The High Court of Kenya Strikes Down Life Imprisonment

In July of last year, the Kenyan Court of Appeal had struck down mandatory life imprisonment as unconstitutional. As the analysis on this blog noted, the judgment was delivered in a context in which the death penalty in Kenya has not definitively been held unconstitutional (just last week, in fact, a Kenyan Court controversially handed down a death sentence). However, even as the debate around the death penalty continues, the High Court – in a judgment delivered on 19th March 2024 – held life imprisonment itself to be unconstitutional.

The judgment – Justus Ndung’u Ndung’u vs Republic, authored by Justice Nixon Sifuna, is remarkably short, coming in at six pages. It was an appeal from both a conviction and a sentence (for incest), and indeed, much of the judgment is concerned with re-appraising evidence. The Court finds that the conviction was justified, and upholds it. This then brings it to the question of sentence: the magistrate had imposed a life sentence. The Court finds it unjustified not specifically on the facts of this case, but rather, on the basis that the sentence of life imprisonment itself is unconstitutional. The heart of the analysis is in paragraph 10, where the Court notes:

A life sentence is a sentence sui generis. In that, whereas it is philosophically supposedly imprisonment for a duration of time only, it is in actual sense imprisonment that is indeterminable, indefinite, uncompletable, mathematically incalculable, and therefore quantifiable only for the convict’s entire remainder of his lifetime.

Variants of this analysis are repeated in the succeeding paragraphs, before Sifuna J concludes that the sentence is, therefore, archaic, unreasonable and absurd, and violates the right to human dignity under Article 28 of the Kenyan Constitution (paragraph 17). Reconstructing the reasoning, at its heart, the issue appears to be that unlike all other sentences, life imprisonment is not definite, but pegged to a contingent event (the end of the convict’s life), which could happen at any given time. Sifuna J. therefore compares it to the death penalty (paragraph 16), and also highlights the potential absurdity of a person who dies in prison soon after being sentenced for a heinous crime, as opposed to another person who spends years behind bars for a less serious crime (paragraph 12).

Neither of these two arguments are, however, entirely convincing. The analogy with the death penalty is striking and powerful, but it is unclear if it supports the argument for unconstitutionality, given that the death penalty itself has not been struck down yet (in fact, a situation where life imprisonment is unconstitutional but the death penalty is constitutional feels somewhat anomalous!) And the potential absurdity of someone dying an early death behind bars is not quite an absurdity if we consider that the primary penological goal of life imprisonment is prevention – i.e., to prevent a convict from committing a crime again. From that perspective, there is nothing particularly absurd about a convict dying soon after being sentenced, as there is no question of recidivism after death. It is, of course, another matter whether punishment based solely on prevention, and completely ignoring reformation or rehabilitation, can pass constitutional muster; that, however, is not considered in the judgment.

We therefore come back to the question of indefiniteness, and the violation of the right to dignity. I think that the argument – although it is not spelt out in the judgment itself – is essentially one of dehumanisation, or considering the convict purely in instrumental terms. In assuming that an individual can never be re-integrated into society, the life sentence entirely strips them of agency, or the ability to make different choices in the future. The locus of the violation of human dignity, I would suggest, lies in this assumption.

Two points then arise with respect to the judgment itself. The first – as noted above – is that the judgment does not, in its consideration of the dignity question, engage with penology, or the goals of criminal punishment. In my view, striking down a sentence provision as unconstitutional is difficult without at least considering what the stated goal of the punishment is, and how the punishment itself relates to that goal. Indeed, that is a vital element of the proportionality test, which is the overarching basis of constitutional challenges, especially of this nature. Indeed, the paragraph above – that attempts to excavate the normative basis for the indefiniteness argument – finds itself going back to the penological goals of the life sentence (as it must).

The second point is a point of procedure: notably, it does not appear that the constitutionality of the life sentence was challenged in this case (if it was, then the entirety of this paragraph can be ignored). I do not have access to the pleadings, but let us go by the Court’s own framing of the question of sentence: “Whether the imprisonment sentence imposed by the trial court was unreasonable, excessive, or too harsh.” This is not the language of a constitutional challenge, but a plea for sentence mitigation on the facts of the case. The question then arises: can the High Court strike down the life sentence without it being under challenge? Would not, for example, the State have to be put to specific notice, so that it can defend the constitutionality of the sentence in those specific terms?

While, therefore, I agree with the High Court’s decision to strike down the life sentence, and I find locating the analysis in how indefiniteness violates the right to dignity, the Court’s reluctance to engage in a full-blown analysis of the dignity question (including applying the proportionality test), as well as the possibility that there was no constitutional challenge made, might leave the judgment vulnerable upon appeal. It will be interesting to see what happens at the Court of Appeal!

The Mysterious Disappearance of the Stay Hearing

Earlier this week, the International Court of Justice held a two-day hearing on “provisional measures” in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel). The hearing – which took place twelve days after South Africa first instituted the case against Israel – focused on South Africa’s request for various provisional measures which would protect the rights of the parties in the interim period leading up to the final hearing and determination of the case.

But to an Indian constitutional lawyer, these proceedings might have been a little bewildering, given their disappearance from our domestic scene. Consider two recent, prominent cases. In December, the Lok Sabha expelled Mahua Moitra MP from Parliament. Moitra immediately moved the Supreme Court challenging her expulsion.* The Supreme Court took up the case for hearing on January 3, on reopening after the winter break. On that day, it issued notice to the Lok Sabha secretariat, and after giving parties time to file their replies and rejoinders, set a date for hearing the case in March. A prayer for interim relief – in the form of allowing Moitra to sit in Parliament during the Budget Session, without voting privileges – was declined. With the Budget Session due at the end of February, and the Lok Sabha elections due soon after, even if the case is heard in March, it would already have become infructuous with respect to Moitra.

The second case is the constitutional challenge to the Election Commissioners Act, which had also been passed in the winter session of Parliament. The Act sought to get around the Supreme Court’s judgment in Anoop Baranwal (see here) by creating a selection committee for election commissioners that gave a decisive majority to the union executive. When the challenge came before the Supreme Court, it issued notice, and listed the case for hearing in April. A request for a stay was declined, on the ostensible ground that the State had not been given advance notice. It is important to note that the next vacancy in the Election Commission is in February, before the Lok Sabha elections due two months later. The Court’s April date, therefore, means that the composition of the Election Commission for the Lok Sabha elections will have been done under the impugned law.

Both cases were heard by a bench presided over by Justice Sanjiv Khanna, who is next in line to be the Chief Justice (and therefore, serve as an insight into his judicial philosophy in advance of his tenure). What is striking about both these cases is that they involved constitutional challenges in extremely time-sensitive contexts, and in both cases, the dates for hearing set by the Court took the case beyond the period of time where a judgment by the Court would make a significant difference.

Now, taken by themselves, these dates are not unreasonable: setting a case for hearing three (or even four) months after the institution of proceedings is par for the course, given that parties will need to file replies and rejoinders (it is a different matter whether the case will actually go ahead on the stipulated date). However, that is precisely why there exists a mechanism in the toolbox of constitutional judges in time-sensitive cases: that is, a hearing on the limited issue of whether or not to stay the legislation/State action that has been challenged (or to grant other forms of modulated relief). In such a stay hearing, the petitioners will attempt to persuade the Court – among other things – that not granting a stay would cause irreparable harm or injury. The State will argue otherwise. But there will be an argument.

It is in this context that the Supreme Court’s treatment of these two cases is surprising. The bench categorically ruled out granting a stay, or any other kind of interim relief, on the day these cases came up for notice. Fair enough. However, the bench also appeared to believe that having said that, there was nothing else to do until the cases came up for hearing in the ordinary course of things. This is evidently not the case: the most logical thing for the bench to have done was to fix a date for a hearing on the limited issue of stay/interim relief.

One doesn’t even have to look as far as the International Court of Justice to understand how normal such a course of action is for a court. On this blog, we have recently discussed the constitutional challenge to Kenya’s Finance Act. The Act received Presidential assent on 26th June 2023; on 10th July 2023, after a detailed hearing, the High Court granted what, in Kenya, is called a “conservatory order” and what we would understand as an “interim stay.” (see here and here). The State carried this in appeal, and the Court of Appeal, after another detailed hearing, lifted the stay (see here). The case was ultimately heard on merits, and a judgment partially striking down the Act was delivered in late November 2023 (see here).

While the State ultimately “won” on the question of a stay, this chronicle is an example of how constitutional courts can act in time-sensitive constitutional challenges: that is, pending final determination, to hold a full-fledged hearing on the question of a stay, where both parties will present their arguments, and then to deliver a reasoned judgment, applying established constitutional standards. This is in stark contrast to the approach in the two cases discussed above, where the Court was not only dismissive about granting a stay, but did not even appear to consider the possibility of hearing arguments on the question.**

On this blog, we have previously discussed the concept of “judicial evasion”: a situation where the Court waits years before hearing a constitutional challenge, allows the executive to accomplish a fait accompli, and thus “decides (in favour of the executive) by not deciding.” The cases discussed above are not instances of judicial evasion, but they – equally – have the effect of facilitating executive impunity by allowing impugned laws or State action to accomplish their core objective (which itself is under challenge), without facing judicial scrutiny.

While not directly relevant to this post, it is, I think, profitable to compare the Court’s approach to constitutional challenges with the Court’s approach to personal liberty. Again, two recent cases stand out: the bail orders of Mahesh Raut and Gautam Navlakha, in the Bhima-Koregaon cases. Consider the case of Mahesh Raut. After spending many years in jail without trial under the UAPA, Raut was eventually granted bail by the Bombay High Court, on merits, in September. While granting bail, the High Court stayed its own order for a week, allowing the National Investigative Agency to appeal to the Supreme Court. Now, this is bewildering enough in its own right: a pre-emptive “self-stay” by a court below is sometimes understandable in a case where a statute has been struck down for unconstitutionality, and one does not wish to create irreversible consequences until the appellate court has at least had an opportunity to consider the appeal once; but why on earth would a court grant a pre-emptive “self-stay” on a bail order, keeping a person in jail just to allow the State to appeal that order?

Be that is it may, when Mahesh Raut’s case came to the Supreme Court, the Court – without giving any reasons – extended the stay until the time it would get around to hearing the appeal. Consequently, despite having a detailed bail order in his favour, Mahesh Raut has been in jail for many further months, because the Supreme Court hasn’t had time to hear the State’s appeal, and the “pre-emptive self-stay” that had been granted to give the State the bare minimum time it needed to file an appeal, has transmogrified into an ever-extending, open-ended, limitless “stay.” Exactly the same thing happened in Gautam Navlakha’s case (with the difference that Navlakha is not presently in jail, as he was granted house arrest for medical reasons).

One wonders at these very different approaches of the Court to the question of a stays in cases challenging the State, and cases of personal liberty. Indeed, as the Court has neither held a hearing on stay in the Moitra and Election Commission cases, or provided reasons for extending the pre-emptive “self-stay” in Raut or Navlakha’s cases, further critique or discussion is technically impossible: only wonder is left.

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*By way of disclosure, the present author is one of the counsel representing the ex-MP.

**In the Moitra case – which the present author witnessed – the Court made it clear that it simply wasn’t interested in a stay, and no purpose would be served by pressing for one.

Pushing Back Against Punitive Jurisprudence: The Allahabad High Court’s Interim Order on Demolitions

On this blog, we have discussed at some length cases involving evictions and the demolitions of houses, and the responses of the courts. While there does exist, in theory, a set of substantive and procedural safeguards that must precede evictions and demolitions – including a survey to determine the entitlement of the residents for welfare and rehabilitation schemes, meaningful engagement, and actual rehabilitation before demolition – in practice, the courts frequently do not apply these safeguards, and allow evictions and demolitions to go ahead, effectively making the case infructuous. Predominantly, the approach of the courts is characterised by what one can call punitive jurisprudence, one which sees demolitions and evictions as just desserts for “illegal” occupation of land, often by people who have nowhere else to go, and no land to call their own.

In this context, when a court does act in a prompt and effective manner, it is both refreshing and remarkable. A recent example of this is the order of the Allahabad High Court on 21st December, in Syed Hamidul Bari and Ors vs State of UP. The petitioners were residents (without legal title) on a property known as Akbar Nagar – I and II, and had been living their for forty to fifty years. An order of demolition was passed on 13th October 2023, under the UP Urban Planning and Development Act of 1973, on the basis that this was a green belt area, and that therefore, the petitioners’ occupation was illegal. Petitioners argued that the demolition order violated both the statutory procedural requirements, as well as the petitioners’ rights to life and livelihood under Article 21 of the Constitution.

Pankaj Bhatia J., writing for the Court, noted in paragraph 16 that it had not been disputed that the petitioners had been in possession of the land for a passage of time, during which government roads had been built, as well as a school. Bhatia J also noted that there was an existing scheme for relocation, for the purposes of which a camp had been set up (paragraph 17). Keeping this in mind, the Court therefore observed:

At this stage, it is not clear as to what is the tearing hurry in which huge occupations by the relatively poor class of persons are being proposed to be demolished forthwith without even waiting for the scheme of relocating the adversely affected persons being implemented in letter and spirit and also exposing the poorest of the poor to the ensuing harsh winters.

As prima-facie, the rights flowing from Article 21 of the Constitution of India, which includes the right to earn livelihood, is prima-facie affected and it is the bounden duty of the State and its instrumentalities to ensure that Article 21 of the Constitution of India is not violated to give effect to the other obligations of the State which includes the obligation to resettle and which is also being discharged by the Lucknow Development Authority, I deem it appropriate to issue the following directions:

(i). The demolitions being carried out in Akbar Nagar-I & II pursuance to the orders of the demolition and after the dismissal of appeals are stayed forthwith, till the next date of listing. No demolition shall be carried out in the entire area.

(ii). The Lucknow Development Authority shall give reasonable time of four weeks to the inhabitants to apply in terms of the scheme and the inhabitants would be at liberty to apply in terms of the scheme within the reasonable time.

(iii). The Lucknow Development Authority shall thereafter take steps for resettlement of the persons who have applied in terms of the scheme forthwith and obtain vacant physical possession of the present premises in their occupation.

I have extracted this part of the order in full because, although straightforward, it reflects an adherence to core constitutional principles that one does not often see in such cases. First, the Court’s willingness to issue a stay on demolitions as an interim measure, while the petitioners’ properties were still standing, in an example of a court actually ensuring that its order is effective. This is in stark contrast to many similar cases, where courts “admit” the petition, and then don’t get around to hearing it until the demolitions are done. Secondly, the Court passes the very important direction – direction number (iii) – that any demolition, if it is to be done, can only be done after resettlement takes place in accordance with law. That is, rehabilitation and resettlement are conditions precedent to evictions and demolitions, including for occupants and residents without title, and not the other way round. Thirdly, the Court prevents precipitate and violent State action by stipulating that time be given to the residents to apply under the resettlement schemes that they are entitled for, and have their claims processed. And fourthly, the Court explicitly anchors these directions within Article 21 of the Constitution, and includes the obligation to resettle as a constitutional obligation. Thus, while in this case, a statutory scheme is in existence, the Court’s reasoning ensures that there is no legal vacuum where a scheme is yet to be passed.

Of course, as this is an interim order, it does not cover all issues. One crucial issue is the right to meaningful engagement as part of the resettlement and rehabilitation process, which was articulated by the Delhi High Court in the Ajay Maken judgment. If the right to livelihood is to have any meaning, it cannot be that the petitioners are resettled just about anywhere, with no meaningful access to their erstwhile means of livelihood. For this reason, judiciaries around the world – from Kenya to South Africa – have developed a right to meaningful engagement, where the municipalities are required, in good faith, to engage with residents in deciding where and how to resettle them under existing schemes. As the Court has stipulated the next date of hearing to be 22nd January 2024, it will be interesting to see if these issues arise for consideration on that date.

In the meantime, though, Bhatia J.’s order reflects a strong pushback against the punitive constitutionalism that has come to characterise these issues in India, and demonstrates that Indian jurisprudence on the issue of evictions, landlessness, and housing, has the resources to be on par with global best practices. One hopes that this humane and constitutionally rooted approach becomes the norm, across the judiciary.

Guest Post: Love, religion, and pre-marital sex – the Allahabad High Court on live-in relationships

[This is a guest post by Anshul Dalmia.]

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In a recent judgment, a two-judge bench of the Allahabad High Court (“Court”), dismissed a writ petition of a major couple residing in a live-in relationship, who were seeking protection from harassment from their families, and encroachment on their personal liberty. The Court rejected the application on three major grounds, discussed below.  

Firstly, the Court stated that the binding precedent of the Supreme Court (“SC”) highlighted by the petitioners did not indicate that live-in relationships were promoted by the SC, since Indian law was traditionally biased in favor of marriage. The Court further stated that the SC was merely accepting a social reality and had no intention to alter the social fabric of the country. Moreover, the Court seized this opportunity to ‘create awareness in young minds’ regarding the ‘various legal hassles’ these kinds of partnerships could entail. Secondly, the Court observed that pre-marital sex was not recognized in Muslim law and the punishment for indulging in acts of fornication outside marriage is a hundred lashes and stoning to death. Lastly, the Court believed that invoking the writ jurisdiction for such a matter would be a wrong assumption of extraordinary power.

Through this post, I seek to critique this judgment on the grounds of non-consideration of contemporary precedent and complete ignorance towards the pro-liberty constitutional jurisprudence that has painstakingly been developed by the SC over the course of several years.

Disregard of precedent

At the outset, the Court refers to earlier decisions that have presumed live-in relationships to be “in the nature of” marriages. Further, it provides a reference to decisions wherein Courts have stepped in and protected the rights of people within such marriage arrangements. D Velusamy and Indra Sarma were cited, which provide the conditions for such a relationship to be considered to be a ‘relationship in the nature of marriage’ as per the Domestic Violence Act, 2005. Dhanu Lal and Vidhyadhar were cited, which allowed women to inherit property after the death of their live-in partner. It is surprising that with the presence of these in-built judicial safeguards, the Court believed that young minds needed to be educated regarding the ‘legal complications’ of live-in relationships. However, the Court’s tryst with the decisions of Lata Singh and S. Khushboo is of significant importance.

In Lata Singh, the SC had observed that a live-in heterosexual relationship between consenting adults did not amount to any offence. Moreover, the SC in S. Khushboo, building further jurisprudence, had categorically upheld that live-in relationships are not a statutory offence and consensual sexual relationships amongst adults outside marriage are not prohibited. The Court dismissed any reliance on S. Khushboo by stating that the decision has to be read solely in the context of the facts of the case.

There are several issues with such a position: first, even if S Khushboo was to be rejected, Lata Singh still remained a precedent clear enough to prevent the High Court from adopting such a formalistic approach; but in any event, the S Khushboo observation has been recently approved by the SC in X v. Principal Secretary, NCT of Delhi, (as quoted below) and could be very well considered a binding precedent.

The law must remain cognizant of the fact that changes in society have ushered in significant changes in family structures. In S. Khusboo v. Kanniammal, a three-judge Bench of this Court acknowledged that live-in relationships and pre-marital sex should not be associated with the lens of criminality.

Additionally, in Deepika Singh v. Central Administrative Tribunal, the SC upheld the legality of atypical family relationships such as ‘unmarried partnerships’ which could impliedly mean to indicate live-in set-ups:

Familial relationships may take the form of domestic, unmarried partnerships or queer relationships [..] Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation.

Hence, the Court’s observation that the SC did not promote such relationships is incorrect and incongruent with previous decisions. It was not the duty of the Court to impose moral observations vis-à-vis the ‘promotion’ of such arrangements by the SC. Rather, it had to discern the ‘legality and permissibility’ of such domestic partnerships. The recent jurisprudence as espoused in the cases of Deepika Singh and X, indicates the attempt made by the SC to recognize non-traditional manifestations of familial relationships. Denying the fundamental right of marriage and life along with not preserving the right to personal liberty on unsubstantiated grounds, indicate a clear abdication of constitutional responsibility by the Court.

Marriage Before Sex or Sex Before Marriage?

The Court while attempting to substantiate the logical analysis in its judgment, refers to provisions of the Quran and the extreme prohibition upon sexual intercourse before marriage. Additionally, any sexual, lustful, affectionate acts are to be severely punished. I contend that invoking of Islamic Law – whether correctly or incorrectly – in this case, is not justified, considering the facts. Firstly, it is apparent that the inter-faith couple would not permitted to marry under the Muslim Law since both need to profess Islam; the Court cannot assume that a conversion might take place for the Quaranic Law to be applicable. Secondly, the jurisprudence vis-à-vis pre-marital sex has conveniently been avoided by the Court here.

A three-judge bench of the SC in Shahin Jhahan v. Asokan K.M. held that:

Intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the state. Courts as upholders of constitutional freedoms must safeguard these freedoms. The cohesion and stability of our society depend on our syncretic culture. The Constitution protects it. Courts are duty bound not to swerve from the path of upholding our pluralism and diversity as a nation. [..] Intimacies of marriage lie within a core zone of privacy, which is inviolable. The absolute right of an individual to choose a life partner is not in the least affected by matters of faith.

While the analysis of the Court regarding pre-marital sex may be considered to be an obiter dictum, it highlights the innate fear of the Courts to approve of such domestic relationships which impliedly allow an indulgence of sexual relationships before or outside the legal confines of a marriage. However, it is imperative to re-look and re-define domestic relationships and familial arrangements in the current paradigm. As correctly identified by the SC in Navtej Johar (as highlighted below), procreation is not the sole reason for companionship in today’s age.

With the passage of time and evolution of the society, procreation is not the only reason for which people choose to come together, have live-in relationships, perform coitus or even marry. They do so for a whole lot of reasons including emotional companionship. Homer Clark writes: But the fact is that the most significant function of marriage today seems to be that it furnishes emotional satisfactions to be found in no other relationships. For many people it is the refuge from the coldness and impersonality of contemporary existence.

Thus, the permissibility of pre-marital sex has already been adjudicated upon and there exists no reason for Courts to deny protection to live-in couples on the possibility of indulging in sexual intercourse outside valid marriage arrangements.

Writ Jurisdiction: Panacea to the Malady?

The writ jurisdiction with the High Court under Article 226 is extremely wide and bestows the Court with full plenitude of judicial power to enforce fundamental rights and prevent their illegal invasion. Here, the Court despite identifying that living together is a facet of the fundamental right to life as enshrined in Article 21, believed that assuming jurisdiction under Article 226 would be improper. Additionally, the Court refused to invoke this extra-ordinary power by stating that this ‘problem’ should be uprooted socially and not through the intervention of the Court. Further, only ‘real’ grievance of a live-in couple could be entertained wherein the couple ought to prove harassment beyond doubt. The harassment to be considered, should be to such an extent that there is a threat of life. In this case, the Court believed that the interfaith couple merely wanted their imprimatur on their relationship and were not seeking any protection of their relationship.

This analysis seems to be a major aberration from the factual matrix. Here, the complaint clearly indicates that the police were harassing the petitioners since they belonged to different religions, and were doing so on the pretext of the complaint of relatives. Imposing such a high standard for intervening in cases of a textbook-clear violation and encroachment of fundamental rights truly indicates a dereliction of duty and an abnegation of the Court’s constitutional power. One can only hope that this is swiftly set right, either on appeal (if the parties so choose), or in another case.

Guest Post: The Supreme Court’s Anthropocentrism in the Jallikattu Judgment

[This is a guest post by Hardik Choubey.]

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In Animal Welfare Board of India v Union of India (For convenience, “AWBI”), delivered on 18^th May 2023, a constitution bench of the Supreme Court (“the court”) upheld the amendment acts,  rules and notifications enacted to regulate the practices of Jallikattu and Bullock Cart Races in Tamil Nadu, Maharashtra, and Karnataka. The court also observed that in view of these enactments, the practices were no longer contrary to law.  Favoring the respondents on most issues, the judgement has essentially nullified the effect of Animal Welfare Board of India v A Nagaraja (2014) (“A. Nagaraja”), and marks a departure from the ‘animal rights constitutionalism’ that the 2014 division bench judgement signified.

In A. Nagaraja, the court was faced with deciding on the permissibility of Jallikattu, a practice which forms part of the festivities of Pongal, in which (broadly), young men attempt to catch a bull by their hump and then eventually stop them. The court had held that the practice was contrary to the provisions of The Prevention of Cruelty to Animals Act, 1960 (PCA). It held that section 11 of PCA was to be interpreted as a ‘beneficial provision’, which, being penal in nature, conferred ‘rights’ on animals and ‘obligations’ on all persons (Para 29). The court also suggested that these statutory rights of animals be transformed into ‘fundamental rights’ by the legislature, in line with developments in other countries (Para 56). The court specifically observed a shift in animal protection from being ‘anthropocentric’ (centered around human beings) to ‘eco-centric’ (Para 73). In the aftermath of the decision, there was widespread credit given to the judgement for vesting rights in non-human animals (For instance, see here and here).

A Nagaraja allowed courts to pursue a constitutional imperative to protect and support animals, as the most vulnerable subjects in our polity, viewing this protection as intrinsically valuable (‘eco-centric’). In doing so, the court had rejected a constitutional position which viewed animal welfare in relation to its instrumentality to human needs and rights (anthropocentricism). A budding jurisprudence, albeit with its problems (see here), emanated from this constitutional position. Various high courts subsequently applied the notions espoused in A. Nagaraja in a beneficial manner to protect animal ‘rights’ under the PCA (see here and here).

Subsequently, various states enacted amendments to the PCA to carve out exceptions for cultural events. In upholding the enactments, the judgement in AWBI essentially has the effect of allowing the continuance of the practices of Jallikattu and bullock cart racing in states which amended the PCA with the assent of the President. The court in AWBI, in contrast to A Nagaraja, approached the question of existence of animal rights through the applicability of ‘personhood’ to animals and held, that in the absence of precedent, animals cannot be said to possess rights (Para 24). The judgement in AWBI espouses a shift in the constitutional position from eco-centric animal protection, to one where animal welfare would be entirely viewed through ‘anthropocentric’ interests.  

Some others, including Suhrith Parthasarathy have argued that if ‘personhood’ within Part III cannot be bestowed upon animals juridically, then the way forward would be to make animal welfare ‘intrinsic’ to our constitutional arrangement. Without prejudice to the question of the existence of animal welfare or rights within our constitutional scheme, this piece seeks to advance that even within an anthropocentric understanding of Part III rights, the amendments allowing the practices in question could have been held unconstitutional by solely focusing on their impact on human beings. The thesis of this essay would focus on taking the court’s reasoning to its logical ends. I argue that owing to the anthropocentric shift in AWBI, an impersonal approach based on human right to life and ‘human dignity’ could provide animal protection with constitutional relief.

Background

In AWBI, there were two major grounds that the petitioners relied on to challenge the amendments: the first, that these amendments had failed to remove the basis of the judgement in A Nagaraja and; second, that since animals also have rights comparable to those of humans, their right to life cannot be infringed through practices such as Jallikattu. The court found against the petitioners on both the issues. With regards to the first ground, the court held that since adequate change in the ‘manner of conduct’ of the practices had taken place following the amendments, the defects pointed out in A Nagaraja had been cured (Para 30).  As for the second ground, the court held that precedent did not exist providing comparable rights for animals. It observed that instead, within our constitutional framework, their cause could be espoused by persons concerned with animal welfare (Para 24).

Jallikattu and Bullock cart-racing are practices which frequently and invariably cause grievous injuries to the humans persons participating and spectating these events (For illustration, see here, here and here). Further, even persons who willingly participate in these events or organize them, have to undertake activities which are severely traumatizing and dangerous, often because of the financial rewards attached to the events. I contend that the amendments which permit such events would be violative of Article 21 on two grounds: First, because allowing such events jeopardizes the life of the participants and spectators and the state is under an obligation to curtail such endangerment of life. Second, the very organization of such events puts at risk the ‘dignitarian interests’ of the participants, organizers and spectators, even when grievous injury to humans is avoided.

Practices of Jallikattu and Bullock cart-racing endanger human lives

A version of this argument was advanced in A Nagaraja. The Tamil Nadu Regulation of Jallikattu Act, 2009 (TNRJ) and subsequent rules provided for responsibilities of organizers to secure the orderly conduct of the events. The court, in its judgement, buttressed its reasoning by observing that several instances of human injury and suffering result from the organization of Jallikattu festivities, even when obligations and liabilities were clearly delineated in legislation (Page 32). However, the court did not go as far as to label this endangerment as an issue for ‘right to life’ of humans.

Later on, in AWBI, the court unceremoniously observed that

So far as human beings are concerned, their injuries would attract the principle of Tort known in common law as ‘voluntary non fit injuria’. (Para 39)

This observation is incorrect and confuses the established principle that tort law defenses, such as volenti non fit injuria cannot be invoked for violations of the right to life. The defense of ‘volenti non fit injuria’ is closely related to the doctrine of ‘acquiescence’ or consent to an outcome (At 10). However, if a person can consent to a violation of their fundamental right to life, that would amount to a ‘waiver’ of that right by the person. It is a settled position in Indian constitutional law that persons cannot waive their fundamental rights (At 1213). In Olga Tellis v BMC, a constitution bench rejected contentions of waiver and estoppel against invocation of the right to life under Article 21, since:

The Constitution makes no distinction…between fundamental rights enacted for the benefit of an individual and those enacted in public interest or on grounds of public policy.

We have established that persons cannot waive their right to life or consent to its infringement by their participation or presence at the events. However, the question now becomes, whether the amendments, by merely allowing and regulating the events, infringe the right to life. I would argue that they do, since the state has a positive obligation to secure the life and liberty of persons. In People’s Union for Democratic Rights v Union of India (1982) in the context of Article 23 and 24 violations by private actors, the court elucidated that:

…whenever any fundamental right, which is enforceable against private individuals as such… is being violated, it is the constitutional obligation of the State to take necessary steps for the purpose of interdicting such violation and ensuring observance of the fundamental right by the private individual who is transgressing the same.

Stephen Gardbaum observes that in fashioning the remedy of an ‘affirmative duty’ on the state, the court emphasized a remedial alternative to the imposition of sanctions on private actors. Further, in Kapila Hingorani v State of Bihar (2003), the SC again decided a case relating to compensation to employees of government companies/ PSUs by emphasizing that the state would be ‘constitutionally liable’ to ‘respect life’ and liberty of all persons in terms of Article 21 of the Constitution. As Tarun Khaitan and Farrah Ahmed note, these are manifestations of the court opting for a remedy in constitutional law whenever two or more equally commensurate and plausible remedies are available in a case. I submit that since the participants and spectators in these events cannot waive their right to life, the court could have taken their assertion of ‘anthropocentricity’ in fundamental rights to its logical ends and reviewed the impact of the amendments on human life.

This is buttressed by the fact that ever since the amendment acts allowed the resumption of the events after a three-year-ban, there have been numerous injuries and deaths incurred by participants and spectators alike. Just in the first half of January of this year, whilst the proceedings for AWBI were ongoing at the SC, 5 people had lost their lives in participation at these events in Tamil Nadu alone, despite the purported regulation of these events through the amendment acts and rules. It would be poignant to refer to the ECHR’s observations on the Article 2 ‘right to life’ in Osman v United Kingdom (citing Binişan v. Romania):

… whenever a State undertakes or organises dangerous activities, or authorises them, it must ensure through a system of rules and sufficient control that the risk is reduced to a reasonable minimum. If damage nevertheless arises, it will…amount to a breach of the State’s positive obligations if it was due to insufficient regulations or insufficient control.

A similar notion was followed in Nilabati Behera v State of Orissa (1993), where, in a case relating to police custodial death, the court moulded the relief by granting compensation, in proceedings under Article 32 and Article 226 seeking enforcement or protection of fundamental rights. It did so under public law and fixed liability on the State which had been negligent and had failed in its ‘public duty’ to protect the fundamental rights of the citizens.

The amendment legislation(s), in effect, ‘allows’ the continuation of the practices which actively harm, endanger and infringe upon the right to life of persons. This constitutes a failure on the part of the state to adequately provide protection to the life and limb of the participants and spectators, which should render the continuation of such practices through the amendments to the PCA ultra vires Article 21.   

Jallikattu and human dignitarian interests

In a piece in The Hindu, Suhrith Parthasarathy forwarded the notion that ‘animal rights’ could be made ‘intrinsic’ to our constitutional framework. One version of the argument that was imagined was to include an entitlement to live in a world free from animal cruelty within the anthropocentric right to a meaningful life. I argue that in the specific context of animal performance events (such as Jallikattu), a more amenable position to the reasoning propounded in AWBI would be to focus on the ‘dignitarian interests’of the persons involved in the events. I would concede that the language of ‘dignitarian interests’, in so many words, seems to be absent from Indian constitutional vocabulary. However, the doctrine provides a plausible avenue through which animal protection can be forwarded in a post AWBI anthropocentric approach to entitlements.

In human-human interactions concerning infringement of dignity, such as cases of false imprisonment, death penalty, torture, etc., it is often asserted that the ‘direct victim’ of the act had their ‘dignitarian interest’ compromised and any damage to the perpetrator’s ‘dignitarian interest’ was only incidental or collateral. Take the case of an executioner following the orders of a judicial system, who carries out the death penalty. Here, the damage to the ‘dignitarian interest’ of the executioner is considered only collateral, whilst that of the convict (the direct victim), is considered compromised. However, in situations where the ‘direct victim’ is a non-human animal and the perpetrator is human, there is no constitutional protection to the animal’s ‘dignitarian interests.’  Here, the court could engage in emphasizing on the sole dignitarian interest in the situation, i.e., of the human perpetrator.

An illustration of this proposition appears at the Romanian Constitutional Court, where, in Judgement No. 1 of 2012 (see original here, English translation here) the court was faced with a challenge to the constitutionality of provisions of law which approved a ‘stray dog management program’. This program would have empowered the mass euthanization of a category of dogs after 30 days of housing. The court observed that the impugned law was not specific about the order of the application of euthanasia and this impinged upon ‘human dignity’ of not just the public authorities, but of all humans, who had moral responsibility to care for all animals (Page 8). The court ordered that parts of the law would have to be clarified and ‘euthanasia’ could only be carried out as a last resort, in recognition of the ‘dignitarian interests’ of the public authorities and society in general. In an editorial, it was observed that the notions underlying such a decision could be based on inhibiting even ‘willing executioners’, as it would be the duty of the state to prevent the compromise of such persons’ dignity.

In K.S. Puttaswamy, the majority opinion of Chandrachud, J. (as he was then) enumerated the relationship between the notions of ‘life’ and ‘dignity’ and noted that ‘dignity’ of a human being is not something which can be given or something which can be taken away, i.e., it is inalienable (Para 101, 111). The notion of ‘dignity’ of human beings is pervasive. Events such as Jallikattu and bullock cart-racing impinge on the dignity of the ones participating. It has been repeatedly asserted that the practices, even post the amendment acts and safeguards, require severe infliction of pain on the animals and countenance severe trauma and pain in many participants as a result. In M Nagaraj v Union of India, a constitution bench observed that:

“It is the duty of the State not only to protect the human dignity but to facilitate it by taking positive steps in that direction. No exact definition of human dignity exists. It refers to the intrinsic value of every human being, which is to be respected.” [Emphasis Mine]

An obvious criticism to this line of thinking can be that the ‘social interest’ would constrain the independent decision-making of autonomous persons. That such decisions of societal or state interest in ‘human dignity’ ought to be left to the wisdom of the legislature. I submit that the specific subject matter that the line of argument targets, i.e., the permissibility of events like bullock cart-racing and Jallikattu by specific state allowancethrough the amendments to the PCA, constrains its application to issues where there is ‘positive action’ on the part of the state which endangers human dignity. In the case of Jallikattu and bullock cart-racing, these activities were prohibited post the judgement in A Nagaraja. However, it was state action (passing of the amendments to PCA), which put human life and dignity in jeopardy once more. In such a case, it is not the specific action of an individual (which they make through their choice) which is constrained, but rather, it is the very basis of the possibility of that choice (i.e., the legalisation of the events through the amendment acts) which are constrained by virtue of being ultra vires the Constitution.

Conclusion

The judgement in AWBI vastly hampers the landscape of animal rights litigation in India. The judgement leaves narrow grounds for any future challenge to cruel practices or endangering of animals. However, at least in the short term, an anthropocentric and impersonal approach to safeguarding the welfare and dignity of animals could prove a more effective avenue. By focusing on the impact of such practices on human life and human dignity, the most violent of the abuses could be curtailed.

Political Economy, Liability for Environmental Damage, and Structural Interdicts at the Kenyan Court of Appeal

In an interesting judgment titled National Environment Management Authority vs Kelvin Musyoka, the Court of Appeal at Mombasa considered the intertwined issues of environmental damage caused by multiple parties, and the judicial remedy of structural interdicts. The case concerned the processing of toxic lead around the village of Owino-Uhuru, in alleged breach of multiple planning permissions and environmental law regulations (for a history of the villagers’ battle against the toxic lead factory, see this piece). As a result, the environment was poisoned, buildings were corroded, and the villagers suffered from serious respiratory diseases.

None of this was particularly in dispute (para 43). Nor was it in dispute that there had been a breach of the residents’ constitutional rights to a clean environment and the highest attainable standard of health (para 46). The dispute was who bore the liability for what had happened, and to what extent: the private owner of the land (Penguin Book and Paper Company), the owner of the factory (Metal Refinery EPZ Ltd), the relevant regulatory bodies, being the National Environment Management Authority (NEMA) and the Export Processing Zone Authority (EPZA), the Ministries of Health and Environment, or the Mombasa City Council. At the first instance, the Environment and Land Court (ELC) fastened primary liability on NEMA and Metal Refinery EPZ (40% and 25%), and distributed smaller shares of liability among the other bodies (other than the City Council). Accordingly, the Court granted compensation, and also directed a clean-up of the area by the Respondents, under the aegis of an NGO, the CJGEA.

NEMA and the other parties appealed this decision. At the Court of Appeal, the dispute turned upon the scope of strict liability and the “polluter pays” principle in environmental jurisprudence, as well as the “precautionary principle,” and the concept of “trial runs.” The quantum of damages was challenged as well. The regulatory bodies’ primary argument was that under the “polluter pays” principle, the party that actually caused the damage – i.e. Metal Refinery EPZ – should be liable; and that in any event, NEMA and EPZA, at all times, had acted to discharge their statutory mandates. On the other side, it was argued that NEMA and EPZA’s liability flowed from their failure to discharge their statutory and constitutional obligations – in particular, insufficient regulatory scrutiny – which contributed directly to the breach of constitutional rights.

In its analysis, the Court of Appeal noted that the case presented a mix of public and private law principles. Private law principles – of negligence and nuisance – were applicable to determine the liability of private parties (or state bodies discharging statutory obligations) (para 66). However, the Constitution also fastened positive obligations upon State bodies to ensure efficacious fulfilment of constitutional rights (para 68). In the present case, this was specifically relevant, because – as the Court noted – determining causation with accuracy in environmental damage cases was always a difficult task: “there are difficulties in the application of this [i.e., “polluter pays”] principle and its exact scope and extent of payable costs, and identifying the responsible persons or “polluters”.” (para 70) In particular – and this is important – too narrow an application of the “polluter pays” principle cut off the chain of causation too early. What it ignored was the fact that “the state as an economic operator in the process of regulation and development of economic policies is well recognized, and the state and state agencies also engage in economic activities as operators.” (para 71)

In other words, therefore, the Court recognised that pollution is not simply the result of the errant action of private bad actors, but is embedded within the logic of political economy – and, inevitably, involves the participation of the State. In concrete terms, State liability would derive from “an administrative authorisation, an absence of regulation, or from inadequate measures relating to activities of the private actors, which result in harm to the environment” – or, in other words, “lack of effective regulation of private activities.” (para 72) This, in turn, was founded within Article 69 of the Kenyan Constitution, which required the State to engage in preventive and proactive measures with respect to environmental protection, and thus required the existence of legal structures (such as licensing or other regulatory measures) to achieve that goal (para 75).

Applying the law to the facts, the Court of Appeal found that both NEMA and EPZA had issued the relevant licenses to Metal Refinery EPZ, in breach of specific obligations, such as a detailed technical Environmental Impact Assessment (EIA) report (para 84). Indeed, Metal Refinery EPZ’s operations were approved even before the EIA process was completed. On this basis, the Court of Appeal therefore held that “the allocation and apportion of liability to NEMA and EPZA for approving the project and its commencement before the full impact of the project were considered and evaluated was near equal in measure to that of the actual perpetrators of the pollution.” (para 85) Furthermore, NEMA’s failure to deploy enforcement tools even after the fact means that it bore a greater share of the liability. The Court, therefore, largely upheld the reasoning of the ELC, while modifying the distribution of liability somewhat.

Finally – and importantly – the Court gave short shrift to the EPZA’s argument that Metal Refinery EPZ was contributing to economic development, by noting that the “balance” between environment and development had already been struck within the Constitution (and, in particular, Article 69, which required ecologically sustainable development). This is interesting, as it potentially makes the principle of sustainable development a touchstone on which to test if legislation that seeks to undermine environmental concerns with the stated objective of development, is constitutionally compliant.

The Court of Appeal did, however, set aside the ELC’s order on damages and clean-up, on the basis that it was important to specifically identify affected parties in determining the quantum of damages. It, therefore, remitted this issue back to the ELC (where it would be decided by a different judge). On the issue of clean-up, the Court directed the NEMA to ascertain the extent of contamination and perform a clean up, and, crucially, to report to the ELC every three months on its progress. The last bit of the order is significant, as structural interdicts (what we in India call the “continuing mandamus”) are not yet fully entrenched in Kenyan law: as Alvin Attalo and Godfrey Mwango have shown, there has been some back and forth between the Supreme Court and the Court of Appeal on this issue, with the CoA – in the past – having set its face against structural interdicts (see also this essays by the Strathmore Law Clinic and Professor Victoria Miyandazi).

The Court of Appeal judgment, therefore, is significant for the following reasons: first, in its recognition that pollution is a political economy issue, embedded in a certain political economy model that cannot exist without State policy; secondly, that therefore, liability for pollution is a complex issue where the role of private and State actors has to be untangled; thirdly, that State liability arises not just from commission, but from failure of regulation; fourthly, that monetary compensation is a public law remedy for State failure to effectively fulfil constitutional rights; fifthly, that the “balancing” between environment and development has been achieved within the Constitution (through the principle of sustainable development), and does not permit the carve out of further, extra-constitutional exceptions for “development”; and finally, that the structural interdict is a viable judicial remedy to enforce those rights.

It will be interesting to see where this jurisprudence goes next, and especially if, in future cases, the Court will engage more closely with the deep links between pollution and the political economy of boundless growth.

Reasonable Accommodation for Religious Beliefs in Schools: The Judgment of the Kenyan Court of Appeal

Yesterday, in Philip Okoth vs Board of Management, St Anne’s Primary School, the Kenyan Court of Appeal delivered an interesting judgment reaffirming certain important principles with respect to the religious rights of students in the schoolroom, and the principle of reasonable accommodation. The case involved the expulsion of certain school students – who were Jehovah’s Witnesses – for refusing to attend a mandatory, thirty-minute Catholic mass organised by the school (the first petitioner/appellant was later re-admitted, but required to sign a declaration that she would attend mass).

The High Court found against the Appellants/Petitioners, on the bases that they had indicated their willingness to comply with the school rules (which included mandatory mass), and that they had not established that mandatory mass amounted to an impingement of their own freedom of belief.

The Court of Appeal – consisting of Kiage, Tuiyott, and Ngugi JJA – disagreed, for the following reasons. First, constitutionally-guaranteed rights (such as the freedom of religion, guaranteed under Article 32 of the Kenyan Constitution) could not be deemed to be implicitly waived by prior conduct. Thus, the fact that the appellants/petitioners had initially participated in the school’s inter-faith activities could not stand in the way of a constitutional claim, whenever it might be raised (pg 21). The Court of Appeal linked this to the Respondent’s argument that if the Petitioners/Appellants had a problem with the school rules, they could simply have left and taken admission in another school. This argument, of course, is familiar to us. But, relying upon the previous judgment of SDA – where the Court had labeled this a “lame and gloomy” argument – the Court of Appeal cited with approval the observation that:

This view is not only impractical, but also ignores many factors that a student or parent considers in choosing a school, such as the availability of public schools where the students’ particular religious beliefs would be accommodated, the student’s personal career choice and academic standards of the school. It violates, not only sub-article (3) of Article 32 of the Constitution but also section 34 of the Basic Education Act.

This observation is important, as it reiterates the simple point that in cases involving constitutional rights, the burden of finding alternatives for the exercise of the right in case it is blocked off in certain spaces should not be upon the rights-bearer (i.e., in this case, the students). In particular – although the judgment does not go further into this point – what is implicit is that the existence of constitutional guarantees carries with it the right to be able to exercise those guarantees without undue burden. This is particularly important in the case of schools, where it is well-documented that wrenching a child out of a school environment in which they are well-settled triggers a number of mental and psychological harms. This is, of course, independent of the facts – as noted in the judgment – pertaining to the availability and accessibility of alternatives. In other words, therefore, the Court affirmed the students’ right to access a school where the exercise of their constitutional rights would be reasonably accommodated. (see pg 22)

The Court of Appeal then went on to hold that as “religion is a fundamentally subjective matter of faith”, and that it was evident from the record that “the appellants’ belief was genuinely held”, nothing more was needed to trigger the exercise of the right (pg 26). That being the case, the Court went on to find that an exemption from attending mass fell well within the contours of reasonable accommodation (pg 27): this was because – as Counsel Ochiel Dudley had argued – the rule itself was facially neutral, but had a discriminatory impact; and secondly, the application of this rule was particularly apposite in a “specific, localised context”, such as a workplace or a school, where the balance between rights could be struck.

Interestingly, as a final point, the Court referred to a Ministry of Education Circular from 4 March 2022, which itself had noted that “the violation of religious rights in schools has negative effects on maintenance of peace and tranquility and some students end up dropping out altogether.” This, the Court held, accorded with the thrust of its own judgment – a case where the judiciary and the executive were ad idem on the constitutional principles involved!

The final declaration of the Court is important. It held that “the 1st appellant’s expulsion from school on the basis of her religious views amounted to indirect discrimination; constituted a violation of her right to education and right to dignity and is therefore null and void.” It is worthwhile to focus on this because – as the analysis above showed – cases of this kind involve a number of intersecting rights. It is not simply a case of an assertion of religiosity by a minority group; but it is – crucially – about indirect discrimination (i.e., facially neutral rules that nonetheless enforce majoritarian cultural norms, whether it be mass or regulations about the uniform), about the right to education (i.e., forcing students to pick between an exercise of constitutional rights and dropping out of education altogether), and the right to dignity (through singling out and exclusion). It is therefore a mistake to think of these cases as only involving religious expression versus uniformly applicable school regulations: a sensitive exploration of the issues – as was undertaken by the Court of Appeal – reveals much more at play.

As a post-script, it will be interesting to see what the impact of this case might be on potential future litigation on issues such as – for example – the wearing of the hijab in schools. Recall that this same Court of Appeal had – in Fugicha’s Case – had affirmed the right to wear the hijab, in a closely-reasoned judgment (see the analysis on this blog, here) (indeed, Kiage JA – the author of today’s judgment – was also a party to Fugicha). That judgment had eventually been overturned by the Supreme Court, but only on procedural grounds. Interestingly, today’s judgment quotes extensively from Fugicha (as also from SDA); and it does appear that its observations apply squarely to more complex cases such as the hijab case. Indeed, the Court’s clear invocation of the right to education in this case, and its dismissal of the argument that students unhappy with the rules could simply leave and go elsewhere, create a strong foundation for rights-protective rulings in those cases, where the argument on behalf of school authorities rests on instinctively stronger foundations (such as the need for a ‘uniform’ uniform). It remains to be seen how the Kenyan courts carry forward this progressive jurisprudence.

Evictions and the Right to Housing: The Uttarakhand High Court’s Haldwani Judgment

On 20th December 2022, the Uttarakhand High Court delivered judgment in a public interest litigation, titled Ravi Shankar Joshi vs Union of India. In this judgment, a division bench of the High Court held that around 5000 individuals, living in an area called Gaffur Basti, had no legal right to be there, as the land belonged to the Railways. The High Court then passed an order directing the removal of all these individuals from the land within one week, “by use of force” if required.

Summary

A study of the High Court’s 176-page judgment reveals that the main finding turns upon the status of a particular government document from 1907. Put simply, the interveners before the Court – who were people residing on the land (many of whom had been there for decades) – traced their legal rights to this document, which – according to them – declared that the land in question was a specific type of land called “nazul land.” As the High Court itself notes in paragraph 5, up until now – that is, until a public interest litigation was filed seeking the eviction of these people – “the local bodies … had basically foundationed [sic] the class of property to be nazul land.” The High Court, however, finds to the contrary: it holds that the 1907 document was a mere Office Memorandum, which could not determine the classification of the land. And if the land was not nazul land, every succeeding transaction – a sale, or a lease, or a mutation – was also invalid. Therefore, even though many of the affected people had been living there for decades, and did have documents to demonstrate title, they had no legal right to be on the land.

On its own terms, the decision of the High Court is legally questionable (and has been questioned before the Supreme Court). For the present moment, however, the key issue is the High Court’s order of eviction within a week which – at the time of the writing of this post – is underway. Naturally, once the eviction process is completed, the pending appeal before the Supreme Court will become infructuous in most respects. Consequently, what matters at the moment is whether the High Court’s order of eviction is sustainable.

I suggest that it is not. Indeed, the order of eviction is prima facie flawed, and deserves to be stayed by the Supreme Court, when the appeal comes up for admission.

Evictions and the Right to Housing

For the purposes of the argument, let us assume that the High Court’s finding that the residents upon the land do not have an enforceable legal right to it is correct. The question then arises: do the residents nonetheless have certain procedural and substantive constitutional rights before the eviction process can be commenced? To this, the answer is in the affirmative. Going back to the 1985 judgment in Olga Tellis vs Bombay Municipal Corporation, the Supreme Court (and various High Courts) have held when carrying out an eviction, the State must respect the constitutional rights to life, livelihoods, and housing, notwithstanding the absence of formal legal title. This stems from the recognition that what are commonly called “encroachments” are a result of the State’s failure to discharge its constitutional obligations to provide basic socio-economic rights (such as housing) to the citizenry. When it comes to evictions – especially evictions that would make people homeless – an absence of legal title does not mean that a resident is without any rights, and can simply be turfed off the land.

What are these rights? As this piece by Rishika Sahgal explains in some detail, there are two sets of rights: a right to notice-and-hearing, and a right to rehabilitation under existing schemes. Let us consider the right to rehabilitation first. While the Supreme Court had, thus far, refrained from declaring a right to rehabilitation in all cases, it has nonetheless made it clear that before an eviction can be conducted, it must first be ascertained which of the residents are eligible for resettlement and rehabilitation under existing state or central government policies. In judgments after Olga Tellis, certain High Courts (in particular, the Delhi High Court) and the Supreme Court have given concrete content to this right, noting, for example, that the State must conduct a survey of the affected people in order to confirm their eligibility under existing policies; failure to do so is a breach of the residents’ statutory and constitutional rights (see Sudama Singh vs Government of Delhi and Ajay Maken vs Union of India). Admittedly, the High Court does not do this: it proceeds directly from the finding that the residents do not have a legal title to the land, to the order that they be evicted within a week. In this context, it is particularly important to note that most state policies in this regard have cut-off dates, which protect the rights (at the very least) of residents who have been on a piece of land for a long time. In the present case, a significant number of the residents – and this is uncontroverted – had been residing on the land for a long time (a few decades, or more).

Consequently, before ordering eviction, it was incumbent upon the High Court to (a) ascertain which rehabilitation and resettlement policies of the state or central government were relevant to the case at hand (for example, there is a law called The Uttrakhand Reforms, Regularization, Rehabilitation and Resettlement and Prevention of Encroachment of the Slums located in the Urban Local Bodies of the State Act). It is important to note that the absence of a policy is, itself, a breach of the State’s positive obligations to protect the rights to livelihood and housing of the citizenry. And (b) to direct the State to conduct a survey determining which of the residents were eligible for resettlement and rehabilitation under the existing policies. The High Court does not do so, and that is why its judgment is flawed in law.

What of the right-to-notice-and-hearing? One version of the right to hearing is a thin one, limited to individuals submitting representations, which are then acted upon by the competent authority. Given the consequences of eviction orders, however, Courts have developed a richer conception of hearing in such cases, which is called “meaningful engagement.” As the term suggests, meaningful engagement requires the authority to engage on equal terms with the residents, concerning the impact of evictions upon lives and livelihoods, and to take its decisions only after that process has been completed.

The Uttarakhand High Court misunderstands the concepts of hearing and meaningful engagement. It determines that the procedural requirements have been fulfilled because it granted to the residents a right to intervene and make legal submissions before the Court. This gets the law wrong in two respects. First, hearing and meaningful engagement are not connected to proving legal right to a particular piece of land. Hearing and meaningful engagement take place in the backdrop of the fact that the residents do not have formal legal title, and how – in such circumstances – their constitutional rights can be protected in the case of an eviction. Secondly – and relatedly – hearing and meaningful engagement is before State authorities, not the Court. The reason for this is obvious: if hearing and meaningful engagement is insufficient or a sham, then the residents have the option of approaching the Court for a remedy (indeed, this is what happened in previous cases such as Ajay Maken). But when the Court itself takes over directly, this two-step process for safeguarding individual rights is bypassed. To take an analogy: if the government bans a book under Sections 95 and 96 of the CrPC, I can make representations to the government, failing which, I can approach the Court asking for judicial review of the ban. However, if the Court itself bans a book directly, the existing two-step safeguard process is undermined.

We can therefore see that the Uttarakhand High Court’s eviction order is legally unsustainable, as it violates both the notice-and-hearing and the rehabilitation-and-resettlement pre-requisites before a mass eviction can take place. For these reasons, it deserves to be stayed.

Inconsistent Application of Procedure

There are a few additional points about this judgment that need to be made. The first is that this is not a case where the State authority (in this case, the Railways) was evicting people, and those people came to Court for protection. Rather, this is a case where an individual filed a public interest litigation in order to get people evicted through a Court order. Now, given that PILs are only maintainable if one demonstrates the violation of a fundamental right, what specific, identifiable right of the PIL petitioner was at stake in the present case? The Court makes no attempt to answer this question; it only reiterates the tautology that PILs are for “the public at large” (para 196), and berates the two or three interveners who had challenged maintainability.

Furthermore, while the High Court is perfectly happy to bend procedural requirements to allow a PIL where the prayer is not to protect a fundamental right but to evict people, it suddenly remembers the importance of procedure when it comes to the interveners (the actually affected people). When a few of the interveners attempt to challenge a demarcation report prepared by an advocate-commissioner in a previous (connected) PIL, the High Court forbids them from doing so, on the ground that it was not challenged at the relevant time (para 132). Quite apart from the fact that the interveners only came to know about the present proceedings because of a public notice – and therefore, arguably, could not have challenged the demarcation report before – this is a bizarre inversion of procedure, where a person filing a PIL to evict people seemingly does not have to satisfy procedural constraints, but the people getting evicted are held to a strict procedural standard.

Vitiation by Judicial Bias

Finally, there are various passages in the judgment that raise a distinct possibility of judicial bias. In paragraph 63, the High Court states:

Owing to the certain most reckoned political shield, which was then being provided by the then Ruling party for its political gains to the unauthorised occupants, just to secure its vote bank, the State itself has filed a Review Petition, for no subsisting and valid reasons, being Review Petition No. 6 of 2017, seeking review of the judgment dated 9th November, 2016, which too was dismissed by the Division Bench vide its judgment dated 10th January, 2017.

This is an extraordinary paragraph. Note that the High Court does not castigate the State; it castigates the “then ruling party” – i.e., a previous government, not a party to the present proceedings – and then engages in a judicial dog-whistle by referring to “vote banks.” Later on in the judgment, the High Court doubles down further, holding in paragraph 247:

This Court will not be hesitant to observe that in the instant case too, the present encroachers over the railway land were sheltered by the political heads of the State Government and were having political patronage, which at the relevant time, when the earlier Division Bench decided the matter, it was in the helm of the affairs, and particularly, the shelter provided by the then sitting M.L.A., who was also enjoying a status of being a Cabinet Minister, in order to secure her vote bank, have been irrationally resisting any act of removal of the unauthorized occupants from the land, in order to protect her vote banks.

Here, the Court now extends its attack not just to a specific government, but also to the “then sitting MLA”, and makes accusations against a specific individual of – effectively – breaking the law for the purpose of protecting her “vote bank.” Once again, the MLA in question was not a party to the case, had no opportunity to have these accusations put to her and to respond to them, but nonetheless is at the receiving end of an adverse finding by the Court. In this context, it is important to recall the words of the Supreme Court in Bhullar, noting the importance of laying aside “private views” in the discharge of judicial functions, as well as the observations in P.D. Dinakaran, stating that “personal prejudice” cannot be a part of the decision-making process. When you look at these paragraphs, however, which amount to an attack on a previous government, an attack on a previous MLA, and accusations of collusion between the MLA and her constituents – none of which have a bearing on the legal issues at hand – it is hard to see how the observations in Bhullar and Dinakaran are not attracted.

Furthermore, at various places, the Court directly berates the interveners, and attributes motive to them. When an intervener challenges the maintainability of the PIL, the Court states that it is a “malicious intent to confuse the Court” (para 191); for another intervener, the Court states that “the learned counsel for the applicant craftly (sic), in order to confuse the issue furthe, and for all clever devices adopted by the applicant…” (para 208); to yet another, it says that “it cannot be ruled out, that a deliberate effort has been made by the applicant was to (sic) confuse the proceedings.” (para 214) It is respectfully submitted that such intemperate language does no credit to the bench.

Conclusion

While the merits of the High Court’s judgment deserve closer examination, the present case also presents an opportunity to the Supreme Court to clarify and restate the law on evictions and the right to housing under the Indian Constitution. This is an excellent opportunity for the Court to clearly set out the substantive notice-and-hearing and rehabilitation-and-resettlement principles and the scope of their application. Not only would this help settle present confusion about the state of the law, but also deal with the recent pandemic of evictions and demolitions that is sweeping the country, and which presents a serious threat to constitutionalism and the rule of law.

The Kenyan High Court on Forced Sterilisation, Informed Consent, and Constitutional Damages

In a judgment delivered on 16th December 2022 (L.A.W. vs Marura Maternity and Nursing Home), the High Court of Kenya handed down some interesting findings with respect to informed consent to medical procedures, as well as the important issue of constitutional damages enforceable against private parties.

The facts, in brief, were as follows: in 2006, when the Petitioner was pregnant with her second child, she visited a health centre for an ante-natal check-up, and was found to be HIV-positive. A nurse at the Baba Dogo Health Centre advised her not to have more children, in the interests of her own health, as well as the life of the baby. Subsequently, she was referred to a community health worker at Karogocho, who gave her two vouchers titled “CS” and “TL”, and told her to use them at the Marura Maternity and Nursing Home (Respondent No. 1), when she was due for delivery. The Petitioner did so, and after a Caesarean section operation, successfully gave birth. Soon after, the Petitioner lost her husband. She remarried in 2010, but found that she was unable to conceive. On visiting a medical camp, she was told that her fallopian tubes had been blocked. On enquiries, it turned out that “TL” stood for Tubal Ligation, and it was at the Respondent No. 1’s clinic where this procedure had been carried out on her. The Petitioner, therefore, sued.

Before the High Court, it was not in dispute that the Tubal Ligation process was performed on the Petitioner, permanently depriving her of the ability to bear children. This implicated several rights under the Kenyan Constitution: the right to the highest attainable standard of health, including the right to reproductive healthcare (Article 43), and other rights such as the rights to family, dignity, privacy, non-discrimination etc. The positive obligations under Article 43 required “the State to inter alia develop health policies, legislate on health, building and equipping hospitals, employ qualified health professionals and facilitate their training from time to time.” (para 59) In partial fulfilment of these positive obligations, the State had enacted the Health Act of 2017, which mandated full and complete information regarding the provision of healthcare services to those affected.

Having thus established the constitutional and statutory framework, and the rights at stake, the key question before the Court was whether the petitioner’s informed consent had been taken for performing the TL process. This was because the Health Act – which, according to the Court, stood at the level of a constitutional statute (para 169) had specifically set out a definition of ‘informed consent,’ which, in turn, had been further specified in The Kenyan National Patients’ Rights Charter. According to the Charter, the right to informed consent to treatment entailed:

To be given full and accurate information in a language one understands about the nature of one’s illness, diagnostic procedures, proposed treatment, alternative treatment and the cost involved for one to make and decision except in emergency cases … the decision shall be made willingly and free from duress. 

Relying upon this framework, the Mrima J then made the following important observation:

It is indeed a fact that in most cases there is a grave imbalance of knowledge and information between the healthcare provider and the person receiving the professional services. As such, a healthcare provider is under an obligation to ensure that such information is accurately broken down and communicated to the patient and in a language that the patient or user understands. (paragraph 176)

This passage is important, as it lays down both the burden of proof and the standard of proof for informed consent. Because of the institutional difference of power between the healthcare provider and the patient, the burden of eliciting informed consent lies upon the former, and in order to do so, they must ensure accurate and effective communication in a manner that is intelligible to the patient, based on their socio-economic circumstances. The Court also noted that these principles, in effect, had been codified in Sections 8 and 9 of the Health Act (paragraphs 177-180), and were in line with international best practices (paragraphs 181-187).

Applying these principles to the case at hand, the Court found that during the TL procedure, the surgeon “asked [the petitioner] whether she knew she was being sterilized and she answered in the affirmative” (paragraph 195), but nothing more. During cross-examination, the petitioner stated that she had not been informed that the procedure was irreversible (paragraph 197).

On the basis of this, the Court found that there was no informed consent. In particular:

[The Petitioner’s] low level of literacy and understanding of family planning options and health generally imposed upon healthcare providers a high legal duty to facilitate her consent … they had the obligation to break down and convey in a language she understood the information as to what BTL entailed in the first place, its implications and check to ensure that she had understood what was the procedure was all about … in addition, the healthcare provider had a legal duty as required under Sections 8 and 9 of the Health Act to explain to her the available alternatives of family planning. (paragraphs 204-206).

The casual manner in which the petitioner had been asked if she knew that she was being sterilised (without more context), the sketchy consent form itself, and no further evidence tendered on how the consent was procured, therefore persuaded the Court that the required threshold had not been met, and consequently, the Petitioner’s constitutional rights had been breached.

This, then, brought the Court to the question of remedies. In the present case, the Petitioner’s rights had been violated by two private, non-State bodies – i.e., the two clinics involved. The Court noted that:

As is the case in constitutional Petitions, there are arrays of available remedies. What a Court endeavours to do upon confirming of any infringement is to grant an appropriate remedy. Even in instances where a party fails to ask for a specific relief, a Court, depending on the nature of the matter ought to craft an appropriate relief. (paragraph 244)

The appropriate remedy, the Court decided, was constitutional damages, which it proceeded to grant.

In my view, however, the basis for the remedy was left somewhat unclear. In paragraph 248, the learned Judge referred to his prior judgment in Patrick Alouis Macharia Maina, and relied upon the doctrine of constitutional tort. A perusal of Patrick Alouis, in turn, reveals that the basis of the constitutional tort doctrine is the Court of Appeal judgment in Gitobu Imanyara vs Attorney-General. Gitobu Imanyara, however, was a case involving State action, and the doctrine of constitutional tort was invoked as a public law remedy to deal with cases where, in essence, the State’s tortious action leads to a violation of constitutional rights. The doctrine of constitutional tort is not normally used in cases of private violations of constitutional rights.

That is not to say that the remedy couldn’t have been granted. However, I believe that to do that required the Court to use the bridge of Article 20 of the Constitution, which applies constitutional rights horizontally, against private parties. While the text of Article 20 is unbounded – it applies constitutional rights horizontally in all cases – the Kenyan courts have, through interpretation, narrowed its scope (see this paper) – in particular, to cases of serious constitutional violations, where alternative remedies are do not exist or are inaccessible. In my view, both conditions were met in this case. Now, once Article 20 was called into play, and the rights in question held to apply horizontally, it would follow that the doctrine of constitutional tort could be likewise incorporated, as the doctrine is agnostic towards the nature of the duty-bearer once the violation of rights has been established. The proposed solution, thus, would require the Court to (a) demonstrate the applicability of Article 20 under existing Kenyan jurisprudence, and (b) having done so, transplant the constitutional tort doctrine from the vertical to the horizontal context – instead of directly invoking constitutional tort.

In sum, therefore, the judgment of the High Court makes important strides in the context of informed consent in situations of vulnerability, and constitutional damages for breach of the same; where it arguably comes up short is in a full articulation of how and when the constitutional tort doctrine applies to private parties, via Article 20. That might be for a case for another day!

Discipline or Freedom: The Supreme Court’s Split Verdict in the Hijab Case

Today, a two-judge bench of the Supreme Court delivered a split judgment in Aishat Shifa vs State of Karnataka, popularly known as the “Hijab Case.” Petitioners appealed the judgment of the High Court of Karnataka, which had upheld a ban on the hijab in various State-run educational institutions. At the Supreme Court, Justice Hemant Gupta wrote a judgment agreeing with the High Court and upholding the ban, while Justice Sudhanshu Dhulia wrote a judgment overruling the High Court, and striking down the ban. The immediate upshot of this is that the Chief Justice will now have to constitute a larger bench to determine the issue. In the meanwhile, the High Court judgment continues to stand, and, therefore, the ban on the hijab continues to be in force as well.

The Judgment of Hemant Gupta J.

Previously on this blog, I had examined the High Court judgment at some length. I had noted at the time that “a close reading of the judgment reveals how the uniform haunts the Court’s imagination on every page.” Lurking behind the High Court’s judgment was the unarticulated belief that allowing the hijab would open a floodgate that would end in the destruction of the very idea of a uniform, without which education was unimaginable. It was this belief that informed the Court’s analysis of the constitutional rights to freedom of conscience, speech, and privacy, and led it to effectively hold that these rights were either inapplicable, or only weakly applicable in “qualified public spaces” such as schools, and in any event, were subordinate to the overriding logic of the uniform.

A few months down the line, the spectre of the uniform appears to have traveled from Karnataka, and now haunts the pages of Justice Gupta’s judgment. A reading of the judgment reveals that Justice Gupta’s response to virtually every argument advanced by the petitioners is: “the uniform!” Article 25 and the freedom of conscience? The uniform! Article 19 and the freedom of expression? But, the uniform! Article 21 and the right to privacy? Most verily, the uniform! All moral and constitutional values have come to repose in the uniform: it is a marker of formal equality (“uniformity”) under Article 14, which – in turn – justifies the restriction of the freedom of conscience under Article 25, as that article is subject to the other provisions of Part III (paragraph 87); it is the basis of permissible “regulation” of Article 19(1)(a) (paragraph 144); and the “homogeneity” of the uniform discourages sectarianism and encourages constitutional fraternity (paragraph 154).

Clearly, however, it is not the uniform itself that is doing the moral heavy lifting in the judgment. Dig a little deeper, and you find what really animates Gupta J: it is the idea of discipline. The word “discipline” occurs twenty-two times in the judgment, in varying contexts, but most commonly in the precedent the Gupta J. elects to cite, and in his own analysis. And it occurs with particular frequency in the neighbourhood of the word “uniform”, with Gupta J. stressing – on multiple occasions – how discipline (and even, once, “discipline and control!”) cannot exist without a uniform. Gupta J.’s depth of feeling for discipline is revealed in one particularly extraordinary passage, where he notes that:

Discipline is one of the attributes which the students learn in schools. Defiance to rules of the school would in fact be antithesis of discipline which cannot be accepted from the students who are yet to attain adulthood. Therefore, they should grow in an atmosphere of brotherhood and fraternity and not in the environment of rebel or defiance (sic). (paragraph 188)

We should, perhaps, be thankful that this grim, bleak, and joyless vision of the school will always be far from reality, and that wherever there will be teenagers, there will be “rebel or defiance”, notwithstanding the efforts of sergeant-teachers or of disciplinarian Supreme Court judges. But be that as it may, the real problem here is that in his enthusiasm to prescribe discipline and stamp out “rebel or defiance” in the “pious atmosphere of the school” (paragraph 193), Gupta J. forgets to apply the law. So, while the word “discipline” occurs twenty-two times in the judgment, the word “proportionality” – which is the legal test to determine when the State’s infringement of constitutional rights is justified – occurs a grand total of zero times. In a truly highlight reel moment, Gupta J. holds:

The intent and object of the Government Order is only to maintain uniformity amongst the students by adherence to the prescribed uniform. It is reasonable as the same has the effect of regulation of the right guaranteed under Article 19(1)(a). Thus, the right of freedom of expression under Article 19(1)(a) and of privacy under Article 21 are complementary to each other and not mutually exclusive and does meet the injunction of reasonableness for the purposes of Article 21 and Article 14. (paragraph 144)

Apart from the fact that the last sentence makes no sense at the level of the sentence, in this single paragraph, Gupta J. disposes of the Articles 19(1)(a) and 21 arguments with the familiar answer “but the uniform!” “But the uniform!”, however, is not a constitutional test, and it is certainly not the constitutional test of proportionality that – in accordance with precedent – is binding upon Gupta J., if he wishes to hold that State action meets the “injunction of reasonableness.” Equally erroneous is his (repeated) holding that the uniform furthers the goal of Article 14 because it is about “uniformity”: the proposition that Article 14 of the Constitution requires “uniformity” has never been the jurisprudential position since 1950, and at any rate, is most certainly not the jurisprudential position after the Supreme Court’s landmark judgments in Navtej Johar and Joseph Shine: it is – to use a word beloved of lawyers – trite to say that the Indian Constitutional approach to equality, in 2022, is contextual and substantive: it focuses on issues around structural and institutional disadvantage, and their remedies.

Thus, once “uniform” (not a constitutional test) and “uniformity” (not the right constitutional test) fall away, Gupta J.’s judgment does not have a leg to stand on, and falls away along with them.

The Judgment of Dhulia J.

In stark contrast to Gupta J., the judgment of Dhulia J. commences at a different starting point, asks a different set of questions, and – unsurprisingly – arrives at a very different answer. There are four facets of this judgment that, in particular, deserve to be highlighted.

The first is Dhulia J.’s treatment of the essential religious practices [“ERP”] test. As I have argued previously, in this case, the ERP test presented the petitioners with a fundamental dilemma: on the one hand, the case was pegged as being about constitutional values: the freedom of expression, conscience, and choice, of the Muslim women students who wished to wear the hijab. To put it in one word: agency. On the other hand, pegging the case on the ERP test would – by definition – erase agency. To show that the hijab is an “essential religious practice”, one would have to show that it is mandated by Islam, an injunction that leaves no room for choice or agency.

Before the High Court, petitioners made extensive submissions on the ERP test, and indeed, a major prong of the High Court’s judgment is its finding that the hijab is not an ERP. Before the Supreme Court, the position was different: while some of the petitioners (now appellants) continued to nail their colours to the ERP mast, others avoided it altogether, and focused instead on expression, choice, and conscience.

Justice Dhulia’s judgment deals with the ERP test in a fascinating way. He notes that the test – while indisputably a part of India’s religious freedom jurisprudence – is inapplicable to the present case. Why? Because, on a survey of the history, Dhulia J. finds that the ERP test has been historically used when the issues turn around the managements of religious property, or the invocation of group rights against the State. In this case, however, what is at stake is an individual right (to wear the hijab) against the State. For Dhulia J., in such a case, ERP is inapplicable, for the reason that in any religion, there will be different views on what religious doctrine truly means, and it is not the Court’s remit to privilege one view over another (paragraph 36).

It is impossible to overstate how vital a finding this is. One of the most pernicious facets of the ERP doctrine is how it completely erases the very possibility of religious dissent, and religious pluralism. It requires the Court to make a determination that a particular doctrine is “essential” to a religion or not, and in doing so – inevitably – the Court relies upon the dominant viewpoints within the religion (by looking at religious books, the opinions of “authorities”, and so on). Indeed, this is starkly evident in Gupta J.’s judgment, where he spends reams and reams of pages reading the Quran to try and figure out if the hijab is truly essential or not. For Dhulia J., on the other hand, the question of ERP is simply irrelevant where an individual right is at stake. There, all that matters is the sincerity of belief (paragraph 34). And this is another crucial shift, because what it does is to prioritise an individual’s subjective understanding and articulation of their religion, over the diktats of religious “authorities.” In other words, in one stroke, Dhulia J. rescues agency from the talons of the ERP test. If – and this is a big if – this finding is upheld by the larger bench, it would signal a quiet – and desperately needed – revolution in our ERP jurisprudence.

This finding then allows Justice Dhulia to move on from ERP, and – instead – make the freedom of conscience, and the landmark judgment in Bijoe Emmanuel, the centrepiece of his analysis. This is the second important aspect of his judgment. Recall that in Bijoe Emmanuel, the Supreme Court had permitted three students – who were Jehovah’s Witnesses – to refrain from singing the national anthem in their school assembly, as long as they stood in respectful silence while it was being played. Dhulia J. finds the situations to be analogous: and he, in turn, invokes Bijoe Emmanuel to locate the principle of “reasonable accommodation” (which Gupta J. rejects out of hand) in Indian constitutional jurisprudence. Thus, for Dhulia J., Bijoe Emmanuel is authority for the propositions that, first, the threshold to trigger Article 25(1) protection is simply a case of conscience, and that secondly, once that threshold has been triggered, there is a right to reasonable accommodation of difference.

What of the reasonableness in this particular case? This brings us to the third important facet of the judgment, and to Dhulia J.’s fundamental disagreement with Gupta J. Recall that for Gupta J., State action was reasonable because it was in the service of the uniform, and of discipline. Dhulia J.’s disagreement could not be starker or more unambiguous: “not discipline at the cost of freedom, at the cost of dignity” (paragraph 52). Freedom and dignity are constitutional values, and this allows Dhulia J. to hold:

Asking a pre university schoolgirl to take off her hijab at her school gate, is an invasion on her privacy and dignity. It is clearly violative of the Fundamental Right given to her under Article 19(1)(a) and 21 of the Constitution of India. This right to her dignity and her privacy she carries in her person even inside her school gate or when she is in her classroom. (paragraph 52)

Indeed, a very different picture of the classroom emerges in the judgment of Dhulia J.: a space where the governing value is not discipline but freedom, and where the idea of fraternity requires us to embrace and express our differences, rather than flatten and erase them (paragraph 71).

The final important facet is perhaps the most basic of all: education. Dhulia J. asks himself whether “we are making the life of a girl child any better by denying her education, merely because she wears a hijab!” (paragraph 66). This observation comes in the context of the admitted fact that after the Karnataka High Court’s judgment, many girls were unable to take their exams. Once again, the differences between Dhulia J. and Gupta J. are stark: for Gupta J., there is nothing to see here, as the girl students’ missing exams is, essentially, their own fault for refusing to follow the uniform. Dhulia J., on the other hand, recognises that the situation is rather more complex: it is a known fact, for example, that in many households, access to education is a contested terrain between the girl-child and her (conservative) family, with permission to go to school contingent upon the wearing of the hijab. Indeed, as Nisha Susan highlights in this article, there are a range of complicated reasons why someone might wear the hijab, and it is almost never as simple as a total compulsion/unencumbered choice binary: indeed, agency is something that is both situated and negotiated, especially when it comes to women dealing with patriarchy, both within the home and outside. Thus, for Dhulia J., what it basically comes down to is whether the effect of the Court’s judgment will be the denial of access to education; and if so, how best to ensure that that outcome is avoided.

Conclusion

At one level, the split within the bench turns upon different understandings of the law and of its application. On a closer look, however, the difference is much more fundamental: it is a difference in world-view.

One of these worlds is governed by the iron laws of discipline and control; of inflexible rules and punitive action for those that question them; of authority that brooks no “rebel or defiance”; of homogeneity, the denial of difference, and the “unanimity of the graveyard”; of one tune and one song; and a world in which students are like undifferentiable lumps of clay, to be moulded into what the authority considers to be “model citizens.”

The other world celebrates freedom and plurality; believes that rules should allow space to breathe instead of suffocation; values diversity – and the expression of diversity – over homogeneity; believes in the beauty of an orchestra, with many voices, rather than just one; sees the classroom as a space of liberation rather than control; and considers students to be autonomous, thinking beings, capable of making choices, and even difficult, negotiated choices.

Which world would we rather live in? That question is for each of us to answer for ourselves. Which world do we live in? The answer to that hangs in the balance; and all eyes will now turn to the Chief Justice, and the next – and perhaps – final round in the history of this case.