supposed inferior social standing. The intentional nature of marginalization involved in egregious injustices like casteism, racism or sexism, wherein a dominant group consciously oppresses the subordinate group on the basis of its identity, sets it apart from economic injustice, which is result of structural or institutional maldistribution of wealth in the society. Therefore, the injustice suffered by the EWS is in terms of economic deprivation on account of the economic structure which has neglected them and allows the inequitable accumulation of wealth.

The claim of EWS, along with the economically disadvantaged among SMIs, is essentially of distributive justice which seeks redistribution of wealth in the society, while the claim of SMIs, including those who belong to the economically advanced sections among the SMIs, is essentially of moral repair or reparation on the on the part of the oppressors for the affront to their dignity.

Reservation Envisaged as a Distinct Remedy to Address Identity-Based Oppression

To enquire whether reservation was envisaged specifically to remedy the injustice done on the basis of identity, reference can be made to Justice Sawant’s opinion in Indra Sawhney, wherein he observed that:

However, the provisions of Article 46 should not be confused with those of Article 16(4) and hence the expression “weaker sections of the people” in Article 46 should not be mixed up with the expression “backward class of citizens” under Article 16(4).

In the first instance, the individuals belonging to the weaker sections may not from a class and they may be weaker as individuals only. Secondly, their weakness may not be the result of past social and educational backwardness or discrimination. Thirdly, even if they belong to an identifiable class but that class is represented in the services of the State adequately, as individuals forming weaker section, they may be entitled to the benefits of the measures taken under Article 46, but not to the reservations under Article 16(4). (emphasis added)” [Paragraph 575]

Justice Sawant further observed:

If the social group has hitherto been denied opportunity on the basis of caste, the basis of the remedial reservation has also to be the caste. Any other basis of reservation may perpetuate the status quo and may be inappropriate and unjustified for remedying the discrimination (emphasis added) [Paragraph 520].”

The tenor of the foregoing observation makes it clear that reservation is envisaged as a distinct and separate remedy to address the past (and present) injustice suffered by certain social groups on the basis of their caste. Therefore, Justice Sawant opined that the basis of remedial measure has to be caste, if the exclusion or oppression was done on the basis of caste. The foregoing rationale behind reservation can be extrapolated to other marginalised identities like women and trans people, who have been oppressed on the basis of their gender or sexual identity.

Further, Justice Sawant observes that reservation is not meant as a remedy for the economically weak among the dominant sections of the society, as they are already well represented in the sphere of higher education and employment. Therefore, by necessary implication, it can be concluded that reservation in the spheres of higher education and employment is meant to address a specific kind of injustice based on the identity of certain social groups, as opposed to injustice solely in terms of economic or material depravation.

The Underlying Principle behind Articles 15(4), 15(5), 16(4) and 16(4A) 

In Indra Sawhney, the respective opinions delivered by Justice Reddy (along with three other Justices), Justice Sawant and Justice Pandian (“the Combined Opinion”) stressed on the past injustices and marginalisation committed to the SMIs on the basis of their caste identity. From the Combined Opinion, one can conclude that there was a consensus with respect to the proposition that the measure of reservation is meant to address the historical injustices suffered by the SMIs. The combined opinion recognised that the aim and purpose of reservation was to restore the imbalance created in the favour of the dominant social groups on account of the concomitant injustice suffered by the SMIs. Therefore, six out of the nine judges in Indra Sawhney were of the opinion that the measure of reservation was meant to remedy the past injustices suffered by certain social groups and to redress the imbalance created on account of such injustices.

In the context of determining the quantum of reservation, Justice Reddy observed that:

True it is that the backward classes, who are victims of historical social injustice, which has not ceased fully as yet, are not properly represented in the services under the State but it may not be possible to redress this imbalance in one go, i.e., in a year or two. (emphasis added) [Paragraph 96]

In the above observation, Justice Reddy not only recognised the fact that the Backward classes have suffered historical social injustice but also acknowledged that they continue to being subjected to such injustice even today. Further, the foregoing observation makes it clear that the measure of reservation is meant to redress the imbalance caused due to centuries of injustice. In other words, reservation is meant to undertake reparation.

Subsequently, in M Nagaraj v Union of India (M Nagaraj), the Constitution Bench observed that Article 16(4) reflected the principle of ‘egalitarian equality’ which essentially required the State to undertake affirmative action in favour of disadvantaged section of the society within in the democratic set up. The Constitution Bench in M Nagaraj, made a very crucial observation that:

“Article 16(4) is enacted as a remedy for the past historical discriminations against a social class. (emphasis added)” [Paragraph 71]

The foregoing observation by the Constitution Bench in M. Nagaraj recognised that Article 16(4) is meant to remedy the past historical discrimination suffered by certain social identities who constitute a distinct social class. Therefore, the principle of egalitarian equality reflected through the Article 16(4) is essentially to undertake reparation towards the SMIs in order to remedy the past injustices suffered by them.

Reparations as Part of the Basic Structure

Krishnaswamy argues that in order identify a basic feature, the court looks for ‘features’ of the Constitution reflected through various provision of the Constitution which may be regarded as moral and political principles at the normative core of the Constitution (Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine, (Oxford University Press 2009) pg. 146).

In M Nagaraj, the Constitution Bench observed that the Constitution is committed to certain principles, which are manifested through various articles. Therefore, various provisions of the Constitution might be interwoven with a common commitment to certain overarching principle, which are distinguished as essential features (the basic structure) of the Constitution. Such overarching principles which are recognised as essential features are reflected through different provisions that are spread across different parts of the Constitution. [Paragraph 19]

At this stage it is pertinent to refer to the concurring opinion by Justice Pandian in Indra Sawhney, wherein he observed:

There are various Constitutional provisions such as Articles 14, 15, 16, 17, 38, 46, 332, 335, 338 and 340 which are designed to redress the centuries old grievances of the scheduled castes and scheduled tribes as well as the backward classes and which have come for judicial interpretation on and off. It is not merely a part of the Constitution but also a national commitment. (emphasis added).” [Paragraph 145]

The foregoing observation by Justice Pandian indicates that a common thread runs through various constitutional provisions spread across different parts of the Constitution. Justice Pandian’s observation that such provisions are meant to “redress the centuries old grievances of the scheduled castes and scheduled tribes as well as the backward classes,” strongly suggests that an overarching principle of reparation runs as a common thread through such provisions. Further, according to Justice Pandian, this overarching principle “is not merely a part of the Constitution but also a national commitment.” Therefore, I argue that the above observation made by Justice Pandian indicates that the overarching principle of Reparative Justice which runs through various provisions of the Constitution is an essential feature of the Constitution. 

Furthermore, in I.R. Coelho (Dead) by L.Rs. v. State of Tamil Nadu and Ors, (IR Coelho), Sabharwal CJ made following observation on behalf of the nine-judge Constitution Bench:

India’s constitutional history has led us to include the essence of each of our fundamental rights in the basic structure of our Constitution. The result of the aforesaid discussion is that since the basic structure of the Constitution includes some of the fundamental rights, any law granted Ninth Schedule protection deserves to be tested against these principles. If the law infringes the essence of any of the fundamental rights or any other aspect of basic structure then it will be struck down. The extent of abrogation and limit of abridgment shall have to be examined in each case. (emphasis added) [Paragraph 62]

The foregoing observation by Constitution Bench categorically recognizes that the essence of fundamental rights forms part of the basic structure of the Constitution. The concrete provisions are the manifestation of the underlying abstract philosophies or values behind such provisions. The underlying abstract principles or values behind such provisions have to be distinguished from the text of the provisions itself, as it is the former which forms part of the basic structure. The textual provisions can be amended through constitutional amendment, as long as it is not destroying the underlying principle behind those provisions. In case a constitutional amendment alters or infringes the underlying abstract principle behind a textual provision or the essence behind the fundamental rights, it would amount to violation of the basic structure of the Constitution.

Therefore, an amendment of a constitutional provision which is meant to further the abstract value behind such provision would not violate the basic structure, as the amendment would be in consonance with the abstract value which forms part of the basic structure. For instance, in M Nagaraj, the Constitution Bench observed that the identity of the Constitution was not altered upon the insertion of Article 16(4A), through a constitutional amendment. The Constitution Bench observed that Article 16(4A) flows from Article 16(4) indicating that constitutional amendment introducing reservations in promotions was in furtherance of the principle already enshrined in Article 16(4). I argue that the Constitution Bench in M. Nagaraj observed that there was no change to the identity of the Constitution on account of the constitutional amendment because the insertion of Article 16(4A) was in consonance with underlying principle enshrined in the Article 16(4) (mutatis mutandis in Articles 15(4), and 15(5), i.e., principle of reparation towards the SMIs. 

Envisaging Reparation as an Eternal Concept

There could conceptual or philosophical problems in envisaging reparation as part of the basic structure. For a principle to form part of the basic structure, it should be of eternal character. On the face of it, reparation might seem to be a process which has an definite endpoint. However, I argue that reparation is an eternal process which requires acknowledgement on the part of the oppressors along with a remedial measure to substantiate that acknowledgement, and the acknowledgement outlives the remedial measure.   

As per Boxill, the acknowledgement of the past injustice from the oppressors is a prerequisite under the premise that every person is equal in worth and dignity. The absence of such acknowledgement or admission on the part of the oppressor would indicate that the oppressor has merely treated the oppressed groups in which it deems fit, wherein, the terms of such measure are set by the oppressors itself. In such scenario, Boxill argues, that measure undertaken would not establish equality between the oppressor and the oppressed.

Boxill distinguishes between a mere objective measure undertaken by the oppressor for the oppressed groups and their subjective attitude in undertaking that measure. According to Boxill, justice requires equal consideration between equals, that is, justice requires that the oppressed groups are treated in a particular manner by the oppressors, not for the reason the oppressors deem fit, but that they are treated equally by the oppressors for the very reason that the oppressor believes or considers the oppressed group as its equal. In other words, justice demands that the society, and therefore the State acknowledges that it is undertaking remedial measure towards the SMIs in the form of quotas or reservation, precisely because such treatment or measure is required from the State on account of the past injustice suffered by the SMIs. Acknowledgement on part of State, and therefore, the society would reinforce its belief in the equality of the SMIs by admitting that reservation is required precisely because of the malicious and intentional marginalisation faced by the SMIs at the hands of the society and that the measure of reservation seeks to remedy the affront to their dignity.

Therefore, the acknowledgement is one of the two crucial elements of reparation. The acknowledgement would outlive the remedial measure of reservation. Karl Figlio argues that remembering is reparation and that reparation is a never-ending urge. Figlio relies on Habermas, who advocated an endless, ever-incomplete work of ‘critical self-examination’ for Germany in the context of reparation to Jews. (Karl Figlio, Remembering as Reparation, (Palgrave Macmillan) pg. 124). In the context of German reparation to Jews, Habermas espouses critical self-examination of subsequent generations and argues that there is an obligation incumbent upon Germany to keep alive the memory of the suffering of the victims of Holocaust. Habermas suggested that subsequent generations can practice solidarity with victims of Holocaust, only through the “medium of remembrance that is repeatedly renewed,” continually on one’s mind (J. Habermas, S.W. Nicholsen, The New Conservatism: Cultural Criticism and the Historians’ Debate Studies in Contemporary German Social Thought (MIT Press) pg. 28)

Reparation is constituted by two elements – acknowledgement and a measure to substantiate the acknowledgement. In case either of the two is absent, then the act won’t amount to reparation. The two elements of reparation, i.e., acknowledgement and remedial measure complete each other. Acknowledgement is required to ensure that the remedial measure is undertaken precisely to address the past injustices and to uphold the dignity of the SMIs and remedial measure is required to ensure that the acknowledgement is a sincere one.  The remedial measure of reservation acts as a concrete limb to the abstract principle of acknowledgement. Though the remedial measure, i.e., reservation might be eventually phased out if certain material conditions were fulfilled, the acknowledgement of the society towards the SMIs would be there for eternity. The remedial measure of reservation is closely entwined with the acknowledgement, as the substance of the acknowledgement is predicated on the undertaking of the remedial measure of reservation.

Reservation as an Acknowledgement Forms a Part of the Basic Structure

I argue that that the remedial measure of reservation under the Indian Constitution itself amounts to an acknowledgement on the part of the State, which is a representative of the society which subjugated the SMIs. The Indian constitution envisages reservation as a distinct remedial measure meant for addressing past injustices suffered by SMIs. The distinct nature of the remedial measure amounts to acknowledgement on the part of the society. Khaitan argues that the strong form of affirmative action like quotas should be set aside only for the social groups who have suffered from egregious historical injustices like slavery, apartheid and casteism, as in such cases the quotas could indicate an admission or acknowledgement of the trauma of these past injustices (Tarunabh Khaitan, A Theory of Discrimination Law (Oxford University Press 2015) pg. 223). In the context of race-based affirmative action, Bridges argues that it could be the most moral effort that society could make insofar as it reminds society about the racial injury that the racial minorities in the US have suffered. The requirement of acknowledgement also indicates that the measure meant for reparation cannot be subsumed with other claims of justice. It is argued, in the context of Black reparation, that the agenda of black reparation should not be remoulded into a ‘universalistic’ reform meant for all American citizens or redesigned for poor people (including poor white population) per se (C.J. Munford, ‘Reparations: Strategic Considerations for Black Americans’ in Roy L. Brooks (eds), When Sorry Isn’t Enough (New York University Press 1999) 424).

Therefore, in the Indian context, reservation serves the dual purpose of acknowledgement and remedial measure. The acknowledgement and the remedial measure are interwoven with each other. Any alteration with the remedial measure would completely erase the acknowledgement. Hence, the aspect of reservation which signifies acknowledgement, i.e., it being a remedy of distinct nature meant to address specific kind of injustice suffered on the basis of identity, is part of the basic structure.

This argument in no way suggests that the Constitution forecloses the possibility of parliament coming up with an alternate measure of undertaking reparation. From the broadly worded texted of Article 15(4), it is amply clear that Constitution allows the parliament to come up with additional measures as a supplementary to the existing reparative measures, to further the abstract principle of reparation. However, the argument suggests that a measure which has been recognised as a reparative measure cannot be extended to social groups who have not suffered identity-based injustice, because that would be in contravention or violation of the underlying principle of reparation which forms part of the basic structure. For example, even if there are two measures for undertaking reparation, a constitutional amendment which inserts a provision which negates or divests the reparative nature of the measure would be violative of the basic structure.  Therefore, reservation which has been recognised as a measure to undertake reparation cannot be altered in a manner wherein it loses its reparative character.

103rd Constitutional Amendment is in Contravention of the Acknowledgement

As argued in the earlier section, the setting aside or earmarking of the strongest form of affirmative action in the form of quotas or reservation in favour of the SMIs, indicates acknowledgement on the part of the State that reservation is meant to address the specific nature of injustice or injury suffered by the SMIs on the basis of their identity. However, such acknowledgement or admission is erased when reservation, which was hitherto earmarked or set aside to specifically address the egregious injustices like casteism and sexism suffered by certain social groups on the basis of their identity, is extended to other groups, who have not been intentionally subjected to such marginalisation and subjugation on the basis of their identity.

Extending the remedy of reservation to the EWS thus amounts to conflation of the significantly different claims of EWS and SMIs. Furthermore, extending reservation to the EWS envisages the space in the sphere of higher education and employment merely as an economic good to be distributed in a distributive paradigm, rather than a means to alter the power relation and social standing in society. I therefore contend that clubbing the EWS and SMIs together for the remedial measure of reservation, conveys that in the eyes of the state, the marginalisation and deprivation faced by SMIs as well as EWS are similar in nature, and therefore it could be addressed through the same remedial measure of quotas and reservation. Further, the extension of reservation or quotas to the EWS downplays the nature of injustice suffered by SMIs, which is in terms of psychological injury to the dignity of the entire social group. Extending reservation to EWS suggests that economic deprivation is the only injustice that is faced by SMIs. Therefore, the remedial measure of reservation, which was envisaged by the Constitution as a remedy to the distinct nature of injustice suffered by the SMIs on the basis of their identity from time immemorial, gets reduced to a measure meant to undertake distributive justice.  

Importantly, Boxill distinguishes between a mere objective measure undertaken by the oppressor for the oppressed groups and their subjective attitude in undertaking that measure. According to Boxill, justice requires equal consideration between equals, that is, justice requires that the oppressed groups are treated in a particular manner by the oppressors, not for the reason the oppressors deem fit, but that they are treated equally by the oppressors for the very reason that the oppressors believe or consider the oppressed group as their equal. By extending reservation to the EWS, the objective measure of providing reservation to the SMIs is devoid of the subjective attitude of ensuring reparation to them. Therefore, reservation is provided to the SMIs, but on the terms wherein the State can dispense with its acknowledgement and apology for the past injustice. Absence of acknowledgement and apology would mean that the State treated the SMIs the way it deemed fit.

Therefore, the Constitutional Amendment fundamentally changes the nature of the remedial measure by suggesting that the nature of injustice suffered by EWS is similar to that of the SMIs. Reservation ceases to be a measure for reparation once it is extended to those groups who have never been subjected to past injustices on the basis of their identity.

103rd Constitutional Amendment violates the Basic Structure

To enquire whether insertion of Articles 15(6) and 16(6) violates a principle which forms part of the basic structure of the Constitution, it would be pertinent to refer to the following observation by Justice HR Khanna in Indra Nehru Gandhi v Raj Narain (Indra Nehru Gandhi):

I shall for the purpose of this case assume that such a matter can validly be the subject-matter of a Constitutional amendment. The question to be decided is that if the impugned amendment of the Constitution violates a principle which is part of the basic structure of the Constitution, can it enjoy immunity from an attack on its validity because of the fact that for the future, the basic structure of the Constitution remains unaffected. The answer to the above question, in my opinion, should be in the negative. What has to be seen in such a matter is whether the amendment contravenes or runs counter to an imperative rule or postulate which is an integral part of the basic structure of the Constitution. If so, it would be an impermissible amendment and it would make no difference whether it relates to one case or a large number of cases. If an amendment striking at the basic structure of the Constitution is not permissible, it would not acquire validity by being related only to one case. To accede to the argument advanced in support of the validity of the amendment would be tantamount to holding that even though it is not permissible to change the basic structure of the Constitution, whenever the authority concerned deems it proper to make such an amendment, it can do so and circumvent the bar to the making of such an amendment by confining it to one case. What is prohibited cannot become permissible because of its being confined to one matter (emphasis added). [Paragraph 210]

From the foregoing observation it is clear that the standard that has been set to evaluate whether a constitutional amendment violates the basic structure requires that the constitutional amendment should run counter to or in contravention of an underlying abstract principle which forms part of the basic structure. The foregoing observation strengthens my argument in the earlier section, that even if there are more than one recognised measure of reparation within the constitutional framework, a constitutional amendment divesting the reparative nature of even one reparative measure would run counter or in contravention or violation of the principle of reparation which forms part of the basic structure.

Further, in IR Coelho, the Constitution Bench made following observation:

If the law infringes the essence of any of the fundamental rights or any other aspect of basic structure then it will be struck down.” [Paragraph 62]

I argue that the insertion of Articles 15(6) and 16(6) infringes the essence behind Articles 15(4), 15(5), 16(4) and 16(4A), which has been recognised as principle of reparation. Relying on the foregoing observation, I argue that once a measure has been earmarked or recognised as a reparative measure, it cannot be altered in a manner that it ceases to be of reparative character. Any such constitutional amendment which introduces a provision in the constitution to change the reparative character of a recognised reparative measure, would be in contravention or would run counter to the principle of reparation, which forms part of the basic structure. In the present case, the erasure of acknowledgement which is a crucial and indispensable element of the reparation, runs counter to, or contravenes, the principle of reparation within the constitutional framework.

For these reasons, the 103rd Amendment it is unconstitutional on the ground that it violates the basic structure of the Constitution.

Notes from a Foreign Field: The South African Constitutional Court on Strikes, Protests, and Individual Responsibility

In a judgment that will be of specific contemporary interest for Indians, the South African Constitutional Court held that in cases of unlawful conduct during a strike, an interdict (i.e., injunction) could not be passed against a specific employee without establishing a link between that employee and the unlawful conduct in question. In Commercial Stevedoring Agricultural and Allied Workers’ Union v Oak Valley Estates, the Constitutional Court was considering a general interdict granted by the Labour Court, against a group of people, in the context of certain unlawful acts that had happened in the course of a strike. The Labour Court had reasoned that a general interdict was justified because in “the fraught context of an industrial relations dispute”, a specific link between an individual and unlawful conduct couldn’t be established.

The Constitutional Court rejected this reasoning. It did so for several reasons. First, it noted that such a general interdict would have a chilling effect on the freedom to protest and to strike. At paragraph 23, it observed that:

If mere participation in a strike or protest carries the risk of being placed under an interdict, this might well serve to deter lawful strike and protest action. Moreover, if a participant in a strike or protest is placed under an interdict, despite having conducted herself lawfully, she might well refrain from further strike action out of the justifiable fear of being swept up in contempt proceedings in the event that other persons in the crowd act in breach of the interdict. 

And, in paragraph 24:

In short, even those who intend to strike in a lawful manner might be discouraged from so doing out of fear of being deemed to have acted unlawfully if interdictory relief is granted too readily. 

Secondly, relying upon precedent, the Court endorsed previous judgments that had clarified that law “knows no concept of collective guilt” (paragraph 34, citing the Polyoak judgment). This, in effect, agreed with the appellants’ argument that such general interdicts would be “inimical to the rule of law, which requires that legal liability can only be imposed upon a person if a cause of action is made out against her.” (paragraph 14)

Thirdly, the Court noted that the general interdict would encourage legal strategies where relief would be granted against individuals without any factual basis being established for the same. It cited the same Polyoak judgment with approval, where it had been observed that “Specific acts of misconduct are normally referred to but only sometimes attributed to specific individuals. Allegations are frequently made against ‘the individual respondents’ as a class when it is clear from the context that the participation of every one of them is, if not inconceivable or impossible, then at least highly improbable.” (paragraph 35, citing Polyoak).

For these three reasons, the Constitutional Court held that “notwithstanding the “fraught context of industrial relations”, our law requires that for interdictory relief to be competently granted, a factual link between an individual respondent and the actual or threatened unlawful conduct must be shown.” (paragraph 39)

This judgment is particularly relevant, and repays close study, because it marks a firm rejection of an attempt to bring in the concept of collective guilt into law by citing “special circumstances.” This is important because a similar attempt can be seen in the Uttar Pradesh Recovery of Damages to Public and Private Property Act of 2020, which was passed in the aftermath of the CAA protests. While the Uttar Pradesh government was itself recently pulled up by the Supreme Court for sending recovery notices even in contravention of the Act, the law itself is problematic in several respect: not least through sections that suggest that liability for damages to property during protests shall extend even to people not directly involved with causing damage, such as – for example – the organisers of the protest. The reasoning of the South African Constitutional Court clarified why that is unacceptable: not only does it establish a form of collective guilt, but also the inevitable effect of such a law is to chill the freedom of speech and expression entirely: even more so than a strike, the actions of every single individual who has elected to participate in a protest are simply not within the control of any one person or entity, and this includes the organisers of the protest. Additionally, it is interesting to note that the South African Constitutional Court applied this logic to the question of an injunction; needless to say – and as the Court itself acknowledged – the case against guilt by association would be far stronger if it wasn’t a case of an injunction, but an actual finding of liability.

Most important is the Court’s rejection of the “special circumstances” argument – i.e., that the chaotic nature of strikes required this form of mass interdict, without establishing individual causation. The Court’s response that it would essentially chill the constitutional right out of existence is undoubtedly the correct one; and one can now only hope that the constitutional challenge to the UP law – that has been pending before the Supreme Court for a while now – is heard swiftly, and decided.

The Kerala High Court as India’s Star Chamber

In medieval England, the Star Chamber was a special judicial court that was set up as a “supplement” to the regular common law courts. Over the course of time, the Star Chamber came to be known as the “judicial arm of the King”, tasked with crushing dissent and enforcing the unpopular policies of the monarch. Its proceedings were characterised by secret hearings, secret evidence, arbitrary sentences, and punishment for jurors if they found against the State. Having written its name into infamy, in modern times, the Star Chamber has come to stand for “any secret or closed meeting held by a judicial or executive body, or to a court proceeding that seems grossly unfair or that is used to persecute an individual.”

While in recent times, there have been a few judgments by our courts that recall the Star Chamber to mind (see this post about “sealed cover jurisprudence“), the story of the MediaOne TV channel ban before the Kerala High Court takes us out of the realm of “recalls the Star Chamber” or “brings the Star Chamber to mind” or “is reminiscent of the Star Chamber”, and places Indian jurisprudence directly in Star Chamber territory. In other words, there is no perceivable distinction between what the Kerala High Court has done, and what this medieval body, set up to persecute the King’s political opponents, used to do.

In my previous post, I had examined the “judgment” of the single bench of the High Court, that had upheld the government’s ban on the MediaOne TV channel, and had imposed “censorship by sealed cover.” Today’s “judgment” by a division bench of that same High Court is – if such a thing was possible – even worse than the judgment of the single bench. In a 42-page “judgment”, the division bench upholds the order of the single judge. The actual “analysis” is found in exactly one paragraph out of these 42 pages, paragraph 55:

Likewise, the application filed seeking permission for the renewal of the uplinking and downlinking of “Media one TV” was considered in the year 2021 and wherein also, we find that there are certain serious adverse reports by the Intelligence Bureau against M/s. Madhyamam Broadcasting Limited and its Managing Director. It is true that the nature, impact, gravity and depth of the issue is not discernible from the files. But, at the same time, there are clear and significant indications impacting the public order and security of the State. Since it is a confidential and sensitive file maintained by the Ministry of Home Affairs, Union of India, we are not expressing anything further in the interest of national security, public order and other aspects concerning the administration of the nation.

While the astonishing character of this paragraph tends to speak for itself, it is worthwhile setting out a brief recap:

  1. MediaOne Channel was banned by the government. The party that was banned was not given specific reasons for the ban, because ‘national security.’
  2. The party that was banned challenged its ban before the Court, on the ground that its constitutional rights had been violated. Before the Court, the specific reasons for the ban were not justified by the State – and therefore could not be contested – because ‘national security.’ Instead, they were provided to the Court in a sealed cover.
  3. On perusing the material in the sealed cover, the Court was forced to concede that the “nature, impact, gravity and depth” (what remains?) of the issue was not “discernible”, but nonetheless, the ban was valid, because ‘national security.’
  4. The Court exempted itself from the intolerable burden of conducting any factual, legal, or constitutional analysis of the case, because ‘national security.’

What boggles the mind most in the above sequence is that the Court – in a rare moment of candidness – actually admitted that the files before it revealed nothing about the “nature, impact, gravity and depth” of the issue. But if that is the case, then the law – if the law matters at all to this Court, because it appears that it does not – would have required it to reach a contrary finding. The proportionality standard under Indian constitutional law requires Courts to specifically consider the “nature, impact, gravity and depth” of an issue when constitutional rights are in question. The rationality prong of the test asks whether the State restriction bears a “rational nexus” with the goal. The necessity prong asks whether the restriction (in this case, a complete ban) was the “least restrictive measure” open to the State. the strict proportionality prong asks whether the extent of the restriction (in this case, a complete ban) outweighs the intensity of the right (freedom of speech). None of these steps can be performed without considering the “nature, impact, gravity and depth” of the issue. A Court is meant to apply the law (that it is bound by) to the facts of the case, not go by vibes. Or so we are led to believe.

It is therefore not an exaggeration to call this Star Chamber territory – indeed, one would wager that the Star Chamber was more inclined towards the basic requirements of the rule of law than the Kerala High Court. Perhaps an even more accurate term is what, in the US, is called “a court going rogue“: that is, a court – as I have indicated above – that has simply liberated itself from even the pretence of acting like a judicial institution. The law? Doesn’t matter. Binding precedent? Doesn’t matter. The requirement to apply law to facts? Doesn’t matter. The requirement to give reasons for a judgment? Doesn’t matter. Open and transparent justice? Doesn’t matter. Procedural safeguards? Don’t matter. The right to contest the basis on which my constitutional freedoms have been restricted? Doesn’t matter.

As for the rule of law and the protection of fundamental rights: those stopped mattering to this court a long time ago.