Guest Post: On the Unlimited Power of Review in Writ Proceedings

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


[This is a guest post by Krishnesh Bapat.]


In this belated post, I discuss the judgment of the Supreme Court passed in Kantaru Rajeevaru vs Indian Young Lawyers Association on 11th of May 2020 (For the sake of convenience, hereinafter referred to as 11th May order). In this order, a 9 Judge bench of the Supreme Court has detailed the reasons for holding that questions of law can be referred to a larger bench in a review petition. I specifically focus on the part of the order wherein the bench has held that there are no limitations on the Supreme Court in reviewing judgments in writ proceedings. The consequence of this ruling is that review petitioners in writ proceedings do not have to meet the high threshold of Order XLVII Rule 1 of the Code of Civil Procedure (“Code”). Order XLVII Rule 1 of the Code permits review of judgments only if there is discovery of new evidence or an error apparent on the face of the record or any other sufficient reason which is analogous to the first two. Indeed, parties have begun to rely on this order already. It is noteworthy to look at the brief written submissions of the review petitioners in Shantha Sinha and Another vs Union of India and Another. The review petitioners are seeking a review of Justice K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1. In their brief written submission they have pointed out that the Court is not hindered by Order XLVII Rule 1 of the Code. In Paragraph 7 they state:

A 9-Judge Constitution Bench of this Court in its Judgment dated 11.05.2020 in the case of Kantaru Rajeevaru v. Indian Young Lawyers Association and Ors, Review Petition (C) No. 3358/2018 in WP (C) No. 373/2006, while considering the maintainability of the reference, has held that in review petitions arising out of writ petition, this Court under Article 137 read with Article 141 and 142, has wide powers to correct the position of law. It further held that this Court is not hindered by the limitation of Order XLVII Rule 1 of the Code of Civil Procedure, 1908, since writ petition are not ‘civil proceedings’ as specified in Order XLVII Rule 1 of the Supreme Court Rules, 2013

In view of this, it is necessary to analyze the order.

BACKGROUND

Before I begin a critique of the 11th May order, a recap of the ‘Sabarimala Dispute’ and a background of how the 9-Judge bench came to arrive at the aforementioned conclusion is necessary. Indian Young Lawyers Association had filed a Writ Petition challenging the validity of Rule 3(b) of the Kerala Hindu Places of Worship (Authorization of Entry) Rules, 1965 and sought directions to State of Kerala to permit female devotees between the ages of 10 to 50 years to enter Sabarimala temple without any restriction. The case was titled Indian Young Lawyers Association vs State of Kerela (Indian Young Lawyers Association”). On 28th September 2018, by a majority of 4:1 the Supreme Court allowed the Writ Petition and held inter alia that Rule 3(b) was violative of Article 25(1) of the Constitution of India ( Accordingly, women between the ages of 10 to 50 years were permitted to enter the Sabrimala temple.

A number of review petitions and writ petitions were filed against this Judgment. On 14th November 2019, a Judgment in these review petitions was pronounced and was titled Kantaru Rajeevaru vs Indian Young Lawyers Association (“Kantaru Rajeevaru”). In Kantaru Rajeevaru the Judgment in Indian Young Lawyers Association was not stayed. However, a majority of three judges was of the view that the Court should ‘evolve a judicial policy’ and a larger bench of not less than seven judges should put at rest the conflict between Freedom of Religion and other Fundamental Rights guaranteed in Part III. Hence, the majority referred seven issues to a larger bench and stated that the review petitions and the writ petitions were to remain pending while the larger bench decides the reference. Nariman J and Chadrachud J dissented and held that neither were grounds for review made out nor was a reference to a larger bench called for (Kantaru Rajeevaru has been previously critiqued on this blog).

A bench of nine judges was thereafter constituted to answer the reference. When the hearing before the nine judge bench began, a number of parties raised an objection to the reference. They contended that the review petitions in Kantara Rajeevaru were not maintainable because of the limitations in Order XLVII of Supreme Court Rules and hence, the reference arising out of those review petitions was bad. In the alternative, they submitted that reference to a larger bench is permissible only after review is granted. They also contended that hypothetical questions of law should not be referred. On 10th February 2020, the 9 Judge bench dismissed these contentions and through the 11th May order the bench has provided their reasons. The reasoning of the bench in the 11th May order proceeds in the following manner. The bench firstly referred to Order XLVII Rule 1 of the Supreme Court Rules, 2013 (Paragraph 11), which states:

The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule I of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record.

By a literal interpretation of this rule, the bench held that the power to review judgments is plenary and limitations exist only in the context of civil proceedings and criminal proceedings (Paragraph 12). Writ Petitions filed under Article 32 of the Constitution do not fall within the purview of civil and criminal proceedings (Paragraph 14). The review petitions in Kantaru Rajeevaru had arisen from a Writ Petition under Article 32. (Paragraph 18). The bench then dismissed the alternative submission of the parties that reference can only be made after grant of review citing Order VI Rule 2 of Supreme Court Rules, 2013 and Article 142 of the Constitution (Paragraph 19 to 25). The bench then proceeded to hold that pure questions of law could be referred to and answered by a larger bench (Paragraph 25 to 29). Then in Paragraph 30 the bench concluded that the review petitions and the references arising from the review petitions were maintainable.

CONCERNS

In this post, I am primarily concerned with the observation made in Paragraphs 11 to 18 and the conclusion drawn in Paragraph 30 that the review petitions are maintainable. There are three concerns I have with the 11th May Judgment which have been detailed below.

Firstly, there is the question of judicial propriety. In Kantaru Rajeevaru, a majority of three judges had referred questions of law to a larger bench while keeping the review petitions pending. They had not commented on the maintainability of the review petitions nor had they referred the question of maintainability to the larger bench. Therefore, strictly speaking, the nine judge bench by holding that the review petitions are maintainable, seems to have traversed beyond its brief and decided an issue pending before the 5 judge bench. The consequence of this ruling is that once the 9 judge bench does evolve a ‘judicial policy’ and the ‘Sabarimala dispute’ is sent back to the 5 Judge bench, that bench will not be able to decide on the maintainability of the review petitions. It is crucial to note that 2 judges of the bench in Kantaru Rajeevaru (Nariman J and Chandrachud J) had held that the grounds for review were not made out. More crucially, the majority had not commented on the maintainability of the review petitions.

Secondly, the manner in which the review petitions were held to be maintainable is also concerning. The bench has perhaps justifiably held that there are no express limitations on the power to review except in the context of civil and criminal proceedings. However, that ipso facto does not mean that review petition in Kantaru Rejeevaru should be admitted. In a catena of judgments over the years, the Supreme Court has repeatedly insisted that the power to review must be exercised sparingly. In Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, (1980) 2 SCC 167, for himself and Tulzapurkar, J. observed:

……Power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in Order 47 Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record (Order 40 Rule 1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except “where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility”Sow Chandra Kantev. Sheikh Habib [(1975) 1 SCC 674 : 1975 SCC (Tax) 200 : (1975) 3 SCR 933] .

The 9 Judge bench throughout its 29 Page decision has not pointed out the ‘patent mistake’ or a ‘grave error’ that has been committed by the majority of 4 judges in Indian Young Lawyers Association that their judgment must be reviewed. On the other hand Nariman J in Kantaru Rajeevaru had painstakingly analysed all the judgments in Indian Young Lawyers Association, applied the standards of review and held that the grounds for review were not made out.

This leads me to my third concern. The 9 judge bench decision does not provide for any standards which the Court ought to apply while deciding whether to review a judgment arising out of writ proceedings. In the past the Court has applied standards similar to Order XLVII Rule 1 of the Code. For instance, in Sarla Mudgal vs Union of India (1995) 3 SCC 635, 4 Writ Petitions were filed questioning whether a husband, married under Hindu law, can solemnise a second marriage by embracing Islam and without dissolving the first marriage under law. The Court held that in such cases a second marriage would be invalid. In Lily Thomas vs Union of India (2000) 6 SCC 224, petitions were filed seeking review of the decision in Sarla Mudgal. R.P Sethi J, in his concurring judgment, put the contentions of the review petitioners to the standards Order XLVII Rule 1 of the Code and held:

Otherwise also no ground as envisaged under Order XL of the Supreme Court Rules read with Order 47 of the Code of Civil Procedure has been pleaded in the review petition or canvassed before us during the arguments for the purposes of reviewing the judgment in Sarla Mudgal case [Sarla Mudgal, President, Kalyani v. Union of India, (1995) 3 SCC 635 : 1995 SCC (Cri) 569]. It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal case [Sarla Mudgal, President, Kalyani v. Union of India, (1995) 3 SCC 635 : 1995 SCC (Cri) 569] . We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting Section 494 amounted to violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. The words “any other sufficient reason appearing in Order 47 Rule 1 CPC” must mean “a reason sufficient on grounds at least analogous to those specified in the rule” as was held in Chhajju Ram v. Neki [AIR 1922 PC 112 : 49 IA 144] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius [AIR 1954 SC 526 : (1955) 1 SCR 520] . Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. In T.C. Basappa v. T. Nagappa [AIR 1954 SC 440 : (1955) 1 SCR 250] this Court held that such error is an error which is a patent error and not a mere wrong decision…….

Therefore, it can safely be held that the petitioners have not made out any case within the meaning of Article 137 read with Order XL of the Supreme Court Rules and Order 47 Rule 1 CPC for reviewing the judgment in Sarla Mudgal case [Sarla Mudgal, President, Kalyani v. Union of India, (1995) 3 SCC 635 : 1995 SCC (Cri) 569] . The petition is misconceived and bereft of any substance.

 

 Indeed, as mentioned above, Nariman J in Kantaru Rajeevaru also put the contentions of the review petitioners through similar standards. The 9 Judge bench, however, by not undertaking such an exercise, has raised questions of what exercise ought to be undertaken. The judgment on a number of occasions has stated that Order XLVII Rule 1 of the Code is inapplicable to judgments arising out of writ proceedings. If that is the case, there needs to be clarity on the applicable standard. The need of having a standard cannot be understated. Order XLVII Rule 1 of the Code has ensured that there is a finality to judgments delivered by Court and at the same time has provided a mechanism to ensure that injustice is not committed. In absence of this Rule, any party dissatisfied with the decision of the Court will seek a re-hearing and the litigation will be endless.

CONCLUSION

To sum up, three concerns with the 11th May Judgments have been pointed out above. The first pertains to which bench was the most suited to address the question of maintainability. The second concern points out the lackadaisical manner in which the 11th May Judgment holds the Kantaru Rajeevaru review petitions to be maintainable. And lastly, the third concern raises a question for the future as there needs be clarity on the manner in which the Apex Court is going to entertain review petitions.

What is a “Review”?

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


Article 137 of the Constitution of India allows the Supreme Court to “review” any judgment passed by it. According to the jurisprudence of the Court, a review is to be granted in exceedingly rare circumstances. In Union of India v Sandur Manganese and Iron Ores Ltd., for example, the Supreme Court restated the position of law as follows: a review could only be allowed in cases of “discovery of new and important … evidence“, an “error on the face of the record“, or another “sufficient reason” that had to be analogous to the first two.

In this context, today’s order in Kantaru Rajeevaru v Indian Young Lawyers’ Association, concerning the Supreme Court’s 2018 judgment in the Sabarimala Case, is a curious one. The Chief Justice begins his order by observing:

Ordinarily, review petitions ought to proceed on the principle predicated in Order XLVII in Part IV of the Supreme Court Rules, 2013. However, along with review petitions several fresh writ petitions have been filed as a fall out of the judgment under review. All these petitions were heard together in the open Court. (paragraph 1)

This is bewildering. Let us say that there are two sets of petitions before the Court. One set of petition seeks “review” of the impugned judgment, on the grounds set out at the beginning of this post. The other set comprises of fresh writ petitions that assail the correctness of the same judgment. “Hearing them together in open Court” makes no sense, because not only is the scope of arguments entirely different, the forum within which these cases have to be heard is different too! A review is heard by the same judges who delivered the original judgment (apart from those who may have retired). In this case, as the Sabarimala judgment was heard by a bench of five judges, the review would also be heard by five judges (and in this case, four of them – apart from the Chief Justice – were parties to the original judgment). A fresh writ petition, on the other hand, would have to go through an entirely different process: it would first come up before a division bench (two or three judges) of the Supreme Court, where the petitioner would have to make out an initial case for even having the petition admitted, given the existence of binding precedent to the contrary, on the same issue. If that was successful, the petitioner would then have to convince the division bench that there was a prima facie mistake in the earlier judgment, that required to be reconsidered by a larger bench (another substantial hurdle). The division bench would – if convinced – refer the matter to a five-judge bench, where the same process would be repeated;  and then – if the petitioner was successful in each of these stages – would the matter go before a seven-judge bench to reconsider.

These processes are of fundamental importance. They are important because they preserve one of the crucial pillars of the justice system: the sanctity and finality of judgments (especially those of the Supreme Court). One may agree or disagree with a judgment, but in the interests of legal certainty and stability, the judgment (for better or for worse) is law, and remains law, unless there are powerful reasons to depart from it. Of course, no judgment is set in stone: that is why review jurisdiction exists, and that is why referrals exist. And both processes – as we have just seen – cast an onerous burden upon those who would have the Court revisit judgments that have attained finality.

The first problem with today’s order, then, is that it mixes up two things that are fundamentally different in character. Indeed, in no sense is this a “review” at all: the Court does not even attempt to point out “an error on the face of the record” in the original Sabarimala judgment that was ostensibly under review. But if this is actually a judgment about referral, then how did the writ petitioners short-circuit the entire process that exists for these cases, and land up directly before a five-judge bench in proceedings that everyone understood at the time to be proceedings in review?

That said, let us consider the substance of the order itself. In paragraph 3, the Court notes that issues surrounding the entry of women into religious spaces arise in respect of some pending cases before the Court, involving mosques and Parsi fire temples – and that there is also a pending case on the legality of female genital mutilation (FGM). In paragraph 4, the Court then observes: “it is time that this Court should evolve a judicial policy befitting to its plenary powers to do substantial and complete justice and for an authoritative enunciation of the constitutional principles by a larger bench of not less than seven judges … It is essential to adhere to judicial discipline and propriety when more than one petition is pending on the same, similar or overlapping issues in the same court for which all cases must proceed together.”

With respect, this is bizarre. What this appears to be is something wholly new, which we can perhaps define as an “anticipatory referral.” The Supreme Court is due to hear some cases that have overlapping issues. So before it hears those cases, a larger bench should decide those issues! But unless these different cases are all heard simultaneously, by different five-judge panels of the Court – which then throw up contradictory rulings – this has absolutely nothing to do with “judicial discipline and propriety” (in fact, some of the cases the Court mentions have not even been referred to larger benches!). Let us take a tangible example. Sabarimala was decided last year. Let’s say the next case to be heard is the Parsi Fire Temple case. To the extent that legal questions arise in the latter that have already been resolved in the former, the bench hearing the Fire Temple Case will be bound to follow them, unless it decides to refer the matter to a larger bench for resolution. That is how it has always worked. And there has never been a reason to depart from that practice – certainly not by ostensibly citing “judicial discipline and propriety”!

This is made clear by the fact that the Court goes on to note that the issues arising in these pending cases “may be overlapping and covered by the judgment under review.” Yes, exactly – and unless the “judgment under review” is set aside in review for having an error apparent on the face of the record, these pending cases will be bound by it! Which brings us back to what the Court was actually asked to rule on in this case, and which it simply did not do – decide the review!

The judgment then frames some issues that it says “could arise” in these pending cases, pertaining to the interplay between various constitutional articles. It also points to an apparent conflict between Shirur Mutt and Dawoodi Bohra, on the issue of “essential religious practices” (the conflict is more apparent than real, but that is a debate for another day), which needs to be resolved by a larger bench.

Notice, however – so far – that what has been referred to a larger bench are certain suggested constitutional questions that may have an impact on the Sabarimala judgment, but are not about that case. But it is now that we come to yet another bizarre part of this judgment. In the penultimate paragraph, the Court notes that “while deciding the questions delineated above, the larger bench may also consider it appropriate to decide all issues, including the question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the temple in question at all. Whether the aforesaid consideration will require grant of a fresh opportunity to all interested parties may also have to be considered.

But where on earth has this sprung from? It would be appropriate for this “larger bench” to consider this question – that was settled in Sabarimala – only if it was sufficiently proven to another bench – either in Review or in referral proceedings – that a mistake had been made that warranted reconsideration. But – as already indicated above – the Court does not even attempt to show that a mistake has been made, or may have been made. It simply decrees that the larger bench “may” consider it appropriate to decide “all” issues. How and why? It does not say. This is not how a Court is supposed to reason.

The Court then ends by noting that the review petition and writ petitions shall be kept pending until these “questions” are answered. So, once again, we are back to the same point: it is not the judgment in Sabarimala that has been referred for reconsideration, but certain “questions” that are common to Sabarimala and other pending cases – without any judicial finding that Sabarimala got them wrong! What on earth is happening here?*

The incoherence of this judgment is highlighted in the dissenting opinion authored by Nariman J., on behalf of himself and Chandrachud J. In paragraph 2, Nariman J. sets out the exact point that this blog post has been making:

What a future constitution bench or larger bench, if constituted by the learned Chief Justice of India, may or may not do when considering the other issues pending before this Court is, strictly speaking, not before this Court at all. The only thing that is before this Court is the review petitions and the writ petitions that have now been filed in relation to the judgment in Indian Young Lawyers Association and Ors. v. State of Kerala, dated 28 September, 2018. As and when the other matters are heard, the bench hearing those matters may well refer to our judgment in Indian Young Lawyers Association and Ors. v. State of Kerala, dated 28 September, 2018, and may either apply such judgment, distinguish such judgment, or refer an issue/issues which arise from the said judgment for determination by a larger bench. All this is for future Constitution benches or larger benches to do. Consequently, if and when the issues that have been set out in the learned Chief Justice’s judgment arise in future, they can appropriately be dealt with by the bench/benches which hear the petitions concerning Muslims, Parsis and Dawoodi Bohras. What is before us is only the narrow question as to whether grounds for review and grounds for filing of the writ petitions have been made out qua the judgment in Indian Young Lawyers Association and Ors. v. State of Kerala.

 

And indeed, it is difficult to understand how it could be any other way. Nariman J. then actually goes on to write a judgment applying the standards required in a review, and finds that no grounds for review are made out (and that, at the same time, writ petitions directly attacking the judgment are not maintainable). A debate on this could have been had if the majority judgment had actually engaged with any of the points that Nariman J. makes. But of course, as we have seen, they do not. And finally, Nariman J. goes on to point out that arguments around the protests that followed the original Sabarimala judgment cannot possibly constitute a ground for the Court to retrace its steps, in a country governed by the rule of law.

It should therefore be clear that what the majority judgment does in this case is indefensible under any standard. One may agree or disagree with the original judgment in the Sabrimala case. But what a three-judge majority has done here – that is, exhibit a cavalier disregard for a reasoned judgment of a Constitution Bench, and invent a whole new method for people to collaterally  challenge judgments they don’t like – cannot but have profound and dangerous consequences for the rule of law. In a Court of thirty-three judges – as I have pointed out before – these issues become particularly important. The more the gravitational force of precedent is weakened – either by declaring coordinate benches per incuriam, or by judicial pyrotechnics as in this case – the more we head towards a factionalised and divided Court, where judicial interpretation becomes less about principle and more about power-play. Sabarimala will be a small casualty in that conflagration.


 

*Incidentally, a corollary of this is that – for obvious reasons – the majority has not stayed the Sabarimala judgment itself. Until the seven-judge bench is constituted, therefore, the judgment remains good law, and binding and enforceable on all parties, including the State.

Guest Post: On the Gendered Criminalisation of Adultery

(This is a guest post by Dr. Tarunabh Khaitan, discussing the constitutional challenge to adultery, which is presently being heard by a Constitution Bench of the Supreme Court.)


As the Supreme Court considers the constitutionality of a gendered criminalisation of adultery, is has the opportunity to reorient Indian fundamental rights jurisprudence in several significant, and necessary, ways.

Article 21

As Anuj Bhuwania has convincingly showed, the post-Emergency PIL-turn in the Supreme Court did nothing to fix the main weakness of our constitutional jurisprudence, represented by the now overruled judgment in ADM, Jabalpur—the refusal to take civil liberties seriously. Even as the Court became populist and developed a social rights jurisprudence, its record on civil liberties remained mixed at best.

Now, the Court has an opportunity to reinvigorate the guarantee of ‘personal liberty’ in Article 21 by underscoring firm liberal limits on the powers of the police state in relation to its citizens. It should also recognise that criminal law is a particularly blunt tool even when there is a genuine problem, and must be a tool of last resort (and must require very special justification). A robust articulation of personal liberty, and a rigorous proportionality test for its infringement will give the much-needed vigour to the guarantee of civil liberties protection under Article 21.

Article 14

While Article 21 should be the main vehicle for a finding of unconstitutionality in this case, the Court also has an opportunity to revisit its muddled Article 14 jurisprudence. In this chapter, I had argued that the arbitrariness doctrine under Article 14 confuses administrative law standards with constitutional review. I also showed that, contrary to what is commonly believed, the arbitrariness standard is usually deeply deferential to the state, and does not in fact leave Article 14 with sufficient bite. Finally, I argued that, at least with regard to legislative review, Article 14’s classification test should be reinterpreted in a less formalistic and less deferential manner than has hitherto been the case. In particular, the real-world impact of the classification, both material and expressive, should be part of the justification analysis under Article 14.

Article 15

The gendered dimension of the criminalisation of adultery also affords the Court with an opportunity–in conjunction with its anticipated judgments in the s 377 and the Sabrimala cases–to articulate a meaningful Article 15 jurisprudence. The criminalization of men only for adultery affords the court to identify that the disadvantage caused by discriminating can be both material as well as expressive. In three instant case, clearly the male adulterous partner suffers material and expressive disadvantage inflicted by criminalization. But even though she is not criminalized and may not therefore suffer material disadvantage, the expressive harm inflicted by the provision on women is significant. The symbolism behind the provision reflects attitudes that treat women as property of men. Section 497, IPC, which criminalises adultery, permits no other reading—it allows the husband to give his ‘consent or connivance’ to another man having sex with his wife, in which case no offence is committed. It is a collection of such social norms that support the institution of patriarchy, and their expressive force cannot be underestimated.

Furthermore, the provision also discriminates on the ground of marital status. But for the woman concerned being married, the offender would not have committed a crime. The social construction of gender norms is deeply intertwined with the norms surrounding marriage. Section 497 embodies a conception of marriage which entails the transfer of a woman (as property) from her father to her husband. Its gendered aspect cannot be separated from its connection with a particularly patriarchal understanding of the institution of marriage.

It is true that Article 15 is a closed list, and the Court has to do some creative interpretation to declare that ‘marital status’ is a constitutionally protected characteristic. There are two options before a progressive Court: either interpret ‘sex’ broadly to include ‘marital status’, given the deep sociological connection between the two. Courts in India, and elsewhere, have after all read pregnancy, maternity, sexual orientation, gender identity and other gendered characteristics as aspects of ‘sex’/’gender’ protection. A second alternative would be, as I argued in this paper, to read Article 15 as a sub-species of Article 14, and use the broader mandate of Article 14 to supply new grounds under Article 15. This second approach requires a caveat—while it is true that Article 15 is a sub-species of Article 14, the level of protection afforded under Article 15 is of a special character. Courts cannot continue to apply the same level of scrutiny to a law that distinguishes between sellers of tea and sellers of coffee (which is an Article 14 case, but not an Article 15 case), and one that distinguishes between Hindus and Muslims (which is an Article 15 case). This invites the Court to articulate a clear jurisprudence of the socio-political and economic conditions that elevate a characteristic for special protection under discrimination law (on this issue, see chs 2 and 3 of A Theory of Discrimination Law, especially pp 31-38 and 49-60).

Levelling-Up

To be clear, a finding of discrimination does not entail that the solution is to criminalise men as well as women. When two groups are treated differently, there are two ways of making them equal: either you bring the dominant group down to the level of the disadvantaged group (“levelling-down”) or you lift the disadvantaged group up to the level of the dominant group (“levelling-up”) (see, generally of A Theory of Discrimination Law, especially pp 153-4). It is clear that the right judicial response to discrimination in this case would be to level up by decriminalizing men, rather than level down by criminalizing women as well.


(Dr Tarun Khaitan is an associate professor at Oxford and Melbourne, and the General Editor of the Indian Law Review.)

Guest Post: The Essential Practices Test and Freedom of Religion – Notes on Sabarimala

(This is a guest post by Dr. Tarunabh Khaitan.)

These reflections are inspired by Justice Chandrachud’s musings from the bench expressing doubts about the ‘essential practices test’.

As I argue in this paper, freedom of religion is best understood as the right of an individual, not a group. Its best rationale is to be found in the need to protect our personal autonomy in matters pertaining to religious adherence. It is an important liberal value that ought to be cherished, and not restricted too lightly. While in the instant case, I think the non-discrimination principle probably trumps the religious freedom right, it is important that we recognise this isn’t an easy case and that whichever side wins, something of value will be lost.

These are my reasons for making these claims:

Official Doctrine versus Religious Practice

Sociological data is clear that even people belonging to the same ‘religion’ are religious in different ways. There is a staggering diversity of religious beliefs and practices, such that there are many Hinduisms, many Protestantisms, many Buddhisms and many Islams. Whatever official doctrine may say, sociologists seem to be telling us that most individuals go about adhering to their religions à la carte. Instead of accepting any package on offer as is, they make choices, they pick some aspects and reject others, emphasise this and ignore that, or interpret away inconsistencies. Of course, in many religions, such as Hinduism, there is no ‘package’ on offer anyway.

Given this staggering diversity in religious practice, recognising an essential practices test artificially elevates for protection the ‘official’ (often the most orthodox) line of thinking of a religious elite for constitutional protection. This overly formal devise ignores how religious people actually live their lives.

Furthermore, there is little scope, beyond a rhetorical acknowledgement, of the religious freedom of atheists and agnostics within the essential practices test. Since there is no ‘essential practice’ to atheism, it basically falls of the constitutional radar. In the paper, I show how an autonomy-focussed individualistic reading of freedom of religion can genuinely respect an atheist’s freedom from religion.

Gatekeeping

The essential practices test is mainly used by our courts to perform a gatekeeping function—given the fact that religious freedom is often used to advance some rather bizarre claims, by asking whether the practice is essential to the official doctrine of a religion, the courts can basically ‘keep the crazies out’.

An individualistic approach to determining freedom of religion will admittedly have a very broad scope. As the paper argues, all that an individual claimant needs to prove is her sincerity in making the claim and that the object of the claim is plausibly This does open the gates very wide at the initial stage.

However, the paper says, a better approach to gatekeeping is not at the stage of determining the scope of the right itself, but at the justification stage: whether the restriction on the right is justified. At that stage, public norms of proportionality can do a much better job of discerning which religious freedom claims are worthy of protection, and which are not, without artificially determining beforehand whether a claim even counts as a religious freedom claim.

On Judicial Role

As Justice Chandrachud rightly notes, the essential practices test puts the judge in an extremely awkward situation. It asks of her to determine what is essential to a religion and what is not. This is nothing but the appropriation of a religious function by the state, and a blatant attack on the autonomy of religions. The irony, of course, is that this is done by the state in the name of protecting religious freedom. Defining what a religion is is best left to its adherents. It is better for the court to say that public reasons require a restriction on one’s religious freedom, than for it to say that what one claims as her religion is not her religion at all.

Both law and religion are autopoietic systems. Teubner identified the ‘regulatory trilemma’ that law faces when seeking to regulate such systems: (i) either law’s regulation is incompatible with the self-producing interactions of the other system (in this case, religion), and will be ignored, or (ii) the law influences the internal interactions in the regulated system so strongly that their self-production itself is endangered, or (iii) the law itself is captured by the regulated system.

One could argue that in India, (ii) has been in evidence: that the law’s overreach into religious matters has destroyed the internal capacity of religion to reform and regenerate. The relative dearth of internal religious reform movements since independence, especially within Hinduism, may be explained by this.

Pitted against this warning are the unique socio-cultural conditions in India, especially in relation to the practice of Untouchability, and our special constitutional mandate to the state to reform the majority religion. The scale of the injustices makes it hard for the state to stay distant. But it is important for it to also recognise the dangers of overreach, which might damage the religion’s capacity for organic growth and internal reform.

On the case at hand

The Sabrimala entry case is a difficult one. It is difficult because the interests on both sides are weighty. The religious interest in the case is potent because it concerns religious worship, rather than, say, a secular service being provided by a religious organisation. It is a lot easier to tell a religious body that it must not discriminate while delivering charitable services to the public, than to say that practices that constitute a sacred communication with the divine (from its internal viewpoint) should be subject to public norms. The religious freedom interest in the case at hand is very weighty indeed.

On the other hand, patriarchy is entrenched in all our institutions, and religion has played a key role in securing its position. The interest on the other hand it not simply that of ‘the right to pray’ by some women, but an important expressive interest in rejecting blatant sexism. As I have argued before in my monograph on discrimination law (chs 4&5), the overall point of discrimination law is to reduce and eliminate substantial, abiding, and pervasive advantage gaps between cognate groups (such as men and women). These advantage gaps exist in the material, political as well as socio-cultural dimensions, creating a mutually reinforcing and self-perpetuating pattern of domination and disadvantage.

In the final analysis, what probably tips the balance in favour of the claimants seeking the right to entry is our unique constitutional treatment of Hinduism, especially in relation to temple entry in Article 25(2)(b), and the additional weight to their argument supplied by Article 17’s prohibition on Untouchability. While Article 25(2)(b) only applies to ‘religious institutions of a public character’, Article 17 has a broader reach. The court appears not to show much patience with the argument that the understanding of Untouchability can be extended to women. But Martha Nussbaum has argued convincingly that caste taboos are inseparable from gender and sexuality taboos, and a proper understanding of Dr Ambedkar’s teachings must extend to all forms of discrimination.

Even if the court finds against the temple, it should do so with some regret at a significant interference with religious freedom. Constitutional morality cannot simply be invoked to judge the morality of the religious practice in question—the morality of our constitution extends to the protection of practices that are unpopular, offensive and even wrong. Of course, when rights of others come into conflict, religious freedom sometimes has to give way. But religious freedom would be meaningless if it only protected practices we approved of.

In particular, the court must be mindful of our political context and history. Our subcontinent has spilt much blood over religion. Even today, people are being killed for their religion, and their religion-inspired dress, food and habits. A robust protection of religious freedom (along with the right against religious discrimination) allows us to live peacefully despite our differences. It is an important liberal value that ought to be cherished, even (nay, especially) when we disagree with what it seeks to protect.

(Dr. Tarun Khaitan is an Associate Professor at Oxford and Melbourne, and the General Editor of the Indian Law Review.)

Articles

A. Freedom of Speech, Censorship

  1. Fuzzy law, unclear jurisprudence, trampled rights“, The Hindu (February 15, 2021).
  2. On Gandhi’s 150th, its time to review the sedition law“, The Hindustan Times (October 2, 2019).
  3. Gag orders on the media have to go“, The Hindustan Times (May 1, 2019).
  4. Dealing with the thought police“, The Hindu (February 14, 2019).
  5. SC must not stifle commentary on sub-judice cases“, The Hindustan Times (February 11, 2019).
  6. In the Age of #MeToo, why Criminal Defamation must go“, The Hindustan Times (November 1, 2018).
  7. The Judiciary’s #MeToo Moment“, The Hindu (October 23, 2018).
  8. How the blasphemy law could transform Punjab into a theocratic state“, The Hindustan Times (September 20, 2018).
  9. Taking on the gatekeepers: on the censor board“, The Hindu (December 30, 2017).
  10. The gag on free speech“, The Hindu (December 4, 2017)
  11. Making the internet disappear“, The Hindu (October 18, 2017).
  12. The architecture of censorship“, The Hindu (August 17, 2017).
  13. Upsetting a very fine balance“, The Hindu (February 20, 2017).
  14. Two takes on democracy“, The Hindu (January 4, 2017).
  15. A blow against free speech“, The Hindu (May 16, 2016).
  16. A case for cutting out the censor“, The Hindu (June 13, 2016).
  17. The fault in our speech“, The Hindu (July 7, 2016).
  18. It’s not about just national security“, The Hindu (November 8, 2016).
  19. At the heart of the landmark 66A ruling: the crucial distinction between advocacy and incitement“, Scroll.in (March 25, 2015).

B. Equality and Non-Discrimination

  1. The marital rape exception must go“, The Hindustan Times, (19 January, 2022).
  2. HIV Act: When a law fails to change social attitudes“, The Hindustan Times, (18 October, 2021).
  3. Domestic Violence Act: the Supreme Court took a progressive turn“, The Hindustan Times, (October 26, 2020).
  4. The Lockdown must not Undermine Citizen Rights“, The Hindustan Times (April 10, 2020).
  5. The Supreme Court’s jurisprudence on reservation has gaps“, The Hindustan Times (March 3, 2020).
  6. The warp and the weft of religious liberty“, The Hindu (January 13, 2020).
  7. Proposed citizenship law is immoral, will unleash a legally sanctioned regime of discrimination“, The Indian Express (December 9, 2019).
  8. A Bill that undercuts key constitutional values“, The Hindu, (October 7, 2019).
  9. Bills of Rights for the vulnerable“, The Hindu, (May 31, 2019).
  10. Don’t dilute the RTI and the Forest Rights Acts“, The Hindustan Times (May 28, 2019).
  11. Challenge the NDA’S Citizenship Bill“, The Hindustan Times (January 15, 2019).
  12. The Rajya Sabha must amend the Transgender Persons Bill“, The Hindustan Times (January 5, 2019).
  13. Maternity leave is not a question of charity“, The Hindustan Times (December 6, 2018).
  14. Decriminalisation of adultery is the first of many steps“, The Hindustan Times (September 29, 2018).
  15. Sec 377 judgment: An atonement for a grievous error, but a gateway towards greater freedom“, The Hindustan Times (September 10, 2018).
  16. Sabrimala case: It’s not a struggle to defeat religious faith“, The Hindustan Times (July 23, 2018).
  17. The law on adultery is asymmetric“, The Hindustan Times (May 17, 2018).
  18. The arguments against making marital rape a criminal offence are not valid“, The Hindustan Times (April 1, 2018).
  19. Indirect discrimination: rules and laws are never really ‘neutral’“, The Hindustan Times (February 23, 2018).
  20. Why does a woman’s religious identity in India still depend on who she’s married to?“, The Hindustan Times (January 18, 2018).
  21. The Transgender Persons Bill sends out a message of subordination and exclusion“, The Hindustan Times (December 22, 2017).
  22. Two cheers for the Supreme Court“, The Hindu (August 24, 2017).
  23. Triple talaq and the Constitution“, The Hindu (May 11, 2017).
  24. The case against customary exclusion“, The Hindu (January 15, 2016).
  25. Azaadi from a colonial rulebook“, The Hindu (March 11, 2016).
  26. Laws that make us human“, The Hindu (April 25, 2016).
  27. The equality of entry“, The Hindu (September 8, 2016).
  28. Why those challenging the Haji Ali Dargah Trust’s ban on women have a good legal case“, Scroll.in (March 22, 2015).

C. Personal Autonomy and Freedom

  1. Eliminate State and social interference in matters of conscience“, The Hindustan Times, (January 5, 2021).
  2. Why the Supreme Court ruling on bar dancers is unsatisfactory“, The Hindustan Times (February 3, 2019).
  3. Undoing a legacy of injustice: the Delhi High Court order striking down the Begging Act heeds the Constitution’s transformative nature“, The Hindu (August 13, 2018).
  4. Under a humane Constitution“, The Hindu (March 23, 2018).
  5. Hadiya has the constitutional right to make her own choices“, The Hindustan Times (November 28, 2017).
  6. Cow slaughter and the Constitution“, The Hindu (June 1, 2017).
  7. My way on the highway“, The Hindu (April 5, 2017).

D. Civil rights and national security

  1. It is crucial to reform the Foreigners’ Tribunals“, The Hindustan Times, (20 May 2022).
  2. How the UAPA is wrecking lives“, The Hindu, (7 April, 2022).
  3. Rethink the criminal identification bill“, The Hindustan Times, (3 April 2022).
  4. Reforming the Foreigners’ Tribunals“, Hindustan Times, (2 January, 2022).
  5. Path to striking down sedition law has many hurdles“, Times of India, (18 July, 2021).
  6. UAPA’s inherently flawed architecture, and the role of Courts“, The Hindustan Times, (July 12, 2021).
  7. A judicial pushback to a draconian legal regime“, The Hindu, (June 18, 2021).
  8. Why a Gauhati HC order on a citizenship case is important“, The Hindustan Times, (April 20, 2021).
  9. How UAPA curtails personal liberty, undermines fair trial“, The Hindustan Times, (February 16, 2021).
  10. “A plaintive lament on liberty that rings hollow”, The Hindu, (January 20, 2021).
  11. India needs a law to compensate the wrongly imprisoned”The Hindustan Times, (September 1, 2020).
  12. Are people in J&K citizens or subjects?“, The Hindu, (July 23, 2020).
  13. Supreme Court has not lived up to its own principles in Jammu & Kashmir“, The Hindustan Times, (June 8, 2020).
  14. SC order on Kashmir curbs rejected govt’s attempt to gain judicial sanction of Emergency-style powers“, The Indian Express (January 24. 2020).
  15. The value of the SC’s Kashmir order“, The Hindustan Times, (January 12, 2020).
  16. NPR, NRC: Two sides of the same coin“, Mumbai Mirror, (December 27, 2019).
  17. How Section 144 and internet shutdowns shrink democratic rights“, Hindustan Times, (December 21, 2019).
  18. The widening fissure in India’s rule of of law“, The Hindu,
  19. Conditions apply’: the SC’s RTI rulingThe Mumbai Mirror, (November 15, 2019).
  20. The Absentee Constitutional Court“, The Hindu, (September 12, 2019).
  21. Jurisprudence of the judicial rubber stamp“, The Hindu (September 5, 2019).
  22. Amendments to the RTI must be Rejected“, The Mumbai Mirror (July 24, 2019).
  23. The Presumption of Non-Citizenship“, The Hindu (July 23, 2019).
  24. Inhumane, and utterly undemocratic“, The Hindu (June 10, 2019).
  25. Guilt by association and insinuation“, The Hindu (September 20, 2018).
  26. Preventive Detention must be used judiciously“, The Hindustan Times (July 3, 2018).
  27. Bhima-Koregaon and the fault in our laws“, The Hindu (July 2, 2018).
  28. Supreme Court cannot take a janus-faced view towards personal liberty“, The Hindustan Times (April 25, 2018).

E. Privacy

  1. The ‘yes or a no’ that the court must ask about Pegasus“, The Hindu (October 12, 2021).
  2. Privacy Concerns during a Pandemic“, The Hindu (April 29, 2020).
  3. India’s Growing Surveillance State“, Foreign Affairs, (February 19, 2020).
  4. Don’t link Aadhaar with social media accounts“, The Hindustan Times, (October 25, 2019)
  5. Facial surveillance is a threat to privacy“, The Hindustan Times, (July 17, 2019).
  6. The Aadhaar ordinance raises serious constitutional concerns“, The Hindustan Times (March 2, 2019).
  7. The case against surveillance“, The Hindu (December 25, 2018).
  8. India needs to acknowledge the gaps in data protection and the rights of children“, The Hindustan Times (August 10, 2018).
  9. The fabric of a plural culture“, Business Standard (August 28, 2017).

F. Voting rights

  1. An Ineffectual Angel“, The Hindu (April 29, 2019).
  2. The Supreme Court’s Interim Order on Electoral Bonds is Disappointing“, The Hindustan Times (April 13, 2019).
  3. The Election Commission must come clean on the deletion of voters“, The Hindustan Times (April 2, 2019).
  4. The electoral bonds scheme is a threat to democracy“, The Hindustan Times (March 18, 2019).

G. Labour Rights

  1. Delivery workers need justice, not charity“, The Hindustan Times, (September 10, 2021)
  2. “By elevating labour rights to human rights, the SC opens a door”The Hindustan Times, (October 5, 2020).
  3. Devise a new labour law regime for gig economy workers“, The Hindustan Times, (September 22, 2020).
  4. How the Supreme Court let down poor workers during the pandemic”The Hindustan Times, (August 17, 2020).
  5. Equal Freedom and Forced Labour”, The Hindu, (May 12, 2020).
  6. Needed: A Law to Protect Domestic Workers“, The Hindustan Times, (May 9, 2020).

H. The Death Penalty

  1. Why the Supreme Court must rethink capital punishment“, The Hindustan Times (October 19, 2019).
  2. Why Bombay High Court order on death penalty for repeat rape offenders is unsatisfactory“, The Hindustan Times (July 3, 2019).
  3. It is time to rethink the death penalty“, The Hindustan Times (December 22, 2018).

I. Constitutional Structure and Governance

  1. The crisis of India’s Parliament“, The Hindustan Times, (October 3, 2021).
  2. Why the anti-defection law has failed to deliver“, The Hindustan Times, (July 30, 2020).
  3. The imperial cabinet and an acquiescent Court“, The Hindu (March 7, 2019).
  4. Why the Supreme Court’s verdict after the Karnataka polls is critical for India“, The Hindustan Times (May 29, 2018).
  5. Do we need the office of the governor?“, The Hindu (May 24, 2018).

J. The Supreme Court

  1. A docket full of unresolved constitutional cases“, The Hindu (7 December, 2021).
  2. A tale of evasion, deference and inconsistency“, The Hindustan Times, (10 December, 2020).
  3. Decoding Ranjan Gogoi’s legacy“, The Hindustan Times (17 November 2019).
  4. Peace bought by an unequal compromise“, The Hindu (15 November, 2019).
  5. Imbalances of power and due processes don’t matter“, The Hindustan Times (7 May, 2019) (co-authored with Suhirth Parthasarathy)
  6. Spectacle fit for a Kangaroo Court“, The Mumbai Mirror (21 April, 2019).
  7. Opening up the Supreme Court“, The Hindu, (9 April, 2019).
  8. The Supreme Court must avoid turning into the executive“, The Hindustan Times (26 February, 2019).
  9. Judicial evasion and the status quo“, The Hindu (January 10, 2019).
  10. The fear of executive courts“, The Hindu (December 14, 2018).
  11. Matters of public interest must follow due process“, The Hindustan Times (November 22, 2018).
  12. Justice must be open, not opaque“, The Hindustan Times (October 19, 2018).
  13. In the Court of Last Resort“, The Hindu (October 2, 2018).
  14. Master and the roster“, The Indian Express (January 15, 2018).

K. Transformative constitutionalism

  1. Rights, Duties and the Constitution“, The Hindu (February 25, 2020).
  2. Republic at 70: the Importance of Fundamental Rights“, The Hindustan Times (January 26, 2020).
  3. The Case for a Progressive International“, The Hindu (November 30, 2018).
  4. The Narrow and the Transformative“, The Hindu (July 31, 2018)
  5. Dissenting judgments ensure that the Constitution is a living, breathing document“, The Hindustan Times (November 20, 2017).
  6. The 1947 singularity“, The Hindu (February 28, 2018).